# Snell&

# Wilmer L.L.P. LAW OFFICES Hughes Center 3883 Howard Hughes Parkway Suite 1100 Las Vegas, Nevada 89169-5958 702.784.5200 702.784.5252 (Fax)

www.swlaw.com

JustinA. Shiroff

702-784-5281 jshiroff@swlaw.com



### VIAFEDERALEXPRESS Hearing Docket Clerk FAA, AGC-430, Suite 2Wl000 Wilbur Wright Building 600 Independence Avenue, SW Washington, DC 20591 

# RECEIVED JUL -2 2015 HEARING DOCKET

July 1, 2015

Re: FAAv. Webgistix Corporation; FAADocketNo. 2015-0208 Dear Sir/Madam: DENVER LAS VEGAS LOS ANGELES

LOSCABoS ORANGECOUNTY PHOENIX

RENO SALTLAKECITY TUCSON



### On July 1, 2015 we sent a Motion to Extend Discovery for filing. We inadvertently omittedourExhibit 1. Enclosedplease find two copies ofthat motion, along withExhibit 1. Thankyoufor your courtesies inthis matter. Verytruly yours, Snell & 

### Wilmer



# ('~;?;;~/ .lrlsfinK.!Shiroff

cc: Ron. Richard C. Goodwin (viaemail and Federal Express withenclosure) Rashawn Rich George, Esq. (viafax 

### with enclosure)

Snell & Wilmer is a member oflEX MUNDT, The Leading Association of Independent Law Firms.

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS FEDERALAVIATIONADMINISTRATION

FEDERALAVIATION ADMINISTRATION, Complainant,

vs. WEBGISTIX CORPORATION, Respondent.
HONORABLERICHARD GOODWIN FAADocket No. 2015-0208 

# RECEIVED JUL

- 220!5 

## HEARING DOCKET

EMERGENCYMOTIONTO EXTEND DISCOVERY (FIRST REQUEST)
Webgistix Corporation ("Webgistix"), bycounsel Patrick G. Byrne, Esq. and JustinA. 

### Shiroff, Esq., hereby files its Motionto Extend Discoveryinthis actionno less than sixty (60) days. This motion is based onthe pleadings and papers onfile, the following Memorandum of Points andAuthorities and supporting exhibits, including theDeclaration.

Dated: June 30,2015

21973821.1 

### SNELL & 

### WILMER L.L.P.


### By:

**~P~m~n~·~a~.~B~** 

### ..

**n_e** 

### ______________________ _ N adaBarNo. 7636 JustinA. Shiroff NevadaBarNo. 12869 3883 HowardHughes Parkway, Suite 1100 Las Vegas,NV 89169 Attorneys for Webgistix CorporationAFFIDAVIT OF JUSTINA. SHIROFF, ESQ. IN SUPPORT OF ORDERSHORTENING TIME


### STATE OF NEVADA ) ) ss. COUNTY OF CLARK )
I, JustinA. 

### Shiroff, declare and certify as follows: 1. I am an attorney licensed to practice law inthe State ofNevada, at the lawfirm of Snell & 

### Wihner L.L.P., 

### counsel ofrecord for Defendant Webgistix Corporation ("Webgistix") in the above-captioned matter. 2. I have personal knowledge of the matters herein, am competent to make this Declaration, andmake these statementsunderpenalty ofpeljury. 3. This Affidavit is submitted in support ofWebgistix'sMotionto Extend Discovery. 4. 

### In its Responses to the FAA's discovery requests, Webgistix identified Paul Gantt
as its expertwitness. 5. Mr. Gantt's preliminary opinion, disclosed to the FAA in Webgistix's response to the FAA's discovery requests on June 5, 2015, indicated that the substance allegedly shipped in this actionis not a corrosive withinthe operative hazardous materialsregulations. 6. In support ofthat opinion, Mr. Gantt set up comprehensive chemical testing to determine the actual chemical nature ofthe substance at issue. 7. The tests are ongoing. 8. 

### Mr. Gantt is unable to properly supplement his expert opinion or generate a final report until the tests are complete. 9. Webgistix estimates that the testing will be complete and results will be available within sixty days. 10. On May 14, 2015, Webgistix served Complainant FAA with its Requests for Discovery. 11. On June 15, 2015, the FAAresponded to Webgistix's Requests.

- 2- 21973821.112. The FAA's responses asserted numerous objections based on investigative privilege. 13. On June 23, 2015, in an attempt to amicably resolve any dispute over the FAA's responses and their assertion ofprivilege, I wrote a letter to counsel for the FAA requesting that they supplementtheir answers accordingly. 14. On Friday, June 26, 2015, I contacted counsel for the FAA by telephone, in an attempt to resolve this issue by agreement ofthe parties. Afterno one answered, I left a message
ontheir answering machine/voice mail system. 15. On Monday, June 29, 2015, I again called counsel for the FAA to resolve this issue. Despite leaving a message onMs. George'spersonalvoice mail, I received no returnphone call. 16. If Your Honor does not consider this Motion on an emergency basis, discovery deadlines will expire and information critical to both sides' positions in this litigation will be unavailablefor consideration atthe ultimatehearing onthis matter. 17. To date, counsel has beenunable to obtain a signature to the Stipulation from Ms. George. 18. Thisrequest is made in good faith andnotfor the purposes ofharassment ordelay. I declare andcertifyunderpenaltyofperjurythatthe foregoing istrue and correct.

Datedthis dayofJune 2015.

//' Justirl'A. Shiroff SUBSCRIBED and SWORNto before methis 30th day ofJune, 2015.

I Y PUBLfC-in and for COUNTY OfCLARK, STATE OF NEVADA

21973821.1 - 3 - N. JEANNE FORREST Notary Public State of Nevada No. 05-94033-1 My Appt. Exp. Sept. 24,2016

### MEMORANDUM OF POINTS AND AUTHORITIES 

### This case involves the alleged shipment of a corrosive substance without proper labeling/packaging/notification/etc. A central, ifnot dispositive, issue on liability is whether the substance shipped actually qualifies as a corrosive within the meaning of the Department of Transportation's regulations. The FAA contends that the MMS Original Water PurificationDrops that Webgistix allegedly shipped are a Sodium Chlorite Solution, designated a Hazard Class 8 Corrosive substance. See 

### Agency's Response to Webgistix Corporation Request for Discovery, Response to Interrogatory 5, atp.5, attachedhere as Exhibit 

### 1. Butotherthanthe Material Safety Data Sheet it obtained from the original supplier ("MSDS"), the Agency produced no evidence supporting that contention. Webgistix's expert witness, Paul Gantt, preliminarily opined that the MSDS is internally inconsistent and unreliable. In Mr. Gantt's preliminary opinion, the actual clean-up measures undertaken and the immediate response to the spill are further support that the substance was not
a hazardous corrosive. To confirm his preliminary opinion, Mr. Gantt began the process to have the substance chemically tested, in accordance with Department ofTransportation standards, in
an attempt to establish that the dilute form of sodium chlorite allegedly shipped in this case is nothing more than an irritant- well short ofa Class 8 Corrosive. However, the testing is still on going and will not be completed by July I, 2015 -the close ofdiscovery in this case. Webgistix requests that this Court extend discovery in this matter by no less than sixty days to allow the testing to complete and for ultimate disclosure ofthose results. No party is prejudiced by this extension; the chemical makeup and nature of the drops at issue is relevant to both parties' positions and having accurate information would afford both parties a better platform to litigate this matter. Additionally, as the Court has not yet set ahearing date inthis matter, there should be minimal interruption oftheCourt's schedule. Additionally, there is evidence that Webgistix sought from the FAA which has not been produced. The FAA objected to a number of discovery requests, arguing that there is an investigative privilege that protects against disclosure. The FAA did not produce a privilege log with its objections, so Webgistix is unable to evaluate the propriety ofsuch a privilege. However,
-4- 21973821.1

### this Motion is not intended to address those responses at this time. Though Webgistix did not receive anyreturn communicationfrom the FAA concerning eitherthe proposed extension or the potential dispute over the allegedly privileged documents, Webgistix does not contend that this
was anything other than a failure to connect between counsel for the parties. Webgistix remains hopeful that the parties can resolve the potential dispute over the production ofevidence and the potential existence of any privilege. A sixty day extension in the discovery period would only assist the parties in working through these potential disputes and ensuring that all relevant evidence couldbe consideredby the Court inits ultimateruling. Ifgranted, Webgistix's requestto extend discovery creates no prejudice against any ofthe parties. Further, the substantive discovery that will come about through the extension is highly relevanttothis action andis necessary for this Courtto render a complete and accurate ruling. CONCLUSION Accordingly, the Court should grant Webgistix's EmergencyMotionto Extend Discovery. This Court extend discovery inthis actionno less than sixty (60) days.

Dated: June 30,2015

Attorneys for Webgistix Corporation

21973821.1 

### SNELL & 

### WILMER L.L.P.

i / f ///,./ 

### By: (_//' / Pat_rjc1<)1.rByrne Ne'vadaBarNo. 7636 JustinA. Shiroff NevadaBarNo. 12869 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169



### - 5-

### CERTIFICATE OFSERVICE I hereby certify that a copy ofthe foregoing Answerhas beenmailed this date byFederal Express to the following: HearingDocketClerk FAA, AGC-430, Suite 2Wl000 WilburWright Building 600 IndependenceAvenue, SW Washington, DC 20591 Hon. Richard C. Goodwin U.S. Administrative LawJudge Office ofHearings, M-20 U.S. DepartmentofTransporation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 Attn: PatriciaMatthews) RashawnRich George Office ofthe Regional Counsel, AS0-7 Federal AviationAdministration, Southern Region 1701 ColumbiaAvenue CollegePark, GA 30337

DATED June 30,2015.

21973821.1 

### (Original and One Copy)

(SentviaFederal Express and Email: Richard.Goodwin@dot.gov and Patricia.Matthews@dot.gov)

-6-U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,

:BGISTIXCORPORATION_,
___ 

# jl Respondent.

**-----~---------** FAADocketNo. 2015-0208

WEBGISTIXCORPORATION'S RESPONSES TO FEDERALAVIATION ADMINISTRATION'S REQUEST FORDISCOVERY Pursuant to Rule 26(b) and 34(a) ofthe Federal Rules ofCivil Procedure, the discovery guidelines set forth in case precedent, and Section 13.220 ofthe Rules ofPractice in FAA Civil Penalty Actions [14 C.F.R. §13.220], Webgistix Corporation ("Webgistix"), by counsel Patrick G. Byrne, Esq. and Justin A. Shiroff, Esq., hereby submit this Response to Federal Aviation Administration's ("FAA") Requestfor Discovery. GENERAL OBJECTIONS AND RESERVATION OF RIGHTS The following general objections apply to everyRequest for Admission, Interrogatory, and RequestforProduction (collectively "Requests"). 1. Webgistix objects to the Requests to the extent they seek information and/or admission ofmaterials protected by the attorney-client privilege, the work product doctrine, or any other legally recognized privilege, immunity, or exemption from discovery. Webgistix hereby claims such privileges and protections and objects to the admission ofany information or materials subject thereto. This general objection is intended to prevent m1y waiver of these privileges or protections as to any specific document request. If any privileged or protected infonnation ormaterials are inadvertently produced, Webgistix does not waive or intend to waive any privilege, protection, or claw-backrightpertaining to such information ormaterials. 2. Webgistix objects to the Requests to the extent they seek to impose discoveryobligations broader than, or inconsistent with, the Rules of Civil Procedure applicable to this matter. 3. 

# In providing these responses, Webgistix does not waive or intend to waive: (a) objections as to competency, relevancy, materiality, or admissibility; (b) objections on any groundto the use ofthese responses in any proceeding, including any hearing inthis action or any other action; (c) objections as to burden, vagueness, overbreadth, or ambiguity; or (d) further objections on any ground to this or any other discoveryrequestinthisproceeding. 4. Webgistix's decision to provide information or material, notwithstanding the objectionable nature ofthe Requests, should not be construed as: (a) an admission or stipulation that the material is relevant, admissible in evidence, or reasonably calculated to lead to the discovery of admissible evidence; (b) a waiver of these General Objections or the objections asserted in response to specific document requests; or (c) an agreement that requests for similar informationwill be treated in a similarmanner. 5. Any production in response to FAA's Requests is subject to Webgistix's right to objectto the admission into evidence ofany and all suchproductions on the grounds that they, or any of them, are irrelevant to the issues in this action or otherwise inadmissible. These productions and objections are based upon Webgistix's' present knowledge, information, and belief. 6. Webgistix reserves the right to use all documents, electronically stored information, and tangible things that are in the possession, custody, or control of any party. Webgistix also reserves the right to supplement these responses ifmore information becomes available. Withoutwaiving these objections, Defendant responds as follow: REQUESTS FORADMISSION REQUESTNO. 1: Admit Exhibit 1, photograph Sa- Sm truly and accurately depicts the shipment described inparagraph II.2 ofthe Complaint.

- 2-RESPONSE: Admit RequestNo.2: Admit Exhibit 2, is a true and accurate copy ofthe MSDS Respondent submitted to UPS
onor about October 12, 2012. RESPONSE: Admit RequestNo.3: Admit Exhibit 3, is a true and accurate copy ofthe MSDS for the product shipped on or about October 12, 2012, effective March 1, 2013. RESPONSE: Admit RequestNo. 4: Admit Respondent did not prepare a Shipper's Certification or Declaration ofDangerous Goods forthe fiberboard box described inparagraph II.2 ofthe Complaint. RESPONSE: Admit only that Webgistix did not prepare a Shipper's Certification or Declaration of Dangerous Goods for the fiberboard box described in paragraph II.2 ofthe Complaint; denied as to any requirementto do so. RequestNo.5 Admit Respondent did not prepare shipping papers for the fiberboard box described in paragraph Il.2 ofthe Complaint as requiredby 49 C.F.R. §§172.200(a). and 172.202(a). RESPONSE: Admit only that Webgistix did not prepare shipping papers for the fiberboard box described in paragraph ll.2 oftheComplaint; denied as to any requirement to do so. RequestNo.6: Admit Respondent did not mark the fiberboard box described in paragraph 11.2 of the



### - 3-Complaint "Corrosive". RESPONSE: Admit only that Webgistix did notmarkthe fiberboard box described in paragraph 11.2 of the Complaint "Conosive"; denied as to anyrequirementto do so. RequestNo.7: Admit Respondent did not affix a "Corrosive" label to the fiberboard box described in paragraph 11.2 ofthe Complaint RESPONSE: Admit only that Webgistix did not affix a "Corrosive" label to the fiberboard box described inparagraph 11.2 ofthe Complaint "Corrosive"; denied as to any requirementto do so. RequestNo.8: Admit Respondent did not provide emergency response information with the fiberboard box described inparagraph 11.2 ofthe Complaint. RESPONSE: Admit only that Webgistix did not provide emergency response information with the fiberboard box described in paragraph 11.2 ofthe Complaint; denied as to any requirement to do

so. RequestNo.9: Admit Respondent did not provide an emergency response telephone number with the fiberboard box described inparagraph 11.2 ofthe Complaint. RESPONSE: Admit only that Webgistix didnot provide an emergencyresponse telephone number with the fiberboard box described inparagraph 11.2 ofthe Complaint; denied as to any requirementto do so. lL'iTERROGATOIUES InterrogatoryNo. 1: The name, occupation, and business address ofeach person Respondent intends to call as

- 4-awitness inthisproceeding. RESPONSE: Webgistix's prospective witnesses include Joe DiSorbo, CEO ofWebgistix; Becky Wood, CMO of Webgistix; Gary Low, Customer Support Manager of Webgistix; Angel Gomez, Warehouse ManagerofWebgistix; and Mike Manzione, ChiefOperating OfficerofWebgistix. Interrogatory

### No.2: The subject matter upon which each intended witness is expected to testify, the facts and opinions as to which each intended witness is expected to testify, and a summary ofthe .grounds for each opinion. RESPONSE: Each ofthe witnesses identified inResponse to Interrogatory I is expected to testify as to the facts and circumstances conceming the allegations set forth in the Complaint. Additionaily, Joe DiSorbo will testify on the details on volume of shipments Webgistix handles, the percentages of Webgistix shipments that go by air, Webgistix's general policy concerning refusing to knowingly ship hazardous products, as well as related testimony. Becky wood will testify on Webgistix's immediate response to the aileged incident, including those actions taken against Future Health Today, Ltd. d/b/a Keavy's Korner ("Keavy's Korner"), the client responsible for the shipment, as well as related testimony. Gary Low will testify on the nature of Webgistix's relationship with Keavy's Korner and their affirmative denial ofthehazardous nature ofthe product, as well as related testimony. Angel Gomez will testify on Webgistix's inspection process in receiving goods from clients and Webgistix's packaging and shipping process. Mike Manzione will testify as to the current state ofWebgistix's training, policies, and other aspects of the business. InterrogatoryNo.3: Identify each expert witness you may cail to testify at a hearing onthis matter. For each expert witness identified, slate the subject matter upon which each is expected to testify, summarize the substance ofsuch expected testimony (including, without limitation, the subject of



### - 5 -expected opinion testimony) and state the grounds for each such opinion (including, without limitation, identification of all facts, treatises, reports, records, documents or tangible evidence that form the basis for suchopinion). RESPONSE: Paul W. Gantt, M.Eng., CSP, CET. Thetentative opinions he is expected to testify to are
as follows: 1) the sodium chlorite solution was an irritant and not a corrosive within the meaning ofthe hazardous materials definitions; and 2) Webgistix's remedial efforts and response to the alleged incident are not sufficient tojustifymore thanthe minimum fine withinthe context ofthe Sanction Guidance Matrix. Though Mr. Gantt's opinions are in a preliminary stage (pending further research and possible testing), he intends to opine that the 4x dilution ofthe sodium chlorite solution is an indicator that it was sufficiently dilute as to no longer be technically corrosive. He also opined that the MSDS for the solution contained glaring inconsistencies, at times treating the solution as 100% sodium chlorite while simultaneously proscribing clean-up and treatment directives that were only sufficient ifthe substance was an irritant. He also opined that the ground response to the alleged spill likely supports the contention that the substance was
an irritant, not a corrosive, as there is no indication that neutralizing agents or other specialized equipment was used to clean up the alleged spill. Webgistix reserves its right to supplement this response as additional information comes to light. InterrogatorvNo.4: Please describe evidence of any corrective or remedial action taken as a result of this matter including the date such action was implemented. RESPONSE: Webgistix audited all inventory at each of its warehouses to identify any product that could potentially fall into a Hazmat category and immediately stop shipping any such product. Additionally, Webgistix asks all clients for a Material Safety Data Sheet ("MSDS") for any liquid product or product that otherwise could be considered Hazmat. Webgistix will review new products with UPS to confirm that such products do not qualify as Hazmat Materials and do not

- 6-have any special shipping requirements. Additionally, Webgistix's air shipping is less than .1% of its Las Vegas shipments (and approximately 2%ofthe company's shipments altogether). Each of Webgistix's warehouse manages received official Hazmat training. Vihile not formal Hazmat certification training, Webgistix's Warehouse Managers also conduct monthly safety and training meetings for all warehouse employees, includingthose responsible forproduct intake and handling. While the safety topics vary, Hazmat training is one of the topics addressed. I have attached at Tab 3 the sign-in sheet for the January 2014 training meeting, which was dedicated exclusively to Hazmat issues. Webgistixremains opento require additional employeesto secure suchtraining. Thefacilities in question, however, are small in size, allowing the Warehouse Manager to have 

### a solidhandle on all operations. Atthe time ofthe incident, the Las Vegasfacility was only 25,000 square feet. Ithas since expandedto 50,000 square feet. As a result ofthis incident

- and before the FAA provided its notice ofproposed civil penalty (August 6, 2013)- Webgistix made several changes to improve its operating procedures to prevent the inadvertent shipping ofHazmat materials. While no process is perfect, Webgistix has appropriate checks andbalancesto enforce its policy. InterrogatorvNo.5: For eachrequest for admissionnot admitted ordenied, please state in detail the reason for the denial ornon-admission. RESPONSE: As Webgistix contends that the substance may not actually be a Corrosive within the meaning ofthe Hazardous Materials rules, Webgistix does not admitthatitwas obligatedto actin accordance with any ofthe hazmat guidelines upon which the FAA bases the Complaint and its Requests for Admission. InterrogatoryNo.6: Please state the specific facts upon which you base your response that you are \Vithout knowledge to admit or deny Paragraph IL6 of your Answer and Affim1ative Defenses to Complaint.



### - 7 -RESPONSE: No witness from Webgistix was present in Louisville, KY on the date of the alleged incident at the moment the purportedly leaking package was identified; as a result Webgistix is without sufficient knowledge to admit or deny the identity ofwho discovered any potential leak inthe shipment. Interl'ogatoryNo. 7: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph ll.7 of your Answer and Affirmative Defenses to Complaint. RESPONSE: Itis unknown ifthe contents were exactly as described in this paragraph or ifthe shipment contained additional products. As a result, Webgistix is without sufficient knowledge to admit or deny theallegation. Interrogatory No. 8: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph II.8 of your Answer and Affirmative Defenses to Complaint. RESPONSE: Webgistix, by and through its employees, did not conduct any investigation into the alleged leak; as a result, Webgistix is without sufficient knowledge to admit or deny the approximate ammmt ofliquidthat may ormay nothave leaked. Interrogatory No.9: Please state the specific facts upon which you hase your response that you are without knowledge to admit or deny Paragraph II.9 of your Answer and Affirmative Defenses to Complaint. RESPONSE: Webgistix, as only an intermediary shipper and not the product'smanufacturer, is without

- 8 -sufficient knowledge to admit or deny the specific nature ofthe allegedly hazardous material at the center ofthe allegations in the Complaint. Additionally, the MSDS is internally inconsistent in labeling the product as a possibly corrosive substance while simullaneously describing symptoms, precautionary measures, treatment guidelines, and clean-up commensurate with an irritant substance, not a corrosive withinthe definition ofthe Hazmat guidelines. Interrogatory No. 10: Please state the specific facts upon which you base your response tlwt you are without knowledge to admit or deny Paragraph II.!0 of your Answer and Affirmative Defenses to Complaint. RESPONSE: Webgistix, as only an intermediary shipper and not the product's manufacturer, is without sufficient knowledge to admit or deny the specific nature ofthe allegedly hazardous material at the center ofthe allegations in the Complaint. Additionally, the MSDS is internally inconsistent in labeling the product as a possibly corrosive substance while simultaneously describing symptoms, precautionary measures, treatment guidelines, and clean-up commensurate with an irritant substance, not a corrosive withinthe definition oftheHazmat guidelines. Interrogatory No. 11: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph II.!! of your Answer and Affirmative Defenses to Complaint. RESPONSE: Webgistix, as only an intermediary shipper and notthe product's manufacturer, is without sufficient lmowledge to admit or deny the specific nature ofthe allegedly hazardous material at the center ofthe allegations inthe Complaint. Webgistix also cannot admit or deny what papers might have beenrequired for the shipment. Interrogatory No. 12: Please state the specific facts upon which you base your response that you are without

- 9-knowledge to admit or deny Paragraph II.l2 of your Answer and Affirmative Defenses to Complaint. RESPONSE: Webgistix, as only an intermediary shipper and not the product's manufacturer, is without sufficient knowledge to admit or deny the specific nature ofthe allegedly hazardous material at the center ofthe allegations in the Complaint. Webgistix also cannot admit or deny what papers might have beenrequired for the shipment. Interrogatory No. 13: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph II.13 of your Answer and Affirmative Defenses to Complaint. RESPONSE: Webgistix, as only an intermediary shipper and nottheproduct's manufacturer, is without sufficient knowledge to admit or deny the specific nature ofthe allegedly hazardous material at the center of the allegations in the Complaint. Webgistix also cannot admit or deny what packaging mighthavebeenrequiredfor the shipment. Interrogatory No. 14: Please state the specific facts upon which you base your response that you are without lmowledge to admit or deny Paragraph II.14 of your Answer and Affirmative Defenses to Complaint. RESPONSE: There is evidence suggesting that the allegedly hazardous material at issue in the Complaintis not, infact, corrosivewithin the meaning ofthe Hazmat guidelines. InterrogatoryNo. 15: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph II.15 of your Answer and Affirmative Defenses to Complaint.

- 10-RESPONSE: There is evidence suggesting that the allegedly hazardous material at issue in the Complaint is not, in fact, corrosive withinthe meaning ofthe Hazmatguidelines. Interrogatory No. 16: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph II.16 of your Answer and Affirmative Defenses to Complaint. RESPONSE: There is evidence suggesting that the allegedly hazardous material at issue in the Complaint is not, infact, corrosive withinthe meaning oftheHazmat guidelines. Interrogatory No. 17: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph II.17 of your Answer and Affirmative Defenses to Complaint. RESPONSE: There is evidence suggesting that the allegedly hazardous material at issue m the Complaint is not, infact, corrosive withinthe meaning ofthe Hazmat guidelines. Interrogatory No. 18: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph II.12 of your Answer and Affirmative Defenses to Complaint. RESPONSE: There is evidence suggesting that the allegedly hazardous material at issue m the Complaint is not, infact, corrosivewithinthe meaning ofthe Hazmat guidelines. Interrogatory No. 19: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph II.19 of your Answer and Affirmative Defenses to

- 11

-Complaint. RESPONSE: There is evidence suggesting that the allegedly hazardous material at issue in the Complaint is not, infact, corrosive withinthe meaning ofthe Hazmat guidelines. InterrogatoryNo. 20: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph Il.20 of your Answer and Affirmative Defenses to Complaint. RESPONSE: There is evidence suggesting that the allegedly hazardous material at issue in the Complaintis not, infact, corrosive within the meaning ofthe Hazmatguidelines. InterrogatoryNo. 22: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph JI.12 of your Answer and Affirmative Defenses to Complaint. RESPONSE: There is evidence suggesting that the allegedly hazardous material at issue in the Complaint is not, infact, corrosive withinthe meaning ofthe Hazmatguidelines. InterrogatoryNo. 23: Please state the specific facts upon which you base your response that you are without knowledge to admit or deny Paragraph II.23 of your Answer and Affirmative Defenses to Complaint. RESPONSE: There is evidence suggesting that the allegedly hazardous material al issue m the Complaintis not, infact, corrosive v,ithin the meaning ofthe Hazmatguidelines. InterrogatoryNo. 24: Please state the specific facts upon which you base your response that you are without

- 12-knowledge to admit or deny Paragraph II.24 (a) through (ff) of your Answer and Affirmative Defensesto Complaint. RESPONSE: There is evidence suggesting that the allegedly hazardous material at issue m the Complaintis not, infact, corrosivewithinthe meaning ofthe Hazmatguidelines. Interrogatory No. 25: Please state the specific facts upon which you base your affirmative defense that "Pursuant to 49 U.S.C. 5123(c), the alleged circumstances of the incident do not warrant a monetary civilpenalty" as stated in yourAnswer and Affirmative Defenses to Complaint. RESPONSE: Webgistix incorporates its Response to Interrogatory 4. As a foundational concern, Webgistix does not concede that the substance at issue in the Complaint is, in fact, a Corrosive substance. The MSDS is internally inconsistent in labeling the product as a possibly corrosive substance while simultaneously describing symptoms, precautionary measures, treatment guidelines, and clean-up commensurate with an irritant substance, not a corrosive within the definitionoftheHazmat guidelines. Also, Webgistix fits within the description of a category B business entity- a business entity, which does not use orhandle Hazmat inthe course ofits regularbusiness. The incident in questionwasnot aresult ofa conscious decisionto ship Hazmatmaterials; itwas an unintentional oversightbecause ofthe customer's misrepresentation (whether negligent or intentional) coupled with the nature ofthe consumer product, which was intended to be consumed in drinking water. Webgistix did not intend to ship Hazmat materials. Webgistix assumes the FAA'sposition is a result ofamisunderstanding in the language in Webgistix Customer Manual. The manual contains the following language: "Further, additional handling charges may be applied to the account for any hazardous material." This language is intended to justify charges Webgistix will levy ifit discovers, after the fact, that a customer has placedproducts with Webgistix that classify as Hazmatmaterials, and Webgistix is then forced to

- 13

-remove/dispose ofsuch products. Webgistix subsequently amended this language to clarify that itdoes not, under any circumstances, aeccpt Hazmatmaterials. The Matrix also addresses a number offactors the FAA should consider when assessing the penalty range. Most ofthese appear to favor a minimum penalty. For example, the product type (Class 8 PGII liquid (sodium chlorite diluted to 22.4%) with a small quantity (4 ounces) ("Mitigating factors may also exist that have not been adequately considered. For example, a shipment containing a de minims quantity ofmaterial.
..."). Anothermitigating factor is whether Webgistix reasonably relied on incorrect information from another source. Here, Webgistixrelied onthe representations ofthe Keavy's Korner as well
as the product labeling which included no Hazmat warnings. Webgistix's procedures were not perfect

- and that this incident would likely have been prevented with the redundancy ofthe amended procedures

- but the product type and overall misleading labeling resulted in the Webgistix employee not checking the actual productingredients. Another factor that should be given serious consideration is the corrective steps that Webgistixhas taken to prevent future incidents- steps that were taken before the notice ofa civil penalty, including Hazmat training, amending the contract language with its customers, closer product inspection at intake (including demanding MSDS when appropriate) and utilizing the expettise ofits shipping partner UPS to screen newproducts. As the Guidelines state: "Systemic change intended to prevent future violations should be given greater consideration. Similarly, corrective action that commences upon the violator's first notice of the violation ordinarily is given greater creditthan corrective actionthat commences only after the Notice ofProposed Civil Penalty has been issued." REQUESTSFORPRODUCTION Requestfor ProductionNo. 1: To the extent that any expert 'Witness is expected to testiJY, reports and records that form the basis for this testimony.

- 14-RESPONSE: Mr. Gantt only reviewed documents produced by the FAA in its Discovery Requests. Webgistix reserves the right to supplement this response in the event that Mr. Gantt reviews additional reports orrecords. Requestfor ProductionNo.2: Copies ofany documents whichRespondent intends to introduce into evidence and which have not already been submitted to the Agency. Please identifY those documents which have already beensubmittedto theAgency. RESPONSE: None atthis time; Webgistixreservestherightto supplementthis response. Requestfor ProductionNo.3: Please provide evidence of any corrective or remedial action taken as a result of this matter. RESPONSE: Webgistix previously submitted such evidence as atachments to conespondence.To the extentthatany additional documentaryevidence comes withinWebgistix'spossession orcontrol, Webgistixreservestherightto supplementthis response. Dated: June 5, 2015 SNELL & WILMER L.L.P.
/7//

**,f--;~/1** By:

**L~4'/l** / Patt:i61<.<!5/Byrne Ne{,"ada BarNo. 7636 JustinA. Shiroff Nevada BarNo. 12869 3883 HowardHughesParkway, Suite 1100 Las Vegas, NV 89169 Attorneys for Webgistix Corporation

- 15-CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Webgistix Corporation's Responses to Federal Aviation Administration's Requestfor Discovery has beenmailedthis date by First Class Mail to thefollowing: (SentviaFirst Class Mail Original and One Copy) Hearing DocketClerk FAA, AGC-430, Suite2Wl000 WilburWrightBuilding 600 IndependenceAvenue, SW Washington, DC 20591 (SentviaFirst Class Mail) RashawnRich George Office ofthe Regional Counsel, AS0-7 Federal AviationAdministration, Southern Region 1701 ColumbiaAvenue Suite 530 CollegePark, GA 30337

DATED June 5, 2015.

21699697.1

- 16-