Number range CHAPTER

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

§

§

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

§

Plaintiff § Hon. Donald C. Nugent

§

v\. § **PLAINTIFF UNITED STATES'**

§ **OPPOSITION TO DEFENDANT\'S**

CINEMARK USA, INC., § **MOTION FOR PROTECTION,**

§ **MOTION TO QUASH SUBPOENAS**

Defendant. § **SERVED ON THIRD PARTY**

§ **ARCHITECTS**

§

Defendant attempts to obfuscate the basic, simple issue before this
Court - whether the information sought by the United States in the third
party subpoenas duces tecum served upon TK Architects and the Beck Group
is necessary and relevant to the claims or defenses of the parties in
the above-captioned action and therefore is discoverable.
[See]{.underline} Defendant's Third Motion for Protection, Motion to
Quash Subpoenas served upon Third Party Architects, and supporting brief
(hereinafter "Cinemark's Motion to Quash")(Docket No. 138).[^1] The
United States\' Complaint in this action alleges that Cinemark has
engaged in a pattern or practice of violating Title III of the ADA, 42
U.S.C. §§ 12181-12189, in the design, construction, and operation of
movie theaters with stadium-style seating across the country. Complaint
¶¶ 1-2, 19, 24. ECF docket #123, attachment #1. In the subpoenas duces
tecum at issue, the United States seeks information from third party
architects who worked with Cinemark in the design and construction of
its stadium style movie theaters regarding, in pertinent part, the
decisions that were made when designing and constructing these theaters,
including Texas Accessibility Standards ("TAS") related decisions.
Cinemark has filed a broad objection to the production of these
documents, raising vague, often half-articulated objections and
unsupported claims of privilege and protection in support of its
on-going efforts to thwart almost all discovery necessary and relevant
to prove the United States' pattern or practice claim against Cinemark.

However, this Court does not have jurisdiction to entertain that portion
of Cinemark's Motion to Quash seeking to quash discovery of documents
requested of the Beck Group because that subpoena issued from the
Northern District of Texas. The United States District Court for the
Northern District of Texas is the only court with jurisdiction to review
a motion to quash a subpoena duces tecum issued by that court. Also,
with regard to the documents sought from both third party architects, no
legitimate claims of Cinemark's privilege or confidentiality applies to
these documents. In addition, Cinemark does not have standing to
complain that the discovery is irrelevant, overbroad or creates an undue
burden on the third party architects. It is beyond serious question that
the information sought by the United States from Cinemark's architects
is relevant to the claims and defenses of the parties in this
litigation. Moreover, TK Architects has already agreed to produce almost
all of the requested documents. As such, Cinemark's Motion to Quash
should be denied.

A.  **THIS COURT DOES NOT HAVE JURISDICTION TO REVIEW THE MOTION TO
    QUASH THE SUBPOENA FOR THIRD PARTY ARCHITECT THE BECK GROUP**

Pursuant to Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure, a
motion to quash or modify a subpoena must issue form the court from
which the subpoena was issued. *See also* 9A Charles A. Wright and
Arthur R. Miller, Federal Practice and Procedure, § 2459 (1995)("The
1991 amendments to Rule 45(c) now make it clear that motions to quash,
modify, or condition the subpoena are to be made to the district court
of the district from which the subpoena issued. It is the issuing court
that has the necessary jurisdiction over the party issuing the subpoena
and the person served with it to enforce the subpoena."); [In re Digital
Equipment Corp.]{.underline}, 949 F.2d 228, 230-231 (8^th^ Cir. 1991) .
As the subpoena seeking production of documents for the Beck Group was
issued by the United States District Court for the Northern District of
Texas, where the Beck Group is located, that court, and only that court,
properly has jurisdiction over a motion to quash the Beck's Group
subpoena duces tecum. [^2] As such, Cinemark's Motion to Quash with
regard to the Beck group's subpoena duces tecum must be dismissed.

B.  **CINEMARK'S OBJECTIONS TO PRODUCTION OF DOCUMENTS BY THE THIRD
    PARTY ARCHITECTS ARE WITHOUT MERIT AND SHOULD BE DENIED**

In its Motion to Quash, Cinemark has raised several specious objections
to the documents requested in the third party subpoenas against TK
Architects and the Beck Group.[^3] Cinemark erroneously and summarily
complains that the United States seeks documents protected by a common
interest privilege, work product privilege and attorney client privilege
and that certain documents contain certain amorphous confidential
business dealings. Finally, Cinemark also claims that the discovery
requests are irrelevant, overly broad and objectionable - all arguments
it has no standing to raise.

Rule 45(c)(3)(A) of the Federal Rules of Civil Procedure permits a court
to quash or modify a subpoena in four limited situations: (i) if the
subpoena fails to allow a reasonable time for compliance; (ii) if the
subpoena requires a non party to travel more than 100 miles to produce
the requested documents; (iii) if the subpoena requires disclosure of
privileged or other protected matter and no exception or waiver applies;
or (iv) if the subpoena subjects a person to undue burden. A party, in
contrast to the entity toward whom the third party subpoena duces tecum
is directed, only has standing to object to production of documents
containing privileged or other protected matter; it does not have
standing to raise objections based upon relevancy, undue burden or the
alleged broadness of the document request. 9A Charles A. Wright and
Arthur R. Miller, Federal Practice and Procedure, § 2459 (1995)( "A
motion to quash, or for a protective order, should be made by the person
from whom the documents or things are requested. Ordinarily a party has
no standing to seek to quash a subpoena issued to someone who is not a
party to the action unless the party claims some personal right or
privilege with regard to the documents sought").[^4] Cinemark expressly
acknowledges these limitations upon its ability to object to the third
party subpoenas when it cites authority contrary to its own motion that
demonstrates that Cinemark only has standing to raise legitimate claims
of privilege and/or personal right limited to the Cinemark corporation
when objecting to third party subpoenas duces tecum. *See* Motion to
Quash at p. 5.

1.  **The documents subject to the subpoenas duces tecum do not contain
    privileged material requiring protection**[^5]

Cinemark raises summary objections to the subpoenas duces tecum based,
in pertinent part, on specious, summary claims of common interest
privilege, attorney client privilege, and work product privilege
regarding both TK Architects and the Beck Group's identical Request No.
11.[^6] Request No. 11 seeks "All documents relating, referring to, or
discussing the Department of Justice's ("DOJ") ongoing investigation and
litigation related to Cinemark stadium-style movie theater projects or
other companies' stadium-style movie theaters." See Motion to Quash,
(Docket No. 138, attachments 2 and 3). Cinemark does not articulate any
reasons or rationales as to why such communications are privileged, nor
does it attempt to identify any specific documents subject to such
privileges, including, inexplicably, how documents in the architectural
firms\' possession regarding "other companies' stadium-style movie
theaters" could raise any possible claim of privilege flowing to
Cinemark. Rather, Cinemark simply raises a blanket claim of
attorney-client privilege and work product privilege - and in a footnote
asserts, without further elucidation, a claim of common interest
privilege. These claims of privilege are especially perplexing and
erroneous because there is no legitimate common interest privilege,
attorney-client privilege, or work product privilege Cinemark can claim
to documents either it did not create, or did create but shared with
third parties who do not have identical interests with Cinemark, and who
are not parties to this litigation. *See also* United States' Second
Motion to Compel (Docket No. 60). Cinemark's spurious claims of
privilege and the summary manner in which such claims are made
demonstrate its fundamental misunderstanding of both the showing
necessary to support claims of privilege and protection and the proper
scope and breadth of these privileges.

The party seeking to claim privilege holds the burden of proof. [Matter
of Bevill, Bressler & Schulman Asset Management Corp.]{.underline}, 805
F.2d 120, 123 (3^rd^ Cir. 1986). *See also* [United States v.
Dakota]{.underline}, 197 F.3d 821, 825 (6th Cir. 1999) (the party
asserting the discovery privilege has the burden of establishing its
existence). Moreover, summary unsupported claims of privilege, as
Cinemark has raised here, without detailed descriptions of the documents
sought and explanations of how such documents are privileged, are
insufficient to prove privilege and on this basis alone Cinemark's
motion should be denied. The entity seeking protection from production
based upon "a claim that it is privileged or subject to protection as
trial preparation materials . . . shall be made expressly and shall be
supported by a description of the nature of the documents,
communications, or things not produced that is sufficient to enable the
demanding party to contest the claim." Fed. R. Civ. P. 45(d)(2).[^7]
Moreover, as the Advisory Committee Note to Rule 45(d), explains "\[Rule
45(d)(2)'s\] purpose is to provide a party whose discovery is
constrained by a claim of privilege or work product protection with
information sufficient to evaluate such a claim and to resist if it
seems unjustified. The person claiming a privilege or protection cannot
decide the limits of \[the United States'\] own entitlement.[^8]

Even if Cinemark had provided information sufficient to assert its claim
of privilege, such privileges do not apply to the documents requested in
the contested subpoenas. Neither TK Architects nor the Beck Group are
litigants or potential litigants in this action, nor are its interests
identical to Cinemark's regarding the United States' investigation and
litigation of Cinemark's stadium style theaters or other companies'
stadium style theaters. As such, these documents are not, and could not
be, protected by any common interest privilege.

The joint-defense/common interest privilege is an extension of the
attorney client privilege that enables counsel for clients facing a
common litigation opponent to exchange privileged communications in
order to adequately prepare a defense without waiving either privilege.
[Haines v. Liggett Group, Inc.]{.underline}, 975 F.2d 81, 94 (3^rd^ Cir.
1992); [International Surplus Lines Insurance Co. v. Willis Corroon
Corp.]{.underline}, 1992 WL 345051, \*7 (N.D. Ill. Nov. 12, 1992);
[Western Fuels Ass\'n, Inc. v. Burlington N. R.R.]{.underline}, 102
F.R.D. 201, 203 (D.Wyo.1984). In order for a litigant to claim the
privilege for documents transmitted to and from a third party, the
litigant must prove that there is anticipated litigation[^9] against the
third party. [See]{.underline} [In re Dayco Corporation Derivative
Securities Litigation]{.underline}, 99 F.R.D. 616, 622 (S.D. Ohio 1983)
(the joint defense privilege is limited to \"disclosure of privileged
information by an attorney to actual or potential codefendants"). [See
also]{.underline} [Allendale Mutual Insurance Co. v. Bull Data Systems,
Inc.]{.underline}, 152 F.R.D. 132, 140-141 (N.D. Ill. 1993) ("\[A\]
necessary precondition for the common interest doctrine to apply is that
the common interest arise as a result of impending or anticipated
litigation"). In addition, the joint defense doctrine only applies where
the legal interests of the parties are identical. [See]{.underline}
[Allendale Mutual Insurance Co.]{.underline}, 152 F.R.D. at 140 (for the
joint defense doctrine to apply, the legal interest must be identical,
not similar); [DuPlan Corp. v. Deering Milliken, Inc.]{.underline}, 397
F.Supp. 1146, 1172 (D.S.C. 1974) (same). [See]{.underline}
[also]{.underline} [U.S. v. Am. Tel. & Tel. Co.]{.underline}, 642 F.2d
1285, 1299 (D.C. Cir. 1980) (common interest necessitates anticipating
litigation against a common adversary on the same issue or issues).[^10]

In the present action, there is no pending litigation by the United
States against either architectural firm subject to the third party
subpoenas and the time for adding additional defendants is long past.
Also, the instant case is about the failure of an owner and operator of
stadium-style movie theaters to design, construct, and operate its
theaters such that individuals who use wheelchairs have the opportunity
to view movies with comparable lines of sight to those patrons who do
not use wheelchairs. The third party architectural firms are not owners
or operators of stadium-style movie theaters; they simply design such
theaters. As such, the two architectural firms' legal interests are not
identical to those of Cinemark.[^11]

Moreover, third party disclosures automatically waive any claims to
attorney-client privilege or work product privilege, unless a joint
defense can be established. [See]{.underline} [In re
Lindsey]{.underline}, 158 F.3d 1263, 1282, (D.C. Cir. 1998) (disclosure
of attorney-client or work product confidences to third parties waives
the protection unless common interest privilege applies); [United States
v. McPartlin]{.underline}, 595 F.2d 1321, 1336-37 (7^th^ Cir. 1979),
[cert.]{.underline} [denied]{.underline}, 444 U.S. 833 (1980) (once
third party disclosure occurs, then privileges are waived, unless a
common interest argument can successfully be made). [See]{.underline}
[also]{.underline} [In re Grand Jury Investigation No.
83-2-35]{.underline}, 723 F.2d 447 (6th Cir. 1983) (the general rule is
that material which is otherwise privileged is discoverable if it has
been disclosed to a third party); [United States v.
Lawless]{.underline}, 709 F.2d 485, 487 (7^th^ Cir. 1983) (same); [In re
Horowitz]{.underline}, 482 F.2d 72, 81 (2^nd^ Cir. 1973) (same),
[cert.]{.underline} [denied]{.underline}, 414 U.S. 867 (1973). As
previously demonstrated, because the architectural firms are not and
will not be parties to this litigation, do not share identical interests
with Cinemark, and do not face the same legal obligations as an owner
and operator of a public facility, any communications between Cinemark
and the architectural firms, much less between the architectural firms
and other stadium style theater companies, are not protected by a joint
defense privilege. Thus, Cinemark cannot freely exchange documents with
these third parties and then validly claim privilege for those
documents.[^12]

In addition, the documents sought, regarding the Department of Justice's
ongoing investigations and litigation related to Cinemark's stadium
style movie theaters and other companies\' stadium style movie theaters,
are necessary to demonstrate: what knowledge Cinemark had, and when,
regarding the requirements of Section 4.33.3 of the Standards for
Accessible Design; whether Cinemark knew or should have known that
comparable lines of sight included factors other than obstruction and
when it knew that; whether Cinemark knew or should have known that its
stadium style theaters did not provide lines of sight to individuals in
wheelchairs and their companions comparable to those provided its other
patrons; and whether it knew or should have known that certain of its
stadium style theaters erected in Texas did not, in fact, comply with
the TAS and so do not evidence compliance with the ADA, rebutting the
presumption of compliance with the ADA for those Texas theaters.

2.  **The documents sought pursuant to the subpoenas duces tecum do not
    contain confidential information**

Nor can Cinemark prevail in its novel claim that protection should be
granted regarding the requests for production of documents containing
supposed "confidential business dealings." *See* Motion to Quash, p. 10.
Cinemark claims that the United States' request to the third party
architects to produce certain documents - concerning professional fees,
including invoices, contracts or billings by project, contracts and
their riders and addendums, subcontracts, and the identity and
professional position of TK Architects who worked on design issues for
Cinemark's stadium style movie theaters - contain confidential business
dealings and so should be protected. [Id.]{.underline} Once again,
Cinemark makes no effort to explain how such documents contain
"confidential business dealings" requiring this Court's protection nor
does it cite to any case law or precedent in support.[^13] As stated
previously, such blanket assertions, without more, do not suffice to
satisfy Cinemark's burden to prove that such information should be
protected.[^14] Furthermore, such information is necessary and relevant
to the United States' claims inasmuch as the requested information could
show which entity made certain decisions and the basis upon which such
decisions were made, and how much business Cinemark channeled to the
architecture firms, which would be necessary to show any bias. The names
and titles of architects who worked on Cinemark's projects also is
necessary to assist the United States in identifying potential
deponents.

3.  **Cinemark has no standing to object, as it does here, that the
    production of documents by TK Architects is irrelevant, overly broad
    and imposes an undue burden**

Cinemark seeks to quash the subpoenas on the basis that such document
requests are irrelevant, overly broad and create an undue burden on
these third party architects.[^15] However, as the discussion *supra*
demonstrates, except in limited instances wherein legitimate claims of
privilege or protection are raised, a motion to quash, or for protective
order, can only be made by the person from whom the documents are
requested. As such, Cinemark has no standing to object on the basis of
relevancy, scope or undue burden to the information requested in the
third party subpoenas. Moreover, the only subpoena which issued from
this Court and for which this Court has jurisdiction, *see* discussion
*supra*, was to TK Architects, and it has already agreed to produce most
all of the requested information.

In addition, assuming *arguendo* that Cinemark had standing to seek to
quash TK Architect's (or the Beck Group's) subpoena duces tecum on
grounds of relevancy, which it does not, the information sought by the
subpoenas is clearly relevant. *See* *infra* at p.10. Major issues still
must be resolved in this pattern or practice case alleging violations of
Title III of the ADA.[^16] As such, discovery of the requested material
is necessary and relevant to prove the United States' claim that
Cinemark engaged in a pattern or practice of ADA violations.[^17]

Cinemark, however, tries to artificially restrict the United States to
discovery limited to two discrete issues: the extent to which lines of
sight must be similar for wheelchair patrons in stadium style theaters;
and whether Cinemark relied on any previous advice and representations
by the government in order to decide whether or not any relief to be
accorded will apply on a prospective basis only. *See* Motion to Quash,
pp. 6-7. It then claims that "No other discovery concerning Cinemark,
including discovery on TK Architects or The Beck Group, is required
pursuant to the Sixth Circuit's decision. Cinemark inexplicably and
intentionally ignores the broad scope of the pending allegations against
Cinemark[^18] and the fact that these claims are still very much alive
in this litigation.[^19]

Furthermore, the amount of discovery a plaintiff may properly obtain is
not limited by Defendant's biased views regarding the merits, or the
extent, of plaintiff's case.[^20] A far more generous standard applies.
Rule 26(b)(1) of the Federal Rules of Civil Procedure, as amended on
December 1, 2000, provides, in pertinent part, that "Parties may obtain
discovery regarding any matter, not privileged, that is relevant to the
claim or defense of any party . . . Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence." Charles Alan Wright &
Arthur R. Miller, [Federal Practice and Procedure]{.underline}, § 2008
(2002) (the present standard, "relevant to the claim or defense of any
party is still a very broad one); [Leon]{.underline} v. [County of San
Diego]{.underline}, 202 F.R.D. 631, 634 (S.D.Cal. 2001). While this
amendment narrows somewhat the scope of the previous Rule 26(b), which
permitted discovery relevant to the subject matter involved in the
pending action, the Advisory Committee Notes to the 2000 Amendments
recognize that the "dividing line between information relevant to the
claims and defenses and that relevant only to the subject matter of the
action cannot be defined with precision. A variety of types of
information not directly pertinent to the incident in suit could be
relevant to the claims or defenses raised in a given action. . . . "
Fed. R. Civ. Pro. at pp.158-59. In fact, the amendment to Rule 26(b)(1)
still leaves intact the broad scope of discovery available to parties.
[See]{.underline} [Anderson v. Hale]{.underline}, No. 00 C 2021, 2001 WL
503045, at \*3 (N.D. Il., May 10, 2001)("The minimal showings of
relevance and admissibility hardly pose much of an obstacle for an
inquiring party to overcome even considering the recent amendment to
Rule 26(b)(1)"); [Jones]{.underline} v. [Rent-A-Center]{.underline},
2002 WL 924833, \*1-2 (D. Kan. May 2, 2002) (finding that, even under
the 2000 Amendments to Rule 26(b), the relevancy of a discovery request
is to be broadly construed and that "a request for discovery should be
considered relevant if there is 'any possibility' that the information
sought may be relevant to the claim or defense of any party").

**CONCLUSION**

For the forgoing reasons, Cinemark's Motion to Quash should be denied.

Respectfully submitted,

> R. ALEX ACOSTA
>
> Assistant Attorney General
>
> Civil Rights Division
>
> JOHN L. WODATCH, Chief
>
> RENEE M. WOHLENHAUS, Deputy Chief

PHILIP M. BREEN, Special Litigation Counsel

> Disability Rights Section

Dated: April 27, 2004 [/s/ Kathleen S. Devine]{.underline}

> PHYLLIS M. COHEN

KATHLEEN S. DEVINE

ANGELA N. LIANG

Trial Attorneys

Disability Rights Section

950 Pennsylvania Avenue, NW

Washington, DC 20530

Disability Rights Section

Telephone: (202) 514-3882

Facsimile: (202) 307-1197/98

Email: kathleen.s.devine@usdoj.gov

> Counsel for Plaintiff United States of America

[^1]: ^?^While this motion is styled as a Motion for Protection and to
    Quash, it is primarily a motion to quash. *See* [id.]{.underline}

[^2]: ^?^Cinemark notes that the subpoena duces tecum for TK Architects
    is procedurally defective as it issued from this Court instead of
    from the district court in which TK Architects has its principal of
    business. *See* Motion to Quash, p. 7, n. 9. TK Architects, the only
    entity with standing to make this argument, has already agreed to
    produce documents sought by the relevant subpoena. *See* letter of
    March 12, 2004 from G. William Quatman to Phyllis M. Cohen, attached
    as Exhibit 1.

[^3]: ^?^As the discussion [supra]{.underline} demonstrates, this Court
    has no jurisdiction to entertain the motion to quash the subpoena
    for the Beck Group. However, the arguments raised in the remainder
    of this brief with regard to Cinemark's failure to allege or
    demonstrate legitimate claims of privilege or confidentiality
    requiring this Court's protection, and Cinemark's lack of standing
    to contest the relevancy or scope of the documents sought by the
    United States from third parties apply to the Beck subpoena as well.

[^4]: ^?^*See* [EEOC]{.underline} v. [Danka Industries,
    Inc.]{.underline}, 990 F. Supp. 1138, 1141 (E.D. Mo. 1997);
    [Brown]{.underline} v. [Braddick]{.underline}, 595 F. 2d 961, 967
    (5^th^ Cir. 1979); [QC Holdings, Inc.]{.underline} v.
    [Diedrich]{.underline}, 2002 WL 334281 (D. Kan. 2002).

[^5]: ^?^While Cinemark asserts that it seeks "protection . . . with
    respect to requests for production concerning compliance with ADAAG
    or TAS provisions other than Section 4.33.3," *see* Motion to Quash,
    p.8, its objections are based upon relevancy grounds (it claims the
    requests are overly broad and improper), not on grounds that some
    privilege is implicated. As the discussion *infra* demonstrates,
    Cinemark does not have standing to raise such objections. Also,
    Cinemark's objections notwithstanding, such information is relevant.
    Cinemark implies that this Court, in its Order of October 23, 2000,
    expressly prohibited production of information other than that
    regarding compliance or interpretation of Section 4.33.3.
    [Id.]{.underline} at p. 10. That is not accurate. Both that Order
    and this Court's previous Order of March 22, 2000 (Docket No. 46)
    expressly ordered Cinemark to produce documents in relation to ADA
    compliance generally. Moreover, that Order was limited, in part,
    because of offers by the United States to limit production at that
    time to documents regarding the appropriate interpretation of, and
    compliance with, Section 4.33.3. However, this Court also said that
    the original request, which covered documents related to compliance
    with the ADA, was \"in large part\" appropriate to the case. Now,
    the decision by the Sixth Circuit in this case has put into question
    the reliance by Cinemark on the TAS inspector's certification making
    discovery on those issues relevant and necessary. [United
    States]{.underline} v. [Cinemark]{.underline}, 348 F.3d 569, 581-83
    (6^th^ Cir. 2003).

[^6]: ^?^Cinemark failed to make any effort to contact the United States
    to discuss the issues raised herein prior to filing for the instant
    protective order nor is its Motion to Quash accompanied by the
    required certification of any good faith efforts to resolve these
    issues. Hence, its motion for protective order is defective and
    should be dismissed.

[^7]: ^?^*See* [Schorr]{.underline} v. [Briarwood Estates Ltd.
    Partnership]{.underline}, 178 F.R.D. 488, 491 (N.D. Ohio 1998)(party
    seeking protection has the burden of making a specific and
    documented fatual showing with regard to which claims of protection
    apply.)

[^8]: ^?^A person claiming a privilege or protection who fails to
    provide adequate information about the privilege or protection claim
    to the party seeking the information is subject to an order to show
    cause why that person should not be held in contempt under
    subdivision (e). Motions for orders and responses to them are
    subject to the sanctions provisions of Rules 7 and 11.
    [Id.]{.underline}

[^9]: ^?^While some Courts have extended the joint defense doctrine to
    situations where the third party merely anticipates litigation, most
    of the case law discussing and interpreting the joint defense
    doctrine discusses the doctrine\'s applicability to co-parties to a
    current litigation sharing confidential communications as part of a
    joint effort to establish a common defense. [See]{.underline}
    [e.g.]{.underline}, [USA v. McPartlin]{.underline}, 595 F.2d 1321
    (7^th^ Cir. 1979); [Continental Oil Co. v. United
    States]{.underline}, 330 F.2d 347 (9^th^ Cir. 1964); [Polycast Tech.
    Corp. v. Uniroyal, Inc.]{.underline}, 125 F.R.D. 47 (S.D.N.Y. 1989);
    [Ohio-Sealy Mattress Mfg. v. Kaplan]{.underline}, 90 F.R.D. 21
    (N.D.Ill. 1980); [In re Grand Jury Subpoena]{.underline}, 406
    F.Supp. 381 (S.D.N.Y. 1975).

[^10]: ^?^Nor can Cinemark legitimately claim attorney-client privilege
    or work product privilege over these documents. The Sixth Circuit
    has held that a communication is protected by the attorney-client
    privilege: \"(1) where legal advice of any kind is sought (2) from a
    professional legal adviser in his capacity as such, (3) the
    communications relating to that purpose, (4) made in confidence (5)
    by the client, (6) are at his instance permanently protected (7)
    from disclosure by himself or by the legal adviser, (8) unless the
    protection is waived.\" [Reed v. Baxter]{.underline}, 134 F.3d
    351,355-56 (6^th^ Cir. 1998). With respect to the documents sought
    by the United States, the only attorney-client privilege that could
    possibly exist would be communications between TK Architects and its
    own counsel, not Cinemark's, regarding legal advice or
    communications or between the Beck Group and its own counsel
    regarding legal advice -- and which also satisfied the other
    criteria established by the Sixth Circuit. No such privilege has
    been raised at this point. [See]{.underline} [Royal Surplus Line
    Insurance Co. v. Sofamor Danek Group Inc.]{.underline}, 190 F.R.D.
    505, 513 (W.D. Tenn. 1999) (there is no attorney-client privilege
    where there is no attorney involved); [Allendale]{.underline}, 152
    F.R.D. at 137 (same).

    Moreover, Cinemark's claim of work product privilege is also
    erroneous. "The work product privilege protects the work of the
    attorney done in preparation for litigation." [In re Grand Jury
    Proceedings]{.underline}, 33 F.3d 342 (4^th^ Cir. 1994). Once a
    document is shared with the third party architects (and the joint
    defense privilege is found inapplicable, as it is here), any claims
    for work product are waived. [See]{.underline} [In re
    Lindsey]{.underline}, 158 F.3d at 1282; [McPartlin]{.underline}, 595
    F.2d at 1336-37.

[^11]: ^?^Cinemark, who has the burden to prove that these privileges
    apply, *see* discussion *supra*, has offered no evidence that
    demonstrates that the third parties in this instance, TK Architects
    and the Beck Group, face identical legal issues in this case and
    absent such showing, Cinemark can not simply conceal documents
    behind spurious claims of privilege. [Matter of Grand Jury
    Subpoena]{.underline}, 406 F.Supp. at 389 (burden is on the party
    asserting the applicability of the joint defense privilege to
    demonstrate that the clients reasonably believed that their
    statements were being made within the context and in furtherance of
    their joint defense).

[^12]: ^?^Furthermore, even if Cinemark intended to maintain a privilege
    when it shared documents with the architectural firms, the
    disclosure itself is sufficient to waive the privilege. [United
    States]{.underline} v. [Mass. Inst. of Tech.]{.underline}, 129 F.3d
    681, 684 (1^st^ Cir. 1997) (while a client\'s intent to maintain a
    privilege is ordinarily necessary to continued protection, it is not
    sufficient).

[^13]: ^?^Moreover, even if Cinemark had properly pled that such
    documents were protected, such protection is not absolute. Rather,
    Rule 45(c)(3)(B)(i) of the Federal Rules of Civil Procedure provides
    that, with respect to disclosure of a trade secret or other
    confidential research, development, or commercial information, a
    court may protect that person with a motion to quash, modify or
    protect by ordering production only upon specified conditions. It is
    well-settled that "there is no absolute privilege for trade secrets
    and similar confidential information." Charles Alan Wright & Arthur
    R. Miller, [Federal Practice and Procedure]{.underline}, § 2043
    (1994). However, in the instant case, Cinemark does not even allege
    that these documents contain trade secrets or other confidential
    research, development, or commercial information.

[^14]: ^?^*See* [Schorr]{.underline}, 178 F.R.D. at 488.

[^15]: ^?^Cinemark also complains that these requests for production are
    duplicative of prior document requests to Cinemark, *see* Motion to
    Quash, pp. 2-3, 7-8, conveniently ignoring that Cinemark has failed
    to produce much of the discovery propounded by the United States.
    The only discovery Cinemark has produced to date are some as-built
    architectural plans, some TAS documents, documents created by the
    United States and NATO documents. *See* Plaintiff United States'
    Reply Brief in Support of Its Renewed Motion to Compel Discovery and
    to Reschedule In Camera Review, pp. 3, n4, 5, n.6 (Docket No.131);
    Plaintiff United States' Supplemental Brief in Support of Its
    Renewed Motion to Compel Discovery and to Reschedule In Camera
    Review, p.4.(Docket No. 125).

[^16]: ^?^Examples of outstanding issues include, in pertinent part:
    whether Cinemark provided its wheelchair patrons and their companion
    with lines of sight comparable to that offered to its other patrons;
    whether Cinemark knew or should have known that its stadium style
    theaters nationwide did not comply with the ADA; whether Cinemark's
    theaters within the jurisdiction of the Fifth Circuit did provide
    its wheelchair patrons and their companions with unobstructed views
    to the screen; whether its theaters in Texas were actually
    constructed in compliance with TAS; whether Cinemark knew or should
    have known, either from its third party architects or other
    entities, that its stadium style theaters in Texas did not actually
    comply with TAS. Such information with regard to stadium style
    theaters located within the jurisdiction of the Fifth Circuit is
    relevant both to liability and remedy issues. *See* United States
    Opposition to Defendant's Motion for Partial Summary Judgment for
    all Stadium Style Movie Theaters within the Fifth Circuit (Docket
    No. 139).

[^17]: ^?^Review of architectural plans and design decisions
    contemplated, rejected or made, and information regarding possible
    retrofitting, would shed light on when and why such decisions were
    made. Also, documents regarding compliance with the ADA or TAS,
    including information or advice, checklists and waivers, could
    demonstrate that: Cinemark did not even consider or did not provide
    wheelchair patrons with comparable lines of sight and/or
    unobstructed views compared with that which was offered to its other
    patrons; that the TAS inspectors were not properly or appropriately
    enforcing TAS; and whether Cinemark was aware that the TAS
    inspectors were not properly or appropriately enforcing TAS, either
    in regard to the location and placement of wheelchair seats or with
    regard to other accessibility issues. In addition, documents
    regarding complaints or compliance reviews could demonstrate that
    Cinemark was well aware that its stadium style theaters did not
    comply with the ADA or TAS.

[^18]: ^?^*See* United States' Opposition to Cinemark's Motion for
    Partial Summary Judgment (Docket No. 139)

[^19]: ^?^A detailed discussion of the facts of this case is found in
    Plaintiff United States\' Opposition to Defendant\'s Motion for
    Partial Summary Judgment for all Stadium-Style Movie Theaters Within
    the Fifth Circuit, pp. 1-4, \"Statement of Undisputed Facts" (Docket
    No.139) and will not be reiterated here. The United States does
    note, however, that Cinemark, in its "Undisputed Facts" section of
    its Motion to Quash misquotes the Department of Justice's
    representations to the Sixth Circuit in this case, *see* Motion to
    Quash at p. 7, claiming that the Department stated that "because
    *Lara* was still controlling authority in the Fifth Circuit, 'the
    district court should not order relief regarding the theaters within
    \[the Fifth Circuit\]." However, a simple review of the actual
    document, which Cinemark thoughtfully attached to its Motion to
    Quash, clearly demonstrates that the United States instead asserted
    that "If *Lara* is still the law of the Fifth Circuit at that time
    \[the remedial phase of this litigation\], the district court should
    not order relief."

[^20]: ^?^*See* [Donovan]{.underline} v. [Central Baptist Church,
    Victoria]{.underline}, 96 F.R.D. 4, 5 (S.D. Tex. 1982); *see also*
    [EEOC]{.underline} v. [Electro-Term, Inc.]{.underline}, 167 F.R.D.
    344, 347 (D. Mass. 1996)(Defendant's objections are "based on
    certain assumptions which have not as yet been proven" and address
    "the ultimate merits of the case rather than the pending question of
    discovery.")