Dl v. District of Columbia ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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DL, et al., )
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Plaintiffs, )
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v. ) Civil Case N 0. 05-1437
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DISTRICT OF COLUMBIA, et al., )
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Defendants. )
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MEMORANDUM OPINION
Currently before the Court are two separate motions in limine, each relating to the
admissibility of plaintiffs’ Exhibit 1. First, plaintiffs filed a motion in limine [455] requesting that
their Factual Summary (Exhibit 1) be considered at trial as evidence, or in the alternative, as a
brief, demonstrative, or proposed findings of fact. Defendants opposed the plaintiffs’ motion and
issued their own cross motion in limine [460] to exclude plaintiffs’ Factual Summary for use at
trial for any purpose. Additionally, defendants have argued that if the Court were to rule the Factual
Summary is admissible, then the defendants should be given the opportunity to depose and cross
examine the individual who created it.
Upon consideration of the motions, oppositions, replies, the entire record in this case, and
the applicable law, the Court will GRANT plaintiffs’ motion in limine [455] requesting that their
Factual Summary be considered as evidence at trial and DENY defendants’ cross-motionjn limine
[460] for exclusion. Moreover, the Court will permit the defendants to depose prior to trial the
attorney who drafted the Factual Summary regarding its creation and will require that attorney to
serve as the Factual Summary’s sponsoring witness at trial, subject to defendants’ cross-
examination.
I. BACKGROUND
A. Statutory Scheme and Underlying Claims
The parties currently dispute the admissibility of plaintiffs’ Exhibit 1, the significance of
which is lost without reference to the plaintiffs’ underlying claims and the lawsuit’s complex
procedural history. This lawsuit began in 2005, when plaintiffs—residents of the District of
Columbia and former pre-school age children with various disabilities—filed a complaint alleging
that the District failed to provide them a free appropriate public education (“FAPE”) in violation
of the Individuals with Disabilities Education Act (“IDEA”). In exchange for federal funding, the
IDEA imposes an affirmative obligation on school systems to “ensure that all children with
disabilities . . . regardless of the severity of their disabilities, and who are in need of special
education and related services, are identified, located and evaluated.” 20 U.S.C. § l412(a)(3)(A).
Children who are identified and determined eligible may then receive early intervention services
under Part C of the IDEA. Moreover, the Act requires a “smooth and effective” transition from
Part C’s early intervention services to Part B’s preschool special education program. 20 U.S.C. §
1412(a)(9). The transition process must include a conference between the child’s family and school
officials to determine eligibility for Part B services and to develop a transition plan and an
Individualized Education Program (“IEP”). The goal is “a seamless transition between services”
under Parts C and B ofthe Act. 34 CPR. 303.209.
From the beginning, plaintiffs have alleged that the District has failed in its obligations to
a large number of disabled children. Specifically, plaintiffs claim that the District has engaged in
a practice of failing to identify disabled children, failing to evaluate and make eligibility
simply outside of the scope of what plaintiffs seek to summarize. Plaintiffs constructed the
document as a “summary of the relevant facts contained in the files of children who should not be
considered enrolled, to have timely received an eligibility determination, or to have been smoothly
and effectively transitioned, or whose files demonstrated another issue related to the District’s
enrollment, eligibility determination, or transition practices.” Reply in Supp. of Pls.’ Mot. in Lim.
Regarding Pls.’ Factual Summ. 9 (citing Seffel Decl. 1] 11). It does not purport to be a
comprehensive summary of thousands of pages of the SEDS files, but rather of the facts that are
seemingly inconsistent with the District’s conclusions and characterizations. Such a summary does
not require a discussion of every child when the plaintiffs explicitly agree with District’s
conclusions “with regard to any child not described in the Factual Summary. ” Id. Indeed, plaintiffs
did not “cherry-pick” files to support their arguments as the defendants claim; instead, they
reviewed the entire record for every child in each sample and provided a high-level summary of
where and how the childrens’ files potentially do not line up with the District’s conclusions.
Accordingly, the summary is entirely complete.
Second, defendants argue that because “[p]laintiffs’ Factual Summary contains
documented errors, has not been tested for accuracy through examination of its author(s), and
because it relies on inaccurate and untested criteria (creating inaccurate calculations), the
document should be excluded.” Defs.’ Opp’n to Pls.’ Mot. in Lim. Regarding Pls.’ Factual Sum.
12. Here again, however, plaintiffs describe how the Factual Summary was created: they
“reviewed the files and wrote down facts [they] believed were relevant.” Reply in Supp. of Pls.’
Mot. in Lim. Regarding Pls.’ Factual Summ. 9, ECF No. 463. The plaintiffs’ lawyer simply
conducted a manual comparison by cross-referencing “the data provided by the District in their
spreadsheets to the information and documents available in the child’s SED files.” Id. (citing Pls.’
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Sealed Ex. List, No. 1 at 1, ECF No. 456-1); see also id. at 6 (quoting Dunst. Dep., Oct. 2, 2014,
ECF No. 431—6) (“What was done is essentially something called pattern matching. . . . [Y]ou
basically start with the binary outcome, and then you back up and figure out whether or not all the
cases that you have . . . fit the same binary outcome”). Given the simple and straightforward nature
of the process, it is unclear what more defendants would like to know about the Factual Summary’s
preparation. Moreover, the Factual Summary does not present facts or information without citing
specifically to the documents on which they rely—undercutting defendants’ claims that its
contents are sufficiently misleading to merit exclusion. See generally Pls.’ Sealed Ex. List, No. 1,
ECF No. 456-1. Finally, the Court will grant defendants the opportunity to examine the exhibit’s
authors, giving them a full and fair chance to investigate the Factual Summary’s accuracy.
Third and lastly, defendants claim that the Factual Summary should be excluded because
it is “inappropriately argumentative.” Defs.’ Opp’n to Pls.’ Mot. in Lim. Regarding Pls.’ Factual
Summ. 12. As a matter of law, summaries under FRE 1006 may not “function as pedagogical
devices that unfairly emphasize part of the proponent’s proof or create the impression that disputed
facts have been directly proved.” United States v. Drogas, 748 F.2d 8, 1 (lst Cir. 1984) (citing J.
Weinstein & M. Berger, Weinstein’s Evidence § 1006 (1983)). This argument, however, is in large
part a re-articulation of defendants’ first claim that the Factual Summary is inaccurate because is
incomplete. Indeed, defendants allege, once again, that plaintiffs “cherry-picked [specific children]
. . . to highlight specific matters they wish to note within the file.” Defs.’ Opp’n to Pls.’ Mot. in
Lim. Regarding Pls.’ Factual Summ. 12 (emphasis in original).
In analyzing this argument, the Court finds that the Factual Summary is not “bias[ed] or
slant[ed],” id. at 12, simply because it does not include detailed summaries for every aspect of
every child’s file. Under these circumstances, a bias would only exist if plaintiffs claimed the
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children they highlight are somehow representative of the District’s broader lOO-children samples.
That, of course, is not the case—plaintiffs explicitly state the exact opposite. See, e. g., Pls.’ Mot.
in Lim. Regarding Pls.’ Factual Summ. 12 (“[P]laintiffs reviewed, but did not cite in the Factual
Summary, thousands of other pages of materials relating to children for whom plaintiffs
determined, after review of the documents, that they did not dispute the District’s characterization
of the children for statistical reporting . . . .”). As discussed, plaintiffs reviewed the entire files and
expressly agree that the data omitted from its summary is consistent with the District’s ultimate
conclusions. There is nothing inherently inappropriate about omitting certain material or
information from a summary, provided such material is clearly identified. Moreover, plaintiffs do
not claim the contents of their Factual Summary are indisputable, and the Court welcomes
defendants’ rebuttals.
In making this determination, the Court finds the criteria set forth in Fahnbulleh support
the Factual Summary’s admissibility. First, because there are thousands of pages of primary source
files, the underlying documents are sufficiently voluminous that comprehension is difficult and
inconvenient. Next, the documents themselves are admissible. Indeed, the childrens’ files form the
basis for the District’s own statistical conclusions and will be crucial to the Court’s ultimate
findings. Third, the underlying documents are of course available for the defendants’ inspection,
given that the District created and currently possesses them. Fourth, as previously discussed, the
summary is accurate and non-prejudicial because it invariably cites to source documents and
identifies all of the material it omits. Lastly, the person who assembled the summary will be subject
to examination on its methodology and factual findings, as discussed in subsection III(A).
To conclude, Exhibit 1 summarizes voluminous recordings drawn from thousands of pages
of documents and allows the Court to draw its own inferences. Admittedly, the evidence is
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somewhat peculiar because the Factual Summary cross-references two documents, each of which
the District itself created. There is no reason, however, to exclude the Factual Summary simply
because it draws from two sources in a way that lends support to the plaintiffs’ arguments and
undermines that of the defendant. Cf. Greycas, Inc. v. Proud, 826 F.2d 1560, 1568 (7th Cir. 1987)
(“The summaries are basically just a matching of the descriptions in the two lists. They made it
easier for the judge to compare the descriptions of each pair of items and decide whether they were
probably referring to the same piece of machinery, only differently described"). Indeed, because
the Factual Summary unfailingly cites to the source documents from which it funnels information,
Exhibit 1 does not present new facts or obscure old ones. It merely summarizes that which is
already available.
By summarizing voluminous recordings that cannot be conveniently examined in court,
the Factual Summary satisfies the threshold requirement of FRE 1006 and responds to the rule’s
basic rationale. It nearly goes without saying that if the defendants find errors in the Factual
Summary, they may provide contradictory evidence. And, indeed, they already have. Defs. ’ Opp’n
to Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 1 1 (describing an example of what defendants
consider to be “pervasive errors” in the Factual Summary). Such findings, however, impact the
Factual Summary’s persuasiveness not its admissibility. United States v. Hemphill, 514 F.3d 1350,
1359 (DC. Cir. 2008) (“Even if the calculations are mistaken, the chart is itself admissible, since
admissible evidence may be unpersuasive and a defendant has the opportunity to rebut it”).
Because the Factual Summary will be admitted under FRE 1006, the Court need not consider the
parties’ arguments that the exhibit be considered as evidence under the residual hearsay exception,
or in the alternative, as a brief, demonstrative, or proposed findings of fact.
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B. Testimony of Attorney Who Created the Factual Summary.
Although the Factual Summary will be admitted as evidence, the Court will require the
lawyer who prepared it to testify to the facts surrounding its creation. This Court will adhere to the
DC. Circuit’s suggestion that “the witness who prepared the summary should introduce it.”
Fahnbulleh, 752 F.3d at 479.
Plaintiffs make a variety of arguments to support their proposition that cross-examination
is unnecessary. First, plaintiffs look to the rules of ethics that discourage lawyers from testifying
and rightly point out that such testimony has the potential to “undermine attorney—client
communications, present unique opportunities for harassment, disrupt opposing counsel’s
preparation, . . . and spawn collateral litigation issues of privilege, scope, and relevancy.” Reply
in Supp. of Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 21 (quoting Coleman v. District of
Columbia, 284 F RD. 16, 18 (D.D.C. 2012). Second, they argue because the “methods that [the
attorney] used are self-evident,” cross—examination presents little additional value. 1d.
While such ethical concerns are generally present in opposing counsel examination, in this
case, the apparent downsides are minimal. First, the Factual Summary in no way implicates the
attomey—client privilege or otherwise privileged communications. The summarized information
was obtained through documents the District provided, not through client interactions. Indeed,
anyone-not just the plaintiffs’ lawyers—could have analyzed the source information and created
the summary. In addition, the proffered testimony will be narrow, relating only to the creation and
content of the Factual Summary, which mollifies the Court’s general concern over the potential
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for harassment of opposing counsel. Lastly, because the nature of the testimony is clearly defined,
examination is unlikely to spawn collateral litigation issues of scope and relevancy.
Because the Court has already ruled that any errors or inconsistencies in the Factual
Summary speak to its persuasiveness, not its admissibility, it only makes sense that the defendants
are given the opportunity to examine the methods and findings of the person who created it. The
process’s utter lack of automation and reliance on human judgment manifestly supports this
conclusion. The Factual Summary is very different from a “chart or calculation” considered in
FRE 1006, which more ofien than not condenses vast amounts of quantitative information. Such
processes are automated and mechanical, often leaving almost no room for human judgment, and
little reason to permit cross—examination.
Although the plaintiffs’ process is clear, see infla pp. 10-1 1, it is a process prone to human
error. In the Court’s opinion, the Factual Summary’s complete reliance on manual rather than
automated systems legitimates defendants’ real questions of method and accuracy. The Court
therefore will permit the defendants to depose Ms. Scffel prior to trial regarding the creation of the
Factual Summary and will require plaintiffs to call Ms. Seffel as the sponsoring witness at trial,
subject to defendants’ cross—examination. The Court recognizes this result is less than ideal but
agrees with the defendants that it “is a byproduct of Plaintiffs’ litigation choices, and Defendants
should not be prejudiced because Plaintiffs chose to adopt this approach.” Defs.’ Reply in Supp.
of Their Cross Mot. in Lim. 7, ECF No. 465.
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IV. CONCLUSION
For the reasons stated herein, the Court will GRANT plaintiffs’ motion in limine and
DENY defendants’ cross motion in limine. Plaintiffs’ Exhibit 1, the Factual Summary, will
therefore be admitted as evidence. Furthermore, the Court therefore will permit the defendants to
depose the attorney who created the Factual Summary prior to trial regarding its creation and will
require plaintiffs to call the attorney as the sponsoring witness at trial, subject to defendants’ cross-
examination.
A separate order consistent with this Opinion shall issue on this day of October 23, 2015.
C.
Royce C. Lamberth
United States District Judge
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determinations for identified children, and failing to provide a smooth and effective transition from
Part C to Part B special education services. In addition to the IDEA, plaintiffs also brought claims
under local D.C. law, which implements the IDEA, see DC. Code § 38-2561.02(a), and the
Rehabilitation Act, which provides that “[n]o otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her or his disability, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a).
On remand from the DC. Circuit’s opinion in DL v. District of Columbia, 713 F.3d 120(DC. Cir. 2013), the Court has certified four separate sub-classes pursuant to Federal Rule of Civil
Procedure 23(b)(2). See DL v. District of Columbia, 302 F.R.D. 1, 18 (D.D.C. 2013). Mirroring
the plaintiffs’ core allegations and the IDEA’s basic structure, the sub-classes are broken down as
follows: children who did not or will not (1) be identified and/or located; (2) receive an initial
evaluation within 120 days of referral; (3) receive a determination of eligibility within 120 days of
the date of referral; and (4) have a smooth and effective transition from Part C to Part B by the
child’s third birthday. Id.
After the Court certified the four sub-classes, plaintiffs and defendants each moved for
summary judgment on various claims. In evaluating these motions, the defendants” potential
liability was fiirther divided into distinct time periods based upon the date of the first bench trial
(April 6, 2011) and the date in which the District issued “comprehensive, deliberate policies” to
meet its relevant legal obligations (March 22, 2010). See Mem. Op. 42, ECF No. 444. For more
information on the significance of these dates and the nature of these claims, refer to Memorandum
Opinion [444].
Ultimately, the Court granted summary judgment on a number of issues. First, the Court
granted summary judgment for plaintiffs’ IDEA and DC. law claims as to the period through 2007
but denied summary judgment for all of plaintiffs’ Rehabilitation Act claims. Id. at 42.
Additionally, the Court granted plaintiffs’ motion for partial judgment under Rule 52(c)—which
allows a court to enter partial judgement against a party that has been fully heard on an issue—for
its claims under the IDEA and DC. law from 2008 through April 6, 2011. Id. at 19. With respect
to the defendants, the Court granted the motion for summary judgment on all of the second plaintiff
subclass’s claims under the IDEA and DC. law after March 22, 2010 and all claims under the
Rehabilitation Act for all subclasses after March 22, 2010. Id. at 36-3 7, 41. Remaining for trial are
plaintiffs’ claims under the Rehabilitation Act for the period prior to March 22, 2010 as to each
plaintiff subclass, and plaintiffs’ claims under the IDEA and DC. law from April 6, 201 1 to present
as to the first, third, and fourth plaintiff subclasses. Id. at 43.
As the Memorandum Opinion [444] has made clear, benchmarks and statistical analyses
remain highly relevant in this case. In 2011, this Court found that in order to comply with the
IDEA’s mandates, the District was required to meet certain numerical benchmarks. Specifically,
“on the low end, the District should expect to be serving 85% of its preschool-age population with
Part B services;” DL v. District of Columbia, 845 F. Supp. 2d 1, 10 (D.D.C. 2011), the District
should “ensure that at least 95 percent of all preschool children” receive a timely eligibility
determination; id. at 26, and lastly, the District should “ensure that at least 95 percent of all Part C
graduates that are found eligible for Part B receive a smooth and effective transition by their third
birthdays.” Id.
Although that Order has since been vacated and is in no way controlling in this case, “the
facts and statutory framewor ” underlying its basic conclusions remain unchanged. Mem. Order.
35, ECF No. 444; id. at 37 (“It is worth repeating that the Court’s order has since been vacated,
but that the facts and statutory background underlying its conclusion are still relevant”). It is
possible that these benchmarks shift in light of newly discovered information; nevertheless,
statistics and statistical analyses will remain crucial in guiding the Court’s legal conclusions.
B. Plaintiffs’ Exhibit 1: Factual Summary
Plaintiffs’ Exhibit 1, the Factual Summary, relates to the calculations and metrics used to
gauge the District’s compliance with the requirements of the IDEA—~the central inquiry and
fundamental dispute of this litigation. Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 9, ECF
No. 455 (“The effectiveness of the District’s policies is measured statistically”); Defs.’ Opp’n to
Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 3, ECF No. 460 (“Plaintiffs’ counsel then set
about to discredit Defendants’ reporting by devising an alternative approach to how special
education statistics ought to be calculated and reported”). Indeed, “[t]he effectiveness of the
District’s policies is measured statistically . . . [and] [t]o determine the accuracy of the District’s
statistics, it is necessary to review the underlying data on a child-by-child basis.” Pls.’ Mot. in Lim.
Regarding Pls.’ Factual Summ. 9.
The Factual Analysis at issue is derived from the plaintiffs’ “Sample Analysis,” a document
relied upon in the testimony of plaintiffs’ experts and the focal point of the District’s previous
motion to exclude plaintiffs’ expert reports. Id. at 1; Defs.’ Opp’n to Pls.’ Mot. in Lim. Regarding
Pls.’ Factual Summ. 4. Essentially, the Sample Analysis cross-referenced the District’s own
statistical conclusions about the effectiveness of its policies with certain raw data from the
District’s Special Education Data System (“SEDS”) and Early Stages database. After first shaping
the plaintiffs’ expert testimony, the Sample Analysis provided the structure and framework for the
plaintiffs’ Factual Summary. In creating the Factual Summary, the plaintiffs claim to have
“stripped the analyses and conclusions” of the Sample Analysis, leaving the current exhibit with
“only facts.” Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 5.
The plaintiffs constructed the Sample Analysis by sifiing through and compiling data
retrieved in a series of discovery requests. First, plaintiffs requested that the District produce its
rates of enrollment, timely eligibility determinations, and timely transitions from Part C to Part B.
Pls.’ Opp’n to Defs.’ Mot. to Exclude the Expert Reports 1, ECF No. 431; Pls.’ Mot. in Lim.
Regarding Pls.’ Factual Summ. 3. The District did so, reporting for example, that its enrollment
percentage metric as of November 30, 2013 stood at 8.82%, its evaluation and eligibility
determination metric for the three months prior to November 30, 2013 was 97.29%, and its
transition metric for that period was 96.88%. Def. District of Columbia’s Objections and Resps.
to Pls.’ First Post—Trial Set of Requests for Produc. of Docs. and Set of Interrogs. 18, ECF No.
422-27. Notably, each of the District’s reported results was comfortably above the benchmark set
by the Court’s previous, though now vacated, Order. See DL v. District of Columbia, 845 F. Supp.
2d 1 (D.D.C. 2011).
Next, plaintiffs requested certain corresponding data from SEDS and the Early Stages
database, which the District provided in the form of Excel Spreadsheets listing the childrens’
identifying information, dates of first case openings, dates of referrals, and dates of eligibility
determinations. Pls.’ Opp’n to Defs.’ Mot. to Exclude the Expert Reports 1, ECF No. 431; Pls.’
Mot. in Lim. Regarding Pls.’ Factual Summ. 3. In addition, plaintiffs requested direct access to
the District’s relevant databases to review actual student records, as opposed to the summary
information provided in the District’s spreadsheets. Id. Basically, plaintiffs sought to review the
actual student records of the children the District identified as enrolled, as receiving timely
eligibility determinations, and as receiving smooth and effective transitions to determine whether
they agreed with the District’s official characterizations. In other words, plaintiffs wanted access
to the students’ records to double-check the District’s conclusions that at the end of 2013, 8.82%
of the District’ s children were enrolled and over 95% had received timely eligibility determinations
and smooth and effective transitions. Id.; Defs.’ Opp’n to Pls.’ Mot. in Lim. Regarding Pls.’
Factual Summ. 2 (“Plaintiffs instead elected to try their hand at undermining the statistics reported
by the District to the United States Department of Education’s Office of Special Education
Programs (OSEP).”). If, for example, the District identified a certain student as having received a
smooth and effective transition, the plaintiffs would use their access to the databases to identify
and analyze the facts the District used to come to that conclusion.
Afier negotiating the terms of plaintiffs’ access, the parties agreed that the District would
produce SEDS files for three random samples of 100 children whom the District had identified as
enrolled, 100 children whom the District had identified as having timely received eligibility
determinations, and 100 children whom the District had identified as being smoothly and
effectively transitioned. Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 3-4. Furthermore, the
parties agreed that the samples were sufficiently large such that errors in the District’s
categorization of children in the spreadsheets that were identified within each sample would apply
to the entire population from which the sample was chosen. Id.
Once it acquired the SEDS files, plaintiffs produced the first draft of the Sample Analysis,
a 28-page document describing facts and conclusions relating to the children in the three samples.
Importantly, the Sample Analysis made assertions that directly challenged the District’s
underlying conclusions and consequently its statistical results. For example, one section titled,
“Children who do not meet the District’s own enrollment criteria,” listed children that the plaintiffs
claimed the District had erroneously identified as enrolled. Pls.’ Sealed Ex. List, No. 2, at 3, ECF
, “MNW.
No. 456-2. Another section recorded the details of “children whom the District considers to have
received a timely determination of eligibility or non-eligibility, but who actually received an
untimely outcome.” Id. at 4.
After constructing the first version of the Sample Analysis, plaintiffs provided a copy to
defendants, requesting that they provide “all documents that contradict, modify, supplement, or
further explain the issues relating to the children that are described in the Sample Analysis.” Pls.’
Mot. in Lim. Regarding Pls.’ Factual Summ. 5 (citing Gluckman Decl. 1] 4). The District provided
those documents and the plaintiffs incorporated the updated information into a newly revised
Sample Analysis—a document that served as the “foundation” for plaintiffs’ expert testimony.
Defs.’ Mot. to Exclude the Expert Reports and Test. Of Carl Dunst and Leonard Cupingood 5,
ECF N0. 427; see also Defs.’ Opp’n to Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 4.
Afier the Sample Analysis was permitted to be used as part of plaintiffs’ expert testimony,
plaintiffs sought to admit the report’s underlying content as evidence in the form of the Factual
Summary. Defs. Opp’n to Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 5 (“Plaintiffs attempt
to strip all objectionable material from the [Sample Analysis], and rename it a ‘Factual
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Summary. ) To do so, plaintiffs carried forward the Summary Analysis’s basic format and
eliminated all conclusory statements. Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 5. What
remains are the District’s various characterizations of a given child and the facts in the source files
relevant to that characterization.
Needless to say, reviewing and cataloguing these files was a massive and laborious
undertaking. All in all, plaintiffs condensed information contained in 1,312 documents, id. at 11,
an endeavor that “took months of work by multiple individuals.” Id. at 12. Moreover, plaintiffs
additionally “reviewed, but did not cite in the Factual Summary, thousands of pages of materials
relating to children for whom plaintiffs determined, after review of the documents, that they did
not dispute the District’s characterization of the children.” Id. These documents were primarily
sourced from SEDS or Early Stages database and included information such as letters to parents,
communications logs, and student history summaries. Id. at 11.
[1. LEGAL STANDARD
Plaintiffs seek to admit their Factual Summary under three different theories: Rule 1006 of
the Federal Rules of Evidence (FRE 1006), the residual hearsay exception, or in the alternative, as
a brief, demonstrative, or proposed finding of fact. The Courts finds the Factual Summary
admissible under FRE 1006, which it will now discuss.
FRE 1006 states:
The proponent may use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be conveniently
examined in court. The proponent must make the originals or duplicates available for
examination or copying, or both, by other parties at a reasonable time and place. And
the court may order the proponent to produce them in court.
Recently, in United States v. Fahnbulleh, the DC. Circuit further articulated the
requirements the admit evidence under FRE 1006. 752 F.3d 470 (DC. Cir. 2014). Essentially, for
a summary of documents to be admissible: “the documents must be so voluminous as to make
comprehension by the jury difficult and inconvenient; the documents themselves must be
admissible; the documents must be made reasonably available for inspection and copying; the a
summary must be accurate and nonprejudicial; and the witness who prepared the summary should
introduce it.” Fahnbulleh, 752 F.3d at 479.
III.ANALYSIS
A. Admissibility of Plaintiffs’ Summary Document
Although the District puts forth contrary arguments, the Court finds the plaintiffs’ Exhibit
1 is admissible under FRE 1006 as a summary document. Defendants argue that plaintiffs’ exhibit
cannot be admitted under F RE 1006 because it is incomplete, inaccurate, and argumentative. But
defendants seem to overlook that the rule permits a summary to omit certain facts, so long as those
facts are clearly identified. See, e.g., United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2011)
(“A summary may include only evidence favoring one party, so long as the witness does not
represent to the jury that he is summarizing all the evidence in the case”). Moreover, in terms of
accuracy, defendants will have an opportunity to cross-examine the exhibit’s authors regarding
their methods and the Factual Summary’s alleged errors or contrivances, a determination discussed
more fully in subsection III(B). Lastly, there is nothing in FRE 1006 that prevents plaintiffs from
summarizing the facts that underpin the defendants’ core conclusions. In combination, these legal
principles and the District’s opportunity for cross—examination defeat any objections defendants
raise to the admissibility of plaintiffs’ Factual Summary.
First, the defendants claim the document “lacks the necessary characteristics of a
summary—namely, an objective and fair representation of the records it purports to summarize.”
Defs.’ Opp’n to Pls.’ Mot. in Lim. Regarding Pls.’ Factual Summ. 6, ECF No. 460. They argue
that after reviewing files of more than 300 children, plaintiffs “cherry-picked records . . . to present
to the Court.” Id. at 7. In their View, such a technique can be neither fair nor objective because it
is incomplete.
Defendants, however, fail to appreciate that even though Exhibit 1 does not provide a
summary for every child in each of the District’s IOU-children samples, the omitted information is
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