In The Matter Of: U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

BIRMINGHAMFLIGHT CENTER; jNC: DocketNo. FAA-2014-0867 Judge J.E. Sullivan Respondent. FAA CaseNo. 201280090053 REPLY IN SUPPORT OF MOTION TO COMPEL OnOctober 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 ifthe substance ofRespondent's response is taken into consideration, the Motion to Compel shouldbe granted, as Respondenthas asserted to legitimate basis for refusing to respond. Respondent'sResponse is Untimely

. **Respondent'~** respeome to the Motionto Compel was untimely and shouldbe disregarded. Section 13.218( d) of the rules of practice for FA.A civil penalty hearings provides that "Any party may file an answer, with affidavits or other evidence in support ofthe answer, not later than 10 days after service of a written motion on thatparty." 14 C.F.R. 

### § l3.218(d). The date of

1 The documents were receivedbythe 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'sMotionto Compel was served onRespondentviacertified 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 Motionto 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. RespondentShouldBe 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 ofthis knowledge and expected testimony, instead providing only general topics (e.g., saying that an individual would testify about aflightbutnotwhat he would say aboutthe flight). In its response, Respondent notes that most ofthe 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 ofthese records. It 

### is

2possible 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 informationtheyprovided during another interview. Itispossiblethat individuals have knowledge that was not disclosed during their interviews withthe investigators, or thatthey expect to testify about facts not disclosed to the investigators. The FAA is entitled to know Respondent's position on the knowledge ofthese witnesses, and is entitled to know what the testimony ofthese witnesses maybe. It is noteworthy that, if Respondent believes that the information contained in the investigators' records of conversation is a complete and accurate description ofthe 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 testimonyis entirely described by a particularrecord ofconversationwiththat witness. 

## If there is nothing beyond what is contained inthe documents in the EIR, then Respondent can fulflll its obligations by specific reference to applicable documents. Ifthere is knowledge or expected testimony beyond what is contained in those documents, then the FAA is entitled to know about it. Additionally, Respondentin 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 objectingto aninterrogatory 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

3interrogatory, 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 ofany objection."Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). Not only did Respondent fail to make any objectionto the interrogatories at the time, it failed to make any objection when it responded to the FAA's concerns about the impropernature ofits discovery **r~sponses.** See Motionto Compel ExhibitE at 3. And, ofcourse, Respondent didnottimely object (orrespond at all) inresponse to the FAA'sMotionto Compel. These newf01md objections shouldbedisregarded. However, evenifthese 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 ofpotential 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 ofindividuals' knowledge ofthis 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), whichwas: Identify each denial ofa material allegation and each affirmative defense in your pleadings andfor each: (a) state all material facts uponwhichyoubase denial ofaffirmative defense;

2 Itis noteworthy thatwhile Respondentcomplainsthatitis being askedtorespond to such interrogatorieswhere the FAA has extensive records ofconversation, the Respondent itselfpropoundednearly identical interrogatories even though Respondenthad aheadybeen providedwithwritten descriptions bytheFAAinvestigators oftheir knowledge ofeveuts, includingrecords ofconversation, inspector statements, andthe statementofthe case. The FAAprimarilyrespondedtothese intetTOgatoriesbyreferringRespondentto its investigators' extensive documentation. Asnoted above, Respondentcanrespondto theFAA'sinterrogatories in the samemanner, assumingthatRespondent agrees withthe descriptions contained inthose documents. 4(b) state the names, addresses, andtelephone numbers ofall material persons who haveknowledgeofthose facts; and (c) identify all material documents and other tangible things which support your denial or affirmative defense, and state the name, address andtelephone numbers ofthe personwho has eachdocument. The recipient ofthatinterrogatory objected onthe basis that itcalled for attorney workproduct,
andcalled on Respondent to literally identify every singlerelevantfact 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 Respondentto provideinformation onthe substance ofwitnesstestimony. 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 ofthe 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 knowledgepossessedbythatindividual as youunderstand it." The FAA propotmded inten·ogatories seeking the substance of expected witness testimony and the substance ofknowledge possessed by witnesses. Respondent has refused to provide any such information, instead limiting its responses to the general topics ofpotential testimony. These routine inten·ogatories must be responded to, and are not unduly burdensome (indeed, as noted above, Respondent canrespondtothese interrogatoriesby 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 

# I discovery responses to affirmatively identifyand incorporatethose documents). 1



### 5 

# I 

# I I 

# I I 

# I I 

# IRespondentShouldBe RequiredTo Respondon theAccuracy of Documents Through interrogatories #2, #7, #8 and #9, the FAA sought Respondent's position onthe 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 Motionto CompelAttachment Cat

## 'lf'lf 2, 7, 8, 9. Respondent also objectedbecause it would require Respondent to review the documents line by line. 

### !d. Respondent incorporates these objections into itsresponse. See Response at4. These objections are unfounded. Respondent asserts that the requests are "overly broad" and "vague," butprovides no support ofthis contention, and itis unclear how an examination of documents specifically aboutthe flights at issue inthis case couldbe "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 

### ifRespondent states that the entire statement is accurate and complete, thenRespondent is affirming the accuracy ofevery line in that statement. But this is a pem1issible thoroughness, not a "blockbuster" asking Respondentto marshal everypossiblerelevantfact ina single interrogatory response.

6RespondentMust ClarifY WhetherIt Takes Issue With The Sanction Selected The FAA's interrogatory #4 asked Respondent to identify any basis that it asserted that the penaltyproposedinthis case was inappropriate "even 

## if the FAAproves 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 outthat Respondent was not clearly addressing the question asked. Motion to Compel at 3-4. Despite all ofthe above, Respondent's response to the Motion to Compel again focuses exclusively onRespondent's disagreementwiththe allegations 

### inthe 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? Itis 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 Respondentis largely unconcerned with the precise monetary sanction, and focuses only on whether there will be a finding ofviolation. A Respondent is free to adopt either litigation strategy, but regardless ofthe 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 contraryto law. Here, the FAA has specifically asked Respondent to address what, if any, basis it will assert for such an argument. IfRespondent takes issue with the sanction selected, then the FAA is entitledto know whatbasis Respondenthas for such an assertion. Ifthis aspect ofthe case will
not be contested, then the FAA is entitled to that information as well. Instead of simply

7answering 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. RespondentMustProvide Information On Its Relationship With The Pilots The FAA's interrogatory #6 sought information onRespondent's relationship with Justin Lollar and Shawn Flowers, the pilots ofthe 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 outproblems 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

8objection." 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 itresponded to the FAA's concerns about the improper nature of its discovery responses. See Motion to Compel Exhibit E at 3. And, ofcourse, Respondent did not timely object (or respond at all) in response to the FAA'sMotionto 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 ifRespondent thought that the time scope of the interrogatory (the second halfof2012) 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 ofthe interrogatory, but simply uses this term as a legal buzzword, detached from any particular meaning. Itis 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 inparticular positions, or that they had some other relationship with the company. Conclusion As articulated inthe FAA's Motion to Compel, Respondent's responses to nine particular interrogatories were deficient, with Respondent providing incomplete answers, or no answers at

9all. Respondent declinedto timelyrespondto thatmotion. Respondent's untimely response shouldbe disregarded, andthe Motion

### to Compel shouldbe granted infull. EvenifRespondent's response is considered, however, theMotionto Compel shouldbe granted. Respondent shouldbe requiredto provide informationonthe substance ofexpectedwitness testimony, onthe accuracy (orlackthereof) ofthe statements incertaindocuments, about whether Respondenttakes any issuewiththe sanction selected, and onthe particularrelationship between Respondentandthe pilots oftheflights 

### in question.

## .V"\ Respectfully submitted

# this~ day ofNovember, 2015.



# ~ CHRISTOP Attorney Office ofthe ChiefCounsel, EnforcementDivision, SouthernTeam

10CERTIFICATE OF SERVICE I hereby certifY that the foregoing Reply in Support ofMotion 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 2W1000 one copyviacertified mail and facsimile to: The Honorable J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 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 18 2015 Dated



### 11U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS, WASHINGTON, DC MICHAEL P. HUERTA, Administrator Federal Aviation Administration Complainant v. ) ) ) ) ) ) BIRMINGHAMFLIGHT CENTER, INC. ) Respondent. ) ) DocketNo. FAA-2014-0867 Judge J.E. Sullivan FAA Case No, 2012S0090053

RESPONDENT'S INTERROGATORIES DIRECTED TO COMPLAINANT Respondent, Birmingham Flight Center, byits attorneys, Barnett & Borth, LLC., hereby requests that the Administratorprovide the following discovery answers within (30) days, in accordance with Section 821.19 ofthe Rules ofPractice in Air Safety Proceedings and Rules 33 and 34 ofthe Federal Rules ofCivil 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 ofor who mayhave 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, lastknown address, telephone number,job title, employer and employer's business address. Ifthejobtitle, 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 ofpurchase or sale, correspondence, telegram, cable, electronic or other transcription or taping oftelephone 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 ofthe answers to these interrogatories. liP age GOVERNMENT EXHIBIT



# f2. Identify all persons who may have or claims to have knowledge ofthe events giving rise to this complaint or related events occurringthereafter? Ifso, please state the general substance ofhis or herknowledge. 3. Was an investigation conducted ofany portion ofthe Complainant's claims? Ifso, state for each such investigation; a) The identity ofthe personwho conducted it; b) The identity ofthe personwho 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 ofeach person now having custody ofanywritten report or documentmade concerning the investigation. 4. State whether any witness or the Respondent made any oral statementto you or anyone else concerning the factual basis ofthis complaint. Ifso, as to each such statement: a) Identify the person who made the statement, b) Whether or notthe statement is in written form, c) Identifythe person spokento, d) Identify when and where the statement was made, and e) Identifythe 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 violatedthe Federal Aviation Regulations as charged in the Complaint. 6. Identify each and every person known or believed by you to have anyknowledge ofrelevant facts including, butnot limited to, those persons withknowledge concerning the allegations concerningthe incident(s) in question and/or the allegations contained in the Complaint. 7. Identify all witness(es) whom you expectto call to give testimony in this matter, and provide the substance ofthe facts and/or opinions to which he or she is expected to testify. 8. Please describe, in detail, each document ortangible evidence relied upon to supportthe Administrator's claim that Respondent violated the Federal Aviation Regulations as charged in the Complaint, and identify the personhaving custody ofeach such document ortangible evidence. 9. Identify and describe in detail, all documents ortangible evidence that you intend to present atthe hearing ofthis matter including the identity ofthe 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 consideredjudicial admissions, for which 2JPageComplainant will seekjudicial notice, or otherwise do notrequire foundation at the hearing ofthis matter. 11. Identify all FAALetters ofInterpretation, NTSB Orders and case law that you intend to rely upon or cite at the hearing ofthis matter. Demand to Supplement: Pursuantto Federal Rules, the party answering these interrogatories is hereby requestedto seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party orthe 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

31PageCERTIFICATE 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 ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 VIA FAX: 202-366-7536 Deitrick H. Johnson Complainant 's Counsel Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue 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

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