Davis v. Ak-Sar-Ben Village, L.L.C.

Filing 93

MEMORANDUM AND ORDER - Defendant's Motion to Compel (Filing No. 82 ) is granted in part and denied in part, as outlined herein. On or before April 13, 2020, Plaintiff will provide Defendant with supplemental responses to Interrogatory Nos. 19 , 22 , and 23 , and Requests for Production Nos. 4 and 5 . Plaintiff's Motion to Compel (Filing No. 85 ) is denied without prejudice to re-filing after Plaintiff has identified with specificity the injunctive relief she is requesting and D efendant has raised, in response to that relief, a readily achievable defense. Counsel must promptly confer in good faith on this issue, with any renewed motion by Plaintiff filed on or before April 20, 2020. Due to the pandemic emergency, the partie s shall exchange all written discovery electronically rather than in a paper format delivered by mail or human courier. A telephonic status conference will be held before the undersigned magistrate judge on April 27, 2020 at 9:00 a.m. to discuss case progression and dispositive motion deadlines.Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MELANIE DAVIS,
Plaintiff,

8:18CV101

vs.
MEMORANDUM AND ORDER
AK-SAR-BEN VILLAGE, L.L.C.,
Defendant.

This matter is before the court on the parties’ cross motions to compel
certain discovery responses. (Filing Nos. 82 & 85). For the reasons outlined below,
Defendant’s Motion (Filing No. 82) will be granted in part and denied in part and
Plaintiff’s Motion (Filing No. 85) will be denied without prejudice to re-filing as
needed to address the defenses which will actu ally be litigated in this case.

BACKGROUND
On March 2, 2018, Plaintiff Melanie Davis (“Plaintiff”) sued Defendant AkSar-Ben Village, LLC (“Defendant”) alleging violations of Title III of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181–12189 at a multi-tenant
commercial building owned by Defendant at street address 1220 S. 71st St.,
Omaha, NE, 68106 (“the Property”). On May 15, 2018, Defendant moved to
dismiss Plaintiff’s Complaint on jurisdictional grounds, and Plaintiff countered by
filing an Amended Complaint. (Filing No. 19 (arguing for dismissal under Fed. R.
Civ. P. 12(b)(1) for lack of standing and for mootness));(Filing No. 22 (amending
Plaintiff’s complaint as a matter of right under Fed. R. Civ. P. 15(a)(1))). Defendant
then withdrew its pending motion to dismiss, which it refiled in opposition to
Plaintiff’s new operative pleading. (Filing No. 28).

In support of dismissal, Defendant argued that it had remedied any ADA
violation at the Property and had thus vitiated Plaintiff’s standing to sue and
mooted this case. The parties extensively briefed those issues, with Plaintiff
arguing that Defendant had not sufficiently demonstrated complete ADA
compliance at the Property.
Senior United States District Judge Joseph F. Bataillon denied Defendant’s
motion to dismiss, determining that Defendant “did not halt all of its allegedlywrongful behavior. It halted some of its allegedly-wrongful behavior and argues
that the rest of its allegedly-wrongful behavior is not actually-wrongful behavior.”
(Filing No. 49 at CM/ECF p. 10) (emphasis added). The court reasoned that
“[w]hen defendants have made this move—halting some behavior and justifying
other behavior—courts have refused to call the case moot.” (Id). As a result, the
court did not resolve the parties’ dispute as to whether the Property now fully
complies with the ADA, noting that “[t]he Court can determine that the case is not
moot without resolving those factual questions... [.]” (Id. at CM/ECF p. 9). Thus,
the case headed into the discovery phase 1 with the parties disagreeing as to
whether the Property was in full compliance with the ADA.

After discovery was served in the fall of 2019, each party was dissatisfied
with some of the opposing party’s responses. They attempted to resolve their
disputes, but were unable to do so, and ultimately sought judicial guidance. On

1

In May 2019, Plaintiff moved for permission to file its second amended complaint, which

the court allowed. Plaintiff filed her Second Amended Complaint on October 22, 2019. (Filing No.
76). Defendant answered thereafter. (Filing No. 79). Thus, while discovery opened prior to the
October 22, 2019 pleading amendment, it did not begin in earnest until late 2019 – after Defendant
answered Plaintiff’s Second Amended Complaint on November 5, 2019. (Id).

2

January 7, 2020, the undersigned magistrate judge held a telephonic conference
to discuss the parties’ respective positions on discovery. (Filing No. 81, audio file).
During the conference, Plaintiff argued that Defendant improperly objected to
Plaintiff’s Requests for Production Nos. 16-20, which are targeted at obtaining a
picture of Defendant’s financial health and profitability. Plaintiff has requested
Defendant’s tax returns, bank statements, tenant leases, and certain profit and
loss statements and worksheets. Plaintiff asserts she needs access to Defendant’s
financial data in order to overcome Defendant’s affirmative defense that the
modifications requested are not “readily achievable,” as defined in 42 U.S.C. §
12181(9).

Likewise, Defendant believes that Plaintiff has improperly objected to
Defendant’s Interrogatory Nos. 19, 22, and 23 and Defendant’s Request for
Production Nos. 4 and 5. Defendant requests financial information from Plaintiff,
along with other data related to Plaintiff’s disability and Plaintiff’s history of ADA
litigation in various jurisdictions. Defendant argu es that the requested information
is necessary to probe Plaintiff’s credibility as to whether she actually planned to
return to and enjoy the Property or whether she filed this lawsuit solely as a means
of financial gain. Having reviewed each party’s evidence and briefing, the motions
will be partially granted and partially denied as outlined below.

ANALYSIS
The Federal Rules of Civil Procedure allow for discovery of “any
nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Relevancy, for the
purposes of discovery, includes “any matter that bears on, or that reasonably could
lead to other matters that could bear on, any issue that is or may be in the case.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The proportionality
3

analysis then requires the court to weigh “the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery outweighs
its likely benefit.” Fed. R. Civ. P. 26(b)(1). The broad scope of Fed. R. Civ. P. 26
generally allows discovery “unless it is clear the information sought can have no
possible bearing on the case.” Ingram v. Covenant Care Midwest, Inc., 2010 WL
1994866, at *3 (D. Neb. 2010).

I.

Defendant’s Motion

As noted above, Defendant moves to compel Plaintiff's responses to
Defendant's Request for Production Nos. 4 and 5 and Interrogatory Nos. 19, 22,
and 23,2 all addressed below.
a) Defendant’s Requests for Production Nos. 4 and 5 and Interrogatory
No. 22
The court will take up Defendant’s Interrogatory No. 22 and Defendant's
Requests for Production Nos. 4 and 5 together. Defendant’s Interrogatory No. 22

2

Plaintiff argues in her brief that Defendant exceeded the allowable number of
interrogatories. Plaintiff claims that because she lodged a general objection to the number of
requests propounded, she should not be compelled to respond further. In essence, she claims
that when a party believes too many interrogatories were served, that responding party can raise
a general objection, unilaterally pick and choose which interrogatories to answer, and refuse to
answer the rest. The court is not persuaded. “When a party believes that another party has asked
too many interrogatories, the party to which the discovery has be[en] propounded should object
to all interrogatories or file a motion for protective order. The responding party should not answer
some interrogatories and object to the ones to which it does not want to respond. By answering
some and not answering others, the [party] waived this objection.” Allahverdi v. Regents of Univ.
of New Mexico, 228 F.R.D. 696, 698 (D.N.M. 2005). Plaintiff answered and objected to the
interrogatories without seeking a protective order or otherwise refusing to respond to requests
she believed to be in excess of the allowable amount. Her objection is waived.

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seeks information related to Plaintiff's ADA lawsuits filed in other jurisdictions.
Defendant has requested a listing of each person, partnership, company,
corporation or governmental entity against whom Plaintiff has made a claim of
discrimination under Title III of the ADA. (Filing No. 84-2 at CM/ECF p. 6).
Defendant further requests the date of each claim or suit, the jurisdiction of the
court where any suit was filed, and whether Plaintiff received a monetary
settlement as a result of any claim or suit filed pursuant to Title III. (Id). Defendant's
Requests for Production Nos. 4 and 5 seek Plaintiff's state and federal tax returns
as well as her paystubs, W-2 forms, and other related tax documents. (Filing No.
84-3 at CM/ECF p. 2). Though targeting different information, each of the foregoing
are premised on the same relevancy rationale – i.e., that information related to
Plaintiff’s previous ADA claims, and financial gains arising therefrom, is relevant
as to her credibility on the issue of standing to pursue this case. (Filing No. 83 at
CM/ECF p. 7)
As an initial matter, the court notes that it “must tread carefully before
construing a Disability Act plaintiff's history of litigation against him.” See, e.g.,
Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010)
(noting that the court should be “particularly cautious regarding credibility
determinations that rely on a plaintiff's past [Disabilities Act] litigation”) (internal
citation omitted). Indeed, other courts have
recognize[d] that the unavailability of damages [under the ADA]
reduces or removes the incentive for most disabled persons who are
injured by inaccessible places of public accommodation to bring suit
under the ADA. See Samuel R. Bagenstos, The Perversity of Limited
Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54
U.C.L.A. L.Rev. 1, 5 (2006). As a result, most ADA suits are brought
by a small number of private plaintiffs who view themselves as
champions of the disabled. District courts should not condemn such
serial litigation as vexatious as a matter of course.

5

Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007). However,
while the above rationale is premised on valid policy goals, it must be weighed
against the need to protect from “an end-run around the ADA's limitations on
remedies.” Harris v. Stonecrest Care Auto Ctr., LLC, 472 F. Supp. 2d 1208, 1215
(S.D. Cal. 2007). Because damages are unavailable under the ADA, there is the
danger that “serial plaintiffs” may be servin g essentially as “professional pawns in
an ongoing scheme to bilk attorney’s fees” while having no real interest in
vindicating afflicted rights under the ADA. Brother v. Tiger Partner, LLC, 331
F.Supp.2d 1368, 1375 (M.D.Fla.2004).

Defendant argues that Plaintiff falls into the latter camp and requests the
above discovery in order to probe her credibility as to certain elements of her claim.
Defendant specifically questions Plaintiff’s “intent to return” to the Property. An
ADA plaintiff lacks standing unless she has a “likelihood of future injury.” Brown v.
Grandmother's, Inc., 2010 WL 611002, at *6 (D. Neb. Feb. 17, 2010). This requires
a plaintiff to show a “plan to return” to the subject property, which must be more
than just a speculative desire to visit the premises “some day.” Id. Plaintiff has
pleaded an intent to return to the Property and has previously offered affidavit
testimony regarding the same. (Filing No. 37). She further indicates that she has
visited and plans to return to Green Spot, Bed Bath and Beyond, and Qdoba, all
tenants at the Property. (Id). As noted, Defendant has called into question
Plaintiff’s credibility as to that intent, arguing instead that she may have filed this
lawsuit solely for financial gain.
It is axiomatic that a litigant may discover facts related to a wi tness’
credibility. See Hickman v. Taylor, 329 U.S. 495, 511 (1947). But the court cannot
afford the parties the unfettered ability to probe into all aspects of a witness’
veracity. If unchecked, “the areas to be probed to test a witness' credibility are
virtually limitless.” Barrett v. Reynolds, 2014 WL 1223330, at *4 (D. Neb. Mar. 24,
6

2014) (quoting Davidson Pipe Co. v. Laventhol & Horwath , 120 F.R.D. 455, 462
(S.D.N.Y.1988)) (emphasis added). In order to fairly limit the scope of discovery,
in the spirit of the federal rules, the court should consider several factors in
evaluating whether credibility discovery is permissible. Barrett, 2014 WL 1223330,
at *4. Those factors include: “(1) whether the prior acts in question demonstrate a
propensity for deception; (2) the extent to which the prior act occurred in a context
where there is a premium on veracity; (3) the lapse of time between the prior act
and the trial testimony; (4) the relationship between the subject matter of the prior
deceptive act and that of the instant litigation and (5) whether the party seeking
disclosure has a foundation for its inquiry.” Id.

On balance, the above factors counsel in favor of allowing the requested
discovery. Defendant has articulated a specific, limited category of information
regarding Plaintiff’s credibility: information related to past ADA litigation and any
resultant monetary payments received. As the Defendant points out, Plaintiff has
filed dozens of ADA actions in this forum alone, (Filing No. 83 at CM/ECF p. 5),
with a similar number previously filed in United States District Court for the District
of Minnesota. (Id). Plaintiff correctly notes that her intent to return to the other
properties she has sued may be inadmissible to prove her intent to return to the
Property at issue in this litigation . See D'Lil v. Best W. Encina Lodge & Suites, 538
F.3d 1031, 1037 (9th Cir. 2008). But the court is not here deciding whether th is
information is admissible – as direct evidence, credibility evidence, or otherwise.
That determination will be left to the ultimate trier of fact. The discovery rules are
explicit: “Information within this scope of discovery need not be admissible in
evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). So long as her history of
litigation is relevant to her credibility – and the court finds that it is – that is sufficient
for the purposes of discovery.

7

The court makes no judgment as to Plaintiff’s credibility and wishes to make
clear that the foregoing is neither an accusation regarding, nor condemnation of,
her intentions in this or any other litigation. And the court is cognizant of the law
mandating that an ADA Plaintiff’s past litigation experience cannot be held against
the plaintiff. Antoninetti, 643 F.3d at 1175. However, the court is satisfied that
Defendant has articulated a reasonable basis to, at minimum, discover the
requested information. If Plaintiff has previously received financial incentive to file
ADA claims, that information could be properly used to undermine her assertion
that this case was filed because she wants to return to the Property—a question
that goes to the heart of standing. Should Defendant’s discovery requests unearth
facts the Plaintiff believes are unduly prejudicial, irrelevant, or the like, she is free
to move in limine to exclude any information she believes is inadmissible under the
federal evidentiary rules.

1.

Interrogatory No. 22.

As to Interrogatory No. 22, the court orders Plaintiff to respond as requested.
Plaintiff will provide Defendant with a listing of all responsive lawsuits, including all
the information requested by Defendant in subsections (a) – (d). The court notes
that in their briefing and in previous letters to the court, the parties have indicated
some compromise on the scope of this interrogatory. The court does not know the
parameters and specifics of that agreement. But so long as the parties have an
agreement, the scope of this interrogatory can be limited accordingly. However,
the court believes the interrogatory, as drafted, is permissible, and this order will
require Plaintiff to fully respond, absent agreement of the parties otherwise.

Additionally, Plaintiff claims that she should not be required to respond to
Interrogatory No. 22 because the Defendant could access th e information online
using the federal PACER platform or other publicly available means. (Filing No. 90
8

at CM/ECF p. 3). This is not strictly true. Subsection (d) asks whether Plaintiff
received financial compensation. That information would not be available on
PACER. Likewise, the interrogatory is not limited to formally filed lawsuits. It targets
informal demands made by Plaintiff pursuant to the ADA. (Filing No. 84-2 at
CM/ECF p. 6). That information is not available publicly either. And, even as to the
publicly available components, Plaintiff has not demonstrated a compelling reason
why it would be more burdensome for her to compile the requested information
than it would be for Defendant. "[A]ll discovery requests are a burden on the party
who must respond thereto. Unless the task of producing or answering is unusual,
undue or extraordinary, the general rule requires the entity answering or producing
the documents to bear that burden." Anderson v. Nebraska Med. Ctr., 2013 WL
6197094, at *2 (D. Neb. Nov. 27, 2013) (internal citation omitted). Plaintiff bears
the burden of responding.

2.

Requests for Production Nos. 4 and 5

As to Requests for Production Nos. 4 and 5, the motion is granted in part.
Plaintiff will be required to respond to Requests for Production Nos. 4 and 5, as
follows.
Tax returns “are not absolutely privileged from civil discovery, but a
heightened showing of relevance and necessity is required before discovery will
be permitted.” Home Instead, Inc. v. Florance, 2013 WL 5979629, at *9 (D. Neb.
Nov. 8, 2013) (citing Flores v. Tyson Foods, Inc., 2013 WL 1091044 at *5 (D. Neb.
Mar. 15, 2013)). This court has adopted a two-prong approach. First, the court
should analyze whether “the moving party has established that the tax returns are
relevant to the parties' dispute.” Id.

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This court has previously concluded that tax and other financial information
is discoverable to probe an ADA plaintiff’s credibility on the issue of intent to return
to the Property. Hillesheim v. Bucks, Inc., 8:18-cv-00037 (see Filing No. 19 (on the
record discovery conference at which the court ruled plaintiff’s tax returns
discoverable)); Brown, 2010 WL 611002, at *6. If Plaintiff is pursuing this litigation
for purely financial reasons, she may not have standing.

Thus, tax and financial information related to whether Plaintiff is employed
by her attorney and/or receiving income for acting as an ADA plaintiff is relevant
to whether she has credibly asserted that she filed this litigation because she
intended to utilize the Property in the future. There appears to be some question
as to whether the relationship between Plaintiff and her counsel is purely attorneyclient. Plaintiff and her partner, Zach Hillesheim, both rely on wheelchairs for
mobility and together, as of August 2018, the couple had filed more than 90 percent
of all pending ADA claims in this district. (Filing No. 84-9 at CM/ECF p. 2). All of
those lawsuits were filed on their behalf by the same attorney of record. Hillesheim
receives a portion of the “settlement money” paid in these cases, with the majority
going to his attorney. (Filing No. 84-9 at CM/ECF p. 3). Since the cases seek
injunctive relief only, he must be receiving a portion of the attorney fees awarded
to Plaintiff’s counsel. If Plaintiff has a similar fee-splitting arrangement with her
attorney, whereby Plaintiff is compensated for investigating local businesses for
ADA compliance and then serving as counsel’s federal plaintiff, that fact is relevant
in determining whether Plaintiff can credibly assert that she encountered barriers
when she attempted to enter or use the Property and that she has standing to file
this lawsuit because she intends to return to and utilize the Property. Plaintiff’s tax
returns would include any income received from any such fee-splitting
arrangement.

10

Her tax information is also relevant in order to determine what, if any,
proportion of her overall income directly flows from ADA litigation. Hillesheim v.
Bucks, Inc., 8:18-cv-00037. Indeed, if the records bear out that any portion of her
income derived from ADA litigation is de minimus in comparison with income from
other sources, that would tend to bolster her credibility in connection with her actual
intention to use the Property. If the portion is outsized, that would arguably
undercut her credibility. How much weight, if any, to give to any fee-splitting
arrangement would be left to the trier of fact.
If the requesting party demonstrates relevance, as here, then “the
responding parties must produce the returns unless they show there is no
compelling need for production of the returns; that is, the relevant information
within the returns is readily obtainable from another source.” Home Instead, Inc.,
2013 WL 5979629, at *9. The requested information is necessary in order to
contextualize Plaintiff’s ADA litigation income, if any, into the full view of her
financial situation. That full view is not “readily obtainable” elsewhere. Id. She will
be compelled to produce all of the information requested in Defendant’s Requests
for Production Nos. 4 and 5. However, the court will limit the production only to
those portions of her tax returns that specifically indicate the amounts and sources
of her income. Id. (limiting production to “portions of the tax return(s) reflecting all
income received along with copies of any documents supporting those income
disclosures”). This includes income derived as both a W-2 employee or Form 1099
independent contractor.3 Produced records will be subject to the parties’ protective
order at Filing No. 57.

3

Def endant has only requested that Plaintiff individually produce W-2 forms and has not specifically asked
f or production of any Form 1099 that Plaintiff has received f or work as an independent contractor. For
clarity, this order is only compelling production of the requested W-2 information. Plaintiff’s income derived
f rom any independently contracted work will only be produced to the extent it is included on Plaintiff’s state
and local tax returns or on paystubs produced in response to Request No. 4.

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b) Defendant’s Interrogatory No. 19
Defendant’s Interrogatory No. 19 seeks information regarding Plaintiff's
disabled status and whether she receives government benefits. Specifically,
Defendant requests a listing of each government entity to which Plaintiff submitted
an application for disability benefits, whether benefits were granted, the amount of
any granted benefits, and the reasons why Plaintiff applied for such benefits. (Filing
No. 84-2 at CM/ECF p. 5).

In response, Plaintiff objected to the relevancy of the interrogatory but
answered over her objection that she “qualities for federal disability benefits based
on her cerebral palsy.” (Filing No. 84-4 at CM/ECF p. 11). She further clarified in
her brief opposing Defendant’s Motion to Compel that she “applied” for disability
status based on her cerebral palsy. (Filing No. 90 at CM/ECF p. 2).

Thus, there does not appear to be a dispute as to whether Plaintiff has
applied for governmental benefits based on her cerebral palsy. However, that does
not fully answer the request. As with Requests for Production Nos. 4 and 5, this
interrogatory is targeted at obtaining a full view of Plaintiff’s finances. For the same
reasons as above, her overall financial health is relevant to whether she was
motivated by financial gain to file the instant lawsuit and not by an intent to
prospectively utilize the Property. That, as discussed, potentially speaks to her
credibility. Thus, the amount of federal benefits received monthly by Plaintiff is
relevant, in order to fully assess her financial situation and to appropriately
determine the proportion, if any, of her overall income that is derived from funds
flowing from ADA litigation.
That notwithstanding, the court will limit Plaintiff’s required response to
Interrogatory No. 19 to providing a list of the monetary amount of benefits she has
12

received each month for the last five years. Plaintiff is not required to disclose the
basis on which she applied or the agency to which any application was directed.
She is not required to disclose whether any application for benefits was denied.
She is only required to disclose whether, and in what amount, she has received
disability benefits.
c) Defendant’s Interrogatory No. 23
In her brief in opposition to Defendant’s Motion to Compel, Plaintiff has
withdrawn her objection to Interrogatory No. 23. (Filing No. 90 at CM/ECF p. 3)
(“Davis will provide the requested information in a separate document labeled
confidential.”). The court agrees that the request is relevant. To the extent that
Plaintiff has not complied with its obligation to respond to Interrogatory No. 23 as
of the date of this order, the court will compel Plaintiff’s compliance. The response
will be subject to the parties’ protective order at Filing No. 57.

II.

Plaintiff’s Motion
Plaintiff’s moves to compel responses to her Requests for Production Nos.

16-20. Are previously noted, the disputed requests target Defendant’s finan ces
and profitability. Plaintiff has requested Defendant’s tax returns, bank statements,
tenant leases, and certain profit and loss statements and worksheets. Plaintiff
argues that all the foregoing financial information is relevant to Defendant’s
affirmative defense that the requested changes are not “readily achievable,” as
defined in 42 U.S.C. § 12181(9).
A place of public accommodation is non-compliant with the ADA if it “fails
to remove architectural barriers ... in existing facilities ... where such removal is
readily achievable.” Wright v. RL Liquor, 887 F.3d 361, 363 (8th Cir. 2018) (quoting
13

42 U.S.C. § 12182(b)(2)(A)(iv)). Removal is readily achievable if it is “easily
accomplishable and able to be carried out without much difficulty or expense.” Id.
(quoting 42 U.S.C. § 12181(9)). The statutory scheme then provides several
factors the court should consider in analyzing whether barrier removal is readily
achievable. Id.

In Wright, the Eighth Circuit addressed the readily achievable standard,
noting that “[t]he ADA does not state whether the plaintiff or the defendant has the
initial burden of production that removal is readily achievable.” Wright, 887 F.3d
at 364. The Wright Court went on to adopt a burden shifting standard utilized by
several sister circuits, placing the initial burden of production on the plaintiff as to
whether a proposed correction is readily achievable. Id. at 364 (“Following the
Tenth, Second, and Eleventh Circuits, this court holds that the district court
properly required [plaintiff] to initially present evidence tending to show that the
suggested method of barrier removal was readily achievable under the
circumstances.”).

The parties both cite Wright, each arguing that its burden shifting framework
supports their own position on the relevancy of Defendant’s financial information.
Plaintiff argues that information regarding Defendant’s financial condition is
relevant to meeting its initial burden. Plaintiff cites the factors listed in 42 U.S.C. §
12181(9), noting that most deal with the financial ability of an ADA defendant to
remove barriers to access at their facilities. (Filing No. 90 at CM/ECF p. 3). And
the readily achievable standard in fact does outline several financial considerations
the court should weigh, including “the overall financial resources of the facility,”
“the effect on expenses and resources,” and “the impact…upon the operation of
the facility.” 42 U.S.C. § 12181(9). Thus, Plaintiff claims, Defendant’s requested
financial information is relevant to each of those factors and could be used to

14

support its initial burden of presenting evidence regarding the achievability of its
proposed fixes. (Filing No. 90 at CM/ECF pp. 3-4).
Defendant argues that Plaintiff does not need access to Defendant’s
financial information to meet its initial burden of production under Wright. (Filing
No. 89 at CM/ECF p. 2). Under Defendant’s interpretation, Wright requires the
Plaintiff to “offer a plausible proposal,” which Defendant may then counter with
evidence that it is not readily achievable. Defendant argues that in order to offer a
plausible proposal, Plaintiff does not need access to Defendant’s financial
information. Plaintiff counters, however, that even if the court were to determin e
Plaintiff could carry its initial burden without access to Defendant’s financial data,
it is nevertheless discoverable if Defendant may use it to support its own burden
of proof that the fixes are not feasible.4 (Filing No. 90 at CM/ECF pp. 3-4).

Plaintiff is correct. Regardless of whether the information is used in support
of Plaintiff’s initial burden or by Defendant in response, the rules of discovery allow
a party to request information “that is relevant to any party's claim or defense.”
Fed. R. Civ. P. 26(b)(1) (emphasis added). The parties are therefore not limited to
discovery only as to those issues on which they carry the burden. As a result, the
court need not decide whose interpretation of Wright prevails – the information is
relevant regardless of how the burden is apportioned and shifted.

The analysis, however, does not stop at relevancy. The party resisting
discovery may defeat a motion to compel information —even information that is
Defendant additionally argues that the “readily achievable factors” in 42 U.S.C. § 12181(9) include
some non-financial criteria, and thus, a readily achievable defense can be successfully asserted
irrespective of the party’s financial condition. For this reason, Defendant claims, its financial
information is irrelevant. However, Defendant concedes that financial criteria can be relevant to
its asserted defense. That is all that is required. A party cannot shield itself from discovery simply
on its own speculation that the information might be rendered irrelevant in the course of the
litigation.
4

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demonstrably relevant—if that party establishes that production would constitute
an undue burden or an unreasonable hardship and is thus disproportionate to the
needs of the case. The court evaluates several factors when analyzing the
proportionality of requested discovery, including the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). And “[t]he parties
and the court have a collective responsibility to consider the proportionality of all
discovery and consider it in resolving discovery disputes.” Fed. R. Civ. P. 26
advisory committee’s notes (2015).

It is unclear to the court what, if any, modifications the Plaintiff is requesting.
Defendant believes it has made all necessary modifications and is in compliance
with the ADA. (Filing No. 29 at CM/ECF p. 2). Defendant notes in its brief in
opposition to Plaintiff’s motion to compel that it cannot tell how, “if at all,” its readily
achievable defense applies to Plaintiff’s claims because it does not know what
Plaintiff is claiming. (Filing No. 89 at CM/ECF p. 3). Put differently, Defendant’s
readily achievable defense may be rendered wholly irrelevant when Defendant
learns what Plaintiff wants and to what extent Plaintiff believes Defendant is not
complying with the ADA.

The court, therefore, needs more information in order to fully evaluate the
proportionality of Plaintiff’s discovery requests to the needs of the dispute. Fed. R.
Civ. P. 26(b)(1). Before the court can order the production of information relevant

to an affirmative defense, it must determine whether the defense in question is still
at issue in the case. This should not be construed as the court requiring Plaintiff to
make a showing under Wright. As discussed above, the court is making no
determination as to the substantive application of Wright or the scope of either
16

party’s burden. This ruling simply reflects the fact that the court feels unprepared
to meet its analytical obligations on proportionality under Rule 26 on the parties’
present showing. The court will thus deny Plaintiff’s motion, without prejudice to
refiling after the plaintiff identifies the modifications in dispute.
Finally, the court will not reach Defendant’s argument that its property
manager is financially responsible for the fixes, making Defendant’s financial
information irrelevant. (Filing No. 89 at CM/ECF p. 4). Evidence of the contours of
Defendant’s relationship with its property manager are not before the court on this
motion. While Defendant cites to Smith v. Bradley Pizza, Inc. in support of its
argument that the relationship renders this discovery irrelevant, the District of
Minnesota specifically notes that was true only on the specific facts of the case.
Smith v. Bradley Pizza, Inc., 2019 WL 2448575, at *9 (D. Minn. June 12, 2019).
The court needs more information on the specific facts of this case, prior to making
any finding on this point. Defendant may provide additional evidence on its
property management relationship should Plaintiff choose to refile her motion to
compel.
In sum, Plaintiff may file a renewed motion to compel Defendant’s production
of the above requests. Before filing that motion, Plaintiff must articulate what, if
any, Property modifications she is requesting for ADA compliance. In response,
Defendant can then decide if those proposed modifications merit a readily
achievable defense. If Defendant plans to maintain the defense, it will need to
provide to the court evidence (as opposed to merely arguments in the briefing)
which explains the property manager/tenant relationship and how that relationship
impacts the obligation to make any improvements or modifications to the Property.

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Accordingly,
IT IS ORDERED:
1)

Defendant’s Motion to Compel (Filing No. 82) is granted in part and
denied in part, as outlined herein. On or before April 13, 2020,
Plaintiff will provide Defendant with supplemental responses to
Interrogatory Nos. 19, 22, and 23, and Requests for Production
Nos. 4 and 5.

2)

Plaintiff’s Motion to Compel (Filing No. 85) is denied without
prejudice to re-filing after Plaintiff has identified with specificity the
injunctive relief she is requesting and Defendant has raised, in
response to that relief, a readily achievable defense. Counsel must
promptly confer in good faith on this issue, with any renewed
motion by Plaintiff filed on or before April 20, 2020.

3)

Due to the pandemic emergency, the parties shall exchange all
written discovery electronically rather than in a paper format
delivered by mail or human courier.

4)

A telephonic status conference will be held before the undersigned
magistrate judge on April 27, 2020 at 9:00 a.m. to discuss case
progression and dispositive motion deadlines.

March 23, 2020.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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