'Catch Me if You Can,' Part 6

In 2003, when the precedent-setting Preschooler II lawsuit was first filed against the Clark County School District, a striking section of the complaint asserted that CCSD had, in defiance of state law, covertly “implemented and administered a custom of practice and usage” that effectively permitted the abuse of special-needs children.

Now, 15 years later, another special-education lawsuit against the district makes similar allegations, and again the parents’ lawyers have made discovery requests that CCSD has been fighting tooth and nail.

The allegation 15 years ago

Back in 2003, the complaint alleged the district had “abdicated” several specific statutory duties:

To train and monitor school staff regarding physical restraints and aversive interventions,
To ensure that violations are reported,
To establish corrective plans,
To submit those corrective plans to the state, and
To implement the federal Individuals with Disabilities Education Act, the Americans with Disabilities Act, and the Rehabilitation Act “free of oppression, physical and emotional abuse.”

An even stronger allegation was that the district effectively “encouraged” and “ratified” illegal “aversive interventions against disabled autistic preschoolers by its employees,” by either omitting enforcement or by explicit interventions.

Although the Preschooler II plaintiffs eventually forced the school district into a financial settlement, that settlement was confidential. Particulars of how administrators’ alleged “custom of practice and usage” operated to facilitate abuse of autistic children did not become public.

Over the following years, however, as lawsuits against CCSD have continued, they’ve regularly produced accounts of severe physical abuse of nonverbal autistic children by untrained and/or badly screened district employees.

So what are CCSD’s actual practices?

In the current Hurd et al v Clark County School District et al lawsuit, the parents’ attorneys have focused directly on that key question asked in 2003: What policies and practices does CCSD actually follow, behind the scenes, when the public isn’t watching?

As the parents’ response brief put it:

… a written policy prohibiting unlawful action that is ignored is tantamount to no policy at all. In this case it is the underlying unlawful custom and practice that realistically represents the district’s actual “policy” regarding the reporting and investigation of abuse. (Emphasis added.)

Accordingly, in order to review a significant number of possible district child-abuse incidents, the attorney team filed with the court a discovery motion seeking:

The number of allegations of child abuse of special needs students that were made to the CLARK COUNTY SCHOOL DISTRICT in the three years preceding May 5, 2015, what investigation was conducted as a result of each allegation, what discipline occurred as a result of each allegation, and the person(s) involved in the investigation and discipline that occurred.

Under federal civil liability rules, a key question is whether the abuse of the children in James Doran’s CCSD classroom is part of a district-wide problem to which district administrators have been “deliberately indifferent.”

That two-word phrase comes from the U.S. Supreme Court’s precedent-setting 1978 Monell decision, and would mean — in the words of Nevada’s current Chief U.S. District Judge, Gloria M. Navarro, that CCSD “knew that harm to a federally protected right [under the Americans with Disabilities Act and the Rehabilitation Act] was ‘substantially likely’ but failed to act.”

So, to probe for the actual policies being practiced within CCSD — as distinguished from the policies professed by the district — the parents’ lawyers harnessed leverage from within the Federal Rules of Civil Procedure.

Under paragraph 30(b)(6) of those rules, not only individuals but organizations, as legal persons, can be deposed.

In such cases, the organization must then designate one or more officers or others “to testify on its behalf,” that is, as an official spokesperson whose testimony is legally binding on the organization.

Attempting to block the deposition

When the parents’ lawyers would not retreat from the use of the 30(b)(6) rule to compel an official CCSD response regarding the district’s truepractices around allegations of child abuse, CCSD’s lawyers last December filed an “emergency motion for protective order from the 30(b)(6) deposition” of CCSD with the federal court.

In the motion, CCSD’s external counsels, Mark Ferrario and Kara Hendricks asked the court to limit plaintiffs’ discovery in multiple areas, complaining especially about the request for a district 30(b)(6) witness to testify on policy:

Here, Plaintiffs have included numerous categories that will essentially require a 30(b)(6) witness to memorize and recite the contents of written documents already produced to Plaintiffs. No witness is necessary to state CCSD’s policies and regulations when such policies and regulations are written and promulgated. (Emphasis added.)

The defense thus asked the court to tell plaintiffs to be content with the district’s well-crafted descriptions of its policies, and not require sworn testimony on the subject of customs and policies as actually practiced.

In a January 30, 2018 hearing on the emergency motion before Magistrate Judge Peggy A. Leen, longtime district counsel Ferrario continued the effort to derail the looming depositions.

CCSD’s allegations

“When the [deposition] notice was filed—” Ferrario told the judge, “and I can tell you, I’ve been doing this a long — I don’t think I’ve ever had a PMK notice with this many categories and subparts, ever.

“So it became obvious to us that this was an attempt to get around the [customary] 10 deposition rule.”

THE COURT: You know, “PMK” is a misnomer.

MR. FERRARIO: It is.

THE COURT: Nowhere in the rules —

MR. FERRARIO: You’re right.

THE COURT: — does it refer to a person most knowledgeable. It refers to a designee of an organization who is designated by the defendant to bind the organization —

MR. FERRARIO: Exactly.

THE COURT: — on the topics that are stated with reasonable particularity. And there’s no requirement that someone with personal knowledge of any of the topics appear at a deposition.

So people toss — and I used to use it, and I still fall into the bad habit. But it’s really not a “person most knowledgeable.”

Then Leen turned to the heart of the issue:

And as the plaintiffs correctly point out, one of the purposes of Rule 30(b)(6) is to prevent the bandying that goes around as you and I have seen in many complex litigation where everybody says somebody else knows something. And you have to take 40 depositions to find out what the organization’s position is.

MR. FERRARIO: I agree. And I can’t refute anything you just said. I look at it —

THE COURT: All right. So tell me what you’re most concerned of that you don’t think is an appropriate subject of your 30(b)(6) topic. Because it seems to me that, although there are in excess of 50 topics, 10 were withdrawn and one added, that basically they gave you a take-home test …

Usually, added the magistrate judge, the 30(b)(6) complaints she gets are different — that, “you know, ‘the topics are too broad and they don’t state with reasonable particularity what it is that you’re asking us to educate a Rule 30(b)(6) designee on.’

“And in this case they educated you with quite a bit of specificity,” she told Ferrario.

Nailing CCSD down

According to what the plaintiffs’ told her, said Leen, their primary concern was to get the school district’s official answers and bind those answers to the district:

[I]f your answer to some of these questions is, “We’re designating the school district’s response and we’re bound by the response that was provided by the principal,” they’re satisfied with that.

They just don’t want you — and I fully appreciate that — they don’t want you showing up in motion practice or at trial saying this person or that person testified to A, B, C, and D, but they didn’t know what they were talking about, or they were mistaken, or they weren’t authorized to speak on the school district’s behalf.

So, ultimately, the district finally did designate one of its officers to sit for a deposition in behalf of the district and answer plaintiffs’ questions on policy-related subjects.

But the fight wasn’t over. In May of this year, it was plaintiffs’ attorneys who were back before Judge Leen, upset because CCSD’s appointed representative was repeatedly claiming ignorance.

So the parents’ attorneys had brought a motion to compel CCSD to provide a better-informed witness who could, or would, actually answer their questions about district policy and practice when abuse of special-needs students is alleged.

CCSD had made many different attempts to avoid being deposed on the sensitive subject, said the motion:

First, when plaintiffs initially provided notice — in November 2017 — that CCSD would be deposed under the 30(b) (6) rule, the district sought the protective order, arguing that the category was over-broad and that compliance would be burdensome for the district.
However, the court had denied the district’s motion. It noted that “the plaintiff can and should be permitted to inquire about CCSD’s knowledge of other incidents involving autistic children or special-needs children in schools where they are placed by the district.”
CCSD then delayed designating and presenting a witness responsive to the category until the very last day possible, under the court’s schedule, to complete witness-discovery depositions.
That witness — Darrin Puana of CCSD’s Employee-Management Relations division — “was woefully unprepared,” complained the parents’ lawyers, and was “only prepared to testify regarding a small subset of abuse that had been documented” in the district’s EMR database.
Nor had Puana prepared himself to testify on cases that, under state law, are reported to CCSD’s board of trustees and the district’s Office of Compliance and Monitoring (OCM). That meant CCSD was flouting the discovery instructions it was legally obligated to implement — and effectively concealing years’ worth of investigations that schools had reported to OCM.
Even regarding the database of his own EMR division, Puana could only testify that the database entries existed. “He was unable to testify as to the facts underlying the entries in the database he reviewed or even whether the entries necessarily involved the abuse of special-education students,” said the motion.
Puana was also unprepared, wrote the plaintiffs, “to testify regarding any of the sub-topics set forth in the notice” — the “particularizations” of the enquiry that Judge Leen had characterized in January as the “take-home test.”
The witness also “failed to provide documents responsive to the deposition request at or prior to the deposition, thereby preventing plaintiffs from the opportunity to question the witness regarding the instances of abuse he had reviewed,” wrote the plaintiff attorneys.
Finally, they said, the district’s Counsel, Kara Hendricks, had “impeded the deposition by repeatedly coaching the witness, interposing frivolous objections, and asserting the threat that the 30(b) (6) deposition had exceeded the seven-hour time limit before it even begun.”

Consequently, in May the plaintiff lawyers were back before Leen, asking for a do-over:

Plaintiffs are entitled [they argued] to take the deposition of a sufficiently prepared district employee on this category and an order compelling the deposition is warranted. Puana, or whomever the district designates, should be ordered to appear at the deposition sufficiently prepared to testify as to information readily available to the district and should produce documents responsive to the request…

Dire legal consequences?

Leen, however, appeared to be focused elsewhere — on ensuring CCSD realized the possibly dire legal consequences of thwarting a court-approved deposition of a 30(b) (6) witness.

Nevertheless, Leen did acknowledge the seriousness of two allegations by plaintiffs that Puana had, effectively, lied under oath:

First, that Puana had brought with him to the deposition and testified from a summary document that CCSD attorneys had created for him, but which he’d characterized, falsely, as reflecting his own review of documents.
Second, that the testimony Puana gave and said was a product of his review of documents was actually contradicted by the documents he said it was based upon.

According to the plaintiffs, the discrepancies had only become apparent after Puana’s testimony, when CCSD finally provided the actual documents in question.

Leen herself noted one important discrepancy — a document that reported an employee account of an aide having attacked and choked a special-needs student,but which never made it into the summary sheet.

“If an incident of that magnitude wasn’t reported on your summary sheet,” asked Leen of CCSD counsel Kara Hendricks, “why should I have any confidence in the accuracy of that summary sheet?”

Hendricks then spoke at length about the defense’s alleged hard work producing a summary that reflected the documents but that she herself didn’t do any of the cross-referencing and “It’s possible that we may have missed one.”

Finally, Hendricks acknowledged, “There are instances where the district doesn’t know what discipline occurred.”

This admission was significant. As Hendricks later herself remarked, “EMR is the organization or entity within the district that handles discipline for school employees.”

Thus, if EMR — where Puana is designated a “director” — lacks records documenting discipline of adults who’ve abused autistic children, it strongly suggests that the Clark County School District is, indeed, indifferent to such abuse.

Judge Leen noted the significance of such an answer coming from the attorney for a 30(b) (6) witness:

THE COURT: But if that’s the witness’ answer — that the district doesn’t know — as long as you’re bound by that — you understand, you’re bound by a non-response as well?

MS. HENDRICKS: I understand that, Your Honor.

According to Moore’s Federal Practice — deemed, on LexisNexis.com, “the standard reference work on federal court procedure” — CCSD’s duties in responding to the 30(b)(6) deposition notice were to:

Provide a representative “knowledgeable on the subject matter identified as the area of inquiry…”
Designate more than one deponent if necessary in order to respond to the relevant areas of inquiry…;
Prepare the [deponent] to testify on matters not only known by the deponent, but those that should be known by the [corporation]; and
Substitute an appropriate deponent when it becomes apparent that the previous deponent is unable to respond to certain relevant areas of inquiry.

When corporations or government agencies fail to provide a knowledgeable witness on a 20 (b) (6) topic, courts can preclude that party from offering, during a trial, testimony on that topic. Courts can also sanction the party.

Because Puana’s testimony now constitutes CCSD’s official on-the-record account of how it does — or doesn’t — respond to reports of the abuse of autistic or special needs children, a natural question is: What exactly were the particulars of his answers?

What CCSD’s designated witness actually said

A brief the plaintiffs submitted this August appears to answer that question —spelling out, at length, the significant points of Puana’s sworn testimony:

While it is “expected” that administrators will contact CCSD’s Employee-Management Relations division if an allegation is made of inappropriate physical force used on a special-needs student, no CCSD policy actually requires any such reporting to EMR — supposedly responsible for district discipline over employees.
EMR does not track or police whether administrators actually fill out the state-mandated form CCSD created for the reporting of incidents of the “Use of Physical Restraint, Mechanical Restraint, or Aversive Intervention” — a form known in the district as CCF-624.
Thus, said Puana, principals and other administrators at school sites are not required to inform EMR when incidents of abuse are reported or even when a teacher is arrested by campus police.
Instead, administrators are only “generally advised” by EMR to contact the school police department when reports of child abuse are received. The district itself keeps no record of the instances of suspected child abuse that it reports to law enforcement.
Nor does EMR itself enter into its database every allegation of abuse it receives, said Puana.
The CCF-624 forms don’t automatically go to EMR, but instead to the district’s Office of Compliance and Monitoring. Thus, if OCM does not forward those reports, EMR will remain ignorant of their content.
According to Puana, no district policy requires that the CCF-624s alleging physical misconduct also be reported to the Employee-Management Relations division.
He also acknowledged that — given the absence of any requirements to report to EMR— instances of abuse may be known to administrators at schools or in CCSD’s central office, but are never reported to EMR.

Puana’s testimony, therefore, appears to strongly suggest that CCSD — even after decades of lawsuits — still knowingly administers “a custom of practice and usage” that often operates to essentially ignore incidents of apparent child abuse.

Under the Monell and Canton v. Harris precedents, “deliberate indifference” of CCSD to abuse could mean a district liability in the millions of dollars.

Leen herself made the point in January 2018, when CCSD counsel Ferrario had sought to minimize the significance of information plaintiffs had requested regarding disciplinary actions CCSD takes if and when physical mistreatment of children is substantiated:

FERRARIO: The discipline of others, it’s a very broad category. And, again, I don’t see how that is relevant here, either, and I think is overreaching.

THE COURT: Well, are you deliberately indifferent? Because, you know, people are doing this left and right and you’re not doing anything about it.

Next, in Part 7, Nevada Journal looks at another question: Would state-mandated cameras in Nevada’s autism classrooms provide significant protection for nonverbal students — and ultimarely for taxpayers?