# u.s. DEPARTMENT OFTRANSPORTATION

# R·.ECE

**~\I**

# r::0 OFFICE OFHEARINGS 

### I 

## a '" 1-·



### WASIDNGTON,D.C.

In The Matter Of: 

## OCT 

## i 32015 

## HEARING DOCKET

BIRMINGHAMPLIGHT CENTER, INC. DocketNo. FAA-2014-0867 Judge J.E. Sullivan Respondent. FAA CaseNo. 201280090053

MOTIONTODEEMADMITTED During discovery in.this matter, the FAApromulgated several Requests for Admission on Respondent. Respondent denied all ofthese requests without any specificity or qualification. However, subsequent discovery responses have revealed that Respondent's denials of two of those Requests for Admissionwere defective. The FAAnotified Respondentthat its denials were defective, but Respondent declined to amend its responses. Accordingly, the FAA moves to deemthese 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 ofyour 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." ExhibitA at 4. On July 13,2015, Respondent responded to these Requests for Admission (but notto the FAA's Interrogatories), denying them. ExhibitB. One ofthe interrogatories in the July 7, 2015, discoveryrequest instructed Respondent to "Ifyou deny any request for admission, state with specificitythebasis 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 thatthe 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 ifRespondent failed to address the situation. !d. 

### at 3. Via letter dated September 29, 2015, Respondent informed the FAAthat it would notbe supplementing its discovery responses in any way. ExhibitEat3. Argument 

### Federal Rule ofCivilProcedure 36 provides guidance as to the appropriate handling of Requests for Admission: (a) Scope and Procedure. (1) Scope. Apartymay serve on any otherparty awrittenrequestto admit, for purposes ofthepending action only, the truth ofany matters withinthe scope ofRule 26(b)(1)relatingto: (A) facts, the applicationoflawto fact, or opinions about either;

(3) Time to Respond; Effect ofNotResponding. A matteris admitted unless, within 30 days after being served, the partyto whomthe request is directed serves onthe requestingparty a written answer or objection addressed to the matter and signedbythe party orits attorney. A shorter or longertime for responding may be stipulatedto under Rule 29 orbe orderedbythe court.

2

### (4) Answer. Ifamatter is not admitted, the answer must specifically deny itor state in detail whythe answeringpartycannottruthfully admit or deny it. A denial must fairly respondto the substance ofthe matter; and when good faith requires that aparty qualify an answer or deny only apart ofamatter, the answer must specifythe part admitted and qualify or deny the rest. The answering party may assert lack oflmowledge orinformation as areason for failing to admit or deny only ifthe party states thatithas made reasonable inquiry andthatthe informationitknows or canreadily obtain is insufficientto enable itto admit or deny. (5) Objections. The grounds for objectingto arequest mustbe stated. A party must not object solely onthe groundthatthe requestpresents 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 ofthe answer, and ifthe answer is found to be insufficient, thenthe court may order that the matter be deemed admitted, or that

anamended answerbe 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 ofthe 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 thatthe 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 ofthe request for admission was based exclusively

on the assertionthat it hadintendedto conduct a demonstration flight. Exhibit C at 6. This denial did not fairly respond to the substance ofthe request to admit and, accordingly, the answer was insufficient andthe request canbe 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. Ifthat 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 deniedthe request, inaccuratelyrepresenting that actuallyhadabasis for denying the request. See 

### Exhibit B. However, while it can be appropriate for a party to respond to a request to admitby noting that it does not have the knowledge to admit or deny the request, such a response canbe made "only ifthe party states that ithas 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 obligationto make areasonable 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 ofthe 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 difficultto creditthe notionthatRespondentwas not aware ofthis 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 ofthe word operate, Respondent has continued to stand by its "denial" ofRequest 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 ofthe question. This denial is insufficient and, accordingly, the request can be deemed admitted.

4It

### 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 nowbe given yet another opportunityto amend its defective answers. Rather, these requests for admission should be deemed admitted. This is especially important inthis forum because, unlike a United States District Court, this Court does not havethe monetary sanctioning authority inRule 37(c)(2), leaving an adverse inference as the Court's primary means ofobtaining compliancewith 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 thattheseflights werenot demonstration flights.



### >r~ Respectfully submittedthis

# L day ofOctober, 2015.

Attorney Office ofthe ChiefCounsel, Enforcement Division, SouthernTeam



### 5

### CERTIFICATE OF SERVICE 

### Ihereby certifythat the foregoing Motionto DeemAdmitted was sent: original and one copyviacertifiedmailto: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing DocketClerk, AGC-430 Wilbur WrightBuilding- Suite 2W1000

one copy viacertifiedmail to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. DepartmentofTransportation 1200NewJerseyAvenue, 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

### InThe Matter Of: 

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

WASHINGTON, D.C.

BIRMINGHAM FLIGHT CENTER, INC. Docket No. FAA-2014-0867 Judge J.E. Sullivan Respondent. FAA Case No. 201280090053



### FAA'S FIRSTDISCOVERYREQUESTS Pursuant to the provisions of 14 CFR § 13.220, please respond to the following Interrogatories, Requests for Production ofDocuments, and Requests for Admission separately and fully under oath within 30 days from your receipt ofthisrequest. 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 ofor obtainable by your attorneys, investigators, representatives, employees, agents, or anyone acting on your behalfor 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 inlieu ofan answer. You may respond to the Requests for Production by producing true and accurate copies ofthe originals to the undersigned. Ifyourefuse to produce any documents or other evidence on the basis ofprivilege 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 basedupon information discovered afterthe original response is prepared. Ifyour 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 ofthe matters referred to in the interrogatory. If you have any additional memory ofthe 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 informationpertinent to locating such person. When pertaining to an object or place, "identify" means to provide the name, location or other description ofsuch object orplace. "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 eachperson listed in your initial disclosures, describe in detail that person's knowledge ofand involvement with this matter, including not limited to what maintenance that personperformed, what knowledge ofthe situation that personhas, and any communications that person had with others about the situation. 2. Ifyou assert that the inspector's statements in this matter (inclusive ofrecords of conversation, e-mails, memoranda, or other documents), as contained inthe EIR, contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail your basis for believing that the statementis in error, and describe what you believe to be the actual situation. 3. For each allegationinthe Complaint that you deny, please state with specificity the basis (whether factual and/or legal) for that denial. 4. Ifyou assert that the penaltyproposed in this case is inappropriate even ifthe FAA proves the allegations inthe Complaint, please state with specificity the basis for that assertion, whether factual and/or legal. 5. Describe in detail the circumstances and course ofthe September 18, 2012, and all arrangements priorto, during, and after the flight. This includes, but is not limited to, any discussions about the nature ofthe flight, any arrangements for any payment ofany sort to you or the pilots, the time and route ofthe flight, and how the route ofthe flight was determined. 6. Describe in detail your relationship and involvement with Justin Lollar and Shawn Flowers during the second halfof2012.

### 7. Ifyou assertthat 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 thatthe statementis in error, describe what you believe to be the actual situation, and describe why Mr. Long made the enoneous statement. 8. Ifyou 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 yourbasis for believingthatthe statement is in error, describe what you believeto be the actual situation, and describe why Mr. Lollar made the enoneous statement. 9. Ifyou 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. I0. Ifyou assert any inaccuracy or incompleteness in any ofthe 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 thatthe record is inaccurate or incomplete, and what the record should have stated. II. Identify eachperson youmay call as a witness at hearing inthis matter, identify the subject oftheir testimony, and summarize the substance oftheir expectedtestimony. You do not need to repeat information already contained in your initial disclosures, bntyoumust expand on those answers to the extent necessary to answer this interrogatory. 12. Identify each person you may call as an expert witness inthis matter, identify the subject oftheir testimony, summarize the substance oftheir expected testimony, and describe in detail your basis for believingthat 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 howthat document supports your position in this matter. 15. Ifyou deny any request for admission, state with specificity the basis for that denial. 

### Requests for Production With respect to each ofthe request for production below, you need notproduce an additional copy ofany 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. Pleaseproduce each and every documentreferred to in your initial disclosures. 2. Pleaseproduce any documentreferenced in your interrogatory responses. 3. 

### Pleaseproduce any document you mayuse as evidence inthis matter. 4. Pleaseproduce any document used, relied upon, 

### or referred to in answering the interrogatories or requests to admit. 5. Pleaseproduce all documents relating to N525LP during September2012, including but not limited to any insurance agreements in effect atthe 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 ofthe aircraft. 6. Copies ofall correspondence (letters, e-mails, or otherwise) to or from Birmingham Flight Center, StevenPickett, and/or Sandi Pickett concerning this case orthe operation of N525LP in September 2012. Request to Admit 1. Admitthat (regardless ofyour intent) the September 18,2012 flight in N525LP were not demonstration flights. 2. Admitthat Dr. Long was charged amounts beyond those permitted by 14 C.F.R. 

### § 91.501(d). ' 3. Admit that it was the intent ofBirmingham Flight Center andthepilots 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. Admitthat you operatedN525LP on September 18,2012. )/"'\ 

### Submittedthis

# 7 day ofJuly, 2015.

Attorney Office ofthe 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) 356-7042 

# !tL.Pnm a ) ,L).h,M

## OJJ. A



### DONNASTAN~j Legal Assistant Office ofthe Regional Counsel



## ,;uL DatedU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS, WASHINGTON, DC MICHAEL P. HUERTA, Administrator Federal Aviation Administration Complainant v. ) ) ) ) ) ) BIRMINGHAM FLIGHT CENTER, INC. ) Respondent. ) ) DocketNo. FAA-201 4-0867 Judge J.E. Sullivan FAA CaseNo, 20 12S0090053

RESPONDENT'S ANSWERS TO COMPLAINANT'S REQUESTS TOADMIT Respondent, Birmingham Flight Center, by its attorneys, Barnett & Borth, LLC. hereby answers the Administrator's Requests to Admit as follows: REQUEST TO ADMIT: I. Admitthat (regardless ofyour intent) the September 18,2012flight in N5254LP were not demonstration flights. ANSWER: Denied. REQUEST TO ADMIT: 2. AdmitthatDr. Long was charged amounts beyond those permitted by 14 C.F.R. § 91.50l(d). ANSWER: Denied.

REQUEST TO ADMIT: 3. Admitthat it was the intent ofBirmingham Flight Centerand 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



# ~ (3REQUEST TO ADMIT: 4. Admitthatyou 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. (847) 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 ofHearings, M-20 U.S. Depatiment ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 Servicevia facsimile:202-366-7536 Christopher Stevenson Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 Columbia Avenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Servicevia 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'agcU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS, WASHINGTON, DC MICHAEL P. HUERTA, Administrator ) Federal Aviation Administration ) ) Complainant ) v. ) ) BIRMINGHAM FLIGHT CENTER, INC. ) ) Respondent. ) DocketNo. 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 FORPRODUCTION Respondent, Birmingham Flight Center, by its attorneys, Barnett & B01ih, LLC. hereby answers the Administrator's "Initial" Set ofInterrogatories and Requests for Production as follows: 1. For each person listed in your initial disclosures, describe in detail that person's knowledge ofand involvement withthis matter, including not limited to what maintenance that personperformed, what knowledge ofthe situation thatperson has and any communications thatperson had with others aboutthe situation. Answer: See Respondent's Answersto Interrogatories 1and 2 ofthe Administrator's first setof Interrogatories filed on August I, 2015. 2. Ifyou assettthatthe inspector's statements in this matter (inclusive ofrecords 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 believingthatthe statementis in error, and describe what you believe to be the actual situation. Answer: This Interrogatory is overly broad and vague and would require anarrative response better suited to deposition and/or hearing testimony ofthe witnesses in this case. The requested answerwould require a narrative response requiring complete factual detail and a line by line review ofall documents that are referenced. To the extentthat this question seeks to narrowthis Interrogatory is unduly burdensome and overbroad and would more appropriately be addressed by way ofdeposition or hearingtestimony. Respondent further objectto this Interrogatory to the extentthat they are asked to state a legal opinion



### 1 1

### P

.., "c '- !::; 

### GOVERNMENT EXHIBIT 

# c.:on "falsehoods", errors, etc. In addition, the Rules ofCivil Procedure do not require the Respondent to explain and disclose whatthe Respondent intends to show by way ofcross examination ofthe FAA's inspectors and witnesses which places this intetTogatory in the categoryofrequestingthe mental impressions and workproduct ofthe Respondent's trial counsel which is not allowed and is objectionable. Respondent fmther objects to this Interrogatoryto the extent it (i) Requests that Respondentprovide a lengthy narrativeresponse to an impermissibly broad and compound question; (ii) Requests the Respondentto provide detailed legal analysis ofsuch information. An undettaking ofthis nature is not required bythe Federal Rules ofCivil Procedure and is designed to burden and harass Respondent and to cause itto 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 statewith specificity the basis (whether factual and/or legal) for that denial. Answer: This request is overlybroad and unduly burdensome because it attempts to require Respondentto provide a narrative account ofeach potential witness' anticipated testimony and to develop a narrative account ofeach and everypotential defense that Respondent may assert in this action. "Each interrogatory should consist ofabrief, simple, direct, and unambiguous question, dealing with one point only. The question should be objective and non-argumentative. They should not seeknarrative answers or attemptto argue, cross-examine, or impeach." Hiltv. SFC. Inc., 1 70 F.R.D. 182, 186-187 (D.Kan. 1997). In addition, the denials ofeach ofthe Administrator's complaint allegations stand ontheir own and are self-explanatory. The Respondent has no burden ofproofin this case. See also Answer to Interrogatory number 6 ofthe Administrator's first set ofInterrogatories tiled on August 1, 2015. 4. Ifyou assertthatthe penaltyproposed in this case is inappropriate even ifthe 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 byvittue ofthe fact thatthe FAA cannotprove its allegations ofviolation ofthe cited regulations since the in light ofthe fact thatthe 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 outthe factthatthe subjectflight was a demonstration flight therebyrendering the allegations ofthe Administrator's compliant moot.

211' 'I",, ' c· \.5. Describe in detail the circumstances and course ofthe September 18,2012, and all arrangements priorto, during, and after the flight. This includes, but is not limited to, any discussions aboutthe nature ofthe flight, any arrangements for any payment ofany smito you orthe pilots, the time and route ofthe flight, and howthe route ofthe flight was determined. Answer: This request is overly broad, compound and unduly burdensome because it attempts to require Respondent to provide a narrative account ofeach potential witness' anticipated testimony and to develop a narrative account ofeach and every potential defense that Respondent may assert in this action. "Each interrogatory should consist ofabrief, 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 attemptto argue, cross-examine, orimpeach." 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 ofthe FAA's investigator's and witnesses and the documents contained in the FAA'sEIRandthe documents previously disclosed bythe Respondent. 6. Describe in detail your relationship and involvement with Justin Lollar and Shawn Flowers duringthe second halfof2012. Answer: See the documents contained in the FAA EIR and Respondent's Answers to Interrogatories I and 2 ofthe Administrator's first set ofInterrogatories filed on August I, 2015. 7. Ifyou assetithat the October 3, 2012 and/or October 12, 2012 statements byAlan Long contain any inaccuracies, falsehoods, mischaracterizations, or othererrors, please specifically identify such errors, describe in detail your basis for believingthat the statement is in error, describe what you believe to be the actual situation, and describe why Mr. Longmadethe erroneous statement. Answer: This Interrogatory is overly broad, compound and vague and would require a narrative response better suited to deposition and/or hearingtestimony ofthewitnesses in this case. The requested answer would require a narrative response requiring complete factual detail, and to the extentthatthis question seeks to narrowthis lntenogatory is unduly burdensome and overbroad and would more appropriately be addressed byway of deposition. Respondentfurther objectto this Interrogatoryto the extentthatthey are asked to state a legal opinion on "falsehoods", errors, and the general credibility ofDr. Long withoutthe benefit ofhis sworn testimony or cross examination. In addition, the Rules ofCivil Procedure do not require the Respondentto explain and disclose whatthe Respondent intends to show by way ofcross examination ofAlan Long which places this interrogatory in the category ofrequesting the mental impressions, strategic impressions and tactics and attorney work product ofthe Respondent's trial counsel which is not

311' n g eallowed and is objectionable. See also the contemporaneous e-mail transmissions to and from Dr. Long contained in the FAA's ElR and those previouslydisclosed by Respondent. 8. Ifyou assertthatthe 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 yourbasis for believing that the statement is in error, describe what you believeto 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/orhearing testimony ofMr. Lollar and Mr. Rushton. The requested answer would require a narrative response requiring complete factual detail, and to the extentthatthis question seeks to narrowthis Interrogatory is unduly burdensome and overbroad and would more appropriately be addressed by way of deposition. Respondent fwther objectto this Interrogatory to the extentthatthey are asked to state a legal opinion on "falsehoods", errors, etc. Without the benefit ofthe testimony ofMr. Rushton, an assessment concerning the credibility ofhis investigation cannot be surmised. In addition, no such e-mails have been disclosed by the Administrator nor are they contained as items ofproofin the FAAEIR. The Rules of Civil Procedure do notrequire the Respondentto explain and disclose whatthe Respondent intends to show by way ofcross examination ofAlan Long which places this inten·ogatory in the category ofrequestingthe 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. Ifyou assert thatthe undated letters from Shawn Flowers to Yancey Rushton (stamped received by the AL/NW FLORJDA FSD0-09 on October 15,2012 and on October24, 20I2) contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail your basis for believing thatthe 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 hearingtestimony ofMr. Flowers. The requested answer would require a narrative response requiring complete factual detail, andto the extentthat this question seeks to narrow this Interrogatory is unduly burdensome and overbroad and would more appropriately be addressed by way of deposition. Respondent further objeCtto this Interrogatory to the extentthatthey are asked to state a legal opinion on "falsehoods", errors, etc. The Rules ofCivil Procedure do not require the Respondentto explain and disclose what the Respondent intends to showby way ofdirect or cross examination of Mr. Flowers Long whichplaces this interrogatory in the category ofrequestingthe mental impressions and workproduct of



### 4 

## II' a g cthe 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 appearto be accurate while the lastparagraph appears to be a lay assessment ofunknown FAR's thatwould require a legal analysis and mental impressions to decipher and commentupon rendering this question which invades attorney workproduct. See also the contemporaneous e-mail transmissions to and from Dr. Long contained in the FAA's EIR and those previously disclosed byRespondent. 10. Ifyou assert any inaccuracy or incompleteness in any ofthe maintenance records related to this case and/or included in the EIR, please identify with specificity any such inaccuracy or incompleteness, your basis for believingthatthe recordjs inaccurate or incomplete, and what the record should have stated. Answer: None ofthe allegations ofthe Administrator's compliant concernthe "maintenance records" ofanything norhave any such records been produced bythe Administrator or contained in the FAA's EIR. As such, Respondent has no way to answerthe interrogatory and questions the relevance ofthe interrogatoryto any aspectofthis matter. 11. Identify each person you may call as a witness at hearing in this matter, identify the subject oftheir testimony, and summarize the substance oftheir expectedtestimony. You do notneed to repeat information already contained in your initial disclosures, but you must expand on those answers to the extentnecessary to answerthis interrogatory. Answer: See Respondent's Answers to Interrogatories I and 2 ofthe Administrator's first set of Interrogatories filed on August I, 2015. 12. Identify each person you may can as an expert witness inthis matter, identifythe subject oftheir testimony, summarize the substance oftheirexpected testimony, and describe in detail your basis for believingthatthe witness is an expert. Answer: None. 13. For each interrogatory, request for production and requestto admit, identify the individuals aiding in respondingto thatrequest. Answer: Steven Pickett14. 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 extentthatthis question seeks to narrowthis Interrogatory is unduly burdensome and overbroad In addition, the Rules ofCivil Procedure do not require the Respondentto explain and disclose whatthe Respondent intends to show by way ofthe voluminous documents that make up this case. This intetTogatory is in the category ofrequestingthe mental impressions and workproduct ofthe Respondent's trial counsel which is not allowed and is objectionable. 15. Ifyou deny any request for admission, state with specificity the basis forthat denial. Answer: REQUEST TO ADMIT: I. Admitthat (regardless ofyour intent) the September 18,2012flight in N5254LP were not demonstration flights. ANSWER: Denied on the basis thatthe intention and purpose ofBirminghamFlight Center, its principals, employees and agents thatthe flightwas a flight taken as a demonstration flight onthe authority ofthe owner and broker ofthe aircraft. REQUEST TO ADMIT: 2. Admitthat Dr. Long was charged amounts beyond thosepennitted by 14 C.F.R. § 91.501(d). ANSWER: Denied on the basis that § 91.50I (b) provides that operations thatmay be conducted underthe 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 ofan airplane to prospective customers when no charge is made except for those specified in paragraph (d) ofthis section. §91.50l (d) thenprovides thatthe following may be charged, as expenses ofa specific flight, for transpottation as authorized by paragraphs (b) (3) and (7) and (c)(l) ofthis section: (1) Fuel, oil, lubricants, and otheradditives. (2) Travel expenses ofthe crew, including food, lodging, and ground transportation. (3) Hangar and tie-down costs away from the aircraft's base ofoperation. (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) Flightplanning and weather contract services. (1 0) An additional charge equal to I00 percent ofthe expenses listed in paragraph (d)(l) ofthis section. No inappropriate charges were requested nor incurred ofor by Dr. Long and no documentation to the contrary is contained in the FAA's EIR nor has any such documentationthat any inappropriate charges were requested ofor by Dr. Long been produced by the Administrator. REQUEST TO ADMIT: 3. Admitthat it was the intent ofBirmingham 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 answerto Request to admit I and 2. REQUEST TO ADMIT: 4. Admitthat you operated N525LP on September 18, 2012. ANSWER: Denied on the basis thatthe term "operated" is not defined andRespondent does notwish to have an inappropriate definition of"operated"tobe 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 otherthat 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 ofRequests 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 ofRequests 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 

## II',, 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 ofRequests 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 atthe hearing ofthis matter will be produced with appropriate exhibitreference on orbeforethe September 18, 2015 date for disclosures as setforth in the Court's Pre-Trial Order**at~** 10. 4. Please produce any document used relied upon, orreferred to in answeringthe interrogatories or requests to admit. Response: Respondentutilized all documents set forth in Respondent's Responses to the Administrator's first set ofRequests for Production ofDocuments 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 relatedto N525LP during September 2012 including but not limited to any insurance agreements in effectat the time, any leases in effect at the time, aircraft, engine and maintenance logbooks, maintenance, flight records and financial records relatingto the maintenance, operation or lease ofthe aircraft. Response: Respondent was notthe owner ofthe subject aircraft and is notin possession ofany records or documents responsive to this request. 6. Copies ofall correspondence (letters, e-mails or otherwise) to orfrom Birmingham Flight Center, Steven Pickett, and/or Sandi Pickett concerning this case or the operation ofN525LP in September2012. 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 ofthis matter.

SIP()geRespectfully submitted, BARNETT & BORTH, LLC Dated: August21, 2015



# c::~~~~~i~;:d > Paul R, Bmth Counsel for Respondent, BirminghamFlight Center, Inc, Barnett & Borth, LLC 800Waukegan Road Suite 200 Glenview, IL 60025 TeL (847) 724-5520 Fax (815) 356-7042 prb@barnettlegal,comCERTIFICATE OF SERVICE Ihereby 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 ofthe Regional Counsel, AS0-7 Southern Region 1701 Columbia Avenue College Park, GA 30337 

### TEL: 404-305-5200 FAX: 404-305-5223 Servicevia 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 ofTranspO!tation Federal Aviation Administration

VIA E-MAIL ONLY Paul R. Borth Bamctt & Borth, LLC 800 Waukegan Road, Suite 200 Glenview, !L 60025 facsimile: (8J5) 356-7042 email: prb({j)barncttlegat.com Office ofthe 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, ifso, when you anticipate doing so. Given that these responses were two weeks late and that we are now outside ofthe 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 ofbusiness 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 detaiI 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" ofthe !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 

# QInterrogatories #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 ofthese 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 ofthe 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 ofdiscovery 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 ofwhat the facts are). Respondent must answerthese interrogatories. Interrogatory #4: This request sought Respondent's arguments, ifany, for asserting that the penalty was inappropriate "even ifthe FAA proves the allegations in the Complaint." Your answer to this question exclusively consisted ofdenying that the allegations in the Complaint were true. Unless Respondent will agree to stipulate that, ifthe violations are proven. the penalty is appropriate, Respondent must answerthis interrogatory as to the alleged defects in the sanction selected. Interrogatory #5: This interrogatory sough a detailed description ofthe circumstances ofthe 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 ofeach witness's complete testimony. Your objection without merit. The discovery request does not call for such aresponse- it calls for a description ofevents, not a description oftestimony. lt is entirely appropri<Jte for an interrogatory to seek adescrip-tion ofevents at issue in a case. fn additionto 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 ofeach ofthe accounts ofevents contained in those documents (for example. Dr. Long asserts the notion ofa 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 ShawnFlowers during the ]alter halfof2012. You did not objectto 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 interrogatoryresponses 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 ofa particular document, ifthat document contained information that fully and completely answered the question. But there was no such direction provided, the undersigned is unaware ofsuch a document, and ifthere is such a document Respondent must still go on the record as formally adopting the contents ofthat 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 ofthese 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 ofwhether 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" ofthe !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 thatthe 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 ofthe word operate is contained in 14 C.F.R. § 1.1. As to both ofthese 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 ofa Motion to Deem Admitted. As noted above, please let me know by close ofbusiness tomorrow, August 28,2015, whether you intend to correct these deficiencies, and ifso, your anticipated time fi,ame for doing so, Sincerely,

CHRISTOPHER R. STEVENSON Attorney Ofiice ofthe ChiefCounsel

N Enforcement Division, Southern Team800 Waukegan Road, Suite 200 • Glenview, Illinois 60025 847-809-9520 September 29,2015 Christopher Stevenson Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 170I ColumbiaAvenue College Park, GA 30337 Via E-mail: Chris.Stevcnson({vfaa.gov Re: ln Re Birmingham Flight CenterDiscovery Mr. Stevenson: prb@barnettlegal.com

I have had the opportunityto 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 atthis time." In addition, you object claimingprivilege in response to Respondent's expe1i requests for production numbers 2, 3, 4 and Respondent's request for productionnumbers 5, 6, 7, 10, 12, 24, and 25. Areview ofthe documents disclosed by Administrator demonstrate that Mr. Rushton and Mr. Hargett were both involved in the investigation ofthis case on behalfofthe FAA and both wrote reports concerning their investigation. lt is ourposition that both Mr. Rushton and Mr. Hargettare experts in the eyes ofthe Federal Rules subjectto rule 26 and, accordingly, your objections and claims ofprivilege respecting response requests for expert discovery are unfounded. You have identified Mr. Rushton as an individual who will provide testimony at the hearing buthave merely disclosed that "Mr. Rushton will provide testimony respecting all FAA allegations contained in the administrator's complaintfor which he has personal knowledge". Your answerto Respondent's inten·ogatory number 7 states thatthe FAA anticipates callingthe three FAA aviation safety inspectors who were involved in the investigation as well. The allegations ofthe 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 afanner owner ofa chmier service (Rushton Air). Federal Rule ofCivil Procedure Rule 26 (2) Disclosure ofExpetiTestimony dictatesthat: (A) In General. In addition to the disclosures required by Rule 26(a)(l), apatiy must disclose to the otherpatiies the identity of any witness it may use at trial to present evidence under Federal Rule ofEvidence 702, 703, or 705. GOVERNMENT 

### EXHIBIT



## ~(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the couti, this disclosure must be accompanied by awritten report-prepared and signed by the witness-ifthewitness is one retained or speciallyemployed to provideexperttestimony in the case oronewhose duties as the party's employee regularly involve giving experttestimony. The report must contain: (i) a complete statement ofall opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered bythe witness in forming them; (iii) any exhibits that will be used to summarize or suppotithem; (iv) the witness's qualifications, including a list ofall publications authored in the previous I0 years; (v) a list ofall other cases in which, during the previous 4 years, the witness testified as an expert attrial orbydeposition; and (vi) a statement ofthe compensationto be paid for the study and testimony in the case. (C) Witnesses Who Do NotProvide a Written Report. Unless otherwise stipulated or ordered by the court, ifthe witness is not required to provide awritten report, this disclosure must state: (i) the subjectmatter on which the witness is expected to present evidence under Federal Rule ofEvidence 702, 703, or 705; and (ii) a summary ofthe facts and opinions to whichthe witness is expected to testify. (Emphasis supplied). Both Mr. Yancey and Mr. Hargettmeetthe criteria of"onewhose duties as theparty's employee regularly involve giving experttestimony". They are both employees ofthe FAA and theirpositions with the FAA likely involve regularlyproviding experttestimony in cases such as the presentone. Accordinglythe Administratorhas failed to comply with Rule 26 (2)(B) in all respects and notwithstandingRule 26(2), Respondent would be severely prejudiced by being forced to cross examine an expertwhose opinions have not been previously disclosed. We would appreciate it ifyou would reconsider your objections and purported privileges and provide us with full disclosure ofthe opinions and documents requested in respondent's discoveryrequests. In addition to your purp01ted privileges have not been accompanied by aprivilege log. Since 1993, FRCP 26(b)(5) has included the following language: "When apmty withholds information othetwise discoverable by claimingthatthe information is privileged or subjectto protection as trial preparation material, the patty must: i) Expressly make the claim; and ii) Describe the nature ofthe documents, communications, ortangiblethings not produced or disclosed

-- and do so in amannerthat, without revealing information itselfprivileged or protected, will enable other patties to assess the claim. The language ofRule 26(b)(5) is "commonly satisfied by filing aprivilege log." Walkv. Green, No. C06-5025 BZ, 2007 WL 3203050, at *1-2 (N.D. Cal. 2007). We would appreciate it ifat your earliest convenience, you would file a privilege log that meets the above criteria so that an in camera inspection may be conducted. With respectto your answers to Respondent's non-expert interrogatories, interrogatory number 7requests abriefsummary ofthe facts and opinions ofwhich each identifiedwitness will testify. Absent from your answer is any indication ofthe facts and opinions that will be expressed by the three FAA aviation safety inspectors. At your earliest convenience please provide amore thorough answerto this interrogatory.

2 II' II g t'Interrogatory number 8asks the Administratorto provide a list ofthe documents that will be used to supportthe Administrators claim that respondent violated aviation regulations. While the Respondent is in possession ofthe EIR, he is not cognizant ofwhich documents contained in the EIR will be used by the Administrator to supporthis case. While it is true that the Respondent "can read the documents for itself'the Respondent is uncertain ofwhich documents the Administrator deems supportive ofhis case. Please provide amore thorough answer to this interrogatory. Based on the Administrator's answerto interrogatory number 10 and 11 and the Administrator's response to respondent's request for production numbers 16, the Respondent assumes thatthe Administrator has no affirmative responses to these requests and is wavingthe potential use ofresponsive documents related to these requests. Please advise ifthe Respondent is mistaken in this regard. With respectto the Respondent's responses to the Administrator's discovery, Respondent stands bythe answers and responses previously served upon the Administrator and disagrees with the arguments to the contrary setforth in your undated letter on this subject.

PRB/tbm

3 

## I[) 'l '

..' (' [ '- 1-

.. Sincerely, BARNETT & BORTH, LLC

# c~:~_2z:;.:::;F" Paul Borth, Attorney atLaw