In The Matter Of: 

SERVED: February 11, 2015 

U.S. DEPARTMENT OF TRANSPORTATION·· 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2013-0291 

AIRBORNE MAINTENANCE 

AND ENGINEERING SERVICES 

) 

) 

) 

) 

) 

Respondent ) 

Case No. 2011S0290032 

ORDER GRANTING RESPONDENT'S 

MOTION TO EXCLUDE, AND 

GRANTING/DENYING OTHER MOTIONS 

On December 16, 2014, the Respondent filed Respondent's Rule 37 Declaration and 

Renewal of Motion for Sanctions ("Renewed Motion"). 

On December 18, 2014, an Order Granting Respondent's Motion to Modify Litigation 

Schedule and Extend Two Dispositive Motion Deadlines was filed. 

On December 19,2014, the FAA filed a Response to Renewed Motion for Sanctions and 

[a] Motion to Compel and Exclude ("Response," "Motion to Compel," and "Motion to 

Exclude"). 

On December 23, 2014, the Respondent filed Respondent's Motion for Extension of 

Time. On December 24, 2014, an Order Confirming that Respondent's Deadline to File 

Response is January 5, 2015 was filed. 

On January 5, 2015, the Respondent filed Respondent's Reply to Complainant's 

Response to Renewed Motion for Sanctions and Answer to Complainant's Motion to Compel 

and Exclude was filed ("R's Reply" and "Answer"). 

On January 7, 2015 the FAA filed a Reply in Support of Motion to Compel and Exclude 

("FAA Reply"). 
A. Brief Identification of the Five (5) Motions: 

1. The Respondent's December 16,2014 Renewed Motion requests exclusion of Mr. 

Michael Christensen as an FAA expert witness on multiple grounds. 

2. The FAA's December 19,2014 Motion to Compel requests that the Respondent be 

required to complete its discovery obligations; specifically: 

a) Complete Mr. Daniel J. Hancher's expert report information; and 

b) Complete answers to FAA Interrogatories Nos. 13 and 14. 

3. The FAA's December 19,2014 Motion to Exclude requests that the Respondent be 

precluded from calling witnesses that have not been previously disclosed; specifically: 

a) Mr. Becker as an ·expert witness; 

b) Mr. Savastano as an expert or fact witness; 

c) Any fact witness other than Mr. Becker; 

d) The witnesses disclosed by the Respondent on December 23, 2014; and 

e) Any witnesses Respondent may later identify. 

4. The Respondent's January 5, 2015 Request to File a Reply, which requests leave to tile a 

Reply to the FAA's Response [to the Respondent's Motion for Sanctions]. 

5. The FAA's January 7, 2015 Request to File a Reply, which requests leave to file a Reply 

to the Respondent's Response [to the FAA's Motion to Compel and Exclude]. 

B. Brief Discussion 

All motions, documents, and arguments submitted by the parties have been reviewed and 

considered. This discussion only briefly highlights certain matters in each motion for relief. 

1. The Respondent's December 16, 2014 Renewed Motion 

In its Renewed Motion, the Respondent limited its request to the exclusion of Mr. 

Michael Christensen as an FAA expert witness. The Respondent cited multiple grounds for 

exclusion, including the grounds of untimeliness and prejudice. In response, the FAA agreed that 

its' expert disclosure of Mr. Christensen was untimely, but asserted that the delay was minimal 

in scope, good cause existed for the delay, and the Respondent had suffered no discernable 

prejudice. The FAA also asserted other bases for denying the Respondent's motion, including 

Page 2 of 15 
(not inclusive) the fact that the parties had never contemplated taking expert depositions in this 

case, and that the sanction of exclusion was disproportionate to the error. 

The FAA's arguments were not persuasive. for example (not inclusive), the FAA 

asserted that the parties had never contemplated taking expert depositions in this case. This is 

incorrect. The parties had discussed taking expert depositions earlier in this proceeding ( 11/7 I 13 

TR. 14-18), and time had been scheduled for that purpose. The November 7, 2013 Order Setting 

Litigation Dates and Procedures specifically adopted the expert deposition timeline agreed to by 

the parties. May 2, 2014 was set as the deadline to exchange expert witness reports, May 16, 

2014 set as the deadline to exchange expert rebuttal reports and June 6, 2014 set as the deadline 

for taking any needed expert depositions and completing general discovery. (11/7/13 Order, 2 

~A, 6-8.) 

As the parties are aware, problems then ensued with factual discovery and the taking of 

fact witness depositions. On April 7, 2014 the Respondent filed a Motion to Enlarge Time to 

Complete Fact Witness Depositions. This Motion specifically confirmed that the parties were not 

seeking or suggesting any change in the deadline for taking expert depositions, "based on the 

understanding that depositions, if any are requested of the experts, can be taken prior to the end 

of general discovery on June 6, 2014." (4/7/14 Motion, 2.) Accepting the parties' agreement and 

assertions, 1 on April 9, 2014 an Order Granting Respondent's Motion to Enlarge Time to 

Complete Fact Witness Depositions was filed. 2 In this Order the original deadlines for 

identifying expert witnesses and exchanging reports (May 2, 2014), exchanging expert rebuttal 

report (May 16, 2014), and taking expert depositions (June 6, 2014), as identified in the 

November 7, 2013 Order, were re-confirmed. (4/9114 Order, 2 ~ 2.) 

Thus, based on the record in this case, the parties were supposed to have exchanged 

initial expert witness information by May 2, 2014, and were exchanging expert rebuttal 

reportsbefore May 16, 2014. This exchange would have allowed the parties to know whether 

they wished to schedule and take any expert depositions by June 6, 2014. 

1 In this Motion, the Respondent stated that the FAA had authorized the Respondent to state that the FAA had no 

objection to the Motion. (4/7114 Motion, 1.) 

2 This April 9, 2014 Order extended the deadline time for taking fact witness depositions from April 18, 2014 to 

May 31, 2014. 

Page 3 of 15 
Then, on May 14, 2014, twelve (12) days after the May 2, 2014 deadline for identifying 

expert witness identities and reports, and two (2) days before the May 16, 2014 deadline for 

exchanging expert rebuttal reports, 4 the parties filed a Joint Motion to Suspend Litigation Dates, 

requesting that the parties be given additional time beyond May 31, 2014 to respond to 

interrogatories and to take fact witness depositions. 5 While the parties did include new timelines 

for expert reports to be exchanged in their June 16, 2014 Revised Plan, no new deposition times 

were provided - because none should have been needed. According to the record, all experts 

would have already been identified by May 2, 2014, with any expert witness depositions to be 

taken by June 6, 2014. It was undisputed that the Respondent had identified its expert, Mr. 

Daniel Hancher, by May 2, 2014. (1/5115 Answer, 9.) Although it appears that the FAA had not 

identified its three primary FAA Inspectors as experts by May 2, 2014 (i.e., Inspectors Lipinski, 

D'Arcy, and Steffey), the Respondent was aware these Inspectors were involved in the case, and 

was in the process of scheduling their fact depositio~s. 6 

On May 15, 2014 an Order Granting Joint Motion to Suspend Litigation Dates was filed. 

Among other things, this Order suspended the May 16, 2014 expert rebuttal report exchange 

deadline, and directed the parties to file a revised litigation schedule on or before June 16, 2014. 

(5/15/14 Order, 1.) 

On June 16, 2014 the Respondent filed a Revised Rule 26(f) Schedule/Discovery Plan 

("Revised Plan") on behalf of both parties. This Revised Plan did not include any additional 

deposition time for expert witnesses. ( 6116114 Revised Plan, 2.) The stated intent of the parties in 

their Revised Plan was to provide all expert reports. by October 14, 2014, expert rebuttal reports 

by November 4, 2014, and close discovery on that same date- with no additional time for expert 

depositions requested. On June 23, 2014 an Order Setting Litigation Dates and Procedures was 

4 Expert rebuttal reports are those expert statements that respond and reference the opposing party's expert report, 

and contradict or rebut the opposing side's expert opinion. SA Fed. Prac. & Proc. Civ. §2031.1 (3d ed. (2015). 

5 Specifically the depositions of FAA Inspector Frank Lipinski and "other FAA representatives", as well as a 

Respondent witness, Mr. Jeff Becker. (5/14/14 Joint Motion 1-2.) 

6 NB: The duty to disclose a witness as an expert is not excused when a witness who will testify as a fact witness 

and as an expert witness is disclosed only as a fact witness. (8A Fed. Prac. & Proc. Civ. §2031.1 (3d ed. (2015)). A 

party may not evade expert witness disclosure "by simply calling an expert witness under the guise of a layperson." 

(!d.) In its original Motion, the Respondent moved to strike Inspectors Lipinski, D' Arcy, and Steffey as expert 

witnesses, for failure ofthe FAA to timely disclose them as experts. The Respondent then waived this request for 

relief after filing a CR 37 declaration. 

Page 4 of 15 
filed, which adopted the parties' newly proposed litigation schedule.7 (6/23/14 Order, ~B, 6-8.) 

This Order also codified the parties' agreement that they would finish taking any/all fact witness 

depositions by September 30, 2014. (6/23/14 Order, ~B, 3.) 

On September 25,2014 the FAA filed a Motion for Extension ofTime for Discovery, 

requesting a minimum of an additional 30 days to finish taking fact witness depositions. 8 On 

September 29, 2014 the parties appeared for a telephone motion conference. During this 

conference the court asked the parties to identify all witnesses who still needed to be deposed. 

The parties again identified FAA Inspectors Lipinski, D' Arcy, and Steffey, and Mr. Jeff Becker. 

(9/29/14 TR 5-7.) During this conference, the parties also agreed to an extension of time for final 

expert disclosures, with no additional time needed for expert depositions. The stated intent of the 

parties was to provide all expert reports by November 19, 2014, and exchange expert rebuttal 

reports by December 12, 2014, which would conclude all discovery. This allowed adequate time 

to prepare and file dispositive and other pre-hearing motions. (9/29/14 TR 26-29.) On 

September 30, 2014 an Order Granting/Denying Relief, and Modifying the Litigation Dates and 

Procedures was filed, which adopted the schedule discussed by the parties (9/30/14 Order.) 

Subsequently, as the parties are aware, there were additional problems in scheduling and 

taking Inspector Lipinski's fact witness deposition. On November 21, 2014 the FAA was 

specifically directed to make Inspector Lipinski available for deposition and to have such 

deposition taken and completed no later than December 31, 2014. All other dates in the 

September 30, 2014 Order were reconfirmed, which required expert disclosures by November 

19,2014. (11/21/14 Order.) 

However, on December 1, 2014, after a year of discovery exchange, the FAA disclosed 

for the first time that it might call Mr. Michael Christensen as an expert witness. This disclosure 

was 13 days after the November 19,2014 deadline for expert disclosures. (9/30/14 Order, 2 ~D, 

4), and 11 days prior to the December 12, 2014 deadline for the exchange of expert rebuttal 

reports and the close of all discovery (9/30/14 Order, 2 ~'5-6). The FAA's disclosure of Mr. 

7 In addition to accommodating the parties' need for more fact witness deposition time, the October 7, 2014 Hearing 

dates were cancelled, and the Hearing was rescheduled to May 5, 2015. (6/23/14 Order, 2.) 

8 In this Motion, the FAA stated that there were 5 fact witness depositions in 3 different states that still needed to be 

taken. (9/25114 Motion, 1-2.) The FAA continued to identify the FAA Inspectors as fact witness deponents. 

Page 5 of 15 
Christensen did not provide his qualifications as an expert, nor a summary of the facts and 

opinions upon which he would rely upon in giving expert testimony. The FAA also declined to 

make Mr. Christensen available for deposition prior to the close of the December 12, 2014 close 

of discovery, or before the extended deadline of December 31, 2014 (i.e., extension for Inspector 

Lipinski's fact witness deposition). (Renewed Motion, 1-2.) 

The FAA asserts that it had good cause for its delay in Mr. Christensen's disclosure. 

There is no doubt that a death in the family is good cause for an attorney's absence from work. 

This does not, however, fully address the concerns raised by the Respondent's Motion. For 

example, an attorney cannot simply disappear from litigation, miss court-ordered deadlines, and 

then reappear in the litigation days or weeks later, expecting all to be well. If an attorney needs to 

be unexpectedly absent from court proceedings, it is typical to notify the court and opposing 

counsel, as well as for another attorney to handle matters during his/her absence. Supervisory 

lawyers in government agencies have an obligation to assist with this endeavor. (Model Rules of 

Professional Conduct ("MRPC") Rule 5.1, Comment (20 11 ); see also, MRPC 1.1 Comment, 

(3)). It is noteworthy that early in these same proceedings, when the assigned FAA attorney was 

on family leave, another FAA attorney did appear on his behalf for a litigation scheduling 

conference, explained the assigned attorney's absence, and successfully obtained a continuance. 

(9/24113 TR 3-7.) 

However, in the instant motion, the FAA argued that court ordered deadlines could be 

ignored, in favor of simply providing late disclosure. (FAA Response, 2-3) The consequence of 

such position, as the Respondent pointed out (R's Reply, 8), is that there is a conscious flouting 

of court authority, and open disrespect evinced for the legal system as a whole. In addition, the 

opposing side is burdened with the need to spend time and money to try and force the FAA to 

comply with court ordered deadlines, or to persuade the tribunal to sanction the FAA for its noncompliance. 

The FAA's position is not persuasive. Proof of good cause for failure to comply with 

deadlines involves not just the reason for the attorney's absence, but how the absence was 

communicated and addressed with both opposing counsel and the tribunal. Respect for judicial 

rulings is essential to the proper and effective administration of justice. A lawyer's compliance 

with judicial authority is part of a lawyer's professional obligation. See, MRPC, 3.3, Comment 

Page 6 of 15 
(lawyers should avoid conduct that undermines the integrity of the adjudicative process.) A 

lawyer should always act to preserve public confidence and respect for the tribunal's rulings and 

decision-making authority in the adversarial system. (MRPC, Preamble.) Rules of procedure, 

such as litigation deadlines, are established by a hearing tribunal to promote efficient, fair, 

dignified, and timely adversarial adjudication proceedings. Lawyers should make every effort to 

comply and uphold such rules, and should never consciously violate .them. (MRPC, Preamble, ~~ 

5, 10-13.) See, e.g., American Airlines, Inc., FAA Order No. 202-16 at 9 (May 20, 2002) ("The 

Administrator expects that the parties will comply with [the Judge's] orders.") A lawyer should 

always act to promptly inform both opposing counsel and the tribunal of any problems with a 

court-ordered deadline, and if needed, affirmatively seek relief from the tribunal. 

The Respondent is correct that prejudice has occurred. Timely expert witness disclosures 

increase the quality of trials by allowing attorneys to better analyze their case, and to prepare for 

cross-examination. 8A Fed. Prac. & Proc. Civ. §2031.1 (3d ed. (2015). As ofthe date ofthis 

Order, the parties have already filed dispositive motions. It is unfair to the Respondent, after a 

year of active discovery, for the FAA to identify a new expert witness after the final deadline set 

for expert identification and disclosures, and then refuse to set a deposition prior to the final 

close of discovery (December 12, 2014) or even prior to the close of extended discovery 

(December 31, 2014) -previously authorized in order to complete Inspector Lipinski's 

deposition. The FAA is also unreasonable in its arguments that the Respondent should be 

precluded from taking an expert deposition. See, e.g., 23 Am. Jur. 2d Deposition and Discovery 

§49 (a party may depose any person who has been identified as an expert whose opinions may be 

presented at trial, and such deposition need not be conducted until after the expert report is 

provided). 

Discovery must close at a certain point, to allow both parties time to meaningfully 

analyze the strengths and weaknesses of their position, write and file dispositive motions, and 

prepare for hearing. The FAA has shown little factual basis for not providing the Respondent the 

identity, qualifications, and deposition access to Mr. Christensen during the original discovery 

timeline, or during the months thereafter, when a deposition could have been reasonably 

scheduled. (See, R's Reply, 4-6.) The FAA has also not shown that the error could be easily 

corrected, without prejudice to the Respondent, prior to the scheduled May 20 15 hearing. The 

Page 7 of 15 
Respondent's Motion to exclude Mr. Christensen as an FAA expert witness, on the grounds of 

untimeliness and prejudice, should be granted. 

2. The FAA's December 19,2014 Motion to Compel 

In this Motion, the FAA requested that the Respondent be compelled to complete Mr. 

Daniel J. Hancher's expert report information. Specifically, the FAA requests: a) a list of Mr. 

Hancher's prior publications (if any); and b) Mr. Hancher's compensation for serving as an 

expert (if any). 

In its Answer, the Respondent noted that it had already agreed to supplement Mr. 

Hancher's earlier, May 2, 2014 expert disclosure. (1/5/15 Answer, 9.) 

In addition, the FAA moved t6 compel the Respondent to complete answers to FAA 

Interrogatories Nos. 13 and 14 (FAA Motion to Compel, Exhibit E). 9 This appears to include 

material regarding Mr. Becker's fact witness testimony, even though the FAA had already 

deposed Mr. Becker in October 2014 as an identified fact witness. (Motion to Exclude, 12.) 

In its Reply arguments, the FAA acknowledged it had propounded Interrogatories Nos. 

13 and 14 to the Respondent in January 2014 (specific date unstated) (1/7/15 FAA Reply, 2), and 

took Mr. Becker's fact witness deposition on October 29,2014. (1/7/15 FAA Reply, Exhibit H.) 

The FAA also confirmed, in a footnote, that the Respondent had already complied with its 

motion request for additional information propounded by Interrogatory No. 14. (1/7115 FAA 

Reply, 1, fn. 3. ). In the absence of specific withdrawal, this may be deemed a waiver of part of 

the FAA's original Motion, leaving only the FAA's request regarding Interrogatory No .. 13. 

The FAA's Interrogatory No. 13 requested the following: 

(13) Identify each person you may call as a witness at hearing in this matter, identify the 

subject of their testimony, and summarize the substance of their expected testimony. 

You do not need to repeat information already contained in your initial disclosures, but 

you must expand on those answers to the extent necessary to answer this interrogatory. 

9 Although the FAA referenced "Exhibits G and H" in its Motion (12119/14 Motion to Compel, 8), neither ofthese 

Exhibits were appended. However, in its Reply, the FAA did include and append a partial copy of the October 29, 

2014 Deposition of Mr. Becker (1/7/15 FAA Reply, Exhibit H.) Although this deposition had been referred to as 

"Exhibit G" in the FAA's Motion to Compel (Motion to Compel, 8), it was marked attached as "Exhibit H" in the 

FAA's Reply (1/7115 FAA Reply, Exhibit H.) 

Page 8 of 15 
(Motion to Exclude, Exhibit E)( emphasis added.) 

According to the Respondent, it answered lrlterrogatory No. 13 on March 6, 2014. 

(Answer, Exhibit 6, Attach 1.) The answer was comprehensive, in that it listed all possible 

witnesses (approximately 70 individuals) that the Respondent could possibly call at the hearing, 

with a brief description of their general knowledge. (!d.) See, e.g., Fepco, LTDA v. Coussons, 

835 S.W. 2d 251 9Tex. App. Houston 1

51 Dist. 1992) (A corporation may be required to disclose 

the identity and location of all persons having knowledge of the facts that are relevant to a suit.) 

Upon receipt of this answer, the FAA did not object, assert that it was deficient, or request 

further information. 

The Respondent asserts that it did not, and could not, have provided more after March 6, 

2014, because it had not determined who it would actually be calling as a witness. It points to the 

fact that the FAA's main witness, Inspector Lipinski, remained unavailable for deposition for an 

extended period oftime. However, after completion of Inspector Lipinski's deposition on 

December 18,2014, the Respondent was better able to determine who it would call as witnesses. 

It then filed its supplemental witness disclosures five (5) days later, on December 23, 2014. 

(Answer, 8-13.) 

The September 13, 2014 Order directed that a party unhappy with a discovery response to 

file a motion ten (10) days after receipt of a deficient response. (9/13114 Order,~ G.) The 

Respondent pointed out that the FAA delayed its request for relief for over nine months, and then 

filed its request after the discovery period had closed. The Respondent also noted that the FAA 

had not provided any declaration asserting that, prior to filing the Motion, it had engaged in a 

Rule 37 discussion 10 with the Respondent attempting to resolve the dispute prior to filing its 

Motion to Compel. (1/5115 Answer, 9, fn. 9.) The FAA is clearly aware of this requirement, 

since it has previously objected to motions made by the Respondent that did not have such a 

declaration attached. (See, e.g., 6/16/14 Order Reserving the Respondent's Second Motion to 

Compel; and, 12/8114 Order Reserving the Respondent's Motion for Sanctions.) The FAA's 

10 Among other things, the September 30, 2014 Order provided that a movant seeking to compel discovery had to 

first "confer ... or attempt ... to confer in good faith" with the opposing party to resolve concerns about the missing 

or deficient disclosure before seeking court relief. A statement of this good faith discussion needed to be attached to 

any Motion to Compel. (9/30/14 Order,, E.) 

Page 9 of 15 
Motion to Compel should be either denied in its entirety or reserved, given the lack of a Rule 

37(a)(l) declaration. 

3. The FAA's December 19,2014 Motion to Exclude 

In this Motion and its subsequently filed Reply, the FAA requested that the following 

Respondent witnesses be excluded: a) Mr. Becker as an expert witness; b) Mr. Savastano as an 

expert or fact witness; c) exclude any fact witness other than Mr. Becker (Motion to Exclude, 

12); and, c) exclude all witnesses disclosed by the Respondent on December 23, 2014 (names 

unstated). (1/7/15 FAA Reply, 2: "Respondent's disclosure of six potential witnesses ... "). 

a) Mr. Becker and Mr. James Savastano as experts. In its Answer, the Respondent noted 

that it was "proposing to offer Messrs. Becker and Savastano as expert witnesses" to rebut the 

expert testimony by the FAA's late disclosed expert, Mr Michael Christensen. Since the 

testimony of FAA's late disclosed expert, Mr. Christensen should be excluded, this portion of the 

FAA's Motion to Exclude is moot. 

b) Mr. James Savastano as a fact witness. The FAA first asserted that Mr. James 

Savastano was never disclosed as a fact witness. The FAA's Motion to Exclude is based, in part 

therefore, on its assertion (above) that the Respondent failed to provide timely and complete 

discovery regarding what fact witnesses it planned to call. 

:\' 

In response, the Respondent provided documentation to show that on January 14, 2014, it 

had disclosed Mr. Savastano as a witness with "general knowledge." (Answer, 12, Exhibit 5: 

Attach 1, 1.) When the FAA asked the Respondent in its January 2014 Interrogatory No. 13 to 

"describe in detail" !:j-11 potential witnesses' "knowledge of and involvement with this matter," the 

Respondent responded on March 6, 2014 by providing a list of individuals with "general 

knowledge" of the events. This list again included Mr. Savastano's name. (Answer, Exhibit 6, 

Attach 1, 5.) The Respondent also vaguely described the "general knowledge" of the listed 

individuals, including Mr. Savastano, as including "insight, management direction 

and ... perspectives in general context on the series of events in part or whole." (Id.) The litigation 

record also shows that Mr. Savastano had provided a testimonial Declaration earlier in these 

Page 10 of 15 
proceedings, in which he talked about statements made by Inspector Lipinski that appeared to be 

adversarial and biased against the Respondent. 12 (3/26/14 Reply, Ex. 2.). 

In its Reply, the FAA acknowledged, in a footnote, that it had been notified that Mr. 

Savastano was a possible witness, but described the information in Respondent's March 6, 2014 

interrogatory response as "unhelpful in directing further discovery." (1/7/15 FAA Reply, 3, fn. 

6.) While this court agrees that the material had limited value, the FAA is responsible for crafting 

the original question. In addition, it did not object when it received this discovery, and chose not 

to press the Respondent to further answer the Interrogatory for over nine months. See, 23 AmJur 

Depositions and Discovery, §33 (2015). The FAA's further assertion that the Respondent's 

December 23, 2015 supplemental disclosure is untimely- although provided only five ( 5) days 

after taking Inspector Lipinski's deposition- is also not persuasive. 

c) Fact witnesses other than Mr. Becker,· 

d) All witnesses disclosed by the Respondent on December 23, 201 4,· and 

e) Any witnesses Respondent may later identify 

As discussed above, it appears undisputed that in January 2014 and in March 2014 the 

Respondent identified to the FAA, in very general terms, a large number of potential fact 

witnesses. The FAA did not immediately follow up with further discovery requests or motions, 

and deposed only Mr. Becker. 

The FAA now requests to exclude, in addition to Mr. Savastano, perhaps up to six other 

individuals (names unstated by the FAA) identified by the Respondent on December 23, 2014, 

and any other witnesses the Respondent may identify later (persons unknown) ( 1/7 I 15 FAA 

Reply, 5), on the grounds that it has been unfairly surprised and prejudiced. In its Reply, the 

FAA acknowledges that some ofthe witnesses (unidentified) may have been previously 

identified in the Respondent's earlier disclosures, but argued that such disclosure was 

insufficient to allow the FAA to prepare for potential testimony. (FAA Reply, 3-4, and fn. 6). 

In its Answer, the Respondent provided a copy of its December 23, 2014 Supplemental 

Responses to the FAA's First Discovery Requests, in which it specifically identified the 

12 This material was discussed in the August 19, 2014 Order Denying Respondent's Motion to Compel Discovery of 

FAA Attorney's Work Product. (8/19/14 Order, 17.) 

i.· Page il of 15 
following individuals as hearing witnesses: 1) Mr. Becker, 2) Mr. Savastano, 3) Mr. Steven 

Santangelo, 4) Mr. Dennis Manibusan, 5) Mr. Daniel Hancher (expert), 6) "other individuals" 

(names unstated) identified in the Respondent's December 12, 2014 Expert Rebuttal Disclosures, 

and, 7) FAA Inspector Jack Gasche and FAA Inspector Billie Steffey as "rebuttal witnesses." 13 

(Answer, Exhibit 4) 

The Respondent asserted that prior to December 23, 2014 it did not, and could not, have 

provided more information to Interrogatory No. 13, because it had not determined who it would 

be calling as witnesses. After completion of Inspector Lipinski's 205-page deposition on 

December 18,2014 (Answer, Exhibit 7), the Respondent was better able to determine who it 

would call as witnesses. It then filed its supplemental disclosures to Interrogatory No. 13 five (5) 

days later, on December 23,2014. (Answer, 8-13.) The Respondent also reserved its right to 

identify more fact witnesses for Hearing, up to the date of final disclosure on April 9, 2015. 

There is merit to the Respondent's argument. The Respondent is correct that part of its 

responsibility in discovery (and in conducting depositions) is to gather information, analyze its 

case strengths and weaknesses, and consider all information about the case, before making a final 

determination as to who it may call as defensive witnesses to the FAA's case-in-chief. The 

FAA's Interrogatory No. 13 is crafted so that it requests early disclosure of all witnesses. Thus, 

unless the Respondent agrees that'it fully decided this strategic question early, the crafting of the 

FAA's question allows the Respondent to answer in general terms. See, 23 AmJur Depositions 

and Discovery, §33; Fisher v. Baltimore L?fe Ins. Co., 235 F.R.D. 617 (N.D. W.Va. 2006 (In 

answering an interrogatory seeking identification of all potential witnesses, the insured was 

required to state the name and address of every person who could be a possible witness, but the 

insured was not required to provide a summary ofthe testimony of such witnesses). 

The Respondent is also correct that it is not required to provide a final fact witness list 

until April 9, 2015. (9/30/15 Order, ~D (9).) However, the court would remind the parties that 

the purpose of the continuing obligation of supplementing discovery is for the parties to engage 

in diligent examination of exchanged discovery, and meaningfully advise each other as soon as 

possible of who might be called to testify, and what that testimony might entail. 

13 It should be noted that the FAA had disclosed both Inspector Gasche and Inspector Steffey as witnesses in its 

case-in-chief. (Answer, Exhibit 2.) 

Page 12 of 15 
The disclosures of Mr. Becker, Mr. Savast~o, and Mr. Daniel Hancher have already 

been briefly addressed in this Order, and will not be repeated. Like Mr. Savastano, Mr. Dennis 

Manibusan was identified in both the Respondent's January 14, 2014 disclosure (Answer, 

Exhibit 5, Attach 1, 1) and in the Respondent's March 6, 2014 disclosure (Answer, Exhibit 6, 

Attach 1, 6). The Respondent's reservation of some of the FAA's witnesses (i.e., FAA Inspectors 

Gasche and Steffey) is not unusual nor surprising, but it must be assumed they are reserved only 

as fact witnesses, since 14 C.F.R. § 13.227 prohibits the Respondent from calling any FAA 

employee as an expert on behalf of the Respondent's defense. The remaining identified witness, 

Mr. Steven Santangelo was not disclosed prior to December 23, 2014, but he has been 

specifically proffered to rebut statements and factual opinions that might be offered by Inspector 

Lipinski, which were discovered on December 18, 2014. (Answer, Exhibit 4, 2.) 

In all, the FAA's request to exclude the identified witnesses above is not persuasive. The 

FAA's request to exclude any future witnesses is premature, since it is unknown whether the 

Respondent will identify anyone else, and if it does, who that witness might be or the substance 

of his/her testimony. 

4. The Respondent's January 5, 2015. Request to File a Reply 

The Respondent filed a Reply concurrent with its Request to File a Reply to the FAA's 

Response [to the Respondent's Motion for Sanctions]. The Respondent's Reply was reviewed 

and considered, and the request should be granted. 

5. The FAA's January 7, 2015 Request to File a Reply 

The FAA filed a Reply concurrent with its Request to File a Reply to the Respondent's 

Response [to the FAA's Motion to Compel and Exclude]. The FAA's Reply was reviewed and 

considered, and the request should be granted. 

C. Conclusion 

Pursuant to 14 C.F.R. §§ 13.205(a)(6), (8) and 13.217, and after reviewing all relevant 

caselaw, regulations, statutory authority, and being fully advised; 

Page 13 of 15 
IT IS HEREBY ORDERED: 

1. The Respondent's December 16,2014 Renewed Motion to exclude Mr. Michael 

Christensen as an FAA expert witness is granted. 

2. The FAA's December 19,2014 Motion to Compel the Respondent to complete Mr. 

Daniel J. Hancher's expert report information is granted. 

3. February 27, 2015 Deadline: The Respondent shall complete the expert report of Mr. 

Daniel J. Hancher and serve it on the FAA on or before February 27, 2015. 

4. The FAA's December 19,2014 Motion to Compel the Respondent to complete answers 

to FAA Interrogatory No. 14 is deemed waived. 

5. The FAA's December 19,2014 Motion to Compel the Respondent to complete answers 

to FAA Interrogatory No. 13 is reserved. 

6. Pursuant to the September 30,2014 Order (page 2-3 ~G), the FAA is directed to engage 

in a Rule 37 Discussion regarding any/all issues regarding supplemental discovery 

involving FAA Interrogatory No. 13. After the Rule 37 Discussion, if any discovery 

dispute regarding FAA Interrogatory No. 13 remains unresolved, the FAA may renew its 

Motion to Compel upon a filing of a Rule 37 Declaration, pursuant to the September 30, 

2014 Order and the discussion in this Order. 

6. The FAA's December 19, 2014 Motion to Exclude Mr. Becker and Mr. Savastano as 

Respondent expert witnesses is deemed moot, since the Respondent offered them as 

experts only to rebut to Mr. Christensen's proposed expert testimony. 

7. The FAA's December 19,2014 Motion to Exclude Mr. Daniel Hancher as a Respondent 

expert is denied. 

8. The FAA's December 19,2014 Motion to Exclude Mr. Savastano, Mr. Dennis 

Manibusan, Mr. Steven Santangelo, and FAA Inspectors Gasche and Steffey as 

Respondent fact witnesses is denied. 

9. The FAA's December 19,2014 Motion to Exclude "any fact witness other than Mr. 

Becker" is denied as overbroad and not supported by the motion material. 

10. The FAA's December 19,2014 Motion to Exclude "any witnesses Respondent may later 

identify" is denied as overbroad and premature. 

11. The Respondent's January 5, 2015 Request to File a Reply, which requests leave to file a 

Reply to the FAA's Response [to the Respondent's Motion for Sanctions] is granted. 

Page 14 of 15 
12. The FAA's January 7, 2015 Request to File a Reply, which requests leave to file a Reply 

to the Respondent's Response [to the FAA's Motion to Compel and Exclude] is granted. 

13. For all future motions, the parties are directed to include in the body of their motions any 

material facts that are relevant, or any requests for relief. Such material imbedded in 

footnotes may be denied or excluded from consideration in the future, for failure of the 

party to properly provide notice of such request or information in the body of the j·~ 

document. 

14. For clarifications of this order or questions with regard to the procedures to be followed 

in this case, please contact Mr. Cody L. Smith, Attorney-Advisor, at the Office of 

Hearings (202-366-6941 ). 

Attachment: Service List 

Page 15 of 15 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W100014 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

ONE COPY 

Office of the Regional Counsel, Southern Region 

P. 0. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Robert P. Silverberg 

Respondent's Counsel 

Silverberg, Goldman & Bikoff, LLP 

Georgetown Place, Suite 120 

1101 30th St., N.W. 

Washington, DC 20007 

TEL: 202-944-3300 

FAX: 202-944-3306 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

FDMS No. FAA-2013-0291 

(Civil Penalty Action) 

14 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 2Wl000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.