Perhaps the last thing that many companies are focused on in the midst of the COVID-19 crisis is the extent to which their websites are compliant with accepted accessibility standards and the threat of ADA website accessibility class actions or individual claims. Unfortunately, however, it appears that ever-enterprising plaintiffs’ attorneys are taking advantage of this crisis to press these already ubiquitous claims even further. Over the past several years, thousands of federal lawsuits, styled as both class and individual actions, have been filed against companies in many industries seeking injunctive and compensatory relief for website-related violations of the Americans with Disabilities Act (ADA). The Department of Justice, which enforces the ADA, has taken the position that the “Web Content Accessibility Guidelines” developed by the World Wide Web Consortium provide a minimum standard, and most courts have agreed. These cases seek injunctive and compensatory relief for violations of the ADA and analogous state and local anti-discrimination laws, specifically alleging that websites are not compliant with the ADA and accessibility guidelines particularly for vision-impaired users. These cases have developed into a lucrative cottage industry for certain plaintiffs’ attorneys, as they are easy to prosecute, difficult to defend, and often result in expedited...
Author: Mark S. Sidoti
Race to the High Court: Hoosier Racing Seeks High Court Review of Third Circuit’s Slashing of E-Discovery Cost Award
The skyrocketing costs of e-discovery in modern day litigation will now be getting at least some attention from the nation’s highest court. Not long ago we reported on a decision by the Third Circuit Court of Appeals to slash recovery of costs by a prevailing party under 28 U.S.C. §1920 in Race Tires America, Inc., et al. v. Hoosier Racing Tire Corporation et al., No. 11-2316 (3d Cir. Mar. 16, 2012). In Race Tires, the Third Circuit, while acknowledging a spilt in the circuits, held that costs sought and awarded under §1920 must bear a reasonable connection to duplication of materials in the traditional sense to be recoverable by a prevailing party. Thus, certain e-discovery vendor activities — including conversion of the native files to TIFF images, the scanning of documents for the purpose of creating digital duplicates and the copying of the videos to DVD — could be reimbursed under the statute, while others, like consultant’s charges for data collection, preservation, searching, culling, conversion, and production, could not.
Anyone who thought that the concept of cooperation among counsel in discovery matters under the mandates of the Federal Rule of Civil Procedure 26(f) and The Sedona Conference® “Cooperation Proclamation” was a hollow platitude or aspirational goal, might want to review the latest word on this from one of the pre-eminent ediscovery Judges in the Country, Magistrate Judge John Facciola, of the United States District Court for the District of Columbia. As he is wont to do, Judge Facciola took the opportunity presented by a rather pedestrian discovery dispute among counsel to make clear that the watchword in litigation discovery is cooperation among counsel, at least in his court.
Not So Fast: Race Tires Court Gives a Flat to Momentum for Broad ESI Cost Shifting Under 28 U.S.C. §1920
A Third Circuit Court of Appeals panel, including the Hon. Thomas I. Vanaskie, one of the leading judicial authorities in e-discovery, has spoken — e-discovery-related cost recovery pursuant to 28 U.S.C. §1920 has limits; the costs must bear a reasonable connection to duplication of materials in the traditional sense to be recoverable by a prevailing party. As the first United States Court of Appeals decision to directly address this closely watched issue, this opinion may disarm a potentially powerful weapon in the already limited arsenal of parties burdened with excessive e-discovery costs.
On September 27, 2011, Chief Judge Randall Rader of the Federal Circuit announced that the Advisory Council of the Federal Circuit unanimously adopted a Model Order regarding e-discovery in patent cases. Its purpose is to serve as a “starting point” for district courts to streamline and reduce e-discovery costs, emphasizing email production limits.
Failure to properly preserve electronic evidence continues to provide at-risk litigants with the ability to steer the court from scrutiny of the merits, and drastically shift the balance of litigation leverage. The latest example of this is NVE, Inc. v. Palmeroni out of the District of New Jersey. This case involved NVE’s claims of breach of fiduciary duty against its former employee Palmeroni. At least on the specific Complaint allegations, NVE’s case against Palmeroni seems formidable — while working as a NVE salesman, the defendant allegedly entered into secret kickback arrangements with product purchasers, and formed a dummy entity with another NVE employee to divert sales of NVE’s products for their own benefit. Palmeroni was terminated in 2006 and later sued by NVE. Seems like a pretty good case, if the court and a jury could get to it.