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ORIGINAl 

RECEIVED 

NOV- 8 2012 

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 a.m. 

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Hearing held on November 2, 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 

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Page2 

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Hearing held on November 2, 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 . 71 0 9 

8 

9 ALSO PRESENT: 

10 CODY L .. SMITH, OBSERVER 

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' 

Hearing held on November 2, 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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 5 

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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 6 

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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Hearing held on November 2, 2012 Case Ref# 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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 8 

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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 9 

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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--------------------------------------------------- -

Hearing held on November 2, 2012 Case Ref# 16859-1 Page 10 

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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Hearing held on November 2, 2012 Case Ref# 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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Hearing held on November 2, 2012 Case Ref.# 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 

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MS. WOJCIK: No. 

THE COURT: What about your potential 

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Hearing held on November 2, 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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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 14 

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 

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Hearing held on November2, 2012 Case Ref# 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 2 011 . 

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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---~--

Hearing held on November 2, 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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 17 

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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------------------------------------------------------

Hearing held on November 2, 2012 Case Ref# 16859-1 Page 18 

1 witness would have to travel no matter what, would they 

2 not? 

3 MS. WOJCIK: That is correct, Your Honor. 

4 However 

5 THE COURT: Let me ask you a second question. 

6 So, what is the distinction in price between them 

7 traveling to Chicago versus them traveling to Atlanta? 

8 Wouldn't the amounts be fairly negligible? 

9 MS. WOJCIK: I don't know that I would --

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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 19 

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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 20 

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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Hearing held on November 2., 2012 Case Ref # 16859-1 Page 21 

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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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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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 23 

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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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 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 25 

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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 26 

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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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 27 

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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Hearing held on. November 2, 2012 Case Ref# 16859-1 Page 28 

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 

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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 29 

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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 30 

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 

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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 31 

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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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 32 

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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 33 

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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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 34 

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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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 35 

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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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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Hearing held on November 2; 2012 Case Ref# 16859-1 Page 37 

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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Hearing held on November 2, 2012 Case Ref# 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. 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 39 

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. 

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Hearing held on November 2, 2012 Case Ref # 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 

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Hearing held on November 2, 2012 Case Ref# 16859~1 Page 41 

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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Hearing held on November 2, 2012 Case Ref# 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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Hearing held on November 2, 2012 Case Ref # 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; 

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Hearing held on November 2, 2012 Case Ref# 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 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 45 

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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------------------------------------------

Hearing held on November 2, 2012 Case Ref# 16859-1 Page 46 

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 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 47 

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, multi tudes 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 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 48 

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 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 49 

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 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 50 

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. 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 51 

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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Hearing held on November 2, 2012 Case Ref# 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 

Page 52 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 53 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 54 

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Hearing held on November 2, 2012 Case Ref# 16859~1 Page 56 

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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 57 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 58 

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Hearing held on November2; 2012 Case Ref# 16859-1 Page 59 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 60 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 61 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 62 

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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 63 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 64 

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Hearing held on November 2, 2012 Case Ref # 16859-1 Page 65 

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Hearing held on November 

------------------

2, 2012 Case Ref# 16859-1 Pag~ 66 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 67 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 69 

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The Reporters Group CcoQuntUy RT~EPORTERS Court Reporting, Video 

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Hearing held on 

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Hearing held on November 2, 2012 Case Ref# 16859-1 Page 72 

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The Reporters Group 

Stephenson. VA 

~ortersgroup.com. 

COURT: County ~ .. EPORTERS.tnc. 

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.Corporate: Historic Jordan Springs t 1160 Jordan Springs Road t Stephenson, VA 22656 

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Hearing held on 

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The Reporters Group 

Stephenson, VA 

www.reportersgroup.co..m 

November 2, 2012 Case Ref# 16859-1 

York 45:10 

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z 

Zurales 4:11 

17:11 31:25 

Page 73 

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