In TheMatter 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 ofMotion for Sanctions ("Renewed Motion").
OnDecember 18, 2014, an Order Granting Respondent's Motion to Modify Litigation Schedule andExtend 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 "Motionto Exclude").
On December 23, 2014, the Respondent filed Respondent's Motion for Extension of Time. On December 24, 2014, an Order Confirmingthat 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 ofMotion to Compel and Exclude ("FAA Reply").A. BriefIdentification ofthe Five (5) Motions:
1. The Respondent's December 16,2014 Renewed Motionrequests exclusion ofMr. Michael Christensen as anFAA expertwitness onmultiple grounds.
2. The FAA's December 19,2014Motion to Compel requests thatthe Respondentbe requiredto complete its discovery obligations; specifically: a) Complete Mr. Daniel J. Hancher's expertreport information; and b) Complete answers to FAA Interrogatories Nos. 13 and 14.
3. TheFAA's December 19,2014Motionto Exclude requests thatthe Respondentbe precluded from calling witnesses thathave notbeenpreviously disclosed; specifically: a) Mr. Becker as an·expert witness; b) Mr. Savastano as an expert or fact witness; c) Any fact witness otherthan 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'sResponse [to the Respondent's Motion for Sanctions].
5. The FAA's January 7, 2015 Requestto 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. BriefDiscussion
All motions, documents, and arguments submittedbythe parties have beenreviewed and considered. This discussion onlybrieflyhighlights certainmatters 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 ofMr. Michael Christensen as an FAA expert witness. The Respondent cited multiple grounds for exclusion, includingthe grounds ofuntimeliness and prejudice. In response, the FAA agreed that its' expert disclosure ofMr. Christensen was untimely, but asserted that the delay was minimal in scope, good cause existed for the delay, andthe Respondent had suffered no discernable prejudice. TheFAA also asserted otherbases for denying the Respondent's motion, including Page 2 of 15(not inclusive) the fact that the parties had never contemplatedtaking expert depositions inthis case, and thatthe sanction ofexclusion was disproportionate to the error. TheFAA's arguments were not persuasive. for example (not inclusive), the FAA asserted thatthe parties had never contemplated taking expert depositions in this case. This is incorrect. The parties had discussed taking expert depositions earlier in this proceeding (11/7I13 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 expertrebuttal 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 theparties are aware, problems then ensued with factual discovery and the taking of fact witness depositions. OnApril 7, 2014 the Respondentfiled a Motionto Enlarge Time to Complete Fact Witness Depositions. This Motion specifically confirmedthat the parties were not seeking or suggesting any change inthe deadline for taking expert depositions, "based onthe understanding that depositions, ifany are requested ofthe experts, can be taken priorto the end ofgeneral discovery on June 6, 2014." (4/7/14 Motion, 2.) Acceptingthe parties' agreement and assertions, 1onApril 9, 2014 an Order Granting Respondent's Motion to Enlarge Time to Complete Fact Witness Depositions was filed. 2 In this Orderthe original deadlines for identifying expert witnesses and exchanging reports (May 2, 2014), exchanging expertrebuttal report (May 16, 2014), and taking expert depositions (June 6, 2014), as identified in the November7, 2013 Order, were re-confirmed. (4/9114 Order, 2**~** 2.) Thus, based onthe 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 wouldhave allowedthe parties to know whether they wished to schedule and take any expert depositions by June 6, 2014.

1In 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 15Then, onMay 14, 2014, twelve (12) days after the May 2, 2014 deadline for identifying expertwitness identities andreports, and two (2) days before the May 16, 2014 deadline for exchanging expertrebuttal reports, 4 the parties filed a Joint Motionto Suspend Litigation Dates, requestingthatthe partiesbe given additional time beyond May 31, 2014 to respond to interrogatories and to take fact witness depositions.5 While the parties did include newtimelines for expertreports to be exchangedin their June 16, 2014 RevisedPlan, no new deposition times

were provided

- because none shouldhave beenneeded. Accordingto the record, all experts would have already been identifiedbyMay 2, 2014, with any expert witness depositions to be taken by June 6, 2014. Itwas undisputedthat 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 theprocess ofscheduling their fact

### depositio~s.6

On May 15, 2014 an Order Granting Joint Motionto Suspend Litigation Dates was filed. Among otherthings, this Order suspended the May 16, 2014 expertrebuttal report exchange deadline, and directedthe parties to file a revised litigation schedule onorbefore June 16, 2014. (5/15/14 Order, 1.)
OnJune 16, 2014the Respondentfiled a Revised Rule 26(f) Schedule/Discovery Plan ("Revised Plan") onbehalfofboth parties. This Revised Plan did not include any additional depositiontime for expertwitnesses. (6116114 Revised Plan, 2.) The stated intent oftheparties in theirRevised Plan was to provide all expert reports.by October 14, 2014, expert rebuttal reports by November4, 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 orrebutthe opposing side's expert opinion. SA Fed. Prac. & Proc. Civ. §2031.1 (3d ed. (2015).

5 Specifically the depositions ofFAA InspectorFrank Lipinski and "other FAA representatives", as well as a Respondent witness, Mr. JeffBecker. (5/14/14 Joint Motion 1-2.)

6 NB: The duty to disclose a witness as an expert is notexcused when a witness who will testify as a fact witness andas 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 ofa 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 reliefafter filing a CR 37 declaration. Page 4 of 15filed, 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 25,2014the FAA filed a Motion for Extension ofTime for Discovery, requesting a minimum ofan additional 30 days to finish taking fact witness depositions. 8 On September29, 2014 the parties appeared for atelephone 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. JeffBecker. (9/29/14 TR 5-7.) During this conference, the parties also agreed to an extension oftime for final expert disclosures, with no additional time needed for expert depositions. The stated intent ofthe parties was to provide all expertreports byNovember 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 otherpre-hearing motions. (9/29/14 TR26-29.) 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 directedto make Inspector Lipinski available for deposition and to have such depositiontaken 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 ofdiscovery exchange, the FAA disclosed for the first time that itmight call Mr. Michael Christensen as an expert witness. This disclosure
was 13 days aftertheNovember 19,2014 deadline for expert disclosures. (9/30/14 Order, 2**~D,** 4), and 11 dayspriorto the December 12, 2014 deadline for the exchange ofexpert rebuttal reports and the close ofall discovery (9/30/14 Order, 2**~'5-6).** The FAA's disclosure ofMr.

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 15Christensen did notprovide his qualifications as an expert, nor a summary ofthe facts and opinions uponwhich he wouldrely upon in giving expert testimony. The FAA also declined to make Mr. Christensen available for depositionpriorto the close ofthe December 12, 2014 close ofdiscovery, orbeforethe extended deadline ofDecember 31, 2014 (i.e., extension for Inspector Lipinski's fact witness deposition). (Renewed Motion, 1-2.)
The FAA asserts that ithad good cause for its delay in Mr. Christensen's disclosure. There is no doubtthat 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. Ifan attorney needs to be unexpectedly absentfrom courtproceedings, 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 obligationto assist withthis endeavor. (Model Rules of Professional Conduct ("MRPC") Rule 5.1, Comment (2011); see also, MRPC 1.1 Comment, (3)). Itis noteworthy that early in these same proceedings, whenthe assigned FAA attorney was
onfamily leave, another FAA attorney did appear onhis behalffor a litigation scheduling conference, explainedthe assigned attorney's absence, and successfully obtained a continuance. (9/24113 TR 3-7.) However, inthe instantmotion, the FAA argued that court ordered deadlines could be ignored, in favor ofsimply providing late disclosure. (FAA Response, 2-3) The consequence of such position, as the Respondentpointed out (R's Reply, 8), is thatthere is a conscious flouting ofcourt authority, and open disrespect evinced for the legal system as a whole. In addition, the opposing side is burdened withthe needto spend time and money to try and force the FAA to comply with court ordered deadlines, or to persuade the tribunal to sanctionthe FAA for its noncompliance.
The FAA'sposition is not persuasive. Proofofgood cause for failure to comply with deadlines involves notjustthe reason for the attorney's absence, buthowthe absence was communicated and addressed with both opposing counsel and the tribunal. Respect forjudicial rulings is essential to the proper and effective administration of justice. A lawyer's compliance withjudicial authority is part ofa lawyer'sprofessional obligation. See, MRPC, 3.3, Comment Page 6 of 15(lawyers should avoid conduct that undermines the integrity ofthe 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 ofprocedure, such as litigation deadlines, are established by ahearing tribunal to promote efficient, fair, dignified, andtimely adversarial adjudication proceedings. Lawyers should make every effort to comply anduphold suchrules, and should never consciously violate.them. (MRPC, Preamble,**~~** 5, 10-13.) See, e.g.,AmericanAirlines, Inc., FAA OrderNo. 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 informboth opposing counsel and the tribunal ofany problems with a court-ordered deadline, and ifneeded, affirmatively seek relieffrom the tribunal.
The Respondent is correctthat prejudice has occurred. Timely expert witness disclosures increase the quality oftrials 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. Itis unfair to the Respondent, after a year ofactive discovery, for the FAA to identify a new expertwitness after the final deadline set for expert identification and disclosures, and then refuse to set a deposition prior to the final close ofdiscovery (December 12, 2014) or even priorto the close ofextended discovery (December 31, 2014) -previously authorized in orderto complete Inspector Lipinski's deposition. The FAAis also unreasonable in its arguments thatthe Respondent should be precluded from taking an expertdeposition. See, e.g., 23 Am. Jur. 2dDeposition and Discovery §49 (a party may depose any person who has been identified as an expert whose opinions may be presented attrial, and such deposition need not be conducted until after the expert report is provided). Discovery must close at a certainpoint, to allowboth parties time to meaningfully analyze the strengths and weaknesses oftheir position, write and file dispositive motions, and prepare for hearing. The FAA has shown little factual basis for not providingthe Respondentthe 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 2015 hearing. The
Page 7 of 15Respondent's Motion to exclude Mr. Christensen as an FAA expertwitness, on the grounds of untimeliness and prejudice, should be granted.
2. The FAA'sDecember 19,2014Motion to Compel Inthis Motion, the FAArequested thatthe Respondentbe compelledto complete Mr. Daniel J. Hancher's expertreport information. Specifically, the FAArequests: a) a list ofMr. Hancher's priorpublications (ifany); and b) Mr. Hancher's compensationfor serving as an expert (ifany).

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 FAAmovedt6 compel the Respondent to complete answers to FAA InterrogatoriesNos. 13 and 14 (FAAMotionto Compel, Exhibit E). 9 This appears to include material regarding Mr. Becker'sfact witness testimony, eventhoughthe FAAhad already deposed Mr. Becker in October 2014 as an identified fact witness. (Motionto Exclude, 12.)
In its Reply arguments, the FAA acknowledged it had propounded Interrogatories Nos. 13 and 14 to the Respondent inJanuary 2014 (specific date unstated) (1/7/15 FAA Reply, 2), and tookMr. Becker'sfact witness deposition on October 29,2014. (1/7/15 FAA Reply, Exhibit H.) The FAA also confirmed, in a footnote, thatthe Respondenthad already complied with its motion request for additional information propounded by InterrogatoryNo. 14. (1/7115 FAA Reply, 1, fn. 3.). In the absence ofspecific withdrawal, this maybe deemed a waiver ofpart of the FAA's original Motion, leaving only the FAA's request regarding InterrogatoryNo

.. 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 oftheirtestimony, and summarizethe substance oftheir expected testimony. You do not needto repeat information already contained in your initial disclosures, but youmust expand onthose answers to the extentnecessary 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 ofthe October 29, 2014 Deposition ofMr. 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 briefdescription oftheir general knowledge. (!d.) See, e.g., Fepco, LTDA v. Coussons, 835 S.W. 2d 251 9Tex. App. Houston 151 Dist. 1992) (A corporation maybe required to disclose the identity and location ofall persons havingknowledge ofthe facts that are relevant to a suit.) Upon receipt ofthis answer, the FAA did not object, assert that it was deficient, orrequest further information.
The Respondent asserts that it did not, and could not, have provided more after March 6, 2014, because it hadnot determined who itwould actually be calling as a witness. Itpoints to the fact thatthe FAA'smain witness, InspectorLipinski, remained unavailable for deposition for an extended period oftime. However, after completion ofInspector Lipinski's deposition on December 18,2014,the Respondent was better able to determine who it would call as witnesses. Itthen filed its supplemental witness disclosures five (5) days later, on December 23, 2014. (Answer, 8-13.)
The September 13, 2014 Order directed that aparty unhappy with a discovery response to file a motionten (10) days after receipt ofa deficient response. (9/13114**Order,~** G.) The Respondentpointed outthatthe FAA delayed its request for relieffor over nine months, and then filed its request afterthe discovery periodhad closed. The Respondent also noted thatthe FAA had notprovided 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 Motionto Compel. (1/5115 Answer, 9, fn. 9.) The FAA is clearly aware ofthis requirement, since ithas previously objectedto motions made by the Respondent that did not have such a declaration attached. (See, e.g., 6/16/14 Order Reservingthe Respondent's SecondMotionto Compel; and, 12/8114 Order Reserving the Respondent's Motion for Sanctions.) The FAA's

10 Among otherthings, 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 ofthis good faith discussion needed to be attached to any Motion to Compel. (9/30/14 Order,, E.) Page 9 of 15Motion to Compel should be either denied in its entirety or reserved, given the lack ofa Rule 37(a)(l) declaration.
3. The FAA'sDecember 19,2014Motionto 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 orfact 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 ofsix potential witnesses

...").
a) Mr. Becker andMr. James Savastano as experts. In its Answer, the Respondent noted thatitwas "proposingto offer Messrs. Becker and Savastano as expert witnesses" to rebutthe experttestimony bythe FAA's late disclosed expert, Mr Michael Christensen. Since the testimony ofFAA'slate disclosed expert, Mr. Christensen should be excluded, this portion ofthe 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'sMotionto 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 showthat 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 ofand involvement with this matter," the Respondentresponded on March 6, 2014 by providing a list ofindividuals with "general knowledge" ofthe events. This list again included Mr. Savastano'sname. (Answer, Exhibit 6, Attach 1, 5.) The Respondent also vaguely described the "general knowledge" ofthe listed individuals, including Mr. Savastano, as including "insight, management direction and

...perspectives in general context onthe series ofevents in part or whole." (Id.) The litigation record also shows thatMr. Savastano hadprovided atestimonial Declaration earlier inthese

Page 10 of 15proceedings, in whichhetalked about statements madeby Inspector Lipinski that appeared to be adversarial and biased againstthe Respondent. 12 (3/26/14 Reply, Ex. 2.).
In its Reply, the FAA acknowledged, in a footnote, that ithad 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.) Whilethis courtagrees thatthe material had limited value, the FAA is responsible for crafting the original question. In addition, it did not object when itreceived this discovery, and chose not to press the Respondentto further answer the Interrogatory for over nine months. See, 23 AmJur Depositions and Discovery, §33 (2015). The FAA's further assertionthat 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) Allwitnesses disclosedby the Respondent on December 23, 2014,· and e) AnywitnessesRespondentmay later identify
As discussed above, it appears undisputed that inJanuary 2014 and in March 2014 the Respondent identifiedto the FAA, in very general terms, a large number ofpotential fact witnesses. The FAA did not immediately follow up with further discovery requests or motions, and deposed only Mr. Becker. The FAA nowrequests 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) (1/7I15 FAA Reply, 5), onthe grounds that it has beenunfairly surprised and prejudiced. In its Reply, the FAA acknowledges that some ofthewitnesses (unidentified) may have beenpreviously identified inthe Respondent's earlier disclosures, but argued that such disclosure was insufficientto allowthe FAAto prepare for potential testimony. (FAA Reply, 3-4, and fn. 6).
In its Answer, the Respondentprovided a copy ofits 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 ilof 15following individuals as hearing witnesses: 1) Mr. Becker, 2) Mr. Savastano, 3) Mr. Steven Santangelo, 4) Mr. Dennis Manibusan, 5) Mr. Daniel Hancher (expert), 6) "otherindividuals" (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 thatpriorto December 23, 2014 it did not, and could not, have provided more informationto InterrogatoryNo. 13, because it had not determined who it would be calling as witnesses. After completion ofInspector 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. Itthen filed its supplemental disclosures to InterrogatoryNo. 13 five (5) days later, onDecember 23,2014. (Answer, 8-13.) The Respondent also reserved its right to identify more fact witnesses for Hearing, up to the date offinal disclosure onApril 9, 2015.
There is meritto the Respondent's argument. The Respondent is correctthat part ofits 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 itmay call as defensive witnesses to the FAA's case-in-chief. The FAA's InterrogatoryNo. 13 is crafted so that itrequests early disclosure ofall witnesses. Thus, unless the Respondent agrees that'it fully decided this strategic question early, the crafting ofthe 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 ofallpotential witnesses, the insured was required to state the name and address ofeveryperson who could be a possible witness, but the insured was notrequired to provide a summary ofthetestimony ofsuch witnesses).
The Respondent is also correctthatitis notrequired to provide a final fact witness list until April 9, 2015. (9/30/15 Order,**~D** (9).) However, the courtwould remind the parties that the purpose ofthe continuing obligation ofsupplementing discovery is for the parties to engage in diligent examination ofexchanged discovery, and meaningfully advise each other as soon as possible ofwho mightbe calledtotestify, and whatthat testimony might entail.

13 It should be noted thatthe FAA had disclosed both Inspector Gasche and Inspector Steffey as witnesses in its case-in-chief. (Answer, Exhibit 2.) Page 12 of 15The disclosures ofMr. Becker, Mr.**Savast~o,** andMr. Daniel Hancherhave already beenbriefly addressed inthis Order, and will notbe repeated. Like Mr. Savastano, Mr. Dennis Manibusanwas identified in boththe Respondent's January 14, 2014 disclosure (Answer, Exhibit 5, Attach 1, 1) and inthe Respondent's March 6, 2014 disclosure (Answer, Exhibit 6, Attach 1, 6). The Respondent's reservation ofsome ofthe FAA'switnesses (i.e., FAA Inspectors Gasche and Steffey) is not unusual nor surprising, but it mustbe 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 behalfofthe Respondent's defense. The remaining identified witness, Mr. Steven Santangelo was not disclosed priorto December23, 2014, but he has been specificallyprofferedto rebut statements and factual opinions that might be offeredby Inspector Lipinski, whichwere discovered on December 18, 2014. (Answer, Exhibit 4, 2.)
In all, the FAA'srequest to exclude the identified witnesses above is not persuasive. The FAA's requestto exclude any future witnesses is premature, since 

### it is unknown whether the Respondent will identify anyone else, and ifit does, who that witness might be orthe substance ofhis/hertestimony.
4. The Respondent's January 5, 2015. Requestto File a Reply The Respondentfiled a Reply concurrentwith its Requestto File a Replyto the FAA's Response [to the Respondent's Motion for Sanctions]. The Respondent's Reply was reviewed and considered, andthe request should be granted.
5. The FAA'sJanuary 7, 2015 Request to File a Reply
The FAAfiled a Reply concurrentwith its Request to File a Reply to the Respondent's Response [to the FAA's Motionto Compel andExclude]. The FAA's Reply was reviewed and considered, and the request should be granted.
C. Conclusion Pursuantto 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 15IT 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 19,2014Motion to Compel the Respondent to complete Mr. Daniel J. Hancher's expertreport information is granted.
3. February 27, 2015 Deadline: The Respondent shall complete the expertreport ofMr. Daniel J. Hancher and serve it on the FAA on orbefore February 27, 2015.
4. The FAA'sDecember 19,2014 Motion to Compel the Respondent to complete answers to FAA InterrogatoryNo. 14 is deemed waived.
5. The FAA'sDecember 19,2014Motion to Compel the Respondent to complete answers to FAA InterrogatoryNo. 13 is reserved.
6. Pursuantto the September 30,2014 Order (page 2-3**~G),** the FAA is directedto engage in a Rule 37 Discussionregarding any/all issues regarding supplemental discovery involving FAA InterrogatoryNo. 13. After the Rule 37 Discussion, ifany discovery dispute regarding FAA Interrogatory No. 13 remains unresolved, the FAA may renew its Motion to Compel upon a filing ofa 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 expertwitnesses is deemed moot, since the Respondent offered them as experts only to rebut to Mr. Christensen's proposed experttestimony.
7. The FAA'sDecember 19,2014Motion to Exclude Mr. Daniel Hancher as a Respondent expert is denied. 8. The FAA's December 19,2014Motion 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 19,2014Motion 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 14of 1512. 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 Motionto Compel and Exclude] is granted.
13. For all future motions, the parties are directed to include in the body oftheir motions any material facts that are relevant, or any requests for relief. Suchmaterial imbedded in footnotes may be denied or excluded from consideration inthe future, for failure ofthe party to properlyprovide notice ofsuch request or information in the body ofthe**j·~** document.
14. For clarifications ofthis 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 15SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W100014

Mr. Christopher R. Stevenson 

### Complainant's Counsel Federal Aviation Administration ONE COPY

Office ofthe 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 LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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.