National Federation of the Blind, et al v. Arizona Board of Regents, et al

Filing 3

MOTION to Expedite Discovery by National Federation of the Blind, American Council of the Blind, Darrell Shandrow. (Attachments: # 1 Exhibit Exhibit A., # 2 Exhibit Exhibit B.)(Friedman, Andrew)

BONNETT, FAIRBOURN, FRIEDMAN
& BALINT, P.C.
Andrew S. Friedman (AZ Bar. 005425)
Guy A. Hansen (AZ Bar. 013549)
2901 North Central Avenue, Suite 1000
Phoenix, Arizona 85012
[e-mail]
[e-mail]
Telephone: [phone]
Facsimile: [phone]
Daniel F. Goldstein
Mehgan Sidhu
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore St., Suite 1700
Baltimore, MD 21202
[phone]
[phone] (fax)
[e-mail]
[e-mail]
Counsel for Plaintiffs
[Additional Counsel Appear on Signature Page]

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
The NATIONAL FEDERATION OF THE
BLIND, The AMERICAN COUNCIL OF
THE BLIND, and DARRELL SHANDROW,
Plaintiffs,
vs.

Case No: 2:09-cv-01359-MHM
MOTION FOR EXPEDITED
DISCOVERY

The ARIZONA BOARD OF REGENTS and
ARIZONA STATE UNIVERSITY,
Defendants

Plaintiffs National Federation of the Blind (“NFB”), the American Council of the
Blind ("ACB") and Darrell Shandrow request that the Court allow limited discovery on
an expedited basis in connection with their injunctive relief claim against Defendants
Arizona State University (“ASU”) and Arizona Board of Regents (“Regents”). Plaintiffs

request leave to serve a limited document request upon ASU and Regents at the earliest
possible time, with Defendants’ response to be due fifteen days after the date of service.
As explained below, the critical timing issues in this injunctive relief case provide
good cause for expedited discovery. Beginning with the 2009 fall semester, ASU plans
to implement a program through which it will provide Kindle DX electronic book readers
to students taking designated courses. The Kindle DX readers are inaccessible to
students who are blind. Plaintiffs seek to enjoin ASU from implementing the electronic
textbook reader program because it discriminates against visually-impaired students.
Time is of the essence because ASU' electronic textbook program will begin August 24,
s
2009, when fall semester classes begin.
The requested discovery is highly relevant and is limited to a finite set of easilyproduced documents. An expedited response time will pose no undue burden on
Defendants. This Motion is supported by the following Memorandum.
MEMORANDUM IN SUPPORT OF MOTION FOR EXPEDITED DISCOVERY
Courts allow expedited discovery before the Fed.R.Civ.P. 26(f) conference upon a
showing of good cause by the requesting party. See Yokohama Tire Corp. v. Dealers Tire
Supply, Inc. 202 F.R.D. 612, 613 (D. Ariz. 2001) (noting that expedited discovery should
be allowed upon a showing of good cause); Semitool, Inc. v. Tokyo Electron America,
Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002) (allowing limited expedited discovery).
Time-sensitive claims for injunctive relief present the required good cause. See
Ellsworth Associates, Inc. v. United States, 917 F. Supp. 841, 844 (D.D.C. 1987)
(“[e]xpedited discovery is particularly appropriate when a plaintiff seeks injunctive relief
because of the expedited nature of injunctive proceedings.”). Such discovery has been
ordered where it would “‘better enable the court to judge the parties’ interests and
respective chances for success on the merits’ at a preliminary injunction hearing.”
Yokohama Tire Corp., 202 F.R.D. at 613 (quoting Eudata Corp. v. Scientific Computers,
Inc., 599 F. Supp. 1084, 1088 (D. Minn. 1984)).

-2-

Good cause exists here. Plaintiffs seek to preliminarily enjoin ASU from
implementing an electronic textbook program during its fall 2009 semester that will
discriminate against students who are blind. ASU plans to provide Amazon.com’s
Kindle DX electronic book reader to students taking designated courses. The Kindle DX
is inaccessible to blind students because it lacks audible menus and controls.
The injunctive relief claim is highly time-sensitive. The electronic textbook
program, which was announced last month (May 2009), is scheduled to begin when fall
semester classes begin on August 24, 2009 – approximately two months away. Plaintiffs
seek a hearing and ruling on their preliminary injunction claim before that date. The
requested discovery is essential to fully develop the issues that will be addressed at the
preliminary injunction hearing.1
Finally, the requested discovery and shortened response time will not impose an
undue burden on Defendants. Plaintiffs’ discovery is limited to those documents in
ASU’s possession that relate to the challenged Kindle DX electronic textbook program.2
Plaintiffs believe this discovery encompasses a modest number of documents easily
produced from Defendants’ files.
For the foregoing reasons, Plaintiff requests that the Court order that they may
immediately serve limited expedited discovery requests on Defendants, and that
Defendants’ response be due fifteen days from the date of service.
RESPECTFULLY SUBMITTED this ____ day of June, 2009.
BONNETT,FAIRBOURN, FRIEDMAN
& BALINT, P.C.
/s/Andrew S. Friedman
Andrew S. Friedman (AZ Bar. 005425)
1

Plaintiffs have filed a request for a Pretrial Conference to set a date for a preliminary
injunction hearing, and to establish a discovery and briefing schedule. Plaintiffs have
also written the Arizona Attorney General to propose that the parties stipulate to
accelerated proceedings. A copy of the letter to Attorney General Terry Goddard is
attached as Exhibit A.
2

A copy of Plaintiffs’ First Request for Production is attached as Exhibit B.
-3-

Guy A. Hanson (AZ Bar. 013549)
2901 North Central Avenue, Suite 1000
Phoenix, AZ 85012-3311
[e-mail]
[e-mail]
Telephone: [phone]
Facsimile: [phone]
OF COUNSEL, Pro Hac Vice Admission
Pending:
Daniel F. Goldstein
Mehgan Sidhu
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore St., Suite 1700
Baltimore, MD 21202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Amy Robertson
FOX & ROBERTSON, P.C.
104 Broadway, Suite 400
Denver, CO 80203
TTY: (877) -595-9706
Telephone: [phone]
Facsimile: (303).595.9705
[e-mail]
Eve Hill
1667 K St. NW, Suite 640
Washington, DC 20006
[e-mail]
Telephone: [phone]
Facsimile: [phone]
COPYth the foregoing hand-delivered
of
this 25 day of June, 2009 to:

Attorneys for Plaintiffs

Terry Goddard
Office of the Attorney General
1275 West Washington Street
Phoenix, Arizona 85007
/s/Nancy Varner
Nancy Varner
-4-