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

JOHN A. RUSS IV

PHYLLIS COHEN

KATHLEEN S. DEVINE

DOV LUTZKER

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)

)

) MEMORANDUM OF POINTS & AUTHORITIES

Plaintiff, ) IN SUPPORT OF PLAINTIFF UNITED STATES'

) MOTION FOR PROTECTIVE ORDER FROM

) DEFENDANT AMC ENTERTAINMENT, INC.'S

v\. ) RULE 30(b)(6) DEPOSITION NOTICE, AND

) MOTION FOR SANCTIONS

)

) DATE: April 1, 2002

AMC ENTERTAINMENT, INC., ) TIME: 2:00 p.m.

[et]{.underline} [al]{.underline}., ) JUDGE: Magistrate Judge Stephen J.
Hillman

)

) Fact Discovery Cut-Off: May 1, 2002

Defendants. ) Pre-Trial Conference: Sept. 16, 2002

) Trial Date: Oct. 22, 2002

**TABLE OF CONTENTS**

TABLE OF AUTHORITIES iii

INTRODUCTION 1

FACTUAL AND PROCEDURAL BACKGROUND 1

ARGUMENT 4

**The United States Seeks a Protective Order to Quash AMC's
Inappropriate\
Rule 30(b)(6) Notice, on the Grounds that This Court Has Already Ruled
that\
the Information Sought Is Privileged or Otherwise Protected from
Disclosure**. 4

I. PARAGRAPH 1 5

> A. [This Court's Prior Discovery Rulings Are Now Law of\
> the Case and Preclude AMC From Re-Litigating These\
> Matters in the Context of the Rule 30(b)(6) Notice]{.underline} 5
>
> B. [Paragraph One of AMC's Rule 30(b)(6) Notice Seeks Testimony\
> Regarding Areas That Have Already Been Exhaustively\
> Covered By Defendants' Previous Discovery Requests]{.underline} 9

II\. PARAGRAPH 2 12

> A. [Paragraph Two Improperly Seeks Testimony Protected by the\
> Work Product Doctrine and Attorney Client Privilege]{.underline} 12
>
> B. [The Deliberative Process Privilege Also Protects Information
> Sought\
> Through Paragraph Two]{.underline} 13
>
> C. [AMC Prematurely Seeks Information Relating to Expert
> Witnesses]{.underline} 14

III\. PARAGRAPH 3 16

IV\. PARAGRAPH 4 16

V. PARAGRAPH 5 17

VI\. PARAGRAPH 6 17

> A. [Under the Law of the Case, AMC May Not Seek Testimony Relating\
> to Settlement Discussions Held Between the Department of Justice\
> and NATO]{.underline} 18
>
> B. [AMC Is Limited to the Administrative Record Under This Court's
> June 2000 Minute Order.]{.underline} 21

VII\. PARAGRAPH 7 24

VIII\. PARAGRAPH 8 25

IX\. PARAGRAPH 9 25

X. PARAGRAPH 10 26

XI\. PARAGRAPH 11 26

XII\. PARAGRAPH 12 27

XIII\. PARAGRAPH 13 27

XIV\. PARAGRAPH 14 28

XV\. PARAGRAPH 15 29

XVI\. PARAGRAPH 16 29

XVII\. PARAGRAPH 17 30

XVIII\. PARAGRAPH 18 31

XIX\. PARAGRAPH 19 31

XX\. PARAGRAPH 20 32

XXI\. PARAGRAPH 21 32

XXII\. PARAGRAPH 22 33

XXIII\. PARAGRAPH 23 34

XXIV\. PARAGRAPH 24 34

XXV\. PARAGRAPH 25 34

XXVI\. PARAGRAPH 26 35

XXVII\. PARAGRAPH 27 36

XXVIII\. PARAGRAPH 28 36

XXIX\. The Court Should Award Costs as a Sanction Against Counsel for
AMC's\
Failure to Participate In the Meet-And-Confer Process 37

CONCLUSION 38

**TABLE OF AUTHORITIES**

**[CASES]{.underline}**

[Animal Defense Council v. Hodel]{.underline}, 840 F.2d 1432 (9th Cir.
1988), [as amended]{.underline}, 867 F.2d 1244 (9th Cir. 1989) 22

[Assembly of the State of Cal. v. United States Dep't of
Commerce]{.underline}, 968 F.2d 916\
(9th Cir. 1992) 13

[Arizona Past & Future Foundation, Inc. v. Lewis]{.underline}, 722 F.2d
1423 (9th Cir. 1983) 22

[Arizona Rehabilitation Hospital v. Shalala]{.underline}, 185 F.R.D. 263
(D. Ariz. 1998) 8

[Baker v. General Motors Corp.]{.underline}, 209 F.3d 1051 (8th Cir.
2000) 9

[Black v. Sheraton Corp.]{.underline}, 564 F.2d 531 (D.C. Cir. 1977) 7

[Black Construction Corp. v. INS]{.underline}, 746 F.2d 503 (9th Cir.
1984) 22

[Boutte v. Blood Systems, Inc.]{.underline}, 127 F.R.D. 122 (W.D. La.
1989) 11

[Camp v. Pitts]{.underline}, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d
106 (1973) 22

[Chaudhry v. Gallerizzo]{.underline}, 174 F.3d 394 (4th Cir. 1999) 9

[Church of Scientology v. IRS]{.underline}, 138 F.R.D. 9 (D. Mass. 1990)
11

[Coastal Gas Corp. v. Department of Energy]{.underline}, 617 F.2d 854
(D.C. Cir. 1980) 8, 14

[Cook v. Yellow Freight System, Inc.]{.underline}, 132 F.R.D. 548 (E.D.
Cal. 1990) 19, 20

[Exxon Shipping Co. v. United States Dep't of Interior]{.underline}, 34
F.3d 774 (9th Cir. 1994) 11

[Finkel v. HUD]{.underline}, 1995 WL 151790 (E.D. N.Y. Mar. 28, 1995) 14

[Friedman v. Bache Halsey Stuart Shields, Inc.]{.underline}, 738 F.2d
1336 (D.C. Cir. 1984) 7

[Friends of the Earth v. Hintz]{.underline}, 800 F.2d 822 (9th Cir.
1986) 5, 22

[Goodyear Tire & Rubber v. McDonnell Douglas Corp.]{.underline}, 820 F.
Supp. 503 (C.D. Cal. 1992) 6, 7

[Herbert v. Lando]{.underline}, 441 U.S. 153 (1979) 10

[Hickman v. Taylor]{.underline}, 329 U.S. 495 (1946) 9

[Holmgren v. State Farm Mutual Auto. Ins. Co.]{.underline}, 976 F.2d 573
(9th Cir. 1992) 9

[In re Allen]{.underline}, 106 F.3d 582 (4th Cir. 1997) 9

[In re Grand Jury Proceedings]{.underline}, 33 F.3d 342 (4th Cir. 1994)
9

[In re Sealed Case]{.underline}, 856 F.2d 268 (D.C. Cir. 1988) 7

[In re Shell Oil Refinery]{.underline}, 132 F.R.D. 437 (E.D. La. 1990)
15

[Lang v. Kohl's Food Stores, Inc.]{.underline}, 185 F.R.D. 542 (W.D. WI
1998), [motion to vacate denied]{.underline},\
185 F.R.D. 542 (W.D. Wis. 1998) 13

[Mapother v. Department of Justice]{.underline}, 3 F.3d 1533, 1537 (D.C.
Cir. 1993) 14

[Maricopa Audubon Society v. U.S.F.S.]{.underline}, 108 F.3d 1089 (9th
Cir. 1997) 13

[Mendenhall v. National Transp. Safety Bd.]{.underline}, 213 F.3d 464
(9th Cir. 2000) 6

[Montrose Chemical Corp. v. Train]{.underline}, 491 F.2d 63 (D.C. Cir.
1974) 14

[Moretti v. Herman's Sporting Goods, Inc.]{.underline}, 1988 WL 122299
(E.D. Pa. Nov. 10, 1988) 11

[NLRB v. Sears, Roebuck & Co.]{.underline}, 421 U.S. 132, 95 S. Ct.
1504, 44 L. Ed. 2d 29 (1975) 14

[Norwood v. FAA]{.underline}, 993 F.2d 570 (6th Cir. 1993) 14

[St. Matthew Publishing, Inc. v. United States]{.underline}, 41 Fed. Cl.
142 (1998) 10

[Terrebonne Ltd. of California v. Murray]{.underline}, 1 F. Supp. 2d
1050 (E.D. Cal. 1998) 9

[United States v. Alexander]{.underline}, 106 F.3d 874 (9th Cir. 1997)
[passim]{.underline}

[United States v. Contra Costa County Water Dist.]{.underline}, 678 F.2d
90 (9th Cir. 1982) 20

[United States v. Fernandez]{.underline}, 231 F.3d 1240 (9th Cir. 2000)
9, 13, 14

[United States v. Illinois Fair Plan Ass'n]{.underline}, 67 F.R.D. 659
(N.D. Ill. 1975) 8

[United States v. Iron Mountain Mines, Inc.]{.underline}, 987 F. Supp.
1244 (E.D. Cal. 1997) 6

[United States v. Lummi Indian Tribe]{.underline}, 235 F.3d 443 (9th
Cir. 2000) 6

[United States v. Upton]{.underline}, 1995 WL 264247 (D. Conn. Jan. 26,
1995) 10

[Van Arsdale v. Clemo]{.underline}, 825 F.2d 794 (4th Cir. 1987) 10

**[FEDERAL STATUTES AND REGULATIONS]{.underline}**

Americans with Disabilities Act ("ADA")\
42 U.S.C. § 12181-12189 1

Fed. R. Civ. P. 26(a)(2)(C) [passim]{.underline}

Fed. R. Civ. P. 31 11

28 C.F.R. pt. 36, Appendix A, section 4.33.3 [passim]{.underline}

**[INTRODUCTION]{.underline}**

In January 2002, Defendant AMC Entertainment, Inc. served a Rule
30(b)(6) Notice of Deposition that sets forth 28 wide-ranging topics for
which it seeks testimony from a representative of the United States.
This Notice, however, ignores the entire discovery history of the case,
in which this Court has issued several written orders rejecting AMC's
efforts to obtain information that is privileged or otherwise protected
from disclosure. Despite these rulings, AMC attempts through this Notice
to re-litigate the privilege and other discovery areas already addressed
by at least three decisions issued in 2000 by the Magistrate Judge and
the District Court. For the reasons outlined below, including the "law
of the case" doctrine, AMC should not be permitted to take this "second
bite" from the litigation apple. The United States seeks a protective
order to quash the deposition notice in its entirety or, in the
alternative, an order limiting AMC to a deposition upon written
questions with respect to non-privileged, non-duplicative areas (if any)
encompassed by this Notice. In addition, the United States seeks
sanctions of AMC's counsel for, once again, failing to participate in
the "meet and confer" process as mandated by Local Rule 37-1.[^1]

**[FACTUAL AND PROCEDURAL BACKGROUND]{.underline}**

This complex action began in January 1999 when the United States filed a
complaint against defendants AMC Entertainment, Inc. and American
Multi-Cinema, Inc. \[hereinafter collectively referred to as "AMC"\][^2]
alleging that they had 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, in the design, construction, and
operation of movie theaters with stadium-style seating in California and
the rest of the country. [See]{.underline} Appendix to Plaintiff United
States' Motion for Protective Order From AMC Entertainment Inc.'s Rule
30(b)(6) Deposition Notice, Volumes One and Two \[hereinafter "App. I"
or "App. II"\], App. I, Ex.1 (Complaint for Declaratory, and Injunctive
Relief, and Compensatory Damages, and Civil Penalties).

Although this Complaint alleges numerous ADA violations, one of several
central issues in this action is AMC's failure to provide patrons who
use wheelchairs (and their companions) with seats that are "an integral
part of any fixed seating plan and . . . \[provide\] lines of sight
comparable to those for members of the general public." 28 C.F.R. pt.
36, Appendix A (Standards for Accessible Design), section 4.33.3
\[hereinafter "Standard 4.33.3\"\]. In short, the United States alleges
that, in the vast majority of the stadium-style movie theater
auditoriums at issue in this case, AMC impermissibly relegates patrons
who use wheelchairs to seats on the traditional sloped section with
inferior lines of sight and less desirable seating, while other members
of the public have access to seats in the stadium-style section that are
more desirable and offer superior lines of sight. [See]{.underline},
[e.g.]{.underline}, App. I, Ex. 1 at ¶ 3.

In July 1999, the seeds of the instant discovery dispute concerning
AMC's Rule 30(b)(6) Notice were sown when AMC served the United States
with its initial set of written discovery requests. [See]{.underline},
[e.g.]{.underline}, App. I, Exs. 3-5. Over the ensuing months, the
United States produced both extensive interrogatory responses and
several thousands pages of documents in responses to these discovery
requests, including: public documents relating to the Department's
interpretation of Standard 4.33.3 or the comparability of lines of sight
in movie theaters; pleadings, final settlement agreements, affidavits,
exhibits, and press releases in other ADA actions in which the United
States participated as a party or as *amicus* *curiae* and that involved
the application of Standard 4.33.3 to movie theaters or other assembly
areas; public documents relating to enforcement actions filed by the
United States against other movie theater companies; copies of written
complaints filed with the Department by individuals with disabilities or
their companions claiming that AMC had violated title III of the ADA at
one or more of its stadium-style movie theaters; and prepared speeches,
policy letters, letters to members of Congress regarding communications
between the Department and movie theater representatives regarding
Standard 4.33.3. [See]{.underline} App. I, Ex. 6-8; [see
also]{.underline} Ex. 11B (chart summarizing United States' extensive
document production efforts). The United States, however, refused to
produce additional interrogatory responses and/or documents on the
grounds that such information was privileged or otherwise protected by
disclosure. [See]{.underline} [id]{.underline}.

Despite the volume of information produced, in November 1999, AMC
nonetheless moved to compel the United States to further respond to
twenty-five specified interrogatory requests and requests for production
of documents. [See]{.underline} App. I, Exs. 9-10, 12.[^3] The United
States strongly opposed this motion. [See]{.underline} App. I, Ex. 11,
13. After reviewing the parties' respective memoranda, this Court issued
an order seeking supplemental briefing on eight enumerated issues.
[See]{.underline} Minute Order (dated March 3, 2000) (App. I, Ex. 14).
The parties thereafter submitted a Supplemental Joint Stipulation
addressing the requested issues. [See]{.underline} App. I, Ex. 15.
Altogether, the parties submitted over 300 pages of briefing --
*excluding* exhibits -- on AMC's motion to compel. [Id]{.underline}. at
Exs. 9-13.

In June 5, 2000, this Court issued a detailed minute order denying AMC's
motion to compel and affirming the United States' privilege assertions.
[See]{.underline} App. I Ex. 16 ("June Minute Order"). In summary, this
June 2000 Minute Order: (i) affirmed the United States' invocation of
various discovery privileges ([e.g.]{.underline}, deliberative process,
work product, settlement negotiation, and law enforcement investigative
privileges); (ii) limited the scope of discovery to the application of
Standard 4.33.3 to commercial movie theaters; and (iii) precluded the
AMC defendants from seeking discovery outside the administrative record
for Standard 4.33.3 to support their APA-based affirmative defenses.
[Id]{.underline}. AMC did not appeal this Order to the district court.

On January 18, 2002, AMC served the United States with a Rule 30(b)(6)
Notice, outlining 28 topics on which it seeks testimony from a
representative of the United States. [See]{.underline} First Amended
Notice, Defendant AMC Entertainment, Inc Notice of Deposition Pursuant
to Fed. R. Civ. P. 30(B)(6) (served Jan. 18, 2002) (App. II, Ex. 29)
\[hereinafter, "AMC's Rule 30(b)(6) Notice"\]. The United States
subsequently sent a 13-page letter to counsel for AMC, initiating the
meet and confer process, and outlining in great detail the United
States' objections to the Notice, on grounds of privilege and the law of
the case doctrine. [See]{.underline} App. II, Exs. 30-31; Jacobs Decl.
¶¶ 3-4. As of the date of the filing of this motion, AMC's counsel had
not responded to the United States' request to meet and confer regarding
this motion. [See]{.underline} Jacobs Decl. ¶¶ 3-6; Russ Decl. ¶¶ 2-3.

**[ARGUMENT]{.underline}**

> **The United States Seeks a Protective Order to Quash AMC's
> Inappropriate Rule 30(b)(6) Notice, on the Grounds that This Court Has
> Already Ruled that the Information Sought Is Privileged or Otherwise
> Protected from Disclosure.**

As discussed more fully in the paragraphs below, the testimony sought by
AMC's Rule 30(b)(6) Notice improperly attempts to revisit issues
previously litigated in the case, and under the law of the case
doctrine, this Court should grant the United States' motion for a
protective order. [See]{.underline}, [e.g.]{.underline}, June 2000
Minute Order (upholding United States' assertion of privileges). In this
motion, the United States is asserting the following privileges:

> (i). the work product doctrine (as to ¶¶ 1, 2, 3, 4, 5, 7, 8, 11, 12,
> 13, 15, 17, 20, 21, 22, and 23 of AMC's Rule 30(b)(6) Deposition
> Notice);
>
> (ii). the attorney-client privilege (as to ¶¶ 1, 2, 3, 4, 5, 7, and
> 8);
>
> (iii). the law enforcement investigative privilege (as to ¶¶ 1, 3, 4,
> 5, 18, 19, 22, 23);
>
> (iv). the deliberative process privilege (as to ¶¶ 2, 7, 8, 9, 10, 11,
> 12, 13, 14, 15, 16, 17, 21, 24, 25, 26, 27, and 28); AND
>
> (v). the settlement negotiation privilege (as to ¶¶ 6, 8, 12, 13, 14,
> 15, 17, 18, and 19).

In addition, AMC should be precluded from seeking testimony from ¶¶ 6,
8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26,
27, and 28, on the grounds that judicial review under the APA is limited
to a review of the administrative record in all but a few cases, and AMC
has not met the threshold requirement for discovery to supplement the
administrative record. [See]{.underline} June 2000 Minute Order ¶ 6;
[see also]{.underline} [Friends of the Earth v. Hintz]{.underline}, 800
F.2d 822, 828 (9th Cir. 1986). AMC is also prematurely seeking evidence
relating to expert opinions prior to the filing of expert reports (in ¶¶
2, 3, 4, 5, 22, and 23), [see]{.underline} Fed. R. Civ. P. 26(a)(2)(C),
as well as evidence that is beyond the relevant scope of discovery (the
application of § 4.33.3 to commercial movie theaters) as outlined in
this Court's June 2000 Minute Order.

**I. PARAGRAPH 1**

> **[Text of Paragraph 1]{.underline}:** *Any and all bases for each and
> every allegation of fact contained in the First Amended Complaint for
> Declaratory and Injunctive Relief, Compensatory Damages, and Civil
> Penalties ("Complaint") filed by Plaintiff in this action.*

Largely seeking to rewrite litigation history, paragraph one of AMC's
Rule 30(b)(6) Notice reads as if the United States had not already
provided extensive responses to AMC's voluminous written discovery
propounded to date, or that the Court had never issued any prior
discovery rulings regarding privilege or other discovery matters in this
action. AMC's overbroad and irresponsible approach, however, cannot
ignore the fact this Court previously upheld the United States'
invocation of the work product and law enforcement investigative
privileges in this action. These privilege rulings are now law of the
case. In addition, because the testimony sought in this paragraph is
largely (if not completely) duplicative of the AMC defendants' prior
discovery requests, it would be unduly burdensome for the United States
to prepare a high-ranking government official and provide deposition
testimony that repeats written discovery and calls for privileged
testimony. These factors thus strongly counsel in favor of the Court
issuing a protective order quashing paragraph one in its entirety.

> **A. [This Court's Prior Discovery Rulings Are Now Law of\
> the Case and Preclude AMC From Re-Litigating These\
> Matters in the Context of the Rule 30(b)(6) Notice]{.underline}**

Designed to promote judicial efficiency and finality, the law of the
case doctrine stands for the common-sense principle that the *same*
issues presented a second time in the *same* case in the *same* court
should lead to the *same* result. [See]{.underline}, [e.g]{.underline},
[United States v. Alexander]{.underline}, 106 F.3d 874, 876 (9th Cir.
1997) ("Under the 'law of the case' doctrine, a court is generally
precluded from reconsidering an issue that has already been decided by
the same court . . . in the identical case."); [see]{.underline}
[also]{.underline} [United States v. Lummi Indian Tribe]{.underline},
235 F.3d 443, 452 (9th Cir. 2000); [Mendenhall v. National Transp.
Safety Bd.]{.underline}, 213 F.3d 464, 469 (9th Cir. 2000); [Goodyear
Tire & Rubber v. McDonnell Douglas Corp.]{.underline}, 820 F. Supp. 503,
509 (C.D. Cal. 1992). A court may only depart from the law of the case
under certain limited circumstances, such as an intervening change in
the law or a finding that the first decision was clearly erroneous.
[See]{.underline}, [e.g.]{.underline}, [Lummi Indian Tribe]{.underline},
235 F.3d at 452-53; [Alexander]{.underline}, 106 F.3d at 876.[^4]
Failure to apply law of the case principles---absent one of these
requisite circumstances---amounts to an abuse of discretion.
[Alexander]{.underline}, 106 F.3d at 876.

Applying these principles to paragraph one of the Rule 30(b)(6) Notice,
it is clear that most (if not all) of the testimony sought in this
paragraph runs afoul of these principles. The Court's June 2000 Minute
Order expressly upheld the United States' invocation of the work product
and law enforcement/investigative privileges against discovery of
sensitive pre-Complaint investigatory files and work product.
[See]{.underline} App. I, Ex. 16 at ¶¶ 4, 8. Thus, any effort by AMC to
"go behind" the facts in the Complaint into areas protected from
disclosure by these privileges --- including such matters as the
substance or nature of the United States' pre-suit investigation, how or
when facts listed in the Complaint were discovered, or how it was
determined which facts would be used in the Complaint --- are precluded
by the law of the case. [See]{.underline}, [e.g.]{.underline},
[Alexander]{.underline}, 106 F.3d at 876-77 (holding prior evidentiary
ruling in same action to be law of the case); [United States v. Iron
Mountain Mines, Inc.]{.underline}, 987 F. Supp. 1244, 1246-47 (E.D. Cal.
1997) (prior summary judgment ruling dismissing affirmative defense
prevented re-litigation of same affirmative defense later in same
action); [Goodyear Tire]{.underline}, 820 F. Supp. at 508-09 (denying
motion for summary judgment on law of the case grounds when such motion
was "virtually identical" to summary judgment motion denied earlier in
same case).

Yet, even assuming that law of the case principles do not bar AMC from
re-litigating privilege issues that have already been extensively
briefed and conclusively adjudicated by this Court, paragraph one of
AMC's Rule 30(b)(6) Notice still impermissibly seeks testimony covered
by the law enforcement/investigative, work product, attorney client
privileges. First, as discussed at length in the United States' previous
briefs, [see]{.underline} App. I, Ex. 11 at pp. 41-43, Ex. 15 at pp.
35-37, 46-49, 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).[^5] 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, the declaration of former Acting Assistant Attorney General Bill
Lann Lee --- originally submitted to the Court in conjunction with the
United States' portion of the Joint Stipulation regarding AMC's motion
to compel filed in December 1999 --- amply demonstrates that disclosure
of the sources, methods, and analyses underlying the Department's
investigation of AMC prior to filing the instant Complaint in January
1999 would cause great harm to the Department's ADA enforcement efforts
in this and other actions. [See]{.underline} App. I, Ex. 11A at ¶ 21
(Lee Declaration). AMC, on the other hand, cannot demonstrate an
overriding need for such sensitive investigatory information because:
(i) the text of the Complaint itself provides AMC with a detailed
description of the factual bases for the Complaint; and (ii)
interrogatory responses and voluminous documents subsequently produced
by the United States during discovery in this action have provided
additional, non-privileged factual information with respect to the
United States' ADA claims against AMC. For example, the United States'
response to AMC Interrogatory No. 5 served in August 1999 provides an
exhaustive 60-page preliminary list of ADA violations at the AMC
Promenade 16, Norwalk 20, Olathe Station 30, and Barry Woods 24 theater
complexes. [See]{.underline} App. I, Ex. 7 at pp. 8-67.[^6] The AMC
defendants, therefore, need not need raid the Department's confidential
investigative files to adequately defend themselves 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' requested protective order when there was alternative
means of securing information sought in United States Postal Service's
investigative files).

Furthermore, deposition inquiry into "any and all bases for . . . every
factual allegation" in the Complaint---as sought in paragraph
one---would also 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 (1946), 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. [See]{.underline}
[also]{.underline}, [e.g.]{.underline}, [United States v.
Fernandez]{.underline}, 231 F.3d 1240, 1247 (9th Cir. 2000); [In re
Grand Jury Proceedings]{.underline}, 33 F.3d 342, 348 (4th Cir. 1994);
[Holmgren v. State Farm Mutual Auto. Ins. Co.]{.underline}, 976 F.2d
573, 577 (9th Cir. 1992); [Terrebonne, Ltd. of California v.
Murray]{.underline}, 1 F. Supp. 2d 1050, 1060 (E.D. Cal. 1998). 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 one of the Notice is framed so broadly, there is a
great likelihood that AMC will attempt to "go behind" the facts listed
in the Complaint and seek the mental impressions and strategy decisions
of Department counsel regarding the formulation of the Complaint. That
is, since this paragraph contains no limitations on the "bases" for
facts in the Complaint, this paragraph could be used as a vehicle to
impermissibly elicit testimony regarding such highly privileged areas
as: the thought processes underlying counsel's decisions regarding which
facts to emphasize in the Complaint, how those facts were selected or
structured, or how the United States intends to use these (or other
facts) to prove its case. 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. 1999) (work
product privilege prohibited disclosure of unredacted legal bills and
research memorandum that would reveal statutes researched and
confidential sources); [see also]{.underline} [In re Allen]{.underline},
106 F.3d 582, 608-09 (4th Cir. 1997) (holding that counsel's selection,
ordering, and compilation of documents constituted opinion work product
immune from disclosure).

> **B. [Paragraph One of AMC's Rule 30(b)(6) Notice Seeks Testimony\
> Regarding Areas That Have Already]{.underline}** **[Been Exhaustively
> Covered\
> By Defendants' Previous Discovery Requests]{.underline}**

As discussed previously, [see]{.underline} discussion supra pp. 2-3, AMC
has already propounded voluminous and overlapping discovery requests
probing virtually every aspect of the United States' factual and legal
contentions in this case. Of particular relevance here, AMC has
extensively canvassed the United States' bases for the factual
allegations in the Complaint through both interrogatory and document
requests. [See]{.underline}, [e.g.]{.underline}, AMCI Interrogatory Nos.
2-3, 5-16 (App. I, Ex. 4); AMCE Document Request Nos. 15-33 (App. I, Ex.
5). The United States collectively produced thousands of pages of
documents and over one-hundred pages of textual interrogatory responses
on these and other related topics. [See]{.underline} discussion
[supra]{.underline} pp. 2-3. Indeed, the United States' responses to
Interrogatory Nos. 2-3 and 5-16 alone were over 65 pages, including an
exhaustive 59-page preliminary list of ADA violations at the AMC
Promenade 16, Norwalk 20, Olathe Station 30, and Barry Woods 24 theater
complexes. [See]{.underline} US AMCI Interrogatory Responses, App. I,
Ex. 7.

Given the volume of information produced to AMC to date, there can be no
question that AMC already has in its corporate possession sufficient
information with which to discern the relatively limited non-privileged
bases for the United States' factual allegations in the Complaint.
Deposition testimony on this area from a Rule 30(b)(6) deponent
designated by the United States thus would be, at best, duplicative,
and, at worst, a time-consuming and burdensome exercise meant to draw
off time and resources from trial preparation. Rule 26(c) is expressly
intended to protect parties from just this type of "annoyance . . .
oppression, or undue burden and expense" through repetitious discovery.
[See]{.underline}, [e.g.]{.underline}, [Van Arsdale v.
Clemo]{.underline}, 825 F.2d 794, 798 (4th Cir. 1987) (affirming
district court's entry of protective order preventing depositions when
appellant failed to demonstrate that additional evidence would be
developed through testimony); [St. Matthew Publishing, Inc. v. United
States]{.underline}, 41 Fed. Cl. 142, 146-47 (1998) (granting United
States' motion for protective order for deposition of IRS official,
requiring plaintiff-taxpayer to re-issue modified notice, and mandating
that re-issued notice delete requests for privileged and duplicative
information); [United States v. Upton]{.underline}, Civ. No.
3:92-CV-00524, 1995 WL 264247 (D. Conn. Jan. 26 1995) (granting United
States' motion for protective order from depositions of Internal Revenue
Service agents when defendant-taxpayer had already received responses to
30 interrogatories, all documents concerning his tax assessment, and
there was no showing that defendant would obtain additional,
non-repetitive information through oral testimony) (App. II, Ex. 33);
[see]{.underline} [generally]{.underline} [Herbert v.
Lando]{.underline}, 441 U.S. 153, 177 (1979) ("\[D\]istrict courts
should not neglect their power to restrict discovery where 'justice
requires \[protection for\] a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.'"
([quoting]{.underline} Rule 26(c)).[^8]

For the foregoing reasons, the Court should enter a protective order
pursuant to Fed. R. Civ. P. 26(c) quashing paragraph one of AMC's Rule
30(b)(6) Notice in its entirety because this paragraph: (i)
impermissibly seeks to re-litigate privilege and other discovery areas
already addressed by the Court in previous discovery rulings that are
now law of the case; (ii) improperly seeks testimony that implicates the
work product, attorney-client, and/or law enforcement/investigative
privilege; and (iii) would subject one or more government officials to a
duplicative, burdensome, and time-consuming deposition that would
provide no additional facts or information that has not already been
provided to the AMC defendants through written discovery.

In the alternative, should the Court grant discovery, the United seeks
an order limiting AMC to a deposition upon written questions with
respect to non-privileged, non-duplicative areas, if any, encompassed by
paragraph one. [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) (App. II, Ex. 34). Absent a protective order
denying the overbroad request for obviously privileged information, such
written questions would have the salutary effect of permitting the
parties to evaluate and resolve any issues relating to privilege,
relevancy, or burdensomeness.

**II. PARAGRAPH 2**

> **[Text of Paragraph 2]{.underline}:** *The precise nature and scope
> of the relief sought by Plaintiff in this action including, but not
> limited to, each and every improvement Plaintiff contends AMC would
> have to make to any of its existing facilities in order for those
> facilities to comply with the regulations set forth in 28 C.F.R. Part
> 36, Appendix A.*

**[Introduction]{.underline}**

The United States previously set forth in its interrogatory responses
the "nature and scope" of the relief sought in this action.
[See]{.underline} U.S.' AMC Interrogatory Response, Nos. 17-20 (App. I,
Ex. 7). This Court has already rejected AMC's previous efforts to compel
additional responses to Interrogatory Nos. 19 and 20. [See
generally]{.underline} June 2000 Minute Order (regarding the 25 issues
set forth in Defendants' Motion to Compel Discovery) (App. I, Ex. 16);
[see also]{.underline} Joint Stipulation Pursuant to Local Rule 7.15.2
Regarding Defendants' Motion to Compel Discovery (Issue Nos. 24-25)
(App. I, Ex. 10). Any attempt to elicit testimony beyond these responses
would run afoul of several privileges, including the work product,
attorney-client, and deliberative process privileges. [See]{.underline}
discussion below.

In addition, pursuant to Fed. R. Civ. P. 26(a)(2)(C), the United States'
designation of expert witnesses to be called at trial is not due for
months. Until such time, it would be premature for AMC to attempt to
elicit testimony that is otherwise protected from disclosure by the work
product privilege.

> **A. [Paragraph Two Improperly Seeks Testimony Protected by the Work
> Product Doctrine and Attorney Client Privilege]{.underline}**

The testimony AMC seeks through paragraph two regarding internal
discussions about the nature of the relief the Department has considered
in this or other litigation necessarily includes information protected
by the work product doctrine and the attorney client privilege, and the
Department incorporates by reference its earlier arguments.
[See]{.underline} discussion [supra]{.underline} pp. 5-9.

> **B. [The Deliberative Process Privilege Also Protects Information
> Sought Through Paragraph Two]{.underline}**

This Court has previously upheld the United States' assertion of the
deliberative process privilege as to "documents which are pre-decisional
and deliberative" and recognized that the privilege protected not only
pre-decisional information relating to the promulgation of the
regulation § 4.33.3, but also "subsequent decisions as to the
enforcement of the standard in Technical Assistance publications, and
with regard to decisions to commence investigations and lawsuits."[^9]
[See]{.underline} June 2000 Minute Order ¶ 2 (App. I, Ex. 16). The Court
found that it "need not identify the actual decisions reached with
respect to documents withheld." [See]{.underline} [id.]{.underline}
(citing [Maricopa Audubon Society v. U.S.F.S.]{.underline}, 108 F.3d
1089, 1094 (9^th^ Cir. 1997)). Pursuant to the "law of the case"
doctrine, the Court should not disturb its prior ruling that the
deliberative process privilege applies to the multiple decisions made by
the Department ([i.e.]{.underline}, to file a lawsuit, to launch an
investigation), in addition to the decision to adopt Standard 4.33.3.
[See]{.underline} [Alexander]{.underline}, 106 F.3d at 876.

Paragraph two not only seeks information protected by the work product
and attorney-client privileges, but it also implicates deliberative
process. 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
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."). The fact that AMC's Rule
30(b)(6) Notice seeks testimony rather than documents does not alter the
application of the deliberative process privilege. [See]{.underline},
[e.g.]{.underline}, [Lang v. Kohl's Food Stores, Inc.]{.underline}, 185
F.R.D. 542, 550-51 (W.D. WI 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), [motion to vacate denied]{.underline}, 185 F.R.D.
542 (W.D. Wis. 1998). [See generally]{.underline} [Mapother v.
Department 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.").

To the extent paragraph two seeks testimony about proposed remedies
internally discussed within the Department prior to filing the lawsuit,
such information represents 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 marks omitted); [see also]{.underline}
[Coastal States Gas Corp. v. Department of Energy]{.underline}, 617 F.2d
854, 866 (D.C. Cir. 1980). Likewise, any internal discussions relating
to proposed fixes to AMC's theaters that occurred in the context of
developing settlement positions are also protected by the deliberative
process privilege. [See]{.underline}, [e.g.]{.underline}, [Norwood v.
FAA]{.underline}, 993 F.2d 570, 576-77 (6th Cir. 1993); [Finkel v.
HUD]{.underline}, 1995 WL 151790 at \*3 (E.D.N.Y. Mar. 28, 1995) (App.
II, Ex. 35). 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 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).

> **C. [AMC Prematurely Seeks Information Relating to Expert
> Witnesses]{.underline}**

To the extent AMC, in its request for "\[t\]he precise nature and scope
of the relief," is seeking testimony on possible remedies recommended by
the Department's experts, AMC is improperly and prematurely seeking
evidence prior to the deadline for the filing of expert reports. Federal
Rules of Civil Procedure 26 sets forth the general rule regarding the
timing and scope of expert disclosures. Specifically, Rule 26 (a)(2)(C)
provides that

> \[t\]hese disclosures shall be made at the times and in the sequence
> directed by the court. In the absence of other directions from the
> court or stipulation by the parties, the disclosures shall be made at
> least 90 days before the trial date or the date the case is to be
> ready for trial or, if the evidence is intended solely to contradict
> or rebut evidence on the same subject matter identified by another
> party under paragraph (2)(B), within 30 days after the disclosure made
> by the other party. . . .

Fed. R. Civ. P. 26 (a)(2)(C). This rule represents the balance needed to
provide parties the time required to adequately prepare for cross
examination of the expert witness, while simultaneously preventing
parties from unduly benefitting from the other party's preparation by
simply building their case through the use of the opponent's experts.
[See]{.underline} [In re Shell Oil Refinery]{.underline}, 132 F.R.D.
437, 440 (E.D. La. 1990). Thus, the timing and sequence of disclosures
are generally ordered by the court to allow both parties the time
necessary to prepare and utilize the experts for trial.

Previously, Local Rule 16.2-6 provided that "plaintiff . . . shall
designate experts to be called by plaintiff and provide the reports
required by F.R.Civ.P. 26(a)(2)(B), not later than eight weeks prior to
the discovery cutoff date." The District Court has set May 31, 2001 as
the close of expert discovery, [see]{.underline} Order Re: Modifying the
Discovery Schedule (entered Nov. 1, 2001) (App. II, Ex. 27), and
therefore under the old Local Rules, the Department's designation of
experts was due approximately April 5, 2002---eight weeks prior to the
May 31^st^ deadline.

The new Local Rules, however, no longer contain a specific date for the
designation of expert reports, [see]{.underline} Local Rule 16-2.5, and
therefore the default 90-day rule of Rule 26 (a)(2)(C) should
apply.[^10] As the Court has designated October 22, 2002 as the trial
date, [see]{.underline} Minute Order (entered Jan. 8, 2002) (App. II,
Ex. 28), the experts reports may instead be due approximately mid-July,
2002.[^11] Under either the old local rules, or Rule 26(a)(2)(C), the
government is under no obligation now to either identify or designate
the individuals that it plans to utilize for trial, nor should AMC be
entitled to a sneak preview of such information through this deposition
notice.

For the foregoing reasons, the Court should enter a protective order
pursuant to Fed. R. Civ. P. 26(c), quashing paragraph two of AMC's Rule
30(b)(6) Notice in its entirety, as the paragraph seeks information
protected by the attorney-client privilege, the work product doctrine,
and the deliberative process privilege. In the alternative, the Court
should enter an order limiting AMC to a deposition upon written
questions with respect to non-privileged, non-duplicative areas, if any,
encompassed by paragraph two.

**III. [PARAGRAPH 3]{.underline}**

> **[Text of Paragraph 3]{.underline}:** *Any and all bases for the
> contention in the Complaint at ¶ 3 that "traditional-style seats\...
> are located very close to the screen and offer far less desirable
> lines of sight."*

The United States has already set forth in interrogatory responses all
non-privileged facts supporting its contention in paragraph 3 of the
First Amended Complaint. [See]{.underline} U.S.' AMCI Interrogatory
Responses, No. 2 (App. I, Ex. 7). The information sought in paragraph
three is protected from disclosure by the attorney-client privilege, the
work product doctrine, and the law enforcement privilege.
[See]{.underline} discussion [supra]{.underline} pp. 5-9; [see
also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of the
case doctrine). In addition, to the extent AMC is seeking information
that will be disclosed later in the United States' expert reports, the
United States adopts its previous arguments regarding Rule 26(a)(2)(C)
and the timing of expert discovery. [See]{.underline} pp. 14-16.

**IV. [PARAGRAPH 4]{.underline}**

> **[Text of Paragraph 4]{.underline}**: *Any and all bases for the
> contention in the Complaint at ¶ 11 that "traditional-style seats do
> not provide lines of sight to the screen that are comparable to those
> provided \[sic\] the stadium-style seats."*

The United States has already set forth in interrogatory responses all
non-privileged facts supporting its contention in paragraph 11 of the
First Amended Complaint. [See]{.underline} U.S.' AMCI Interrogatory
Responses, No. 3 (App. I, Ex. 7). The information sought in paragraph
four is protected from disclosure under the attorney-client privilege,
the work product doctrine, and the law enforcement privilege.
[See]{.underline} discussion [supra]{.underline} pp. 5-9; [see
also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of the
case doctrine). In addition, to the extent AMC is seeking information
that will be disclosed later in the United States' expert reports, the
United States adopts its previous arguments regarding Rule 26(a)(2)(C)
and the timing of expert discovery. [See]{.underline} pp. 14-16.

**V. [PARAGRAPH 5]{.underline}**

> **[Text of Paragraph 5]{.underline}**: *Any and all bases for the
> contention in ¶ 19 of the Complaint that "AMCE and AMC fail to comply
> with the Department of Justice's regulation implementing Title III of
> the ADA, 28 C.F.R. Part 36 (the "Regulations"), including, but not
> limited to Section 4.33.3 of the Standards for Accessibility Design,
> 28 C.F.R. Part 37, Appendix A (the "Standards")."*

The United States has already set forth in interrogatory responses all
non-privileged facts supporting its contention in paragraph 19 of the
First Amended Complaint. [See]{.underline} U.S.' AMCI Interrogatory
Responses, No. 5 (App. I, Ex. 7). This topic calls for testimony about
any discussions or considerations of legal principles, law to facts, and
legal conclusions that are protected from disclosure by the
attorney-client privilege and the work product doctrine.
[See]{.underline} discussion [supra]{.underline} pp. 5-9. This paragraph
also seeks testimony protected under the law enforcement privilege.
[See]{.underline} [id.]{.underline}; [see also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).. In
addition, to the extent AMC is seeking information that will be
disclosed later in the United States' expert reports, the United States
adopts its previous arguments regarding Rule 26(a)(2)(C) and the timing
of expert discovery. [See]{.underline} pp. 14-16.

**VI. [PARAGRAPH 6]{.underline}**

> **[Text of Paragraph 6]{.underline}**: *The circumstances surrounding
> the attendance by Plaintiff's representatives(s) at any meetings with
> representatives or members of the National Association of Theater
> Owners (NATO), from 1990 to the present including the nature of the
> statements made by Plaintiff's representative(s) at such meetings.*

**[Introduction]{.underline}**

The United States has previously set forth in interrogatory responses
all non-privileged information with respect to the Department's
attendance or participation at NATO meetings. [See]{.underline},
[e.g.]{.underline}, U.S.' AMCE Interrogatory Responses, Nos. 6-7 (App.
I, Ex. 6); U.S.' Supp. AMCE Interrogatory Responses to Nos. 6-7 (App.
II, Ex. 19). AMC's efforts to compel additional responses to
Interrogatories Nos. 6 and 7 were rejected by both Magistrate Judge
Hillman and Judge Cooper in three separate orders, [see]{.underline}
discussion below, and therefore paragraph six simply represents an
"end-run" around the law of the case. As the Court has previously held,
many of these discussions are protected under the settlement negotiation
privilege. To the extent discussions did not occur in the context of
settlement, AMC is limited to the administrative record, as provided
under Judge Hillman's June 2000 Minute Order.

> **A. [Under the Law of the Case, AMC May Not Seek Testimony Relating
> to Settlement Discussions Held Between the Department of Justice and
> NATO]{.underline}**

AMC previously moved on two occasions to compel the production of the
information sought in paragraph six, and in both cases, this Court and
the District Court rejected AMC's efforts. Specifically, AMC moved to
compel additional answers to its Interrogatories 6 and 7, which covered
any meetings held with theater companies and industries representatives
regarding the meaning of Standard 4.33.3.[^12] On February 25, 2000,
this Court held that "Defendants are not entitled to information
regarding communications between Plaintiff and movie theater
representatives which would reveal Plaintiff's negotiating positions and
statements made during settlement negotiations." Minute Order at 1
(entered Feb. 25, 2000) (App. II, Ex. 20) \[hereinafter, "February 2000
Minute Order"\]. AMC moved for reconsideration of that Order with the
District Court, which subsequently denied its motion and held that
"evidence pertaining to meetings, discussions, and negotiations between
plaintiff and other theater owners concerning enforcement of the ADA's
line-of-sight requirements is privileged and not subject to discovery."
Order Denying Defendants' Motion for Review and Reconsideration at 5
(entered Apr. 12, 2000) \[hereinafter, "April 2000 Reconsideration
Order"\] (App. II, Ex. 23). The Court went on to note that the United
States had already turned over any settlement agreements reached with
theater owners, and that the privilege covered "evidence of negotiations
where no agreement was reached." [Id.]{.underline}

Later, this Court addressed AMC's entire motion to compel, which again
included Interrogatories 6 and 7. Echoing the prior two rulings, this
Court held that

> Plaintiff is entitled to the settlement negotiation privilege
> protection. [See]{.underline} [Cook v. Yellow Freight System,
> Inc.]{.underline}, 132 F.R.D. 548 (E.D. Cal. 1990) (finding
> Fed.R.Evid. 408 applicable to discovery). Defendants are not entitled
> to information regarding communications between plaintiff and movie
> theater owner representatives which would reveal plaintiff's
> negotiating positions and statements made during settlement
> negotiations.

June 2000 Minute Order at ¶ 5 (App. I, Ex. 16)."[^13]

Despite these clear rulings, AMC seeks yet another bite at the apple, in
its attempts to gather information protected by the settlement
negotiation privilege. Under the law of the case doctrine, AMC's
improper attempts to revisit these issue should be rejected, as the
Court has already upheld the Department's assertion of the settlement
negotiation privilege to settlement meetings between the Department and
other theater owner representatives. [See]{.underline}
[Alexander]{.underline}, 106 F.3d at 876.

The United States has previously discussed the scope of the settlement
negotiation privilege in the extensive briefing surrounding AMC's motion
to compel, and the United States incorporates those arguments by
reference here.[^14] To summarize, district courts in this circuit have
recognized that evidence from settlement negotiations is protected by
privilege. [See]{.underline}, [e.g.]{.underline}, April 2000
Reconsideration Order at 5 (App. II, Ex. 23); [Cook v. Yellow Freight
System, Inc.]{.underline}, 132 F.R.D. 548, 554 (E.D. Cal. 1990). For
example, the Court in [Cook]{.underline} held that the public policy of
encouraging settlement negotiation specifically prohibits the
introduction of such negotiations. [Id.]{.underline}

In [United States v. Contra Costa County Water Dist.]{.underline}, 678
F.2d 90, 92 (9th Cir. 1982), the Ninth Circuit discussed the two basic
principles underlying the evidentiary exclusion embodied in Fed. R.
Evid. 408, that settlement negotiations are not admissible to prove
liability:

> The first is that the evidence is irrelevant as being motivated by a
> desire for peace rather than from a concession of the merits of the
> claim. Second, is in promotion of the public policy favoring the
> compromise and settlement of disputes. By preventing settlement
> negotiations from being admitted as evidence, full and open disclosure
> is encouraged, thereby furthering the policy toward settlement. Here,
> we give additional importance to the fact that appellant was not a
> party to the \[litigation giving rise to the settlement
> negotiations\].

[See]{.underline} [id.]{.underline} at 92 (citing the Advisory Committee
Notes to Fed. R. Evid. 408). Those principles also warrant the
conclusion reached by the District Court and the [Cook]{.underline}
Court that discovery relating to settlement negotiations should be
privileged.

Paragraph two of AMC's 30(b)(6) motion conflicts with at least three
prior rulings in this case---specifically, the February 2000 Minute
Order, the April 2000 Reconsideration Order, and the June 2000 Minute
Order---that have upheld the application of the settlement negotiation
privilege to discussions the Department has had with theater owners and
industry representatives. In particular, the settlement negotiation
privilege prevents AMC from deposing the Department on discussions held
between the United States and NATO involving settlement of active or
potential litigation. It would undermine the purposes of the rule---the
judicial policy of encouraging compromise and the settlement of
disputes---if AMC could obtain through deposition what it could not
obtain through its prior motion to compel: [i.e.]{.underline},
information surrounding the Department's settlement negotiations with
NATO or any other theater group.[^15]

> **B. [AMC Is Limited to the Administrative Record Under This Court's
> June 2000 Minute Order.]{.underline}**

To the extent AMC seeks information relating to Department meetings with
NATO that either are not settlement discussions, or that are not covered
by the 2000 confidentiality agreement, this Court has previously ruled
that evidence available to AMC should be limited to the administrative
record, and that ruling should govern here, as well.

AMC has previously contended that the Department violated the
Administrative Procedure Act (APA) by alleging promulgating a new "rule"
on stadium-style theaters without following the requirements of the APA.
[See]{.underline} \[Defendants'\] Answer, Affirmative Defenses and
Counterclaim, ¶ 38 ("Plaintiff's claims are barred because Plaintiff
failed to comply with the Administrative Procedure Act, 5 U.S.C. § 552,
*et seq.* ("APA") in promulgating the interpretation of the regulations
Plaintiff now asserts in this action") (App. I, Ex. 2). To the extent
AMC is seeking information in paragraph six to support---either
implicitly or explicitly---its defense based on the APA, this Court has
already held that

> judicial review under the APA is limited to a review of the
> administrative record in all but a few cases. Defendant has not met
> the threshold requirement for discovery to supplement the
> administrative record. Defendant has not shown inconsistent
> interpretations by plaintiff of § 4.33.3 with regard to commercial
> stadium style movie theaters.

[See]{.underline} June 2000 Minute Order at ¶ 6 (App. I, Ex. 16). In
addition, the District Court has twice rejected Defendants' APA-based
arguments, in dismissing both AMC and then-defendant STK's APA
counterclaims. [See]{.underline} Order Granting Plaintiff's Motion to
Dismiss STK's Cross-Complaint at 3-4 (entered June 26, 2000) (finding no
jurisdiction for APA counterclaim because Defendant

had failed to identify any action by Department that constituted final
agency action) (App. II, Ex. 25); Order Granting Plaintiff's Motion to
Dismiss Defendants' Counterclaim at 17 (entered Dec. 17, 1999) ("AMC's
\[APA\] counterclaim is dismissed on the basis that the court lacks
subject matter jurisdiction over it.") (App. II, Ex. 24).

As with most of the issues raised again by AMC's notice of deposition,
the parties have tread down this path before, and the United States has
briefed the limits on discovery available under the APA.
[See]{.underline} App. I, Ex. 11, at pp. 10-17; App. I., Ex. 15, at pp.
70-73. The Department incorporates those arguments by reference here.

To summarize, the Ninth Circuit has held that with few exceptions
judicial review for the APA is limited to the administrative record.
[See]{.underline} [Friends of the Earth v. Hintz]{.underline}, 800 F.2d
822, 828 (9th Cir. 1986); [Black Construction Corp. v. INS]{.underline},
746 F.2d 503, 505 (9th Cir. 1984); [Arizona Past & Future Foundation,
Inc. v. Lewis]{.underline}, 722 F.2d 1423, 1425-26 & 1426 n.5 (9th Cir.
1983). 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, 36
L. Ed.2d 106 (1973). [Accord]{.underline} [Animal Defense Council v.
Hodel]{.underline}, 840 F.2d 1432, 1436 (9th Cir. 1988), [as
amended]{.underline}, 867 F.2d 1244 (9th Cir. 1989); [Friends of the
Earth]{.underline}, 800 F.2d at 828. In light of both this Court's prior
rulings and these precedents, AMC is not entitled to pursue deposition
testimony to create a new "record" in contravention of this principle.

This Court's ruling in its June 2000 Minute Order limiting AMC's
APA-related discovery to the administrative record represents law of the
case, and the Court should reject any effort by AMC to go beyond the
administrative record through this deposition. To the extent AMC is
seeking testimony regarding meetings with NATO held prior to the
promulgation of Standard 4.33.3 in January 1993, AMC is clearly limited
to the documents that are part of the administrative record of Standard
4.33.3, rather than any testimony generated as a result of this
litigation. [See]{.underline} [Camp]{.underline}, 411 U.S. at 142. As
for meetings held after January 1993 that do not involve settlement
negotiations, AMC is still limited to the administrative record, as the
only possible reason AMC seeks such testimony is to bolster its failed
APA claims. If AMC is seeking this testimony to show alleged
inconsistencies in the Department's interpretation of Standard 4.33.3,
AMC is simply revisiting its failed APA argument. [See]{.underline},
[e.g.]{.underline}, App. I, Ex. 10 at p. 3 (AMC's argument that
"Plaintiff's new and highly technical 'interpretation' of Section 4.33.3
finds no support in the language of the regulation, is inconsistent with
Plaintiff's prior interpretation of and public pronouncements regarding
Section 4.33 \[*sic*\], and constitutes legislative rule-making in
violation of the Administrative Procedure Act ("APA")."). This Court has
already ruled, however, that "Defendant has not shown inconsistent
interpretations by plaintiff of § 4.33.3 with regard to commercial
stadium style movie theaters." [See]{.underline} June 2000 Minute Order
at ¶ 5 (App. I, Ex. 16). The Court should reject AMC's efforts seeking
evidence beyond the administrative record, as it represents an end-run
around this Court's prior rulings.

The foregoing discussion makes clear that AMC is not entitled to further
discovery as to the NATO meetings, as the information sought includes
settlement discussions protected by the settlement negotiation
privilege, as recognized by this Court and the District Court, and
because AMC's efforts to gather this evidence run afoul of the
limitation that discovery on APA claims is limited to the administrative
record.

Prior to the Court's ruling on these privilege issues, the United States
provided AMC with supplemental objections and responses to
Interrogatories 6 and 7, regarding its meetings with industry
representatives. [See]{.underline} U.S.' Supp. AMCE Interrogatories
Response to Nos. 6 & 7 (App. II, Ex. 19). Subsequently, both the
Magistrate and the District Court rejected AMC's efforts to compel
further discovery as to the United States' meetings with theater
industry representatives. [See]{.underline} February 2000 Minute Order
at 1; April 2000 Reconsideration Order at 5; June 2000 Minute Order at ¶
5. In light of these three rulings rejecting AMC's efforts to compel
further discovery, the Court should enter a protective order pursuant to
Fed. R. Civ. P. 26(c), quashing paragraph six of AMC's Rule 30(b)(6)
Notice in its entirety. In the alternative, if the Court departs from
its prior rulings, the Court should enter an order limiting AMC to a
deposition upon written questions with respect to non-privileged,
non-duplicative areas, if any, encompassed by paragraph six.

If the Court departs from its prior rulings, however, or declines to
require any remaining non-privileged topics for deposition questions to
be completed in writing, the United States requests that the Court admit
a 30(b)(6) deposition of a United States representative conducted in a
related case, [United States v. Hoyts]{.underline}, Civ. No.
00-12567-WGY (D. Mass.); that transcript is a sufficient response to
AMC's inquiries, without requiring a second deposition of a high-ranking
Department official on the same topics. [See]{.underline} App. II, Ex.
32 (deposition transcript of Andrew E. Lelling).[^16] In other words, as
an alternative, the United States would agree to stipulate to the
introduction of the Lelling deposition, subject, of course, to the
United States' privilege and other objections. This alternative is only
useful, however, if the Court departs from earlier\
rulings---i.e., the February 2000 Minute Order, the April 2000
Reconsideration Order, and the June 2000 Minute Order. The United States
believes the more appropriate course of action would be to quash the
Rule 30(b)(6) Notice in its entirety.

**VII: [PARAGRAPH 7]{.underline}**

> **[Text of Paragraph 7]{.underline}**: *The procedures followed by DOJ
> in developing any interpretations of any language in the Americans
> with Disabilities Act Accessibility Guidelines ("ADAAG") or the
> Justice Department Standards of Accessible Design ("JDSAD").*

This paragraph is overbroad to the extent it seeks testimony unrelated
to the "procedures" used in developing "interpretations" of language in
the Access Board Guidelines or the Standards to commercial movie
theaters. [See]{.underline} June 2000 Minute Order, ¶ 1 (limiting the
scope of discovery to commercial movie theaters). Moreover, this
paragraph impermissibly seeks testimony protected by several discovery
privileges, including the deliberative process privilege, since the
discussion of the "process" for "interpretations" would itself chill
frank discussion among Department representatives, reveal the thought
processes of Department attorneys, and/or reveal the nature of
interactions between Department attorneys and their agency clients. The
United States asserts the deliberative process privilege,
[see]{.underline} discussion [supra]{.underline} pp. 13-14, as well as
the attorney-client privilege and work product doctrine,
[see]{.underline} pp. 5-9. Finally, the testimony sought in this
paragraph runs counter to the June 2000 Minute Order's ruling that AMC
may not seek discovery of extra-record evidence in support of its
APA-based claims. [See]{.underline} discussion [supra]{.underline} pp.
21-23. [See also]{.underline} [Alexander]{.underline}, 106 F.3d at 876
(law of the case doctrine).

**VIII. [PARAGRAPH 8]{.underline}**

> **[Text of Paragraph 8]{.underline}**: *The DOJ's interpretation
> and/or application of §4.33.3 of the ADAAG or JDSAD with respect to
> movie auditoriums at any time since it became effective in 1991.*

The United States has already produced to AMC the non-privileged public
documents relating to its interpretation of Standard 4.33.3 as applied
to movie theaters ([e.g.]{.underline}, non-internal memoranda,
correspondence, pleadings, technical assistance documents, policy
letters, public statements, speech texts, settlement agreements, and
press releases). To the extent this paragraph seeks to elicit testimony
beyond the information provided in these non-privileged sources, or
other discovery responses produced by the United States to AMC in this
litigation to date, such areas are protected from disclosure by the
attorney-client privilege and work product doctrine, [see]{.underline}
discussion [supra]{.underline} pp. 5-9, as well as the deliberative
process privilege, [see]{.underline} pp. 13-14, and the settlement
negotiation privilege, [see]{.underline} pp. 18-20. Finally, the
testimony sought in this paragraph runs counter to the June 2000 Minute
Order's ruling that AMC may not seek discovery of extra-record evidence
in support of its APA-based claims. [See]{.underline} pp. 21-23. [See
also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of the
case doctrine).

**IX. [PARAGRAPH 9]{.underline}**

> **[Text of Paragraph 9]{.underline}**: *The identity of the
> individuals involved in developing the interpretations of the language
> "lines of sight comparable to those for members of the general
> public."*

The United States has already produced to AMC a copy of the certified
administrative record for Standard 4.33.3. Testimony sought in this
paragraph regarding the identities of individuals involved in the
development of the language in this section runs contrary to the June
2000 Minute Order ruling that AMC may not seek discovery of extra-record
evidence in support of its APA-based claims. [See]{.underline}
discussion [supra]{.underline} pp. 21-23. In addition, the identities of
such individuals are also protected by the deliberative process
privilege, since the revelation of such identities would have a chilling
effect on internal, pre-decisional debate among government officials.
[See]{.underline} pp. 13-14. [See also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).

**X. [PARAGRAPH 10]{.underline}**

> **[Text of Paragraph 10]{.underline}**: *The identify of the
> individuals involved in developing the requirements set forth in the
> amicus curiae brief filed by the DOJ in Lara v. Cinemark USA, Inc.,
> EP-97-CA-502-H (W.D. Tex, 1997) ("Lara Brief").*

The United States has already produced to AMC a copy of the
[Lara]{.underline} brief. Testimony sought in this paragraph regarding
the identities of individuals involved in drafting of this brief runs
contrary to the June 2000 Minute Order ruling that AMC may not seek
discovery of extra-record evidence in support of its APA-based claims.
[See]{.underline} discussion [supra]{.underline} pp. 21-23. In addition,
the identities of such individuals are protected by the deliberative
process privilege, since the revelation of such identities would have a
chilling effect on internal, pre-decisional debate among government
officials. [See]{.underline} pp. 13-14. [See also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).

**XI. [PARAGRAPH 11]{.underline}**

> **[Text of Paragraph 11]{.underline}**: *The development of the
> requirement for wheelchair space locations set forth in the Lara
> Brief.*

The United States has already produced to AMC a copy of the
[Lara]{.underline} brief. Testimony sought in this paragraph regarding
the "development" of the "requirements" in this brief with respect to
wheelchair locations runs contrary to the June 2000 Minute Order ruling
that AMC may not seek discovery of extra-record evidence in support of
its APA-based claims. [See]{.underline} discussion [supra]{.underline}
pp. 21-23. In addition, revealing the internal development of the
statements in the [Lara]{.underline} brief is protected by the
deliberative process privilege, since the revelation of that process
would have a chilling effect on internal, pre-decisional debate among
government officials. [See]{.underline} pp. 13-14. Finally, testimony
regarding the drafting or development of the [Lara]{.underline} brief is
immune from disclosure under the work product doctrine, as AMC cannot
use the discovery process as a tool to explore the mental processes or
legal analysis of the Department. [See]{.underline} pp. 5-9. [See
also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of the
case doctrine).

**XII. [PARAGRAPH 12]{.underline}**

> **[Text of Paragraph 12]{.underline}**: *The development of
> Plaintiff's current requirements for wheelchair space locations in
> movie theater auditoriums which include so-called "stadium-style"
> seating.*

The United States has already produced to AMC a copy of the certified
administrative record for Standard 4.33.3, as well as the public
documents relating to the Department of Justice's interpretation and
application of this section to stadium-style movie theaters. Testimony
sought in this paragraph regarding "development" of "requirements" with
respect to wheelchair locations in stadium-style movie theaters runs
contrary to the June 2000 Minute Order ruling that AMC may not seek
discovery of extra-record evidence in support of its APA-based claims.
[See]{.underline} discussion [supra]{.underline} pp. 21-23. In addition,
the testimony sought is protected by the deliberative process privilege,
as revelation of such discussions would have a chilling effect on
internal, pre-decisional debate among government officials.
[See]{.underline} pp. 13-14. Finally, the testimony sought also is
protected under the work product doctrine, [see]{.underline} pp. 5-9,
and the settlement negotiation privilege, [see]{.underline} pp. 18-20.
[See also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of
the case doctrine).

**XIII. [PARAGRAPH 13]{.underline}**

> **[Text of Paragraph 13]{.underline}**: *The development of the
> requirements governing the location of wheelchair spaces in movie
> theater auditoriums which do not include so-called "stadium-style"
> seating.*

As with paragraph 12, the testimony sought by paragraph 13 runs counter
to the June 2000 Minute Order ruling that AMC may not seek discovery of
extra-record evidence in support of its APA-based claims.
[See]{.underline} discussion [supra]{.underline} pp. 21-23. In addition,
the testimony sought is subject to several privileges, including the
work product doctrine, [see]{.underline} pp. 5-9; the deliberative
process privilege, [see]{.underline} pp. 13-14; and the settlement
negotiation privilege, [see]{.underline} pp. 18-20. [See
also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of the
case doctrine).

**XIV. [PARAGRAPH 14]{.underline}**

> **[Text of Paragraph 14]{.underline}**: *The identity of the
> individuals involved in developing the requirement that movie theaters
> with so-called "stadium-style" seating must provide wheelchair seating
> locations with vertical viewing angles to the screen that are at the
> median or better counting all seats in the auditorium.*

The United States has informed AMC on several occasions that the
Department does not interpret Standard 4.33.3 as imposing a specific
"vertical viewing angle requirement" on wheelchair seating locations.
[See]{.underline}, [e.g.]{.underline}, U.S.' AMCE Interrogatory
Responses, No. 3 (App. I, Ex. 6). In addition, the United States has
already produced to AMC a copy of the certified administrative record
for Standard 4.33.3, as well as the public documents relating to the
interpretation and application of this section as it relates to
wheelchair locations in stadium-style movie theaters.

The testimony sought here runs counter to the June 2000 Minute Order's
ruling that AMC may not seek discovery of extra-record evidence in
support of its APA-based claims. [See]{.underline} discussion
[supra]{.underline} pp. 21-23. In addition, testimony regarding the
identifies of persons involved in the "development" of these purported
"requirements" is protected by the deliberative process privilege since
the revelation of such discussions would have a chilling effect on
internal, pre-decisional debate among government officials.
[See]{.underline} pp. 13-14. Finally, to the extent this paragraph seeks
testimony relating to settlement negotiations between the United States
and theater owners, such testimony is protected under the settlement
negotiation privilege. [See]{.underline} pp. 18-20. [See
also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of the
case doctrine).

**XV. [PARAGRAPH 15]{.underline}**

> **[Text of Paragraph 15]{.underline}**: *The development of the
> requirement that movie theaters with so-called "stadium-style seating"
> must provide wheelchair seating locations with vertical viewing angles
> to the screen that are at the median or better counting all seats in
> the auditorium.*

The United States has informed AMC on several occasions that the
Department does not interpret Standard 4.33.3 as imposing a specific
"vertical viewing angle requirement" on wheelchair seating locations.
[See]{.underline}, [e.g.]{.underline}, U.S.' AMCE Interrogatory
Responses, Interrogatory 3 (App. I, No. 6). As with paragraph 14, the
United States has already produced to AMC a copy of the certified
administrative record for Standard 4.33.3, as well as the public
documents relating to the interpretation and application of this section
as it relates to wheelchair locations in stadium-style movie theaters.
The testimony sought here runs counter to the June 2000 Minute Order's
ruling that AMC may not seek discovery of extra-record evidence in
support of its APA-based claims. [See]{.underline} discussion
[supra]{.underline} pp. 21-23. In addition, to the extent AMC seeks to
go beyond the documents in the public record, testimony regarding the
drafting or development of purported vertical viewing angle
"requirements" is immune from disclosure under the deliberative process
and work product privileges. [See]{.underline} pp. 5-9 (work product),
pp. 13-14 (deliberative process). Finally, to the extent this paragraph
seeks testimony relating to settlement negotiations between the United
States and theater owners, such testimony is protected under the
settlement negotiation privilege. [See]{.underline} pp. 18-20. [See
also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of the
case doctrine).

**XVI. [PARAGRAPH 16]{.underline}**

> **[Text of Paragraph 16]{.underline}**: *The identity of the
> individuals involved in developing the requirement that movie theaters
> with so-called "stadium-style" seating must locate wheelchair spaces
> far enough back in the auditorium to have viewing angles at the 50^th^
> percentile (comparing viewing angles for all seats) or further back
> from the screen.*

The United States has informed AMC on several occasions that the
Department does not interpret Standard 4.33.3 as imposing a specific
"vertical viewing angle requirement" on wheelchair seating locations.
[See]{.underline}, [e.g.]{.underline}, U.S.' AMCE Interrogatory
Responses, No. 3 (App. I, Ex. 6). As with paragraph 14 and 15, the
United States has already produced to AMC a copy of the certified
administrative record for Standard 4.33.3, as well as the public
documents relating to the interpretation and application of this section
as it relates to wheelchair locations in stadium-style movie theaters.
The testimony sought here runs counter to the June 2000 Minute Order's
ruling that AMC may not seek discovery of extra-record evidence in
support of its APA-based claims. [See]{.underline} discussion
[supra]{.underline} pp. 21-23. In addition, testimony regarding the
identifies of persons involved in the "development" of these purported
"requirements" is protected by the deliberative process privilege, since
the revelation of such discussions would have a chilling effect on
internal, pre-decisional debate among government officials.
[See]{.underline} pp. 13-14 . [See also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).

**XVII. [PARAGRAPH 17]{.underline}**

> **[Text of Paragraph 17]{.underline}**: *The development of the
> requirement that movie theaters with so-called "stadium-style" seating
> must locate wheelchair spaces far enough back in the auditorium to
> have viewing angles at the 50^th^ percentile (comparing viewing angles
> for all seats) or farther back from the screen.*

The United States has informed AMC on several occasions that the
Department does not interpret Standard 4.33.3 as imposing a specific "
viewing angle requirement" on wheelchair seating locations.
[See]{.underline}, [e.g.]{.underline}, U.S.' AMCE Interrogatory
Responses, No. 3 (App. I, Ex. 6). As with paragraphs 14-16, the United
States has already produced to AMC a copy of the certified
administrative record for Standard 4.33.3, as well as the public
documents relating to the interpretation and application of this section
as it relates to wheelchair locations in stadium-style movie theaters.
The testimony sought here runs counter to the June 2000 Minute Order's
ruling that AMC may not seek discovery of extra-record evidence in
support of its APA-based claims. [See]{.underline} discussion
[supra]{.underline} pp. 21-23. In addition, to the extent AMC seeks to
go beyond the documents in the public record, testimony regarding the
drafting or development of purported vertical viewing angle
"requirements" is immune from disclosure under the deliberative process,
work product, and settlement negotiation privileges. [See]{.underline}
pp. 5-9 (work product), pp. 13-14 (deliberative process), and pp. 18-20
(settlement negotiation privilege). [See also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).

**XVIII. [PARAGRAPH 18]{.underline}**

> **[Text of Paragraph 18]{.underline}**: *Plaintiff's contacts in the
> period 1990 to the present with movie exhibitors with respect to the
> location of wheelchair spaces in movie auditoriums.*

The United States has already produced to AMC copies of all public
settlement agreements reached by and between the Department and other
movie exhibitors. In addition, the United States has already set forth
in interrogatory responses all non-privileged information with respect
to Department representatives' attendance or participation at NATO
meetings. [See]{.underline}, [e.g.]{.underline}, U.S.' Supp. AMCE
Interrogatory Responses to Nos. 6-7 (App. II, Ex. 19). AMC's efforts to
compel additional responses to AMCE Interrogatories Nos. 6 and 7 were
rejected by both Magistrate Judge Hillman and Judge Cooper.
[See]{.underline} February 2000 Minute Order (App. II, Ex. 20); April
2000 Reconsideration Order (App. II, Ex. 23); June 2000 Minute Order
(App. I, Ex. 16). Any attempt by AMC to elicit testimony outside these
previously-produced documents would implicate the settlement negotiation
and law enforcement/investigative privileges, as well as the law of the
case principle. [See]{.underline} discussion [supra]{.underline} pp.
18-20 (settlement negotiations and law of the case); pp. 5-9 (law
enforcement). Finally, testimony sought in this paragraph runs contrary
to the June 2000 Minute Order's ruling that AMC may not seek discovery
of extra-record evidence in support of its APA-based claims.
[See]{.underline} pp. 21-23. [See also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).

**XIX. [PARAGRAPH 19]{.underline}**

> **[Text of Paragraph 19]{.underline}**: *Plaintiff's contacts in the
> period 1990 to the present with movie exhibitors with respect to the
> requirements for the location of wheelchair spaces in movie
> auditoriums.*

For the reasons listed in paragraph 18, any attempt by AMC to elicit
testimony through paragraph 19 outside the previously-produced documents
would implicate the settlement negotiation and law
enforcement/investigative privileges, as well as the law of the case
principle. [See]{.underline} discussion [supra]{.underline} pp. 18-20
(settlement negotiations and law of the case); pp. 5-9 (law
enforcement); [see also]{.underline} [Alexander]{.underline}, 106 F.3d
at 876 (law of the case doctrine). Testimony sought in this paragraph
also runs contrary to the June 2000 Minute Order's ruling that AMC may
not seek discovery of extra-record evidence in support of its APA-based
claims. [See]{.underline} pp. 21-23.

**XX. [PARAGRAPH 20]{.underline}**

> **[Text of Paragraph 20]{.underline}**: *Plaintiff's interpretation of
> the Society of Motion Picture Television Engineers ("SMPTE") Guideline
> EG18-1994.*

The United States has informed AMC on several occasions that the
Department does not interpret Standard 4.33.3 as imposing specific
vertical viewing angle requirements, such as those discussed under
SMPTE, on wheelchair seating locations. [See]{.underline},
[e.g.]{.underline}, U.S.' AMCE Interrogatory Responses, Nos. 3 (App. I,
Ex. 6). In addition, the United States has already produced to AMC a
copy of the certified administrative record for Standard 4.33.3, as well
as the public documents relating to this interpretation and application
of this section as it relates to wheelchair locations in stadium-style
movie theaters, including the [Lara]{.underline} brief. Thus, to the
extent AMC seeks to elicit testimony that goes beyond these documents,
such discovery is precluded by the June 2000 Minute Order's ruling that
AMC may not seek discovery of extra-record evidence in support of its
APA-based claims. [See]{.underline} discussion [supra]{.underline} pp.
21-23. In addition, such testimony would be immune from disclosure under
the work product doctrine. [See]{.underline} pp. 5-9. [See
also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of the
case doctrine).

**XXI. [PARAGRAPH 21]{.underline}**

> **[Text of Paragraph 21]{.underline}**: *Any and all studies and
> analyses conducted by or on behalf of Plaintiff that were used or
> relied upon in developing the requirements set forth in the Lara
> Brief.*

As with paragraph 11, the United States has already produced to AMC a
copy of the [Lara]{.underline} brief. Testimony sought in this paragraph
regarding the "development" of the "requirements" in this brief with
respect to wheelchair locations runs contrary to the June 2000 Minute
Order's ruling that AMC may not seek discovery of extra-record evidence
in support of its APA-based claims. [See]{.underline} discussion
[supra]{.underline} pp. 21-23. In addition, analysis and development of
litigation material in the process of deciding to file a lawsuit is
protected by the deliberative process privilege. [See]{.underline} pp.
13-14. Finally, testimony regarding the drafting or development of this
brief is immune from disclosure under the work product privilege, as AMC
cannot use the discovery process as a tool to explore the mental
processes or legal analysis of the Department. [See]{.underline} pp.
5-9; [see also]{.underline} [Alexander]{.underline}, 106 F.3d at 876
(law of the case doctrine). To the extent AMC is seeking information
that will be disclosed later in the United States' expert reports, the
United States adopts its previous arguments regarding Rule 26(a)(2)(C)
and the timing of expert discovery. [See]{.underline} pp. 14-16.

**XXII. [PARAGRAPH 22]{.underline}**

> **[Text of Paragraph 22]{.underline}**: *Any and all studies conducted
> with respect to lines of sight from stadium-style seats and
> conventional seating (seats on a sloped floor) in movie theaters.*

The United States has already produced to AMC the non-privileged public
documents relating to its interpretation of Standard 4.33.3 as applied
to movie theaters or the comparability of lines of sight therein. In
addition, the United States has provided AMC with interrogatory
responses that discuss the Department's interpretation of Standard
4.33.3\'s comparability language. [See]{.underline}, [e.g.]{.underline},
U.S.' AMCE Interrogatory Responses, Nos. 3, 14 (App. I, Ex. 6); U.S.'
AMCI Interrogatory Responses, Nos. 2, 3 (App. I, Ex. 7). To the extent
this paragraph seeks to elicit testimony beyond the information provided
in these non-privileged sources, such areas are protected from
disclosure by the law enforcement/investigative privilege,
[see]{.underline} discussion [supra]{.underline} pp.5-9, and the work
product doctrine, [see]{.underline} [id]{.underline}. Second, the
testimony sought in this paragraph runs contrary to the June 2000 Minute
Order's ruling that AMC may not seek discovery of extra-record evidence
in support of its APA-based claims. [See]{.underline} pp. 21-23.
Finally, until the date for the designation of trial experts has passed,
it is premature for AMC to attempt to elicit testimony that is otherwise
protected from disclosure by the work product privilege.
[See]{.underline} pp. 14-16. [See also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).

**XXIII. [PARAGRAPH 23]{.underline}**

> **[Text of Paragraph 23]{.underline}**: *Any and all studies conducted
> with respect to differences between stadium and conventional seating
> in movie theaters*.

The same arguments apply to paragraph 23 as apply to paragraph 22:
namely, (i) the information sought is protected by the law
enforcement/investigative privilege and work product doctrine,
[see]{.underline} discussion [supra]{.underline} pp. 5-9; (ii) the
testimony sought runs counter to the June 2000 Minute Order's ruling
that AMC may not seek extra-record evidence in support of its APA
claims, [see]{.underline} pp. 21-23, [see also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine); and
(iii) until the date for the designation of trial experts has passed, it
is premature for AMC to attempt to elicit testimony that is otherwise
protected from disclosure by the work product privilege,
[see]{.underline} pp. 14-16.

**XXIV. [PARAGRAPH 24]{.underline}**

> **[Text of Paragraph 24]{.underline}**: *Any and all contacts from
> 1992 to the present between Plaintiff and the Architectural and
> Transportation Barriers Compliance Board ("Access Board") concerning
> the application of §4.33.3 of the ADAAG or JDSAD to movie
> auditoriums.*

The contacts between Department officials and the Access Board regarding
the application of Standard 4.33.3 to stadium-style movie theaters are
protected by the deliberative process privilege, as the disclosure of
any such contacts would have a chilling effect on internal,
pre-decisional debate among governmental officials. [See]{.underline}
discussion [supra]{.underline} pp. 13-14. In addition, the testimony
sought in this paragraph runs contrary to the June 2000 Minute Order's
ruling that AMC may not seek discovery of extra-record in support of its
APA-based claims. [See]{.underline} pp. 21-23. [See also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).

**XXV. [PARAGRAPH 25]{.underline}**

> **[Text of Paragraph 25]{.underline}**: *Any and all contacts from
> 1992 to the present between Plaintiff and the Access Board concerning
> the application of §4.33.3 of ADAAG or JDSAD to stadiums.*

Paragraph 25 is vague and ambiguous with respect to the term "stadium."
To the extent AMC is referring to sports arenas and other,
non-movie-theater stadiums, Judge Hillman has already precluded AMC from
such discovery. [See]{.underline} June 2000 Minute Order ¶ 1 (App. I,
Ex. 16). Specifically, the Court found that

> The relevant scope of discovery is limited to the application of §
> 4.33.3 to commercial movie theaters and Technical Assistance
> publications relating thereto. Fed. R. Civ. P. 26(b). Discovery of
> interpretations of standard 4.33.3 specifically relating to other
> types of public assembly areas (such as sports arenas) is denied, due
> to the fundamental differences between stadium style movie theaters
> and sports arenas. What constitute "comparable" lines of sight in a
> movie theater does not correlate to "comparability" in a sports arena
> or other type of assembly area. Defendants are permitted discovery of
> all relevant documents, not otherwise privileged, which relate to the
> agency's enforcement of § 4.33.3, as limited above.

[See]{.underline} [id.]{.underline} This ruling represents the law of
the case, [see]{.underline} [Alexander]{.underline}, 106 F.3d at 876,
and AMC is precluded from seeking the testimony outlined in paragraph
25.

To the extent AMC is seeking testimony only as to movie theaters, the
arguments discussed in paragraph 24 apply: namely, the contacts between
the Department of Justice and Access Board officials are protected by
the deliberative process privilege, [see]{.underline} discussion
[supra]{.underline} pp. 13-14, and the testimony sought in this
paragraph runs contrary to the June 2000 Minute Order's ruling that AMC
may not seek discovery of extra-record in support of its APA-based
claims. [See]{.underline} pp. 21-23.

**XXVI. [PARAGRAPH 26]{.underline}**

> **[Text of Paragraph 26]{.underline}**: *Any and all contacts from
> 1992 to the present between Plaintiff and the Access Board with
> respect to proposed revisions to the ADAAG.*

To the extent AMC is seeking information beyond proposed regulations
affecting movie theaters, such discovery is precluded by The June 2000
Minute Order's June Minute Order. [See]{.underline} June 2000 Minute
Order ¶ 1 (App. I, Ex. 16) (denying AMC's motion to compel discovery as
to sports arenas). As with paragraph 24, the contacts between Department
officials and the Access Board regarding the proposed revisions to
regulations during the period set forth in this paragraph are protected
by the deliberative process privilege, as the disclosure of any such
contacts would have a chilling effect on internal, pre-decisional debate
among governmental officials. [See]{.underline} discussion
[supra]{.underline} pp. 13-14. In addition, the testimony sought in this
paragraph runs contrary to the June 2000 Minute Order's ruling that AMC
may not seek discovery of extra-record in support of its APA-based
claims. [See]{.underline} pp. 21-23. [See also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).

**XXVII. [PARAGRAPH 27]{.underline}**

> **[Text of Paragraph 27]{.underline}**: *Any and all efforts by
> Plaintiff to obtain comment with respect to changing, interpreting or
> defining the requirements of §4.33.3 of the JDSAD or ADAAG.*

Paragraph 27 is ambiguous as to the meaning of the phrase "obtain
comment with respect to changing, interpreting, or defining the
requirements of section 4.33.3." The Department's participation in the
development of ADAAG is exclusively in a regulatory
capacity---specifically as a member of the Access Board. Furthermore,
any non-privileged responsive documents about the rulemaking process for
Standard 4.33.3 have been produced already.

To the extent this paragraph refers to contacts between Department
officials and the Access Board regarding proposed revisions to
regulations, or within the Department itself, the United States objects
for the reasons articulated in paragraph 26, in that the testimony
sought in this paragraph necessarily includes evidence protected by the
deliberative process privilege. [See]{.underline} discussion
[supra]{.underline} pp. 13-14. Furthermore, the testimony sought in this
paragraph runs contrary to the June 2000 Minute Order's ruling that AMC
may not seek discovery of extra-record in support of its APA-based
claims. [See]{.underline} pp. 21-23. [See also]{.underline}
[Alexander]{.underline}, 106 F.3d at 876 (law of the case doctrine).

**XXVIII. [PARAGRAPH 28]{.underline}**

> **[Text of Paragraph 28]{.underline}**: *The identity of the
> individuals involved in developing the requirements set forth in the
> amicus curiae brief filed by the DOJ in Oregon Paralyzed Veterans of
> America vs. Regal Cinemas, Inc. U.S. Court of Appeals Docket Number
> 01-35554, United States Court of Appeals For the Ninth Circuit.*

Similar arguments apply here as with paragraph 10: The United States has
already produced to AMC a copy of the [Oregon Paralyzed
Veterans]{.underline} brief. Testimony sought in this paragraph
regarding the identities of individuals involved in drafting of this
brief runs contrary to The June 2000 Minute Order's ruling that AMC may
not seek discovery of extra-record evidence in support of its APA-based
claims. [See]{.underline} discussion [supra]{.underline} pp. 21-23. In
addition, the identities of such individuals are protected by the
deliberative process privilege, since the revelation of such identities
would have a chilling effect on internal, pre-decisional debate among
government officials. [See]{.underline} pp. 13-14. [See
also]{.underline} [Alexander]{.underline}, 106 F.3d at 876 (law of the
case doctrine).

**XXIX. The Court Should Award Costs as a Sanction Against Counsel for
AMC's Failure\
to Participate In the Meet-And-Confer Process**

In addition to granting the United States' motion for protective order,
this Court should also award the United States its fees and expenses in
bringing the instant motion as a sanction against counsel for AMC's
continued failure to participate in the meet-and-confer process as
mandated by Local Rule 37-1. Shortly after service of AMC's Rule
30(b)(6) Notice, counsel for the United States (Ms. Jacobs) sent a
letter to counsel for AMC (Mr. Hurley) informing him that, pursuant to
Local Rule 37-1, the United States was initiating the meet-and-confer
process. [See]{.underline} App. II, Ex. 30; Jacobs Decl. ¶ 3. This
letter also contained a summary of the United States' objections
regarding this notice. [Id]{.underline}.

A little over a week later, on February 4, 2002, counsel for the United
States sent another letter to counsel for AMC setting forth a very
detailed, 13-page description of the United States' position, citing
legal authorities, and proposing any one of six dates for a telephonic
meet-and-confer conference. [See]{.underline} App. II, Ex. 31; Jacobs
Decl. ¶ 4; [see]{.underline} [also]{.underline} Local Rule 37-1 (setting
forth requirement that moving party's letter initiating the
meet-and-confer process identify each disputed discovery issue or
request, summarize that party's position on these issues or requests,
and provide any dispositive legal authority). Finally, this letter
reminded counsel for AMC of the obligation to meet-and-confer in this
discovery dispute within the following ten days. [See]{.underline} App.
II, Ex. 31 at p. 13.

Counsel for AMC, however, never responded---either by telephone or in
writing---to the United States' repeated requests for a discovery
conference about this motion. Jacobs Decl. ¶¶ 5-6; Russ Decl. at ¶¶ 2-3.
Indeed, at no time since serving AMC's Rule 30(b)(6) Notice on January
18th did counsel for AMC communicate in any fashion with either Ms.
Jacobs or any other DOJ counsel regarding this notice, or the United
States' objections thereto. [Id]{.underline}. This Court should not
countenance the utter disregard of AMC's counsel for his meet-and-confer
obligations under the local rules.

This is not, moreover, the first time that counsel for AMC (Mr. Hurley)
has run afoul of the Central District's mandated meet-and-confer
process. Currently pending before the court is the United States' motion
for protective order from AMC's Rule 30(b)(6) deposition notice seeking
testimony and documents related to the United States' court-ordered
inspections of twelve of AMC's theater complexes with stadium-style
seating. [See]{.underline} Plaintiff United States' Motion for
Protective Order From Defendant AMC Entertainment, Inc.'s Deposition
Notice Re: Inspection of AMC's Theaters and for Sanctions (filed Feb.
28, 2002). As explained in that motion and accompanying Joint
Stipulation, counsel for AMC (Mr. Hurley) there --- as here --- ignored
his meet and confer obligations and refused the United States' repeated
requests for a telephonic discovery conference as required by Local Rule
37-1.

Thus, because counsel for AMC completely disregarded his meet-and-confer
obligations in the instant discovery dispute, and because such disregard
for the meet-and-confer process was not an isolated incident, this Court
should sanction AMC and its counsel pursuant to Local Rule 37-4 by: (i)
granting the United States' motion for protective order in its entirety;
and (ii) imposing a monetary sanction of **\$ 4,157** which is equal to
the United States' costs and expenses in litigating the instant motion.
[See]{.underline} Local Rule 37.4 ("The failure of any counsel to comply
or cooperate in the \[meet-and-confer process set forth in Local Rule
37-1\] may result in the imposition of sanctions."); [see]{.underline}
[also]{.underline} Jacobs Decl. ¶¶ 7-10 (detailing costs and expenses
associated with the filing of the instant motion for protective order);
Russ Decl. ¶¶ 4-5 (same).

**CONCLUSION**

For the foregoing reasons, the Court should enter a protective order
pursuant to Fed. R. Civ. P. 26(c) quashing AMC's Rule 30(b)(6) Notice in
its entirety. In the alternative, the Court should enter an order
limiting AMC to a deposition upon written questions with respect to
non-privileged, non-duplicative areas (if any) encompassed by the
Notice. To the extent the Court declines to either quash the Notice or
limit AMC to written questions, the United States argues in the
alternative that the admission of the Rule 30(b)(6) deposition in the
[Hoyts]{.underline} case would satisfy the United States' obligation to
respond here, subject to the United States' privilege and other
objections raised.

DATED: March 1, 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

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

GRETCHEN E. JACOBS

JOHN A. RUSS IV

PHYLLIS COHEN

KATHLEEN S. DEVINE

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 1st day of March, 2002, true and correct
copies of **MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF
UNITED STATES' MOTION FOR PROTECTIVE ORDER FROM AMC ENTERTAINMENT INC.'S
RULE 30(b)(6) NOTICE, AND MOTION FOR SANCTIONS** 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) 718-6700

Robert J. Harrop

Lathrop & Gage L.C.

Suite 2500

2345 Grand Boulevard

Kansas City, MO 64108-2684

facsimile: (816) 292-2001

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

John Albert Russ IV

[^1]: As permitted under the new Local Rule 37-2.4, the United States
    files this brief separately, as opposing counsel has "failed to
    confer in a timely manner in accordance with L.R. 37-1."
    [See]{.underline} Local Rule 37-2.4; [see also]{.underline}
    Declaration of Gretchen E. Jacobs, ¶ 3-6 (dated March 1, 2002)
    \[hereinafter, "Jacobs Decl."\]; Declaration of John A. Russ IV, ¶
    2-3 (dated March 1, 2002) \[hereinafter, "Russ Decl."\].

[^2]: When necessary in this memorandum to refer to either defendant
    individually, defendant AMC Entertainment, Inc. shall be referred to
    as "AMCE" and defendant American Multi-Cinema, Inc. shall be
    referred to as "AMCI."

[^3]: In January 2000, AMC also sought to compel supplemental
    interrogatory responses for Interrogatory Nos. 6 & 7 seeking
    information concerning communication or contacts between Department
    officials and the National Association of Theater Owners ("NATO")
    --- an industry trade organization regarding Standard 4.33.3 or
    lines of sight. [See]{.underline} discussion [infra]{.underline} pp.
    18-20. Ultimately, this Court held that AMC was not entitled to
    information regarding DOJ-NATO contacts that would reveal
    negotiating positions or statements made during settlement
    negotiations. [See]{.underline} App. II, Ex. 20. After AMC moved to
    reconsider this decision, the District Court affirmed this Court's
    ruling that DOJ-NATO settlement negotiations should remain
    confidential and outside the scope of discovery. [See]{.underline}
    App. II, Ex. 23; [see generally]{.underline} App. II, Exs. 17-23.

[^4]: Specifically, a court may have discretion to depart from the law
    of the case when: (i) the first decision was clearly erroneous; (ii)
    an intervening change in the law has occurred; (iii) the evidence on
    remand is substantially different; (iv) other changed circumstances
    exist; or (v) a manifest injustice would otherwise result.
    [See]{.underline}, [e.g.]{.underline}, [Mendenhall]{.underline}, 213
    F.3d at 469; [Alexander]{.underline}, 106 F.3d at 876. No factual or
    legal circumstances exist to support AMC's assertion of any of these
    exceptions.

[^5]: Though the privilege is not absolute, the party seeking discovery
    cannot obtain information protected by the law
    enforcement/investigative privilege absent proof of a particularized
    need that outweighs the public\'s interest in maintaining the
    confidentiality of investigative materials. [See]{.underline} [In re
    Sealed Case]{.underline}, 856 F.2d 268, 272 (D.C. Cir. 1988);
    [Friedman]{.underline}, 738 F.2d at 1341.

[^6]: It is anticipated that, when expert reports are due, the United
    States will be providing AMC with additional information regarding
    ADA violations at these and other AMC theater complexes at issue in
    this litigation. [See]{.underline} discussion [infra]{.underline}
    pp. 14-16.

[^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). Since the United States'
    portion of the Joint Stipulation regarding AMC's motion to compel in
    November 1999 contained a detailed discussion of the attorney client
    privilege, [see]{.underline} App. I, Ex. 11 at pp. 39-40, that
    discussion will not be repeated in this memoranda.

[^8]: This is particularly true where, as here, the governmental
    deponent would be a high-ranking official in the Department's Civil
    Rights Division. [See]{.underline}, [e.g.]{.underline}, [Exxon
    Shipping Co. v. United States Dep\'t of Interior]{.underline}, 34
    F.3d 774, 779-80 (9th Cir. 1994)(\"\[A\] court may use Rule 26(b) to
    limit discovery of agency documents or testimony of agency officials
    if the desired discovery is relatively unimportant when compared to
    the government interests in conserving scarce government
    resources.\"); [Church of Scientology v. I.R.S.]{.underline}, 138
    F.R.D. 9, 12-13 (D. Mass. 1990) (granting motion to quash deposition
    of Internal Revenue Service employee when deposition would be unduly
    burdensome on government operations and noticing party failed to
    carry burden that information could not be gathered from other
    sources).

[^9]: The United States has also extensively briefed this issue in
    response to AMC's prior motion to compel discovery.
    [See]{.underline}, [e.g.]{.underline}, App. I, Ex. 11, pp. 17-25 ;
    App. I, Ex. 15, pp. 11-16, 25-28. The United States incorporates
    those arguments by reference here.

[^10]: The new Local Rules took effect on October 1, 2001.

[^11]: In light of the modification of the local rules to eliminate a
    reference to expert report due dates, [see]{.underline} Local Rule
    16-2.5, it is unclear the relation between the expert discovery
    cut-off date of May 31st and the specific due date for expert
    reports, or how that May 31st deadline interacts with the default
    rule of 90 days before trial. [See]{.underline} Rule 26(a)(2)(C).
    The parties may need to seek clarification from Judge Cooper on the
    exact date by which expert reports are now due, under the new Local
    Rules.

[^12]: **[Interrogatory \# 6]{.underline}:** *Identify all meetings,
    discussions, conversations, and conferences that you held with any
    movie theater company or operator, or industry representative, or
    any agents of the foregoing, in which ADAAG § 4.33.3 and/or lines of
    sight were discussed.*

    **[Interrogatory \# 7]{.underline}**: *Identify all persons
    participating in the meetings, discussions, conversations, and
    conferences identified in your response to Interrogatory No. 6.*

    [See]{.underline} AMCE First Set of Interrogatories, at 5 (App. I,
    Ex. 3).

[^13]: As this issue has also been extensively briefed, the United
    States incorporates by reference herein its prior arguments.
    [See]{.underline}, [e.g.]{.underline}, App. I, Ex. 11, at pp. 40-41;
    App. II, Ex. 22 (United States' opposition brief to AMC's motion for
    reconsideration of Feb. Minute Order).

[^14]: [See]{.underline}, [e.g.]{.underline}, Joint Stipulation Pursuant
    to Local Rule 7.15.2 Regarding Defendants' Motion to Compel
    Discovery: AMC Interrogatories Nos. 6 and 7, at 10-16 (App. II, Ex.
    18).

[^15]: In addition to the law of the case doctrine, it is inappropriate
    for AMC to seek information relating to more recent settlement
    negotiations with NATO because AMC has signed a confidentiality
    agreement as to those meetings, and should be bound by the terms of
    that agreement. In the summer of 2000, the Department of Justice,
    NATO, AMC, and two other chains signed a confidentiality agreement,
    in which the parties agreed that "\[i\]n the event that the
    negotiations do not result in settlement or other agreement, the
    parties agree that nothing said during the course of the discussions
    and no positions set forth during said discussions shall be binding
    on any of the parties." [See]{.underline} NATO-DOJ Confidentiality
    Agreement, ¶ 2 (App. II, Ex. 26). The parties also agreed that they
    would not "disclose the substance of said discussions to any persons
    or entities" outside their respective companies. [Id.]{.underline}
    at ¶ 1. Both of AMC's counsel signed this agreement: specifically,
    Mr. Robert Harrop signed as counsel for AMC, and Mr. Greg Hurley
    signed as counsel for Sanborn Theaters. [See]{.underline}
    [id.]{.underline} It is inappropriate for AMC to sign a
    confidentiality agreement regarding settlement negotiations between
    the United States and NATO, and then seek to require the Department
    to divulge such information for AMC's presumed benefit during the
    course of litigation. Even if the Court were inclined to disregard
    the prior rulings in this case, AMC should be bound by the terms of
    the confidentiality agreement it signed.

[^16]: Unlike the [Hoyts]{.underline} case, this Court has issued
    written orders upholding the United States' assertion of the
    settlement negotiation, deliberative process, law enforcement
    investigative, and work product privileges, and has limited AMC's
    APA-related discovery to the administrative record. In
    [Hoyts]{.underline}, the United States was ordered to present a
    witness for a 30(b)(6) deposition, subject to the privileges to be
    asserted by the United States during the course of the deposition.
    The witness was instructed to limit his answers to only publicly
    available information. [See]{.underline} App. II, Ex. 32.