465 California Street 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 

### (VIAFEDEX)

The Honorable Richard C. 

### Goodwin Office ofHearings, M-20 1200 NewjerseyAvenue, S.E. East Building Ground Floor, Room E12-320 Washington, D.C. 20590 RE: Inthe MatterofSkyWestAirlines, Inc
. july 19, 2012 

# RECEIVED JUL 232012 

# HEARING DOCKET

FAA Case Nos.: 2011NM060011; 2011NM060010; and 2011NM060033 (Consolidated) MOTION FOR PROTECTIVE ORDER AND/ORCONFIDENTIAL ORDER
Dearjudge Goodwin: Pursuantto 14 CFR Sec. 13.200[g] and[h], enclosed herewith arethose documents SkyWestAirlines, Inc. hereby seeks to have protected as confidential and proprietaryinformation and material, consisting oftrade secret, commercial,business and competitive information, and other information affecting SkyWest orits officers, employees, agents and contractors' privacyrights. There arefive sealed manila envelopes with ID Nos. correlatingto those documents setforth in the documentindex startingonpage 2 ofthe Motion for Protective and/or Confidential Order.

cc: SkyWestAirlines, Inc. Todd C. 

### Emerson, Esq. jeffrey M. Harper, Esq.; Hearing Docket Clerk; Moifair Chin, Esq. Enclosures:Todd C. Emerson, #8175 SKYWESTAIRLINES, INC. 444 South River Road St. George, Utah, 84790 Telephone: (435) 634-3530 Facsimile: (435) 634-3505-andMichael L. Dworkin #64070 MICHAEL L. DWORKIN AND ASSOCIATES 465 California Street, Suite 210 San Francisco, California 94118 Telephone: (415) 421-2500 Facsimile: (415) 421-2560 

# RECEIVED JUL 232012 

# HEARING DOCKET

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
Inthe Matter of:
SkyWest Airlines, Inc.

To: The Honorable Richard C. Goodwin: FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FOR PROTECTIVE AND/OR CONFIDENTIAL ORDER (14 CFR Sec. 13.220[g] and[h]) Judge: Richard C. Goodwin

MOTION FOR PROTECTIVE AND/OR CONFIDENTIAL ORDERSkyWest Airlines, Inc. ("SkyWest"), by its counsel, hereby files its Motion for Protective and/or Confidential Order, pursuant to Section 13.220 (g) and (h) ofthe Rules of Practice in Civil Penalty Proceedings (14 C.P.R. l3.220(g) and (h)), and states as follows: INTRODUCTION The FAA has propounded written discovery to SkyWest, seeking production of certain documents, materials and information which include confidential andproprietary information and material, consisting oftrade secret, commercial, business and competitive information, and other confidential information affecting SkyWest or its officers, employees, agents and contractors' privacy rights. SkyWest desires to comply with all requests for production ofdocuments and materials in the spirit ofdiscovery. However, disclosure ofsuch information to persons not parties to this action might result in damage to the Parties, including but notlimitedto their respective subsidiaries, affiliated and related entities, and their respective officers, employees, agents and contractors.

INDEX LISTING DOCUMENTS SOUGHT TO BE WITHHELD:
The following documents include references to corrective actions undertaken by SkyWest in response to these enforcement cases. These proprietary documents include the results ofSkyWest's investigation ofthe alleged discrepancies, system-wide audits, critical

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FORPROTECTIVE AND/OR CONFIDENTIAL ORDER Page 2selfexamination, elaborate details ofits training course development and changes in dayto-day procedures and operations developed and deployed in response to the subject action, meeting and conference agendas, cost data from implementation ofcorrective actions and explicit details ofhow SkyWest implemented and delegated tasks in connectionwith its corrective actions.

TITLE DESCRIPTION IDNO. NO. OF PAGES
2009 CST Conference Schedule 1-1 18 Conference Schedule 1

1Inits 6'h Affirmative Defense, SkyWest averred: Any and all discrepancies upon which these actions are based are the product ofsimple human arithmetic error and in no way are indicative ofSKYWEST's regulatory compliance disposition as all relevant employees were adequately trained and qualified and have since received additional training and internal audits 2009, 2010 and 2011 Customer Service Training ("CST") materials are being provided to illustrate the nature, quality and level oftraining and concern with which SkyWest has treated its weight and balance program. As can be seen, between 2009 and 2011, the training became far more comprehensive and SkyWest witnesses will testify thatthe 2011 enhancedtraining was developed in response to the incidents which are the subject ofthe complaints.

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FORPROTECTIVE AND/OR CONFIDENTIAL ORDER Page 32009 CST Weight and Balance Handout- Discussion 1-2 Conference ofcurrent LAR discrepancy trends and Weight and procedures for determining applicationto Balance Handout individual stations with CLRs.

. 2009 CST Weight and Balance Workbook: Training 1-3 Conference material, selftests, course information, Workbook CLRreports, Weight & Balance worksheets, case studies, etc.
2010 CST Coversheet 2-1 Conference Worksheet 1: Schedule Information Booklet Worksheet 2: Assigned Workshops
Worksheet 3: Workshop Objectives Workshop 4: General Sessions
2010 CST Weight and Balance booklet. SkyWest 2-2 Conference guidelines,job duties, case studies and Workbook cargo load exercises.

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FOR PROTECTIVE AND/OR CONFIDENTIAL ORDER Page 4 6



### 88

20

162010 CST SP 4100 PowerpointPresentation: Weight 2-3 44 Conference SP and Balance guidelines,job duties, case 4100 studies and CLR examples.
2011 CST Worksheet 1: Conference Schedule 3-1 12 Conference Schedule
2011 CST CST Conference Day 1Timeline. Internal 3-2 5 Conference Press Release. Exercise- Reconstructing Outline: Scenario Ground Occurrence and Exercise
2011 CST Coverage oftopics such as: 3-3 9 Conference Ops Ops Spec Internal Review, Manuals Flight Ops Tab, Manual required to be followed Specs Presentation per Ops Specs. Discussion ofcompliance concerns. 2011 CST Coverage oftopics such as: 3-4 3 Conference List of Review ofFARs/Regulations Docs Regulations Violated. Ops Specs/Manuals involved. Presentation Ground Ops Bulletins involved.

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FOR PROTECTIVE AND/OR CONFIDENTIAL ORDER Page 52011 CST Coverage oftopics such as: 3-5 Conference Lessons learned. Building a safety culture. Managing Risk Flying Cheap. Dollars and Sense. Weight Presentation and Balance.
2011 CST Coverage oftopics such as: 3-6 Conference USC, CFR, Ads, Ops Specs, ATOS, Working withthe Orders, Notices, ACs, Safety Alerts FAA Presentation coverage ofsafety regulations. Discussion oflanguage's role in regulations. FAA Inspector responsibilities and interactions.

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FOR PROTECTIVE AND/OR CONFIDENTIAL ORDER Page 6 20

162011 CST Coverage oftopics such as: 3-7 Conference FAAPenalties; SkyWestAircraftLoading Weight and Procedures; Duties and Responsibilities; Balance Designated Loading Agent; Training Presentation Resources; SP 7015; Designated Loading Agent Certification; SkyWest CLR Online Course; SP 4100; Online Courses; CLR Activity & Exercises
2011 CST Objectives; Discrepancies and Findings; 3-8 Conference FAAPenalties; SkyWest AircraftLoading Weight and Procedures; Duties and Responsibilities; Balance Handout Designated Loading Agent; Training Resources; SP 7015; Designated Loading Agent Certification; SkyWest CLR Online Course; SP 4100; Online Courses; CLR Activity & Exercises

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FORPROTECTIVE AND/OR CONFIDENTIAL ORDER Page 7 54

292011 CST Worksheet I: costs associated with CST, 3-9 Conference W&B focus groups, training course, online Certified Station component, classroom component, LAR, Trainer Costs CS compliance, DLA and flight operations Sheet
Internal Memo: Description ofSkyWestresponse to LOI, 4-1 SkyWest Weight workshop revisions in Certified Station and Balance Trainer Conference. Course description Corrective Actions and analysis with observations. Confidential- Not for Distribution
Internal Memo: Detailed Cost Summary

- Confidential- 4-2 SkyWest Weight Not for Distribution and Balance Corrective Action Costs
Internal Memo: Worksheet I: Tasks & Results- Internal 4-3 Tasks and Results review oftasks, results and action items. Confidential- Not for Distribution

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FORPROTECTIVE AND/OR CONFIDENTIAL ORDER Page 8 3

4



### 5

5Delta Flight Delta Flight Operations Manual 5.6.10- 5 2 Operations Manual 11 2

--Flight Planning Weight DataRecord. (Excerpt)

AUTHORITY
14 CFR Sees. 13.220 (g) and (h) provide in pertinentpart: (g) Confidential orders. A party or personwho has received a discovery request for informationthat is related to a trade secret, confidential or sensitive material, competitive or commercial information, proprietary data, or information on research and development, may file a motion for a confidential order with the administrative lawjudge
... (h) Protective orders. A party or a person who has received a request for discovery may file a motion for protective order withthe administrative law judge
... In addition to the guideline established in 14 CFR 13.220(g) and (h), under 49 CFR 7.17, all information and documentation submitted herein is designated by the SkyWest as confidential commercial information and is to be treated as exempt from FOIA's statutory disclosure requirement. SkyWest is to beimmediately notifiedbefore any such information is released to ensure SkyWest has an opportunity to submit a written

2 This document was identified in SkyWest's Supplemental Amended Responses to Complainant's Initial Discovery Requests, served on December 20,2011, but not produced. This document served as a basis for SkyWest's requested amendmentto its weight andbalance Program to permit cargo tolerance for last minute bag changes.

FAA CaseNos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FOR PROTECTIVE AND/OR CONFIDENTIAL ORDER Page 9objection to any suchrelease. SkyWest hereby requests thatthe information provided herein be treated as confidential under 49 CFR 7.13(c)(4) and (6), and under 49 USCS 552(b)(4),(6).
The information and documentation concurrently submitted herein by SkyWest is being submitted as a single confidential package, and as such, is to remain together and is not to be deemed segregable under 49

## uses 552.
STATEMENT OF ADVERSE AFFECT FROM PUBLIC DISCLOSURE SkyWest has determinedthe documents referenced above and attached herewith include confidential and proprietary information and material, including butnot limited to trade secret, commercial, business and competitive information, or which may contain confidential information affecting SkyWest or its officers, employees, agents and contractors' privacy rights. This includes internal compliance audits, company created training courses, and other proprietary and confidential information not proper for distribution.
Disclosure ofsuch information to persons notparties to this action mightresult in damage to Parties, including butnot limited to their respective subsidiaries, affiliated and related entities, and their respective officers, employees agents and contractors.

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FOR PROTECTIVE AND/OR CONFIDENTIAL ORDER Page 10Additionally, SkyWestrequests recognition ofthe common-law qualified privilege protecting certain critical self-appraisals from discovery. The concept underlying the privilege is to protectfrom disclosure documents containing candid and potentially damaging self-criticism. This self-critical analysis qualified privilege allows businesses to candidly evaluate their compliance with regulatory and legal requirements without creating evidence that may be used against them in future litigation.
The rationale for this qualified privilege is that critical self-evaluation fosters the compelling public interestthat individuals and businesses comply withthe law. Here, much ofthe information sought to be protected is the product ofSkyWest's critical self-analysis undertaken and prepared withthe expectationthat it would be kept confidential, and ithas in fact beenkept confidential.
The public has a strong interest inpreserving the free flow ofthe type of information sought so that airlines will continue to self-evaluate performance to ensure safety isjob number one and that regulations are being always and fully complied with.
Most importantly, should this information be made freely discoverable, itwill curtail future self-evaluations by all airlines fearing to risk that said evaluations will be used against them in future litigation.

FAACase Nos.: 2011NM0600 10, 2011NM060011, 2011NM060033 (Consolidated) MOTION FORPROTECTIVE AND/OR CONFIDENTIAL ORDER Page 11Complainant does not need or otherwise require the subject information be made publically available to continue to prosecute the consolidated action. There is no special need or extraordinary circumstances as Complainant's discovery has been completed and all subject information is for mitigatory purposes only.

DATED this

# lith day ofJuly, 2012.

ichael L. Dworkin Co-Counsel for SkyWestAirlines

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FORPROTECTIVE AND/OR CONFIDENTIAL ORDER Page 12CERTIFICATE OF SERVICE The undersigned hereby certifies that on this

## L:(_'h day ofJuly, 2012, a true and correct copy ofthe foregoing: MOTION FOR PROTECTIVE ORDERAND/OR CONFIDENTIAL ORDER
was served as follows: The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 NewJersey Avenue, S.E. East Building Ground Floor, Room El2-320 Washington, D.C. 20590 Fax: (202) 366- 7536 {FEDEX with sealed documents and Facsimile without sealed documents} Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building

- Suite 2Wl000 Fax: (202) 493

- 5142 {FEDEX and Facsimile without sealed documents} Jeffrey M. Harper Federal Aviation Administration Northwest Mountain Region, ANM-7 1601 Lind Avenue S.W. Renton, Washington 98057 Fax: (425) 227-1007 {FEDEX and Facsimile without sealed documents} Ms. Moifair Chin Federal Aviation Administration Northwest Mountain Region, ANM-7 1601 Lind Avenue S.W. Renton, Washington 98057 Email: moifair.chin@faa.gov {Email without sealed documents}

FAA Case Nos.: 2011NM060010, 2011NM060011, 2011NM060033 (Consolidated) MOTION FOR PROTECTIVE AND/OR CONFIDENTIAL ORDER Page 13