Davis et al v. Jacob S. Ciborowski Family Trust et al
Filing
78
ORDER denying 49 Motion for Protective Order; denying 50 Motion for Protective Order. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Dean Davis, Gina Colantouni,
and James Piet
v.
Civil No. 11-cv-436-PB
Jacob S. Ciborowski Family
Trust, et al.
O R D E R
Plaintiffs bring suit under Title III of the Americans with
Disabilities Act (AADA@), alleging that the owner of a commercial
property, Jacob S. Ciborowski Family Trust (ATrust@), and the
operators of two retail stores that lease space there, Concord Arts
and Crafts and Bagel Works, Inc. (ABagel Works@), deny access to
persons with physical disabilities.1
Specifically, plaintiffs
allege that defendants failed to make the two stores and an unoccupied
storefront wheelchair accessible during a recent construction
project, as is required under 28 C.F.R. § 36.402 and 42 U.S.C. §
12183(a)(2).
Defendants contest the claim and assert both a
counterclaim alleging bad faith, as well as affirmative defenses.
1
Plaintiffs have filed a notice of settlement with Concord Arts
and Crafts.
Discussion
Plaintiffs moved to compel defendants to answer certain
interrogatories, and those motions have been granted.2
Defendants
now move for a protective order (document nos. 49 and 50) to allow
them not to answer both the interrogatories that are the subject of
the motions to compel, as well as several other interrogatories
propounded to the Trust.
Plaintiffs object to the motions for a
protective order and argue that they are duplicative of the issues
presented by the motions to compel.
The court may grant a protective order based on a showing of
good cause.
Fed. R. Civ. P. 26(c); Bogan v. City of Boston, 489 F.3d
417, 423 (1st Cir. 2007).
To show good cause, the party seeking the
order must show that protection from discovery is necessary to avoid
Aannoyance, embarrassment, oppression, or undue burden or expense .
. . .@
Fed. R. Civ. P. 26(c).
In deciding whether the moving party
has shown good cause for the order, the court Ais required to balance
the burden of proposed discovery against the likely benefit.@
Gill
v. Gulfstream Park Racing Ass’n, Inc., 399 F.3d 391, 400 (1st Cir.
2005).
Neither the Trust nor Bagel Works provides good cause for the
court to find that a protective order is necessary in this case to
avoid annoyance, embarrassment, oppression, or undue burden or
expense.
Instead, defendants argue that the subject matter of the
2
Additional background information is provided in the order
granting the motions to compel.
2
disputed interrogatories is irrelevant and, therefore, the
information sought is not discoverable.
Defendants have not met
their burden to support their motions for a protective order.
Defendants= motion may be construed as a plea for protection from
answering allegedly irrelevant interrogatories.
In the interests
of judicial economy, the court elects to address defendants=
protestations concerning relevance.
I.
Bagel Works
Bagel Works moves for an order that would protect it from
answering Interrogatories 21 through 24.
Bagel Works argues that
it should not have to answer the disputed interrogatories because
the interrogatories seek information that is not relevant to the
case.
Plaintiffs contend that the motion is unnecessary because it
merely reiterates the same issues that were raised in plaintiffs=
motion to compel Bagel Works to answer those interrogatories (doc.
no. 34).
Bagel Works asserts that the motion to compel addressed
interrogatories propounded by Dean Davis, while it seeks a protective
order to preclude the same interrogatories from the other two
plaintiffs.
For the reasons stated in the order (doc. no. 77) granting the
motion to compel, Bagel Works=s motion for a protective order is
denied.
II.
The Trust
The Trust moves for an order that would protect it from answering
Interrogatories 10, 15, 16, 17, 19, 20, and 27 through 31.
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In the
order granting the motion to compel, the Trust has been ordered to
answer Interrogatories 28 through 31.
Thus, with respect to these
interrogatories, the motion for a protective order is moot.
In
support of the remainder of its motion, the Trust contends that the
disputed interrogatories seek information that is not relevant to
the case.
Plaintiffs respond that they are no longer seeking answers
to Interrogatories 15, 16, and 17, making that part of the motion
for a protective order moot.
The remaining dispute concerns
Interrogatories 10, 19, 20, and 27.
Interrogatories 10, 19, and 20 seek information about the Trust=s
inquiries regarding the historic significance of Phenix Hall and the
building project:
10. Please state all efforts that were made by you or on
your behalf to comply with the AU.S. Government=s Official
Guidelines for Preserving Historic Homes.@ [sic] with
respect to the 2010 summer/fall work performed at Phenix
Hall. This would include, but not be limited to, the
Guideline=s historic and access provisions. Please
provide all documents that related to these efforts.
19. Please identify every person and organization
consulted or communicated with, orally or in writing, on
historic issues with respect to the summer/fall 2010 work
at Phenix Hall. A complete answer will include the dates
of communication with each person or organization. A
complete answer will also include identification of all
documents generated as a result of the consultation or
communication.
20. Please identify all historic resources,
organizations and individuals you consulted or contacted
for the summer/fall 2010 work at Phenix Hall and the date
these resources and organizations were initially
consulted. A complete answer will provide all documents
related to said consultation and/or contact.
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Interrogatory 27 asks about the Trust=s communications with the City
of Concord:
27. Have you approached the City of Concord
sidewalk space to build an accessible ramp to
Hall storefronts? If so, please provide all
related to any such discussions and all related
A.
to use
the Phenix
details
documents.
Historic significance
The Trust argues that it should not have to answer
Interrogatories 10, 19, and 20 because the information sought is
irrelevant.
The Trust asserts that, other than complying with local
zoning laws, all decisions pertaining to the work done on Phenix Hall
were made by the Trust.
The Trust also asserts that it was not
required either to consult the guidelines referenced in
Interrogatory 10 or to seek information from any other source about
the historical significance of the project.
Plaintiffs respond that the interrogatories about the resources
the Trust consulted for the project are relevant to the Trust=s
affirmative defense that the Ahistoric significance@ of Phenix Hall
allowed it to avoid compliance with the ADA.
See Molski v. Foley
Estates Vineyard & Winery, LLC, 531 F.3d 1043, 1047-49 (9th Cir. 2008)
(explaining defendant=s burden under the ADA to show that barrier
removal was not readily achievable due to the impact on the historic
significance of the building); accord Rodriguez v. Barrita, Inc.,
No. C 09-04057 RS, 2012 WL 3538014, at *10-11 (N.D. Cal. Mar. 1, 2012).
Section 4.1.7 of the ADA Accessibility Guidelines state that an
entity that provides public accommodation should consult the A>State
5
Historic Preservation Officer=@ if the entity believes that
alterations to its building necessary to comply with the ADA A>would
threaten or destroy the historic significance of the building.=@
Molski, 531 F.3d at 1049 (quoting § 4.1.7).
AAlthough this clause
uses permissive language, it calls upon the party who believes that
compliance would threaten the historical significance of the
building to consult the appropriate agency.@
Id.
The Trust nevertheless argues that because § 4.1.7 does not make
consultation mandatory, the interrogatories are irrelevant.3
Efforts made by the Trust prior to completing the project, to address
the issue of a conflict between ADA compliance and the historic
significance of Phenix Hall, are relevant to the Trust=s invocation
of the exception.
The motion for a protective order as to
Interrogatories 10, 19, and 20 is denied.
B.
Communications with City of Concord
The Trust argues that the interrogatory concerning its
communications with the City of Concord seeks irrelevant information
because the Trust was not required to obtain any approval from the
city to build a ramp or to use the city=s sidewalks.
Plaintiffs assert
that the City of Concord has indicated a willingness to consider a
3
The Trust also argues that the Ahistoric significance@
exception is relevant only to the general subject matter of the case
and, therefore, requires plaintiffs to make a showing of good cause.
The Trust is mistaken. First, the burden of showing good cause for
the protective order it has requested is on the Trust. Second, in
this case, the Trust has raised the historic significance exception
as a defense in its answer; it is required to prove that defense.
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plan to modify the sidewalk area in front of Phenix Hall so that the
Phenix Hall storefronts can be rendered wheelchair accessible.
Assuming, without deciding, that the Trust was not required to
consult with the city, the court finds that the Trust=s communications
with the city are nevertheless relevant to its defense that its
facilities are Aaccessible to the maximum extent feasible.@
The
communications are also potentially relevant to the Trust=s
counterclaim asserting bad faith on the part of the plaintiffs.
Accordingly, the Trust=s communications with the City of Concord about
a plan to use the city sidewalks for accessibility are discoverable.
The motion for a protective order is denied.
III.
Award of Expenses
Plaintiffs seek an award of reasonable fees and expenses
incurred in opposing defendants= motions for a protective order
pursuant to Fed. R. Civ. P. 37(a)(5)(B) and 26(c)(3).
In response,
the Trust states that it was reasonably justified in filing the
motion, and Bagel Works does not address the issue.
The parties
shall address the issue of an award of expenses as outlined below.
Conclusion
Bagel Works=s motion for a protective order (document no. 49)
is denied, and the Trust=s motion for a protective order (document
no. 50) is denied.
As directed in the order granting the motions to compel (doc.
no. 77), counsel shall make their best efforts to agree on a proposed
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protective order to address issues of confidentiality as to the
defendants= financial records.
Plaintiffs shall file a motion for an award of fees and expenses
under Fed. R. Civ. P. 37(a)(5)(B), along with a supported and detailed
statement of the fees and expenses requested, on or before September
13, 2012.
The defendants shall file their responses on or before
September 19, 2012.
SO ORDERED.
____________________________
Landya McCafferty
United States Magistrate Judge
August 31, 2012
cc:
Jack P. Crisp, Jr., Esq.
Aaron Jesse Ginsberg, Esq.
John P. LeBrun, Esq.
Cindy Robertson, Esq.
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