1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 P.G., Case No. 21-cv-01529-EMC(LB)
12 Plaintiff, DISCOVERY ORDER 13 v. Re: ECF Nos. 33 and 36 14 ALAMEDA UNIFIED SCHOOL DISTRICT, 15 Defendant. 16 17 INTRODUCTION 18 In this action, the plaintiff is contesting an administrative ruling approving the defendant’s 19 (Alameda Unified School District) decision under the Individuals with Disabilities Education Act 20 (IDEA) to deny the plaintiff an independent educational evaluation (IEE) with her preferred 21 psychologist.1 The parties’ current discovery dispute concerns whether the plaintiff is entitled to 22 conduct additional discovery and potentially admit new evidence challenging the administrative 23 ruling.2 The district judge referred all discovery matters to a magistrate judge.3 This order 24 25
26 1 Compl. – ECF No. 1 at 5–11 (¶¶ 15–35). Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 27 2 Disc. Ltr. – ECF No. 33; Disc. Ltr. – ECF No. 36. 1 addresses only the discoverability of the new evidence because the ultimate admissibility of the 2 material relates to the merits of the dispute. 3 The court allows discovery into (1) the district’s settlements with other state-licensed clinical 4 psychologists and (2) testimony from Dr. Ann Simun, a school psychologist who is also a state- 5 licensed clinical psychologist, because this material is relevant and non-cumulative. The court 6 denies the plaintiff’s request to conduct discovery into post-hearing policy changes adopted by 7 other localities because that information is not relevant to the review of the administrative 8 decision. The court takes no position on the parties’ statements concerning whether investigation 9 reports and decisions issued by the California Office of Administrative Hearings may be judicially 10 noticed. 11 12 STATEMENT 13 The elementary-school-aged plaintiff has attention-deficit hyperactivity disorder (ADHD) and 14 autism.4 The plaintiff’s parents sought special-education services, the district denied the request, 15 and the parents asked for an independent-educational evaluation (IEE).5 The district declined to 16 permit Dr. Carina Grandison — the parents’ preferred psychologist — to conduct the IEE under 17 the district’s policies, which were established by the Special Education Local Plan Area.6 The 18 district initiated a due-process complaint under IDEA to have its decision affirmed by an 19 administrative law judge at the California Office of Administrative Hearings.7 The administrative 20 law judge affirmed the district’s decision.8 The plaintiff is contesting this administrative decision.9 21 To support the challenge to the administrative law judge’s decision, the plaintiff asks the court 22 for permission to conduct discovery regarding the following: (1) “District settlement[s] or other 23
24 4 Compl. – ECF No. 1 at 5 (¶ 16). 25 5 Id. at 5–6 (¶¶ 17–19). 26 6 Id. at 6 (¶¶ 20–21). 7 Id. at 8 (¶ 28). 27 8 Id. at 10–11 (¶ 35). 1 agreements with state licensed clinical psychologists from December 14, 2017 through the 2 present”; (2) “Supplementary evidence [presumably testimony] from Dr. Ann Simun a school 3 psychologist who is also a state licensed clinical psychologist, a) regarding statements made at 4 [the] hearing by District witnesses that a clinical psychologist lacks training and experience to 5 conduct psycho-educational evaluations, and b) explaining training required of school 6 psychologists, and c) what psychology activities school psychologists may and may not 7 undertake”; and (3) “SELPA [Special Education Local Plan Area] policies that have changed to 8 adapt to the novel position taken by OAH [California Office of Administrative Hearings] in the 9 decision in this case.”10 The plaintiff also contemplates seeking judicial notice of investigation 10 reports and decisions issued by the California Office of Administrative Hearings as supplemented 11 by declarations from the parties involved in those matters.11 12 The district contends that (1) the settlement agreements with other psychologists are irrelevant, 13 (2) the testimony from Dr. Ann Simun would be irrelevant and cumulative, and (3) the Special 14 Education Local Plan Area policies are irrelevant and “beyond the scope” of this action.12 The 15 district reserves the right to object to any use of investigation reports and decisions issued by the 16 California Office of Administrative Hearings on grounds that the material would be irrelevant.13 17 18 ANALYSIS 19 The IDEA mandates that, on review of an administrative decision, the district court “shall hear 20 additional evidence at the request of a party.” 20 U.S.C. § 1415(i)(2)(C)(ii). But not all evidence is 21 “additional evidence.” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Off. of Admin. 22 Hearings, 652 F.3d 999, 1004 (9th Cir. 2011). “[A] district court need not consider evidence that 23 simply repeats or embellishes evidence taken at the administrative hearing, nor should it admit 24 evidence that changes the character of the hearing from one of review to a trial de novo.” Id. 25 26 10 Disc. Ltr. – ECF No. 33 at 2–3; Disc. Ltr. – ECF No. 36 at 2–5. 11 Disc. Ltr. – ECF No. 36 at 5. 27 12 Disc. Ltr. – ECF No. 33 at 2–4; Disc. Ltr. – ECF No. 36 at 2–5. 1 (cleaned up). In short, “evidence that is non-cumulative, relevant, and otherwise admissible 2 constitutes ‘additional evidence’ that the district court ‘shall’ consider pursuant to 20 U.S.C. § 3 1415(i)(2)(C)(ii).” Id. at 1005. 4 The purpose for admitting additional evidence is to ensure that “federal courts enforce the 5 minimum federal standards IDEA sets out.” Id. For example, courts have allowed parties to admit 6 into evidence psychological reports obtained after the school district’s challenged decision where 7 the reports “may be helpful to understanding the school district's earlier actions.” M.M. v. 8 Lafayette Sch. Dist., No. C 10-04223 SI, 2011 WL 5190033, at *4 (N.D. Cal. Oct. 31, 2011). 9 10 1. District Settlements 11 The plaintiff’s complaint is based on the defendant’s refusal to allow the plaintiff’s parents to 12 use their preferred psychologist, Dr. Carina Grandison, a state-licensed clinical psychologist and 13 neuro-psychologist, to conduct the IEE.14 Specifically, the plaintiff contends that the 14 administrative law judge erred when he found that the district “properly denied parents’ request 15 for evaluation by Dr. Grandison, a licensed clinical psychologist.”15 16 The district’s settlements with other state-licensed clinical psychologists are relevant to this 17 dispute. For instance, if the district allowed other similarly credentialled state-licensed clinical 18 psychologists to conduct IEEs under similar circumstances that could potentially support the 19 plaintiff’s allegations against the district. Specifically, the settlements may support the plaintiff’s 20 challenge to the districts finding that she had not demonstrated unique circumstances justifying a 21 departure from the usual criteria.16 Therefore, the court permits discovery into this category (i.e., 22 agreements with state-licensed clinical psychologists from December 14, 2017 through the present). 23 24 25 26 14 Compl. – ECF No. 1 at 5–11 (¶¶ 15–35). 27 15 Id. at 10 (¶ 35). 1 2. Supplementary Evidence from Dr. Ann Simun 2 The plaintiff seeks to conduct discovery and obtain testimony from Dr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 P.G., Case No. 21-cv-01529-EMC(LB)
12 Plaintiff, DISCOVERY ORDER 13 v. Re: ECF Nos. 33 and 36 14 ALAMEDA UNIFIED SCHOOL DISTRICT, 15 Defendant. 16 17 INTRODUCTION 18 In this action, the plaintiff is contesting an administrative ruling approving the defendant’s 19 (Alameda Unified School District) decision under the Individuals with Disabilities Education Act 20 (IDEA) to deny the plaintiff an independent educational evaluation (IEE) with her preferred 21 psychologist.1 The parties’ current discovery dispute concerns whether the plaintiff is entitled to 22 conduct additional discovery and potentially admit new evidence challenging the administrative 23 ruling.2 The district judge referred all discovery matters to a magistrate judge.3 This order 24 25
26 1 Compl. – ECF No. 1 at 5–11 (¶¶ 15–35). Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents. 27 2 Disc. Ltr. – ECF No. 33; Disc. Ltr. – ECF No. 36. 1 addresses only the discoverability of the new evidence because the ultimate admissibility of the 2 material relates to the merits of the dispute. 3 The court allows discovery into (1) the district’s settlements with other state-licensed clinical 4 psychologists and (2) testimony from Dr. Ann Simun, a school psychologist who is also a state- 5 licensed clinical psychologist, because this material is relevant and non-cumulative. The court 6 denies the plaintiff’s request to conduct discovery into post-hearing policy changes adopted by 7 other localities because that information is not relevant to the review of the administrative 8 decision. The court takes no position on the parties’ statements concerning whether investigation 9 reports and decisions issued by the California Office of Administrative Hearings may be judicially 10 noticed. 11 12 STATEMENT 13 The elementary-school-aged plaintiff has attention-deficit hyperactivity disorder (ADHD) and 14 autism.4 The plaintiff’s parents sought special-education services, the district denied the request, 15 and the parents asked for an independent-educational evaluation (IEE).5 The district declined to 16 permit Dr. Carina Grandison — the parents’ preferred psychologist — to conduct the IEE under 17 the district’s policies, which were established by the Special Education Local Plan Area.6 The 18 district initiated a due-process complaint under IDEA to have its decision affirmed by an 19 administrative law judge at the California Office of Administrative Hearings.7 The administrative 20 law judge affirmed the district’s decision.8 The plaintiff is contesting this administrative decision.9 21 To support the challenge to the administrative law judge’s decision, the plaintiff asks the court 22 for permission to conduct discovery regarding the following: (1) “District settlement[s] or other 23
24 4 Compl. – ECF No. 1 at 5 (¶ 16). 25 5 Id. at 5–6 (¶¶ 17–19). 26 6 Id. at 6 (¶¶ 20–21). 7 Id. at 8 (¶ 28). 27 8 Id. at 10–11 (¶ 35). 1 agreements with state licensed clinical psychologists from December 14, 2017 through the 2 present”; (2) “Supplementary evidence [presumably testimony] from Dr. Ann Simun a school 3 psychologist who is also a state licensed clinical psychologist, a) regarding statements made at 4 [the] hearing by District witnesses that a clinical psychologist lacks training and experience to 5 conduct psycho-educational evaluations, and b) explaining training required of school 6 psychologists, and c) what psychology activities school psychologists may and may not 7 undertake”; and (3) “SELPA [Special Education Local Plan Area] policies that have changed to 8 adapt to the novel position taken by OAH [California Office of Administrative Hearings] in the 9 decision in this case.”10 The plaintiff also contemplates seeking judicial notice of investigation 10 reports and decisions issued by the California Office of Administrative Hearings as supplemented 11 by declarations from the parties involved in those matters.11 12 The district contends that (1) the settlement agreements with other psychologists are irrelevant, 13 (2) the testimony from Dr. Ann Simun would be irrelevant and cumulative, and (3) the Special 14 Education Local Plan Area policies are irrelevant and “beyond the scope” of this action.12 The 15 district reserves the right to object to any use of investigation reports and decisions issued by the 16 California Office of Administrative Hearings on grounds that the material would be irrelevant.13 17 18 ANALYSIS 19 The IDEA mandates that, on review of an administrative decision, the district court “shall hear 20 additional evidence at the request of a party.” 20 U.S.C. § 1415(i)(2)(C)(ii). But not all evidence is 21 “additional evidence.” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Off. of Admin. 22 Hearings, 652 F.3d 999, 1004 (9th Cir. 2011). “[A] district court need not consider evidence that 23 simply repeats or embellishes evidence taken at the administrative hearing, nor should it admit 24 evidence that changes the character of the hearing from one of review to a trial de novo.” Id. 25 26 10 Disc. Ltr. – ECF No. 33 at 2–3; Disc. Ltr. – ECF No. 36 at 2–5. 11 Disc. Ltr. – ECF No. 36 at 5. 27 12 Disc. Ltr. – ECF No. 33 at 2–4; Disc. Ltr. – ECF No. 36 at 2–5. 1 (cleaned up). In short, “evidence that is non-cumulative, relevant, and otherwise admissible 2 constitutes ‘additional evidence’ that the district court ‘shall’ consider pursuant to 20 U.S.C. § 3 1415(i)(2)(C)(ii).” Id. at 1005. 4 The purpose for admitting additional evidence is to ensure that “federal courts enforce the 5 minimum federal standards IDEA sets out.” Id. For example, courts have allowed parties to admit 6 into evidence psychological reports obtained after the school district’s challenged decision where 7 the reports “may be helpful to understanding the school district's earlier actions.” M.M. v. 8 Lafayette Sch. Dist., No. C 10-04223 SI, 2011 WL 5190033, at *4 (N.D. Cal. Oct. 31, 2011). 9 10 1. District Settlements 11 The plaintiff’s complaint is based on the defendant’s refusal to allow the plaintiff’s parents to 12 use their preferred psychologist, Dr. Carina Grandison, a state-licensed clinical psychologist and 13 neuro-psychologist, to conduct the IEE.14 Specifically, the plaintiff contends that the 14 administrative law judge erred when he found that the district “properly denied parents’ request 15 for evaluation by Dr. Grandison, a licensed clinical psychologist.”15 16 The district’s settlements with other state-licensed clinical psychologists are relevant to this 17 dispute. For instance, if the district allowed other similarly credentialled state-licensed clinical 18 psychologists to conduct IEEs under similar circumstances that could potentially support the 19 plaintiff’s allegations against the district. Specifically, the settlements may support the plaintiff’s 20 challenge to the districts finding that she had not demonstrated unique circumstances justifying a 21 departure from the usual criteria.16 Therefore, the court permits discovery into this category (i.e., 22 agreements with state-licensed clinical psychologists from December 14, 2017 through the present). 23 24 25 26 14 Compl. – ECF No. 1 at 5–11 (¶¶ 15–35). 27 15 Id. at 10 (¶ 35). 1 2. Supplementary Evidence from Dr. Ann Simun 2 The plaintiff seeks to conduct discovery and obtain testimony from Dr. Ann Simun, a school 3 psychologist who is also a state-licensed clinical psychologist.17 The plaintiff wants to use this 4 evidence to contest the district’s “unproven argument that state-licensed psychologists lack the 5 training needed to conduct IEEs.”18 The district argues that the proposed discovery would be 6 irrelevant and cumulative because the plaintiff has already presented testimony from “three 7 licensed and experienced clinical psychologists about their training and experience” to the 8 administrative law judge.19 The plaintiff asserts that the testimony is not cumulative because Dr. 9 Simun “is a state licensed psychologist who also has [a] school psychologist credential” and that 10 neither party called a school psychologist at the due process hearing.20 The district also contends 11 that, at the administrative hearing, it did not argue that “only school psychologists are qualified to 12 conduct IEEs” but instead argued that IEE assessors must “at a minimum” have a school 13 psychologists credential.21 14 The plaintiff does not explain why she did not offer Dr. Simun’s testimony at the hearing other 15 than to claim that she was “surprised” by the district’s argument that “state licensed psychologists 16 lack the training needed to conduct IEEs.”22 This argument is not especially convincing as the 17 qualifications of state-licensed psychologists to conduct IEEs seems to be one of the central 18 disputed issues. Nonetheless, “whether a particular witness ‘did, or could have, testified before the 19 administrative hearing’” is not dispositive. N. N. v. Mountain View-Los Altos Union High Sch. 20 Dist., No. 20-cv-08010-VKD, 2021 WL 2808973, at *4 (N.D. Cal. July 6, 2021) (quoting Town of 21 Burlington v. Dep’t of Educ., 736 F.2d 773, 790 (1st Cir. 1984)). Accordingly, the issue is only 22 whether the testimony would be relevant and non-cumulative. 23
24 17 Disc. Ltr. – ECF No. 33 at 2–3. 25 18 Id. at 3. 26 19 Id. 20 Disc. Ltr. – ECF No. 33 at 3. 27 21 Disc. Ltr. – ECF No. 36 at 4. 1 Regarding relevancy, Dr. Simun’s testimony is clearly relevant to the dispute because it relates 2 to whether the plaintiff’s preferred psychologist, Dr. Carina Grandison, was qualified under the 3 Special Education Local Plan Area’s policies. Of course, even though the new testimony is 4 relevant it may be improper cumulative evidence. In this regard, Dr. Simun has a school 5 psychologist credential — unlike the other psychologists who testified at the administrative 6 hearing — and this is enough to make her testimony non-cumulative. Thus, the court permits 7 discovery into Dr. Simun’s testimony. 8 9 3. SELPA Policy Changes 10 The plaintiff asks the court for permission to conduct discovery into policy changes in other 11 Special Education Local Plan Areas (SELPAs) that the administrative law judge’s decision in this 12 case allegedly precipitated.23 According to the plaintiff, other Special Education Local Plan Areas 13 have changed their policies to force students to use school psychologists (rather than any state- 14 licensed psychologists) for IEEs.24 According to the plaintiff, the policy changes stemming from 15 the administrative decision and the differences between districts demonstrate an inequitable 16 application of the law (e.g., 34 C.F.R. 300.52, which governs independent educational 17 evaluations).25 The plaintiff contends that these policy changes are relevant because they will help 18 establish that the administrative law judge’s decision contradicted the congressional intent 19 underlying IDEA.26 20 Relevant means “reasonably calculated to lead to the discovery of admissible evidence.” 21 Frazier v. Bed Bath & Beyond, Inc., No. 11-mc-80270 RS (NC), 2011 WL 5854601, at *1 (N.D. 22 Cal. Nov. 21, 2011). The post-hearing policy changes that plaintiff wants to obtain in discovery 23 are not relevant to the plaintiff’s administrative challenge. Post-hearing policy changes in other 24 Special Education Local Plan Areas following the administrative law judge’s decision here do not 25 26 23 Id. at 3–4. 24 Id. at 3. 27 25 Disc. Ltr. – ECF No. 36 at 5. 1 illuminate whether the underlying administrative decision was correct. The post-hearing changes 2 simply show that other locales may follow the challenged decision. 3 Because the post-hearing policy changes are not relevant to determining whether the 4 administrative law judge erred, the court denies the plaintiff’s request to conduct discovery on this 5 issue. 6 7 4. Judicial Notice of Investigation Reports and Decisions from the California Office of 8 Administrative Hearings 9 The parties appear to agree that investigation reports and decisions issued by the California 10 Office of Administrative Hearings may be judicially noticed.27 The plaintiff contemplates 11 supplementing these investigation reports with declarations identifying the “IEE evaluator.”28 The 12 district states that it reserves the right to object to supplementing the administrative record with 13 investigation reports and decisions along with any supplemental declarations on grounds that the 14 material would be irrelevant.29 15 There is no discovery dispute on this issue. The court takes no position on whether the material 16 may be judicially noticed or admitted as supplemental evidence. 17 18 CONCLUSION 19 The court grants the plaintiff’s request to conduct discovery into (1) the district’s settlements 20 with other state-licensed clinical psychologists and (2) testimony from Dr. Ann Simun concerning: 21 (i) statements made at the hearing by district witnesses claiming that clinical psychologists lack 22 relevant training; (ii) school psychologist training; and (iii) limits on school psychologists. The 23 court denies the plaintiff’s request to conduct discovery into policy changes in other Special 24 25 26 27 Disc. Ltr. – ECF No. 36 at 5. 27 28 Id. 1 Education Local Plan Areas and takes no position on the parties’ statements concerning 2 || investigation reports and decisions issued by the California Office of Administrative Hearings. 3 4 IT IS SO ORDERED. 5 Dated: April 28, 2022 LAE 6 LAUREL BEELER 7 United States Magistrate Judge 8 9 10 11 a 12
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