In The Matter Of: 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

BIRMINGHAM FLIGHT CENTER; jNC: 

Docket No. FAA-2014-0867 

Judge J.E. Sullivan 

Respondent. 

FAA Case No. 201280090053 

REPLY IN SUPPORT OF MOTION TO COMPEL 

On October 6, 2015, the FAA filed a Motion to Compel concerning Respondent's failure 

to fully answer, or answer at all, nine of the FAA's interrogatories. Respondent made no 

response to this motion within the '10 day period provided for in 14 C.F.R. § l3.218(d). 

However, by documents mailed on November 7, 2015,1 Respondent now seeks to untimely 

respond to the FAA's motion. Respondent's response should be disregarded, and the Motion to 

Compel should be granted. Further, even if the substance of Respondent's response is taken into 

consideration, the Motion to Compel should be granted, as Respondent has asserted to legitimate 

basis for refusing to respond. 

Respondent's Response is Untimely 

. Respondent'~ respeome to the Motion to Compel was untimely and should be disregarded. 

Section 13.218( d) of the rules of practice for F A.A civil penalty hearings provides that "Any 

party may file an answer, with affidavits or other evidence in support of the answer, not later 

than 10 days after service of a written motion on that party." 14 C.F.R. § l3.218(d). The date of 

1 The documents were received by the FAA on November 16, 2015. 

1 
service is the date of mailing. 14 C.P.R. § 13.2ll(d). Where service is by certified mail, an 

additional five days are added to any response period for that filing. 14 C.P.R.§ 13.2ll(e). 

The FAA's Motion to Compel was served on Respondent via certified mail on October 6, 

2015. See Motion to Compel at 6 (certificate of service). The time frame to respond to this 

motion was 10 days, with an additional 5 days provided because service was via certified mail. 

14 C.P.R. §§ 13.21l(e), 13.218(d). Accordingly, Respondent's response to the Motion to Compel 

was due on October 21, 2015. Respondent did not respond to the Motion to Compel until 

November 7, 2015, 17 days after the deadline, and over a month after the motion was served. 

Respondent has provided no explanation for failing to timely respond to the FAA's Motion to 

Compel. Respondent's response should be disregarded, and the Motion to Compel should be 

granted. 

Respondent Should Be Compelled To Disclose the Substance of Witness Testimony 

Through interrogatories #1 and #ll (and interrogatory #2 from the FAA's first set of 

interrogatories), the FAA sought information on the knowledge and expected testimony of 

individuals identified by Respondent in its initial disclosures and that it might call as witnesses. 

Respondent declined to provide information on the substance of this knowledge and expected 

testimony, instead providing only general topics (e.g., saying that an individual would testify 

about a flight but not what he would say about the flight). 

In its response, Respondent notes that most of the individuals were interviewed by FAA 

Aviation Safety Inspectors investigating this matter, and that the FAA documented these 

interviews. See Response at 1-3. This is tme, but it does not absolve Respondent of its 

responsibility to respond to interrogatories. The FAA investigators made written records of 

interviews, but it is possible that Respondent disagrees with the contents of these records. It is 

2 
possible that witnesses may expect to testifY contrary to the information they provided to the 

investigators. Some of the witnesses provided information during one interview that was not 

consistent with information they provided during another interview. It is possible that individuals 

have knowledge that was not disclosed during their interviews with the investigators, or that they 

expect to testify about facts not disclosed to the investigators. The FAA is entitled to know 

Respondent's position on the knowledge of these witnesses, and is entitled to know what the 

testimony of these witnesses may be. 

It is noteworthy that, if Respondent believes that the information contained in the 

investigators' records of conversation is a complete and accurate description of the knowledge 

and expected testimony at issue, then Respondent can easily answer this interrogatory by 

reference those statements. For example, Respondent might respond that a particular witness's 

expected testimony is entirely described by a particular record of conversation with that witness. 

If there is nothing beyond what is contained in the documents in the EIR, then Respondent can 

fulflll its obligations by specific reference to applicable documents. If there is knowledge or 

expected testimony beyond what is contained in those documents, then the FAA is entitled to 

know about it. 

Additionally, Respondent in its response for the first time objects to these interrogatories 

as purportedly calling for a narrative, as overly broad, and unduly burdensome. See Response at 

3-4; see also Motion to Compel Exhibits A, C (Respondent making no objection to 

interrogatories 2, 1, and 11 ). Respondent waived these objections by not making them at the 

time. "The grounds for objecting to an interrogatory must be stated with specificity. Any ground 

not stated in a timely objection is waived unless the court, for good cause, excuses the failure." 

F.R.C.P. 33(b)(4); see also 14 C.F.R. § 13.220(k) (providing that "If a party objects to an 

3 
interrogatory, the party shall state the objection and the reasons for the objection."). "It is well 

established that a failure to object to discovery requests within the time required constitutes a 

waiver of any objection." Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 

(9th Cir. 1992). Not only did Respondent fail to make any objection to the interrogatories at the 

time, it failed to make any objection when it responded to the FAA's concerns about the 

improper nature of its discovery r~sponses. See Motion to Compel Exhibit E at 3. And, of course, 

Respondent did not timely object (or respond at all) in response to the FAA's Motion to Compel. 

These newf01md objections should be disregarded. 

However, even if these objections are considered, they are unfounded. Respondent claims 

that the FAA has propounded a "blockbuster" interrogatory, Response at 4, but a question 

seeking infom1ation on the substance of potential witness testimony is one of the most basic 

interrogatories, propounded in ahnost any discovery request - including by Respondent in this 

case. See Attachment Fat~ 2 (asking the FAA to state the substance of individuals' knowledge 

of this matter); ~ 7 (asking the FAA to provide the substance of expected testimony by all 

witnesses)2 

Indeed, the interrogatories at issue here bear little resemblance to the "blockbuster" 

interrogatory referenced in Grynberg v. Total SA., Inc., Case No. 03-CV-01280-WYB-BNB (D. 

Colo. May 3, 2006), which was: 

Identify each denial of a material allegation and each affirmative defense in your 

pleadings and for each: 

(a) state all material facts upon which you base denial of affirmative defense; 

2 It is noteworthy that while Respondent complains that it is being asked to respond to such interrogatories where the 

FAA has extensive records of conversation, the Respondent itself propounded nearly identical interrogatories even 

though Respondent had aheady been provided with written descriptions by the FAA investigators of their 

knowledge of eveuts, including records of conversation, inspector statements, and the statement of the case. The 

FAA primarily responded to these intetTOgatories by referring Respondent to its investigators' extensive 

documentation. As noted above, Respondent can respond to the FAA's interrogatories in the same manner, 

assuming that Respondent agrees with the descriptions contained in those documents. 

4 
(b) state the names, addresses, and telephone numbers of all material persons who 

have knowledge of those facts; and 

(c) identify all material documents and other tangible things which support your 

denial or affirmative defense, and state the name, address and telephone numbers 

of the person who has each document. 

The recipient of that interrogatory objected on the basis that it called for attorney work product, 

and called on Respondent to literally identify every single relevant fact and present every aspect 

of its entire case, all in response to a single interrogatory. The district court sustained the 

objection in Grynberg. But the FAA has not asked Respondent a single interrogatory requiring 

Respondent to lay out its entire case in detail, organized by topic. The FAA has simply asked 

Respondent to provide information on the substance of witness testimony. 

Similarly, in Hilt v. SFC, 170 F .R.D. 182 (D. Kan. 1997), which was relied upon by the 

court in Grynberg, the court did not grant a motion to compel concerning interrogatories that 

sought "each and every fact supporting all of the allegations" in the complaint. Again, this is not 

the interrogatory propounded by the FAA. Notably, the court in Hilt did grant the motion to 

compel on an interrogatory requiring the party to "For each individual identified [as being in 

possession of evidence or knowledge on the case], describe the substance of the evidence or 

knowledge possessed by that individual as you understand it." 

The FAA propotmded inten·ogatories seeking the substance of expected witness 

testimony and the substance of knowledge possessed by witnesses. Respondent has refused to 

provide any such information, instead limiting its responses to the general topics of potential 

testimony. These routine inten·ogatories must be responded to, and are not unduly burdensome 

(indeed, as noted above, Respondent can respond to these interrogatories by reference to existing 

documents, but must actually make that response, see Hilt v. SFC (when party referenced 

existence of documents in response to motion to compel, requiring party to supplement its 

discovery responses to affirmatively identify and incorporate those documents). 

5 
Respondent Should Be Required To Respond on the Accuracy of Documents 

Through interrogatories #2, #7, #8 and #9, the FAA sought Respondent's position on the 

accuracy of certain specific documents. See Motion to Compel Attachment B. At the time, 

Respondent objected to these requests as overly broad, vague, and calling for a narrative 

response. See Motion to Compel Attachment Cat 'lf'lf 2, 7, 8, 9. Respondent also objected because 

it would require Respondent to review the documents line by line. !d. Respondent incorporates 

these objections into its response. See Response at 4. 

These objections are unfounded. Respondent asserts that the requests are "overly broad" 

and "vague," but provides no support of this contention, and it is unclear how an examination of 

documents specifically about the flights at issue in this case could be "overly broad" or how it is 

"vague" to be asked to opine whether statements are true or false. 

With regards to its argument on burden, Respondent once again relies on Grynberg, 

which once again does not actually discuss the kind of interrogatory propounded here. The 

impermissible "blockbuster" interrogatories referenced in Gynberg and Hilt are specifically 

interrogatories that ask a party to marshal every single fact about an entire claim or case. The 

interrogatories at issue here ask Respondent to look at specific documents and state whether 

Respondent believes the statements contained in those documents are false, inaccurate, or 

otherwise misleading. This does require a "line by line" review, in that if Respondent states that 

the entire statement is accurate and complete, then Respondent is affirming the accuracy of every 

line in that statement. But this is a pem1issible thoroughness, not a "blockbuster" asking 

Respondent to marshal every possible relevant fact in a single interrogatory response. 

6 
Respondent Must ClarifY Whether It Takes Issue With The Sanction Selected 

The FAA's interrogatory #4 asked Respondent to identify any basis that it asserted that 

the penalty proposed in this case was inappropriate "even if the FAA proves the allegations in the 

Complaint." Motion to Compel Attachment B (emphasis added). Respondent responded only 

that it disagreed with the allegations in the Complaint. Motion to Compel Attachment C. The 

FAA pointed out that this response did not address the question asked, but Respondent declined 

to supplement. Motion to Compel Attachments D, E. In the Motion to Compel, the FAA again 

pointed out that Respondent was not clearly addressing the question asked. Motion to Compel at 

3-4. Despite all of the above, Respondent's response to the Motion to Compel again focuses 

exclusively on Respondent's disagreement with the allegations in the Complaint. Response at 5. 

Any civil penalty case presents (at least) two potential components. Did the Respondent 

commit the violations alleged? If the Respondent did commit the violations alleged, is the 

sanction proposed appropriate? It is frequently the case that a Respondent will present some sort 

of argument why the Respondent believes a lower penalty should be imposed. It is also 

frequently the case that a Respondent is largely unconcerned with the precise monetary sanction, 

and focuses only on whether there will be a finding of violation. A Respondent is free to adopt 

either litigation strategy, but regardless of the Respondent's choice, the FAA is entitled to know 

what, if any, basis the Respondent will assert for arguing that the penalty is unreasonable, 

arbitrary, capricious, or otherwise contrary to law. 

Here, the FAA has specifically asked Respondent to address what, if any, basis it will 

assert for such an argument. If Respondent takes issue with the sanction selected, then the FAA 

is entitled to know what basis Respondent has for such an assertion. If this aspect of the case will 

not be contested, then the FAA is entitled to that information as well. Instead of simply 

7 
answering the question asked, however, Respondent has chosen to repeatedly answer a question 

that was not asked. The FAA's Motion to Compel should be granted, and Respondent should be 

required to state any basis it has for contesting the sanction selected, or clearly state that it will 

not be contesting this issue. 

Respondent Must Provide Information On Its Relationship With The Pilots 

The FAA's interrogatory #6 sought information on Respondent's relationship with Justin 

Lollar and Shawn Flowers, the pilots of the aircraft on the day at issue in this case. Motion to 

Compel Attachment B. Respondent made no objection to this request, but instead generally 

referred the FAA to prior discovery responses and to the EIR as a whole. Motion to Compel 

Attachment C. The FAA pointed out problems with this to Respondent, but Respondent declined 

to supplement its response. Motion to Compel Attachment D, E. In the Motion to Compel, the 

FAA reiterated these arguments, noted that the available evidence indicated that Lollar and 

Flowers were Respondent's employees dnring this time frame, but that the FAA was entitled to 

confirmation from the Respondent on this point (or notice that Respondent disputed this point). 

Motion to Compel at 4-5. 

In its response to the Motion, Respondent asserts for the first time that the interrogatory is 

"overly broad" and that it is, apparently, unable to comprehend what the words in the 

interrogatory mean. Respondent waived these objections by not making them at the time. "The 

grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated 

in a timely objection is waived unless the court, for good cause, excuses the failure." F.R.C.P. 

33(b)(4); see also 14 C.F.R. § 13.220(k) (providing that "If a party objects to an interrogatory, 

the party shall state the objection and the reasons for the objection."). "It is well established that 

a failure to object to discovery requests within the time required constitutes a waiver of any 

8 
objection." Richmark, 959 F.2d at 1473 (9th Cir. 1992). Not only did Respondent fail to make 

any objection to the interrogatories at the time, it failed to make any objection when it responded 

to the FAA's concerns about the improper nature of its discovery responses. See Motion to 

Compel Exhibit E at 3. And, of course, Respondent did not timely object (or respond at all) in 

response to the FAA's Motion to Compel. These newfound objections should be disregarded. 

Regardless, these objections are not well founded. Respondent provides no specificity as 

to how this interrogatory is "overly broad." Even if Respondent thought that the time scope of 

the interrogatory (the second half of2012) was too broad, Respondent could still have responded 

with regards to the month of the flights (September 20 12) or even the day of the flights 

(September 18, 2012). And, of course, if Respondent had made such an objection in a timely 

fashion- when discovery was still ongoing- the FAA could have 'corrected' any purported 

over-broadness in the interrogatory. However, Respondent does not appear to reference an overbroadness in the time scope of the interrogatory, but simply uses this term as a legal buzzword, 

detached from any particular meaning. 

It is also unclear why Respondent asserts that it has no idea what the FAA is asking for. 

Describing the relationship and involvement between a person and the company he works for is 

not a difficult concept. The individual might be an employee, an independent contractor, an 

owner, a consultant, or have no relationship at all. Respondent should be compelled to answer 

this interrogatory, stating for the record whether Lollar and Flowers were employees in particular 

positions, or that they had some other relationship with the company. 

Conclusion 

As articulated in the FAA's Motion to Compel, Respondent's responses to nine particular 

interrogatories were deficient, with Respondent providing incomplete answers, or no answers at 

9 
all. Respondent declined to timely respond to that motion. Respondent's untimely response 

should be disregarded, and the Motion to Compel should be granted in full. Even if Respondent's 

response is considered, however, the Motion to Compel should be granted. Respondent should be 

required to provide information on the substance of expected witness testimony, on the accuracy 

(or lack thereof) of the statements in certain documents, about whether Respondent takes any 

issue with the sanction selected, and on the particular relationship between Respondent and the 

pilots of the flights in question . 

.V"\ 

Respectfully submitted this~ day of November, 2015. 

CHRIS 

~ TOP 

Attorney 

Office of the Chief Counsel, Enforcement Division, Southern Team 

10 
CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Reply in Support of Motion to Compel was sent: 

original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1 000 

one copy via certified mail and facsimile to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Paul R. Borth, Esq. 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025 

facsimile: (815) 356-7042 

~ TIFFANY MCDO 

l Legal Assistant 

NOV 1 8 2015 

Dated 

11 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS, WASHINGTON, DC 

MICHAEL P. HUERTA, Administrator 

Federal Aviation Administration 

Complainant 

v. 

) 

) 

) 

) 

) 

) 

BIRMINGHAM FLIGHT CENTER, INC. ) 

Respondent. 

) 

) 

Docket No. FAA-2014-0867 

Judge J.E. Sullivan 

FAA Case No, 2012S0090053 

RESPONDENT'S INTERROGATORIES DIRECTED TO COMPLAINANT 

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

hereby requests that the Administrator provide the following discovery answers within 

(30) days, in accordance with Section 821.19 of the Rules of Practice in Air Safety 

Proceedings and Rules 33 and 34 of the Federal Rules of Civil Procedure: 

PLEASE NOTE THE FOLLOWING SPECIAL INSTRUCTIONS AND DEFINITIONS: 

A. In answering these interrogatories, Complainant shall include all information 

known to them, their attorneys, agents, servants, employees, representatives, private 

investigators and all others who are in possession of or who may have obtained 

information for or on its behalf. 

B. A request to "Name" or "Identify" a person is deemed to require the person's full 

name, last known address, telephone number, job title, employer and employer's business 

address. If the job title, etc., are set out in another answer, their repetition is unnecessary. 

C. The term "document" as used in these interrogatories means any book, pamphlet, 

periodical, letter, report, memorandum, e-mail transmission, notation, message, record, 

study, working paper, chart, graph, index, tape, minutes, contract, lease, invoice, record 

of purchase or sale, correspondence, telegram, cable, electronic or other transcription or 

taping of telephone or personal conversations or conference, and any and all other 

written, printed, typed, punched, taped, filmed or graphic matter, however produced or 

reproduced. 

INTERROGATORIES: 

I. Identify each person who signed, prepared, participated in the preparation of the 

answers to these interrogatories. 

liP age GOVERNMENT 

EXHIBIT 

f 
2. Identify all persons who may have or claims to have knowledge of the events 

giving rise to this complaint or related events occurring thereafter? If so, please state the 

general substance of his or her knowledge. 

3. Was an investigation conducted of any portion of the Complainant's claims? If so, 

state for each such investigation; 

a) The identity of the person who conducted it; 

b) The identity of the person who requested the investigation to be made; 

c) The date on which the investigation was conducted; 

d) The places where the investigation was conducted; and 

e) The identity of each person now having custody of any written report or 

document made concerning the investigation. 

4. State whether any witness or the Respondent made any oral statement to you or 

anyone else concerning the factual basis of this complaint. If so, as to each such 

statement: 

a) Identify the person who made the statement, 

b) Whether or not the statement is in written form, 

c) Identify the person spoken to, 

d) Identify when and where the statement was made, and 

e) Identify the individual(s) who is se custody each such written statement. 

5. Identify all individuals whom the Administrator relies to support his Complaint 

that the Respondent violated the Federal Aviation Regulations as charged in the 

Complaint. 

6. Identify each and every person known or believed by you to have any knowledge 

of relevant facts including, but not limited to, those persons with knowledge concerning 

the allegations concerning the incident(s) in question and/or the allegations contained in 

the Complaint. 

7. Identify all witness( es) whom you expect to call to give testimony in this matter, 

and provide the substance of the facts and/or opinions to which he or she is expected to 

testify. 

8. Please describe, in detail, each document or tangible evidence relied upon to 

support the Administrator's claim that Respondent violated the Federal Aviation 

Regulations as charged in the Complaint, and identify the person having custody of each 

such document or tangible evidence. 

9. Identify and describe in detail, all documents or tangible evidence that you intend 

to present at the hearing of this matter including the identity of the person(s) who will be 

called upon to lay the foundation for such documents or tangible evidence. 

10. Identify and describe in detail, all documents or tangible evidence that you 

contend are self-authenticating, are considered judicial admissions, for which 

2JPage 
Complainant will seek judicial notice, or otherwise do not require foundation at the 

hearing of this matter. 

11. Identify all FAA Letters of Interpretation, NTSB Orders and case law that you 

intend to rely upon or cite at the hearing of this matter. 

Demand to Supplement: Pursuant to Federal Rules, the party answering these 

interrogatories is hereby requested to seasonably supplement or amend any prior answer 

or response whenever new or additional information subsequently becomes known to that 

party or the party's attorneys or agents. 

Respectfully submitted, 

BARNETT & BORTH, LLC 

Dated: April20, 2015 

Paul R. Borth 

Counsel for Respondent 

Barnett & Borth, LLC 

800Waukegan Road 

Suite 200 

Glenview, IL 60025 

Tel. (847) 724-5520 

Fax (815) 356-7042 

prb@bamettlegal.com 

31Page 
CERTIFICATE OF SERVICE 

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

RESPONDENT'S INTERROGATORIES DIRECTED TO COMPLAINANT addressed 

to: 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

VIA FAX: 202-366-7536 

Deitrick H. Johnson 

Complainant 's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 Southern Region 

1701 Columbia Avenue College Park, GA 30337 

TEL: 404-305-5200 

FAX:404-305-5223 

Service via: deltrick.h.johnson@faa.gov 

Dated: Apri120, 2015 

Paul R. Borth 

Counsel for Respondent 

Barnett & Borth, LLC 

800Waukegan Road 

Suite 200 

Glenview; IL 60025 

Tel. (847) 724-5520 

Fax (815) 356-7042 

prb@barnettlegal.com 

41Page