JAMES L. COTT, United States Magistrate Judge.
In this case brought under the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. § 1400 et seq., Plaintiffs M.L. and B.L., individually and on behalf of K.L. ("Plaintiffs"), seek permission to conduct two brief "additional evidence" depositions of Defendant's teacher and paraprofessional for the September-June portion of the 2011-12 school year in order to fill what they claim to be "an important and sizeable `gap' in the existing record." Plaintiffs' Letter to the Court dated April 19, 2013, at 1 ("Plaintiffs' Letter"). Defendant New York City Department of Education ("Defendant") opposes Plaintiffs' application, contending that the Court should take a "restrictive approach" regarding the admission of additional evidence, especially because in this case the discovery sought is speculative and will be inadmissible, and because Plaintiffs had "numerous opportunities" to develop the record during the administrative hearing from which this appeal arises. Defendant's Letter to the Court dated May 3, 2013 ("Defendant's Letter"), at 2.
Section 1415(i)(2)(C) of the IDEA provides that "the [district] court (i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and, (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C) (emphasis added). Thus, unlike in the typical administrative
The question before the Court is thus whether it is appropriate to grant leave to take the proposed additional evidence in this case. Plaintiffs contend that during the ten days of trial before the Impartial Hearing Officer ("IHO"), Defendant called only the proposed summer (i.e., July and August, 2011) classroom teacher for K.L., and the assistant principal at the proposed placement, each of whom testified that K.L. would have had a different teacher, paraprofessional, and related service providers beginning in September 2011. Plaintiffs' Letter at 1-2. According to Plaintiffs, Defendant did not call any of the "September-June individuals" to testify before the IHO, when it had the burden to do so in establishing that it offered a "free appropriate public education" ("FAPE") to K.L. Id. at 2. Defendant responds that under the Second Circuit's recent decision in R.E. v. New York City Dep't of Educ, 694 F.3d 167, 185 (2d Cir.2012), the parties are "limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision." Defendant's Letter at 2. Thus, it contends the testimony of the "September-June individuals" is "neither relevant nor admissible in determining whether [K.L.] was offered a FAPE." Id.
It is plain that IDEA "does not permit a party ... to duplicate testimony already provided at the administrative hearing." Jordan S. v. Hewlett Woodmere Union Free Sch. Dist., No. 08 Civ. 1446(LDW)(AKT), 2009 WL 910804, at *2 (E.D.N.Y. Mar. 31, 2009) (citation omitted). Moreover, "[a] lenient standard for additional evidence would have the consequence of making the whole IDEA process more time consuming, as parties scrambled to use the federal court proceeding to patch up holes in their administrative case," Id. (quoting Springer v. Fairfax County Sch. Bd., 134 F.3d 659, 667 (4th Cir.1998)). Nonetheless, the Court believes under the circumstances of this case that the proposed discovery should be permitted.
In addition, Defendant has not identified what prejudice there would be if the depositions that Plaintiffs request take place on the limited terms that have been proposed, to wit, a one-and-a-half hour deposition of each witness, to take place before or after school, at a mutually agreeable location. Plaintiffs' Letter at 1, n. 1. The Court thus directs that the depositions of the teacher and the paraprofessional for the September-June portion of the 2011-12 school year proceed under the proposed terms because they are neither cumulative nor duplicative of evidence in the record, and completed by May 31, 2013. The Court notes, however, that in granting Plaintiffs' request to conduct this limited discovery, it is not precluding Defendant from making any arguments with respect to the admissibility of this evidence should Plaintiffs choose to use it in support of their summary judgment motion.
Finally, the Court renews its offer to conduct a settlement conference with the parties before they go to the time and expense of motion practice. If the parties wish to schedule a settlement conference in June before the motion is due, they should contact my chambers within ten days of the date of this Memorandum Order.