CATHERINE J. ZANG, et al., Plaintiffs,
JOSEPH ZANG, et al., Defendants JAVIER LUIS, Plaintiff,
JOSEPH ZANG, et al., Defendants.
STEPHANIE K. BOWMAN, Magistrate Judge.
The background of the above two cases, set forth in prior orders, is repeated herein for the convenience of this Court. Both cases relate to underlying divorce and custody proceedings between Catherine Zang and Joseph Zang in the Hamilton County Ohio Court of Common Pleas. During the course of those state proceedings, Plaintiff Catherine Zang learned that her now ex-husband had installed audio and video surveillance equipment in the marital residence, and spyware on a home computer. In Case No. 1:11-cv-884, Plaintiff Catherine Zang and five additional individuals filed suit against multiple corporate and individual defendants in this Court, asserting claims under the federal Wiretap Act as well as claims under state law.
During the underlying divorce proceedings, Mr. Zang produced emails and messages between Catherine Zang and a resident of Florida, Javier Luis. Although Mr. Luis did not join the Ohio federal litigation when it was first filed by Catherine Zang, he subsequently filed separate pro se actions against many of the same defendants in both federal and state court in Florida. After the defendants in the Florida state action removed that case to federal court, the federal court consolidated the two cases filed by Plaintiff Luis. (Doc. 17 in Case No. 1:11-cv-884). Thereafter, several Defendants in the Florida federal case moved to dismiss for lack of personal jurisdiction and improper venue. On August 20, 2012, the United States District Court for the Middle District of Florida granted Defendants' motions, agreeing that Mr. Luis's case should be transferred to Ohio based upon the lack of personal jurisdiction over the Defendants and improper venue in Florida. (Docs. 63, 64 in Case No. 1:12-cv-629). Mr. Luis's case was thereafter consolidated for purposes of pretrial proceedings with the first filed case of Catherine Zang, et al. v. Joseph Zang, et al ., Case No. 11-cv-884.
Non-dispositive motions in both cases have been referred to the undersigned magistrate judge, as have dispositive motions in Case No. 12-cv-629. Pursuant to prior Orders of the undersigned, Mr. Luis is scheduled to be deposed in Cincinnati on September 9 and 10, 2013. The timing and the logistics of Plaintiff's upcoming deposition have been the source of numerous disputes between the parties, resulting in several court rulings. Most recently, on August 29, 2013, the undersigned convened a telephonic hearing and denied Plaintiff Luis's oral request for defense counsel to provide him with typewritten questions during his deposition and/or for Plaintiff to be permitted to respond through typed answers. However, the Court permitted Plaintiff Luis to file a formal written motion for reconsideration of the Court's initial ruling on that issue. Therefore, on September 3, 2013, Plaintiff Luis filed a "motion for ADA accommodations" pertaining to his deposition. In his motion, Plaintiff seeks either real-time stenographic translation such as a Communication Access Real-time Translation ("CART"), or at a minimum, typewritten copies of oral deposition questions, and/or the capability of typing his responses in lieu of responding verbally.
II. Analysis of Motion Seeking ADA Accommodations
At the outset, the Court notes that the Americans with Disabilities Act ("ADA") cited by Plaintiff Luis generally prohibits discrimination in regard to "terms, conditions, and privileges of employment, " and does not pertain to terms and conditions of a deposition between private civil litigants. 42 U.S.C. § 12112. Thus, the ADA has no application to the issue at hand.
Plaintiff's citation to Pennsylvania Dept. of Corrections v. Yeskey , 524 U.S. 206 (1998) is also inopposite. In Yeskey , the Supreme Court held that Title II of the ADA prohibits a state prison from discriminating against a "qualified individual with a disability" who was refused admission to a "boot camp" that had the potential to shorten his sentence. In so holding, the Court held that under the ADA, "[s]tate prisons fall squarely within the statutory definition of public entity, ' which includes any department, agency, special purpose district, or other instrumentality of a State or States or local government.'" Id at 210. None of the Defendants in this case is a covered "public entity" under Title II of the ADA. Moreover, although separate statutes apply to the federal government, federal courts do not fall within the definition of a covered "public entity" under the ADA, and are exempt from its provisions. See, e.g. , 42 U.S.C. §§ 12131 (defining a public entity under the ADA); Contrast, e.g. , § 501 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 790 et seq. (providing a comparable remedy for federal employees alleging disability discrimination).
In limited contexts, persons with defined disabilities are provided accommodations during court proceedings, whether under the ADA to the extent that a state court may be a "public entity, " or under separate federal rules applicable to federal courts. In the federal court, blindness or deafness is traditionally accommodated in proceedings that take place within the confines of the courthouse. See, e.g ., Rule 6(d), Fed. R. Crim. P. (providing for presence in grand jury deliberations of "any interpreter needed to assist a hearing-impaired or speech-impaired juror"); 28 U.S.C. § 1827-1828 (Federal Court Interpreters Act, providing for interpreters for any party who exclusively or primarily speaks a language other than English, or who suffers from a hearing impairment that inhibits comprehension or communication).
Plaintiff Luis cites no relevant case law, statute, or other authority that would authorize or support the unique accommodations he would impose on the Defendants in the context of taking Plaintiff's deposition in a civil case initiated by Plaintiff himself. Likewise, this Court has discovered no authority that either would require the requested accommodations, or that would favor the exercise of judicial discretion in favor of Plaintiff's position.
In addition to federal statutes and the Federal Rules of Civil Procedure, neither of which support the requested relief, federal courts are guided by Judicial Conference policies, which are advisory in nature. In 1995, the Judicial Conference of the United States adopted a policy that "all federal courts provide reasonable accommodations to persons with communications disabilities." Vol. 5, Guide to Judiciary Policies and Procedures, Chapter 2, Appointment and Payment Authorities, § 255.10. Under that policy, a judge "may provide a sign language interpreter for a party, witness or other participant in a judicial proceeding, whether or not the proceeding is instituted by the United States." § 255.10(c) (emphasis original). Of course, Plaintiff Luis is not seeking a "sign language interpreter, " and his deposition does not appear to fall within the Guide's definition of a "judicial proceeding." Nevertheless, a few additional provisions of the Guide provide, by analogy, some guidance with which to consider Plaintiff's current motion.
For example, in addition to sign language interpreters, the Guide permits the use of "other appropriate auxiliary aids and services to participants in federal court proceedings who are deaf, hearing-impaired, or have other communications disabilities." Id . The term "auxiliary aids and services" is defined as "qualified interpreters; assistive listening devices or systems; or other effective methods of making aurally delivered materials available to individuals with hearing impairments ." Id. at § 255.30(c)(4)(emphasis added). Federal "court proceedings" are limited to "trials, hearings, ceremonies, and other public programs or activities conducted by a court ." Id. at § 255.20(c)(2)(emphasis added); see also Chapter 3, Court Management and
Responsibility, § 370.20.10. Thus, as suggested, traditionally accommodations are limited to the context of in-court proceedings for individuals who suffer from blindness or deafness, or from communication disabilities that are equivalent to those limitations.
The Guide provides further interpretation of the circumstances under which the type of real-time reporting requested by Plaintiff Luis should be used. Real-time reporting is authorized only "[w]hen deemed appropriate by a court, " and "solely in furtherance of the limited purposes for which the guidelines have been adopted." § 255.20(b)(1). By way of example, the Guide explains that real-time reporting should be provided only for "the duration of a deaf witness's testimony" at ...