# SILVERBERG GOLDMAN& 

# BIKOFF, t.t.P. ATTORNEYS AT LAW

VIAFEDEX Federal Aviation Administration 600 Independence Avenue, S.W. Wilbur Wright Building Suite 2W!OOO Washington, D.C. 20591 GEORGETOWN PLACE • SUITE 120 • IIOJ 30TH STREET, NW • '07ASHINGTON, D.C. 20007 VmcE(202) 944-3300 • fACSIMILE (202) 944-3306


### September 26, 2014 

# RECEIVED SEP 2f 2014 HEARING DOCKET (Attention: Hearing Docket Clerk, AGC-430) Re: In the Matter ofAirhorne Maintenance and Engineering Services Docket: FAA-2013-0291 FAA Case No.: 2011S0290032 Dear Sir orMadam: Enclosed for filing in the above-referenced case please find an original and one copy of Respondent's Answer to FAA's Motion for Extension ofTime for Discovery. Also enclosed is an additional copy of the Answer and a pre-addressed, postage paid envelope. Please date-stamp the additional copy and return it to our office in the enclosed envelope. Thank you for your assistance. Please call me at the telephone number listed above if you have any questions regarding this matter. Very trulyyours, SILVERBERG, GOLDMAN & 

### BIKOFF, LLP Attomeys for AIRBORNE MAINTENANCE AND ENGINEERING SERVICES



# "'~!,~~

### In

### the matter of BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

DocketNo. FAA-2013-0291 FAA Case No. 2011S0290032 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent Administrative Law Judge J.E. Sullivan

RESPONDENT'S ANSWERTO FAA'S MOTION FOR EXTENSION OF TIME FORDISCOVERY RespondentAirborne Maintenance and Engineering Services ("AMES") hereby answers the Motion for Extension ofTime for Discoveryfiled bythe Federal Aviation Administration ("FAA") in the above-referenced proceeding on September 25,2014. In

### its motion, the FAArequests an extension ofat least 30 days ofthe current September 30, 2014 deadline for conducting fact witness depositions. (Motion at 2.) The FAA also requests thatthe parties be instructed tojointly submit a newproposed litigation schedule for this

case. (!d.) 

### Complainant states that there "remainmultiple depositions to be takenby both sides, and it is notpossible for those depositions to be completedbythe end ofthe fact witness deposition period." (Id at 1.) The FAA further claims that "Respondent has declined to agree to joinin arequest for an extension oftime, and Respondent and theFAAhavebeenunable to reach agreement on a schedule such that some ofthe remaining depositions could be conducted bythe end ofSeptember 2014, withthe remainder already scheduled, such that theparties could suggestparticular adjustments to the existing litigation schedule." (Jd.) There is, however, a significant amount ofbackground informationthat the FAA fails to disclose inits motion which makes it evident that the reason itis now impossible to completethe
I

### depositions in this casebefore the September 30th deadline is because FAA counsel having provided dates in Septemberthathewas available (Exhibit 1) subsequently statedhe was unavailable to travel to Orlando, the citywherehe previouslyindicated two ofthe FAA witnesses would sit for their depositions. (Exhibit 2.) Had FAA counsel madehimselfavailable, thetwo FAAwitnesses wouldhavebeen deposed last week (September23) and theAMES fact and 30(b)(6) witness wouldhavehadhis deposition taken on September 30th. In otherwords, the inabilityto complete fact witness depositions by the deadline set by Your Honor's Order Setting New Litigation Dates andProcedures was notthe result ofanyfailure onthepart ofthe undersignedto attemptto scheduleAMES' depositions ofthe FAA Inspectors or to makethe AMES representatives available for the FAA to taketheir depositions before the September 30th deadline. As early as September 10,2014, theundersigned counsel for AMES wrote to the FAA's counsel to coordinatethe scheduling ofAMES' depositions ofFAA Inspectors FrankLipinski and RichardD'Arcy and notedthe deposition deadline ofSeptember 30th. (Exhibit l.) At the

same time, counsel for AMES asked theFAA attorneyto advisehim regarding InspectorBilly Steffey's availability for deposition purposes 1 

### (Id.) In themorning ofSeptember 17, 2014, the undersigned again wrote to counsel for the FAA asking ifhe hadbeen able to confirm the dates for the depositions ofInspectors Lipinski and D'Arcy so as to coordinate them with the dates FAA counsel was available, and noted the needto make fmal arrangements for a courtreporter and a conferenceroom in whichto takethe depositions. (Exhibit 3, p. 6.) Later that same day, having notheardback from theFAA attorneyregarding the scheduling ofthe depositions and

1 

### To date, FAA counsel has still notprovided theundersigned with anydates onwhich Inspector Steffeyis availabletobe deposed. (Exhibit 3, p. 1.) 2

### given the approaching September 

### 301h deposition deadline,2 

### the undersigned noticed the depositions ofInspectors Lipinski and D'Arcy for September 

### 23'd in Orlando, Florida- this being one ofthe dates FAA counsel indicated he was available. (Exhibits 1 and 2.) Counsel for AMES had also arranged for a courtreporter and a conferenceroom to beused for the deposition ofthetwo FAAInspectors on September 

### 23'd. Nevertheless, the undersigned noted in his correspondencebywhich he served the deposition notices that he wouldbe willing to discuss alternative dates for taking the depositions before the September 

### 30'h deadline. (Exhibit 2.) Two days later on September 

### 19, 2014, counsel for the FAA informed the undersigned that he would notbe able to attend the depositions in Orlando on September 

### 23'd contraryto his earlier advice that hewouldbe available on that day. (Id.) 

### FAA counsel also suggested in a separate email on September 

### 19'h making ajointrequest to extend the deposition period. (Exhibit 3, p. 5.) The undersigned indicatedthatifFAA counsel would draft such a motion thathe wouldbe willing to look at the specifics ofwhat the FAA was proposing. (Id.) 

### Thereafter on September 

### 23, 2014, the undersigned inquired ifcounsel for the FAA was prepared to go forward with the depositions ofInspectors Lipinski and D'Arcy on September 

### 301h (Exhibit 

### 3, p. 

### 4) sincethe FAA attorney hadpreviously stated thathe was also available for depositions on that date. Counsel for the FAAwroteback on the same dayindicating thathewas still available to engage in depositions

on September 

### 301h, but disputed whether the date shouldbeused for the undersigned to take the depositions ofInspectors Lipinski and D'Arcy or for the FAAto take the depositions ofAMES and JeffBecker, the AMES Director, QualityAssurance & 

### Training. (Exhibit 3, p. 3.) The undersignedresponded in a subsequent email to theFAAbynoting, among other things: that FAA counsel had given him dates within the deposition period when he would be available (i.e.,

2 

### The undersignedreceived an "Automatic reply" to his first email to the FAA on September l7'h indicating that FAA counsel was out ofthe office until September 

### 19'h. 3

### September23-24 and September29-30); that AMES' counsel was preparedto conductthe depositions oftheFAA Inspectors during this time;3 

### that AMES hadbeenprepared to have its witnesses deposedbythe established deadline; and that itwas because FAA counsel did nothold the dates thathe saidhe wouldbe available ormade other commitments on these dates that the depositions could notbe completedbeforethe end ofSeptember. (Exhibit 3, p. 2.) Nevertheless, the undersigned statedto FAA counsel thathe would "consider" entering into a jointrequest for modification ofthe litigation schedule depending on the specifics ofthe alternative schedulethe FAA intendedto propose. (Exhibit 3, pp. 2 and 3.) Hawver, on further reflectionRespondent's counsel didnot wishto imply bymaking ajointrequestthat the inability
to meetthe fact witness deposition deadline was the result ofhis actions orinactions. In 

### short, theneed for an extension ofthe deadline for fact witness depositions is the result ofFAA counsel's failme to pmsue the scheduling ofthe witnesses and his availability in good faith. The FAA's lackadaisical approachto the scheduling order should notredound to the detriment ofthe Respondent. Respondent's counsel has attempted to schedule the depositions to meet the deadlineusing the dates FAA counsel indicatedhe was availablebut laterretracted. Section 13.217(f) ofthe Rules ofPracticeprescribes the sanctions available when a party fails to comply withthe Judge's scheduling order, includingthe preclusion ofthe testimony of the party's witness at the hearing, among other altematives.4 

### Respondent leaves itto the sound

3 

### On September25, 2014, Respondent issuednewNotices ofDeposition for Inspectors Lipinski and D'Arcy to be deposed on September 30, 2014 in Orlando, Florida. 4 

### 13.217(f) Sanctions for failme to complywithjoint schedule. Ifa party fails to comply withthe administrative lawjudge's order establishing ajoint schedule, the administrative lawjudgemay direct thatpartyto complywith a motionto discoveryrequest or, limited to the extent ofthe party's failure to complywith a motion ordiscoveryrequest, the administrative lawjudge may: (1) 

### Strike thatportion ofa party's pleadings; (2) Precludeprehearing or discovery motions bytheparty; (3) Preclude admission ofthat portion ofa party's evidence at thehearing, or 4

### discretion ofY ourHonorto fashion the proper sanction in this case. One such sanction couldbe to prohibit the Complainant from taking the deposition ofthe AMES witness after the September 30th deadline. This sanctionwouldbe appropriate given the insurmountable schedulingissues created byFAA counsel's inabilityto make himselfavailable whenhepreviously advisedhe wouldbe. 5 

### However, ifthe deadline is extended, then Respondent would ask that theremainder ofthe procedural dates bemodified so as not to impingeupon the time nowprovided for the filing ofdispositive motions after the fact witness deposition deadline-- which currentlyis 49 days

-- and not to shrink the 14 days betweenthe end ofexpertrebuttal disclosures and the dispositive motion deadline. To the extent required, otherprocedural dates mayneed to bereset in orderto retain the current intervalsbetweenprocedural dates.

Dated: September 26, 2014 Respectfully submitted, SILVERBERG, GOLDMAN & 

### BIKOFF, L.L.P. Attorneys for 

### AIRBORNE MAINTENANCE AND

By:**~~~~~~~--~~~-------** 

### Robert P. Silverberg, E 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel: (202) 944-3304 Fax: (202) 944-3306 Email: rsilverberg@sgbdc.com

(4) Preclude that portion ofthetestimony ofthatparty's witnesses at the hearing. 5 

### FAA counsel was notified that the designated AMES witness is available on October 7, 2014. Subsequently, FAA counsel notedhis unavailability on October 7th. 

### (Exhibit 3, pp. 1-2.) However, the AMES witness will notbe available after October

## ?'h until the week ofOctober 20th 

### dueto the schedule ofhis ongoing medical treatment. 5

### CERTIFICATE OF SERVICE I hereby certifythat onthis 26th day ofSeptember 2014, I caused a true copy ofthe foregoing Respondent's Answerto FAA's Motion for Extension ofTime for Discovery to be served upon the following: Federal Aviation Administration 600 Independence Avenue, S.W. WilburWright Building Suite 2Wl000 Washington, D.C. 20591 (Attention: Hearing Docket Clerk, AGC-430) Tel: (202) 385-8229 (original and one copybyFedEx) TheHon. J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, D.C. 20590

· Fax: (202) 366-7536

(one copybyFirst Class Mail and facsimile) ChristopherR. Stevenson, Attorney Federal Aviation Administration Office ofthe Regional Counsel, ASO-7 Southern Region P.O. Box 20636 Atlanta, Georgia 30320 Fax: ( 404) 305-5223 (one copybyFirst Class Mail and facsimile)

# Exhibit 1

### Robert Silverberg From: Chris.Stevenson@faa.gov Sent: To: Thursday, September 11, 2014 10:14 AM Robert Silverberg Subject: RE:AMES Bob, The blocks I currently have available are the 23-24'h and the 29-30th Iwill check with mywitnesses as to their availability. Christopher Stevenson Attorney Office ofthe Regional Counsel (404) 305-5200

From: Robert Silverberg [mailto:rsilverberg@sgbdc.com] Sent: Wednesday, September 10, 2014 2:26 PM To: Stevenson, Chris (FAA) Cc: JeffJohnson Subject: AMES Chris, 1am writing to coordinate the scheduling ofdates for depositions of Inspectors Lipinski and D'Arcy in Orlando Florida prior to the deposition deadline of September 30th. I recall you indicated you have an anniversary on Sept. 19th and my anniversary is Sept. 18th so I think we can agree not to schedule the depositions on either ofthese two days. I will only need one day to take the depositions of both inspectors. Also please let me know about Inspector Steffey's availability. I am waiting to obtain information necessary to get back to you on the availability ofthe AMES company and fact witness but it will likely be near the very end ofthe month. Regards. BoiJ
PRIVILEGED AND CONFIDENTIAL The information transmitted is intended only for the person or entity to which it is addressed and is (1) subject to attorneyclient privilege; (2) attorney work product; or (3) confidential. Any review, retransmission, dissemination or other use of, or taking ofany action in reliance upon this information by persons or entities otherthan the intended recipient is unauthorized and strictly prohibited. Ifyou received this in error, please contact the sender and delete the material from any computer.



## Robert~ Silverberg 

### Silverberg, Goldman & 

### Bikoff, L.L.P. 1101 30th Street

### N. W Suite 120 Washington, D. C. 20007 rsilverberg@sgbdc.com directline 202-944-3304 fax 202-944-3306 mobile 301-922-8895

1

# Exhibit 2

### Robert Silverberg From: Chris.Stevenson@faa.gov Sent: To: Friday, September 19,2014 8:36AM Robert Silverberg Subject: RE: Docket No. FAA-2013-0291 Bob, You did not even respond to my e-mail and indicate whether or notyou were available on the days I noted that I was available. This is the first indication I have had from you that you are available on any particular day. You also still have not informed me when your client is available to be deposed. I am gettingthese Notices of Deposition on Friday the 19th, trying to arrange depositions forthe following Tuesday. As we have discussed previously in this case, I cannot simply travel at the drop ofa hat, and I am not able to attend a deposition on September 

### 23 (even ifyou had followed up immediately after I gave you myavailability, Iwould not have been able to do a deposition on the morning ofthe 

### 23'd- the 

### 23'd was the first time I had available, which means I would have had to travel that morning). Are you available duringthe week ofthe zgth for depositions? Christopher Stevenson Attorney Office ofthe Regional Counsel (404) 305-5200

From: Robert Silverberg [mailto:rsilverberg@sgbdc.com] 

### Sent: Wednesday, September 17, 2014 2:32 PM To: Stevenson, Chris (FAA) 

### Cc: JeffJohnson 

### Subject: Docket No. FAA-2013-0291 Chris, Since I did not hearfrom you regarding the scheduling ofthe Lipinski and D'Arcy depositions and given the deadline for completing depositions, I have arranged for a conference room and court reporter in order to depose these two FAA deponents on Tuesday, September 23 in Orlando. We can, of course, discuss alternative days but there are few available before the end ofthe deposition discovery period. Please contact me as soon as possible to discuss the scheduling of thesedepositions. Regards. Bob Silverberg

PRIVILEGED AND CONFIDENTIAL The information transmitted is intended only for the person or entity to which it is addressed and is (1) subject to attorneyclient privilege; (2) attorney work product; or (3) confidential. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is unauthorized and strictly prohibited. Ifyou received this in error, please contact the sender and delete the material from any computer.

1

### In the matter of 

### BEFORE THE U.S. 

### DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

DocketNo. FAA-2013-0291 FAA CaseNo. 2011S0290032 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent Administrative LawJudge J.E. Sullivan



### NOTICE OF DEPOSITION RespondentAirborne Maintenance and Engineering Services ("AMES") hereby notifies the Federal Aviation Administration and its counsel that it will take depositiontestimony on oral examination ofthe individual listed below at the follow time and place: Deponent: Date: Time: Location: Frank Lipinski September 23, 2014 9:00AM EDT Lowndes, Drosdick, Doster, Kantor & 

### Reed, P.A. 215 No1ih Eola Drive Orlando, FL 3280I

or such othertime and place as the parties may mutually agree. The deposition will continue from dayto day until completed. The deponent is required to be present at the noticed time, date and location. The deposition will be taken before a notary public or some other person duly authorized by lawto administer oaths and will be recorded stenographically.

Dated: September 17, 2014 Respectfully submitted, SILVERBERG, GOLDMAN & 

### BIKOFF, L.L.P. Attorneys for 

### AIRBORNE MAINTENANCE AND 

# ::G'"Z:::rtL

Robert P. Silverberg, Esq. II01 30'" Street,N.W. Suite 120 Washington, D.C. 20007 Tel: (202) 944-3304 Fax: (202) 944-3306 Email: rsilverberg@sgbdc.com

### CERTIFICATE OF SERVICE I hereby certify that onthis l?'h day ofSeptember 2014, I caused a true copy ofthe foregoing Notice ofDepositionto be served by E-Mail and First Class Mail addressed to: Christopher R. Stevenson, Attorney Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region P.O. Box 20636 Atlanta, Georgia 30320

### In the matter of 

### BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

DocketNo. FAA-2013-0291 FAA CaseNo. 2011S0290032 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent Administrative LawJudge J.E. Sullivan 

### NOTICE OF DEPOSITION RespondentAirborne Maintenance and Engineering Services ("AMES") hereby notifies the Federal Aviation Administration and its counsel that it will take deposition testimony on oral examination ofthe individual listed below at the foiJow time and place: Deponent: Date: Time: Location: Richard D'Arcy September 23, 2014 3:00PM EDT Lowndes, Drosdick, Doster, Kantor & 

### Reed, P.A. 215 North Eola Drive Orlando, FL 3280I

or such othertime and place as the parties may mutuaiJy agree. The deposition wiiJ continuefrom dayto day until completed. The deponent is required to be present at the noticed time, date and location. The deposition will betaken before a notary public or some other person duly authorized bylaw to administer oaths and will be recorded stenographically.

Dated: September 1 7, 20 14 Respectfully submitted, SILVERBERG, GOLDMAN & 

### BIKOFF, 

### L.L.P. Attorneys for 

### AIRBORNE MAINTENANCE AND



# EN~G SERVI1E#( / By:. 

# ~j._~~~ Robert P. Silverberg, Esq. II

### OJ 301 h 

### Street, N.W. Suite 120 Washington, D.C. 20007 Tel: (202) 944-3304 Fax: (202) 944-3306 Email: rsilverberg@sgbdc.com

### CERTIFICATE OF SERVICE Ihereby certifythat on this 17'11 

### day ofSeptember2014, I caused atrue copy ofthe foregoing Notice ofDeposition to be served by E-Mail and First Class Mail addressed to: Christopher R. Stevenson, Attorney Federal Aviation Administration Office ofthe Regional Counsel, ASO-7 Southern Region P.O. Box 20636 Atlanta, Georgia 30320

# Exhibit 3

### Robert Silverberg From: 

### Sent: 

### To: Cc: Subject: Chris, Robert Silverberg Wednesday, September 24, 2014 4:27 PM Chris.Stevenson@faa.gov Jeff Johnson RE:AMES

Ordering paragraph B.1 ofthe Judge's June 23 2014 Order Setting New Litigation Dates and Procedures states "June 23, 2014: General Discovery Continues." The suspension in the procedural schedule related to !act witness depositions. I do not see anything in the Order supporting your position that written discovery was not appropriate to propound during the month ofAugust and to expecttimely responses. And ifyou were correct about the effect ofthe procedural date suspension (which is notthe case), the responses are otherwise due on Monday, September 29th. Bob 

### From: Chris.Stevenson@faa.gov [mailto:Chris.Stevenson.gov] 

### Sent: Wednesday, September 24, 2014 2:51 PM 

### To: Robert Silverberg 

### Subject: RE: AMES Bob, I would not be able to conduct a deposition in Ohio on October 7. As I have mentioned in this discussion and with regards to our Comair cases, I have a hearing on October 6 and I have a doctor's appointment I need to attend with my fouryear old son on October 8 (itwas going to necessitate that we reschedule the Rule 16 conferences in the Comair cases). I do not, at present, knowwhen Inspector Steffey will be available. I have contacted him but I am waitingfor a response. With regards to your second set of discovery requests, those requests were propounded when discovery in this case was suspended as a result ofyour unavailability in July and my unavailability in August. The 30-day deadline to respond to those requests did not begin until discovery resumed near the end ofAugust. I do anticipate those discovery responses being served thisweek. Christopher Stevenson Attorney Office ofthe Regional Counsel (404) 305-5200



### From: Robert Silverberg [mailto:rsilverberq@sqbdc.com] 

### Sent: Wednesday, September 24, 2014 2:29 PM 

### To: Stevenson, Chris (FAA) 

### Cc: JeffJohnson 

### Subject: RE: AMES Chris, My response to your comments is in contrasting color text below. 1Bob, From my perspective, I see this as ajoint issue because, no matter what, one of us will need to take a deposition or depositions and the otherwill have not met his obligation to make the deponent(s) available duringthe discovery period. Ifwe do your depositions on the 

### 30th, I need more time to take deposition and you need more time because you haven't been able to make the witness available duringthe deposition period. Yougave me dates within the deposition period (September 23-24 and 29-30) and I was prepared to conduct my deposition and for you to conduct your deposition by the established deadline. Butyou apparently did not hold the dates and/or made other commitments. I did not. Ifwe did my deposition on the 

### 30'", then you would need time to conduct your depositions, and Iwould need more time because Iwouldn't 

### have been able to make mywitnesses available during the discovery period. But, clearly, we see this matter differently. This is only correct if you made your witnesses available earlier this week (as I had scheduled them for Sept 24 as should have happened) and then I failed to take the deposition or to produce the AMES witness who was available to be deposed on Sept. 30th Regardless, I welcome your comments on the suggestions I have made concerning scheduling, and I will make a more detailed proposal once we've got afirm date on how long the extension would need to be in order to accomplish all of the depositions we both need to get done. I would like to think that ifwe can confirm dates for all ofthe depositions to take place that we would then be able to in some fashion submit a mutually agreeable modification to the schedule. The AMES witness will be available in Wilmington on October 7th. When would Steffey be made available? 

### I am not committing to join you in the motion to modify the schedule but I said I will consider it. I will not agree to shrink the time we have to file our dispositive motion following depositions and all discovery Also we have propounded discovery (see attached) to which you have notyet responded and the date for the response was at the latest based on the date of mailing, September 10,2014. Please provide the requested answers and documents. The responses should be made available prior to the depositions ofthe FAA witnesses. Ifyou cannot advise me you plan to respond this week, we will be compelled to file a motion to compel. Bob



### From: Chris.Stevenson@faa.gov [mailto:Chris.Stevenson@faa.gov] 

### Sent: Wednesday, September 24, 2014 1:19PM 

### To: Robert Silverberg 

### Subject: RE: AMES Bob, From my perspective, I see this as ajoint issue because, no matter what, one of us will need to take a deposition or depositions and the other will have not met his obligation to make the deponent(s) available duringthe discovery period. If we do your depositions on the 30'h, I need more time to take deposition and you need more time because you haven't been able to make the witness available duringthe deposition period. Ifwe did my deposition on the 30'", then you would need time to conduct your depositions, and I would need more time because I wouldn't have been able to make my witnesses available during the discovery period. But, clearly, we see this matter differently. Regardless, I welcome your comments on the suggestions I have made concerning scheduling, and I will make a more detailed proposal once we've got afirm date on how long the extension would need to be in orderto accomplish all of 2the depositions we both need to get done. I would like to think that ifwe can confirm dates for all ofthe depositions to take place that we would then be able to in some fashion submit a mutually agreeable modification to the schedule. Christopher Stevenson Attorney Office ofthe Regional Counsel (404) 305-5200



### From: Robert Silverberg [mailto:rsilverberg@sgbdc.com] 

### Sent: Tuesday, September 

### 23, 2014 3:01 PM 

### To: Stevenson, Chris (FAA) Cc: JeffJohnson 

### Subject: RE: AMES Chris, Yes 

### I believe that having used the dates you provided (September 

### 29-30) for depositions and having noticed Lipinski and D'Arcy and made arrangements that these are the depositions thatwill be taken next week. You then begged off on the basis ofyour schedule, not the Inspectors. So I do not see this as a situation where 

### I mustjoin you in a request for an extension although I said I would considerit based on the alternative schedule you might propose. I will check on the availability ofthe AMES witness and get back to you. Bob 

### From: Chris.Stevenson@faa.gov [mailto:Chris.Stevenson@faa.gov] 

### Sent: Tuesday, September 

### 23, 2014 2:48 PM 

### To: Robert Silverberg 

### Subject: RE: AMES Bob, I am available to engage in depositions on September 30. However, you seem to assume without discussion that ifwe can accomplish one deposition or set of depositions on that date, it should be your depositions of Inspector Lipinski and D'Arcy, rather than the FAA's depositions ofAMES and Becker. As I noted before, this is not asituation where I need to request an extension oftime, but rather asituation where we need to request an extension oftime. Regardless, at whatevertime the Lipinski and D'arcy depositions are conducted, we can use conference room space atthe local FSDO or CMO (they are in the same building). Your client doesn't need to pay to rent space. I concur with you that extending the deposition time frame by even 2.5 weeks would require extending other deadlines. The summaryjudgment deadline does not seem problematicto me so much as the remaining two discovery deadlines that precede it, but ifthat deadline is of concern then we could request some compression in the schedule later. For example, we might be able to shorten by a weekthe time to file dispositive motion responses/answers. We might be able to ask thejudge to push back by several weeks the date for the oral arguments on dispositive motions, which would allowthe various dispositive motion deadlines to be moved back as well. Ithinkthat could be accomplished without requiring a disruption ofthe hearing date. Although I do think it would be helpful to have firm deposition dates for all potential depositions before we submit anything so that we don't end up having this conversation again in several weeks because itturns out some witness is out ofthe office from October 6through October 24. Christopher Stevenson Attorney 3Office ofthe Regional Counsel (404) 305'5200



### From: Robert Silverberg [mailto:rsilverberg@sgbdc.com] 

### Sent: Tuesday, September 23, 2014 2:20PM 

### To: Stevenson, Chris (FAA) Cc: JeffJohnson 

### Subject: RE: AMES Chris, Your suggestion compresses the time that each of us will have to prepare motions for summaryjudgmentwith the benefit ofthe transcripts from the depositions. How do you propose to maintain somewhat the same intervals ifthe fact witness depositions are not completed until about October 17'h as you are proposing? Also are you still prepared to go forward with our depositions of Inspectors Lipinski and D'Arcy on September 30th. I need to make final arrangements for the conference room and reporter.

. Please advise. Bob



### From: Chris.Stevenson@faa.gov [mailto:Chris.Stevenson@faa.govl 

### Sent: Tuesday, September 23, 2014 1:03PM 

### To: Robert Silverberg 

### Subject: RE: AMES Bob, I wanted to follow up on the belowto letyou know that a hearing I have on Monday, October 6, 2014, that looked like it would settle is not going to, and so Iwould not be able to do both Orlando and Ohio depositions nextweek. Therefore, it would appearthat an extension ofat least 2.5 weeks would be necessary to permit both of us to conduct the depositions we have discussed. Christopher Stevenson Attorney Office ofthe Regional Counsel (404) 305-5200



### From: Stevenson, Chris (FAA) 

### Sent: Monday, September 22, 2014 4:53PM 

### To: 'Robert Silverberg' 

### Subject: RE: AMES Bob, Ithink that the details ofthat would depend on how close together you want the depositions to be. For example, while it may be physically possible to do the Orlando and Ohio depositions in one week, I don't know ifyou'd preferto do Ohio on Tuesday and then Orlando on Thursday, or ifyou would preferthatthere be more ofa gap, especially since there wouldn't be any wayto do Orlando and Ohio and Michigan in one week. 4 .Christopher Stevenson Attorney Office ofthe Regional Counsel 

### (404} 305-5200

From: Robert Silverberg [mailto:rsilverberg@sgbdc.com] 

### Sent: Friday, September 19, 2014 3:08PM 

### To: Stevenson, Chris (FAA) 

### Cc: Jeff Johnson 

### Subject: RE: AMES Chris, Ifyou want to draft a motion we will be willing to look at what you are proposing. Bob 

### From: Chris.Stevenson@faa.gov [mailto:Chris.Stevenson@faa.gov] 

### Sent: Friday, September 19, 2014 11:12 AM 

### To: Robert Silverberg 

### Subject: RE: AMES Bob, I am sorry, butthe fact that at one point in time I am in general available on a particular set of dates does not mean that I am perpetually in a state of readiness to travel on (or before) every one ofthose dates. 

### My professional and personal life are generally not so arranged as to permit me to travel on short notice. You did not inform me on which, ifany, of the dates I suggested you were available. Your e-mail below "prompting" me to advise you as to availability was sent on Wednesday morning, when I was out ofthe office (which you were made aware of by my out-of-office message). and your Notices of Deposition were sent that afternoon. And there is no reason that I would simply assume that you are available on any or all ofthe dates I suggested. For example, I note that you are now informing thatyou are not available on September 29, one ofthe dates I had suggested. Additionally, I note thatyour prior reference to your deponent being available at some unspecified point in time before the end ofthe month is unhelpful. One can't Notice or schedule a deposition totake place "by the end ofthe month." Further, it sounds like you're nowtelling me thatyour deponent will not actually be made available until after the end of the month, and then suggesting that I will need to request an extension to address this unavailability. The two of us could, and clearly should, have gotten together at some point before the discovery period resumed and arranged dates well in advance forthese depositions. Obviously, that did not happen, leaving us in the mutual situation of having difficulty actually scheduling these depositions in the time period remaining. Since we can't go back and make our prior communications better-timed, or more clear, the question is left howwe will address the situation going forward. Based on our respective e-mails, it now appears that we are not going to be able to get these done by the end ofthe month, and so I would suggest that ajoint request to extend the deposition period (and anything else that needs to be extended as a result) is the appropriate method of handling the matter. Christopher Stevenson Attorney Office ofthe Regional Counsel 

### (404) 305-5200

5

### From: Robert Silverberg [mailto:rsilverberg@sgbdc.coml 

### Sent: Friday, September 19, 2014 10:31 AM 

### To: Stevenson, Chris (FAA) Cc: Jeff Johnson 

### Subject: FW: AMES Chris, 1guess you overlooked the e-mail chain below in which I prompted you to confirm the datesthat Lipinski and D'Arcy would be available after you indicated your availability on Sept23-24 and 29-30th and that you were checking on the schedules ofthe witnesses. Using the dates you said you would be available I made arrangements to take the depositions ofyour Orlando based inspectors only to be told by you now that you were surprised by the scheduling ofthe Sept 23 deposition even though it was on a day that you said you were available. As you never advised me of the availability ofyourwitnesses, I had no choice but to go ahead and schedule their depositions on the dates you provided in view ofthe deposition discovery deadline. There has been no indication on my part that I would not accommodate your schedule and that ofyour witnesses. Quite the opposite. I worked with the datesyou gave me. Also I advised you that an AMES witness be available by the end ofthe. month but you never advised me when Mr. Steffey would be available.

1have a client in the office on Sept 29th but am available to take the depositions ofyour Orlando witnesses on Sept 30th starting in the morning. And I am available on the following Wednesday-Thursday (Oct 1-0ct2) as is the AMES witness who will be deposed in Wilmington, Ohio. But as you know the deadline for depositions is Sept. 30th. Are you planning to askfor an extension? Please advise. Bob Silverberg



### From: Robert Silverberg 

### Sent: Wednesday, September 17, 2014 10:15 AM 

### To: 'Chris.Stevenson@faa.gov' 

### Subject: RE: AMES Chris, Have you been able to confirm dates for the depositions Inspectors Lipinski and D'Arcy. I need to make final arrangements for a reported and conference room. Please advise. Bob 

### From: Chris.Stevenson@faa.gov [mailto:Chris.Stevenson@faa.gov] 

### Sent: Monday, September 15, 2014 1:23PM 

### To: Robert Silverberg 

### Subject: RE: AMES Bob, While we are scheduling these, and before we expend furthertime and treasure, I thought itwould be prudent to confirm whether your client remains unwillingto settle this matter unless there is no finding ofviolation (we remain unwilling to settle unless there is afinding ofviolation). 6Thank you, Christopher Stevenson Attorney Office ofthe Regional Counsel 

### (404) 305-5200

From: Robert Silverberg [mailto:rsilverberg@sgbdc.coml 

### Sent: Wednesday, September 10, 2.014 2.:2.6 PM 

### To: Stevenson, Chris (FAA) 

### Cc: JeffJohnson 

### Subject: AMES Chris, I am writing to coordinate the scheduling of dates for depositions of Inspectors Lipinski and D'Arcy in Orlando Florida prior to the deposition deadline of September 30th. I recall you indicated you have an anniversary on Sept. 19th and my anniversary is Sept. 18th so I think we can agree not to schedule the depositions on either ofthese two days. I will only need one day to take the depositions of both inspectors. Also please let me know about Inspector Steffey's availability. I am waiting to obtain information necessary to get back to you on the availability ofthe AMES company and fact witness but itwill likely be near the very end ofthe month. Regards. Bob
PRIVILEGED AND CONFIDENTIAL The information transmitted is intended only for the person or entity to which it is addressed and is (1) subject to attorneyclient privilege; (2) attorney work product; or (3) confidential. Any review, retransmission, dissemination or other use of, or taking ofany action in reliance upon this information by persons or entities other than the intended recipient is unauthorized and strictly prohibited. Ifyou received this in error, please contact the sender and delete the material from any computer. Robert P. Silverberg Silverberg, Goldman & Bikoff, L.L.P. 1101 30th StreetN.W. Suite 120 Washington, D.C. 20007 rsilverberg@sgbdc.com directline 202-944-3304 fax 202-944-3306 mobile 301-922-8895

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