### 1 

### 2 3 

### 4 5 WILLIAM V. O'CONNOR, JR. (CA SBN 216650) WOConnor@mofo.com JOANNA L. SIMON (CA SBN 272593) JoannaSimon@mofo.com MORRISON & 

### FOERSTERLLP 

### 12531 High BluffDrive San Diego, California 92130-2040 Telephone: 858.720.5100 Facsimile: 858.720.5125 

# RECEIVED AUG 2 2

# 2013 HEARING DOCKET

6 Attorneys for AlaskaAirlines Inc. 7 8 9 10 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
11 Inthe Matter of: FAA Case No. 2011NM020013 12 AlaskaAirlines Inc. 13 14 15 

## I. INTRODUCTION ALASKAAIRLINES INC.'S REPLY IN SUPPORT OF MOTIONTO COMPEL

16 The Governmenthas deemed itselfthe arbiter ofall things privileged in this matter, 17 effectively preventingAlaskaAirlines and the Court from testing its questionable assertions by 18 failing to sufficiently detail its privilege claims concerning the Enforcement Investigative Report 19 and related testimony. The Government's privilege assertions must be reviewed. In any event, 20 the Government waivedthe deliberative process privilege for the EIRChecklist and related 21 testimony when Joel Wade, who was second-in-command at the AlaskaAirlines CMO at the time 22 ofthe facts giving rise to this action, purposefully and voluntary disclosed the EIR Checklist and 23 the FAA's opinion that there was "no conclusive evidence to support"the alleged violation. 24 The Government's Opposition onlybolsters AlaskaAirlines' first point concerning 25 withheld portions ofthe EIR, declaring that theses portions are 

### "obviouslypre-decisionaf' and 26 made as part ofan 

### "inherently collaborativeprocess." These vague assertions (usingwhatthe 27 Government apparently believesto be deliberativeprocess buzzwords) are exactly the type of 28 ALASKA AIRLINES' REPLY REMOTION TO COMPEL 

### 1 (No. 2011NM020013) sd-622999

### 1 

## 2 3 4 5 6 7 

### 8 9 10 11 12 

### 13 14 15 16 17 

### 18 19 

### 20 21 

## 22 23 24 25 

### 26 27 28 ambiguous statements that courts hold inadequate to support deliberative process protection. Tellingly, the unredacted EIR is not offered for in 

### camera review; instead, the Governmentrests
on the mistaken beliefthat it, and only it, is entitledto determine whetherthewithheld portions of the EIR are privileged (despite an FAA witnesstestifyingthatthe withheld portions contained factual matter). The Government is not permittedto dictate what information is available to Alaska Airlines without- at a minimum- setting forth the specific grounds for its privilege claims, which ithas not done. With regards to theFAA's waiver ofthe deliberative process privilege attached tothe EIR Checklist, the Government unsurprisingly attaches a self-serving declaration stating that Joel Wade's current supervisor did not approve Inspector Wade's disclosure, andthat such disclosure
was withouttheFAA's authorization. This ignores that Inspector Wade is ofsufficient character and rank in 

### his own rightto act on behalfofthe FAA-anddid so whenhe purposefully and voluntarily disclosedthe EIR Checklist and other documentsto Alaska Airlines. Despite the Government's attemptto mischaracterize the facts, this was no "leak" from a low-level government employee. To the contrary, it was a purposeful disclosure to AlaskaAirlines ofthe FAA's determination thatthere is "no conclusive evidence" to prosecute a violation by someone with enforcement authority. Finally, the Government inexplicably asserts thatAlaskaAirlines' Motion should be deniedbecause the evidence sought is somehow irrelevant, This is absurd. The Government's
caserests entirely on the credibility ofone passengerwitness, Mr, JohnElgee, who sawthe alleged frost onthe wing.1 

### Becausethe FAA itselfdetermined thatMr. Elgee was not credible, andthatthere was "no conclusive evidence" to support enforcement, the evidence sought is 

### centralto AlaskaAirlines' defenses in this matter.
1 

### To the best ofAlaskaAirlines' knowledge, the Government's purported expert opinion in this matteralso rests on the evidence providedby Mr. Elgee as set forth in the EIR. And, despite the Government's representations to the contrary, AlaskaAirlines has never beenprovided documents or communications relatedto FAA's expert. (O'Connor**Dec!.~~** 

### 3-5.) Norhas itbeen provided any ofthe expert's opinions in response to discoveryrequests. The Government should be compelled to produce such documents, orthe Government's expert should be precluded from testifYing.
ALASKA AIRLINES' REPLY REMOTION TO COMPEL 2 (No. 20IINM0200!3) sd-622999

### 1 Because the Governmenthas failed to meet its burden to showthe deliberative process 2 privilege applies, and because the FAA waived the privilege associated with theEIRChecklist 3 and related testimony, AlaskaAirlines' Motionto Compel these highly relevant documents and 4 testimony should be granted in full. 5 

### 6 II. 

### THE GOVERNMENTFAILED TO PROVIDE SUFFICIENT BASESFOR ITS ASSERTION OFTHEDELIBERATIVE PROCESS PRIVILEGE


### 7 The Government entirely ignores that itbearsthe burden ofproving the withheld portions 8 ofthe ElR, the ElRChecklist, and testimony related to the EIR are privileged. Pac. Fisheries, 9 Inc. v. UnitedStates, 539 F.3d 1143, 1149 (9th Cir. 2008). To meet this burden, the Government 10 must "detail the withheld portions" so that the Court and AlaskaAirlines can "evaluatethe 11 government's" privilege claim. Id; see also In re McKesson Gov. EntitiesAv. Wholesale Price 12 Litig., 

### 264 F.R.D 595, 602 (N.D. Cal. 2009) (ln orderto invoke the deliberative process privilege, 13 an agency must provide: "(1) 

### specific facts demonstrating why each document is 'deliberative' 14 and 'predecisional'; 2) specific facts concerning: a) the degree and type ofharm thatwould result 15 from requiring production ofeach document; and b) whattype ofprotective orderwould be 16 necessaryto reduce thatharm or, alternatively, why aprotective orderwouldnotreduce this 17 harm; and 3) what portions ofeach document are deliberative and, ifspecific sections are purely 18 factual, whythose sections cannotbe produced."). "Courts must apply thatburden with an 19 awareness that the [opposing party], who does not have access to the withheld materials, is at a 20 distinct disadvantage in attemptingto controvert the agency's claims."Pac. Fisheries, 539 F.3d 21 at 1149-50 (emphasis added) (citingMaricopaAudubon Soc 'y, 

### 108 F.3d 1089, 1092 (9th Cir. 22 1997)). 23 Despitethis strictburden, the Government's opposition does nothing more thanrepeat its 24 mantra thatthe withheld portions ofthe EIRand related testimony are "obviously pre-decisional" 25 and contain "opinions and conjecture concerningthe instantmatter." (Opp'n at 3.) These 26 assertions are wholly insufficient for the Governmentto meet its burden, for Alaska Airlines to 27 test the privilege, and for the Courtto determine ifthe withheldportions oftheEIRare, in fact, 28 privileged. The Government is required to provide "specific enough information"to determine ALASKA AIRLINES' REPLY REMOTION TO COMPEL 3 (No. 2011NM020013) sd-622999

### 1 whetherthe factual portions ofthe EIRhave been "properly segregated." 

### Pac. Fisheries, 539 2 F.3d at 1149-50. It

### has not done so? 3 In fact, when questioned at his deposition, Justin Meisbeger- 

### the FAA Inspector who 4 

### draftedthe EIR- testified there was purely factual matter in the EIRthat had been redacted or not 5 providedto Alaska Airlines: 6 7 8 9 

### Q. Okay. So I'm correctthatthere are factual matters in pages 4, 5, and 6 of the Section B narrative? Mr. Spitzer: I'm goingA. I would not disagree withthat. 10 (O'ConnorDec!. Ex. A, MeisbergerDepo. 16:10-14.)' The Government does not addressthis 11 testimony. 12 Nor does the Government support its position with a sworn declaration or offerthe 13 requested documents to the Court for 

### in camera review. The Government's attemptto shroud 14 these facts, documents and related testimony in secrecy by acting as the final arbiter ofprivilege 15 is impermissible. Because the Court- and notthe Government- is thejudge ofprivilege, the 1_6 Court should compelthe FAAto disclosethe redacted portions ofthe EIR, and compel answersto 17 18 19 20 21 22 23 24 25 26 

## 27 28 2 

### The DOT Orders cited bythe Government do not support its position. In

### In the Matter ofU.S. Airways, DocketNo. CP08EA0006 (2008), U.S. Airways sought "the recommendations of [unknown] FAApersonnel concerning the amount ofthe civil penalty." Similarly, in

### In the Matter of ContinentalAirlines, FAA OrderNo. 90-19 (I

### 990) (cited by the 

### U.S. Airways decision) the respondent soughtthe "recommendations ofF AA 

### personnel regarding the amount ofthe civil penalty." These requests differ from AlaskaAirlines' requests, which are related to testing the privilege itselforfacts already known- 

### i.e., Alaska Airlines' questions about whetherthe EIR contained factual mattersthat were not providedto AlaskaAirlines, what FARs the Government is basing its enforcement action on, and whetherJoel Wade was involved in the investigation. AlaskaAirlines' requests are more analogousto those in

### Am. CivilLiberties Union Found. v. UnitedStates, 833 F.Supp. 399 (S.D.N.Y 1993). There, the Court ordered disclosure of custodians ofpurportedly privileged documents, and circulation-list information concerning purportedly privileged documents. The court found that such information had "obvious importance" for evaluating whetherthe deliberative process privilege applied. 

### I d. at 403. 3 

### AlaskaAirlines has not been provided pages 4, 5 or 6 ofthe EIR.
ALASKA AIRLINES' REPLY REMOTION TO COMPEL 4 (No. 2011NM020013) sd-622999

### 1 the deposition questions set forth in AlaskaAirlines' Motion. 

## 2 3 4 5 6 

### 7 8 

### 9 10 

### 11 12 13 14 

### 15 16 17 18 19 20 21 

## 22 23 24 25 26 27 28 III. DISCLOSURE OF THE EIR CHECKLIST WAIVED THE DELIBERATIVE PROCESS PRIVILEGE
The Government argues that Inspector Wade's disclosure ofthe EIR Checklist and internal FAA communications does not waive the deliberative process privilege because Inspector Wade's disclosure was "unauthorized." (Opp'n at 3-4.) The Government strains to make this argument, attaching the declaration ofJodi Baker, InspectorWade's current supervisor, inwhich she statesthat she did not "condone"the disclosure. WhetherMs. Baker condonedthe disclosure is not dispositive ofwhetherthe disclosure was "authorized," orwhetherthe disclosure waives privilege. Rather, the waiverinquiry requires a careful analysis ofthe specific nature and circumstances ofthe disclosure. Mobil Oil Corp. v. EPA, 

### 879 F.2d 698, 700 (9th Cir. 1989) ("The inquiry into whether a specific disclosure constitutes a waiver is fact specffic.").4 

### In situations where, like here, an authoritative government official discloses the purportedly privileged information, the deliberative process privilege is waived. 5 

### Myles-Pirzada
v. Dep 't of theArmy, 

### No. 91-1080, slip op. at 6 (D.D.C. Nov. 23, 1992) (finding that privilege
was waivedwhen agency official read report to requester); Shell Oil Co. v. IRS, 

### 772 F.Supp. 202 (D. Del. 1991) (findingthat IRS employee who publicly read definition of"tar sands" waived deliberative process privilege on behalfofIRS with regards to that definition). Inspector Wade
was an authoritative FAA Official. InspectorMeisbergertestified thatInspector Wade was the Assistant Principal Operations Inspectoratthe time ofthe incident-"second in command" only to thePrincipal Operations Inspector, Michael Ownby (who was atthe "top"). (O'ConnorDec!. Ex. A, MeisbergerDepo. 25:23-26:23.) When POI Ownbywas out ofthe office, it was Inspector Wade who would sign letters, sign-offon checklists, and authorize CMO action that required "an adult's signature." (Jd. 

### 26:18-23.) Because Inspector Wade was authorized to act on behalfof
4 

### Inthe event the Courtneeds more information to determinethe waiver issue, AlaskaAirlines suggests compelling the deposition ofInspector Wade and compelling answers to questions concerningthe EIR Checklist and its disclosure. 5 

### See also 

### Alaska Airlines' Motion at 8 (collecting cases).
ALASKA AIRLINES' REPLY REMOTION TO COMPEL 5 (No. 201 INM020013) sd-622999

### FAA-indeed, he was given signature and approval authority for CMO action-InspectorWade 2 had sufficient character and rankto make an authorized disclosure on behalfoftheFAA, even 3 withouthis current supervisor's knowledge. 6 

### Notably, the Government did notprovide a 4 declaration regarding Inspector Wade's authority from POI Ownby or

### any person employed at the 5 AlaskaAirlines CMO atthe time ofthe events giving rise to this enforcement action. 6 IV. 

### THE EVIDENCE IS HIGHLYRELEVANT 7 In an attemptto distractthe Court from the weaknesses in its privilege arguments, the 8 Government argues that regardless ofprivilege and waiver, the Court should deny Alaska 9 Airlines' Motion because the evidence sought is irrelevant. (Opp'n at 4-5.) The Government's 10 position is perplexing; to the contrary, the evidence sought by AlaskaAirlines' Motion is 

### central II 

### tothis case and AlaskaAirlines' defenses. 12 First, this action is based solely on Mr. Elgee'sreport offrost adheringto Flight 86's 13 wmg. The EIR Checklist confirms that even the FAA doubted this report, notingthatMr. Elgee 14 "actedcontraryto logic" and "sacrificed believability bynotnotifying flight crew" ofthe frost 15 beforetakeoff. 

### See EIR Checklist (Ex D to AlaskaAirlines' Motion to Compel.) These 16 credibility issues led the inspectors assignedto this case to conclude that enforcementwas 17 improperbecause there was "noconclusive evidence to support" a violation. (!d.) · 18 Inexplicably, however, the Government still intends to prosecute this violation. The

### only 19 evidence the Governmenthas put forth to date is Mr. Elgee's statements and Mr. Elgee's 20 inconclusive photographs, both ofwhich are discussed inthe EIR. The Government's purported 21 expertwitness, Mr. Tom Bond, is going to base his opinions onMr. Elgee's reporttothe FAA, 22 23 24 25 26 27 28 6 

### Courts have even gone so far as to find waiverwhen information is inadvertently disclosed-a situation much less compellingthan thatpresented here. 

### See, e.g., Goodrich v. EPA, 593 F. Supp. 2d 184, 192 (D.D.C. 2009) (stating that '"courts will grantno greaterprotection to those who assertthe privilegethan their own precautions warrant'" and finding that "privilege is lost even if the disclosure is inadvertent" (quoting

### In reSealedCase, 877 F.2d 976, 980 (D.C. Cir. 1989)); 

### NaturalRes. DefCouncil, 442 F. Supp. 2d at 865-66 (rejecting government's argument that records were "leaked" because agency failed "to take affirmative steps to inhibit

...further dissemination");

### Haddam v. INS, No. 99-3371, slip op. at 5 (D.D.C. Feb. 15, 2001) (holding that INS's mistaken disclosure ofdocument protectedby attorney-clientprivilege to plaintiff's attorney waivedthatprivilege for that document).
ALASKA AIRLINES' REPLY RE MOTION TO COMPEL 6 (No. 2011NM020013) sd-622999

### I which the FAA found to lack credibility. (FAA counsel has separately represented to Alaska 2 Airlines that Mr. Bondhas only been provided the EIR). Thatthe FAA originally determined 

### rvlr.. 3 Elgee was no( 

### a credible witness is evidence that AlaskaAirlines is entitledto, and must, use in 

### 4 its examination ofMr. Bond and in its defense 

### ofthis action. 

### 5 Finally, the FAA's credibility and evidentiary basis Jlndings are

### facts incident to its 

### 6 investigation in this matter, not "expert or opinion" testimony as the Government suggests. 

### 7 Accordingly, there is no regulatory bar to admissibility ofthis evidence. 8 

### 9 

# v. NO EVIDENCE CONCERNING THE GOVERNMENT'S SUPPOSED EXPERT HAS BICEN PROVIDED TO ALASKA AIRLINES
10 Finally, the Governmentcontends thai Alaska Airlines has been provided "the extent of 11 

### non-privileged communications with the cxperi inthis case, which consist ofemail 12 

### communications made by the CMO with the experi[.]" (Opp'n at 5.) 

### No such e-mails have 

### ever 13 been provided, much less provided prior to the Govenm1ent Jlling its Opposition. (O'Connor 14 

### DecL 

## ,1413-5.) Indeed, Alaska Airlines has requested documents and depositiondates related to 

### 15 Mr. Bond's testimony-apart from Alaska Airlines original discovery request-on July 

### 31, 16 August 1, August 2, and August 16,2013, and has been given nothing. 

### (ld**~** 

### 3, Ex. B.) 

### 17 Accordingly, Alaska Airlines renews its request to compel documents related to the 

### 18 Government's purported expert's testimony. 19 

### VI. CONCLUSION 20 For all the foregoing reasons, Alaska Airlines' Motion to Compel should be granted in 

### 21 fulL 22 

### 23 

## 24 25 

## 26 27 

## 28 Dated: August 

### 22, 2013 MORRISON & 

### FOEI<STER LLP d' //?/;r.?

# //,///~1/ / /i{/'jL/ 

# >t-t.-,_ //LA- 

# u;v /"'" ·--- By: f::___ ----;------- ··--- 

### William V. O'Connor, 

### Jr. Attorneys for Defendant ALASKAAIRLINES INC.

ALASKA AIRLINES' REPLY REMOTION TO COMPEL 7 (No. 2011NM0200\3) sd-622999

### 2 The undersigned certifies under penalty ufperjury under the laws ofthe State of 3 California that on this date I caused to be served in the matter indicated a copy ofthe within and 4 foregoing 

### document upon the 

### following persons: 

### 5 

### 6 7 8 

### 9 10 11 12 13 14 15 

### 16 17 18 19 20 21 22 

### 23 24 

### 25 

### 26 27 28 Federal Aviation Administration Attn: Hearing Docket Clerk, AGC- 430 

### Wilbur WrightBuilding- Suite 2Wl000 Washington, D.C. 20591

Robert Spitzer I(gbert.S

### pitzer(il)faa.go_y 

### FAA Office 

### ofRegional Counsel 1601 Lind Avenue, SW Renton, W A 98057

Dated: August 22, 2013

Cettit**~ate** ofService (No , 111NM020013) 

### 1 

### Via Nationwide Legal, lnc.

ViaE-Mail

### 1 WILLIAM V. O'CONNOR, JR. 

### (CA SBN 216650)

·1 

### NOConnor@1nofo.com 2 JOANNA 

### L. SIMON (CA 

### SBN 272593) JoannaSimon@moro.com 3 MORRISON & 

### FOERSTER LLP 

### 12531 High BluffDrive 

### 4 SanDiego, Calif(nnia 92130-2040 Telephone: 858.720.5100 

### 5 Facsimile: 858.720.5125 6 Attorneys for Alaska Airlines Inc. 

### 7 8 

### 9 UNITED STATES OF AMERICA DEPARTMENT OF 

### TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 10 11 [n the Malter of: FAA Case No. 201 INM020013 12 Alaska Airlines Inc. 

### DECLARATION OF WILLIAM V. O'CONNORIN SUPPORT OF ALASKA AIRLINES INC.'S REPLYIN SUPPORT OF MOTION TO COMPEL 13 14 

### 15 16 17 18 19 

### 20 21 

### 22 23 24 25 

## 26 27 28 I, William V. O'Connor, state: 1. I am Partner at Morrison & 

### Foerster LLP, col!nscl ofrecord for defendants Alaska Airlines, Inc. 1am licensed to practice inthe State ofCalifornia. I have personal knowledge of the ±acts set forth below. Ifcalled nponto testify, I could and wouldtestify as to the matters set forth herein. 2. A true and correct copy ofexcerpts from the deposition ofJustin Meisbcrger taken
on August 1, 2013, is attached hereto as Exhibit A. 

### 3. I'verequested documents and/or communications concerning Thomas Bond's testimony from Govermnent counsel on multiple occasions, including onJuly 31, August 1, August 2, andAugust 16, 2013. 

### A true and correct copy ofan e-mail from me to Government collnsel reflecting theserequests is attached hereto as Exhibit B.

Declaration ofO'Connor ISO ofReply re: Motion to Compel (No. 20\ 1NM0200\3) sd-624372

### 1 

### 4. 

### As ofthe date the Government filed its Opposition, no documents, xeports, or 2 communications concerning, or by and between, Thomas Bond and/orthe Government were 3 produced to Alaska Airlines. 4 

### 5. As ofthe filing ofAlaska Airlines' Reply, no documents, reports, or 5 communications concerning, 

### or by and between, Thomas Bond and/orthe Government were 

### 6 produced to Alaska Airlines. 

### 7 6. I declare underpenalty ofperjury nnderthe laws ofthe United States ofAmerica 8 that the foregoing is true and conect and thatthis declarationwas executed in San Diego, 9 California onthis 22"d day ofAugust 2013. 10 II 12 13 

### 14 15 

### 16 

### 17 18 19 20 21 22 23 24 25

27 

## 28 Declaration ofO'Connor ISO ofReply re: Motion to Compel (No. 2011NM020013) sd-624372 

### By:



### 2

### 2 The undersigned certifies under penalty ofperjury under the laws ofthe State of 3 Californiathat on this date I causedto be served inthe matter indicated a copy ofthe within and 4 foregoing document upon the following persons: 

### 5 6 7 

### 8 

### 9 10 11 12 13 14 15 16 

### 17 18 

### 19 20 21 22 23 24 

### 25


## 27 28 Federal Aviation Administration Attn: Hearing Docket Clerk, AGC- 430 

### Wilbur WrightBuilding- Suite 

### 2WI000 Washington, D.C. 20591

Robert Spitzer Robert.Spi tzer(a)faa.gpJ! FAA Office

### ofRegi~nal Counsel 1601 Lind Avenue, SW Renton, W A 98057

Dated: August 22, 2013

Ce.rtii" catc ofService (No • 111NM020013) 

### ViaNationwide Legal, lnc.

ViaE-Mail

# EXHIBIT AJUSTIN MEISBERGER; August0I,2013


### 1 

### UNITED STATES OF AMERICA 2 

### DEPARTMENT OF TRANSPORTATION 3 

## OFFICE OF HEARINGS WASHINGTON, D.C. 4 

## In the Matter of: 5 

## G Alaska Airlines FAA case Nullll:le:r 'I 2011NM0200B



# io

AUGUST i I 

# iWi3 48Clo s9tl'f'ti i!lS'rH STREET, SUITE**~40**



## :Ul

22 23 24 REPORTED BY: SALLY J. 

### HANDS, CCR 2191 25
YAMAGUCHI OBIEN MANGIO court reporting, video and vldeoconferencing 800.831.6973 206.622.6875 production@yomreporting com www,yomreporting.com Page IJUSTIN MEISBERGER; August 01,2013



## " H**]_~** 

## " ''**·~** 

## " APPEARANCES
FOR ALASKA AIRLINES: WILLIAM V. O'CONNOR Morrison & l"oer.ste:r:- 12531 High Bluff Drive, Suite 100 S.1n Diego, C<>liforni<> 92130 8S8. 720.7932

.:n:<:REWt' ROSS i\l<Jska Airline!; 19JOO Internacional Blvd. Seat;;c, Wallhington 9Bte8 206.)94.5040

FOR THE FEDERAl, AVIATION ADMHTISTRATtON:
ROBERT D, SE't'TZBF. Peden'tl A'ri.ation Adminhtration l(Ol lind .lw<>l1ue, ANM-? Retltcm,**J~ashinglt)n ~8Co':i7**  125.22?.1417 robert .spit.2er<.•faa go·t

20 ALSC> PR£SH/"T , W:mc23 H

l ll ll E X EXAH1NhTIQNS BY·**~IR** ()' CONNUR

F.X!nBT'!S FOR l:DENTIF!(:AT!QN**E>~hibit** E. StO!t.ement of**c~~e** 10 Exb.ibit {'- ledtiill**Notific~tion** ll E>:H.blt C,4 AS Bd<>fi"g Pad:0t 12 E.'<i>;bi t**C~** l? ACl<RS**~1<'ls$il<;10S** l:l EXhibit**1:-1:~** Record of Telephon-e**('rmvenHlti,~n**

15 Exhibit C<l Fl

.. t<;lsl Violated dccuroern
Rxhibir.**~s** Witne;;w**Stat~ment** and L;otter 1B from l•lr. o·.mby to Me**Elge~ dat~d**  J'}rr\lar<r' 20, 2QH Page2**PAG~** ISl

5B 1 2 SFATAC, WASHINGTOO; AOOUST 1, 2Q13 9:56 A.M. --cOo-- JUSTIN HEISBERGER, 

### 2
..5 Pug_C"4

4 5 6 7 srom as a witness by the Certified Court Rep::;rter, testified as follows:
8 EX.111oUNATICN 9 BY MR. O'OJ/IJNDR: !o Q, <!»! -· Ht, Mels!>et!Ju, Uid 1 11 il l3 !4 15 16 11 li
20 A, You did. Q,
--**~§** fitiat O'Gffe6tily1 A. You did, <), >n y6ti ready l6 procfidi A, I am, yes.**~..** §an yw sta€e"JJiiiiE Mi natlii! fut €til! ie.!otd

.. A.· Justin Dotiglas**l'~isberger,** 1}, kl<i

## wlia< ii Ywt Mtt!iif 

### ocC\iPllHoo 6f
A. I 1man aviation safety inspector**·~'ith** the 21 Fedetal Aviation Administration attached to the Jl:.laska 22**ll.Jrlii~es** GD.· i3 fi.-**~** ff.D·**g~** for wliaM
• H:

1 j 3 

# • A. Certificate Mana.cjement Oftice

. ij.- Did fi'M**~** tire SE titie**~~**

A: 1 did: Q.- ::::::fir**&Mri!L~** 26H? A. I did; &.- liM 8£**~** fillf;§o w.lii ililw! !8**~** liliillild 5**~ ~** **~** 

### is ffi!E 

### we Ery f6-**~it** ooe at:**~** 

# e**t~,** 1: :itti6w :it is ii6iia-i 

### .m**i~u** e&iiVehtatwn 

### ta 'i**an€iei~ ~st:f.ars;**  

### But £6t W BenMi:t 6£ Sally; 9 V:eli.i**~** W

### just: cia qtteSEi6it sittl Miilii!it"; §**~t** i!l.tfiywr Mlettt dutie:s 00 16 i@eiji§iial:BiiiH&t 

### as an <Wiatlen safety**~Ear** f& ii tilie itiaska**€e:t~;ifie·a~ ~aren~**  Gf.Hee? 12 A, 1 j:lroiiide**oversig.~t** strictly for the airline,- 13 1his whole office is dedkated just to Alaska Airlines, 14 unlike oth<:r FAA offices. And the duties and 15 resp:.nsi:Oilities fctll within my scope., e\'€:r}khing frtm 16 manual rev·iS:ions, enforceme_rtts, to \'K.lrking oo special 17 projecta for the airline thert'JSelveS. I focus ;rore on 19 technolc<jy. So for instrwrent procedure develapnent Exhibit C 16 Ala,;ka Airlines, CWP-Q4, :n I 19 they do speciflca11y in the state of Alaska, I 1\'0rk
.1.() Deicing/Antl-l<;i"g R<lt.:>rd 21 Exhibit C"14 Ground DeiCing/Anti-icing l'!"ogt·am O•Jelcview 104

Bxhibit A EIJ< Reoview**c~.-ecklist** 109 

# • YAMAGUCHI OBIEN MANGIO t:ourt reporting, video and vldenconferencing 800.831.6973 206.622.6875 production@yomreporting com www.yomreportlng.com 20 '!&}' closely with them

. 21 So this office is all Alaska Airlines; but -..'€ 22 each have our**cr~n** kind cf little specialty that we fall 23- into, and mine is rrore the teclmolcgy focused as of 24. late. 25 Q. Okay. For purposes of today, we'll probablyJUSTIN MEISBERGER; August 01,2013 Page 14 1 deposition today •• and it also helped refresh your

recollection as to the investigation into Flight 86 was not redacted; is that**co:rr~t?** A. That is corr-ect. 5 Q, And do you see, on the bottart of Section B, it G says, section B1 Narrative, Page 1 of 6? 

# ' ' 10

12 13 A. Yes, I see iL Q, DO you: have that? A. {Nodding.} Q. BUt the: pages that are inel\lded within
A. That is correct. Q. Arid what 1 want to know, is lilieie any factuai 14 matters -· strike that. is

17 

### 1< Is it correct that there are an additional

A. That is correct. Q·, Arid yOU reviewed the addit:iOriai pages; 19 pages 41 

### s, ana 6? 20 A. I diCL 21 o. Arid did tnat include ari.fririHve? 22 23 is A. No

-- a narrative, no, of rhe facts. If tfo.at ifican-- 24 HR: SPHZER: l'iell, I 1m g'oing to object 25 to this continued line of questioning; things that have been redacted for the purp:Jse of privilege, so it is not really a subject. for this 2 3 4 A. Yes. Q,

-- section C; right? A. Yes. Q, One at a time, 14

.. 17 Page 16

5 There are items of proof in Section C that I 6 cannot find any reference to in section B, which leads 7 me to believe that thete are factual matters referred a t6 in pages 4, 5, and 5. J)j you agree with Wt? 9 !O A. I agree with your assumption, yes. Q. okay. So I'm cortect that there are footual 11 

### mt.wa descr.ilied. in

### pages 4, 

### s, and 6 of thEi Secti® B u .tilirti.ttive? 13 14 15 MR, SPITZER: 1 1mgoing'**~~** A. I would not disagree with that. HR. SPITZER: I'm going to object to 16 this continuing line of questioning. This is 17 privileged infornBtioo. what's in the Section B that's lS bee;n provided to you"'' or :rather what h.asn't been 19 provided to you ilS privileged informtion, Continuing 20 to ask this witness ab:Jut tMt infonration is just 21 getting into pdvilege. So let's ITl')1!'B the line of g1.1estioning along to**s~thit~3** else that's relevant to what**~.•e** 're here for tcday.**~~.** O'CONNOR: think as far as it is literally i!tfOssible to test thB privilege, because**·~-e** don't even know the basis for iL l thin.!.::

-- you've 2 said it's p1·ivileg€d.- r don't knO'IF 1..P.at privilege you investigation. are Teferring to; So for the record, let's just have Nhac he looked at or didn't look at, t.he. place 4 the basis fot· the privilege for pages 4, 5, and 6, to bring that up is a rrotion i.n lirrlnei it's not in this: So thls "" let's m::rve on f.rc:m this line of questionir:g. privilege. io Q, {BY MR. 0'c6NNoo) sections 41 S1 and 6, aid ii that haVe anY refe1:eriee· ti:i any ia:duai matteni 12' involVing Fii-ght 86? ll f.IJL SI?ITZER: Again, t!1is isn't the 14 witness to go tllrough that •«ith. 5 MR. SPITZER: The basis fm· the privilege on pages 4, S, and 6**~-** th.ls isn't the place 7 for us to do this. But in the interest of cooperation on the part of the FM is it's deliberative process, 9**\~hich** is prot.ected;" attomey v.tll:'k-pToduct, ,.,hi.ch is 10 protected; and also opinion,**t~hich** is protected

- m, 11 rathe! it ls jusl attomey 'I/Ot'k-pnxluct, So .1f you 11>a.nt to go into this,**~te** can go into l3 this with rrotions in front of the judge. But using 14 this ,,ritness for that, is not the Bl];.1Jmpriate time m· iS Q·, {BY MIL**d'~R)** Do you have: the**~stioti** ii'! 15 place for tl'k1t. 16 mind? 16 Q, (BY MR. 6 1c:DNN0R) Did you ·- did you 11 A. I think what you are asking is, is did the 18 nanative stop. 1-.9 Q, No. What: I'm asking specifically :is "llhethe:r: 20 there was any factual mtters regarding Flight B6' 21 contained on pages 4, 5$ and C. 22 A. I don't believe so. 23 Q. Here's why I ask, because in this**~~** and we'll 24 get to this in a bit. !ut the items of proof, I think 25 that's also**called~-** YAMAGUCHI OBIEN MANGIO court reporting, video and videoconferencing 800.831.6973 206.622.6875 production@yomreporting com www.yornrepo1ting.corn 1'1 prepare ·- well, let 1s back up. iS Did you prepare section 5 of the EIR? 19 A. I did. 20 21 Sectioo :s of the EIR? MR. SPITZER: I'm going to object to 23 t:b.at. That's privileged: deliberative process. Let's 24 move on fran this line of questioning. 25 Q. (BY MR. O'CONNOR) Did you prepare pages 4, 5,

### WSTTN MEISBERGER; August 0I, 20I 3 22
..25 

# -n -M 1 Q, What does that mean? A. Adrninistrative action could be everything frcm a letter of correction, a letter of Willlling, rraybe a 4 different**-~** sc;m;.t.lUng that does not involve a civil 5 penalty. So I think a civil penalty is by itself, and the.n everything else is considered an adninistrative 7 action. It doesn't mean they are off tl':-e hook. It

just metms legally, they are not going after a fine or 9 certificate action. 10 Q. 1\nd does that ASI 1 such as: yoUrself, make a

13 A. No; because it is all driven by the 2150 14 checklist. So we really don't have yes or r.o if it 15 goes. 1 tTe ha1.re to go by what the checklist tells us. 16 

### o·. Arid &tis in ali 

### effmt to St.a.ridB.tdize tilie 17 

### procea·a 18 19 A. Fxactly. Q• 

### so iri- terinS of tile- 

### sectiw ili!it 

### are iri- t11e 20 id:R, s·ect±O!l :B,. tM:t 1 s a et<mdard way of OO:i:rig thlrigs 21 Within the PM-? 22 A. Exactly. 23 Q; S6 sane· o'f thes·e seCtioilS that 

### we haVe**~-** fot 24**~llt! 1**  the**~-** o'f- Vio1-aHoris' aM**gynopa:ts·~** that 2s is Scirie-ci.t:iriq that**yOu-~**:i:i**s·~,** for- ae- most paxt; iri

1 eVerY SeCtion B n:a_,;yadVe'? P... You should see sco-ethlng that looks \'€IY similaf.' fn::m EIR to EIR to EIR:
5 e..:maiis Witlilii tli.e- FAA aboUt· the imestig'a.tioo on 

### e Fii9ht 86,. 

### and you:**~ept €hoe~?**  7 A. Yes. MiL O'CONNOR: Are thoSB e..mails 1 exchange of ccmnunication with him, other than trying to request an official statemem:, that was it, 3 Q. Okay. What about any e-mail cc.mnunicat!ons 4 with any other potential witnesses outside the FM? 5 A. The e·mai1s to •• trying to get a FAA 6 expert
-- 7 8 9 MR. SPITZER: That'S THE mTNESS: Oh. NIL O'OJNNOR; I'm not going to let him 10 jurrp off a bridge. DJn't worry.

13 i4 A. InternaL Q, Okay, Your coi.li'lse'l ha:li assert-ed privilege iS O'Ver internal FAA CO!W'iucication.

11 y&i 

### reaaii tha-t date 

### as llie**dat~** 

### sf tile Fl-igh-t a6 18 iricident? 19 20 A. 1 believe that's the day that's in the EIR, Q, Arid when did you fi-rat !lear aoouc any 

### i-e:aue21 with Fli-ght 86? 22 A. I think it •nas wben I was called into my 23 boss'g, office to say-- to basically give me the 24 SurtllBll' of the events. 

### 2s Q; 

### okay.. Arid- 

### wno was yOur 

### ooea at the tmi

t A. Hichael C.'Wnby. 

### 2 Q. Md What is MiChael ciwiiliy;s -**~** 

### what- 

### was hl!i

p&s'iti6n at that time'? A. He .is -·- and be was, still is, the principal 5 operations inspector. 6 Q; Ai-so Kri6wri as €he Poi? 7 A. Yes. 9 you have other supe-riiisOrs? 9 priv1leged"? !0 MR. SPITZER: Yes. Any e..nails that are 10 A. At the tirre, I had a supervisor, Walter 2-ala, 11 lntemal would W p.dvl'leged wtless Ll:By oue 12 specifically released in the EIR. 13 14 r:he privilege 1;wld be? 1S**~ffi.** SPTT?,ER: It is deliberative

iB correspanderu:ie with Mr, Elgee? 19 A. I'm trying to recall if I initially sent him 20 an e,mail requesting for an official statement. And I 21 think that is contained in there (indicating). 

# " 23 24 25 Q. I've seen that**~~** A. Okay, Q.**-~** and we can talk about that in a bit. A. I believe that is it. But as far as an YAMAGUCHI OBIEN MANGIO courtreporting, vlde-o and vldeo-conferanclng 800.831.6973 206.622.6875 production@yomreporting com www.yomreporting.com 11 amj he ls still hex-e. Sut they have shifted.- He has a 12**ne1~** ;KJsition now, so am back under Hic:t:ael Ownby as a 13 di**re~'t** reiXJrt. i4 

# " 16 17 Q; so January 11th

..: A. I was under Walter Bala under Michael 0\Wf. Q. okay. And what is**walt~r** Bahls title? A. Right now, he is the-- he v.--as a frontline 18 manager, slash, sup:1rvisor, ',-Jhatever the title was 19 then, Now he is <1 DBPM. And to be honest, I can't 20 remember what it is, but he is a database management 21 guy for all of our data that we collect on 22 surveillance. 23 24 Q. Ana what about Joel Wade? A. Joel Wade was the assistant principal .25 operations inspector at the tine.JUSTIN MEISBERGER; August 01,2013

1 0. So if you were to sort of map out an 2 organization chart for me, you 1d have ()mby at the l tq> -- 4 A. 1 would. $ Q.

-- eorr.ot? S A. Uh-lruh. 1 Q. And Wlltlre &>Billa ana Wade fit in intems of 8 tbe hiOtilt<lby? 9 A. Joel wade was the assistant principal 10 operations inspector,. so I believe he would fall under 11 Walter Ownby, Jmd then Michael Bala would also fall 26
..29

within the FAA. 2 Q. Okay. A. So if you take that, it seerred to have drawn 4 out quite a lffiDY oonths. 5 Q. Let 1s break this down into Specific 6 individuals. The witness that you are referring to is 7 Mr;. J6fui Elgee? 8 9 A. Yes. Q, And I think you metltioned that the iO investigation took a little lO'Jlg'er because 'jfOU were 11 "Waiting

-- 12 under Walter OWnby. Joel does not haVe any supervisory 12 A. Yes. 13 reSponsibilitY in the Way the PM structUres that 1-4 particular position. So fi¥self and all the othet' 1\Sis 15 fall under walt. lJ Q.

-- to get an offieiai statentme: f-rottt him. De:. 14 }'01.!**~** WhY it tooK tlme to get ail offiCial stateit'.eilt 15 from him? A. He was on vacation.-
16 A. He was the assistant. kid What we J.iaiie ie, iS 18 Q, Bo yOU im&N**wiier~** 

### ne lives? A. 1 believe he lives in Alaska. 19 wlwn scmeone reViews a dtecklist or if Michael OwnbY is 19 

### o·. riO yOU kfiooi H' he**~** 

### any time iri- tOO 20 -out 1 because We need his signature for thiilgs,- he now 21 falls as second in conmand if v.'e need Sigilatin:es for iZ:2 k"'ff@F."!! f&l**,~~~i-::}-~.~: f&~** **~ ~**  do that
Q. So in 2011 1 it coUld De that 00 iias' iii a

P... Absolutely. Q; "· i:o reVieW Your checklist- ielated t:b thiS RIRi corti!'Ct? A. That'S correct. 5**~·;** lind de 'fdu recali the- date that yOii learried a:ixrut**til~** Fii-ght 86**iriCM~~** from Mi,. &i:njjyt· 7 A. No, I do not. Q.. wiiat 

### was your**assi~t** w-±ili Mr. 

### owroy- mtn 9 respect: tci Flight 86? 10 A. If I recall, the assignment**;~as** to ir:rvestigate l1 it: P...nd 1 don't think there was any dltect.l(m at thte 12 time to"" we are going to an enforcement route.- 13 thinlc it was mot-e of a fact"finding mission,
is iniiesti{:Jations start: You sort df start With the lS inva:stigation, and t::rum you di;!dde,i right? 20 

### seaetie: area-? 21 A. I couldn't tell you that; 22 Q. okay. But as fal:.- as YoU knoW; there'

### was no 23 sPeCific- reasOn giVen for the delaY in Obtaining arr 24: ciffkial statement frc:in h::im- other than he wail' on 25 vaca.HOO?

.r:... That's all I was told. Q.- 6ka,y.- And' let;a

-- take" a' locik; if j.io\1 WoUld; pl-eaa·eJ at H)frdbi-t s -- A. Okay.- 

### 5 Q.-**~~** WhEii"e it tall.:s aboUt si.ilttmi Of ViolaHoilH. 6 The i:i-it!t**s~t~l!** tailci ab6cit jaiii.ia·ii 7tli; zeH,.**~**

A:k$ita**Mrime~** eer·Hficab!.**~enie'n-t o£i'±e~£** **r~~Fied** 

### a n6tificiStiOn liiiti 

### apassanger -- 9 A. m1-huh. io Q .-**~-** that Alaska' Airlines Fligoht 86 <iepa±ted 11 Anchbiage With- ci6ntamiiuid<:Jri- Oti- the wings and COntrol 12**Sutfacea~** Now1 that passenger, was that- M:b .:tom 13 Ei-gee? 14 15 A. That was. Q, Okay, Have you ever heard of Mr. E'lt;Jtoe befote

17 i!J A.**Uh~huh.** 17 A. No. Q; Do yoU recall haw long in tertns of a period of 18 Q, Had any dealings With him? 19 l;;ima, £I'Oill January 7th untd.l when you were -- )'01i 1d· 20 finished your investigatiOn of !:.hi! :Vlig'iiJ. 86 fncirumt? 21 A. It was quite a while. And it 1 1.'asn 1t so ooch 22 because we 1>:ere still getting facts; it was tecause 'l.'e 23 were still trying to hear back frcrn people. '!he 24 witness was one that we were trying to hear back for, 25 telieve, an official staterent, as well as experts

court reporting, video and videoconferencing 800.831.6973 206.622.6875 productlon@yomreporting com www.yomreporting.com 19 A. Never. 20 Q. oo you**~mow'** if anybody in this offiee nas evet 21 had any druing-s with him**before~** 22 A. I do not know

-- I don 1t know if any:tody has 23 any personal dealings or oot, 24 Q, Okay. If you take a look on section with that 25 first sentence, under StJDinarY of violations, thatruSTIN MEISBERGER; August 01,2013

1 qu.est.ions I might have about that C!Cilttllmt; is that 2 correcU
4 5

10 A. That is correct, Q. That:'Ill a long question. MR. 0 1CCNN''.Ri Okay. I need a five-minute break 1 and then we'll CC!rrk:') back and wrap it up. THE**~IITNESS** 1 Okay, (Recess taken l MR. O'CiJNl«JRJ Hr. l•!eisberger, :don't 11 haVe any rrore queStions for you at this tiTrE, We've 12 had a discusSion off the record that We are go:ng to 13 continue your deposition until ·.ve can seek sane 14 guidance from the court on the privilege issues that 15 haVe bee:h raised to:i3Y.- 16 SO what 1 haVe agreed with itt:**~itzer** 17 can confirin or make any m:xlifications

-- is that we 18 \.fill iierY qUicklY g'et sanething to the court on two 19 issue-s: 20 one, ccwpelliilg respoitses to question£, you

21 perhaps sane documents related to privileg'e and waivers 22 tf..a:t have arisen tcda'/ in your deposition.- And to.\:>; in orde1· to allo<.>l time fot· that being RE; 114
.. 117

CORRECTION & SIGNATURE PAGE

U.S. DOT, OfF:tCS OF liEAR!NGS; 2011NM020013 .JUSTIN lOElSBSRGS:R: TAKEN AUGUST 1, 1013 Reported by, SAt/iN .J. HANDS, CCR 2191

I, J(JSTIN**J~EISE>i:RGER,** have t'<:lacl the '"'it.hi:r: tran<>crip-t taken AtJGI!ST l, 20Ll,**<~nd** th"' !li>me is tflJ(' 6 -Snd accurat"' eKt:ept- focr any changea anrl/or corr€ctimtl3, if any, as**follo·"~'** CORRECTION REASON

21 Signed ilr Nashtngron

24 :t-esolved prior tO the hearing'; '.o.'C're going" to rake a ?.q 25 request 

### to continue the h-earing for sane time to al1C"1f**tho~e** icwues to get**~Dr**ted out.**!.~** that fair statemc;nt MR. SPITZER: Yes. m<, O'COW:/I)R,

1(1 gain-g t_o put off Mr**t~ade's depmli~ion**  tmtil such tiroe

12 likely to come up in hi\'I depcsitir.:on, j1.1st "''-' th1=y did Ll in ML**~leir;berger's** deposition. So '1 ilSm.tme you no: H**<~.gre,.;:~ble;** to pastponifLg that de-,po-sition 1.mti! we hil.?0 15 ru1ing:**l~R.** S?!TZER, 0( nmrs" MIL O'CONNOR' That'r,; illl. {[lepooition l!djOIH"ll\"d**~t** 1,16 p.ro.)

court reporting, video and videoconferencing 800.831.6973 206.622.6875 production@yomreporting com WW>N.yomreporting.com J(JST!O! l·IBISBER(JBR

19 WIT!·lESS HY HftJffi**~m** DIGT'l'AL**:';lGliAT\ll'.~ ~hi~** **~th** o:li!y M

SALO,Y :" HMIDS**'ri~sbingtcn** St<>te**Certifi~d** eou:rt Reporter, CCR 2191

# EXHIBITB

### O'Connor, William V. From: 

### Sent: To: Cc: 

### Subject: O'Connor, William V. Friday, August 16, 2013 6:07 PM Robert.Spitzer@faa.gov Jeremy Ross RE: Alaska Flight 86



### I**;f!~!S tf"ic~t** **\fJf:~:** 

### (Jiid ntJt 

### hear' frurn vou this**v.J@E~k-** 

### dri'tes, fur' 

### the /c.:,-_c;,. 'ft.i'U \f..IP 

### tel e::aordHiat8·**\Jif~tli** Q(Jir' 

### w!trTes·s-e:s- cHid we·**h;JI/f-~** 0'&t'n1· 

### stheduit:s· t.Ype·u 

### vvhife 'i-Je vv;:iif ra fr'C:Jtfl1**ht~Jdng.** ·;t..JO'uld bE' t'Giil'tlli'Ur§:t:i**5i-r\Gr~~-** 

### fs:/1,. whe·rr FAJ\ to 6-UfGcFi{illi-Uc'fnct'· l!iii1fCl'PC't pi·iVife·g.e C!S;S-er'tiOfi§ ;,·rlrlre"c··!l in M•·rhrrr;iri!'i



### Bill

From: Robert.Spitzer@faa.gov [maiIto:Robert.Spitzer@faa.gov] 

### Sent: Wednesday, August 14, 2013 11:51 AM 

### To: O'Connor, William V. Cc: Jeremy Ross 

### Subject: RE: Alaska Flight 86 Just so you understand, Mr. Elgee is not receiving any compensation otherthan the customary 40 dollar/daywitness fee from the FAA for his testimony. While he used to work for the FAA, his current status is as a private citizen. As you are aware, FR 32(a)(4)(D) allows a party to use a deposition of a witness ifthe party offering the deposition could not procure the witness' attendance by subpoena. Hopefully we'll hear back from Mr. Elgee with dates, and avoid the whole issue.

Robert Spitzer Attorney FAAANM-7 1601 Lind Ave. SW Renton, WA 98057 1Tel: 425.227.1417 Fax: 425.227.1007

,-·ro,Tl "O'Connor, William V." <woconnor@mofo.com> ANM-007, Office of Regional Counsel To Robert Spitzer/ANM/FAA@FAA, Cc "Jeremy Ross" <jeremy.ross@alaskaair.com> D2te 08/14/201311:40 AM Subjccl RE: Alaska Flight 86

sorry R'o'b·. We do not agre·e. FAA i11llst shaw good cause tcY ws·e 

### dep-o-S-ition'S 

### at tria·I

### and lay 

### fourrda:tfGn for the· photographs-

.. W'e do· 

### -n-ot befieve· Mr. 

### Elgee's FiShing. 

### trips would 

### be good 

### caus-e· i;ill 

### any eve-n·t1 

### as- he §fate·a' in f=ii's Gtep·osi'fiO'i'r he is 

### working 

### for PAA. 6rl this hHtt:e·r. Ple·as-e 

### provide dateshefore· the end ofthe week

.. 

### the court ls· wa·ifing fO· 

### hear· frorh LK**~ill'** 

### From: Robert.Spitzer@faa.gov [mailto: Robert.Spitzer@faa.gov

## l Sent: Wednesday, August 14, 2013 9:55AM 

### To: O'Connor, William V. Cc: Jeremy Ross 

### Subject: RE: Alaska Flight 86 I'm currently trying to get dates of availability for my expert. The FAAwill agree to setting a hearing date without hearing from Mr. Elgee, ifAlaska will stipulate to the FAA admitting Elgee's deposition at trial, and will stipulate to the admission of his two photographs. Robert Spitzer Attorney FAAANM-7 1601 Lind Ave. SW Renton, WA 98057 Tel: 425.227.1417 Fax: 425.227.1007

From "O'Connor, William V." '*VVOConnor@mofo.com>**ANM-007~0ffice** of Regional Counsel To· Robert Spitzer/ANM/FAA@FAA, Cc "Jeremy Ross" <jeremy.ross@alaskaair.com> Date 08/12/2013 03:35PM SubJect: RE: Alaska Flight 86

Rob, Let's get this scheduled for September. We shouldn't have to wait for Mr. Elgee to get back to us. He said in his deposition that he doesn't have any prepaid trips until November. We are unavailable on September 9 and September 26-27. How about September 17-19 for the hearing? Itold Ira we would get 2back to him right away. Thanks. Best,
Bill From: Robert.Spitzer@faa.qov [mailto:Robert.Spitzer@faa.gov] 

### Sent: Friday, August 

### 09, 2013 1:07PM To: O'Connor, William V. Cc: Jeremy Ross 

### Subject: Re: Alaska Flight 

### 86 Bill, I'm waiting to hear back from Mr. Elgee about his schedule. I believe that he is off on a fishing trip this week, so it may be a few days. I'll let you know as soon as I hear back from him. Robert Spitzer Attorney FAAANM-7 

### 1601 Lind Ave. SW Renton, WA 

### 98057 Tel: 425.227.1417 Fax: 

### 425.227.1007

From "O'Connor, William V." <woconnor@mofo.com> ANM-007, Office of Regional Counsel To Robert Spitzer/ANM/FAA@FAA, Cc "Jeremy Ross**~erem;{ross@alaskaair.com)''** <jeremy.ross@alaskaair.com>, "Simon, Joanna L."**<JoannaSi~on@mofo.com>** Date 08/09/201310:0/ lVI Subject· Alaska Flight 86

Rob, Do you have a range of dates for the continued hearing? Ira Leibowitz called and Itold him we would provide dates today or Monday. Obviously, the proposed dates should not conflict with Mr. Elgee's fishingtrips. Judge Goodwin is going to grant the continuance once he receives the formal motion, which we intend to file this morning. Thanks. Best,



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