ADMISSIBILITY (DISCOVERABILITY) OF SCHOOL RECORDS – New York
Directs full disclosure of all matter material and necessary in the prosecution or
defense of an action
There were no cases that I found in New York where either Plaintiff or Defendant
challenged the use of the school records of the plaintiff at trial. They are readily
admissible as long as they are authenticated. There are multiple sections within the
school records that contain hearsay information about the plaintiff mother, father and
siblings, as well as often information about extended family that, at least as to
medical information, would have a privilege attach. There have been times at trial
where the records are subject, in part, to redaction of the privileged material.
You have to take the good with the bad. Plaintiff will usually need the school records
admitted in order to highlight a history of special education services, to document
past IQ testing and often to provide the jury with tangible evidence of poor grades
and academic struggles despite Johnny being a child who, “tries hard but struggles.”
What better to show this than report cards, teacher’s comments and standardized
test scores? They are the records upon which both plaintiff and defense experts rely
and as such, their admissibility in whole will not be challenged, but a heated side bar
or impassioned motion in limine to keep out the passing remark about the third
cousin on the father’s side who was in a mental hospital has been known to happen.
So, often along with the information to support plaintiff’s academic struggles comes
a host of potential factors, “confounders” the likes of which have been the fuel for
many a motion to obtain the academic records of mothers, fathers and siblings. The
end result is that each motion is decided on a case-by-case basis and the final
decision on discoverability rests in the sound discretion of the trier of fact.
WHERE IT ALL BEGAN (W ELL, PRETTY MUCH)
Back in 1991, in a non-lead case, the issue of the discoverability of school records
was addressed in the case, Wepy v. Shen, 175 AD2d 124 (2nd Dep’t 2004). The
appellate court permitted the production of the non-party sibling school records Mom
had testified in her deposition that two of the siblings had certain medical conditions.
The defendant submitted an affidavit of a medical expert stating that a possible
connection existed between the neurological problems of the plaintiff and those of
her siblings which would support a defense that the injuries sustained by plaintiff had
a genetic cause. This was deemed to be a demonstration of relevancy.
In 1997, the Second Department held in Salkey v. Mott, 237 AD2d 504, that the trial
court did not improvidently exercise sound discretion when it ordered the infant
plaintiff’s mother to submit to an IQ test and to supply authorizations for nonprivileged academic records. The mother was also a plaintiff in the case. The
decision contained no analysis.
In 1998, in Anderson v. Seigel, 255 AD2d 409, the Second Department reversed the
lower court who had denied the defendants’ motion for the production of academic
records of the mother and non-party siblings. It also compelled the mother to
undergo IQ testing. The lower court had distinguished both Salkey and Wepy,
finding that there had been no prior testimony showing that the siblings had any
neurological or cognitive problems and that the defendants had failed to show the
court why the requested records would be material and necessary to the defense of
the case. The Second Department held that the records were likely to contain matter
that would be relevant. However, as there might also be privileged material
contained in the records, the records were to first be submitted to the lower cort for
in camera inspection. Dad was not required to produce his academic records as he
was not a party and had not been served with the motion. The decision contained
In 1999, the First Department decided to get their piece of the action, deciding
Monica W. v. Milevoi, 252 AD2d 260 (1st Dep’t, 1999). In Monica W.. the mother
was deposed over a course of five days and asked over 100 questions about the
non-party siblings of the infant plaintiff. She was ordered by her attorney not to
answer. When defense moved to compel her to attend a further deposition to get
responses to the objected areas of questioning, the trial court denied their request
and the First Department. In pertinent part, affirmed.
While the non-party siblings’ academic records may not be privileged per se, the
siblings’ privacy was entitled to protection absent a showing that the defendants’
need for disclosure outweighed the importance of protecting the non-parties’ privacy.
The appellate court found that the absence of an expert affidavit to demonstrate that
the extent to which the adverse effects of lead exposure contributed to the mental
and physical condition of the infant plaintiff cannot be ascertained by reference to
objective clinical criteria and expert testimony.
The mental condition of the non-party siblings was not at issue. The Court reasoned
that the mental condition of the non-party siblings was not at issue. That a sibling
suffered from a cognitive deficit demonstrated nothing unless the possibility that the
sibling was also exposed to lead can be ruled out as a factor contributing to the
condition. That would require delving into the siblings’ medical history, which was
privileged. And that would be a no-no. The classic Catch 22.
In March, 2000, the Albany Supreme Court, in Van Epps v. County of Albany, 184
Misc.2d 159(2000) held that the defendants were not entitled to the discovery of
parental and sibling academic records
The Van Epps Court found that the defendants were not entitled to discovery of
parental and sibling academic records or information because defendants had failed
to demonstrate a need for the disclosure of the non-party academic records
sufficient to outweigh the need for protection of the non-parties’ privacy.
The court expressed hesitancy to compel production of such information because to
do so would open the door to more questioning rather than narrow and focus the
scope of the litigation.
The court held that if the requested disclosure was allowed, the defendants would
merely embark on a highly intrusive, and yet, never-ending foray into the realm of
speculation that offers no hope of achieving a resolution of any causality issues.
This is a particularly good case because it lists out the dueling cases on the issue
First vs. Second Department with the Third Department, at least at this juncture,
declining to expand discovery to include non-parties.
This helped lead the way for the Court of Appeal, in May, 2000, to jump into the fray
in Andon v. 302-304 Mott Street Associates, 94 NY2d 740(2000) While the issue
was about compelling a mother to take an IQ test and not about the discovery of
academic records, the analysis of the Court of Appeals in rendering the decision not
to compel such an examination, is relevant.
The Court of Appeals delineated specific criteria in how it went about coming to its
1) Whether the information sought was speculative in nature;
2) Whether it would delay proceedings by turning the fact-finding process
Into a series of mini-trials about what may have contributed to the findings
sought to be introduced at trial; and
3) Whether, upon consideration of the “crucial” search for truth, the relief
sought would create undue delay occasioned by battling experts.
The Court of Appeals also took into consideration the burden imposed and the
personal nature of the information sought.
This brings us to Ward v. County of Oneida, 19 AD3d 1108, 4 th Dep’t (2005). In that
case, the Fourth Department held that the parents’ educational records were
deemed to be “of a confidential and private nature,” citing to the Family Educational
Rights and Privacy Act of 1974. The defendants were held to have not made a
factual showing that the requested records were relevant and material to the injuries
sustained by plaintiff.
But wait, as on the heels of Ward, we are faced with Adams v. Rizzo, NY Slip Op.
52135(U) (2006) Bottom line on this one, after all is said and done, defendants
submitted an expert affidavit that was sufficient to show that the request for the
supplemental deposition of the mother, compelling her to answer questions about
siblings that she had been ordered not to answer, must be answered. There is also a
long, long analysis of FERPA.
There are recent decisions regarding discovery of sibling records, such as Scott v.
Carson. 2010 NY Slip Op 50931, which granted the production of the records after
defendants produced an affidavit of an expert, along with a “plethora” of cited
scientific literature. The Court balanced both Ward and Andon in coming to its
decision. It is important to note tha the court may have come to a very different
decision but for the fact here were other records that indicated there were other
medical issues of concern.
In Ryan v. Simma, a 2011 Rensselaer case, records were permitted to be produced,
but subject to in camera inspection first.
The bottom line on these types of motions are that they continue to be decided on a