On July 28, 2020, a class action lawsuit was filed in the United States District Court of the Southern District of New York on behalf of students with disabilities and their parents. The plaintiffs claim they have been denied services during school closures caused or ordered by the defendants due to COVID-19 in violation of various state and federal special education and disability laws. They are seeking an order that the defendants have violated the U.S. Constitution, the Individuals with Disabilities Education Act, Title II of the Americans with Disabilities Act, and state constitutions and laws. Based on these legal theories, they are also seeking an injunction directing the defendants to reopen schools immediately, to provide the plaintiffs with everything required by their current IEPs, and orders for independent evaluations, compensatory education, compensatory damages, punitive damages, and costs and attorney fees. As we in the legal business call it, they’ve filed a “kitchen sink” lawsuit.
“So what” you say, “I’m not a New York school district. This has nothing to do with me!” To quote the great philosopher Bart Simpson, “Oh, contraire mon frère.” The defendants in the lawsuit include “the SCHOOL DISTRICTS IN THE UNITED STATES[.]” And they weren’t kidding. They made a valiant, albeit flawed, attempt to list every single school district in the United States as a defendant. You can find a list of the purported school districts listed by state here. Additionally, press reports indicate that at last count, at least two hundred families in ten states have joined the lawsuit as plaintiffs. It may be just a matter of time before they find a plaintiff in Nebraska or South Dakota.
“So what” you say again. “It’s like you’ve always said, anyone with a filing fee and directions to the courthouse can sue us.” And we stand by that statement. However, knowing that you have been or might be sued triggers certain duties on behalf of potential litigants. In Nebraska, "when the prospect of litigation is present, parties are required to preserve documents that may be relevant to the issues to be raised, and their failure to do so may result in a finding of spoliation of evidence. The obligation to preserve evidence begins when a party knows or should have known that the evidence is relevant to future or current litigation." Bd. of Regents v. BASF Corp., 2007 U.S. Dist. LEXIS 82492 at 14-15 (D. Neb. 2007)(citing Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 1993)(emphasis added). South Dakota has taken a nearly identical stance. See also Blazer v. Gall, 2019 U.S. Dist. LEXIS 128629, at *10 (D.S.D. 2019) (citing Stevenson, 54 F.3d 739 at 746).
Although you may not have been served yet, we believe that it is prudent for each school district to begin taking steps immediately to preserve any tangible documents and items, electronic documents, and all electronically stored information related to special education services provided to students during the 2019-20 school year or requested by parents of special education students since schools closed or contemplated closing in the spring. This includes any and all relevant e-mail communications, as well as records that may be managed by your services providers, such as an intermediate service agency (like an ESU) and others with whom you contract for providing services under the named laws. We recommend preserving potentially relevant documentation out of an abundance of caution. After all, court-imposed sanctions for failing to preserve evidence can prove costly in any litigation. For this reason alone, it is extremely important that all relevant information in whatever form be preserved. You will also be required to suspend any routine document retention/destruction policy or programs that automatically overwrite or delete electronic records.
KSB will be sending a “litigation hold” document to all of our school district and ESU clients with whom we have an engagement letter that you will need to distribute to relevant staff, which in the context of a lawsuit as broad as this is probably all staff members. Additional guidance and information will be included in an explanatory memorandum. If your school district works with a different law firm, you should contact your attorneys for advice on how to proceed.
As always, if you have any questions, please feel free to contact your favorite KSB lawyer or Bobby Truhe at ksb@ksbschoollaw.com or (402) 804-8000.