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E.R.K. v. Department of Education

United States District Court, D. Hawaii

May 20, 2016

E.R.K., by his legal guardian R.K.; R.T.D., through his parents R.D. and M.D.; HAWAI`I DISABILITY RIGHTS CENTER, in a representative capacity on behalf of its clients and all others similarly situated, Plaintiffs,
v.
DEPARTMENT OF EDUCATION, State of Hawaii, Defendant.

          AMENDED ORDER REGARDING IDENTIFICATION OF CLASS MEMBERS

          Susan Oki Mollway United States District Judge

         This court held two telephone conferences with counsel on May 18, 2016. Both conferences were on the record. As a result of this court’s consideration of briefs filed in this case and discussions held with counsel, including but not limited to discussions during those two telephone conferences, this court orders the following:

         1. List of Names: No later than May 24, 2016, Plaintiffs shall provide the Department of Education (“DOE”) with a single list that includes all potential class members for whom Plaintiffs say they need dates of birth and/or further contact information, including contact information for relatives or other people listed as the potential class members’ points of contact in the DOE’s Electronic Comprehensive Student Support System (“eCSSS”) database. (This order will sometimes refer to the individuals on the class member list to be provided by Plaintiffs’ counsel as “Listed Class Members.”) The list to be provided by Plaintiffs shall not include (a) potential class members with whom Plaintiffs’ counsel has already had oral communication, or (b) individuals who are known to be excluded from the class, including but not limited to individuals who have expressly declined to be in the class and any so-called “too young” individuals other than the “too young” individuals who have been expressly included in the class by the Magistrate Judge. Because the DOE’s obligations run from the date the DOE is provided with the names of Listed Class Members, Plaintiffs may want to provide those names earlier than the deadline, if possible.

         2. Information from DOE: With respect to Listed Class Members for whom directory information is included in the DOE’s eCSSS database, the DOE is ordered to provide from the eCSSS database all directory information described in Paragraph 3(a) and in Paragraph 3(b) of this order. Such directory information shall be provided in the most readily attainable and cost-effective format, subject to the other provisions of this order. With respect to the DOE’s obligations, this order is restricted to requiring information from the eCSSS database.

         3. Definition of “Directory Information”: For purposes of this order, “directory information” is defined as including both (a) and (b) below:

(a) All information relating to a Listed Class Member’s name, address, telephone number(s), electronic mail address(es), date and place of birth, dates of attendance, and last school attended. Such information is included in the definition of“directory information” in 34 C.F.R. § 99.3, for which, pursuant to 34 C.F.R. § 99.37(b), notice is not required by the Family Education Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232(g). Other matters included in 34 C.F.R. § 99.3 need not be provided by the DOE.
(b) The names, addresses, telephone numbers, and electronic mail addresses (to the extent included in the eCSSS database) for all family members or other individuals listed in the eCSSS database as potential contacts for any Listed Class Member. For each contact person, the DOE shall indicate which Listed Class Member that contact person is connected to.

         4. First Category of “Directory Information”: With respect to the directory information described in Paragraph 3(a) of this order, the DOE is directed to provide Plaintiffs’ counsel with all such information no later than 14 calendar days from the date Plaintiffs give the DOE the names of Listed Class Members, unless the content of all directory information described in Paragraph 3(a) has been previously disclosed to Plaintiffs’ counsel. If the content of any eCSSS directory information has been previously disclosed to Plaintiffs’ counsel, then, regardless of the form of the previous disclosure (that is, even if in a form different from that shown in screenshots from the eCSSS database), the content need not be redisclosed, although the DOE is free to include redisclosures along with any new directory information it provides pursuant to this order. Thus, if it is convenient for the DOE to redisclose, for example, a Listed Class Member’s address while disclosing for the first time the Listed Class Member’s date of birth, then the DOE is free to make such redisclosure, but it need not make any such redisclosure. In addition, both Plaintiffs and the DOE may agree to delete any category of information included in Paragraph 3(a) because that information is unnecessary to Plaintiffs’ ability to identify or contact Listed Class Members, because the parties agree that it would be unduly cumbersome or time-consuming to provide certain information, or for any other reason. If the parties agree to delete a category of information in Paragraph 3(a), no court order is necessary. Absent an agreement, all information required by Paragraph 3(a) must be provided.

         5. Second Category of “Directory Information”: With respect to the directory information described in Paragraph 3(b) of this order, the DOE has raised concerns that FERPA notices are required and that prior FERPA notices have not included any notice relating to individuals other than potential class members themselves. The court here addresses that concern.

         (a) Notice: The court orders the DOE to send, no later than 14 calendar days from the date of this order, the notice set forth below (after inserting the appropriate telephone number in the blank) to each contact person for each Listed Class Member, to the extent the contact person is identified (whether by name or by relation to the Listed Class Member) in the DOE’s eCSSS database:

This notice is being sent to you as ordered by the court in E.R.K. v. Department of Education, Civil No. 10-00436 SOM-KSC, a class action filed in the United States District Court for the District of Hawaii. You have been identified as a contact person for a former special education student who may be entitled to be included in the class. Inclusion in the class may entitle the former student to receive certain benefits. To aid communication with former students who may be entitled to be included in the class, the enclosed order requires the DOE to provide the attorneys representing the class with contact information the DOE has for those former students, some of whom have not been reached at addresses previously used. Your name is included in DOE files as a contact person for one or more former students. As required by the enclosed court order, the DOE will provide the attorneys representing the class with your name and, to the extent included in the DOE’s electronic database, your address, telephone number(s), and electronic mail address(es) unless you let the DOE know in writing that you object. This information can be used by class counsel only for the purpose of communicating with former students or their guardians in connection with the pending federal lawsuit, and for no other purpose. If you do not object, you do not have to do anything, but if you do object, please telephone___ to notify the DOE no later than June 13,

         (b) Addresses: To the extent the eCSSS database does not include a mailing address for a family member or other contact person, the DOE is directed to send the above notice to the most recent address in the eCSSS database for the Listed Class Member. Any such mailing shall be in the following format:

Name of Contact (or description if eCSSS does not include name, e.g., “Guardian for [Listed Class Member]”) C/o Name of Listed Class Member Listed Class Member’s last known address

         However, if the eCSSS database contains an electronic mailing address for the family member or other contact person, the electronic mailing address shall be used in lieu of mailing a ...


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