Attorneys Claim Apple Stalling, Didn’t Preserve Evidence

Apple’s legal team is playing hardball with the two women who have filed a federal lawsuit against the company claiming that the San Francisco retail store doesn’t comply with federal accessibility regulations. In a court summary of a November 14th conference between the two legal teams, Apple’s attorneys say that mediation is “on-going.” But the women’s attorneys claim Apple is stalling, and renewed a request to the judge to proceed to trial, which would force Apple to disclose pertinent documents and make employees appear for depositions. The 13-page “joint case management conference summary” submitted to U.S. District Court Judge Susan Illston recaps the legal positions of both parties, and recounts how Jana Overo and Nicole Brown-Booker encountered impediments to full access when they visited the two-level Apple store in mid-2007. The women claim they could not maneuver their wheelchairs through the store, that elevator controls and products were placed out of their reach, and that employees did little to accommodate their disabilities. Apple states that the store “fully complies with the accessibility requirements imposed under state and federal law,” and that the woman have no valid claim.

In a summary of the plaintiffs’ position, the attorneys say Brown-Booker went to the store to buy a computer game as a gift for her nephew, but could not find the elevator because it was not “clearly marked.” Once inside, she couldn’t press the floor buttons because they were “improperly located out of her reach.” She encountered narrow aisles and products located too high to reach. She waited for an employee to help, but none appeared after 20 minutes. Two fellow customers helped her pick out two games, but when she went to pay for the games, she was unable to reach the credit card device to sign for her purchase.

Overbo visited the San Francisco store about one month later for a Genius Bar appointment, and also had difficulty reaching the second floor, “because trash and other objects blocked the path of travel to the elevator,” the court document states. She also had trouble pushing the elevator buttons, and once on the second floor had trouble gaining the attention of the Genius when her name was called for the appointment.

In the summary, the defendants’ attorneys claim that Apple has “failed to preserve evidence by making changes to the store without first warning plaintiffs and giving them an opportunity to document the original condition of the store.” Apple says they have taken “all required steps” to preserve relevant evidence.

The women’s attorneys again asked the court to waive the usual requirements of mediation for cases related to the Americans With Disabilities Act (ADA). The court had previously denied their request, which would allow the plaintiffs to proceed to trial after depositions and discovery, procedures that could reveal potentially damaging information from Apple employees or documents.

The plaintiffs’ attorneys “do not agree to any limitations on discovery,” and in the summary those words were printed in italics for emphasis. Any limitations on discovery would “severely abridge” the women’s right to gather evidence to prove their claims, the attorneys said.

Apple, on the other hand, offered a complete set of guidelines on both the depth of discovery and its duration, and only if mediation doesn’t result in an agreement.

First, Apple’s attorneys proposed limiting document requests to 20 per side, interrogatories to 20, requests for admissions to 10, and depositions to three, not including experts.

[An "interrogatory" is a written request for information from the other party, with answers made under oath. A "request for admission" is a request to the other party asking to admit the truthfulness of some fact or opinion, including the truthfulness of a document. They are intended to simplify a lawsuit by narrowing down the points of contention. A "deposition" is an in-person, out-of-court, under-oath question-and-answer session prior to trial.]

Apple’s attorneys then proposed that discovery would close on July 9, 2009, expert disclosure would occur by March 16, 2009, and rebuttal experts would be disclosed by April 30, 2009.

In the conference statement, Apple repeatedly says that the store meets all accessibility requirements. They say that if mediation fails, they would ask the court for a “summary judgement,” essentially a ruling for the company.

As for the mediation process, the plaintiffs told the judge there’s been no settlement after five months of discussions, but yet they are willing to continue talks. However, “(the plaintiffs) are no longer willing to wait to prosecute their claims against defendants while defendants stall and offer no real relief.” Instead, Overbo and Brown-Booker wish to begin the litigation process, “so they can prove their claims, and perhaps motivate defendants to be more realistic about settlement.”

Apple responded simply that, “This mediation process is on-going.”

As for any trial, the plaintiffs anticipate a seven to 10-day court hearing, while Apple’s attorneys anticipate “one week of trial.”

Download (pdf) the entire conference summary here.

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