Federal Court Rules on Expert Evidence in Alameda County Form Accessibility Case

On February 29, 2024, the United States District Court for the Northern District of California issued a pretrial order in a pending Americans with Disabilities Act (ADA) lawsuit brought by a blind individual against the County of Alameda. The dispute involves access to public services at the County Clerk-Recorder's Office (CRO), specifically the completion and filing of Fictitious Business Name Statement (FBNS) forms.

The order, issued by United States Magistrate Judge Thomas S. Hixson, addresses several motions in limine regarding the scope of admissible evidence, the role of scribe services, and the boundaries of expert testimony.

Scribe Services and Third-Party Experiences

The court rejected Alameda County's efforts to exclude evidence that other public bodies provide "scribe services" to assist blind individuals. The county argued such evidence was irrelevant and confusing, but the court ruled that third-party practices are relevant to evaluating whether scribe assistance constitutes an effective auxiliary aid or service or a reasonable accommodation under Title II of the ADA.

Similarly, the court denied the county's attempt to exclude testimony from other disabled individuals regarding their experiences with the CRO and other entities. Witnesses may testify about receiving scribe assistance at the CRO in December 2022 to complete paper forms, as well as a blind individual's experience attempting to use the CRO's computerized kiosk equipped with JAWS screen-reading software.

Expert Opinions on PDF Forms and Kiosks

The court addressed motions to limit testimony from accessibility experts presented by the plaintiff:

• Legal conclusions barred: The court granted the county's request to exclude expert statements declaring that the county's PDF forms are "not accessible" or that forms represent a "degradation on accessibility" under ADA standards, ruling that whether something is "accessible" under the law is an impermissible legal conclusion.
• Technical usability admitted: The court permitted experts to testify that the electronic forms and software cannot be completed independently by a screen-reader user, as well as comparative observations that using the electronic kiosk adds significant time and complexity compared to the process experienced by sighted applicants. The court noted that "independent completion" is not a formalized statutory legal standard under the ADA and that such analysis is factual and helpful to the jury.
• Rebuttal expert qualifications: The court permitted the plaintiff's rebuttal expert to offer opinions that a defense expert specialized in physical architectural access rather than auxiliary aids for effective communication, while excluding opinions that directly asserted whether specific aids were "equally effective" under the law.

Defenses and Next Steps

The court granted the plaintiff's motion to preclude the county from asserting undue burden or fundamental alteration defenses, which the county confirmed it is not pursuing. However, the county remains free to present arguments that scribe assistance does not constitute a reasonable accommodation, though the court recalled its earlier finding that clerical form-filling does not amount to the unauthorized practice of law under California precedent.

A trial date was scheduled for March 26, 2024, with each side allotted 20 hours to present its case. Exhibit tabbed binders and lists are due by March 7, 2024, with technology checks set for March 25, 2024.