1

OFFICE OF HEARINGS 1

U.S. DEPARTMENT OF TRANSPORTATION 2

3

In the Matter of: ) 4

PACIFIC INTERNATIONAL ) No. FAA

- 2014

- 1116 5

SKYDIVING ) 6

------------------------------ ) 7

8

TELEPHONIC PRETRIAL CONFERENCE 9

10

Monday, November 28, 2016 11

1:00 p.m. 12

The Honorable Douglas M. Rawald 13

Administrative Law Judge 14

15

ON BEHALF OF THE FAA: 16

DON BOBERTZ, ESQ. 17

18

ON BEHALF OF THE RESPONDENT: 19

ROBERT FELDMAN, ESQ. 20

21

22

23

Reported telephonically by: 24

Karen Guy, CER 252

P R O C E E D I N G S 1

(1:00 p.m.) 2

JUDGE RAWALD: Let’s go ahead and go on the 3

record. 4

This is a prehearing conference in the case of 5

P acific International Skydiving Center, docket number 6

FAA

- 2014

- 1116. Today’s date is November 28, 2016. It’s 7

1:05 p.m. Eastern time. 8

This is Administrative Law Judge Doug Rawald. 9

I’m joined on the call by the Government Counsel, Don 10

Bobertz, and Respondent’s Counsel, Robert Feldman, as 11

well as in my office with me is an Attorney Advisor, Ms. 12

Jackie Booker. 13

So we’re here to talk today, because we have a 14

hearing on the schedule for two weeks from today. The 15

most important piece that is on the docket today is to 16

discuss a motion to quash. So if we could

-- I see that 17

I’ve received documents from both parties. 18

Mr. Feldman, the major issue I’m seeing here is 19

there’s not a lot of flexibility in t he rule, as in there 20

seems to be no flexibility at all. Are you aware of any 21

case law that allows me to find exceptions to the rule 22

that Mr. Bobertz has cited for quashing a subpoena of the 23

Government’s employee? 24

MR. FELDMAN: Your Honor, in reading the 253

statute, I don’t see any flexibility. And, you know, 1

frankly I think it’s to the administrator’s detriment to 2

not have him testify. So I’m not going to pursue it. 3

And, you know, if Your Honor, obviously is going to grant 4

the motion because it is not discretionary. It’s 5

discretionary with the administrator and there

-- I 6

couldn’t find any situations where there’s any argument 7

that the Respondent can take advantage of the testimony 8

tha t might be offered. So

-- 9

JUDGE RAWALD: Right. I guess, so here’s my 10

question to you, Mr. Bobertz

-- I mean, Mr. Feldman. 11

Hearing that, are you withdrawing your motion or are you 12

simply saying you’re accepting the fact that I’m going to 13

rule against you and then you may try to appeal the issue 14

down the road? 15

MR. FELDMAN: I’ll accept Your Honor’s ruling 16

on it and, you know, I mean, it might be interesting case 17

law in the future, but at this point, rather than 18

wit hdraw it, I’ll accept Your Honor’s ruling and then 19

we’ll see if it’s even necessary in the future to appeal 20

it. 21

JUDGE RAWALD: Okay. And then what I’ll do, 22

Mr. Feldman, is I’ll issue a written order on that, just 23

to simplify matters, in case you decide to appeal it. I 24

think it’s important to develop a record appropriately. 254

So just for both your understanding, I’ll issue 1

a written order by the end of this week. The order will 2

say that I’ve granted a motion to quash, but I’ll issue 3

that in writing, if you need it for appeal. 4

Okay. So let’s turn to the other witnesses 5

then, folks you put forward. Mr. Bobertz, your witnesses 6

look very simple, you have four f olks you’re calling. 7

You planning on calling all four of those people? 8

MR. BOBERTZ: I do. 9

JUDGE RAWALD: Okay. And anyone else that 10

you’re thinking about at this time? Or those are the 11

four, you’re sure about that’s wha t you’re going to do, 12

right? 13

MR. BOBERTZ: Yeah, and actually, the one 14

witness

-- I’m sorry, I have so many things up on my 15

computer, let me

-- 16

JUDGE RAWALD: I have Kyle Bartler, Ed Santa

17

Elena, Frank Hinshaw, and Paul M cCowan. 18

MR. BOBERTZ: Yes. I’m sorry. I was thinking 19

I had a different one that I was going to probably 20

withdraw. But, no, that’s

-- that is the four. 21

JUDGE RAWALD: And, Mr. Feldman, do you have 22

any objection to any of them, any of their testimony in 23

general, that you want to go over at all? Or do you

-- 24

you’re going to reserve anything for when they actually 255

testify? 1

MR. FELDMAN: Yeah, I’ll

-- Your Honor, I’ll 2

listen to their testimony and see if there’s

-- you know, 3

I

-- I have questions about their expert’s knowledge, but 4

I’ll raise that at the hearing. 5

JUDGE RAWALD: Okay. And understanding, sir, 6

that with the expertise

-- they put the bar so low to be 7

an expert, a lot of that might go to the weight of the 8

testimony I’ll give it, which is important, the weight I 9

give it, but as opposed to the admissibility of the 10

testimony. But we’ll go over that at the hearing then, 11

okay? 12

MR. FE LDMAN: Okay. 13

JUDGE RAWALD: And then turning to Mr. 14

Feldman’s witness list, I notice, Mr. Feldman, I did give 15

you a subpoena for Frank Hinshaw. It seems like it 16

probably won’t be necessary to serve that if Mr. Bobertz 17

is going to ca ll him. 18

MR. FELDMAN: Yeah, well, I assume he’s going 19

to call him for foundation, but I may

-- I may need him 20

there for

-- for my case and I don’t want him leaving, 21

without the opportunity to have him present. That’s my 22

concern. 23

If I can

-- if I can cross examine him to some 24

extent, I assume he’s there as a foundational witness 256

rather than anything else. And

-- and I have questions 1

that extend beyond that. So that’s why I’ve requested 2

the subpoena for him. 3

JUDGE RAWALD: Okay. 4

MR. FELDMAN: Even though he

-- 5

JUDGE RAWALD: What you and Mr. Bobertz need to 6

discuss then is whether you want to, for economy 7

purposes, allow the scope to be wider for cross 8

examination, so we can only call him one time, or whether 9

you’d rather have him be called back again as your 10

witness. 11

I can see it going both ways, but if the 12

parties have

-- can come to an accommodation that would 13

make it easier, i f you guys have an opinion. I mean, 14

there are reasons for strategy

- wise on both sides, you 15

can do each way. I don’t want to tell you how to try 16

your case, sir, I just want to give you the opportunity 17

to talk about whether you think it makes sense to call 18

him twice or call him once. 19

MR. FELDMAN: Don, what do you say? 20

MR. BOBERTZ: Well, generally, I would say once 21

for economy sake is

-- would be fine. And if you went 22

beyond the scope of direct and cross, I generall y 23

wouldn’t have a problem with it. 24

But part of what else I wanted to discuss, 257

maybe it’s on your list, Judge, as well, but a lot of the 1

evidence and witnesses are regarding Mr. Hinshaw’s 2

credibility, which I know is okay to some degre e. But 3

there’s a lot, a lot, about witnesses and evidence about 4

his Facebook post and issues which is

-- I can’t say it’s 5

not germane to his credibility, but I don’t

-- my concern 6

is that the trial becomes more about that than the real 7

issues. 8

So I would seek, whether it’s now or at the 9

hearing, to limit some of those witnesses and limit some 10

of that testimony in that matter so it doesn’t become a 11

separate trial. 12

MR. FELDMAN: Your Honor. 13

JUDGE RAWALD: Yes, Mr. Feldman? 14

MR. FELDMAN: Yeah. My

-- my concern is the 15

crux of the case is the video that purportedly Mr.

-- Mr. 16

Hinshaw purportedly shot and which he claims is accurate. 17

Without the video there really isn’t a case. 18

And his bias, I think it goes to the weight, 19

whether it’s credible, whether it’s reliable, whether 20

it’s probative. It’s very important that I think for the 21

-- for the Pacific Skydiving case to show this horrible 22

animosi ty that’s been

-- there’s death threats, you know, 23

and expressions that they want to put the company out of 24

business. And, you know, if Your Honor listens to the 258

videos, he can see he’s editorializing on them. 1

I think it’s important. I don’t know that I’ll 2

need all of them, but in case

-- in case one doesn’t 3

testify or isn’t able to testify

-- there’s one who made 4

the police report, there’s another one who was the victim 5

of the throat slashing gestures made by Mr. Hinshaw, and 6

they’re not cumulative. They’re not cumulative, they’re 7

separate issues dealing with his motivations and

-- and 8

reasons for presenting this video, which certainly are 9

not for safety. They’re

-- they’re aggressively to put 10

the company out of bus iness. 11

That’s important, I think, to bring out in its 12

fullest extent. 13

JUDGE RAWALD: Right. And I do hear you, Mr. 14

Feldman. 15

And, Mr. Bobertz, I’m reluctant to rule now in 16

the absence of actually hearing your case, right? So I 17

think that we need

-- the Respondent needs to hear your 18

case and decide at that point, okay, what am I responding 19

to? And so we kind of had the broad brush as to what the 20

case is and now we ’re responding to it. 21

If you would like the opportunity, Mr. Bobertz, 22

to brief your motion, essentially a motion in limine to 23

exclude this evidence, you can. I would not rule upon it 24

until after your case is closed, because I want

-- w e 259

have to see what you’re going to do. I would hate to 1

rule on it and then have you open the door and undo our 2

work, in other words. 3

And so I’ll put the ball in your court. If you 4

want to file a motion in limine briefing why you want to 5

exclude the evidence that Mr. Feldman has said, hey, I 6

want to put forward regarding Mr. Hinshaw’s credibility, 7

you can do that. And at the time of the hearing, after 8

you’ve put on your evidence, I’ll hear from Mr. Feldman 9

about why he think s he should be allowed to put that on. 10

We can do that. Or, you can just wait until after the 11

evidence is disclosed and we can do it all orally on the 12

record. 13

I’m accommodating to either instance and I’ll 14

let you think about it. And if you decide to file a 15

motion, it won’t be late, because you can raise it then. 16

I just want to give you the opportunity to know that you 17

can do that. That’s how I’d like that handled, I think. 18

MR. BOBERTZ: That sounds great. I thoug ht 19

about that as well and kind of figured off

- hand, I’ll 20

still think about it, but I figured I’d wait until the 21

hearing and do it then. 22

JUDGE RAWALD: Okay. A pending case law or 23

anything that you can gather up in the interim will 24

obviously be helpful, looking at this. This is not an 2510

area that’s really within the regulations, per se. So we 1

can look at the Federal rules for some guidance on how we 2

handle the evidence or issues. 3

But

-- and I will tell you from m y file, 4

because I do look at those credibility rules and the 5

Federal rules pretty closely, I think they’re really 6

important. And so, looking at those on both sides, Mr. 7

Bobertz and Mr. Feldman, and kind of familiarizing 8

yourself with how they pl ay into Mr. Hinshaw’s 9

credibility or testimony regarding it would be helpful 10

for our discussion, I think. Okay? 11

MR. BOBERTZ: Very good. 12

MR. FELDMAN: Okay. 13

JUDGE RAWALD: Mr. Bobertz, does that sound 14

fair to y ou? 15

MR. BOBERTZ: Yes, that’s okay with me, Your 16

Honor. 17

JUDGE RAWALD: Okay. So the other witness I 18

see that caught me, Mr. Feldman, that I wanted to ask 19

about, was you have Mr. Bobertz listed as a witness. And 20

I wante d to see

-- so what’s the situation there? 21

MR. FELDMAN: Well, Mr. Bobertz signed the 22

interrogatories. And, you know, he wasn’t a

-- he’s not 23

a fact witness in this case, so if the answers came from 24

him, rather than from a client of his, from the 2511

administrator, then I think it’s fair game to inquire 1

from him, since he answered them, what the basis of his 2

answers are. 3

JUDGE RAWALD: Okay. And, Mr. Bobertz, what 4

was your reactio n to that, to seeing yourself listed on 5

the witness list? 6

MR. BOBERTZ: Well, I was going to ask the same 7

question. It didn’t make sense to me. I understand what 8

Mr. Feldman is saying, but that’s common practice where, 9

you know, we’r e not required to certify interrogatory 10

responses, but we’re preparing them and

-- with the input 11

we get from the fact witnesses. And we sign off as them 12

being, you know, the accurate information to the best of 13

our knowledge. I don’t think that m akes me particularly 14

vulnerable as a witness in the case. 15

JUDGE RAWALD: Okay. Mr. Feldman, just so I 16

understand, let me articulate to you, my concern is, of 17

course, that if Mr. Bobertz is a witness, he may be 18

conflicted out of servi ng as the counsel on the case. 19

And so, what I want to understand from you is do you 20

truly intend to call Mr. Bobertz or is it something you 21

might do if it becomes necessary you think? 22

MR. FELDMAN: If there’s a question as to any 23

of th e interrogatory answers, I don’t know if

-- I don’t 24

know from where the information came. And I’m going to 2512

-- you know, I could ask every one of his witnesses, did 1

you say this, and they could all say no. And

-- and then 2

without Mr. Bobertz, I wo uldn’t have recourse. 3

JUDGE RAWALD: Okay. 4

MR. FELDMAN: So somebody’s going to own up to 5

the answers, I most likely wouldn’t need to call him. 6

JUDGE RAWALD: Okay. This is mostly

-- 7

somewhat of an impeachment kind of issue, something 8

that’s not contrary to

-- or, contrary to what you heard 9

or learned in discovery, it sounds like. 10

So, I guess, Mr. Bobertz, are you going to be 11

bringing other counsel with you? How do you typically 12

travel for these cases? 13

MR. BOBERTZ: No, it would be just myself. 14

JUDGE RAWALD: Okay. So unless something came 15

up and you had a conflict, then we’d have to deal with it 16

at that point. Okay. 17

W ell, Mr. Feldman, I will proceed

-- we’ll 18

proceed as we are with Mr. Bobertz being the counsel on 19

the case and you being the counsel on your side. I think 20

that’s the best way to go forward. But if something 21

happens and you do need to serve Mr. Bo bertz as a 22

witness, we’ll take that as a motion. You can’t call Mr. 23

Bobertz until you and I have talked about it out

-- you 24

know, a motion argument regarding it. I don’t want to 2513

have you call Mr. Bobertz and have everything stop. 1

So if you deem Mr. Bobertz necessary, we’ll 2

take a time out, you can explain why, and Mr. Bobertz can 3

explain why he deems it not necessary, and I’ll rule at 4

the time whether or not we’ll have Mr. Bobertz testify, 5

okay? 6

MR. FELDMAN: Tha t’s fine, Your Honor. 7

JUDGE RAWALD: Okay. Because it may, once 8

again, require the necessity of having someone else to 9

take over the case at that point, which would be 10

logistically challenging. So

-- okay. So I want to make 11

sure that we’re all prepared for that. 12

Anything else on the witness list, Mr. Feldman, 13

that you wanted to advise us to that wasn’t obvious as we 14

looked at it? 15

MR. FELDMAN: No, I

-- you know, I

-- there may 16

be some impeach ment evidence, which has not been 17

provided, but it depends on the testimony that comes out 18

in the administrator’s case in chief. That’s to any of 19

their witnesses, to their expert, to their fact 20

witnesses. But until I hear the case, I don’t know w hat 21

might be necessary there, what they’re going to testify 22

to. 23

JUDGE RAWALD: Okay. So it sounds like to me 24

that there are things that you have not provided to Mr. 2514

Bobertz in discovery that you believe come up that may 1

result in an issue that Mr. Bobertz could, of course, 2

object to and then we’ll go into an extended discussion 3

about whether or not we’ll allow that evidence. So

-- 4

MR. FELDMAN: Well, it

-- Your Honor, it’s 5

difficult to know what

-- what I might nee d for 6

impeachment or rebuttal, without hearing the case in 7

chief. I

-- you know, I could take every video off of 8

YouTube that I’ve seen and every

-- every photograph, but 9

that, I think, wastes everybody’s time, including the 10

Court’s time. And, you know, if it’s rebuttal and 11

impeachment evidence, as to a witness’ testimony, I

-- I 12

don’t think under the rules that has to be disclosed in 13

pretrial discovery. 14

JUDGE RAWALD: Right. And I’m

-- and once 15

again, I don’t know what the rule on that is going to be. 16

I understand that

-- the fact that you’re in a difficult 17

situation, because you are responding and I am 18

sympathetic, because having been on both sides of the 19

table, you know, in past case s. 20

So what I

-- but what I want to make clear is 21

if it comes up later on and Mr. Bobertz objects, I am 22

going to want to entertain discussion. And that will be 23

a time when, okay, we’ll stop calling witnesses and we’ll 24

discuss the kind of legal and factual basis for why 2515

you’re going to put forward the evidence. And I’ll make 1

a decision at that time. 2

I just kind of want

-- I want the parties to be 3

aware of the mechanics of what’s going to happen at the 4

hearing, so you can plot out how we’re going to move the 5

hearing along, okay? So

-- 6

MR. FELDMAN: Yeah, and, Your Honor, it might 7

also be demonstrative evidence at that point, rather than 8

-- than evidence. So

-- a demonstrative Exhibit, rather 9

than admissible evidence. And

-- and that might be 10

equally as effective. 11

JUDGE RAWALD: Okay. 12

MR. FELDMAN: But we’ll see how

-- how the case 13

progresses. 14

JUDGE RAWALD: Okay. Great. Then what I think 15

will p robably happen, just from a logistical point of 16

view, is that once Mr. Bobertz rests, we’ll take a time 17

out so we can discuss kind of where we are, before you 18

start presenting your case if there’s anything you want 19

to advise me of, so we can prepare for it, and then we’ll 20

go from there. I think that may be the best way to kind 21

of make sure that we’re not getting off course and that 22

we can take care of the issues that we want to take care 23

of. 24

What I don’t want to have happen is I don’t 2516

want witnesses waiting around for hours with nothing to 1

do. I don’t want to have us be delayed and not realizing 2

that at the end of the day, hey, there’s an issue we have 3

to take up now and it’s going to take a lot of time, so 4

let’s take it up now. 5

I want to be able to kind of keep this moving 6

along in a responsible way. And so, knowing this kind of 7

stuff ahead of time will help us, I think, to avoid 8

getting

-- running out of time w hen we have issues we 9

need to deal with. Understood? 10

MR. FELDMAN: Yes, Your Honor. 11

JUDGE RAWALD: Okay. And, Mr. Bobertz, you 12

understand? 13

MR. BOBERTZ: I do, Your Honor. I do have

-- I 14

don’t know if you were

-- had some other witnesses, but I 15

had a few more to discuss as well. 16

JUDGE RAWALD: Okay. Let’s discuss them now. 17

MR. BOBERTZ: So just going down the list. The 18

first one, the Wayne Karimoto, the CPA. If he’s being 19

calle d just to authenticate the 10

- 99 forms, the 20

administrator will stipulate to those. I’m just trying 21

to look for ways we could cull the witness list to people 22

that we don’t really need to

-- people who aren’t really 23

needed. 24

JUDGE RAWALD: Okay. 2517

MR. FELDMAN: If you’ll stipulate to that, he 1

was foundation for admitting the 10

- 99s. So we most 2

likely won’t need him then. You know, I’ll

-- I’ll 3

reserve the right to call

-- I’d like to reserve the 4

right to call him, but I

-- I won’t need to if we that

-- 5

if we agree that there’s a stipulation that they’re 6

admissible to show that they were issued by his 7

accounting firm. 8

JUDGE RAWALD: Okay. And, I mean, we’ll cover 9

the 10

- 99s in a moment when we discuss Exhibits, but it 10

seems like the Government is putting forward them as 11

well, so I don’t think there should be a real problem 12

with that. But, I guess, my general thought on a 13

stipulation for witnesses is the more you folk s can 14

reduce, so we can really focus on the important issue, 15

that’s helpful. From a point of view, I think from Mr. 16

Feldman, I mean, your client may be on the hook for 17

paying some expenses for these folks, but I imagine he 18

would be happier if yo u could avoid calling some, it’s 19

possible some of these folks are not the people who were 20

directly owned by the company. But that’s for you to 21

talk about with your client. I just want you to keep 22

that in mind. 23

So maybe

-- Mr. Bobert z, do you have a couple 24

other witnesses you want to stipulate to on your list? 2518

Or is that the only one you were wanting to do 1

stipulation for? 2

MR. BOBERTZ: Well, a lot of the others are

-- 3

there’s a lot being called again about Hinshaw’s 4

credibility, which, again, I understand there’s some

-- 5

that some of that makes sense. It just seems like we’re 6

going to

-- it’s awfully cumulative at some point that I 7

would not necessarily object to them

-- particular ones 8

at t he moment, but at some point it seems like it’s going 9

to get very cumulative and more than needed. There’s a 10

lot of

-- you know, there’s a police report that’s 11

already there, there’s a lot of documentation that’s 12

already there that I don’t know th at all these witnesses 13

are going to be needed. 14

JUDGE RAWALD: Mr. Bobertz, having, once again, 15

been in Mr. Feldman’s shoes, he’s got to marshal all the 16

people he can so he can make sure he has everyone kind of 17

keyed up, so you know wh o they are. He may change his 18

mind on who he’s going to call, that’s perfectly 19

allowable. 20

And I don’t

-- at this point I’m not going to 21

say okay, you can’t call any more than five witnesses 22

until we kind of see how the witnesses play out. Once a 23

witness or two has been called, maybe that’s at the time 24

you say this is getting really cumulative, Judge Rawald, 2519

and I may agree with you and we’ll go ahead and stop it 1

at that point. 2

But I can’t say anything now. I do appreciate 3

both sides bringing this issue to me, so we can make sure 4

we’re all aware of it. But I can’t do anything about it 5

now, until we see how this is going to take

-- this needs 6

to be played out further for us to actually make a 7

decision on how we’re going to go forward with that part. 8

MR. BOBERTZ: Sure. Understood. As far as 9

stipulating, there’s also Denise King or Dennis King, 10

regarding the letter to the Honolulu Police Department. 11

I mean, if it’s

-- she’ s there again just to establish a 12

foundation of her having written that letter, the 13

administrator would stipulate to the admissibility of 14

that letter. You know, so no need to bring her just to 15

establish the foundation. 16

MR. FELDMAN: Dennis King is a he. But, yeah, 17

I

-- if you’ll stipulate to admissibility of that, then I 18

probably don’t need to call him. 19

JUDGE RAWALD: Okay. 20

MR. FELDMAN: Unless another issue is raised at 21

-- at

-- in your case, Don, t hat requires it, but I don’t 22

see it at this point. 23

MR. BOBERTZ: Okay. 24

MR. FELDMAN: In other words, I want to make 2520

sure that everything we have that shows the bias of Mr. 1

Hinshaw and his motivation and

-- and his own condu ct, is 2

admissible. So I would have been remiss had I not listed 3

everybody. Just like some of the Exhibits may or may not 4

be needed. But it

-- it would be shame on me if I didn’t 5

list something and we’re not

-- this isn’t a trial by 6

surprise, i t’s

-- I don’t

-- I don’t do that and I don’t 7

think you do either. So

-- but rather than err on the 8

side of forgetting somebody, I chose to list every 9

conceivable witness that I might have to call. 10

MR. BOBERTZ: Understood. Just trying to

-- 11

MR. FELDMAN: So if you stipulate to the 10

- 99s 12

and stipulate to the letter admission, then I think that 13

would eliminate those two witnesses. 14

JUDGE RAWALD: So what I wr ote

-- my next thing 15

on my list is to discuss the actual Exhibits and run 16

through that. It may be the actual

-- because I would 17

like to pre

- admit some of those today, get them off the 18

plate, so we don’t have to worry with them when we have 19

the a ctual hearing. 20

So if we could do that, that may help you kind 21

of understand, okay, where we are with the foundational 22

witnesses. So if you don’t mind, let’s start with the 23

Exhibits then and let’s go over that. And I think what’s 24

real ly important or really noticeable is that clearly 2521

there are some things that both parties want to admit. 1

So

-- and I’ll look and say Respondent’s Exhibit No. 1 is 2

the 10

- 99s, which are identical to A

- 41. 3

MR. FELDMAN: Your Honor, may I just go back to 4

the

-- to the witness list? 5

JUDGE RAWALD: Okay. 6

MR. FELDMAN: Don, are you stipulating to the 7

admission of the police report? Because that would 8

eliminate Greg Myer, he’s the one who signed the police 9

re port. 10

MR. BOBERTZ: Sure. 11

MR. FELDMAN: Families were the ones who were 12

involved in the actual threat. 13

MR. BOBERTZ: Yes, we would admit to the 14

admissibility of the

-- or, stipulate to the 15

admissibility of the police report. 16

MR. FELDMAN: Okay. 17

JUDGE RAWALD: That takes care of

-- you said 18

who? 19

MR. FELDMAN: That takes care of Greg Myer. We 20

won’t need him. 21

JUDGE RAWALD: And Mr. Bobertz is saying you 22

took care of King as well, is that the same or is that a 23

different letter? 24

MR. FELDMAN: King is for the letter that was 2522

written to Honolulu Police Department. And the facts 1

contained in that letter that form th e basis of his 2

concerns. 3

JUDGE RAWALD: Sure. 4

MR. FELDMAN: And the FAA, I think, 5

investigated it as well. So

-- but, yeah, I’m just

-- so 6

if that’s the case, I think we can most likely eliminate 7

Greg Myer from testimon y. 8

JUDGE RAWALD: Okay. And let’s go to the 9

Exhibits, like I said, because that will help us narrow 10

down where we are, what really needs to be disputed and 11

what needs to be put on. 12

So if we could turn

-- the Respondent’s Exhibit 13

No. 1 is a 10

- 99 and it seems to be identical to what the 14

Government has offered at A

- 41, the 10

- 99. Have you both 15

had a chance to look at that at all? 16

MR. FELDMAN: It’s a

-- ours is more 17

comprehensive. I think he’s selectively taken some 10

- 18

99s and ours was the

-- was a larger file. It’s just, 19

again, I don’t know

-- you know, my

-- my goal here is to 20

show that it’s not just these people that have 10

- 99s, 21

it’s the universal pra ctice in Pacific Skydiving, if not 22

the entire skydiving industry, that these people are 23

independent contractors and the reasons therefore. So

-- 24

MR. BOBERTZ: I don’t know that

-- if I did 2523

selectively, I

-- Mr. Feldman, I don’t know if you have 1

more 10

- 99s than you gave to me in discovery, but I

-- my 2

intention was to include my Exhibit with all the 10

- 99s 3

is all the 10

- 99s. There’s another Exhibit, I think, 4

where I kind of did a cumulative or a

-- for a handful, 5

maybe 10 or a dozen of your Pacific Skydiving folks, 6

they’re independent contractors. I put together their 7

waiver, their different independent contracts, and I 8

think I did the 10

- 99 on back of those. 9

So if you’re thinking

-- if you’re looking at 10

t hat, that might have indicated it was

-- you know, my 11

10

- 99 inclusion was a little selective, but there’s 12

another Exhibit that includes all the 10

- 99s. At least 13

my intention was to include all the 10

- 99s that I got 14

from you. 15

MR. FELD MAN: Then they’re the same. I had, I 16

think, 59 composites, most of which included the 17

contract, the 10

- 99, and a waiver. You know, some of 18

them, there was a problem, he couldn’t find the paperwork 19

or the guy left and when he left, the paperwork was 20

destroyed or

-- or lost, I don’t know which. 21

But, yeah, I

-- as long as there’s no issue on 22

any of the 10

- 99s, they are what they are. So I don’t 23

think

-- 24

JUDGE RAWALD: There is a pagination difference 2524

in t he file, so A

- 41 is 33 pages and Respondent No. 1, 1

which is a composite of all the 10

- 99s from Respondent, 2

is 59 pages. So there may be some difference. We’ll 3

have to go back and reconcile that. I don’t intend on 4

admitting the same thing multipl e times, if we can avoid 5

it and I like to pre

- admit things. 6

It sounds like both sides are willing to admit 7

the 10

- 99s without any issue, though, on both sides, 8

that’s correct, right? Both sides are willing to let all 9

10

- 99s come into evidence. Am I hearing you correctly, 10

Mr. Bobertz? 11

MR. BOBERTZ: Yes. 12

JUDGE RAWALD: And Mr. Feldman? 13

MR. FELDMAN: That’s correct. That’s correct, 14

Your Honor. 15

JUDGE RAWALD: But there won’t be any objection 16

to that, we’ll have to figure that out later. 17

Now, Respondent No. 2 is FAA orders that are 18

354 pages long. I know Mr. Bobertz offered A

- 1, an 19

Exhibit that was the FAA orders, but much shorter. So 20

have you had a chance to l ook at those, too, Mr. Bobertz, 21

and see what the difference is there? 22

MR. BOBERTZ: I’m sorry, I’m looking at a 23

different list. I’m looking at the

-- 24

JUDGE RAWALD: So here’s the problem. When Mr. 2525

Feldman gave us the list, those numbers don’t correspond 1

to the actual numbers on the documents. 2

MR. BOBERTZ: Okay. 3

JUDGE RAWALD: So if you open a document, they 4

have a numbering scheme. Mr. Feldman has R

- 1 through 24. 5

That does not mirror what his evidence list is. Am I 6

correct in saying that, Mr. Feldman? 7

MR. FELDMAN: Say

-- say that again, Your 8

Honor? 9

JUDGE RAWALD: You submitted an evidence list 10

that goes 1 through 22. But you mar ked your Exhibits 11

differently than how they’re numbered here on this list. 12

MR. FELDMAN: Yeah. Okay, yeah. All right. 13

Yeah, Your Honor, a bit of background, I was passing a 14

kidney stone when this stuff was being prepared and as 15

Mr. B obertz knows, I was not in very good shape. But, 16

yeah, I

-- the list does not correspond

-- it’s numbered 17

sequentially, but it doesn’t correspond to the numbers 18

that are on the Exhibit list. If Your Honor would like 19

me to compile a list of the nu mbers that are typed on 20

each Exhibit, as

-- rather than the list of Exhibits, 21

which isn’t labeled the same as the individual Exhibits, 22

I could do that. 23

JUDGE RAWALD: I mean, that would be easier for 24

the Court to follow. What I had m y administrative 2526

assistant do was develop a list from your Exhibits. So I 1

have R No. 1 through 28, and I know what they are and I 2

know that they’re not the same thing as

-- or, they’re 3

not in the same order or in the same way that they’re 4

described in the evidence list. 5

So Mr. Bobertz will need to go back and to 6

reconcile those and it will be easier if you could supply 7

us a list to go do that, I think. So it will make the 8

discussion a little bit easier. 9

S o ultimately, I guess what I’m getting to, Mr. 10

Bobertz, is there is an FAA

-- there are FAA orders that 11

are marked by Mr. Feldman as R No. 2. On the list of 12

what he has here on his client’s evidence list, it would 13

be No. 19. And they are 354 page s long, the Exhibit that 14

they

-- that Mr. Feldman provided us. Your No. A

- 1, 15

which is the order is only 84 pages. So there needs to 16

be at least some reconciling of which one is the better 17

one and why we want to have that one. I mean, both of 18

y ou both agree that the orders should be admitted, just 19

which one it is. 20

MR. BOBERTZ: Yeah, it’s really subject to, I 21

think, my

-- my 54 pages, or whatever it was, is an 22

excerpt of what I felt, like, are the relevant parts. 23

But I don ’t have an issue if we put in the whole order. 24

It’s really

-- 2527

MR. FELDMAN: We’re talking 2150.3B. 1

MR. BOBERTZ: Right. 2

MR. FELDMAN: And it’s like a phone book and a 3

lot of it isn’t applicable. But, you know, I

-- I want 4

to reserve the right to use both the investigatory parts 5

of that and the sanction parts, if necessary. 6

JUDGE RAWALD: Mm

- hmm. 7

MR. FELDMAN: So it’s bigger than just the 8

sanction guidance table. 9

MR. BOBERTZ: Would it benefit to have some of 10

the Exhibits submitted only on electronic format, some of 11

the large ones, then we don’t have to make a

-- you don’t 12

have to have a written copy of all this? 13

MR. FELDMAN: That w ould make

-- 14

JUDGE RAWALD: I’d prefer that. That’s why I 15

asked you folks to provide a CD. I like the electronic 16

format and we have that now, so it’s not

-- that’s not 17

the issue so much as I don’t want

-- I mean, when I go 18

back, I h ave to make sure I review every piece of 19

evidence, correct? And I don’t want to have to read a 20

354 page order, if only 84 pages are relevant. And so I 21

want to make sure that we have

-- get that straight in 22

the record and not what’s not necessary. 23

And so I know that you both want the FAA order 24

in, but you want different lengths of it and I want to 2528

have you both each reconcile what you want and what you 1

don’t want in. So after the call, in the next two weeks, 2

while we’re getti ng ready for the hearing, if you both 3

would kind of figure out, okay, which

-- which parts of 4

2150.3B do we really need in evidence and which parts do 5

we not. And then come to an accord, that would be 6

helpful. 7

MR. BOBERTZ: Okay. 8

MR. FELDMAN: All right. Yeah, I think we can 9

do that. 10

JUDGE RAWALD: Okay. And then I see here from 11

-- so R No. 4 is the FAA advisory circular regarding 12

sport parachuting, which is the same thing as Mr. 13

Bobertz’ A

- 65. So I think there’s no reason for you to 14

admit that as a Respondent Exhibit when it’s identical to 15

what Mr. Bobertz is offering there, Mr. Feldman. 16

MR. FELDMAN: Yeah, the only

-- I would agree 17

if it’s the same

-- if it ’s

-- is it the same one, the 2

- 18

Echo, 105

- 2E? 19

JUDGE RAWALD: Yes, and it’s the exact same 20

day. I looked at them, they are identical on the length 21

and everything. 22

MR. FELDMAN: Yeah, as long as he introduces 23

it. You kno w, if I don’t list something and he doesn’t 24

introduce it, then I’m out of luck. So

-- 2529

JUDGE RAWALD: Right. No, I understand. And 1

Mr.

-- what I think Mr. Bobertz wants it to be, is this 2

is the list that works for both. These are the ones that 3

we’re going to offer. And so I think having seen Mr. 4

Bobertz’ list, what you could possibly do is go back now 5

and take some things off your list, to make it a little 6

bit simpler. And come up with your total list with 7

numbering would b e the most helpful thing at this point. 8

MR. FELDMAN: Understood. 9

JUDGE RAWALD: One thing, also No. R

- 5 from Mr. 10

Feldman is the waiver document, which I think we 11

discussed earlier. Mr. Bobertz has selected out

-- took 12

out s ome. Yours is 444 pages. It looks like Mr. Bobertz 13

has A

- 42 through A

- 51 that are the same

-- part of the 14

same thing, if not the entire same thing. So it seems 15

like both sides aren’t going to object to this, either 16

side. But Mr. Feldman is offering more of what you’re 17

offering, Mr. Bobertz. So you may want to reconcile that 18

together, as well. 19

MR. BOBERTZ: Right. I don’t

-- my purpose is 20

just to show that there’s

-- I don’t think there’s any 21

difference between them, but these are the

-- some of the 22

independent contractors, quote, that were involved in 23

these incidents, the violations. 24

So it’s kind of a sampling. And Mr. Feldman 2530

would be offering, I guess, more of a sampli ng. I don’t 1

know if there’s a point to having

-- you know, we would 2

-- if it helps to stipulate that they’re all

-- you know, 3

the administrator stipulates that all the waivers are the 4

same and all these other people had the same waiver, or 5

somet hing to that effect. Maybe we don’t need them all 6

in the record. Maybe I don’t even need all of mine in 7

the record necessarily. 8

I don’t know. Mr. Feldman, what’s your 9

thoughts on that? 10

MR. FELDMAN: My

-- my goal here wa s to show 11

that these were not selective practices for the people 12

accused by the administrator of conducting these 13

operations. These were universal policies that were in 14

place for everybody. And, you know, I don’t know that we 15

can identify exact ly who was in what video and who they 16

were and even from whence they came. 17

But I didn’t want to leave anybody out, in case 18

the administrator says, Aha, we’ve identified Mr. X and, 19

you know, do we have a waiver for Mr. X, do we have a 10

- 20

99 for Mr. X. Maybe Mr. X was really an employee and the 21

others were all independent contractors. I don’t want

-- 22

I don’t want that to happen. Not to say that it would 23

and I don’t want to put ideas in your head, Mr. Bobertz. 24

But that’s the reason for being more inclusive, 2531

rather than selective. 1

JUDGE RAWALD: Right. So what may be possible 2

is, once again, for you two to discuss

-- outside my 3

presence

-- whether the FAA will want to stipulate th at 4

all the parachuting was conducted by people who were 5

independent contractors, in the sense they have 10

- 99s 6

and have a waiver of some sort. Some language that works 7

for both you folks, to avoid calling the witnesses and 8

putting on the evidenc e regardless. It may streamline 9

the issue. 10

Because it seems like I don’t hear Mr. Bobertz 11

saying, no, no, I think that some of those guys were 12

employees and some of them were 10

- 99 people. I think 13

he’s putting forward, hey, listen w e have all this 14

information on them. Is that right, Mr. Bobertz? 15

MR. BOBERTZ: Right. Yeah, if it helps to 16

stipulate, Mr. Feldman, that we’re not saying that all 17

those people involved were 10

- 99s and shown to be

-- have 18

documents indi cating they’re the same documents as 19

everyone else has, showing that they’re independent 20

contractors on paper, that’s fine. 21

MR. FELDMAN: So, in other words, if you

-- if 22

you identify

-- and I don’t know that you have

-- Jumper 23

A that looks like they’re going through a cloud and we’ll 24

stipulate that Jumper A, whether or not that particular 2532

10

- 99 and contract are in evidence that the paperwork 1

supporting independent contractor status, and you may 2

argue that they’re not factually independent contractors, 3

I’d expect that you would

-- that

-- that that paperwork 4

exists. 5

MR. BOBERTZ: Correct. So maybe we could come 6

up with a

-- we take one person that has all the relevant 7

waive rs and contracts and we say this is representative 8

of all the people. And we

-- do you actually a

-- you 9

know, maybe it’s still necessary for some reason that I 10

can’t think of at the moment, to have a list of all those 11

people. 12

And yo u’ve got the

-- in other documents 13

there’s the list doing the jumps on those days with the 14

-- all the independent contractor folks, you know, the 15

jump

- masters, the videographers, and the customers. So 16

we have a list and maybe we could stipulate. You know, 17

pick one sample of each of the contracts and say that 18

that applies to everybody and we

-- it’s the same for 19

everybody and we don’t need to enter them all in the 20

record. 21

MR. FELDMAN: That

-- that would make sense. 22

Now, the se are

-- these are the ones that were produced 23

because of your pretrial disclosures, prehearing 24

disclosures, where you said that you would use the 2533

documents produced by the

-- under the administrative 1

subpoenas. A lot of this stuff was produced u nder the 2

administrative subpoenas that you served on my client. 3

MR. BOBERTZ: Right. 4

MR. FELDMAN: So, you know, whether or not

-- 5

you know, I may argue as to whether that is admissible 6

here. But

-- but that’s why I produced more, rather than 7

less in this case. Anything that I produced to you, I

-- 8

either in discovery in this case, or under one of your 9

administrative subpoenas for the relevant days, I 10

produced it in

-- to the judge. 11

JUDGE RAWALD: And I guess

-- let me just jump 12

in here, what I think

-- what this discussion is, that 13

the 10

- 99s and the waiver forms are also something that, 14

at least, Mr. Feldman is articulating should be kept 15

confidential. And I always want to minimize the amount 16

of things I want to put under seal, because, I think, it 17

is difficult, you know, too insure that things are kept 18

that way over time, because I don’t control everything. 19

I mean, there’s my end, also what’s in the docket. 20

But also, because I think it’s more fair to the 21

person who wants to keep it out of the record if we can. 22

And so if you folks are able to stipulate to the stuff 23

that’s in the 10

- 99s and the waivers, and then have one 24

th at’s possibly redacted even and just show how they 2534

look, that may eliminate Mr. Feldman’s concerns for 1

confidentiality and still give me what you think you want 2

to provide me, so I can see what the governing documents 3

were regarding employees or th e non

- employees, as Mr. 4

Feldman would argue, who were engaged in the parachuting 5

with the clients on that day. 6

MR. FELDMAN: That

-- that’s a good idea, Your 7

Honor. My concern is I don’t

-- I don’t want names and 8

Social Security numbers floating around over FOIA 9

requests out there. 10

JUDGE RAWALD: I’m quite sure Mr. Bobertz and I 11

don’t either, as we’re Government employees. So I think 12

we’re all on the same page there. 13

MR. FELDMAN : Yeah. 14

JUDGE RAWALD: So if the two of you could get 15

together and work on a proper stipulation that you think 16

would cover your bases on this, that would eliminate some 17

of the witnesses you would need, as well as the Exhibits 18

that are quite lengthy and seemingly not all that 19

informative on the key issues in the case, because, you 20

know, there’s a lot of them and there’s a lot to it. 21

That may help us kind of narrow down the issues here. 22

So if you folks could work on that in the 23

coming days, I’d really appreciate that. 24

MR. FELDMAN: We can do that. We haven’t had 2535

an argument yet, Your Honor. 1

JUDGE RAWALD: Okay. Mr. Bobertz, you agree? 2

MR. BOBERTZ: Yes, I think

-- Mr. Feld man, how 3

about if I take the first stab at it and put together a 4

sample document, along with that list and maybe even 5

draft the first kind of stipulation and send it off to 6

you in the next couple days and you could take a look at 7

it from there. 8

MR. FELDMAN: That would be good. 9

MR. BOBERTZ: Okay. 10

JUDGE RAWALD: And, Mr. Feldman, I notice that 11

you had both R

- 13 and R

- 14

-- totally different issue 12

now, trying something different

-- a deposition 13

transcript from the Matter of FAA vs. Khan, and they’re 14

basically the same thing, just in two different formats. 15

MR. FELDMAN: Right. I didn’t know which one 16

Your Honor would prefer, so I put both of them in, I 17

thought maybe the full certified copy, rather than the 18

four page one or the other one, whichever one Your Honor 19

prefers. So one of

-- they won’t both be introduced. 20

JUDGE RAWALD: Okay. And I don’t have a 21

preference, so it’s whatever one you feel like admitt ing, 22

it really doesn’t matter. I mean, I can use zoom in if I 23

need to and I can otherwise look at a big page. It 24

doesn’t matter to me. So you just decide which one you 2536

think is most appropriate. 1

MR. FELDMAN: All right. 2

JUDGE RAWALD: So let me just go over this real 3

quick. Mr. Feldman, did you have any particular 4

objections to anything you saw on Mr. Bobertz’ list that 5

you wanted to advise me of now so we can get

-- deal with 6

that? Or did you

-- as you’re lo oking at Mr. Bobertz’ 7

list, oh, yes, these are things that I think that we’ll 8

probably be able to admit without any objection. 9

MR. FELDMAN: Let me go to the list here. No, 10

at this point, without hearing his case, there’s nothing 11

tha t I have a problem with. 12

JUDGE RAWALD: Okay. 13

MR. FELDMAN: At some point, when I hear what 14

they say, there may be some issues. 15

JUDGE RAWALD: There may be some Exhibits that 16

you object to their admissibility? Or how

-- or object 17

to how I give them weight? 18

MR. FELDMAN: Most likely both. 19

JUDGE RAWALD: Okay. 20

MR. FELDMAN: I mean, these

-- these videos are 21

suspect, in my opinion. And

-- and I want to fully 22

develop that, because the guy who purportedly took them 23

has

-- has motives to

-- to slash and kill everybody at 24

Pacific Skydiving and threatened to do that. And so he’s 2537

not some innocent

-- you know, there’s a civil cas e out 1

there, a civil penalty case, where there was a guy at the 2

airport hanging out that had no interest in the case that 3

saw somebody go through a cloud and they had a civil 4

penalty against the jumper. But, you know, he had no 5

interest in it. 6

This guy’s interest is to control the whole pie 7

and he

-- he’s said that. And so, you know, I think 8

admissibility on some of these and accuracy and

-- and do 9

they

-- do they actually show what they purport to show? 10

The rules of evide nce as to their admissibility, a lot of 11

issues, depending on how they’re presented, may come up. 12

JUDGE RAWALD: Okay. Then understanding that, 13

this is my preferred practice then for the hearing, will 14

be

-- what I’d like for you folks to do, now that we kind 15

of understand what each side wants to offer and we know 16

that there are some areas where you both worked together 17

to kind of reach a conclusion to get rid of things, is 18

when we get to the hearing, if not before then, have both 19

sides draw up a more finalized these are my Exhibit 20

lists, that we then can look at. 21

And so while I’m here, I’d like to readmit some 22

of these things, so we don’t have to worry about having 23

testimony regarding it. So we can just put them on the 24

record, both sides agree there’s no objection to it, and 2538

they’re entered in as evidence. 1

And then those things that you will be 2

objecting to, or possibly will object to, you want to 3

reserve the right to object to, we won’t preadmit. And 4

Mr. Bobertz will be forced to then have the appropriate 5

witness be the vehicle for admitting them and you can 6

object at that time. 7

And then the same story for Exhibits that Mr

. 8

Feldman is trying to admit, if you want to make him go 9

through a witness then we’ll do that. 10

But I’d like to at least save us time and 11

effort by preadmitting things before the trial starts, 12

those that we can. So if you folks can at least come to 13

some accord on those things, that would be helpful. 14

MR. FELDMAN: We’ll work on that. I mean, 15

obviously the videos are the biggest part of the 16

administrator’s case and they’re the biggest objections 17

we have as to what they purport to show. 18

JUDGE RAWALD: Okay. 19

MR. FELDMAN: And, you know, there really isn’t 20

a history of this. I think this is the first time we 21

actually had a civil penalty action against the operator 22

of the skydiving cen ter. And I haven’t found any case 23

law, so it’s new territory. 24

JUDGE RAWALD: Yeah. And so let’s just move 2539

then to the issues that are in dispute, I think that’s 1

where we’re really heading. 2

And so, as you indicated, there is a case in 3

the past where a disinterested person was the witness 4

that was used in a parachuting case, that’s Thomas Fedele 5

FAA Order No. 98

- 3. Both parties should make sure you 6

read and understand that case. I think it’s really 7

important to the main issue or the first issue in the 8

case, which is did someone parachute through the cloud 9

and that witness in that case and how that witness was 10

weighed and how I’ll weigh the witnesses here. 11

That, to me, is the

-- issue for me to look at 12

is did someone parachute through the cloud or did it on 13

multiple occasions, as alleged by the FAA. 14

The second question, as I look at it, is why 15

would the company, as Mr. Feldman articul ated, be 16

responsible under the regulations for the actions of a 17

parachuter. Because we have to look at the language of 18

the regulation and so, Mr. Feldman and Mr. Bobertz both, 19

be prepared to discuss why would the company be 20

responsible or not be responsible for the folks on the 21

plane deciding do you go through the cloud. 22

And the third issue, as I see it, is really 23

what is the impact of them being independent contractors, 24

if they are independent contractors, on the case. And 2540

similarly germane to this are two FAA cases that the 1

parties should be aware of, that’s 2002

- 20 Federal 2

Express and 2010

- 8 Husky. Both those cases at least 3

discuss independent contractors, vis

- a

- vis the role of 4

the administrator in these cases. And so I think the 5

parties should be well

- versed in that and be able to 6

discuss why those cases would apply in this case. 7

And the fourth issue I see is what the amount 8

of the civil penalty should be, if there is a civil 9

penalty, if I were to find that Pacific is responsible. 10

You know, how do we get to that number that the FAA 11

proposed or how do I get to a lower number. Mr. Feldman, 12

we’ll have to discuss that possibility. 13

So thos e are the four main issues as I approach 14

this case as I see it. Are there any other issues that 15

you folks spotted that you are not in accord of and that 16

I need to be looking at as I analyze this case? Mr. 17

Bobertz? 18

MR. BOBERTZ: A coup le things. Just back on 19

your point number three, I missed the second case. Was 20

it 2008? 21

JUDGE RAWALD: No, 2010

- 8 Husky. 22

MR. BOBERTZ: Okay. 23

JUDGE RAWALD: Is the name of the case. And 24

2002

- 20 Federal Expre ss. 2541

MR. BOBERTZ: Got that one. All right, thank 1

you. Just back

-- back up a little bit on the 2

administrator’s

-- 3

MR. FELDMAN: Your Honor, I

-- let me just 4

interrupt here for a second. Are those two cases, were 5

they

- - I think there were more cases than that that I 6

found and you can distinguish some of them because they 7

were 121 or 135 Operators, as far as delegating duties. 8

I don’t know if those are the cases. There may be an 9

additional case, I don’t have it in front of me. 10

JUDGE RAWALD: Right. And there may be more 11

cases that are germane, these are the two that I found in 12

my research in preparation for today’s phone call, that I 13

thought were most

-- at least noticeably important to at 14

least consider. And so I’d ask the parties to look at 15

that. 16

Certainly at the hearing, or if we do pre

- trial 17

briefing, additional case law will be helpful. But these 18

are the two cases that I thought, o kay, I want to make 19

sure the parties look at this, because I looked at it and 20

I think it’s at least worth looking at as you prepare for 21

the case in two weeks. 22

MR. FELDMAN: Okay. I’ve got them noted. 23

Thank you. 24

JUDGE R AWALD: Now, Mr. Bobertz, you were 2542

saying? 1

MR. BOBERTZ: In regards to some of the other 2

Exhibits that the administrator has on the proposed list, 3

Mr. Feldman was talking about objecting to some of the 4

videos from Mr. Hi nshaw and I understand that. There’s 5

also videos that we received from Pacific, basically what 6

I would call Go

- Pro videos on the helmet cams of the 7

divers, that we received through a subpoena. 8

I assume those are going to be

-- you’re n ot 9

going to object to those? I just wanted to check. 10

MR. FELDMAN: I may. I need to see the 11

individual video that you

-- that you want to introduce. 12

MR. BOBERTZ: They’re in the list of Exhibits. 13

MR. FELDMAN: Yeah, I don’t

-- having looked at 14

all of the ones that we produced prior to giving them to 15

you, I don’t see anything there that’s conclusive. But, 16

you know, I

-- 17

JUDGE RAWALD: Right. And if you

-- A

- 32, A

18

33, A

- 34, A

- 35, and there’s some photos from that as 19

well, A

- 36, A

- 37, A

- 38, A

- 39, A

- 40. So they’re all 20

videos that are clearly taken from the person alongside 21

the jumper where you pay the videographer to go along 22

with them and he’s with them. 23

So that’s the ones I assume you’re talking 24

about, Mr. Bobertz; is that right? 2543

MR. BOBERTZ: That’s correct. 1

JUDGE RAWALD: Okay. So, Mr. Feldman, so his 2

question is would you object to their admission or do you 3

t hink you won’t be objecting to their admission? Or you 4

want to reserve the right to object later? 5

MR. FELDMAN: I’ll have to look at them again, 6

Your Honor, before I make the decision on that. 7

JUDGE RAWALD: That’s fine. Ok ay. So that’s 8

the best you can get from him, Mr. Bobertz, I guess at 9

the moment. You two can talk more about it, but we’ll 10

get the answer at the hearing. 11

What else, Mr. Bobertz? Any other questions on 12

the issues as I laid them out? Do you see any initial 13

issues that you think I need to look into, Mr. Bobertz? 14

MR. BOBERTZ: No, I think you’ve got it. 15

JUDGE RAWALD: Okay. And, Mr. Feldman, any 16

issues that I missed or that you want to discuss further? 17

MR. FELDMAN: No, I think they’re

-- they’re 18

the issues. Did they jump into a cloud, the 19

responsibility of the company, the independent contractor 20

status, that’s tied in with responsibility of the 21

company, and the civil penalty amount. 22

JUDGE RAWALD: Right. And I think those are 23

two separate questions, to be clear, Mr. Feldman. The 24

company being responsible under the text of the 2544

regulation, because it’s regardless of the status of the 1

parachutist. You know, it is under the regulation as 2

drafted, is the company responsible for the actions of 3

the parachutist. 4

And the question of the independent contractor, 5

does that status them somehow ameliorate any sort of 6

responsibility the company would hav e. 7

And so they are two separate questions to me 8

legally, that I want to make sure are solely answered 9

when we discuss the question at the hearing. 10

Okay. So anything else that you folks want to 11

discuss today? I’ll open the floor to you, Mr. Bobertz, 12

first. 13

MR. BOBERTZ: No, Your Honor. 14

JUDGE RAWALD: Okay. And, Mr. Feldman? 15

MR. FELDMAN: Your Honor, the only thing I’m 16

concerned about

-- two things with dealing with the 17

logistics of the hearing venue. First is security, I

-- 18

this guy scares me. I

-- it scares me that I’m walking 19

around Honolulu with him on the loose, knowing that he

-- 20

with him knowing that I’m going to attack him in Court. 21

And second, that we be allowed to bring in our 22

electronics, which would include laptops and probably 23

cell phones and a projector and all the pieces we need to 24

present our case. That applies for the

-- for Mr. 2545

Bobertz as well. 1

JUDGE RAWALD: On the courtroom logistics 2

issue, I’ve cleared with them to get bring everything. 3

Mr. Bobertz, you were in this courthouse before, when you 4

were there with Judge Goodwin, correct, and you had no 5

problems with the electronics? 6

MR. BOBERTZ: It was no problem. I used the 7

laptop in there. I was trying to remember, I didn’t use 8

any of the Court audio

- visual aids, but I was hoping 9

there was a way to see what they might have that might be 10

helpful in presenting so me of the videos on a larger 11

screen, rather than a small laptop. 12

JUDGE RAWALD: And what we did when we reserved 13

the courtroom, basically we made clear that we want the 14

parties to have access to be able to project audio

15

visually. An d that they will provide that. 16

So what I would like you folks to do is on the 17

service list is the number for my staff assistant, Kelly 18

Ort, and if you call her, she can put you in touch with 19

the Court person that we’re dealing with and ma ybe you 20

can possibly clear a time to go over there on Monday 21

before we start on Tuesday, just to run through your 22

equipment if you want to see if it works in the courtroom 23

we’re going to be assigned. And that may be the best way 24

to make sure that you have everything you need set up to 2546

do what we need to do. 1

MR. FELDMAN: Will we have that courtroom for 2

Monday? In other words, will it be locked? If we could 3

leave

-- I was considering bringing a projector jus t in 4

case theirs wasn’t compatible. 5

JUDGE RAWALD: I can see that our reservation 6

runs from Monday through Friday. But Kelly will know 7

better and so if you can get in touch with her, she’ll be 8

able to facilitate you getting what you need in the 9

courthouse and locked in place would be great, so you 10

won’t have to be doing it on Tuesday morning. 11

MR. FELDMAN: Yeah, that saves a lot of the 12

Court’s time, if we can set it up Monday and lock it up. 13

JUDGE RAWAL D: No, I agree. And so what I’d 14

like for both of you to do is to contact Kelly, she has a 15

desk phone number there, if you call her this afternoon, 16

she’ll be in the office. And then she’ll work with you 17

to make sure that we have everything set up with the 18

folks in Hawaii so you can make sure that it’s easily

-- 19

done what you need to do. 20

I mean, I don’t want you to fly all the way to 21

Hawaii with a projector, Mr. Feldman, if you don’t have 22

to. So if there’s one in the Court ava ilable for you, 23

then great, then why even bother bringing it with you. 24

So I want to make sure we have one, so it’s taken care 2547

of. 1

MR. FELDMAN: Okay. I’ll just

-- you know, it 2

would

-- it would be a mess if

-- for both of us if we 3

didn’t have adequate visual projection capabilities. 4

JUDGE RAWALD: I agree. And that’s why I

-- 5

MR. FELDMAN: Or someone with audio knowledge 6

would have to come out, because there is audio on these 7

videos that the administrator intends to introduce. So 8

we have to have audio capability. We’ll check with your 9

assistant. 10

JUDGE RAWALD: Okay. Wonderful. And she’ll 11

make sure you get what you need to get done. 12

That was the easy question. And the second

-- 13

or the first part of your question was really the danger 14

or the fear factor of Mr. Hinshaw. 15

Unfortunately, I can’t do anything regarding 16

the safety of your person while walking around Honolulu. 17

I don’t know, Mr. Bobertz, if you have any sort of 18

thoughts on that. Have you talked to Mr. Hinshaw at all 19

about what he’s up to, what his thoughts are, how he’s 20

going to conduct himself in dealing with the fact that he 21

is going to be cross examin ed at some point. 22

MR. BOBERTZ: I have talked to him a couple 23

times. Not specifically about

-- well, I have talked to 24

him about the Facebook posts and whatnot. It’s

-- you 2548

know, having never met him in person, it’s hard to be

-- 1

to judge. Having talked to him on the phone, I’m 2

surprised to see those Facebook posts, it doesn’t seem to 3

match to me. But I’m not a psychologist who can analyze 4

people. So I don’t know. 5

MR. FELDMAN: Well, he physically assaulted a 6

person that was involved with Pacific Skydiving. 7

JUDGE RAWALD: Right, I understand the 8

allegations and I’ve read those documents, Mr. Feldman. 9

I guess

-- Mr. Bobertz, I’m not holding you responsible 10

for predicting Mr. Hinshaw’s behavior. What I want to 11

make sure of is that you advise him as your witness that 12

it will not help him to do anything that is aggressive or 13

in any way assaultive or in any way illegal, as far as 14

conducting himself a round the opposing party, including 15

opposing party’s counsel. 16

I mean, Mr. Feldman is going to be doing his 17

job, he’s going to be asking difficult questions, he 18

should be prepared for that. And if he acts 19

inappropriately, that will o nly hurt his credibility. 20

And so you’d be prepared to talk to him about those kind 21

of things and do your due diligence to get your witness 22

to act accordingly. 23

I will

-- if it’s necessary, I will ask the 24

Court to assist us with the ma rshals to

-- if he becomes 2549

too aggressive, I don’t see a need at the moment to do 1

anything like that, but just

-- you know, we do know this 2

man at least supposedly has been aggressive with some 3

folks. So let’s be sensitive of that and talk to your 4

witness accordingly, I think, is the best I can do at the 5

moment, Mr. Feldman. 6

MR. FELDMAN: Well, that’s a good start. And 7

hopefully, it won’t become an issue. 8

JUDGE RAWALD: All right. And, listen I’ve 9

been in some very hot issues, trials, capital murder, et 10

cetera, so I think that we’ll be okay and I think that 11

we’ll be able to control it. I don’t

-- but we’ll be 12

aware of the issue and so we’ll take care of it. 13

MR. FELDMAN: But for capital murder, they’ve 14

got the bad guys in handcuffs. 15

JUDGE RAWALD: Some of them, sir. Sometimes 16

the family are worse than the people who are on trial. 17

So the last issue for me that I wan t to talk 18

about was the possibility of settlement. Have the 19

parties discussed settlement at all or have you reached 20

an impasse and so we’re not going to see any settlement 21

possibly before we go to Hawaii here? 22

MR. BOBERTZ: I think we discussed settlement 23

several times in the past and we’re just so far apart 24

that we haven’t recently. I just don’t see us coming 2550

together, being how far apart we were. 1

JUDGE RAWALD: Okay. Mr. Feldman? 2

MR. FELDMAN: Yeah, w e haven’t, you know, 3

discussed anything recently but as this case progresses, 4

it’s basically a case of

-- of we deny A, that people 5

penetrated through clouds on these jumps, and B, the 6

responsibility of Pacific International Skydiving Center 7

for what the people in the airplane do. And so I don’t 8

see any way that we can settle this, you know, without 9

finding a violation, which was

-- you know, frankly, the 10

biggest concern we have. 11

So, you know, we investigated compromise 12

order s, of course, but we didn’t get anywhere. So it 13

doesn’t look like there’s a future in settlement. At 14

this point, no. 15

JUDGE RAWALD: Okay. I just ask that the 16

parties do at least keep the option open and discuss it 17

over the next few weeks, only because of the fact that 18

the litigation is expensive, also the Government is 19

paying a lot of money for Mr. Bobertz and I to fly out to 20

Hawaii. Your client is going to pay a lot of money for 21

you to fly over to Hawaii and for us all to take care of 22

what we’re going to take care of. 23

So if there’s one last chance for you folks to 24

settle, that’s great. If you do settle, please do advise 2551

me before I get on a plane, because that would be really 1

unfort unate for the Government if I were to fly all the 2

way to Hawaii for no hearing, although I might not mind 3

it, they would be, of course, upset. So I do appreciate 4

that. Keep me abreast, so if there is a settlement, 5

which you don’t expect to happen , do let me know 6

immediately so I can change my travel plans accordingly. 7

Okay. One last chance, Mr. Feldman, anything 8

you wanted to say? 9

MR. FELDMAN: Nothing I can think of, Your 10

Honor. 11

JUDGE RAWALD: Okay. Mr. Bobertz, is there 12

anything you want to discuss? 13

MR. BOBERTZ: Just in the event

-- I don’t 14

think so most likely, but in the event that happened or 15

there’s some other urgent situation, where we needed to 16

contact you, what would be the best way? 17

JUDGE RAWALD: The nest thing to do is to call 18

the number for my staff assistant, Kelly Ort, on the 19

phone list. And if she’s not in the office, her phone 20

forwards to someone else and that’s that 202

- 366

- 5121 21

number. And so somebody in my office then will get the 22

message and get to me and let me know what’s going on. 23

So we’ll be able to take care of that. 24

I will be flying out Monday morning, to reach 2552

Hawaii Monday afternoon and start the case on Tuesday 1

morning, is my travel plan. And so if anything happens 2

before that, the best thing to do would be to call her, 3

because she’ll be able to get ahold of me, even over the 4

weekend, she’ll be able to take care of that. 5

So

- - but we’ll check in with one another on 6

the Friday before the hearing in case something does come 7

up. I’ll have her check in with you folks to make sure 8

nothing has happened and we can be squared away. Okay? 9

MR. BOBERTZ: Okay. 10

MR. FELDMAN: Okay. I will be in Hawaii the 11

week before to meet with my witnesses. So just keep in 12

mind it’s, what, five hours earlier there than it is on 13

the East Coast. 14

JUDGE RAWALD: Understood. Okay. 15

MR. FELDM AN: Nothing like a call at 4 a.m. 16

JUDGE RAWALD: She won’t be calling you, Mr. 17

Feldman, she’ll

-- I’ll have my attorney advisor send the 18

email to both you folks to make sure if there’s anything 19

that we need to be aware of. 20

Okay. Anything else, Mr. Feldman or Mr. 21

Bobertz? 22

MR. BOBERTZ: Nothing from me. 23

JUDGE RAWALD: Okay. With that, we’ll go ahead 24

and go off the record. And I will issue a prehearing 2553

conference report. Thank you, folks. 1

MR. BOBERTZ: Thank you. 2

MR. FELDMAN: Thank you, Your Honor. Have a 3

good afternoon. ‘Bye

- bye. 4

JUDGE RAWALD: You, too. ‘Bye. 5

(Whereupon, at 2:05 p.m., the hearing was 6

concluded.) 7

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CERTIFICATE OF REPORTER 4

5

I, Karen Guy, hereby certify that the foregoing 6

proceedings were recorded by me via digital recording and 7

reduced to typewriting under my supervision; that I am 8

neither counsel for, related to, nor employed by any of 9

the parties to the action in which these proceedings were 10

transcribed; and further, that I am not a relative or 11

employee of any attorne y or counsel employed by the 12

parties hereto, nor financially or otherwise interested 13

in the outcome of the action. 14

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_________________________________ 19

KAREN GUY, CER 20

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