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)

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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 Telephone: (602) 274-1100 Facsimile: (602) 274-1199 Daniel F. Goldstein Mehgan Sidhu BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore St., Suite 1700 Baltimore, MD 21202 (410)962-1030 (410)385-0869 (fax) 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’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 Telephone: (602) 274-1100 Facsimile: (602) 274-1199 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: (410) 962-1030 Facsimile: (410) 385-0869 Amy Robertson FOX & ROBERTSON, P.C. 104 Broadway, Suite 400 Denver, CO 80203 TTY: (877) -595-9706 Telephone: (303) 595-9700 Facsimile: (303).595.9705 Eve Hill 1667 K St. NW, Suite 640 Washington, DC 20006 Telephone: (202) 296-2044 Facsimile: (202) 296-2047 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-

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