United States District Court, S.D. California
D.L. By and Through his Guardians Ad Litem MELISSA LAZARO and OSCAR LAZARO, Plaintiff,
POWAY UNIFIED SCHOOL DISTRICT, Defendant.
GRANTING IN PART AND DENYING IN PART PLAINTIFF'S
MOTIONS TO SUPPLEMENT THE RECORD AND SEAL THE SUPPLEMENT. ECF
Nos. 26, 28.
Gonzalo P. Curiel, United States District Judge.
November 5, 2019, Plaintiff D.L. (a minor), by and through
his guardians at litem, Melissa and Oscar Lazaro, filed
motions seeking to supplement the administrative record and
seal that supplement. ECF Nos. 26, 28. Specifically,
Plaintiff asks that three distinct documents be added to the
record and then sealed: (1) the classroom observation notes
of Defendant's proposed placement by Kelli Sandman-Hurley
dated June 10, 2019, (ECF No. 27-2); (2) Plaintiff's
progress reports and work samples from his current school,
Newbridge, (ECF No. 27); (3) a transcript of Plaintiff's
Individualized Education Program (“IEP”) Program
Meeting on September 8, 2017. (ECF No. 27-1.)
reviewed Plaintiffs requests, the exhibits, and the
applicable law, the Court GRANTS, in part,
and DENIES, in part, Plaintiffs requests.
Motions to Supplement the Record
created the Individuals with Disabilities Education Act
(“IDEA”) to meet the unique needs of disabled
children by making available a free and appropriate public
education. Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. 176, 181 (1982). The IDEA
contains various procedural safeguards to assure that schools
meet these unique needs. Ojai Unified Sch. Dist. v.
Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993). For example,
parents may file a complaint with the school district
regarding the services provided under their child's IEP
and may pursue an administrative hearing if the complaint is
unresolved. Id. Parents may contest the results of
that hearing through a civil action in state or federal
court. Rowley, 458 U.S. at 176.
action brought under 20 U.S.C. § 1415(i)(2)(A), the
Court “shall hear additional evidence at the request of
a party.” The Ninth Circuit has defined permissible,
“additional evidence” to include “gaps in
the administrative transcript owing to mechanical failure,
unavailability of a witness, an improper exclusion of
evidence by the administrative agency, and evidence
concerning relevant events occurring subsequent to the
administrative hearing.” Ojai Unified Sch. Dist. v.
Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993). In
particular, the Ninth Circuit has opined that evidence
acquired after a hearing “may shed light” on the
reasonableness of a school district's prior decisions.
Adam v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999).
a “court need not consider evidence that simply repeats
or embellishes evidence taken at the administrative hearing,
nor should it admit evidence that changes ‘the
character of the hearing from one of review to a trial de
novo.'” E.M. ex rel. E.M. v. Pajaro Valley
Unified Sch. Dist. Office of Admin. Hearings, 652 F.3d
999, 1004-05 (9th Cir. 2011) (quoting Ojai, 4 F.3d
at 1473). In sum, “evidence that is non- cumulative,
relevant, and otherwise admissible constitutes
‘additional evidence' that the district court
‘shall' consider pursuant to 20 U.S.C. §
Motions to Seal
is a presumptive right of public access to court records.
See Nixon v. Warner Comm., Inc., 435 U.S. 589, 597
(1978). That right is “based on the need for federal
courts, although independent-indeed, particularly because
they are independent-to have a measure of accountability and
for the public to have confidence in the administration of
justice.” Ctr. for Auto Safety v. Chrysler Grp.,
LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quotations
seeking to seal documents in a dispositive motion must thus
meet the high threshold requiring “compelling
reasons” with specific factual findings to support a
sealing. Kamakana v. City and Cnty. of Honolulu, 447
F.3d 1172, 1178-80 (9th Cir. 2006) (citing Foltz v. State
Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1136 (9th Cir.
2003)). The “compelling reasons” test requires
showing more than just “good cause.” Id.
This standard applies even if the motion or its attachments
were previously filed under seal or protective order.
Id. at 1179.
Ninth Circuit has “carved out an exception” to
the compelling reasons standard for documents produced in
discovery and documents not attached to a dispositive motion.
Foltz, 331 F.3d at 1135 (citing Phillips ex rel.
Estates of Byrd v. General Motors Corp., 307 F.3d 1206,
1213 (9th Cir. 2002)). To seal such documents, the moving
party need only provide “good cause” to show,
San Jose Mercury News, Inc. v. U.S. Dist. Court-N. Dist.
(San Jose), 187 F.3d 1096, 1102 (9th Cir. 1999), that
“specific prejudice or harm will result.”
Phillips, 307 F.3d at 1210-11 (citation omitted).
“If a court finds particularized harm will result from
disclosure of information to the public, then it balances the
public and private interests to decide whether a protective
order is necessary.” Id. (citing Glenmede
Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995)).
however, the Ninth Circuit has interpreted the terms
“dispositive” and “non-dispositive”
loosely when determining which standard to apply. Ctr.
for Auto Safety, 809 F.3d at 1098 (“To only apply
the compelling reasons test to the narrow category of
dispositive motions goes against the long held interest in
ensuring the public's understanding of the judicial
process and of significant public events.”) (quotations
omitted). Hence, where the sealed material “is more
than tangentially related to the underlying cause of action,
” the “compelling reasons” standard
applies. Id. at 1099.