U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATIONADMINISTRATION

FEDERALAVIATIONADMINISTRATION, Complainant, 

# RECEIVED JAN 122015 HEARING DOCKET

vs. DocketNo. FAA-2013-0291 FAACaseNo. 2011S0290032 AIRBORNEMAINTENANCEAND ENGINEERING SERVICES, Respondent. Judge Sullivan

REPLYIN SUPPORT OFMOTION TO COMPELAND EXCLUDE December 19, 2014, the FAA filed a motion to compel and exclude relating to Respondent's failure to comply with its discovery obligations. On January 6, 2015, Respondent respondedto this motion. To the extentnecessary, theFAArequests leave1to file, and does file, this reply in support.2 The Response, while colorful, provides no legitimate explanation for why Respondentfailed to complywithits discovery obligations, andtheMotionshouldbe granted. Respondent'sFailure To RespondTo Interrogatory #133 With regards to Interrogatory #13, Respondent argues that the FAA's Motion has not merit because (1) the litigation schedule does not call for witness lists to be exchanged until April 9, 2015 and (2) the obligation to update discovery responses is continuing in nature. See Response at 7-11. Respondent's argues is thatitdidnothing wrongbecause itwas notrequiredto
answerthe interrogatory in question

- indeed, Respondent asserts that it may simply continue to

1Part 13 references only Motions and Responses, butis silentas to the status ofReplies in Support. 2 The Response also spends severalpages presentingRespondent's view onthe merits ofthe case, seeResponse at 13-15. Asthese observations bearnorelationtothe Motion athand, they willnotbe addressedhere. 3 The Motion also referencedInterrogatory#14. Respondenthas subsequently compliedwithtbatrequest. 1"discover" new witnesses in the coming months, 

### see Response at 11. This argument is without foundation. Respondent is correctthat final witness lists are not due until April2015. However, that the parties are required to make prehearing submissions, including witness lists, in April 2015 does not relieve Respondent of its obligation to answer discovery requests about potential witnesses.4Respondent's obligationto answerinterrogatories is a distinct one from Respondent's obligationto make aprehearing submission. Respondent is also correct that the obligation to supplement discovery responses is continuing in nature. However, that the Respondent's obligation to supplement continues after discovery does not mean that this obligation did not exist during discovery. Respondent was served with the Agency's First Discovery Requests, including Interrogatory #13, in January 2014. Respondent's answers were due 30 days later. Respondent asserts that "New or updated [discovery] responses can be hatched and submitted seasonably," rather than "immediately," after each "new piece of information" is discovered. 

### See Response at 10-11. However, the circumstances ofthis case do not involve Respondent discovering new pieces ofinformation. Nor do they involve Respondent seasonably providing information. Respondent's disclosure of six potential witnesses in December 2014 would only be "seasonable" and appropriate ifthese witnesses and their potential testimony had only recently come to Respondent's attention. However, Respondent's December 23, 2014 discovery supplement discloses no "new piece of information" that Respondent has only now discovered. Rather, it discloses four witnesses who
are either management officials at Respondent, or who were management officials at Respondent's sister corporation (Capital Cargo International Airlines, which is represented by

4Respondent itselffiled discoveryrequests aboutthe FAA'spotentialwitnesses, audmade no objectiontothe FAA's discoveryrequests aboutpotential witnesses.
2opposing counsel in a companion case to this one), and who are to be testifYing primarily about conversations that took place several years ago. Respondent does not assert that itwas unaware ofthese witnesses or this potential testimony.5 Rather, Respondent asserts, without explanation, thatitdidnotneedto disclose ituntil after discoveryhad closed. These circumstances s·.1pport the FAA's request

**·~iet** tnese newly-disclosed witnesses be excluded. In its Response/Reply, R<Jspondent

**repeat~:dly** compares its conduct with that ofthe FAA, arguing that the FAA "flagrantly" violated the scheduling order by making its initial disclosures 12 days late. Such a comparison reflects poorly on Respondent. The FAA's disclosure was less than two weeks late because the undersigned was out ofthe office for a family medical emergency and, ultimately, afuneral. The FAA submitted its disclosure the same day that the undersigned was able to return to work. Respondent's answer to the FAA's interrogatory about potential witnesses, on the other hand, was over nine months late because Respondent choseto withholdinformationthatitcouldhave, and was requiredto, disclose. Parties ask questions like these, about potential witnesses, not only so that they can receive the information at some time before hearing, but also so that they can have the opportunity to explore the potential testimony as appropriate through additional discovery. Respondent here denied the FAA any opportunity to engage in this sort offollow-up 6 A party

5 Indeed, most ofthetestimonyidentifiedinthe December23,2014 disclosure appears torelate solely to Respondent's allegation thatInspectorLipinski isbiased, achargethatRespondenthas madethe centerpiece ofits defense inthis case. 6 Inaneffortto rebutthisnotion, theRespondentpoints outthat itidentifiedvarious individuals inresponse to other discovery obligations. SeeResponse at 11-13. Andit is true thatRespondent identifiedquite a few individuals- 39 inits initial disclosures, and70 in response to different interrogatory. See Response Exhibit 5 Attachment I, Exhibit 6 Attachment I. Theseresponses were insufficientto providethe informationrequiredinresponseto Interrogatory 13. In these attachments, Respondent identifies scores ofindividuals, almost all ofwhom are identified as performing ahandful ofspecific maintenance items or who are identified only as having "generalknowledge ofthe situation." Theseresponses are unhelpful in directing further discovery- theinformationprovidedforeach individualis insufficientto informthe opposingparty whatthe individualknows, andthenumber ofindividuals involved is too greatfor individual follow-up as to each. Forexample, other discoveryresponses indicatedthatthe category ofpersons with "generalknowledge ofthe situation" mightsimplybe individuals whohad discussed, but hadno personal knowledge ofthe situation. As Respondentnotes, theFAAultimatelytookonly one deposition out 3should not be permitted to knowingly withhold information throughout the course ofdiscovery, and then still take advantage ofthatinformationlaterinlitigations. Respondent'sFailure to Make Timely InitialExpertDisclosures Respondent also prcvides no suitable explanation for why it did not include Becker and Savastano in its initial expert disclosures. See Response at 12-13. Respondent presents no argument that their identified testimony was truly rebuttal testimony, rather than something that should have been ininitial expert disclosures. Rather, Respondent asserts that the timing ofthis disclosure was "based on th.e lateness ofComplainant's disclosure" and that "it was entitled to react to the unexcused and late disclosure ofComplainant's experts by proposing to use expert rebuttal witnesses." Response at 12-13. The timing ofthe FAA's disclosure has no bearing on Respondent's right to identity rebuttal experts (or initial experts)- either the testimony for Becker and Savastano is rebuttal testimony, oritis not. The FAA'suntimely initial expertdisclosuremighthavejustified afailure to timely submit an expertrebuttal, becauseRespondentmighthave needed more time to prepare the rebuttal testimony. But it does not transform non-rebuttal testimony into rebuttal testimony,
orjustifyuntimelyfiling ofinitial expertdisclosures.

ofthose- that ofmanagement official JeffreyBecker, whowaspresent atthetimethe aircraftwere inspectedby the FAA andwho respondedto theLetter ofInvestigation inthis case. Mr. Beckerwasnoticedfor apersonal deposition and was also identifiedbyRespondent as its representative for a Corporate deposition, resulting in only a single deposition, ratherthantwo. Notably, Mr. Becker'stestifiedthatno one atAMES andnone ofthemechanics who hadworked onthe aircrafthadany presentpersonalknowledge ofthe condition ofthe aircraft atthepertinenttime inthis case, exceptthatthey couldidentifywhatrecords theyhadmade atthetime, see, e.g., AttachmentHat39-46, 75-76, 78-81, further demonstrating the insufficiency ofthe informationprovidedby Respondentto addressingthe importantmatter ofwhomighttestify athearing, whatthey mighttestify about, andwhether any follow-up mightbe needed. As Mr. Becker's depositionwasultimately delayeduntil late OctoberduetoMr. Becker'smedicalproblems inthe spring, theunavailability ofopposing couuselin July2014 andthe undersignedinAugust 2014 andthe subsequent deposition scheduling issues betweenthe parties, taking further depositionsto follow up onMr. Becker'swould haverequiredleave ofcourtto extendthe deposition periodbeyondNovember7, 2014. 

### 4While the timing at issuehere is not so severe as the timing withregards to Respondent's

answer to Interrogatory #13 (over three weeks late compared to over nine months late), the commonality is that Respondent simply chose not to comply with its discovery obligation. Respondent could have, but chose not to, disclose B:;cker and Savastano in its initial expert disclosures. Respondent now argues that the**untimeline~s** ofthe FAA's initial expert disclosure (as a result ofa deathinthe undersigned's family) provides itwith carte blanche to make its own untimely initial expert disclosures. But an unavoidable, good cause delay in one party's discoveryresponses does not authorizethe opposingpartyto disregardits ownobligations. Conclusion WHEREFORE, the FAArespectfully requests that the Judge grant the FAA's motion to compel andexclude testimony withregards to Respondent'srefusalto complywith its discovery obligations with regards to witness identification, including the exclusion of Becker and Savastano as expert witnesses, the exclusion ofthe witnesses disclosed on December 23, 2014, the exclusion of any other witnesses Respondent may later identify, and that Respondent complete its disclosure withregards to Hancher. 

# b.- Respectfully submittedthis

# l day ofJanuary, 2015.

CHRISTOPHER STEVENSON Attorney Office ofthe Regional Counsel

5CERTIFICATE OF SERVICE I hereby certifythatthe foregoing Replyin SupportofMotionto Compel andExcludewas sent: original and one copyviacertifiedmailto: Federal AviationAdministntion 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: HearingDocketClerk, AGC-430 WilburWrightBuilding- Suite 2W1000

one copyviacertifiedmail andfacsimileto: TheHonorable J.E. Sullivan AdministrativeLawJudge Office ofHearings, M-20 U.S. DepartmentofTransportation 1200 NewJerseyAvenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 RobertP. Silverberg, Esq. 1101 30th Street, NW, Suite 120 Washington, D.C. 20007 Facsimile: (202) 944-3306

# ~=N~ LegalAssistant Office oftheRegional Counsel 

### JAN 7 2015 Dated

6

## In TheMatter Of: AirborneMaintenance andEngineeringServices

JeffreyBecker October29, 2014

LegalRealtimeReporting 622 E. CentralBlvd.

Orlando, FL 32801

Original File 102914Beckerfinal.txt 

### Min-U-Script®withWordIndex1 2 3 4 5 6 

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### discovery, so that we don't show up at a hearing or a judgment motion, and all of a sudden, there are three affidavits from mechanics saying, well actually, I observed this, that and the other detail and I do happen to remember. So if you, Mr. Silverberg, as the attorney for AMES and you, Mr. Becker, as the corporate representative for AMES, are willing

-- let me confirm. You are saying that none of these individuals who worked on the aircraft in August of 2009, October 2009, March of 2010, have any personal recollection of

-- we can go plane by plane if you like. MR. SILVERBERG: You didn't

-- this calls out a date in May of 2010. That's what this calls out. These gentlemen worked on the airplane much earlier than May, as you know. MR. STEVENSON: So, okay. MR. SILVERBERG: That's

-- MR. STEVENSON: As of

-- okay. Let's just take it back to an individual plane. We've been talking about November 899. MR. SILVERBERG: This is your 30(b)6 question. You're asking Mr. Becker to testify what inspectors did in connection with the main landing gear change1 2 3 

### or the "C" Check at an earlier date or are you asking what they MR. STEVENSON: At this time right now, I am 4 asking about the original reinstallation. 5 MR. SILVERBERG: That's not the 30(b)6 6 question and you know that. 7 BY MR. STEVENSON: 8 Q. 

### Okay. That's

-- as to each of the three 9 aircraft, the identity of any individuals currently or 10 formerly employed by AMES who have personal knowledge of 11 the original reinstallation of the MLG and flying doors 12 by AMES. 13 14 15 MR. SILVERBERG: Asked and answered. MR. STEVENSON: Okay. So

-- MR. SILVERBERG: We've been through that. 16 BY MR. STEVENSON: 17 

### Q. So you don't. These people have no personal 18 knowledge. They are or the extent of their personal 19 knowledge to be able to say, well, I signed that off. 20 This is the process that I followed. 40

21 MR. SILVERBERG: That's your question. That's 22 the form of your question. Go ahead. Continue. 23 

### A. I can go ahead and answer by stating that we 24 performed an investigation when this first came to our 25 attention. Any technicians and inspectors that had taken1 part in any of these installations

-- and I don't 2 remember specifically, but I do recall that the answers 3 were exactly as Bob referenced. They reviewed the 4 maintenance manual, they reviewed the nonroutine sign 5 offs and there was no additional information they 6 provided other than that at the time we did the 7 investigations. 8 BY MR. STEVENSON: 9 Q. Okay. And is that still true today that they 10 would not be able to provide any additional information? 11 I don't know why it would've changed, but I have to ask. 12 A. We have not talked to them since the initial 13 investigation. 14 15 Q. Okay. And is that

-- just for clarity of the record, I had been asking you about just 899AA. Is this 16 also true of the original reinstallation, sorry, of the 17 main landing gear replacement on N898AA, in or about 18 October of 2009? 41



## • 19 20 21 22 23 24 25 A. Yeah. My recollection is that we, like I said,
we initiated an investigation. I don't recall if it was tail number specific. I know it was specifically about the subject of the rigging of the doors because that's what the issue was at hand, yes. But without looking at our discrepancy notice files or the corrective action report files, I can't answer specific tail numbers or42 1 specific individuals. 2 Q. But my understanding from what you just said is 3 that at the time that AMES was internally investigating 4 this, you interviewed these people and they could not 5 provide any information other than 6 7 8 9 10 11 12 13 14 15 16 17 18 A. Q. Correct. This is what the records are? A. Correct. 

### Q. Okay. And again, same question. With regards to N287SC and the main landing gear replacement performed in March of 2010, is that the same situation, those individuals cannot provide additional information beyond identifying the records? A. Correct. Q. Okay. Now, there have been references in your discovery responses to a, if I understand correctly, a tire replacement on N287SC that occurred after AMES replaced the main landing gear but before the vibration 19 incident on April 10 of 2010. Do I understand that 20 correctly? 21 22 

### A. Q. 23 changed? Right. Okay. And how do you know that the tire was

24 A. I was provided, from Capital Cargo, a print out 25 of the maintenance performed on that aircraft over a time43 1 period

-- I believe it was from the time it left our 2 facility on or about the middle of March to the time that 3 it left Cincinnati after the vibration work. 4 5 6 7 8 9 10 11 12 13 Q. Okay. And do you have a copy of that print out? MR. SILVERBERG: It's in our materials. A. I believe it is part of the omnibus. I mean the discovery materials. MR. SILVERBERG: I have a copy of it. MR. STEVENSON: Okay. MR. SILVERBERG: You should have a copy of it. MR. STEVENSON: Can you identify what number that was? 14 MR. SILVERBERG: 111. While you're rooting 15 through your files, let's go off the record. I'm 16 going to take a quick bathroom break. 17 {Proceedings recessed at 9:43 a.m.) 18 {Proceedings resumed at 9:53 a.m.) 19 BY MR. STEVENSON: 20 Q. All right. So I understand correctly, the tire 21 change took place on March 25th, 2010, which would've 22 been three days after the landing gear was approved for 23 return to service by AMES? 24 25 A. 

### Q. Correct. And do you know what physically is involved in1 2 3 4 5 6 7 8 9 10 11 44 

### changing the tire on a 727? A. Yes. Based on the procedures both published by Capital Cargo and that are in the AMM, yes. 

### Q. And can you summarize those? A. Well, again, I'd like to have the documents because I can point specifically to it. It's easier for
me to communicate the steps and make sure I don't miss any key items. 

### Q. I understand. in detail. But I mean, I'm not asking you to go into it you said you knew what the procedures were. I'm just asking you in general terms 12 what the procedure is. We can look at the documents at 13 some later time if we want, but right now I'm just asking 14 you -- 15 16 17 18 19 20 

### 21 22 23 24 25 

### MR. SILVERBERG: Do you have the document that you're referring to? MR. STEVENSON: I'm guessing no, unless you provided it to me, since this document was not identified in your discovery response such that I realized what it was. MR. SILVERBERG: So you're just asking this witness to summarize his understanding of the document? We don't have the document in front of us? MR. STEVENSON: We're not
-- I'm not handing1 2 3 him a document. MR. SILVERBERG: Okay. MR. STEVENSON: I'm asking him to summarize 4 his understanding of what is involved in changing 5 the tire on one of the main landing gear on a 727. 6 A. As it applies to the flying door, one of the 7 steps
-- and this is for the outboard tires only

-- the 8 flying door is in the way of removing the tire. And 45

9 there is a banana link or what's called an actuating rod, 10 I believe, in the maintenance manual, and there's some 11 steps in order to move the door out of the way in order 12 to get access to the wheel. 13 BY MR. STEVENSON: 14 Q. Okay. And how do you know

-- okay. Let me -- 15 you said that that was for an outboard tire? 16 17 18 19 20 21 22 23 24 A. Mm-hmm. 

### Q. Do you know if this was an inboard or outboard tire that was replaced on March 25, 2010? A. On March 25th, it was an outboard. It was a number four, based on my memory. Q. Okay. And are those

-- how are the tires numbered for the A. Left to right, it's 1, 2, 3, 4. 

### Q. And just for the clarity of the record, as is 25 usual with aviation, I presume that left to right is from1 Q. Okay. And do you have any reason to believe 2 that he would write something down in a statement for an 3 EIR that he did not believe to be accurate? 75

4 MR. SILVERBERG: Objection. You're asking him 5 to speculate about Mr. Gasche's state of mind. 6 A. Yeah. I was going to say, again, I've never 7 met Mr. Gasche. That letter is the extent of any, any 8 sort of knowledge I have of him. 9 BY MR. STEVENSON: 10 11 12 13 Q. Sure. A. But I repeat that he somehow put that together three months later. Q. Now, we have been talking about the time that 14 you were in Toledo. Did you ever personally examine 15 these aircraft after they were back in Wilmington? 16 A. Oh, after they ferried from Toledo to
-- and 17 Bradley to Wilmington? 18 19 Q. A. Yes. Yes. I went down and at least on a daily 20 basis, walked around the aircraft and talked to Charles 21 Working, who was the director of maintenance that was 22 there for Capital Cargo prepping the airplanes and 23 talking to my inspectors. 24 

### Q. Okay. Did you have the opportunity to 25 personally examine the other aircraft like you had with1 287SC? 2 3 

### A. Q. Yes. Okay. And what, if anything, do you remember 4 observing about the condition of those aircraft? 5 A. Yeah, I mean, we were under direction

-- we 6 were under direction from Charles Working. We were -- I 7 recall that our marching orders from the operator, which 8 is completely understandable in the case, was we need to 9 make this like new. We want this

-- we want these 76

10 landing gear or these flying doors immaculate. We don't 11 want any opportunity for Frank or any other FAA inspector 12 13 14 15 16 to inspect any of any more problems. So I do inspect the flying comb. They wantedthese

recall

doors
us toairplanes after the fact and find

that my inspectors were asked to and the areas with a fine tooth write up every nick, every minor 17 flaw

-- which is not normal, by the way, in a "C" Check 18 environment or anything else. Unless there's a specific 19 job card that drives you to a specific area. 20 Q. Sure. Do you have any personal recollection of 21 what, if any, nicks or flaws were on these aircraft? 22 A. Urn, no. I mean, most of my dialogue

-- I mean, 23 I knew that there was nonroutines. Written, many 24 nonroutines. I remember talking to Dan Boggs about it 25 and saying, yeah, there's a lot of nicks and bumps and78 1 mean, I, on different occasions, I've asked my QC 2 manager, my QC supervisors, do you recall; I'll show them 3 a piece of paper. But nothing, from what you're asking, 4 nothing has come up. 5 BY MR. STEVENSON: 6 7 Q. Sure. You mentioned earlier that in order to know if the gears sorry. If the flying doors were out 8 of rig, you would have to perform a gear swing. Do you 9 know, did AMES perform a gear swing at some point while 10 these aircraft were in your facility? 11 A. Oh, yeah, absolutely. 12 MR. SILVERBERG: Are we talking about

-- 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Each one of them. MR. SILVERBERG:

-- after they were returned to Wilmington or are we talking about the original work? MR. STEVENSON: We're talking about them when they were in Wilmington starting at the end of May 2010? MR. SILVERBERG: Okay. A. Yes. question was. frame. Yes. And that's what I understood the And we're talking about the May time

BY MR. STEVENSON: 

### Q. Yes. Do you know when those gear swings were1 performed? 2 A. The dates and times are listed on the 3 nonroutine and partial worksheets for each of the 4 airplanes. 5 Q. Okay. Would these gear swings have been 6 something that was performed immediately when the 79

7 aircraft was brought in or would this have been something 8 that was performed after other maintenance was done to 9 make sure that everything was good to go at that point? 10 A. My recollection is that we didn't perform any 11 gear swings when the airplanes first got there. We only 12 performed them as a function of after we replaced all the 13 hardware and inspected the areas. 14 15 16 17 Q. Sure. A. Again, that's my recollection on it. recall anything otherwise. Q. Okay. I want to ask you some specificI don't

18 questions on -- these are essentially more specific 19 versions of something I already asked, but I just want to 20 confirm. 21 Other than looking at the maintenance write 22 ups, do you personally or collectively as AMES, have any 23 knowledge of whether at the time these aircraft were 24 brought into Wilmington at the end of May, 2010, there 25 was any missing mounting hardware in the landing gear

### 1 assemblies or the flying doors? 2 A. 

### No. 3 4 5 6 7 8 9 10 11 

### Q. Okay. Do you -- MR. SILVERBERG: Wait a minute. I'm sorry. The answer no is

-- you're asking about his recollection? MR. STEVENSON: I asked him if he has any knowledge of that beyond what's in the maintenance documents. 

### A. Right. My answer is no. MR. SILVERBERG: Okay. 12 

### BY MR. STEVENSON: 80

13 

### Q. Okay. Again, and all these questions I'm going 14 

### to refer to the same time frame and the same aircraft. 15 

### Let me know if I've asked too many and it's gotten 16 

### confusing. 17 

### Do you have any knowledge as to whether or not 18 

### there were improperly installed spacing shims in the 19 

### hinges? No. 20 21 

### A. Q. Do you have any knowledge of whether or not 22 there was damage to flap track fairing mating surfaces? 23 A. No. And again, this is outside of what's 24 25 

### already

-- what's documented. Q. Absolutely correct. I understand that there1 2 3 4 are the documents, and the documents, we'll talk about those in a little bit. I just wanted to
-- Okay. A. Q.

-- I just wanted to distinguish for the point 81

5 of

-- sake of clarity. Do you know, other than from what 6 the documents say, whether or not there was damage to any 7 of the door structures that were adjacent to the attached 8 fittings? 9 A. No. 10 Q. Okay. Do you know if there was any damage to 11 the hinge fairing fittings? 12 A. Hinge fairing fittings. Is this the cover, the 13 hinge covers or is that something different? 14 Q. Well, unfortunately, this is one of those 15 problems for me with Inspector Lipinski not being here is 16 I do not have a technical adviser. So if that 17 phraseology does not make any sense to you, then I can't 18 really clarify. 19 A. Okay. I mean, to clarify, the hinge covers 20 specifically in regards to the piano hinges. 21 Q. Okay. 22 23 24 25 A. Q. A. 

### Q. Yes. I remember looking at those

-- Okay.

-- myself. And what did you see when you looked at them?