COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Parent and Student v. Springfield Public Schools
BSEA #2309351
RULING ON MOTIONS FOR PROTECTIVE ORDERS
This matter comes before the Hearing Officer on Parent’s Emergency Protective Order to Stop the District’s Unapproved Deposition of Mr. Chris Kennedy and Motion for Show Cause[1](Parent’s Motion) filed with the BSEA on September 11, 2023[2], seeking an Order to stop an alleged deposition of Mr. Kennedy[3] purportedly scheduled for September 12, 2023. This matter also comes before the Hearing Officer on Springfield Public Schools’ Motion for Protective Order Relative to Parent and Student’s Subpoena Requests (District’s Motion), filed with the BSEA on September 12, 2023, seeking a protective order with regard to two subpoenas requested by Parent on September 11, 2023, particularly those issued to Ms. Aria Coburn and Ms. Melina Brodecki.
For the reasons articulated below, Parent’s Motion is DENIED, and the District’s Motion is ALLOWED.
RELEVANT PROCEDURAL HISTORY[4]
On July 24, 2023, I issued a Ruling on District’s Unopposed Motion to Postpone Hearing (Ruling), that, among other things rescheduled the Hearing in this matter for good cause (i.e., the unavailability of a potential witness and to provide sufficient time to address pending and potential Motions in this matter which were noted in footnote 1 to include “potential witness subpoenas and potential Motions to Quash [said potential] witness subpoenas). The Ruling also required any testimony subpoenas of witnesses from any Party to be filed by the close of the business day on September 6, 2023 (Order 5(d))[5].
On September 5, 2023, I issued a Ruling on Multiple Motions, wherein, among other things, I reaffirmed and clarified[6] the two issues for Hearing to be as follows:
- Whether Student was discriminated against or not provided with reasonable accommodations he was entitled to while attending the AIC College Steps programbetween May 2, 2021, and April 5, 2022, in violation of Section 504 of the Rehabilitation Act of 1973; and
- Whether Student was entitled to and provided with a licensed Biology and/or licensed special education teacher as a tutor to support Student in preparing to take the Biology MCAS between May 2, 2021, and April 5, 2022.
On September 6, 2023, the District requested the BSEA issue a testimony subpoena to Mr. Kennedy[7]. The requested testimony subpoena was so issued.
On September 11, 2023, Parent requested the BSEA issue a testimony subpoena to Ms. Coburn and Ms. Brodeki, noting that Ms. Coburn is the former Principal at the Springfield Renaissance School, but is no longer employed by the District. The only notation on this request as to who Ms. Brodeki is, is Parent’s inclusion of “Springfield Public Schools” after her name. The requested testimony subpoenas were so issued.
Also on September 11, 2023, Parent filed Parent’s Motion claiming that in contravention of the Hearing Rules pertaining to depositions, the District had scheduled a deposition of Mr. Kennedy for the following day, without the prior authorization of the Hearing Officer. Parent and Student requested that if the alleged deposition was allowed to proceed “then I request the District produce Dr. Morris this week for me to dispose (sic).” Parent’s Motion also requested an “emergency show cause hearing” as well as a hearing on Parent’s Motion. The “emergency show cause hearing” was sought in order to “have district’s (sic) to show cause why they attempted to mis-lead Mr. Kennedy into signing a disclosure of confidential information that the Hearing Officer did not request for the public hearing” as well as to determine “why the district is doing questionable things”. The hearing on Parent’s Motion was sought “if more information was needed”.
On September 12, 2023, the District filed the District’s Motion seeking a protective order for the subpoenas issued to Ms. Coburn and Ms. Brodeki, as the request for their issuance was filed after the September 6, 2023, deadline established in the Ruling. The District also argued, with respect to Ms. Coburn, that she is not currently an employee of the District, and at no time did she have any “direct involvement with [Student] on the two issues for hearing” as Student last attended Renaissance High School in June 2019, which “precedes the time period relevant to this hearing by almost two years.” With regard to Ms. Brodeki, the District submits that Ms. Brodeki is an Assistive Technology specialist with the District whose only interaction with Student involves providing him with assistive technology devices under his IEPs. The District requests Parent provide an offer of proof with regard to this, if her subpoena is not otherwise quashed, as it is not clear to the District what relevance, if any, Ms. Brodeki has to the first issue for hearing. The District further contends that she has no personal knowledge of the second issue for hearing, did not participate in the October 2021 mediation or any IEP Team meeting wherein this issue was “discussed or alleged to have been discussed”.
On September 14, 2023, the Parties participated in a Conference Call[8]. During this Call, the District denied that it had taken Mr. Kennedy’s deposition, but Parent advised she would not withdraw Parent Motion. The District reaffirmed it also sought to proceed with the District’s Motion. Both Parties further advised that they intended to file written objections within the timeframe of Rule VI(D) of the Hearing Rules (by September 18, 2023, for the District and September 19, 2023, for Parent).
On September 18, 2023, the District filed Springfield Public Schools’ Opposition to Parent and Student’s Emergency Protective Order to Stop the District’s Unapproved Deposition of Mr. Chris Kennedy and Motion for Show Cause (District’s Opposition), advising that it “has not and has not (sic) intention of taking the deposition of Mr. Chris Kennedy” as is alleged[9]. The District attached a Declaration of Alisia St. Florian and a Declaration of Melinda M. Phelps, both of which were signed under the pains and penalties of perjury, in support of the District Opposition.
To date Parent has not filed any written objection to the District’s Motion or otherwise sought an extension of time to file the same. Although Parent requested a Hearing on Parent’s Motion, the District has not requested a Hearing on the District’s Motion. As neither testimony nor oral argument would advance my understanding of the issues involved, I issue this Ruling without a Hearing, pursuant to BSEA Hearing Rule VII(D).
LEGAL STANDARD
As I previously set forth in my September 5, 2023, Ruling on Multiple Motions, the standard for admissibility of evidence in BSEA proceedings is relevancy and reliability[10]. Evidence presented during a hearing takes the form of written documents and oral sworn testimony. To ensure a witness will provide testimony during a due process hearing, parties can request that a testimony subpoena issue[11]. However, pursuant to Rule VII(C) of the Hearing Rules,
“A person receiving a subpoena may request that a Hearing Officer vacate or modify the subpoena. A Hearing Officer may so do upon a finding that the testimony … [is] not relevant to any matter in question or that the time or place specified for compliance … imposes an undue burden on the person subpoenaed”[12].
Rule V(B)(3) of the Hearing Rules also provides that, in certain circumstances, Parties may take testimony via a deposition of any witness, provided that Party has first filed a “written motion seeking approval from the Hearing Officer” with at least ten (10) calendar days’ notice to the other Party and provides the subject matter the witness will be asked to testify about, the time and place of taking the deposition, the name and address of the person before whom the deposition will take place and the reason why such deposition should be taken. Further, depositions are only allowed if the parties have agreed to submit the deposition in lieu of testimony at the Hearing or if there is substantial hardship for the witness to appear to testify at the Hearing, provided such testimony is relevant, material, not privileged and not discoverable by another means[13]. Additional requirements pertaining to depositions exist including that they will be taken before a person who has the authority to administer oaths, that the witness will be sworn, be able to be cross-examined, that objections must state the grounds for being made, that the testimony shall be reduced to writing, and signed and certified by the officer taking the deposition, unless waived, and shall be forwarded to the Hearing Officer for evidence in the matter[14].
APPLICATION OF LEGAL STANDARDS
Here, other than Parent’s unsupported and challenged allegation that the District took the deposition of Mr. Kennedy, no evidence exists that such a deposition was taken. Rather the evidence, consisting of the sworn statements of both Attorneys St. Florian and Phelps is wholly to the contrary[15]. As such, Parent’s Motion is DENIED with prejudice.
Parent’s request for a “show cause hearing” is also DENIED with prejudice. No grounds exist for there to be a “show cause hearing” prior to the Hearing on the merits. Should the issues Parent seeks to have addressed in the requested “show cause hearing” be relevant to the two issues for hearing in this matter, Parent can ask Mr. Kennedy about them and present her arguments during the hearing on the merits.
With regard to the District’s Motion, I agree that Parent failed to comply with the Ruling and untimely requested the subpoenas of Ms. Coburn and Ms. Brodeki. The deadline to request subpoenas was established in light of the September hearing dates that were still in place at the time Parent sought these subpoenas. However, although this procedural failure by Parent is sufficient grounds on its own to allow the District’s Motion, as the Hearing has now been postponed, I also consider the substantive arguments of the District in response to Parent’s requested subpoenas, so as to avoid unnecessary procedural requests and objections prior to the new hearing dates[16].
Although Parent was offered the chance to file an objection to the District’s Motion, as she had verbally advised that she would be doing, and Parent has been given ample opportunity to seek an extension of time to file such objection, Parent has not provided any objection, information, offer of proof, or other argument as to any relevant testimony that either Ms. Coburn or Ms. Brodeki could provide on the issues for hearing in this matter.
According to the District, Student last attended Renaissance High School well before the timeframe associated with both issues in this matter, and neither issue involves Student’s attendance at Renaissance High School. Thus, I do not find Ms. Coburn to be able to offer relevant evidence in this matter, and her subpoena is hereby vacated.
As for Ms. Brokeki, even if I were to find she has some limited knowledge or information to offer on the first issue for hearing, requiring Ms. Brodeki to appear at the Hearing and testify would be needlessly cumulative[17]. Evidentiary options other than requiring her to appear and present testimony exist to obtain the limited, if any, information Ms. Brodeki may have to offer on the first issue for hearing (including submission of written documents or the testimony of other relevant witnesses). As to the second issue, I find Ms. Brodeki’s testimony to be irrelevant given that her role within the district is unrelated to Biology MCAS tutoring. Ms. Brodeki’s subpoena is, therefore, also vacated and the District’s Motion is ALLOWED as to both Ms. Coburn and Ms. Brodeki.
ORDER
Parent’s Motion is DENIED with prejudice. District’s Motion is ALLOWED. The testimony subpoenas issued to Ms. Aria Coburn and Ms. Melina Brodeki are hereby vacated, accordingly
By the Hearing Officer,
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Date: September 28, 2023
[1] Motions are governed by the Rule VI of the Hearing Rules for Special Education Appeals (Hearing Rules). There is no mechanism for filing “emergency” Motions with the BSEA.
[2] Parent’s Motion is dated 5/11/23, but was received by the BSEA on September 11, 2023, and is deemed filed on this date.
[3] Mr. Kennedy has been identified by both Parties to be the Director of the AIC College Steps Program. He is not a party to this matter.
[4] The procedural history of this matter has been set forth in prior Rulings and not repeated here, unless relevant to the underlying Motions. Specifically, the Parties should refer to the Ruling on Challenge to Sufficiency of Hearing Request issued on April 18, 2023, the Ruling on Challenge to Sufficiency of Amended Hearing Request issued on May 16, 2023, the Ruling on Motions to Dismiss, the Ruling on Springfield Public Schools’ Motion to Recuse Hearing Officer issued on August 29, 2023 and the Ruling on Multiple Motions issued on September 5, 2023.
[5] Said July 24, 2023, Ruling was based on a July 14, 2023, Conference Call held with the Parties wherein, among other things, the Parties advised that one of the potential witnesses, Mr. Kennedy, had a pre-planned vacation scheduled for the then-Hearing dates of August 8 and 9, 2023. Further, the Parties discussed and agreed to establishing September 6, 2023, as the deadline for requesting testimony subpoenas of any witnesses so as to allow sufficient time for both Parties to object to any subpoenas requested by the other Party, and for such objection to be Ruled upon before the September 15, 2023, deadline to file exhibits and witness lists for the Hearing. During this Call, Parent advised that she intended to seek a subpoena of certain specific witnesses, which the District noted it would object to. Subsequently, on July 24, 2023, Parent did so request issuance of five testimony subpoenas, including to Mr. Kennedy, two of which were objected to by the District and thereafter quashed in my September 5, 2023, Ruling on Multiple Motions.
[6] These issues were first identified in a Ruling on Motions to Dismiss issued on June 12, 2023. The specific wording was then revised on June 28, 2023 and was further revised (as to the first issue only) on September 5, 2023.
[7] The District also requested the issuance of 2 additional testimony subpoenas that were objected to by Parent and Student, and ultimately withdrawn by the District. Neither of these subpoenas is relevant to this Ruling.
[8] The primary purpose of this Call was to discuss new Hearing dates based on Parent’s postponement request filed on September 13, 2023, due to illness. The Hearing was subsequently postponed for this reason and is now scheduled for October 20, 2023, and November 28, 2023.
[9] According to the District, Mr. Kennedy, who received witness testimony subpoenas from both the District and Parent, was interviewed via Zoom (but was not deposed) by Attorneys St. Florian and Phelps for witness preparation purposes. Mr. Kennedy also spoke with Parent for witness preparation purposes, and Parent confirmed she spoke with Mr. Kennedy for witness preparation purposes during the September 14, 2023, Conference Call.
[10] 603 CMR 28.08(5)(c) “[t]he Special Education Appeals hearing officer shall have the power and the duty to … receive and consider all relevant and reliable evidence”.
[11] BSEA Hearing Rule VII; see M.G.L. c. 30A §12 “In conducting adjudicatory proceedings, agencies shall issue, vacate, modify and enforce subpoenas in accordance with the following provisions: (1) Agencies shall have the power to issue subpoenas requiring the attendance and testimony of witnesses …”.
[12] See M.G.L. c. 30A §12(4) “Any witness summoned may petition the agency to vacate or modify a subpoena issued in its name…. After such investigation as the agency considers appropriate it may grant the petition in whole or part upon a finding that the testimony, … does not relate with reasonable directness to any matter in question, or that a subpoena for the attendance of a witness … is unreasonable or oppressive or has not been issued a reasonable period in advance of the time when the evidence is requested”.
[13] Id.
[14] Id.
[15] Further, had I concluded otherwise, the only available relief would have been to exclude the deposition testimony from evidence in the hearing on the merits. Parent’s requested relief of permission to depose Dr. Morris would have been inappropriate to order, for the very reasons Parent complains of in Parent’s Motion – none of the procedural requirements associated with pursuing a deposition of a witness in lieu of live hearing testimony has been followed by Parent with regard to Dr. Morris.
[16] Despite the limited issues in this matter, there is an extensive procedural history that has resulted in the issuance of at least 15 prior Rulings, many of which cover multiple Motions, for which written rulings are insisted upon even though, as with Parent’s Motion in this underlying Ruling, the Parties had already discussed the issue during a Conference Call and no remaining legal or substantive support existed. There is also an extensive litigation history between these Parties preceding this matter that I have referenced and detailed in prior Rulings.
[17] Rule IX(B)(4) of the Hearing Rules establishes as one of the duties of the Hearing Officer the obligation to “after consultation with the parties and consideration of the proposed evidence, place reasonable limits on the presentation of evidence to prevent undue delay, waste of time or needless presentation of cumulative evidence”.