# RECEIVED

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, DC 

## DEC 1220!6 HEARING DOCKET

In the Matterof: FELTS FIELD AVIATION Respondent ) ) ) ) ) ------------) 

### DocketNo: FAA-2015-3307 CaseNo: 2015WP910090

RESPONDENT'S SUPPLEMENTAL REPLY TO COMPLAINANT'S OPPOSITION TO RESPONDENT'S MOTION TO COMPEL 

### On April 14, 2016, this Court issued an Order Setting Litigation Dates and Procedures. That Order setJune 30, 2016 as the FAAExpertDisclosure Deadline. OnJuly II, 2016, eleven days late and one day priorto a July 12th Hearing onthe matter, the Complainant served an initial Response to Respondent's First Set of Interrogatories and Requests for Production of Documents. In 

### that Response, the Complainant identified Mr. Eric Wells as a Testifying Expert Witness, presented a heavily redacted Enforcement Investigative Report (EIR) as Exhibit C-1, and presented Mr. Wells Expert Opinion Report as Exhibit C-2. The Respondent challenged the Complainant's untimely identification ofits Testifying Expert Witness and the level of redactionfound in Exhibit C-1. On July 14, 2016, this Court issued an Order fmding sufficient time remained to avoid prejudicing the Respondent and allowed the Complainant's Testifying Expert Witness. That Order also required that the Complainant provide either a modified redacted copy ofExhibit C-1 or a privilege log justifying the redactions to the current ExhibitC-1. RESPONDENT'S SUPPLEMENTALREPLY TO OPPOSITIONTOMOTION TO COMPEL DISCOVERY In the MatterofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 Page 1of8 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 (509) 624-3020

### On July 20, 2016, the Complainant, through its July 201 h 

### Supplemental Response to Respondent's First Set ofInterrogatories and Requests for Production ofDocuments, provided both a modified redacted version ofExhibit C-1 (hereinafter "Supplemented Exhibit C-1) and a privilege log. The Supplemented Exhibit C-1 revealed that the Complainant's Testifying Expert Witness, Mr. Wells, was the "Team Coordinator" and signatory approving official of the EIR. However, the Respondent found the Supplemented Exhibit C-1 and the privilege log generally inadequate. Based on its right to discover "facts known, or opinions held, by" a TestifYing Expert Witness, and other discovery rights, the Respondent requested a more compliant version of Supplemented Exhibit C-1. The Respondent made this request to the Complainant both telephonically and inwriting. The Complainantrefused. On September 16, 2016, the Respondent moved this Court for an Order to Compel Discoveryofamore compliantversion ofSupplementedExhibitC-1. On September 22, 2016, the Complainant submitted an Opposition to the Respondent's Motionto Compel. On September 30, 2016, the Respondent submitted a Reply to the Complainant's Oppositionto the Respondent's Motion to Compel. On November 10, 2016, this Court conducted a Motion Conference on the Respondent's Motionto Compel. On November 14, 2016, this Court Ordered that the Motion Conference be continued to December 15, 2016. The Order further required that all parties read the decision issued in Airborne Maintenance and Engineering Services, FAA-2013-0291, RESPONDENT'S SUPPLEMENTALREPLYTO OPPOSITION TO MOTIONTO COMPELDISCOVERY In the Matter ofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 Page 2 of8 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 (509) 624-30202014 WL 4635559 (FAA Aug. 19, 2014), and that after reading the material, the parties should contact each other and determine whether they might be able to agree to the various discoveryrequests. On November 21, 2016, the Complainant, through its November 21st Supplemental Response to Respondent's First Set of Interrogatories and Requests for Production ofDocuments withdrew, without substitution, its Testifying Expert Witness, Eric Wells. Mr. Wells is the same untimelyidentified Testifying ExpertWitness thatthis Court allowed inits July 14'h Order. On November 30, 2016, at the Respondent's request and initiation, the parties held a telephonic conference in which the Counsel for the Complainant confirmed that the Complainantwouldnot change itspositiononthe discoverability ofa more compliant versionofSupplementedExhibitC-1. Comes now, the Respondent, by and through its attorneys, BENJAMIN L. WYBORNEY and MARK J. CONLIN, submits this Supplemental Reply to Complainant's Opposition to Respondent's Motion to Compel Discovery in the above captionedmatter.

SUPPLEMENTAL REPLYIN RESPONSE TO COMPLAINANT'S WITHDRAWAL OF ITS EXPERT WITNESS In short, the Respondent respectfully submits that the Complainant's withdrawal ofits Testifying Expert Witness does not change the analysis. The Complainant's "facts and legal theories" underlying the Complainant's prosecutorial action are "freely discoverable" and the Respondent is entitled to them. Airborne Maintenance and Engineering Services, FAA-2013-0291, 2014 WL 4635559 (FAA Aug. 19, 2014). RESPONDENT'S SUPPLEMENTAL REPLY TO OPPOSITIONTO MOTIONTO COMPELDISCOVERY In the Matter ofFelts Field Aviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 Page 3 of8 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 (509) 624-3020Alternatively, although the Complainant only invoked the deliberative process privilege in its September 22"d Opposition, if some form of privilege does protect the Complainant's "facts and legal theories," the Complainant waived suchprivilege when it designated Mr. Eric Wells as a Testifying Expert Witness and made his "factsknown or opinions held" discoverable. SeePanasonicCommc'nsCom. ofAm. v. United States, 99 Fed. Cl. 422 (2011). Mr. Wells' "facts known or opinions held" are contained in his writtenreport, the EIR, setforth in SupplementedExhibit C-1. Consequently,the facts in the EIR are entirely discoverable, withoutredaction. See 14 C.F.R. § 13.220(e) and Fed. R. Civ. P. 26(a)(2)(B). However, after the November 

### IO'h Hearing and the subsequent review of the "deliberative" process privilege and the Four Types of Discovery Material, the Complainant has nowwithdrawn, without substitution, its TestifYing Expert Witness, Mr. Eric Wells. This withdrawal creates a presumption that the Complainantrealizes that the "facts known and opinions held" by its TestifYing Expert Witness are discoverable. Further, this withdrawal creates the presumption that the Complainant believes that ifit withdraws its Testifying Expert Witness, Mr. Wells, the material containing the "facts known and opinions held" by Mr. Wells is returned to privileged status and no longer discoverable. The Respondent respectfully submits that the Complainant is incorrect. Withdrawing its TestifYing Expert Witness does not render the Expert's Written Report, Supplemented Exhibit C-2, and the factual basis underlying the Written Report, SupplementedExhibit C-1, undiscoverable. "Awitness identified as a testimonial expert is available to either side; such a person can't be transformed after the report has been RESPONDENT'S SUPPLEMENTALREPLY TO OPPOSITIONTOMOTIONTO COMPELDISCOVERY In the Matter ofFelts Field Aviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 Page 4 of8 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 (509) 624-3020

### disclosed, and a deposition conducted, to the status ofa trial-preparation expert whose identity and views may be concealed. See Fed.R.Civ.P. 26(b)(4)(B). [currently Fed.R.Civ.P. 26(a)(2)(B), see comments Fed.R.Civ.P. 2010 Amendment.] Disclosure of the report ends the opportunity to invoke confidentiality." S.E.C. v. Koenig. 557 F.3d 736, 744 (7th Cir. 2009). See Davis v. Carmel Clay Sch., No. I:11-CV-00771-SEB, 2013 WL 2159476 (S.D. Ind. May 17, 2013). The withdrawal of its Testifying Expert Witness notwithstanding, the Complainant intends to present the same evidence through its Lay Witness, Simone Clinton. The Complainant's November 21st Supplemental Response to Respondent's First Set Oflnterrogatories and Requests for Production ofDocuments indicates thatMs. Clinton's "testimonywill include discussion ofFelt [sic] Field Aviation, Inc.'s air carrier and operations specifications, including those operations specification [sic] relating to Felt [sic] Field Aviation, Inc.'s drug and alcohol prevention program. Additionally, Ms. Clinton will testify that Richard Webber was not included in the random selection pool during selections made inJuly 2013, October2013, January 2014, April2014, July 2014, October 2014, and January 2015." Except for the changed name and gender references, this is a verbatim copy ofthe passage describing testimony expected ofMr. Wells found in the Complainant's July 11th initial Response to Respondent's First Set of Interrogatories and Requests for Production ofDocuments. Even the grammatical errors

are the same. Further, Ms. Clinton is the identified "Reporting Inspector" ofthe same EIR at Supplemented Exhibit C-1. By withdrawing its Testifying Expert Witness, Mr. Wells, and shifting his testimonyto the Lay Witness, Ms. Clinton, the Complainant seeks

RESPONDENT'S SUPPLEMENTALREPLYTO OPPOSITIONTOMOTIONTO COMPEL DISCOVERY In the Matter ofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 Page 5 of8 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 (509) 624-3020

### the benefit ofExpert Testimony while denying the production ofthe Expert Testimony's factual basis. The Complainantis attempting to unfairly "have its cake and eatittoo." Finally, in addition to the foregoing, the Respondent observes the following considerations. First, the Complainant's only invoked privilege is the deliberative process privilege. However, the privilege log does not properly invoke the privilege. The privilege log does not "(i) invoke the privilege through an agency head or properly chosen subordinate; (ii) specificallyidentifY whatrecords are subjectto the privilege; and (iii) provide "precise and certain reasons" for withholding the requested" information. Sikorsky Aircraft Corp. v. United States, 106 Fed. Cl. 571, 577 (2012). Second, even if the EIR is privileged and the privilege is properly invoked; the Respondent has met the burden of showing a particularized need that outweighs any harm caused to the Government. The Complainant aggregates its facts into and is the sole custodian ofits EIR. When afforded the opportunityby the productionofthe SupplementedExhibit C-1, the Respondentidentified errors in the facts presented in the Complainant's EIR. In

### light ofthose errors, the particularized need is that the only way for the Respondent to exam and verify all ofthe facts that the Complainant used to make its case and to determine sanction is for the Complainant to produce them. The examination and verification of facts is part ofthe purpose ofdiscovery. Third, even ifthe EIR is privileged and the Respondent has not met the burden, in accordance with the Due Process spirit ofthe Brady Rule, the Complainant, a state actor, acting in aprosecutorial capacity to affect an administratively imposed civil penalty, should be required to disclose exculpatory evidence contained in the EIR. See Respondent's Motion to Compel, Ex. A., pages 5-8. While acknowledging thatthis is not acriminal case; Due Process is stillrequired since it RESPONDENT'S SUPPLEMENTALREPLYTO OPPOSITIONTO MOTION TO COMPEL DISCOVERY Inthe Matter ofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 Page 6 of8 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, W A 9920I (509) 624-3020is an administrative adjudication with the possibility of the deprivation of property interests. See Bd. ofRegents ofState Colleges v. Roth, 408 U.S. 564 (1972). CONCLUSION Considering the forgoing, the Respondent respectfully requests that this Court grantthe Respondent's Motionto Compel.

RESPECTFULLY SUBMITTED this 7'h day ofDecember, 2016. CONLIN, MALONEY & MILLER

BenjaminL. Wybomey SBA

### #50070 Attorney for Respondent 421 W. Riverside Avenue, Suite 911 Spokane, WA 99201 (509) 62 4-3020

RESPONDENT'S SUPPLEMENTAL REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the Matter ofFelts Field Aviation, Inc. Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 (509) 624-3020 DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 Page 7 of8CERTIFICATE OF SERVICE

I hereby certify that the foregoing Motion to Compel Discovery has been served via facsimile (where indicated), andRegular Mail on December 7, 2016 to the following: Judge J. E. Sullivan US. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave, SE (Ell-310) Washington, DC 20590 Phone: 202-366-6941 Fax: 202-366-7536 Federal AviationAdministration Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 800 Independence Avenue, S.W. Washington, DC 20591 Fatimah Stokley, Attorney Federal AviationAdministration Office ofthe ChiefCounsel EnforcementDivision, WesternTeam P.O. Box920007 Los Angeles, CA 90009-2007 Fax: (310) 725-6816 DATED this 

### ?'h day ofDecember, 2016

CindyA ert Legal Assistant 421 W. RiversideAvenue, Suite 911 Spokane, WA 99201 (509) 624-3020