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465 CaliforniaStreet Suite 210 

## • San Francisco California 94104 

## • (415) 421-2500 Fax (415) 421-2560

www.avialex.com law@avialex.com 

### Michael 

### L. Dworkin and Associates Law Offices

FEDEXAND FAX: 

### Eric E. Anderson, Regional Counsel JamesArchier,AgencyAttorney FederalAviation Administration SouthwestRegion, ASW-7 2601Meacham Boulevard, Suite 6E FortWorth, Texas 76137
RE: MartinaireAviation, LLC FAA Case No. 2011SW700189 FDMS: FAA-2013-0040

DearLadies and Gentlemen: 

# RECEIVED MAY 2 22013 

## HEARING DOCKET May 20,2013

Enclosed herewith for filing is thefollowing document: MartinaireAviation LLC's FirstDiscovery Request.

cc: The Honorable Richard C. Goodwin Administrative Law Judge Hearing Docket Clerk FAA, AGC-430 Verytrulyyours,

Caitlin M. Miller Legal AssistantMichael L. Dworkin#64047 MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 San Francisco, California 94104 Telephone: (415) 421-02500 Facsimile: (415) 421-2560 Email: law@avialex.com Attorneys for Martinaire Aviation, LLC 

# RECEIVED MAY 2 22013 

## HEARING DOCKET

UNITED STATES OFAMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASIDNGTON, D.C.
Inthe Matter of:

MARTINAIRE AVIATION, LLC FAA Case: 2011SW700189 FDMS: FAA-2013-0040 

### MARTINAIRE AVIATION LLC'S FIRST DISCOVERY REQUEST Judge: The Honorable Richard C. Goodwin



### PROPOUNDED BY: Respondent, MARTINAIRE AVIATION, LLC SET NUMBER: One DATE OF REQUESTS: May 20,2013 RESPONSES DUE: June 20, 2013 TO THE DEPARTMENT OF TRANSPORTATION, THE HONORABLE RICHARD C. GOODWIN ADMINISTRATIVE LAW JUDGE, AND TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND HIS ATTORNEYS OF RECORD: MARTINAIRE AVIATION LLC (hereinafter referred to as "MARTINAIRE"),by and through its undersigned counsel, submits the following Discovery Requests.MARTINAIRE further requests that Complainant provide the following information in response to this Discovery Request on m

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# ;)(1------, Mic ael L. Dworkin V Dated: May 

### 20, 2013 Attorney for MARTINAIRE AVIATION, LLC

FDMS NO. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S FIRST DISCOVERY REQUEST 20.10 DEFINITIONS AND INSTRUCTIONS Please note: Court and counsel are requestedto takejudicial notice of 14 Code of Federal Regulations, Parts 1-198, commonly referredto as the "Federal Aviation Regulations" (hereinafter referred to as the "FAR's"), 49 Code ofFederal Regulations, Parts 171-173 (hereinafter referred to as the "HMR's") and Title 49, United States Code, Transportation; all words used in this request shall have the same meaning as used in said FAR's, HMR's and Title 49, United States Code, Transportation, unless the sense indicates to the contrary.

0.1 Anyone acting on yourbehalf- includes, butis not limited to, your attorneys, investigators, and their representatives, and consultants, including all experts.

0.2 Person

- includes a natural person, firm, association, organization, partnership, business trust, corporation, or public entity.

0.3 Custodian

- refers to the person havingpossession, custody or control. 0.4 Writing

- means handwriting, typewritten, printing, photostating, photographing, and every other means ofrecording upon any tangiblething, any form ofcommunication
or representation, including letters, words, pictures, sound, or symbols, or combinations thereof.

0.5 You

- includes Complainant, its agents, employees, attorneys, and anyone else acting onbehalfofComplainant.

0.6 Document or documents

- includes writings, drawings, graphs, charts, photographs, phono-records, tapes, videotapes, films, and other compilations from which information
canbe obtained, translated through detection devices into reasonably usable form when translation is practicably necessary.
FDMS NO. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S FIRST DISCOVERY REQUEST 30.7 Complainant- refers to the Federal AviationAdministration, its Administrator, directors, employees and agents, and includes, but is not limited to, its attorneys, investigators, and their representatives, and consultants, including all experts.

1.0 DOCUMENTS SOUGHT TO BE PRODUCED MARTINAIRE acknowledges its prior receipt ofportions ofwhat Complainant has represented were the evidentiary portions ofits case file. Inthe interests ofeconomy, materials and docwnents heretofore providedby Complainant's counsel to MARTINAIRE's counsel need not be again produced. 1.1. Produce Complainant's case file bearing FAA DocketNo. FAA-2013-0040, FAA Case No. 2011SW700189 in its entirety, including, but not limitedto, items of proof, exhibits, correspondence, memoranda, and all other docwnents contained therein. 1.2. Produce all docwnents pertaining to the allegations setforth inthe Complaint inthis matter. 1.3. Produce all documents which Complainant intends to utilize as exhibits at the hearing inthis matter. 1.4. Produce all statements and docwnents pertaining to statements made to Complainant by MARTINAIRE concerning the matters alleged in the Complaint. 1.5. Produce all statements and documents pertaining to statements madeto Complainant by any employees or former employees ofMARTINAIRE concerning the matters alleged in the Complaint. 1.6. Produce all statements and docwnents pertaining to statements made to Complainant by any other person, firm or corporation, concerning the matters alleged in
FDMS NO. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S FIRST DISCOVERY REQUEST 

### 4Complaint. 1.7Produce all resumes, curriculum vitae and any and all written qualifications of all persons whom Complainant expects to utilize as expert witnesses at the hearing inthis matter. 1.8. Produce all documents pertaining to facts and opinions held by Complainant's experts acquired or developed in anticipation oflitigation or for the hearing inthis matter. 1.9. Produce all documents reviewed by Complainant's experts in connection withthe anticipated litigation or hearing inthis matter. 1.10. Produce all documents generated by Complainant's experts inconnection with the anticipated litigation orhearing in this matter. 1.11 Produce all documents evidencing and/or pertaining to Complainant's computation oftheproposed civil penalty in accordance withthe Matrix set forth in FAA Order 2150.3B, FAA Compliance and Enforcement Program, Appendix C, Sanction Guidance Hazardous Materials Enforcement, Figure C-1. 1.12 Produce all Orders Assessing Civil Penalty for the following HAZMAT cases:2012SVV700081;2011SVV700155;2011SVV700182;2011SVV700093; 2010SVV700184; and 2010SVV700147. 1.13 Produce all Orders Assessing Civil Penalty issued by the Complainant's Southwest Region relating to alleged violations of49 CPR section 175.33(a)(l) by any person, firm, corporation or other entity withinthe preceding tenyears.

FDMS NO. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S FIRST DISCOVERY REQUEST 

### 51.14 Produce all Orders Assessing Civil Penalty issued bythe Complainant's Southwest Region relating to alleged violations of49 CPR section 175.33(a)(1)(i) by any person, firm, corporation or other entity withinthe preceding ten years. 1.15 Produce all Orders Assessing Civil Penalty issued by the Complainant's Southwest Region relating to alleged violations of49 CPR section 175.33(a)(7) by any person, firm, corporation or other entity withinthe preceding ten years. 1.16 Produce all documents evidencing mitigating actions taken by Respondent as a result ofthe FAA's July 8, 2011 HAZMAT inspection at MARTINAIRE's facilities at DFWAirport and its headquarters inAddison, Texas. 1.17 Produce all documents supporting Complainant's contention that Notifications ofPilot-in-Command (NOPC) are intendedto beutilized to assist first responders inthe event ofan aircraft mishap.



### 2.0 INTERROGATORIES 2.1. State the name, occupation, employer, address and telephone number ofeach person Complainant intends to call as a witness (including but not limited to percipient witnesses, investigators and experts) at the hearing. 2.2. Provide copies ofall documents Complainant intends to offer into evidence
as exhibits at the hearing, includingthe name and address ofits author or maker, the
names and addresses ofall persons who were addresses, the date onwhich it was created
or made, the nature ofthe document and substance ofthe information or communication set forth in the document. 2.3. For each expert witness Complainant intends to call at the hearing, provide a
FDMS NO. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S FIRST DISCOVERY REQUEST 6curriculum vitae, including a list ofall publications authored in the previous 10 years and
a list ofall other cases in which, during the previous 4 years, the witness testified as an expert at trial orby deposition; 2.4 For each expertwitness Complainant intends to call atthe hearing, provide a statement ofall opinions the witness will express andthe basis and reasonfor them; 2.5 For each expert witness Complainant intends to call at the hearing, provide copies ofany documents prepared orreviewedby said expert witness. 2.6. IfComplainant obtains additional documents notmentioned in response to RequestNo. 2.2, above, MARTINAIRE requests these documents be produced as expeditiously as possible. 2.7. IfComplainant secures additional witnesses not mentioned inresponse to RequestNo. 2.1, above, MARTINAIRE requests a supplementary witness list and a brief statement regarding the subjectmatter ofthe testimony ofeach ofthe witnesses. 2.8 Provide a description or summary ofany and all aggravating factors Complainant believes exist necessitating the penalty amount sought in this matter. 2.9 Provide a description or summary ofany and all mitigating factors Complainanttook into consideration when determining the penalty amount sought in this matter.



### 3.0 REQUESTS FORADMISSION 3.1 ADMIT that the FARviolations described in the Complaint were the result ofactions that are in express violation ofMartinaire's ownpolicies, procedures and manuals then in effect.
FDMS NO. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S FIRST DISCOVERY REQUEST 73.2 ADMIT thatMartinaire took full responsibility for the violations alleged inthe complaint and worked withthe FAAto address the violations and implement comprehensive corrective actions. 3.3 ADMIT that on August 2, 20ll Martinaire sent a letter to the FAA requesting comments and feedback regarding the corrective actions thatMartinaire putin place. 3.4 ADMIT that the FAAnever responded to Martinaire's August 2, 2011 letter before issuing a Notice ofProposed Civil Penalty on May 30, 2012. 3.5 ADMIT that Martinaire pilots are responsible for loading their own aircraft and completing the information required by the NOPC form. 3.6 ADMIT that at the July 8, 2011 HAZMAT inspection, the FAAreviewed several hundredNOPC's. 3.7 ADMIT thatthe penalty sought in this action is the largest ever soughtby the FAA Southwest Region for violations of49 C.F.R. Sections l75.33(a)(l), l75.33(a)(l)(i), and l75.33(a)(7), or a combinationthereof. 3.8 ADMIT that Order 2150.3B, FAA Compliance and Enforcement Program, Chapter 7., Sanction Guidance Policies, Paragraph 6.b., General Sanction Guidance, states: Simply adding up the individual penalties for eachviolation couldresult in compounding a sanction in a disproportionately harsh manner for the conduct involved.
3.9 ADMIT that Order 2150.3B, FAA Compliance and Enforcement Program, Chapter 7., Sanction Guidance Policies, Paragraph 7.b., Limitations on Total Civil Penalty Amounts for Numerous Multiple Violations, clause (2), states: FDMS NO. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S FIRST DISCOVERY REQUEST 8The term isolated in Figures 7-1 and 7-2 typically describes a single instance ofan employee's failure to follow a statutory or regulatory requirement, contrary to the company's ownpractice or procedure. A case may involve a number ofisolated and unrelated violations. Each group ofthe multiple violations resulting from each isolated violation ordinarily is subjectto the isolated, inadvertent ranges in Figures 7-1 or 7-2.
3.10 ADMITthat Order 2150.3B, FAA Compliance and Enforcement Program, Chapter 7., Sanction Guidance Policies, Paragraph 7.c., Penalties Outside the Ranges, Clause (1), Penalties lowerthanthe ranges, states: Itmay be appropriate to select a civil penalty amountbelowthe ranges inFigures 7-1 or 7-2 ifthe degree ofculpability is minimal, the degree ofpotential hazard is extremely low, and there are no other aggravating circumstances. 3.11 ADMITthat MARTINAIRE is a "small business entity" as that term is utilized in Order 2150.3B, FAA Compliance and Enforcement Program, Appendix C, Sanction Guidance Hazardous Materials Enforcement, Paragraph 5. 3.12 ADMIT that in December 2012, MARTINAIRE provided certain confidential financial records and information at Complainant'srequest which Complainant has since requested again in its First Request for Production ofDocuments. Respectfully submitted this 20th day ofMay, 2013.

### ~ghal(l L. D\Vorkint;dAssociates 

# /////**/lh:i~~~~** Michael L. Dworkin

FDMS NO. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S FIRST DISCOVERY REQUEST 9CERTIFICATE OF SERVICE The undersigned hereby certifies that onthis 201 h day ofMay, 2013, a true and correct copy ofthe foregoing MARTINAIRE AVIATION'S FIRST SET OF DISCOVERY REQUESTS was served as follows: The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 New Jersey Avenue, S.E. East Building Ground Floor Room El2-320 Washington, D.C. 20590 FAX: 1-202-366-7536 {via FAXandFEDEX} Federal Aviation Administration Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000 800 Independence Avenue SW Washington, DC 20591 {viaFEDEX} Eric E. Anderson, Regional Counsel James Archier, Agency Attorney Federal Aviation Administration Southwest Region, ASW-7 2601 Meacham Boulevard, Suite 6E Fort Worth, Texas 76137 FAX: (817) 222-5092 {via FAXandFEDEX}

Caitlin Miller

FDMS NO. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S FIRST DISCOVERY REQUEST 10