·'I 

SERVED: August 30, 2013 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

ALASKA AIRLINES, INC. 

FAA DOCKET No. [TO BE ASSIGNED] 

(Civil Penalty Action) 

FDMS No. F AA-2013-0287 

ORDER GRANTING IN PART AND DENYING IN PART 

RESPONDENT'S MOTION TO COMPEL 

Respondent Alaska Airlines, Inc. ("Respondent") has filed a Motion to Compel 

("Motion"). 1 In support, it states that deposition testimony and related documents it seeks in 

discovery, which Complainant Federal Aviation Administration ("Complainant") has declined to 

provide, are calculated to lead to the discovery of admissible evidence. Further, the matters 

sought either are unprivileged or, Respondent argues, any purported privilege has been waived 

by Complainant. Complainant objects. It states that all the matters Respondent seeks are subject 

to the deliberative process privilege and are properly considered confidential. Respondent, with 

the Court's permission, also has filed a reply to Complainant's answer. 

Respondent's Motion is hereby granted only to the extent that the matters about which 

the Motion is concerned have already become public. In all other respects the Motion is denied. 

1 The Motion actually is styled, in full, as a "Motion to Compel and Unopposed Motion to Continue the August 20, 

2013 Hearing Date." This order deals only with the Motion to CompeL The Unopposed Motion to Continue was 

granted by Order served August 9, 2013. 
2 

The grant of the Motion extends only to the agency's Enforcement Investigative Report 

("EIR") Checklist and related comments. My decision rests simply on the fact that this 

information has become public. The genie is out of the bottle and cannot in any practical sense 

be put back. But I do not find that the agency has waived any privilege thereby. 

Complainant's general objection to the release of the information Respondent seeks is 

well-taken. The testimony and remaining documents fall within the deliberative process 

privilege and, as such, may remain confidential. The matters involve pre-decisional 

communications. Such information is privileged for sound policy reasons: the guarantee of 

confidentiality (in all but the most compelling circumstances) allows agency employees to 

provide candid advice and encourages robust debate. Subjecting such discussions to public 

disclosUre would tend to undermine the frank give-and-:-take which is so often a feature of 

informed and sound decisionmaking. Moreover, it must be stressed that this proceeding began 

with the filing ofthe Complaint. It concerns whether the FAA can prove the allegations therein. 

What the agency, or individual employees of the agency, did or did not do or say in determining 

the parameters of the Complaint generally is irrelevant. See Continental Airlines, FAA Order No. 

90-19 (1990). Respondenthas not shown why this case warrants a different outcome. Grant of 

its request would impermissibly expand the proper scope of this proceeding. 

In view of the foregoing, Respondent's Motion, with the exception of the matters related 

to the EIR Checklist, is denied. 

No ruling will issue on the remaining discovery matters. It would be premature. The 

parties are expected to work out their differences in light of this Order. 

Attachment - Service List 
3 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl0001 

TEL: 202-385-8229 

FAX: 202-493-5142 

ONE COPY 

Joanna L. Simon, Respondent's Counsel 

Morrison & Foerster, LLP 

12531 High Bluff Drive 

San Diego, CA 92130-2040 

TEL: 858-720-5100 

FAX: 858-720-5125 

Email: JoannaSimon@mofo.com 

Bradley Tilde, President 

Alaska Airlines, Inc., Respondent 

P.O. Box 68900 

Seattle, Washington 96168 

Robert Spitzer, Complainant's Counsel 

FAA Attorney, Office of Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, Washington 98057 

TEL: 425-227-1417 

FAX: 425-227-1007 

E-MAIL: robert.spitzer@faa.gov 

FDMS No. FAA-2013-0287 

(Civil Penalty Action) 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant 

FAX: 202-366-7536 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: 

Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 

2WI 000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.