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Access 4 All, Inc. v. W & D Davis Investment Co.

February 21, 2007

ACCESS 4 ALL, INC., ET AL., PLAINTIFFS,
v.
W & D DAVIS INVESTMENT CO., LTD., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Norah McCann King

OPINION AND ORDER

Plaintiffs seek injunctive relief and attorneys fees in connection with defendant's alleged violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., at its premises known as Carnaby Shopping Center, 5929-6029 East Main Street, Columbus, Ohio. This matter is before the Court on Plaintiffs' Motion to Compel Inspection of Defendant's Premises ("Plaintiffs' Motion to Compel Inspection"), Doc. No. 22, Plaintiffs' Motion to Compel Defendant's Compliance with Plaintiffs' Request for Production ("Plaintiffs' Motion to Compel Document Production"), Doc. No. 23, and Combined Defendant W & D Davis Investment Co., LTD's Memorandum Contra to Plaintiff's Motion to Compel Discovery and Defendant's Motion to Compel Plaintiffs' Expert Report ("Defendant's Memorandum Contra Plaintiffs' Motion to Compel Document Production" or "Defendant's Motion to Compel Expert Report"), Doc. No. 31, 32.*fn1

A. Plaintiff's Motion to Compel Inspection, Doc. No. 22

On September 21, 2006, plaintiffs made a Rule 34 request for inspection of defendant's property known as Carnaby Shopping Center. Exhibit 1 attached to Plaintiffs' Motion to Compel Inspection. See also Fed. R. Civ. P. 34. The requested inspection took place on October 25, 2006. Plaintiffs' Motion to Compel Inspection at 2. At the inspection, however, plaintiffs were denied access to restrooms located in the main hallway of the shopping center. Id. Defendant based the refusal to allow inspection of the restrooms on its assertion that the restrooms are not places of "public accommodation" and are therefore not governed by the ADA. Defendant W & D Davis Investment Co., LTD.'s Memorandum Contra Plaintiffs' Motion to Compel Inspection, Doc. No. 27, at 2. Plaintiffs disagree and note that plaintiff Randy Young, a patron of the Carnaby Shopping Center, was given access to the restrooms. Plaintiff Access 4 All, Inc.'s Reply to Defendant W & D Davis Investment Co., LTD.'s Memorandum Contra to Plaintiff's Motion to Compel Inspection; Doc. No. 33.

Rule 37 of the Federal Rules of Civil Procedure permits a party to file a motion for an order compelling inspection if another party fails to grant inspection pursuant to a proper Rule 34 request. See Fed. R. Civ. P. 37(a)(2)(B). Rule 34 in relevant part provides:

Any party may serve on any other party a request . . . to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

Fed. R. Civ. P. 34(a)(2). A party's "request comes within the literal language of Rule 34(a)(2) if the proposed entry and inspection 'are within the scope of Rule 26(b).'" Eirhart v. Libbey-Owens-Ford Co., 93 F.R.D. 370, 371 (N.D. Ill. 1981) (quoting Rule 34); see also Cuno Inc. v. Pall Corp., 116 F.R.D. 279, 281 (E.D.N.Y. 1987) ("Inspection is permitted, and indeed anticipated, by Rule 34(a), to be governed by the scope of Rule 26(b).").

Rule 26(b) provides that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . ." Fed. R. Civ. P. 26(b)(1). Relevance for discovery purposes is extremely broad. Miller v. Fed. Express Corp.,186 F.R.D. 376, 383 (W.D. Tenn. 1999). "The scope of examination permitted under Rule 26(b) is broader than that permitted at trial. The test is whether the line of interrogation is reasonably calculated to lead to the discovery of admissible evidence." Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-01 (6th Cir. 1970).

Without finally determining whether or not the restrooms are properly characterized as "public accommodations," this Court concludes that plaintiffs are entitled to inspect the restrooms at issue. Plaintiffs' allegation that the restrooms at issue are places of public accommodation is sufficient to justify discovery as to this portion of plaintiff's claim. Accordingly, Plaintiffs' Motion to Compel Inspection is GRANTED. Defendant is ORDERED to schedule the inspection within ten (10) days of the date of this Opinion and Order.

B. Plaintiffs' Motion to Compel Document Production, Doc. No. 23

On August 31, 2006, plaintiffs requested production of certain documents. Exhibit 1 attached to Plaintiffs' Motion to Compel Document Production. See also Fed. R. Civ. P. 34(a) and (b). In response, defendant objected to the production of some of the documents requested. Exhibit 2 attached to Plaintiffs' Motion to Compel Document Production.Plaintiffs contend that defendant's objections are improper and move for an order compelling production of the documents.

Plaintiffs seek discovery about the entire Carnaby Shopping Center, including seven businesses, parking lots, sidewalks and restrooms. Defendant limited its responses to only four areas of the shopping center (parking lots and sidewalks, T.J. Maxx, City Barbeque and Hooters) and asserts that plaintiff Young testified on deposition that the claims in this action are directed to only these four areas. Exhibit 2 attached to Plaintiffs' Motion to Compel Document Production. Plaintiffs, who filed no reply in support of their motion, appear to concede this point but argue that, "if the Court were to determine that just these four areas were at issue, certainly any of the services and public areas that the Defendant provides for the public's use in accessing any of these four areas are the Defendant's legal responsibility and would be relevant to the case." Id. This Court agrees. Accordingly, this Court limits discovery in this case to parking lots and sidewalks, T.J. Maxx, City Barbeque, Hooters and any areas provided for the public's use in accessing any of these four areas.

Defendant also suggests that any deficiency in its response to plaintiff's production request is "[d]ue to Plaintiffs' failure to tender their Expert Report to Defendant ... ." Defendant's Memorandum Contra Plaintiffs' Motion to Compel Document Production at 4-5. Defendant's argument is unpersuasive. As plaintiffs correctly note, there is no apparent correlation between defendant's review of plaintiffs' ...


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