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Dean Davis, Gina Colantouni, and James Piet v. Jacob S. Ciborowski Family

August 31, 2012

DEAN DAVIS, GINA COLANTOUNI, AND JAMES PIET
v.
JACOB S. CIBOROWSKI FAMILY TRUST, ET AL.



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

Plaintiffs bring suit under Title III of the Americans with Disabilities Act (AADA@), alleging that the owner of a commercial property, Jacob S. Ciborowski Family Trust (ATrust@), and the operators of two retail stores that lease space there, Concord Arts and Crafts and Bagel Works, Inc. (ABagel Works@), deny access to persons with physical disabilities.*fn1 Specifically, plaintiffs allege that defendants failed to make the two stores and an unoccupied storefront wheelchair accessible during a recent construction project, as is required under 28 C.F.R. § 36.402 and 42 U.S.C. § 12183(a)(2). Defendants contest the claim and assert both a counterclaim alleging bad faith, as well as affirmative defenses.

Discussion

Plaintiffs moved to compel defendants to answer certain interrogatories, and those motions have been granted.*fn2 Defendants now move for a protective order (document nos. 49 and 50) to allow them not to answer both the interrogatories that are the subject of the motions to compel, as well as several other interrogatories propounded to the Trust. Plaintiffs object to the motions for a protective order and argue that they are duplicative of the issues presented by the motions to compel.

The court may grant a protective order based on a showing of good cause. Fed. R. Civ. P. 26(c); Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007). To show good cause, the party seeking the order must show that protection from discovery is necessary to avoid Aannoyance, embarrassment, oppression, or undue burden or expense . . . .@ Fed. R. Civ. P. 26(c). In deciding whether the moving party has shown good cause for the order, the court Ais required to balance the burden of proposed discovery against the likely benefit.@ Gill v. Gulfstream Park Racing Ass'n, Inc., 399 F.3d 391, 400 (1st Cir. 2005).

Neither the Trust nor Bagel Works provides good cause for the court to find that a protective order is necessary in this case to avoid annoyance, embarrassment, oppression, or undue burden or expense. Instead, defendants argue that the subject matter of the disputed interrogatories is irrelevant and, therefore, the information sought is not discoverable. Defendants have not met their burden to support their motions for a protective order. Defendants= motion may be construed as a plea for protection from answering allegedly irrelevant interrogatories. In the interests of judicial economy, the court elects to address defendants= protestations concerning relevance.

I. Bagel Works

Bagel Works moves for an order that would protect it from

answering Interrogatories 21 through 24. Bagel Works argues that it should not have to answer the disputed interrogatories because the interrogatories seek information that is not relevant to the case. Plaintiffs contend that the motion is unnecessary because it merely reiterates the same issues that were raised in plaintiffs= motion to compel Bagel Works to answer those interrogatories (doc. no. 34). Bagel Works asserts that the motion to compel addressed interrogatories propounded by Dean Davis, while it seeks a protective order to preclude the same interrogatories from the other two plaintiffs.

For the reasons stated in the order (doc. no. 77) granting the motion to compel, Bagel Works=s motion for a protective order is denied.

II. The Trust

The Trust moves for an order that would protect it from answering Interrogatories 10, 15, 16, 17, 19, 20, and 27 through 31. In the order granting the motion to compel, the Trust has been ordered to answer Interrogatories 28 through 31. Thus, with respect to these interrogatories, the motion for a protective order is moot. In support of the remainder of its motion, the Trust contends that the disputed interrogatories seek information that is not relevant to the case. Plaintiffs respond that they are no longer seeking answers to Interrogatories 15, 16, and 17, making that part of the motion for a protective order moot. The remaining dispute concerns Interrogatories 10, 19, 20, and 27.

Interrogatories 10, 19, and 20 seek information about the Trust=s inquiries regarding the historic significance of Phenix Hall and the building project:

10. Please state all efforts that were made by you or on your behalf to comply with the AU.S. Government=s Official Guidelines for Preserving Historic Homes.@ [sic] with respect to the 2010 summer/fall work performed at Phenix Hall. This would include, but not be limited to, the Guideline=s historic and ...


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