COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Dracut Public Schools
BSEA # 2312210
PARENT’S MOTION TO COMPEL
This matter comes before the Hearing Officer on Parent’s Motion to Compel (Motion) filed on August 14, 2023.  In it, Parent asserts that
“As has been shown in the District’s Discovery Requests there were numerous emails that I sent that were forwarded by Principal Drohan to Cynthia Curtis as well as to Kimberly Lawrence.
The District only provided in Discovery Drohan’s emails going out and neglected to include the District’s responses. I am requesting that since this Discovery has shown clear discussion as well as relevant information that the request for emails between Beth Drohan and Kimberly Lawrence, and Beth Drohan and Superintendent Stone as well as his secretary Cynthia Curtis be produced to the parent as they provided only one side of the emails on 5 different occasions see below[.]”
Parent also requested “all communication done and the District’s responses to Drohan’s emails between these individuals for the dates 3/27/2023 to 3/30/2023 be provided to the parent as there are sufficient facts to show there is information and relevance.” In addition, she requested that the District produce
“the Dojo notes … between the parent and Ms. Ceurvles relevant to the hearings that the District deleted. Ms. Ceurvels does class communication through Class Dojo which the school requires all 4th grade students [sic] parents use to contact the teacher. Any and all requests, discussions, etc [sic] were to be done and were done in this forum. All of the emails were deleted by the District after the parent requested Discover [sic] yet the parent has shown via her Exhibit book Exhibit Z as well as provided screen shots Class Dojo sent the parent that there are emails between her and Alyssa Ceurvels. None of Dojo notes were supplied by the District in Discovery.” 
Parent’s Motion to Compel included a request that “the District to [sic] provide the copy of the June 2 meeting that Joanna [Garneau] recorded as Mr. Kowalski states confirmation Garneau never recorded the meeting however, Joanna Garneau is heard on the parent’s recording (Exhibit 2) stating she was also recording the meeting and both agree that they are making a recording.”
In a second Motion to Compel, filed the following day,  Parent asserted,
“The District states several times that there is an open investigation regarding the sexual assault with [sic] I believe they say Civil Rights. Where is the paperwork for it? There is one email from Ms[.] Garneau saying they were opening one yet other than her saying so there is nothing else.
I see the sexual Harrassment [sic] one that Ms[.] Lawrence and Garneau told me I had to on 5/2/2023. Which I went through all that to do only for her to tell me it was closed in the Mandatory Dismissal.
I also see part of the bullying report (the District left off the official form but it’s in my Discovery O)[.] [sic] They admitted having no information to follow up with on that one. However, there is no request or any paperwork to show any other open investigation. Just emails from Garneau saying so. There isn’t any permission from me. [I]n fact I sent Ms[.] Garneau several emails to [sic] (see my exhibit book X through Y). I asked her for the copies and explanations of what they are doing. It is even heard on tape where Garneau says she would send the paperwork that day. She didn’t. She sent a basic policy paper but nothing else. I am requesting these documents.
I am requesting a Motion to Compel the District of Dracut these documents immediately as they should have been included with the Discovery and the hearings are days away. Where it was the District who stated this exists they are required to provide me with documentation as I never requested this nor did I receive any paperwork or applications, etc. for it.”
On August 14, 2023, the District responded that the
“District is not in possession of any other documentation that is in specific response to your order on discovery. To the extent the Parent believes there is missing documentation, she is welcome to cross examine the witnesses during hearing. The documentation regarding the now closed Title IX investigation has been provided. The civil rights investigation is still ongoing so there is no outcome letter or summary or report of the investigation yet. Once it is completed, the District will provide a report regarding the investigation’s findings. It is my understanding that this will not be complete prior to Wednesday.
As to the recording of an interview of the student during the course of the civil rights investigation, the Parent made her own recording, which she has included in her requested exhibits on cassette tape. The District intended to record the interview, as was indicated at the start of the interview, but was not able to record. I have since discovered this was due to a technical issue. As such, the District does not possess its own recording of the interview but the Parent has her own recording.”
Neither party has requested a hearing on the Motion. 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, Parent’s Motion to Compel is ALLOWED, in part, and DENIED, in part.
PROCEDURAL HISTORY :
The factual background and procedural history of this matter have been described in detail in my previous Rulings. I need not repeat them here, except to note that, on June 1, 2023, Parent filed a Hearing Request with the BSEA, and that the issues for Hearing have been outlined as follows:
(1) Whether Dracut’s proposed 504 Plan is appropriate;
(2) Whether the District failed to meet with Parent to amend Student’s 504 Plan in violation of the procedural requirements of Section 504;
(3) Whether the District retaliated against Parent by ‘taking back’ the 504 Plan and insisting that Parent provide additional documentation of Student’s diagnosis;
(4) Whether the District failed to implement accepted portions of Student’s 504 Plan;
(5) Whether Dracut failed to investigate the March 2023 sexual assault incident, and, if so, whether such failure denied Student a FAPE.
(6) Whether the District retaliated against the Parent in response to her filing the June 1, 2023 Request for Hearing, via letter dated June 30, 2023 seeking to extend the timeline for investigation of the March 2023 sexual assault incident.
Parent served discovery on the District on July 11, 2023. On July 25, 2023, the Hearing Officer issued Ruling on the Dracut Public Schools’ Objections to Parent’s Discovery Requests (July 25, 2023 Ruling), allowing, in part, Dracut’s objections to Parent’s discovery requests. Specifically, with regard to Parent’s Request Nos. 2 and 3, the Hearing Officer found that “…to the extent that the emails requested are related to the development and implementation of Student’s 504 Plan, they must be produced by the discovery deadline of August 11, 2023. In addition, to the extent that any of the requested emails relates to the investigation of the March 2023 sexual assault incident and to Student’s access to a FAPE, they must be produced by the same deadline” and that “…to the extent that any of the requested emails and Dojo communications relates to the development and implementation of the 504 Plan or to the March 2023 sexual assault and investigation and its impact on Student’s access to a FAPE, they must be produced by the discovery deadline of August 11, 2023,” respectively. In response to Request No. 5 (seeking “All Bullying reports investigations and their findings that were digitally filed with Principal Drohan, Joanna Garneau, and Kimberly Lawrence for 2022-2023. Information, documentation, results, resolutions, and plans implemented”), the Hearing Officer found:
“The objection is ALLOWED, IN PART. In substantial part, the information sought is overly broad in time and scope and it is not reasonably calculated to lead to the discovery of evidence relevant to the issues in dispute. Although the BSEA has interpreted the Massachusetts and federal discovery provisions liberally, Parent’s request must still be relevant to the issues for Hearing. Parent’s claim that Student’s ‘sexual assault has survived’ mischaracterized the issue delineated for Hearing; specifically, the issue in the instant matter is whether Dracut failed to investigate the March 2023 sexual assault incident, and, if so, whether such failure denied Student a FAPE.
As such, to the extent that the District is in possession of any ‘reports investigations and their findings,’ ‘[i]nformation, documentation, results, resolutions, and plans implemented’ relative to the March 2023 incident, which is the only incident related to an issue in this matter, the District must produce these to Parent by the discovery deadline of August 11, 2023.” (internal citations omitted)
On August 11, 2023, the District produced its discovery.
The Hearing is scheduled to begin on August 16, 2023.
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. 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.” 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.”
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.”
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.  801 CMR 1.01(8)(i) authorizes parties who do not receive some or all the discovery responses or answers requested to file a Motion for an Order Compelling Discovery.  In the words of the First Circuit Court of Appeals, “the trial judge has an independent responsibility to enforce the directives he has laid down for the case… . If he or she sets a reasonable due date, parties should not be allowed casually to flout it or painlessly to escape the foreseeable consequences of noncompliance.” 
APPLICATION OF LEGAL STANDARDS AND CONCLUSIONS:
Here, after consideration of the relevant procedural history set forth above and the applicable legal standards delineated supra, I find it is appropriate to ALLOW, in part, and DENY, in part, Parent’s Motion to Compel.
- To the extent that the District produced emails “related to the development and implementation of Student’s 504 Plan” or “to the investigation of the March 2023 sexual assault incident and to Student’s access to a FAPE,” but produced only one side of the communication, the District must produce any responses made thereto, if available, immediately.
- To the extent that “the Dojo notes … between the parent and Ms. Ceurvles” were deleted by the District but relate to the development and implementation of the 504 Plan or to the March 2023 sexual assault and investigation and its impact on Student’s access to a FAPE, they must be produced to Parent immediately.
- To the extent that the June 2 meeting with Ms. Garneau related “to the investigation of the March 2023 sexual assault incident and to Student’s access to a FAPE” and was recorded by the District, such recording must be produced immediately.
- To the extent that the Civil Rights investigation referenced by Parent relates to the March 2023 sexual assault incident, all documentation relating thereto must be produced to Parent as well.
- To the extent that the “emails that [Parent] sent that were forwarded by Principal Drohan to Cynthia Curtis as well as to Kimberly Lawrence”, the “the Dojo notes … between the parent and Ms. Ceurvles”, the recording of “the June 2 meeting with Ms. Garneau”, and “the Civil Rights investigation referenced by Parent” relate neither to the development and implementation of the 504 Plan nor to the March 2023 sexual assault and investigation and its impact on Student’s access to a FAPE, such documents need not be produced.
Parent’s Motion is hereby ALLOWED, IN PART, and DENIED, IN PART, in accordance with this Ruling.
So Ordered by the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir
Dated: August 14, 2023
 Because Parent filed the Motion on Saturday, it is deemed filed on August 14, 2023, the following business day.
 Specifically, Parent asserted,
“I have enclosed screen shots to show these took place on relevant days that were connected to the 504 plan such as 1/27/2023 the day the student was hacked and compromised as well as the date she received a hateful email filled with profanity as well as 2/3/2023 the date that the parent filed a bullying report and reported the issues of bullying that were causing the student anxiety which led up to her needing the 504 plan. In fact this email to the teacher specifically discusses [Student’s] anxiety and fears at school and discusses how to address an appropriate plan….I have enclosed screen shots to show proof they exist however I cannot view the messages as the District deleted and destroyed them. Im [sic] requesting the District be required to recover the emails and provide them to the parent[.]”
 This motion was filed on Sunday, August 13, 2023.
 For an extensive review of the relevant procedural history in this matter, see In Re: Student v. Dracut (Ruling on Parent’s Motion for Reconsideration), BSEA # 2312210 (Kantor Nir, July 11, 2023).
 See Rule V(B)(1) and (2).
 In Re: Dorian and Waltham Public Schools (Ruling), BSEA # 17-02306 (Reichbach, 2017).
 Mass. R. Civ. P. 26(b)(1).
 Fed. R. Civ. P. 26(b)(1).
 See Rule V(C).
 Pursuant to the Scope of the Rules section introductory to the Hearing Rules, “Unless modified explicitly by these Rules, hearings are conducted under the Formal Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01 et seq.”
 In the event an Order is issued granting a Motion to compel, 801 CMR 1.01(8)(i) further authorizes a Hearing Officer, in situations for which good cause does not exist to justify failure to comply with such Order, to issue further orders regarding such failure,
“… as are just, including one or more of the following:
- An order that designated facts shall be established adversely to the Party failing to comply with the order; or
- An order refusing to allow the disobedient Party to support or oppose designated claims or defenses, or prohibiting him or her from introducing evidence on designated matters.”
 Legault v. Zambarano, 105 F.3d 24, 28 (1st Cir. 1997); see John’s Insulation v. L. Addison & Assoc., 156 F.3d 101, 109 (1st Cir. 1998) (“It is axiomatic that a party may not ignore a district court order with impunity”); In Re: Medford Public Schools Ruling Regarding Student’s Motions for Discovery Sanctions), BSEA # 03-0033 (Crane, 2003).