UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________ ) DL, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 05-1437 (RCL) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ________________________________________ )
MEMORANDUM AND ORDER
Before the Court is plaintiffs’ Motion [255] for Leave to Re-Open the Record and to
Admit Additional Exhibits. Having carefully considered the motion, defendants’ objections,
plaintiffs’ reply, the entire record in this case, and the applicable law, the Court will grant in part
and deny in part plaintiffs’ Motion for Leave to Re-Open the Record. Specifically, the Court
will admit exhibits nos. 227–238 and 240 into evidence. Defendants’ objections to plaintiffs’
exhibits nos. 239 and 241 are sustained and that evidence will be excluded.
I. BACKGROUND
As is fully explained in a prior opinion of this Court, DL v. District of Columbia, 274
F.R.D. 320, 321–23 (D.D.C. 2011), during (and after) discovery, defendants had quite a bit of
trouble responding to plaintiffs’ discovery requests in a timely manner, and were producing
thousands of responsive e-mails both immediately prior to the April 6–7, 2011 trial and
following the trial itself. The production of documents post-trial was a new one for this Court,
and needless to say it put plaintiffs and the Court in a terrifically awkward position when it came
time to determine the merits of the case at the April 2011 trial. On the first day of trial, the Court
granted plaintiffs’ oral motion to compel defendants to produce at last the remaining responsive
documents within a week following the trial. DL, 274 F.R.D. at 322. To expedite production of these documents, the Court also held that the District had waived all privileges and objections
with respect to the yet-to-be-produced e-mails. Id.; see also Order [232] 1, Apr. 7, 2011. After
ordering defendants to produce responsive e-mails to plaintiffs’ counsel on or before April 14,
2011, the Court invited plaintiffs to move to re-open the record to admit these e-mails. Order
[232] 1.
Plaintiffs have accordingly moved to re-open the record and admit exhibits numbers 227–
241. Pls.’ Mot. Leave [255] 2–5, Jun. 3, 2011. On June 6, 2011, defendants filed their
Objections [257] to Plaintiffs’ Exhibits Submitted After Trial, challenging the admissibility of
most of these e-mails. Defs.’ Objections [257] 1–2, Jun. 6, 2011. Plaintiffs relied upon nearly
all of the e-mails attached to their Motion [255] for Leave in their Proposed Post-Trial Findings
of Fact and Conclusions of Law [256], Jun. 3, 2011, which was filed the same day. However,
defendants, after plaintiffs filed their Motion [255] for Leave, never sought leave themselves to
challenge plaintiffs’ new evidence with contrary evidence. On the assumption that this failure to
seek leave on the part of defendants was a mere oversight, and in the interests of justice, the
Court will give defendants an opportunity to seek leave to re-open the record and to admit any
contrary evidence they may have in their possession.
II. PLAINTIFFS’ PROPOSED EXHIBITS NOS. 227–241
A. Exhibit 227
Defendants did not object to plaintiffs’ exhibit 227 and it shall be admitted into evidence.
B. Exhibit 228
Defendants object to the admission of plaintiffs’ exhibit 228 on the basis of relevance,
vagueness, and hearsay. Defs.’ Objections [257] 1. Defendants’ objection is overruled. As an
initial matter, this e-mail was produced post-trial yet was in defendants’ possession for nearly a
year. Therefore, per the Court’s April 2011 Order [232], all objections are deemed waived. 2 However, this exhibit would be admissible in any case. The statements contained in this e-mail
chain are relevant to the issue of whether plaintiffs are entitled to injunctive relief because they
indicate that the District’s Child Find policies and procedures were related to this litigation.
Defendants’ vagueness challenge is overruled because it goes to the weight of the evidence, not
its admissibility. As to hearsay, the email chain and the included statements are admissible
hearsay under the exception for “records of regularly conducted activity” of Rule 803(6) of the
Federal Rules of Evidence.
C. Exhibit 229
Defendants object to the admission of plaintiffs’ exhibit 229 on the basis of hearsay,
speculation, personal knowledge, and relevance. Id. Defendants’ objection is overruled. As
with the preceding exhibit, this e-mail was produced post-trial yet was in defendants’ possession
for nearly a year. Per the Court’s Order [232], all objections are deemed waived. Even without
the effect of that Order, however, the exhibit is admissible. As to hearsay, the e-mail chain and
statements therein are admissible hearsay under the exception for “records of regularly
conducted activity” of Rule 803(6) of the Federal Rules of Evidence. As to speculation, that
objection is overruled as it goes to the weight of the evidence, not its admissibility. As to
defendants’ “personal knowledge” objection, defendants do not explain how the statements in
the e-mail are outside the personal knowledge of any declarant, and in any case such an objection
goes to the weight of the evidence, not its admissibility. Finally, as to relevance, the e-mail and
the statements therein are relevant to the District’s performance regarding the issue of collecting
and reporting data relating to its Child Find policies and practices.
D. Exhibit 230
Defendants’ object to the admission of plaintiffs’ exhibit 230 on the basis of relevance.
Id. Defendants’ objection is overruled. This e-mail chain was, again, produced post-trial but 3 was in the possession of defendants for well over a year, so all objections are deemed waived.
However, the Court would admit the evidence anyway over defendants’ objection because it is
relevant to show that defendants, in 2010, had not developed clear policies and procedures for
collecting and reporting reliable data, despite recent reforms.
E. Exhibit 231
Defendants object to the admission of plaintiffs’ exhibit 231 on the basis of hearsay and
completeness. Id. Defendants’ objection is overruled. This e-mail was produced post-trial but
was in the possession of defendants for well over a year, so all objections are deemed waived.
Nevertheless, the Court would have overruled defendants’ objections. The e-mail is admissible
hearsay under the exception for “records of regularly conducted activity” of Rule 803(6) of the
Federal Rules of Evidence. As to “completeness,” this is not a proper basis for excluding the
evidence, as it goes to the evidence’s weight, not its admissibility. Defendants also provide no
basis for concluding that the e-mail or statements therein are incomplete.
F. Exhibit 232
Defendants object to the admission of plaintiffs’ exhibit 232 on the basis of relevance and
hearsay. Id. Defendants’ objection is overruled. This e-mail chain was, again, produced post-
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________ ) DL, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 05-1437 (RCL) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ________________________________________ )
MEMORANDUM AND ORDER
Before the Court is plaintiffs’ Motion [255] for Leave to Re-Open the Record and to
Admit Additional Exhibits. Having carefully considered the motion, defendants’ objections,
plaintiffs’ reply, the entire record in this case, and the applicable law, the Court will grant in part
and deny in part plaintiffs’ Motion for Leave to Re-Open the Record. Specifically, the Court
will admit exhibits nos. 227–238 and 240 into evidence. Defendants’ objections to plaintiffs’
exhibits nos. 239 and 241 are sustained and that evidence will be excluded.
I. BACKGROUND
As is fully explained in a prior opinion of this Court, DL v. District of Columbia, 274
F.R.D. 320, 321–23 (D.D.C. 2011), during (and after) discovery, defendants had quite a bit of
trouble responding to plaintiffs’ discovery requests in a timely manner, and were producing
thousands of responsive e-mails both immediately prior to the April 6–7, 2011 trial and
following the trial itself. The production of documents post-trial was a new one for this Court,
and needless to say it put plaintiffs and the Court in a terrifically awkward position when it came
time to determine the merits of the case at the April 2011 trial. On the first day of trial, the Court
granted plaintiffs’ oral motion to compel defendants to produce at last the remaining responsive
documents within a week following the trial. DL, 274 F.R.D. at 322. To expedite production of these documents, the Court also held that the District had waived all privileges and objections
with respect to the yet-to-be-produced e-mails. Id.; see also Order [232] 1, Apr. 7, 2011. After
ordering defendants to produce responsive e-mails to plaintiffs’ counsel on or before April 14,
2011, the Court invited plaintiffs to move to re-open the record to admit these e-mails. Order
[232] 1.
Plaintiffs have accordingly moved to re-open the record and admit exhibits numbers 227–
241. Pls.’ Mot. Leave [255] 2–5, Jun. 3, 2011. On June 6, 2011, defendants filed their
Objections [257] to Plaintiffs’ Exhibits Submitted After Trial, challenging the admissibility of
most of these e-mails. Defs.’ Objections [257] 1–2, Jun. 6, 2011. Plaintiffs relied upon nearly
all of the e-mails attached to their Motion [255] for Leave in their Proposed Post-Trial Findings
of Fact and Conclusions of Law [256], Jun. 3, 2011, which was filed the same day. However,
defendants, after plaintiffs filed their Motion [255] for Leave, never sought leave themselves to
challenge plaintiffs’ new evidence with contrary evidence. On the assumption that this failure to
seek leave on the part of defendants was a mere oversight, and in the interests of justice, the
Court will give defendants an opportunity to seek leave to re-open the record and to admit any
contrary evidence they may have in their possession.
II. PLAINTIFFS’ PROPOSED EXHIBITS NOS. 227–241
A. Exhibit 227
Defendants did not object to plaintiffs’ exhibit 227 and it shall be admitted into evidence.
B. Exhibit 228
Defendants object to the admission of plaintiffs’ exhibit 228 on the basis of relevance,
vagueness, and hearsay. Defs.’ Objections [257] 1. Defendants’ objection is overruled. As an
initial matter, this e-mail was produced post-trial yet was in defendants’ possession for nearly a
year. Therefore, per the Court’s April 2011 Order [232], all objections are deemed waived. 2 However, this exhibit would be admissible in any case. The statements contained in this e-mail
chain are relevant to the issue of whether plaintiffs are entitled to injunctive relief because they
indicate that the District’s Child Find policies and procedures were related to this litigation.
Defendants’ vagueness challenge is overruled because it goes to the weight of the evidence, not
its admissibility. As to hearsay, the email chain and the included statements are admissible
hearsay under the exception for “records of regularly conducted activity” of Rule 803(6) of the
Federal Rules of Evidence.
C. Exhibit 229
Defendants object to the admission of plaintiffs’ exhibit 229 on the basis of hearsay,
speculation, personal knowledge, and relevance. Id. Defendants’ objection is overruled. As
with the preceding exhibit, this e-mail was produced post-trial yet was in defendants’ possession
for nearly a year. Per the Court’s Order [232], all objections are deemed waived. Even without
the effect of that Order, however, the exhibit is admissible. As to hearsay, the e-mail chain and
statements therein are admissible hearsay under the exception for “records of regularly
conducted activity” of Rule 803(6) of the Federal Rules of Evidence. As to speculation, that
objection is overruled as it goes to the weight of the evidence, not its admissibility. As to
defendants’ “personal knowledge” objection, defendants do not explain how the statements in
the e-mail are outside the personal knowledge of any declarant, and in any case such an objection
goes to the weight of the evidence, not its admissibility. Finally, as to relevance, the e-mail and
the statements therein are relevant to the District’s performance regarding the issue of collecting
and reporting data relating to its Child Find policies and practices.
D. Exhibit 230
Defendants’ object to the admission of plaintiffs’ exhibit 230 on the basis of relevance.
Id. Defendants’ objection is overruled. This e-mail chain was, again, produced post-trial but 3 was in the possession of defendants for well over a year, so all objections are deemed waived.
However, the Court would admit the evidence anyway over defendants’ objection because it is
relevant to show that defendants, in 2010, had not developed clear policies and procedures for
collecting and reporting reliable data, despite recent reforms.
E. Exhibit 231
Defendants object to the admission of plaintiffs’ exhibit 231 on the basis of hearsay and
completeness. Id. Defendants’ objection is overruled. This e-mail was produced post-trial but
was in the possession of defendants for well over a year, so all objections are deemed waived.
Nevertheless, the Court would have overruled defendants’ objections. The e-mail is admissible
hearsay under the exception for “records of regularly conducted activity” of Rule 803(6) of the
Federal Rules of Evidence. As to “completeness,” this is not a proper basis for excluding the
evidence, as it goes to the evidence’s weight, not its admissibility. Defendants also provide no
basis for concluding that the e-mail or statements therein are incomplete.
F. Exhibit 232
Defendants object to the admission of plaintiffs’ exhibit 232 on the basis of relevance and
hearsay. Id. Defendants’ objection is overruled. This e-mail chain was, again, produced post-
trial but was in the possession of defendants for well over a year, so all objections and privileges
are deemed waived. In any case, the statements contained in this e-mail are relevant to the issue
of the opinion of defendants’ expert regarding the District of Columbia’s past and present special
education policies and practices. These statements also show that defendants themselves
believed that their own expert’s opinion would be damaging to their case and would show that
defendants had violated their Child Find-related obligations under federal and local law. The
email and the included statements are also admissible hearsay under the exception for “records of
regularly conducted activity” of Rule 803(6) of the Federal Rules of Evidence. 4 G. Exhibit 233
Defendants object to the admission of plaintiffs’ exhibit 233 on the basis of personal
knowledge, relevance, and speculation. Id. Defendants’ objection is overruled. Whether the
statements contained in this e-mail were made upon personal knowledge goes to the weight of
the evidence, not its admissibility, and in any case defendants provide no argument indicating
that the statement is outside of Jerri Johnston-Stewart’s (OSSE’s Early Intervention Program
Manager at the time) personal knowledge. As to relevance, the statements in the e-mail are
relevant to the issue of whether the reforms to the Early Stages Center and its policies and
practices were adequate, and how Part C families were affected in transitioning out of early
intervention services. Finally, defendants’ objection on the basis of speculation is overruled as it
goes to the weight, and not the admissibility, of the evidence.
H. Exhibit 234
Defendants object to the admission of plaintiffs’ exhibit 234 on the basis of relevance.
Id. Defendants’ objection is overruled. The statements contained in this exhibit are relevant to
the issue of whether injunctive relief should issue because they suggest that reforms of the
District’s Child Find policies and procedures have occurred because of this lawsuit.
I. Exhibit 235
Defendants object to the admission of plaintiffs’ exhibit 235 on the basis of relevance,
hearsay, and personal knowledge. Id. at 2. Defendants’ objection is overruled. As to relevance,
the statements in the e-mail are relevant to the issue of how defendants’ policies and procedures
were performing in November 2009. As to defendants’ hearsay objection, the email and the
included statements are admissible hearsay under the exception for “records of regularly
conducted activity” of Rule 803(6) of the Federal Rules of Evidence. Finally, defendants’
personal knowledge objection is overruled, as that objection goes to the weight of the evidence 5 and not its admissibility, and defendants provide no arguments suggesting that the statements of
Amy Maisterra, Chief of Staff of OSSE at the time, were made on the basis of information
outside of her personal knowledge.
J. Exhibit 236
Defendants object to the admission of plaintiffs’ exhibit 236 on the basis of relevance,
lack of foundation, and vagueness. Id. Defendants’ objection is overruled. The statements in
this document are relevant to show that defendants were aware of their failure to collect and
report reliable data of their Child Find-related policies to the U.S. Department of Education. As
to defendants’ foundation objection, the Court finds that sufficient foundation has been laid for
this evidence to be admitted. Finally, defendants’ vagueness objection is overruled because that
objection goes to the weight of the evidence, not its admissibility.
K. Exhibit 237
Defendants did not object to plaintiffs’ exhibit 237 and it shall be admitted into evidence.
L. Exhibit 238
Defendants did not object to plaintiffs’ exhibit 238 and it shall be admitted into evidence.
M. Exhibit 239
Defendants object to the admission of plaintiffs’ exhibit 239 on the basis of hearsay.
Defendants’ objection is sustained and the Court shall exclude this evidence. The exhibit, a
Washington Post newspaper article, is hearsay, and no exception to the hearsay rule permits its
admission into evidence, as plaintiffs appear to acknowledge. Pls.’ Reply [262] 11.
N. Exhibit 240
Defendants object to the admission of plaintiffs’ exhibit 240 on the basis of relevance,
hearsay, vagueness, and lack of foundation. Defs.’ Objections [257] 2. Defendants’ objection is
overruled. The e-mail is relevant to the issue of whether turnover at the District of Columbia 6 Public Schools could have an adverse impact on defendants’ future ability to live up to their
statutory obligations. As to defendants’ hearsay objection, the email and the included statements
are admissible hearsay under the exception for “records of regularly conducted activity” of Rule
803(6) of the Federal Rules of Evidence. Defendants’ vagueness objection is overruled as that
objection goes to the weight of the evidence, not its admissibility. Finally, the Court finds that
sufficient foundation has been laid for the admission of this evidence.
O. Exhibit 241
Defendants object to the admission of plaintiffs’ exhibit 241 on hearsay grounds and
because the affiant was not on the witness list. Id. Defendants’ objection will be sustained as the
affidavit is hearsay that is not covered by any exception in the Federal Rules of Evidence.
III. CONCLUSION
Accordingly, it is hereby
ORDERED that plaintiffs’ Motion [255] for Leave to Re-Open the Record and to Admit
Additional Exhibits is GRANTED IN PART AND DENIED IN PART. Specifically, plaintiffs’
motion is granted as to exhibits 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, and
240, but denied as to exibits 239 and 241. And it is further
ORDERED that defendants may, within ten (10) days of this Memorandum and Order,
file a motion for leave to re-open the record to admit contrary evidence. Any evidence that
defendants offer at this stage must be limited to evidence that specifically challenges the factual
and other statements contained within the exhibits of plaintiffs that have been admitted into
evidence above.
SO ORDERED.
Signed by Royce C. Lamberth, Chief Judge, on October 25, 2011.