United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION FOR ADMINISTRATIVE RELIEF FROM
GENERAL ORDER 56 [RE: EFC 22]
LAB SON FREEMAN, United States District Judge.
Marco Salsiccia and Scott Banks, two blind hockey fans, have
sued Sharks Sports & Entertainment, LLC
(“Sharks”), City of San Jose, and San Jose Arena
Authority (collectively, “Defendants”) alleging
that the Sharks SAP mobile application (the
“App”) is inaccessible to blind users, in
violation of Americans with Disabilities Act
(“ADA”) and related California laws. See
Compl., ECF 1. Plaintiffs brought this action on their own
behalf and on behalf of all individuals who are blind and use
the App or would use the App if it was accessible via the
relevant assistive technology called “screen
readers.” See Id . ¶ 47.
Mr. Salsiccia, first brought his concerns regarding the
inaccessibility of the App to Defendant Sharks’
attention in October 2016. Motion at 1, ECF 22. On July 5,
2018, Plaintiffs sent correspondence to Sharks and the City
of San Jose regarding their allegations that the App is
inaccessible and proposed that all parties engage in
structured negotiations. Id. In October 2018, Sharks
and Plaintiffs entered into a structured negotiations
agreement with the hope of resolving the dispute without the
need for litigation. Id. In February 2019,
Plaintiffs provided a demonstration of the alleged
accessibility issues at an in-parson meeting with Sharks.
Id. On March 26, 2019, five months after
negotiations began, Plaintiffs filed this class action suit.
27, 2019, Sharks and Plaintiffs stipulated to, and the Court
granted, a 90-day stay of litigation to continue
negotiations. ECF 15. During the stay, on June 20, 2019,
Sharks and Plaintiffs met again in person and Plaintiffs had
an opportunity to access an “alpha” version of an
update to the App in order to assess the App’s
accessibility. Motion at 2; Weaver Declaration ¶ 11, ECF
22-1. While recognizing that “some improvement”
was made, Plaintiffs identified some remaining accessibility
issues with the App. Motion at 2. On July 17, 2019,
Plaintiffs followed up with a written proposal of terms, to
which Defendants did not respond. Id. The stay of
litigation expired on August 30, 2019 and Defendants filed
their answer on September 5, 2019. ECF 20.
MOTION FOR RELIEF FROM GENERAL ORDER 56
the Court is Plaintiffs’ Motion for Administrative
Relief from General Order 56. Motion, ECF 22. Plaintiffs
argue that “[t]he parties have fulfilled both of the
key purposes of General Order 56-an early exchange of
information regarding the ambit of the claimed violations and
an early attempt at alternative dispute resolution.”
Motion at 2. According to Plaintiffs, Defendants are
well-aware of the inaccessibility allegations due to the two
in-person meetings attended by Plaintiffs and Sharks, which
Plaintiffs call “the equivalent of joint
inspections.” Id. at 3. Additionally,
Plaintiffs argue that “Defendants have had every
opportunity to respond to [Plaintiffs’] proposed
remedial steps but have not” and therefore “the
goals of General Orders 56 have been more than
satisfied.” Id. Plaintiffs ask for relief from
General Order 56 so discovery can begin immediately.
Id. Plaintiffs also request a case management
conference. Id. Alternatively, Plaintiffs ask the
Court to adopt their proposed expedited case schedule.
respond that they informed Plaintiffs that “no named
Defendants have unilateral control over the design,
construction, software components, and release of the App and
that numerous third parties are involved in the design,
maintenance, and operation of the App.” Opp’n at
2, ECF 23. Consequently, Sharks arranged meetings with the
third parties, once on February 1, 2019 and again on June 20,
2019. Id. In Defendants’ view, significant
progress was made at the June 20, 2019 meeting, which led to
Plaintiffs’ proposed settlement agreement. Defendants
argue that it is “premature and inappropriate for the
parties to abandon the schedule of General Order 56”
because (1) the 2018-2019 App was recently replaced on
September 11, 2019 with the 2019-2020 App and thus, the App
subject to Plaintiffs’ complaint no longer exists and
(2) mediation has not taken place. Id. at 3-4.
Further, Defendants point out that “Defendants have
voluntarily provided otherwise discoverable information and
materials to Plaintiffs as requested and have opened the App
up at private meetings for inspection and comment.”
Id. at 4.
is no dispute that this ADA case is governed by General Order
No. 56, which was adopted in the Northern District of
California “[t]o advance efficient and effective
litigation of ADA cases and to address defendants’
concerns about costs.” Hernandez v. Grullense,
No. 12-CV-03257-WHO, 2014 WL 1724356, at *2 (N.D. Cal. Apr.
30, 2014). “In cases subject to General Order No. 56,
discovery and other litigation proceedings are stayed, and
the parties must follow a detailed timeline for completing a
joint inspection and for participating in a mediation
process.” Johnson v. Starbucks Corp., No.
18-CV-01134-MEJ, 2018 WL 2938548, at *1 (N.D. Cal. June 12,
arguments in support of their request for relief from General
Order 56 are not persuasive. Based on the parties’
briefing, it seems to the Court that both sides have engaged
in good-faith efforts to resolve the App’s alleged
inaccessibility issues set forth by Plaintiffs. Two in-person
meetings have taken place, in which Plaintiffs have detailed
their concerns and reviewed Defendants’ modified and
improved App. Motion at 2; 3. For their part, Defendants have
engaged the third-party developers of the App with the goal
of resolving Plaintiffs’ concerns. Opp’n at 2.
However, the mobile application has now undergone an update,
which was released recently on September 11, 2019
after the parties’ in-person meetings.
Therefore, a joint inspection of the most recent version of
the App is yet to take place. The Court finds that the
parties would benefit from another joint inspection, in which
the current version of the App can be inspected and evaluated
for its accessibility.
no formal mediation has taken place. Although the parties
have engaged in informal settlement discussions and
negotiations, the Court agrees with Defendants that the
parties would benefit from structured and supervised
foregoing reasons, Plaintiffs’ Motion for
Administrative Relief from General Order 56 is DENIED. The
new deadline for the parties to complete inspection ...