u.s. DEPARTMENT OF TRANSPORTATION R·. EC E ~\I r:: 0 

OFFICE OF HEARINGS I a '" 1-· 

WASIDNGTON, D.C. 

In The Matter Of: 

OCT i 3 2015 

HEARING DOCKET 

BIRMINGHAM PLIGHT CENTER, INC. 

Docket No. FAA-2014-0867 

Judge J.E. Sullivan 

Respondent. 

FAA Case No. 201280090053 

MOTION TO DEEM ADMITTED 

During discovery in. this matter, the FAA promulgated several Requests for Admission on 

Respondent. Respondent denied all of these requests without any specificity or qualification. 

However, subsequent discovery responses have revealed that Respondent's denials of two of 

those Requests for Admission were defective. The FAA notified Respondent that its denials were 

defective, but Respondent declined to amend its responses. Accordingly, the FAA moves to 

deem these matters admitted. 

Background 

On July 7, 2015, the FAA promulgated discovery request on Respondent, including four 

Requests for Admission. Exhibit A. Request for Admission #1 asked Respondent to "Admit that 

(regardless of your intent) the September 18, 2012 flight[s] in N525LP were not demonstration 

flights." Request for Admission #4 asked Respondent to "Admit that you operated N525LP on 

September 18, 2012." Exhibit A at 4. On July 13,2015, Respondent responded to these Requests 

for Admission (but not to the FAA's Interrogatories), denying them. Exhibit B. 

One of the interrogatories in the July 7, 2015, discovery request instructed Respondent to 

"If you deny any request for admission, state with specificity the basis for that denial." Exhibit A 

1 
at 3. Respondent responded to this interrogatory on August 21, 2015. Exhibit C at 6-7. With 

regards to Request for Admission # 1, Respondent explained that it had denied the request for 

admission on the basis that its intent had been to conduct a demonstration flight. Id at 6. With 

regards to Request for Admission #4, Respondent explained that it had denied the request for 

admission on the basis that the term "operate" was not defined. !d. at 7. 

On August 27, 2015, the undersigned sent Respondent's counsel a letter concerning 

deficiencies in Respondent's discovery responses. Exhibit D. In that letter, the undersigned 

identified to Respondent that its responses to Requests for Admission #1 and #4 were defective, 

asked it to supplement its responses, and warned it that the FAA would file a Motion to Deem 

Admitted if Respondent failed to address the situation. !d. at 3. Via letter dated September 29, 

2015, Respondent informed the FAA that it would not be supplementing its discovery responses 

in any way. Exhibit Eat 3. 

Argument 

Federal Rule of Civil Procedure 36 provides guidance as to the appropriate handling of 

Requests for Admission: 

(a) Scope and Procedure. 

(1) Scope. A party may serve on any other party a written request to admit, 

for purposes of the pending action only, the truth of any matters within the 

scope of Rule 26(b)(1) relating to: 

(A) facts, the application of law to fact, or opinions about either; 

(3) Time to Respond; Effect of Not Responding. A matter is admitted 

unless, within 30 days after being served, the party to whom the request is 

directed serves on the requesting party a written answer or objection 

addressed to the matter and signed by the party or its attorney. A shorter or 

longer time for responding may be stipulated to under Rule 29 or be 

ordered by the court. 

2 
( 4) Answer. If a matter is not admitted, the answer must specifically deny 

it or state in detail why the answering party cannot truthfully admit or 

deny it. A denial must fairly respond to the substance of the matter; and 

when good faith requires that a party qualify an answer or deny only a part 

of a matter, the answer must specify the part admitted and qualify or deny 

the rest. The answering party may assert lack oflmowledge or information 

as a reason for failing to admit or deny only if the party states that it has 

made reasonable inquiry and that the information it knows or can readily 

obtain is insufficient to enable it to admit or deny. 

(5) Objections. The grounds for objecting to a request must be stated. A 

party must not object solely on the ground that the request presents a 

genuine issue for trial. 

Fed.R.Civ.Pro. R 36(a). "A matter admitted under this rule is conclusively established." 

Fed.R.Civ.Pro. R 36(b). If an answer is insufficient under Rule 36(a)(4), the requesting party 

may make a motion with the court to determine the sufficiency of the answer, and if the answer 

is found to be insufficient, then the court may order that the matter be deemed admitted, or that 

an amended answer be submitted. Fed.R.Civ.Pro. R 36(a)(6). 

Respondent's answers to Requests for Admission # 1 and #4 were insufficient. With 

regards to Request for Admission #1, Respondent's denial failed to "fairly respond to the 

substance of the matter" as required by Rule 36(a)( 4). Request for Admission #1 specifically 

asked about whether the September 18, 2012 flights were, in fact, demonstration flights, 

explicitly warning Respondent that the request was directed at what actually happened, not what 

Respondent asserted that it intended to happen. Exhibit A at 4. Respondent's interrogatory 

response, however, disclosed that its denial of the request for admission was based exclusively 

on the assertion that it had intended to conduct a demonstration flight. Exhibit C at 6. This denial 

did not fairly respond to the substance of the request to admit and, accordingly, the answer was 

insufficient and the request can be deemed admitted. 

3 
With regards to Request for Admission #4, Respondent failed to meet its obligations to 

make an appropriate denial in several ways. Respondent asserts that it denied this interrogatory 

on the basis that it does not know what the word "operate" means. Exhibit Cat 7. If that was the 

case, then Respondent should have answered the request to admit by "stat[ing] in detail why [it] 

cannot truthfully admit or deny" the request for admission. See Fed.R.Civ.Pro. R 36(a)( 4). 

Instead, Respondent simply denied the request, inaccurately representing that actually had a basis 

for denying the request. See Exhibit B. However, while it can be appropriate for a party to 

respond to a request to admit by noting that it does not have the knowledge to admit or deny the 

request, such a response can be made "only if the party states that it has made reasonable inquiry 

and that the information it knows or can readily obtain is insufficient to enable it to admit or 

deny." Fed.R.Civ.Pro. R 36(a)(4). Here, Respondent failed in its obligation to make a reasonable 

inquiry before presenting its answer. The word "operate" is explicitly defined in the Federal 

Aviation Regulations. See 14 C.F.R. § 1.1. Respondent easily could have determined what the 

meaning of the word "operate" was - indeed, given that Respondent is in the aviation business 

and that Respondent's counsel works at a law firm that advertises its expertise in aviation law, it 

is difficult to credit the notion that Respondent was not aware of this definition. However, even if 

Respondent was not initially aware of this definition, the undersigned pointed it out to 

Respondent on August 29, 2015. Exhibit D at 2. Despite having been specifically directed to the 

definition of the word operate, Respondent has continued to stand by its "denial" of Request for 

Admission #4 on the basis that it does not know what the word "operate" means. Respondent's 

continued denial of this request for admission on this basis does not fairly respond to the 

substance of the question. This denial is insufficient and, accordingly, the request can be deemed 

admitted. 

4 
It is appropriate here to deem these matters admitted, rather than ordering Respondent to 

amend its answers. While amendment of answers may be appropriate where the defect in the 

answer was only technical, the defects here are substantive. Respondent's answers to Requests 

for Admission #1 and #4 were not only substantively defective, but flagrantly so. Further, when 

these defects were pointed out to Respondent, Respondent refused to correct or amend the 

insufficient responses. Respondent should not now be given yet another opportunity to amend its 

defective answers. Rather, these requests for admission should be deemed admitted. This is 

especially important in this forum because, unlike a United States District Court, this Court does 

not have the monetary sanctioning authority in Rule 37(c)(2), leaving an adverse inference as the 

Court's primary means of obtaining compliance with discovery requests. 

Conclusion 

Respondent had acknowledged, in its interrogatory responses, that it's denials of 

Requests for Admission # 1 and #4 had no factual basis and did not fairly address the substance 

of the questions asked. The FAA asks the Court to determine that these responses were 

insufficient, and deem it admitted that Respondent operated the September 18, 2012 flights and 

that these flights were not demonstration flights. 

>r~ 

Respectfully submitted this L day of October, 2015. 

Attorney 

Office of the Chief Counsel, Enforcement Division, Southern Team 

5 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Motion to Deem Admitted was sent: 

original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1 000 

one copy via certified mail to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (E11-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Paul R. Borth, Esq. 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025 

facsimile: (815) 356-7042 

[OCT ;.::.s 

Dated 

6 
In The Matter Of: 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

BIRMINGHAM FLIGHT CENTER, INC. 

Docket No. FAA-2014-0867 

Judge J.E. Sullivan 

Respondent. 

FAA Case No. 201280090053 

FAA'S FIRST DISCOVERY REQUESTS 

Pursuant to the provisions of 14 CFR § 13.220, please respond to the following 

Interrogatories, Requests for Production of Documents, and Requests for Admission separately 

and fully under oath within 30 days from your receipt ofthis request. 

This request is intended to discover information and/or documents not only within your 

personal knowledge or obtainable by you, but also information in the possession of or obtainable 

by your attorneys, investigators, representatives, employees, agents, or anyone acting on your 

behalf or on their behalf. 

Each interrogatory shall be answered separately and fully in writing under oath, unless it 

is objected to, in which event the reasons for objection shall be stated in lieu of an answer. 

You may respond to the Requests for Production by producing true and accurate copies 

of the originals to the undersigned. If you refuse to produce any documents or other evidence on 

the basis of privilege or other objection, identify specifically the items withheld from production. 

Each response shall be continuing in nature so as to require you to file supplemental 

responses in the following circumstances: 

a) When you become aware of a fact or the identity and location of any document 

that is not identified in your original response; 

b) When your original response was initially correct, but subsequently rendered 

incorrect or inaccurate based upon information discovered after the original response is prepared. 

If your answer to any interrogatory is "N/ A" or "Not Applicable," describe in detail your 

reasons for making such reply. In reply to any interrogatory, do not merely state, "see attached 

records" unless you have no additional memory of the matters referred to in the interrogatory. If 

you have any additional memory of the relevant events, describe it in detail. 

£ GOVERNMENT 

~ EXHIBIT 

§ A 1--'-----
DEFINITIONS 

"Documents" include, without limitation, notes, memoranda, invoices, work orders, receipts, 

reports, letters, audio and video tapes, photographs, facsimiles, transcripts, written statements, 

records of conversations, computer disks or tapes, e-mails, and other tangible or intangible 

materials. 

"You" or "your" refers to Respondent, Birmingham Flight Center, Inc .. 

"Identify," when referring to persons, requires you to provide the full name, address, telephone 

number (business and residence, where available) and any other information pertinent to locating 

such person. When pertaining to an object or place, "identify" means to provide the name, 

location or other description of such object or place. 

"This matter" refers to the events and circumstances underlying the allegations set forth in the 

Complaint, including amendments and other additions to the Complaint. 

Interrogatories 

1. For each person listed in your initial disclosures, describe in detail that person's 

knowledge of and involvement with this matter, including not limited to what maintenance that 

person performed, what knowledge of the situation that person has, and any communications that 

person had with others about the situation. 

2. If you assert that the inspector's statements in this matter (inclusive of records of 

conversation, e-mails, memoranda, or other documents), as contained in the EIR, contain any 

inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such 

errors, describe in detail your basis for believing that the statement is in error, and describe what 

you believe to be the actual situation. 

3. For each allegation in the Complaint that you deny, please state with specificity the basis 

(whether factual and/or legal) for that denial. 

4. If you assert that the penalty proposed in this case is inappropriate even if the FAA 

proves the allegations in the Complaint, please state with specificity the basis for that assertion, 

whether factual and/or legal. 

5. Describe in detail the circumstances and course of the September 18, 2012, and all 

arrangements prior to, during, and after the flight. This includes, but is not limited to, any 

discussions about the nature of the flight, any arrangements for any payment of any sort to you or 

the pilots, the time and route of the flight, and how the route of the flight was determined. 

6. Describe in detail your relationship and involvement with Justin Lollar and Shawn 

Flowers during the second half of 2012. 
7. If you assert that the October 3, 2012 and/or October 12,2012 statements by Alan Long 

contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically 

identify such errors, describe in detail your basis for believing that the statement is in error, 

describe what you believe to be the actual situation, and describe why Mr. Long made the 

enoneous statement. 

8. If you assert that the September 21,2012 and/or October 2, 2012 e-mails from Justin 

Lollar to Yancey Rushton contain any inaccuracies, falsehoods, mischaracterizations, or other 

errors, please specifically identify such errors, describe in detail your basis for believing that the 

statement is in error, describe what you believe to be the actual situation, and describe why Mr. 

Lollar made the enoneous statement. 

9. If you assert that the undated letters from Shawn Flowers to Yancey Rushton (stamped 

received by the AL/NW FLORlDA FSD0-09 on October 15,2012 and on October 24, 2012) 

contain any inaccuracies, falsehoods, mischaracterizations, or other enors, please specifically 

identify such enors, describe in detail your basis for believing that the statement is in error, 

describe what you believe to be the actual situation, and describe why Mr. Flowers made the 

erroneous statement. 

I 0. If you assert any inaccuracy or incompleteness in any of the maintenance records related 

to this case and/or included in the EIR, please identify with specificity any such inaccuracy or 

incompleteness, your basis for believing that the record is inaccurate or incomplete, and what the 

record should have stated. 

II. Identify each person you may call as a witness at hearing in this matter, identify the 

subject of their testimony, and summarize the substance oftheir expected testimony. You do not 

need to repeat information already contained in your initial disclosures, bnt you must expand on 

those answers to the extent necessary to answer this interrogatory. 

12. Identify each person you may call as an expert witness in this matter, identify the subject 

of their testimony, summarize the substance of their expected testimony, and describe in detail 

your basis for believing that the witness is an expert. 

13. For each interrogatory, request for production and request to admit, identify the 

individuals aiding in responding to that request. 

14. For each document identified in your initial disclosures, describe how that document 

supports your position in this matter. 

15. If you deny any request for admission, state with specificity the basis for that denial. 

Requests for Production 

With respect to each of the request for production below, you need not produce an additional 

copy of any document that was contained in the EIR in this matter, but should identify any such 

document that is not being produced and which request for production it is responsive to. 
1. Please produce each and every document referred to in your initial disclosures. 

2. Please produce any document referenced in your interrogatory responses. 

3. Please produce any document you may use as evidence in this matter. 

4. Please produce any document used, relied upon, or referred to in answering the 

interrogatories or requests to admit. 

5. Please produce all documents relating to N525LP during September 2012, including but 

not limited to any insurance agreements in effect at the time, any leases in effect at the time, 

aircraft and engine logbooks, maintenance records, flight records, and financial records relating 

to the maintenance, operation, or lease of the aircraft. 

6. Copies of all correspondence (letters, e-mails, or otherwise) to or from Birmingham 

Flight Center, Steven Pickett, and/or Sandi Pickett concerning this case or the operation of 

N525LP in September 2012. 

Request to Admit 

1. Admit that (regardless of your intent) the September 18,2012 flight in N525LP were not 

demonstration flights. 

2. Admit that Dr. Long was charged amounts beyond those permitted by 14 C.F.R. 

§ 91.501(d). ' 

3. Admit that it was the intent of Birmingham Flight Center and the pilots involved in the 

September 18,2012 flight to charge amounts that are not listed as pem1issible charges in 14 

C.F.R. § 91.501(d). 

4. Admit that you operated N525LP on September 18,2012. 

)/"'\ 

Submitted this 7 day of July, 2015. 

Attorney 

Office of the Regional Counsel 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's First Discovery Requests was sent via certified mail 

and facsimile to: 

Paul R. Borth, Esq. 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025 

facsimile: (815) 3 56-7042 

!tL.Pnm a ) ,L).h, M OJJ. A 

DONNASTAN~j 

Legal Assistant 

Office of the Regional Counsel 

,;u L 

Dated 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS, WASHINGTON, DC 

MICHAEL P. HUERTA, Administrator 

Federal Aviation Administration 

Complainant 

v. 

) 

) 

) 

) 

) 

) 

BIRMINGHAM FLIGHT CENTER, INC. ) 

Respondent. 

) 

) 

Docket No. FAA-201 4-0867 

Judge J .E. Sullivan 

FAA Case No, 20 12S0090053 

RESPONDENT'S ANSWERS TO COMPLAINANT'S REQUESTS TO ADMIT 

Respondent, Birmingham Flight Center, by its attorneys, Barnett & Borth, LLC. 

hereby answers the Administrator's Requests to Admit as follows: 

REQUEST TO ADMIT: 

I. Admit that (regardless of your intent) the September 18,2012 flight in N5254LP 

were not demonstration flights. 

ANSWER: 

Denied. 

REQUEST TO ADMIT: 

2. Admitthat Dr. Long was charged amounts beyond those permitted by 14 C.F.R. 

§ 91.50l(d). 

ANSWER: 

Denied. 

REQUEST TO ADMIT: 

3. Admit that it was the intent of Birmingham Flight Center and the pilots involved 

in the September 18, 2012 flight to charge amounts that are not listed as permissible 

charges in 14 C.F.R.§ 91.50l(d). 

ANSWER: 

Denied. 

liP age ~GOVERNMENT 

i. EXHIBIT 

~ (3 
REQUEST TO ADMIT: 

4. Admit that you operated N525LP on September 18, 2012. 

ANSWER: 

Denied. 

Respectfully submitted, 

BARNETT & BORTH, LLC 

Dated: Ju1y13,2015 

/~-----; 

c~:::~~~:;~:d:~~/ 

Paul R. Borth 

Counsel for Respondent, Birmingham Flight Center, Inc. 

Barnett & Borth, LLC 

800Waukegan Road 

Suite 200 

Glenview, IL 60025 

Tel. (84 7) 724-5520 

Fax (815) 356-7042 

prb@barnettlegal.com 
CERTIFICATE OF SERVICE 

l hereby ceriify that I have this date faxed and emailed the foregoing 

RESPONDENT'S ANSWERS TO COMPLAINANT'S REQUESTS TO ADMIT 

addressed to: 

Judge J.E. SLLilivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Depatiment of Transportation 

1200 New Jersey Avenue, S.E. (Ell-31 0) 

Washington, DC 20590 

Service via facsimile:202-366-7536 

Christopher Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 Southern Region 

1701 Columbia Avenue College Park, GA 30337 

TEL: 404-305-5200 

FAX: 404-305-5223 

Service via e-mail: chris.stevenson@faa.gov 

Dat~~~IlliY-3~015 -····· 

(·:<~~~~::::;;-' 

Paul R. Borth 

Counsel for Respondent 

Barnett & Borth, LLC 

800Waukegan Road 

Suite 200 

Glenview, JL 60025 

Tel. (847) 724-5520 

Fax (815) 356-7042 

prb@barnettlegal.com 

311'agc 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS, WASHINGTON, DC 

MICHAEL P. HUERTA, Administrator ) 

Federal Aviation Administration ) 

) 

Complainant ) 

v. ) 

) 

BIRMINGHAM FLIGHT CENTER, INC. ) 

) 

Respondent. ) 

Docket No. FAA-201 4-0867 

Judge J.E. Sullivan 

FAA Case No, 20!2S0090053 

RESPONDENT'S ANSWERS TO COMPLAINANT'S "INITIAL" SET OF 

INTERROGATORIES AND REQUESTS FOR PRODUCTION 

Respondent, Birmingham Flight Center, by its attorneys, Barnett & B01ih, LLC. 

hereby answers the Administrator's "Initial" Set of Interrogatories and Requests for 

Production as follows: 

1. For each person listed in your initial disclosures, describe in detail that person's 

knowledge of and involvement with this matter, including not limited to what 

maintenance that person performed, what knowledge of the situation that person has and 

any communications that person had with others about the situation. 

Answer: 

See Respondent's Answers to Interrogatories 1 and 2 of the Administrator's first set of 

Interrogatories filed on August I, 2015. 

2. If you assett that the inspector's statements in this matter (inclusive of records of 

conversation, e-mails, memoranda, or other documents); as contained in the EIR, contain 

any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically 

identify such errors, describe in detail your basis for believing that the statement is in 

error, and describe what you believe to be the actual situation. 

Answer: 

This Interrogatory is overly broad and vague and would require a narrative response 

better suited to deposition and/or hearing testimony ofthe witnesses in this case. The 

requested answer would require a narrative response requiring complete factual detail and 

a line by line review of all documents that are referenced. To the extent that this question 

seeks to narrow this Interrogatory is unduly burdensome and overbroad and would more 

appropriately be addressed by way of deposition or hearing testimony. Respondent 

further object to this Interrogatory to the extent that they are asked to state a legal opinion 

1 1 P .. , "c '- !::; 

GOVERNMENT 

EXHIBIT 

c.: 
on "falsehoods", errors, etc. In addition, the Rules of Civil Procedure do not require the 

Respondent to explain and disclose what the Respondent intends to show by way of cross 

examination of the FAA's inspectors and witnesses which places this intetTogatory in the 

category of requesting the mental impressions and work product of the Respondent's trial 

counsel which is not allowed and is objectionable. 

Respondent fmther objects to this Interrogatory to the extent it 

(i) Requests that Respondent provide a lengthy narrative response to an impermissibly 

broad and compound question; 

(ii) Requests the Respondent to provide detailed legal analysis of such information. An 

undettaking ofthis nature is not required by the Federal Rules of Civil Procedure and is 

designed to burden and harass Respondent and to cause it to incur enormous expenses. 

(iii) Marshall facts from all documents in this case to support any contentions of"error", 

misrepresentation, etc. 

3. ·For each allegation in the Complaint that you deny, please state with specificity 

the basis (whether factual and/or legal) for that denial. 

Answer: 

This request is overly broad and unduly burdensome because it attempts to require 

Respondent to provide a narrative account of each potential witness' anticipated 

testimony and to develop a narrative account of each and every potential defense that 

Respondent may assert in this action. "Each interrogatory should consist of a brief, 

simple, direct, and unambiguous question, dealing with one point only. The question 

should be objective and non-argumentative. They should not seek narrative answers or 

attempt to argue, cross-examine, or impeach." Hilt v. SFC. Inc., 1 70 F.R.D. 182, 186-187 

(D.Kan. 1997). In addition, the denials of each of the Administrator's complaint 

allegations stand on their own and are self-explanatory. The Respondent has no burden 

of proof in this case. See also Answer to Interrogatory number 6 of the Administrator's 

first set of Interrogatories tiled on August 1, 2015. 

4. If you assert that the penalty proposed in this case is inappropriate even if the 

FAA proves the allegations in the Complaint, please state with specificity the basis for 

that assertion, whether factual and/or legal. 

Answer: 

The proposed penalty asserted by the FAA in this case is inappropriate by vittue of the 

fact that the FAA cannot prove its allegations of violation of the cited regulations since 

the in light of the fact that the subject flight was a demonstration flight and was not 

operated for compensation or hire. The various e-mails contained in the FAA's EOR, the 

statements made by Mr. Picket and the e-mail transmissions disclosed by Respondent of 

the pettinent witnesses in this case bear out the fact that the subject flight was a 

demonstration flight thereby rendering the allegations of the Administrator's compliant 

moot. 

211' 'I",, ' c· \. 
5. Describe in detail the circumstances and course of the September 18,2012, and 

all arrangements prior to, during, and after the flight. This includes, but is not limited to, 

any discussions about the nature ofthe flight, any arrangements for any payment of any 

smi to you or the pilots, the time and route of the flight, and how the route of the flight 

was determined. 

Answer: 

This request is overly broad, compound and unduly burdensome because it attempts to 

require Respondent to provide a narrative account of each potential witness' anticipated 

testimony and to develop a narrative account of each and every potential defense that 

Respondent may assert in this action. "Each interrogatory should consist of a brief, 

simple, direct, and unambiguous question, dealing with one point only. The question 

should be objective and non-argumentative. They should not seek narrative answers or 

attempt to argue, cross-examine, or impeach." Hilt v. SFC. Inc., 170 F.R.D. 182, 186-187 

(D.Kan. 1997). Notwithstanding the information that is sought in this interrogatory can 

be gleaned from the rather extensive investigative reports of the FAA's investigator's and 

witnesses and the documents contained in the FAA's EIR and the documents previously 

disclosed by the Respondent. 

6. Describe in detail your relationship and involvement with Justin Lollar and 

Shawn Flowers during the second half of2012. 

Answer: 

See the documents contained in the FAA EIR and Respondent's Answers to 

Interrogatories I and 2 of the Administrator's first set of Interrogatories filed on August 

I, 2015. 

7. If you asseti that the October 3, 2012 and/or October 12, 2012 statements by Alan 

Long contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please 

specifically identify such errors, describe in detail your basis for believing that the 

statement is in error, describe what you believe to be the actual situation, and describe 

why Mr. Long made the erroneous statement. 

Answer: 

This Interrogatory is overly broad, compound and vague and would require a narrative 

response better suited to deposition and/or hearing testimony ofthe witnesses in this case. 

The requested answer would require a narrative response requiring complete factual 

detail, and to the extent that this question seeks to narrow this lntenogatory is unduly 

burdensome and overbroad and would more appropriately be addressed by way of 

deposition. Respondent further object to this Interrogatory to the extent that they are 

asked to state a legal opinion on "falsehoods", errors, and the general credibility of Dr. 

Long without the benefit of his sworn testimony or cross examination. In addition, the 

Rules of Civil Procedure do not require the Respondent to explain and disclose what the 

Respondent intends to show by way of cross examination of Alan Long which places this 

interrogatory in the category of requesting the mental impressions, strategic impressions 

and tactics and attorney work product of the Respondent's trial counsel which is not 

311' n g e 
allowed and is objectionable. See also the contemporaneous e-mail transmissions to and 

from Dr. Long contained in the FAA's ElR and those previously disclosed by 

Respondent. 

8. If you assert that the September 21, 2012 and/or October 21 2012 c-mails from 

Justin Lollar to Yancey Rushton contain any inaccuracies, falsehoods, 

mischaracterizations, or other errors, please specifically identify such errors, describe in 

detail your basis for believing that the statement is in error, describe what you believe to 

be the actual situation, and describe why Mr. Lollar made the erroneous statement. 

Answer: 

This Interrogatory is overly broad, compound and vague and would require a narrative 

response better suited to deposition and/or hearing testimony of Mr. Lollar and Mr. 

Rushton. The requested answer would require a narrative response requiring complete 

factual detail, and to the extent that this question seeks to narrow this Interrogatory is 

unduly burdensome and overbroad and would more appropriately be addressed by way of 

deposition. Respondent fwther object to this Interrogatory to the extent that they are 

asked to state a legal opinion on "falsehoods", errors, etc. Without the benefit of the 

testimony of Mr. Rushton, an assessment concerning the credibility of his investigation 

cannot be surmised. In addition, no such e-mails have been disclosed by the 

Administrator nor are they contained as items of proof in the FAA EIR. The Rules of 

Civil Procedure do not require the Respondent to explain and disclose what the 

Respondent intends to show by way of cross examination of Alan Long which places this 

inten·ogatory in the category of requesting the mental impressions and work product of 

the Respondent's trial counsel which is not allowed and is objectionable. See also theemail transmissions to and from Dr. Long contained in the FAA's EIR and those 

previously disclosed by Respondent. 

9. If you assert that the undated letters from Shawn Flowers to Yancey Rushton 

(stamped received by the AL/NW FLORJDA FSD0-09 on October 15,2012 and on 

October 24, 20 I 2) contain any inaccuracies, falsehoods, mischaracterizations, or other 

errors, please specifically identify such errors, describe in detail your basis for believing 

that the statement is in error. describe what you believe to be the actual situation and 

describe why Mr. Flowers made the erroneous statement. 

Answer: 

This Intenogatory is overly broad, compound and vague and would require a nanative 

response better suited to deposition and/or hearing testimony of Mr. Flowers. The 

requested answer would require a narrative response requiring complete factual detail, 

and to the extent that this question seeks to narrow this Interrogatory is unduly 

burdensome and overbroad and would more appropriately be addressed by way of 

deposition. Respondent further objeCt to this Interrogatory to the extent that they are 

asked to state a legal opinion on "falsehoods", errors, etc. The Rules of Civil Procedure 

do not require the Respondent to explain and disclose what the Respondent intends to 

show by way of direct or cross examination of Mr. Flowers Long which places this 

interrogatory in the category of requesting the mental impressions and work product of 

4 II' a g c 
the Respondent's trial counsel which is not allowed and is objectionable. As to the 

October 15, 2012 dated letter it speaks for itself. The October 24 dated letter, the first 

three paragraphs appear to be accurate while the last paragraph appears to be a lay 

assessment of unknown FAR's that would require a legal analysis and mental 

impressions to decipher and comment upon rendering this question which invades 

attorney work product. See also the contemporaneous e-mail transmissions to and from 

Dr. Long contained in the FAA's EIR and those previously disclosed by Respondent. 

10. If you assert any inaccuracy or incompleteness in any of the maintenance records 

related to this case and/or included in the EIR, please identify with specificity any such 

inaccuracy or incompleteness, your basis for believing that the record js inaccurate or 

incomplete, and what the record should have stated. 

Answer: 

None of the allegations of the Administrator's compliant concern the "maintenance 

records" of anything nor have any such records been produced by the Administrator or 

contained in the FAA's EIR. As such, Respondent has no way to answer the 

interrogatory and questions the relevance of the interrogatory to any aspect of this matter. 

11. Identify each person you may call as a witness at hearing in this matter, identify 

the subject of their testimony, and summarize the substance of their expected testimony. 

You do not need to repeat information already contained in your initial disclosures, but 

you must expand on those answers to the extent necessary to answer this interrogatory. 

Answer: 

See Respondent's Answers to Interrogatories I and 2 of the Administrator's first set of 

Interrogatories filed on August I, 2015. 

12. Identify each person you may can as an expert witness in this matter, identify the 

subject of their testimony, summarize the substance oftheir expected testimony, and 

describe in detail your basis for believing that the witness is an expert. 

Answer: 

None. 

13. For each interrogatory, request for production and request to admit, identify the 

individuals aiding in responding to that request. 

Answer: 

Steven Pickett 
14. For each document identified in your initial disclosures, describe how that 

document supports your position in this matter. 

Answer: 

This Interrogatory is overly broad, compound and vague and would require a narrative 

response The requested answer would require a narrative response requiring complete 

factual detail, and to the extent that this question seeks to narrow this Interrogatory is 

unduly burdensome and overbroad In addition, the Rules of Civil Procedure do not 

require the Respondent to explain and disclose what the Respondent intends to show by 

way of the voluminous documents that make up this case. This intetTogatory is in the 

category of requesting the mental impressions and work product of the Respondent's trial 

counsel which is not allowed and is objectionable. 

15. If you deny any request for admission, state with specificity the basis for that 

denial. 

Answer: 

REQUEST TO ADMIT: 

I. Admit that (regardless of your intent) the September 18,2012 flight in N5254LP 

were not demonstration flights. 

ANSWER: 

Denied on the basis that the intention and purpose of Birmingham Flight Center, its 

principals, employees and agents that the flight was a flight taken as a demonstration 

flight on the authority of the owner and broker of the aircraft. 

REQUEST TO ADMIT: 

2. Admit that Dr. Long was charged amounts beyond those pennitted by 14 C.F.R. 

§ 91.501( d). 

ANSWER: 

Denied on the basis that § 91.50 I (b) provides that operations that may be conducted 

under the rules in this subpart instead ofthose in parts 121,129,135, and 137 ofthis 

chapter when common carriage is not involved, include (3) Flights for the demonstration 

of an airplane to prospective customers when no charge is made except for those 

specified in paragraph (d) ofthis section. 

§ 91.50 l (d) then provides that the following may be charged, as expenses of a specific 

flight, for transpottation as authorized by paragraphs (b) (3) and (7) and (c)(l) of this 

section: 

(1) Fuel, oil, lubricants, and other additives. 

(2) Travel expenses of the crew, including food, lodging, and ground transportation. 

(3) Hangar and tie-down costs away from the aircraft's base of operation. 

(4) Insurance obtained for the specific flight. 

(5) Landing fees, airpmt taxes, and similar assessments. 

(6) Customs, foreign permit, and similar fees directly related to the flight. 

(7) in flight food and beverages. 

61Pagc 
(8) Passenger ground transportation. 

(9) Flight planning and weather contract services. 

(1 0) An additional charge equal to I 00 percent of the expenses listed in paragraph ( d)(l) 

of this section. 

No inappropriate charges were requested nor incurred of or by Dr. Long and no 

documentation to the contrary is contained in the FAA's EIR nor has any such 

documentation that any inappropriate charges were requested of or by Dr. Long been 

produced by the Administrator. 

REQUEST TO ADMIT: 

3. Admit that it was the intent of Birmingham Flight Center and the pilots involved 

in the September 18, 2012 flight to charge amounts that are not listed as permissible 

charges in 14 C.F.R.§ 9!.50l(d). 

ANSWER: 

Denied on the basis set fmth in answer to Request to admit I and 2. 

REQUEST TO ADMIT: 

4. Admit that you operated N525LP on September 18, 2012. 

ANSWER: 

Denied on the basis that the term "operated" is not defined and Respondent does not wish 

to have an inappropriate definition of "operated" to be applied to the factual situations 

involved to admit or imply that the subject flight was a charter, 135 or commercial flight 

or any other flight other that a demonstration flight which it was. 

RESPONSE TO REQUEST FOR PRODUCTION 

In response to the Administrator's "Initial" request for production, Respondent 

Provides the following responses: 

I. Please produce each and every document referenced in your initial diclosures. 

Response: 

See Respondent's Responses to the Administrator's first set of Requests for Production of 

Documents filed on August I, 2015 and Respondent's Supplemental Response filed on 

August 17,2015. 

2. Please produce any document referenced in your interrogatory responses. 

Response: 

See Respondent's Responses to the Administrator's first set of Requests for Production of 

Documents filed on August I, 2015 and Respondent's Supplemental Response filed on 

August 17, 2015. Other documents are contained in the FAA's EIR. 

7 I I',, g ,,_. 
3. Please produce any document you may use as evidence in this matter. 

Response: 

See Respondent's Responses to the Administrator's first set of Requests for Production of 

Documents filed on August I, 2015 and Respondent's Supplemental Response filed on 

August 17, 2015. Other documents are contained in the FAA's EIR. The specific 

documents to be used at the hearing of this matter will be produced with appropriate 

exhibit reference on or before the September 18, 2015 date for disclosures as set forth in 

the Court's Pre-Trial Order at~ 10. 

4. Please produce any document used relied upon, or referred to in answering the 

interrogatories or requests to admit. 

Response: 

Respondent utilized all documents set forth in Respondent's Responses to the 

Administrator's first set of Requests for Production of Documents filed on August I, 

2015 and Respondent's Supplemental Response filed on August 17, 2015. Other 

documents are contained in the FAA's EIR. 

5. Please produce all documents related to N525LP during September 2012 

including but not limited to any insurance agreements in effect at the time, any leases in 

effect at the time, aircraft, engine and maintenance logbooks, maintenance, flight records 

and financial records relating to the maintenance, operation or lease of the aircraft. 

Response: 

Respondent was not the owner of the subject aircraft and is not in possession of any 

records or documents responsive to this request. 

6. Copies of all correspondence (letters, e-mails or otherwise) to or from 

Birmingham Flight Center, Steven Pickett, and/or Sandi Pickett concerning this case or 

the operation ofN525LP in September 2012. 

Response: 

See Respondent's Responses to the Administrator's tirst set ofReguests for Production of 

Documents filed on August I, 2015 and Respondent's Supplemental Response filed on 

August 17, 2015. Other documents are contained in the FAA's EIR. 

Respondent reserves the right to utilize and introduce the exhibits disclosed by the 

Administrator with the appropriate witnesses at the hearing of this matter. 

SIP()ge 
Respectfully submitted, 

BARNETT & BORTH, LLC 

Dated: August 21, 2015 

c::~~~~~i~;:d > 

Paul R, Bmth 

Counsel for Respondent, Birmingham Flight Center, Inc, 

Barnett & Borth, LLC 

800Waukegan Road 

Suite 200 

Glenview, IL 60025 

TeL (847) 724-5520 

Fax (815) 356-7042 

prb@barnettlegal,com 
CERTIFICATE OF SERVICE 

I hereby ce1iify that I have this date faxed and emailed the foregoing 

RESPONDENT'S ANSWERS TO COMPLAINANT'S "INITIAL" 

INTERROGATORIES AND REQUESTS FOR PRODUCTION addressed to: 

Christopher Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 Southern Region 

1701 Columbia Avenue College Park, GA 30337 

TEL: 404-305-5200 

FAX: 404-305-5223 

Service via e-mail: chris.stevenson@faa.gov 

Dated: August 21, 2015 

/ .. ~--~~-- '/~ -) 

(~.c-~.2~~-

Pau!R. Borth 

Counsel for Respondent 

Barnett & Borth, LLC 

800Waukegan Road 

Suite 200 

Glenview, IL 60025 

Tel. (847) 724-5520 

Fax (815) 356-7042 

prb@barnettlegal.com 

10 1~" n g , 
U.S. Department 

of TranspO!tation 

Federal Aviation 

Administration 

VIA E-MAIL ONLY 

Paul R. Borth 

Bamctt & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, !L 60025 

facsimile: ( 8 J 5) 3 56-7042 

email: prb({j)barncttlegat.com 

Office of the Chief Counsel 

Re: FAA v. Birmingham Flight Center, FAA-2014-0867 

Mr. Borth: 

Enforcement Division 

Southern Team 

1701 Columbia Avenue 

College Park, GA 30337 

201280090053 

I am writing to follow up on your August 21, 2015 responses to the FAA's July 7, 2015 

discovery requests. These responses were substantially deficient in a variety of ways, as 

discussed in more detail below. Please let me know immediately if you plan up updating your 

responses to correct these deficiencies and, if so, when you anticipate doing so. Given that these 

responses were two weeks late and that we are now outside of the currently-scheduled discovery 

period, prompt action will be required on this front. Accordingly, be advised that if I do not 

receive a suitable response regarding your intentions by close of business tomonow, August 28, 

2015, a Motion to Compel will be filed next week. 

lntenogatories #I, 11: Interrogatory #I sought a detailed description of several persons 

"knowledge of mul involvement with this matter:' including what their knowledge of the 

situation was and what communications that person had with others about the situation. 

Interrogatory #11 sought similar information with regard to expected witnesses -

identification of the subject of their testimony. and a summary of the substance of that 

testimony. In response to both of these interrogatories, you referred to your answers to 

Interrogatories ill and 112 of a prior set of discovery requests. However, those discovery 

responses do not adequately answer this interrogatory. In pmticular, I note that the answers lu 

those interrogatories provide no detai I about what the individuals knew or what their 

communications were. For example, the prior response conccming Steven Pickett states that 

he is expected to testifY about "all aspects" of the !light and about his communications with 

various individual. But it does not say what he actually knows about the !light or what those 

communications were. Your responses identify the potential subject of testimony, but 

provide no inicmnalion about the substance of that testimony. For example, it is not enough 

to simply say that a witness will "testify about the weather" -- a complete response would 

speci11c that the witness was going to testify that it was raining and chilly, or wam1 and 

sunny, 

GOVERNMENT 

EXHIBIT 

Q 
Interrogatories #2, 7, 8, 9: These interrogatories asked Respondent to state whether it 

considered the contents of various statements, letters, and records of conversation to be 

accurate or inaccurate: (\vhether simply inaccurate.\ n1ischaracterizing an nlbcnvise true fact. 

or omitting pertinent information). You refused to answer any of these questions. However, 

}'Our stated reasons for doing so arc not valid one~. Contrary to ~/OUr assertion. these 

questions are not vague. Contrary to your asseriion, they are not "overly broad," hut rather 

arc contined to specific documents used as Items of Proof in the EIR in this case. You arc 

conect that they require a line-by-line review of the documents in question, but that is not a 

reason to refuse to answer the question. You suggest that these questions would be "more 

appropriately" addressed at a deposition, but your opinion as to what method of discovery the 

FAA should have chosen does not relieve Respondent of the obligation of responding to 

discovery. You suggest that these questions would be "more appropriately" addressed at 

hearing, but that would defeat the entire purpose of discovery, which is to exchange 

information prior to hearing. You object to these questions as calling f(Jr legal conclusion as 

to whether statements are false, but that is a factual conclusion, not a legal one and, 

regardless, discovery requests can pennissibly ask for legal conclusions. You further object 

on the basis that this request asks what you intend to do in cross examination, but that is 

inaccurate. This request asks tor factual information (or, at least, Respondent's view of what 

the facts are). Respondent must answer these interrogatories. 

Interrogatory #4: This request sought Respondent's arguments, if any, for asserting that the 

penalty was inappropriate "even ifthe FAA proves the allegations in the Complaint." Your 

answer to this question exclusively consisted of denying that the allegations in the Complaint 

were true. Unless Respondent will agree to stipulate that, if the violations are proven. the 

penalty is appropriate, Respondent must answer this interrogatory as to the alleged defects in 

the sanction selected. 

Interrogatory #5: This interrogatory sough a detailed description of the circumstances of the 

flight at issue in this case. You objected to the interTogatory as "overly board" and "unduly 

bmdensome" and because, you asserted, it sought a narrative account of each witness's 

complete testimony. Your objection without merit. The discovery request does not call for 

such a response- it calls for a description of events, not a description of testimony. lt is 

entirely appropri<Jte for an interrogatory to seek a descrip-tion of events at issue in a case. fn 

addition to objecting, you also responded by referring to the ElR. This is not an adequate 

response, especially when we !mow that Respondent does not actually agree with every 

a'pcct of each of the accounts of events contained in those documents (for example. Dr. 

Long asserts the notion of a demonstration Hight never came up until after the flight, while 

Respondent asserts that it did). The inlom1ation sought by this interrogatory is not what those 

individual witnesses said- the infom1ation sought by this interrogatory is what the 

Respondent"'s official position is as to \\'hat transpired \Vith regards ln this flight. 

!nterTogatory 116: This intenogatory sought a description ofihe relationship between 

Respondent and pilots Justin Lollar and Shawn Flowers during the ]alter half of 2012. You 

did not object to this question, but only responded hy refening to other interrogatory 

responses, 8!1d to the entire E!R. This is not an adequate response. First, the interrogatory 
responses referenced to do appear to address this at all - as noted above, those responses 

simply referenced topics without content Second, simply referring to EIR as a whole is 

inappropriate- it could perhaps be appropriate to direct the FAA to the contents of a 

particular document, if that document contained information that fully and completely 

answered the question. But there was no such direction provided, the undersigned is unaware 

of such a document, and if there is such a document Respondent must still go on the record 

as formally adopting the contents of that document. 

Interrogatory #15 and Requests for Admission 1, 4: This interrogatory requested that 

Respondent identify the basis for denying any requests for admission that had been denied. 

All of these interrogatories were responded to. However, these responses revealed that there 

was not a valid basis for the original denials. Request for Admission #1 specifically asked 

Respondent to admit that the flight was not a demonstration night, regardless of whether 

Respondent intended it to be a demonstration flight. Your response to this interrogatory is 

that the basis for the denial is that the "intention and purpose" of the !light was a 

demonstration flight-- in shmt, the denial had nothing to do with the question. Request for 

Admission #4 asked Respondent to admit that it had operated the flight, Thai request was 

denied, and the explanation provided was that the term "operated" was not detined. In short, 

Respondent answered "denied" even though it had no basis to deny the request for 

admission. You are advised that the definition of the word operate is contained in 14 C.F.R. 

§ 1.1. As to both of these inlerrogatories, Respondent must revise its answer to the request 

for admission and/or supplement its response to this interrogatory to provide a valid basis for 

denying the requests for admission. Failure[() do so will result in the tiling of a Motion to 

Deem Admitted. 

As noted above, please let me know by close of business tomorrow, August 28,2015, whether 

you intend to correct these deficiencies, and if so, your anticipated time fi,ame for doing so, 

Sincerely, 

CHRISTOPHER R. STEVENSON 

Attorney 

Ofiice of the Chief Counsel N Enforcement Division, Southern Team 
800 Waukegan Road, Suite 200 • Glenview, Illinois 60025 

847-809-9520 

September 29,2015 

Christopher Stevenson 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 Southern Region 

170 I Columbia Avenue College Park, GA 30337 

Via E-mail: Chris.Stevcnson({vfaa.gov 

Re: ln Re Birmingham Flight Center Discovery 

Mr. Stevenson: 

prb@barnettlegal.com 

I have had the opportunity to review your discovery responses and have the following 

comments. In response to respondent's expert interrogatories you state that "the FAA has not 

identified any expert witnesses at this time." In addition, you object claiming privilege in 

response to Respondent's expe1i requests for production numbers 2, 3, 4 and Respondent's 

request for production numbers 5, 6, 7, 10, 12, 24, and 25. A review of the documents disclosed 

by Administrator demonstrate that Mr. Rushton and Mr. Hargett were both involved in the 

investigation of this case on behalf of the FAA and both wrote reports concerning their 

investigation. 

lt is our position that both Mr. Rushton and Mr. Hargett are experts in the eyes of the 

Federal Rules subject to rule 26 and, accordingly, your objections and claims of privilege 

respecting response requests for expert discovery are unfounded. You have identified Mr. 

Rushton as an individual who will provide testimony at the hearing but have merely disclosed 

that "Mr. Rushton will provide testimony respecting all FAA allegations contained in the 

administrator's complaint for which he has personal knowledge". Your answer to Respondent's 

inten·ogatory number 7 states that the FAA anticipates calling the three FAA aviation safety 

inspectors who were involved in the investigation as well. 

The allegations of the administrator's complaint concem CFR's that one would assume 

Mr. Rushton has studied and for which Mr. Rushton holds opinions vis-a-vis the factual scenario 

involved in this case drawing on his experience as a fanner owner of a chmier service (Rushton 

Air). Federal Rule of Civil Procedure Rule 26 (2) Disclosure ofExpeti Testimony dictates that: 

(A) In General. In addition to the disclosures required by Rule 

26(a)(l), a patiy must disclose to the other patiies the identity of 

any witness it may use at trial to present evidence under Federal 

Rule of Evidence 702, 703, or 705. 

GOVERNMENT 

EXHIBIT 

~ 
(B) Witnesses Who Must Provide a Written Report. Unless 

otherwise stipulated or ordered by the co uti, this disclosure must 

be accompanied by a written report-prepared and signed by the 

witness-if the witness is one retained or specially employed to 

provide expert testimony in the case or one whose duties as the 

party's employee regularly involve giving expert testimony. 

The report must contain: 

(i) a complete statement of all opinions the witness will express 

and the basis and reasons for them; 

(ii) the facts or data considered by the witness in forming them; 

(iii) any exhibits that will be used to summarize or suppoti them; 

(iv) the witness's qualifications, including a list of all publications 

authored in the previous I 0 years; 

(v) a list of all other cases in which, during the previous 4 years, 

the witness testified as an expert at trial or by deposition; and 

(vi) a statement of the compensation to be paid for the study and 

testimony in the case. 

(C) Witnesses Who Do Not Provide a Written Report. Unless 

otherwise stipulated or ordered by the court, if the witness is not 

required to provide a written report, this disclosure must state: 

(i) the subject matter on which the witness is expected to present 

evidence under Federal Rule of Evidence 702, 703, or 705; and 

(ii) a summary of the facts and opinions to which the witness is 

expected to testify. (Emphasis supplied). 

Both Mr. Yancey and Mr. Hargett meet the criteria of"one whose duties as the party's 

employee regularly involve giving expert testimony". They are both employees of the FAA and 

their positions with the FAA likely involve regularly providing expert testimony in cases such as 

the present one. Accordingly the Administrator has failed to comply with Rule 26 (2)(B) in all 

respects and notwithstanding Rule 26(2), Respondent would be severely prejudiced by being 

forced to cross examine an expert whose opinions have not been previously disclosed. We would 

appreciate it if you would reconsider your objections and purported privileges and provide us 

with full disclosure of the opinions and documents requested in respondent's discovery requests. 

In addition to your purp01ted privileges have not been accompanied by a privilege log. 

Since 1993, FRCP 26(b)(5) has included the following language: "When a pmty withholds 

information othetwise discoverable by claiming that the information is privileged or subject to 

protection as trial preparation material, the patty must: i) Expressly make the claim; and ii) 

Describe the nature of the documents, communications, or tangible things not produced or 

disclosed -- and do so in a manner that, without revealing information itself privileged or 

protected, will enable other patties to assess the claim. The language of Rule 26(b)(5) is 

"commonly satisfied by filing a privilege log." Walk v. Green, No. C06-5025 BZ, 2007 WL 

3203050, at *1-2 (N.D. Cal. 2007). We would appreciate it if at your earliest convenience, you 

would file a privilege log that meets the above criteria so that an in camera inspection may be 

conducted. 

With respect to your answers to Respondent's non-expert interrogatories, interrogatory 

number 7 requests a brief summary of the facts and opinions of which each identified witness 

will testify. Absent from your answer is any indication of the facts and opinions that will be 

expressed by the three FAA aviation safety inspectors. At your earliest convenience please 

provide a more thorough answer to this interrogatory. 

2 II' II g t' 
Interrogatory number 8 asks the Administrator to provide a list of the documents that will 

be used to support the Administrators claim that respondent violated aviation regulations. While 

the Respondent is in possession of the EIR, he is not cognizant of which documents contained in 

the EIR will be used by the Administrator to support his case. While it is true that the 

Respondent "can read the documents for itself' the Respondent is uncertain of which documents 

the Administrator deems supportive of his case. Please provide a more thorough answer to this 

interrogatory. 

Based on the Administrator's answer to interrogatory number 10 and 11 and the 

Administrator's response to respondent's request for production numbers 16, the Respondent 

assumes that the Administrator has no affirmative responses to these requests and is waving the 

potential use of responsive documents related to these requests. Please advise if the Respondent 

is mistaken in this regard. 

With respect to the Respondent's responses to the Administrator's discovery, Respondent 

stands by the answers and responses previously served upon the Administrator and disagrees 

with the arguments to the contrary set forth in your undated letter on this subject. 

PRB/tbm 

3 I [) [ '-'l 1-' .. ' (' .. 

Sincerely, 

BARNETT & BORTH, LLC 

c~:~_2z:;.:::;F" Paul Borth, Attorney at Law