SERVED: AUGUST 5, 2013 

U.S. DEPARTMENTOF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

, •• ~- • ~- '1. /.\ c,,r: V. i · ' \. ~ 

In The Matter Of: 

LIBERTY 

FOUNDATION, INC. 

Respondent 

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Docket No. FAA-2012-0477 

Case No. 2011 GL-03-0070 

ORDER GRANTING RESPONDENT'S MOTION TO COMPEL 

On January 22, 2013 an Order Granting Continuance of May 2013 Hearing to 

November 2013 and Setting New Procedural Deadlines was filed. Among other things, 

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 of Appearance. 

On February 27,2013 the Respondent filed Respondent's Notice of Service of 

Expert Reports. 

On July 26, 2013 the Respondent filed Respondent's Motion to Compel Response 

to Respondent's Discovery Request ("Motion"). Among other things, in this Motion the 

Respondent's attorney noted that he was filing the Motion the same day he received the 

FAA's allegedly deficient discovery response. It was also the day before the 

Respondent's attorney was going on vacation (date of return unstated). There was no 

request for a telephone motion conference, and no submission of a Civ. R. 37(a)(l) 

declaration. 

On August 2, 2013 the FAA filed Response in Opposition to Motion to Compel 

("Response"). 

On August 5, 2013 the Respondent filed Respondent's Reply to Opposition 

Compel ("Reply"). 

BRIEF SUMMARY OF DISPUTE: 

The January 22,2013 Order Setting New Procedural Deadlines allowed 8 weeks 

for supplemental discovery, following the conclusion of general discovery. This allowed 

the parties a ful130 days for responses pursuant to 14 C.F.R. §13.220, as well as the 

opportunity to seek timely relief for disputes within 10 days (1/22/13 Order, para 13). 

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SERVED: AUGUST 5, 2013 

The January 22, 2013 Order Setting New Procedural Deadlines also allowed the parties to 

file a written motion if any modification of the procedural dates was requested. ( 1122/13 

· Order, para 12). 

It was undisputed that after the January 22, 2013 Order was filed, the parties 

informally agreed to extend the general discovery deadline for approximately seven 

weeks, from April30, 2013 to June 19, 2013 (Mot. 2). The parties did not, however, file a 

joint written Motion for Modification with this tribunal. 

It also appears undisputed that when the parties informally agreed to extend the 

April30, 2013 general discovery deadline by six weeks, they did not discuss or agree to a 

concurrent extension of the June 28, 2013 supplemental discovery deadline (Mot.l-2; 

Resp. 1-2). 

On June 28,2013 at 3:16pm, on the 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 ofthe FAA's expert witness, 

Tim Bourgoine, which were in direct conflict with the answers of the FAA's other expert 

witness, Don Dodge (Reply 2). 

The Respondent's June 28, 2013 supplemental discovery request advised the 

FAA that it had 30 days to respond (i.e., until July 26, 2013). It appears clear that the 

Respondent unilaterally assumed that an agreed extension of the general discovery 

deadline included an inferred extension of the supplemental discovery deadline, pursuant 

to 14 C.P.R. §13.220(d) and (1). 

Although the FAA argued that a condensed supplemental discovery schedule was 

in place, the FAA did not promptly notify the Respondent of its belief. Instead, it utilized 

the 30 day period extending beyond June 28, 2013 to respond to the Respondent's June 

28, 2013 supplemental discovery requests. The FAA explained that it did so because 

FAA's counsel was out of the 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/objection to the Respondent's June 28, 2013 supplemental discovery request. 

The Respondent received the response/objection four days later, on July 26, 2013. 

The Respondent asserts that the July 26,2013 was its first notice that the FAA did 

not share the Respondent's assumption that supplemental discovery deadlines had been 

extended. The FAA asserts that the Respondent should have known that June 28, 2013 

was the condensed deadline for all supplemental discovery, absent specific agreement. 

Neither party provided any statute, regulation, caselaw, decision, or rule in 

support of their respective positions. · 
BRIEF DISCUSSION AND ANALYSIS: 

When the parties agreed to an informal extension of general 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 prior to August 

14, 2013 (the due date to file dispositive motions based on discovery); or 

3) Effectively eliminate supplemental discovery. 

Neither party asserts that they contemplated, intended, or discussed eliminating 

supplemental discovery. It is also clear from the January 22, 2013 Order Setting New 

Procedural Deadlines that this administrative court intended the parties to have a 

meaningful opportunity to conduct supplemental discovery. 

In essence, the Respondent argues that there was an informal concurrent 

extension of supplemental 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, both parties were bound by the June 28, 2013 

deadline under a condensed supplementary discovery schedule (but with no agreed 

condensed schedule within the 9 days). 

If the FAA is correct, then the FAA has failed to demonstrate compliance with the 

informally condensed supplemental discovery deadline of June 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 condensed time for discovery 

requests or responses, the FAA had the obligation to respond/object to the June 28, 2013 

discovery request on the same date it was received (i.e., the last date the parties could 

exchange and finish supplementary discovery). In the alternative, the FAA had the 

affirmative obligation to promptly move for relief or protection from a potentially 

untimely or overly burdensome supplemental discovery request, served on the final day 

of the 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 out of the office 

for approximately three (3) weeks, beginning on June 28, 2013 (Resp. 1, FN 1). Upon 

the FAA counsel's return to the office on Juiy 17, 2013, he did not immediately respond 

to the June 28, 2013 discovery, file a motion for relief or protection 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 
SERVED: AUGUST 5, 2013 

utilized six (6) of the 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/request to the June 28, 2013 supplemental discovery. The FAA response was 

properly served on the Respondent by U.S. mail, which the Respondent then did not 

receive until four ( 4) days later. 

It is inconsistent for the FAA to argue that a 9 day condensed supplemental 

discovery schedule should be formally adopted nunc pro tunc, when the FAA did not act 

within this condensed schedule on June 28, 2013, or with attendant immediacy on July 

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 FAA has also failed to show that it is prejudiced or disadvantaged 

with an extension of the June 28, 2013 deadline, or that it should be protected from 

answering the requested discovery. 

Had the parties filed a Motion to Modify the litigation schedule as directed in the 

January 22, 2013 Order Setting New Procedural Deadlines, this issue could have been 

easily addressed by this administrative court much earlier in the 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 Motion to Compel is granted. 

2. August 12, 2013: Supplemental Discovery Response Deadline. On or before 

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-Suite 2W1 000 

Mr. Christopher Stevenson, Esq. 

Complainant's Counsel 

Office of the 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. Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

ONE COPY 

1200 New Jersey 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 or by expedited courier, use the following address: 

Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 

2Wl 000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.