PAUL ALSTON 1126 KRISTIN L. HOLLAND 10063 MICHELLE N ... of [342] Order … · Case...

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PAUL ALSTON 1126 KRISTIN L. HOLLAND 10063 MICHELLE N. COMEAU 9550 ALSTON HUNT FLOYD & ING 1001 Bishop Street, Suite 1800 Honolulu, Hawaiì 96813 Telephone: (808) 524-1800 Facsimile: (808) 524-4591 E-mail: [email protected] [email protected] [email protected] LOUIS ERTESCHIK 5241 MATTHEW C. BASSETT 6643 JENNIFER V. PATRICIO 8710 HAWAIÌ DISABILITY RIGHTS CENTER 1132 Bishop Street, Suite 2102 Honolulu, Hawaiì 96813 Telephone: (808) 949-2922 Facsimile: (808) 949-2928 Email: [email protected] [email protected] JASON H. KIM 7128 SCHNEIDER WALLACE COTTRELL BRAYTON AND KONECKY, LLP 180 Montgomery Street, Suite 2000 San Francisco, California 94104 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 Email: [email protected] Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI'I

E.R.K., by his legal guardian R.K., R.T.D., through his parents R.D. and M.D.; HAWAIÌ DISABILITY RIGHTS CENTER, in a representative capacity on behalf of its clients and all others similarly situated,

Case No. 10-00436 SOM-KSC PLAINTIFFS’ APPEAL OF MAGISTRATE JUDGE’S ORDER GRANTING IN PART AND DENYING IN PART 1) DEFENDANT’S MOTION WITH REGARD TO EFFORTS

Case 1:10-cv-00436-SOM-KSC Document 346 Filed 03/07/16 of 51 PageID #: 6350

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Plaintiffs, vs. DEPARTMENT OF EDUCATION, State of Hawai`i, Defendant.

IN IDENTIFYING CLASS MEMBERS AND 2) PLAINTIFFS’ MOTION RE IDENTIFICATION OF CLASS MEMBERS [ECF NO. 342]; OR, IN THE ALTERNATIVE, MOTION TO MODIFY THE COURT’S AUGUST 14, 2014, ORDER; CERTIFICATE OF WORD COUNT; DECLARATION OF MICHELLE N. COMEAU; EXHIBITS 1-4; CERTIFICATE OF SERVICE


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TABLE OF CONTENTS_

I. INTRODUCTION .................................................................... 1

II. FACTUAL BACKGROUND ...................................................... 5

A. The Notification Process Proved Faulty ........................... 8

B. The DOE Has Failed to Provide a Remedy to Any Class Member for Eighteen Months .............................. 13

III. ARGUMENT ......................................................................... 15

A. The Portions of the Magistrate Judge’s Order Dismissing Class Members’ Claims Should Be Reviewed De Novo ........................................................ 15

B. The Magistrate Judge Erred in Closing the Class .......... 16

1. The Federal Rules Do Not Permit the Court to Close the Class .................................................... 17

2. Closing the Class Is Not Necessary ....................... 19

C. The Court Should Require the DOE to Find the Missing Class Members and Identify Those Interested in Participating in Services or Settlement ..... 21

D. The Court Erred in Forbidding Class Counsel to Contact Potential Class Members ................................. 27

E. The Magistrate Judge Erred in Excluding Class Members Born After the DOE’s Cutoff Date of August 5, 1993, from the Court’s Compensatory Services Remedy .......................................................... 30

1. These Individuals Meet the Class Definition and Are Therefore in the Class ............................. 30

2. The “Underage” Class Members Were Injured By Act 163 ........................................................... 31


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3. The IDEA’s “Child Find” Requirement Demonstrates that the Disabled Class Members Are Not Presumed to Know the Law Governing Their Right to Receive Special Education ............................................................ 34

F. “Unnecessary Delay” and “Lack of Cooperation” Stem from Fundamental and Irreconcilable Positional Conflicts Between Class Counsel and the DOE ............................................................................ 37

IV. CONCLUSION ...................................................................... 44


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TABLE OF AUTHORITIES

Page(s)

Cases

American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) ................................................................. 19

Arredondo v. Delano Farms Co., 301 F.R.D. 493 (E.D. Cal. 2014) ............................................... 33

Bastidas v. Chappell, 791 F.3d 1155 (9th Cir. 2015) .................................................. 16

Benedict v. Hewlett-Packard Co., Case No. 13-cv-00119-LHK, 2014 WL 587135 (N.D. Cal. Feb. 13, 2014) .......................................................... 33

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984) ................................................................. 18

E.R.K. ex rel. R.K. v. Hawaii Dep’t of Educ., 728 F.3d 982 (9th Cir. 2013) ...................................................... 6

Foster v. St. Jude Medical, Inc., 229 F.R.D. 599 (D. Minn. 2005) ............................................... 22

Freeman v. DirecTV, Inc., 457 F.3d 1001 (9th Cir. 2006) .................................................. 15

Garcia v. Pilgrim’s Pride Corp., 2006 WL 1983174 (E.D. Pa. 2006) ........................................... 29

Goldberg v. Kelly, 397 U.S. 254 (1970) ................................................................. 22

Gray Panthers v. Schweiker, 652 F.2d 146 (D.C. Cir. 1980) .................................................. 22

Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) ................................................................... 29


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Juris v. Inamed Corp., 685 F.3d 1294 (11th Cir. 2012) ................................................ 21

Kiep v. Turner, 80 B.R. 521 (D. Haw. 1987) ...................................................... 15

Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367 (1996) ........................................................... 18, 19

McClelland v. Merck & Co., Civ. No. 06-00543JMS/BMK, 2007 WL 178293 (Jan. 19, 2007) .................................................................... 4, 15

Memphis Light v. Craft, 436 U.S. 1 (1978) ..................................................................... 23

Morgan v. Ward, 699 F. Supp. 1025 (N.D.N.Y. 1988) .......................................... 22

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) ....................................................... 2, 21, 25

Palumbo v. Tele-Communications, Inc., 157 F.R.D. 129 (D.D.C. 1994) .................................................. 28

Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005) .................................................. 34

Resnick v. American Dental Ass’n, 95 F.R.D. 372 (N.D. Ill. 1982) ................................................... 28

Twigg v. Sears, Roebuck & Co., 153 F.3d 1222 (11th Cir. 1998) ................................................ 22

U.S. v. Int’l Union of Petrol. & Indus. Workers, AFL-CIO, 870 F.2d 1450 (9th Cir. 1989) .................................................. 24

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ............................................................. 17


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Statutes

20 U.S.C. § 1412 .............................................................. 23, 34, 35

HRS

§ 26-4 ..................................................................................... 13

§ 92F-3 ..................................................................................... 2

§ 92F-19 .......................................................................... passim

§ 302A-1134(c) (2010) ............................................................... 5

Other Authorities

Bassett, Debra Lyn, “Just Go Away: Representation, Due Process, and Preclusion in Class Actions,” 2009 B.Y.U. L. Rev. 1079 (2009) ............................................. 22

Federal Rules of Civil Procedure

1 ............................................................................................. 42

23 .................................................................................... passim


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PLAINTIFFS’ APPEAL OF MAGISTRATE JUDGE’S ORDER GRANTING IN PART AND DENYING IN PART 1) DEFENDANT’S MOTION WITH REGARD TO EFFORTS IN IDENTIFYING CLASS MEMBERS AND 2) PLAINTIFFS’ MOTION RE IDENTIFICATION

OF CLASS MEMBERS [ECF NO. 342]; OR, IN THE ALTERNATIVE, MOTION TO MODIFY THE COURT’S

AUGUST 14, 2014, ORDER

I. INTRODUCTION

Plaintiffs appeal the Magistrate Judge’s Order (the

“Order”) for four reasons:

First, the Magistrate Judge, though undeniably faced

with a monumental task in preparing groundwork for the delivery of

compensatory services to over 1,500 handicapped individuals, erred

in closing the Class. Specifically: (a) he lacked authority to bar all

relief to the majority of the members of a 23(b)(2) certified class with

a judgment establishing that their rights were violated;1 (b) there is

1 The Magistrate Judge’s comments about overzealous advocacy and lack of cooperation in settlement discussions are misplaced to the extent they were directed at Plaintiffs’ counsel. The Class Members are vulnerable and disabled young people who were denied federally mandated services of great benefit. The parties’ disputes have been not about providing “more” or “less” in the way of services but rather about whether to deny all relief to most of the affected Class Members. Abandoning those who are hard to find, hard to communicate with, and innately hostile to the DOE would be contrary to Class Counsel’s obligations to protect vulnerable clients.


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utterly no cause to deny compensatory education to hundreds of

Class Members just because the DOE wants to withhold services

until everyone is identified and “closing” the Class was deemed to

be a necessary first step toward delivery of services; and (c) the

notice procedures, involving (i) stale contact information which was

never successfully updated and (ii) indirect communications with

Class Members, were not reasonably calculated to reach “most”

Class Members. Mullane v. Cent. Hanover Bank & Trust Co., 339

U.S. 306, 319 (1950).2

Second, the Magistrate Judge erred in permitting the

DOE to provide nothing more current than the years-old contact

information in the DOE’s database. Once it became clear that this

information was not useful in reaching the Class Members, the

Magistrate Judge should have required the DOE to supply

information from other state agencies as it is entitled to do

2 The Magistrate Judge also erred in this regard by failing to strike inadmissible evidence (Order, PageID #6308-09). Even when (as here) a magistrate judge directs the parties to provide information, the subsequent ruling should be based upon competent evidence. See ECF No. 312, PageID #5504-13.


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pursuant to HRS § 92F-19.3 That route would have been faster and

more efficient that any "third party" discovery efforts aimed at the

same entities (which are the only likely holders of current contact

information).

Third, the Magistrate Judge erred in forbidding contact

with Class Members who are being denied a compensatory remedy

because no evidence justifies this significant prior restraint on

Class Counsel’s right to communicate with their clients.

Finally, the Magistrate Judge erred in denying the

compensatory remedy to individuals born after August 5, 1993,

because the evidence demonstrates that many of these individuals

had left school when Act 163 was law and were never given

corrected information regarding their right to participate at ages 20

and 21 (despite the DOE’s statutory obligation to provide this

information to all special education eligible students). That is the

injury they suffered because of Act 163.

3 This section allows inter-agency sharing of information needed for civil law enforcement. “Agency” includes both state AND county agencies. See HRS § 92F-3.


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Under the de novo standard of review applicable to

reports and recommendations regarding dispositive matters (or even

under the lesser standard applicable to non-dispositive rulings), see

McClelland v. Merck & Co., Civ. No. 06-00543 JMS/BMK, 2007 WL

178293, at *2 (Jan. 19, 2007), these portions of the Magistrate

Judge’s Order should be reversed. Plaintiffs respectfully request

the following rulings:

(1) The Court should eliminate the closure of the Class (see

Order, PageID #6309-10) and should require the DOE to offer

suitable compensatory education benefits to every Class Member

who expresses his or her desire for such services within 45 days

after receiving effective notice of his or her entitlement;

(2) The Court should require the DOE to take steps to obtain

current contact information for Class Members who have not yet

been reached (see id. at PageID #6311-16) by engaging in a “multi-

agency effort” as described by Assistant Superintendent Suzanne

Mulcahy to the legislature, calling upon all State agencies to find

the most current contact information for the Class Members.

Plaintiffs request the Court to modify its Compensatory Education

Order, if the Court deems it necessary to do so, to require the DOE


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to make additional efforts to reach a majority of the Class Members

who have not yet received notice of the remedy they have won; and

(3) The Court should set aside the portion of the Order

forbidding Class Counsel to communicate with the absent Class

Members who have not yet been reached or with any of the Class

Members or potential Class Members whom the Magistrate Judge

excluded from the Class (see id. at PageID #6327); and

(4) The Court should reverse the portion of the Magistrate

Judge’s Order excluding individuals the DOE claims are too young,

and should rule instead that these individuals are presumptively

Class Members unless and until the DOE demonstrates (a) they

received continuous services until they reached the age of 22 or

(b) they received notice that they could receive services until age 22

(see id. at PageID #6319-20).

II. FACTUAL BACKGROUND

In 2010, the State adopted Act 163, which denied young

persons access to special education (“SpEd”) in violation of the

Individuals with Disabilities Education Act (“IDEA”). See HRS

§ 302A-1134(c) (2010). Plaintiffs brought this Rule 23(b)(2) class


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action to overturn that law and obtain compensatory services for

those affected by it.

The Plaintiff Class was defined by Judge Ezra in March

2011 to include:

All individuals residing in the State of Hawaii who [are] over the age of 20 on or before the first day of the school year (or who will imminently be over the age of 20 on that date) but under the age of 22 who are entitled to receive special education and related services from Defendant the Hawaii Department of Education under the Individuals with Disabilities [Education] Act.

See ECF No. 31, PageID #685. The Class definition was later

clarified by the parties’ agreement with respect to the beginning

eligibility date. See ECF No. 213-2, PageID #3301.

As the Court is aware, the Ninth Circuit ruled in August

2013 that Act 163 violated the IDEA. See E.R.K. ex rel. R.K. v.

Hawaii Dep’t of Educ., 728 F.3d 982 (9th Cir. 2013). A year after

the Ninth Circuit’s ruling, the State legislature repealed Act 163,

thereby ensuring a right to continued special education services for

thousands of disabled young adults.4 In August 2014, this Court

4 See Legislative Reference Bureau, Bills Passed by the Hawaii State Legislature Regular Session of 2014 at 6, available at

(continued...)


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ruled that the older Class Members, some 1,800 individuals, are

entitled (not compelled) to receive “compensatory services to make

up for the services missed as a result as that improper

determination of ineligibility.” See ECF No. 187 (Compensatory

Education Order), PageID #3155-56. The Court directed the parties

to work with the Magistrate Judge to find the Class Members so

they could be offered appropriate compensatory services—if they

wanted to take them. Because this is a Rule 23(b)(2) Class (with no

opt-in or opt-out features) and because the Class Members were

defined by objective criteria, the Magistrate Judge’s charge to

resolve questions regarding identification was limited. Once the

groups in dispute (i.e., drop outs, “underage”) were resolved, all

remaining members would be entitled to services.

Under the eye of the Magistrate Judge, the parties set out

to inform the Class Members about their rights and determine their

interest in receiving compensatory services.

(...continued) http://lrbhawaii.org/reports/legrpts/lrb/2014/passed14.pdf (SB 2134); http://lrbhawaii.org/reports/legrpts/lrb/2014/acts14.pdf (repeal effective July 7, 2014).


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A. The Notification Process Proved Faulty

Between September and December 2014, the DOE

produced approximately 1,800 names and addresses to Plaintiffs

(the DOE refused to supply phone numbers to Class Counsel). See

ECF Nos. 293-3 (11/30/15 Comeau Decl.) ¶¶ 8-10; ECF Nos. 293-

8, 293-9, 293-10, 293-12. This list included the universe of class

members plus others who the DOE disputed on the basis that they

were born too late to be in the Class, that they actually graduated

with a regular diploma, and that they dropped out and were not

forced to exit.

Although Plaintiffs sent letters to the Class Members at

the addresses provided and held a press conference to seek out

Class Members, see id. ¶ 11, the response rate was very low—fewer

than 125 people called seeking information in response to the

letters or the press conference. Id. ¶ 11.5 Class Counsel requested

5 Of this group, Plaintiffs selected a “Pilot Group” of individuals who agreed to be a part of the first round of assessments and offers, and presented their names to the DOE in December 2014. See ECF Nos. 293-3 ¶ 23; 293-22. The Pilot Group was then assessed in May and June 2015. The DOE issued reports in August 2015 concluding that 15 out of 18 individuals, nearly 85%, had no right

(continued...)


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that the DOE provide phone numbers so that Class Counsel could

contact Class Members directly, but the DOE refused. Id. ¶ 12.

In mid-October 2014, the Court suggested that the

parties engage a third-party calling service for which the DOE was

supposed to advance the costs. Id. ¶ 13. This effort revealed that

the DOE’s information was stale. Between January and March

2015, Ward Research (“Ward”) was able to reach only 388 Class

Members or their families out of more than 1,750 phone numbers

provided. See ECF No. 293-15. Out of that group (using a DOE-

approved script) fully 55% were interested and an additional 12%

said they might be interested. See id. Over 1,350 Class Members

could not be contacted, see id.

Plaintiffs went back to the DOE and requested updated

contact information, but the DOE denied it had any ability to obtain

information from other agencies. See Decl. Michelle N. Comeau

(...continued) to compensatory education—because the DOE concluded they could not benefit from compensatory services. See ECF Nos. 293-3 ¶ 24; 293-23. No services have been provided to this group.


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(“Comeau Decl.”) Ex. 1; see also ECF No. 235, PageID #3444-45.6

Plaintiffs then undertook efforts to update the information,

including contracting with Lexis Nexis to investigate potential

updated contact information and contracting with Ward to make

additional calls to new numbers found. See ECF Nos. 293-3 ¶¶ 16-

17; 293-16. Plaintiffs sought the DOE’s cooperation with this effort

on June 15, 2015, but the DOE refused because Plaintiffs refused

to agree with the DOE’s condition that this would be the final effort

made to contact Class Members. See ECF No. 293-16. With the

Court’s help, the DOE eventually agreed to pay for the search at a

July 30, 2015, status conference. See ECF No. 251, PageID #3573.

Lexis was able to locate updated contact information for

only about 571 Class Members. See ECF Nos. 293-3 ¶17; 293-19.

Of the 571 potential respondents, Ward was able to reach only 123

6 As noted above, the DOE has the power to obtain records from other agencies under HRS § 92F-19. Despite the DOE’s disavowal of access to records, the DOE recently represented to the legislature in that the DOE was in fact pursuing a “huge” “interagency collaborative effort” to serve Class Members. ECF Nos. 331-2 (02/02/16 Comeau Decl.) ¶ 4; 331-3.


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people. See ECF No. 293-19, Page ID #4225. Out of that group,

56% responded yes (50) or maybe (19). Id.

Plaintiffs again searched for updated contact information

indirectly by working with Lexis, this time seeking to determine

family members with the same address (the DOE refused to provide

parent information). See ECF No. 293-20; ECF No. 274, PageID

#3701. In January 2016, using another list of updated contact

information for 165 Class Members, Ward was able to reach 28

additional people, of whom 25 (90%) reported that they were or may

be interested. Comeau Decl. ¶ 5 & Ex. 2. However, 83% could not

be reached. See id.

Plaintiffs have repeatedly requested the DOE’s assistance

in expediting this process by using the DOE’s contacts within other

State agencies, but the DOE has flatly refused. See Comeau Decl.

Ex. 1; ECF No. 331-8 at 43-44, 260.7 As a result of the faulty

notification process:

7 The Order noted that “Defense counsel has reached out to other Hawaii State agencies.” Order, PageID #6312. As far as Plaintiffs are aware, this has happened only twice—(1) when Class Counsel learned of incarcerated Class Members (see note 8, below) and (2)

(continued...)


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Actual contact has been made with only about 650 Class Members (or their parents/guardians). See ECF Nos. 293-8, 293-9, 293-10 (1,800 names); ECF No. 293-15 (388 contacted); 293-19 (123 contacted); 293-3 ¶ 11 (122 responses to letters); Comeau Decl. Ex. 2 (28 contacted). Of those contacted by the third-party calling service, 53% unconditionally expressed a desire for compensatory services and 47% were uncertain or negative. See ECF Nos. 293-15, 293-19; Comeau Decl. Ex. 2.

When Class Counsel was able to obtain phone numbers for and personally contact the latter group about the opportunities for compensatory services, 26% of those contacted decided to obtain services.8

More than 1,000—or about two-thirds of the certified Class—were unable to be reached by mail or by Ward and have apparently not received any (or any effective) notice of their rights because the available contact information is bad. Dozens of Class Members in state prison do not know about this case because the DOE

(...continued) after Class Counsel sought information regarding existing services to the pilot group from the Department of Health, and their attorneys refused. See ECF Nos. 270 at PageID #3677; 273 at PageID #3691. In the first instance, defense counsel “reached out” initially to stop the Department of Safety’s efforts to identify Class Members. See ECF No. 293-3, ¶ 25. In other words, efforts to assist Class Counsel in coordinating with other State agencies have been limited to what the DOE is expressly instructed to do by the Court. 8 That process entailed explaining the breadth and nature of compensatory education, the fact that it does not entail returning the Class Member to a high school campus, and the fact that services will be matched to needs and goals. See ECF No. 294-1 (11/30/16 DiIonno Decl.) ¶¶ 6-7.


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provided bad addresses and did not reveal that these Class Members were incarcerated.9

B. The DOE Has Failed to Provide a Remedy to Any Class Member for Eighteen Months

The DOE, which was tasked with providing compensatory

services in August 2014, has access to much of the baseline

information it needs to provide a remedy in the form of the full

educational records of every Class Member. The DOE also has the

power to obtain the records regarding current services it needs from

sister agencies under HRS § 92F-19. See also HRS § 26-4. Yet the

DOE, by its own admission, has not developed or even taken basic

steps toward preparing a plan for services to the Class. See, e.g.,

ECF No. 293-21 (9/2/15 Farmer Depo.) 187:4-13 (DOE has not

9 Plaintiffs received an initial estimate from an employee of the Department of Public Safety that 200 of the individuals on the DOE’s list may be incarcerated. See ECF No. 293-3, ¶ 25. The DOE subsequently indicated that 75 are now incarcerated. See ECF No. 343, PageID #6334. Either way, this group of wards of the state would never have been reached had this whistleblower not contacted the Hawaii Disability Rights Center. The DOE’s disappointing response was to shut down his attempt to determine who was incarcerated. See id., Ex. 21. Plaintiffs were then forced to bring this issue before the Magistrate Judge, who instructed the DOE to allow the employee to continue his search.


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contacted service providers), 196:25-197:25 (DOE has not planned

to provided services or set aside money for services).

In fact, the DOE has not developed a program of services

for any Class Member. To date, 436 individuals have expressed

interest in receiving compensatory services (not including the

incarcerated Class Members). See ECF No. 293-26. The DOE

acknowledged in August 2015 that at least 93 individuals were

“undisputed.” See ECF No. 293-28. However, the DOE has

evaluated only 18, and made minimal proposals for services to only

three in August 2015 (concluding the other 15 were not entitled to

compensatory education). See ECF Nos. 293-3 ¶ 24; 293-23.

Plaintiffs made counterproposals for several Pilot Group members

in September 2015, but heard nothing back. See ECF No. 279,

PageID #3723; ECF No. 282, PageID #3739; ECF No. 293-3 ¶ 24. In

October 2015, Plaintiffs proposed a services matrix with a global

range of services that could be offered to Class Members with

varying disabilities; aside from cursory feedback, the DOE has

failed to respond. See ECF No. 282, PageID #3739; ECF No. 289,

PageID #3780-81; ECF No. 293-3 ¶ 26; ECF No. 293-25.


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III. ARGUMENT

A. The Portions of the Magistrate Judge’s Order Dismissing Class Members’ Claims Should Be Reviewed De Novo

Where a magistrate judge’s order concerns a

nondispositive matter, the district court must set aside any portion

of the order which is clearly erroneous or contrary to law. Kiep v.

Turner, 80 B.R. 521, 523-24 (D. Haw. 1987). Where the matter is

dispositive, however, the court must review the motion de novo. Id.

Under a de novo standard, this court reviews “the matter anew, the

same as if it had not been heard before, and as if no decision

previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d

1001, 1004 (9th Cir. 2006). The Magistrate Judge’s own

determination to enter an order instead of findings and

recommendations is not dispositive. See, e.g., McClelland v. Merck

& Co., Civ. No. 06-00543JMS/BMK, 2007 WL 178293, at *2

(Jan. 19, 2007) (reviewing Magistrate Judge’s order on motion to

stay de novo despite entry of order rather than findings and

recommendation).

Here, portions of the order Plaintiffs appeal make

dispositive rulings. The Magistrate Judge involuntarily dismissed


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the claims of hundreds of Class Members either because (1) they

had not been reached by February 18, 2016, or (2) they are too

young to participate. If his ruling stands, there will be no further

orders with respect to any of these individuals. The Court should

review the rulings disqualifying them de novo. Cf. Bastidas v.

Chappell, 791 F.3d 1155, 1159-60 (9th Cir. 2015) (explaining that

the authority of magistrate judges is limited by 28 U.S.C. § 636 and

that, with respect to dispositive matters, Congress requires de novo

review by the Article III court).

B. The Magistrate Judge Erred in Closing the Class

This Court assigned the Magistrate Judge to resolve

disputes regarding identifying the Class Members. Closing the

class is not a “dispute concerning the identification of class

members.” The Magistrate Judge did not consider whether the

1000+ people who had not been reached were eligible or ineligible

for services based on the scope of the class definition (and the DOE

made no showing in this regard). Rather, he reasoned that “[t]he

award of compensatory education to class members and/or possible

resolution cannot reasonably be addressed until the scope of the

class is determined.” Order, PageID #6309-10. He then concluded


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that “the identification process shall conclude . . . on this Order’s

issuance date.” Id. at PageID #6310 (emphasis in original). This

would leave only a group of a few hundred with any potential

remedy.

1. The Federal Rules Do Not Permit the Court to Close the Class

Rule 23(b)(2) does not contemplate opting in or opting

out. It is a “mandatory” class. Cf. Wal-Mart Stores, Inc. v. Dukes,

131 S. Ct. 2541, 2559 (2011) (noting that subsection (b)(2) classes

are not given a right to opt out). Therefore, the remedy granted

applies to all of the older Class Members, as long as they meet the

class definition. Determining who does and does not meet the

definition is one thing, but Rule 23 does not contemplate the

determination to be made by the Magistrate Judge, nor did the DOE

provide any authority for its position that a Rule 23(b)(2) class can

be “closed.”

Moreover, disallowing any future claims at this point is

doubly unfair to the Class Members. As Plaintiffs argued in their

Motion, because this lawsuit is a representative litigation, absent

class members are bound by the court’s decision. See ECF No.


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293-1, PageID #4019-20. Therefore, the resolution of this suit will

ordinarily cut off the right of any Class Members to bring their own

claims. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S.

867, 874 (1984) (“under elementary principles of prior adjudication

a judgment in a properly entertained class action is binding on

class members in any subsequent litigation”); Matsushita Elec.

Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 378-79 (1996) (prior class

action precluded subsequent suit).

Yet, as Plaintiffs demonstrated, two-thirds of the Class

have not yet been reached. See supra at pp.11-12; ECF Nos. 293-3

¶ 11, 293-8, 293-9, 293-10, 293-15, 293-19. Therefore, the

Magistrate Judge’s ruling terminates the rights of over 1,000 older

Class Members who (1) have been wronged by Act 163, as

determined by the Ninth Circuit and reaffirmed by this Court, and

(2) may want the significant remedy10 awarded them by this Court’s

Compensatory Education Order, if they can be reached. Yet these 10 A 2010 estimate puts the cost of a year of special education at upwards of $23,000 on average. ECF Nos. 173-1, PageID# 2807; 173-4. Many Class Members have needs that significantly exceed the average SpEd individual, as they were unable to graduate by age 20.


954307v3/9966-1 19

individuals will see no relief from this lawsuit, and may be

precluded from bringing their own suit to receive any additional

remedy. See Matsushita, 516 U.S. at 378-79.11

2. Closing the Class Is Not Necessary

Identification and services need not be mutually

exclusive with respect to the Class as a whole.12 The Compensatory

Education Order did not require a linear progression of

identification and services.13 There are 1,800 people to find. It

would not make sense to proceed in this way given the special

circumstances associated with locating the Class Members and the

time-sensitive nature of the remedy awarded. An initial group of

300+ interested Class Members was identified by Plaintiffs ten

months ago, in June 2015. Comeau Decl. ¶ 6 & Ex. 3. In August

2015, the DOE advised that 93 of these individuals were

“undisputed.” ECF No. 331-15. Plaintiffs have repeatedly called for

services to begin to interested Class Members while efforts are made

11 To the extent the Magistrate Judge determined that the missing Class Members were not Class Members, this would trigger their rights to file individual claims under American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). Nevertheless, as discussed below, there is no reason to exclude them from this Class.


954307v3/9966-1 20

to locate others, and the DOE has never offered any evidence or

persuasive rationale as to why it must withhold budgeting,

assessments, and services, even as to individuals it acknowledges

are in the Class.14

Indeed, the DOE initially agreed in December 2014 to

assess a pilot group and determine what plan of services would suit

an initial group of Class Members. That process fell apart because

(1) nearly 85% of the assessments concluded that the pilot group

members were not entitled to any compensatory education; and

(2) the DOE has displayed no interest in responding to

counterproposals submitted by Plaintiffs. See ECF No. 331-8 at

203, 213-14, 226, 238, 250, 263. The DOE’s position of insistence

(...continued) 12 This issue is one of the core points of disagreement between the parties. Plaintiffs strongly believe, and have repeatedly called for, planning, budgeting, and services for identified Class Members while others are still being contacted. 13 Plaintiffs do not understand the language in the Compensatory Education Order referencing “preliminary steps” to require an exclusive process and, as discussed below, the DOE did not initially take this position, either.

14 See ECF No. 283 (DOE 10/28/15 Status Report) at PageID #3745; ECF No. 289 (11/10/15 DOE Status Report) at PageID #3780-81.


954307v3/9966-1 21

on determining the definitive list of every single Class Member has

also led to services for the 93+ undisputed Class Members falling by

the wayside as the DOE litigated issues of identification and

“closing” the class.

Therefore, the Class should not be closed. Class

Members who want to participate and meet the Class definition

should not be excluded at this point in the case.

C. The Court Should Require the DOE to Find the Missing Class Members and Identify Those Interested in Participating in Services or Settlement

This Court ordered the DOE to provide a remedy to the

older Class Members, ECF No. 187, a remedy that is meaningful

only if the affected Class Members have notice. Notice will not

suffice unless it is “reasonably calculated to reach the absent

parties.” Juris v. Inamed Corp., 685 F.3d 1294, 1321 (11th Cir.

2012); Mullane, 339 U.S. at 319. Plaintiffs recognize that in an

ordinary class action, the notification process may involve only a

letter and newspaper publication, or a letter and a phone call. This

lawsuit is different for several reasons.

First, the Class Members are handicapped young

adults. This matters because special needs groups, such as the


954307v3/9966-1 22

disabled, the elderly, or those without means or education have

been recognized by the Supreme Court as constitutionally entitled

to greater notice of their rights than ordinary citizens.15 See

Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970) (emphasizing the

importance of oral communications over written submissions with

respect to a population that generally lacks education or

professional assistance); Gray Panthers v. Schweiker, 652 F.2d 146,

165-66 (D.C. Cir. 1980) (written notices to elderly, disabled

beneficiaries resolving their benefits claims held constitutionally

15 Due process to absent class members “plays a pivotal role” in courts’ analysis of preclusion, both in the context of ordinary and representative actions. Bassett, Debra Lyn, “Just Go Away: Representation, Due Process, and Preclusion in Class Actions,” 2009 B.Y.U. L. Rev. 1079, 1097 (2009); see, e.g., Twigg v. Sears, Roebuck & Co., 153 F.3d 1222, 1226 (11th Cir. 1998) (“Before the bar of claim preclusion may be applied to the claim of an absent class member, it must be demonstrated that invocation of the bar is consistent with due process ....”); Foster v. St. Jude Medical, Inc., 229 F.R.D. 599, 604 (D. Minn. 2005) (“Because the judgment in a class action has claim preclusion (res judicata) implications ... for the absent class members, due process requires that the interests of absent members be adequately represented by the named class members.” (alteration in original)); Morgan v. Ward, 699 F. Supp. 1025, 1034 (N.D.N.Y. 1988) (limitations on the preclusive effect of a class action “are necessitated ... by the due process problems raised when the judgment preclusion doctrines are applied to class members who were unaware that their membership in the class could foreclose subsequent actions to recover money damages”).


954307v3/9966-1 23

deficient because of the affected population’s unfamiliarity with

legal notices and processes; urging oral notice on remand); Memphis

Light v. Craft, 436 U.S. 1 (1978) (requiring utility company to

explain procedures for challenging a bill in a way that could be

understood by company’s consumers with varying levels of

education and experience).

In this case, those who responded early, to the initial

letters or the first round of phone calls, were, more often than not,

being helped by family members or others who looked out for them.

See, e.g., DOE Mot. (ECF No. 297) Ex. S (sealed). Those Class

Members that lack the same level of family support, who may have

moved since high school, or who may be incarcerated or even

homeless, are no less deserving of services.

The IDEA likewise recognizes that disabled individuals

are not expected to know and seek out the services to which they

are entitled. See 20 U.S.C. § 1412(a)(3). In the context of the IDEA,

the State ordinarily has duties to locate disabled children—and

would have done so with respect to the 20 and 21 year olds who are

now going to receive a remedy as adults under the very same law.

See id.


954307v3/9966-1 24

Second, Plaintiffs did not receive, and have never

obtained, up to date (i.e., actual) contact information. The DOE

provided only its own “last-known” contact information, and has

refused to provide addresses from sister agencies, even though the

law expressly permits the DOE to access records, free of charge,

from any sister agency in the State. HRS § 92F-19; see ECF No.

293-7 (Decl. Debra Farmer) ¶ 34.16 This includes tax records,

Medicaid records, and records associated with state benefits

(including assistance payments and benefits provided by the

Developmental Disabilities Division and the Division of Vocational

Rehabilitation, among others). Plaintiffs have no such access. It is

therefore unsurprising that letters mailed out to the DOE addresses

(which were several years old) garnered only 122 responses. See

16 In other words, if the DOE had received a discovery request for last known contact information it would have been obligated to provide contact information in the possession of other agencies because such information is considered to be in the DOE’s possession, custody or control. See, e.g., U.S. v. Int’l Union of Petrol. & Indus. Workers, AFL-CIO, 870 F.2d 1450 (9th Cir. 1989) (party with a legal right to obtain information has “possession, custody or control”). Its obligation should not be diminished because the request for information was in the form of a court order rather than an interrogatory or document request.


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ECF No. 293-3 ¶ 11. As discussed above, Plaintiffs’ own attempts

to find updated contact information for this group of young adults

have met with only limited success. Based on analysis of the pilot

group, more than two-thirds of the Class Members are likely

current clients of the Developmental Disabilities Division. See

Comeau Decl. ¶ 7.

Finally, the ordinary notification processes have not

worked. Although the Supreme Court has recognized that actual

receipt of notice by every class member is not required under

principles of due process, the notice must be “reasonably certain” to

reach “most” Class Members. Mullane, 339 U.S. at 319.

Common sense suggests that a majority of the eligible

Class Members will want a right to free compensatory education

when they are informed of this remedy (in an understandable

fashion). The Ward Research calls, even using a DOE-approved

script, have borne that out. See supra at pp.8-10 (55%-90%

interested). When Class Counsel followed up, even 36% of the

“Maybes” and 14% of the “Nos” decided to participate. See Comeau

Decl. ¶ 8.


954307v3/9966-1 26

Yet of the 1,700+ phone numbers Ward Research initially

tried, nearly 80% did not reach the Class Members. After Plaintiffs

arranged for Lexis Nexis to update these numbers, Ward tried again

(with 571 “updated numbers”) but again reached only 21% of the

numbers called. See ECF No. 293-19, PageID #4225. Plaintiffs

then sought to “reverse engineer” contact with parents (because the

DOE refused to provide parent information) and sought updated

addresses for those individuals using Lexis. Again, only 17% of the

calls (28/165) were successful. Comeau Decl. ¶ 5 & Ex. 2.

There are approximately 1,150 individuals who have not

yet been reached—nearly two-thirds of the Class. Plaintiffs submit

that the next step should not be to move on without them. That is

not consistent with the principles underlying due process to absent

class members, or with the IDEA’s standards. At this point in the

case, the best way to reach the remaining Class Members is

through information that is truly up to date, provided in a manner

that is designed to reach Class Members where they actually are

and in a manner that allows them to ask questions. The State is

well-positioned to make this effort; Plaintiffs are not.


954307v3/9966-1 27

For example, a jointly-crafted explanation of the right to

compensatory education services could be provided by a Class

Member’s DOH case manager. The prison system could utilize its

Corrections Education Specialists to meet with incarcerated Class

Members. At a minimum, the Department of Taxation could

provide the DOE with actual, current contact information for Class

Members that could be used to contact those missing Class

Members whose updated contact information was not available to

Lexis’s data sources.

Plaintiffs therefore request that the Court order the DOE

to make additional efforts to reach the Class Members. Plaintiffs

understood the Court’s Compensatory Education Order to

encompass such efforts; if it does not, Plaintiffs request the Court

modify the Order to direct the DOE to make these efforts.

D. The Court Erred in Forbidding Class Counsel to Contact Potential Class Members

Page 24 of the Order forbids Class Counsel from

contacting potential Class Members. See Order, PageID #6327 (“No

further efforts shall be undertaken to identify or contact potential

class members.”). Plaintiffs respectfully submit that such an order


954307v3/9966-1 28

is clearly erroneous because it improperly limits Class Counsel’s

communications with their clients.

This directive prevents Class Counsel from

communicating with two groups: (1) the “missing” Class Members,

discussed above; and (2) the Class Members who have already

expressed interest in receiving compensatory education, but who

have been held to be too young or otherwise disqualified from the

compensatory education remedy.

Plaintiffs demonstrated in their Motion that

approximately 1,175 Class Members had not yet been reached.

ECF No. 293-12, PageID #4017 (that number has dropped by about

30 since the Motion was filed). Each of these individuals are

members (or, at minimum, putative members) of a certified class.

They are, indisputably, represented parties.17 Class Counsel is free

to communicate with these individuals as clients.

17 See Palumbo v. Tele-Communications, Inc., 157 F.R.D. 129, 133 (D.D.C. 1994) (“[I]n certifying a class action, the Court confers on absent persons the status of litigants and ‘creates an attorney-client relationship between those persons and a lawyer or group of lawyers.’”) (citation omitted); Resnick v. American Dental Ass’n, 95 F.R.D. 372, 376 (N.D. Ill. 1982) (“[w]ithout question the unnamed

(continued...)


954307v3/9966-1 29

The Supreme Court has cautioned that a blanket order

forbidding class counsel from communicating with putative class

members is inconsistent with Rule 23 and potentially with the First

Amendment. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981)

(noting that the proposed order “involved serious restraints on

expression”). Bernard explained that restrictions on

communications between class counsel and potential class

members may be restricted only on an evidentiary showing that

abusive or otherwise misleading communications are occurring or

will occur. Id. at 102-04 (reversing restrictive order); see also

Garcia v. Pilgrim’s Pride Corp., 2006 WL 1983174, at *2 (E.D. Pa.

2006) (denying defense motion to prevent oral communications

between putative class counsel and employment claim class; citing

cases invalidating restraints on class counsel’s communications

with putative class members).

(...continued) class members, once the class has been certified, are ‘represented by’ the class counsel”); Manual for Complex Litigation (Fourth) § 21.33 at 300 (2004) (“Once a class has been certified, the rules governing communications apply as though each class member is a client of the class counsel.”).


954307v3/9966-1 30

The “missing” Class Members are still within the

definition of the Class, and that remains true even if this Court

upholds the Magistrate Judge’s exclusion of these individuals from

participation in the compensatory remedy. They are therefore still

clients of Class Counsel in this case. Likewise, nothing in the

record before the Magistrate Judge supports an order forbidding

Class Counsel from contacting the individuals who were excluded

from the compensatory remedy by the Magistrate Judge’s Order.

Indeed, these individuals are currently unaware of the outcome of

the parties’ cross-motions, their current status within this lawsuit,

and their rights as a result of the Magistrate Judge’s order. This

portion of the Order should be set aside.

E. The Magistrate Judge Erred in Excluding Class Members Born After the DOE’s Cutoff Date of August 5, 1993, from the Court’s Compensatory Services Remedy

1. These Individuals Meet the Class Definition and Are Therefore in the Class

The Magistrate Judge dismissed the claims of hundreds

of Class Members born after August 5, 1993 (including

approximately 95 individuals listed on the DOE’s Exhibit P and

many more who have not yet been reached), because, he


954307v3/9966-1 31

determined, these individuals “do not fall within the class

definition.” The Class definition, however, includes all special

education-eligible individuals “residing in the State of Hawaii who

[are] over the age of 20 on or before the first day of the school year

(or who will imminently be over the age of 20 on that date) but

under the age of 22.”18 The individuals on the DOE’s Exhibit P, who

presumably all received special education (since their names were

provided by the DOE as individuals who might be affected by Act

163), are Class Members.

2. The “Underage” Class Members Were Injured By Act 163

Nor should these Class Members—whose names were

provided to Plaintiffs in 2014 by the DOE as potential Class

Members—be excluded from the compensatory services remedy.

The DOE claims, based on screenshots showing these Class

Members’ birth dates, that these Class Members were not injured

by Act 163 and therefore lack standing to receive compensatory

18 For the avoidance of doubt, the DOE subsequently acknowledged the relevant dates. See ECF No. 213 (Plaintiffs’ Opposition), PageID #3290-91; ECF No. 213-1 (Alston Decl.).


954307v3/9966-1 32

services. See ECF Nos. 297-1, PageID #4440-42; DOE Mot. Ex. P

(under seal).19

This blanket exclusion is flawed because it fails to

acknowledge that: (1) the Class Members at issue left school prior to

the Fall of 2013; therefore, they would have been told that their

eligibility terminated at age 20; and (2) the DOE never told them

that they had a right to return at ages 20 and 21. Therefore, the

fact that these Class Members did not turn up at their home

schools looking for re-enrollment in 2013 or 2014 is unsurprising,

and should not disqualify them from seeking compensatory services

in this lawsuit. If Act 163 had never been enacted, then the DOE

would never have told the Class Members who left school that they

could not return after age 19.

19 The Order states that Defendant’s evidence establishes that the underage Class Members “declined FAPE,” Order, PageID #6319, but that is not correct. The DOE submitted only single-page screen shots showing birth dates for the vast majority of the “underage” Class Members. Exhibit “V,” cited by the Order, contains additional documents but concerns only ten people. It does not appear to contain evidence that any of these individuals declined to receive a FAPE. See ECF No. 335, PageID #6158-59 & Ex. V. As discussed herein, that is the critical issue for this group—they did not decline to receive a FAPE, because the DOE did not notify them of any such right at age 20 and 21.


954307v3/9966-1 33

Plaintiffs submitted evidence on this point in the form of

declarations from a representative sample of the Class Members

objected to by the DOE. All of the underage individuals save M.P.

were not in school when they turned age 20 or 21.20 They left with

certificates or for other reasons prior to that time. They all stated

that they did not know they had any right to return at ages 20 or

21.21 Therefore, the so-called “underage” Class Members whose

names were provided by the DOE did suffer an injury because of

Act 163. 20 M.P. was aged out at 20 in 2014. The Magistrate Judge deemed him to be a part of the Class. See Order, PageID #6320. 21 See Sealed Declarations. The Magistrate Judge appeared to agree with this point by permitting Class Members who submitted declarations representing that they did not receive notice of their right to services to remain in the Class. See Order, Page ID#6326. The Magistrate Judge erred, however, in shutting the door on the remaining younger Class Members. Plaintiffs provided declarations from 15% of the 93 Class Members the DOE had objected to as “too young” as of the filing of Plaintiff’s motion. See ECF No. 293-28. This is a sufficient showing to suggest that the DOE likely failed to give notice to many others on the DOE’s Exhibit P. Cf. Arredondo v. Delano Farms Co., 301 F.R.D. 493, 506, 526 (E.D. Cal. 2014) (on motion for class certification, examining 69 declarations submitted by Plaintiffs on potential class of approximately 14,000 individuals); Benedict v. Hewlett-Packard Co., Case No. 13-cv-00119-LHK, 2014 WL 587135, at *9 (N.D. Cal. Feb. 13, 2014) (33 declarations sufficient to show similar treatment of 9,800 potential class members).


954307v3/9966-1 34

3. The IDEA’s “Child Find” Requirement Demonstrates that the Disabled Class Members Are Not Presumed to Know the Law Governing Their Right to Receive Special Education

The DOE has argued that “Plaintiffs are presumed to

know changes in the law,” e.g., DOE Mot. at PageID #4441 n.15,

but that legal maxim does not apply to the IDEA. In fact, the IDEA

rejects this premise, and does not simply assume that disabled

children and their families will seek out the FAPE to which they are

entitled. See Reid ex rel. Reid v. District of Columbia, 401 F.3d 516,

518 (D.C. Cir. 2005) (the IDEA does not permit school districts to

simply wait for parents to demand special instruction). Instead, the

IDEA imposes an affirmative obligation on school systems to

“ensure that all children with disabilities residing in the State . . .

regardless of the severity of their disabilities, and who are in in need

of special education and related services, are identified, located, and

evaluated.” Id. at 519; 20 U.S.C. § 1412(a)(3)(A).

The duties to identify, evaluate, and determine eligibility

for disabled children are collectively known as the “Child Find”

obligation. The Child Find mandate applies to all children who

reside within a State, including those who attend private schools


954307v3/9966-1 35

and public schools, highly mobile children, migrants, the homeless,

and wards of the state. 20 U.S.C. § 1412(a)(3). Consistent with

this, the DOE’s stated policy is to send a letter every year to special

education eligible individuals to advise them that they can come

back to school. See ECF No. 293-7 ¶¶ 18-20. A sampling of these

“FAPE letters” is attached to Plaintiffs’ Motion. See ECF No. 293-

30. Yet the majority of the Class Members who submitted

declarations received no such notification, see Sealed Declarations;

this is consistent with the DOE’s own evidence which demonstrates,

with respect to the sample of drop outs, that less than 10% of

former students received a FAPE letter after exiting. See ECF No.

312, PageID #5519-20; DOE Mot. Ex. R (sealed).

Moreover, the letters themselves are highly misleading.

For example, the DOE told many students that they were only

eligible to receive special education services until the age of 20.

See, e.g., DOE Mot. Sealed Ex. R at R0120 (letter to R.E.); R0140

(letter to M.H.-R.); R0211 (letter to J.K.); R0219 (letter to D.L.);

R0235 (letter to M.L.); R0418 (letter to J.W.-D.). The DOE also told

many students incorrectly that after a specified short period of time,

“a reevaluation will not be conducted,” the student “will no longer


954307v3/9966-1 36

be eligible for special education,” and the student “will no longer

receive” a FAPE notice. See, e.g., R0056 (letter to E.C.); R0140

(letter to M.H.-R.); R0212 (letter to J.K.); R0235 (letter to M.L.);

R0418 (letter to J.W.-D.).

The DOE was obligated by the IDEA and its own policies

to advise the Class Members who had left school prior to the fall of

2013 that they were eligible to return to school until they reached

the age of 22. However, many Plaintiffs and their families received

no such notification or, at best, received a confusing and

misleading notice.22 Their understanding of their rights, which was

shaped by Act 163, was never corrected by the DOE.

Therefore, the Court should decline to apply a cutoff date

to the younger Class Members. Given the DOE’s demonstrated

failure to notify many Class Members of their rights, the younger

Class Members whose names were provided to Plaintiffs by the DOE

should be presumptively eligible for compensatory education unless

they received continuous services until they reached the age of 22 22 And the DOE has acknowledged that the FAPE letters were not sent to individuals over age 20 until August 2014. See ECF No. 293-7 ¶¶ 18-20.


954307v3/9966-1 37

or the DOE properly informed them of their right to receive services

at age 20 and 21. The DOE has not demonstrated this with respect

to any of the “underage” individuals challenged in its Exhibit R.

F. “Unnecessary Delay” and “Lack of Cooperation” Stem from Fundamental and Irreconcilable Positional Conflicts Between Class Counsel and the DOE

Delay and lack of cooperation are concerns Plaintiffs’

counsel shares with the Magistrate Judge. See Order at 6. From

the beginning of the process before the Magistrate Judge, however,

the parties have held conflicting views about their mission.

Plaintiffs’ counsel believed—and still believe—four things that

compelled them (as fiduciaries to mentally and emotionally

handicapped young persons who had been deprived of access to

federally mandated services) to make demands the DOE (and the

Magistrate Judge) thought were unwarranted or wrong:

Defendant has a duty to deliver a judicially-mandated

remedy, already earned by the Class Members, and every

Class Member is entitled to receive services as soon as

possible. Hence the rights of willing and identified Class

Members have been compromised greatly by the DOE’s

refusal to provide services as promptly as possible; and,


954307v3/9966-1 38

the rights of others cannot be compromised when efforts

to contact them failed.

Because Defendant’s legal duty to provide compensatory

services was already established, Defendant had the

corollary duty to use the State’s resources to find the

Class Members and deliver services.23

Because failure of effective notice means a Class Member

gets nothing, and because Class membership has already

been defined by objective criteria, there is no basis for

(and the Magistrate Judge, even assuming he had

jurisdiction, had no cause for) “closing” the Class and

denying services to any Class Member (other than to

those who declined after being informed of their rights).

It is therefore wrong to assert (or rule) that the DOE’s

obligations are not triggered until it knows how many

23 As discussed above, this premise was recently supported by Assistant Superintendent Mulcahy, who represented to the 2016 legislature that the DOE was conducting multiple rounds of searches as well as coordinating a multi-agency collaborative effort to provide services. While there should have been such a search, to date, it has not occurred.


954307v3/9966-1 39

Class Members want compensatory services and that

services can be denied to people who, even now, have not

been advised of their entitlement to relief. Cf. Order at

Page ID #6309, 6315-16.

As counsel for a certified class, Class Counsel were

entitled to access the Class Members’ records and to

communicate freely with the Class Members without

having their communications scripted, monitored, or

limited by the DOE.

In contrast, defense counsel held different views, which

were primarily oriented toward limiting the number of persons who

receive compensatory services. They insisted:

Defendant had no obligation to use the State’s resources

to find current contact information for Class Members

(despite their statutory authority to seek such

information without charge). This, for example, excused

the DOE’s failure to reveal that dozens of “missing” Class

Members are incarcerated in State facilities.


954307v3/9966-1 40

No services need to be provided until the number of Class

Members who want compensatory services is known.

And,

Despite bad and incomplete information provided by the

DOE, and despite the failure of notice efforts, the rights

of Class Members can be terminated.

The DOE’s arguments, adopted by the Magistrate Judge’s

Order, do not lead to some Class Members getting a smaller

recovery; they lead to most of the handicapped persons impacted by

Act 163 getting nothing at all. This contrasts markedly with the

normal class action procedure where a remedy based upon a

judgment (as opposed to a settlement) is not forfeited because the

deserving class member cannot be contacted. Escheated, maybe,

but never forfeited outright.24

From the beginning of the process, the parties also

fundamentally disagreed about the rights of Class Counsel and the

24 Magistrate Judge Chang has proposed “monetizing” the compensatory services, giving the Class Members (all now adults) the option to design and implement their own compensatory services. In that circumstance, causing a forfeiture is even harder to accept when both the denial of rights and the remedy are known.


954307v3/9966-1 41

most effective means of notice. Class Counsel wanted all of the

available DOE documents regarding the Class Members, see, e.g.,

ECF No. 331-8 at 49-50; the DOE insisted it could provide nothing

other than an address unless and until all of their FERPA consent

forms were signed, and refused to seek a joint order to release DOE

documents to Plaintiffs. See, e.g., id. at 246-27. Plaintiffs

repeatedly asked the Magistrate Judge to issue an order compelling

production of these records for the Class Members, see, e.g., id. at

59, 240; he did not do so until after closing the Class—too late to

permit Class Counsel to use the information to (1) find Class

Members (i.e., by obtaining the names of parents); or (2) talk with

Class Members about their rights and the nature of the

compensatory services they might receive.

The DOE refused to turn over telephone numbers, and

would provide them only to a neutral third party to make calls

using a jointly written script. See ECF Nos. 293-12, 293-13. Then,

when most of those numbers were disconnected, incorrect, or never

answered, the parties agreed Ward would use updated Lexis data

bases to try again. Still, over 1,150 Class Members were never

contacted.


954307v3/9966-1 42

Throughout this time, Class Counsel demanded that the

DOE draw on other state agencies to get better contact information.

See Comeau Decl. Ex. 1; ECF No. 331-8 at 43-44, 260. The DOE

has the right, by law, to seek such information without charge, even

when it is beyond the reach of a private party’s subpoena or when

the subpoenaed party could charge class counsel for the cost in

compiling the requested information. See HRS § 92F-19.

At the same time the Magistrate Judge cited FRCP 1

regarding efficiency, he chided class counsel for not undertaking

“third party discovery.” See Order, PageID #6312. Discovery

against whom? Since the parties jointly obtained expensive (but

ultimately incomplete) Lexis data bases, the only target of that

discovery could have been the same state and county agencies the

DOE can freely call upon under Chapter 92F. How is efficiency

served by doing indirectly through motion- and cost-creating

mechanisms mimicking exactly what the DOE could have done

directly and for free? 25 And, why should Class Counsel have to do

25 By way of example—the Magistrate Judge ordered the release of certain Department of Health records, as noted in the Order. See

(continued...)


954307v3/9966-1 43

that when Defendant was duty bound to deliver services to the

Class Members?

The answers to these rhetorical questions are obvious:

when this Court ordered Defendant to produce the last known

contact information, it surely expected the State to do its best to

find and compile that data. The State failed, and the Magistrate

Judge wrongly put the burden of that failure on Class Counsel.

(...continued) Order, PageID #6312. Unfortunately, after significant back and forth, the deputy attorney general for the Developmental Disabilities Division told Class Counsel the DDD would oppose any order releasing records of Class Members unless Class Counsel could state with 100% certainty that those Class Members were receiving services from the Department of Health so as to avoid the DOH having to search its records unnecessarily. See Comeau Decl. Ex. 4. Rather than fight over this catch-22 condition, Plaintiffs agreed—resulting in an order to release only 13 sets of records, for which Plaintiffs were charged 25¢ a page. See Comeau Decl. ¶ 7 & Ex. 4; ECF No. 287.

Then, at the most recent status conference, the DOE said it would be useful for Plaintiffs to obtain records from all other agencies providing services to the Class Members and turn all of those records over to the DOE for the DOE’s review. After discussion with the Magistrate Judge, it was decided that Plaintiffs will proceed to subpoena records from State agencies for approximately 40 individuals, to be provided to the DOE. This is the very information Plaintiffs sought to have the DOH release four months ago! It is unclear whether the state agencies will provide this information to Plaintiffs, given their prior objection.


954307v3/9966-1 44

IV. CONCLUSION

For the reasons set forth above, Plaintiffs respectfully

request that this Court reject and set aside the portions of the

Magistrate Judge’s Order identified herein. Plaintiffs request the

Court to modify its Compensatory Education Order, if the Court

deems it necessary to do so, to require the DOE to make additional

efforts to reach a majority of the Class Members who have not yet

received notice of the remedy they have won.

DATED: Honolulu, Hawai`i, March 7, 2016.

/s/ Michelle N. Comeau PAUL ALSTON KRISTIN L. HOLLAND MICHELLE N. COMEAU Attorneys for Plaintiffs


954307v3/9966-1


FOR THE DISTRICT OF HAWAI'I

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, vs. DEPARTMENT OF EDUCATION, State of Hawai`i, Defendant.

Case No. 10-00436 SOM-KSC CERTIFICATE OF WORD COUNT

CERTIFICATE OF WORD COUNT Pursuant to Local Rule 7.5, I hereby certify that

PLAINTIFFS’ APPEAL OF MAGISTRATE JUDGE’S ORDER

GRANTING IN PART AND DENYING IN PART 1) DEFENDANT’S

MOTION WITH REGARD TO EFFORTS IN IDENTIFYING CLASS

MEMBERS AND 2) PLAINTIFFS’ MOTION RE IDENTIFICATION OF

CLASS MEMBERS [ECF NO. 342]; OR, IN THE ALTERNATIVE,

MOTION TO MODIFY THE COURT’S AUGUST 14, 2014, ORDER

was typed using 14-point, Bookman Old Style font and contains

Case 1:10-cv-00436-SOM-KSC Document 346-1 Filed 03/07/16 Page 1 of 2 PageID #: 6401

954307v3/9966-1 2

8,797 words, exclusive of case caption, table of contents, table of

authorities, exhibits, declarations, certificates of counsel, and

certificate of service.




955342v1/9966-1


FOR THE DISTRICT OF HAWAI'I 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, vs. DEPARTMENT OF EDUCATION, State of Hawai`i, Defendant.

Case No. 10-00436 SOM-KSC DECLARATION OF MICHELLE N. COMEAU

DECLARATION OF MICHELLE N. COMEAU I, MICHELLE N. COMEAU, do hereby declare that:

1. I am an attorney with the law firm of Alston Hunt

Floyd & Ing ("AHFI"), counsel for Plaintiffs in this matter.

2. Unless otherwise stated, I make this Declaration

based on my personal knowledge and am competent to testify as to

the matters set forth herein.

3. I make this Declaration in support of Plaintiffs'

Appeal of Magistrate Judge's Order Granting in Part and Denying in


955342v1/9966-1 2

Part 1) Defendant's Motion With Regard to Efforts in Identifying Class

Members and 2) Plaintiffs' Motion Re Identification of Class Members

[ECF No. 343]; Or, in the Alternative, Motion to Modify the Court's

August 14, 2014 Order.

4. Attached hereto as Exhibit 1 is a true and correct

redacted copy of email correspondence between myself and Kunio

Kuwabe, counsel for Defendant, dated June 2, 2015, to June 5,

2015.


copy of an email I received from Margarita Ayala of Ward Research

to Class Counsel, reporting on Ward Research’s calling results in

January 2016. I have reviewed the calling results for the group that

Ward could not contact. There are 137 individuals on that list.


copy of an email I sent to Mr. Kuwabe on June 16, 2015, as well as

a true and correct redacted copy of one of the attachments to that

email.

7. Based my review of our communications with the

the “pilot group” of 18 Class Members, 13 out of 18 (72%) currently

receive services from the Department of Health, Developmental


955342v1/9966-1 3

Disabilities Division. After Judge Chang ordered the release of

these records, Plaintiffs were charged for the records of these

individuals at a production rate of 25¢ per page. Attached hereto

as Exhibit 4 is a true and correct copy of email correspondence on

November 3, 2015, between myself, DOE counsel Carter Siu, and

DOH counsel Tara Molnar, regarding production of DOH records.

8. In October and November 2015, an attorney

(Zachary DiIonno) and a paralegal (Noreen Kanada) from our office

contacted 63 individuals who had previously responded “Maybe” to

the Ward Research calls, and 54 individuals who had previously

responded “No” to the Ward Research calls. After Mr. DiIonno or

Ms. Kanada had an opportunity to explain the concept of

compensatory services and answer the Class Members or families’

individual questions, twenty-three (23) who had responded “Maybe”

and eight (8) who had responded “No” expressed a desire to receive

services.

I declare under penalty of perjury that the foregoing is

true and correct.

DATED: Honolulu, Hawai`i, March 7, 2016. /s/ Michelle N. Comeau MICHELLE N. COMEAU


Michelle Comeau - Re: ERK - re June 2 2015 EMail

From: Michelle ComeauTo: [email protected]: 6/5/2015 2:03 PMSubject: Re: ERK - re June 2 2015 EMailCc: Chrystn Eads; Claire Wong Black; Kristin Holland; PAUL Alston; Zach ...

Kunio - This email is to confirm our conversation this morning. We discussed the following issues:

You told me that the DOE is standing by its position that it will not provide parents access to the assessments, and that it is standard protocol not to do so. I stated that parents who want to attend are seeking to be involved simply because they want to provide support for their children and enable the class member to participate, and that we are informed that parents have in the past been able to observe. I asked whether the DOE's standard protocol was a written document and you stated it was not. You stated you received two reports that parents who have been allowed to participate in these assessments have interfered. I asked for additional information on this, and you said you would provide that information.

We confirmed that the DOE will provide responses to the four questions, as discussed, to families/class members who would like answers. You agreed families/class members who wanted responses in writing could get responses in writing (for example, by email).

We discussed the use of the four teams and the individual issues that have arisen in the past week. You stated that the DOE assigned the four teams according to your 5/29 letter. These teams randomly divided up class members. You did not know the purpose of the division into these four groups. We discussed the issues I raised with respect to the schedule for and agreed that if additional issues arise with respect to individual class members' assessments we will contact you directly for resolution. I told you we have sought obtain updated contact information for and I will provide that as soon as possible.

You confirmed that, setting aside the issue of who is paying for independent assessments, the DOE has provided Plaintiffs with any objections it may have to the specific assessors and does not specifically object to any of the other assessors offered by Plaintiffs.

On the issue of the outstanding DOE records, you stated you believed you have all the of records and you will produce them next week beginning on Monday and rolling into Tuesday or Wednesday if needed.

Finally, with respect to the issue of obtaining updated contact information for the class members whom we could not reach, you stated that the DOE will not provide updated contact information because public agencies cannot share information with the DOE. You agreed to review a quote from a private data source.

We agreed to have another call next week Friday at 11 AM. I will call you at that time.

Michelle N. ComeauAttorney at LawAlston Hunt Floyd & Ing1001 Bishop Street, Suite 1800, Honolulu, Hawaii 96813(808) 524-1800 | [email protected] | www.ahfi.com

NOTICE: The information contained in this email is confidential and may also be attorney-client privileged. This information is intended only for use by the individual to whom it is addressed. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this email in error, please immediately notify the sender by return email, and delete this email, any attachments, and all copies.

>>> <[email protected]> 6/4/2015 4:10 PM >>>Confidential and Privileged Attorney-Client Communication

OK michelle - I'll call you at 11

Kunio Kuwabe, Esq.

Deputy Attorney General

Education Division

Phone No: (808) 586-1435 (direct)

Phone No: (808) 586-1255 (general office)

FAX No: (808) 586-1488

__________________________________________________________________________________________________________________________________________

Confidentiality Notice:

This e-mail, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

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EXHIBIT 1

From: "Michelle Comeau" < [email protected]>

To: "Claire Wong Black"< [email protected]>, "Chrystn Eads" <[email protected]>, "Kristin Holland" <[email protected]>, "PAUL Alston"< [email protected]>, "Zach DiIonno" <[email protected]>, <

[email protected]>, <[email protected]>, < [email protected]>, <[email protected]>

Cc: <[email protected]>

Date: 06/04/2015 04:01 PM

Subject: Re: ERK - re June 2 2015 EMail

Kunio - I am available to talk tomorrow at 11.

Michelle N. Comeau

Attorney at Law

Alston Hunt Floyd & Ing

1001 Bishop Street, Suite 1800, Honolulu, Hawaii 96813

(808) 524-1800 | [email protected] | www.ahfi.com


>>> <[email protected]> 6/4/2015 9:07 AM >>>

Michelle

I told you yesterday morning that I got your email (which was sent the previous evening) - and would be working on responses in due course (and that acknowledged present status of assessments).

But with respect to the matters re: questions and parent participation - as we discussed in the status conference on Tuesday, yes, it would have far better to have such discussions before assessments started as it would expected that such discussions on matters that are not normal could take some time.

That being said, I am moving as expeditiously within reason to get responses to your office.

I am reviewing the alternative questions and parent participation with the DOE - with regard to the latter matter, as you heard during the status conference, the standard assessment protocol does not allow for anyone to be present - so what is being asked re: parent participation is not normal, not standard, so I am trying to determine if there is some alternative arrangement that can be worked out that allows a parent ability to observe without interfering and impacting the integrity of the assessment process.

On other specific matters noted in your email:

1. - According to the DOE assessors, parents did not request to replace any assessors. All assessments have been completed and the assessment team is proceeding to prepare a report.

2. - There were scheduling problems due to family commitments in the past weeks. And assessments are now scheduled for 6/10 and 6/17. There were not 12 days of assessments scheduled - per normal procedures, various alternative dates are offered - I don't know the particulars re: the various alternative dates that were discussed but there are only 2 days of assessments scheduled.

There is one matter re: a student and scheduling where we will need further information from your office: The DOE has not been able to contact #31 - all phone numbers are disconnected/out of service, even the number on the consent from your office. So, could your office contact this family for a number

where the DOE can reach the student for scheduling.

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Regarding other matters:

• Records have recently come in and I expect that I will be delivering records to your office on Monday, possibly some tomorrow.• Regarding the FAPE Letter to - as I understand matters, she apparently is part of your youngest group of ERK students - those who were 20 in the

2013 year and so she got the FAPE letter because she was still in the up to 22 age group - given her status in the ERK lawsuit, however, the FAPE should not have been sent - I am still following up on this matter - I believe there were other students in this same age group as that got FAPE Letters but will verify all of this and update your office

• Regarding the ERK assessors for whom the DOE requested further information - again, with the understanding that the DOE statement re: any objection or lack of objection to any assessor does not mean that the DOE agrees to pay for any assessments by private assessors, for the group of assessors for whom we requested further information (we have the documented history re: who these individuals are so it will not repeated here) - for that group, the DOE has no objections to this group of assessors.

On the 30b6 I will followup in a separate communication to you on that.

Regarding communications between us, open communications on case of this nature is a good idea - however, I cannot commit to a regularly scheduled telephone call with you every week at a date/time scheduled from now until some end date. I have other commitments that I am responsible for. That being said, I will call you tomorrow at 11 am, if that time is OK with you, and we can discuss matters. IF 11 am is not good, then I am OK for a discussion at 10 am. Then, if there is a need for another call between us the following week, then we can schedule something for next week.

Regards,

Kunio

Kunio Kuwabe, Esq.


Education Division

Phone No: (808) 586-1435 (direct)


FAX No: (808) 586-1488

__________________________________________________________________________________________________________________________________________




To: "Chrystn Eads" <[email protected]>, "Kristin Holland" <[email protected]>, "PAUL Alston"< [email protected]>, "Zach DiIonno" <[email protected]>,< [email protected]>,

<[email protected]>, < [email protected]>, <[email protected]>

Cc: "Claire Wong Black"< [email protected]>, <[email protected]>

Date: 06/03/2015 05:51 PM

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Subject: Re: ERK - re June 2 2015 EMail

Kunio - We have not heard back from you on any of the issues which were raised during the status conference yesterday morning and further detailed in our questions below. Assessments are ongoing but we still do not have any idea how or why the DOE is approaching the assessments in the manner it is because no one has ever taken the time to share that information. Meanwhile parents continue to be turned away, ignored, or over-scheduled by the DOE, to the detriment of the class members. If we do not hear back from you by tomorrow morning on the urgent issues I noted below, we will be calling the court to seek another status conference to try to get answers.

Michelle N. Comeau

Attorney at Law






Michelle

Acknowledging receipt of your e-mail - will be responding on the various matters raised in your email later in due course (and yes, I understand that assessments have started and due course does take that into account).

Kunio

Kunio Kuwabe, Esq.


Education Division

Phone No: (808) 586-1435 (direct)

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FAX No: (808) 586-1488

__________________________________________________________________________________________________________________________________________




To: <[email protected]>

Cc: "Chrystn Eads" <[email protected]>, "Kristin Holland" <[email protected]>, "PAUL Alston"< [email protected]>, "Zach DiIonno" <[email protected]>,< [email protected]>, "Jennifer Patricio"

<[email protected]>, "Louis Erteschik" <[email protected]>, "Matthew Bassett" <[email protected]>

Date: 06/02/2015 09:22 PM

Subject: ERK - outstanding issues and questions

Kunio - following up on your question during the status conference, we have reviewed the Rule 30(b)(6) depo notice. The class definition was simply taken from the certification order. We do not intend to argue that the class includes students who turned 20 after Act 163 was repealed (July 2014) and received uninterrupted services. If you require an amended notice to that effect, let me know. We do intend to explore whether the DOE provided uninterrupted service (or any service) to class members who turned 20 before the start of the 2013-14 school year. We have heard from some class members that the DOE may not have done so.

In addition, please see the following questions and follow ups below regarding several outstanding items in this case.

Regarding assessments (these items are urgent as assessments are well underway):

1. As Paul mentioned during the status conference, we are willing to hold off from sending attorneys to assessments for the time being. Can you please confirm that parents will not be turned away and may attend and observe the assessments. We learned this afternoon that

was turned away from this assessment, even though she had previously attended prior assessments conducted for ERK. She described

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the atmosphere at the assessment as "adversarial." We think it is important that the DOE rethink its approach to parental supervision right away.

2. We also discussed the issue of taking a common sense approach to the assessments and parents/class members being able to obtain information about what is happening. As discussed during the status conference, we have reduced the number of questions to the following: (1) what test/tests are being done today; (2) did you review my/my child's records prior to doing the assessment; (3) what experience do you have with young adults whose needs are similar to mine/my child's? (4) What types of services are you considering? In what setting? Please confirm that parents or class members will be able to receive meaningful and timely answers to these basic questions.

3. Can you please provide us with information regarding the DOE's four teams? Today was the first we have heard about this approach. How were the Pilot Group members divided? Why is it being done this way? In keeping with Judge Chang's exhortation to the parties, we are trying to head off disputes at the end of the assessment process to avoid the need for duplicate assessments, added costs, and delays. Providing this information now will assist both sides.

4. We have received a request from a parent who canceled an assessment and asked to switch to a different assessor. Please advise who he can contact to make this happen.

5. We received a call today from the family of a Pilot Group member who is being asked to participate in 12 days worth of assessments, with 1-3 sessions for each assessment, spread over multiple days. This is impossible for them and has discouraged the family to the point that they are considering dropping out. Please call me to discuss how to alleviate the burden on this class member/family. The class member has an updated ISP.

Other

1. We have not received follow up information regarding the FAPE letter that a class member received in early May. How many class members received this letter, and why was it sent? We provided the letter to you during the May 11 settlement conference, and I am reattaching it here.

2. We have not received records for many of the class members, even though consents were sent to the DOE. Please provide those records to us. Of primary importance are the records for the following pilot group members: (consent sent on 5/1/15); (consent sent on 3/20/2015); (consent sent on 4/17/15).

3. On February 4, 2015, we sent you a list of independent assessors. You rejected several of them on March 9, 2015. On April 3, 2015, we sent you information regarding several of these assessors for whom you requested more information. We did not receive a response regarding this group. Are these assessors, and the other assessors to whom the DOE has not objected, acceptable to the DOE (setting aside the issue of who pays)? I am reattaching our list and have highlighted the assessors to whom the DOE has not objected.

Finally, given the pace of this case and keeping in mind Judge Chang's urging that the parties seek to avoid disputes and delays as much as possible, we would like to propose that we have a regular status call weekly to discuss the progress for the week and to resolve issues as they arise. Please let us know if you agree to this and whether you are available on Thursday or Friday of this week for such a call.

Regards,

Michelle

Michelle N. Comeau

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Attorney at Law





[attachment "2015.5.1.ltr.DOE.recd.5.11.15.K entitled.pdf" deleted by Kunio Kuwabe/AG/StateHiUS] [attachment "2015-02-04 Ltr from Comeau re Assessors.pdf" deleted by Kunio Kuwabe/AG/StateHiUS]

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Michelle Comeau - ERK v. DOE Datafiles - Round 3

From: "Margarita Ayala" <[email protected]>To: "'Michelle Comeau'" <[email protected]>Date: 1/22/2016 5:25 PMSubject: ERK v. DOE Datafiles - Round 3Cc: "'Becki Ward'" <[email protected]>Attachments: COULD NOT CONTACT_DID NOT REACH.6826 ROUND 3.xls;

MAYBE_DEPENDS_NEED TO KNOW MORE.6826 ROUND 3.xls; NO, NOT INTERESTED.6826 ROUND 3.xls; YES, INTERESTED.6826 ROUND 3.xls

Dear Michelle,

Attached are the data files for Round 3 of the ERK v. DOE calling. From the list that you gave us, we were able to find and interview 28 students. Their replies are shown below.

YES, INTERESTED: 21MAYBE/DEPENDS/NEED TO KNOW MORE: 4NO, NOT INTERESTED: 3

The other names on the list either could not be associated with a student or the student no longer lives there/no new contact information or the phone number doesn’t work. The dispositions for each phone number are in the COULD NOT CONTACT/DID NOT REACH file.

Fielding took place January 819. At least four attempts were made for each working number. Voicemail messages were left at the third attempt.

If you have any questions or concerns, Michelle, please don’t hesitate to contact me.

Best,

Margarita Ayala

Research AnalystWard Research, Inc.828 Fort Street Mall, Suite 210Honolulu, HI 96813Email: [email protected]: 8085852301

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Michelle Comeau - ERK - Services for Second Group of Class Members; Assessors' Forms; Telephone Numbers for "Maybes"

From: Michelle ComeauTo: [email protected]: 6/16/2015 5:00 PMSubject: ERK - Services for Second Group of Class Members; Assessors' Forms; Telephone Numbers

for "Maybes"Cc: [email protected]; Jennifer Patricio; Louis Erteschik; Matth...Attachments: ERK - Second Group of Class Members 6.16.15.pdf;

UPDATED___MAYBE_DEPENDS_NEED TO KNOW MORE_CLIENT COPY.6640_2.xlsx

Kunio,

Based on your comments during today's status conference, the assessments are nearly completed for the first group. I am attaching a list of 306 class members who want to receive services. This email serves as written consent that this second group would like to receive services and that the DOE is authorized to contact them to arrange for assessments.

Please provide a schedule for conducting assessments for the second group and give us the date when the DOE intends to start calling the second group of class members to schedule assessments so that we can prepare them to receive the calls.

In the interest of delivering services as quickly as possible, Plaintiffs will not be obtaining the FERPA record releases for this entire group prior to the assessments. Some have been received already, as noted on the attached list. For the remainder, we ask instead that the DOE obtain the FERPA record release consent at the assessment itself, and that the records be provided to class counsel thereafter.

Second, you mentioned today that there was a form or forms in use by the assessors. Please send us copies of these forms.

Finally, as ordered by Judge Chang, please send us immediately the telephone numbers for the 48 individuals that responded "maybe" and requested more information during the Ward calls. That list is attached. We can also get the numbers directly from Ward Research, provided you authorize their release.

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EXHIBIT 3

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From: Michelle ComeauTo: [email protected]: 11/3/2015 4:00 PMSubject: RE: [ERK Special Education Lawsuit] Submitting Signed DOH Authorization FormsCc: Kristin Holland; Noreen Kanada; PAUL Alston; Zach DiIonno; Ryan.W.Ro...

Tara,

Again, I think we would have to have a meet and confer on this when you've had a chance to look at the list and when we can discuss more fully the burden you are asserting exists. Our understanding is that many many people in our class are receiving services from the DOH. The class is large, yes, but the purpose of this exercise is to allow the DOE and the DOH, which are both state agencies serving disabled individuals, to coordinate the provision of services to a common group of disabled individuals. In other words, it is not a burden, it is an opportunity for two state agencies to work together. Without knowing more about the work on your end associated with looking up names I would have to be guessing, but I can't imagine how individual phone calls to hundreds of people would be a more efficient process.

Nevertheless, in the interest of moving this forward with additional delays, Plaintiffs will agree to include on the Exhibit A the names of the individuals in our pilot group who we are told receive DOH services. This is approximately 10 people.

We will let you know when the order is entered. We or the DOE may seek to supplement the list, but we will let you know so you have an opportunity to make your concerns known to the court.

Regards,Michelle



>>> <[email protected]> 11/3/2015 3:18 PM >>>Michelle,

Would it be possible to file an order with an Exhibit A that consists of only the names associated with the authorizations that you've submitted to date? When I was last in court, there was talk of the class being as large as 500-600 people. It is extremely

3/7/2016


nmk

Typewritten Text

EXHIBIT 4

nmk

Typewritten Text

time-consuming for a non-party such as DDD to manually search its database to cross-reference such a list, when counsel could easily ask their clients if they receive DDD services and generate a concise list.

If the order and Exhibit A consists of only the names associated with the authorizations that you've submitted to date, then I don't see a problem with having the meetings on Thursday and Friday as scheduled, as long as a filed order is in place. However, if you would like to wait to contact your clients to create a more complete list, then the meetings should be postponed.

Sincerely,

Tara K.C.S. MolnarDeputy Attorney GeneralHealth and Human Services Division465 South King Street, Room 200Honolulu, HI 96813(808) 587-3067 (Office)(808) 587-3077 (Fax)

NOTICE: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you have received this communication and/or attachments in error, please notify the sender via email immediately and destroy all electronic and paper copies.

-----"Michelle Comeau" <[email protected]> wrote: -----To: [email protected]: "Michelle Comeau" <[email protected]>Date: 11/03/2015 01:15PMCc: "Kristin Holland" <[email protected]>, "Noreen Kanada" <[email protected]>, "PAUL Alston" <[email protected]>, "Zach DiIonno" <[email protected]>, "Carter K Siu" <[email protected]>, "Holly T Shikada" <[email protected]>, "Ryan W Roylo" <[email protected]>Subject: RE: [ERK Special Education Lawsuit] Submitting Signed DOH Authorization Forms

Tara,

In response to your final point, we disagree, but would be happy to meet and confer with you about your concerns after you've had a chance to look over the list. I do not believe this is a question that must be resolved today because while the order is authorizing release of information (about the individuals on exhibit A), neither party has actually requested any DDD information except as to the individuals that you and Zach have been discussing and about whom the meetings are scheduled this week. And there is no disagreement that these individuals are

3/7/2016


receiving DDD services. Agreed? If not, and you believe this objection must delay the meetings that have been scheduled, let me know.

Regards,Michelle



>>> <[email protected]> 11/3/2015 12:15 PM >>>If any of the individuals on Exhibit A do not currently receive services from DDD, then they are more than welcome to apply for services at any time.

However, as a practical matter, if the list contains names of individuals who do not currently receive services from DDD, then DDD would not have records regarding these individuals and would have no information to disclose about these individuals.

In addition, it is time-consuming and inefficient for DDD, a non-party, to search its records to determine who on this list receives services. Wouldn't it be faster if counselasked their clients if they are currently receiving DDD services?

Sincerely,

Tara K.C.S. Molnar


Health and Human Services Division

465 South King Street, Room 200

Honolulu, HI 96813

3/7/2016


(808) 587-3067 (Office)

(808) 587-3077 (Fax)

NOTICE: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you have received this communication and/or attachments in error, please notify the sender via email immediately and destroy all electronic and paper copies.

From: "Michelle Comeau"<[email protected]>

To: [email protected]

Cc: "Kristin Holland"<[email protected]>, "Noreen Kanada" <[email protected]>, "PAUL Alston" <[email protected]>, "Zach DiIonno"<[email protected]>, "Carter K Siu" <[email protected]>, "Holly T Shikada" <[email protected]>, "Ryan W Roylo" <[email protected]>

Date: 11/03/2015 11:49 AM

Subject: RE: [ERK SpecialEducation Lawsuit] Submitting Signed DOH Authorization Forms

Thank you, I will make those changes. With respect to your questions regarding Exhibit A, the individuals on that list have indicated they are interested in receiving compensatory education services in this lawsuit. We do not know at this time which of these people are also receiving services from DDD, although we believe many of themare. Therefore, the order will state that the individuals listed "currently may receive services from non-party Developmental Disabilities Division, State of Hawaii Department of Health." If you haveany other questions, please feel free to give me a call.

Michelle N. Comeau

Attorney at Law


3/7/2016



(808) 524-1800 | [email protected]| www.ahfi.com

NOTICE: The information contained in this email is confidential and may also be attorney-client privileged. This information is intendedonly for use by the individual to whom it is addressed. If you are not the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received this email in error, please immediately notify the sender by return email, and delete this email, any attachments, and all copies.


Thank you for the opportunity to reviewthe order.

The only requested change would be tothe first sentence after "NOW, THEREFORE, IT IS ORDERED." I would ask that the sentence be changed to either "DDD shall disclosePHI" or "DDD shall produce records containing PHI." Right now it reads as though DDD is creating (i.e. producing) PHI. In addition, it may be helpful to include "and the court" at the end of thissentence to indicate that this PHI will also be disclosed to the court.

I'm somewhat confused by Carter's commentbelow. What is meant by "yourintention is to list all “interested” potential class members on Exhibit “A?" Are the individuals listed on Exhibit A people currentlyreceiving services? Or will the list also include people who are interested in receiving services?

Sincerely,

Tara K.C.S. Molnar


Health and Human Services Division

3/7/2016


465 South King Street, Room 200

Honolulu, HI 96813

(808) 587-3067 (Office)

(808) 587-3077 (Fax)

NOTICE: This e-mail message, includingany attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you have received this communication and/or attachments in error, please notify the sender via email immediately and destroy all electronic andpaper copies.

From: "Michelle Comeau"<[email protected]>

To: "Carter K Siu" <[email protected]>, "Tara K Molnar" <[email protected]>

Cc: "Kristin Holland"< [email protected]>, "Noreen Kanada" <[email protected]>,"PAUL Alston" <[email protected]>, "Zach DiIonno" < [email protected]>, "Holly T Shikada" <[email protected]>, "Ryan W Roylo" <[email protected]>

Date: 11/03/2015 11:01 AM

Subject: RE: [ERK Special Education Lawsuit] Submitting Signed DOH Authorization Forms

3/7/2016


I will make that change.

Michelle N. Comeau

Attorney at Law





>>> "Siu, Carter K" <[email protected]>11/3/2015 10:49 AM >>>

I think the provision isfine. The only problem you may run into Exhibit “A” which is purported to be a list of people currently receiving services from nonparty DDD. Because your intention is to list all “interested” potential class members on Exhibit “A,” perhaps a disclaimer of “may” be receivingservices would be more appropriate.

Carter K. Siu

3/7/2016


Department of the Attorney General

Education Division

235 S. Beretania Street, Room 304

Honolulu, Hawaii 96813

Tel: (808) 5861255

Confidentiality Notice : This email message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you are not the intended recipient,please contact the sender by reply email and destroy all copies of the original message.

3/7/2016


954307v3/9966-1

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the date and method of

service noted below, a true and correct copy of the foregoing was

served on the following at their last known address:

Served electronically through CM/ECF on March 7, 2016: Carter K. Siu, Esq. [email protected] Ryan W. Roylo, Esq. [email protected] Holly T. Shikada, Esq. [email protected] Attorneys for Defendant DEPARTMENT OF EDUCATION




DONNA AHUNA - Activity in Case 1:10-cv-00436-SOM-KSC P.-K. et al v. Department of Education, State of Hawai'i Appeal of Magistrate Judge Decision to District Court

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

District of Hawaii

Notice of Electronic Filing

The following transaction was entered by Comeau, Michelle on 3/7/2016 at 8:58 PM HST and filed on 3/7/2016

Docket Text:APPEAL OF MAGISTRATE JUDGE DECISION to District Court by M. D., R. T. D. (through his parents R.D. and M.D., for themselves and on behalf of a class of those similarly situated,), R. D., Hawaii Disability Rights Center, E.R. K. re [342] Order on Motion for Miscellaneous Relief,,,,,,, (Attachments: # (1) Certificate of Word Count, # (2) Declaration of Michelle N. Comeau, # (3) Exhibit 1 - 6/2/15 to 6/5/15 emails, # (4) Exhibit 2 - 1/22/16 Ayala email to Comeau, # (5) Exhibit 3 - 6/16/15 Comeau email to Kuwabe, # (6) Exhibit 4 - 11/3/15 Comeau email to Molnar, # (7) Certificate of Service)(Comeau, Michelle)

1:10-cv-00436-SOM-KSC Notice has been electronically mailed to:

From: <[email protected]>To: <[email protected]>Date: 3/7/2016 8:58 PMSubject: Activity in Case 1:10-cv-00436-SOM-KSC P.-K. et al v. Department of Education, State of

Hawai'i Appeal of Magistrate Judge Decision to District CourtBc: DONNA AHUNA

Case Name: P.-K. et al v. Department of Education, State of Hawai'iCase Number: 1:10-cv-00436-SOM-KSCFiler: M. D.

R. T. D. Hawaii Disability Rights CenterE.R. K.

Document Number: 346

Page 1 of 3

3/7/2016file:///C:/Users/DKA/AppData/Local/Temp/XPgrpwise/56DDEB74AHFIPD01AHFIPO011...

Adam T. Snow [email protected], [email protected], [email protected], [email protected]

Carter K. Siu [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]

Claire Wong Black [email protected], [email protected], [email protected]

Gary S. Suganuma [email protected], [email protected], [email protected], [email protected], [email protected]

Harvey E. Henderson , Jr [email protected], [email protected]

Holly T. Shikada [email protected], [email protected],[email protected], [email protected]

Jason H. Kim [email protected], [email protected]

Jennifer Visitacion Patricio [email protected], [email protected]

Kristin L. Holland [email protected], [email protected], [email protected]

Kunio Kuwabe [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]

Louis Erteschik [email protected], [email protected]

Matthew C. Bassett [email protected], [email protected]

Michelle N. Comeau [email protected], [email protected], [email protected]

Paul Alston [email protected], [email protected], [email protected]

Ryan W. Roylo [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]

Steve K. Miyasaka [email protected], [email protected],[email protected], [email protected], [email protected]

1:10-cv-00436-SOM-KSC Notice will not be electronically mailed to:

Chrystn K.A. Eads Alston Hunt Floyd & Ing1001 Bishop St Ste 1800Honolulu, HI 96813

The following document(s) are associated with this transaction:

Document description:Main DocumentOriginal filename:n/a

Page 2 of 3


Electronic document Stamp:[STAMP dcecfStamp_ID=1095854936 [Date=3/7/2016] [FileNumber=2056860-0][b16defa781bff0f40107e559064e0fadb56458ef22fd664729e378bdbf76c71738d2b517c2f77b0692cccaf8924bfb1abe698ea227e2b427b36b3fdef2bc8055]]Document description: Certificate of Word CountOriginal filename:n/aElectronic document Stamp:[STAMP dcecfStamp_ID=1095854936 [Date=3/7/2016] [FileNumber=2056860-1][632504a910f57d155f1ac4d68de210be6d1ada09229d1e06694a722263d97386cff4151c987bc94b04cb08f2e21e9a6f796c2e70cef009a17d3ad0318f6e6b8c]]Document description:Declaration of Michelle N. ComeauOriginal filename:n/aElectronic document Stamp:[STAMP dcecfStamp_ID=1095854936 [Date=3/7/2016] [FileNumber=2056860-2][6c0c7d66f4c6c7cb975590410ceaaca351da9917abf2d5696f63de9cc08fc2c478987e322be2f5c95cb33f584170a71d5e057f4f9d8aa3bf10d8a53f707de2b3]]Document description:Exhibit 1 - 6/2/15 to 6/5/15 emailsOriginal filename:n/aElectronic document Stamp:[STAMP dcecfStamp_ID=1095854936 [Date=3/7/2016] [FileNumber=2056860-3][8d4fed17a643edad6ab75e4b6ec47be567924ca0e87e91c443dbe10f9a628cfbb6b287962de7c01ff6b317c49abf5a2e4ac095c2cb1ee30bd910e1bf77def8be]]Document description:Exhibit 2 - 1/22/16 Ayala email to ComeauOriginal filename:n/aElectronic document Stamp:[STAMP dcecfStamp_ID=1095854936 [Date=3/7/2016] [FileNumber=2056860-4][b350e755a50aaa3134a4ca2ceb8abfd8423ade14e8df1dcf07074c998cbdf3d50d29cb7e6b2f4b7a442ca98e6ca52828bead32cd1307f741bf0fff744654278a]]Document description:Exhibit 3 - 6/16/15 Comeau email to KuwabeOriginal filename:n/aElectronic document Stamp:[STAMP dcecfStamp_ID=1095854936 [Date=3/7/2016] [FileNumber=2056860-5][c0068c9bc68656dc207b68303e9077ed03dc57cd6c9c782e0c22ebe6a7e4cad21013a77b82e35e55c5df31b570dc2a363e5dd4f507edbfa8121cbeeb1d371335]]Document description:Exhibit 4 - 11/3/15 Comeau email to MolnarOriginal filename:n/aElectronic document Stamp:[STAMP dcecfStamp_ID=1095854936 [Date=3/7/2016] [FileNumber=2056860-6][6683c597336a59f4e97a910b42772561ac0c230c4043119d0f8859c7b8598aaf972d0bb8b1395aa3e3279ceb2a93c01d9c992d64757c4860fe116ffe3fd6e621]]Document description:Certificate of Service Original filename:n/aElectronic document Stamp:[STAMP dcecfStamp_ID=1095854936 [Date=3/7/2016] [FileNumber=2056860-7][234b58a2b821dafff432f8e0043a3e9f45bc4598884d988871290f144415d7d4e03fd50d8267d01ce6f0f7dc4c3852139ca4055512e63839839c21fa358feeb4]]

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PAUL ALSTON 1126 KRISTIN L. HOLLAND 10063 MICHELLE N ... of [342] Order … · Case...

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