US DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC
IN THE MATTER OF 

### SKYWEST AIRLINES FAA DOCKETNo. [TO BE ASSIGNED] (Civil Penalty Action) FDMS No. FAA-2011-0485
IN THE MATTER OF 

### SKYWEST AIRLINES FAA DOCKETNo. [TO BE ASSIGNED] (Civil Penalty Action) FDMS No. FAA-2011-0486 

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IN THE MATTER OF 

### SKYWEST AIRLINES FAA DOCKET No. CPllSWOOOO (Civil Penalty Action) FDMS No. FAA-2011-0680 and**~0779** 

### ORDER GRANTING MOTION IN PART Respondent SkyWest Airlines, Inc. ("Respondent" or "SkyWest") has filed a Motionfor Protective and/or Confidential Order ("Motion") under §§13.220(g) and (h) ofthe Rules of Practice inFAA Civil Penalty Proceedings, 14 C.F.R. §13.201 etseq. The Motion asks that certain documents ithas been asked to provide as part ofthe discovery process ("the documents") be disclosed only to parties to these actions and that the documents otherwise be withheld from public disclosure. In support ofits request, SkyWestasserts that the documents include proprietary information and commercial, business and competitive information, the disclosure ofwhichwouldresult in unwarranted prejudice and harm to its business interests. Complainant Federal Aviation Administration ("Complainant"), whichwas supplied anindex to the documents but notthe documents themselves, 1 opposes the Motion. Complainant argues that thedocuments appear to contain information which ought to be public and, as such, should not be withheld from public disclosure; it also asserts that Respondent has failed to submit supporting evidence demonstrating that either a protective or confidential order is.,appropriate. The Motion is hereby GRANTED IN PART. Itis granted unless and until the documents, or information contained inthem, are referenced onthe record atthe hearing. At that point a motion inthe nature ofa motion to withholdfrom. public disclosure may be renewed. In the meantime I will order the documents to be submittedto Complainants' attorneys. Complainant's staffand witnesses may also see and usethe documents ifthey

## sign agreements pledging to keep the matters contained therein confidential and for use in these proceedings only. I discern no reason why the documents should be made public prior to the hearing. At this stage, no record has beenmade; indeed, some or all ofthe documents may wind up onthe sideline and not part ofthe record. In these circumstances, no harm to Complainant results from the documents' non-disclosure. On the other hand, SkyWest may suffer competitive harm if information'contained thereinbecomes publicly available. Circumstances will change sufficiently and re-examination ofthe rationale for non-disclosure becomes appropriate when any ofthe matters contained therein are sought to be part ofthe evidentiary record. In view ofthe foregoing,

1A complete set ofthe documents was supplied tothe Court.

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1- The documents subject to this Order, which are listed in Respondent's Motion, shall be produced to Complainant's attorneys within ten days from the date ofthis Order; 2 -Priorto the production ofthe documents, Respondent shall affix the word "CONFIDENTIAL" in a conspicuous manner onthe face ofthe document or onthe face ofan envelope or similarpacket containing the document; 3 - Any documents designated as CONFIDENTIAL shall be subject to the following restrictions: (a) Such documents, the contents thereof, any notes, drafts, summaries, excerpts or copies thereof, and any information obtained therein shall be used only for the preparation ofthis case, and not for any otherpurpose whatsoever and shall not be disclosed, given, shown, made available, discussed, or otherwise communicated

. in any way to anyone otherthan thejudge, the parties, counsel ofrecord for the parties, their employees and witnesses designated by the parties to whom disclosure is necessary to enable adequate preparation for thecase. (b) Counsel obtaining copies ofsuch documents shall retain such copies in their custody and shall assure that copies ofdocuments obtained are not recopied for any purpose other than the preparation for this case. (c) To the extent that the contents ofor information obtained from any documents designated as CONFIDENTIAL are quoted, attached to,**paraphras~d,** referred to, or described in any pleading, motion, memorandum, appendix, or other filing of any party or with thejudge in this case, counsel for such party shall file such submission under seal. Further, such party shall ensure that all parties to whom he/she gives this information are familiar with the requirements ofthis Order. (d) Each person fb whom documents and information designated**a~{** . CONFIDENTIAL is to be disclosed in any way, shall, by Declaration in writing, state his/her awareness oftheprovisions ofthis Order and agree to protect such information in accordance with its terms. This Declaration shall be binding and it shall be filed with thejudge. 4- This Order shall expire atthepoint inwhich any ofthe documents, or any ofthe information contained therein, is proffered for the evidentiary record; and4 5- Any reliefrequested and not expressly granted by this Order is hereby DENIED.

Attachments

- Service List

,,Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 , 

### SERVICE LIST ORIGINAL & 

### ONE COPY

,Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000 1 , 

### ONE COPY Todd C. Emerson, 

### Respondent'sRepresentative Director

- Government and Legal Affairs SkyWest Airlines 444 South River Road St. George, UT 84790 TEL: 435-634-3530 FAX: 435-634-3505 Michael L. Dworkin, 

### Respondent's Counsel 465 California Street, Suite 210 San Francisco, CA 94104 ,, TEL: 415-421-02500 FAX: 415-421-2560 Jeffrey M. Harper, 

### Complainant's.Counsel Attorney, Office ofthe Regional Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, 

### S.W. Renton, W A 98057 TEL: 425-227-2161 FAX: 425-227-1007 FDMS Nos. FAA-2011-0485 & FAA-2011-0486, 0779, 0680 (Civil Penalty Action)

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1 SeiVice was by U.S. Mail.:ForseiVice inperson orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., WilburWright Building-Suite 2W1000,.Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430. :;

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# ..The Honorable Richard C. Goodwin, AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) · Washington, DC 20590 · TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536

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