IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO. 01-0244 CIV-KING/O'SULLIVAN

UNITED STATES OF AMERICA,

Plaintiff

vs.

NORWEGIAN CRUISE LINES, INC.,

a Florida Corporation, and NORWEGIAN

CRUISE LINE LIMITED, a Bermuda

Corporation,

Defendants.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_/

PLAINTIFF UNITED STATES' MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION\
FOR A PROTECTIVE ORDER QUASHING DEFENDANTS' SUBPOENA

The United States comes before the Court to request it to exercise its
authority under Rules 26(b)(2) and 26(c) of the Federal Rules of Civil
Procedure to prevent the requested depositions of Department of Justice
("Department" or "DOJ") officials, or other government officials who
might be designated to speak for the United States, noticed in an action
pending in this Court. The Department requests a protective order
because the depositions and accompanying requests for related documents
are unlikely to lead to the discovery of admissible evidence, seek the
discovery of privileged information or information more easily obtained
elsewhere, and are unduly burdensome. These discovery requests are in
essence a litigation tactic designed to harass federal government
officials and to discourage and impede DOJ's civil law enforcement
efforts. As shown more fully below, discovery of this sort seeks\
to intrude improperly into the deliberative processes of agency decision
makers and litigators and into the government's exercise of
prosecutorial discretion, and is therefore prohibited by the
attorney-client privilege, the deliberative process privilege, the work
product doctrine, and the law enforcement/investigative files privilege.
This court should grant the motion for a protective order and quash the
testimony and document subpoenas.

I.  **Background**

On January 19, 2001, the United States filed a Complaint in the United
States District Court for the Southern District of Florida against
Norwegian Cruise Lines, Inc., and Norwegian Cruise Line Limited
("Defendants"), owners and operators of a cruise line business. The
Complaint alleged that Defendants violated Title III of the Americans
with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12181-12189, by
imposing unfair terms and conditions of travel on persons with vision
impairments, thus denying such persons equal enjoyment of its cruise
ships. On May 15, 2001, the Court entered an Order setting September 10,
2001, as a trial date for the matter, with all discovery to be completed
by August 12, 2001.

On July 19, 2001, Defendants' counsel issued a Subpoena to "Department
of Justice, Office of Daniel I. Werfel, 1100 Vermont Avenue, N.W.,
Washington, D.C. 20005-6738 \[sic\]"[^1] commanding the Department of
Justice (DOJ) to designate "one or more officers, directors, or managing
agents, or other persons who consent," to testify in the present
case.[^2] A Notice of Deposition served by facsimile the same day sought
the appearance in Washington on August 6, 2001, pursuant to Rule
30(b)(6), of "\[t\]he person with the most knowledge" to be deposed
regarding topics including:

> 1\. Suits filed by the Department of Justice against cruise lines or
> owners of cruise ships for violations of the Americans with
> Disabilities Act from January 1, 1992 to the present.
>
> 2\. The final result of all suits filed by the Department of Justice
> against cruise lines or owners of cruise ships for violations of the
> Americans with Disabilities Act from January 1, 1992 to the present.
>
> 3\. Congress' direction to the Attorney General and the Department of
> Transportation to issue regulations on or before July 26, 1991 to
> effectuate the Americans with Disabilities Act.
>
> 4\. Guidance as to what would constitute a reasonable modification of
> the policies, practices or procedures set forth in the Complaint. . .
> .
>
> 5\. Guidance as to what would constitute the appropriate criteria for
> screening out potential passengers on foreign flagged cruise ships
> without violating the Americans with Disabilities Act necessary for a
> foreign flagged cruise ship to provide the goods, services,
> facilities, privileges, advantages, or accommodations being offered. .
> . .
>
> 6\. Guidance as to how a foreign flagged cruise ship is required to
> modify its policies, practices and procedures to avoid discrimination
> under the Americans with Disabilities Act.
>
> 7\. Guidance as to the extent of the individualized inquiry necessary
> to determine the reasonableness of modifications to cruise ship
> policies, practices and procedures set forth in the Complaint. . . .
>
> 8\. Guidance as to whether an individualized assessment must be made
> as to whether an individual with a disability constitutes a direct
> threat to himself/herself or to others on a foreign flagged cruise
> ship.
>
> 9\. Guidance as to the extent of any individualized assessment that
> must be made to determine whether an individual with a disability
> constitutes a direct threat to himself/herself or to others on a
> foreign flagged cruise ship.
>
> 10\. Guidance as to whether a private entity that does not own, lease,
> lease to or operate a place of public accommodation may properly be
> sued for discrimination under the Americans with Disabilities Act.
>
> 11\. Guidance as to how owners of the foreign flagged cruise ship may
> reconcile the laws of its home state, international law applicable to
> cruise ships and the requirements imposed by the Americans with
> Disabilities Act.
>
> 12\. The Title III regulations for which the Department of Justice is
> charged with responsibility under the Americans with Disabilities Act.

An "Exhibit Duces Tecum" attached to the Subpoena commanded DOJ to
produce a number of documents at the same time as the deposition,
including all "complaints" filed against cruise lines or owners of
cruise ships for ADA violations since January 1, 1992; all final
judgments, consent decrees, or other court documents indicating the
"final result" of all such complaints, and all documents relating to
items 3, 5, 6, 7, and 8 from the list of topics for deposition.

On July 25, 2001, Defendants served the United States with a Notice of
Deposition directed to "Plaintiff, United States of America, The person
with the most knowledge regarding the topics referenced below." This
Notice identified 19 topics for inquiry at deposition, including the 12
listed in the July 19 Notice, duplicates of three of those topics, and
four other topics, including

> 14\. Regulations as to how a foreign flagged cruise ship is required
> to modify its policies, practices and procedures to avoid
> discrimination under the Americans with Disabilities Act.
>
> 15\. Regulations as to the extent of the individualized inquiry
> necessary to determine the reasonableness of modifications to foreign
> flagged cruise ship policies, practices and procedures.
>
> 16\. Guidance as to whether an individualized assessment must be made
> as to whether an individual with a disability constitutes a direct
> threat to himself/herself or to others on a foreign flagged cruise
> ship.
>
> 17\. Guidance as to the extent of any individualized assessment that
> must be made to determine whether an individual with a disability
> constitutes a direct threat to himself/herself or to others on a
> foreign flagged cruise ship.

This second 30(b)(6) deposition is to be taken in Miami, Florida, and is
also scheduled for August 6, 2001.

II. **The Court Should Grant the United States' Motion for a Protective
    Order**

Under Federal Rules of Civil Procedure 26(b)(2) and 26(c), a court may
issue a protective order to prevent a party from engaging in discovery
that causes annoyance, embarrassment, oppression, or undue burden or
expense. Fed. R. Civ. P. 26(c). Here, Defendants seek to depose DOJ and
other federal government officials for the sole purpose of discovering
the United States' legal arguments. This discovery should not be
permitted because the information Defendants seek is not reasonably
calculated to lead to the discovery of admissible evidence; the proposed
discovery of the government officials will intrude upon facts protected
by the attorney-client privilege, the deliberative process privilege,
the work product doctrine, and the law enforcement/investigative files
privilege; Defendants possess other, less burdensome means of obtaining
the information sought in the July 19 subpoena and July 25 notice; and
the burden of the proposed discovery far outweighs any benefit.

> **A. Defendants' Discovery Requests Are Not Reasonably Calculated\
> To Lead to the Discovery of Admissible Evidence**

Rule 26(b)(1) was added to the Federal Rules of Civil Procedure in 1983
to deal with the problem of "over-discovery." [Mack v. Great Atlantic &
Pacific Tea Co.]{.underline}, 871 F.2d 179, 187 (1^st^ Cir. 1989)
(citing Fed. R. Civ. P. 26 advisory committee note (1983 amendments)).
Foremost under Rule 26(b)(1), discovery requests must be *relevant*:
regardless of whether the information sought will be admissible at
trial, the discovery must appear "reasonably calculated to lead to the
discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). It is
axiomatic, however, that such evidence or pre-evidence can only consist
of *factual* material, not legal conclusions. "\[T\]he most fundamental
principle of discovery \[is\] that the coercive power of discovery can
be invoked to uncover facts, but the task of researching the law is left
to the parties themselves." [Indiana Coal Council v. Hodel]{.underline},
118 F.R.D. 264, 265-66 (D.D.C. 1988); [accord]{.underline} [United
States v. Block 44]{.underline}, 177 F.R.D. 695, 695 (M.D. Fla. 1997);
[In re Olympia Holding Co.]{.underline}, 189 B.R. 846, 853 (Bankr. M.D.
Fla. 1995).

Nearly all of Defendants' July 19 and July 25 requests for deposition on
the topics set forth in the 30(b)(6) Notice and the related subpoenaed
documents fail this basic test of relevance; nearly all are requests for
legal conclusions rather than facts, and thus barred by Rule 26(b)(1).
For example, in 11 of the 16 topics, Defendants' planned inquiry is to
elicit "guidance" as to various aspects of the ADA, apparently intended
as bases for discussions of DOJ's conclusions regarding the
interpretation and enforcement of the ADA. [See]{.underline} July 19,
2001 Notice of Taking Deposition Duces Tecum \[hereinafter July 19
Notice\], topics 4-11; July 25, 2001 Notice of Taking Deposition
\[hereinafter July 25 Notice\], topics 4-11, 16-18. Similarly, inquiry
into topic 3, "Congress' direction to the Attorney General and the
Department of Transportation to issue regulations on or before July 26,
1991 to effectuate the Americans with Disabilities Act," involves
inquiries into DOJ's legal conclusions underlying the various
regulations and the various roles of Congress and the Department of
Transportation (DOT) in ADA enforcement.[^3] [See]{.underline} July 19
Notice, topic 3; July 25 Notice, topic 3. Discussion of topic 12,
"\[t\]he Title III regulations for which the Department of Justice is
charged with responsibility under the Americans with Disabilities Act,"
would most likely include inquiries by Defendants into DOJ regulatory
processes. [See]{.underline} July 19 Notice, topic 12; July 25 Notice,
topics 12, 19. None of these proposed deposition topics, and requests
for related documents are reasonably calculated to lead to the discovery
of admissible evidence because they comprise discovery of "legal
interpretations" and not facts. [Indiana Coal Council]{.underline}, 118
F.R.D. at 267. Because "\[t\]he Federal Rules are designed to provide
parties access to the latter but not the former," [id.]{.underline} at
267, the requested discovery should be denied.

> **B. Defendants' Discovery Requests Should Be Denied Because They Seek
> Information Protected by Privilege**

Also outside the scope of discovery, as regulated by Rule 26(b)(1), are
materials protected by any evidentiary privilege. [See]{.underline} Fed.
R. Civ. P. 26(b)(1) ("Parties may obtain discovery regarding any matter,
*not privileged*, that is relevant to the claim or defense of any
party.") (emphasis added). Defendants seek communications and documents
protected by at least four established evidentiary privileges: the
attorney-client privilege, the deliberative process privilege, the
attorney work product privilege, and the law enforcement/investigative
files privilege.

> **1. Attorney-Client Privilege**

The attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law. [Upjohn v. United
States]{.underline}, 449 U.S. 383, 389 (1981). It is absolute. [Coleman
v. American Broad. Cos., Inc.]{.underline}, 106 F.R.D. 201, 204 (D.D.C.
1985); [SEC v. Gulf & W. Indus., Inc.]{.underline}, 518 F. Supp. 675,
680 (D.D.C. 1981). The purpose of the attorney-client privilege is to
\"encourage full and frank communication between the attorneys and their
clients and thereby promote broader public interests in the observance
of law and administration of justice.\" [Upjohn]{.underline}, 449 U.S.
at 389. The privilege also protects communications from attorneys to
their clients if the communications "rely on confidential information
obtained from the client." [In re Sealed Case]{.underline}, 737 F.2d 94,
99 (D.C. Cir. 1984). "In the governmental context, the 'client' may be
the agency and the attorney may be an agency lawyer." [In re Bruce R.
Lindsey (Grand Jury Testimony)]{.underline}, Nos. 98-3060, 98-3062,
98-3072, 1998 WL 418780, \*14 (D.C. Cir. July 27, 1998);
[accord]{.underline} [Tax Analysts v. IRS]{.underline}, 117 F.3d 607,
618 (D.C. Cir. 1997); [In re Sealed Case]{.underline}, 737 F.2d 94,
98-99 (D.C. Cir. 1984); [Sparton Corp. v. United States]{.underline}, 44
Fed. Cl. 557, 567 (Fed. Cl. 1999).

In the event that the Defendants' requested DOJ deponent would be an
official with whom DOJ attorneys consult, much of the information sought
by Defendants is protected by the attorney-client privilege. Any DOJ
deposition designee would necessarily be an attorney. Each of the
deposition topics is designed to delve into areas protected from
disclosure. Both within the context of civil litigation in which the
United States is a plaintiff, and in other enforcement and technical
assistance activities, DOJ attorneys consult regularly with other DOJ
staff on the legal issues like those described in the Notice.
[See]{.underline} July 19 Notice, topics 3-12; July 25 Notice, topics
3-19. Internal communications as to "complaints" and "final results,"
[see]{.underline} July 19 Notice, topics 1, 2; July 25 Notice, topics
1-2, are also obviously protected by the attorney-client privilege, as
well as Federal Rules of Evidence and Civil Procedure. [See]{.underline}
Fed. R. Evid. 408; Fed. R. Civ. P. 32, 33. Based upon the Defendants'
lists of topics, the proposed depositions are unlikely to include any
inquiries into factual matters which are not protected from disclosure
by the attorney-client privilege.

> **2. Deliberative Process Privilege**

The deliberative process privilege \"allow\[s\] 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 California v. United States Dep\'t of Commerce]{.underline},
968 F.2d 916, 920 (9th Cir. 1992). It is based on the premise "that
those who expect public dissemination of their remarks may well temper
candor with a concern for appearances . . . to the detriment of the
decisionmaking process." [NLRB v. Sears, Roebuck & Co.]{.underline}, 421
U.S. 132, 150-151 (1975), [quoting]{.underline} [United States v.
Nixon]{.underline}, 418 U.S. 683, 705 (1974); [see also]{.underline}
[Dudman Communications Corp. v. Dept. of the Air Force]{.underline}, 815
F.2d 1565, 1567 (D.C. Cir. 1987) (stating that the privilege "rests most
fundamentally on the belief that were agencies forced to 'operate in a
fishbowl' . . . the frank exchange of ideas and opinions would cease and
the quality of administrative decisions would consequently suffer"). The
privilege protects the quality of federal agency decisionmaking by
serving

> to assure that subordinates within an agency will feel free to provide
> the decisionmaker with their uninhibited opinions and recommendations
> without fear of later being subject to public ridicule or criticism;
> to protect against premature disclosure of proposed policies before
> they have been finally formulated or adopted; and to protect against
> confusing the issues and misleading the public by dissemination of
> documents suggesting reasons and rationales for a course of action
> which were not in fact the ultimate reasons for the agency\'s action.

[Coastal States Gas Corp. v. Department of Energy]{.underline}, 617 F.2d
854, 866 (D.C. Cir. 1980).

The deliberative process privilege protects not only documents but the
integrity of the deliberative process itself. [See]{.underline}
[National Wildlife Fed\'n v. Forest Service]{.underline}, 861 F.2d 1114,
1119 (9th Cir. 1988). The privilege protects "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. at 150 (quoting [Carl Zeiss
Stiftung v. V.E.B. Carl Zeiss, Jena]{.underline}, 40 F.R.D. 318, 324
(D.D.C. 1966)).

Communications are protected by the deliberative process privilege if
they are "both 'predecisional' and 'deliberative.'" [Wolfe v. Department
of Health & Human Services]{.underline}, 839 F.2d 768, 774 (D.C. Cir.
1988) (en banc) (citing [EPA v. Mink]{.underline}, 410 U.S. 73,88
(1973)). A communication is "predecisional" if it occurred "in order to
assist an agency decisionmaker in arriving at his decision."
[Renegotiation Bd. v. Grumman Aircraft Eng'g Corp.]{.underline}, 421
U.S. 168, 184 (1975). Communications are "deliberative" if, absent
protection from public disclosure, "information of that type would not
flow freely within the agency." [Mead Data Central, Inc. v. U.S. Dep't
of the Air Force]{.underline}, 566 F.2d at 256. Facts as well as
deliberations are covered by the deliberative process privilege when
"factual materials are 'inextricably intertwined' with policy making
recommendations so that their disclosure would 'compromise the
confidentiality of deliberative information that is entitled to
protection'" under the privilege. [Mink]{.underline}, 410 U.S. at 92;
[see also]{.underline} [Ryan v. U.S. Dep't of Justice]{.underline}, 617
F.2d 781, 790 (D.C. Cir. 1980).

In this case, the government officials Defendants would have testify
would undoubtedly be DOJ or other government agency decision makers who
participated in deliberative processes involved in developing various
aspects of the ADA, and who would be asked to speak to those processes
in the deposition. For example, assuming the term "guidance," as it is
used in the deposition notice, means the eliciting of oral
communications from a DOJ representative as to legal issues described
within the topics, both generally and as to the present complaint, such
testimony, even though it could only state facts about past agency
action, and not immediate legal advice, would necessarily reveal the
deliberative processes of the agency.[^4] [See]{.underline} July 19
Notice, topics 3-12; July 25 Notice, topics 3-12, 16-18. Communications
on these topics, and others requested by Defendants, [see]{.underline}
July 19 Notice, topics 1, 2; July 25 Notice, topics 1, 2, 13-15, 19,
will hamper DOJ's ADA enforcement efforts. [Cf.]{.underline} [FTC v.
Grolier, Inc.]{.underline}, 462 U.S. 19, 31 (1983) (Brennan, J.,
concurring) (stating that the ability of an adverse party to "gain
insight into an agency's general strategic and tactical approach to
deciding when suits are brought . . . and on what terms they may be
settled" should be protected against).

> **3. Work Product Doctrine**

Rule 26(b)(3) incorporates the work product doctrine enunciated in
[Hickman v. Taylor]{.underline}, 329 U.S. 495 (1947), by
\"protect\[ing\] against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney . . . concerning
the litigation.\" Fed. R. Civ. P. 26(b)(3); [see]{.underline}
[also]{.underline} Fed. R. Civ. P. 26(b)(3) advisory committee note
(1983 amendment); [SEC v. Morelli]{.underline}, 143 F.R.D. 42, 45
(S.D.N.Y. 1992). The purpose of the work product doctrine is to preserve
the integrity of the adversary trial process by protecting the mental
impression and legal strategy of an attorney as the attorney prepares a
case in contemplation of litigation and trial. [Jordan v. U.S. Dep't of
Justice]{.underline}, 591 F.2d 753, 775 (D.C. Cir. 1978). The privilege
encourages effective legal representation by removing counsel\'s fears
that thoughts and information will be discoverable by an adversary.
[Id.]{.underline}; [see also]{.underline} [Morelli]{.underline}, 143
F.R.D. at 47. In order to demonstrate that communications are protected
by the work product doctrine, the information sought must pertain to
legal work undertaken in anticipation of litigation or trial.
[Jordan]{.underline}, 591 F.2d at 753.

The work product doctrine applies not only to documents, but also to
deposition testimony. [See]{.underline} [In re Sealed Case]{.underline},
856 F.2d at 273 (citing cases). It applies to DOJ attorneys acting as
counsel for the United States. [NLRB v. Sears]{.underline}, 421 U.S.
132, 154 (1975); [cf.]{.underline} [J.H. Rutter Rex Mfg. Co. v.
NLRB]{.underline}, 473 F.2d 223, 234 (5th Cir. 1973). Depositions of
government attorneys who are involved in various aspects of law
enforcement actions pose particularly difficult work product issues
because it is difficult to examine an attorney to obtain facts about a
lawsuit without intruding into the attorney's mental processes and
litigation strategy \-- areas that are entitled to almost absolute
protection under the work product doctrine. [See]{.underline}
[Morelli]{.underline}, 143 F.R.D. at 47 (quoting [Sporck v.
Peil]{.underline}, 759 F.2d 312, 316 (3d Cir. 1985).[^5]

Defendants' deposition notices and production of related documents
include areas of inquiry that will likely encroach upon material
protected by the work product privilege. If Defendants' are allowed to
interrogate DOJ or other government officials on "what would constitute
the appropriate criteria for screening out potential passengers on
foreign flagged cruise ships without violating \[the ADA\],"
[see]{.underline} July 19 Notice, topic 5; July 25 Notice, topic 5, for
example, or "how a foreign flagged cruise ship is required to modify its
policies, practices, and procedures to avoid discrimination under \[the
ADA\]," [see]{.underline} July 19 Notice, topic 6; July 26 Notice, topic
6, Defendants would be granted discovery on the prosecution of the
United States' suit against them. Defendants would be allowed entry to
the litigation strategies the United States would consider, the
strengths and weaknesses of such cases, and other information that falls
within the work product privilege. Similarly, any inquiry based on
Defendants' request for production of "all complaints against cruise
lines or owners of cruise ships for violations of \[the ADA\],"
[see]{.underline} July 19 Notice, topic 1 to the extent the phrase is
meant to include confidential administrative complaints filed with DOJ
itself, would also include inquiry into DOJ attorney work product and is
similarly barred. [See also]{.underline} July 19 Notice, topics 2-11;
July 25 Notice, topics 1-11, 13, 16-18.

> **4. Law Enforcement/Investigative Files Privilege**

Federal regulations strictly prohibit the disclosure of information
where the disclosure would reveal investigatory records compiled for law
enforcement purposes and would interfere with enforcement proceedings or
disclose investigative techniques and procedures such that their
effectiveness would be impaired. [See]{.underline} 28 C.F.R. § 16.26(5).
Courts have upheld the privilege from disclosure of such records.
[Maroscia v. Levi]{.underline}, 569 F.2d 1000, 1002 (7th Cir. 1977);
[NLRB v. Robbins Tire and Rubber Co.]{.underline}, 437 U.S. 214, 242-43
(1978); [Barney v. IRS]{.underline}, 618 F.2d 1268, 1273-74 (8th Cir.
1980). The law enforcement privilege presumptively protects
investigative files and testimony about investigative files from
disclosure. [In re Sealed Case]{.underline}, 856 F.2d 268, 272 (D.C.
Cir. 1988); [Black v. Sheraton Corp. of America]{.underline}, 564 F.2d
531, 545 (D.C. Cir. 1977). The privilege is designed "to prevent
disclosure of law enforcement techniques and procedures, to preserve the
confidentiality of sources, to protect witness and law enforcement
personnel, to safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference with an
investigation." [In re Department of Investigation of the City of
N.Y.]{.underline}, 856 F.2d 481, 484 (2d Cir. 1988);
[accord]{.underline} [United States v. Winner]{.underline}, 641 F.2d
825, 831 (10th Cir. 1981) (quoting [Black]{.underline}, 564 F.2d at
831). [See]{.underline} [also]{.underline} Freedom of Information Act
(\"FOIA\"), 5 U.S.C. §§ 552(b)(7)(C)-(D).

The privilege is not an absolute one, however, but rather requires the
Court to balance the discovering party\'s "need for particular documents
against the public interest in nondisclosure." [Black]{.underline}, 564
F.2d at 547; [In re Sealed Case]{.underline}, 856 F.2d at 272. The party
seeking discovery bears the burden of demonstrating a particularized
need that outweighs this public interest. [In Re Sealed
Case]{.underline}, 856 F.2d at 272; [Friedman v. Bache Halsey Stuart
Shields, Inc.]{.underline}, 738 F.2d 1336, 1341 (D.C. Cir. 1984);
[Collins v. Shearson/American Express, Inc.]{.underline}, 112 F.R.D.
227, 228 (D.D.C. 1986). Courts have considered a number of factors in
weighing these competing interests, including the extent to which
disclosure will discourage citizens from giving information to law
enforcement agents; the impact the disclosure will have on the persons
who have given information to the government; whether the investigation,
or litigation, is complete; whether the information sought is factual or
an evaluative summary; whether the discovering party is the target of an
investigation or defendant in an ensuing litigation; whether the party
claiming the privilege has litigated in good faith; whether the
discovery sought is available through other discovery or other sources;
and the importance of the information to the plaintiff\'s case.
[See]{.underline} [In re Sealed Case]{.underline}, 856 F.2d at 272
(citing [Frankenhauser v. Rizzo]{.underline}, 59 F.R.D. 339, 344 (E.D.
Pa. 1973)).

Consideration of these factors mandates nondisclosure of the testimony
and documents at issue here, including any documents containing any
"suits" or "complaints," including administrative complaints, or "final
results" of such complaints, filed with or by DOJ. [See]{.underline}
July 19 Notice, topic 1, 2; July 25 Notice, topic 1, 2.[^6] The
Defendants apparently seek information on the status or outcome of other
DOJ investigations, which in turn may shed light upon DOJ ADA
enforcement in [this]{.underline} matter--an ongoing litigation brought
by the United States in good faith regarding Defendants' ADA violations.
Such information is vital to the decision-making processes in all DOJ
enforcement activities, including the present action. Disclosure of this
information, if compelled by Defendants' subpoena, will likely have a
chilling effect on the willingness of complaining witnesses or other
witnesses to participate in this or other DOJ ADA enforcement actions.
Because all these factors point towards nondisclosure of many of the
materials and communications sought by Defendants, and because of the
public interest in continuing, effective ADA enforcement by DOJ, the
Court should grant this Motion and quash Defendants' subpoena.

> **C. Defendants' Discovery Requests Are Outside the Permissible Scope\
> Of Federal Discovery**

"The scope of discovery is not limitless." [Envirosafe Servs. Inc. v.
Envirosure Management Corp.]{.underline}, 1998 WL 62876, \*1 (W.D.N.Y.
June 9, 1988) (citing [Oppenheimer Fund, Inc. v. Sanders]{.underline},
437 U.S. 340, 351-52 (1978)). Rule 26(b) includes limits on the general
scope of federal discovery. According to the Rule, discovery methods
must be limited if a court determines that (i) discovery sought is
unreasonably cumulative or duplicative, or is obtainable from a more
convenient or less burdensome source; (ii) the discovering party has had
ample opportunity by prior requests to obtain the information sought; or
(iii) the burden of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(2)(i)-(iii). In this case, each of these inquiries
counsels protection of any nonprivileged government testimony and
documents requested by Defendants.

> **1. Defendants Have Access to Less Burdensome Means of Discovery**

In general, materials available as public records are nondiscoverable
because they may be obtained from a more convenient source.
[See]{.underline}, [e.g.]{.underline}, [Bleecker v. Standard Fire Ins.
Co.]{.underline}, 130 F. Supp.2d 726, 738-39 (E.D.N.C. 2000); [I.H. Bass
v. Gulf Oil Corp.]{.underline}, 304 F. Supp. 1041, 1049-51 (S.D. Miss.
1969); [Speedrack, Inc. v. Baybarz]{.underline}, 45 F.R.D. 254, 256
(E.D. Calif. 1968); [cf.]{.underline} [Riddell Sports Inc. v.
Brooks]{.underline}, 158 F.R.D. 555, 557 (S.D.N.Y. 1994) (allowing
deposition testimony where questioning sought information potentially
leading to relevant evidence, including public record information).
Requests to produce public records, or to depose witnesses about such
records, "basically involve legal research \[and are\] therefore . . .
not a proper subject of discovery." [Fagan v. District of
Columbia]{.underline}, 136 F.R.D. 5, 8 (D.D.C. 1991);
[accord]{.underline} [Athridge v. Aetna Cas. & Sur. Co.]{.underline},
184 F.R.D. 181, 193-94 (D.D.C. 1998). Similarly, almost all of the
nonprivileged materials Defendants seek here, and have identified as
bases for deposition topics, including all regulations, Congressional
regulatory "direction," "guidance," "complaints," "suits," and "final
results" of complaints, are commonly publicly available through law
libraries, electronic databases, and the Internet, and are not
appropriate for discovery. [See]{.underline} July 19 Notice, topics
1-12; July 25 Notice, topics 1-19.

Furthermore, the Defendants have already taken advantage of other, less
intrusive means of obtaining any discoverable facts that could
conceivably be revealed through the newly-proposed discovery. Indeed, a
number of the items sought through Defendants' requests for testimony
and documents in the July 19 subpoena have been also been the subject of
Defendants' earlier Interrogatories, Requests for Production and
Admissions, and Freedom of Information Act request.
[Compare]{.underline}, [e.g.]{.underline}, Defendants' Second Set of
Interrogatories, Interrogatory No. 9:

> Assuming that Title III of the ADA applies to foreign flagged cruise
> ships, a point which NCL does not concede, please explain, with
> specificity and provide citations where applicable to specific
> authority, precisely what type of "criteria" would be sufficient to
> satisfactorily demonstrate to the Department of Justice that the
> imposition or application of eligibility criteria which screen out or
> tend to screen out an individual with a disability would be necessary
> for the provisions of the goods, services, facilities, privileges,
> advantages or accommodations.

[with]{.underline} July 19, 2001 Notice of Taking Deposition Duces
Tecum, topic No. 5 ("Guidance as to what would constitute the
appropriate criteria for screening out potential passengers on foreign
flagged cruise ships without violating the \[ADA\] necessary for a
foreign flagged cruise ship to provide the goods, services, privileges,
advantages, or accommodations being offered."). Such duplicative
discovery requests violate Rule 26(b)'s limitations on cumulative
discovery, and the Court should therefore deny Defendants' requests.
[See]{.underline}, [e.g.]{.underline}, [Naartex Consulting Corp. v.
Watt]{.underline}, 722 F.2d 779, 788 (D.C. Cir. 1983) (district court
properly denied additional discovery when plaintiff already had an ample
opportunity for discovery); [United States v. Upton]{.underline}, Civ.
No. 3:92-CV-00524(AWT), 1995 WL 264247, \*1 (D. Conn. Jan. 26, 1995)
(district court denied depositions of Internal Revenue Service agents
because defendants had documents reflecting the information sought and
the burden of the depositions outweighed the likely benefit).

> **2. Balancing of Interests Favors United States**

Finally, "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." [Exxon Shipping Co. v. United
States Dep't of Interior]{.underline}, 34 F.3d 774, 779-80 (9th Cir.
1994). In civil cases where parties have sought the deposition of
federal government officials, courts have required parties seeking such
depositions to make a showing that such depositions are "essential to
prevent prejudice or injustice." [United States Board of Parole v.
Merhige]{.underline}, 487 F.2d 25, 29 (4th Cir. 1973), [cert.
denied]{.underline}, 417 U.S. 918 (1974); [Peoples v. United States
Dep't of Agriculture]{.underline}, 427 F.2d 561, 567 (D.D.C. 1970);
[Russ v. Ratliff]{.underline}, 68 F.R.D. 691, 692 (E.D. Ark. 1975)
(subpoena for F.B.I. agent to appear for deposition and produce
investigative report quashed). The reason for such a high standard is
that federal agency decision makers are generally relieved from the
burdensomeness of depositions, absent a showing that such a deposition
is necessary to prevent injustice, in order to "allow them to spend
their time on the performance of official functions, and to protect them
from inquiries into the mental processes of agency-decision making."
[Cornejo v. Landon]{.underline}, 524 F. Supp. at 122; [see
also]{.underline} [United States]{.underline} v. [Morgan]{.underline},
313 U.S. 409, 422 (1941).[^7]

The United States has the same concerns here should Defendants'
discovery requests be permitted. Virtually any civil action arising
under Title III of the ADA will involve regulations issued by DOJ. In
addition, because DOJ is authorized to receive and investigate Title III
complaints, some of these same actions will also involve matters that
have been the subject of DOJ investigations. 42 U.S.C. § 12188.
Permitting the discovery by respondents and defendants in enforcement
actions into all aspects of investigations and the regulatory processes
would slow the work of the agency to a crawl. Hundreds of ADA complaints
are received by DOJ every year; if in even a small fraction of those an
agency official is required to respond to discovery, there would be no
time for enforcement or other work the Department is obligated by
Congress to perform. If Defendants are allowed to take the deposition
they seek here, private litigants will expect to be able to routinely
depose federal agency attorneys about the interpretation of law in every
private action that involves federal laws. Such a result would seriously
undermine the effectiveness of the government's civil law enforcement
efforts.

This balancing of interests might result in a different outcome were the
Defendants seeking relevant factual materials in their deposition and
discovery requests. This is not that case. Although Defendants
undoubtedly will argue that the legal conclusions they seek are
important to competent litigation of their case, Defendants' interests
cannot outweigh those of the United States as litigant in this
particular matter, as well as the public interest in effective DOJ ADA
enforcement, in nondisclosure of this essentially nonfactual material.

**III. Conclusion**

For the reasons stated above, the United States respectfully requests
that its Motion for a Protective Order Quashing Defendants' Subpoena be
granted.

JOHN L. WODATCH

Chief

L. IRENE BOWEN

Deputy Chief

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

July 27, 2001 DANIEL I. WERFEL (Special Bar No. A5500561)

EUGENIA ESCH (Special Bar No. A5500563)

LEWIS BOSSING (Special Bar No. A550574)

Trial Attorneys

Disability Rights Section

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 514-5510

\(202\) 307-1197 (facsimile)

BARRY SABIN

Acting U.S. Attorney

VERONICA HARRELL-JAMES

Assistant United States Attorney

99 N.E. 4^th^ Street, 6^th^ Floor

Miami, Florida 33132

\(305\) 961-9327

\(305\) 530-7976 (facsimile)

[CERTIFICATE OF SERVICE]{.underline}

I HEREBY CERTIFY that the foregoing Plaintiff United States' Memorandum
of Law In Support of Its Motion for a Protective Order Quashing
Defendants' Subpoena was served by facsimile and overnight express mail
on this 27th day of July 2001 to the following counsel:

Catherine J. MacIvor

MASE & GASSENHEIMER, P.A.

1200 Brickell Bay Office Tower

1001 Brickell Bay Drive

Miami, Florida 33131

Phone Number: (305) 377-3770

Fax Number: (305) 377-0080

(Attorneys for the Defendants)

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

LEWIS BOSSING (Special Bar No. A5500574)

Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, DC 20035-6738

\(202\) 514-5510

[^1]: Mr. Werfel is one of the DOJ attorneys assigned to this matter.
    Mr. Werfel's office at the Department of Justice is located at 1425
    New York Avenue in Washington, D.C.

[^2]: The United States acknowledges that, under Rule 45 and Southern
    District of Florida Local Rules app. A, because the Defendants
    commanded the DOJ deponent, by a Notice of Taking Deposition Duces
    Tecum, to appear in Washington, D.C., this or some similar motion
    could also be filed in the United States District Court for the
    District of Columbia. Because the Defendants also noticed the
    deposition under Rule 30(b)(6), however, and because this Court is
    already conversant with the legal issues involved in this lawsuit,
    the United States respectfully moves in this Court for a protective
    order that will quash the deposition and document subpoena.

[^3]: "Congress's direction" to these agencies is also a matter of
    public record and therefore may be obtained elsewhere.
    [See]{.underline} [infra]{.underline} Part II.C.1.

    Additionally, the DOJ deponent could not, of course, opine as to
    DOT's ADA interpretations or enforcement policies.

[^4]: Even if the term "guidance" is meant to include publicly available
    regulations, commentary, technical assistance materials, and policy
    statements--and, indeed, the ADA itself--any deposition testimony
    discussing such materials would also reveal the ongoing processes by
    which DOJ formulates, publishes, and revises such materials. Such
    testimony is clearly covered by the deliberative process privilege.

[^5]: In [Morelli]{.underline}, the court noted that "the touchstone of
    the work-product inquiry is whether the discovery demand is made
    'with the precise goal of learning what the opposing attorney\'s
    thinking or strategy may be,'" [Morelli]{.underline}, 143 F.R.D. at
    46-47 (quoting [In re Grand Jury Subpoenas]{.underline}, 959 F.2d
    1158, 1166 (2d Cir. 1992), and granted the protective order. After
    reviewing the areas of proposed examination, the court concluded
    that

    opinion work product includes such items as an attorney\'s legal
    strategy, his intended lines of proof, his evaluation of the
    strengths and weaknesses of his case, and the inferences he draws
    from interviews of witnesses. Such material is accorded almost
    absolute protection from discovery because any slight factual
    content that such items may have is generally outweighed by the
    adversary system\'s interest in maintaining the privacy of an
    attorney\'s through processes and in ensuring that each side relies
    on its own in preparing their respective cases.

    [Id.]{.underline} at 47 ([quoting]{.underline} [Sporck v.
    Peil]{.underline}, 759 F.2d 312, 316 (3^rd^ Cir. 1985));
    [accord]{.underline} [United States v. District Council of New York
    City]{.underline}, 1992 WL 208284, \*6 (S.D.N.Y. 1992) (refusing to
    compel representatives of U.S. Attorneys\' Office to answer
    questions at Rule 30(b)(6) deposition that would reveal attorney
    work product); [SEC v. World-Wide Coin Investments,
    Ltd.]{.underline}, 92 F.R.D. 65, 67 (N.D. Ga. 1981) (barring
    deposition of SEC trial counsel).

[^6]: Of course, oral communications or documents that may be included
    within Defendants' other topic categories may also qualify for
    protection under this privilege.

[^7]: Some of the testimony sought by Defendants may likely come from
    high level government officials. It is well-established that such
    officials should not generally be required to testify concerning
    their official actions. [See]{.underline} [United States v.
    Morgan]{.underline}, 313 U.S. 409, 422 (1941); [Simplex Time
    Recorder Co. v. Secretary of Labor]{.underline}, 766 F.2d 575,
    586-87 (D.C. Cir. 1985).