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WOODS v. NEW JERSEY DEPT. OF EDUC.

July 2, 1993

DONALD WOODS AND DIANE WOODS on behalf of their daughter, T.W. Plaintiffs,
v.
NEW JERSEY DEPARTMENT OF EDUCATION; NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DIVISION OF DEVELOPMENT OF HUMAN SERVICES, DIVISION OF YOUTH AND FAMILY SERVICES; MONROE TOWNSHIP BOARD OF EDUCATION, Defendants.



The opinion of the court was delivered by: ROBERT B. KUGLER

 KUGLER, United States Magistrate Judge:

 Deponent Marilyn Arons brings this motion for the entry of a Protective Order pursuant to Fed. R. Civ. P. 26(c), quashing the subpoena issued for Arons' deposition by defendant Monroe Township Board of Education ("Board of Education"). *fn1" For the reasons set forth below, Arons' motion is denied without prejudice.

 FACTS AND PROCEDURAL BACKGROUND

 Plaintiffs Donald and Diane Woods filed this action on behalf of their daughter T.W., alleging that various state and local agencies in New Jersey violated the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400-1485 and 42 U.S.C. § 1983 by failing, inter alia, to fund the residential portion of T.W.'s placement in an out-of-state residential education facility.

 Since the fall of 1990, the Woods have been involved in ongoing litigation against the Board of Education and several agencies of the State of New Jersey. This litigation has involved various state and administrative hearings, as well as the present action. *fn2" Deponent, Marilyn Arons, a lay advocate for parents in special education disputes, represented the plaintiffs during the proceedings before the New Jersey Office of Administrative Law ("OAL"). *fn3" The IDEA guarantees parents an "impartial due process hearing", 20 U.S.C. § 1415(b)(2), and authorizes parents to "be accompanied and advised by counsel and by individuals with special knowledge and training with respect to the problems of handicapped children." Id. at § 1415(d)(1). New Jersey Court Rules authorize non-lawyers to represent parents or children in special education proceedings before the OAL. N.J.C.R. 1:21-1(e)(8). *fn4" The New Jersey Administrative Code governs the application process and the appropriate standards of conduct. See N.J.A.C. 1:1-5.4, 1:1-5.5, 1:6A-5.1.

 The defendant Board of Education has subpoenaed Arons and her "original file relating to Donald and/or Diane Woods and/or T.W., plaintiffs in this action for a deposition." In support of her motion for a protective order, the deponent argues that the testimony and material sought is irrelevant. Arons argues alternatively that the discovery is protected by the attorney-client privilege and the work-product doctrine, or protected under Fed. R. Civ. P. 26(b)(4)(B). *fn5" The deponent further asserts that disclosure would violate the plaintiffs' due process and equal protection rights.

 DISCUSSION

 Discovery, generally is governed by Fed. R. Civ. P. 26. This rule provides for the discovery of relevant information. Fed. R. Civ. P. 26(b). "Relevance" under the rules is a term of art, and encompasses any information that "appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The Supreme Court has defined the scope of discovery as extending to "any matter that bears upon, or that reasonably leads to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 57 L. Ed. 2d 253, 98 S. Ct. 2380 (1978).

 Applying these standards to the present case, the court is hard pressed to discern the relevancy of this information. The Board of Education contends that this discovery is relevant as the claims asserted by plaintiff in this action are essentially the same as those asserted in the administrative proceeding--that T.W.'s educational placement as determined by the Board of Education was inappropriate. Defendant further argues that this discovery is relevant to a potential defense of the defendant. Specifically, the defendant argues that the Woods' may have been advised to enter into the Settlement Agreement, providing placement at residential facility for nine months, in an effort to invoke the "stay put" provision of the IDEA and accomplish procedurally what the plaintiffs could not accomplish on the administrative level. *fn6"

 These arguments are unpersuasive. The defendant cannot establish relevancy by simply asserting that the administrative proceeding is substantially the same as the pending federal action. As a party to the administrative proceeding, the Board of Education presumably possesses all relevant information from the earlier proceeding. Furthermore, even if the discovery sought supports defendant's allegation that the settlement was entered into as a tactical maneuver, it is unclear what defense would be available to the defendant.

 While the defendant's arguments are nebulous, this discovery is arguably relevant under the liberal mandate of the Federal Rules. Consequently, the court will not grant Arons' motion on relevancy grounds. Instead the court will address the question of privilege.

 
Except as otherwise required . . . the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States. . . However . . . with respect to an element of a claim or defense as to which State law supplies the ...

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