Plaintiff’s motion to compel further responses to requests for production, set #1, No 4-9 is DENIED. Plaintiff has failed to give defendant JHW notice of his intent to obtain JHW’s personal consumer records of his school file. The court cannot order the defendant School District to produce the records pursuant to Education Code Section 49076, in violation of JHW’s right to due process.

Defendant School District to give notice of ruling.

Plaintiff moves to compel further responses to his Request for Production, set #1, #4-9. These requests seek for defendant School District to produce defendant JHW’s entire student file, including discipline records, incident records documenting any incidents where JHW was violent, or sexually assaulted a student or teacher, and supervision that was provided to him. Defendant JHW has not yet appeared in this action.

Plaintiff asks to court to order defendant School District to produce the confidential and private records of the party defendant JHW who has not yet appeared in this action and has not received any form of notice of plaintiff’s intent to obtain these records. The motion is procedurally defective and is DENIED.

Because defendant JHW has not yet been served with the summons and complaint, and has not made a general appearance in this action, the court not only has no jurisdiction over him, but he was not served with this motion to put him on notice that his private, confidential records were being sought by plaintiff.

Education Code Section 49076 mandates that a school district shall not permit access to pupil records to a person without written parental consent or under judicial order except as set forth in that section and as permitted by Part 99 of Title 34 of the Code of Federal Regulations. None of the special circumstances allowed under other provisions apply to this case.

Defendant cannot produce the records to plaintiff unless it receives a signed authorization from JHW’s parent or this court orders the production. Plaintiff does not have a signed authorization and this court cannot make such an order because JHW although a named party defendant, has not appeared in this action and has not received notice of plaintiff’s intent to obtain his private records though notice of this motion or any other process, such as CCP Section 1985.3. Plaintiff argues that Section 1985.3 applies only to records sought from a nonparty. However, for all practical purposes, JHW is a nonparty because he has not yet appeared in this action. Thus, Section 1985.3 would apply because JHW meets the definition of “consumer” in the statute.

Plaintiff in reply states that he hasn’t been able to locate and serve JHW with the summons and complaint after diligently searching for him through numerous methods, and so the court should go ahead and grant the motion “in the interest of moving along discovery”. The court’s interest is not in moving discovery along in this matter, but in ensuring due process, fairness and justice occurs.

Thus, the motion is DENIED, on the basis that defendant JHW has not been given proper notice of plaintiff’s intention to seek his personal records contained in his school file. (CCP Section 1985.3.) Although plaintiff states he has diligently searched for defendant and cannot find him, this does not justify or authorize the court to violate JHW’s due process rights.