ADA Decision Highlights “Proportionality” Limits

A recent court decision serves as a reminder that even the Americans with Disabilities Act doesn’t give litigants a blank check in e-discovery.

In Lieberg v. Red Robin Gourmet Burgers, Inc., a group of disabled customers of Red Robin Gourmet Burgers, Inc. claim they were denied equal access to the chain’s restaurants. Suing on behalf of wheelchair users who wanted to use parking facilities Red Robin owns or controls, they sought information on any store the company claimed was ADA compliant. In essence, plaintiffs asked for either discovery or a concession of non-compliance on every store.

In granting in part and denying in part Red Robin’s motion for a protective order, the court noted the limits of the ADA. It obligates only those “who have some measure of control over the disputed public accommodation,” the judge wrote.

The plaintiffs’ problem was that Red Robin owns the property for only 32 of its more than 500 restaurants, and it rarely has a role in designing or constructing common areas adjacent to its restaurants, including the parking facilities. Although the court ordered Red Robin to produce ADA policies for all it restaurants, it limited discovery to the 11 identified in the complaint and the 32 company-owned stores.

For plaintiffs in compliance litigation involving retail chains, the case illustrates a significant challenge. It will be difficult to conduct nationwide e-discovery if retailers don’t own the real estate where their stores are located.