Medford Public Schools – BSEA #03-0033



<br /> Medford Public Schools – BSEA #03-0033<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Medford Public Schools

BSEA # 03-0033

RULING REGARDING STUDENT’S MOTIONS FOR DISCOVERY SANCTIONS

Introduction

This Ruling addresses a series of alleged failures by Medford Public Schools (hereafter, Medford) to comply with three discovery orders issued by this Hearing Officer.

Parents and their son who is the subject of this dispute (hereafter, the parents and their son are referred to collectively as “Student”) requested that the Hearing Officer issue a judgment on the merits against Medford, or in the alternative order certain evidentiary sanctions related to issues in dispute as well as to order Medford to produce certain privileged or protected documents. Medford has taken the position that no sanctions are warranted.

Procedural History and Disputed Discovery Requests

The following history and facts are not in dispute.

On June 28, 2002, Student filed with the Bureau of Special Education Appeals (hereafter, BSEA) his Request for Hearing . At that time, Student was represented by an advocate who is not an attorney. The parties entered into informal negotiations; and a Pre-Hearing Conference on July 29, 2002 at the BSEA offices and several telephone conference calls with the Hearing Officer occurred to assist the parties to clarify the issues and facilitate informal resolution. When initial efforts to resolve the matter informally were not successful, Hearing dates were set for September 23, 24 and 27, 2002.

Shortly before the scheduled Hearing dates, Student’s advocate requested that the Hearing be postponed and that Student be given an opportunity to retain an attorney. The postponement request, which was not objected to by Medford, was allowed by the Hearing Officer.

By letter of October 2, 2002, Student’s present attorney notified the BSEA that he had been retained to represent Student.1 During a conference call on October 3, 2002 with the parties’ attorneys, the Hearing Officer set Hearing dates of February 3, 4, 6 and 7, 2003.

On November 8, 2003, Student (through his attorney) filed an Amended Request for Hearing which included claims that Medford had failed to provide a free appropriate public education (hereafter, FAPE) during the past three school years and that Medford has continued to deny Student FAPE during the current school year. Part of the alleged factual basis for Student’s compensatory claims is that Medford failed to provide staff with sufficient training and experience to provide the services described in Student’s IEPs, that teachers and paraprofessionals assigned to Student’s classroom were absent on numerous occasions, that substitutes were rarely hired to replace the absent staff and that as a result, Student on numerous occasions did not receive the services called for in his IEP and/or services necessary in order to receive FAPE. Student also alleged that Medford failed to implement the June 13, 2002 IEP Team decision regarding placement of Student.

According to the Amended Request for Hearing , Student is a six-year-old boy who has been placed in a substantially separate PDD/autism classroom within the Medford school system since May 1999, and that prior to May 1999, Student received early intervention services.

In order to obtain information and documents relative to these claims for compensatory and prospective relief, Student filed a Request for Production of Documents and Interrogatories dated October 28, 2002, in which Student made nine document requests and fourteen interrogatory requests. In addition, Student at that time reminded Medford that Student had made a written request to Medford, dated September 30, 2002, for a complete copy of Student’s education records, which request remained outstanding.

At the request of Medford, the parties agreed among themselves that Medford would provide certain discovery materials and information in response to this request by December 23, 2002 rather than the thirty-day time period established by the BSEA Hearing Rules.

Medford filed its Objections and Motion for Protective Order , dated November 22, 2003, with respect to some, but not all, of the requested discovery. Specifically, Medford objected to document requests ## 3, 5, 7 and 8, and Medford objected to interrogatories ## 2, 10, 12, 13 and 14.

In response, Student filed his first Motion to Compel Production of Documents and Answers to Interrogatories on December 6, 2002, seeking an order from the BSEA that Medford provide discovery by December 23, 2002 with respect to the items to which Medford had not objected, an order from the BSEA that Medford immediately produce the objected-to documents and information (except for interrogatory # 2), and an order that Medford produce by December 16, 2002 a log describing all documents and information withheld by Medford on the basis of attorney-client privilege or attorney work product.

After a Motion Hearing on December 9, 2002, I addressed Medford’s Motion through a Ruling dated December 10, 2002. This Ruling allowed Medford’s request for protective order with respect to document request # 3 (requesting IEPs of other children). Medford’s principal substantive argument regarding the remaining discovery items was that it would be unduly burdensome for Medford to comply with the discovery requests.

The Ruling explained that it is not sufficient for Medford simply to claim that the responses to the discovery requests will be very time-consuming since by the very nature of Student’s compensatory claims, the information needed is extensive. In his Request for Production of Documents and Interrogatories, Student sought, for example, information from three school years regarding qualifications of all staff who have worked with Student, attendance records of these staff, and information sufficient to determine the adult-to-student ratio in the classroom over a period of years, whether any teacher or paraprofessional in Student’s program was absent, whether there was a substitute teacher or paraprofessional in the classroom, and if there was a substitute, the name and educational credentials of each such substitute. These requests for documents and information related directly to the factual basis of Student’s claims, as reflected in his Amended Request for Hearing.

The December 10 th Ruling concluded that, with the exception of document request # 3, Medford must provide the requested information and documents that are within Medford’s custody, possession or control, unless protected by attorney-client privilege or the attorney work-product doctrine.

This Ruling further ordered (and Medford had not objected to this during the Motion Hearing or in any written response) that Medford produce the discovery log requested by Student. The Ruling explained as follows:

Medford may claim protection under the attorney-client privilege and the attorney work-product doctrine with respect to any particular document, material or information sought through Student’s discovery requests. To the extent that Medford claims such protection, Medford shall produce a “log” describing in as much detail as possible the documents, materials or information that are responsive to Student’s discovery request but that Medford is withholding on these grounds.

The Ruling directed Medford to provide the log and the requested discovery to Student no later than January 10, 2003 . After consultation with the parties regarding the amount of time needed by Medford to comply and the date by which Student needed the discovery materials and information, the January 10 th deadline was proposed. Neither party objected to this deadline.

On January 6, 2003, Student filed his second Motion to Compel Production of Documents and Answers to Interrogatories . In his Motion, Student explained that (1) Medford was refusing to provide the discovery log, as directed by my December 10, 2002 Ruling, because Medford claimed that to do so would jeopardize its attorney-client privilege and attorney work-product protections, (2) Medford had not complied with the agreed-upon deadline of December 23, 2002 for the production of document # 6 and had declined to provide a new date by which the documents would be produced, (3) Medford refused to provide any documents located in the files of Medford personnel because these documents are not within the possession, custody or control of Medford, and (4) contrary to the parties’ agreement that Medford would respond to Student’s interrogatories ## 1 through 9 by December 23, 2002, Medford had not provided a single answer.

By Order of January 7, 2003, I stated the following:

The parties are advised that if the Hearing Officer makes any further order for production of documents or answers to interrogatories, he may impose a deadline of either January 17 or January 21, 2003 for compliance in light of the parties’ deadline for submission of proposed documents and witness list. Therefore, Medford Public Schools should be prepared to comply with Student’s Motion by January 17, 2003 if ordered to do so.

Medford filed its written response on January 13, 2003 which (1) included a log which listed the dates of documentary communications between Medford and its counsel, without any further information, (2) reported that Medford on January 10, 2003 had provided Student with the documents responsive to document request # 6 and had provided answers to interrogatories ## 1 through 9, and (3) objected to producing any documents located in individual employees’ own files. Student filed a reply on January 14, 2003.

I addressed this second Motion to Compel through a Ruling dated January 15, 2003, which concluded that (1) the discovery log provided by Medford was not complete and did not respond to the Ruling of December 10, 2002, (2) with respect to document request # 6, Medford had failed to provide attendance records of ten named persons (each for a particular period of time) and had failed to provide any records of attendance of educators who worked in Student’s summer programs in 2000, 2001 or 2002, (3) records within an individual Medford employee’s files (which files may be maintained by the individual employee separate from the Student’s records) are within the control of Medford and therefore may be discoverable, and (4) it appears self-evident from interrogatory # 4 and Medford’s response to it that Medford has not provided the requested information concerning the absences of educators and the use of substitutes. The December 10 th Ruling directed Medford to provide a complete discovery log and to provide the missing discovery information and documents to Student no later than January 21, 2003 .

On January 17, 2003, Student filed his third Motion to Compel Production of Documents and Answers to Interrogatories , stating that (1) Medford had provided some but not all of Student’s records, and (2) Medford had not provided a complete response to interrogatories ## 5, 13 and 14.

I addressed this third Motion to Compel through a Ruling dated January 17, 2003, which concluded that (1) Medford must provide Student with a copy of all student records not previously provided to Student, (2) it is self-evident that Medford had not provided a complete response to interrogatories # 5 and 14, and (3) Medford’s answer to interrogatory # 13 was fully responsive. The Ruling directed Medford to provide the missing discovery information and documents to Student no later than January 22, 2003 .

The January 17, 2003 Ruling also noted, with concern, that this Ruling was the third time that Medford was being ordered to respond to discovery requests; reminded Medford of the importance of complying with discovery orders; and noted that, pursuant to 801 CMR 1.01(8)(i), sanctions may be imposed by a Hearing Officer for failure to comply with a discovery order.

On January 22, 2003, Student filed a Motion for Discovery Sanctions , alleging that Medford had failed to comply with the deadline of January 21, 2003 (contained within the January 15, 2003 Ruling) in that Medford had produced neither the discovery log nor any other information or document required by the January 15 th Ruling. Essentially, Student asked that I render a judgment in favor of Student by default on all substantive matters in dispute.

On January 23, 2003, Medford filed a written response in opposition to Student’s Motion for Sanctions and in further response to Student’s Request for Production of Documents and Answers to Interrogatories. In its response, Medford provided the requisite discovery log, and stated that (1) it is in the process of trying to locate any additional attendance records responsive to document request # 6, and (2) it has inquired of the Medford staff who are Student’s service providers with respect to documents maintained in their individual files, “[c]ertain staff have indicated that they have no such documents”, and “Medford is awaiting responses from the balance.”

On January 23, 2003, Student filed a Second Motion for Discovery Sanctions , alleging that Medford had failed to comply with the deadline of January 22, 2003 (contained within the January 17, 2003 Ruling). Specifically, Student explained that the Hearing Officer’s Ruling had directed Medford to provide complete answers to interrogatories ## 5 and 14, and that Medford had not provided any of this information to Student.

As a result of a conference call with the Hearing Officer and parties on January 23, 2003 and with permission from the Hearing Officer, Student filed an Alternative Motion for Discovery Sanctions at 9:00 AM on January 24, 2003, and at the suggestion of the Hearing Officer filed a Summery of Disputed Discovery Requests by Date also at 9:00 AM on January 24, 2003.

At the suggestion of the Hearing Officer during the conference call, Medford filed an affidavit of counsel at 9:00 AM on January 24, 2003. Essentially, the affidavit states that Medford has made “diligent and good faith efforts” to comply with the discovery requests, but that “certain of the information requested is not readily obtainable that would allow it to be served by the dates set forth by the BSEA.” Similarly, the affidavit states that certain information “is not readily available given the responsibilities that the administrative staff have to the other special education students and their families during the course of a typical school day.”

On January 24, 2003 at 9:00 AM, Medford also filed attendance information for school staff for the summer of 2001 and the summer of 2002, and indicated that it was continuing its search for attendance records for the summer of 2000. This information was provided in response to document request # 6.

During the January 23 rd conference call, the Motion Hearing was scheduled regarding the three Motions for Sanctions , which Hearing took place by telephone at 9:30 AM on January 24, 2003. During the Motion Hearing, the Hearing Officer advised the parties, over the objection of Student, that he would keep open the record regarding these Motions until 5:00 PM on January 27, 2003 and would consider any additional arguments, production of discovery or other information received by that date.

On January 27, 2003, Medford filed attendance records of seven staff, as well as information regarding attendance of school staff who provided services to Student during the summer of 2000. On the same dated, Medford also filed a copy of treatment notes from Student’s current speech-language pathologist, and stated that Student’s former speech-language pathologist does not have any records related to Student and that Medford continues to inquire of other available staff regarding records in their possession.

Instances of Non-Compliance

A. Timely objections to discovery requests .

Rule 5B of the Hearing Rules for Special Education Appeals (hereafter, BSEA Hearing Rules) provides that a party may, within five days of receiving a discovery request, file with the Hearing Officer objections to the discovery request or move for a protective order. Student filed a Request for Production of Documents and Interrogatories dated October 28, 2002. Medford filed its Objections and Motion for Protective Order , dated November 22, 2003, thereby failing to comply with the timelines contained within Rule 5B.

B. Agreed-upon deadline of December 23, 2002 .

Pursuant to BSEA Hearing Rule 5D, a party has thirty days to respond to a discovery request unless the Hearing Officer establishes a different time period. At the request of Medford, the parties agreed that Medford would provide certain discovery materials and information in response to this request by December 23, 2002 rather than the thirty-day time period established by the BSEA Hearing Rules.

Medford failed to meet this December 23 rd deadline with respect to the following items and has not objected to or sought a protective order regarding any of these items:

1. Document requests ## 1 and 2. The requested resumes and employment applications were provided for some, but not all, of Student’s educators by December 23, 2002. Several additional resumes and applications were provided on January 10, 2003.

2. Document request # 6. Medford has provided the requested information, as explained in part D2 below, but none of the requested information was provided by December 23, 2002.

3. Interrogatories ## 1, 4 and 5. No responsive answers were provided by December 23, 2002. To date, Medford has not provided a complete response to interrogatories # 4 and 5, and has not indicated when it would be able to do so.

4. Interrogatories ## 3, 6, 7, 8 and 9. Medford did respond to these interrogatories but not until January 10, 2003.

C. Deadline of January 10, 2003, imposed by Hearing Officer’s Ruling of December 10, 2002 .

Medford failed to meet the January 10, 2003 deadline with respect to the following items:

1. The discovery log. On January 13, 2003, Medford provided a list of dates of communications between Medford and its counsel. This was an incomplete response which was not corrected until January 23, 2003.

2. Interrogatory # 14. To date, Medford has not provided a complete response to this interrogatory as required by the December 10 th Ruling, and has not indicated when it would be able to do so.

D. Deadline of January 21, 2003, imposed by Hearing Officer’s Ruling of January 15, 2003 .

Medford failed to meet the January 21, 2003 deadline with respect to the following items:

1. The discovery log. The January 15 th Ruling directed Medford to provide a complete discovery log. The requisite discovery log was provided on January 23, 2003.

2. Document request # 6. The January 15 th Ruling directed Medford to provide attendance records of ten named persons (each for a particular period of time) and records of attendance of educators who worked in Student’s summer programs in 2000, 2001 or 2002. Medford responded on January 23, 2004 that it wrote that it was in the process of trying to locate any additional attendance records responsive to document request # 6. On January 24, 2003, Medford provided attendance information regarding staff in the summer programs during 2001 and 2002. On January 27, 2003, Medford provided attendance sheets for seven staff and attendance information regarding staff in the summer programs during 2000. I also note that Medford has never filed an objection (or requested a protective order) with respect to document request # 6.

3. Interrogatory # 4. To date, Medford has not provided the information which was requested in this interrogatory and required by the January 15 th Ruling, and has not indicated when it would be able to do so. Of all the discovery requests, this one may be the one most burdensome and difficult for Medford to respond to fully as it requires information on a daily basis regarding the adult-to-student ratio in Student’s classroom during the past three school years. Yet, Medford has never filed an objection (or requested a protective order) with respect to this interrogatory.

4. Records within an individual Medford employee’s files. The January 15 th Ruling directed Medford to provide these records. Medford first responded on January 23, 2003 when it wrote that it has inquired of the Medford staff who are Student’s service providers with respect to documents maintained in their individual files, “[c]ertain staff have indicated that they have no such documents” and “Medford is awaiting responses from the balance.” On January 27, 2003, Medford filed a copy of treatment notes from Student’s current speech-language pathologist, and stated that Student’s former speech-language pathologist does not have any records related to Student and that Medford continues to inquire of other available staff regarding records in their possession.

E. Deadline of January 22, 2003, imposed by Hearing Officer’s Ruling of January 17, 2002 .

Medford failed to meet the January 22, 2003 deadline with respect to the following items:

1. All student records. To date, Medford has not provided a complete copy of all Student’s records as required by the January 17 th Ruling (or explained that the records provided are complete) and has not indicated when it would be able to do so.

2. Interrogatories ## 5 and 14. To date, Medford has not provided a complete response to these interrogatories as required by the January 17 th Ruling and has not indicated when it would be able to do so. I also note that Medford has never filed an objection (or requested a protective order) with respect to interrogatory # 5.

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).2 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.3

As explained above, there have been three Rulings by this Hearing Officer, each directing Medford to provide certain discovery by a particular date. Medford has failed to comply in a timely manner with two parts of the first Ruling and with each part of the second and third Rulings. Also, the third Ruling noted, with concern, that this was the third time that Medford was being ordered to respond to discovery requests, reminded Medford of the importance of complying with discovery orders, and advised Medford that sanctions may be imposed by a Hearing Officer for failure to comply with a discovery order pursuant to 801 CMR 1.01(8)(i).

In addition to its failure to comply with the substance of the three discovery orders, Medford allowed each discovery deadline to come and go without filing anything with the Hearing Officer, essentially ignoring the three Rulings. Medford has declined to ask the Hearing Officer for additional time to comply with any of the Rulings nor has Medford provided a date by which it would comply.

I also note Medford’s failure to file in a timely manner its Objections and Motion for Protective Order. Similarly, I note Medford’s failure to provide discovery by a date (December 23 ,2002), which Medford sought and to which Student agreed, in order to provide Medford more time than the thirty days normally allowed pursuant to the BSEA Hearing Rules.

These additional instances of non-compliance become relevant because, when combined with the failure to comply with the Hearing Officer’s three discovery Rulings, they reflect a repetitive and consistent pattern of disregard for all of the discovery deadlines in this dispute.

Once it becomes apparent that a party cannot be relied upon to meet discovery deadlines, including multiple deadlines established by a Hearing Officer’s rulings, there is little incentive for the opposing party to request or the Hearing Officer to set additional discovery deadlines, and one turns to sanctions as the only available recourse to remedy the situation.

In the context of the present dispute, discovery sanctions serve two purposes. First, with respect to Student’s claims for compensatory education (and the factual bases for these claims), Student has been denied information important to the prosecution of his claims. Student cannot be expected to be able to determine the precise nature and extent of what services were actually provided, the staffing that in fact occurred or the credentials of the staff who provided services to Student without the requested information. Discovery sanctions seek to make up for the failure of Medford to make this information available to Student.

Second, sanctions are necessary in light of Medford’s disregard of discovery deadlines, including all three orders of this Hearing Officer. Medford’s repeatedly and consistently ignoring deadlines undercuts the integrity and viability of the BSEA dispute resolution process. To allow these violations to proceed without a substantial sanction would be to allow Medford to ignore explicit BSEA orders with impunity.

In the words of the First Circuit Court of Appeals,
the trial judge has an independent responsibility to enforce the directives he has laid down for the case. . . . If he or she sets a reasonable due date, parties should not be allowed casually to flout it or painlessly to escape the foreseeable consequences of noncompliance.4

As most recently articulated in its January 23 and 24, 2003 responses and the affidavit of its counsel, Medford’s only defense has been to note the time-consuming nature of obtaining some of the requested information and then to explain that Medford has been attempting to obtain the information but has not yet been able to complete the task.

Clearly, Medford cannot be asked to do the impossible, and completion of a diligent and timely search may be sufficient even if it does not yield the desired result. But, there is an important distinction between Medford’s continuing to seek to locate and provide the information, and the standard of inability to comply. As the United States Supreme Court has explained, a party may be excused from compliance with a court’s order where failure to comply “was due to inability fostered neither by its own conduct nor by circumstances within its control”.5 Medford has offered no explanation for its actions that would satisfy this “inability” standard. And, Medford has offered no justification for allowing three deadlines, established by orders of this Hearing Officer, to come and go without seeking additional time, notifying the Hearing Officer of its anticipated difficulty in compliance, offering to comply within an additional specific period of time and/or otherwise seeking to ameliorate the violations.

For these reasons, I conclude that Medford has violated BSEA discovery orders without good cause and that sanctions are warranted. I now consider what sanctions should be ordered.

In his first and second Motions for Discovery Sanctions , Student has requested that the Hearing Officer issue a judgment against Medford with respect to each part of its Amended Request for Hearing . Essentially, this sanction would result in an order for all special education and related services sought by parents.

After a telephone conference with the Hearing Officer and with permission of the Hearing Officer, Student filed an Alternative Motion for Discovery Sanctions in which he continued to press for a judgment on the merits as the appropriate remedy, but, in the alternative, proposed that the Hearing Officer order certain evidentiary sanctions related to issues in dispute and also order Medford to produce certain privileged or protected documents.

I will first address Student’s request for a judgment on the merits. In support of his position, Student cites to a number of Massachusetts judicial decisions relevant to a court’s issuing a judgment on the merits as an appropriate response to discovery violations where, for example, there has been a pattern of persistent disregard of discovery orders and failure is not due to an inability to comply.6

Courts consider such a sanction pursuant to Rule 37(b) of the Massachusetts and Federal Rules of Civil Procedure. Rule 37(b) includes language in subsections (2)(A) and (B) which is substantially the same as the above-quoted language found within the regulations applicable to a BSEA Hearing Officer (801 CMR 1.01(8)(i)). But, Rule 37(b) further provides in subsection (2)(C) for the additional sanction of an order “rendering a judgment by default against the disobedient party.” There is no such comparable, additional language found within 801 CMR 1.01(8)(i), raising the question of whether a BSEA Hearing Officer may impose this ultimate sanction of judgment by default in response to non-compliance with discovery orders.

However, assuming, for purposes of this Ruling, that I have such authority to order judgment by default (either under the general language within 801 CMR 1.01(8)(i) or within the inherent authority of a hearing officer7 ), I decline to exercise it for the following reasons.

First, a fundamental responsibility of a BSEA Hearing Officer is to determine what educational services are appropriate to meet the individual special needs of the student and therefore should be provided. This can only be done after hearing evidence and argument both from the parents and from the school district. As a general rule, therefore, I am reluctant to determine what prospective educational services a student should receive solely on the basis of procedural violations and the parents’ desired result, particularly if there are alternative sanctions that may be appropriate.8

Second, although Medford’s non-compliance has been extensive (as explained above), Medford has nonetheless produced significant amounts of information in response to Student’s discovery requests, and Medford apparently continues to seek to provide additional information responsive to Student’s requests. In addition, Medford has indicated in many other ways during the course of this dispute its respect for and willingness to abide by BSEA rules and Hearing Officer’s orders. This case is far removed from a complete non-response to BSEA procedures, orders and rulings.

Third, all of the most significant discovery disputes relate to Student’s compensatory (rather than prospective) claims. Yet, Student’s proposed sanctions for judgment relate only to prospective services, except for two generally-worded sanctions that would find only that (1) Medford has failed to provide FAPE in the past and (2) Student is entitled to compensatory services for all educational services he was denied. These two proposed compensatory sanctions are not particularly meaningful because they do not describe the extent of the alleged failure to provide FAPE, and anything more than a de minimis past failure to provide FAPE is likely to result in my ordering at least some compensatory services.

Fourth, for the reasons explained below, I find that there are evidentiary sanctions, which are less severe than judgment on the merits, that appropriately address Medford’s non-compliance.

I now turn to Student’s proposed alternative sanctions. Student’s first proposed alternative sanction would have me order Medford immediately to produce unredacted copies of all documents that Medford has withheld on the grounds of attorney-client privilege and/or attorney work-product doctrine. Student does not explain the rationale for such a sanction which would appear to violate basic principles of privilege, nor am I aware of any rationale or authority that would support such an order. For this reason, I decline to order this proposed sanction.

Each of the remaining five proposed alternative sanctions relate to testimony or evidence. One of the five relates to what occurred during the June 2002 Team meeting. I decline to order this sanction because the evidence precluded may be relevant to my determination of Student’s prospective services and because none of my three discovery Rulings addressed Medford’s alleged failure to provide information regarding this meeting.

I am persuaded that the remaining four proposed alternative sanctions are appropriate in that they are responsive to Medford’s failure to provide in a timely manner important information to Student which had been ordered. These sanctions are a measured response to Medford’s consistent disregard of BSEA discovery orders.9

Finally, I note that in his first Motion for Discovery Sanctions , Student requests an award of attorneys’ fees and costs associated with the preparation of this Motion and the Student’s second Motion to Compel . As explained in a Ruling in another matter, I do not have the authority to award attorneys’ fees and costs, and therefore decline to do so in this case.10

Order

For the above-stated reasons, the following orders are issued in this matter:

1. Any facts proffered by the Parents at the BSEA Hearing with respect to the attendance records of the individuals identified in the Student’s Second Motion to Compel and with respect to the attendance records of all educators who worked with the Student in his summer programs in 2000, 2001 or 2002, even if proffered only through oral testimony of the parents or other witnesses called by the Parents, shall be established conclusively against Medford.

2. Medford shall not be permitted to adduce any evidence at the Hearing with respect to the attendance records of the individuals identified in the Student’s Second Motion to Compel and with respect to the attendance records of all educators who worked with the Student in his summer programs in 2000, 2001 or 2002, including through its own witnesses and submissions of documents or through cross-examination of the Parents’ witnesses.

3. Any facts proffered by the Parents at the Hearing with respect to the adult-to-student ratio in Student’s classroom on school days in the 2000-2001, 2001-2002 and 2002-2003 school years and summer programs, the absence of teachers and/or paraprofessionals in the Student’s program on school days in the 2000-2001, 2001-2002 and 2002-2003 school years and summer programs, the use of substitute teachers and/or paraprofessionals in the Student’s program on school days in the 2000-2001, 2001-2002 and 2002-2003 school years and summer programs, and the training and credentials of such substitutes, even if those facts are proffered only through oral testimony, shall be established conclusively against Medford.

4. Medford shall not be permitted to adduce any evidence at the Hearing with respect to the adult-to-student ratio in Student’s classroom, the absence of teachers and/or paraprofessionals in the Student’s program, the use of substitute teachers and/or paraprofessionals in the Students’ program, and the training and credentials of such substitutes in the 2000-2001, 2001-2002 and 2002-2003 school years and summer programs, including through Medford’s own witnesses and submissions of documents or through the cross-examination of the Parents’ witnesses.

By the Hearing Officer,

_________________

William Crane

Dated: January 28, 2003


1

Two additional attorneys from the same law firm have recently entered their appearance.


2

These regulations have been made applicable to BSEA proceedings pursuant to 603 CMR 28.08(5)(b).


3

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).


4

Legault v. Zambarano , 105 F.3d 24 (1st Cir. 1997). See also John’s Insulation v. L. Addison & Associates , 156 F.3d 101 (1st Cir. 1998) (“It is axiomatic that a party may not ignore a district court order with impunity”).


5

Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers , 357 U.S. 197, 211 (1958).


6

E.g., Gos v. Brownstein , 403 Mass. 252 (1988); AT&T Universal Card Services Corp. v. Reynolds , 1996 WL 748083 (Mass. App. Div. 1996). See also John’s Insulation v. L. Addison & Associates , 156 F.3d 101 (1st Cir. 1998) (dismissal may be an appropriate sanction “where a noncompliant litigant has manifested a disregard for orders of the court and been suitably forewarned of the consequences of continued intransigence”).


7

Cf. Gos v. Brownstein , 403 Mass. 252 (1988) (dismissal as a result of failure to obey a discovery order may be considered under the “court’s inherent power to manage the case”).


8

The following language from a First Circuit Court of Appeals decision is instructive:

Dismissal with prejudice is a harsh sanction, which runs counter to our strong policy favoring the disposition of cases on the merits. While the most severe sanction of dismissal must be available not merely to penalize egregious conduct but also to deter such conduct, fairness requires that some limits be placed on its use. In determining whether conduct is sufficiently serious to warrant the harsh action of dismissal, the court must consider all of the factors involved. A court is not necessarily required to take less severe action before imposing the sanction of dismissal, but dismissal should be employed only if the district court has determined that it could not fashion an equally effective but less drastic remedy.

Velazquez-Rivera v. Sea-Land Service, Inc., 920 F.2d 1072 ( 1st Cir. 1990) (citations and internal quotation marks omitted).


9

I understand that in adopting several of Student’s proposed sanctions, I may have eliminated Medford’s ability to present essential proof necessary to prevail on some or all of the compensatory claims. But see Atlas Tack Corp. v. Donabed , 47 Mass. App. Ct. 221, 224 (1999) (a party “cannot complain of the harshness of a result which it could have avoided”).


10

In Re Rockport Public Schools , BSEA # 01-4954, 8 MSER 1 (SEA MA 2002).


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