images-8A recent decision from the Southern District of New York, Gropper v. David Ellis Real Estate L.P. , 2014 WL 904483 (S.D. N.Y. March 4, 2014) demonstrates some of the unique features of ADA litigation, but also points to a practical solution for business owners who want to avoid a lawsuit.

The issue before the court was whether the plaintiff’s lawyer should produce his case files and submit to a deposition. The defendant’s argument for a deposition was simple. Many of the allegations concerning non-compliance in the defendant restaurant were not based on what the plaintiff had observed, but on what the lawyer had observed. For example, some toilets were not on an accessible floor, but the lawyer had determined they did not meet the ADA standards. According to the defendant this made the lawyer a witness who had to produce his files and submit to a deposition.

The court disagreed. It refused to allow the deposition and document production, but also refused to award the defendant any costs or attorneys fees. The court’s explanation for refusing the discovery was pragmatic:

there is no need whatsoever to depose Mr. Parker. The information he possesses concerning the physical layout and various features of the Blue Water Grill is readily available to the defendants, who own the premises and operate the restaurant.

Business owners should see in this a hopeful message about ADA compliance. It didn’t take an expensive expert to determine that the toilets were not accessible; the plaintiff’s lawyer could do it himself. It is certainly true that many aspects of ADA compliance are complex, and both the current 2010 Standards and the earlier ADAAG guidelines are written in language only a bureaucrat could love, but the basic rules concerning public toilets, door widths, slopes and the like can be applied by anyone with a tape measure and a level. The ADA violations most likely to give rise to litigation can be discovered by a business owner without hiring an expert, as I’ll explain in more detail in my next blog.  If a lawyer can find it, then an owner can find and fix it first.

The court’s refusal to award the plaintiff fees is also interesting because it shows the ambivalent attitude of the courts toward professional plaintiffs and their counsel. Ordinarily lawyers are not deposed and their files are not subject to subpoena. Demanding the deposition of opposing counsel is so often improper that the demand frequently leads to sanctions. In this case the unusual demand and some very unprofessional allegations against the plaintiff’s attorney lead the court to observe that there was a pattern of behavior suggesting the defendants were “vexatiously” multiplying the litigation, which would deserve sanctions. The court refused those sanctions because the plaintiff’s counsel had in fact participated in the investigation of facts, which is not an appropriate role for the trial lawyer.  There may be some hope that as court’s begin to fully appreciate the nature of the ADA litigation industry they will become more reluctant to give the benefit of the doubt to plaintiffs who are part of a litigation production team in which most of the profit goes to attorneys.

Still, while it may feel good to attack plaintiff’s counsel in these cases, the important message for business owners is that you can avoid being a litigation target by simply coming into compliance with the ADA, and that even if the owner doesn’t have the money to hire an expert to conduct a full ADA survey, the owner can himself do a lot to discovery and fix non-compliant features of the business.