US v. Norwegian Cruise Lines, Inc. and Norwegian ... - ADA.gov

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“predecisional” if it occurred “in order to assist an agency decisionmaker in arriving at his decision.”Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975). Communications are“deliberative” if, absent protection from public disclosure, “information of that type would not flowfreely within the agency.” Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d at 256.Facts as well as deliberations are covered by the deliberative process privilege when “factual materialsare ‘inextricably intertwined’ with policy making recommendations so that their disclosure would‘compromise the confidentiality of deliberative information that is entitled to protection’” under theprivilege. Mink, 410 U.S. at 92; see also Ryan v. U.S. Dep’t of Justice, 617 F.2d 781, 790 (D.C. Cir.1980).In this case, the government officials Defendants would have testify would undoubtedly beDOJ or other government agency decision makers who participated in deliberative processes involvedin developing various aspects of the ADA, and who would be asked to speak to those processes in thedeposition. For example, assuming the term “guidance,” as it is used in the deposition notice, meansthe eliciting of oral communications from a DOJ representative as to legal issues described within thetopics, both generally and as to the present complaint, such testimony, even though it could only statefacts about past agency action, and not immediate legal advice, would necessarily reveal thedeliberative processes of the agency. 4 See July 19 Notice, topics 3-12; July 25 Notice, topics 3-12, 16-4 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 depositiontestimony 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 processprivilege.10
18. Communications on these topics, and others requested by Defendants, see July 19 Notice, topics 1,2; July 25 Notice, topics 1, 2, 13-15, 19, will hamper DOJ’s ADA enforcement efforts. Cf. FTC v.Grolier, Inc., 462 U.S. 19, 31 (1983) (Brennan, J., concurring) (stating that the ability of an adverseparty to “gain insight into an agency’s general strategic and tactical approach to deciding when suitsare brought . . . and on what terms they may be settled” should be protected against).3. Work Product DoctrineRule 26(b)(3) incorporates the work product doctrine enunciated in Hickman v. Taylor, 329U.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 also Fed. R.Civ. P. 26(b)(3) advisory committee note (1983 amendment); SEC v. Morelli, 143 F.R.D. 42, 45(S.D.N.Y. 1992). The purpose of the work product doctrine is to preserve the integrity of theadversary trial process by protecting the mental impression and legal strategy of an attorney as theattorney prepares a case in contemplation of litigation and trial. Jordan v. U.S. Dep’t of Justice, 591F.2d 753, 775 (D.C. Cir. 1978). The privilege encourages effective legal representation by removingcounsel's fears that thoughts and information will be discoverable by an adversary. Id.; see alsoMorelli, 143 F.R.D. at 47. In order to demonstrate that communications are protected by the workproduct doctrine, the information sought must pertain to legal work undertaken in anticipation oflitigation or trial. Jordan, 591 F.2d at 753.The work product doctrine applies not only to documents, but also to deposition testimony. SeeIn re Sealed Case, 856 F.2d at 273 (citing cases). It applies to DOJ attorneys acting as counsel for theUnited States. NLRB v. Sears, 421 U.S. 132, 154 (1975); cf. J.H. Rutter Rex Mfg. Co. v. NLRB, 47311
Page 1 and 2: UNITED STATES OF AMERICA,vs.Plainti
Page 3 and 4: facsimile the same day sought the a
Page 5 and 6: to prevent a party from engaging in
Page 7 and 8: interpretations” and not facts. I
Page 9: with a concern for appearances . .
Page 13 and 14: cruise ship is required to modify i
Page 15 and 16: complaints, or “final results”
Page 17 and 18: documents in the July 19 subpoena h
Page 19 and 20: all aspects of investigations and t
Page 21: CERTIFICATE OF SERVICEI HEREBY CERT

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