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JEFFREY M. HARPER 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LIND A VENUE SOUTHWEST 

RENTON, WASHINGTON 98057 

TELEPHONE: (425) 227-2161 

FACSIMILE: (425) 227-1007 

RECEIVED 

AUG- 6 2012 

HEARING DOCKET 

UNITED STATES OFAMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matters of: 

Sky West Airlines, Inc. 

To: ·The Honorable Richard C. Goodwin 

FAA Case No. 2011NM060011 

DMS No. F AA-2011-0485 

FAA Case No. 2011NM060010 j::?. 

DMS No. FAA-2011,-0486 

FAA Case No. 2011NM060033 

DMS No. FAA-2011-0680 &.0779 

COMPLAINT'S OPPOSITION TO 

RESPONDENT MOTION FOR 

PROTECTIVE AND/OR CONFIDENTIAL 

ORDER 

Judge Richard C. Goodwin 

COMPLAINT'S OPPOSITION TO 

RESPONDENT MOTION FOR 

PROTECTIVE AND/OR CONFIDENTIAL ORDER 

Complainant, through undersigned counsel, opposes Respondent's Motion for a 

protective or confidential order pursuant to Rules of Practice 13.220(g) and (h), and moves to . 

deny Respondent's motion. 

Protective Order 

Respondent has moved under Rules of Practice 13.220(h) for entry of a Protective Order.· 

A party seeking entry· of a protective ·order must show the order is necessary to protect the 

Complaint's Opposition to 

Respondent Motion for Protective and/or Confidential Order 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486, -0680, and -0779 

Page 1 oflO 

JEFFREY.M.HARPER, FAA ATTORNEY 

TEL: (425) 227-2i61; FAX: (425) 227-1007 
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moving party from "aimoyance, embarrassment, oppression, or undue burden or expense.". Rule 

13.220(h), see also Fed. R. Civ. P. 26(c) (establishing the same standard). Federal Rule of Civil 

Procedure 26( c )(1) requires "go0d cause" to be shown before a protective order is entered; this 

generally means a showing that the discovery request is considered likely to oppress an adversary 

or might otherwise impose an undue burden. See, e.g., Iris Corp. Berhad v. US., 84 Fed. Cl. 

489,492 (2008); Forest Prods. Nw., Inc. v. US., 453 F.3d 1355, 1361 (Fed. Cir. 2006). 

Respondent does not argue Complainant's discovery request itself is intended to cause 

aimoyance, embarrassment, or undue burden or expense. The relevant discovery requests made 

by Complainant are: 

• Request for Production No. 1, which requests copies of documents relating to assertions 

made by Respondent which Respondent anticipates raising in this matter. 

• Requests for Production Nos. 2 and 5, which collectively request copies of all 

dqcuments Respondent anticipates offering into evidence at the hearing. 

• Request for Production No.3, which requests copies of all documents which support 

Respondent's affirmative defenses. 

Far from being unduly burdensome, Complainant simply requests ~hat Respondent 

produqethe materi~l it anticipates presenting in the course ofthe case. Requiring Respondent to 

produce its evidence prior to trial is not oppressive, it is the raison d'etre of the discovery 

process. 

Resp.ondent indicates that the documents in question are solely relevant to the question of 

mitigation. Resp't Mot. at 12. The production of these documents would not result in undue 

burden or expense; Respondent has already identified the documents in question and provided 

copies under seal to the docket. Nor does the mere fact ofcomplying with Complainant's 

discovery request appear to cause Respondent any annoyance, embarrassment, or oppression; in 

fact, Respondent expressly represents their desire to comply with the discov~ry requests. Resp't 

Mot. at2. 

Complaint's Opposition to 

Respondent Motion for Protective and/or Confidential Order 

In the ·Matters of Sky West Airlines, Inc. 

DMSNos. FAA-2011-0485, 0486, -0680, and -0779 

Page2 oflO 

. JEFFREYI-y1. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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Under the circumstances, there is no need to place any sort oflimit envisioned by Rule 

13.220 on the discovery process.1 Complainant's discovery requests are entirely appropriate and 

not propounded for an imprbper purpose. They seek to "discover information that relates to the 

claim or defense of any party .... " Ru1e 13 .220( e). Thus, Respondent's motion for a protective 

order should be denied. 

Confidential Order 

Respondent.requests that the ALJ enter a confidential order, for the sanie reasons it seeks 

a protective order. Respondent has failed to meet its burden to demonstrate why a confidential 

order is· necessary for the same reasons described above. 

1. The documents in question are not of a nature that would qualify for protection 

under a confidendal order. 

A confidential order may be entered for information that is related to a trade secret, 

confidential or sensitive material, competitive or commerical information, proprietary dat~, or 

information on research and development. Ru1e 13 .220(g). Complainant is at a disadvantage in 

responding to Respondent's motion. Complainant does not have access to the documents at issue 

to determine whether, in Complainant's view, they may or may not qualify for protection by a 

confidentl.al order. Respondent (understandably) provided the documents only to t)le court under 

seal. A review of the summary of the documents strongly suggests that some of the documents 

may not qualify for the protection of the confidential order. 

As an example, Respondent seeks confidentiality for the 2009-2011 Customer Service 

Training Conference Schedules. Resp't Mot. at 3-5. Complainant questions whether a 

document, which presumably lists the times, locations,. and subject matter·ofthe training, falls 

within any of the categories of information protectable by a confidential order- particularly 

where Respondent's Motion goes on to qescribe the subject matter of a number of the 

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49 1 The limits listed in the rule include denying Complai:rit's discovery request, limiting its scope, precluding inquiry 

5o into certain matters, or designating a time, place or method for Discovery. 

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Complaint's Opp~sition to 

Respondent Motion for Protective and/or Confidential Order 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. F AA-2011-0485, 0486, -0680; and -0779 

Page 3 of 10 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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presentations presumably listed in the schedules? Because the subject matter of the presentations 

are disclosed in the unsealed portions of Respondent's motion, they are clearly not confidential, 

sensitive, competitive or commercial information, proprietary data, or information on research 

and development-if they were, Respondent would have placed that portion of the motion under 

seal. 

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The documents are not necessary to a decision. 

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Rule 13.220(g).provides that ohly material that is "necessary to decide the case" qualifies . 

for protection; if the ALJ determines the material is not necessary to a decision, the ALJ shall 

preclude inquiry into thematter by any party. Rule 13.220(g)(2), Respondent acknowledges that 

the material in question is only rele~ant to possible mitigation;3 such information is certainly 

relevant to the decision, but i~ does not follow .that all relevant evidence is necessary to a 

decision. 

"Necessary" means "that cannot be done without ... absolutely required~" Webster's 

Third New International Dictionary Unabridged (1971).4 

As evidence in mitigation, the documents in question only pertain to Complainant's 

Interrogatories Nos. 7 and 10 and Requests for Production Nos. 3 and 5 which generally seek 

production of information reg~ding Respondent's affirmative defenses, evidence in mitigation, 

and exhibits to be offered. Respondent may choose to present this information at the hearing, but 

is not obliged to do so, and, were it not presented, a decision could still be reached. Accordingly, 

it is not necessary to a decision. 

In other words, because the documents are not necessary to a decision, Respondent can 

make a choice-either seek to have the documents protected from disclosure, in which case it 

45 2 See, e.g., Resp't Mot. at 5-6 listing "Conference List of Regulations Presentation," "Conference Managing Risk 

46 Presentation," and "Conference Working with the FAA Presentation" as documents for which the protection of a 

4 7 confidential order is sought. 

48 3 Resp't Mot. at 12. 

4 9 4 See also http://www .merriam-webster.com/dictionary/necessary ("absolutely needed"), last visited July 26, 20 12; 

50 The American Heritage Dictionary (1991) ("Absolutely essential; indispensable"). . · 

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Complaint's Opposition to 

Respondent Motion for Protective and/or Confidential Order 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486,-0680, and -0779 

Page 4 of 10 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227~2161; FAX: (425) 227-1007 
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may not present those matters addressed in the documents at the hearing, or present .them at 

hearing, waiving any arguments that the documents ~e confidential or privileged. 

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The documents do not qualify for protection under the Freedom of Information 

Act. 

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Respondent seeks to have the documents pr<_)tected from disclosure under the Freedom of 

Information Act5 (FOIA) and the Department of Transportation's implementing regulations of 

the Act. Resp't Mot. at 10.6 Specifically, Respondent asserts that the documents are protected 

from disclosure by 5 U.S.C. §§ 522(b)(4) (Exemption 4) and (6) (Exemption 6). 

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Exemption 4 -·-Trade Secrets and Commercial or Financial Information. 

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FOIA Exemption 4 prevents the disclosure of "trade secrets and commercial or financial 

information obtained from a person and privileged or confidentiaL" 

The documents at issue in this motion are not trade secrets under FOIA. "Trade secret," 

as used in FOIA, means "a secret, commercially valuable plan, formula, process, or device that is 

used for the making, preparing, compounding, or processing of trade commodities and that can 

be said to be the end product of either innovation or substantial effort." Public Citizen Health 

30 · Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983) (citing H.R. Rep .. No. 1382, 95th 

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Cong., 2d Sess. 16 (1978)); Andersonv. HHS, 907 F.2d 936,944 (lOth Cir. 1990). Since this 

definition applies to thi~gs, 7 not services, and Respondent is in the business of providing a 

service,8 the material does not constitute a trade secret under FOIA. 

·Exemption 4 also protects information that: 

• is commercial or financial information; 

5 5 u.s.c. § 522. 

6 Respondent Cites to "49 USCS 552(b)(4),(6)." Given the context, Complainant believes Respondent means to cite 

to 5 U.S.C. § 522; Title 49 United States Code does not contain a Section 522. . 1

See, e.g., Appleton v. FDA, 451 F.Supp. 2d 129, 142 and n.7 (D.D.C. 2006); Herrick v. Garvey, 200 F.Supp. 2d 

1321, 1326 (D. Wyo. 2000), aff'd298 F.3d 1184 (lOth Cir. 2002); Heeney v. FDA, 7 F.Appx. 770 (9th Cir; 2001). 8 Respondent holds an Air Agency certificate and is engaged in the business of providing air transportation under 

14 C.F.R. Part 121. Respondent's Answers at~ II. I, 14 C.F.R. § 1.1 (defming "Air Carrier" and "Air 

Transportation"). 

Complaint's Opposition to 

Respondent Motion for Protective and/or Confidential Order 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486, -0680, and -0779 

Page 5 of 10 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425)227-2161; FAX: (425) 227-1007 
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• obtained from a person, and is 

• privileged or corifidentiaL 

Complainant concedes the documents constitute commercial or financial information . 

obtained frorri a person. 

Under Critical Mass Energy Project v. NRC, the test used to determine whether 

information is confidential hinges on whether its production to an agency was requirecd or if 

production was voluntary. 975 F.2d 871 (D.C. Cir. 1992) (en bane). Where production is 

required, the test for confidentiality is found in Nat'! Parks & Conservation Ass 'n v. Morton, 

16 498 F.2d 765, 770 (D.C. Cir. 1974). Critical Mass· at 879. 

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National Parks, in turn provides that information is confidential if disclosure would 

"(1) ... impair the Govemment's ability to obtain necessary information in the future; or (2) to 

cause substantial harm to the competitive position ofthe person from whom the information as 

obtained." Nat'! Parks at 770. While Respondent is free to choose what arguments to present at 

hearing, having made that choice, Complainant's discovery requests require Respondent to 

produce the documents if relevant to those arguments. Thus, Respondent is required to provide 

the documents to the government, and the National Parks test applies. 

Prong (1) is inapplicable. As discussed above, the infomiatitm at issue here is not 

necessary information because it is not necessarj tp a decision. Additionally, because prong (1) 

applies to voluntarily submitted information; the rule in Critical Mass now governs in situations 

where prong (1) would have applied.9 

Likewise, prong.(2) is also inapplicable. To meet prong (2), disclosure must be "likely ... 

to cause substantial harm to the competitive position of the person from whom the information 

was obtained." Nat'! Parks at 770 (emphasis added). Respondent has made no showing that 

42 · harm from disclosure is likely, or, if it were, that such harm would be substantial. These cases 

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the calculation of weight and balance or discussions of federal regulations. Resp't Mot. at 4 and 

4 9 9 If the info~ation is voluntarily produced, Critical Mass applies, if it is required to be produced, production will 

50 not inipair the Government's ability to obtain the information, as production will still be required. 

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Complaint's Opposition to 

Respondent Motion for Protective and/or Confidential Order 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486, -0680, and -0779 

Page 6 of 10 

JpFFREYM. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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6. Federal regulations are a matter of public knowledge, as are means of calculating weight and 

balance. 10 As Part 121 applies the same requirement on all Part 121 carriers; the idea that the 

revelation of an air carrier's practices in calculating weight and balance would somehow place it 

at a competitive disadvantage is a specious argument. 

Respondent also argues for recognition of a self-appraisal privilege under th'e privilege 

portion of Exemption 4. Resp't Mot. at 11. The recognition of the privilege is disfavored, and, 

where recognized, has significant limits placed upon it, such as requiring a showing of 

extraordinary circumstances, a showing of special need, or finding it inapplicable in the context 

of an government agency administrative investigation. See Reichhold Chemicals, Inc. v. Textron, 

Inc., 157 F:RD. 522, 525-26 (N.D. Fla. 1994) (discussing the extent the privilege is recognized 

and the Circumsta:hces under which is applies). Respondent has shown no extraordinary 

circumstances or special need. Additionally, as Respondent states, to the extent the privilege is 

recognized, is intended to allow businesses to engage in self-appraisal without "creating evidence 

that may be used against them in future litigation." Id. (emphasis added). Here, the documents in 

question are mitigati~g,.and will not be used against Respondent, but for Respondent's benefit. 

For the reasons discussed above, FOIA Exemption 4 does nqt apply to the documents at 

issue in this motion, accordingly, the ALJ should deny Respondent's Motion to enter a 

·confidential order on those grounds. 

b. Exemption 6 - Personnel and Medical Files . 

FOIA Exemption 6 prevents the disclosure of "personnel and medicai files and similar 

files the disclosure of which would constitute a clearly unwarranted invasion of personal 

privacy." 5 U.S;C. § 522(b)(6). A review of the documents listed in Respondent's Motion 

reveals that none of the documents are facially personnel or medical files, which would qualify 

for protection under FOIA. 

49 10 See Code of Federal Regulations; FAA~!J-8083-lA Aircraft Weight and Balance Handbook; FAA Advisory 

5o Circular 120-27E Aircraft Weight and Balance ControL 

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Complaint's Opposition to · 

. ·Respondent Motion for Protective and/or Confidential Order 

In the. Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486, -0680, and -0779 

· Page 7 of 1 0 . 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
1 Even if the documents do refer in passing to particular individuals, the individual privacy 

interests protected by Exemption 6 can be realized by the redaction of the individuals' personally 

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a Court of Appeals order that disciplinary case summaries be produced for in camera review and 

redaction of personally identifiable information). Respondent's request to protect the entirety of 

the documents is overbroad: 

As the documents do not qualify for exemption from disclosure under 5 U.S. C. 

§§ 522(b )( 4) and (6), they should not be protected by a confidential order on those grounds. 

Respondenes Motion is Unsupported by Facts. 

Warranting the Requested Orders 

Rule 13.220 requires the party making the motion show the requested order is required. 

Bare assertions are insufficient to meet this burden. $ee In Re: Samuel Joseph Latham, Order 

Denying Respondent's Motion for Protective Order; FAA Docket No. CP10WP009, 2011 WL 

216213 (January. 21, 2011). To meet its burden, a movant should be required to make a 

particularized factual showing that it will suffer harm if the protective order is not entered. See, 

e.g., Iris Corp. Berhad at 492. Likewise, Respondent claims entitlement to the protections of 

Exemptions 4 and 6 of the Freedom oflnformation Act as'implemented at 49 C.F.R. § 7.13Y 

Resp't Mot. at 10. Under that section, a submitter of information "will ... provide a detailed 

statement of any.;. objections. The submitter's statement shall specify all grounds for 

withholding any of the information. The burden shall be on the submitter ... to persuade the 

agency that the information should not be disClosed." Respondent has made a statement, but not 

a detailed one. 

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42 · that either order is necessary. The motio.n merely asserts that Respondent would suffer an 

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adverse effect from public disclosure of the documents; it does not explain what specific harm 

might accrue from the disclosure of specific documents. Respondent's.motion speaks in broad 

50 115 u.s.c. §§ 552(b)(4) ~d (6). 

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Complaint's Opposition to 

Respondent Motion for Protective and/or Confidential Order 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486, -0680, and -0779 

Page 8 of10 

JEFFREYM. HARPER, FAA ATtORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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generalities; it does not provide the ALJ ~y particularized evidence which would warrant the 

entry of a protective or confidential order .. It lacks detail. Respondent fails t~ carry its burd~n. 

Conclusion 

The confidential or protective orders sought by Respondent are meant to prevent harm to 

Respondent. Here, Respondent acknowledges that, far from being harniful to its business . . 

interests, the information is helpful in mitigating the proposed penalty. If Respondent is truly 

13 · concerned about harmful effects to it stemming from public disclosure ofthe documents, it can 

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fully address those concerns by opting not to present that information in mitigation. If, instead, it 

believes it is better served by making those arguments, it should bear the costs of that decision it 

believes it will face. It cannot have it both ways. 

Because Respondent has not met its burden to demonstrate the necessity of either a 

protective order or a confidential order, Complaint moves to deny Respondent's Motion .. 

Dated this 27th day of July, 2012 

Jetfey 

/~.~ Harper 

Counsel for Complainant 

Complaint's Opposition to 

Respondent Motion for Protective and/or Confidential Order 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. F AA-20 11-0485, 0486, -0680, and -0779 

Page 9 oflO 

JEFFREYM. HARPER, PM ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007 
1 CERTIFICATE OF SERVICE 

2 

3 I hereby certify that the Foregoing Complaint's Opposition to Respondent Motion for Protective 

4 and/or Confidential Order has been served via facsimile and Certified Mail- Return Receipt 

5 Requested this date, to the following: 

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The Honorable Richard C. Goodwin 

Office ofHearings, M:-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm E12-320 

Washington, D.C. 20590 

TEL: (202) 366-2139 

FAX: (~02) 366-7536 - · 

Attn: Hearing Docket Clerk,AGC-430 

Wilbur Wright Building- Suite 2W1 000 

Federal Aviation Administration 

800 Independence Ave. SW. 

Washington, DC 20591 

FAX: (202) 493-5142 

Todd Emerson, Esq. 

SkyWest Airlines 

444 S. River Road 

St. George, UT 84790 

TEL: (435) 634-3530 

FAX: (435) 634-3505 

Michael Dworkin, Esq. 

Michael L. Dworkin and Associates 

465 California Street 

San Francisco, CA 941 04 

TEL: (415) 421-2500 

FAX: (415) 421-2560 

DATED this 2ih day of July, 2012. 

Complaint's Opposition to 

Respondent Motion for Protective and/or Confidential Order 

In the Matters of Sky West Airlines, Inc. 

DMS Nos. FAA-2011-0485, 0486,-0680, and -0779 

Page 10 oflO 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL: (425) 227-2161; FAX: (425) 227-1007