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Will Mcconnell v. Canadian Pacific Realty Co

November 14, 2011


The opinion of the court was delivered by: Magistrate Judge Carlson

Judge Jones


I. Statement of Facts and of the Case

This case comes before the Court for resolution of a discovery dispute regarding the proper scope of a physical inspection under Rule 34 of the Federal Rules of Civil Procedure of the defendant's property, a property which house 15 commercial tenants who are not yet parties to this litigation. With respect to this dispute the pertinent facts can be simply stated:

The plaintiff, William McConnell, is a disabled person, a mobility-challenged individual who is confined to a wheelchair. The defendant, Canadian Pacific Realty Company, operates Hills Plaza, a retail mall property in State College, Pennsylvania, which houses approximately 15 retail outlets as tenants. On May 20, 2011, McConnell filed a complaint in federal court pursuant to Title III of the Americans with Disabilities Act (ADA, 42 U.S.C. §12181 et seq., against the defendant alleging that the defendant's Hill Plaza property violates the accessibility standards prescribed by the ADA. (Doc. 1) In particular, McConnell's complaint alleges that this property's areas of non-compliance with the ADA include, but are not limited to, failures to meet parking access requirements, and a lack of proper entrance access and common paths of travel for mobility challenged persons. (Id., ¶ 10.) On the basis of these allegations, McConnell seeks declaratory and injunctive relief under the ADA, along with an award of attorney's fees. (Id.)

The parties are now engaged in pre-trial discovery. As part of this pre-trial discovery the parties now present the Court with what they describe as a time-sensitive discovery dispute, albeit a dispute that has been pending between the parties for the past month. This dispute relates to a demand for inspection of the defendant's property which was served on the defendant by the plaintiff on or about October 7, 2011. (Doc. 24-1) This demand for inspection, provided in pertinent part that:

Plaintiff, by and through his undersigned counsel, pursuant to Rule 34 of the Federal Rules of Civil Procedure, hereby requests entry upon the Defendant's property . . . , for the purpose of inspecting and measuring, surveying, photographing, testing or sampling the property within the scope of Rule 26(b). The area of inspection shall be the following:

1. Any and all Parking Area(s) provided for use by the public, customers and invitees;

2. Any and all Restrooms, which are provided for use by the public, customers, and invitees;

3. Any and all entrances and Path(s) of Travel areas provided for public use;

4. All access(es) to goods and services throughout the facility; and

5. Any and all areas of the public accommodation, excepting only work areas used exclusively by employees; and

6. All other areas cited in the Complaint as being in violation of the ADA. (Id.)

This Rule 34 inspection demand contained no topical or temporal limitations on the plaintiff's inspection of these facilities. Therefore, the demand, in theory, called for an inspection of a wholly unspecified duration for any and all potential ADA violations, including potential violations that are completely unrelated to the physical challenges experienced by the plaintiff. The parties now report that this inspection is scheduled to take place on November 15, 2011, at 1:00 p.m.

Presented with this demand from the plaintiff, on November 7, 2011, the defendant filed a motion, and brief, seeking a protective order under Rule 26 of the Federal Rules of Civil Procedure. (Docs. 23 and 24) In this motion, the defendant cited numerous alleged shortcomings in this Rule 34 demand, including its lack of temporal and topical limitations, as well as the demand's request to inspect all accommodations in this facility, a demand which necessarily would entail an inspection of the 15 retail outlets open to the general public which are housed within this facility. With respect to this latter objection, the defendant asserted that any physical inspection should be limited to the barriers to access specifically cited by McConnell in his complaint, parking access limitations and common entrance area impediments. According to the defendant, since McConnell has not specifically alleged further ADA non-compliance within the retail outlets at Hills Plaza, he lacked standing to challenge other, unidentified access barriers and should not be permitted to inspect those outlets to determine whether such barriers exist. (Id.)

On November 8, 2011, this time-sensitive motion was referred to this Court for resolution. (Doc. 25) The following day, November 9, 2011, the plaintiff filed a response to this motion for protective order at our request. (Doc. 26) This response acknowledged the lack of temporal and topical limitations set forth in the demand for inspection, while suggesting that any inspection should be limited topically to inspections of ADA compliance with accessibility standards for mobility challenged persons like the plaintiff. In addition, the plaintiff advised the Court that any inspection of the entire facility, including the 15 retail outlets housed in the mall, could be completed in 2 hours or less, setting a proposed temporal limitation of this inspection.

Having acknowledged these concerns, the plaintiff, however, resisted the defendant's suggestion that the scope of the inspection should be strictly limited solely to the parking lot and common areas specifically cited in the plaintiff's complaint. According to McConnell, the allegations set forth in the complaint clearly establish the plaintiff's standing to bring this action. Having established that he has standing to sue to enforce ADA mobility restriction access standards, McConnell argues that his examination of the subject property should not be limited to the threshold obstacles which defeat his access to the facility, but should entail a complete examination of the entire facility. (Id.)

On November 10, 2011, we conducted oral argument on this motion. Following that oral argument, we granted the parties the opportunity to submit supplemental briefs on this discovery issue. The parties took advantage of this opportunity, tendering competing briefs to the Court on November 11, 2011. (Docs. 27 and 28) Accordingly, this matter is now ripe for resolution. For the reasons set forth below, the defendant's motion will be granted, in part, and denied, in part, as follows:

II. Discussion

A. Guiding ...

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