·'I



### SERVED: August 30, 2013

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC

IN THE MATTER OF


### ALASKA AIRLINES, INC.

FAADOCKETNo. [TO BE ASSIGNED] (Civil Penalty Action)
FDMS No. FAA-2013-0287



### ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO COMPEL Respondent AlaskaAirlines, Inc. ("Respondent") has filed a Motionto Compel ("Motion"). 1 In support, it states that deposition testimony and related documents it seeks in discovery, which Complainant Federal Aviation Administration ("Complainant") has declinedto provide, are calculatedto lead to the discovery ofadmissible 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'spermission, also has filed a reply to Complainant's answer. Respondent's Motionis hereby granted only to the extent thatthe matters about which the Motion is concerned have already become public. In all otherrespects the Motion is denied.

1 The Motion actually is styled, in full, as a "Motionto Compel andUnopposed Motionto Continuethe August 20, 2013 Hearing Date." This order deals only with the Motion to CompeL The Unopposed Motionto Continue was grantedby Order served August 9, 2013.2

The grant ofthe Motion extends only to the agency's Enforcement Investigative Report ("EIR") Checklist and related comments. Mydecision rests simply onthe fact thatthis informationhas become public. The genie is out ofthe bottle and cannot in any practical sense be putback. But I do not find that the agency has waived any privilege thereby. Complainant's general objectionto the release oftheinformation 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 policyreasons: the guarantee of confidentiality (in all butthe 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 proceedingbegan with the filing ofthe Complaint. Itconcerns whether the FAA canprove the allegations therein. Whatthe agency, or individual employees ofthe agency, did ordid not do or say indetermining the parameters ofthe Complaint generally is irrelevant. See Continental Airlines, FAA OrderNo. 90-19 (1990). Respondenthas not shown why this case warrants a different outcome. Grant of its request would impermissibly expand the proper scope ofthis proceeding.

In view ofthe foregoing, Respondent's Motion, with the exception ofthe matters related to the EIRChecklist, is denied.
No ruling will issue onthe remaining discovery matters. Itwould be premature. The parties are expectedto work outtheir differences in light ofthis Order.

Attachment

- Service List3

SERVICE LIST ORIGINAL & ONE COPY 

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl000 1 

### TEL: 202-385-8229 FAX: 202-493-5142 ONE COPY 

### Joanna L. 

### Simon, Respondent's Counsel 

### Morrison & 

### Foerster, LLP 12531 High BluffDrive 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 ofRegional 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 LawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536

1 Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WI000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.