Good Public Accommodations Discovery Opinion From M.D. Pa.

On Monday, U.S. Magistrate Judge Martin Carlson of the Middle District of Pennsylvania issued a well-crafted opinion regarding discovery in ADA Title III cases. The case is McConnell v. Canadian Pacific Realty Co., 2011 WL 5520322 (M.D.Pa., Nov. 14, 2011).  The plaintiff, who uses a wheelchair, sued to challenge access barriers at a shopping mall owned by the defendant.  In discovery, the plaintiff sought to physically inspect the defendant's premises, including both the common areas of the mall and the premises leased to the mall's 15 retail tenants, pursuant to Rule 34 of the Federal Rules of Civil Procedure.  The defendant moved for a protective order.  The defendant argued, among other things, that the plaintiff's inspection should be limited to the specific access barriers alleged in the complaint, and that because the plaintiff's complaint had not identified any specific barriers at any of the retail outlets in the mall, the inspection should extend only to the common areas.

Although he recognized that courts have reached different conclusions on the issue, Magistrate Judge Carlson concluded that the plaintiff should be permitted to inspect all areas of the mall, not just the specific barriers identified in the complaint.  He explained:

First, we believe that adopting this broader scope of discovery is more consistent with the animating principles that generally govern discovery in federal court, principles which recognize that civil discovery is not narrowly cabined solely to a search for admissible evidence directly relating to known, and specific, allegations set forth in the plaintiff's complaint. Rather, Rule 26 permits discovery of all “relevant information,” a concept which is defined in the following terms: “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). 

Second, we find that considerations of judicial economy favor an approach to discovery in ADA litigation which permits an inspection of all related ADA compliance issues at one time. Otherwise, we literally invite plaintiffs in these cases to run a physical and metaphysical gauntlet when litigating disability claims. A narrowly focused discovery rule, like that proposed by the defendant, would compel disabled plaintiffs to confront and overcome a series of physical and legal barriers in a serial fashion, rather than identifying and addressing all ADA access barriers at this facility at one time. 

Finally, we conclude that the narrowly tailored discovery standard proposed by the defendants-which requires disabled persons to first, overcome threshold barriers to access; second, discover further access barriers; and third, assert ADA claims as to those newly discovered barriers-before permitting discovery relating to these additional access barriers would undermine the broadly remedial goals of the statute. That statute provides that: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Indeed, this narrow approach to discovery in ADA disability cases yields a cruel irony. As one court has observed: “[I]t would be ironic if not perverse to charge that the natural consequence of this deterrence, the inability to personally discover additional facts about the defendant's violations, would defeat that plaintiff's standing to challenge other violations at the same location that subsequently come to light.” Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1042 (9th Cir.2008).