COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
________________________
In Re: Nashoba RSD v. Student
BSEA No. 24-15692
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RULINGS ON SEVERAL DISCOVERY MOTIONS
On June 28, 2024, the Nashoba Regional School District (Nashoba or District) filed the above-entitled request for hearing in which it sought a determination by the Bureau of Special Education Appeals (BSEA) that, in order to receive a free, appropriate public education, (FAPE), Student requires placement in an out-of-district, day placement, specifically, the Manville School (which, at all relevant times, has been the only such program to accept Student).
The hearing request was assigned “accelerated” status and a hearing was scheduled for July 29, 2024. At the request of Parent, and over the District’s objections, the hearing has been postponed on three occasions for good cause, to August 1 and 5, 2024 to September 6 and 7, 2024, and to the current dates of October 8, 10, and 11, 2024, with additional dates to accommodate witnesses to be provided upon request, if necessary. The parties have been advised that such postponement operates to remove the matter from the “accelerated” track.
Parent has made a total of two requests for production of documents directed to both Nashoba and the Keystone Collaborative (Student’s current placement) and has filed two identical Motions to Compel such production. In addition, through former counsel, Parent filed a Motion for Accelerated Discovery. The above-entitled Ruling addresses Parent’s Motions as well as Nashoba’s Motion for Protective Order.
Parent’s Motion for Accelerated Discovery
On July 17, 2024, Parent, via former counsel,[1] served Nashoba with its First Request for Production of Documents. On the same date, Parent’s then-counsel filed a Motion for an Accelerated Discovery Schedule, noting that the deadline for filing exhibits for hearing would be on July 25, 2024. On July 18, 2024, Nashoba filed its Opposition to Parent’s Motion, stating that certain records were not relevant to the “accelerated” portions of the matter and, further, that Parent’s Motion was untimely.
As stated above, the hearing in this matter has been postponed, and removed from the “accelerated” track. As such, Parent’s Motion for Accelerated Discovery is DENIED as moot, and the District’s response thereto was due on or before August 16, 2024.
Nashoba ‘s Motion for Protective Order Relative to Parent’s First Request for Production of Documents
On July 26, 2024, Nashoba filed a Motion for Protective Order Relative to Parent’s First Request for Production of Documents in which it sought a protective order as to two of Parent’s requests. Specifically, Nashoba objected to Request No. 3, which sought “[a]ny and all documents relative to student’s educational program/placement decision making, including but not limited to therapy notes, health records, clinical notes/records, social/emotional reports,” and Request No. 4, which sought “ [c]opies of all written communications and all notes documenting oral communications between the District and crisis intervention services, mobile crisis and/or law enforcement concerning student from his time of enrollment to present.”
As grounds for these objections, Nashoba stated that it should not be required to provide documents “significantly outside of the [two-year] statutory limitations period,” and, further, objected to providing personal notes maintained by individual employees. Nonetheless, Nashoba agreed to provide these documents “to the extent that they exist, they are not personal notes, and within a two-year statute of limitations timeframe.”
Parent appears not to have objected to this Motion for Protective Order, which, therefore, is GRANTED as to Requests No. 3 and 4.
Parent’s Request for Education Records, Requests for Production of Documents and Motion to Compel As Applied to Nashoba
Background
In an email to District counsel dated July 24, 2024, Parent, who as of this date was proceeding pro se, requested Student’s complete student record. (This request appears to be separate and distinct from the discovery request filed by Parent’s then-counsel on July 17, 2024, as referenced above.)[2] In this pro se request, Parent sought the following:
[A} complete copy of my child’s student record (from Nashoba and separately from Keystone), in electronic form, including but not limited to:
- All incident reports;
- All restraint documentation
- A complete copy of any/all placement monitoring agreement(s) between the District and Keystone regarding my child;
- And a complete copy of any/all complete digital access log[s] from any IEP management software used by Nashoba and/or Keystone;
- All written communications with any out-of-district school regarding my child, expressly including, but not limited to the
-Any and all attachments to any and all email(s) sent to/received from any out of district school regarding my child;
-A complete copy of the full email chain(s) between Nashoba and Manville, expressly including but not limited to the complete and full email chain for which only a partial 6/27/24 email time stamped 6:26 am, in that email chain has been provided to me (the portion of that email chain I have received (this week, for the first time) is screenshot below, but I request a COMPLETE copy of the FULL email chain(s) between Nashoba and Manville regarding my child. (Emphasis in original)
On July 29, 2024, Parent reiterated this request, verbatim, in the form of Parent’s Second Request for Production of Documents to Nashoba Regional School District.
On August 16, 2024, thirteen days after serving his second request for production, Parent filed a Motion to Compel Nashoba Regional School District to Produce all Records. Parent’s Motion stated that he had requested the above-referenced documents in an email dated July 24, 2024, but had not received them, and sought an order directing Nashoba and Keystone Collaborative[3] to produce same, in electronic form.
On August 19, 2024, Nashoba responded to Parent’s first and second discovery requests. With respect to the first request, Nashoba stated, that it had previously provided the documents sought in both in its exhibit binder, which was filed physically on July 22, 2024 and electronically on July 24, 2024.[4] As to the second request, Nashoba stated that it had provided Parent with all information requested as well as some additional documents. Lastly, the District’s Response stated that “to the best of its knowledge, the District believes that it has provided all records responsive to these requests in its possession. If you believe that it has not done so, please reasonably identify the records and it will provide them. The District will supplement if it identifies any other records after this date.”
On the same date that it served Parent with the above-referenced Response, (August 19, 2024), Nashoba filed an Opposition to Parent’s Motion to Compel. Nashoba provided several grounds for its Opposition. First, Nashoba argued that said Motion, filed on August 16, 2024, was premature because the thirty-day discovery deadline would have been August 23 and August 28, 2024, respectively, for the two requests; moreover, the District had produced the documents requested on August 19, 2024, well within the thirty-day discovery deadline. Second, Parent had not clarified the documents that he believed were not provided. Lastly, the District argued that if Parent could provide such clarification, it would make reasonable efforts to search for and provide such records. Links to electronic versions of the responsive documents were provided in the Response to Discovery attached to the Opposition.
Subsequently, the parties exchanged multiple emails regarding electronic and physical delivery of documents. Parent filed photos of boxes filled with multiple documents that the District had caused to be delivered to Parent’s home, which Parent found to be voluminous and difficult to organize. In an email dated August 28, 2024, counsel for Nashoba reported the following:
As outlined in my response to the Motion to Compel, I attached the response to discovery showing the links we have provided with the records electronically. The records have been sent to [Parent] multiple times and a physical copy has been sent. We are not required to do more…If [Parent] feels that particular records were not provided, he should just reasonably identify it…
On August 29, 2024, Parent filed a second Motion to Compel which was identical to the original Motion. In a letter filed the same date, the District stated that it reiterated its Opposition of August 23, 2024.
To the knowledge of this Hearing Officer, a Parent has not informed the District of specific documents that he believes are missing.
Discussion
Rule V of the Hearing Rules for Special Education Appeals (Hearing Rules) governs informal and formal exchange of information by parties. Rule V.B.1 addresses requests for documents as follows:
- Requests for Documents. Any party may request any other party to produce or make available for inspection or copying any documents or tangible things not privileged, not supplied previously, and which are in the possession, custody, or control of the party upon whom the request is made. (A party may request documents from a non-party through a subpoena duces tecum duly issued by the [BSEA] and those documents may be delivered to the office of the party requesting the documents prior to the hearing date. See Rule VIII B.)
Rule V.B. of the Hearing Rules further provides that the “party upon whom the request is served shall respond within a period of thirty (30) calendar days unless a shorter or longer period of time is established by the Hearing Officer.” If a party who receives a request for discovery objects to providing some or all of the information, that party “may, within ten (10) calendar days of service of the request, file with the Hearing Officer objections to the request or move for a protective order.”
Pursuant to the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01 at 1.01(8)(i),[5] a party may file a motion to compel discovery “if a discovery request is not honored, or only partially honored…If the motion is granted, and the other [p]arty fails without good cause to obey an order to provide or permit discovery, the Presiding Officer…may make orders in regard to the failure as are just…”
In the instant case, there is no dispute that Nashoba provided Parent with voluminous amounts of documentation, in both electronic and physical form, within the requisite timelines. Further, Nashoba has reported, via counsel, that it has fully complied with Parent’s document requests, and that it would seek to locate any additional documents that Parent believes to be missing, provided Parent identifies such documents. To this hearing officer’s knowledge, Parent has not done so.
Based on the foregoing, Parent’s Motions to Compel of August 16 and 29, 2024 are DENIED. If, in the future, Parent is able to identify specific documents that he believes were not provided in response to his request, either from Nashoba or Keystone, he shall so inform Nashoba.
Parent’s Motion to Compel As Applied to Keystone Collaborative
Parent’s Requests for Production of Documents of July 24 and 29, 2024, sought documents created by Keystone Collaborative in addition to those held by Nashoba. In Nashoba’s above-referenced Response of August 19, 2024, the District reported that it had provided all documents responsive to Parent’s request, including those created and/or held by Keystone. On August 27, 2024, Keystone filed an Opposition to Parent’s Motion to Compel Production of Records and Further Postponement of the Hearing in which it stated that (1) as a non-party, it could not be compelled to produce records, and (2) on July 29, 2024, it had provided Nashoba with a complete copy of Student’s record at Keystone via electronic transmission. An affidavit to this effect, signed by Keystone’s Executive Director, was attached to the Opposition. Based on the foregoing, Parent’s Motion to Compel is DENIED as to Keystone Collaborative.
CONCLUSION AND ORDER
Parent’s Motion for Accelerated Discovery is DENIED. Parent’s Motion to Compel is DENIED as to Nashoba and Keystone Collaborative. Nashoba’s Motion for Protective Order is GRANTED.
By the Hearing Officer,
/s/ Sara Berman
______________________________
Sara Berman
Date: September 18, 2024
[1] Parent’s counsel filed a Notice of Withdrawal of Representation on July 22, 2024. Parent has unsuccessfully sought successor counsel, and has been proceeding pro se, with limited attorney representation for a pre-hearing conference and conference call.
[2] The request for records set forth below was one of several notifications to/requests of the District contained in the email of July 24, 2024. This email also included a notice of Parent’s intent to enforce Student’s “stay put” rights at his current placement at Keystone Collaborative, a withdrawal of consent for the District to send packets to out-of-district day placements (except for Lighthouse) and a request to send referral packets to appropriate residential schools, “in light of the fact that there are no day placements within a one-hour drive from my home that can implement my child’s IEP as written,” Parent further requested an functional behavioral assessment (FBA) of Student, an independent neuropsychological evaluation, consistent maintenance and weekly sharing with Parent of “ABC data logs” regarding “maladaptive behaviors,” and immediate Team meeting to develop an updated IEP and to address goals, objectives and placement..
[3] Parent has separately filed a Motion to [Implead] Keystone collaborative, a ruling on which is pending. Meanwhile, Keystone has filed a separate Opposition to the Motion to Compel, which is addressed in this ruling.
[4]Nashoba responded that Parent’s Request No. 4, which requested documentation of certain communications between the District and “crisis intervention services, mobile crisis, and/or law enforcement from the time of enrollment to the present, is the subject of an outstanding protective order; however, the District has no responsive records for the past two years as Keystone Collaborative (Student’s current placement) has not had to contact any of these services.
[5] BSEA hearings are governed by the Standard Rules unless explicitly modified by the Hearing Rules for Special Education Appeals. Because the BSEA Hearing Rules do not specifically address motions to compel, the BSEA relies on the Standard Rules when addressing such motions. Additionally, the BSEA may be guided by Rule 37 of the Federal Rules of Civil Procedure.