280 F.R.D. 188
M.D. Penn.2011Background
- McConnell, a wheelchair user, sues Canadian Pacific Realty Company alleging ADA noncompliance at Hills Plaza in State College, PA.
- Plaintiff seeks discovery via Rule 34 inspection of the mall property, including parking, restrooms, entrances, paths of travel, and tenant stores.
- Defendants seek a protective order to limit the inspection in time, scope, and to exclude non-complaint areas absent standing.
- The Rule 34 demand contains no topical or temporal limitations and encompasses all 15 tenant stores, common areas, and parking.
- The court must determine the proper scope, topical/temporal limits, and notice requirements due to potential tenant-impacted inspections.
- The court ultimately grants the protective order in part, imposing limitations and notice requirements before inspecting tenant spaces.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 34 inspection must be topical and temporal | McConnell argues broader inspection is allowed to identify all barriers. | Canadian Pacific urges narrow, complaint-based scope and time limits. | Inspection must be topical and time-limited to mobility barriers within scope. |
| Whether the scope may include all mobility barriers at the site | Plaintiff seeks broad discovery of all barriers, not just those in the complaint. | Defendant contends discovery should be limited to known barriers tied to standing. | Broader discovery of mobility barriers is allowed, subject to approved topical/temporal limits. |
| Whether tenants must be joined/notice provided before inspecting tenant spaces | Inspection may include tenant stores without joinder or notice. | Tenants are potential indispensable parties; they must be noticed before inspection. | Require 7 days’ notice to each tenant prior to inspecting that tenant’s store. |
| What timing and conduct restrictions apply to the inspection | Inspection duration can be short; interior inspections may occur during business hours. | Limitations to protect tenants and operations are necessary; after-hours preferred for interiors. | Inspection limited to two and one-half hours total; after-hours interior inspections; exterior/parking may occur during business hours. |
Key Cases Cited
- Doran v. 7-Eleven, Inc., 524 F.3d 1034 (9th Cir. 2008) (standing/discovery broad scope for barriers identified during discovery)
- First Bank National Ass’n v. FDIC, 79 F.3d 362 (3d Cir. 1996) (ADA liability implications for landlords and tenants clarified)
- Scott Paper Co. v. United States, 943 F. Supp. 501 (E.D. Pa. 1996) (discovery rulings reviewed under abuse of discretion standard)
- Bodley v. Macayo Restaurants, LLC, 546 F. Supp. 2d 696 (D. Ariz. 2008) (standing/discovery considerations in ADA cases discussed)