                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
________________________________________
                                         )
DL, et al.,                              )
                                         )
            Plaintiffs,                  )
                                         )
       v.                                )    Civil Action No. 05-1437 (RCL)
                                         )
DISTRICT OF COLUMBIA, et al.,            )
                                         )
            Defendants.                  )
________________________________________ )

                                MEMORANDUM AND ORDER

       Before the Court is plaintiffs’ Motion [255] for Leave to Re-Open the Record and to

Admit Additional Exhibits. Having carefully considered the motion, defendants’ objections,

plaintiffs’ reply, the entire record in this case, and the applicable law, the Court will grant in part

and deny in part plaintiffs’ Motion for Leave to Re-Open the Record. Specifically, the Court

will admit exhibits nos. 227–238 and 240 into evidence. Defendants’ objections to plaintiffs’

exhibits nos. 239 and 241 are sustained and that evidence will be excluded.

I.     BACKGROUND

       As is fully explained in a prior opinion of this Court, DL v. District of Columbia, 274

F.R.D. 320, 321–23 (D.D.C. 2011), during (and after) discovery, defendants had quite a bit of

trouble responding to plaintiffs’ discovery requests in a timely manner, and were producing

thousands of responsive e-mails both immediately prior to the April 6–7, 2011 trial and

following the trial itself. The production of documents post-trial was a new one for this Court,

and needless to say it put plaintiffs and the Court in a terrifically awkward position when it came

time to determine the merits of the case at the April 2011 trial. On the first day of trial, the Court

granted plaintiffs’ oral motion to compel defendants to produce at last the remaining responsive

documents within a week following the trial. DL, 274 F.R.D. at 322. To expedite production of
these documents, the Court also held that the District had waived all privileges and objections

with respect to the yet-to-be-produced e-mails. Id.; see also Order [232] 1, Apr. 7, 2011. After

ordering defendants to produce responsive e-mails to plaintiffs’ counsel on or before April 14,

2011, the Court invited plaintiffs to move to re-open the record to admit these e-mails. Order

[232] 1.

       Plaintiffs have accordingly moved to re-open the record and admit exhibits numbers 227–

241.   Pls.’ Mot. Leave [255] 2–5, Jun. 3, 2011.       On June 6, 2011, defendants filed their

Objections [257] to Plaintiffs’ Exhibits Submitted After Trial, challenging the admissibility of

most of these e-mails. Defs.’ Objections [257] 1–2, Jun. 6, 2011. Plaintiffs relied upon nearly

all of the e-mails attached to their Motion [255] for Leave in their Proposed Post-Trial Findings

of Fact and Conclusions of Law [256], Jun. 3, 2011, which was filed the same day. However,

defendants, after plaintiffs filed their Motion [255] for Leave, never sought leave themselves to

challenge plaintiffs’ new evidence with contrary evidence. On the assumption that this failure to

seek leave on the part of defendants was a mere oversight, and in the interests of justice, the

Court will give defendants an opportunity to seek leave to re-open the record and to admit any

contrary evidence they may have in their possession.

II.    PLAINTIFFS’ PROPOSED EXHIBITS NOS. 227–241

       A. Exhibit 227

       Defendants did not object to plaintiffs’ exhibit 227 and it shall be admitted into evidence.

       B. Exhibit 228

       Defendants object to the admission of plaintiffs’ exhibit 228 on the basis of relevance,

vagueness, and hearsay. Defs.’ Objections [257] 1. Defendants’ objection is overruled. As an

initial matter, this e-mail was produced post-trial yet was in defendants’ possession for nearly a

year. Therefore, per the Court’s April 2011 Order [232], all objections are deemed waived.
                                                2
However, this exhibit would be admissible in any case. The statements contained in this e-mail

chain are relevant to the issue of whether plaintiffs are entitled to injunctive relief because they

indicate that the District’s Child Find policies and procedures were related to this litigation.

Defendants’ vagueness challenge is overruled because it goes to the weight of the evidence, not

its admissibility. As to hearsay, the email chain and the included statements are admissible

hearsay under the exception for “records of regularly conducted activity” of Rule 803(6) of the

Federal Rules of Evidence.

       C. Exhibit 229

       Defendants object to the admission of plaintiffs’ exhibit 229 on the basis of hearsay,

speculation, personal knowledge, and relevance. Id. Defendants’ objection is overruled. As

with the preceding exhibit, this e-mail was produced post-trial yet was in defendants’ possession

for nearly a year. Per the Court’s Order [232], all objections are deemed waived. Even without

the effect of that Order, however, the exhibit is admissible. As to hearsay, the e-mail chain and

statements therein are admissible hearsay under the exception for “records of regularly

conducted activity” of Rule 803(6) of the Federal Rules of Evidence. As to speculation, that

objection is overruled as it goes to the weight of the evidence, not its admissibility. As to

defendants’ “personal knowledge” objection, defendants do not explain how the statements in

the e-mail are outside the personal knowledge of any declarant, and in any case such an objection

goes to the weight of the evidence, not its admissibility. Finally, as to relevance, the e-mail and

the statements therein are relevant to the District’s performance regarding the issue of collecting

and reporting data relating to its Child Find policies and practices.

       D. Exhibit 230

       Defendants’ object to the admission of plaintiffs’ exhibit 230 on the basis of relevance.

Id. Defendants’ objection is overruled. This e-mail chain was, again, produced post-trial but
                                                  3
was in the possession of defendants for well over a year, so all objections are deemed waived.

However, the Court would admit the evidence anyway over defendants’ objection because it is

relevant to show that defendants, in 2010, had not developed clear policies and procedures for

collecting and reporting reliable data, despite recent reforms.

       E. Exhibit 231

       Defendants object to the admission of plaintiffs’ exhibit 231 on the basis of hearsay and

completeness. Id. Defendants’ objection is overruled. This e-mail was produced post-trial but

was in the possession of defendants for well over a year, so all objections are deemed waived.

Nevertheless, the Court would have overruled defendants’ objections. The e-mail is admissible

hearsay under the exception for “records of regularly conducted activity” of Rule 803(6) of the

Federal Rules of Evidence. As to “completeness,” this is not a proper basis for excluding the

evidence, as it goes to the evidence’s weight, not its admissibility. Defendants also provide no

basis for concluding that the e-mail or statements therein are incomplete.

       F. Exhibit 232

       Defendants object to the admission of plaintiffs’ exhibit 232 on the basis of relevance and

hearsay. Id. Defendants’ objection is overruled. This e-mail chain was, again, produced post-

trial but was in the possession of defendants for well over a year, so all objections and privileges

are deemed waived. In any case, the statements contained in this e-mail are relevant to the issue

of the opinion of defendants’ expert regarding the District of Columbia’s past and present special

education policies and practices.     These statements also show that defendants themselves

believed that their own expert’s opinion would be damaging to their case and would show that

defendants had violated their Child Find-related obligations under federal and local law. The

email and the included statements are also admissible hearsay under the exception for “records of

regularly conducted activity” of Rule 803(6) of the Federal Rules of Evidence.
                                                 4
       G. Exhibit 233

       Defendants object to the admission of plaintiffs’ exhibit 233 on the basis of personal

knowledge, relevance, and speculation. Id. Defendants’ objection is overruled. Whether the

statements contained in this e-mail were made upon personal knowledge goes to the weight of

the evidence, not its admissibility, and in any case defendants provide no argument indicating

that the statement is outside of Jerri Johnston-Stewart’s (OSSE’s Early Intervention Program

Manager at the time) personal knowledge. As to relevance, the statements in the e-mail are

relevant to the issue of whether the reforms to the Early Stages Center and its policies and

practices were adequate, and how Part C families were affected in transitioning out of early

intervention services. Finally, defendants’ objection on the basis of speculation is overruled as it

goes to the weight, and not the admissibility, of the evidence.

       H. Exhibit 234

       Defendants object to the admission of plaintiffs’ exhibit 234 on the basis of relevance.

Id. Defendants’ objection is overruled. The statements contained in this exhibit are relevant to

the issue of whether injunctive relief should issue because they suggest that reforms of the

District’s Child Find policies and procedures have occurred because of this lawsuit.

       I. Exhibit 235

       Defendants object to the admission of plaintiffs’ exhibit 235 on the basis of relevance,

hearsay, and personal knowledge. Id. at 2. Defendants’ objection is overruled. As to relevance,

the statements in the e-mail are relevant to the issue of how defendants’ policies and procedures

were performing in November 2009. As to defendants’ hearsay objection, the email and the

included statements are admissible hearsay under the exception for “records of regularly

conducted activity” of Rule 803(6) of the Federal Rules of Evidence. Finally, defendants’

personal knowledge objection is overruled, as that objection goes to the weight of the evidence
                                                 5
and not its admissibility, and defendants provide no arguments suggesting that the statements of

Amy Maisterra, Chief of Staff of OSSE at the time, were made on the basis of information

outside of her personal knowledge.

       J. Exhibit 236

       Defendants object to the admission of plaintiffs’ exhibit 236 on the basis of relevance,

lack of foundation, and vagueness. Id. Defendants’ objection is overruled. The statements in

this document are relevant to show that defendants were aware of their failure to collect and

report reliable data of their Child Find-related policies to the U.S. Department of Education. As

to defendants’ foundation objection, the Court finds that sufficient foundation has been laid for

this evidence to be admitted. Finally, defendants’ vagueness objection is overruled because that

objection goes to the weight of the evidence, not its admissibility.

       K. Exhibit 237

       Defendants did not object to plaintiffs’ exhibit 237 and it shall be admitted into evidence.

       L. Exhibit 238

       Defendants did not object to plaintiffs’ exhibit 238 and it shall be admitted into evidence.

       M. Exhibit 239

       Defendants object to the admission of plaintiffs’ exhibit 239 on the basis of hearsay.

Defendants’ objection is sustained and the Court shall exclude this evidence. The exhibit, a

Washington Post newspaper article, is hearsay, and no exception to the hearsay rule permits its

admission into evidence, as plaintiffs appear to acknowledge. Pls.’ Reply [262] 11.

       N. Exhibit 240

       Defendants object to the admission of plaintiffs’ exhibit 240 on the basis of relevance,

hearsay, vagueness, and lack of foundation. Defs.’ Objections [257] 2. Defendants’ objection is

overruled. The e-mail is relevant to the issue of whether turnover at the District of Columbia
                                                 6
Public Schools could have an adverse impact on defendants’ future ability to live up to their

statutory obligations. As to defendants’ hearsay objection, the email and the included statements

are admissible hearsay under the exception for “records of regularly conducted activity” of Rule

803(6) of the Federal Rules of Evidence. Defendants’ vagueness objection is overruled as that

objection goes to the weight of the evidence, not its admissibility. Finally, the Court finds that

sufficient foundation has been laid for the admission of this evidence.

       O. Exhibit 241

       Defendants object to the admission of plaintiffs’ exhibit 241 on hearsay grounds and

because the affiant was not on the witness list. Id. Defendants’ objection will be sustained as the

affidavit is hearsay that is not covered by any exception in the Federal Rules of Evidence.

III.   CONCLUSION

       Accordingly, it is hereby

       ORDERED that plaintiffs’ Motion [255] for Leave to Re-Open the Record and to Admit

Additional Exhibits is GRANTED IN PART AND DENIED IN PART. Specifically, plaintiffs’

motion is granted as to exhibits 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, and

240, but denied as to exibits 239 and 241. And it is further

       ORDERED that defendants may, within ten (10) days of this Memorandum and Order,

file a motion for leave to re-open the record to admit contrary evidence. Any evidence that

defendants offer at this stage must be limited to evidence that specifically challenges the factual

and other statements contained within the exhibits of plaintiffs that have been admitted into

evidence above.

       SO ORDERED.

       Signed by Royce C. Lamberth, Chief Judge, on October 25, 2011.



                                                 7
