O 1
2 3 4 5 6 7
8 United States District Court 9 Central District of California
11 T.S., Case № 2:22-cv-01491-ODW (DFMx)
12 Plaintiff, ORDER DENYING MOTION FOR 13 v. DISCOVERY AND TO 14 LONG BEACH UNIFIED SCHOOL SUPPLEMENT THE 15 DISTRICT, ADMINISTRATIVE RECORD [29]
Defendant. 16
17 I. INTRODUCTION 18 Plaintiff T.S., by and through his guardian ad litem, appeals from a decision of 19 the California Office of Administrative Hearings (“OAH”), pursuant to the Individuals 20 with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. (See Compl., 21 ECF No. 3.) Now pending before the Court is T.S.’s Motion for Discovery and to 22 Supplement the Administrative Record (“AR”). (Mot. Disc. & Suppl. (“Mot.” or 23 “Motion”), ECF No. 29.) For the following reasons, T.S.’s Motion is DENIED.1 24 II. BACKGROUND 25 At the time of the OAH administrative hearing at issue (“OAH Hearing”), T.S. 26 was thirteen years old and in eighth grade. (See Notice of Lodging AR 1297–1333 27
28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 (“OAH Decision”), at 1301, ECF No. 35.) T.S. qualifies for special education under 2 the IDEA in the eligibility category of autism. (Id.) 3 In March 2021, T.S. filed an administrative complaint against the District, OAH 4 Case No. 2021030090. (See Compl. ¶ 15; OAH Decision 1297.) The Administrative 5 Law Judge (“ALJ”) heard the case over seven days in October 2021 and held that the 6 District prevailed fully on five issues and T.S. prevailed fully on one. (Compl. ¶ 16; 7 OAH Decision 1297, 1331.) T.S. appeals the ALJ’s decision as to all issues on which 8 he did not prevail as well as to the remedy awarded on the issue for which he did. 9 (See generally Compl.) He now moves for discovery and to supplement the AR. (See 10 Mot.) The Motion is fully briefed. (See Opp’n, ECF No. 36; Reply, ECF No. 37.) 11 III. LEGAL STANDARD 12 There is generally no discovery in IDEA cases. M.C. v. Antelope Valley Union 13 High Sch. Dist., 858 F.3d 1189, 1199 (9th Cir. 2017). However, “IDEA mandates 14 that, on review of an administrative decision, the district court ‘shall hear additional 15 evidence at the request of a party.’” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. 16 Dist. Off. of Admin. Hearings, 652 F.3d 999, 1004 (9th Cir. 2011) (quoting 20 U.S.C. 17 § 1415(i)(2)(C)(ii)). Importantly, “not all evidence is ‘additional evidence’” that a 18 court must hear. Id. 19 “The starting point for determining what additional evidence should be 20 received . . . is the record of the administrative hearing.” Ojai Unified Sch. Dist. v. 21 Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993) (quoting Town of Burlington v. Dep’t of 22 Educ., 736 F.2d 773, 790 (1st Cir. 1984)). “[U]nder [Ninth Circuit] precedent, 23 evidence that is non-cumulative, relevant, and otherwise admissible constitutes 24 ‘additional evidence’ that the district court ‘shall’ consider pursuant to 20 U.S.C. 25 § 1415(i)(2)(C)(ii).” E.M., 652 F.3d at 1004–05. Thus, “evidence concerning 26 relevant events occurring subsequent to the administrative hearing” generally qualifies 27 as additional evidence. Ojai, 4 F.3d at 1473. On the other hand, “a district court need 28 not consider evidence that simply repeats or embellishes evidence taken at the 1 administrative hearing, nor should it admit evidence that changes ‘the character of the 2 hearing from one of review to a trial de novo.’” E.M., 652 F.3d at 1004 (quoting Ojai, 3 4 F.3d at 1473). 4 IV. DISCUSSION 5 T.S. moves for discovery and to supplement the AR with two categories of 6 documents. First, T.S. seeks education records concerning primarily the 2020 7 extended school year (“ESY”), which he contends are relevant to the ALJ’s 8 determination that the District did not deny T.S. a free appropriate public education 9 (“FAPE”) by failing to provide educational records when requested by Parent. 10 Second, T.S. seeks records from Dr. Eric Ikeda, who assessed T.S. regarding V.T, 11 which T.S. contends are relevant to the ALJ’s determination that the District did not 12 deny T.S. a FAPE by failing to obtain a second VT evaluation by Dr. Ikeda. (See 13 Mot. 2–6; OAH Decision 1331.) 14 A. Educational Records 15 Parents have the right to request and receive their child’s education records 16 within five business days. Cal. Educ. Code § 56504. Education records under the 17 IDEA are defined by the federal Family Educational Rights and Privacy Act to include 18 “records, files, documents, and other materials” containing “information directly 19 related to a student,” other than directory information, which “are maintained by an 20 educational agency or institution or by a person acting for such agency or institution.” 21 20 U.S.C. § 1232g(a)(4)(A); see Cal. Educ. Code § 49061(b); 34 C.F.R. § 99.3. A 22 student’s education records do not include “records of instructional, supervisory, and 23 administrative personnel . . . which are in the sole possession of the maker thereof and 24 which are not accessible or revealed to any other person except a substitute.” 25 20 U.S.C. § 1232g(a)(4)(B)(i); Cal. Educ. Code § 49061(b); 34 C.F.R. § 99.3. 26 T.S. argues that his parents requested his education records several times in 27 advance of the OAH Hearing and the District provided some, but not all, of the 28 records requested. (Mot. 2; Decl. Tania Whiteleather ISO Mot. 1–2, ECF No. 29-2.) 1 In the introduction to the Motion, T.S. lists a host of documents that he claims exist 2 but were not produced, (Mot. 2), but focuses his argument on only “actual attendance” 3 records of T.S. for ESY 2020, (see generally id. at 2–10). The Court focuses its 4 analysis correspondingly. 5 T.S. asserts that District employee Jennifer Santo, ESY 2020 teacher, testified 6 “she had personally created” “actual attendance reports” “for each day that T.S. had 7 attended her class,” and argues that these reports should have been produced to T.S.’s 8 parents in response to their records requests. (Mot. 4; see Reply 4–5 (citing AR 2606– 9 08).) T.S. misconstrues Santo’s testimony. She did not testify that she “created” 10 “actual attendance” records, but rather only that she took roll every day and submitted 11 that attendance digitally to the District.
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O 1
2 3 4 5 6 7
8 United States District Court 9 Central District of California
11 T.S., Case № 2:22-cv-01491-ODW (DFMx)
12 Plaintiff, ORDER DENYING MOTION FOR 13 v. DISCOVERY AND TO 14 LONG BEACH UNIFIED SCHOOL SUPPLEMENT THE 15 DISTRICT, ADMINISTRATIVE RECORD [29]
Defendant. 16
17 I. INTRODUCTION 18 Plaintiff T.S., by and through his guardian ad litem, appeals from a decision of 19 the California Office of Administrative Hearings (“OAH”), pursuant to the Individuals 20 with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. (See Compl., 21 ECF No. 3.) Now pending before the Court is T.S.’s Motion for Discovery and to 22 Supplement the Administrative Record (“AR”). (Mot. Disc. & Suppl. (“Mot.” or 23 “Motion”), ECF No. 29.) For the following reasons, T.S.’s Motion is DENIED.1 24 II. BACKGROUND 25 At the time of the OAH administrative hearing at issue (“OAH Hearing”), T.S. 26 was thirteen years old and in eighth grade. (See Notice of Lodging AR 1297–1333 27
28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 (“OAH Decision”), at 1301, ECF No. 35.) T.S. qualifies for special education under 2 the IDEA in the eligibility category of autism. (Id.) 3 In March 2021, T.S. filed an administrative complaint against the District, OAH 4 Case No. 2021030090. (See Compl. ¶ 15; OAH Decision 1297.) The Administrative 5 Law Judge (“ALJ”) heard the case over seven days in October 2021 and held that the 6 District prevailed fully on five issues and T.S. prevailed fully on one. (Compl. ¶ 16; 7 OAH Decision 1297, 1331.) T.S. appeals the ALJ’s decision as to all issues on which 8 he did not prevail as well as to the remedy awarded on the issue for which he did. 9 (See generally Compl.) He now moves for discovery and to supplement the AR. (See 10 Mot.) The Motion is fully briefed. (See Opp’n, ECF No. 36; Reply, ECF No. 37.) 11 III. LEGAL STANDARD 12 There is generally no discovery in IDEA cases. M.C. v. Antelope Valley Union 13 High Sch. Dist., 858 F.3d 1189, 1199 (9th Cir. 2017). However, “IDEA mandates 14 that, on review of an administrative decision, the district court ‘shall hear additional 15 evidence at the request of a party.’” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. 16 Dist. Off. of Admin. Hearings, 652 F.3d 999, 1004 (9th Cir. 2011) (quoting 20 U.S.C. 17 § 1415(i)(2)(C)(ii)). Importantly, “not all evidence is ‘additional evidence’” that a 18 court must hear. Id. 19 “The starting point for determining what additional evidence should be 20 received . . . is the record of the administrative hearing.” Ojai Unified Sch. Dist. v. 21 Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993) (quoting Town of Burlington v. Dep’t of 22 Educ., 736 F.2d 773, 790 (1st Cir. 1984)). “[U]nder [Ninth Circuit] precedent, 23 evidence that is non-cumulative, relevant, and otherwise admissible constitutes 24 ‘additional evidence’ that the district court ‘shall’ consider pursuant to 20 U.S.C. 25 § 1415(i)(2)(C)(ii).” E.M., 652 F.3d at 1004–05. Thus, “evidence concerning 26 relevant events occurring subsequent to the administrative hearing” generally qualifies 27 as additional evidence. Ojai, 4 F.3d at 1473. On the other hand, “a district court need 28 not consider evidence that simply repeats or embellishes evidence taken at the 1 administrative hearing, nor should it admit evidence that changes ‘the character of the 2 hearing from one of review to a trial de novo.’” E.M., 652 F.3d at 1004 (quoting Ojai, 3 4 F.3d at 1473). 4 IV. DISCUSSION 5 T.S. moves for discovery and to supplement the AR with two categories of 6 documents. First, T.S. seeks education records concerning primarily the 2020 7 extended school year (“ESY”), which he contends are relevant to the ALJ’s 8 determination that the District did not deny T.S. a free appropriate public education 9 (“FAPE”) by failing to provide educational records when requested by Parent. 10 Second, T.S. seeks records from Dr. Eric Ikeda, who assessed T.S. regarding V.T, 11 which T.S. contends are relevant to the ALJ’s determination that the District did not 12 deny T.S. a FAPE by failing to obtain a second VT evaluation by Dr. Ikeda. (See 13 Mot. 2–6; OAH Decision 1331.) 14 A. Educational Records 15 Parents have the right to request and receive their child’s education records 16 within five business days. Cal. Educ. Code § 56504. Education records under the 17 IDEA are defined by the federal Family Educational Rights and Privacy Act to include 18 “records, files, documents, and other materials” containing “information directly 19 related to a student,” other than directory information, which “are maintained by an 20 educational agency or institution or by a person acting for such agency or institution.” 21 20 U.S.C. § 1232g(a)(4)(A); see Cal. Educ. Code § 49061(b); 34 C.F.R. § 99.3. A 22 student’s education records do not include “records of instructional, supervisory, and 23 administrative personnel . . . which are in the sole possession of the maker thereof and 24 which are not accessible or revealed to any other person except a substitute.” 25 20 U.S.C. § 1232g(a)(4)(B)(i); Cal. Educ. Code § 49061(b); 34 C.F.R. § 99.3. 26 T.S. argues that his parents requested his education records several times in 27 advance of the OAH Hearing and the District provided some, but not all, of the 28 records requested. (Mot. 2; Decl. Tania Whiteleather ISO Mot. 1–2, ECF No. 29-2.) 1 In the introduction to the Motion, T.S. lists a host of documents that he claims exist 2 but were not produced, (Mot. 2), but focuses his argument on only “actual attendance” 3 records of T.S. for ESY 2020, (see generally id. at 2–10). The Court focuses its 4 analysis correspondingly. 5 T.S. asserts that District employee Jennifer Santo, ESY 2020 teacher, testified 6 “she had personally created” “actual attendance reports” “for each day that T.S. had 7 attended her class,” and argues that these reports should have been produced to T.S.’s 8 parents in response to their records requests. (Mot. 4; see Reply 4–5 (citing AR 2606– 9 08).) T.S. misconstrues Santo’s testimony. She did not testify that she “created” 10 “actual attendance” records, but rather only that she took roll every day and submitted 11 that attendance digitally to the District. (AR 2607 (“I don’t remember what days he 12 attended because we take roll, and I don’t keep those documents.”), 2608 (“Well, we 13 had to turn it in digitally through the system.”).) Contrary to T.S.’s assertion, Santo’s 14 testimony does not establish that unproduced ESY 2020 documents exist. 15 To the extent T.S. seeks to supplement the AR with records outside the statutory 16 definition of “education records,” such records are irrelevant to the issue on appeal: 17 whether the District denied T.S. a FAPE by failing to provide education records upon 18 request. (See Compl. ¶ 15(5); OAH Decision 1331.) Thus, allowing the requested 19 supplementation would impermissibly change “the character of the hearing from one 20 of review to a trial de novo.” E.M., 652 F.3d at 1004. 21 Accordingly, the records T.S. seeks concerning ESY 2020 are not “additional 22 evidence” the Court must consider. See id. at 1005. 23 B. Dr. Ikeda 24 T.S. also seeks records from Dr. Ikeda that he claims are relevant to his appeal 25 of the holding that the District “did not deny [T.S.] a FAPE . . . by failing to obtain a 26 second vision therapy evaluation by Dr. Eric Ikeda.” (OAH Decision 1331; id. 27 at 1318–24; Mot. 4–5.) Specifically, T.S. contends Dr. Ikeda’s records will show that 28 T.S.’s parents called to set up a second VT assessment. (Mot. 5, 7, 10.) T.S. also 1 seeks to supplement the AR with a May 12, 2021 letter from Dr. Ikeda to the District, 2 which T.S. argues will show that Dr. Ikeda believed T.S. needed VT. (Id. at 4–5, 10.)2 3 The records T.S. seeks from Dr. Ikeda were available at the time of hearing and 4 would be cumulative of testimony and evidence in the AR. For example, at the time 5 of the OAH Hearing, T.S. possessed the May 2021 letter he now seeks to add to the 6 AR. T.S.’s attorney questioned both Dr. Ikeda and T.S.’s father about the letter. (See 7 AR 2102, 2462–63.) T.S. chose not to enter the letter into evidence. (See AR 2515– 8 16.) He argues he did not enter the letter into evidence because he needed Dr. Ikeda’s 9 records to authenticate the letter and establish that Dr. Ikeda sent it to the District. 10 (Reply 6–7.) But T.S.’s attorney questioned Dr. Ikeda regarding the letter and thus 11 had the opportunity to elicit his testimony on these points. (See AR 2102.) Evidence 12 previously available and intentionally not entered into the record at hearing is not 13 “additional evidence” the Court must consider in this appeal. See E.M., 652 F.3d 14 at 1005. 15 In sum, the records T.S. seeks with the Motion “simply repeat[] or embellish[] 16 evidence taken at the administrative hearing.” Id. at 1004. Were the Court to permit 17 T.S. to supplement the AR with these records, they would change “the character of the 18 hearing from one of review to a trial de novo,” as the Court would be tasked with 19 evaluating evidence and claims anew. E.M., 652 F.3d at 1004 (internal quotation 20 marks omitted). Accordingly, the Court DENIES T.S.’s Motion. 21 22 23 24 25
26 2 T.S. claims he issued a subpoena duces tecum (“SDT”) for Dr. Ikeda to produce the requested records at the OAH Hearing, but Dr. Ikeda did not. (Mot. 7.) T.S. submits a copy of the SDT 27 purportedly served on Dr. Ikeda. (Suppl. Decl. Tania L. Whiteleather ISO Reply Ex. 1 (“SDT”), 28 ECF No. 37-2.) However, the proof of service for the SDT indicates that service on Dr. Ikeda was “unsuccessful.” (Id. at 7.) 1 Vv. CONCLUSION 2 For the reasons discussed above, the Court DENIES T.S.’s Motion for 3 || Discovery and to Supplement the AR. (ECF No. 29.) 4 5 IT IS SO ORDERED. 6 7 June 16, 2023 8 NZ. wo 4
10 OTIS D. HT, II UNITED STATES DISTRICT JUDGE
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