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