1

1 OFFICE OF HEARINGS

2 U.S. DEPARTMENT OF TRANSPORTATION

3 

4 In the Matter of: )

5 PACIFIC INTERNATIONAL ) No. FAA-2014-1116

6 SKYDIVING )

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

8 

9 TELEPHONIC PRETRIAL CONFERENCE

10 

11 Monday, November 28, 2016

12 1:00 p.m.

13 The Honorable Douglas M. Rawald

14 Administrative Law Judge

15 

16 ON BEHALF OF THE FAA:

17 DON BOBERTZ, ESQ.

18 

19 ON BEHALF OF THE RESPONDENT:

20 ROBERT FELDMAN, ESQ.

21 

22 

23 

24 Reported telephonically by:

25 Karen Guy, CER
2

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

2 (1:00 p.m.)

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

4 record. 

5 This is a prehearing conference in the case of

6 Pacific International Skydiving Center, docket number

7 FAA-2014-1116. Today’s date is November 28, 2016. It’s

8 1:05 p.m. Eastern time. 

9 This is Administrative Law Judge Doug Rawald. 

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

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

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

13 Jackie Booker. 

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

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

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

17 discuss a motion to quash. So if we could -- I see that

18 I’ve received documents from both parties. 

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

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

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

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

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

24 Government’s employee? 

25 MR. FELDMAN: Your Honor, in reading the
3

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

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

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

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

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

6 discretionary with the administrator and there -- I

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

8 that the Respondent can take advantage of the testimony

9 that might be offered. So --

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

11 question to you, Mr. Bobertz -- I mean, Mr. Feldman. 

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

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

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

15 down the road?

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

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

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

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

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

21 it. 

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

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

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

25 think it’s important to develop a record appropriately.
4

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

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

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

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

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

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

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

8 You planning on calling all four of those people? 

9 MR. BOBERTZ: I do. 

10 JUDGE RAWALD: Okay. And anyone else that

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

12 four, you’re sure about that’s what you’re going to do,

13 right? 

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

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

16 computer, let me --

17 JUDGE RAWALD: I have Kyle Bartler, Ed Santa18 Elena, Frank Hinshaw, and Paul McCowan. 

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

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

21 withdraw. But, no, that’s -- that is the four. 

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

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

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

25 you’re going to reserve anything for when they actually
5

1 testify?

2 MR. FELDMAN: Yeah, I’ll -- Your Honor, I’ll

3 listen to their testimony and see if there’s -- you know,

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

5 I’ll raise that at the hearing. 

6 JUDGE RAWALD: Okay. And understanding, sir,

7 that with the expertise -- they put the bar so low to be

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

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

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

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

12 okay? 

13 MR. FELDMAN: Okay. 

14 JUDGE RAWALD: And then turning to Mr.

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

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

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

18 is going to call him. 

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

20 to call him for foundation, but I may -- I may need him

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

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

23 concern. 

24 If I can -- if I can cross examine him to some

25 extent, I assume he’s there as a foundational witness
6

1 rather than anything else. And -- and I have questions

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

3 the subpoena for him. 

4 JUDGE RAWALD: Okay. 

5 MR. FELDMAN: Even though he --

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

7 discuss then is whether you want to, for economy

8 purposes, allow the scope to be wider for cross

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

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

11 witness. 

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

13 parties have -- can come to an accommodation that would

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

15 there are reasons for strategy-wise on both sides, you

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

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

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

19 him twice or call him once. 

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

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

22 for economy sake is -- would be fine. And if you went

23 beyond the scope of direct and cross, I generally

24 wouldn’t have a problem with it. 

25 But part of what else I wanted to discuss,
7

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

2 evidence and witnesses are regarding Mr. Hinshaw’s

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

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

5 his Facebook post and issues which is -- I can’t say it’s

6 not germane to his credibility, but I don’t -- my concern

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

8 issues. 

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

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

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

12 separate trial. 

13 MR. FELDMAN: Your Honor. 

14 JUDGE RAWALD: Yes, Mr. Feldman?

15 MR. FELDMAN: Yeah. My -- my concern is the

16 crux of the case is the video that purportedly Mr. -- Mr.

17 Hinshaw purportedly shot and which he claims is accurate. 

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

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

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

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

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

23 animosity that’s been -- there’s death threats, you know,

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

25 business. And, you know, if Your Honor listens to the
8

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

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

3 need all of them, but in case -- in case one doesn’t

4 testify or isn’t able to testify -- there’s one who made

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

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

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

8 separate issues dealing with his motivations and -- and

9 reasons for presenting this video, which certainly are

10 not for safety. They’re -- they’re aggressively to put

11 the company out of business. 

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

13 fullest extent. 

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

15 Feldman. 

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

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

18 think that we need -- the Respondent needs to hear your

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

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

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

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

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

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

25 until after your case is closed, because I want -- we
9

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

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

3 work, in other words. 

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

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

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

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

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

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

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

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

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

13 record. 

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

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

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

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

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

19 MR. BOBERTZ: That sounds great. I thought

20 about that as well and kind of figured off-hand, I’ll

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

22 hearing and do it then. 

23 JUDGE RAWALD: Okay. A pending case law or

24 anything that you can gather up in the interim will

25 obviously be helpful, looking at this. This is not an
10

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

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

3 handle the evidence or issues. 

4 But -- and I will tell you from my file,

5 because I do look at those credibility rules and the

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

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

8 Bobertz and Mr. Feldman, and kind of familiarizing

9 yourself with how they play into Mr. Hinshaw’s

10 credibility or testimony regarding it would be helpful

11 for our discussion, I think. Okay?

12 MR. BOBERTZ: Very good. 

13 MR. FELDMAN: Okay. 

14 JUDGE RAWALD: Mr. Bobertz, does that sound

15 fair to you? 

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

17 Honor. 

18 JUDGE RAWALD: Okay. So the other witness I

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

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

21 I wanted to see -- so what’s the situation there? 

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

23 interrogatories. And, you know, he wasn’t a -- he’s not

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

25 him, rather than from a client of his, from the
11

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

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

3 answers are. 

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

5 was your reaction to that, to seeing yourself listed on

6 the witness list? 

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

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

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

10 you know, we’re not required to certify interrogatory

11 responses, but we’re preparing them and -- with the input

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

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

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

15 vulnerable as a witness in the case. 

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

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

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

19 conflicted out of serving as the counsel on the case. 

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

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

22 might do if it becomes necessary you think?

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

24 of the interrogatory answers, I don’t know if -- I don’t

25 know from where the information came. And I’m going to
12

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

2 you say this, and they could all say no. And -- and then

3 without Mr. Bobertz, I wouldn’t have recourse. 

4 JUDGE RAWALD: Okay. 

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

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

7 JUDGE RAWALD: Okay. This is mostly --

8 somewhat of an impeachment kind of issue, something

9 that’s not contrary to -- or, contrary to what you heard

10 or learned in discovery, it sounds like. 

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

12 bringing other counsel with you? How do you typically

13 travel for these cases?

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

15 JUDGE RAWALD: Okay. So unless something came

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

17 at that point. Okay. 

18 Well, Mr. Feldman, I will proceed -- we’ll

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

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

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

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

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

24 Bobertz until you and I have talked about it out -- you

25 know, a motion argument regarding it. I don’t want to
13

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

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

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

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

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

6 okay? 

7 MR. FELDMAN: That’s fine, Your Honor. 

8 JUDGE RAWALD: Okay. Because it may, once

9 again, require the necessity of having someone else to

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

11 logistically challenging. So -- okay. So I want to make

12 sure that we’re all prepared for that. 

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

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

15 looked at it?

16 MR. FELDMAN: No, I -- you know, I -- there may

17 be some impeachment evidence, which has not been

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

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

20 their witnesses, to their expert, to their fact

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

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

23 to.

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

25 that there are things that you have not provided to Mr.
14

1 Bobertz in discovery that you believe come up that may

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

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

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

5 MR. FELDMAN: Well, it -- Your Honor, it’s

6 difficult to know what -- what I might need for

7 impeachment or rebuttal, without hearing the case in

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

9 YouTube that I’ve seen and every -- every photograph, but

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

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

12 impeachment evidence, as to a witness’ testimony, I -- I

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

14 pretrial discovery. 

15 JUDGE RAWALD: Right. And I’m -- and once

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

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

18 situation, because you are responding and I am

19 sympathetic, because having been on both sides of the

20 table, you know, in past cases. 

21 So what I -- but what I want to make clear is

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

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

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

25 discuss the kind of legal and factual basis for why
15

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

2 a decision at that time. 

3 I just kind of want -- I want the parties to be

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

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

6 hearing along, okay? So --

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

8 also be demonstrative evidence at that point, rather than 

9 -- than evidence. So -- a demonstrative Exhibit, rather

10 than admissible evidence. And -- and that might be

11 equally as effective. 

12 JUDGE RAWALD: Okay. 

13 MR. FELDMAN: But we’ll see how -- how the case

14 progresses. 

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

16 will probably happen, just from a logistical point of

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

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

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

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

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

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

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

24 of. 

25 What I don’t want to have happen is I don’t
16

1 want witnesses waiting around for hours with nothing to

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

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

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

5 let’s take it up now. 

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

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

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

9 getting -- running out of time when we have issues we

10 need to deal with. Understood?

11 MR. FELDMAN: Yes, Your Honor. 

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

13 understand? 

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

15 don’t know if you were -- had some other witnesses, but I

16 had a few more to discuss as well. 

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

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

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

20 called just to authenticate the 10-99 forms, the

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

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

23 that we don’t really need to -- people who aren’t really

24 needed. 

25 JUDGE RAWALD: Okay. 
17

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

2 was foundation for admitting the 10-99s. So we most

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

4 reserve the right to call -- I’d like to reserve the

5 right to call him, but I -- I won’t need to if we that --

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

7 admissible to show that they were issued by his

8 accounting firm. 

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

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

11 seems like the Government is putting forward them as

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

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

14 stipulation for witnesses is the more you folks can

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

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

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

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

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

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

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

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

23 that in mind. 

24 So maybe -- Mr. Bobertz, do you have a couple

25 other witnesses you want to stipulate to on your list? 
18

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

2 stipulation for? 

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

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

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

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

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

8 would not necessarily object to them -- particular ones

9 at the moment, but at some point it seems like it’s going

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

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

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

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

14 are going to be needed. 

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

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

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

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

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

20 allowable. 

21 And I don’t -- at this point I’m not going to

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

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

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

25 you say this is getting really cumulative, Judge Rawald,
19

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

2 at that point. 

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

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

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

6 now, until we see how this is going to take -- this needs

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

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

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

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

11 regarding the letter to the Honolulu Police Department. 

12 I mean, if it’s -- she’s there again just to establish a

13 foundation of her having written that letter, the

14 administrator would stipulate to the admissibility of

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

16 establish the foundation. 

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

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

19 probably don’t need to call him. 

20 JUDGE RAWALD: Okay. 

21 MR. FELDMAN: Unless another issue is raised at

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

23 see it at this point. 

24 MR. BOBERTZ: Okay. 

25 MR. FELDMAN: In other words, I want to make
20

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

2 Hinshaw and his motivation and -- and his own conduct, is

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

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

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

6 list something and we’re not -- this isn’t a trial by

7 surprise, it’s -- I don’t -- I don’t do that and I don’t

8 think you do either. So -- but rather than err on the

9 side of forgetting somebody, I chose to list every

10 conceivable witness that I might have to call. 

11 MR. BOBERTZ: Understood. Just trying to --

12 MR. FELDMAN: So if you stipulate to the 10-99s

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

14 would eliminate those two witnesses. 

15 JUDGE RAWALD: So what I wrote -- my next thing

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

17 through that. It may be the actual -- because I would

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

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

20 the actual hearing. 

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

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

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

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

25 really important or really noticeable is that clearly
21

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

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

3 the 10-99s, which are identical to A-41. 

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

5 the -- to the witness list?

6 JUDGE RAWALD: Okay. 

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

8 admission of the police report? Because that would

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

10 report. 

11 MR. BOBERTZ: Sure. 

12 MR. FELDMAN: Families were the ones who were

13 involved in the actual threat. 

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

15 admissibility of the -- or, stipulate to the

16 admissibility of the police report. 

17 MR. FELDMAN: Okay. 

18 JUDGE RAWALD: That takes care of -- you said

19 who? 

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

21 won’t need him. 

22 JUDGE RAWALD: And Mr. Bobertz is saying you

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

24 different letter? 

25 MR. FELDMAN: King is for the letter that was
22

1 written to Honolulu Police Department. And the facts

2 contained in that letter that form the basis of his

3 concerns. 

4 JUDGE RAWALD: Sure. 

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

6 investigated it as well. So -- but, yeah, I’m just -- so

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

8 Greg Myer from testimony. 

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

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

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

12 what needs to be put on. 

13 So if we could turn -- the Respondent’s Exhibit

14 No. 1 is a 10-99 and it seems to be identical to what the

15 Government has offered at A-41, the 10-99. Have you both

16 had a chance to look at that at all?

17 MR. FELDMAN: It’s a -- ours is more

18 comprehensive. I think he’s selectively taken some 10-

19 99s and ours was the -- was a larger file. It’s just,

20 again, I don’t know -- you know, my -- my goal here is to

21 show that it’s not just these people that have 10-99s,

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

23 the entire skydiving industry, that these people are

24 independent contractors and the reasons therefore. So --

25 MR. BOBERTZ: I don’t know that -- if I did
23

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

2 more 10-99s than you gave to me in discovery, but I -- my

3 intention was to include my Exhibit with all the 10-99s

4 is all the 10-99s. There’s another Exhibit, I think,

5 where I kind of did a cumulative or a -- for a handful,

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

7 they’re independent contractors. I put together their

8 waiver, their different independent contracts, and I

9 think I did the 10-99 on back of those. 

10 So if you’re thinking -- if you’re looking at

11 that, that might have indicated it was -- you know, my

12 10-99 inclusion was a little selective, but there’s

13 another Exhibit that includes all the 10-99s. At least

14 my intention was to include all the 10-99s that I got

15 from you. 

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

17 think, 59 composites, most of which included the

18 contract, the 10-99, and a waiver. You know, some of

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

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

21 destroyed or -- or lost, I don’t know which. 

22 But, yeah, I -- as long as there’s no issue on

23 any of the 10-99s, they are what they are. So I don’t

24 think --

25 JUDGE RAWALD: There is a pagination difference
24

1 in the file, so A-41 is 33 pages and Respondent No. 1,

2 which is a composite of all the 10-99s from Respondent,

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

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

5 admitting the same thing multiple times, if we can avoid

6 it and I like to pre-admit things. 

7 It sounds like both sides are willing to admit

8 the 10-99s without any issue, though, on both sides,

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

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

11 Mr. Bobertz?

12 MR. BOBERTZ: Yes. 

13 JUDGE RAWALD: And Mr. Feldman?

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

15 Your Honor. 

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

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

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

19 354 pages long. I know Mr. Bobertz offered A-1, an

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

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

22 and see what the difference is there?

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

24 different list. I’m looking at the --

25 JUDGE RAWALD: So here’s the problem. When Mr.
25

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

2 to the actual numbers on the documents. 

3 MR. BOBERTZ: Okay. 

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

5 have a numbering scheme. Mr. Feldman has R-1 through 24. 

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

7 correct in saying that, Mr. Feldman?

8 MR. FELDMAN: Say -- say that again, Your

9 Honor? 

10 JUDGE RAWALD: You submitted an evidence list

11 that goes 1 through 22. But you marked your Exhibits

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

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

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

15 kidney stone when this stuff was being prepared and as

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

17 yeah, I -- the list does not correspond -- it’s numbered

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

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

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

21 each Exhibit, as -- rather than the list of Exhibits,

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

23 I could do that. 

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

25 the Court to follow. What I had my administrative
26

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

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

3 know that they’re not the same thing as -- or, they’re

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

5 described in the evidence list. 

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

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

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

9 discussion a little bit easier. 

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

11 Bobertz, is there is an FAA -- there are FAA orders that

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

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

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

15 they -- that Mr. Feldman provided us. Your No. A-1,

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

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

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

19 you both agree that the orders should be admitted, just

20 which one it is. 

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

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

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

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

25 It’s really --
27

1 MR. FELDMAN: We’re talking 2150.3B.

2 MR. BOBERTZ: Right. 

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

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

5 to reserve the right to use both the investigatory parts

6 of that and the sanction parts, if necessary. 

7 JUDGE RAWALD: Mm-hmm. 

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

9 sanction guidance table. 

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

11 the Exhibits submitted only on electronic format, some of

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

13 have to have a written copy of all this? 

14 MR. FELDMAN: That would make --

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

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

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

18 the issue so much as I don’t want -- I mean, when I go

19 back, I have to make sure I review every piece of

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

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

22 want to make sure that we have -- get that straight in

23 the record and not what’s not necessary. 

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

25 in, but you want different lengths of it and I want to
28

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

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

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

4 would kind of figure out, okay, which -- which parts of

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

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

7 helpful.

8 MR. BOBERTZ: Okay. 

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

10 do that. 

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

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

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

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

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

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

17 MR. FELDMAN: Yeah, the only -- I would agree

18 if it’s the same -- if it’s -- is it the same one, the 2-

19 Echo, 105-2E? 

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

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

22 and everything. 

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

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

25 introduce it, then I’m out of luck. So --
29

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

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

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

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

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

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

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

8 numbering would be the most helpful thing at this point.

9 MR. FELDMAN: Understood. 

10 JUDGE RAWALD: One thing, also No. R-5 from Mr.

11 Feldman is the waiver document, which I think we

12 discussed earlier. Mr. Bobertz has selected out -- took

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

14 has A-42 through A-51 that are the same -- part of the

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

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

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

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

19 together, as well. 

20 MR. BOBERTZ: Right. I don’t -- my purpose is

21 just to show that there’s -- I don’t think there’s any

22 difference between them, but these are the -- some of the

23 independent contractors, quote, that were involved in

24 these incidents, the violations. 

25 So it’s kind of a sampling. And Mr. Feldman
30

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

2 know if there’s a point to having -- you know, we would

3 -- if it helps to stipulate that they’re all -- you know,

4 the administrator stipulates that all the waivers are the

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

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

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

8 the record necessarily. 

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

10 thoughts on that? 

11 MR. FELDMAN: My -- my goal here was to show

12 that these were not selective practices for the people

13 accused by the administrator of conducting these

14 operations. These were universal policies that were in

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

16 can identify exactly who was in what video and who they

17 were and even from whence they came. 

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

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

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

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

22 others were all independent contractors. I don’t want --

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

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

25 But that’s the reason for being more inclusive,
31

1 rather than selective. 

2 JUDGE RAWALD: Right. So what may be possible

3 is, once again, for you two to discuss -- outside my

4 presence -- whether the FAA will want to stipulate that

5 all the parachuting was conducted by people who were

6 independent contractors, in the sense they have 10-99s

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

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

9 putting on the evidence regardless. It may streamline

10 the issue. 

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

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

13 employees and some of them were 10-99 people. I think

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

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

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

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

18 those people involved were 10-99s and shown to be -- have

19 documents indicating they’re the same documents as

20 everyone else has, showing that they’re independent

21 contractors on paper, that’s fine. 

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

23 you identify -- and I don’t know that you have -- Jumper

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

25 stipulate that Jumper A, whether or not that particular
32

1 10-99 and contract are in evidence that the paperwork

2 supporting independent contractor status, and you may

3 argue that they’re not factually independent contractors,

4 I’d expect that you would -- that -- that that paperwork

5 exists. 

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

7 up with a -- we take one person that has all the relevant

8 waivers and contracts and we say this is representative

9 of all the people. And we -- do you actually a -- you

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

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

12 people. 

13 And you’ve got the -- in other documents

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

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

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

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

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

19 that applies to everybody and we -- it’s the same for

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

21 record. 

22 MR. FELDMAN: That -- that would make sense. 

23 Now, these are -- these are the ones that were produced

24 because of your pretrial disclosures, prehearing

25 disclosures, where you said that you would use the
33

1 documents produced by the -- under the administrative

2 subpoenas. A lot of this stuff was produced under the

3 administrative subpoenas that you served on my client. 

4 MR. BOBERTZ: Right. 

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

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

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

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

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

10 administrative subpoenas for the relevant days, I

11 produced it in -- to the judge. 

12 JUDGE RAWALD: And I guess -- let me just jump

13 in here, what I think -- what this discussion is, that 

14 the 10-99s and the waiver forms are also something that,

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

16 confidential. And I always want to minimize the amount

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

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

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

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

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

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

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

24 that’s in the 10-99s and the waivers, and then have one

25 that’s possibly redacted even and just show how they
34

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

2 confidentiality and still give me what you think you want

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

4 were regarding employees or the non-employees, as Mr.

5 Feldman would argue, who were engaged in the parachuting

6 with the clients on that day. 

7 MR. FELDMAN: That -- that’s a good idea, Your

8 Honor. My concern is I don’t -- I don’t want names and

9 Social Security numbers floating around over FOIA

10 requests out there. 

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

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

13 we’re all on the same page there. 

14 MR. FELDMAN: Yeah. 

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

16 together and work on a proper stipulation that you think

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

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

19 that are quite lengthy and seemingly not all that

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

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

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

23 So if you folks could work on that in the

24 coming days, I’d really appreciate that. 

25 MR. FELDMAN: We can do that. We haven’t had
35

1 an argument yet, Your Honor. 

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

3 MR. BOBERTZ: Yes, I think -- Mr. Feldman, how

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

5 sample document, along with that list and maybe even

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

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

8 it from there. 

9 MR. FELDMAN: That would be good. 

10 MR. BOBERTZ: Okay. 

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

12 you had both R-13 and R-14 -- totally different issue

13 now, trying something different -- a deposition

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

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

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

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

18 thought maybe the full certified copy, rather than the

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

20 prefers. So one of -- they won’t both be introduced.

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

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

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

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

25 doesn’t matter to me. So you just decide which one you
36

1 think is most appropriate. 

2 MR. FELDMAN: All right. 

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

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

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

6 you wanted to advise me of now so we can get -- deal with

7 that? Or did you -- as you’re looking at Mr. Bobertz’

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

9 probably be able to admit without any objection. 

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

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

12 that I have a problem with. 

13 JUDGE RAWALD: Okay. 

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

15 they say, there may be some issues. 

16 JUDGE RAWALD: There may be some Exhibits that

17 you object to their admissibility? Or how -- or object

18 to how I give them weight? 

19 MR. FELDMAN: Most likely both. 

20 JUDGE RAWALD: Okay. 

21 MR. FELDMAN: I mean, these -- these videos are

22 suspect, in my opinion. And -- and I want to fully

23 develop that, because the guy who purportedly took them

24 has -- has motives to -- to slash and kill everybody at

25 Pacific Skydiving and threatened to do that. And so he’s
37

1 not some innocent -- you know, there’s a civil case out

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

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

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

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

6 interest in it. 

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

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

9 admissibility on some of these and accuracy and -- and do

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

11 The rules of evidence as to their admissibility, a lot of

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

13 JUDGE RAWALD: Okay. Then understanding that,

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

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

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

17 that there are some areas where you both worked together

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

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

20 sides draw up a more finalized these are my Exhibit

21 lists, that we then can look at. 

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

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

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

25 record, both sides agree there’s no objection to it, and
38

1 they’re entered in as evidence. 

2 And then those things that you will be

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

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

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

6 witness be the vehicle for admitting them and you can

7 object at that time. 

8 And then the same story for Exhibits that Mr.

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

10 through a witness then we’ll do that. 

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

12 effort by preadmitting things before the trial starts,

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

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

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

16 obviously the videos are the biggest part of the

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

18 we have as to what they purport to show. 

19 JUDGE RAWALD: Okay. 

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

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

22 actually had a civil penalty action against the operator

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

24 law, so it’s new territory. 

25 JUDGE RAWALD: Yeah. And so let’s just move
39

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

2 where we’re really heading. 

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

4 the past where a disinterested person was the witness

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

6 FAA Order No. 98-3. Both parties should make sure you

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

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

9 case, which is did someone parachute through the cloud

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

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

12 That, to me, is the -- issue for me to look at

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

14 multiple occasions, as alleged by the FAA. 

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

16 would the company, as Mr. Feldman articulated, be

17 responsible under the regulations for the actions of a

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

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

20 be prepared to discuss why would the company be

21 responsible or not be responsible for the folks on the

22 plane deciding do you go through the cloud. 

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

24 what is the impact of them being independent contractors,

25 if they are independent contractors, on the case. And
40

1 similarly germane to this are two FAA cases that the

2 parties should be aware of, that’s 2002-20 Federal

3 Express and 2010-8 Husky. Both those cases at least

4 discuss independent contractors, vis-a-vis the role of

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

6 parties should be well-versed in that and be able to

7 discuss why those cases would apply in this case. 

8 And the fourth issue I see is what the amount

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

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

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

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

13 we’ll have to discuss that possibility. 

14 So those are the four main issues as I approach

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

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

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

18 Bobertz?

19 MR. BOBERTZ: A couple things. Just back on

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

21 it 2008? 

22 JUDGE RAWALD: No, 2010-8 Husky. 

23 MR. BOBERTZ: Okay. 

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

25 2002-20 Federal Express. 
41

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

2 you. Just back -- back up a little bit on the

3 administrator’s --

4 MR. FELDMAN: Your Honor, I -- let me just

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

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

7 found and you can distinguish some of them because they

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

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

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

11 JUDGE RAWALD: Right. And there may be more

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

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

14 thought were most -- at least noticeably important to at

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

16 that. 

17 Certainly at the hearing, or if we do pre-trial

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

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

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

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

22 the case in two weeks. 

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

24 Thank you. 

25 JUDGE RAWALD: Now, Mr. Bobertz, you were
42

1 saying? 

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

3 Exhibits that the administrator has on the proposed list, 

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

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

6 also videos that we received from Pacific, basically what

7 I would call Go-Pro videos on the helmet cams of the

8 divers, that we received through a subpoena. 

9 I assume those are going to be -- you’re not

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

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

12 individual video that you -- that you want to introduce.

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

14 MR. FELDMAN: Yeah, I don’t -- having looked at

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

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

17 you know, I --

18 JUDGE RAWALD: Right. And if you -- A-32, A19 33, A-34, A-35, and there’s some photos from that as

20 well, A-36, A-37, A-38, A-39, A-40. So they’re all

21 videos that are clearly taken from the person alongside

22 the jumper where you pay the videographer to go along

23 with them and he’s with them. 

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

25 about, Mr. Bobertz; is that right?
43

1 MR. BOBERTZ: That’s correct. 

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

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

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

5 want to reserve the right to object later? 

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

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

8 JUDGE RAWALD: That’s fine. Okay. So that’s

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

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

11 get the answer at the hearing. 

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

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

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

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

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

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

18 MR. FELDMAN: No, I think they’re -- they’re

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

20 responsibility of the company, the independent contractor

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

22 company, and the civil penalty amount.

23 JUDGE RAWALD: Right. And I think those are

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

25 company being responsible under the text of the
44

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

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

3 drafted, is the company responsible for the actions of

4 the parachutist. 

5 And the question of the independent contractor,

6 does that status them somehow ameliorate any sort of

7 responsibility the company would have. 

8 And so they are two separate questions to me

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

10 when we discuss the question at the hearing. 

11 Okay. So anything else that you folks want to

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

13 first. 

14 MR. BOBERTZ: No, Your Honor. 

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

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

17 concerned about -- two things with dealing with the

18 logistics of the hearing venue. First is security, I --

19 this guy scares me. I -- it scares me that I’m walking

20 around Honolulu with him on the loose, knowing that he --

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

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

23 electronics, which would include laptops and probably

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

25 present our case. That applies for the -- for Mr.
45

1 Bobertz as well. 

2 JUDGE RAWALD: On the courtroom logistics

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

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

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

6 problems with the electronics?

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

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

9 any of the Court audio-visual aids, but I was hoping

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

11 helpful in presenting some of the videos on a larger

12 screen, rather than a small laptop. 

13 JUDGE RAWALD: And what we did when we reserved

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

15 parties to have access to be able to project audio16 visually. And that they will provide that.

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

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

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

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

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

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

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

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

25 to make sure that you have everything you need set up to
46

1 do what we need to do. 

2 MR. FELDMAN: Will we have that courtroom for

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

4 leave -- I was considering bringing a projector just in

5 case theirs wasn’t compatible. 

6 JUDGE RAWALD: I can see that our reservation

7 runs from Monday through Friday. But Kelly will know

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

9 able to facilitate you getting what you need in the

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

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

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

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

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

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

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

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

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

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

20 done what you need to do. 

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

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

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

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

25 So I want to make sure we have one, so it’s taken care
47

1 of. 

2 MR. FELDMAN: Okay. I’ll just -- you know, it

3 would -- it would be a mess if -- for both of us if we

4 didn’t have adequate visual projection capabilities.

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

6 MR. FELDMAN: Or someone with audio knowledge

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

8 videos that the administrator intends to introduce. So

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

10 assistant. 

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

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

13 That was the easy question. And the second --

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

15 or the fear factor of Mr. Hinshaw. 

16 Unfortunately, I can’t do anything regarding

17 the safety of your person while walking around Honolulu. 

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

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

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

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

22 is going to be cross examined at some point. 

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

24 times. Not specifically about -- well, I have talked to

25 him about the Facebook posts and whatnot. It’s -- you
48

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

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

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

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

5 people. So I don’t know. 

6 MR. FELDMAN: Well, he physically assaulted a

7 person that was involved with Pacific Skydiving. 

8 JUDGE RAWALD: Right, I understand the

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

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

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

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

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

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

15 conducting himself around the opposing party, including

16 opposing party’s counsel. 

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

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

19 should be prepared for that. And if he acts

20 inappropriately, that will only hurt his credibility. 

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

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

23 to act accordingly. 

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

25 Court to assist us with the marshals to -- if he becomes
49

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

2 anything like that, but just -- you know, we do know this

3 man at least supposedly has been aggressive with some

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

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

6 moment, Mr. Feldman. 

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

8 hopefully, it won’t become an issue. 

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

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

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

12 we’ll be able to control it. I don’t -- but we’ll be

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

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

15 got the bad guys in handcuffs. 

16 JUDGE RAWALD: Some of them, sir. Sometimes

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

18 So the last issue for me that I want to talk

19 about was the possibility of settlement. Have the

20 parties discussed settlement at all or have you reached

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

22 possibly before we go to Hawaii here? 

23 MR. BOBERTZ: I think we discussed settlement

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

25 that we haven’t recently. I just don’t see us coming
50

1 together, being how far apart we were.

2 JUDGE RAWALD: Okay. Mr. Feldman? 

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

4 discussed anything recently but as this case progresses,

5 it’s basically a case of -- of we deny A, that people

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

7 responsibility of Pacific International Skydiving Center

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

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

10 finding a violation, which was -- you know, frankly, the

11 biggest concern we have. 

12 So, you know, we investigated compromise

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

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

15 this point, no. 

16 JUDGE RAWALD: Okay. I just ask that the

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

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

19 the litigation is expensive, also the Government is

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

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

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

23 what we’re going to take care of. 

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

25 settle, that’s great. If you do settle, please do advise
51

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

2 unfortunate for the Government if I were to fly all the

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

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

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

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

7 immediately so I can change my travel plans accordingly.

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

9 you wanted to say? 

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

11 Honor. 

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

13 anything you want to discuss? 

14 MR. BOBERTZ: Just in the event -- I don’t

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

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

17 contact you, what would be the best way? 

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

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

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

21 forwards to someone else and that’s that 202-366-5121

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

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

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

25 I will be flying out Monday morning, to reach
52

1 Hawaii Monday afternoon and start the case on Tuesday

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

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

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

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

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

7 the Friday before the hearing in case something does come

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

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

10 MR. BOBERTZ: Okay. 

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

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

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

14 the East Coast. 

15 JUDGE RAWALD: Understood. Okay. 

16 MR. FELDMAN: Nothing like a call at 4 a.m.

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

18 Feldman, she’ll -- I’ll have my attorney advisor send the

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

20 that we need to be aware of. 

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

22 Bobertz? 

23 MR. BOBERTZ: Nothing from me. 

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

25 and go off the record. And I will issue a prehearing
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1 conference report. Thank you, folks. 

2 MR. BOBERTZ: Thank you. 

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

4 good afternoon. ‘Bye-bye. 

5 JUDGE RAWALD: You, too. ‘Bye. 

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

7 concluded.)

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4 CERTIFICATE OF REPORTER

5 

6 I, Karen Guy, hereby certify that the foregoing

7 proceedings were recorded by me via digital recording and

8 reduced to typewriting under my supervision; that I am

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

10 the parties to the action in which these proceedings were

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

12 employee of any attorney or counsel employed by the

13 parties hereto, nor financially or otherwise interested

14 in the outcome of the action.

15 

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19 _________________________________

20 KAREN GUY, CER 

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