Work Product Protection: Fishing For Parent Consultants’ Files at the BSEA Should Be Off Limits

Some school districts have increasingly been seeking production of parent consultants’ (non-lawyer advocates’) files in the discovery process at the BSEA. We believe that most documents generated by parent consultants should be shielded from disclosure as irrelevant and/or as subject to the doctrine of “work product.” We are posting here an excerpt from a comment that we recently published in the Massachusetts Special Education Reporter (“MSER”) in which we took the occasion to highlight the need to protect consultants’ work product. Parents’ access to consultants who can help them navigate the complexities of special education process is essential, we think, to the integrity and effectiveness of the system; that access should not be chilled by concerns over the possibility of school districts and their attorneys picking through their consultants’ files if litigation ensues. (Our full commentary on BSEA decisions and rulings in the first quarter of 2015 is published at 21 MSER C-1 and may be read on our firm’s website.

Here is what we wrote about consultants and work product protection:

In her ruling in Worcester P.S. and Faye, BSEA #1504291, 21 MSER 26 (Reichbach, Jan. 30, 2015), the hearing officer [… noted that] in the case of communications between the parents’ representative and professionals within the facility [the district’s access may be precluded by] work-product privilege. “Privileges,” said the hearing officer, “should not be taken lightly.”

[…] we are glad to see the BSEA honoring the need to protect a parent’s and student’s communication lines with their attorneys and other representatives as they navigate the complexities of the special education process, always with the eventual possibility of due process at the BSEA. The work-product doctrine generally covers documentation developed in anticipation of litigation by or for a party’s representative, and the definition of “representative” is not restricted to attorneys. Mass. R. Civ. P. 26(b)(3); Fed. R. Civ. P. 26(b)(3)(A). Because we are seeing more discovery requests and subpoenas by school districts seeking the files and communications of lay advocates, we take this opportunity to say that we believe strongly that those communications and files are covered by the work-product doctrine.

At the threshold, and regardless whether their documentation falls into the category of work product, we do not view the files and communications of non-lawyer advocates as discoverable in any event. The state and federal rules of civil procedure, by which the BSEA is generally guided, permit discovery of non-privileged matters only if the materials are relevant to a party’s claim or defense in themselves or “reasonably calculated to lead to the discovery of admissible evidence.” Mass. R. Civ. P. 26 (b)(1); Fed. R. Civ. P. 26(b)(1). In most BESA cases, an advocate is neither a fact witness nor an expert witness. The advocate’s role is generally to serve as an informed guide to the parents’ navigation of the process under IDEA; there is little or nothing in the course of that activity that would be material to the issues that the hearing officer must decide, such as the child’s profile and needs or the suitability of programs proposed to meet those needs.

Rule 26(b)(3) of both the Massachusetts and the Federal Rules of Civil Procedure explicitly protects against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party. “Representative” includes “the other party’s attorney, consultant, surety, indemnitor, insurer, or agent.” We think it crystal clear that lay advocates operating under the broad parameters of IDEA and explicitly allowed under BSEA rules to represent a party in BSEA proceedings are “representatives” under this rule. They occupy a unique role within proceedings under IDEA – a role that in many instances is akin to that of an attorney – and their communications should be protected just as are the communications of attorneys and other representatives. The rationale for protecting communications as work product, described by the Supreme Court in the lead decision in this area, Hickman v. Taylor, 329 U.S. 495, 511 (1947), certainly applies to advocates as much as it does to attorneys:

Proper preparation of a client’s case demands that [an attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways …. Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

Since the work-product cloak only covers documents or other tangible items prepared “in anticipation of litigation,” the question might arise in some cases whether or when parents and their representatives actually “anticipated” litigation. We would urge a broad reading of that element. Our sense is that, within the system established under IDEA and Chapter 766, a parent acts in anticipation of litigation, even short of a formal rejection or partial rejection of a proposed IEP, as soon as s/he questions a school district’s actions or refusals to act with regard to a child’s special education status or needs. The process defined under IDEA and Chapter 766 offers a relatively quick path for the completion of evaluations, team deliberations, formal proposals, formal rejections or partial rejections, with mediation available at any point, and a statutorily defined procedure for hearing by an impartial hearing officer. When a parent engages an advocate and/or an attorney, there is little question that litigation in the form of a due process hearing is a very real possibility. No advocate can ably advise a parent without assessing how the parent’s actions will be viewed by a hearing officer if the matter comes to hearing, and how the parent’s actions will support or detract from the parents’ case. Thus, all of the advocate’s work with a parent should, we think, be subject to work-product protection. For the system to work as it should, with parents as well-informed as they can be, their efforts to find reliable advice and counsel should not be chilled by the possibility that communications will be pored over one day by school districts and their attorneys.

Robert Crabtree is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

2 thoughts on “Work Product Protection: Fishing For Parent Consultants’ Files at the BSEA Should Be Off Limits

  1. From this evaluator’s perspective, it’s very clear that the special education arena is becoming more contentious by the day. It’s no exaggeration to say that NESCA has already been served with as many BSEA subpoenas this year to date as we were in total in our seven prior years of operation. And all of them require that we produce whatever paper and electronic records we may have, including emails sent and received, of communications between our clinicians and our clients’ parents, their advocates and attorneys. Our experience has been that most parents and lay advocates are unaware until the 11th hour (or later!) that privilege attaches only to communications between parents and their attorneys.

    Organizations that train advocates, including the Federation for Children with Special Needs, Wrightslaw and the like, simply must do a better job of explaining the limits of confidentiality, and the pitfalls of email communications in particular. Everything digital can be retrieved if someone wants it badly enough!

    When obtaining their written permission to communicate with them by email, we now routinely advise parents not to commit anything to print that they wouldn’t want some third party to see. Our own internal policy mandates that files and email accounts be purged of extraneous material once final drafts of reports have been issued. In any case, it’s really not appropriate to include clinicians in discussions of strategy, or to “suggest” edits to a report or its recommendations intended to advance an agenda. In matters that do go to hearing, their credibility as expert witnesses rests upon their objectivity.

  2. Pingback: BSEA Applies Work Product Protection to Non-lawyer Advocate Materials and Communications; The Ruling also Stands as a Caution on Therapeutic/Medical Records | Special Education Today

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