UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

§

§

UNITED STATES OF AMERICA, § CIVIL ACTION NO. 1:99-cv-705 DCN

§

Plaintiff § Hon. Donald C. Nugent

§

v\. § PLAINTIFF UNITED STATES'

§ MEMORANDUM IN SUPPORT OF

CINEMARK USA, INC., § MOTION FOR PROTECTIVE ORDER

§ FROM RULE 30(B)(6) DEPOSITION

Defendant. § NOTICE

§

§

**I. INTRODUCTION**

This stadium-style theater action arising under the Americans with
Disabilities Act ("ADA") has recently returned to this Court for remand
proceedings following the issuance of the Sixth Circuit's mandate,
[United States v. Cinemark USA, Inc.]{.underline}, 348 F.3d 369 (6th
Cir. 2003). On April 1, 2004, defendant Cinemark USA, Inc. ("Cinemark")
served a broad 18-paragraph Rule 30(b)(6) deposition notice on the
United States.

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the
United States seeks an order from this Court quashing Cinemark's Rule
30(b)(6) notice on the grounds that: (i) the topics identified in the
notice exceed the scope of the Sixth Circuit's mandate; (ii) the notice
seeks testimony from Department of Justice ("Department") officials on
highly-sensitive areas that are protected from disclosure by the
deliberative process, work product, attorney client, law
enforcement/investigative, and settlement negotiation privileges; (iii)
the notice impermissibly seeks discovery outside the administrative
record underlying the challenged regulation (28 C.F.R. pt. 36, Appendix
A, Section 4.33.3); and (iv) the notice prematurely seeks testimony
regarding the Department's trial expert(s) several months prior to the
court-ordered deadline for expert disclosures.

This Court should, therefore, quash Cinemark's Rule 30(b)(6) deposition
notice in its entirety. In the alternative, this Court should
nonetheless limit Cinemark to a deposition upon written questions that
are narrowly crafted to address relevant, non-privileged areas (if any)
encompassed by this notice. [See]{.underline} Fed. R. Civ. P. 31.

**II. FACTUAL AND PROCEDURAL BACKGROUND**

In this action, the United States alleges that Cinemark has engaged in a
pattern or practice of violating title III of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189, and its implementing
regulations, by impermissibly relegating patrons who use wheelchairs to
the "traditional" sloped-floor section of the vast majority of its
stadium-style theaters nationwide with inferior lines of sight and less
desirable seating, while other members of the moviegoing public have
access to seats in the stadium section that are more desirable and offer
superior lines of sight. [See]{.underline} Complaint ¶¶ 1, 11-14 (ECF
#123, Attachment \# 1). Specifically, the central issue in this action
concerns Cinemark's failure to provide patrons who use wheelchairs (and
their moviegoing companions) with seats that are "an integral part of
any fixed seating plan and . . . \[that provide\] lines of sight
comparable to those for members of the general public." 28 C.F.R. pt.
36, Appendix A (Department of Justice Standards for Accessible Design),
§ 4.33.3 \[hereinafter "Standard 4.33.3\"\].

In December 2000, Cinemark moved for summary judgment. [See]{.underline}
[Cinemark I]{.underline}, Docket Nos. 70-71. Based primarily on the
Fifth Circuit's then-recent decision in [Lara v. Cinemark USA,
Inc.]{.underline}, 207 F.3d 783 (5th Cir.), [cert.]{.underline}
[denied]{.underline}, 531 U.S. 944 (2000), Cinemark argued that, as a
matter of law, the wheelchair seating locations at its stadium-style
theaters complied with Standard 4.33.3 because such locations allegedly
had unobstructed views of the screen and were located amidst seating for
other members of the viewing audience. [Id]{.underline}. The United
States opposed this motion and filed its own cross-motion for partial
summary judgment. [See]{.underline} [Cinemark I]{.underline}, Docket
Nos. 74-83.

In November 2001, this Court granted Cinemark's motion for summary
judgment and dismissed this action in its entirety. [See]{.underline}
Memorandum Opinion and Order, [Cinemark I]{.underline}, Docket \# 107.
Finding the [Lara]{.underline} decision "persuasive," this Court
concluded that Cinemark's placement of wheelchair seating locations at
its stadium-style theaters violated neither Standard 4.33.3\'s
comparability nor integration mandates. [Id]{.underline}. The United
States filed a timely notice of appeal with respect to the court's
line-of-sight determination. [See]{.underline} [Cinemark I]{.underline},
Docket \# 111.

In November 2003, the Sixth Circuit issued a decision reversing this
Court's entry of summary judgment in favor of Cinemark and remanding for
further proceedings. [See]{.underline} [United States v. Cinemark USA,
Inc.]{.underline}, 348 F.3d 569 (6th Cir. 2003), [petition for cert.
filed]{.underline}, 72 U.S.L.W. 3513 (U.S. Feb. 4, 2004) (No. 03-1131)
\[hereinafter "[Cinemark II]{.underline}"\]. With respect to
line-of-sight issues, the Sixth Circuit concluded that (i) Standard
4.33.3 was primarily intended "to assure disabled patrons seats of
'comparable' quality to those provided for members of the general
public," and that (ii) Standard 4.33.3\'s comparability mandate requires
more than simply an unobstructed screen and "doubtless include\[s\]
viewing angles." [Id]{.underline}. at 576. The Sixth Circuit charged
this Court on remand with the task of "determin\[ing\] the extent to
which lines of sight must be similar for wheelchair patrons in
stadium-style theaters." [Id]{.underline}. at 579. Additionally, the
Sixth Circuit rejected each of the three alternative grounds advanced by
Cinemark for affirmance -- namely, its arguments that (i) the Department
violated the APA by promulgating a "new" interpretation of Standard
4.33.3 without the requisite notice-and-comment procedures, (ii) the
Department's certification of the Texas Accessibility Standards ("TAS")
acted as a complete estoppel against the instant enforcement action, and
that (iii) the United States' participation in the [Lara]{.underline}
litigation as *amicus curiae* also barred -- by virtue of collateral
estoppel -- the instant action. [See]{.underline} [id]{.underline}. at
580-84.

After issuance of the Sixth Circuit mandate, this Court conducted a
status conference to establish a schedule for these remand proceedings.
[See]{.underline} [Cinemark I]{.underline}, Minutes of Proceedings (ECF
\# 124). The parties thereafter recommenced their discovery efforts.
Cinemark propounded both lengthy written discovery, [see]{.underline}
Defendant Cinemark's USA, Inc's First Set of Interrogatories (served
April 1, 2004); Defendant Cinemark's USA, Inc's Second Request for
Production of Documents (served April 1, 2004), as well as the
18-paragraph Rule 30(b)(6) deposition notice that forms the basis for
the instant motion for protective order. [See]{.underline} Cohen Dec.,
Ex. 1 (deposition notice). After reviewing the text of this Rule
30(b)(6) notice, the United States sent a detailed "meet and confer"
letter to Cinemark setting forth its serious privilege and other
objections to this notice. [See]{.underline} Cohen Dec., Ex. 2. The
United States also proposed several dates for a telephonic discovery
conference among the parties. [Id]{.underline}. at 7. By letter dated
April 23, 2004, Cinemark responded by, [inter]{.underline}
[alia]{.underline}, dismissing the United States' objections and
asserting that further discussions would likely be fruitless since, in
Cinemark's view, "the DOJ's extreme positions appear to leave little
room for compromise." Cohen Dec., Ex. 3.

**III. ARGUMENT**

A.  [The Sixth Circuit's Mandate Precludes Cinemark From Seeking
    Testimony In Support of Its Twice-Rejected APA-Related Defenses,
    And, In Any Event, Such Testimony Is Protected From Disclosure By
    The Deliberative Process Privilege and Other Related
    Privileges]{.underline}

    One-half of the paragraphs comprising Cinemark's Rule 30(b)(6)
    notice relate to its now twice-rejected APA defenses and its related
    argument that the Department has improperly interpreted Standard
    4.33.3. [See]{.underline}, [e.g]{.underline}., Rule 30(b)(6) Notice,
    ¶¶ 1, 3-6, 8-11. For example, this notice seeks testimony
    concerning, among other things, the development of the Department's
    interpretation of Standard 4.33.3, the methods used by the
    Department to calculate viewing angles and other components of lines
    of sight, and communications amongst Department officials relating
    to wheelchair seating locations in areas of public assembly,
    including movie theaters. [Id]{.underline}. Such discovery, however,
    greatly exceeds the scope of the Sixth Circuit's mandate since the
    Circuit has already conclusively determined -- as a matter of law --
    the proper interpretation of Standard 4.33.3 in the context of
    stadium-style movie theaters. Moreover, well-established principles
    of administrative law preclude litigants challenging administrative
    actions from seeking discovery outside the administrative record.
    Finally, the highly-sensitive testimony sought by Cinemark in these
    paragraphs is protected from disclosure by the deliberative process
    privilege and other related discovery privileges.

    As an important corollary to the law of the case doctrine, the
    so-called "mandate rule" holds that, on remand, a district court
    must proceed in accordance with the decision of a higher appellate
    court. [See]{.underline}, [e.g]{.underline}., [Allard Enterprises,
    Inc. v. Advanced Programming Resources, Inc.]{.underline}, 249 F.3d
    564, 569-70 (6th Cir. 2001); [United States v. Moored]{.underline},
    38 F.3d 1419, 1421 (6th Cir. 1994); [accord]{.underline}
    [Independent Petroleum Ass'n of Am. v. Babbitt]{.underline}, 235
    F.3d 588, 596-97 (D.C. Cir. 2001) ("Under the mandate rule, an
    'inferior court had no power or authority to deviate from the
    mandate issued by an appellate court.'") (citation omitted). As this
    Circuit has emphasized, "the trial court must implement both the
    letter and spirit of the mandate, taking into account the appellate
    court's opinion and the circumstances it embraces."
    [Moored]{.underline}, 38 F.3d at 1421.

    Here, Cinemark's Rule 30(b)(6) notice violates this mandate rule by
    seeking testimony from Department officials on matters relating to
    its now-failed APA affirmative defenses. To the limited extent
    Cinemark's APA-based affirmative defenses survived this Court's
    dismissal of its counterclaim, [see]{.underline} Memorandum Opinion
    and Order, [Cinemark I]{.underline}, Docket \# 47 (order dismissing
    Cinemark's APA-based counterclaim), the Sixth Circuit has now
    conclusively rejected these affirmative defenses in their entirety.
    [See]{.underline} discussion [supra]{.underline} p. 3. Moreover, the
    Sixth Circuit's rejection of these APA-based affirmative defenses
    was unequivocal and left no residual issues for factual development
    or adjudication during these remand proceedings. Cinemark's attempt
    to seek discovery bolstering its APA-based affirmative defenses is,
    therefore, improper and should be rejected by this Court.[^1]

    Moreover, Cinemark's attempt to seek deposition testimony concerning
    the Department's interpretation of Standard 4.33.3 also runs afoul
    of the mandate rule. In [Cinemark II]{.underline}, the Sixth Circuit
    expressly determined -- as a matter of law -- that (i) Standard
    4.33.3 ensures movie patrons who use wheelchairs lines of sight of
    similar quality as compared to those offered other members of the
    movie audience, and that (ii) this comparability analysis requires
    more points of similarity than merely an unobstructed view of the
    screen and "doubtless" includes viewing angles. [See]{.underline}
    discussion [supra]{.underline} p. 3; [see]{.underline}
    [also]{.underline} [Cinemark II]{.underline}, 348 F.3d at 575-79.
    Because the Sixth Circuit has thus already laid out the legal
    parameters concerning the proper interpretation of Standard 4.33.3,
    Cinemark cannot on remand properly seek discovery concerning the
    origin, development, or propriety of the Department's interpretation
    of Standard 4.33.3 with respect to movie theaters or any other types
    of public assembly areas.[^2] Yet, this is precisely the type of
    testimony sought by Cinemark in at least half of the topics listed
    in its deposition notice. [See]{.underline}, [e.g]{.underline}.,
    Cinemark Rule 30(b)(6) Notice, Paragraph Nos. 1, 3-6, and 8-11.
    Inquiry into these areas exceeds the scope of the Sixth Circuit's
    remand order and is simply not relevant to these remand
    proceedings.[^3] This Court should, therefore, enter a protective
    order quashing these paragraphs in their entirety.

    Yet even assuming that [Cinemark II]{.underline} could be generously
    read as theoretically permitting discovery concerning the
    Department's interpretation of Standard 4.33.3 (and Cinemark's
    related APA-based affirmative defenses), well-established
    administrative law principles nonetheless preclude Cinemark from
    seeking to augment the administrative record underlying Standard
    4.33.3 with extra-record deposition testimony from Departmental
    officials. Federal courts nationwide -- including the Sixth Circuit
    -- have consistently held that, with few exceptions, judicial review
    under the APA is limited to the administrative record.
    [See]{.underline}, [e.g]{.underline}., [Sierra Club v.
    Slater]{.underline}, 120 F.3d 623, 638 (6th Cir. 1997); [Federal
    Trade Comm'n v. Owens-Corning Fiberglass Corp.]{.underline}, 853
    F.2d 458, 461 n.5 (6th Cir. 1988); [accord]{.underline} [Friends of
    the Earth v. Hintz]{.underline}, 800 F.2d 822, 828 (9th Cir. 1986).
    As the Supreme Court has made clear, \"the focal point for judicial
    review should be the administrative record already in existence, not
    some new record made initially in the reviewing court.\" [Camp v.
    Pitts]{.underline}, 411 U.S. 138, 142, 93 S. Ct. 1241, 1244 (1973).

    In light of these precedents, fundamental administrative law
    principles thus strongly counsel against Cinemark's pursuit of
    deposition testimony in order to create a new "record" during the
    course of these remand proceedings. Indeed, in the [AMC]{.underline}
    litigation, the district court expressly precluded the
    theater-defendants from seeking discovery outside the administrative
    record to support their APA-based defenses. [See]{.underline}
    [United States v. AMC Entertainment, Inc.]{.underline}, C.A. No.
    99-01034 (C.D. Cal. June 5, 2000) ("[AMC]{.underline}"), Civil
    Minutes Re: Defendants' Motion to Compel ¶ 6 (copy attached as
    exhibit 5 to the Cohen Declaration).

    In any event, deposition testimony from Department officials on
    these topics ([i.e]{.underline}., Paragraph Nos. 1, 3-6, 8-11) would
    inevitably run afoul of the deliberative process privilege, as well
    as other related discovery privileges. The purpose of the
    deliberative process privilege "is to allow \[government\] agencies
    freely to explore possibilities, engage in internal debates, or play
    devil's advocate without fear of public scrutiny." [Assembly of the
    State of Cal. v. United States Dep't of Commerce]{.underline}, 968
    F.2d 916, 920 (9th Cir. 1992); [see]{.underline}
    [also]{.underline} [United States v. Fernandez]{.underline}, 231
    F.3d 1240, 1246 (9th Cir. 2000) ("\[T\]he deliberative process
    privilege encourages forthright and candid discussions of ideas and,
    therefore, improves the decisionmaking process."); [Schell v. United
    States Dep't of Health & Human Services]{.underline}, 843 F.2d 933,
    939 (6th Cir. 1988) ("The primary purpose served by the deliberative
    process privilege is to encourage candid communications between
    subordinates and superiors.").[^4]

    Applying these principles to Cinemark's Rule 30(b)(6) deposition
    notice -- which seeks, without limitation, testimony on such broad
    topics as "the DOJ's interpretation of Section 4.33.3\" (¶ 3) and
    "\[c\]ommunications within the DOJ on matters concerning wheelchair
    seating locations in areas of public assembly" (¶ 10) -- it is plain
    that the requested topics would necessarily sweep within their wide
    ambit highly-sensitive internal deliberations protected from
    disclosure by the deliberative process privilege.[^5] The United
    States has already produced (or will be producing in response to
    Cinemark's pending document request and/or through supplementary
    productions) not only the certified administrative record underlying
    Standard 4.33.3, but also public documents relating to the
    Department's interpretation of Standard 4.33.3 as it relates to
    movie theaters \-- including technical assistance manuals,
    publicly-available pleadings and settlement agreements from
    enforcement actions filed by the United States against other movie
    theater companies, and policy letters and speeches by Department
    officials. [See]{.underline} Cohen Dec. ¶¶ 2-3. Any attempt by
    Cinemark to go beyond these public pronouncements would
    impermissibly reveal highly-sensitive internal deliberations
    regarding the Department's interpretation of Standard 4.33.3 in such
    varied contexts as: (i) decisions whether and how to investigate
    Cinemark or other movie theater companies; (ii) decisions whether to
    file enforcement actions against Cinemark or other movie theater
    companies; and (iii) whether, and on what terms, to settle
    investigations or enforcement actions against movie theater
    companies. The deliberative process privilege simply does not permit
    Cinemark to use a Rule 30(b)(6) deposition as a back-door method for
    probing the internal deliberative processes and discussions of
    federal employees regarding the Department's interpretation of
    Standard 4.33.3. Such internal discussions represent the type of
    "advisory opinions, recommendations and deliberations comprising
    part of a process by which governmental decisions and policies are
    formulated." [NLRB v. Sears, Roebuck & Co.]{.underline}, 421 U.S.
    132, 150, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975) (internal quotation
    omitted); [see]{.underline} [also]{.underline} [Schell]{.underline},
    843 F.2d at 939-42 (holding internal memorandum from ALJs to
    supervisors protected by deliberative process privilege since
    disclosure would "stifle open and frank communication"); [Coastal
    States Gas Corp. v. Dep't of Energy]{.underline}, 617 F.2d 854, 866
    (D.C. Cir. 1980). Furthermore, any factual information considered as
    part of these recommendations would necessarily be "so interwoven
    with the deliberative material that it is not severable."
    [Fernandez]{.underline}, 231 F.3d at 1247; [see]{.underline}
    [also]{.underline} [Mapother]{.underline}, 3 F.3d at1537-38
    (privilege covered report summarizing facts for use of the Attorney
    General in decision making); [Montrose Chemical Corp. v.
    Train]{.underline}, 491 F.2d 63, 67-68 (D.C. Cir. 1974) (written
    summaries of factual evidence provided to decisionmaker protected
    from discovery because they were prepared for the purpose of
    assisting decisionmaker in making decision).

    This Court should thus preclude Cinemark from using its Rule
    30(b)(6) deposition notice as a vehicle for making impermissible
    inquiries into matters protected from disclosure by the deliberative
    process privilege. Indeed, in ***none*** of the stadium-style
    theater cases pending nationwide -- including the [AMC]{.underline}
    (California) and [Hoyts]{.underline} (Massachusetts) actions -- has
    a federal court permitted a theater-defendant to seek discovery of
    the type of highly-sensitive deliberative information now sought by
    Cinemark in its Rule 30(b)(6) deposition notice. [See]{.underline},
    [e.g]{.underline}., Cohen Dec., Ex. 5, ¶¶ 2-3 ([AMC]{.underline}
    discovery order) & Exs. 7, 10-12 ([Hoyts]{.underline} affidavit,
    PACER docket, and discovery order).[^6]

    \* \* \*

    While ample grounds thus support the quashing of Paragraph Nos. 1,
    3-6, and 8-11 of Cinemark's Rule 30(b)(6) notice in their entirety,
    the United States would also nonetheless agree to stipulate to the
    entry of the Lelling transcript from the [Hoyts]{.underline}
    litigation in this action -- subject, of course, to the deliberative
    process and other privilege objections asserted by Department
    counsel during the course of the deposition. Stipulated entry of the
    Lelling transcript would be appropriate in this action since: (i)
    the Rule 30(b)(6) notice in response to which Mr. Lelling testified
    in the [Hoyts]{.underline} litigation bears a remarkable similarity
    to the Rule 30(b)(6) notice served by Cinemark in this action,
    including ***eight paragraphs copied verbatim (or nearly so)*** from
    the [Hoyts]{.underline} notice ([compare]{.underline},
    [e.g]{.underline}., Cohen Dec. Ex. 1 ¶¶ 1, 2, 7-11 & 17 (Cinemark
    Rule 30(b)(6) notice) [with]{.underline} Ex. 8 ¶¶ 1-6 & 11 (Hoyts
    Rule 30(b)(6) notice)); (ii) Cinemark and the theater-defendants in
    the [Hoyts]{.underline} action -- Hoyts Cinemas Corp. and National
    Amusements, Inc. -- claim a joint defense privilege through their
    common membership in the National Association of Theater Owners
    ("NATO") ([see]{.underline}, [e.g]{.underline}., Defendant's
    Sur-Reply to Plaintiff's Reply In Support of Its Motion to Compel 5,
    [Cinemark I]{.underline}, Docket \# 66); and (iii) the
    [Hoyts]{.underline} court ultimately upheld the United States'
    privilege claims and rejected the theater-defendants' motion to
    compel further testimony ([see]{.underline} [supra]{.underline} p.
    10 n. 6).

    In the alternative, should this Court permit Cinemark to proceed
    with its discovery request, the United States seeks an order
    limiting Cinemark to a deposition upon written questions with
    respect to relevant, non-privileged areas (if any) encompassed by
    Paragraph Nos. 1, 3-6, 8-11 of Cinemark's Rule 30(b)(6) notice.
    [See]{.underline} Fed. R. Civ. P. 31; [see]{.underline}
    [also]{.underline}, [e.g.]{.underline}, [Boutte v. Blood Systems,
    Inc.]{.underline}, 127 F.R.D. 122, 124-25 (W.D. La. 1989) (issuing
    protective order limiting disputed deposition of third-party blood
    donor to deposition upon written questions pursuant to Rule 31);
    [Moretti v. Herman\'s Sporting Goods, Inc.]{.underline}, 1988 WL
    122299 (E.D. Pa. Nov. 10, 1988) (ordering plaintiff to proceed
    pursuant to Fed. R. Civ. P. 31 in response to defendant's motion for
    protective order to quash notice of oral deposition) (exhibit 13 to
    Cohen Declaration). Absent a protective order denying Cinemark's
    quest for obviously privileged testimony, such written questions
    would have the salutary effect of permitting the parties to evaluate
    and resolve any issues relating to privilege and relevancy.

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B.  [Cinemark Is Not Entitled to Seek Discovery Concerning the
    Department's Privileged Investigation and Analysis of Cinemark's
    Stadium-Style Theaters]{.underline}

    Paragraphs 2, 7, 17, and 18 of Cinemark's 30(b)(6) notice seeking --
    without limitation -- testimony concerning the Department's
    investigation and analysis of, and remedial plans for, Cinemark's
    stadium-style theaters, also suffer from fatal privilege flaws.
    Cinemark's attempt to depose one or more Department officials on
    these topics not only strikes at the heart of the law/enforcement
    investigative, work product, and attorney client privileges, but
    also prematurely seeks information relating to the Department's
    expert witnesses several months prior to the court-ordered deadline
    for the filing of the United States' expert report(s).

    Even assuming that Cinemark's attempt to probe the Department's
    internal investigation and analysis of Cinemark's stadium-style
    theaters falls within the scope of the Sixth Circuit's limited
    mandate (which the United States does not believe to be true),
    [see]{.underline} discussion [supra]{.underline} pp. 4-5, these
    topics still improperly seek testimony protected by the law
    enforcement/investigative privilege. The law
    enforcement/investigative privilege presumptively protects the
    information contained in files related to both civil and criminal
    law enforcement investigations. [See]{.underline},
    [e.g.]{.underline}, [Black v. Sheraton Corp.]{.underline}, 564 F.2d
    531, 542 (D.C. Cir. 1977); [Friedman v. Bache Halsey Stuart Shields,
    Inc.]{.underline}, 738 F.2d 1336, 1341 (D.C. Cir. 1984). This
    privilege protects against the release of governmental information
    --- whether through documents or deposition testimony --- that would
    harm an agency\'s enforcement or investigative efforts.
    [See]{.underline} [In re Sealed Case]{.underline}, 856 F.2d 268,
    272, 317 (D.C. Cir. 1988) (public interest in safeguarding integrity
    of civil and criminal investigations supports application of law
    enforcement/investigative privilege to both investigatory files and
    deposition testimony that would disclose the contents or information
    in those files).

    Here, any attempt by Cinemark to "go behind" the facts in the
    Complaint and make inquiries into such sensitive matters as the
    substance or nature of the United States' pre-suit investigation,
    how or when facts listed in the Complaint were discovered, and/or
    the United States' remedial theories, would necessarily implicate
    the law enforcement/investigative privilege and cause great harm to
    the agency's enforcement and investigative efforts.
    [See]{.underline}, [e.g]{.underline}., Cohen Dec., Ex. 11,
    (attaching copy of Boyd declaration from [Hoyts]{.underline}
    litigation formally asserting the law enforcement/investigative
    privilege and other related privileges). Cinemark, on the other
    hand, cannot demonstrate an overriding need for such sensitive
    investigatory information because: (i) the text of the Complaint
    itself provides Cinemark with a detailed description of the factual
    bases for the United States' allegations; and (ii) written responses
    and documents produced by the United States during discovery in this
    action have provided additional, non-privileged factual information
    with respect to the United States' Title III-based claims against
    Cinemark. Cinemark, therefore, need not raid the Department's
    confidential investigative files to adequately defend itself in this
    action. [See]{.underline} [United States v. Illinois Fair Plan
    Ass'n]{.underline}, 67 F.R.D. 659, 662 (N.D.. Ill. 1975) (granting
    United States' request for protective order when alternative means
    existed for securing information in agency's investigative files);
    [see]{.underline} [also]{.underline} Cohen Dec., Ex. 5 at ¶ 8
    ([AMC]{.underline} discovery order affirming, [inter]{.underline}
    [alia]{.underline}, United States' assertion of law enforcement
    investigative privilege in stadium-style theater action).

    Furthermore, testimony concerning the United States' investigation
    and analysis of Cinemark's stadium-style theaters would also
    necessarily implicate the work product and attorney client
    privileges.[^7] As outlined in the seminal Supreme Court case of
    [Hickman v. Taylor]{.underline}, 329 U.S. 495 (1947), the work
    product privilege provides nearly absolute protection for the
    thought processes, mental impressions, and legal strategy decisions
    of counsel (or his or her representatives) in preparation of a case.
    [Accord]{.underline} [In re Grand Jury Subpoena Dated Nov. 8,
    1979]{.underline}, 622 F.2d 933, 935 (6th Cir. 1980) (*per curiam*).
    As the Supreme Court noted in [Hickman]{.underline}: "Not even the
    most liberal of discovery theories can justify unwarranted inquiries
    into the files and the mental impressions of an attorney." 329 U.S.
    at 510.

    Because Paragraph Nos. 2, 7, 17 and 18 of Cinemark's Rule 30(b)(6)
    notice are framed so broadly, there is a significant likelihood that
    Cinemark will attempt to "go behind" the facts listed in the
    Complaint and seek the mental impressions of Department counsel
    regarding the formulation of the Complaint and/or counsel's strategy
    in litigating this action. The work product privilege does not
    permit such searching inquiries into the thought processes of
    counsel. [See]{.underline}, [e.g.]{.underline}, [Baker v. General
    Motors Corp.]{.underline}, 209 F.3d 1051, 1054-55 (8th Cir. 2000)
    (holding that attorney notes, memoranda, and witness interviews were
    opinion work product entitled to "almost absolute immunity");
    [Chaudhry v. Gallerizzo]{.underline}, 174 F.3d 394, 402-03 (4th
    Cir.) (work product privilege prohibited disclosure of unredacted
    legal bills and research memorandum that would reveal statutes
    researched and confidential sources), [cert. denied]{.underline},
    528 U.S. 891 (1999); [In re Grand Jury Subpoena]{.underline}, 622
    F.2d at 935-36 (work product privilege precluded prosecution from
    "embark\[ing\] on a generalized fishing expedition" into defense
    counsel's investigatory and litigation files).

    Lastly, in addition to the foregoing privilege issues, these
    paragraphs also prematurely seek testimony relating to the United
    States' trial experts. The current scheduling order obligates the
    United States to disclose its expert(s) and their respective
    opinions in late August 2004. [See]{.underline} Minutes of
    Proceedings, [Cinemark I]{.underline}, Docket \# 124. Thus, pursuant
    to Fed. R. Civ. P. 26(a)(2)(C), the United States is under no
    obligation at this juncture to either identify its experts or
    prematurely reveal the substance of their opinions. Indeed, under
    similar circumstances, the [AMC]{.underline} court entered a
    protective order prohibiting the theater-defendants from seeking
    production of the United States' expert-related investigative
    materials and analyses prior to the court-ordered disclosure
    deadline. [See]{.underline} Cohen Dec., Ex. 6 ([AMC]{.underline}
    order).

    For the foregoing reasons, this Court should quash Paragraph Nos. 2,
    7, 17, and 18 of Cinemark's Rule 30(b)(6) notice in their entirety,
    or, in the alternative, limit Cinemark to a deposition upon written
    questions that are crafted to avoid privileged areas.
    [See]{.underline} [supra]{.underline} pp. 10-11.

C.  [Cinemark Impermissibly Seeks Privileged and Otherwise Protected
    Information Concerning the Department's Certification Program for
    State and Local Building Codes]{.underline}

    Paragraphs 12 through 15 of Cinemark's Rule 30(b)(6) notice seek
    testimony concerning the Department's certification program for
    state and local building codes generally, as well as the specific
    circumstances underlying the Department's TAS certification.
    Cinemark's certification-related discovery, however, both exceeds
    the scope of the Sixth Circuit's remand order and implicates the
    deliberative process and other related discovery privileges. First,
    since the Sixth Circuit expressly held that the burden fell on the
    ***government*** on remand ***--*** not Cinemark -- to overcome the
    "rebuttable evidence" that Cinemark's construction of stadium-style
    theaters in conformance with TAS also evidenced ADA compliance,
    Cinemark's attempt to seek discovery concerning the Department's
    certification program necessarily violates the mandate rule.
    [See]{.underline} [Cinemark II]{.underline}, 348 F.3d at 581-83.
    Second, even assuming that Cinemark's certification-related
    discovery could be construed as falling within the scope of the
    mandate, it nonetheless runs afoul of the same APA and privilege
    issues as the other paragraphs in this notice. [See]{.underline},
    [e.g]{.underline}., discussion [supra]{.underline} pp. 6-7 (APA
    issues), 7-9 (deliberative process privilege), and 13-14 (work
    product and attorney client privileges).

    This Court should, therefore, quash Paragraph Nos. 12 through 15 of
    Cinemark's Rule 30(b)(6) notice in their entirety, or, in the
    alternative, limit Cinemark to a deposition upon written questions
    that are narrowly crafted to avoid privileged areas.
    [See]{.underline} [supra]{.underline} pp. 10-11.

    Dated: April 27, 2004

    Respectfully submitted,

    R. ALEX ACOSTA

    Assistant Attorney General

    Civil Rights Division

## JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

[/s/ Phyllis M. Cohen]{.underline}

PHYLLIS M. COHEN

KATHLEEN S. DEVINE

ANGELA N. LIANG

Disability Rights Section

950 Pennsylvania Avenue, NW

Washington, DC 20530

Disability Rights Section

Telephone: (202) 514-3882

Facsimile: (202) 307-1197/98

Email: phyllis.cohen@usdoj.gov

# Counsel for Plaintiff United States of America

[^1]: 1 ^1^ For similar reasons, this Court should also reject
    Cinemark's attempt to seek discovery relating to its collateral
    estoppel defense -- Paragraph 16 of Cinemark's Rule 30(b)(6) notice
    -- since the Sixth Circuit firmly concluded that the Department's
    participation in the [Lara]{.underline} litigation as *amicus
    curiae* did not estop the government from pursuing this enforcement
    action. [See]{.underline} discussion [supra]{.underline} p. 3.

[^2]: 2 ^2^ Cinemark's Rule 30(b)(6) deposition notice suffers from
    overbreadth to the extent it seeks testimony relating to public
    assembly areas other than movie theaters. Line-of-sight issues
    presented by movie theaters are fundamentally different from those
    presented by other types of assembly areas such as sports arenas or
    baseball stadiums. [See]{.underline} Cohen Dec., Ex. 5 at ¶ 1
    (discovery order entered in [AMC]{.underline} action,
    [inter]{.underline} [alia]{.underline}, noting divergent
    line-of-sight issues among different types of assembly areas and
    limiting theater-defendants to discovery concerning movie theaters
    only).

[^3]: 3 ^3^ To be sure, the Sixth Circuit's decision does indeed
    contemplate additional remand proceedings on line-of-sight issues to
    the extent the Circuit noted that "\[w\]e leave it to the district
    court on remand to determine the extent to which lines of sight must
    be similar for wheelchair patrons in stadium-style theaters."
    [Cinemark II]{.underline}, 348 F.3d at 579. However, this limited
    remand is a far cry from a more generalized remand order calling for
    this Court to consider anew the proper interpretation of Standard
    4.33.3. On remand, Cinemark requires no discovery relating to the
    propriety or bases for the Department's interpretation of Standard
    4.33.3 since it is the Sixth Circuit's legal interpretation of
    Standard 4.33.3 -- as applied by this Court -- that controls the
    line-of-sight calculus on remand.

[^4]: 4 ^4^ The deliberative process privilege, moreover, protects both
    testimony and written materials. [See]{.underline},
    [e.g.]{.underline}, [Lang v. Kohl's Food Stores, Inc.]{.underline},
    185 F.R.D. 542, 550-51 (W.D. Wis. 1998) (granting EEOC's motion to
    quash deposition subpoenas on the grounds that, [inter
    alia]{.underline}, the information sought was both burdensome and
    protected by the deliberative process privilege); [see]{.underline}
    [generally]{.underline} [Mapother v. Dep't of Justice]{.underline},
    3 F.3d 1533, 1537 (D.C. Cir. 1993) ("The \[deliberative process\]
    privilege serves to protect the deliberative process itself, not
    merely documents containing deliberative material.").

[^5]: 5 ^5^ The expansive nature of Paragraph Nos. 1, 3-6, and 8-11of
    Cinemark's Rule 30(b)(6) deposition notice also implicates several
    other privileges, including the attorney client, work product, law
    enforcement/investigative, and settlement negotiation privileges. In
    the [AMC]{.underline} action, for example, the district court
    expressly upheld the United States' assertion of the settlement
    negotiation privileges in the context of adjudicating a discovery
    dispute in another pending stadium-style theater enforcement action,
    [United States v. AMC Entertainment, Inc]{.underline}, C.A. No.
    CV-99-01034 (C.D.. Cal.). [See]{.underline} [also]{.underline} Cohen
    Dec., Exs. 4 - 5. (AMC discovery orders). [See]{.underline}
    [also]{.underline} discussion [infra]{.underline} pp. 12-15
    (discussing work product, attorney client, and law
    enforcement/investigative privileges).

[^6]: 6 ^6^ In [United States v. Hoyts Cinemas Corp., et
    al.]{.underline}, C.A. No. 1:00-cv-12567 (D. Mass.), the
    theater-defendants -- like Cinemark -- served the United States with
    a broad Rule 30(b)(6) deposition notice implicating the deliberative
    process privilege and other discovery privileges. The United States
    moved for a protective order. [See]{.underline} Cohen Dec., Ex. 7,
    Docket Entry Nos. 55-56. The district court denied the motion in
    favor of a more fully developed factual basis on which to adjudicate
    the privilege claims. [Id]{.underline}., Unnumbered Docket Entry
    (dated Jan. 7, 2002) . The United States ultimately produced a
    Department official (Mr. Andrew Lelling) who was deposed for over
    8.5 hours. [See]{.underline} Cohen Dec., Ex. 9, Parts 1-3 (Lelling
    transcript). During this deposition, Mr. Lelling was permitted to
    answer questions concerning any statement the Department had made
    publicly interpreting Standard 4.33.3, but was instructed not to
    answer questions seeking privileged information, such as inquiries
    concerning internal Departmental communications relating to Standard
    4.33.3 or the Department's litigation and settlement strategies.
    [Id]{.underline}. The theater-defendants subsequently filed a motion
    to compel seeking disclosure of the privileged testimony.
    [See]{.underline} Cohen Dec., Ex. 7, Docket Entry Nos. 71 - 75. The
    United States opposed the motion and filed a formal privilege
    declaration from a high-ranking Department official.
    [See]{.underline} Cohen Dec., Exs. 10 - 11. The district court
    denied the theater-defendants' motion to compel, as well as their
    subsequent motion for reconsideration. [See]{.underline} Cohen Dec.,
    Exs. 7 & 12 (Unnumbered Docket Entries - dated April 3, 2002 & April
    19, 2002).

[^7]: 7 ^7^ With respect to the attorney client privilege, the privilege
    -- as applied here -- protects confidential communications between
    Department personnel and Department attorneys (acting in their
    capacity as attorneys) in the course of seeking legal advice.
    [See]{.underline}, [e.g.]{.underline}, [Coastal States Gas Corp. v.
    Department of Energy]{.underline}, 617 F.2d 854, 866 (D.C. Cir.
    1980) (holding that attorney client privilege applies to
    communications between government agencies and their counsel);
    [Arizona Rehabilitation Hospital v. Shalala]{.underline}, 185 F.R.D.
    263, 269 (D. Ariz. 1998) (recognizing attorney client privilege in
    the context of intra-agency communications pre-decisional to the
    promulgation or repealing of regulations).