This week two district courts, one in Oregon and one in Florida, confronted defendants determined to make sure that no one would be allowed to know whether they had violated the FHA or ADA. One seems to involve only a pointless squabble that increased legal expenses for no good purpose. The other shows how a battle over discovery can provide a real victory for the property owner.

Mattix v Pantry, Inc., from the Middle District of Florida, seems at first glance to be a case that should make any judge happy. Early in the litigation the defendant committed to removal of all barriers to access where the removal was readily achievable. Surely this is what filing an ADA lawsuit should achieve. However, when the work fell behind schedule, as construction work often does, the plaintiff’s attorneys became determined to inspect the facility before the work was completed. That inspection would, of course, become irrelevant when the work was done. The defendant’s attorneys became equally determined that there would be no inspection, apparently because they somehow thought that a report documenting conditions before the remediation was complete might fool the judge at trial.

The wheels came off of this litigation bus when the plaintiff’s expert conducted an inspection before the work was complete and while an emergency motion to prevent the inspection was pending. The defendant responded with a motion to exclude the expert’s report and for sanctions. The magistrate judge was not impressed by either party, finding that the inability of counsel to resolve discovery matters without judicial intervention was a matter of “growing concern.” He denied the motion for sanctions, deferred ruling on the exclusion of the expert report, and required the plaintiff to seek permission before conducting further inspections. The reported decision makes no mention of fees or costs, but it seems likely that these were considerable for both parties and gained nothing for either. The promise to remediate, which should have been a way to cut off further legal expense, instead turned into a pointless discovery battle that unnecessarily increased them.

McVick LLC v. HUD, from Oregon, was a battle over an administrative subpoena to inspect a newly built apartment complex. The plaintiff / owner of the complex sought a TRO to forbid HUD from executing an administrative subpoena for the inspection of interior units in the complex.  The grounds were procedural, and included lack of standing by the party who filed the original administrative complaint, the supposedly late filing of the complaint and, finally, HUD’s undue delay in executing the subpoena. The District Court rejected all of these positions and denied the requested TRO.

In McVick the owner’s strategic thinking is clear. In Garcia v. Brockway the 9th Circuit held that the limitations period for private civil actions based on design/build liability run from the date a certificate of occupancy is issued. By the time McVick was filed the certificate of occupancy was more than two years old and the owner could hope that private claims would be barred. The situation with respect to enforcement by the Attorney General is more complex, but claims for damages and civil penalties at least are subject to three and five year statutes of limitations respectively, so the owner could hope that if enough time passed nothing would remain but an action for injunctive relief.

Together these cases should remind property owners and other defendants that long term strategic thinking has to be the guide in ADA or FHA litigation, and that simply fighting for the sake of the fight only makes a lawsuit more expensive.