COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEA
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Pittsfield Public Schools v. Student BSEA # 2412965
RULING ON THE PITTSFIELD PUBLIC SCHOOLS' MOTION TO QUASH PARENTS’ SUBPOENA REQUESTS FOR [PARENT OF FORMER STUDENT AT CROSBY ACADEMY], [PARENT OF STUDENT AT CROSBY ACADEMY], [PARENT OF STUDENT AT STEARNS], AND [ADVOCATE] AND MOTION FOR PROTECTIVE ORDER
This matter comes before the Hearing Officer on Pittsfield Public Schools’ Motion to Quash Parents’ Subpoena Requests For [Parent of Former Student at Crosby Academy], [Parent of Student at Crosby Academy], [Parent of Student at Stearns], and [Advocate] and Motion for Protective Order(Motion), filed on August 14, 2024. Said Motion seeks to quash 4 of Parents’ August 13, 2024 subpoena requests, which subpoenas were issued by the Bureau of Special Education Appeals (BSEA) on August 14, 2024. The Motion asserts that Parents’ request for subpoenas is untimely (i.e., the request was received on August 13, 9 days before the start of hearing) and that the witnesses identified by Parents are irrelevant to the instant matter. Specifically, Parents have
“identified these three people as a parent of a current Stearns student, a current Crosby Academy student and a former Crosby Academy student. None of these parents ever attended an IEP meeting for [Student], observed [Student] at school or have first-hand knowledge of [Student’s] presentation at school. They are not in a position to provide any relevant information about [Student] as a student at Allendale over the course of the 2023-24 school year. Therefore, by definition they do not have the foundation to provide relevant and credible testimony about the issue for hearing, namely whether the proposal of an Extended Evaluation at Crosby Academy is appropriate for [Student]….Further, as to the parent of a student at Stearn, Stearns has not been proposed as a placement or Extended Evaluation cite [sic] for [Student].”
Moreover, if Advocate is “involved in questioning witnesses, she would in fact be acting in the capacity of representing the parents. As such, [Advocate] cannot also testify as a witness.”
On August 15, 2024, Parents informed the Hearing Officer and the District’s Counsel that Advocate would “no longer [] be assisting [them] with the hearing. She will remain on the witness/subpoena list.” The District responded that it maintains its objection since Advocate “has [sic]attending meeting[s] as the parents [sic] advocate and advocates don’t generally testify at hearings.”
On August 26, 2024, Parents filed their response, asserting that the
“motion to have [Advocate] removed as a witness should be quashed as she is a fact witness and can attest to the district's negligence to [Student’s] IEP in the school year 23-24. She can also attest to the neglect of the child from the district by remaining silent when there were medical professionals' recommendations. Also there have been Advocates as witnesses in other BSEA cases such as BSEA #2200773.”
Parents also indicated that they were “okay to quash other witnesses which include [Parent of Former Student at Crosby Academy], [Parent of Student at Crosby Academy], [Parent of Student at Stearns].”
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, the District’s Motion is herebyALLOWED, in part, and DENIED, in part.
PROCEDURAL HISTORY AND RELEVANT FACTS:
Student is a 5-year-old preschool student who is eligible to receive special education services under the developmental delay disability category. Student’s Individualized Education Program (IEP) for the period November 30, 2023 to November 29, 2024 provides coping skills, self-regulation techniques, mindfulness exercises, a structured social-emotional curriculum, and physical activity to help Student manage emotions and frustration. During the 2023-2024 school year, Student attended Allendale Elementary School where he demonstrated frequent aggression towards peers and staff, task avoidance, and school refusal. On April 11, 2024, the District recommended a therapeutic placement at Pittsfield’s in-District Crosby Educational Academy. On April 17, 2024, Parents rejected the District's recommendation. On May 15, 2024, the District filed a Hearing Request seeking an order for Student's therapeutic placement at Crosby Educational Academy in order to adequately addresses his needs.
The Hearing is scheduled to begin on August 30, 2024.[1]
LEGAL STANDARDS:
1. The BSEA’s Authority to Issue and Quash Subpoenas
Both the BSEA Hearing Rules 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]
In a motion to quash under Rule 45 of the Federal Rules of Civil Procedure (which Rules are often consulted for guidance by BSEA hearing Officers):
“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:
1. Quashing the Subpoenas For [Parent Of Former Student At Crosby Academy], [Parent Of Student At Crosby Academy], And [Parent Of Student At Stearns] is Granted.
Whether parents of students who attend (or have attended) Crosby Academy and the parent of a student attending Stearns Elementary School should be compelled to attend and testify at the hearing in this case depends on whether their testimony is relevant to the issue for hearing. After reviewing Pittsfield’s Motion in the context of the issue identified by the moving party in this matter and the above-quoted legal standards, and Parents own subsequent agreement not to call these witnesses to testify, I conclude that the Motion is ALLOWED.
Additionally, here, despite Parents agreement to quash the subpoenas for [Parent of Former Student at Crosby Academy], [Parent of Student at Crosby Academy], [Parent of Student at Stearns], the testimony of said witnesses would not be relevant in the present matter, and thus quashing the subpoenas is appropriate.[6]An IEP must be individually tailored for the student for whom it is created.[7] This is because the individual child is at the heart of the Individuals with Disabilities Education Act (IDEA), and it is that child’s specific needs and circumstances that school districts must consider when proposing a program.[8]As such, the experiences of other children are not relevant to determining the appropriateness of a program proposed for a specific child.
1. Subpoena For [Advocate] is Allowed.
In general, a lawyer may not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.[9] Although there are no analogous rules governing representation by advocates, I find it reasonable to extend the rule to advocates representing parents at the BSEA.
Here, initially, Parents’ Advocate had indicated that she intended to “assist” Parents at the hearing. Specifically, she indicated, "I will be supporting the family in whatever manner necessary. If they need support in understanding what they can ask, or not, I will hold with that. If they need help in explaining or asking something, I may clarify or ask on their behalf." The District is correct that in this scenario, if Advocate “is involved in questioning witnesses, she would in fact be acting in the capacity of representing the parents. As such, [Advocate] cannot also testify as a witness.” However, Advocate is no longer serving in her representative capacity. Thus, there is no longer a need to avoid the ambiguities in the dual role of both advocate and witness. As such, Parents’ subpoena for Advocate’s testimony is allowed.
ORDER:
The District’s Motion is hereby ALLOWED, in part, and DENIED, in part. Specifically, Parents’ subpoenas requesting the presence and testimony of [Parent of Former Student at Crosby Academy], [Parent of Student at Crosby Academy], and [Parent of Student at Stearns] at hearing (which subpoenas parents have assented to quashing) are hereby quashed. Parents’ subpoena for former Advocate’s testimony is not so quashed, however, and thus remains as issued.
So ordered,
By the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir
Date: August 27, 2024
Footnotes
[1] On August 19, 2024, the Hearing was postponed from August 22, 2024 for good cause to allow Parents to secure counsel. Although on August 22, 2024 a new advocate entered a Notice of Appearance on behalf of Parents, she has since withdrawn from the 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).
[6] Although [Parent of Former Student at Crosby Academy], [Parent of Student at Crosby Academy], and [Parent of Student at Stearns] may have relevant information regarding their own children’s’ experiences at Crosby Academy, the placement proposed by Pittsfield, and at Stearns, the placement favored by Parents, such testimony would not have probative value with respect to the issue presented in this matter which relates to Student only. Specifically, these witnesses have neither relevant information on Student’s special education needs nor any expertise on what type of programming would be necessary to meet Student’s needs. As such, their testimony would not offer necessary, relevant information.
[7] See Endrew F. v. Douglas Cty. Reg'l Sch. Dist., 137 S. Ct. 988, 1001 (2017).
[8] See id.
[9] See Massachusetts Rules of Professional Conduct, Rule 3.7(a).