465 California Street Suite 210 

## • San Francisco California 94104 

## • (415) 421-2500 F"' (415) 421-2560

wvvw.avialex.com law@avialex.com 

### Michael 

### L. Dworkin and Associates

Federal Aviation Administration 800 IndependenceAvenue SW Washington, DC 20591 Law Offices



### Attn: Hearing Docket Clerk, AGC-430 WilburWright Building- Suite 2W1000 (Via Federal Express)


### RE: MARTINAIRE AVIATION, LLC FAA Case No. 2011-GL-70-0205 FDMS: FM-2011-1295

Dear Ladies and Gentlemen: 

# RECEIVED MAR 13 

# 2012 

# HEARING DOCKET March 9, 2012

Enclosed herewith for filing are an executed original and one copyof MartinaireAviation, LLC's Objections and Responses to Complainant's Discovery Request.

ccs: The Honorable Richard C. 

### Goodwin, Administrative Lawjudge Kate Barber, Esq.Michael L. Dworkin #64047 MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 San Francisco, California 94104 Telephone: (415) 421-02500 Facsimile: (415) 421-2560 Email: law@avialex.com Attorneys for MARTINAIRE AVIATION, LLC

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
In the Matter of:

MARTINAIRE AVIATION, LLC FAA CASENO. 2011-GL-70-0205 FDMS: FAA-2011-1295 MARTINAIRE AVIATIONLLC'S OBJECTIONS AND RESPONSES TO COMPLAINANT'S DISCOVERY REQUEST Judge: The Honorable Richard C. Goodwin

MARTINAIRE AVIATION LLC (hereinafter referred to as "MARTINAIRE"), by and through its undersigned counsel, objects and responds to Complainant's Initial Discovery Requests, dated February 16,2012.

INTRODUCTION AND GENERAL OBJECTIONS This matter arises out ofa MARTINAIRE pilot's unauthorized carriage ofa cleaning solution ( "Purple Power") on board a MARTINAIRE aircraft. This was clearly contrary toMARTINAIRE's ownpolicies and procedures. The Pilot was adequately trained and shonld certainly have known better and his electionto load, carry andtransport "Purple Power" was done without MARTINAIRE's knowledge or consent. Complainanthas proposed a penalty of$35,000.00 for alleged violations ofHazardous Materials Regulations ("HMR's") Sections 172.2(e), 172.200(a), 172.204(a), 172.30l(a), 172.400(a), 172.402(c), 172.600(c)(2), 172.702(a) and 173.1(b). Considering that MARTINAIRE, inits Answer, has admitted the majority ofthe Complaint's factual allegations and has averred that the HAZMAT transport alleged was the product oferror onthe pilot's part, and contrary to MARTINAIRE's training, policies and procedures, Complainant's Discovery appears to be excessive, and MARTINAIRE objects onthe grounds that it is compound, complex, overly broad and unduly burdensome. Complainant's discovery transcends the bounds ofreasonable discovery and in many instances, seeks information which is already within Complainant's knowledge, care, custody and control. Complainant's discovery appears to have been crafted less by a genuine need for relevant and probative information, butrather, to bludgeonMARTINAIRE into settlingthis case. Complainant's statutory obligation is to determine, prior to initiating enforcement action, that such action is warranted. Complainant shouldnotbe free to initiate an enforcement action, and then, ifchallenged, use discovery either as a substitute for the investigationthat shonld have already been completed or as a strong-armtactic to force settlement. MARTINAIRE's investigation is ongoing and continuing and MARTINAIRE reserves the right to supplement or amend these Responses as its investigationproceeds up through the

FDMS: FAA-2011-1295 MARTINAIRE's Objections andResponses to Complainant's Discovery Page 2time ofhearing. Accordingly, these Responses shouldbe consideredtentative at best. Finally, MARTINAIRE, in its Answer and Affirmative Defenses ("Answer") dated January 17, 2012, has asserted numerous affirmative defenses andreserves the right to assert additionally affirmative defenses as they arise. Notwithstanding any response or admission contained herein, MARTINAIRE reasserts each and every affirmative defense contained in its Answer, whichMARTINAIRE incorporates hereinby this reference as iffully set forth herein.

INTERROGATORIES The objections setforth above are hereby incorporatedhereinintheir entirety as iffully set forth herein. Notwithstanding these objections, MARTINAIRE, based onits information and belief, responds to the Interrogatories as follows:


### Interrogatory No.1: Providethe name, occupation, andbusiness address for any and all persons thathaveknowledge ofthe shipping, receiving, ortransporting of hazardous materials by the Respondent. MARTINAIRE'S RESPONSE TO INTERROGATORYNO. 1 Objection. To the extentthat the Interrogatory seeks the names, occupation and business addresses ofindividuals that "have knowledge ofthe shipping, receiving, ortransporting of hazardous materials by the Respondent", it is overbroad and unduly burdensome as each of MARTINAIRE's approximately 100 employees has some working knowledge of MARTINAIRE's HAZMATpolicies and procedures, whether or not directly involved in

FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 3shipping, receiving, handling or transportation ofMARTINAIRE cargo.. Interrogatory No. 1, as worded, requests the name, occupation and business address ofevery single MARTINAIRE employee, and as such, MARTINAIRE requests clarificationfrom Complainant as to exactly what, ifany, information Complainant is seeking.
Interrogatory No.2: Provide the substance and basis ofthe testimony to be offeredby eachwitness that will be testifying in the hearing and/or identified in response to Interrogatory 1 above. MARTINAIRE'S RESPONSE TO INTERROGATORYNO. 2 Objection. To the extentthat the Interrogatory seeks the "substance and basis of testimony" ofindividuals "identified inresponse to Interrogatory 1 above", MARTINAIRE objects as Interrogatory 1 above was overbroad and unduly burdensome. Without waiving said objections, Respondent currently intends to call two witnesses at hearing. The substance and basis oftheir testimony is as follows:

a. Mr. Steve Witherspoon, MARTINAIRE Captain

- Mr. Witherspoon will testify as to his HAZMAT training, recurrent HAZMAT training, his actions relating to the flight in question and the events following therefrom; and b. Mr. AlanRusinowitz, MARTINAIRE ChiefOperating Officer and Executive VicePresdientMr. Rusinowitz will testify as to MARTINAIRE' General Operations Manual,

FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page4Operations and Training Manual, and HAZMAT Training Materials and will discuss MARTINAIRE's internal investigation ofthe flight in question, its cooperation with and response to the FAA's investigation and corrective actions that ithas undertaken. MARTINAIRE further reserves the rightto call as its witnesses any persons identified in Complainant's Enforcement Investigative Report (EIR), any persons now orhereinafter identified by Complainant as its witnesses and any persons who may be calledto testify by Complainant at deposition or at hearing inthis matter. Investigation and discovery are ongoing and continuing, and MARTINAIRE reserves the right to amend and/or supplement these responses up through the date ofhearing.
Interrogatory No.3: State the name, occupation, business address andtelephone number for eachexpert witness Respondent intends to call as a witness in this proceeding. MARTINAIRE'S RESPONSE TO INTERROGATORY NO.3 MARTINAIRE has not retained any experts in this case and does not, at this time, intend to call any expert witnesses. Notwithstanding the foregoing, MARTINAIRE reserves the right to seek expert testimony from any persons identified in Complainant's EIR, any persons nowor hereinafter identified by Complainant as its witnesses and any persons who may be called to testify by Complainant inthis matter and who offer expert testimony on Complainant's behalf

FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 5Investigation and discovery are ongoing and continuing, andMARTINAIRE reserves the rightto amend and/or supplementthese responses up throughthe date ofhearing.
Interrogatory No. 4: State the qualifications, experience, and training ofeachperson identified inresponse to Interrogatory 3 above. MARTINAIRE'S RESPONSE TO INTERROGATORY NO.4 Please see MARTINAIRE's Response to Interrogatory No.3, which MARTINAIRE adopts and incorporates as its response to Interrogatory No.4 as iffully setforth herein.
Interrogatory No.5: Provide the substance and basis ofthe testimony to be offered by each ofthe witnesses identified inresponse to Interrogatory 3 above. MARTINAIRE'S RESPONSE TO INTERROGATORY NO.5 Please see MARTINAIRE's Response to Interrogatory No.3, which MARTINAIRE adopts and incorporates as its response to Interrogatory No.5 as iffully setforth herein.
Interrogatory No.6: State the name, occupation, business address and telephone number ofany other person or persons known by the Respondent to have relevantknowledge ofand/or information aboutthe matter inthis proceeding. MARTINAIRE'S RESPONSE TO INTERROGATORY NO. 6 Objection. To the extentthat Interrogatory No. 6requests attorney-client communications

FDMS: FAA-20ll-l295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 6protected under the attomey-clientprivilege, or attorney work-productprotected information, MARTINAIRE objects to this Interrogatory. Respondent further objects to Interrogatory No. 6 as being overbroad andburdensome as nearly all, MARTINAIRE employees possess relevant knowledge ofand/or information about the matter giving rise to this case as suchinformation was used as the basis for additional MARTINAIRE HAZMATtraining and other corrective actions
Interrogatory No.7: Provide a surmnary ofthe substance and basis ofthe knowledge of eachperson identified in response to Interrogatory 6 above. MARTINAIRE'S RESPONSE TO INTERROGATORY NO.7 Please see MARTINAIRE's Response to Interrogatory No. 6, whichMARTINAIRE adopts and incorporates as its response to Interrogatory No.7 as iffully setforth herein.
Interrogatory No.8: Describe each exhibit, other than a document, Respondent intends to introduce into evidence inthis proceeding. MARTINAIRE'S RESPONSE TO INTERROGATORY NO.8 Atthis moment, MARTINAIRE does not anticipate introducing any exhibits other than documents. However, MARTINAIRE reserves the right to introduce such exhibits if subsequently disovered and MARTINAIRE reserves the right to amend and/or supplementthese responses up tlrrough the date ofhearing.

FDMS: FAA-2011-1295 MARTINAIRE's Objections andResponses to Complainant's Discovery Page 7Interrogatory No. 9: Provide the basis and support ofthe Respondent's Affirmative Defenses alleged inyour Answer. MARTINAIRE'S RESPONSE TO INTERROGATORYNO.9 Objection, to the extent that Interrogatory No.9 is compound. Moreover, MARTINAIRE objects to Interrogatory No.9, as each ofthe Affirmative Defenses speaks for itself. Notwithstanding said objections, MARTINAIRE will address Interrogatory 9 as it applies to each separate and distinct Affirmative defense raised inMARTINAIRE's January 17, 2012 Answer.

MARTINAIRE'S FIRST AFFIRMATIVE DEFENSE: The sanction soughtby Complainant is unwarrantedby the facts, safety in commerce andthe public interest and is not only excessive, but, far exceeds policy, precedent and Complainant's own Sanction Guidance Table. Further, the sanction is compounded, in violation ofthe Complainant's own Sanction Guidance Table. RESPONSE: MARTINAIRE did notknowthe pilot was carrying the cleaner and did not authorize the pilotto carry same on boardthe aircraft and did not standto profit from the pilot's activities. Thepilotwas acting contrary to established company policies, procedures and manuals and contrary to the training thathehad been given by MARTINAIRE. Neither an enforcement action nor a sanctionunder these circumstances promotes or fosters safety and the public interest. Althoughthere are numerous violations ofHMR's alleged, there was essentially only one actonthe partofthe pilotthat gave rise to this case. Complainant's Sanction Guidance Table speaks for itself.

FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 8MARTINAIRE'S SECOND AFFIRMATIVE DEFENSE: The Complainant's case, is unwarranted and withoutbasis orjurisdiction in law or fact. RESPONSE: MARTINAIRE did not give the pilot ofthe subject flights permission to carry or take onboard the Purple Power cleaner, did not stand to profit from the pilot's activities, and the pilotwas acting directly contrary to established company policy, procedures and manuals. A sanctionunderthese facts is clearly unwarranted.

MARTINAIRE'S THIRD AFFIRMATIVE DEFENSE: Any and all alleged violations are the result ofhumanerror onthe part ofMARTINAIRE'spilot whose actions were inviolation of MARTINAIRE's ownpolicies and procedures and contrary to the specific training given to the pilotby MARTINAIRE, and without MARTINAIRE's knowledge or consent and are in no way indicative ofMARTINAIRE'sregulatory compliance disposition. The pilot involved was adequately trained and qualified andhas since received additional training. RESPONSE: MARTINAIRE did not give the pilot ofthe subject flights permissionto carry or take onboard the Purple Powercleaner, did not stand to profit from the pilot's activities, andthe pilotwas acting contrary to established company policy, procedures and manuals and the training

.thathe was given by MAR TINAIRE. A sanctionunder these facts does not foster or promote safety or the public interest.

FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 9MARTINAIRE'S FOURTH AFFIRMATIVE DEFENSE: MARTINAIREhas proactively mitigated any and all damage suchthatthis action is unwarranted by policy or the need for safety. Specifically, MARTINAIRE has:
1. Counseledthe pilotinvolved in incident alleged inthe Complaint; ii. Counseled all flight department personnelregarding in the interests ofpreventing
recurrence ofsuch incidents;
111. Provided its personnel with additional Hazardous Materials training so as to prevent recurrent ofsuch incidents, including:
a. Hazardous Material Recognition; and b. Acceptance and Transport ofDangerous Goods. iv. Updated and revised its Hazardous Materials Training Program to specifically address saidproblems and ensure future compliance. RESPONSE: MARTINAIRE did not give the pilot ofthe subject flights permissionto carry or take on board the Purple Power cleaner, did not stand to profit from the pilot's activities, and the pilotwas acting directly contrary to established company policy, procedures and manuals and the training that he had been given by MARTINAIRE. By letter dated October 11,2011, MARTINAIRE's undersigned counsel provided Complainant with documentation evidencing and substantiating MARTINAIRE' corrective and responsive actions. MARTINAIRE intends to utilize all such documents as exhibits athearing. In the interests ofeconomy, they are notbeing reduplicated as they are already in Complainant'spossession.

FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 10MARTINAIRE'S FIFTHAFFIRMATIVE DEFENSE: MARTINAIRE has taken all necessary corrective actions to avoid repeated mishaps such that additional penalties are redundant and will not result in any increase in safety. RESPONSE: Please see MARTINAIRE's response concemingthe FourthAffirmative Defense above, which MARTINAIRE adopts and incorporates as its response withrespect to the Fifth Affirmative Defense.

MARTINAIRE'S SIXTHAFFIRMATIVE DEFENSE: MARTINAIRE did not give the pilot of the subjectflights permissionto carry or take onboard the Purple Power cleaner, did not stand to profit from the pilot's activities, and the pilot was acting directly contrary to established company policy, procedures and manuals. Thus, the concept ofRespondeatSuperior cannotbe justly applied in this instance. RESPONSE: MARTINAIRE did not give the pilot ofthe subjectflights permission to carry or take onboard the Purple Power cleaner, did not stand to profit from the pilot's activities, and the pilotwas acting directly contrary to established company policy, procedures and manuals.

MARTINAIRE'S SEVENTH AFFIRMATIVE DEFENSE: As a small company that operates only small aircraft withless than 100 employees, the burden on MARTINAIRE causedby the proposed $35,000.00 penalty would be excessive. RESPONSE: The FAA's Sanction Guidance Table speaks for itself.

FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 11Interrogatory No. 10: Provide any and all case law or statutory lawthat Respondent intends to introduce attrial. MARTINAIRE'S RESPONSE TO INTERROGATORY NO. 10 Objection. MARTINAlRE's undersigned counsel is aware ofno requirementthat a party is required to perform legal research for the opposing party. Notwithstanding said objection, MARTINAIRE has notyetprepared for hearing and it is premature to release all case law and/or statutory lawupon which MARTINAIREmay subsequently rely athearing. MARTINAIREreserves the right to reference any statute, regulation or governmental order identified in Complainant's EIR, any case law citing or relying upon suchlegal authorities. Complainant, and its experienced learned counsel is fully aware ofsuch case law, statutes, regulations, governmental orders and other legal authorities. Investigation, discovery and legal research are ongoing and continuing, and MARTINAIREreserves the right to amend and/or supplementthese responses up throughthe date ofhearing.

RESPONSE TO REQUESTS TO PRODUCE DOCUMENTS Request for Production ofDocumentNo.1: Produce copies ofall documents Respondent intends to introduce into evidence inthis proceeding, to include, butnot limited to reports, letters, memoranda, writings, photographs, drawings, sketches, computer data, audio recordings andtranscripts, and video recordings.

FDMS: FAA-2011-1295 MARTINAlRE's Objections and Responses to Complainant's Discovery Page 12MARTINAIRE'S RESPONSE TO REQUEST NO. 1 MARTINAIRE objects to Request to the extend that it seeks documents which are already in Complainant's care, custody or control, and/or which have beenheretofor produced by MARTINAIRE and providedto Complainant, under cover ofletter dated October 11, 2011, including butnot limited to the following MARTINAIRE documents: 1. General Operations Manual excerpt-HAZMAT Recognition Procedures; 2. Martinaire Operations and Training Manual for the Acceptance and Transport of Dangerous Goods; 3. Martinaire HAZMA T training materials for pilots; 4. Certificates ofGround and Crewmember Training for pilot Steven D. Witherspoon and Flight Follower Benjamin Keider (please see Paragraph 11 ofeach form for HAZMA T training; and 5. Email memorandum, dated May 19, 2011, to all Martinaire pilots sentby ChiefPilot, Mike Bates, inresponse to the subjectincident. To the extentthat ithas not already done so, MARTINAIRE will provide copies ofall documents it intends to submit athearing. Investigation and discovery are ongoing and continuing, and MARTINAIRE reserves the rightto amend and/or supplementthese responses up tlrrough the date ofhearing. Finally, MARTINAIREreserves the right to utilize athearing any document not identified inthese Objections and Responses to Request for Production for purposes of impeachment.
Request for Production ofDocument No.2: Produce a copy ofall prior written statements made by any person identified in Interrogatories 1, 3 and 6 above whichrelates in any manner orhas any bearing on the incident at
FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 13issue in this proceeding. MARTINAIRE'S RESPONSE TO REQUEST NO.2 Objection. Please see MARTINAIRE's responses to Interrogatories Nos. I, 3 and 6, which MARTINAIRE adopts and incorporates as its response to RequestNo.2, as iffully set forth herein.
Request for Production ofDocumentNo.3: Provide a description ofany non-document exhibit, not otherwise capable ofbeing copied or reproduced, Respondent intends to introduce into evidence inthis proceeding. MARTINAIRE'S RESPONSE TO REQUEST NO.3 Please see MARTINAIRE's Response to Interrogatory No.8, whichMARTINAIRE adopts and incorporates as its response to RequestNo.3 as iffully setforth herein.
Request for Production ofDocument No.4: Provide any and all documents, policies, receipts ofpayment, invoices, or any other informationregarding paying pilots to washthe aircraft owned and operated by MartinAire, LLC. MARTINAIRE'S RESPONSE TO REQUEST NO. 4 Objection. Objection is made to this request as being overbroad and unduly burdensome. MARTINAIRE has been in Air Cargo Operations since 1978, operating several aircraft that are cleaned fairly regularly. Request for Production ofDocumentNo.4 does not specifY a time period, aircraft(s) norprovides any limiting language and thus presumably requests 34 years of

FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 14records. Clarification is requested by from Complainant so Respondent can fully respond to this Request.

DATED this 91 h day ofMarch, 2012.

Michael L. Dworkin Attorney for MARTINAIRE AVIATION, LLC

FDMS: FAA-20ll-l295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 15CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 9th day ofMarch, 2012, a true and correct copy ofthe foregoing MARTINAIRE AIRLINE INC.'S OBJECTIONS AND RESPONSES TO COMPLAINANT'S DISCOVERYwas served as follows: The Honorable Richard C. Goodwin Office ofHearings, M-20 1200NewJersey Avenue, S.E. East Building Ground Floor Room E12-320 Washington, D.C. 20590 FAX: 1-202-366-7536 

### {FAXandFEDEX} Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 

### {FEDEX} Jeffrey A. Klang Kate Barber Federal Aviation Administration Great Lakes Region 2300 East Devon Des Plaines, IL 60018 FAX: 1-847-294-7498 

### {FAXandFEDEX}

FDMS: FAA-2011-1295 MARTINAIRE's Objections and Responses to Complainant's Discovery Page 16