National Federation of the Blind et al v. Target Corporation

Filing 55

MEMORANDUM in Opposition re 52 Objection to Evidence and Motion to Strike filed byNational Federation of the Blind, Bruce Frank Sexton, the National Federation of the Blind of California. (Related document(s) 52 ) (Paradis, Laurence) (Filed on 7/20/2006)

National Federation of the Blind et al v. Target Corporation

Doc. 55

Case 3:06-cv-01802-MHP

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644

LAURENCE W. PARADIS (California Bar No. 122336) [e-mail] MAZEN M. BASRAWI (California Bar No. 235475) [e-mail] DISABILITY RIGHTS ADVOCATES 2001 Center Street, Third Floor Berkeley, California 94704 Telephone: [phone] Facsimile: [phone] TTY: [phone] TODD M. SCHNEIDER (California Bar No. 158253) [e-mail] JOSHUA KONECKY (California Bar No. 182897) [e-mail] SCHNEIDER & WALLACE 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Telephone: [phone] Fax: [phone] TTY: [phone] DANIEL F. GOLDSTEIN (pro hac vice) [e-mail] BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore St., Suite 1700 Baltimore, MD 21202 Telephone: [phone] Fax: [phone] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION NATIONAL FEDERATION OF THE BLIND, the NATIONAL FEDERATION OF THE BLIND OF CALIFORNIA, on behalf of their members, and Bruce F. Sexton, on behalf of himself and all others similarly situated, Plaintiffs, v. TARGET CORPORATION, Defendant. Case No.: C 06-01802 MHP CLASS ACTION PLAINTIFF'S RESPONSE TO DEFENDANT'S OBJECTIONS TO EVIDENCE IN SUPPORT OF PRELIMINARY INJUNCTION Hearing Date: July 24, 2006 Time: 2:00 p.m. Judge: The Honorable Marilyn Hall Patel

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Dockets.Justia.com

Case 3:06-cv-01802-MHP

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644

To the extent that the Court considers Target Corporation's Objections to, and Motion to Strike, Evidence, Plaintiffs offer the following general comments: 1. Dr. James W. Thatcher It is undisputed that Plaintiffs' expert, Dr. James W. Thatcher, has extensive experience testing and evaluating websites to determine the extent to which they are accessible to blind users. See Thatcher Dep. at 32:15-35:8; 47:3-49:6; 83:4-85:19 and Thatcher Decl. at ¶4. His experience also includes developing accessibility guidelines and actually working with blind internet users to develop assistive technology. See Thatcher Dep. at 22:8-24:24; 27:5-28:22 and Thatcher Decl. at ¶¶7-10. Moreover, unlike Target's expert, Dr. Thatcher spent extensive time and effort specifically evaluating the extent to which target.com is accessible to blind users. See Thatcher Dep at 101:9-104:25; 106:13-109:11; 117:23-119:25; 126:1-128:16; 129:2-134:19; 136:12-26; Thatcher Decl. at ¶¶20-61 and Thatcher Decl. Ex. A. Thus, there is more than sufficient foundation for his opinions and conclusions in this matter. Additionally, as is evident from the issues and testimony discussed in the briefs, Dr. Thatcher's opinions are specific and directly relevant to this matter. Target continues to mischaracterize Dr. Thatcher's testimony by incorrectly claiming that he made no analysis of the actual usability of the website. Target's contention is directly contrary to what Dr. Thatcher states in his report, declarations and deposition. See Pl's. Reply Br. at 3-4. In fact, Dr. Thatcher specifically evaluated which types of non-compliance issues pose difficulty for blind users and which do not. See Thatcher Decl. Ex. A ¶ 6.1. As an extra level of usability testing, Dr. Thatcher even tested Target.com with JAWS to simulate what the experience of a blind user would be. See Thatcher Dep. at 62:11-64:2; 66:3-68:5. Target simply refuses to acknowledge the content of Dr. Thatcher's assessment report. Instead, Defendant attempts to take one quote from his deposition out of context, while refusing to acknowledge Dr. Thatcher's remaining deposition testimony, which specifically discusses the impact of various types of barriers on the usability of target.com. Finally, Target's contention that the assessment does not apply to the website in its current state is belied by Dr. Thatcher's

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National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiff's Response to Defendant's Objections to Evidence in Support of Preliminary Injunction

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644

testimony explaining that he checked target.com the day before his deposition and found that it was still inaccessible. See Thatcher Dep. at 62:11-64:2; 64:25-65:11; 66:3-68:5; 95:3-97:21. 2. Dr. Charles Letourneau Defendant's objections to the foundation for the opinion testimony of its own expert witness, Dr. Charles Letourneau, only serve to underscore the fact that Target has failed to rebut Plaintiffs' showing that target.com is generally inaccessible to the blind. Given Dr. Letourneau's experience as the co-chair of the World Wide Web's Web Accessibility Initiative (the committee that developed the WCAG 1.0 Standards) he is certainly qualified to render the opinions he testified to in his deposition. Those opinions concerned which features are required for compliance with web accessibility standards and which are required for websites to be readily usable by the blind. These opinions are relevant in that, among other things, they confirm most of the opinions rendered by Dr. Thatcher concerning the features needed for a website to be accessible to and usable by the blind. 3. Defendant's Declarants With respect to Defendant's objections to the testimony of their own declarants, the attempts by these individuals to use target.com provide the foundation for their admission that the site lacks alternative text and other access features. In fact, there is no real dispute that target.com generally lacks alt tags and other basic access features. Whether this absence of access features results in the denial of "full and equal" access is one of the issues in this case. Should the Court have any further questions or concerns regarding the admissibility of evidence, Plaintiffs' counsel will be prepared to address them during the hearing on July 24, 2006.

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Respectfully submitted, DISABILITY RIGHTS ADVOCATES LAURENCE W. PARADIS MAZEN M. BASRAWI SCHNEIDER & WALLACE TODD M. SCHNEIDER JOSHUA KONECKY
National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiff's Response to Defendant's Objections to Evidence in Support of Preliminary Injunction

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, THIRD FLOOR BERKELEY, CALIFORNIA 94704-1204 510.665.8644

BROWN, GOLDSTEIN & LEVY, LLP DANIEL F. GOLDSTEIN (pro hac vice) DATED: July 20, 2006 By: /s/ Laurence W. Paradis . Laurence W. Paradis Attorneys for Plaintiffs

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National Federation of the Blind, et al. v. Target Corporation Case No.: C 06-01802 MHP Plaintiff's Response to Defendant's Objections to Evidence in Support of Preliminary Injunction

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