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U.S. DEPARTMENTOF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

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### i · ' \.**~** In The Matter Of: LIBERTY FOUNDATION, INC. Respondent ) ) ) ) ) ) DocketNo. FAA-2012-0477

Case No. 2011 GL-03-0070

ORDER GRANTING RESPONDENT'S MOTION TO COMPEL OnJanuary 22, 2013 an Order Granting Continuance ofMay 2013 Hearingto November 2013 and SettingNewProcedural Deadlines was filed. Among otherthings, this Order set an April 30, 2013 deadline for general discovery exchange, and a June 28, 2013 deadline for supplemental discovery exchange. On January 23, 2013 the FAA filed a Corrected Notice ofAppearance. OnFebruary 27,2013 the Respondent filed Respondent'sNotice ofService of Expert Reports. OnJuly 26, 2013 the Respondent filed Respondent's Motionto Compel Response to Respondent's Discovery Request ("Motion"). Among otherthings, inthis Motionthe Respondent's attorney notedthat he was filing the Motionthe same day he received the FAA's allegedly deficient discovery response. Itwas also the day beforethe Respondent's attorney was going onvacation (date ofreturn unstated). There was no request for a telephone motion conference, and no submission ofa Civ. R. 37(a)(l) declaration. OnAugust 2, 2013 the FAA filed Response in Opposition to Motionto Compel ("Response"). OnAugust 5, 2013 the Respondent filed Respondent's Reply to Opposition Compel ("Reply").

BRIEF SUMMARY OF DISPUTE: The January 22,2013 Order SettingNewProcedural Deadlines allowed 8 weeks for supplemental discovery, following the conclusion ofgeneral discovery. This allowed the parties a ful130 days for responses pursuantto 14 C.F.R. §13.220, as well as the opportunity to seektimely relieffor disputes within 10 days (1/22/13 Order, para 13).



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The January 22, 2013 Order SettingNewProcedural Deadlines also allowedthe parties to file a writtenmotion ifany modification ofthe procedural dates was requested. (1122/13

· Order, para 12). Itwas undisputed that afterthe January 22, 2013 Order was filed, the parties informally agreed to extendthe general discovery deadline for approximately seven weeks, from April30, 2013 to June 19, 2013 (Mot. 2). The parties did not, however, file a jointwrittenMotion for Modification with this tribunal. It also appears undisputed that when the parties informally agreed to extendthe April30, 2013 general discovery deadline by six weeks, they did not discuss oragree to a concurrent extension ofthe June 28, 2013 supplemental discovery deadline (Mot.l-2; Resp. 1-2). On June 28,2013 at 3:16pm, onthe ninth (9th) day after the June 19,2013 agreed extended deadline for general discovery, the Respondent served the FAA by fax with supplemental discovery (i.e., Request for Admissions and Requests for Production of Documents). The Respondent asserts that the supplemental discovery is based on answers obtained during the Respondent's June 19,2013 deposition oftheFAA's expert witness, Tim Bourgoine, which were in direct conflict with the answers ofthe FAA's other expert witness, Don Dodge (Reply 2). The Respondent's June 28, 2013 supplemental discovery request advisedthe FAA that it had 30 days to respond (i.e., until July 26, 2013). Itappears clearthatthe Respondent unilaterally assumed that an agreed extension ofthe general discovery deadline included an inferred extension ofthe supplemental discovery deadline, pursuant to 14 C.P.R. §13.220(d) and 

### (1). Althoughthe FAA argued that a condensed supplemental discovery schedule was inplace, the FAA did notpromptly notify the Respondent ofits belief. Instead, itutilized the 30 day period extendingbeyond June 28, 2013 to respond to the Respondent's June 28, 2013 supplemental discovery requests. The FAA explainedthat it did so because FAA's counsel was out ofthe office from June 28, 2013 through July 16,2013. Six days after counsel's return to the office, on July 22, 2013, the FAA served by U.S. mail a response/objectionto the Respondent's June 28, 2013 supplemental discovery request. The Respondent received the response/objection four days later, onJuly 26, 2013. The Respondent asserts thatthe July 26,2013 was its first notice thatthe FAA did not share the Respondent's assumption that supplemental discovery deadlines hadbeen extended. The FAA asserts thatthe Respondent should have knownthat June 28, 2013 was the condenseddeadline for all supplemental discovery, absent specific agreement. Neitherparty provided any statute, regulation, caselaw, decision, orrule in support oftheirrespective positions. ·BRIEF DISCUSSIONAND ANALYSIS: Whenthe parties agreed to an informal extension ofgeneral discovery from April 30, 2013 to June 19, 2013, and did not concurrently address the supplemental discovery deadline, the parties created the following three options: 1) Condense supplemental discovery from 49 days (i.e., 8 weeks) to 9 days (i.e., from June 19, 2013 to June 28, 2013) with attendant condensing oftime for requests, responses and/or objections; or 2) Extend supplemental discovery beyond June 28, 2013 to a date priorto August 14, 2013 (the due date to file dispositive motions based ondiscovery); or 3) Effectively eliminate supplemental discovery. Neitherparty asserts that they contemplated, intended, or discussed eliminating supplemental discovery. Itis also clear from the January 22, 2013 Order SettingNew Procedural Deadlines thatthis administrative courtintendedthe parties to have a meaningful opportunity to conduct supplemental discovery. In essence, the Respondent argues that there was an informal concurrent extension ofsupplemental discovery (but with no agreed deadline for extension) when the parties agreed informallyto an extension ofgeneral discovery. In contrast, the FAA argues that absent a specific agreement, bothparties were bound bythe June 28, 2013 deadline under a condensed supplementary discovery schedule (but with no agreed condensed schedule withinthe 9 days). Ifthe FAA is correct, then the FAAhas failed to demonstrate compliance withthe informally condensed supplemental discovery deadline ofJune 28, 2013. Under a condensed 9 day supplemental discovery deadline scenario, the FAA did not have the leisure to wait 28-30 days to respond to the June 28, 2013 supplemental discovery. Under a condensed schedule, with no agreement about condensedtime for discovery requests or responses, the FAAhad the obligationto respond/object to the June 28, 2013 discovery request onthe same date itwas received (i.e., the last date the parties could exchange and finish supplementary discovery). In the alternative, the FAA had the affirmative obligationto promptly move for relieforprotection from a potentially untimely or overly burdensome supplemental discovery request, served onthe final day ofthe 9 day condensed schedule. The FAA counsel states that he did not respond immediately to the Respondent's June 28,2013 discovery the same day it was received, because he was outofthe office for approximatelythree (3) weeks, beginning on June 28, 2013 (Resp. 1, FN 1). Upon the FAA counsel's return to the office onJuiy 17, 2013, he did not immediatelyrespond to the June 28, 2013 discovery, file a motion for relieforprotection from the supplemental discovery request, nor notify the Respondent that he did not share the Respondent's assumption about extended supplemental discovery. Instead, the FAA

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utilized six (6) ofthe remaining 8 days in a default 30 day discovery response schedule (as identified by the Respondent in its supplemental discovery request) to file an objection/requestto the June 28, 2013 supplemental discovery. The FAAresponse was properly served on the Respondent by U.S. mail, which the Respondent then did not receive until four ( 4) days later. Itis inconsistent for the FAA to argue that a 9 day condensed supplemental discovery schedule should be formally adopted nuncpro tunc, when the FAA did not act within this condensed schedule on June 28, 2013, or with attendant immediacy onJuly 17, 2013, in responding to the Respondent's June 28, 2013 supplemental discovery request.This administrative court intended the parties to have a meaningful opportunity to conduct supplemental discovery. The FAA has failed to demonstrate that meaningful supplemental discovery could have occurred within 9 days (i.e., from June 19, 2013 to June 28, 20 13). The FAAhas also failed to show that it is prejudiced or disadvantaged with an extension ofthe June 28, 2013 deadline, orthat it should be protected from answering the requested discovery. Had the parties filed a Motionto Modify the litigation schedule as directed inthe January 22, 2013 Order SettingNewProcedural Deadlines, this issue couldhave been easily addressedbythis administrative court much earlier inthe litigation calendar, with ample time allowed for both supplemental discovery requests and responses. Pursuant to 14 C.F.R. §13.218 and 14 C.F.R. §13.220, and after reviewing all relevant caselaw, decisions, regulation, statutory authority, motions, pleadings, and being fully advised;

IT IS HEREBY ORDERED: 1. The Respondent's July 26,2013 Motionto Compel is granted. 2. August 12, 2013: Supplemental Discovery Response Deadline. Onorbefore August 12, 2013, the FAA shall promptly and fully respond to the Respondent's June 28, 2013 supplemental discovery requests.

Attachment: Service List

### FDMS No. FAA-2012-0477 (Civil Penalty Action) SERVICE LIST- BY 

### U.S. MAIL ORIGINAL & ONE COPY 

### Federal Aviation Administration1 

### 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000

Mr. Christopher Stevenson, Esq. Complainant's Counsel 

### Office ofthe Regional Counsel P.O. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAJ(: 404-305-5223 Mr. Stuart A. Goldstein, Esq. Respondent's Counsel 

### Stuart A. Goldstein, P.A. 9350 South Dixie Highway, 

### lOth Floor Miami, FL 33156 TEL: 305-670-1222 FAJ(: 305-670-7065 Judge J.E. Sullivan U 

### S. AdministrativeLawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation ONE COPY



### 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2132 FAJ{: 202-366-7536

1 Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.