In Re: Student v. Arlington Public Schools BSEA # 25-03543

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student v. Arlington Public Schools

BSEA #25-03543

RULING ON MULTIPLE MOTIONS

This matter comes before the Hearing Officer on the October 10, 2024 Arlington Public Schools’ Protective Order For Parents’ Request For Production Of Documents and Arlington Public Schools’ Protective Order For Parents’ Request For Interrogatories (together, Arlington’s Motion for Protective Order) in which the Arlington Public Schools (Arlington or the District) objected to several of Parents’ discovery requests. On October 13, 2024, Parents responded with Objection To Protective Order Motion Regarding Interrogatories and Objection To Protective Order On Discovery Request, asserting that their discovery requests were relevant and should be allowed.

On October 11, 2024, Parents filed Motion To Extend Relief, contending that, under the IDEA, their claims qualify for both exceptions to the statute of limitations, and, as a result, the “inclusion of the district’s violation of Child Find should extend through September of 2021 and be included in the determination of relief, should the hearing officer find in our favor on the question of a denial of a FAPE.” In response, the District filed Arlington Public Schools’ Response To Parents’ Motion, asserting that “Parents have not met their burden to show that they have met both prongs of the standard, nor does the fact that they received the Procedural Safeguards in November of 2022 allow them to ignore the nearly Twenty-Two Months that they were aware of their rights and chose not to act.”

On October 17, 2024, Parents filed Parents’ Protective Order For District’s Request For Production Of Documents and Parents’ Protective Order For District’s Request For Interrogatories (together, Parents’ Motion for Protective Order) in which Parents requested an “order protecting [them] from answering interrogatories [and producing documents] that will result in undue burden, expense, delay, and require it to disclose information protected by state and federal law and attorney-client privilege and work product doctrine.” Parents also objected “to requests that are overly broad, redundant, and burdensome, irrelevant and immaterial, and seek information not reasonably calculated to lead to the discovery of admissible evidence.” Arlington filed Arlington Public School’s Response To Parents’ Request For Protective Order [for Document Requests] and Arlington Public School’s Response To Parents’ Request For Protective Order [for Interrogatories] on October 18, 2024.

Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).

For the reasons set forth below, Arlington’s Motion for Protective Order is ALLOWED, in part. Parents’ Motion for Protective Order is ALLOWED, in part.

PROCEDURAL HISTORY AND RELEVANT FACTS[1]:

Student is a nine-year-old fourth grader currently enrolled at the Carroll School where she was placed unilaterally by Parents at the beginning of the 2024-2025 school year. She lives with her family in Arlington, Massachusetts. Student is diagnosed with dyslexia and type one diabetes.
Parents were approved to homeschool Student in August 2020. They received no information regarding the District’s Child Find obligations at that time.
Student first enrolled in Arlington Public Schools for first grade in the 2022-2023 school year.
During first grade, Student was identified by her classroom teacher as needing Tier 2 support, which she received.
In November 2022, concerned with Student’s “increasing difficulty with reading [], and the onset of school avoidance behaviors and psychosomatic complaints”, Parents initiated the special education evaluation process.
In the spring of 2023, the Team found Student eligible for special education and related services pursuant to the Disability Category of Specific Learning Disability (dyslexia). Parents rejected the initial IEP on the basis that it was not reasonably calculated or sufficient to provide their child with a FAPE.[2]
In March 2023, Parents filed a complaint with the Massachusetts Problem Resolution System (PRS # 8812). PRS subsequently issued a finding that determined the district did not comply with state and federal Child Find regulations.
At the same time, Student began working with a tutor specializing in the Orton-Gillingham approach to reading instruction
In the summer between her second and third grade (summer of 2023), Student was hospitalized and diagnosed with Type 1 Diabetes. The “diagnosis raised parental concerns for [Student’s] emotional regulation and overall mental health, in light of her pre-existing mental health struggles resulting from her increasing educational deficit.”
In the latter part of the 2023-2024 school year and Student’s third grade, Parents privately funded a comprehensive assessment, the results of which demonstrated lack of progress and new areas of vulnerability.
In the spring of 2024, Parents requested that the District place Student at the Carroll School. The District denied the request, and Parents subsequently unilaterally placed Student at the Carroll School.
The Carroll School is not approved by the Department of Elementary and Secondary Education. The Carroll School does not accept public funds from school districts.
On September 17, 2024, Parents filed a Hearing Request with the BSEA alleging procedural and substantive denials of a FAPE to Student since February 2023.
On September 30, 2024, I issued Ruling on Arlington Public Schools’ [Partial] Motion to Dismiss in this matter, dismissing certain claims and finding, in part that, the matter will proceed to Hearing on the issue of whether Arlington Public Schools violated Student’s rights under IDEA and MGL c. 71B by failing to find Student eligible prior to February 2023 and/or by failing to propose IEPs and placements during the period of February 2023 until the filing of the complaint that were/are reasonably calculated to provide Student with a FAPE.

LEGAL STANDARDS AND DISCUSSION:

Motion to Extend Relief

Legal Standards:

The IDEA’s statute of limitations states as follows:

“(C) Timeline for requesting hearing

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

(D) Exceptions to the timeline

The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to–

(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or

(ii) the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent.”[3]

With regard to the first exception, the Third Circuit has found that

“[i]n the absence of a showing of ‘misrepresentation’ akin to intent, deceit, or egregious misstatement, any plaintiff whose teachers first recommended behavioral programs or instructional steps short of formal special education might invoke the exception. Mere optimism in reports of a student’s progress would toll the statute of limitations. The allegations comprising a claim that a FAPE was denied or that Child Find obligations were not met would nearly always suffice to extend the timeframe beyond that dictated by the statute of limitations. This cannot be the intent of the regulation. Rather, we conclude that a rule demanding at least a school’s knowledge that its representations of a student’s progress or disability are untrue or inconsistent with the school’s own assessments best comports with the language and intent of the provisions. Therefore, we hold that in order to be excused from the statute of limitations based on § 1415(f)(3)(D)(i) because the school ‘specific[ally] misrepresent [ed] … that it had resolved the problem,’ plaintiffs must show that the school intentionally misled them or knowingly deceived them regarding their child’s progress.”[4]

With regard to the IDEA’s second exception to the two-year statute of limitations (stating that the statute of limitations does not apply if a district withheld “information from [Parents] that was required under this subchapter to be provided to [them]”[5]), the “required” information includes a notice of procedural safeguards that the school district must provide to parents at least once each year pursuant to 20 USC § 1415(d), as well as upon initial referral or parental request for evaluation, upon receipt of the first state complaint in the school year, upon receipt of the first due process complaint in the school year, in accordance with disciplinary procedures, and upon parental request.[6] The procedural safeguards notice must include a full explanation of IDEA procedural safeguards, including, but not limited to, the opportunity to present and resolve complaints through the due process complaint and state complaint procedures.[7]

Therefore, in order to meet the IDEA’s above-quoted part D(ii) exception to the statute of limitations, Parents must satisfy two requirements: first, that Arlington withheld information required to be provided under 20 USC § 1411 through § 1419, part B of the federal special education statute; and second, that “parent was prevented from requesting the [due process] hearing due to” Arlington’s withholding the required information.” Both prongs must be satisfied for the statute of limitations exception to apply. In considering this exception to the statute of limitations, Courts have found that failure to provide this notice of procedural safeguards implicates both requirements of this exception to statute of limitations, since the notice of procedural safeguards must, specifically, include information that advises Parents of their right to obtain a due process hearing and thereby contest a school district’s actions.[8] With regard to the statute of limitations,

“when a local educational agency delivers a copy of IDEA procedural safeguards to parents, the statutes of limitations for IDEA violations commence without disturbance. Regardless of whether parents later examine the text of these safeguards to acquire actual knowledge, that simple act suffices to impute upon them constructive knowledge of their various rights under the IDEA. Conversely, in the absence of some other source of IDEA information, a local educational agency’s withholding of procedural safeguards would act to prevent parents from requesting a due process hearing to administratively contest IDEA violations until such time as an intervening source apprised them of their rights.”[9]

Application of Legal Standards:

According to Parents, the District’s alleged violation of Child Find “should extend through September of 2021” as the facts in this case satisfy both exceptions to the two-year statute of limitations which would limit claims to September 2022.

Misrepresentation

Parents argue that the Arlington Public Schools 2021-2022 Handbook for Elementary Schools stated that “state law requires schools to meet the needs of students within the regular education program using instructional supports often referred to as Response to Intervention before considering a Special Education Evaluation,” and that the District “required that [Student] participate in tiered intervention for at least one year before the district could act upon our concerns or initiate an evaluation.” Arlington “provided misinformation that identification of child with specific learning disability (dyslexia) could only occur after a minimum of one year wait period even when parents have identified their child as a child with a suspected disability.” Moreover, Student’s

“scores on the screening assessment (DIBELS) were presented to us as benchmark data related to grade level progress. Her ‘significantly at risk’ scores were reported as ‘beginning’ and her ‘at risk’ scores were reported as ‘progressing.’ This terminology aligns with the definitions used in reports card and not with the terminology of the assessment tool (DIBELS). In misrepresenting the data, the district made the implicit claim that they were tracking her progress as part of the one-year wait to evaluate process.”

Parents’ argument relative to misrepresentation is tenuous at best. The language of the Student Handbook they rely upon can be read to mean that the District itself would not refer a student for an evaluation until a year of tiered intervention had been implemented. Thus, absent an allegation that the District refused to evaluate Student following Parents’ referral of Student for special education testing on the basis that “at least one year” of RTI is “required”, the language of the Student Handbook offers no evidence of misrepresentation and, even more importantly, no evidence of intent to misrepresent. Nor is the use of varying terminology in representing Student’s DIBELS scores “akin to intent, deceit, or egregious misstatement.”[10] As such, Parents have not satisfied the first exception to the statute of limitations.

Withholding Information

Parents argue that “the district had a responsibility to provide us with the procedural safeguards at the point at which [Student] should have been evaluated, not the point at which she was evaluated because the district failed to evaluate [Student] in a timely manner. Accordingly, the district withheld procedural safeguards for approximately one year and in doing so, negated the 2-year statute of limitations.” In response, Arlington asserts that “[e]ven if the Hearing Officer accepts as true that the Parents established specific misrepresentations or that the District withheld Procedural Safeguards until November of 2022 (as admitted by the Parents),” Parents have not

“connect[d] the school’s misrepresentation or withholding to them being prevented from filing the Hearing Request.…In fact, the Parents shared that they filed a PRS Complaint on April 5, 2023 against the District with the Department of Elementary and Secondary Education on the Child Find issue, so they were clearly aware of their due process rights at the time that they filed that complaint…. They have not provided any information that suggests they were prevented from requesting a due process hearing during this time or for the two years following their receipt of the Procedural Safeguards.”

Parents also argue that they should be allowed to pursue claims dating back to September 2021, when the District should have engaged in Child Find activities which, in turn, should have then prompted the District, at that time, to provide Parents their Notice of Procedural Safeguards. Parents argument is unpersuasive because even if Parents are correct that had the District should have provided them with their procedural safeguards in September 2021 (following a referral of Student for an initial evaluation as a result of Child Find activities[11]), the fact remains that Parents failed to file with the BSEA relative to the alleged Child Find violations once receiving their Notice of Procedural Safeguards in November 2022. Instead, the Hearing Request was not filed until September 2024. Parents do not allege that the District failed to provide them with their Notice of Procedural Safeguards in November 2022 when Parents initiated Student’s special education referral. As such they have been on full notice of their rights, including the right to due process, since then. Nor do they allege that the District prevented them from filing a due process complaint since November 2022. As Parents were apprised of their rights in November 2022 and were not obstructed by the District from asserting their due process rights, they could have filed with the BSEA at that time and asserted claims extending back to September 2021. However, they did not file their hearing request until September 2024. Therefore, Parents have not satisfied the second exception to the statute of limitations.

Discovery

Legal Standards:

Rule V of the BSEA Hearing Rules governs the discovery process before the BSEA. Rule V(A) advises that “the parties are encouraged to exchange information cooperatively and by agreement prior to the hearing.” Additionally, parties can request of other parties that they produce documents or answer up to 25 interrogatories within thirty (30) calendar days of being served such requests, unless a Hearing Officer orders otherwise.[12] Where the information or the documents requested are “not subject to any sort of privilege, the accessibility of the documents requested and their relevance to the dispute may militate in favor or against production.”[13] Specifically, the Massachusetts Rules of Civil Procedure expatiates further as to the scope of discovery:

“[p]arties 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 of defense of the party seeking discovery or to the claim or defense of any party…It is not ground for objection that the information sought will be inadmissible at the trial if…[it] appears reasonably calculated to lead to the discovery of admissible evidence.”[14]

The parallel Federal Rule permits discovery of

“…any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues…, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information…need not be admissible in evidence to be discoverable.”[15]

The phrase, “relevant to the subject matter involved in the pending action,” has been construed broadly to encompass “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.”[16]

Objections to any discovery requests can be made within ten (10) calendar days of service of the request, or parties can move for a protective order within that timeframe as well.[17]

Application of Legal Standards:

Whether Parents’ discovery requests are relevant, and hence discoverable, depends on the issues in the instant dispute. Here, the remaining issues for Hearing are whether Arlington Public Schools violated Student’s rights under IDEA and MGL c. 71B 1) by failing to find Student eligible prior to February 2023, and/or 2) by failing to propose IEPs and placements during the period of February 2023 until the filing of the complaint that were/are reasonably calculated to provide Student with a FAPE.

I address the District’s objections to Parents’ Discovery Requests first. In response to the District’s objections, I find as follows:

The District’s Objections To Parents’ Document Request No. 1 And The District’s Objections To Parents’ Interrogatory Request Nos. 1 And 2 Are ALLOWED.

Parents’ Document Request #1:

IEPs of all children accepted to the Pierce [sic] program since it was recently reinstituted, including the primary/referring elementary school.

District’s Objection:

The District objects to this request for several reasons. First, the District does not understand this request (i.e. “including the primary/referring elementary school”). Second, this request includes information that is in direct violation of student records laws and regulations. Even if redacted, it is highly inappropriate to share this information with the parents of another student in the District, especially in an open public hearing. Finally, this information is not relevant to the issues in this hearing because this program was not even proposed for the Student. This information should be excluded from the Discovery.

Parents’ Interrogatory Request #1:

A brief history of the SLC at Peirce School, including the year it was initially created and the year it was disbanded; when (month/year) it was reintroduced (I note that a description appeared on the district website in June 2021); and the primary factor that drove the creation, dissolution, and recreation of the learning center.

District’s Objection:

The District objects to this request because it is not relevant to the issues for hearing. This program was not proposed for the Student. If the Hearing Officer disagrees, to the extent that the District understands this request and has this information, the District will respond accordingly.

Parents’ Interrogatory Request #2:

The following information for the SLC at Peirce: entrance criteria; program description; curriculum and teaching methodology; teacher student ratio; teacher turn over; any outside consultation/consultants.

District’s Objection:

The District objects to this request because it is not relevant to the issues for hearing. This program was not proposed for the Student. Nor does Parents’ Hearing Request allege otherwise. If the Hearing Officer disagrees, to the extent that the District understands this request and has this information, the District will respond accordingly.

The District’s objections are ALLOWED. The District asserts that the program has not been proposed for Student and Parents’ Hearing Request does not allege that the program has been proposed. Therefore, these documents are outside the scope of the issues at Hearing.[18] Because these documents are not relevant to the issues at Hearing, the District need not provide the requested documents or the information sought in these discovery requests.

The District’s Objections To Parents’ Document Request No. 2 And The District’s Objections To Parents’ Interrogatory Request Nos. 3, 4, 5 And 6 Are ALLOWED.

Parents’ Document Request #2:

IEPs of all students with SLD as a primary or secondary category of disability who were in the 3rd grade during AY 23-24, 2nd grade during AY 22-23, 1st grade during AY 21-22, including students who were parentally placed or otherwise unrolled from APS.

District’s Objection:

The District objects to this request for several reasons. First, the District does not understand the wording of this request. Second, this request is overly broad (i.e., “all students,” students across several grades, students who are parentally placed, students who do not even attend APS, etc.). Third, this request [reaches back] beyond the statute of limitations. Fourth, this request includes information that is in direct violation of student records laws and regulations. Even if redacted, it is highly inappropriate to share this information with the parents of another student in the District, especially in an open public hearing. Finally, this information is not relevant to the issues in this hearing given the limited scope of the issues for hearing. This information should be excluded from the Discovery.

Parents’ Interrogatory Request #3:

District-wide, the number of students on an IEP where SLD is the primary category who have an out-of-district placement. Please provide the number for the following academic years: AY24-25; AY23-24; AY22-23; AY21-22.

District’s Objection:

The District objects to this request because it is not relevant to the issues for hearing. Part of the request is also outside the statute of limitations.

Parents’ Interrogatory Request #4:

District-wide, the number of students on an IEP where SLD is the primary category who were parentally placed elsewhere unilaterally. Please provide the data for the following academic years: AY24-25; AY23-24; AY22-23; AY21-22.

District’s Objection:

The District objects to this request because it is not relevant to the issues for hearing. Part of the request is also outside the statute of limitations.

Parents’ Interrogatory Request #5:

District-wide, the number of students on an IEP where SLD is the primary category who were unenrolled from APS. Please provide the data for the following academic years: AY24-25; AY23- 24; AY22-23; AY21-22.

District’s Objection:

The District objects to this request because it is not relevant to the issues for hearing. Part of the request is also outside the statute of limitations.

Parents’ Interrogatory Request #6:

Data regarding Tier 2, Tier 2.5, and Tier 3 reading services for the Dallin School for the following academic years: AY24-25; AY23-24; AY22-23; AY21-22, including: number of students, length of time student received services, reason intervention was discontinued (e.g., whether the student progressed enough to end the intervention or were evaluated and found eligible for special education).

District’s Objection:

The District objects to this request because it is not relevant to the issues for hearing. Part of the request is also outside the statute of limitations.

The District’s objections are ALLOWED. With respect to Parents’ Document Request #2, the request is overly broad as it relates to all students including those who may have not been grouped with or had any contact with Student during her tenure in Arlington. The requested information is irrelevant to the issues for Hearing, and it is not reasonably calculated to lead to the discovery of admissible evidence in this matter. Specifically, this information is unlikely to have probative value relative to the issue of the District’s alleged Child Find violation or to its alleged failure to offer Student a FAPE.

With respect to Parents’ Interrogatory #3 and #4, Parents assert that these requests are relevant as they “provides tangible data regarding the district’s implementation of their policies and the resulting outcomes. This is a necessary framework for assessing the district’s unilateral decisions in [Student’s] case.” However, there is no nexus between such data and Student’s individual needs nor does it shed any light on whether such needs were properly addressed by the District.

With respect to Parents’ Interrogatory Request #6, Parents argue that “[a]ccess to the requested information is relevant to assess the impact of scheduling, specialist availability, educational compatibility of student groupings, and other operational dependencies in the creation and implementation of [Student’s] IEPs.” However, only those services offered to Student are at issue. As such, the requested information is not reasonably calculated to lead to the discovery of admissible evidence in this matter.

Therefore, the District need not provide the information requested in Parents’ Document Request No. 2 and Parents’ Interrogatory Request Nos. 3, 4, 5 and 6.

The District’s Objections To Document Request No. 3 Are DENIED.

Parents’ Document Request #3:

IEPs of all children who were grouped with [Student] while [Student] received Tier 2, Tier 3 or IEP services, regardless of whether those children were on an IEP while grouped with [Student].

District’s Objection:

The District objects to this request for several reasons. First, the District does not understand the wording of this request (i.e. “IEPs of all children… regardless of whether those children were on an IEP while grouped with [Student]”). Second, this request [reaches back] beyond the statute of limitations. Third, this request includes information that is in direct violation of student records laws and regulations. Even if redacted, it is highly inappropriate to share this information with the parents of another student in the District, especially in an open public hearing. Finally, this information is not relevant to the issues in this hearing given the limited scope of the issues for hearing. This information should be excluded from the Discovery.

The District’s objections are DENIED. The documents sought are reasonably calculated to lead to admissible evidence.[19] I am not persuaded by the District’s concern that “this request includes information that is in direct violation of student records laws and regulations” and that “[e]ven if redacted, it is highly inappropriate to share this information with the parents of another student in the District, especially in an open public hearing.” I find that although the student records of Student’s peers are protected by 20 U.S.C.A. §1232g, G.L. c. 71, §34D and 603 CMR 23.07(4), proper redaction of all IEPs would ensure that such IEPs fall within the definition of “de-identified information” included in FERPA’s implementing regulations.[20] Nor, once redacted, would such redacted documents satisfy the “student record” definition pursuant to 603 CMR 27.02. As such, the District must provide the IEPs sought redacted of all personally identifiable informationto Parents in accordance with the additional protections outlined in the Order below.

The District’s Objections To Document Request No. 4 Are ALLOWED.

Parents’ Document Request #4:

Documentation of district-wide mandatory annual training or on-boarding for new hires (including paraprofessionals) relating to special education, including but not limited to: training manuals, presentation slides, Dallin school specific scheduled dates and attendance records. Please provide this the following academic years: AY 24-25, AY 23-24, AY 22-23, AY 21-22.

District’s Objection:

To the extent the District has this information in its possession and it is within the statute of limitations, the District will respond accordingly. To the extent this information is outside the statute of limitations, the District objects to this request.

The District’s objection relative statute of limitations is ALLOWED. The District must provide such documents for school years 2022-2023, 2023-2024, and 2024-2025, as all claims prior to September 2022 are excluded in accordance with the statute of limitations.

The District’s Objections To Parents’ Interrogatory No. 7 Is ALLOWED, In Part.

Parents’ Interrogatory Request #7:

The block schedule/service time by student pull-out groupings for the reading specialists and literacy coach at the Dallin school for the following academic years: AY24-25; AY23-24; AY22-23; AY21-22.

District’s Objection:

The District objects to this request because it is not relevant to the issues for hearing. Part of the request is also outside the statute of limitations.

The District’s objections are ALLOWED, in part. Specifically, to the extent that the information sought is limited to AY24-25, AY23-24, and AY22-23 and limited to “the block schedule/service time by student pull-out groupings” for those reading specialists and literacy coach assigned to or working with Student, such information is reasonably calculated to lead to the discovery of admissible evidence in this matter and must be provided to Parents. To the extent that information sought is for AY21-22 or to service providers who did not work with Student, such information relates to claims beyond the statute of limitations and outside the scope of this Hearing, respectively, and need not be produced.

The District’s Objections To Parents’ Interrogatory Nos. 10 And 11 Are ALLOWED, In Part.

Parents’ Interrogatory Request #10:

What curricula were used at the Dallin School for literacy for the following academic years: AY24- 25; AY23-24; AY22-23; AY21-22.

District’s Objection:

The District objects to this request because it is overly broad, unduly burdensome, and outside the scope of limitations. If the Parents would like to limit this request, the District will reconsider its response. Otherwise, the District objects to this request as written.

Parents’ Interrogatory Request #11:

Which online platforms were used at the Dallin school to support literacy during the following academic years: AY24-25; AY23-24; AY22-23; AY21-22.

District’s Objection:

The District’s objections are ALLOWED, in part. To the extent that the District proposed a specific literacy curriculum or specific online platforms to support literacy for Student, the District must provide this information to Parents, limited to AY24-25, AY23-24, and AY22-23, as all claims relative to academic year 2021-2022 are beyond the statute of limitations.[21] Information relative to literacy curricula or online platforms not utilized with Student has no probative value relative to the issues identified for Hearing and need not be produced.

The District’s Objections To Parents’ Interrogatory Nos. 12 Are DENIED.

Parents’ Interrogatory Request #12:

Dates that DIBELS administrators were recalibrated to ensure inter-rater reliability during the following academic years: AY24-25; AY23-24; AY22-23; AY21-22.

District’s Objection:

The District objects to this request because it does not understand what the Parents are requesting.

The District’s objections are DENIED. Parents clarified that “The University of Oregon, publisher of the DIBELS assessment, cautions that the reliability of testing results may be compromised if those administering the test do not recalibrate annually. Access to the requested information is relevant to determine the reliability of [Student’s] scores on the DIBELS assessment as they informed the district’s prospective judgement.” To the extent that the District recalibrated the DIBELS during the relevant time period, the District must provide such information to Parents.

I next address Parents’ objections to the District’s Discovery Requests. First, I consider Parents’ argument that as they “are acting pro se, the rights granted to attorneys, such as work product and protection of privileged information, should also apply to [their] documentation.”

The work product doctrine provides protection to materials prepared by an attorney or his or her agent in anticipation of litigation or for use in trial.[22] Rule 26(b)(3) of the Massachusetts Rules of Civil Procedure protects from discovery “documents and tangible things…prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent).” This rule does not specify that the party must be represented by an attorney. Moreover, the “work product doctrine … reflects the strong public policy underlying the orderly prosecution and defense of legal claims.”[23] This rationale “makes it understandable that Rule 26(b)(3) extend[s] protection to a party’s non-attorney ‘representatives’ as well.”[24] Many courts have acknowledged this protection for pro-se litigants.[25] Further, the purpose of the doctrine is to “preserve the integrity of the adversarial process.”[26] Because “[i]ndividuals have a right to represent themselves and a pro-se litigant must act in the role of client and attorney simultaneously…,to deny the application of privilege based on this distinction [of pro se status] alone would disturb the very purpose of the doctrine, allowing an adversary limitless overreach in discovery.”[27] Therefore, I find that, here, Parents, as pro se litigants, are entitled to work-product protections.

Nevertheless, not all personal notes by a pro se litigant are work-product, as the work-product privilege is qualified, depending on the information being sought and the adversary’s need for the information.[28] Massachusetts Rule of Civil Procedure 26)b)(3) protects “against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation,” and therefore, Parents must produce any responsive notes which were not prepared in anticipation of litigation.[29]

With these guidelines I turn to Parents’ specific objections and find as follows:

Parents’ Objections To Arlington’s Document Request #12, 16, And 17 Are ALLOWED, In Part.

Arlington’s Document Request #12:

All notes, reports, correspondence and/or other documents pertaining to the Student created or maintained by any non-attorney advocate, representative, evaluator, and/or consultant since September 15, 2022.

Parents’ Objection:

We object to providing any information that would be considered propriety information to the entity that created it. We also object to any information that would be protected by the attorney/client privilege, such our status as pro se representation allow, should any such information exist.

Arlington’s Document Request #16:

All documents concerning any observations of the Student in any educational setting by any person other than the Arlington Public Schools, including but not limited to any and all notes taken in the course of any such observation(s) since September 15, 2022.

Parents’ Objection:

Arlington’s Document Request #17:

All documents concerning any observations of programs and/or classrooms within the Arlington Public Schools, including but not limited to any and all notes taken in the course of any such observation(s) since September 15, 2022.

Parents’ Objection:

We object to providing any information that would be considered propriety information to the entity that created it. We also object to any information that would be protected by the attorney/client privilege, such [that] our status as pro se representation allow, should any such information exist.

To the extent that any of the “notes, reports, correspondence and/or other documents pertaining to the Student created or maintained by any non-attorney advocate, representative, evaluator, and/or consultant,” “documents concerning any observations of the Student in any educational setting by any person other than the Arlington Public Schools,” or “documents concerning any observations of programs and/or classrooms within the Arlington Public Schools” were created in anticipation of litigation, they need not be produced. All documents created in the normal course of business and not in anticipation of litigation must be produced.[30]

In this regard, as the party asserting work product protection, Parents bear the burden of demonstrating that the documents were “prepared in anticipation of litigation.”[31] To determine whether a document was “prepared in anticipation of litigation,” the appropriate inquiry is “whether in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” [32] Furthermore, litigation does not need to be imminent as long as the main purpose behind the creation of the document was to aid in possible future litigation.[33] The work product doctrine clearly precludes the protection of documents created in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for any nonlitigation purpose.[34] Therefore, to ensure that the claimed protection is validly applied and to allow for meaningful assessment of the claims, Parents shall create and produce a privilege log in accordance with the requirements set forth in the Order, infra. Further, because the qualified immunity enjoyed by the work product doctrine can be overcome upon a showing of substantial need and undue hardship,[35] Arlington will have the opportunity to argue for the production of such information, in accordance with my Order, infra.

I find that Parents’ argument relative to the proprietary nature of the information sought is unpersuasive. To the extent that Parents assert that some of the information requested in “proprietary” to the entity which created it, I note that the “trade secret privilege” or “confidential business information privilege” may be asserted by a party who owns or has legal control over the proprietary or confidential information, not by Parents. Moreover, the “[t]here is no absolute privilege that immunizes trade secrets and similar confidential information from discovery.”[36]

“In order to resist discovery of a trade secret, a party must first establish that the information sought is indeed a trade secret and then demonstrate that its disclosure might be harmful. Once these requirements are met, the burden shifts to the other party to establish that discovery of the trade secrets is relevant and necessary to the action. The [] court then must balance the need for protection of the trade secrets against the claim of injury resulting from disclosure. Discovery should be denied if proof of relevancy or need is not established, but if relevancy and need are shown, the trade secret should be disclosed.”[37]

Here, neither Parents nor the entities who created the alleged proprietary information have “established that any particular information sought qualifies as a trade secret and that its disclosure might be harmful.”[38]

Therefore, Parents’ objections to Arlington’s Document Requests #12, 16, and 17 are ALLOWED, in part.

In addition, I find as follows:

Parents’ Objections To Arlington’s Document Request Nos. 1, 2, 3 , 4, 10, And 11 And Parents’ Objections To Arlington’s Interrogatory Request Nos. 2, 15, And 18 Are DENIED.

Arlington’s Document Request # 1:

Complete copies of any and all documents, reports, tests, measurements, evaluations, correspondence, notes, diaries, letters, and any other written materials pertaining to the Student, not created by Arlington, regarding the nature of her disability, educational needs, proposed treatment, individual health and/or psychological needs, admission, enrollment, or continuing placement at any regular, special education, and/or treatment programs/placements, whether public or private, since September 15, 2022.

Parents’ Objection:

Parents object to this request for a several reasons. It is overly broad and would be unduly burdensome to produce such an extensive amount of material. The vast majority of this is already in the district’s possession and we should not be required to produce for them the documentation they have already [sic]. A large portion of this would not be relevant (“educational needs” could be read as her progress in her religious education). Also, as [Student]’s diagnosis of Type One Diabetes (T1D) is [] part of her special education, large portion of this is covered by HIPAA and has no bearing here (e.g., I have a daily diary of her carb counts so I can factor her insulin needs at each meal or snack.)

Arlington’s Document Request #2:

Complete copies of any and all documents related to testing or observation of the Student, including protocols, testing/observation notes, evaluations, and/or assessments pertaining to Student, whether formal or informal, that have been administered by educational evaluators, court clinicians, therapists, tutors, reading specialists, Carroll School employees, evaluators, and/or consultants since September 15, 2022.

Parents’ Objection:

Parents object to this request because it is overly broad and would be unduly burdensome to produce. The district created the vast majority of this documentation and we should not be required to produce what they have already. We also don’t believe personal memory aids such as working notes should be required from anyone if such documentation should still be in their possession. Additionally, some this information, particularly as it relates to [Student’s] T1D diagnosis is protected by HIPAA.

Arlington’s Document Request #3:

All contracts, notes, documents, correspondence, applications, memoranda, or agreements between the Student’s Parents (including Parents’ agents/representatives/advocates) and any entity, agency, program and/or service provider, or any representatives thereof, concerning Student’s enrollment in, or receipt of, any medical, educational, and/or treatment program(s)/placement(s)/services outside of Arlington since September 15, 2022.

Parents’ Objection:

Parents object to all information protected by HIPAA. Additionally, this would be overly burdensome as it includes receipt of medical services, which has been extensive due to [Student’s] T1D diagnosis (Boston Children’s Hospital provides intensive support to parents of newly diagnosed children). The vast majority of this information is completely irrelevant to this case (e.g., tracking [Student]’s blood glucose levels and daily adjustments of insulin).

Arlington’s Document Request #4:

Any and all agreements and/or contracts for services, invoices, bills, receipts of payment, or any other documents reflecting monies paid by the Parents, or on behalf of the Student and/or the Student’s parents, to any individual or entity for any education services rendered to the Student, since September 15, 2022.

Parents’ Objection:

We’re happy to provide this if the district clarifies their meaning of “educational service.” Right now, we object because it is overly broad and largely irrelevant. (for example, ceramics camp, religious education/ membership contract with our synagogue).

Arlington’s Document Request #10:

Any and all documents relating to the Student’s disability, academic needs, and emotional needs created since September 15, 2022.

Parents’ Objection:

Parents object because this is too broad to be reasonably understood within the framework of this hearing.

Arlington’s Document Request #11:

Complete copies of all correspondence between the Parent(s)/Student and any educational evaluator and/or consultant, outside the Arlington Public Schools, relating to the Student since September 15, 2022.

Parents’ Objection:

Parents object because this is too broad to be reasonably understood within the framework of this hearing. Additionally, much of the correspondence would be irrelevant to the scope of this hearing.

Arlington’s Interrogatory #2:

Please identify all the teachers, tutors, therapists, evaluators, advocates, specialists, aides, consultants, or doctors, not employed by the District, who have provided service of any nature, either directly or indirectly, to the Student since September 15, 2022. For each such person, state the following:

a. Name and address of each such individual or entity; and

b. Service(s) provided to the Student, including the nature, frequency and duration of said services.

c. The date(s) in which such services were provided.

Parents’ Objection:

We object to this because [] it would be largely irrelevant to the hearing and protected. In addition to the protections provided by HIPAA, we could not possibly identify every doctor or clinician that has cared for [Student] in routine office visits, dental appointments, rounding during her hospitalization, etc.

Arlington’s Interrogatory #15:

Please identify all outside/independent standardized testing, formal or informal assessments or evaluations completed by or of [Student] at any time between September 2022 to the present time, and indicate the date of each such test, assessment, or evaluation, the name of the administrator of each such test, assessment or evaluation and the results of all tests, assessments or evaluations.

Parents’ Objection:

We object on the grounds that this is overly broad, unduly burdensome and at times irrelevant. First, as [Student]’s second category of disability is Health, some assessment data is protected by HIPAA. Second, a large portion of this is irrelevant to the hearing. Third, informal progress monitoring data from [Student]’s tutor would be unduly burdensome to produce, should she have such materials still in her possession.

Arlington’s Interrogatory # 18

Please describe all outside services (academic, social, emotional, etc) received by [Student] since September 2022 to the present.

Parents’ Objection:

We object because the use of “etc.” makes this unclear and overly broad. As such it would be unduly burdensome and include information that is largely irrelevant.

Parents objections are DENIED. First, that the District may be in possession of the requested documents is not grounds for Parents not to produce the requested information. [39] In addition, by filing their Hearing Request, Parents have placed at issue “the nature of [Student’s] disability, educational needs, proposed treatment, [and] individual health and/or psychological needs”. As such, the requested documents are relevant to the issues presented in this matter and are reasonably calculated to lead to the discovery of admissible evidence.

Parents’ assertion that documents relating to Student’s diagnosis of Type I Diabetes have “no bearing here” is unpersuasive. “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession,”[40] and “[i]t is not for a party to determine, by a unilateral review of documentation, whether information is relevant to the case.”[41] As Student’s diagnosis of Type One Diabetes and the services and accommodations necessary to provide her with a FAPE due to such diagnosis are at issue, documents relative to the proper management of her disability are relevant and must be produced. Moreover, “all outside/independent standardized testing, formal or informal assessments or evaluations completed by or of [Student] at any time between September 2022 to the present time” are relevant to the core issues relative to Child Find and what programming Student requires based on her needs.

Parents also assert that some of the documents sought are “covered by HIPAA.” The Health Insurance Portability and Accountability Act (HIPPA) generally forbids the release of “individually identifiable health information without the written authorization of the individual who is the subject of the information,”[42] but there are instances, such as the instant matter, in which a student’s medical condition is at the core of a BSEA proceeding, making the disclosure of this information to a school district “necessary and therefore exempted from privilege.”[43] In such a situation, where parents have filed a claim against a school district, and the student’s medical, mental or emotional condition lies at the center of the dispute, parents have waived the privilege.[44] Because the District seeks information related to Student’s recent medical history and disability that may bear directly on whether the District proposed services and supports educational necessary to provide Student with FAPE, a question central to the dispute, the District’s requests are relevant to the matter in question and are reasonably calculated to lead to the discovery of admissible evidence.

Next, Parents should interpret “educational service” as the type of services which they believe Arlington is responsible for providing for Student. Similarly, Student’s “needs” should be interpreted as those needs which Parents believe Arlington should address through its offers of a FAPE. The District’s request relative to communications between Parents and any “educational evaluator and/or consultant” is relevant to the question of what Student’s needs are and what services the District should have proposed for Student in order to offer her a FAPE. A description of “all outside services (academic, social, emotional, etc.) received by [Student]” is similarly relevant as to Student’s needs as well as to what services Parents believe are appropriate or necessary for Student.

As stated supra, that the District may be in possession of the requested documents is not grounds for Parents not to produce the requested information.

Therefore, all information requested in Arlington’s Document Request Nos. 1, 2, 3 , 4, 10, and 11 and Arlington’s Interrogatory Request Nos. 2, 15 and 18 must be produced.

Parents’ Objections To Arlington’s Document Request Nos. 5, 9, 14 And 15 Are DENIED.

Arlington’s Document Request #5:

Any and all documents describing the program at the Carroll School, including but not limited to, all documents that describe or contain the philosophy, methodology, curriculum, instructional methods, behavioral methods, lesson plans, protocols, or goals of the program.

Parents’ Objection:

To the extent that we are aware of this and have included it in our decision making, we will provide this. We object to any information past that, including information that the Carroll school considers proprietary or protected.

Arlington’s Document Request #9:

Complete copies of all correspondence and communications between the Parents/Student and the Carroll School relating to the Student.

Parents’ Objection:

Parents object because this request is overly broad, unduly burdensome to produce and largely irrelevant.

Arlington’s Document Request #14:

Any and all documents concerning any communication, including electronic communication, between any public or private, out of district program that the Parents and/or their educational advocate/consultant/representative made, including but not limited to correspondence including emails, application materials, financial aid applications, inquiries, or other inquires from September 15, 2022 to the present regarding potential admission for the Student including but not limited to the Carroll School.

Parents’ Objection:

We object to this because it is irrelevant to the issues of this hearing. The relevant portion is captured in request 13, to which we have no objection.

Arlington’s Document Request #15:

Any and all progress reports, academic testing, and/or report cards the Student has received from any school or service provider outside of the Arlington Public Schools since September 15, 2022.

Parents’ Objection:

We object because this is overly broad (it could be interpreted to include informal daily progress monitoring by her tutor, which would also be unduly burdensome, should that individual still have the documentation), in some cases irrelevant to the scope of this hearing.

Parents objections are DENIED. As one issue for Hearing is whether Parents should be reimbursed for Student’s placement at Carroll School for the 2024-2025 school year, “all documents that describe or contain the philosophy, methodology, curriculum, instructional methods, behavioral methods, lesson plans, protocols, or goals of the program” and “all correspondence and communications between the Parents/Student and the Carroll School relating to the Student” are relevant to determine whether the Carroll School was responsive to Student’s needs.[45] Moreover, Parents’ communications with “any public or private, out of district program” may include relevant information or information that could be reasonably calculated to lead to the discovery of admissible evidence regarding Student’s needs and what type of program Parents believe is appropriate for Student. Similarly, “progress reports, academic testing, and/or report cards the Student has received from” Carroll are relevant to my assessment of the program as proper. “[P]rogress reports, academic testing, and/or report cards the Student has received from” any other school or service provider outside of the Arlington Public Schools are reasonably calculated to lead to the discovery of admissible evidence in this matter especially relative to Student’s educational needs. Parents’ argument that some information is “proprietary’ to the entity that created it is unpersuasive pursuant to my reasoning, supra.

Therefore, all information sought in Arlington’s Document Request Nos. 5, 9, 14 and 15 must be produced.

Parents’ Objections To Arlington’s Document Request Nos. 6, 7 And 18 And Parents’ Objections To Arlington’s Interrogatory Nos. 4, 6, 17, And 21 Are DENIED.

Arlington’s Document Request #6:

Any and all documents generated as the result of any meetings, conferences, hearings, and/or other discussions occurring since September 15, 2022 where the Student’s needs have been discussed.

Parents’ Objection:

Parents object because this is too broad to be reasonably understood within the framework of this hearing.

Arlington’s Document Request #7:

All documents supporting the Parents’ and Student’s claim(s) that the District’s proposed IEP(s) during the period at issue is/are not appropriate, and did/do not provide the Student with a free and appropriate public education.

Parents’ Objection:

Parents object because the vast majority of this documentation is produced by the district or the district already has (such as correspondence with us) or is publicly available information for which the district should be aware in light of their assumed expertise in these matters. To the extent that we have documentation outside of these two scenarios, we will provide this information.

Arlington’s Document Request #18:

All documents which support Parents’ claim that Arlington committed procedural violations resulting in Student’s entitlement to compensatory services.

Parents’ Objection:

Parents object because the vast majority of this documentation is produced by the district or the district already has (such as correspondence with us or the PRS finding) or is publicly available information for which the district should be aware in light of their assumed expertise in these matters. To the extent that we have documentation outside of these two scenarios, we will provide this information.

Arlington’s Interrogatory #4:

If your answer to Interrogatory number 3 was in the affirmative, please state with specificity all the facts in full and complete detail that form the basis of that assertion, including for each claimed violation: a. State the name(s) and position(s) of any individual(s) alleged to have engaged in the conduct giving rise to the claim of a procedural violation;

b. State the nature of the alleged conduct engaged in;

c. Identify the date and time on which the alleged conduct occurred;

d. Identify the basis of your information that the alleged conduct occurred;

e. Identify the specific laws, policies and regulations that you believe to have been violated; and

f. Identify each and every document supporting your claim(s) of procedural violation(s).

Parents’ Objection:

We object to 4a, 4c because we do not have that level of transparency into the operations of the district. We cannot make an assumption that responsibility for decisions were limited to the individual communicating the decision to us.

Arlington’s Interrogatory #6:

If your answer to Interrogatory number 5 was in the affirmative, please state with specificity all of the facts in full and complete detail that form the basis of that assertion, including for each claimed violation:

a. State the name(s) and position(s) of any individual(s) alleged to have engaged in the conduct giving rise to the claim of a procedural violation;

b. State the nature of the alleged conduct engaged in;

c. Identify the date and time on which the alleged conduct occurred;

d. Identify the basis of your information that the alleged conduct occurred;

e. Identify the specific laws, policies and regulations that you believe to have been violated; and

f. Identify each and every document supporting your claim(s) of procedural violation(s).

Parents’ Objection:

We object to 6a, 6c because we do not have that level of transparency into the operations of the district. We cannot make an assumption that responsibility for decisions were limited to the individual communicating the decision to us.

Arlington’s Interrogatory #17:

Are you asserting that any procedural or substantive violations occurred during the identification, evaluation development or refinement of [Student]’s educational needs/program by or through Arlington during the relevant time period(s) at issue? If your answer is in the affirmative, please state with specificity all the facts in full and complete detail that form the basis of that opinion, including for each claimed violation:

a. state the name(s) and position(s) of any individual(s) alleged to have engaged in the conduct giving rise to the claim of a procedural or substantive violation;

b. state the nature of the alleged conduct;

c. identify the date and time on which the alleged conduct occurred;

d. identify the basis of your information that the alleged conduct occurred;

e. identify the specific laws, policies, and regulations that you believe to have been violated; and

f. identify every document supporting your claim of procedural violation.

Parents’ Objection:

We object because we do not understand the district’s use of the word “refinement.” We also object to providing twice any information here that is duplicated here under other interrogatories. Finally, we object to 17a, 17c because we do not have that level of transparency into the operations of the district. We cannot make an assumption that responsibility for decisions were limited to the individual communicating the decision to us.

Arlington’s Interrogatory #21:

Please state the specific factual basis as to any claim(s) for any and all compensatory services to which you believe that [Student] is or may be entitled from Arlington.

Parents’ Objection:

We object to this request because it is nonspecific and is asking us to make a general summary of the information the district has already asked for in specificity in interrogatories 1-20 and the discovery requests. To provide a general summary would require us to make conclusions about whether the district violated the law, and that is the purview of the Hearing Officer.

Parents’ objections are DENIED. These discovery requests go to the heart of the issues in this matter, that is the District’s alleged procedural and substantive violations, as well as the appropriate remedy (i.e., compensatory services) resulting from such violations. As such, the information sought is relevant. With respect to Parents’ objection that Arlington’s Document Request #6 is overly broad, I note that it is limited in time and relates specifically to the issues for Hearing. Parents’ argument relative to Arlington’s Interrogatory #4, 6 and 17 that they cannot make “assumptions” as to the responsible party for decisions made is unpersuasive as Parents may answer such interrogatories to the best of their knowledge. Moreover, as stated supra, even if Parents believe that the District is in possession of the request documents, they must produce all relevant documents sought which are in their possession.

Therefore, Parents must produce responses to Arlington’s Document Request Nos. 6, 7 and 18 and Arlington’s Interrogatory Nos. 4, 6, 17, and 21.

ORDER:

Parent’s Motion to Extend Relief is DENIED.

The District’s Motion for Protective Order is ALLOWED, in part. Specifically:

Relative to Parents’ Document Request #3, the District’s objections are DENIED. Arlington must provide to Parents IEPs of all children who were grouped with [Student] while [Student] received Tier 2, Tier 3 or IEP services, regardless of whether those children were on an IEP while grouped with [Student] provided that such IEPs are redacted of all personally identifiable information, including, at minimum, the name of the child, name(s) of parent(s), guardians, or other family members, address, date and place of birth, gender, race/ethnicity, any language(s) other than English that are spoken by the student and/or parents, student identification number, Social Security number, and involvement with a court or state agency. The documents also shall be cleansed of any and all information pertaining to family members other than the child, including but not limited to medical, social, educational, employment or demographic information, whether or not such information actually or potentially identifies the person at issue.
1. The redacted documents shall be provided solely to Parents, and not to any other person or entity except for Parents’ experts who may be called as witnesses at the hearing, subject to the following provisions:
  1. No copies will be made of the redacted documents except that Parents may provide Parents’ experts with copies of the documents, but shall instruct the experts that they may not further copy or distribute such copies and shall destroy or return all such copies to Parents upon the conclusion of this case by hearing or settlement. Parents may not to discuss the peer IEPs with anyone other than their experts.
  2. Prior to hearing, the parties shall discuss whether either party intends to use peer documents as exhibits at the hearing. If so, the parties shall determine whether additional protections are necessary before including such documents as hearing exhibits.
  3. The redacted documents will be destroyed or returned to the District upon conclusion of this matter. The matter will be deemed concluded after a decision has issued and the period for appeal has expired, or after conclusion of an appeal of a BSEA decision, or after final disposition of the case via settlement, withdrawal, and/or dismissal.
Relative to Parents’ Interrogatory Request #7, the District’s objections are ALLOWED, in part. The block schedule/service time by student pull-out groupings for Student’s reading specialists and literacy coach at the Dallin school for AY24-25, AY23-24, and AY22-23 must be provided.
Relative to Parents’ Interrogatory Request #10, the District’s objections are ALLOWED, in part. To the extent that the District proposed a specific literacy curriculum for Student, the District must provide information relative to such curricula to Parents, limited to AY24-25, AY23-24, and AY22-23.
Relative to Parents’ Interrogatory Request #11, the District’s objections are ALLOWED, in part. To the extent that the District proposed specific online platforms to support literacy for Student, the District must provide information relative to such online platforms to Parents, limited to AY24-25, AY23-24, and AY22-23.
Relative to Parents’ Interrogatory Request #12, the District’s objections are DENIED. To the extent that the District recalibrated the DIBELS during the relevant time period, the District must provide such information to Parents.
All other District objections are ALLOWED. Specifically, the District need not produce responses to Parents’ Document Request Nos. 1, 2 and 4 and Parents’ Interrogatory Request Nos. 1, 2, 3, 4, 5 and 6.

Parents’ Motion for Protective Order is ALLOWED, in part. Specifically:

Parents’ objections to Arlington’s Document Request #12, 16, and 17 are ALLOWED, in Part. Parents are hereby ordered to produce a privilege log that identifies all documents and materials withheld from production on the basis of the work product doctrine. The privilege log shall be provided to the District no later than October 28, 2024. The privilege log must include the following details for each document or material withheld: the date on which the document was created or prepared; the name(s) of the author(s) and all recipient(s), including those copied; a brief description of the type of document (e.g., memorandum, email, report); a general description of the subject matter of the document, sufficient to establish the basis for the assertion of the work product protection without revealing the contents of the protected information; and the specific grounds for asserting the work product protection, including whether the document constitutes “ordinary” work product or “opinion” work product.
1. Arlingtonmay review the privilege log and, if warranted, challenge the assertion of work product protection as to any specific document. Any challenges must be filed no later than October 31 and responses from Parents must be submitted by November 4.
2. If necessary, the Hearing Officer will conduct an in-camera review of the disputed documents to determine whether the work product protection applies.
All other Parents’ objections are DENIED. Specifically, Parents must produce responses to Arlington’s Document Request Nos. 1, 2, 3 , 4, 5, 6, 7, 9,10, 11,15, and 18 and to Arlington’s Interrogatory Request Nos. 2, 4, 6, 15, 17, 18, and 21.

So ordered,

By the Hearing Officer,

/s/ Alina Kantor Nir
Alina Kantor Nir, Hearing Officer

October 21, 2024

[1] The information in this section is drawn from the parties’ pleadings and is subject to revision in further proceedings.

[2] Parents’ Hearing Request does not allege that the District proposed the SLC (D) Program at Pierce for Student at any time.

[3] 20 USC § 1415(f)(3) (emphasis added).

[4] D.K. v. Abington Sch. Dist., 696 F.3d 233, 245–46 (3d Cir. 2012) (internal citations omitted) (emphasis added).

[5] 20 USC § 1415(f)(3).

[6] See 34 CFR 300.504(a); see also Administrative Advisory SPED 2001-4: Finding of No Eligibility for Special Education which may be found at https://www.doe.mass.edu/sped/advisories/01_4.html.

[7] See 34 CFR 300.504(c); see also Administrative Advisory SPED 2001-4: Finding of No Eligibility for Special Education which may be found at https://www.doe.mass.edu/sped/advisories/01_4.html (“Forms N 1 and N 2 must be mailed with a Parents’ Rights Brochure to meet federal requirements. The Parents’ Rights Brochure contains contact information for both the BSEA and the PRS”).

[8] See J.L. ex rel. J.L. v. Ambridge Area School Dist., 2009 WL 1119608, *13 (W.D.Pa. 2009) (finding that the school district’s failure to provide the requisite notice of procedural safeguards tolled the statute of limitations). See also School Dist. of Philadelphia v. Deborah A., 2009 WL 778321, *4 -5 (E.D.Pa. 2009) (focusing on the issue of whether the school district provided the requisite notice of procedural safeguards); Evan H., ex rel. Kosta H. v. Unionville-Chadds Ford School Dist., 2008 WL 4791634, *7 (E.D.Pa. 2008) (“second exception to the limitation period provided by 20 U.S.C. § 1415(f)(3)(D) refers solely to the withholding of information regarding the procedural safeguards available to a parent under that subchapter”).

[9] El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 945 (W.D. Tex. 2008).

[10] D.K., 696 F.3d at 245.

[11] 34 CFR 300.504 (a); 71 Fed. Reg. 46,692 (2006); see Administrative Advisory SPED 2001-4: Finding of No Eligibility for Special Education which may be found at https://www.doe.mass.edu/sped/advisories/01_4.html.

[12] See Rule V(B)(1) and (2).

[13] In Re: Dorian and Waltham Public Schools (Ruling), BSEA # 17-02306 (Reichbach, 2017).

[14] Mass. R. Civ. P. 26(b)(1).

[15] Fed. R. Civ. P. 26(b)(1).

[16] Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

[17] See BSEA Hearing Rule V(C).

[18] See MacKnight v. Leonard Morse Hosp., 828 F.2d 48, 51 (1st Cir.1987) (denying an opportunity for discovery if the complaint did “not ma[k]e even a minimal showing warranting the requested discovery”).

[19] Hearing Officers have often considered the appropriateness of peers when making findings as to appropriateness of programming. See, e.g., In re: Student and the Barnstable Public Schools, BSEA # 2104905 (Kantor Nir, 2021) (finding Parent did not meet his burden to show that the District’s program was inappropriate because, in part, Parent “presented no expert testimony defining an appropriate peer group for Student”); In Re: Student v. Concord Public Schools, BSEA # 2100891 (Berman, 2021) (“it is unclear from the record whether there would be appropriate peers for Student in the ACCESS classroom”); In Re: Longmeadow Public Schools BSEA # 08-0673 (Crane, 2010) (finding that “Longmeadow’s most recently-proposed placement of Student at the Williams Middle School is inappropriate because it does not allow Student to be educated with an appropriate peer group”).

[20] See In Re: Student v. Andover Public Schools (Ruling On Andover Public Schools’ Motion For A Protective Order), BSEA # 17-06174 (Figueroa 2017) (“Neither FERPA nor the Massachusetts Student Records Regulations prohibits disclosure of records which do not contain personally identifiable information, because the removal of such information extinguishes the privacy concerns that these provisions are designed to protect”).

[21] Parents agreed to “limit our request to the curricula and online platforms/programs used at Dallin to either: a) provide educational content designed to fulfill the MA Frameworks for ELA; or, b) provide accommodations for accessibility across the general education environment for struggling readers. We limit this request for information to the academic years that corresponded to [Student’s] grade (i.e., curricula/programs for first graders during AY21-22; for second graders during AY22-23; for third graders during AY23-24.)” Nevertheless, again, unless the information sought relates directly to the “educational content” and “accommodations” offered to Student, it is not relevant, as it fails to have any probative value for the issues at Hearing.

[22] Hickman v. Taylor, 329 U.S. 495, 511 (1947). The work-product privilege protects entire documents prepared in contemplation of litigation, not just opinions and recommendations, but “opinion” work product is afforded greater protection than “fact” work product. See Comm’r of Revenue v. Comcast Corp., 453 Mass. 293, 314 (2009).

[23] United States v. Nobles, 422 U.S. 225, 236–37 (1975) (quoting Hickman, 329 U.S. at 510 (citation and internal quotation marks omitted)).

[24] In re Grand Jury Subpoena, 220 F.R.D. 130, 141–42 (D. Mass. 2004).

[25] See, e.g., Boegh v. Harless, No. 518CV00123TBRLLK, 2021 WL 1923365, at *6 (W.D. Ky. May 13, 2021) (“There are certainly circumstances where the work product of a pro-se plaintiff is protected by privilege”); Brockmeier v. Solano Cnty. Sheriff’s Dep’t, No. CIV S-05-2090 MCEEFB, 2010 WL 148179, at *6 (E.D. Cal. Jan. 12, 2010) (pro se plaintiff was not ordered at this time to produce any notes prepared in anticipation of litigation which reveal her mental impressions and/or legal strategies); McKenzie v. McNeil, No. 4:11CV45-RH/WCS, 2012 WL 695108, at *1 (N.D. Fla. Mar. 1, 2012) (“I assume without deciding that a pro se litigant can assert at least some work-product protection”); Moore v. Kingsbrook Jewish Med. Ctr., 2012 WL 1078000 (E.D.N. Y 2012) (“The fact that Ms. John is proceeding pro se does not diminish the protection afforded to her work product.”); Nielsen v. Soc’y of N.Y. Hosp., 1988 U.S. Dist. LEXIS 14115, at *5 (S.D.N.Y. Sept. 20, 1988) (“If plaintiff were represented by counsel, his attorney’s notes in similar circumstances would not be subject to production. A plaintiff appearing pro se is entitled to no less protection”); Systemes v. Childress, No. 09-10534, 2013 WL 12181774, at *1 (E.D. Mich. Nov. 22, 2013) (“assum[ing]” that a pro se plaintiff may assert work-product protections); Dowden v. Superior Ct., 73 Cal. App. 4th 126, 134, 86 Cal. Rptr. 2d 180 (1999) (finding that the because the “litigant [was] not asserting the privilege as a client, but rather as one performing the functions of an attorney [, p]rotecting the right of a litigant appearing in propria persona to create work product is consistent with the [] rationale of protecting the attorney’s labor from discovery”). But see Ross v. Sejin Am., Inc., No. 3:18-CV-537-RAH-JTA, 2021 WL 6973877, at *2 (M.D. Ala. Apr. 9, 2021) (“Rule 26 does not state that it offers this protection against disclosure to a party appearing pro se nor does Plaintiff present any authority demonstrating that a pro se litigant is entitled to such protection”).

[26] In re Prof’ls Direct Ins. Co., 578 F.3d 432, 438 (6th Cir. 2009) (citing Hickman v. Taylor, 329 U.S. at 510–14); Newhouse v. United States (In re Antitrust Grand Jury), 805 F.2d 155, 164 (6th Cir. 1986).

[27] Boeg, 2021 WL 1923365, at *6.

[28] See Hickman, 329 U.S. at 512.

[29] See Sasson v. Braun, 2015 WI App 58, ¶ 48, 364 Wis. 2d 527, 868 N.W.2d 199 (“Allowing a pro se litigant to protect this type of strategic ‘work product,’ to use the circuit court’s words, is not inconsistent with rejecting that same litigant’s general objections to discovery requests based on attorney-client privilege and attorney-work-product privilege grounds”); Hurst v. City of Rehoboth Beach, 2006 WL 3366389, at *3 (D.Del. Nov.21, 2006) (“work product doctrine and the attorney-client privilege do not permit someone to shield factual information”); see also Vinton v. Adam Aircraft Indus., Inc., 232 F.R.D. 650, 663 (D.Colo. Nov.23, 2005) (documents were not covered by the work product doctrine simply because they were “based on [plaintiff’s] investigations of the facts of the case before bringing it pro se”); Robbins v. Chase Manhattan Bank, N.A., 1998 WL 106152, at *1 (S.D.N.Y. Mar.9, 1998) (“Even assuming that a pro se litigant may be equated with an attorney for purposes of [work product] analysis, [plaintiff’s] notes do not indicate her strategic thinking, but are instead a diary of her factual observations. Thus, they are not ‘core’ work product.”).

[30] See United States v. Textron Inc. & Subsidiaries, 577 F.3d 21, 30 (1st Cir. 2009) (quoting Fed. R. Civ. P. 26 advisory committee’s note (1970)) (“’Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for nonlitigation purposes,’ on the other hand, are not protected by the work-product doctrine”).

[31] Conoco, Inc. v. United States Dep’t of Justice, 687 F.2d 724, 730 (3d Cir.1982).

[32] Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252, 1258 (3d Cir.1993).

[33] United States v. El Paso Co., 682 F.2d 530, 542–43 (5th Cir.1982), reh’g denied, 688 F.2d 840 (5th Cir.1982), cert. denied, 466 U.S. 944 (1984).

[34] George v. Siemens Indus. Automation, Inc., 182 F.R.D. 134, 139–41 (D.N.J. 1998).

[35] See Massachusetts Rule of Civil Procedure 26(b)(3) (“documents and tangible things” are discoverable “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means”); see also Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.1985), cert. denied, 474 U.S. 903, 106 S.Ct. 232, 88 L.Ed.2d 230 (1985).

[36] Cutler v. Lewiston Daily Sun, 105 F.R.D. 137, 140 (D. Me. 1985).

[37] Id.

[38] Id.

[39] See Swenson v. Mobilityless, LLC, No. 3:19-30168-MGM, 2022 WL 2347113, at *7 (D. Mass. June 29, 2022) (“A responding party is required to produce documents in its possession, custody, or control regardless of whether the requesting party is already in possession of the requested documents”); see also Fed. R. Civ. P. 34(a) (permitting a requesting party to obtain copies of responsive documents and electronically stored information that are in the responding party’s “possession, custody, or control”); see also Puerto Rico Med. Emergency Grp., Inc. v. Iglesia Episcopal Puertorriquena, Inc., 318 F.R.D. 224, 230 (D.P.R. 2016) (“Courts have held that a responding party is required to produce documents in its possession, custody, or control regardless of whether the requesting party is already in possession of the requested documents”) (citing to multiple cases explaining that a party has duty to produce requested document regardless of whether defendants already held requested document in their possession); Vazquez-Fernandez v. Cambridge Coll., Inc., 269 F.R.D. 150, 165 (D.P.R. 2010) (ordering Plaintiffs to “produce documents responsive to the request to the extent they have such documentation”);.

[40] Hickman, 329 U.S. at 507.

[41] Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131, 135 (E.D. Pa. 2001).

[42] Worcester Public Schools, BSEA #1504291 (Reichbach 2015) (denying District’s motion to compel parent’s authorization of release of daughter’s medical records because medical records requested in subpoenas consisted of daughter’s protected health information).

[43] See Jacobs v. Vachon, No. 961506, 2000 WL 281665 at *2 (Mass. Super Ct. Jan. 28, 2000) (finding that the “interests of justice” outweighed psychotherapist-patient privilege and prompted disclosure when the plaintiff’s emotional distress was at the center of her claim); Erb v. Novia, No. WOCV201101871, 2012 WL 1994714 at *1 (Mass. Super. Ct. April, 11, 2012) (ruling that even when privileges apply, a psychotherapist’s records may “be released if the plaintiff has made her mental or emotional condition an element of her claim”); Fahs ex rel. Fahs v. Red Lion Area Sch. Dist., No. 1:15-CV-1108, 2017 WL 4618274, at *5–6 (M.D. Pa. Oct. 16, 2017) (finding “that the School District’s interest in presenting a full and complete defense to the compliance claim outweighs the Fahses’ privacy interest in Derrick’s medical records, as the School District’s medical discovery requests are proportional to the needs of the case given the disparity in access to this information, the potential for the medical records to aid the School District in its defense to the compliance claim, and the ability to safeguard the Fahses’ privacy interest through the implementation of a QPO. Fed. R. Civ. P. 26(b)(1)”); Scituate Public Schools, BSEA #1702015 (Figueroa 2016) (ruling that parents waived privilege with respect to medical records because of their reliance upon “information and recommendations allegedly made by the [p]roviders in their quest for the therapeutic placement of their choice,” the disclosure of which was “crucial to adequately inform the Hearing Officer about the issues in dispute”); see Fields v. West Virginia State Police, 264 F.R.D. 260, 264 (S.D. W.V. 2010) (“it is well-settled that a party who places his or her physical or mental health in issue waives privileges which pertain to the conditions in issue”).

[44] In Re: Waltham Public Schools And Dorian (Ruling On Parent’s Motion To Quash And Vacate Subpoenas And Waltham Public Schools’ Motion To Compel), BSEA #1702306 (Reichbach, 2017).

[45] See Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 349 (1985) (parents may be reimbursed for private special education if court ultimately determines private placement was proper).

Updated on October 23, 2024

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