Number range CHAPTERRALPH F. BOYD, JR.

Assistant Attorney General

Civil Rights Division

JOHN S. GORDON

United States Attorney

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

LEON M. WEIDMAN

Assistant United States Attorney

MICHELE MARCHAND

Assistant United States Attorney

California Bar No. 93390

Room 7516, Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-2727

Facsimile: (213) 894-7819

GRETCHEN E. JACOBS

PHYLLIS M. COHEN

KATHLEEN S. DEVINE

DOV LUTZKER

KRISTAN S. MAYER

JOHN A. RUSS IV

JOSEPH RUSSO

Trial Attorneys

U.S. Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, N.W.

1425 N.Y. Avenue Building

Disability Rights Section

Washington, D.C. 20530

Telephone: (202) 514-9584

Facsimile: (202) 616-6862

Counsel for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) Case No.: CV-99-01034-FMC (SHx)

)

) PLAINTIFF UNITED STATES' SUPPLEMENTAL

Plaintiff, ) MEMORANDUM IN SUPPORT OF ITS

) MOTION FOR PROTECTIVE ORDER FROM

v\. ) DEFENDANT'S NOTICES OF DEPOSITION OF

) FIVE DEPARTMENT OF JUSTICE EMPLOYEES

)

AMC ENTERTAINMENT, INC., ) DATE: April 15, 2002

[et]{.underline} [al]{.underline}., ) TIME: 2:00 p.m.

) JUDGE: Magistrate Judge Stephen J. Hillman

)

Defendants. ) DISCOVERY CUTOFF: May 1, 2002

) PRE-TRIAL CONFERENCE: Sept. 16, 2002

) TRIAL DATE: Oct. 22, 2002

On March 21, 2002, the United States filed a motion for a protective
order from AMC Entertainment, Inc.'s ("AMC") deposition notices issued
to five current and former Department of Justice \[hereinafter "DOJ" or
"Department"\] employees. In its portion of the joint stipulation, AMC
(i) attempts to avoid application of law of the case principles; (ii)
claims that AMC does not bear the burden to justify deposing DOJ
opposing counsel; and (iii) asserts that collateral estoppel precludes
the United States from seeking the instant protective order based on
non-final and unpublished discovery orders from another ADA action to
which AMC is not a party. In addition, in its portion of the Joint
Stipulation, AMC requests sanctions against the United States on the
ground that DOJ acted in "bad faith" when filing its motion for
protective order. AMC's arguments are meritless.[^1]

**1. [AMC's Attempt to Avoid Application of Law of the Case Principles
Are Meritless.]{.underline}** Without addressing -- or even
distinguishing -- the "law of the case" principles cited by DOJ, AMC
simply claims that law of the case does not apply here because: (i) the
United States' current counsel was allegedly "not even associated with
this action" at the time this Court's discovery rulings were issued in
2000; and (ii) these prior rulings do not expressly preclude AMC from
deposing DOJ employees. Joint Stip. at 5, 46-47. This Court's prior
discovery rulings upholding the United States' privilege claims and
otherwise limiting the scope of discovery in this action, however, are
not so easily dispatched. First, nowhere does AMC cite any caselaw for
its novel proposition that a party's counsel must be the same at all
times during the litigation for law of the case principles to apply.
Simply put, this argument is frivolous since the law of the case
doctrine depends on the identity of issues, not counsel. Joint Stip. at
14-15.[^2]

AMC's second argument against applying law of the case principles is
equally deficient. As an initial matter, it is not surprising that the
Court in 2000 did not *expressly* preclude AMC from deposing DOJ
employees since, at that time, AMC had not even issued any Rule 30(b)(1)
deposition notices of DOJ employees. Jacobs Dec. ¶ 10. Rather, the
parties' discovery battles in 2000 focused on the propriety of the DOJ's
interrogatory responses and document requests. Joint Stip. at 7-10. The
fact that the Court's rulings in 2000 arose out of discovery disputes
concerning written discovery, however, in no way undermines the
applicability of law of the case principles. The law of the case
doctrine stands for the common-sense principle that the same *issue*
presented a second time in the same case in the same court should lead
to the same result. Joint Stip. at 15. Here, AMC's five disputed
deposition notices raise the same *issues* addressed by this Court's
prior discovery rulings -- namely, the discoverability of information
held by the United States (or its employees) that is protected by the
work product, deliberative process, settlement negotiation, and law
enforcement investigative privileges, or that is otherwise protected
from disclosure. App. I, Ex. 16 (June 200 Minute Order). Law of the case
principles foreclose AMC from seeking through oral deposition
information that the Court has already ruled to be privileged, or
otherwise protected from disclosure, when the information was in written
form. [See]{.underline} [United States v. Alexander]{.underline}, 106
F.3d 874, 876-77 (9th Cir. 1997) (holding prior evidentiary ruling in
same action to be law of the case).

AMC's arguments ignore and/or mischaracterize the substance of many of
the Court's prior discovery rulings in this case. For example, AMC
claims that DOJ has issued conflicting interpretations of Standard
4.33.3, and that, as a consequence, AMC should be permitted to depose
DOJ witnesses relating to other assembly areas such as sports arenas.
[See]{.underline} Joint Stip. at 48. However, in its June 2000 Minute
Order, this Court expressly rejected both of these arguments. App. I,
Ex. 16, ¶ 6; [see also]{.underline} [United States v.
Farley]{.underline}, 11 F.3d 1385, 1391 (7th Cir. 1993).[^3] Likewise,
AMC's argument that the deliberative process privilege cannot apply to
decisions made after the promulgation of Standard 4.33.3 in 1991, Joint
Stip. at 53, ignores this Court's ruling upholding this privilege as
applied to the United States' "additional, subsequent decisions as to
the enforcement of the standard in Technical Assistance publications,
and with regard to decisions to commence investigations and lawsuits."
App. I, Ex. 16 at ¶ 8. AMC even claims that DOJ failed to make a formal
claim of privilege by the head of the Department, Joint Stip. at 54,
n.20, despite the fact that DOJ previously filed the declaration of the
Assistant Attorney General asserting the deliberative process and other
privileges during the parties' discovery disputes in 2000. App. I, Ex.
11A. Finally, AMC selectively quotes from the February 2000 Order to
justify obtaining information on communications with theater owners,
Joint Stip. at 47, yet it ignores the fact that (i) DOJ did turn over
public information on its communications with theater owners, App. I,
Ex. 19, and (ii) two subsequent orders in this case rejected AMC's
efforts to compel further responses on such communications. App. I, Ex.
16, at 15; App. II, Ex. 23, ¶ 5. In light of these considerations, the
Court should preclude AMC from re-litigating the privilege and other
discovery issues that are now law of the case.[^4]

**2. [AMC Fails to Carry Its Heavy Burden of Justifying the Depositions
of DOJ's Counsel.]{.underline}** Courts strongly disfavor allowing
depositions of opposing counsel, and the party that seeks to depose an
opposing counsel bears a heavy burden to justify the deposition.
[Shelton v. American Motors Corp.]{.underline}, 805 F.2d 1323, 1327 (8th
Cir. 1986) (requiring party seeking deposition to meet three-factor
test). Undoubtedly, AMC's "task in preparing for trial would be much
easier if \[it\] could . . . simply depose opposing counsel in an
attempt to identify the information that opposing counsel has decided is
relevant and important to his legal theories and strategy," yet AMC
cannot meet any of the [Shelton]{.underline} factors for allowing
depositions of opposing counsel, including that the material be
non-privileged.[^5] [Id]{.underline}. at 1327. While AMC claims it does
not seek work product, AMC argues it should have Section Chief John
Wodatch's testimony on his legal theory of Standard 4.33.3, by
describing him as the "author" of an *amicus* brief filed in a private
lawsuit in Texas, [see]{.underline} Joint Stip. at 5, 38,
notwithstanding the fact that a group of attorneys participated in the
drafting of that brief. Nothing could be more protected by the work
product doctrine than the mental impressions and legal theories of
attorneys preparing a brief in\
litigation.[^6] [Hickman v. Taylor]{.underline}, 329 U.S. 495, 510
(1947).

**3. [DOJ Is Not Bound by Non-Final and Unpublished Discovery Orders
Issued in the Hoyts Litigation.]{.underline}** Without citing to legal
authority, AMC baldly contends that DOJ should be collaterally estopped
from "re-litigating" issues that have allegedly "been litigated and
rejected in identical motions" in [Hoyts]{.underline}. Joint Stip. at
3-4, 45-46. AMC's estoppel claim against the United States is meritless.
First, since AMC is not a party to the [Hoyts]{.underline} action,
collateral estoppel is inapplicable; the federal government can only be
estopped when there is mutuality of the parties -- [i.e.]{.underline},
the litigants in the first and second actions are the same.
[See]{.underline}, [e.g.]{.underline}, [United States v.
Mendoza]{.underline}, 464 U.S. 154, 159-163, 104 S. Ct. 568, 572-574
(1984) (discussing prudential considerations and holding that nonmutual
offensive collateral estoppel does not apply against the federal
government); [American Fed'n of Gov't Employees v. FLRA]{.underline},
835 F.2d 1458, 1462 (D.C. Cir. 1987) ("Collateral estoppel will apply
against the government only if mutuality of parties exists."); [Hercules
Carriers, Inc. v. Claimant State of Florida]{.underline}, 768 F.2d 1558,
1578-79 (11th Cir. 1985) (applying [Mendoza]{.underline} and holding
that nonmutual defensive collateral estoppel cannot be applied to the
federal government); [Reich v. D.C. Wiring, Inc.]{.underline}, 940 F.
Supp. 105, 106-07 (D. N.J. 1996) (same).[^7]

Second, even assuming AMC could overcome this hurdle, collateral
estoppel is still improper, because it cannot exist unless "'an issue of
fact or law is actually litigated and determined by a valid and final
judgment, and the determination is essential to the judgment.'" [Arizona
v. California]{.underline}, 530 U.S. 392, 414 (2000); [see]{.underline}
[also]{.underline} 18 Charles A. Wright et al., [Federal Practice and
Procedure]{.underline} § 4416 (1988). Here, the "rulings" cited by AMC
plainly fall outside these requirements, as (i) the [Hoyts]{.underline}
court issued no written rulings to accompany the cited discovery orders,
thereby making it impossible to discern what issues were actually and
necessarily determined by the court; (ii) the matters at issue in
[Hoyts]{.underline} were not, in any event, identical to the issues
raised by DOJ's instant motion for protective order since none of the
five DOJ employees that AMC seeks to depose here were the subject of the
motions for protective order in [Hoyts]{.underline}; and (iii) non-final
and unpublished discovery orders, such as those in [Hoyts]{.underline},
lack the finality necessary for application of collateral estoppel.[^8]
[See]{.underline} App. III, Ex. 51; Jacobs Dec. ¶ 3; [Kay-R Electric
Corp. v. Stone & Webster Constr. Co., Inc.]{.underline}, 23 F.3d 55, 59
(2^nd^ Cir. 1994) (holding that unpublished ruling denying motion for
summary judgment lacked finality necessary for the application of
collateral estoppel).

**4. [AMC's "Motion" for Sanctions Against the United States is
Procedurally Improper and Meritless]{.underline}**[.]{.underline} AMC's
assertions notwithstanding, DOJ filed the instant motion for protective
order as soon as it became apparent that the parties' meet-and-confer
efforts were not going to resolve their discovery dispute over the five
deposition notices. [See]{.underline} Jacobs Dec. ¶¶ 8-9. AMC's
unsupported claim that DOJ was dilatory in filing this motion is
frivolous and should be summarily rejected.[^9]

DATED: April 3, 2002

> Respectfully submitted,
>
> RALPH F. BOYD, JR.
>
> Assistant Attorney General
>
> Civil Rights Division
>
> JOHN S. GORDON
>
> United States Attorney
>
> JOHN L. WODATCH, Chief
>
> RENEE M. WOHLENHAUS, Deputy Chief
>
> Disability Rights Section
>
> [                                                               ]{.underline}
>
> GRETCHEN E. JACOBS
>
> JOHN A. RUSS IV
>
> PHYLLIS M. COHEN
>
> KATHLEEN S. DEVINE
>
> JOSEPH RUSSO
>
> DOV LUTZKER
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> Counsel for Plaintiff
>
> United States of America

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this 3rd day of April, 2002, true and correct
copies of **Plaintiff United States' Supplemental Memorandum in Support
of Its Motion for Protective Order From Defendant's Notices of
Deposition of Five Department of Justice Employees** were served by
Federal Express, postage pre-paid, on the following parties:

Gregory F. Hurley

Kutak Rock LLP

Suite 450

620 Newport Center Drive

Newport Beach, CA 92660

facsimile: (949) 718-6708

Robert J. Harrop

Lathrop & Gage L.C.

Suite 2500

2345 Grand Boulevard

Kansas City, MO 64108-2684

facsimile: (816) 292-2001

[                                                  ]{.underline}

John Albert Russ IV

[^1]: In addition, many of the "facts" as laid out in the sworn
    declaration of AMC's counsel, Gregory Hurley, either (i) constitute
    thinly veiled legal arguments, (ii) lack any support in the evidence
    or the events of this litigation, or (iii) are simply misleading and
    not true. [See]{.underline} Declaration of Gretchen Jacobs In
    Support of Supplemental Memorandum ("Jacobs Dec.") (dated April 3,
    2002).

[^2]: In any event, AMC's contention that DOJ's current counsel were
    "not associated with" this action in 2000 is false. One of the
    current DOJ trial counsel was present at several of these discovery
    hearings. [See]{.underline} Declaration of John A. Russ IV In
    Support of Supplemental Memorandum ("Russ Dec.") ¶ 3 (dated April 3,
    2002). Another DOJ counsel, while not present at these hearings, has
    nonetheless read the certified transcripts for each of these
    discovery hearings. Jacobs Dec. ¶ 6.

[^3]: In addition, equitable estoppel rarely lies against the federal
    government. Joint Stip. at 33-35. This Court should reject AMC's
    attempt to create a [post-hoc]{.underline} reliance argument through
    depositions of DOJ counsel, as AMC should already know the past DOJ
    conduct upon which it supposedly relied. Moreover, AMC's "examples"
    of allegedly inconsistent materials are fundamentally flawed. AMC
    cites comments made by DOJ attorney Joseph Russo at a Florida
    workshop in 1997, [id]{.underline}. at 55-56, but ignores his
    statements that "I'm not taking any positions at all for the
    Department today" and that "\[n\]obody runs into the movie theater
    to see Terminator 200 and runs to the front seat so that they can
    get neck strain\[.\]" App. III, Ex. 56 at AMCP0338. AMC also cites
    to a document that it claims to be DOJ guidelines on wheelchair
    seating. [See]{.underline} Joint Stip. at 55; App. III, Ex. 55
    (AMCP0630). In fact, the document---which does not identify its
    author---is a proposal made by a private advocacy group and was
    given to the Department; it does not reflect DOJ's position.
    [See]{.underline} Jacobs Dec. ¶ 16.

    Finally, on the issue of sports arenas, AMC claims that DOJ advised
    AMC that it would use the DOJ's technical assistance materials
    relating to sports arenas in the prosecution of its case against
    AMC. Joint Stip. at 40; Hurley Dec. ¶ 19. AMC fails to cite to any
    specific letter or conversation to support this assertion; in fact,
    counsel for DOJ did not make this or any similar statements.
    [See]{.underline} Jacobs Dec. ¶ 12; Russ Dec. ¶ 4; Declaration of
    Jeanine Worden ¶¶ 2-3 (dated April 1, 2002).

[^4]: In addition, AMC's document requests attached to four of the five
    notices improperly attempt to re-litigate the Court's June 2000
    Order. Joint Stip. at 61-63. Although AMC claims it is not seeking
    duplicative documents, [id.]{.underline} at 64, the United States
    has turned over the non-privileged documents responsive to their
    prior requests. [Id.]{.underline} at 8. The only remaining documents
    are those already found to be privileged by the Court.
    [Compare]{.underline} App. II, Ex. 33 (document request in notice
    for Philip Breen seeking communications with movie theater groups)
    [with]{.underline} June 2000 Order at 1 and ¶ 5 (denying Defendants'
    motion to compel further discovery, including communications with
    movie theater groups).

[^5]: The [Johnston]{.underline} case, cited by AMC, acknowledges that
    courts must be cautious in permitting depositions of opposing
    counsel "where the subject matter of the deposition would be likely
    to be heavily intertwined with privileged or confidential
    information." [Johnston Develop. Group, Inc. v. Carpenters Local
    Union No. 1578]{.underline}, 130 F.R.D. 348, 352 (D. N.J. 1990).
    Unlike [Johnston]{.underline}, where the attorney-client privilege
    had been waived for one of the potential deponents,
    [id]{.underline}. at 354, the United States has not waived any of
    its privileges. June 2000 Order ¶ 8.

[^6]: Moreover, the decision-making process behind drafting a brief and
    deciding to file a brief are protected by the deliberative process
    privilege. [See]{.underline}, [e.g.]{.underline}, June 2000 Order at
    ¶ 2.

[^7]: [Mendoza]{.underline} identifies two types of collateral estoppel
    -- offensive and defensive. Offensive collateral estoppel occurs
    when a plaintiff seeks to preclude a defendant from relitigating an
    issue that the defendant has unsuccessfully litigated in another
    action, while defensive collateral estoppel involves the reverse --
    a defendant seeking to bar a plaintiff from relitigating issues.
    [See]{.underline} 464 U.S. at 158 & n.3. AMC here seeks to use
    nonmutual defensive collateral estoppel to bar DOJ's motion for
    protective order based on discovery orders in the
    [Hoyts]{.underline} case. In [Mendoza]{.underline}, the Supreme
    Court rejected the application of nonmutual *offensive* collateral
    estoppel against the government since such a finding "would
    substantially thwart the development of important questions of law
    by freezing the first final decision rendered on a particular legal
    issue." [Id]{.underline}. at 160. As noted above, federal appellate
    and district courts have applied [Mendoza]{.underline} to foreclose
    nonmutual *defensive* collateral estoppel for the same prudential
    and policy reasons.

[^8]: In addition, the discovery orders in [Hoyts]{.underline} were, of
    course, issued without benefit of the law of the case considerations
    that apply here in light of this Court's prior discovery rulings.
    [See]{.underline} [supra]{.underline} pp. 1-3.

[^9]: AMC's "motion" for sanctions is also procedurally improper
    because, rather than filing a separate notice of motion as required
    by Local Rule 37-2, AMC instead attempts to "piggy-back" its
    sanctions request on the United States' motion for protective order.