BILL LANN LEE

Assistant Attorney General

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

Civil Rights Division

ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief, Civil Division

SHIRLEY WANG

Assistant United States Attorney

California Bar No. 181669

Room 7516, Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-0474

Facsimile: (213) 894-7819

JEANINE M. WORDEN

JOHN A. RUSS IV

PHYLLIS M. COHEN

HEATHER A. WYDRA

DANIEL I. WERFEL

Trial Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

1425 New York Avenue, N.W., Room 4073

Post Office Box 66738

Washington, D.C. 20035-6738

Telephone: (202) 307-6556

Telephone: (202) 353-7738

Telephone: (202) 514-3882

Facsimile: (202) 307-1198

Counsel for Plaintiff

United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

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

)

Plaintiff, ) **PLAINTIFF UNITED STATES' MEMORANDUM**

) **IN SUPPORT OF ITS [EX PARTE]{.underline} APPLICATION**

v\. ) **FOR A TEMPORARY RESTRAINING**

) **ORDER TO PREVENT FURTHER SPOLIATION**

AMC ENTERTAINMENT, INC., ) **OF THE EVIDENCE BY DEFENDANTS**

[et]{.underline} [al]{.underline}., )

) Judge: Judge Florence-Marie Cooper

) Date: To be determined by Court.

Defendants. ) **Time:** To be determined by Court.

)

**INTRODUCTION**

1\. The United States moves for a Temporary Restraining Order ("TRO") to
enjoin Defendants from further spoliating evidence at the twelve (12)
AMC theaters designated for inspection under Magistrate Judge Hillman's
June 16, 2000, Order (hereinafter, "June 16^th^ Order")
([See]{.underline} Exhibit A). "Spoliation is the destruction or
significant alteration of evidence, or the failure to preserve property
for another's use as evidence in pending or reasonably foreseeable
litigation." [West v. Goodyear Tire & Rubber Co.]{.underline}, 167 F.3d
776, 779 (2d Cir. 1999); [see generally]{.underline} [Glover v. BIC
Corp]{.underline}., 6 F.3d 1318, 1329 (9^th^ Cir. 1993). In this case
the United States has learned that Defendants are attempting to
significantly alter the wheelchair seating areas and other accessibility
features at their theaters prior to the completion of the United States'
inspections. Defendants have refused to identify what changes they have
made or plan to make to the wheelchair seating areas, and to other
features affecting accessibility, at these theaters. Furthermore,
Defendants have refused to agree to stop any such alterations prior to
inspections, causing the United States irreparable injury by preventing
it from gathering accurate evidence of AMC's compliance or lack of
compliance with the ADA and its regulations.

2\. The inspections, approved by the Magistrate Judge and this Court,
will include measurements of wheelchair seating locations, measurements
of lines of sight from the seats in the auditorium to the screen, and
examinations and surveys of other features related to accessibility and
compliance with the ADA. Because Defendants have told the United States
that they lack "as-built" architectural plans that accurately show the
layout of the theaters as they were actually constructed, the United
States sought these inspections in part to take measurements of the
actual configuration of the theaters. If, however, Defendants change
seating layouts and other features affecting accessibility at these
twelve theaters, and if Defendants continue their refusal to identify
what specific changes have been made, the United States' ability to
gather evidence to which it is entitled under the June 16^th^ Order will
be irreparably compromised---the United States will be unable to know
whether the measurements it takes have been affected by Defendants'
improper attempts to hide or diminish their ADA violations.

3\. Defendants have an obligation to preserve evidence at these twelve
theaters prior to the completion of inspections by the United States.
[See]{.underline} [West]{.underline}, 167 F.3d at 779. The United
States, however, received a document in discovery revealing AMC's plans
to alter the wheelchair seating layout at its Promenade 16 theater at
Woodland Hills. ([See]{.underline} Exhibit B, filed separately under
seal).[^1] The United States has attempted to verify the accuracy of the
information in that document with AMC's counsel, but Defendants have
refused to answer whether they have made these or other changes at the
twelve theaters identified for inspection.

4\. Defendants have also refused to agree to halt all alterations to
wheelchair seating areas at these theaters prior to inspection, despite
their clear obligation to preserve evidence under their control prior to
the United States' opportunity to measure that evidence.
[See]{.underline} [West]{.underline}, 167 F.3d at 779. Indeed,
Defendants have asserted that they have the right to make whatever
changes at these theaters they want prior to inspections,
([see]{.underline} Exhibit C, AMC's Sept. 28 letter), without regard to
the impact on the United States' ability to collect evidence pursuant to
the Magistrate Judge's June 16^th^ Order.

5\. The United States is seeking to enjoin efforts by Defendants to
alter evidence relating to seating layout and other features affecting
accessibility at the twelve theaters listed for inspection under the
June 16^th^ Order.[^2] Defendants cannot be permitted to alter the
accessibility of these twelve theaters in an attempt to improperly
interfere with the\
Department's ability to gather evidence. The United States is also
seeking to require Defendants to identify at which of the twelve
theaters they have altered the seating layout or any other features
affecting accessibility, since January 29, 2000, when the United States
filed the present litigation.

6\. On October 2, 2000, the United States filed an emergency request for
a conference call with Magistrate Judge Hillman to discuss Defendants'
refusal to halt spoliation of evidence prior to inspections. On October
3, 2000, the Magistrate Judge informed the\
United States that he lacked injunctive power to prevent any alleged
spoliation at Defendants' theaters and that any such relief would have
to be sought in the District Court. On the same day, the United States
contacted Defendants' counsel and asked if Defendants would agree to
stop making alterations to wheelchair seating areas in these theaters
prior to inspection. Defendants refused to agree, thus necessitating the
present motion. [See]{.underline} accompanying Declaration of John Russ
(hereinafter, "Russ Decl."), at ¶ 4-5.

**FACTUAL BACKGROUND**

7\. On February 4, 2000, the United States provided Defendants with a
list of twelve theaters that it proposed for detailed inspections to
measure the theaters' compliance with the ADA. ([See]{.underline}
Exhibit D, portions of the United States' First Request and the United
States' proposed joint stipulation).[^3] On February 11, 2000, the
United States advised AMC that it considered any attempt to change the
configuration of seating at AMC's theaters, or to otherwise affect these
theaters' accessibility, prior to completion of inspections, as
constituting spoliation of the evidence. The United States specifically
excluded routine maintenance. ([See]{.underline} Exhibit E).

8\. AMC has fought the United States at every step of the process to
keep the\
United States from commencing inspections to measure lines of sight and
other evidence\
related to accessibility at AMC's theaters. When AMC refused to permit
the inspections sought by the United States, the United States moved to
establish conditions for inspections in a\
motion before the Magistrate Judge. On May 25, 2000, the Magistrate
Judge made an oral ruling that he intended to permit inspections at the
twelve theaters identified by the United States. On June 16, 2000, the
Magistrate Judge entered a written order permitting inspections at these
theaters and establishing conditions for the inspections.[^4] Defendants
sought review of the Order before this Court, which affirmed the Order
in its entirety on July 14, 2000. Defendants subsequently filed a writ
of mandamus with the Ninth Circuit, seeking to block the inspections
from going forward. On September 19, 2000, the Ninth Circuit dismissed
Defendants' writ without seeking further briefing. ([See]{.underline}
Exhibit F, Sept. 19^th^ Order).

9\. On June 6, 2000, Defendants offered to permit the United States to
inspect its theaters, as long as the United States would agree
[not]{.underline} to assess audience seating preferences or measure
lines of sight, ([see]{.underline} Exhibit G**,** AMC's June 6^th^
letter), even though one of the central issues in the case is whether
the seats offered to patrons who use wheelchairs provide "lines of sight
comparable to those for members of the general public."
[See]{.underline} 28 C.F.R. pt. 36, App. A, § 4.33.3. [See
also]{.underline} First Am. Compl. at ¶ 19.

10\. The United States informed Defendants on June 15, 2000, that the
extensive restrictions on inspections that Defendants proposed in their
June 6^th^ letter would require multiple trips to AMC's theaters, thus
unnecessarily increasing the expense of the inspections and depriving
the United States of evidence, such as line of sight measurements and
audience seating preferences, that are central to its case.
([See]{.underline} Exhibit H, United States' June 15^th^ letter). The
United States repeated these concerns when Defendants again raised the
issue of multiple trips before this Court during the July 6, 2000,
status conference. Both the Magistrate Judge's June 16^th^ Order and
this Court's July 14^th^ Order have approved the United States' taking
measurements of lines of sight and audience seating preferences at AMC's
theaters.

11\. During the week of September 18th, the United States discovered a
May 30, 2000 document in AMC's production of documents pursuant to
Magistrate Judge Hillman's May 15, 2000, Protective Order. This
document, which includes architectural plans and drawings, proposed
adding and removing wheelchair seating, altering companion seating,
and/or changing the seating layout in eleven of the auditoriums at the
Promenade 16 theater in Woodland Hills---the first theater listed for
inspection under the Magistrate Judge's June 16^th^ Order.
([See]{.underline} Exhibit B, filed separately under seal). The pages of
the documents with layouts of auditoriums at the theater contain the
caption, "Woodland Hills ADA Retro." ([See]{.underline}
[id.]{.underline}).

12\. Upon discovering this document, the United States became concerned
that Defendants might be attempting to affect the United States'
measurements during its inspections, by altering the accessibility
features at the theaters listed for inspection without prior notice to
the United States. On September 21, 2000, the United States sent a
letter to Defendants, requesting that they inform the United States of
any changes, beyond routine maintenance, that they intended to make or
had already made to the seating layout or other accessibility features
at the twelve theaters listed for inspection. The United States also
insisted that, if AMC had already altered any of these twelve theaters,
that it provide the United States with documents discussing the specific
changes that had occurred and the exact conditions of the theater prior
to the alteration. ([See]{.underline} Exhibit I, United States' Sept.
21^st^ letter).

13\. On September 28, 2000, Defendants informed the United States that
"AMC never promised . . . that it would cease improving its facilities"
and that it believes it is free to make "any access improvements to our
facilities." Defendants declined to provide any details as to what
changes, if any, they had already made or were planning to make at these
theaters. ([See]{.underline} Exhibit C, AMC's Sept. 28^th^ letter). On
October 3, the United States asked Defendants' counsel by telephone if
Defendants would refrain from altering the wheelchair spaces and seating
layout at the twelve theaters prior to inspections. Defendants' counsel
refused. The United States informed Defendants' counsel that it would
take this issue before the District Court for resolution.
([See]{.underline} Russ Decl., at ¶ 4-5).

14\. Defendants have erroneously mischaracterized the United States'
request as an attempt to prevent improvements at AMC's theaters.
([See]{.underline} Exhibit C, AMC's Sept. 28 letter). The issue in this
motion is Defendants' obligation to preserve evidence under its control
prior\
to the completion of inspections by the United States at each of the
twelve theaters, mandated by this Court, since at least the time the
United States filed its complaint (January 29, 1999), if not
earlier.[^5] [See]{.underline} [West]{.underline}, 167 F.3d at 779
(requiring preservation of evidence "in pending or reasonably
foreseeable litigation"). Once the United States has completed its
inspections of AMC's theaters, AMC is free to make alterations to each
particular theater, with the exception of the Promenade 16 and the
Norwalk 20 in the Central District of California. During a February 24,
2000, conference call, this Court said that it would resolve at a later
date the question of whether a jury will be permitted to visit one of
these theaters, and Defendants have an obligation not to spoliate or
tamper with any evidence that may be presented to the jury.

15\. Defendants' claims in their September 28, 2000, letter that they
are simply trying to improve their theaters' accessibility is further
undercut by their failure to inform the United States that they intended
to alter their theaters prior to inspections. ([See]{.underline} Exhibit
C). The United States only learned of plans to alter the Promenade 16
when it uncovered the May 30th document among others documents turned
over by AMC; Defendants have since refused to disclose whether those
changes have actually been made, or whether they have altered any of the
other theaters listed for inspection.[^6]

**ARGUMENT**

17\. The standard for determining whether a TRO should be granted is
similar to the standard for a preliminary injunction. [See]{.underline}
[Uarco Inc. v. Lam]{.underline}, 18 F. Supp. 2d 1116, 1120 (D. Hawaii
1998). To obtain a preliminary injunction, the moving party must
demonstrate "either (1) a combination of probable success on the merits
and the possibility of irreparable injury, or (2) that serious questions
are raised and the balance of hardships tips sharply in its favor."
[Chalk v. United States District Court]{.underline}, 840 F.2d 701, 704
(9^th^ Cir. 1988). The grant or denial of a motion for preliminary
injunction "lies within the discretion of the district court, and its
order will be reversed only if the court relied on an erroneous legal
premise or otherwise abused its discretion." [Id.]{.underline} The
United States is likely to succeed on the merits of this motion, in that
altering wheelchair seating areas and other accessibility features at
theaters prior to completion of inspections clearly constitutes
spoliation of the evidence, and the United States will be irreparably
harmed if the evidence is not preserved, because it will not be able to
present the evidence of violations of the ADA as they existed when the
complaint was filed. [Id.]{.underline}

**[Defendants' Actions Clearly Constitute Spoliation of the
Evidence]{.underline}**.

18\. Defendants have an on-going obligation to preserve its property for
use as evidence "in pending or reasonably foreseeable litigation."
[See]{.underline} [West]{.underline}, 167 F.3d at 779. At a minimum,
this means Defendants had an obligation to preserve evidence relating
to\
accessibility at its theaters at least from January 29, 1999, when the
United States filed this lawsuit. Courts seek to deter parties from
spoliating evidence, in part based on the notion that a party who seeks
to destroy evidence is more likely to be threatened by that evidence
than a\
party who does not destroy it. [See]{.underline} [Akiona v. United
States]{.underline}, 938 F.2d 158, 161 (9^th^ Cir. 1991); [see
also]{.underline} [West]{.underline}, 167 F.3d at 779 ("It has long been
the rule that spoliators should not benefit from their wrongdoing. . .
.").

19\. Likewise in this case, Defendants have been on notice that the
United States intended to inspect AMC's theaters for purposes of
gathering evidence relating to AMC's compliance with the ADA. Any effort
to alter that evidence at these theaters---particularly in light of
Defendants' assertion that it lacks as-built drawings that accurately
reflect the theaters' layout---suggests that AMC feared that the
evidence at its theaters was unfavorable to its defense against the
United States' lawsuit.[^7]

20\. The proposed changes in the May 30^th^ document clearly indicate
that AMC is attempting to alter evidence that it unfavorable to its
defense of this lawsuit. For example, in Auditorium ten, the plan calls
for adding two new wheelchair seats in an auditorium that currently has
193 seats and only two wheelchair spaces. ([See]{.underline} Exhibit B,
the eighth unmarked page). Under Standard 4.1.3., auditoriums with
between 51 to 300 seats must have four wheelchair locations. 28 C.F.R.
pt. 36, App. A, § 4.1.3(19). As new construction, auditorium ten should
have had the four locations from the time of its opening. AMC is clearly
trying to improperly affect the outcome of the United States'
inspections, by attempting to bring the number of wheelchair locations
in auditorium ten into compliance with Standard 4.1.3.

21\. The relief sought by the United States is appropriate under the
circumstances. The District Court has "broad discretion in crafting a
proper sanction for spoliation," although the sanction "should be molded
to serve the prophylactic, punitive and remedial rationales underlying
the spoliation doctrine." [West]{.underline}, 167 F.3d at 779; [see
also]{.underline} [Glover]{.underline}, 6 F.3d at 1329("A federal trial
court has the inherent discretionary power to make appropriate
evidentiary rulings in response to the destruction or spoliation of
relevant evidence."); [Donato v. Fitzgibbons]{.underline}, 172 F.R.D.
75, 81 (S.D.N.Y. 1997) ("It is well settled that the Court has the
inherent power to sanction a party that destroys relevant and
discoverable evidence."). The injunction sought by the United States
would prevent further destruction and alteration of evidence at the
theaters listed for inspection. Furthermore, ordering Defendants to
identify\
what changes they have made since at least January 29, 1999, and the
exact condition of the theaters prior to those alterations, would
restore "the prejudiced party \[here, the United States\] to the same
position he would have been in absent the wrongful destruction of
evidence by the opposing party."[^8] [West]{.underline}, 167 F.3d at 779
(quoting [Kronisch v. United States]{.underline}, 150 F.3d 112, 126 (2d
Cir. 1998)); [see also]{.underline} [Donato]{.underline}, 172 F.R.D. at
81-82.

**[The United States Will Suffer Irreparable Injury If the Spoliation Is
Not Stopped]{.underline}.**

22\. Because Defendants have told the United States that they lack
accurate as-built plans of their theaters, the United States has no way
of knowing whether the plans that AMC has turned over to the United
States actually reflect how each theater was constructed. The United
States sought inspections in part to accurately record the design and
layout of AMC's theaters, and to measure AMC's compliance with the ADA
and its implementing regulations. The United States' ability to collect
evidence is undermined if Defendants are free to attempt to alter those
theaters prior to the completion of inspections. Without as-built
drawings to compare the original state of the theaters, the United
States will have no way of distinguishing whether the measurements it is
taking reflect the actual state of theaters at the time it filed its
complaint or whether the measurements have been affected due to
post-litigation attempts by Defendants to lessen the extent of their ADA
violations at their theaters. The United States, and the public interest
in assuring that newly constructed theaters are accessible, will be\
irreparably harmed if Defendants do not identify the changes they have
made and are not enjoined from further spoliation.

**[The Balance of Hardships Tips Strongly in the United States'
Favor]{.underline}**.

23\. As noted above, the United States will be irreparably harmed by
Defendants' failure to cease spoliating the evidence. Defendants, in
contrast, are simply being asked to hold off altering accessibility
features at these theaters until the inspections for those theaters are
completed (with the exceptions of Norwalk and Promenade, where
Defendants are being asked to hold off until such time as either a jury
has the chance to visit those theaters, or this Court determines that
such a visit will not occur). Given that these theaters, as new
construction, should have been in compliance from their very opening
([see]{.underline} discussion above), asking Defendants to temporarily
delay making alterations at these theaters until the United States can
accurately record evidence does not present any burden or hardship on
Defendants. ([See]{.underline} Exhibit J, United States' Oct. 2, 2000
letter).

**CONCLUSION**

For the foregoing reasons, the United States asks the Court to issue a
temporary restraining order, preventing Defendants from further
spoliating evidence of seating layout and accessibility at the twelve
theaters listed for inspection in Magistrate Judge Hillman's June 16^th^
Order. The United States also asks the Court to enjoin Defendants to
identify what changes they have made since January 29, 1999, to the
theaters listed for inspections and the exact condition of those
theaters prior to the alterations. The United States also requests this
Court to issue an order for Defendants to show cause as to why the TRO
should not become a preliminary injunction, until the United States'
inspections at AMC's theaters are completed.

**Respectfully submitted,**

BILL LANN LEE

Assistant Attorney General, Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section, Civil Rights Division

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

JEANINE M. WORDEN

JOHN ALBERT RUSS IV

PHYLLIS COHEN

Trial Attorneys, Disability Rights Section

Civil Rights Section, U.S. Department of Justice

Post Office Box 66738

Washington, D.C. 20035-6738

Telephone: (202) 353-7738

Telephone: (202) 514-3882

Facsimile: (202) 307-1198

Counsel for Plaintiff

United States of America

Dated: October 4, 2000

**PROOF OF SERVICE**

I, John A. Russ IV, declare:

I am over the age of 18 and not a party to the within action. I am
employed by the U.S. Department of Justice, Civil Rights Division,
Disability Rights Section. My business address is P.O. Box 66738,
Washington, D.C. 20035-6738.

On October 4, 2000, I served

> **PLAINTIFF UNITED STATES' MEMORANDUM IN SUPPORT OF ITS [EX
> PARTE]{.underline} APPLICATION FOR A TEMPORARY RESTRAINING ORDER TO
> PREVENT SPOLIATION OF THE EVIDENCE BY DEFENDANTS**

on each person or entity named below by sending a facsimile copy to
their office, and by enclosing a copy in an envelope addressed as shown
below and depositing the same with common carrier Federal Express for
overnight delivery.

Date and Place of service: October 4, 2000, Washington, D.C.

Person(s) and/or Entity(ies) to Whom mailed:

Robert J. Harrop, Esq. Gregory F. Hurley, Esq.

Lathrop & Gage Kutak Rock

Suite 2500 620 Newport Ctr. Drive

2345 Grand Boulevard Suite 450

Kansas City, Missouri 64108-2684 Newport Beach, CA 92660

I declare under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct.

Executed on: October 4, 2000, at Washington, D..C.

[                                        ]{.underline}

John A. Russ IV

[^1]: The United States has previously filed this document under seal
    with the Magistrate Judge and provided a courtesy copy, under seal,
    to this Court.

[^2]: The United States is not attempting to prohibit routine
    maintenance, such as replacing a single seat when it becomes broken.
    Changing the seating layout to add or subtract wheelchair seating
    locations, or altering the layout of seats around the wheelchair
    spaces to affect access to those wheelchair spaces, are clearly not
    examples of routine maintenance.

[^3]: The United States filed an amended request to permit entry on
    February 15, 2000, listing the same theaters for inspection. The new
    version listed the order in which the United States sought to
    conduct inspections.

[^4]: [See]{.underline} Order Granting in Part and Denying in Part the
    United States' Motion for Order Establishing Conditions for the
    United States' Inspection of AMC Theaters (entered June 16, 2000).

[^5]: The United States conducted very short inspections of Norwalk and
    Woodland Hills on August 6-7, 1997. At that point, AMC was arguably
    on notice that litigation over its compliance with the ADA was
    "reasonably foreseeable." [See]{.underline} [West]{.underline}, 167
    F.3d at 779.

[^6]: Under Section 303 of the ADA, Defendants have an obligation to
    design and construct all of their new stadium-style theaters to be
    "readily accessible to and usable by individuals with disabilities"
    from their opening. [See]{.underline} 42 U.S.C. § 12183; [see
    also]{.underline} 28 C.F.R. pat 36, App. A, § 4.1 ("All areas of
    newly designed or constructed buildings and facilities . . . shall
    comply with these guidelines"); [see also]{.underline} 28 C.F.R. §
    36.401 (defining new construction as "facilities for first occupancy
    after January 26, 1993\"). To the extent Defendants' September 28,
    2000, letter (Exhibit C) admits that AMC's stadium-style theaters
    need "improving" to better comply with the ADA, Defendants are
    effectively admitting that these theaters---all of which are new
    construction as defined by 28 C.F.R. § 36.401--- were not in
    compliance with the ADA and its regulations at the time the United
    States filed its complaint.

[^7]: AMC could have avoided this motion by simply providing final "as
    built" blueprints for the theaters in question, along with detailed
    plans describing the changes to the accessible features of these
    theaters. AMC has maintained, however, that it does not have any "as
    built" blueprints for its theaters.

[^8]: At the appropriate time, the United States will also seek an
    instruction allowing the jury to draw an adverse inference against
    the Defendants for attempting to change their theaters prior to
    inspections. "Generally, a trier of fact may draw an adverse
    inference from the destruction of evidence relevant to a case."
    [Akiona]{.underline}, 938 F.2d at 161. In this case, the jury can
    properly infer that Defendants would not be attempting to alter
    their theaters' wheelchair spaces, prior to inspections, unless they
    feared that they were not in compliance with the law. Under Ninth
    Circuit precedent, a finding of bad faith is [not]{.underline} a
    prerequisite for drawing such an adverse inference; "simple notice"
    to Defendants of the evidence's potential relevance to the
    litigation will suffice. [Glover]{.underline}, 6 F.3d at 1329.