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## HEARING DOCKET

IN THE MATTER OF DFMS NO. FAA-2012-0477 LIBERTY FOUNDATION, INC. r···•

TELEPHONIC MOTION CONFERENCE**~~:;** BEFORE THE HONORABLE J.E. SULLIVAN"·'

HISTORIC JORDAN SPRINGS 1160 JORDAN SPRINGS ROAD STEPHENSON, VA 22656 NOVEMBER 2, 2012 11:00 

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800.262.8777 

### www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 Case Ref#16859-1 1 APPEARANCES: 2 HONORABLE J. E . SULLIVAN 3 U.S. DEPARTMENT OF TRANSPORTATION 4 OFFICE OF HEARINGS, M-20 5 1200 NEW JERSEY AVENUE, S.E. (Ell-310) 6 WASHINGTON, DC 20590 7 PHONE: 202.366.2132 8 9 ON BEHALF OF THE RESPONOENT: 10 STUART A. GOLDSTEIN, P.A. 11 9350 SOUTH DIXIE HIGHWAY, lOTH FLOOR 12 MIAMI, FL 33156 13 PHONE: 305.670.1222 14 15 ON BEHALF OF THE COMPLAINANT: 16 ADRIANNE WOJCIK, ESQUIRE 17 OFFICE OF THE REGIONAL COUNSEL 18 GREAT LAKES REGION, AGL-7 19 FEDERAL AVIATION ADMINISTRATION 20 2300 EAST DEVON AVENUE 21 DES PLAINES, IL 60018-4696 22 23 24 25 Page2

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# ~- EPORTERS CourtReporting,VideQ Stephenson,VA I J**~** · •Inc. & LitigationTechnology www.reportersgroup.com Videography LitigationTechnology www.a<fvlegaltecb.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 Case Ref#16859-1 1 MR. CHRISTOPHER ZURALES, ESQUIRE 2 OFFICE OF THE REGIONAL COUNSEL 3 GREAT LAKES REGION, AGL-7 4 FEDERAL AVIATION ADMINISTRATION 5 2300 EAST DEVON AVENUE 6 DES PLAINES, IL 60018-4696 7 PHONE: 8 4 7 . 2 9 4 .7109 8 9 ALSO PRESENT: 10 CODY L

.. SMITH, OBSERVER 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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# ' Hearing heldon November2,2012 Case Ref#16859-1 Page4 1 TELEPHONIC MOTION CONFERENCE 2 November 2, 2012 3 THE COURT: 

### We are on the record in the 4 matter of Liberty Foundation, Inc. This is Docket 5 Number FAA-2012-0477. Today is Friday, November 2, 6 2012, and the parties have convened for a Motion 7 Conference by telephone on the issue of venue. The 8 Federal Aviation Administration hereinafter abbreviated 9 as the FAA is represented by its attorney of record, 10 Adrianne Wojcik. Also present with Ms. Wojcik is co11 counsel, Mr. Chris Zurales. The Respondent, Liberty 12 Foundation, Inc. is represented by its attorney, Stuart 13 A. Goldstein. Also present at the Office of Hearings 14 in Washington, D.C. is Cody L. Smith, an attorney with 15 the Office of Hearings who is appearing here today as 16 an observer only. Good morning everybody. 17 ALL PARTIES: 

### Good morning, Your Honor. 18 THE COURT: 

### I will just note that I have 19 received everybody's materials since the last order was 20 issued, and as you may recall, we had a Litigation 21 Scheduling Conference with an order issued pending 22 litigation dates and procedures filed on September 24, 23 2012. We then had an order issued on October 9, 2012 24 that granted the parties joint request for extension of 25 discovery deadline, and then we had

-- let's see if I

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## ~ COUR'T:. EPORTERS,,nc. Videography U!itigationTechnology CourtReporting.Video &litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2, 2012 CaseRef#16859-1 Page5 

### 1 can find my materials here

-- on October 23, 2012, the 2 Respondent filed Respondent's Supplemental materials on 3 the venue issue, and on October 24, 2012, the FAA filed 4 the administrator's supplemental materials on the 5 disputed venue issue, and then we are convened here 6 today for argument and questions about that. 7 So, what I want to do is give you both a 8 chance to just provide a narrative summary of what you 9 think are the primary points for your arguments. I 10 also have some questions to ask each of you, and I'm 11 wondering which process is preferable for you. Would 12 you rather have the oral arguments first with the 13 questions interspersed with that oral argument, or 14 afterwards; or, do you want me to ask some basic 15 questions first? Ms. Wojcik, do you have any 

# l

16 preference? 17 MS. WOJCIK: 

### No preference, whatever works 18 best for you, Your Honor. 19 THE COURT: 

### Okay, Mr. Goldstein, any 20 preference? 21 MR. GOLDSTEIN: 

### No, I think that our 22 statements are in the record, and so it is fine with me 23 if you want to ask questions first. 24 THE COURT: 

### Okay. Then let me start with 25 you, Ms. Wojcik. According to the original complaint,

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.. 62.8777 www.CountyCol.lrtRefjorters.com 877.837.8313Hearingheldon November2,2012 Case Ref#16859-1 Page6 

### 1 it looked like there was an allegation of multiple 2 problems occurring with maintenance on February**24~** 

### 3 2012 with an aircraft identified as N390TH. Where did 4 that maintenance occur? 5 MS. WOJCIK: 

### Your Honor, frankly, I believe 6 it happened in Georgia. I don't know for sure because 7 when I looked at the log book, it

-- the log book 8 states the date. I don't recall seeing the place where 9 the maintenance was -- took place, I'm sorry. However, 10 part of that maintenance is also the repair from June 11 2011, and that took place in the Chicago area. 12 THE COURT: 

### Okay. I am going to turn back to 13 your complaint again, and I am going to be asking some 14 of these questions to Mr. Goldstein too. In your 15 complaint, it indicates that the aircraft was allegedly 16 returned to service after certain maintenance was done 17 by a Mr. Rodney Schneider on February 24, 2011. There 18 were more than 12 flights according to this complaint 19 after the February 24, 2011 maintenance that is in 20 issue before us, and then on what appears to be page 21 three of the 5/8 complaint, paragraph 12, there's an 22 allegation that on June 13, 2011 Mr. Schneider then 23 performed additional maintenance on the same aircraft. 24 Can you tell me where that additional maintenance may 25 have occurred?

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.t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www;CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page7 1 MS. WOJCIK: Your Honor, I did not 

### 2 THE COURT: Ms. Wojcik? 3 MS. WOJCIK: There is additional maintenance 4

-- the June 13 maintenance occurred in Aurora, I 5 believe which is the

-- in the Chicago area. 6 THE COURT: Okay, now this is before the 7 alleged emergency aircraft landing which the FAA 8 mentions in paragraph 17, page four of the complaint. 9 MS. WOJCIK: Correct. Our understanding is 10 that that maintenance was done literally the weekend 11 before that hapless flight. I think the flight 12 happened on Monday a.m., but maintenance was done 13 approximately the weekend before. 14 THE COURT: Okay. Where in your complaint do 15 you allege problems or issues with post

-- or with 16 maintenance that occurred after the June 13, 2011 17 allegations that are contained herein? Because you 18 have been telling me, and there was some comment I 19 think in your materials about post-landing maintenance, 20 but I am a little unclear as to how that factors into 21 your case in chief here. 

### 22 MS. WOJCIK: Your Honor, I am not sure that I 23 understand the question. If

-- just to clarify, you 24 know, this emergency landing. There was an in-flight 25 fire which ended in an emergency landing, and as a 

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••••••••••----... ___ _:_ww=w.eountvCourtR.eporters.com 877.837.8313Hearingheldon November2,2012 Case Ref#16859-1 Page8 1 result, the airplane was destroyed. So, there clearly

- 2 - you know, could not be maintenance for the aircraft 3 after that fire. So, if so, I believe there is some 4 lack of clarification here. What we are alleging is 5 that the improper maintenance that started with what we 6 call the fabrication of the tank in February of

-- I 7 believe, 2011, and then the aircraft was being flown, 8 and then subsequent maintenance that happened in June 9 2011 right before that in- flight fire and

-- so, this 10 is the specific maintenance we've been talking about in 11 our complaint. 12 THE COURT: Okay. Let me ask you this, do 13 you know the date of the in-flight fire and the 14 emergency landing? What date did that occur after June 15 13, 2011? 16 MS. WOJCIK: It might have been the 15th. I 17 don't know at the top of my head, but we can easily 18 find that just by looking at the calendar, so -- 19 THE COURT: Can you -- 20 MS. WOJCIK: I do not know at the top of my 21 head, Your Honor, but it was you know, we are saying 22 I think that actually the additional flight was made 23 on June 13, so that maintenance might have been done 24 June 12th or 11th

-- or on about. 25 THE COURT: Okay, so --

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# COURT: · EPORTERS.tnc. Videography U!itigationTechnology Court Reporting.Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 Case Ref#16859-1 Page9 1 MS. WOJCIK: Do you know when the plane went 2 down? 3 THE COURT: I am going to stop you, Ms. 4 Wojcik. You are basically speaking to me, so if I need 5 to find out from someone else, I will find out from 6 someone else. It sounds to me like you are saying that 7 on or about June 13, 2011 after the June 13, 2011 8 maintenance, the plane was utilized, there was an in9 flight fire, an emergency landing, and the plane was 10 then destroyed. Would that be a fair summary of what 11 your position is about**th~se** allegations? 12 MS. WOJCIK: Yes, Your Honor. 13 THE COURT: Okay. So, are you -- as part of 14 your witness list, does your witness list include 15 calling Mr. Schneider as a witness in your case in 16 chief, or are you going to be using different witnesses 17 than Mr. Schneider? 18 MS. WOJCIK: At this point, we do not, 19 anticipate calling Mr. Schneider as our witness. 20 THE COURT: Okay, then let me ask you in 21 general, do you know

-- now you said that you have 22 someone from New Mexico, someone from Colorado and 23 three people from Chicago for witnesses. Are these all 24 expert witnesses? 25 MS. WOJCIK: No, not all of them are expert

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- Hearingheldon November2,2012 CaseRef#16859-1 Page10 1 witnesses. At this point, we thought of using expert 2 witnesses. We thought of using our FAA inspectors as 3 expert witnesses because they can talk about the 4 maintenance and the question of the major alteration 5 which is really at the gist of this complaint. So, 6 those would be inspectors, I believe, Sorence and Duman 7 were identified in discovery partly as expert 8 witnesses. However, those witnesses the witness from 9 New Mexico, for example, is a mechanic who actually is 10 greatly familiar with this particular aircraft. He, in 11 fact, was a director of maintenance for Liberty 12 Foundation and that aircraft before Mr. Schneider took 13 over, and he is familiar with their maintenance issues 14 and the problems which we believe led to those events 15 which are in play in this complaint. So, though 16 perhaps not an expert witness, he certainly has a lot 17 of knowledge about this aircraft and the maintenance. 18 THE COURT: Well, I

-- it is not for me to 19 tell you how to qualify your witnesses, but typically 20 under the evidentiary rules, anyone with specialized 21 knowledge could be considered or is qualified to be an 22 expert witness. 23 MS. WOJCIK: I understand you, Your Honor, 24 and that is why I keep saying-- "at this point," 25 because frankly, we find ourselves a little bit between

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# COURl: --_ EPORTERS,tnc. Vldeography U!itigationTechnology Court Reporting.Video & LitigationTechnology**www~advlegaltech.com** Corporate: HistoricJordanSprings t 1160Jorda11SpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page 11 

### 1 a rock and a hard place, and here is why

-- on the one 2 hand, the deadline for identifying expert witnesses has 3 just passed this Wednesday. However, you know, the 4 litigation strategy is just being discussed an analyzed 5 at this point, and so the final list of witnesses

-- 6 what role each witness will play has not been finalized 7 yet, and therefore, we are still

-- you know, analyzing 8 and discussing those concepts. 9 THE COURT: 

### Okay. I appreciate that, and I 10 am happy to talk to you about adjusting the litigation 11 schedule if it is proving not to be workable for you. 12 My question I guess is a little bit more simple than I 13 led you to believe. I'm trying to find out from you 14 other witnesses that you have identified and talked 15 about in your materials

-- where they are located, and 16 whether they are lay, factual witnesses or whether they 17 have some specialized knowledge that would be 18 potentially putting them into an ER703 category,, which 19 is an expert witness. An FAA inspector would by their 20 very nature, I think, be presumed at least for the sake 21 of this type of argument to be an expert witness. Just 22 like a person with expert mechanical knowledge could 23 potentially be presumed for the sake of a motion like 24 this to qualify as a potential expert witness. So, of 25 the five witnesses that you have been talking about in

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# ~itigationTechnology Court Reporting.Video & LitigationTechnology www.advlegaltecb.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.83'1.8313Hearingheldon November2,2012 CaseRef.# 16859-1 Page 12 1 your motion material, are the three Chicago-based 2 witnesses all FAA inspectors? 3 MS. WOJCIK: No, Your Honor, and now that I 4 understand your question a little bit better, maybe I 

### 5 can give you a better answer -- a clearer answer. Two 

### 6 FAA inspectors are Chicago-based, and they presumably 7 would be expert witnesses. Also the mechanic from New 

### 8 Mexico I just mentioned, we have not identified him as 

### 9 an expert witness at this point, but he presumably 10 would also be an expert witness. Another Chicago 11 witness is a fact witness, and the Colorado witness is 12 also a fact witness. 13 THE COURT: Okay. Thank you, that is very 14 helpful. Now, of the

-- with the Chicago fact witness, 15 is this someone who is an FAA employee, or not? 16 MS. WOJCIK: No, ma'am. 17 THE COURT: Is it someone who is a government 18 employee in any shape or size? 19 MS. WOJCIK: No. 20 THE COURT: Okay. Of the two witnesses that 21 are not based in Chicago, starting with the New Mexico 22 expert, is this someone who is an FAA or government 23 employee? 24 25

TheReportersGroup Stephenson,VA www.reporb;r:.;group.com MS. WOJCIK: No. THE COURT: What about your potential

County

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. EPORTERS.tnc. Videography @..itigatlonTechnology CourtReporting.Video &litigationTechnology www.advlegaltech.c2m. Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 ·www.CountyCourtReporters.com 877.837.8313Hearingheldon November2, 2012 Case Ref#16859-1 Page 13 1 Colorado witness? 2 MS. WOJCIK: No, Your Honor. 3 THE COURT: Okay. In terms of your 4 complaint, I have your complaint before me, and as we 5 have talked about, it is about five pages. There is 6 multiple allegations regarding the alleged problem, and 7 there are three different legal citations

-- well, more 8 than three, but on page four of the five-page 9 complaint, there is an allegation that Liberty 10 Foundation violated the following Federal Aviation 11 Regulations, and they are listed under Paragraph A as 12 in apple, B as in boy, C as in cat. How many violations 13 is the FAA charging Liberty Foundation pursuant to this 14 complaint? It is unclear on it's face, and I want to 15 get a sense of how many violations we are talking 16 about. 17 MS. WOJCIK: Your Honor, I need a moment

-- 18 THE COURT: Okay. 19 MS. WOJCIK:

-- to locate that. Your Honor, 20 I am sorry, thank you. The allegations NAB are 21 individual violations for th improper maintenance 22 performed. The C.B.A. talks about operation of an un23 airworthy aircraft caused by the improper maintenance. 24 That refers to I believe at**l~ast** our technical expert 25 estimated that there were at least 12 flights

-- I

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### 1 believe

-- between that maintenance in February of 2011 2 and

-- you know, approximately June 13 of 2011. 3 

### THE COURT: 

### So, how many violations is the 4 FAA alleging in its complaint? 5 

### MS. WOJCIK: 

### Well, 12 of 917A, and then the 6 individual violations for 91405B and 91407A. 7 

### THE COURT: 

### And, when you say the "individual 8 violations under paragraph A" that is on page four of 9 the five- page complaint, do you know how many of those 10 individual violations there are in this complaint? Is 11 it just one, or is it more than one? 12 MS. WOJCIK: 

### No, it is the 91405B talks about 13 maintenance, so it is one maintenance. It is

-- we are 14 talking about that maintenance that the fabrication of 15 the tanks that happened in February 2011, I believe. 16 THE COURT: 

### So, that would be one violation 17 under 14CFR91.405(b). Ms. Wojcik? 18 MS. WOJCIK: 

### I am sorry, Your Honor. Can you 19 repeat your question? 20 THE COURT: 

### Yes. How many violations are you 21 alleging to have occurred under Section 14CFR91.405(b) 22 as in boy? 23 MS. WOJCIK: 

### It is the one violation. 24 THE COURT: 

### Okay, and then how many 25 violations are you alleging to have occurred under subThe Reporters Group Stephenson,VA www.reportersgroup,gm} County

## ~ COURT: , EPORTERS,Inc. Videography U!itigationTechnology Court Reporting,Video & LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page 15 1 section "b" on page four of the five-page complaint 2 which alleges a violation of 14CFR91.407(a)? 3 MS. WOJCIK: We alleged one violation, 4 although it could be interpreted that

-- you know, they 5 violated this for each flight that took place between 6 February and June 2011

. 7 THE COURT: Okay, so there is one violation 8 alleged under Paragraph A on page four of the five-page 9 complaint. One violation alleged under Paragraph B on 10 page four of the five-page complaint, and at least 12 11 violations alleged under Paragraph C on page four of 12 the five-page complaint? 13 MS. WOJCIK: Yes. 14 THE COURT: When you are saying "12 under 15 paragraph C," are you including the flight that 16 occurred on or about June 13, 2011 that ended up in a 17 fire and the destruction of the aircraft? 18 MS. WOJCIK: Yes. 19 THE COURT: Okay, so that may be potentially 20 13 complaints then? 21 MS. WOJCIK: I say, I believe 12. I believe. 22 THE COURT: Well, do you have any kind of 23 number between 12 and 100? I really want to get a 24 sense of how big or how small the number of violations 25 are because this complaint is pretty vague?

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# ~ltigationTechnology Court Reporting,Video & LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRo.ad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313--------------------------------------------**---~--** Hearingheldon November2, 2012 Case Ref# 16859-1 Page 16 1 MS. WOJCIK: Your Honor, this is the estimate 2 that was given to me by my technical expert. He

-- you 3 know, my understanding is, he estimated that based on 4 the amount of fuel, the types of tanks

-- all sorts of 5 other variables that frankly are very technical, and 6 you know, I am not prepared to speak about at this 7 point to be completely honest, but that was the 8 estimate that was given by our technical expert that it 9 must have been at least 12 flights. So, that is what I 10 have to go by. 11 THE COURT: Okay. All right. So

-- okay, 12 and in terms of the flights, because that is where you 13 are putting in a great number of your violations, those 14 flights could have been to Chicago or to other places 15 in the country. 16 MS. WOJCIK: That is correct. 17 THE COURT: Okay, and those places are not at 18 issue for the issue of venue? 19 MS. WOJCIK: That is correct, and we know for 20 a fact that they did business in Chicago when they did 21 this repair in June and put their aircraft here. 22 THE COURT: Okay. The Respondent in its 23 supplemental materials and in its original materials 24 argues that there is no prejudice to the FAA if the 25 case is set in Atlanta, Georgia. Can you briefly

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### 1 identify or summarize for this Court what the prejudice 2 is in your opinion if the case is set in Atlanta, 3 Georgia? 4 MS. WOJCIK: 

### Yes, Your Honor, I think I can. 5 At this point, as we described to you, the witnesses 6 that we anticipate having are either largely Chicago7 based, or they are from the west coast. So, in terms 8 of costs of flying them to Georgia certainly would be 9 more costly than having the case in Chicago. Also, I 10 would note that the two Chicago-based attorneys

-- 11 myself and Chris Zurales, have been really working with 12 this case as well as with the sister case that regarded 13 the mechanic that got resolved earlier for really 14 months now, and we are well familiar with the issues in 15 this case. Therefore, if we were to transfer this case 16 to Atlanta, we might be able to save a little bit of 17 money by not paying for Chicago-based attorneys, but 18 then it is prejudicial to the Agency in the sense that 19 basically a new attorney and a planner gets this case 20 and has to get up to a speed on it, frankly this late 21 in the litigation game, and has to take over a fairly 22 complex case with the inspectors and the witnesses 23 which are largely Chicago or west coast-based. 24 THE COURT: 

### Let me ask you a question, the 25 New Mexico expert mechanic and the Colorado fact

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-- 10 Your Honor, we provided a fairly detailed cost analysis 11 that I think

- - you know, shows the cost for each 12 witness if they were to travel to Chicago and then to 13 Atlanta, Georgia

-- 14 THE COURT: I am not suggesting they go to 15 Chicago first, I am suggesting that let's assume for 16 the sake of argument that the matter is set in Atlanta, 17 how much more or how much less would it cost to travel 18 pay for their travel versus going to Chicago because 19 no matter where you are, you are going to have to pay 20 their travel costs. 21 MS. WOJCIK: That is true, Your Honor, but I 22 think when we looked, the costs that we provided for 23 Chicago are -- overall, are much cheaper than the costs 24 for Atlanta, Georgia. 25 THE COURT: For these two particular

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### 1 witnesses? 2 MS. WOJCIK: 

### Well, frankly, I would have to

- 3 - you know, the cost analysis is so detailed that I 4 would have to

-- need a couple of minutes to look 5 exactly what it is for those two witnesses. I don't 6 know that off of the top of my head, I am sorry. 7 THE COURT: 

### Okay. Well, the reason I ask it 8 is because the way I look at those two witnesses is a 9 little different from the way I look at the witnesses 10 that are Chicago- based, and the reason I look at them 11 differently is because no matter where I set this 12 hearing, the FAA is going to have to pay travel costs 13 for them. So, it is not thinking about how much it 14 costs for them to travel in total, it is thinking about 15 how much extra the FAA would have to pay if in fact the 16 costs of their travel to Atlanta is greater than the 17 costs of their travel to Chicago. That is what I am 18 looking at, and based on my review, and my review has 19 been somewhat cursory at this point in part because the 20 Federal government was closed earlier this week, and I 21 didn't have as much time as I would like to go through 22 into the nitty gritty of the numbers, but based on my 23 cursory review prior to convening this teleconference 24 today, you are talking about maybe $200 to $400 total 25 if in fact the Atlanta base is more expensive than the

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### 1 Chicago base. So, I am not sure that I would accept 2 and agree with the number that you gave me as a total 3 number for the cost because I don't think that your 4 argument that pooling up their costs of travel in total 5 is persuasive. I would be looking at-their particular 6 costs of travel simply on the basis of what you would 7 have to pay differently than if they travel to Chicago. 8 If that makes sense. 9 Let me ask you a couple other questions 10 before I turn to Mr. Goldstein. You indicated, Ms. 11 Wojcik, that you have two attorneys who have been 12 working on this matter for months. How many months are 13 we talking about? 14 MS. WOJCIK: 

### Well, basically we started 15 working on this case and the issues regarding in this 16 case shortly after this in-flight fire and emergency 17 landing occurred. So, we are talking since June 2011. 18 So, you know, frankly it is even -- you know, more than 19 months at this point. It is

-- originally did not 20 start at this case, it started as the case against the 21 mechanic. This is a sort of separate issue arising out 22 of the same event. However, you know, the events are - 23

- it is actually the same, so the issues regarding this 24 complaint has been

-- you know, investigated by the 25 Chicago-based office, and consequently, reviewed then

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# ~itigationTechnology Court Reporting.Video & LitigationTechnology www.advlt;galtech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2.,2012 Case Ref# 16859-1 Page21 

### 1 and studied by the attorneys here for now that I think 2 about it, over a year. 3 THE COURT: 

### Well, you are talking about a 4 year and five months at this point if we date your 5 involvement since June 13, 2011. 6 MS. WOJCIK: 

### Yes, that is correct. 7 THE COURT: 

### Okay, and from what you are 8 telling me, the FAA does not allow its trial lawyers to 9 travel outside of their region. Is that your argument? 10 MS. WOJCIK: 

### No, I can't argue that we are 11 not allowed to do this, because it is really fact 12 specific. Sometimes we may be allowed to do this, but 13 frankly at this point, Your Honor, the

-- you know, the 14 issue is the cost, and even though we -- when we 15 originally requested that the venue be Chicago, we did 16 not focus on the cost, we really focused on the fact 17 that the Liberty Foundation did business in this state, 18 they chose to fly their aircraft here, they did repairs 19 here. As a matter of fact, the sister case that I 20 mentioned against the mechanic was set to be tried in 21 Chicago, it got resolved before the hearing in all 22 fairness, so that never happened

-- but, everything 23 always circulated around Chicago, and that was our 24 primary argument, and it remains so. Then, Your Honor, 25 when you told us to also focus on cost, then we focused

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# ~ltigatlonTechnology CourtReporting,Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page22 1 on cost, and our argument is not so much that you 2 know, we are not going to be per say, allowed to fly to 3 Atlanta, I don't know that

-- this decision is made 

### 4 without my -- above my level, but that the cost of 

### 5 flying after having Chicago-based attorneys fly to 6 Atlanta and try the case there is so high, then if that 

### 7

-- if we are forced to try the case in Atlanta that the 

### 8 case may have to be transferred there, and first of 

### 9 all, 

### I do not know that that is going to be a real 10 possibility, but even if it is, the sort of downside of 11 doing that is that we might save on the cost a little 12 bit, but then we are bringing a brand new attorney into 13 this game who has to

-- you know, become up to speed on 14 this fairly complex case and essentially have to start 15 from

-- largely from square one. So, I guess these are 16 our concerns that we might save some costs if this is 17 not a Chicago-based attorney who is actually 18 representing the FAA, but then we have a new person who 19 sort of starts from the beginning. 20 THE COURT: So, let me clarify, because I am 21 not sure that I understand completely. It is my· 22 understanding that you do on occasion travel to 23 different locations outside of Chicago to hold hearings 24 and represent the FAA at those hearings. Would that be 25 a fair summary?

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## COURl:

.EPORTERS,,nc. Vldeography @..itigatlonTechnology Court Reporting,Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef# 16859-1 Page23 1 MS. WOJCIK: We occasionally do travel, that 2 is true, but things

-- you know, with the recent budget 3 cuts, all of those decisions are made really on a fact4 by-fact basis and case- by-case basis, and I cannot 5 tell you because it is not my decision whether we will 6 be allowed to travel or not, however, I can tell you 7 that the budget cuts lately are such that we are 8 certainly discouraged from traveling

-- you know, 9 beyond our area of representation. It does not mean it 10 is not possible, but it is really hard to do given the 11 limited budget for traveling. 12 THE COURT: And, I understand that, but I am 13 exploring all of the different options, and this is 14 part of the consideration that I must give to a venue 15 dispute. So, there is a possibility that you the 16 FAA could potentially authorize you to travel to 17 Atlanta, and there is a possibility that the FAA would 18 decide that it is not within their budgetary interest 19 to allow you to travel and pursue the litigation in 20 this case. Is that correct? 21 MS. WOJCIK: That is correct. 22 THE COURT: Okay, and if the FAA managerial 23 staff decided that they would not benefit in terms of 24 having you go to Atlanta, they would then transfer this 25 case to someone working in the FAA in the Atlanta

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## COURT:

.EPORTERS,,nc. Videography tf!ltlgationTechnology CourtReporting,Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2, 2012 Case Ref#16859-1 Page24 1 office who does not have the benefit of your expertise 2 and time into this fact pattern. 3 MS. WOJCIK: That looks like a likely 4 scenario, but I cannot speak as to what actually would 5 happen, but it looks like a likely scenario. 6 THE COURT: Okay, you indicated in your 7 materials that the government rate may not always be 8 used for non-FAA witnesses, and you have already 9 identified two

-- two to three people who may not be 10 FAA witnesses, and it is my understanding that if this 11 manner was tried in Atlanta, the Chicago fact witness, 12 the New Mexico expert mechanic and the Colorado fact 13 witness would not qualify for government rates on 14 hotels, meals and so forth? 15 MS. WOJCIK: They may not qualify. What 16 happened in the past, Your Honor, when we have non-FAA 17 witnesses, sometimes when they have government-issued 18 subpoena to appear and some hotels will accept that and 19 offer them government rate assuming that such a rate is 20 available at that given time in the first place

-- but, 21 first of all, that does not always happen. Secondly, 22 government rate is not always available. The costs, 23 and this is what I would like to stress, because I 24 think that even though we are not at the rebuttal 25 stage, but I think it is important to know that the

The Reporters Group Stephenson,VA www.reportersgroup.com County

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# ~itigationTechnology Court Reporting,Video &LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160Jordan.SpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtRepo.rters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page25 1 Respondents said that we have an ability to take 2 advantage of government rate, and that is really 3 partially true. Yes, we do, but the cost

-- but, only 4 if those rates are available, and they are not always 5 available. The cost analysis that we sent you actually 6 already takes into account the government rate. So, we 7 are not trying to

-- we are actually lower the costs 8 assuming that we will be able to get government rates 9 for everyone, but I need to note that in reality, that 10 is not always the case because

-- a. -- Government rate 11 is not always available in general for anyone,**~nd** 12 secondly

-- with non- FAA witnesses, there is an 13 additional complication that sometimes even if a 14 government rate is available, they actually cannot get 15 it, because they are technically not FAA or government 16 employees. 17 THE COURT: Okay. Let me ask you this 18 because we talked a little bit about this at the 19 litigation scheduling conferenbe. In your review of 20 your case at this point, you are not looking at 21 potentially it sounds like to me -- winnowing your 22 witness list down by stipulations, obtaining material 23 through interrogatories, or doing those other kinds of 24 things at this point that would eliminate the need to 25 having all of these folks come and testify in person.

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## COURl: EPORTERS,,nc. Videography tf!itlgationTechnology Court Reporting.Video & LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page26 1 You are saying that that is at least to your knowledge 2 at this point, those alternate options are not 3 available? 4 MS. WOJCIK: Well, at this point, they are 5 not. You know, it is hard to predict what the final 6 list of witnesses will be, Your Honor, and I you 7 know, we are open that maybe we will be able to 8 stipulate to some things that, you know, we will be 9 able to eliminate a witness or two, but, at this point, 10 this is just the best understanding of the case I have 11 at this point in terms of who the witnesses are going 12 to be, and nothing we have

-- I guess we have exhausted 13 the number of interrogatories that we could have asked. 14 In fact, the Respondent objected to us doing some 15 interrogatories saying that we have already went over 16 limit, so I am not sure how we could utilize that tool 17 to narrow down the number of witnesses. So, I don't 18 want to say no in general, but at this point, I just 19 anticipate that these will be our**witnesse~.** 20 THE COURT: Okay, let me ask you another 21 question, and maybe two more questions, and then I am 22 going to turn to Mr. Goldstein. In your practice with 23 the FAA, has it been typical or atypical for the FAA to 24 ever utilize perpetuation deposition testimony in lieu 25 of calling someone live at a hearing?

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## ~ COURT: EPORTERS,,nc. Videography U!ltigationTechnology Court Reporting.Video & LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearing heldon November2, 2012 CaseRef# 16859-1 Page27 1 MS. WOJCIK: I, it is not typical for me. 2 THE COURT: Okay. Do you know

-- even know 3 whether the FAA has a budget for perpetuation 4 deposition practice? 5 MS. WOJCIK: I don't know. 6 THE COURT: Okay, in your own practice, have 7 you ever had an occasion to do perpetuation deposition? 8 MS. WOJCIK: No. 9 THE COURT: Okay, that is very helpful. 10 There was some material in the Respondent's answers in 11 which the Respondent alleged that it had very limited 12 funds and that you -- the FAA were familiar with the 13 Respondents role as an educator for historic airplanes. 14 Would you confirm or not confirm that allegation? 15 MS. WOJCIK: I would not confirm it. 16 THE COURT: Okay, anything you would like to 17 say about that particular assertion that the Respondent 18 made? 19 MS. WOJCIK: Just that

-- just in general the 20 Respondent often asserts that we should know something 21 or we should have some information about either his 22 witnesses or where they reside, or what we know about 23 the foundation, and we simply do not have

-- you know, 24 the answers to those questions, and that is why we are 25 trying to find out through discovery; and sort of the

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# -------------------------------- Hearingheldon. November2,2012 CaseRef#16859-1 Page28 

### 1 second, I just want to maybe comment on another 2 assertion that the Respondent made which is that the 3 FAA, in addition to government rates also has the 4 ability to utilize jump seats of planes to fly to 5 places for a hearing. Your Honor, this is simply not a 6 reasonable statement. You know, even though that might 7 be possible if they are doing inspection of a given 8 airplane, we cannot simply assume that our inspectors 9 can hop on a jump seat of any airplane to fly to any 10 hearing at any time. So, you know, hopefully, this is 11 not being even considered ever as a possibility, but in 12 case it is, I just needed to clarify that this is 13 simply not the case. And, in terms of because I 14 think the assertion you also mentioned is that the 15 limited funds that the Respondent brings up as part of 16 the argument for why it is going to be

-- why it is 17 going to create an extra hardship for them to fly to 18 the Chicago area. Well, I cannot really confirm that 19 we have any knowledge about the limited funds, because 20 we asked multiple questions about their funds which we 21 think are relevant, you know, if they are raising the 22 argument that they do not have those funds, but they 23 objected to answering any of those questions. So, at 24 this point, we do not know at all what funds and 25 abilities to fly here they have, and they are not

The ReportersGroup Stephenson,VA**~gportersroup.com** County

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# ~ltigatlonTechnology Court_Reporting,Video & LitigationTechnology www.advl(:galtech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page29 1 willing to reveal it to us. 2 THE COURT: Okay, and just so you know, in 3 the litigation in the order setting litigation dates 4 and procedures that was filed on September 24, 2012, 5 there is material in there and instructions on how to 6 bring issues to the Court if there are problems with 7 discovery. 8 MS. WOJCIK: I understand, Your Honor, and I 9 am sorry, I do not want to use this as a forum to do 10 that, but since I think the issue of maybe limited 11 funds was brought up, I just needed to say that. 12 THE COURT: No, I appreciate that, but I was 13 saying to you if you are feeling frustrated with 14 discovery responses, you do have an option to bring the 15 Court in to assist you. 16 MS. WOJCIK: And, Your Honor, I thank you. 17 THE COURT: You are welcome. Mr. Goldstein, 18 let me ask you a couple of questions. Some of them 19 will be a repeat of the questions asked of Ms. Wojcik, 20 so there was an alleged incident of maintenance 21 improper maintenance in the notice of complaint with 22 the alleged maintenance occurring on or about February 23 24, 2011, where based on your understanding did that 24 maintenance occur? 25 MR. GOLDSTEIN: I believe that was in

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# COURT: . EPORTERS,,nc. VidEography U!ltigationTEchnology Court Reporting.VidEO & litigationTEchnology www.adVIEgaltEth.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page30 

### 1 Georgia. I am 99 percent positive it was. 2 THE COURT: 

### Okay, there was again an alleged 3 incident of additional maintenance that occurred on or 4 about June 13, 2011, where in your understanding did 5 that maintenance occur? 6 MR. GOLDSTEIN: 

### That was in the Chicago area. 7 I believe Aurora, Illinois. 8 THE COURT: 

### Okay. You had indicated that 9 your client is a charitable organization. What kind of 10 charitable organization is it? 11 MR. GOLDSTEIN: 

### It is a foundation. 12 THE COURT: 

### A charitable foundation, what

-- 13 MR. GOLDSTEIN: 

### It has IRS

-- I want to say 14 501c3, whatever the correct IRS tax exemption number is 15 it has that exemption. It is recognized by the IRS 16 as a charitable foundation. 17 THE COURT: 

### What kind of business or 18 foundation is it? 19 MR. GOLDSTEIN: 

### What is it well, if I may 20 explain, Your Honor, the

-- way back in

-- I don't 21 know, five years or so -- 2009, this foundation over a 22 ten year period restored a D17 aircraft. If Your Honor 23 knows, that is a World War II four engine propeller 24 bomber. 25

The Reporters Group Stephenson,VA yvww.reP.QrtersgrQYR.com THE COURT: 

### I didn't know that, but thank

County

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# ~itigatlonTechnology CourtReporting,Video & litigationTechnology wwW.advlc;galtecb.com Corporate: HistoricJordanSprings i 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2, 2012 CaseRef#16859-1 

### Page31 1 you. 2 MR. GOLDSTEIN: 

### It won the war in Europe, as 3 they say. There are 12 or 13 of them in the world that 4 are flyable, and the Liberty Bell, this aircraft

-- 390 5 Tanger Hotel was one of them until it was destroyed by 6 that fire. So, this foundation through donations and 7 so forth, and some private money -- or all private 8 money, I do not think there was any government money, 9 restored this aircraft and then requested of the FAA as 10 other similar kinds of foundations have done, an 11 exemption from certain Federal Aviation regulations so 12 that it could carry passengers on flights and charge 13 them, and the FAA grants these conditions such as 14 this, called "living history educational flights," I 15 think

-- LHEF or something like that. Imay be 16 mistaking that, but

-- so, it is

-- that is why I said 17 it is recognized by the FAA as a charitable foundation, 18 an educational foundation. It is, in fact, and has 19 been through exemptions and renewed exemptions a living 20 history flight experience. That is what it is

-- LHFE, 21 as an educational foundation so that people can ride on 22 this historic airplane and experience it as in effect 23 as a living museum. So, the FAA issued that exemption, 24 that is why I said the FAA is aware of it. I certainly 25 did not indicate that either Ms. Wojcik or Mr. Zurales

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# ~itigationTechnology Court Reporting.Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 Case Ref#16859-1 Page32 

### 1 were aware of that. I do not know if they were or not, 2 but the FAA certainly has recognized it

-- the Liberty 3 Foundation as a charitable foundation and as an 4 educational

-- as providing an educational opportunity 5 for American citizens and others around the country, 6 and in fact, around the world. 7 THE COURT: 

### So, as part of the foundation's 8 good work, this used to fly the N390TH aircraft ,all 9 over the country or all over the world to

-- 10 MR. GOLDSTEIN: 

### Well, it made one trip to 11 Europe I think, a year or ago -- not this past summer 12 but the summer before that to take part in a memorial 13 over there. Went to England and around England a 14 little bit, but except for that flight, what it does 15 is, it goes to various cities and takes passengers on 16 these living history flight experience flights that are 17 30 minutes each approximately. I mean, I am a crew 18 member on, so I know what it does, and so that is what 19 it does. It charges people and it is.supported by 20 these funds that it charges as well as I guess there is 21 some private donations involved. I am not aware of 22 what they are. It is not my role. But, so, yes it has 23 been

-- it goes from city to city to city and does 24 this,**a~d** 

### basically in the winter time, it is down for 25 maintenance and refurbishments.

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# ~ltigationTechnology CourtReporting,Video & LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page33 1 THE COURT: 

### Okay. Thank you. Mr. Goldstein, 2 let me ask you this. Now that the plane is destroyed, 3 does that mean that Liberty Foundation Inc. no longer 4 has any aircraft in its possession? 5 MR. GOLDSTEIN: 

### No, it is the Liberty 6 Foundation made arrangements through a lease to operate 7 another B17 aircraft which it is operating this season, 8 and this season ends in about a month, and that B17 is 9 what was in the movie Memphis Belle, the Memphis Belle, 10 B17, but that is the



## -- and it is an expensive leap. 11 But, that is the aircraft that it is operating now. 12 THE COURT: 

### Well, how is your client's 13 resources limited as you have alleged? 14 MR. GOLDSTEIN: 

### They took a huge hit on the 15 value of the airplane, and again this is not my -- I am 16 not really familiar with its finances except to say 17 that it is a -- it is a recognized charitable 18 foundation, and I just know from talking to the various 19 people in it that you know, it has limited funds. 20 They exist basically on -- you know, what people pay to 21 ride in it, which both were paying the operating 22 expenses, which are very high, and

-- you know, private 23 donations, and it is

-- I mean it is a charitable 24 foundation and uses its funds to

-- you know, provide 25 this living history flight

-- these living history

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# ~ltigationTechnology CourtReporting,Video & LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 Case Ref#16859-1 Page34 1 flight experiences. 2 THE COURT: If you are not familiar with the 3 resources and costs that this foundation has, how is it 4 that you would expect me to find that the resources are 5 so limited that they impact your client's ability to 

### 6 litigate a case in Chicago versus Atlanta? And, I 7 believe it says and let me finish because the Gates 

### 8 Foundation has a charitable wing to it, and

-- you 9 know, their perception of limited finances may be very 10 different from yours and my perceptions. So, just 11 saying to me that you were representing a charitable 12 foundation doesn't help me in making a determination 13 that it has limited resources. Does that make sense to 14 you? 15 MR. GOLDSTEIN: It does except for one thing, 16 Your Honor. I mean from your perspective, yes, but the 17 only thing this charitable foundation does is operate 18 this aircraft, and prior to that operate the Liberty 19 Belle, and it took a pretty big hit on -- you know, 20 what it could recover from insurance and use that money 21 to you know, to get into the lease on the airplane 22 it is operating now. I do not, and I did not indicate 23 I knew in detail what the resources were except to say 24 that

-- you know, that it is a charitable foundation. 25 It is not the government, and it is clearly

-- and it

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## COURl: EPORTERS.tnc. Videography U!ltigationTechnology CourtReporting,Video & LitigationTechnology www.advlegaltech.com Corporate: HistoricJordan.Springs t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page35 1 is not the Gates Foundation. I mean all it does is 2 operate this B17, and it is

-- and honestly, Your 3 Honor, I think that the

-- I sort of share Ms. Wojcik's 4 view of this that to try to compare the Liberty 5 Foundation to the resources -- to the government's 6 resources is a no brainer. I mean, I appreciate Your 7 Honor's concern, but you know

-- we -- it has very 8 limited resources compared to the FAA's resources, and 9 even assuming that the costs were the same to the FAA 10 and to the Liberty Foundation to try this case either 11 in Chicago or Atlanta, it still wouldn't be fair to 12 cause the Liberty Foundation to expend that kind of 13 money as compared to what kind of money the government 14 could expend. 15 THE COURT: Well, that is presuming that 16 Liberty Foundation does not have a bank of funds that 17 would allow it to make those kinds of expenditures, and 18 you are asking me to make that presumption in the 19 absence of any evidence. 20 MR. GOLDSTEIN: Well, I think

-- I am not 21 saying it couldn't

-- first of all, I am not charging 22 them for my fees, and I didn't charge them for my fees 23 in the Rodney Schneider case. I mean if that is an 24 indication. Everybody that does work for the Liberty 25 Foundation with one exception is a volunteer. Nobody

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# ~ltigationTechnology CourtReporting,Video & litigationTechnology ·www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22GS6 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page36 1 gets paid. People that come to fly the airplanes are 2 volunteers they do not get paid, and people that

-- 3 the mechanics that work on the airplanes are volunteers 4

-- they do not get paid. And, I can represent that to 5 you as a fact because I know, because I say I am a crew 6 member there. So

-- 7 THE COURT: You are doing this pro bono? 8 MR. GOLDSTEIN: Yes. 9 THE COURT: Ask you this about the witnesses 10 that you are planning to call. You have stated in your 11 materials that there would be at least six witnesses, 12 and that'they are all or mostly located in the Atlanta, 13 Georgia area. Is that a fair summary of your 14 assertion? 15 MR. GOLDSTEIN: Yes, I do not believe I have 16 identified anyone -- I do not believe I have identified 17 anyone that is that would have to travel from 18 other than the generally, the Atlanta area. 19 THE COURT: Are these all fact witnesses, or 20 are some of them or all of them expert witnesses? 21 MR. GOLDSTEIN: Well, we have identified I 22 think in our expert disclosure

-- I think three experts 2 3 and they are let me just look, I think they are all 24

-- they are all from .the Atlanta area except one who is 25 from New Smyrna Beach, Florida. So, three of the four

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# ~itigationTechnology Court Reporting,Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2;2012 Case Ref#16859-1 Page37 1 are from Atlanta, and one is from New Smyrna Beach, 2 which is up way closer to Atlanta than Chicago. 3 THE COURT: Can you spell the name of the 4 beach for me, because I couldn't quite hear it? 5 MR. GOLDSTEIN: It is New artd then Smyrna is 6 S-m- y-r-n-a Beach. 7 THE COURT: And, is that in Georgia as well? 8 MR. GOLDSTEIN: No, that is in Florida, 9 32168. 10 THE COURT: This particular expert would have 11 to fly 

### DO matter what just like you -- the FAA's expert 12 from New Mexico and the fact witness from Colorado. 13 MR. GOLDSTEIN: I believe New Smyrna Beach is 14 up near Jacksonville, and he 

### -- I do not know how he 15 would get to Atlanta, he could drive. I mean I do not 16 know, but everybody

-- 17 THE COURT: He has to travel no matter what? 18 MR. GOLDSTEIN: He would have to travel no 19 matter what, yes. 20 THE COURT: Okay. In terms of the other two 21 witnesses, are those fact witnesses that you are 22 thinking of calling for your six? 23 MR. GOLDSTEIN: We have identified a 24 professional, Mr. Genculu, who is in the Atlanta area, 25 Mr. Duncan, who is a former FAA employee. He is in the

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.·EPQRTERS,Inc. Videography tf!ltlgatlonTechnology CourtReporting,Video &·LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t ·1160JordanSpringsRoad i Stephenson, VA22656 800.262.8777 www.countyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page38 1 Atlanta area, and a Mr. DeJoseph, who is a former FAA 2 person. He is in the Atlanta area. Then, other 3 witnesses are Mr. Schneider, who is in the Atlanta 4 area, and I do not know-- let's see, Mr. Fower, who is 5 in the Atlanta area, Mr. Wilkins, who is in the Atlanta 6 area. I think that is

-- 7 THE COURT: Okay, so let's start with the 8 three Atlanta, Georgia expert witnesses. Were. those 9 among the people that you just named for me? 10 MR. GOLDSTEIN: I think

-- no, I named them

- 11

- yes, but yes, but I previously disclosed them, but, 12 yes. 13 THE COURT: Right, can you name them again so 14 that I can keep track of who all

-- who it all is that 15 comprise your six people. So, expert number one from 16 Atlanta would be? 17 MR. GOLDSTEIN: His name is

-- I have to 18 spell it for you. His first name is S-e-m-i-h, last 19 name Genculu, G-e-n- c-u-1-u. 20 THE COURT: Okay. 21 MR. GOLDSTEIN: The second is a William 22 Duncan. 23 THE COURT: Okay. 

### 24 MR. GOLDSTEIN: And, third is Gary Norville. 25 He is the one from New Smyrna Beach.

The ReportersGroup Stephenson.VA**W'f'IW,rEpo~!:.QYP.COJD** County 

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# ~ltigatlonTechnology Court Reporting.Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2, 2012 CaseRef#16859-1 Page39 1 

### THE COURT: Okay. 2 

### MR. GOLDSTEIN: And, then Francis DeJoseph, 3 D-e J- o-s-e-p-h. 4 

### THE COURT: And, that was the

-- your 

### 5 Atlanta, Georgia expert as well? 6 

### MR. GOLDSTEIN: Everybody but Mr. Norville of 7 that group is from Atlanta

-- the Atlanta area. 8 

### THE COURT: Okay, so of the five and six, you 9 had mentioned someone named Mr. Fuller, that is a fact 10 witness, not an -- 11 

### MR. GOLDSTEIN: Fowler. 12 

### THE COURT: Fowler, excuse me. 13 

### MR. GOLDSTEIN: He is the chief pilot of the 14 Liberty Foundation. 15 

### THE COURT: Well, a chief pilot could 16 potentially be considered an expert witness, and then 17 what about the sixth person? You were saying Mr. 18 Schneider, the mechanic

-- 

### 19 

### MR. GOLDSTEIN: Mr. Schneider is the mechanic 20 that did the work on February 24th. 21 

### THE COURT: Okay, and is Mr. Fowler out of 22 the Atlanta, Georgia area, or somewhere else? 23 

### MR. GOLDSTEIN: Atlanta. 24 

### THE COURT: Okay, and Mr. Schneider? 25 

### MR. GOLDSTEIN: Atlanta, Atlanta area.

TheReportersGroup

# colJRl:~EPORTERS CourtReporting,Video Stephenson,VA**~** · 'Inc. &litigationTechnology WWWf'tiPOrter§Qroup.com Vldeography LitigationTechnology www.adviEQaltech.com Corporate: HistoricJordanSprings

. t 1160JordanSpringsRoad t Stephenson,

. VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page40 1 THE COURT: Okay, the FAA has asserted and 2 you have agreed that the second maintenance allegation 3 that occurred on or about June 13, 2011 occurred in 4 Aurora, Illinois, near Chicago, and that Mr. Schneider 5 was alleged to have been the mechanic for Liberty 6 Foundation, Inc. to have done the additional 7 maintenance. 8 MR. GOLDSTEIN: He was involved in both. 9 THE COURT: Right, so was it because Liberty 10 Foundation flew Mr. Schneider up to take care of the 11 plane, or was he on the plane? How did he get up from 12 Atlanta, Georgia to do the maintenance in Aurora, 13 Illinois? If you know. 14 MR. GOLDSTEIN: I do not know. At the time 15 that this occurred, Mr. Schneider was an employee of 16 Delta Airlines, so he may have traveled as a -- you 17 know, through some discount on it. I do not know that. 18 He is retired now from Delta. 

### 19 THE COURT: Okay, when I look

-- when you 20 were telling me about your witnesses, and we have 21 identified them, you had recently stated that you were 22 appearing and representing your client pro bono, are 23 you planning on paying any of your potential expert 24 witnesses to appear and testify? 25 MR. GOLDSTEIN: I believe we will pay at

The ReportersGroup Stephenson,VA www.reportersgroup.com County 

# Pc COURT. • EPQRTERS.Inc. Vldeography

# ~itigationTechnology Court Reporting,Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#**16859~1** Page41 1 least one, and that is Mr. Genculu. I believe he 2 intends to charge. 3 THE COURT: And, what about the others? 4 MR. GOLDSTEIN: I do not know. 5 THE COURT: Is there a potential that you 6 will be paying all of them, some of them, or just one? 7 MR. GOLDSTEIN: For sure, one, and there 

### 8 certainly is potential the others will charge. I just 9 do not know. 10 THE COURT: Okay, in your practice in FAA 11 cases, are you familiar with and have you done 12 perpetuation deposition testimony in any way, shape or 

### 13 form in lieu of calling someone live for a hearing? 14 MR. GOLDSTEIN: You know, I have been doing 15 this since 1969, and I am going to say I do not think 16 that I have ever used

-- read a deposition, but it may 17 well be that I have read a deposition or parts of a 18 deposition in a trial. Just, I cannot think for sure 19 if so. 20 THE COURT: Okay, and I am not necessarily 21 talking about reading the deposition, I am basically 22 talking about using depositions and submitting them as 23 testimonial evidence to the trier of facts in lieu of 24 calling someone live. They are different. You don't 25 have to stand there and read the deposition to the

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# COURT: .· EPORTERS,,nc. Vldeography tf!ltigationTec:hnology Court Reporting.Video & litigationTechnology www.advlegalt§ch.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777**www.countyCourtReporters~com** 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page42 

### 1 trier of fact, but it sounds to me like that is not the 2 type of practice that people have had at the FAA in 3 FAA cases from what Ms. Wojcik was telling me. 4 MR. GOLDSTEIN: 

### I would agree with Ms. 5 Wojcik, yes. 6 THE COURT: 

### Okay. I 

### had asked Ms. Wojcik 7 this, and I 

### will ask this of you as well, based on your 8 current discovery process, is there a likelihood in 9 your opinion at any kind that you will be able to 10 winnow some of these witnesses out of live testimony 11 because of stipulation submission responses to 12 interrogatories et cetera? 13 MR. GOLDSTEIN: 

### No, Your Honor, I think it is 14 unlikely and if I may just say why. I mean, what 15 happened is

-- if you do not mind. What happened on 16 February 24th was that the fuel tanks on the B17 were 17 bladder type tanks, rubber if you will. I didn't mean 18 to say rubber, but I am just going to say bladder. 19 They were removed, and they were replaced with aluminum 20 tanks, which were from the airplane itself. That is 21 the essence -- and, there is no dispute about that. 22 So, in fact, I would say most of the facts are not 23 disputed it is going to be a question of what do these 24 facts mean in terms of the legal issues, and so that 25 was a major piece, and I am putting the word "major,"

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# ~ltigatlonTechnology Court Reporting,Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef# 16859-1 Page43 

### 1 that was a big piece of maintenance. That took some 2 time to do that. That is what occurred in Georgia, I 3 believe. The maintenance that occurred in Aurora was 4 simply repairing a leak in one of those replaced tanks. 5 That is all that happened in Aurora, so one, I believe 6 I one bit of welding that occurred in Aurora is all of 7 the maintenance that occurred in Aurora. Everything 8 else that relates to maintenance in this case, and it 9 was -- you know, a lot occurred in Georgia, and I 10 believe it was Georgia

-- although, it certainly was 11 not in the Chicago area, and I will find out just to 12 satisfy myself and support. So

-- 13 THE COURT: 

### Let me ask you this, were you 14 involved in the other companion cases that were 15 litigated in Chicago as referenced by Ms. Wojcik in her 16 earlier statement? 17 MR. GOLDSTEIN: 

### I represented Mr. Schneider, 18 and it was not litig

-- I mean it was litigated, but it 19 wasn't tried. We settled it. 20 THE COURT: 

### And, would you agree or disagree 21 with her statement that there was an anticipation that 22 such litigation would have occurred in Chicago? 23 MR. GOLDSTEIN: 

### We

-- the FAA may have 24 anticipated it, but I mean it settled at a point where 25 we had not yet made a request to hold it anywhere else;

The Reporters Group Stephenson.VA**~reportersgroup,corn** County

## ~ 

## COURT:

. EPORTERS .•nc. Videography tf!ltigationTechnology Court Reporting.Video & litigationTechnology www.advlegaltecb.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.countyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page44 1 but, I mean at the point that it was settled, it

-- I 2 accept Ms. Wojcik's word that it was scheduled to be 3 held in the Chicago area. 4 THE COURT: You have heard Ms. Wojcik talk 5 about the disadvantage that she believes the FAA in its 6 case will suffer is in fact the matter is set in 7 Atlanta, Georgia because of the potential for having a 8 greater cost assessed to the government during this 9 time of fiscal conservativism, and also because of the 10 potential that she and her colleague may be replaced by 11 someone in the Atlanta,·Georgia FAA office who will not 12 have the expertise to bring to the case either for 13 settlement purposes or for the litigation itself. Do 14 you have any response you would like to make to that 15 argument? 16 MR. GOLDSTEIN: Well, as I said I think in 17 one of my findings, I would be astounded if FAA changed 18 counsel at this point because their lawyers had to 19 travel a couple of hundred miles. I mean that would 20 just astound me. So, and Ms. Wojcik has been very 21 careful to say she has no idea whether that will occur 22 or not, but I would like to make a point about that if 23 I may, Your Honor, and that is

-- you asked about 24 whether or not the FAA travels outside of its area to 25 try cases. Well, in fact, the lawyers from the Great

The Reporters Group Stephenson,VA www.reporter!igfoup.com County

## ~ 

## CQUR"J:

. EPQRTERS,Inc. Videography

# ~ltlgationTechnology Court Reporting,Video & LitigationTechnology www.a<lvi!!Qaltech.com Corporate: HistoricJordanSprings t. 1160JordanSpringsRoad t. Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 Case Ref#16859-1 Page45 1 Lakes region, and this applies to every one of the 2 FAA's regions, travels in their region all of the time 3 to try NTSB cases. I mean, the NTSB holds hearings in 4 all kinds of cities in the Great Lakes regions, and the 5 lawyers from that office travel all around the Great 6 Lakes region. Just like if lawyers from the Atlanta 7 office travel all over the southeast, and they have 8 lawyers in Washing

-- well, not the Washington people, 9 but they have lawyers in Atlanta, Great Lakes, in the 10 New York area that travel all over the eastern region. 11 So, they travel all of the time any way for NTSB 12 trials. So, to say and I don't believe Ms. Wojcik 13 was trying to indicate in any way that they do not, but 14 they certainly do travel on a regular basis to try 15 cases before the NTSB. 16 THE COURT: And, Mr. Goldstein, you were 17 talking about how you have been doing FAA cases for 18 quite some time. In your experience, have you ever 19 seen the FAA switch counsel because the case was then 20 set out of the originally scheduled region? 21 MR. GOLDSTEIN: Never. 22 THE COURT: Have you ever had

-- 23 MR. GOLDSTEIN: In my experience. 24 THE COURT: have you ever had a case 25 where counsel from one region flies into someone else's

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## ~ 

## CQUR't ·. EPQRTERS.Inc. Videography U!ltlgatlonTechnology CourtReporting,Video & UtigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313------------------------------------------ Hearingheldon November2,2012 CaseRef#16859-1 Page46 

### 1 region because of continuity purposes? 2 MR. GOLDSTEIN: 

### Well, yes, I mean -- 3 especially yes, they do. They travel all over, and 4 I would

-- I do not know about another region, but they 5 certainly travel all over their own regions, and I have 6 had many trials in Miami, and that is covered by 7 lawyers from the Atlanta office. I have had travel to 8 various places in Florida. I have had cases in Texas. 9 The NTSB junkets travel all around, so they travel all 10 of the time. 11 THE COURT: 

### Well, I understand that part 12 lawyers may travel within their designated region. I 13 do not think that has been disputed at all. My 14 question to you is whether you have had personal 15 experience with an FAA attorney traveling outside of 16 their region to litigate a case. 17 MR. GOLDSTEIN: I 

### cannot recall any, but you 18 know, the FAA used to have lawyers spread all over the 19 country, which they do not any more, and so, I 

### just 20 I 

### cannot say yes or no, but I 

### would be astounded if it 21 was the case. 22 THE COURT: 

### Thank you very much. Do you have 23 anything else that you would like to add to your 24 presentation today? 25 MR. GOLDSTEIN: 

### Let me just look at my notes

The ReportersGroup Stephenson,VA www.reportersgroup.com County

## ~ 

## CQUR't EPQRTERS.Inc. Vldeography

# ~itlgationTechnology Court Reporting,Video & LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page47 1 for a moment, Your Honor. The only thing that I would 2 add is what I said in the beginning, which is

-- even 3 assuming the costs were equal between the parties, it 4 would just be unfair

-- you know, to assess costs 5 against the foundation as opposed to the FAA, and I do 6 not seek any prejudice 7 THE COURT: Why is that your opinion? 8 MR. GOLDSTEIN: I am sorry, Your Honor? 9 THE COURT: And, why is that in your opinion? 10 MR. GOLDSTEIN: Because the FAA has

-- you 11 know, multitudes greater resources than does the 12 foundation, and as I have said, assuming the costs are 13 the same, and we have listed

-- you know, more 14 witnesses than the FAA has, all of whom would have to 15 travel, and I just do not see how it would be fair to 16 require the foundation to assume those greater costs 17 rather than the government. 18 THE COURT: Okay. Thank you very much Mr. 19 Goldstein. Ms. Wojcik, I am going to turn'to you, do 20 you have any final arguments you would like to make? 21 MS. WOJCIK: Your Honor, I would just 22 reiterate that

-- you know, contrary to what Mr. 23 Goldstein said, just because we are the U.S. 24 government, it does not mean we have unlimited 25 resources. Things might have been different a couple

.The Reporters Group Stephenson,VA**www.reportersgrQY9~** County

## ~ 

# COURT. EPORTERS.tnc. Vldeography

# ~ltigationTechnology Court Reporting,Video & LlttgationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 .800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page48 

### 1 of years ago in terms of

-- you know, the freedom to 2 travel, but now those costs are really being taken into 3 consideration, and we do not have unlimited resources, 4 and whatever resources we have, it is not like the 5 government has some magic pot from which we can just 6 take out money. This is taxpayer money, and in terms 7 of the freedom to travel, I would just point out that

- 8 - you know, once again, I can't speak as to whether or 9 not there will be a transfer of

-- you know, of the 10 case to Atlanta, and a change in counsel, however, the 11 informal conference actually took place in Atlanta 12 precisely because

-- you know, we wanted to make it 13 convenient to the Respondent, and we didn't have the 14 counsel from here did not have the opportunity to 15 travel to Atlanta for the costs. So, that happened. 16 That transfer happened at least for the purpose of 17 informal conference which of course is very different 18 than the hearing. 19 THE COURT: 

### And, when did that informal 20 conference take place? 21 MS. WOJCIK: 

### I believe it was some time in 22 March, and obviously, that is just presenting the 23 arguments to the FAA is very different than a 24 litigation and hearing, but my point is that we do not 25 necessarily have the freedom to travel as Mr. Goldstein

The Reporters Group Stephenson,VA**www.repqrt~roup.com** County

## ~ 

# COURT. EPORTERS,,nc. Vldeography U!itigationTechnology CourtReporting,Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page49 1 indicates it. 2 THE COURT: Okay, and this informal 3 conference you are talking about was something that was 4 held on the informal

-- in an informal basis before the 5 case came up to this office. 6 MS. WOJCIK: The informal conference just 7 basically gives an opportunity for the Respondent to 8 come and present their arguments for why the FAA should 9 take action or should change their proposed action. 10 So, really

-- that is very different from the hearing 11 because any FAA representatives can gather those 12 arguments and then present them for us for 13 consideration. 14 THE COURT: Yes, and I understand that, but I 15 am saying if you are saying that it happened in March, 16 it sounds to me like you are saying that it happened 17 prior to when the case was referred to this office. Is 18 that correct? 19 MS. WOJCIK: Correct. 20 THE COURT: Okay. 21 MS. WOJCIK: Informal conference has to 22 happen before we take formal action, which would be the 23 order. 24 THE COURT: Okay. Was that March of this 25 year or March of

-- well, it had to have been March of

The Reporters Group Stephenson,VA www.reportersgroup.com County

## ~ 

## CQUR"[ EPORTERS.Inc. Vldeography tf!itigatlonTechnology CourtReporting.Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 Page50 1 this year given your line up in the notice of 2 complaint. Okay, thank you both very much.for your 3 arguments today. As I mentioned earlier, the office 

### 4 was closed on Monday and Tuesday of this week because 

### 5 of Hurricane Sandy, so I did not have a chance to go 

### 6 through all of the numbers that I would like to go 7 through. So, I am going to reserve oral ruling at this 

### 8 point, and I will issue a written decision no later 9 than say, next Thursday, which would be November 8, 10 2012. I want to thank you again for all of your 11 written materials and for your oral arguments. This 12 has been very helpful to me, and I appreciate both your 13 research and your time today. With that, on behalf of 14 the FAA, Ms. Wojcik, is there anything you would like 

### 15 to add or correct to the record or any question you 16 would like to ask? 

### 17 MS. WOJCIK: No. 18 THE COURT: Mr. Goldstein, on behalf of 19 Liberty Foundation, Inc., anything you would like to 20 add or correct to the record or any question you would 21 like to ask? 22 MR. GOLDSTEIN: No, Your Honor. 23 THE COURT: Okay. Thank you both very much. 24 We can go off the record, and I wish you all a good 25 day.

The Reporters Group Stephenson,VA www.r§J)OrtersgcQYR.com County

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## COURT. EPQRTERS,Inc. Vldeography

# ~itigatlonTechnology CourtReporting.Video & litigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.CountyCourtR.eporters.com 877.837.8313Hearingheldon November2, 2012 CaseRef#16859-1 Page51 1 

### MR. GOLDSTEIN: Thank you. 2 

### THE COURT: Good-bye. 3 

### (WHEREUPON, the proceedings were concluded at 

### 4 12:10 p.m.) 

### 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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## ~ 

## CQURJ: EPQRTERS,Inc. VldEOgraphy (.f!utlgationTEChno.,.. CourtReporting,Video & LitigationTechnology www.advlegaltech.com Corporate: HistoricJordanSprings t 1160JordanSpringsRoad t Stephenson, VA22656 800.262.8777 www.eountyCourtReporters.com 877.837.8313Hearingheldon November2,2012 CaseRef#16859-1 1 CERTIFICATE OF REPORTER 2 COMMONWEALTH OF VIRGINIA AT LARGE: 3 I, JASON ALAN LEES, do hereby certify that the 4 witness in the foregoing transcript was taken on the 5 date, and at the time and place set out on the Title 6 page hereof after first being duly sworn and that 7 the said matter was recorded stenographically and 8 mechanically by me and reduced to typewritten form 9 under my direction, and constitutes a true record of 10 the deposition as taken, to the best of my skill and 11 ability. 12 I certify that I am not related to or an 13 employee of counsel, and that I have no financial 14 interest in the outcome of this matter. 15 16 

### 17 18 19 20 /S/: JASON ALAN LEES 21 COURT REPORTER / NOTARY 22 My Commission Expires: OCTOBER 2, 2016 23 24 25 Page52

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# rii COURT: EPORTERS,Inc. Videography

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