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

Filing 30

REPORT re: Rule 26(f) Planning Meeting by National Federation of the Blind, American Council of the Blind, Darrell Shandrow. (Goldstein, Daniel)

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1 2 3 4 5 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 OFFICE OF THE ATTORNEY GENERAL Alisa Ann Blandford (AZ Bar: 012597) Lisa Kaye Hudson (AZ Bar: 022901) 1275 W Washington Phoenix, AZ 85007 Telephone: (602) 542-7687 Facsimile: (602) 542-7644 6 7 8 9 10 11 12 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) Counsel for Plaintiffs [Additional Counsel Appear on Signature Page] 13 14 UNITED STATES DISTRICT COURT 15 DISTRICT OF ARIZONA 16 17 18 NATIONAL FEDERATION OF THE BLIND, AMERICAN COUNCIL OF THE BLIND, and DARRELL SHANDROW, 19 20 21 22 23 24 25 26 27 28 Case No: CV09-01359-GMS CASE MANAGEMENT REPORT Plaintiffs, vs. The ARIZONA BOARD OF REGENTS and ARIZONA STATE UNIVERSITY, Defendants (Assigned to Honorable G. Murray Snow) 1 Pursuant to Fed. R. Civ. P. 26(f) and this Court’s Order of July 17, 2009 [Doc. # 2 24], counsel for Plaintiffs, National Federation of the Blind, American Council of the 3 Blind and Darrell Shandrow (“Plaintiffs”), and counsel for Defendants, Arizona Board of 4 Regents and Arizona State University, conferred on July 23, 2009 and hereby submit 5 this Proposed Case Management Plan. All matters set forth herein were agreed to by 6 the parties, unless different positions are ascribed to the respective parties. 7 1. 8 Counsel for the Plaintiff’s, Daniel F. Goldstein, by telephone, and counsel for the 9 10 Attendees at the Meeting of Counsel Defendant’s, Lisa Hudson and Alisa Blandford, attended the Rule 26(f) meeting and assisted in developing this Case Management Report. 11 2. 12 Plaintiffs: National Federation of the Blind (“NFB”), American Counsel of the 13 14 15 Parties in the Case Blind (“ACB”) and Darrell Shandrow are the Plaintiffs. Defendants: Arizona Board of Regents and Arizona State University are the Defendants. There are no parent corporations or entities. 16 3. Short Statement of the Nature of the Case 17 Plaintiffs: Case Statement 18 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the 19 Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. prohibit, respectively, 20 recipients of federal funding and public entities, from offering programs, services and 21 activities that discriminate on the basis of disability and thus forbid Defendant Arizona 22 State University – a public university that receives federal funding – from continuing its 23 24 25 26 program of providing and making textbooks available on the Kindle DX, electronic book reader that is inaccessible to its blind students. Historically, blind college students have educational opportunities inferior to 27 sighted students because books in alternative formats, Braille, e-books or audio books 28 are rarely available on a timely basis or at the same quality as a print book. Even when universities (like Arizona State University’s Disability Resource Center) would, as a last 1 1 resort, scan and OCR a print book purchased by a blind student, the result typically is 2 inferior due to conversion errors, an absence of structural data and thus navigability, 3 and a nonsensical reading order when columns or sidebars are present. Graphics are 4 unlabeled. 5 The advent of the commercial e-textbook should eliminate these historical 6 7 disparities by offering equal access to content for blind and sighted alike. Accordingly, 8 in February 2008, representatives of plaintiff NFB met with Amazon to advise them on 9 the two steps necessary for meaningful accessibility – text-to-speech software for both 10 the controls and the content of Amazon’s e-book reader, the Kindle. In October 2008 11 NFB reminded Amazon that if, as rumored, it planned a large screen Kindle for 12 academic use, Federal law prohibited universities from using the Kindle unless it were 13 accessible to the sight-impaired. Nonetheless, in May 2009, Amazon released the 14 large-screen Kindle DX portable e-book reader for academic use and announced pilot 15 16 projects with 6 colleges and universities, including Defendant ASU. Because a blind 17 student cannot operate the controls of the Kindle, unless enjoined, ASU will offer a 18 program of mobile access to e-books that discriminates against blind students. 19 The experience of being a blind student in a vast university setting is often one of 20 separation and segregation. Plaintiff Darrell Shandrow has personally experienced this 21 discrimination. ASU’s embrace of the Kindle heightens Mr. Shandrow’s sense that ASU 22 condones the treatment of blind students as second-class academic citizens and 23 disregards or underestimates the importance of giving blind students equal access to 24 25 information that is readily possible. The two organizational plaintiffs – the NFB and the 26 ACB -- have been tirelessly pressing for decades to achieve equal opportunity, equal 27 access to technology and equal access to information. These well-respected 28 organizations have done so by participating in the development of technology, 2 1 educating technology developers, providing consumer education, working for legislative 2 change and through litigation when necessary. 3 4 Digital information -- including not only e-books, but the internet, dynamic screens on ATMs, point-of-sale machines and home appliances -- should provide equal 5 access. Electronic information is not inherently visual, aural or tactile, but it is 6 7 nevertheless typically presented only visually. As a result, isolation of the blind has 8 been heightened, not decreased by technological advances. The contours of federal 9 disability law are such that manufacturers are not prohibited from creating inaccessible 10 technology, but institutional purchasers are prohibited from using it. Accordingly, when 11 a new technology like the Kindle is launched and has the potential to spread widely and 12 rapidly, a failure to halt its illegal acquisition immediately has devastating results: if the 13 Kindle is permitted to remain inaccessible during the pilot program and it performs well, 14 it will spread exponentially. If just 100 schools, community colleges or universities 15 16 adopt it next year, the organizational plaintiffs do not have the option under federal law 17 of suing Amazon, but must instead file 100 separate law suits, something that neither or 18 both have the resources to do. This harm – to blind students, blind organizations, and 19 the schools themselves – can be avoided by making clear that accessibility is required 20 from the beginning, rather than as an afterthought. 21 Defendants: No blind students are impacted in any way by ASU’s participation in 22 the Kindle pilot. No blind students met the academic requirements to participate and 23 none sought to participate. ASU’s Kindle DX pilot is a one-year experiment that will 24 commence in the Fall of 2009 and continue through the 2009-2010 academic year. The 25 pilot program involves only a single course: the Human Event. The Human Event is a 26 course offered only to students in the Barrett Honors College at ASU. There are forty- 27 seven sections of the Human Event offered in the 2009-2010 academic year. Of those 28 sections, only those three taught by Professor Ted Humphrey are participating in the Kindle DX pilot program. The three sections participating in the pilot program have 3 1 completed enrollment. The schedule did not separately list the pilot sections. There are 2 currently no blind individuals participating in the Human Event course for the 2009-2010 3 academic year. ASU did not exclude any individuals with disabilities from participating 4 in the course or the pilot. ASU could and would have accommodated any blind students 5 who happened to register for the pilot sections of the course. 6 Plaintiff Shandrow lacks standing to bring this Complaint as a matter of law. To 7 establish standing to sue, a plaintiff must allege “(1) [he] has suffered an ‘injury in fact’ 8 that is (a) concrete and particularized and (b) actual or imminent, not conjectural or 9 hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; 10 and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by 11 12 a favorable decision.” Stormans, Inc. v. Selecky, 2009 WL 1941550 * 6 (9th Cir. July 8, 13 2009) (internal citation omitted). The Kindle DX pilot is limited to the Human Event 14 course in the Barrett Honors College. Plaintiff Shandrow, like a great number of ASU 15 students, is excluded from the Kindle DX pilot because he is not a student in the Barrett 16 Honors College. His disability was not a factor in determining eligibility for the Human 17 Event course, - his status as a student in the School of Journalism prevents him from 18 being eligible. 19 Plaintiffs cannot show that ASU's participation in the Kindle DX pilot program 20 21 violates the Rehabilitation Act or Title II of the ADA. The standards for establishing a 22 claim under Title II of the ADA and Section 504 of the Rehabilitation Act are essentially 23 the same. See Zukle, 166 F.3d at 1045 n. 11. The plaintiff must show: (1) a disability 24 under the Act; (2) that he or she is “otherwise qualified” for the program or activity; (3) 25 dismissal or exclusion from the program or activity because of the disability; and (4) that 26 the school receives federal financial assistance and is a public entity. See id., 166 F.3d 27 at 1045. 28 4 1 Plaintiffs cannot show that a blind student was dismissed or excluded form the 2 Kindle pilot program because of their disability. No blind students have registered to 3 take the Human Event course at ASU for the 2009-2010 academic year. No blind 4 students applied for any of the three sections of the Human Event that are participating 5 in the Kindle pilot – all of which are full. Although the vast majority of ASU students are 6 7 excluded from participation in the pilot program because they are not members of the 8 Barrett Honors College, no students were excluded from participation in the pilot 9 program because of a disability. 10 4. Jurisdiction 11 Jurisdiction arises under 28 U.S.C. 1331 and 1343(a)(4), as this is a civil action 12 seeking equitable relief for alleged violations of the Rehabilitation Act and the 13 Americans with Disabilities Act, each an Act of Congress, and each providing for 14 protection of civil rights. 15 5. 16 All parties have been served and Defendants will have answered by the date of 17 Service the Case Management Conference. 18 6. 19 Neither the Plaintiffs nor the Defendants anticipate adding additional parties or 20 Statement Regarding Additional Parties and Amendments amending or supplementing the Complaint 21 7. Contemplated Motions and Statement of Issues 22 Plaintiffs: Plaintiffs have filed a Motion for Preliminary Injunction and anticipate 23 no other motions. Plaintiffs anticipate that testimony at a hearing on that motion may 24 form much of the evidentiary basis for trial. 25 Defendants: Defendants have filed a Response to Plaintiffs’ Motion for 26 Preliminary Injunction. Defendants have also filed a Motion to Dismiss Plaintiff 27 Shandrow. Defendants anticipate filing a Motion for Summary Judgment. 28 5 1 2 8. Reference to United States Magistrate Judge 3 Plaintiffs: Plaintiffs do not consent to reference to a United States Magistrate 4 Judge for trial. Plaintiffs do not believe that at this time the case is suitable for reference 5 to a United States Magistrate Judge for a settlement conference. Defendants: Defendants do not believe that at this time the case is suitable for 6 7 reference to a United States Magistrate Judge. 8 9. Related cases 9 There are no other pending cases; however, NFB and ACB have filed 10 administrative complaints with the United States Department of Justice and the United 11 States Department of Education against five other post-secondary institutions that are, 12 like ASU, planning pilot programs with the Kindle DX for the coming academic year. 13 10. Initial Disclosures 14 Plaintiffs and Defendants have both provided Initial Disclosure Statements. 15 11. 16 Plaintiffs and Defendants will produce discoverable electronically stored 17 information in a reasonable usable format and will identify, when possible in its 18 responses to written discovery, the specific file format in which electronically stored 19 information will be produced. Statement Regarding Electronic Discovery 20 12. Statement Regarding Issues of Privilege/Work Product 21 The parties are not currently aware of any issues regarding documents or 22 information protected from disclosure by the attorney-client privilege, work product 23 doctrine, or other investigative privilege. 24 13. Discovery 25 a. Plaintiffs and Defendants believe that most of the discovery involves 26 documents in the possession of one or the other parties, but that there may be some 27 third party discovery from Amazon, Inc. Discovery should not be very extensive. b. 28 Plaintiffs and Defendants believe this case should proceed on a standard track. 6 1 2 c. Plaintiffs and Defendants propose that the presumptive time limit for each deposition be four hours, unless extended by agreement of the parties. 3 14. Proposed Schedule 4 Plaintiffs: Plaintiffs propose that a preliminary injunction hearing occur before 5 August 24, 2009, the date of the commencement of the academic year at Arizona State 6 University and the deployment of Kindle DX’s by that institution. Plaintiffs further 7 propose that fact discovery in this case be completed on or before January 29, 2010 8 and expert disclosures by February 26, 2010 and expert depositions by April 2, 2010. 9 Any summary judgment motion should be filed by May, 14, 2010. The parties will work 10 in good faith to schedule depositions at mutually agreeable date and times. Plaintiffs 11 propose to engage in good faith settlement talks after disposition of its preliminary 12 injunction motion. 13 Defendants: Defendants do not believe that a hearing is necessary on Plaintiffs’ 14 pending Motion for preliminary injunction. Defendants generally agree with Plaintiffs’ 15 proposed dates, but request staggered disclosure of expert witnesses. 16 a. Deadline for fact discovery: January 29, 2010 17 b. Deadline for expert disclosures: 18 1. Plaintiffs’ initial disclosure: December 4, 2009 19 2. Defendants’ initial disclosure: January 29, 2010 20 3. Rebuttal disclosure: February 26, 2010 21 c. Deadline for completion of expert depositions: April 2, 2010 22 d. Deadline for filing dispositive motions: May 14, 2010 23 e. Deadline for engaging in good faith settlement talks: Following the disposition of the pending motion for preliminary injunction. 24 25 15. Jury trial 26 A Jury trial has not been requested. 27 16. 28 Plaintiffs: Plaintiffs anticipate that trial will last three days at the outside. Length of Trial Plaintiffs believe that the trial can be shortened by (1) using the record developed at the 7 1 hearing on the motion for preliminary injunction as permitted by Rule 65, Fed. R. Civ. P. 2 and (2) that stipulations can be reached on three of the four elements of Plaintiffs’ 3 claims, leaving the trial to focus on the issue of equal access and any affirmative 4 defenses asserted by the Defendant. 5 Defendants: Defendants anticipate that the trial will last three to four days. 6 17. 7 Plaintiffs and Defendants believe that after the Court rules on its Motion for 8 Preliminary Injunction settlement talks could be fruitful, probably without the necessity of 9 assistance from the Court. Prospects for Settlement 10 18. Other Matters 11 None. 12 RESPECTFULLY SUBMITTED this 24th day of July, 2009. 13 14 OFFICE OF THE ATTORNEY GENERAL BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. /s/ Alisa Ann Blandford Alisa Ann Blandford (Bar: 012597) Lisa Kaye Hudson (Bar: 022901) 1275 W Washington Phoenix, AZ 85007 Telephone: (602) 542-7687 Facsimile: (602) 542-7644 /s/ Andrew S. Friedman Andrew S. Friedman (Bar. 005425) Guy A. Hanson (Bar. 013549) 2901 North Central Avenue, Suite 1000 Phoenix, AZ 85012-2311 Telephone: (602) 274-1100 Facsimile: (602) 274-1199 15 16 17 18 19 20 21 22 OF COUNSEL 23 Daniel F. Goldstein Mehgan Sidhu BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Maryland 21202 Telephone: (410) 962-1030 Facsimile: (410) 385-0869 24 25 26 27 28 8 1 2 3 4 5 6 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 7 8 9 10 11 12 Eve Hill 1667 K St. NW, Suite 640 Washington, DC 20006 Telephone: (202) 296-2044 Facsimile: (202) 296-2047 Attorneys for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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