1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 D.L. By and Through his Guardians Ad Case No.: 19-CV-0780-GPC-RBB Litem MELISSA LAZARO and OSCAR 12 LAZARO, GRANTING IN PART AND 13 DENYING IN PART PLAINTIFF’S Plaintiff, MOTIONS TO SUPPLEMENT THE 14 v. RECORD AND SEAL THE 15 SUPPLEMENT. POWAY UNIFIED SCHOOL
16 DISTRICT, ECF Nos. 26, 28. 17 Defendant. 18 19 On November 5, 2019, Plaintiff D.L. (a minor), by and through his guardians at 20 litem, Melissa and Oscar Lazaro, filed motions seeking to supplement the administrative 21 record and seal that supplement. ECF Nos. 26, 28. Specifically, Plaintiff asks that three 22 distinct documents be added to the record and then sealed: (1) the classroom observation 23 notes of Defendant’s proposed placement by Kelli Sandman-Hurley dated June 10, 2019, 24 (ECF No. 27-2); (2) Plaintiff’s progress reports and work samples from his current 25 school, Newbridge, (ECF No. 27); (3) a transcript of Plaintiff’s Individualized Education 26 Program (“IEP”) Program Meeting on September 8, 2017. (ECF No. 27-1.) 27 1 Having reviewed Plaintiff’s requests, the exhibits, and the applicable law, the 2 Court GRANTS, in part, and DENIES, in part, Plaintiff’s requests. 3 I. Applicable Standards 4 a. Motions to Supplement the Record 5 Congress created the Individuals with Disabilities Education Act (“IDEA”) to meet 6 the unique needs of disabled children by making available a free and appropriate public 7 education. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 8 181 (1982). The IDEA contains various procedural safeguards to assure that schools meet 9 these unique needs. Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993). 10 For example, parents may file a complaint with the school district regarding the services 11 provided under their child’s IEP and may pursue an administrative hearing if the 12 complaint is unresolved. Id. Parents may contest the results of that hearing through a civil 13 action in state or federal court. Rowley, 458 U.S. at 176. 14 In an action brought under 20 U.S.C. § 1415(i)(2)(A), the Court “shall hear 15 additional evidence at the request of a party.” The Ninth Circuit has defined permissible, 16 “additional evidence” to include “gaps in the administrative transcript owing to 17 mechanical failure, unavailability of a witness, an improper exclusion of evidence by the 18 administrative agency, and evidence concerning relevant events occurring subsequent to 19 the administrative hearing.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th 20 Cir. 1993). In particular, the Ninth Circuit has opined that evidence acquired after a 21 hearing “may shed light” on the reasonableness of a school district’s prior decisions. 22 Adam v. Oregon,195 F.3d 1141, 1149 (9th Cir.1999). 23 Nonetheless, a “court need not consider evidence that simply repeats or 24 embellishes evidence taken at the administrative hearing, nor should it admit evidence 25 that changes ‘the character of the hearing from one of review to a trial de novo.’” E.M. ex 26 rel. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 652 F.3d 999, 27 1004–05 (9th Cir. 2011) (quoting Ojai, 4 F.3d at 1473). In sum, “evidence that is non- 1 cumulative, relevant, and otherwise admissible constitutes ‘additional evidence’ that the 2 district court ‘shall’ consider pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii).” Id. 3 b. Motions to Seal 4 There is a presumptive right of public access to court records. See Nixon v. Warner 5 Comm., Inc., 435 U.S. 589, 597 (1978). That right is “based on the need for federal 6 courts, although independent—indeed, particularly because they are independent—to 7 have a measure of accountability and for the public to have confidence in the 8 administration of justice.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 9 1096 (9th Cir. 2016) (quotations omitted). 10 Parties seeking to seal documents in a dispositive motion must thus meet the high 11 threshold requiring “compelling reasons” with specific factual findings to support a 12 sealing. Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178–80 (9th Cir. 13 2006) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 14 2003)). The “compelling reasons” test requires showing more than just “good cause.” Id. 15 This standard applies even if the motion or its attachments were previously filed under 16 seal or protective order. Id. at 1179. 17 The Ninth Circuit has “carved out an exception” to the compelling reasons 18 standard for documents produced in discovery and documents not attached to a 19 dispositive motion. Foltz, 331 F.3d at 1135 (citing Phillips ex rel. Estates of Byrd v. 20 General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)). To seal such documents, 21 the moving party need only provide “good cause” to show, San Jose Mercury News, Inc. 22 v. U.S. Dist. Court–N. Dist. (San Jose), 187 F.3d 1096, 1102 (9th Cir. 1999), that 23 “specific prejudice or harm will result.” Phillips, 307 F.3d at 1210–11 (citation omitted). 24 “If a court finds particularized harm will result from disclosure of information to the 25 public, then it balances the public and private interests to decide whether a protective 26 order is necessary.” Id. (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d 27 Cir. 1995)). 1 Importantly, however, the Ninth Circuit has interpreted the terms “dispositive” and 2 “non-dispositive” loosely when determining which standard to apply. Ctr. for Auto 3 Safety, 809 F.3d at 1098 (“To only apply the compelling reasons test to the narrow 4 category of dispositive motions goes against the long held interest in ensuring the public's 5 understanding of the judicial process and of significant public events.”) (quotations 6 omitted). Hence, where the sealed material “is more than tangentially related to the 7 underlying cause of action,” the “compelling reasons” standard applies. Id. at 1099. 8 II. Analysis 9 a. Ms. Sandman-Hurley’s Classroom Observation Notes. 10 In his first request, Plaintiff asks that the Court add and seal the observation notes 11 of Defendant’s proposed placement by Kelli Sandman-Hurley dated June 10, 2019. (ECF 12 No. 28-1 at 5–6.) Ms. Sandman-Hurley is a “dyslexia expert,” and took these classroom 13 observation notes during her visit to a “6th grade resource specialist class at Defendant’s 14 site, Meadow Brook Middle School.” (Id. at 4.) Plaintiff states that the content of this 15 observation is pertinent to whether the proposed placement provides a Free and 16 Appropriate Public Education (“FAPE”) under 20 U.S.C. §1412(a)(1). (Id. at 6.) Plaintiff 17 further contends that the observation is not cumulative because it was obtained “four 18 months after the administrative decision had been rendered” and is admissible.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 D.L. By and Through his Guardians Ad Case No.: 19-CV-0780-GPC-RBB Litem MELISSA LAZARO and OSCAR 12 LAZARO, GRANTING IN PART AND 13 DENYING IN PART PLAINTIFF’S Plaintiff, MOTIONS TO SUPPLEMENT THE 14 v. RECORD AND SEAL THE 15 SUPPLEMENT. POWAY UNIFIED SCHOOL
16 DISTRICT, ECF Nos. 26, 28. 17 Defendant. 18 19 On November 5, 2019, Plaintiff D.L. (a minor), by and through his guardians at 20 litem, Melissa and Oscar Lazaro, filed motions seeking to supplement the administrative 21 record and seal that supplement. ECF Nos. 26, 28. Specifically, Plaintiff asks that three 22 distinct documents be added to the record and then sealed: (1) the classroom observation 23 notes of Defendant’s proposed placement by Kelli Sandman-Hurley dated June 10, 2019, 24 (ECF No. 27-2); (2) Plaintiff’s progress reports and work samples from his current 25 school, Newbridge, (ECF No. 27); (3) a transcript of Plaintiff’s Individualized Education 26 Program (“IEP”) Program Meeting on September 8, 2017. (ECF No. 27-1.) 27 1 Having reviewed Plaintiff’s requests, the exhibits, and the applicable law, the 2 Court GRANTS, in part, and DENIES, in part, Plaintiff’s requests. 3 I. Applicable Standards 4 a. Motions to Supplement the Record 5 Congress created the Individuals with Disabilities Education Act (“IDEA”) to meet 6 the unique needs of disabled children by making available a free and appropriate public 7 education. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 8 181 (1982). The IDEA contains various procedural safeguards to assure that schools meet 9 these unique needs. Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993). 10 For example, parents may file a complaint with the school district regarding the services 11 provided under their child’s IEP and may pursue an administrative hearing if the 12 complaint is unresolved. Id. Parents may contest the results of that hearing through a civil 13 action in state or federal court. Rowley, 458 U.S. at 176. 14 In an action brought under 20 U.S.C. § 1415(i)(2)(A), the Court “shall hear 15 additional evidence at the request of a party.” The Ninth Circuit has defined permissible, 16 “additional evidence” to include “gaps in the administrative transcript owing to 17 mechanical failure, unavailability of a witness, an improper exclusion of evidence by the 18 administrative agency, and evidence concerning relevant events occurring subsequent to 19 the administrative hearing.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th 20 Cir. 1993). In particular, the Ninth Circuit has opined that evidence acquired after a 21 hearing “may shed light” on the reasonableness of a school district’s prior decisions. 22 Adam v. Oregon,195 F.3d 1141, 1149 (9th Cir.1999). 23 Nonetheless, a “court need not consider evidence that simply repeats or 24 embellishes evidence taken at the administrative hearing, nor should it admit evidence 25 that changes ‘the character of the hearing from one of review to a trial de novo.’” E.M. ex 26 rel. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 652 F.3d 999, 27 1004–05 (9th Cir. 2011) (quoting Ojai, 4 F.3d at 1473). In sum, “evidence that is non- 1 cumulative, relevant, and otherwise admissible constitutes ‘additional evidence’ that the 2 district court ‘shall’ consider pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii).” Id. 3 b. Motions to Seal 4 There is a presumptive right of public access to court records. See Nixon v. Warner 5 Comm., Inc., 435 U.S. 589, 597 (1978). That right is “based on the need for federal 6 courts, although independent—indeed, particularly because they are independent—to 7 have a measure of accountability and for the public to have confidence in the 8 administration of justice.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 9 1096 (9th Cir. 2016) (quotations omitted). 10 Parties seeking to seal documents in a dispositive motion must thus meet the high 11 threshold requiring “compelling reasons” with specific factual findings to support a 12 sealing. Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178–80 (9th Cir. 13 2006) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 14 2003)). The “compelling reasons” test requires showing more than just “good cause.” Id. 15 This standard applies even if the motion or its attachments were previously filed under 16 seal or protective order. Id. at 1179. 17 The Ninth Circuit has “carved out an exception” to the compelling reasons 18 standard for documents produced in discovery and documents not attached to a 19 dispositive motion. Foltz, 331 F.3d at 1135 (citing Phillips ex rel. Estates of Byrd v. 20 General Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)). To seal such documents, 21 the moving party need only provide “good cause” to show, San Jose Mercury News, Inc. 22 v. U.S. Dist. Court–N. Dist. (San Jose), 187 F.3d 1096, 1102 (9th Cir. 1999), that 23 “specific prejudice or harm will result.” Phillips, 307 F.3d at 1210–11 (citation omitted). 24 “If a court finds particularized harm will result from disclosure of information to the 25 public, then it balances the public and private interests to decide whether a protective 26 order is necessary.” Id. (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d 27 Cir. 1995)). 1 Importantly, however, the Ninth Circuit has interpreted the terms “dispositive” and 2 “non-dispositive” loosely when determining which standard to apply. Ctr. for Auto 3 Safety, 809 F.3d at 1098 (“To only apply the compelling reasons test to the narrow 4 category of dispositive motions goes against the long held interest in ensuring the public's 5 understanding of the judicial process and of significant public events.”) (quotations 6 omitted). Hence, where the sealed material “is more than tangentially related to the 7 underlying cause of action,” the “compelling reasons” standard applies. Id. at 1099. 8 II. Analysis 9 a. Ms. Sandman-Hurley’s Classroom Observation Notes. 10 In his first request, Plaintiff asks that the Court add and seal the observation notes 11 of Defendant’s proposed placement by Kelli Sandman-Hurley dated June 10, 2019. (ECF 12 No. 28-1 at 5–6.) Ms. Sandman-Hurley is a “dyslexia expert,” and took these classroom 13 observation notes during her visit to a “6th grade resource specialist class at Defendant’s 14 site, Meadow Brook Middle School.” (Id. at 4.) Plaintiff states that the content of this 15 observation is pertinent to whether the proposed placement provides a Free and 16 Appropriate Public Education (“FAPE”) under 20 U.S.C. §1412(a)(1). (Id. at 6.) Plaintiff 17 further contends that the observation is not cumulative because it was obtained “four 18 months after the administrative decision had been rendered” and is admissible. (Id.) 19 Here, though the evidence only pertains to a one-time observation of a single 20 classroom, Ms. Sandman-Hurley’s notes nonetheless provide some insight into the 21 classroom environment at Plaintiff’s proposed placement. Consequently, they are 22 relevant in that they “may be helpful to understanding the school district’s earlier 23 actions.” See M.M. v. Lafayette Sch. Dist., No. C-10-04223-SI, 2011 WL 5190033, at *4 24 (N.D. Cal. Oct. 31, 2011) (admitting after-acquired psychologist’s reading assessment of 25 plaintiff). Ms. Sandmen-Hurley’s one-page set of notes, moreover, is not so broad in 26 scope as to risk “turn[ing] this proceeding to a de novo review and undercut[ing] the 27 administrative process designed to address the specific issues raised by plaintiff.” W.H. 1 ex rel. B.H. v. Clovis Unified Sch. Dist., No. CV-F-08-0374-LJO, 2008 WL 5069711, at 2 *6 (E.D. Cal. Nov. 25, 2008) (denying an after-acquired declaration that offered expert- 3 opinion on “several issues,” including “on the ultimate issue before the ALJ,” and was 4 likely to “open the door to additional documents”). 5 However, contrary to Plaintiff’s cursory motion to seal, this document does not 6 “necessarily include” private information about the Plaintiff – not “the use of his name,” 7 “the specific details of his education program,” or any facts as to his schooling. (ECF No. 8 26-1 at 3.) The document also does not personally identify anyone, including the teacher 9 or other students described in the document. Consequently, because the Public enjoys a 10 presumptive right to access court materials, the Court denies Plaintiff’s request to seal 11 this information. Kamakana, 447 at 1178 (quoting Nixon, 435 U.S. at 597 & n.7). . 12 b. The Progress Reports and Work Samples from Newbridge. 13 In his second request, Plaintiff asks that the Court to add and seal approximately 14 100 pages of “progress reports and works samples from Newbridge.” (ECF No. 28-1 at 15 6–7). Plaintiff asserts that these documents demonstrate Plaintiff’s success at his current 16 school, and thus serve to show that “Defendant’s program did not provide D.L. with 17 FAPE.” (Id. at 8.) Again, Plaintiff also asserts that these documents are not cumulative in 18 that they were obtained after Plaintiff’s hearing took place in December 2018. (Id. at 8.) 19 Here, the Court agrees with Plaintiff and finds that the “progress reports and work 20 samples” may supplement the record. In Capistrano Unified Sch. Dist. v. Wartenberg by 21 & Through Wartenberg, the Ninth Circuit relied, in part, on plaintiff’s performance 22 records at his private school to conclude that a “review of the record indicates that the 23 district judge and the hearing officer were correct in finding that the Mardan Center 24 provided an ‘appropriate’ educational setting for [plaintiff].” 59 F.3d 884, 896 (9th Cir. 25 1995). Those records were admitted after the hearing by the district court. Id. at 890 26 (noting that the “district judge . . . considered additional evidence [including plaintiff’s] 27 performance at Mardan subsequent to the hearing officer’s decision”). Thus, as in 1 Capistrano, admitting this evidence is appropriate because it is not cumulative and is 2 relevant to the Court’s determination of whether Newbridge is an appropriate placement. 3 This evidence, moreover, mirrors that sealed by the Court in its prior order dated 4 November 1, 2019. (ECF No. 24 at 3–4.) As there, these materials repeatedly reference 5 Plaintiff by his full name, and include his work samples, grades, and performance 6 assessments. Consequently, the Court finds the need to protect Plaintiff’s privacy as a 7 juvenile is a sufficiently compelling reason and orders that the “progress reports and 8 works samples from Newbridge” be sealed. See E.M. v. Poway Unified Sch. Dist., No. 9 19-cv-00689-JM-MSB, at *2 (S.D. Cal. July 29, 2019). 10 c. The Transcript of Plaintiff’s September 8, 2017 IEP Meeting. 11 Lastly, Plaintiff requests that the Court admit a transcript of an IEP meeting dated 12 September 8, 2017. (ECF No. 28-1 at 10–12.) Plaintiff contends that the hearing 13 transcript is “difficult, if not impossible to decipher” because certain portions of the 14 transcript are “indiscernible” due to a mechanical error. (Id. at 11 (citing Administrative 15 Record (“AR”) at 1557.)) Plaintiff further contends that the transcript is relevant in that it 16 discusses the IEP Team’s “involvement of the instructional aid in [Plaintiff’s] education,” 17 and is not cumulative in that neither the transcript itself, nor a clear transcription of the 18 ALJ’s discussion as to the transcript, are in the record. (Id. at 11–12.) 19 Here, the Court notes that, unlike Plaintiff’s other two requests, this transcript was 20 the source of some contention below. (AR 1557–58.) Defendant objected to the transcript 21 at the hearing and the ALJ declined to admit it into the record. (Id.) Now, Plaintiff asks 22 that the Court admit the transcript on the basis that the original arguments between the 23 parties cannot be accurately deduced given the state of the record. As the Court does not 24 have the benefit of Defendant’s briefing on this potentially contentious request, the Court 25 will not now admit the transcript based solely on Plaintiff’s papers. Plaintiff may re-file 26 this request with a hearing date as required under the local rules for any adverse 27 1 || appearances,! and the Court will rule on it after hearing full briefing. As such, Plaintiff’ □ 2 request to seal the transcript is also denied as moot. 3 ||. Conclusion 4 In light of the foregoing reasons, the Court GRANTS, in part, and DENIES, in 5 || part, Plaintiff's motions. ECF Nos. 26, 28. The Court ORDERS the following: 6 1. The Court GRANTS Plaintiffs request to supplement the record with Ms. 7 Sandman-Hurley’s classroom observation notes and DENIES Plaintiff’ s 8 request to seal the notes. ECF No. 27-2. 9 2. The Court GRANTS Plaintiffs request to supplement the record with, and to 10 seal, the progress reports and work samples from Newbridge. ECF No. 27. 11 3. The Court DENIES without prejudice Plaintiffs requests to supplement the 12 record with, and to seal, the transcript of Plaintiff's IEP program meeting on 13 September 8, 2017. ECF No. 27-1. 14 IT IS SO ORDERED. 15 Dated: November 22, 2019 <= 16 Hon. Gonzalo P. Curiel 17 United States District Judge 18 19 20 21 22 ||! Pursuant to Local Rule 7.1, a Plaintiff cannot file a motion that must be briefed by both parties without 03 first obtaining a hearing date. CivLR 7.1.e.1. Local Rules have the force of law, and a Court may deny a motion for failing to comply with them. Prof’! Programs Grp. v. Dep’t of Commerce, 29 F.3d 1349, 94 || 1353 (9th Cir. 1994). Hence, as a precaution, the Court requires that parties always call chambers before filing any motion to ensure compliance with this rule. In the event that a hearing is not necessary, the 25 || Court will instruct the party accordingly at that time. The Court exercises its discretion in not applying this rule to Plaintiff's first and second requests given the nature of those documents and the caselaw 26 relevant to their inclusion in the record. See Lance, Inc. v. Dewco Servs., Inc., 422 F.2d 778, 784 (9th 7 Cir. 1970) (“Local Rules are promulgated by District Courts primarily to promote the efficiency of the Court, and that the Court has a large measure of discretion in interpreting and applying them.”’). 28