RECEIVED 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

DEC 1 2 20!6 

HEARING DOCKET 

In the Matter of: 

FELTS FIELD AVIATION 

Respondent 

) 

) 

) 

) 

) 

------------) 

DocketNo: FAA-2015-3307 

Case No: 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 set June 30, 2016 as the FAA Expert Disclosure Deadline. 

On July II, 2016, eleven days late and one day prior to a July 12th Hearing on the 

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 of its Testifying Expert Witness and the level of 

redaction found 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 of Exhibit C-1 or a privilege log justifying the redactions to the current 

Exhibit C-1. 

RESPONDENT'S SUPPLEMENTAL REPLY TO 

OPPOSITION TO MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 1 of8 

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 of Interrogatories and Requests for Production of Documents, 

provided both a modified redacted version of Exhibit 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 in writing. The Complainant refused. 

On September 16, 2016, the Respondent moved this Court for an Order to 

Compel Discovery of a more compliant version of Supplemented Exhibit C-1. 

On September 22, 2016, the Complainant submitted an Opposition to the 

Respondent's Motion to Compel. 

On September 30, 2016, the Respondent submitted a Reply to the Complainant's 

Opposition to the Respondent's Motion to Compel. 

On November 10, 2016, this Court conducted a Motion Conference on the 

Respondent's Motion to 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 SUPPLEMENTAL REPLY TO 

OPPOSITION TO MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 2 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, WA 99201 

(509) 624-3020 
2014 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 discovery requests. 

On November 21, 2016, the Complainant, through its November 21st 

Supplemental Response to Respondent's First Set of Interrogatories and Requests for 

Production of Documents withdrew, without substitution, its Testifying Expert Witness, 

Eric Wells. Mr. Wells is the same untimely identified Testifying Expert Witness that this 

Court allowed in its 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 Complainant would not change its position on the discoverability of a more compliant 

version of Supplemented Exhibit C-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 

captioned matter. 

SUPPLEMENTAL REPLY IN RESPONSE TO COMPLAINANT'S 

WITHDRAWAL OF ITS EXPERT WITNESS 

In short, the Respondent respectfully submits that the Complainant's withdrawal 

of its 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 

OPPOSITION TO MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 2015WP910090 Page 3 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, WA 99201 

(509) 624-3020 
Alternatively, 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 such privilege when it 

designated Mr. Eric Wells as a Testifying Expert Witness and made his "facts known or 

opinions held" discoverable. See Panasonic Commc'ns Com. of Am. v. United States, 99 

Fed. Cl. 422 (2011). Mr. Wells' "facts known or opinions held" are contained in his 

written report, the EIR, set forth in Supplemented Exhibit C-1. Consequently, the facts in 

the EIR are entirely discoverable, without redaction. 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 now withdrawn, without substitution, its TestifYing Expert Witness, Mr. 

Eric Wells. This withdrawal creates a presumption that the Complainant realizes 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 if it 

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, 

Supplemented Exhibit C-1, undiscoverable. "A witness identified as a testimonial expert 

is available to either side; such a person can't be transformed after the report has been 

RESPONDENT'S SUPPLEMENTAL REPLY TO 

OPPOSITION TO MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. 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 of a 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 of Documents indicates that Ms. 

Clinton's "testimony will include discussion of Felt [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 in July 2013, October 2013, January 2014, April2014, July 2014, 

October 2014, and January 2015." Except for the changed name and gender references, 

this is a verbatim copy of the passage describing testimony expected of Mr. Wells found 

in the Complainant's July 11th initial Response to Respondent's First Set of 

Interrogatories and Requests for Production of Documents. Even the grammatical errors 

are the same. Further, Ms. Clinton is the identified "Reporting Inspector" of the same 

EIR at Supplemented Exhibit C-1. By withdrawing its Testifying Expert Witness, Mr. 

Wells, and shifting his testimony to the Lay Witness, Ms. Clinton, the Complainant seeks 

RESPONDENT'S SUPPLEMENTAL REPLY TO 

OPPOSITION TO MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. 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 of Expert Testimony while denying the production of the Expert Testimony's 

factual basis. The Complainant is attempting to unfairly "have its cake and eat it too." 

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) specifically identifY what records are subject to 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 of its 

EIR. When afforded the opportunity by the production of the Supplemented Exhibit C-1, 

the Respondent identified errors in the facts presented in the Complainant's EIR. In light 

of those errors, the particularized need is that the only way for the Respondent to exam 

and verify all of the 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 of the purpose of discovery. Third, even if the EIR is privileged and the 

Respondent has not met the burden, in accordance with the Due Process spirit of the 

Brady Rule, the Complainant, a state actor, acting in a prosecutorial 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 that this is not a criminal case; Due Process is still required since it 

RESPONDENT'S SUPPLEMENTAL REPLY TO 

OPPOSITION TO MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 6 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
is an administrative adjudication with the possibility of the deprivation of property 

interests. See Bd. ofRegents of State Colleges v. Roth, 408 U.S. 564 (1972). 

CONCLUSION 

Considering the forgoing, the Respondent respectfully requests that this Court 

grant the Respondent's Motion to Compel. 

RESPECTFULLY SUBMITTED this 7'h day of December, 2016. 

CONLIN, MALONEY & MILLER 

Benjamin L. 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 of Felts Field Aviation, Inc. 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, WA 99201 

(509) 624-3020 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 Page 7 of8 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Motion to Compel Discovery has been served via 

facsimile (where indicated), and Regular Mail on December 7, 2016 to the following: 

Judge J. E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave, SE (Ell-310) 

Washington, DC 20590 

Phone: 202-366-6941 

Fax: 202-366-7536 

Federal Aviation Administration 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl000 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Fatimah Stokley, Attorney 

Federal Aviation Administration 

Office of the Chief Counsel 

Enforcement Division, Western Team 

P.O. Box 920007 

Los Angeles, CA 90009-2007 

Fax: (310) 725-6816 

DATED this ?'h day of December, 2016 

Cindy A ert 

Legal Assistant 

421 W. Riverside Avenue, Suite 911 

Spokane, WA 99201 

(509) 624-3020