COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Jack1 v Boston Public Schools
BSEA # 08-3410
RULING ON PARENT’S MOTIONS FOR DISCOVERY SANCTIONS
Introduction
This Ruling is issued pursuant to Parent’s motion for sanctions for Boston’s failure to comply with discovery requests. After consideration of Parent’s motion, Boston’s opposition, oral arguments and supplemental material submitted by the Parties and the Administrative record, Parent’s motion for sanctions is granted.
Procedural History and Disputed Discovery Requests
The following history and facts are not in dispute.
On December 11, 2007 Parent filed an emergency request for hearing. In that request Parent asked for immediate placement at the SEEM Collaborative and for compensatory educational services for the 2005-2006, 2006-2007 and the current school year as well as reimbursement for evaluations and other services; ( see Parent’s December 11, 2007 hearing request). On that day Parent also filed requests for documents and requests for interrogatories; ( see Parent’s Hearing request December 11, 2007). The matter was set for hearing on January 15, 2008.2
On December 26, 2007 a Hearing initiated conference call with Counsel occurred. At that time, Parent’s motion to postpone the January 15, 2008 hearing was granted without objection, the joint request for a prehearing was granted3 and hearing dates were set for January 28, 2008, January 29, 2008 and January 30, 2008. The Hearing Officer also ordered that all discovery, including any observations be completed no later than January 14, 2008; ( see Order, December 26, 2007, Beron).
On January 9, 2007 Boston requested a postponement of the January 16, 2008 prehearing and the January hearing; ( see M.R.C.P. Rule 26 (b), Boston’s January 9, 2008 motion to postpone, Murray). As grounds for the motion Boston asserted that Parent’s expert was not able to observe Jack’s current program until January 22, 20084 and that there was insufficient time to engage in productive negotiation discussions; Id. The Hearing Officer extended the discovery deadlines to conduct observations, granted the joint request to postpone the prehearing and hearing, set a prehearing date for January 25, 2008 at 2:00 and hearing dates for February 5, 2008 and February 7, 2008 at 9:30 a.m. ( see Order, January 17, 2008, Beron). The Parties did not request, nor did the Hearing Officer grant, any other discovery extensions.
On January 24, 2008 Parent’s Counsel, filed a motion to compel discovery in time for the January 25, 2008 prehearing or the sanction of barring Boston from presenting evidence at hearing if it did not comply. As grounds for the motion Parent asserted that Boston had not filed any answers to interrogatories and had in response to the request for document production filed only the Student’s IEPs and some progress reports despite multiple requests from Parent’s Counsel to Boston’s attorney; ( see Parent’s January 24, 2008 motion to compel, Heffernan). On that day5 this Hearing Officer granted Parent’s motion to compel discovery in part. Boston was ordered to bring all the requested discovery to the BSEA no later than January 25, 20086 at 1:30 p.m. and if the discovery was not provided Boston should be prepared to show cause as to why Parent’s motion to bar Boston from submitting evidence at hearing should not be granted ( see Order January 23, 2008, Beron).
A prehearing occurred on January 25, 2008 at 2:00 p.m. Discovery documents were delivered to Parent’s attorney between 3:30 and 4:00 p.m.
On January 28, 2008 Parent filed a second motion for sanctions because Boston still had not filed any answers to interrogatories and had failed to provide Parent with responses to twenty-four of twenty nine document requests; ( see Parent’s January 28, 2008 motion for sanctions, Heffernan).
On January 29, 2008 this Hearing Officer issued an order that a Hearing Officer initiated conference call would occur on January 30, 2008 at 8:30 a.m. and that if the matter was not resolved at that time7 the Parties should be prepared to address Parent’s motion to compel discovery and motion for sanctions; ( see Order January 29, 2008, Beron).
No action was taken on Parent’s motion for sanctions because the Parties were in settlement discussions and had jointly requested a postponement of the hearing. On February 5,8 2008 Parent requested that the matter should be scheduled for hearing and that Parent’s motion for sanctions be heard.
On February 5, 2008 this Hearing Officer scheduled Parent’s motion for sanctions. Boston was given until February 11, 2008 to respond to discovery or oppose the motion; ( see Order February 5, 2008).
Boston filed an opposition on February 11, 2008. In that opposition Boston asserted that the motion be denied because it had given Parent all the documents it had, that it would submit interrogatories by February 13, 2008 and resumes and credentials of Boston’s witnesses when it submitted final document and witness lists at the time that witness lists must be submitted to the BSEA (five working days prior to the hearing). Boston also asserted that it would not be introducing any witness testimony at the due process hearing that was not properly provided to Parent in the discovery process and as such, Parent would not suffer any prejudice; ( see Boston’s February 11, 2008 opposition, Murray).9 Boston did not file any motions for extensions of discovery nor did it file a motion for a protective order for any requested discovery materials; Id.
A motion session was held on February 13, 2008. The Parties presented oral argument. At the request of the Hearing Officer the Parties filed supplemental material later that day. Parent submitted supplemental material detailing what documents were missing and/or incomplete and Boston’s February 12, 2008 responses to discovery requests. Boston also submitted their responses to Parent’s request for discovery and its answers to Parent’s interrogatories ( see Parent’s and Boston’s supplemental responses February 13, 2008). Hearing dates have been scheduled for March 12, 2008 and March 14, 2008 at the Bureau of Special Education Appeals (BSEA) at 9:30 a.m.
Boston’s responses show that it did not produce the following:
· Redacted IEPs and daily schedules for any of the student’s who participated in any portion of Jack’s program during the 2005-2006 and 2006-2007 school year;
· Redacted schedules for Jack and students with Jack during the 2006-2007 school year;
· Redacted evaluations for students who have been grouped with Jack during the 2005-2006 and 2006-2007 school years and who or are currently grouped with Jack:
· Schedules for Jack’s teachers during the 2005-2006 and 2006-2007 school years;
· The three year program plan that Boston has filed with the Massachusetts Department of Education (MDOE);
· Any accreditation reviews of Boston’s regular and special education programs within the last six years;
· Any waivers issued by MDOE covering any aspect of special education services delivered or proposed for Jack;
· All inspections, audits, investigations or reviews by independent or governmental entities since September 2000;
· Behavioral plans used with students grouped with Jack during the 2005-2006, 2006-2007 and the current school year;
· Curriculum descriptions and lesson plan books for the teachers who have taught Jack during the 2005-2006 and 2006-2007 school years;
· Written materials regarding the approach used to address behavioral problems for students in the program(s) in which Jack is proposed to participate in Boston’s IEP; ( see Parent’s supplemental response February 13, 2008, Boston’s responses to Parent’s December 11, 2007 request for Document Production, February 12, 2008).
Boston did produce Jack’s student record and his schedule for the current school year; documents related to their observation of Jack in his current school program; information regarding behavioral programming for this school year and correspondence and communication regarding Jack. Boston informed Parent’s Counsel that they did not have any communications with the SEEM Collaborative regarding Jack and were not aware of any existing policy regarding guidelines, practices or procedure regarding provision of programs for children with Prader-Willi Syndrome and did on February 12, 2008 or February 13, 2008 provide resumes for Jack’s teachers ( see Boston’s February 12, 2008 responses to Parent’s December 11, 2007 request for document production, oral argument). .
For those documents that were not sent Boston responded to Parent’s attorney with the following:
“ OBJECTION : Boston objects to this request on the grounds that it is overbroad, unduly burdensome, not reasonably calculated to lead to admissible evidence in this matter and is irrelevant to the issue before the BSEA. Moreover, Boston objects to this request pursuant to 603 C.M.R. 23.07 on the grounds that it seeks personal and confidential student information that may not be released to third parties.”
Boston also objected to eleven of Parent’s thirteen interrogatories with the following:
“ OBJECTION : Boston objects to this request on the grounds that it is overbroad, unduly burdensome, not reasonably calculated to lead to admissible evidence in this matter and is irrelevant to the issue before the BSEA. Moreover, Boston objects to this request pursuant to 603 C.M.R. 23.07 on the grounds that it seeks personal and confidential student information that may not be released to third parties.”
However for those interrogatories that referenced documents Boston did indicate that it provided the documents in hand on January 25, 2008 or through the mail on January 17, 2008, ( see e.g. Boston’s Answers to Interrogatories 1-5, 7-9). It also informed Parent who provided information for interrogatories and document requests ( see e.g. Boston’s Answers to Interrogatories # 10).
Boston also answered Parent’s question regarding the experience and qualifications of its personnel working with Jack from September 2005 until the present in the area of Prader-Willi Syndrome with:
“ Parent provided videotapes as well as significant written information about Prader-Willi Syndrome to staff who consulted all materials. Additionally all staff participated in and continues to participate in professional development related to servicing and educating students with disabilities including but not limited to PWS. Moreover, the relevant BPS staff members are highly qualified teachers10 and service providers who are licensed and certified by the Commonwealth of Massachusetts Department of Education” and did indicate that their programs were specifically tailored to Jack due to the professionals qualifications”. Boston also told Parent that “Jack was on an Individualized Educational Plan (IEP) which is specifically tailored to his specific educational needs and required services in order to access the curriculum”; (see Boston’s responses to Interrogatories 11, 12).
Boston also answered Parent’s question regarding the appropriateness of the SEEM Collaborative (SEEM), by indicating:
“SEEM Collaborative is not appropriate because Jack is currently in an educational program where he is receiving FAPE in the least restrictive environment. Boston believes that he is making effective progress, commensurate with his ability”. ( see Boston’s Answers to Interrogatories #6).
Boston did not file a motion for a protective order with the BSEA or further elaborate why producing the documents were unduly burdensome, not reasonably calculated to lead to admissible evidence, irrelevant or privileged. It did in oral argument however explain that they did search for documents relating to the 2005-2006 and 2006-2007 school year but did not have these records and therefore could not produce them. Boston had no explanation as to why it would not produce public records (i.e. the three year program plan, accreditation reviews, waivers, audits) and could not further elaborate about why redacted records of Jack’s peers could not be produced; ( see Oral argument).
Discussion
Sanctions may be imposed by a BSEA Hearing Officer for failure to comply with a Hearing Officer’s discovery order pursuant to 801 CMR 1.01(8)(i).11 These regulations provide that if a party fails, “without good cause”, to obey an order to provide or permit discovery, the Hearing Officer “may make orders in regard to the failure as are just, including one or more of the following:
1. An order that designated factors shall be established adversely to the party failing to comply with the order; or
2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him or her from introducing evidence on designated matters.”
This regulatory language allows the Hearing Officer discretion to determine whether a sanction for failure to obey a discovery order is warranted and, if so, the nature and extent of the sanction that is “just” in light of the circumstances of the particular case.12
Boston has known since December 26, 2007 that it was under order to produce discovery to Parents by January 14, 2008. Other than an extension for observations, Boston neither asked, nor did it receive permission to extend discovery. On January 24, 2008 Boston was ordered to bring discovery documents at 1:30 p.m., one half hour prior to the prehearing so that Parent, Parent’s Counsel and Parent’s expert could review the information and engage in discussion regarding the material at the prehearing. Boston was not ready to proceed to the prehearing until after 2:00 p.m., did not bring the material to the prehearing until after the prehearing was concluded, and did not include any information regarding the students that Jack was grouped with for the 2005-2006 and 2006-2007 school years. Nor did Boston produce Jack’s or his teacher’s schedules or information regarding what Jack was taught during those years even though Boston knew that Parent had, in her December 11, 2007 hearing request, asked for compensatory education for those years. Boston also did not produce any information regarding its three-year plan, waivers or inspections, all of which is information available to Parent as public records and information that may lead to discoverable evidence relating to the issues at hearing; ( see .R.C.P. M.R.C.P. Rule 26(b)(1).13
Boston was given until February 11, 2008 to respond to Parent’s discovery requests or file an opposition. A motion session for sanctions occurred on February 13, 2008 at 10:00 a.m. As of that time Boston still had not produced answers to any interrogatories and had not produced any additional documents. Boston has since supplemented responses with resumes and some answers to interrogatories but has not produced any additional documents. It has filed an opposition at the request of the Hearing Officer but has not shown cause as to why it could not produce redacted information regarding other students that Jack is grouped with or Jack’s and has not shown good cause as to why requests for Jack’s teacher’s weekly schedules or lesson plans or the public records would be overbroad, unduly burdensome or not reasonably calculated to produce admissible evidence.
Boston may feel that Parent is not entitled to most of the materials she requested in discovery; however it is not enough to make an assertion that discovery should not be given. Boston has a duty when responding to discovery to inform Parent of documents that are not in its possession and, if it has an objection to specific documents or interrogatory questions, must not only inform Parent of their objections, but must also request a Protective Order from the Hearing Officer.
M.R.C.P. 26 (c) mandates that a party must make a motion for a Protective Order in the appropriate forum and show good cause as to why justice requires discovery should not be produced or be modified to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. General statements do not meet the requirement of showing good cause. Neither does the burden, annoyance or expense of conducting discovery meet this requirement. Collecting (and reviewing) discovery takes time and can be expensive and annoying. However this does automatically make complying with discovery requests unduly burdensome. The Adjudicatory Rules of Practice and Procedure provide for discovery in administrative forums to allow the parties to gather information so that both sides can present and defend their prospective positions; ( see generally 801 C.M.R. 1.01(8). In this matter Parent has the burden14 of showing that Jack’s program is and has been inappropriate and needs information regarding Jack’s educational and behavioral programming, the students that he is and has been grouped and the qualifications of his teachers in order to assess her case, and, if appropriate, to proceed to hearing and provide a rebuttal to the School District’s claims. An examination of the answers to interrogatories shows that Parent was given very general answers that do not indicate why Boston believes its program is appropriate, or how it has delivered appropriate behavioral interventions or programming for Jack or the training provided to the teachers in teaching students with PWS. Parent also has received no information to rebut Boston’s assertion that it’s programs during the 2005-2006 and 2006-2007 school years are appropriate despite many requests from Parent and three orders by this Hearing Officer.15
As such, sanctions are appropriate. Parent has requested that Boston not be allowed to present any evidence. However, while Parent has not received information regarding Jack’s peers or information regarding behavioral programming, it has received information regarding the program this school year and can offer a defense and rebuttal to Boston’s claim that its current program provides a free appropriate public education (FAPE) in the least restrictive environment (LRE). Therefore, Boston may present evidence as to the appropriateness of its current program16 however, it may not present any evidence as to the appropriateness of Jack’s peer group or the behavioral components of the program. In addition, information regarding the qualifications of Jack’s providers will be limited to the information provided in discovery. Boston has not and does not have in its possession information as to the appropriateness of its program for the 2005-2006 school years and as such it cannot present evidence regarding these years.17
Order
Parent’s motion for sanctions is granted in part. For the above-stated reasons, the following orders are issued in this matter:
Boston may not present any evidence regarding the 2005-2006 and 2006-2007 school years. It may present evidence regarding the 2007-2008 school year but may not present evidence regarding the appropriateness of Jack’s peer groups or behavioral programming. If Boston supplements its response regarding the SEEM Collaborative by May 3, 2008 it may present evidence regarding any inappropriateness of that program for Jack.
By the Hearing Officer,
_________________
Joan D. Beron
Dated: February 27, 2008
1
Jack is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
On December 12, 2007 the BSEA sent a notice of hearing and did not grant emergency status. Boston also opposed emergency status; on December 18, 2007; ( see Administrative record).
3
The prehearing was ultimately set for January 16, 2008; ( see Order January 3, 2008 Beron).
4
It is unclear if Parent’s expert was not able to observe the proposed program due to her schedule or Boston’s or a combination of both.
5
The order is dated in error for January 23, 2008.
6
The order states that the discovery should be delivered January 25, 2007 instead of 2008. Neither party was confused by the order.
7
The Parties had indicated that they were discussing resolution.
8
Parent’s motion was dated February 4, 2008 but not received at the BSEA until February 5, 2008.
9
Boston’s opposition was dated February 8, 2008; however the fax cover letter accompanying the motion was dated February 11, 2008. This matches the transmission date of February 11, 2008 at 17:47 (5:47 p.m.).
10
Boston indicated that its professionals working with Jack were highly qualified but that it would not be calling any experts or relying on any expert documents; ( see Answer to Interrogatory #13).
11
These regulations have been made applicable to BSEA proceedings pursuant to 603 CMR 28.08(5)(b).
12
Similarly, courts have held that the trial judge has discretion in determining what sanctions, if any, may be appropriate for failure to obey discovery orders pursuant to Rule 37(b) of the Massachusetts and federal rules of civil procedure. See, e.g., Faigin v. Kelly , 184 F.3d 67 (1st Cir. 1999) (appellate court will reverse a trial judge’s determination of sanctions in a discovery dispute “only upon a clear showing of manifest injustice, that is, where the lower court’s discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party”); Marx v. Kelly, Hart and Hallman, P.C., 929 F.2d 8 (1st Cir. 1991) (“choice of sanctions for failing to comply with an order of the district court lies within the sound discretion of the court”); Atlas Tack Corp. v. Donabed , 47 Mass. App. Ct. 221, 224 (1999) (a judge has “wide latitude to make such orders in regard to the failure to comply with a discovery order as are just”) (internal quotation marks omitted).
13
M.R.C.P. Rule 26 (b)(1) states: In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence ( emphasis added). .
14
Schaffer v Weast , 546 U.S. 49, 126 S. Ct. 528, 534, 537 (2005) (burden of persuasion in an administrative hearing challenging an IEP is placed upon the party seeking relief).
15
These orders are put into place so that both parties can get the information they need to assess their case, and if a hearing is necessary, can proceed to hearing in a timely manner
16
Boston has currently indicated that SEEM is inappropriate because it is not the least restrictive environment for Jack. However, it has also subpoenaed information from SEEM and may, after reviewing it, present information that it does not offer Jack a FAPE. Boston has a duty to supplement its discovery responses; ( see M.R.C.P. Rule 26(e)). If Boston does intend to offer evidence as to the appropriateness of SEEM it will supplement its response to Parent no later than March 3, 2008. Failure to do so may result in Boston not being able to present evidence regarding SEEM.
17
Boston, in its February 11, 2008 opposition to Parent’s motion for sanctions, indicated that it would not be introducing any witness testimony at the hearing that was not properly provided to Boston during the discovery process; ( see Boston’s February 11, 2008 Opposition to Parent’s Motion for Sanctions).