COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Dracut Public Schools
BSEA # 2312210
RULING ON PARENT’S MOTION TO SUBPOENA WITNESS
This matter comes before the Hearing Officer on Parent’s August 25, 2023 [1] Motion to Subpoena Witness (Motion) asking the Hearing Officer to issue a subpoena for Patty Tobin to appear and testify at the Hearing in the instant matter. Specifically, during the third day of Hearing in the above-referenced matter, Student’s teacher testified that she delivered Student’s handwritten account of an alleged sexual assault that occurred on March 27, 2023 to Patty Tobin, the then-acting vice principal of the Englesby Elementary School and reported to her what Student had alleged. Parent then made an oral motion that the BSEA subpoena Ms. Tobin, arguing that her testimony was relevant and important to the matter before the Hearing Officer.
Also on August 25, 2023, the District filed The Dracut Public Schools’ Opposition To Parent’s Request For A Subpoena For Witness in which Dracut Public Schools (“Dracut” or “District”) opposed Parent’s Motion, asserting that
“it would be an undue burden on the witness, who upon information and belief is retired, would not tend to produce any additional relevant evidence to the issues before the Hearing Officer, and would serve as a fishing expedition. The testimony so far in this hearing has established that the Student’s teacher brought an allegation of a sexual assault to the administration’s attention, and that the administration then took over the investigation into the incident. Principal Beth Drohan has testified that she took over what was then labeled a bullying investigation, until a decision was later made that based upon the nature of the allegation, it would be considered a Title IX report of sexual harassment. Based upon the totality of the circumstances, to order the former Interim Vice Principal to appear to testify would be an undue burden in light of the fact that that this witness would not likely provide any additional relevant information that has not been already presented by other witnesses.”
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 is hereby DENIED.
PROCEDURAL HISTORY AND RELEVANT FACTS:
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 the issues for Hearing, in part, include whether Dracut failed to investigate the March 2023 sexual assault incident, and, if so, whether such failure denied Student a FAPE.
The Hearing in this matter began on August 16, 2023.
LEGAL STANDARDS:
- The BSEA’s Authority to Issue and Quash Subpoenas
Both the BSEA Hearing Rules for Special Education Appeals and the Formal Standard Adjudicatory Rules of Practice and Procedure which govern due process hearings at the BSEA allow Hearing Officers to issue, vacate or modify subpoenas. [2] Pursuant to BSEA Hearing Rule VII B:
“Upon the written request of a party, the BSEA shall issue a subpoena to require a person to appear and testify and, if requested, to produce documents at the hearing. A party may also request that the subpoena duces tecum direct the documents subpoenaed from a non-party be delivered to the office of the party requesting the documents prior to the hearing date.”
According to BSEA Hearing Rule VII C:
“A person receiving a subpoena may request that a Hearing Officer vacate or modify the subpoena. A Hearing Officer may do so upon a finding that the testimony or documents sought are not relevant to any matter in question or that the time or place specified for compliance or the breadth of the material sought imposes an undue burden on the person subpoenaed.” [3]
With respect to the scope of discovery, the BSEA looks to both the Massachusetts and Federal Rules of Civil Procedure for further guidance. In a motion to quash under the Federal Rules,
“the movant has the burden of demonstrating that the material sought by the subpoena is privileged or protected, or that production would result in an undue burden. The subpoenaing party has the burden of establishing that the requested information is relevant to its claims or defenses. The scope of discoverable information is governed by Rule 26, which allows discovery of items reasonably calculated to lead to the discovery of admissible evidence.” [4]
Whether a subpoena subjects a witness to undue burden
“usually raises a question of the reasonableness of the subpoena, requiring a court to balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it. This process of weighing a subpoena’s benefits and burdens calls upon the trial court to consider whether the information is necessary and whether it is available from any other source, which is obviously a highly case specific inquiry and entails an exercise of judicial discretion.” [5]
APPLICATION OF LEGAL STANDARDS:
Whether the witness at issue should be compelled to attend and testify at the hearing in this case depends on whether her testimony is relevant to the issues for hearing. After reviewing Parent’s Motion in the context of the above-quoted legal standards and the issues for hearing, I find that Parent’s request must be DENIED.
Ms. Tobin’s testimony would not be relevant to any of the issues in this case. Ms. Tobin’s testimony would be limited to her receipt of Student’s handwritten account from Student’s teacher. There has been no suggestion that Ms. Tobin either communicated with Parent or Student regarding the incident. She neither conducted the investigation into the matter, nor, as the interim vice principal, could she offer any testimony, other than that which would duplicate and repeat the testimony of Beth Drohan and Jessica Wojcik, regarding Student’s access to a FAPE following the incident. For these reasons, Parent’s Motion is DENIED.
ORDER:
The Parent’s Motion is DENIED.
So ordered,
By the Hearing Officer,
s/ Alina Kantor Nir
Alina Kantor Nir
Date: August 28, 2023
[1] Parent made her Motion orally during the third day of Hearing in this matter.
[2] See 801 CMR 1.01(10)(g) and BSEA Hearing Rules VII B and C.
[3] See also Fed. R. Civ. P. 45 (d)(3).
[4] Jee Fam. Holdings, LLC v. San Jorge Children’s Healthcare, Inc., 297 F.R.D. 19, 20 (D.P.R. 2014) (internal citations and quotations omitted).
[5] Vesper Mar. Ltd. v. Lyman Morse Boatbuilding, Inc., No. 2:19-CV-00056-NT, 2020 WL 877808, at *1 (D. Me. Feb. 21, 2020) (internal citations and quotations omitted).