1 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS 

# RECEIVE

IN THE MATTER OF: FEDERAL AVIATION ADMINISTRATION, Complainant,

v. LIBERTY FOUNDATION, INC., Respondent.

Tuesday, January 22, 2013 Via Teleconference 

### FEB -5 2013 

## HEARING DOCKET

FDMS No. FAA-2012-0477

The above-entitled matter came on, pursuant to notice, at 10:00 a.m.
BEFORE: THE HONORABLE J.E. Administrative Law Judge

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www.nealrgross.comAPPEARANCES:

On Behalf of the Complainant: CHRISTOPHER STEVENSON, ESQ. of: Office of Regional Counsel Southern Region Federal Aviation Administration 1701 Columbia Avenue Suite 530 College Park, GA 30337 (404) 305-5200

On Behalf of the Respondent: STUART A. GOLDSTEIN, ESQ. of: Stuart A. Goldstein, P.A. 9350 South Dixie Highway loth Floor Miami, FL 33156 (305) 670-1222

ALSO PRESENT: CODY L. SMITH, Attorney Advisor

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1 P-R-0-C-E-E-D-I-N-G-S 2 10:07 a.m. 3 JUDGE SULLIVAN: We're on the 4 record in the matter of the Liberty 5 Foundation. This is FAA-2012-0477. 6 Today is Tuesday, January 22nd, 7 2013, and the parties have convened for an 8 expedited telephone conference. The Federal 9 Aviation Administration, hereinafter 10 abbreviated as the FAA, is represented by Mr. 11 Christopher Stevenson. The respondent, the 12 Liberty Foundation, is represented by Mr. 13 Stuart Goldstein, the attorney of record. 14 Also present at the hearing Office 15 of Hearings appearing as an observer only is 16 Mr. Cody L. Smith, an attorney-advisor with 17 this office. 18 Good morning, counsel. We need to 19 take care of a couple of little matters first. 20 Mr. Stevenson, welcome to this litigation. 21 It's my understanding that you're taking this 22 case over from Ms. Wojcik who had been

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1 appearing as counsel for the FAA. Is that 2 correct? 3 MS. STEVENSON: That's correct, 4 Your Honor. 5 JUDGE SULLIVAN: Okay. Well I do 6 need to have some Notice of Appearance or 7 Notice of Substitution from you so that we 8 have your address and phone number and fax 9 number. Is that something that you could fax 10 us today by any chance? 11 MS. STEVENSON: I was under the 12 impression I had already filed that, but I can 13 fax it today as well. 14 MR. GOLDSTEIN: I think you did 15 file it, Chris. 16 JUDGE SULLIVAN: And, Mr. 17 Goldstein, you don't want to be talking 18 directly to Mr. Stevenson. This is a 19 conversation where you're both focused on me, 20 so for the record, it appears Mr. Goldstein 21 made a comment, and I'll thank him for that, 22 but in the future, counsel, please direct your

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com5 1 comments to me unless I say otherwise. 2 MR. GOLDSTEIN: Yes, Your Honor. 3 JUDGE SULLIVAN: Mr. Stevenson, if 4 you did send something to the file, it hasn't 5 reached my file, so I would be most 6 appreciative if you could fax a copy of what 7 you previously sent to this office. 8 Would you like our office fax 9 number? 10 MS. STEVENSON: Yes, let me make 11 sure. I'll take that to make sure I have it. 12 JUDGE SULLIVAN: Okay. The office 13 fax number is (202)366-7536. 14 MS. STEVENSON: All right. I have 15 (202)366-7536? 16 JUDGE SULLIVAN: That's correct. 17 MS. STEVENSON: I will fax that 18 over as soon as we are finished with this 19 call. 20 JUDGE SULLIVAN: Okay. Thank you 21 very much, and just so that we're all clear, 22 it's my understanding that this matter was set

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com6 1 up by telephone call from Mr. Goldstein. He 2 called the Office of Hearings on January 15, 3 2013, and spoke with Mr. Cody L. Smith about 4 the possibility that the parties may need an 5 extension because of some discovery problem, 6 and Mr. Goldstein then called this office 7 again on January 16, 2013, just following up 8 on whether or not this office could set up an 9 expedited telephone conference. 10 As you all know, we did set up the 11 telephone conference for today's date and 12 time. There was no order issued regarding 13 that because it was an expedited set, so, Mr. 14 Goldstein, since you initiated this 15 conference, why don't I turn to you next and 16 could you identify for us what the problem is 17 and what potential solution you think might 18 work for you. 19 MR. GOLDSTEIN: Yes, thank you, 20 Your Honor. Mr. Stevenson got in the case. 21 He and I have talked a couple of times, but I 22 was looking at Your Honor's order of December

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com7 1 11 which granted the Respondent's Motion for 2 Extension of Time and certain other relief, 3 and it occurred to me that when you kindly 4 granted my motion and gave us a new deadline 5 forproviding expert witness informationunder 6 Rule 26, the new date being January 31, 2013, 7 that that might have conflicted with the last 8 date for taking depositions and doing 9 discovery, and so that's the conflict. 10 So I spoke to Mr. Stevenson about 11 it, and I believe he and I - he agrees that 12 there is that conflict in the orders and so we 13 talked and we agreed that we the way to 14 resolve it is to have a couple of extra weeks, 15 and we didn't agree specifically on a couple 16 of extra weeks, but I think that's the 17 timeframe we talked about in order to take 18 depositions after the January 31 deadline for 19 submitting expert witness information. 20 JUDGE SULLIVAN: Okay, well let me 21 ask you about that because I have before me 22 the December 11' 2012, order granting

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1 Respondent's Motion for Extension and 2 Granting/Denying Other Relief as well as the 3 previous litigation procedural order that was 4 issued on September 24, 2012, which set up 5 potentially all the different dates that you 6 prefer to

- for today. 7 In the September 24, 2012, 8 litigation procedural order on Page 2 of the 9 four-page order at the bottom of the page 10 there is Paragraph 9 that sets January 31, 11 2013, as the supplemental discovery deadline 12 which, as you know, was utilized by this Court 13 when I issued the order granting Respondent's 14 Motion for Extension on December 11, 2012. 15 In addition, then on Page

- at the 16 end of Page 2 of the September 24, 2012, 17 litigation order, there a standing set of 18 deadlines for filing dispositive motions that 19 would include but would not be limited to 20 summary judgment motions or motion for a 21 decision on all or part of the case, February 22 22, 2013, being the first deadline for the

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### 1 movant; March 8, 2013, being the deadline for 2 any response to the motion; March 20, 2013, 3 

### deadline for filing a reply. By this time 4 hopefully we're all on Page 3 of the four-page 5 September 24, 2012, litigation order. 6 So we basically set up last year 7 what I would hope to have been a fairly 8 comfortable method by which the parties could 9 bring those pre-trial motions to the court and 10 have them decided before the May 2013 trial 11 date. 12 So when you say that you talked 13 preliminarily with each other about an 14 extension of the discovery deadline, have you 15 also talked preliminarily about the extension 16 if needed of the dispositive motion deadlines 17 as well? 18 MR. GOLDSTEIN: We only - I won't 19 speak for Mr. Stevenson, but we only talked 20 very generally about that and I don't - I mean 21 honestly I don't know, Your Honor, whether 22 we'll need to move some dates a little bit.

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1 We may have to, but we didn't speak 2 specifically about moving other dates. 3 JUDGE SULLIVAN: Okay, and I'm not 4 very good with voices. Was that Mr. Stevenson 5 who just spoke? 6 MR. GOLDSTEIN: No, it was Stuart 7 Goldstein. I thought you were addressing me, 8 Your Honor. 9 JUDGE SULLIVAN: Okay. Thank you. 10 No, that was fine. Thank you. 11 So, Mr. Goldstein, let me ask you 12 this in terms of what you did discuss and what 13 you thought was possible. Can you kind of 14 give me the timeframe of what you were 15 thinking about doing, and then we can see if 16 it will fit into our current schedule. 17 MR. GOLDSTEIN: Your Honor, we - 18 on the assumption that we will get our expert 19 witness reports to each other by the 31st, 20 then we talked about, as I said earlier, a 21 couple of weeks, so mid-February or so for the 22 deposition.

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1 JUDGE SULLIVAN: Okay. 2 MR. GOLDSTEIN: My schedule is 3 okay for that. I don't know about Chris', but 4 that's what we talked about, and we really 5 didn't go much further than that, so if we - 6 if mid-February was where we were instead of 7 January 31, it would make February 22nd a 8 problem for dispositive motions although 9 frankly I don't see a summary judgment motion 10 as being

- well I don't know. We're both 11 going to have experts on the dispositive 12 issues, so - 13 JUDGE SULLIVAN: You both don't 14 have any such

- 15 MR. GOLDSTEIN: Yes, and but 16 nevertheless, that's the way I look at it. I 17 don't

- I'm not speaking for Mr. Stevenson. 18 He may look at it differently, but there would 19 be, Your Honor is correct, there would be a 20 crunch then because it would be difficult to 21 get transcripts probably in order to file a 22 dispositive motion, a summary judgment motion

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(202) 234·4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com12 1 by then. 2 JUDGE SULLIVAN: Mr. Stevenson, 3 let me turn to you since you're the new 4 attorney on the case appearing on behalf of 5 the FAA. Congratulations by the way, and 6 thank you for joining us. 7 What is your sense of what would 8 work for you and your client in terms of 9 discovery and other matters that have yet to 10 be addressed by this court? 11 MS. STEVENSON: Well I would agree 12 with Mr. Goldstein that there is something of 13 a conflict in the schedule that we have right 14 now in that it permits until the end of 15 January to produce the underlying information 16 on experts such as what the experts' opinions 17 would be and normally I would not want to 18 expend the time and money for a deposition of 19 an expert until I have the expert's report, 20 and so the deadline for producing the report 21 right now is the same as the deadline for 22 conducting the depositions, so I would agree

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com13 1 with Mr. Goldstein that it would be helpful to 2 have time past the January 31st deadline to 3 conduct the depositions and potentially 4 supplemental discovery. 5 I don't know what the respondent's 6 expert opinions are yet, so it's hard for me 7 to say whether or not I think that would be 8 necessary. 9 I would also agree with Mr. 10 Goldstein that if we allow discovery to run 11 past January 31st that it would be very 12 difficult at best to use the current February 13 22nd deadline for a dispositive motion because 14 as Mr. Goldstein indicated we probably 15 wouldn't even have the transcripts back yet 16 from any deposition to use in that, so I would 17 think that we would need to push that

- at 18 least those deadlines back. I don't know if 19 we want to

- I don't know if we want or need 20 to push the entire timeline back, but I would 21 agree on those basic principles. 22 JUDGE SULLIVAN: Okay. Well let

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### 1 me ask you both this, and I'll start with Mr. 2 Stevenson and then go to Mr. Goldstein. 3 Let's assume, for example, that we 4 pushed

- kept the January 31, 2013, due date 5 for submitting or exchanging expert witness 6 information like we've talked about and then 7 we reset a supplemental discovery deadline 8 date into mid to late February, 2013, to allow 9 both of you a chance to depose witnesses that 10 you deem fit. 11 After that, we're still looking at 12 setting a schedule for dispositive motions 13 even if at this point in time you may not 14 think you have a great dispositive motion or 15 perhaps even only a partial one, I'd still 16 like to set those dates particularly because 17 when you depose witnesses things come out that 18 you hadn't expected. Sometimes that's to the 19 good, sometimes it's not to the good, but it 20 can help frame your decision about whether or 21 not you have a dispositive motion or in the 22 alternative whether or not you have a response

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### 1 to one. 2 So is it something that is part of 3 - are you wedded then, let me ask you this, to 4 the May 2013 hearing dates, and if so, can you 5 squeeze things into a very compressed schedule 6 

### and maintain that time1ine? 7 If you're not wedded to the May 8 2013 hearing dates, then we canpostpone those 9 and then rethink where you'd want to be in 10 terms of the discovery and the motion. 11 I don't want to extend this beyond 12 where the parties want to go, so I'm happy to 13 work with you in either scenario. 14 

### Mr. Stevenson, what's your 15 client's preference? 16 

### MS. STEVENSON: It would be our 17 preference to extend the existing deadlines so 18 that we had time to, you know, to properly do 19 dispositive motions and then have Your Honor 20 consider those even if they end up only being 21 partial motions, and the Agency would not 22 object to moving the hearing back which does

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(202) 234·4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com16 1 seem like it would be necessary to have a 2 normal schedule for those motions. 3 JUDGE SULLIVAN: Mr. Goldstein, 4 what's your client's preference? 5 MR. GOLDSTEIN: Well I don't 6 disagree, Your Honor, with what you said or 7 with what Mr. Stevenson said, and you do raise 8 a good point that one never knows what will be 9 said in a deposition, so we are not

- we're 10 not wedded to the current hearing dates. We 11 don't have a problem if they're moved. 12 JUDGE SULLIVAN: Okay. Why don't 13 I take a quick look at my schedule, and I can 14 tell you when I start to have trial time open, 15 and then we can talk about potentially 16 resetting the trial dates and then moving from 17 January 31, 2013, up through the potential new 18 trial date for an expansion of what we have 19 now in terms of discovery and motion practice, 20 so I just need to log into my computer and 21 look at my calendar. 22 Oh, dear. My first opening at

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com17 1 this point, and I know this sounds amazing, 2 but it, would be in November 2013, so, Mr. 3 Stevenson, I'm going to start with you. Would 4 that be acceptable for you in terms of 5 rescheduling? 6 MS. STEVENSON: Yes, Your Honor. 7 JUDGE SULLIVAN: Okay. Mr. 8 Goldstein, how about you? We'll talk about 9 actual dates inNovember if that's acceptable. 10 MR. GOLDSTEIN: Yes, it would be, 11 Your Honor. 12 JUDGE SULLIVAN: Okay, so this was 13 originally set for a three-day hearing with 14 the venue directed to be in Atlanta, Georgia, 15 so why I don't I take a look at my November 16 schedule and see if I can suggest to everyone 17 some time. 18 I have the first week of November 19 2013 which begins on Monday, November 4, 2013, 20 and ends on Friday, November 8, 2013. 21 I also have the third week of 22 November which is the week prior to

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### 1 Thanksgiving, and that starts on Monday, 2 

### November 18, 2013, and ends on Friday, 3 November 22, 2013. 4 Starting with you, Mr. Stevenson, 5 do either of those weeks work for you, and if 6 so, do you have a preference? 7 

### MS. STEVENSON: Both of those 8 weeks work for me. My preference would be to 9 

### try the first week of November. The third 10 week shouldn't conflict with witnesses' 11 Thanksgiving plans because that's the week 12 before, but you never know, so I think we'd 13 have less chance for witness problems in the 14 first week. 15 

### JUDGE SULLIVAN: Okay. Mr. 16 Goldstein, do either of those weeks work for 17 you and if so, do you have a preference? 18 MR. GOLDSTEIN: Both weeks work 19 for me, Your Honor, and I agree with Mr. 20 Stevenson. You know, the week of the 18th 21 could present a problem, so I think the 22 earlier one is better.

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1 JUDGE SULLIVAN: Well then let's 2 plan on continuing the hearing that's 3 currently set for Tuesday, May 14, 2013, 4 through Thursday, May 16, 2013, to the week of 5 November 4, 2013. The question is do you want 6 to start on Tuesday again with Wednesday and 7 Thursday following. Mr. Stevenson. 8 MS. STEVENSON: I prefer a three9 day hearing, I think that's usually the best 10 day to start especially since I don't have to 11 travel, but I know Mr. Goldstein will, and I 12 know I like to be able to travel on Monday 13 instead of having to do it on Sunday when I 14 have to do that. 15 JUDGE SULLIVAN: Okay. Mr. 16 Goldstein, is a Tuesday start date acceptable 17 in November 2013? 18 MR. GOLDSTEIN: Fine with us, Your 19 Honor

. Thank you. 20 JUDGE SULLIVAN: Okay, so we'll 21 start the hearing on Tuesday, November 5, 22 2013. We'll continue it on November 6, 2013,

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### 1 and finish it up on November 7, 2013. We'll 2 start the hearing at 9:00 a.m. every day and 3 run until 5:00p.m., so, counsel, and I know 4 

### that you both know this, but you'll need to 5 get to the courthouse a little early to get 6 through the screening, and it would be helpful 7 if you let your witnesses know that too. 8 

### Again, this will be in Atlanta, 9 Georgia, and the Office of Hearings will send 10 you out a specific notice that where in 11 Atlanta, Georgia, the hearing will take place 12 a little closer in time to the hearing date. 13 Since we've taken care of that 14 

### matter, let's go back to talking about 15 discovery andpreliminarymotions, and I think 16 what we might want to do is set up the 17 telephone conference for oral argument on 18 dispositive motions as well as the list of 19 witnesses and the exchange of exhibits due 20 date and then we can backtrack from those 21 dates to find out how much extra time you have 22 for discovery purposes.

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1 So with the hearing starting on 2 Tuesday, November 5, 2013, in your original 3 schedule, the parties had agreed to exchange 4 the list of witnesses and exhibits 5 approximately one month prior to the hearing 6 date. Mr. Stevenson, is that your preference 7 or do you prefer a different type of timeline? 8 MS. STEVENSON: I'm okay with the 9 month beforehand deadline. 10 JUDGE SULLIVAN: Okay. Mr. 11 Goldstein, does that still work for you? 12 MR. GOLDSTEIN: Yes, it does, Your 13 Honor. 14 JUDGE SULLIVAN: Okay. Why don't 15 we say then that the new date for exchanging 16 the list of witnesses and exhibits is October 17 -say October 8, 2013, and that means that two 18 weeks after that, October 22nd, would be the 19 date to file pre-hearing briefs if you care to 20 do that. That's always helpful for the court 21 if you do, but it's not mandatory, and then 22 let's backtrack then to a telephone conference

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(202) 234·4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com22 1 date prior to October 8, 2013, for oral 2 argument, and I'm looking at my calendar and 3 I want to make sure that I'm not someplace 4 else in the country. 5 How about Thursday, September 19, 6 2013? I'm trying to make sure that that's a 7 little farther out than October 8. That 8 should be plenty of time. 9 Mr. Goldstein I'm sorry, Mr. 10 Stevenson, would Thursday, September 19th be 11 a good date for oral argument, and this would 12 convert to an oral telephone conference for a 13 hearing status conference if no dispositive 14 motions are filed. 15 MS. STEVENSON: That date works 16 for me, Your Honor. 17 JUDGE SULLIVAN: Mr. Goldstein, 18 how about you? 19 MR. GOLDSTEIN: For me as well, 20 Your Honor. 21 JUDGE SULLIVAN: Okay. Mr. 22 Stevenson, do you have a preference in terms

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com23 1 of time on Thursday, September 19, 2013? 2 MS. STEVENSON: My usual time lS 3 sometime after

- either ten in the morning or 4 two in the afternoon. 5 JUDGE SULLIVAN: Okay. Well it's 6 good to know that you have a schedule. Mr. 7 Goldstein, do you have any preference for 8 time? 9 MR. GOLDSTEIN: I don't, Your 10 Honor. Eleven is good, ten, it doesn't matter 11 to me. 12 JUDGE SULLIVAN: Okay. Why don't 13 we say 2:00p.m. to 3:00p.m. Eastern Standard 14 Time on Thursday, September 19, 2013, and then 15 I'm going to backtrack a little bit so that I 16 can give you some due dates for the motion, 17 and I'm going to try and take into account all 18 the Federal holidays too. 19 How about this, counsel. How 20 about if we schedule August 14, 2013, for the 21 moving party to file any and all pre-hearing 22 dispositive motions. Approximately two weeks

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(202) 234·4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com24 1 after that, August 29, 2013, would be the 2 deadline for responding to dispositive 3 motions, and then approximately two weeks, a 4 little less than two weeks after that, 5 September 11, 2013, would be the deadline for 6 the movant to file any reply if the movant so 7 chooses. 8 Mr. Stevenson, would that work for 9 you? 10 MS. STEVENSON: I'm sorry, what 11 was the reply brief deadline you suggested? 12 JUDGE SULLIVAN: September 11, 13 2013. That would be approximately one week 14 prior to the actual oral argument. 15 MS. STEVENSON: Yes, those dates 16 work for me, Your Honor. 17 JUDGE SULLIVAN: Okay, and, Mr. 18 Goldstein, how about for you? 19 MR. GOLDSTEIN: And for me as 20 well, Your Honor. 21 JUDGE SULLIVAN: Okay. Then that 22 gives us some generous time to talk about your

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1 discovery issues, so do you want to extend the 2 January 31, 2013, deadline for general 3 discovery or are you comfortable with it as 4 this point, Mr. Stevenson? 5 MS

. STEVENSON: I'm comfortable 6 with it at this point, but given the length of 7 time that we now have to play with in 8 discovery I'd also be comfortable extending 9 that somewhat. I mean it would be - I would 10 like to get at least the experts' reports 11 exchanged so we can work on planning what 12 depositions will need to be taken, but I don't 13 mind extending it a little bit. 14 JUDGE SULLIVAN: Okay. Mr. 15 Goldstein, how about any comments from you 16 about that issue. 17 MR. GOLDSTEIN: Yes, I would like 18 to extend it a fair bit, Your Honor, given the 19 time that you've given us. I mean if the 20 dispositive motions are due August 14, it 21 seems to me two and a half or so, three months 22 before that, would be a good deadline for

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1 discovery to be completed and then sometime 2 before that for exchanging expert witness 3 information. 4 I'll be frank, I mean I'm having 5 some difficulty with my experts. I mean 6 they're all around and about and even though 7 I've sent them information, I'm just having 8 some difficulty getting their reports back, so 9 in view of the fact that we do have, you know, 10 a long time now, I would prefer to extend the 11 deadline. 12 I know it's been needed and been 13 asking for, but it's the nature of the beast 14 in this case. 15 JUDGE SULLIVAN: Mr. Goldstein, 16 let me ask you this. If I extended the 17 deadline to February 28, 2013, the general 18 discovery deadline which would include the 19 exchange of expert reports and the list of 20 experts, would you find that to be ample 21 enough time? 22 MR. GOLDSTEIN: It certainly

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com27 1 should be. 2 JUDGE SULLIVAN: Okay. 3 MR. GOLDSTEIN: I'm sorry. I mean 4 it should be, Your Honor. You've been 5 generous so far. It's just

- it should be 6 enough time, Your Honor. 7 JUDGE SULLIVAN: Okay. Mr. 8 Stevenson, would that work for you? 9 MS. STEVENSON: Yes, Your Honor. 10 JUDGE SULLIVAN: Okay, and then 11 why don't we talk about any and all 12 depositions at that point. Depositions could 13 be completed no later that April 30, 2013, and 14 then we could set a - maybe a June 12, 2013, 15 to have all supplemental discovery completed, 16 so once you have all of your basic depositions 17 taken on or before April 30, 2013, you'd have 18 30 days to get those transcripts or less, and 19 we could set all further depositions or any 20 supplemental discovery actually to the end of 21 June I would suggest, June 28, 2013, and then 22 that would leave both of you with

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(202) 234·4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com28 1 approximately six weeks to put together all of 2 your information and decide whether or not 3 you're going to be a movant for a dispositive 4 motion. 5 Mr. Stevenson, would that work for 6 you? 7 MS. STEVENSON: Yes, I believe so, 8 Your Honor. Let me - because there were a 9 number of dates in there, just to make sure 10 that - I know we'll get a written follow up, 11 but to make sure I have the dates correct for 12 what we're talking about. 13 We would exchange the initial 14 discovery responses including the expert 15 witness disclosures by the end of February 16 2013, and then that

- 17 JUDGE SULLIVAN: That would be

- 18 I'm sorry. 19 MS. STEVENSON: Complete all of the 20 depositions by the end of April 2013, and then 21 all supplemental discovery by the end of June 22 2013

- or by June 28, 2013.

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1 JUDGE SULLIVAN: Correct. Do you 2 have the specific dates, the exchange of all 3 interrogatories, request for production, 4 notices of request for admission, and the 5 exchange of expert reports and expert names, 6 addresses and phone numbers should be 7 completed on or before February 28, 2013, 8 which is the last day of February. 9 The depositions of any and all 10 witnesses should be completed on or before 11 April 30, 2013, which is also the last day in 12 that month, and then any and all supplemental 13 discovery arising from those depositions and 14 any other matters that come up that weren't 15 anticipated before should be completed no 16 later than June 28, 2013, which is the last 17 working day of the month of June. 18 Mr. Goldstein, does that work for 19 you as well? 20 MR. GOLDSTEIN: They do, Your 21 Honor. 22 JUDGE SULLIVAN: Okay. Then it

NEAL R. GROSS
(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com30 1 looks to me that we've taken care of just 2 about everything. I will send out a new 3 litigation procedural order basically 4 codifying in writing what we've talked about 5 here today. 6 Mr. Stevenson, starting with you, 7 is there anything else that we need to address 8 for your client today? 9 MS. STEVENSON: I don't believe so, 10 Your Honor. 11 JUDGE SULLIVAN: And, Mr. 12 Goldstein, on behalf of your client, anything 13 else that we need to address? 14 MR. GOLDSTEIN: Yes, Your Honor. 15 I'd like to take advantage of you being on the 16 phone. Mr. Stevenson and I talked at my 17 request about the possibility of utilizing in 18 this case depositions that were taken in the 19 Rodney Schneider case which we have mentioned 20 previously to you as a sister case. That case 21 is resolved I believe as Your Honor knows. 22 There were depositions taken of

-

NEAL R. GROSS
(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.• N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com31 1 I took depositions of four FAA witnesses all 2 of whom are current FAA employees with the 3 possible exception of one who may have 4 retired, and so I approached Mr. Stevenson a 5 week or so ago about that, and he had not, due 6 to his newness to the case, hadn't had an 7 opportunity to even look at those depositions, 8 and I believe only two of those were 9 transcribed in any event. 10 I subsequently sent them to him for 11 his

- so he could look at them, and I just 12 want to alert, I'm not looking for a ruling 13 now, I just wanted to alert the court that 14 that is an issue that may come up if we don't 15 agree on whether or not we can use relevant 16 parts of those depositions. 17 JUDGE SULLIVAN: And are you 18 talking about submitting them as perpetuation 19 depositions or just simply using them to 20 examine witnesses or in some other capacity? 21 MR. GOLDSTEIN: For any purpose, 22 any purpose allowable. In other words, for

NEAL R. GROSS
(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com32

1 

### impeachment, for impeachment purposes at the 2 trial, for impeachment purposes during a 3 

### deposition if 

### I'm required to re-take 4 depositions, for any purpose allowable. 5 JUDGE 

### SULLIVAN: Okay. I have 6 

### talked to other litigants and counsel in 7 

### similar types of cases, and it's my 8 

### understanding that historically the parties in 9 

### these kinds of cases have not utilized 10 

### perpetuation depositions, and so I don't think 11 

### that would work in this case. 12 

### If the parties hadn't opened those 13 

### depositions and utilized them with the 14 

### understanding that they could be utilized in 15 

### this type of case in addition to the Rodney 16 

### Schneider case, and when I saw perpetuation 17 

### deposition, what I'm talking about is using 18 

### the deposition in lieu of live testimony where 19 

### you don't even call the witness live. You 20 basically have taken the deposition and you 21 

### have agreed prior to the opening of the 22 deposition that it's going to be utilized as

NEAL R. GROSS
(202) 234·4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., NW. WASHINGTON, D.C. 20005·3701 www.nealrgross.com33 

### 1 testimonial evidence with all objections 2 raised during that deposition for the trial 3 court to rule upon. 4 So that's a pretty specialized type 5 of use of the deposition and unless you all 6 agree to it at the beginning, it's usually not 7 something you can craft or jury rig later, so 8 I would presume at this point what we're 9 

### talking about is using the depositions 10 pursuant to Civil Rule 32 which talks a lot 11 about the use of depositions ln court 12 proceedings and what the rules are for 13 allowing that, and I'll just ask both of you 14 to take a look at CR 32 at your leisure, talk 15 about it privately, and then I will include in 16 the litigation procedural order information 17 about how to bring a motion to the court's 18 attention during the pendency of the discovery 19 schedule and just to highlight what that is. 20 If you don't agree on something, 21 please look at your calendars, pick out three 22 mutually-agreeable dates that you're both

NEAL R. GROSS
(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 wwvv.nealrgross.com34 1 available for a telephone conference, and then 2 depending on whether there's one person who 3 has a strong opinion about something and wants 4 to be the go-to person, that person then would 5 contact my office and put

- try and get that 6 matter scheduled as soon as possible and then 7 you can file the motions that would support 8 your respected positions. 9 So like for today, you got on my 10 calendar pretty quickly because Mr. Goldstein 11 took it upon himself to call and set something 12 up, and that's great. 13 You didn't need to file any motions 14 because I got the message about what this was, 15 and I thought it was a fairly clear and 16 specific need that I didn't need anything in 17 writing about, but for something where you 18 have a pretty intensive dispute about the use 19 of depositions, that probably might need a 20 little bit of research and legal authority 21 presented if you're having trouble reaching an 22 agreement.

NEAL R. GROSS
(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 WNW.nea\rgross.com35 1 So that's generally how you'd go 2 about getting on my calendar and doing it so 3 that you don't have to extend your trial dates 4 again, so if you don't agree, figure out who's 5 going to be the movant to call my office after 6 you have three mutually-agreeable dates 7 figured out, and usually with three proposed 8 dates, we can find something that works on my 9 calendar unless I'm out of town, and then my 10 legal staff or Mr. Smith who works as the 11 attorney on my case load would be happy to 12 help tell you when I am available. 13 So with that, Mr. Goldstein, does 14 that kind of answer your question at least on 15 a preliminary basis regarding a deposition? 16 MR. GOLDSTEIN: Yes, thank you, 17 Your Honor. 18 JUDGE SULLIVAN: Okay. Any other 19 questions from Liberty Foundation before we 20 finish the record today? 21 MR. GOLDSTEIN: No, Your Honor. 22 Thank you.

NEAL R. GROSS
(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.• N.W. WASHINGTON. D.C. 20005-3701 www.nealrgross.com36 1 JUDGE SULLIVAN: Okay, then I will 2 thank you all very much for your presence here 3 today. It appears our business is complete. 4 I'll send out an amended litigation procedural 5 order as soon as I get Mr. Stevenson's new 6 address, phone number, and fax number. 7 With that, we can go off the 8 record, and I wish you all a good day. Thank 9 you. 10 MS. STEVENSON: Thank you, Your 11 Honor. 12 JUDGE SULLIVAN: You're welcome. 13 MR. GOLDSTEIN: Thanks, Chris. 14 (Whereupon, the above-entitled 15 matter was concluded at 10:46 a.m.) 16 17 18 19 20 21 22

NEAL R. GROSS
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98:10 9:0020:2942
C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: FAA v Liberty Foundation, Inc.

Before: US DOT/OH

Date: 01-22-13

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202) 2344433 Court Reporter

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE. N.W. WASHINGTON. D.C. 20005·3701 WlrVW.nealrgross.com