1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 MARCO SALSICCIA, et al., Case No. 19-cv-01546-BLF

8 Plaintiffs, ORDER DENYING MOTION FOR 9 v. ADMINISTRATIVE RELIEF FROM GENERAL ORDER 56 10 SHARKS SPORTS & ENTERTAINMENT, LLC, et al., [RE: EFC 22] 11 Defendants. 12 13 Plaintiffs, Marco Salsiccia and Scott Banks, two blind hockey fans, have sued Sharks 14 Sports & Entertainment, LLC (“Sharks”), City of San Jose, and San Jose Arena Authority 15 (collectively, “Defendants”) alleging that the Sharks + SAP mobile application (the “App”) is 16 17 inaccessible to blind users, in violation of Americans with Disabilities Act (“ADA”) and related 18 California laws. See Compl., ECF 1. Plaintiffs brought this action on their own behalf and on 19 behalf of all individuals who are blind and use the App or would use the App if it was accessible 20 via the relevant assistive technology called “screen readers.” See id. ¶ 47. 21 I. BACKGROUND 22 Plaintiff, Mr. Salsiccia, first brought his concerns regarding the inaccessibility of the App 23 to Defendant Sharks’ attention in October 2016. Motion at 1, ECF 22. On July 5, 2018, Plaintiffs 24 25 sent correspondence to Sharks and the City of San Jose regarding their allegations that the App is 26 inaccessible and proposed that all parties engage in structured negotiations. Id. In October 2018, 27 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 1 2 demonstration of the alleged accessibility issues at an in-parson meeting with Sharks. Id. On 3 March 26, 2019, five months after negotiations began, Plaintiffs filed this class action suit. 4 On May 27, 2019, Sharks and Plaintiffs stipulated to, and the Court granted, a 90-day stay 5 of litigation to continue negotiations. ECF 15. During the stay, on June 20, 2019, Sharks and 6 Plaintiffs met again in person and Plaintiffs had an opportunity to access an “alpha” version of an 7 update to the App in order to assess the App’s accessibility. Motion at 2; Weaver Declaration ¶ 8 11, ECF 22-1. While recognizing that “some improvement” was made, Plaintiffs identified some 9 10 remaining accessibility issues with the App. Motion at 2. On July 17, 2019, Plaintiffs followed 11 up with a written proposal of terms, to which Defendants did not respond. Id. The stay of 12 litigation expired on August 30, 2019 and Defendants filed their answer on September 5, 2019. 13 ECF 20. 14 II. MOTION FOR RELIEF FROM GENERAL ORDER 56 15 Before the Court is Plaintiffs’ Motion for Administrative Relief from General Order 56. 16 Motion, ECF 22. Plaintiffs argue that “[t]he parties have fulfilled both of the key purposes of 17 18 General Order 56—an early exchange of information regarding the ambit of the claimed violations 19 and an early attempt at alternative dispute resolution.” Motion at 2. According to Plaintiffs, 20 Defendants are well-aware of the inaccessibility allegations due to the two in-person meetings 21 attended by Plaintiffs and Sharks, which Plaintiffs call “the equivalent of joint inspections.” Id. at 22 3. Additionally, Plaintiffs argue that “Defendants have had every opportunity to respond to 23 [Plaintiffs’] proposed remedial steps but have not” and therefore “the goals of General Orders 56 24 have been more than satisfied.” Id. Plaintiffs ask for relief from General Order 56 so discovery 25 26 can begin immediately. Id. Plaintiffs also request a case management conference. Id. 27 Alternatively, Plaintiffs ask the Court to adopt their proposed expedited case schedule. Id. unilateral control over the design, construction, software components, and release of the App and 1 2 that numerous third parties are involved in the design, maintenance, and operation of the App.” 3 Opp’n at 2, ECF 23. Consequently, Sharks arranged meetings with the third parties, once on 4 February 1, 2019 and again on June 20, 2019. Id. In Defendants’ view, significant progress was 5 made at the June 20, 2019 meeting, which led to Plaintiffs’ proposed settlement agreement. 6 Defendants argue that it is “premature and inappropriate for the parties to abandon the schedule of 7 General Order 56” because (1) the 2018-2019 App was recently replaced on September 11, 2019 8 with the 2019-2020 App and thus, the App subject to Plaintiffs’ complaint no longer exists and (2) 9 10 mediation has not taken place. Id. at 3-4. Further, Defendants point out that “Defendants have 11 voluntarily provided otherwise discoverable information and materials to Plaintiffs as requested 12 and have opened the App up at private meetings for inspection and comment.” Id. at 4. 13 III. DISCUSSION 14 There is no dispute that this ADA case is governed by General Order No. 56, which was 15 adopted in the Northern District of California “[t]o advance efficient and effective litigation of 16 ADA cases and to address defendants’ concerns about costs.” Hernandez v. Grullense, No. 12- 17 18 CV-03257-WHO,

, at *2 (N.D. Cal. Apr. 30, 2014). “In cases subject to 19 General Order No. 56, discovery and other litigation proceedings are stayed, and the parties must 20 follow a detailed timeline for completing a joint inspection and for participating in a mediation 21 process.” Johnson v. Starbucks Corp., No. 18-CV-01134-MEJ,

, at *1 (N.D. 22 Cal. June 12, 2018). 23 Plaintiffs’ arguments in support of their request for relief from General Order 56 are not 24 25 persuasive. Based on the parties’ briefing, it seems to the Court that both sides have engaged in 26 good-faith efforts to resolve the App’s alleged inaccessibility issues set forth by Plaintiffs. Two 27 in-person meetings have taken place, in which Plaintiffs have detailed their concerns and reviewed 1 engaged the third-party developers of the App with the goal of resolving Plaintiffs’ concerns. 9 || Opp’nat 2. However, the mobile application has now undergone an update, which was released 3 recently on September 11, 2019 after the parties’ in-person meetings. Therefore, a joint inspection 4 || of the most recent version of the App is yet to take place. The Court finds that the parties would 5 benefit from another joint inspection, in which the current version of the App can be inspected and evaluated for its accessibility. Moreover, no formal mediation has taken place. Although the parties have engaged in

9 informal settlement discussions and negotiations, the Court agrees with Defendants that the parties 10 || would benefit from structured and supervised mediation process. 11 IV. CONCLUSION

12 For the foregoing reasons, Plaintiffs’ Motion for Administrative Relief from General Order = 13 56 is DENIED. The new deadline for the parties to complete inspection pursuant to General Order 56 is set on October 23, 2019.

a 16

17 IT IS SO ORDERED. 18 19 Dated: September 24, 2019 kom hh han én) 20 PETE FLW LEMANS BETH LABSON FREEMAN 21 United States District Judge 22 23 24 25 26 27 28