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 Independence Avenue SW 

Washington, DC 20591 

Law Offices 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright 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 copy of 

Martinaire Aviation, LLC's Objections and Responses to Complainant's 

Discovery Request. 

ccs: The Honorable Richard C. Goodwin, Administrative Law judge 

Kate Barber, Esq. 
Michael L. Dworkin #64047 

MICHAEL L. DWORKIN and ASSOCIATES 

465 California Street, Suite 21 0 

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 CASE NO. 2011-GL-70-0205 

FDMS: FAA-2011-1295 

MARTINAIRE AVIATION LLC'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 of a MARTINAIRE pilot's unauthorized carriage of a cleaning 

solution ( "Purple Power") on board a MARTINAIRE aircraft. This was clearly contrary to 
MARTINAIRE's own policies and procedures. The Pilot was adequately trained and shonld 

certainly have known better and his election to load, carry and transport "Purple Power" was 

done without MARTINAIRE's knowledge or consent. 

Complainant has proposed a penalty of$35,000.00 for alleged violations of Hazardous 

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, in its Answer, has admitted the majority of the 

Complaint's factual allegations and has averred that the HAZMAT transport alleged was the 

product of error on the pilot's part, and contrary to MARTINAIRE's training, policies and 

procedures, Complainant's Discovery appears to be excessive, and MARTINAIRE objects on the 

grounds that it is compound, complex, overly broad and unduly burdensome. Complainant's 

discovery transcends the bounds of reasonable 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, but rather, to bludgeon MARTINAIRE into settling this case. 

Complainant's statutory obligation is to determine, prior to initiating enforcement action, that 

such action is warranted. Complainant should not be free to initiate an enforcement action, and 

then, if challenged, use discovery either as a substitute for the investigation that shonld have 

already been completed or as a strong-arm tactic to force settlement. 

MARTINAIRE's investigation is ongoing and continuing and MARTINAIRE reserves 

the right to supplement or amend these Responses as its investigation proceeds up through the 

FDMS: FAA-2011-1295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page 2 
time of hearing. Accordingly, these Responses should be considered tentative at best. 

Finally, MARTINAIRE, in its Answer and Affirmative Defenses ("Answer") dated 

January 17, 2012, has asserted numerous affirmative defenses and reserves 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, which MARTINAIRE incorporates herein by this reference as if fully set forth herein. 

INTERROGATORIES 

The objections set forth above are hereby incorporated herein in their entirety as if fully 

set forth herein. Notwithstanding these objections, MARTINAIRE, based on its information and 

belief, responds to the Interrogatories as follows: 

Interrogatory No.1: Provide the name, occupation, and business address for any and all 

persons that have knowledge of the shipping, receiving, or transporting of 

hazardous materials by the Respondent. 

MARTINAIRE'S RESPONSE TO INTERROGATORY NO. 1 

Objection. To the extent that the Interrogatory seeks the names, occupation and business 

addresses of individuals that "have knowledge of the shipping, receiving, or transporting 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 HAZMAT policies and procedures, whether or not directly involved in 

FDMS: FAA-2011-1295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page 3 
shipping, receiving, handling or transportation ofMARTINAIRE cargo .. Interrogatory No. 1, as 

worded, requests the name, occupation and business address of every single MARTINAIRE 

employee, and as such, MARTINAIRE requests clarification from Complainant as to exactly 

what, if any, information Complainant is seeking. 

Interrogatory No.2: Provide the substance and basis of the testimony to be offered by 

each witness that will be testifying in the hearing and/or identified in 

response to Interrogatory 1 above. 

MARTINAIRE'S RESPONSE TO INTERROGATORY NO. 2 

Objection. To the extent that the Interrogatory seeks the "substance and basis of 

testimony" of individuals "identified in response 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 of their testimony is as follows: 

a. Mr. Steve Witherspoon, MARTINAIRE Captain -

Mr. Witherspoon will testify as to his HAZMA T training, recurrent HAZMA T 

training, his actions relating to the flight in question and the events following 

therefrom; and 

b. Mr. Alan Rusinowitz, MARTINAIRE Chief Operating Officer and Executive Vice 

PresdientMr. Rusinowitz will testify as to MARTINAIRE' General Operations Manual, 

FDMS: FAA-2011-1295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page4 
Operations and Training Manual, and HAZMAT Training Materials and will 

discuss MARTINAIRE's internal investigation of the flight in question, its 

cooperation with and response to the FAA's investigation and corrective actions 

that it has undertaken. 

MARTINAIRE further reserves the right to call as its witnesses any persons identified in 

Complainant's Enforcement Investigative Report (EIR), any persons now or hereinafter 

identified by Complainant as its witnesses and any persons who may be called to testify by 

Complainant at deposition or at hearing in this matter. 

Investigation and discovery are ongoing and continuing, and MARTINAIRE reserves the 

right to amend and/or supplement these responses up through the date of hearing. 

Interrogatory No.3: State the name, occupation, business address and telephone 

number for each expert 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 now or hereinafter 

identified by Complainant as its witnesses and any persons who may be called to testify by 

Complainant in this matter and who offer expert testimony on Complainant's behalf 

FDMS: FAA-2011-1295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page 5 
Investigation and discovery are ongoing and continuing, and MARTINAIRE reserves the 

right to amend and/or supplement these responses up through the date of hearing. 

Interrogatory No. 4: State the qualifications, experience, and training of each person 

identified in response 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 if fully set forth herein. 

Interrogatory No.5: Provide the substance and basis of the testimony to be offered by 

each of the witnesses identified in response 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 if fully set forth herein. 

Interrogatory No.6: State the name, occupation, business address and telephone 

number of any other person or persons known by the Respondent to have 

relevant knowledge of and/or information about the matter in this 

proceeding. 

MARTINAIRE'S RESPONSE TO INTERROGATORY NO. 6 

Objection. To the extent that Interrogatory No. 6 requests attorney-client communications 

FDMS: FAA-20ll-l295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page 6 
protected under the attomey-clientprivilege, or attorney work-product protected information, 

MARTINAIRE objects to this Interrogatory. 

Respondent further objects to Interrogatory No. 6 as being overbroad and burdensome as 

nearly all, MARTINAIRE employees possess relevant knowledge of and/or information about 

the matter giving rise to this case as such information was used as the basis for additional 

MARTINAIRE HAZMAT training and other corrective actions 

Interrogatory No.7: Provide a surmnary of the substance and basis of the knowledge of 

each person identified in response to Interrogatory 6 above. 

MARTINAIRE'S RESPONSE TO INTERROGATORY NO.7 

Please see MARTINAIRE's Response to Interrogatory No. 6, which MARTINAIRE adopts 

and incorporates as its response to Interrogatory No.7 as if fully set forth herein. 

Interrogatory No.8: Describe each exhibit, other than a document, Respondent intends 

to introduce into evidence in this proceeding. 

MARTINAIRE'S RESPONSE TO INTERROGATORY NO.8 

At this 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 supplement these 

responses up tlrrough the date of hearing. 

FDMS: FAA-2011-1295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page 7 
Interrogatory No. 9: Provide the basis and support of the Respondent's Affirmative 

Defenses alleged in your Answer. 

MARTINAIRE'S RESPONSE TO INTERROGATORY NO.9 

Objection, to the extent that Interrogatory No.9 is compound. Moreover, MARTINAIRE 

objects to Interrogatory No.9, as each of the Affirmative Defenses speaks for itself. 

Notwithstanding said objections, MARTINAIRE will address Interrogatory 9 as it applies to 

each separate and distinct Affirmative defense raised in MARTINAIRE's January 17, 2012 

Answer. 

MARTINAIRE'S FIRST AFFIRMATIVE DEFENSE: The sanction sought by Complainant is 

unwarranted by the facts, safety in commerce and the 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 of the Complainant's own Sanction Guidance Table. 

RESPONSE: MARTINAIRE did not know the pilot was carrying the cleaner and did not 

authorize the pilot to carry same on board the aircraft and did not stand to profit from the pilot's 

activities. The pilot was acting contrary to established company policies, procedures and 

manuals and contrary to the training that he had been given by MARTINAIRE. Neither an 

enforcement action nor a sanction under these circumstances promotes or fosters safety and the 

public interest. Although there are numerous violations of HMR' s alleged, there was essentially 

only one act on the part of the pilot that 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 8 
MARTINAIRE'S SECOND AFFIRMATIVE DEFENSE: The Complainant's case, is 

unwarranted and without basis or jurisdiction in law or fact. 

RESPONSE: MARTINAIRE did not give the pilot of the subject flights permission to carry or 

take on board 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. A 

sanction under these facts is clearly unwarranted. 

MARTINAIRE' S THIRD AFFIRMATIVE DEFENSE: Any and all alleged violations are the 

result of human error on the part ofMARTINAIRE's pilot whose actions were in violation of 

MARTINAIRE's own policies and procedures and contrary to the specific training given to the 

pilot by MARTINAIRE, and without MARTINAIRE's knowledge or consent and are in no way 

indicative ofMARTINAIRE's regulatory compliance disposition. 

The pilot involved was adequately trained and qualified and has since received additional 

training. 

RESPONSE: MARTINAIRE did not give the pilot of the subject flights permission to carry or 

take on board the Purple Power cleaner, did not stand to profit from the pilot's activities, and the 

pilot was acting contrary to established company policy, procedures and manuals and the training 

. that he was given by MAR TINAIRE. A sanction under 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 9 
MARTINAIRE'S FOURTH AFFIRMATIVE DEFENSE: MARTINAIRE has proactively 

mitigated any and all damage such that this action is unwarranted by policy or the need for 

safety. Specifically, MARTINAIRE has: 

1. Counseled the pilot involved in incident alleged in the Complaint; 

ii. Counseled all flight department personnel regarding in the interests of preventing 

recurrence of such incidents; 

111. Provided its personnel with additional Hazardous Materials training so as to prevent 

recurrent of such incidents, including: 

a. Hazardous Material Recognition; and 

b. Acceptance and Transport of Dangerous Goods. 

iv. Updated and revised its Hazardous Materials Training Program to specifically address 

said problems and ensure future compliance. 

RESPONSE: MARTINAIRE did not give the pilot of the subject flights permission to carry or 

take on board 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 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 at hearing. In the interests of economy, they are not being 

reduplicated as they are already in Complainant's possession. 

FDMS: FAA-2011-1295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page 10 
MARTINAIRE'S FIFTH AFFIRMATIVE 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 Fourth Affirmative Defense 

above, which MARTINAIRE adopts and incorporates as its response with respect to the Fifth 

Affirmative Defense. 

MARTINAIRE'S SIXTH AFFIRMATIVE DEFENSE: MARTINAIRE did not give the pilot of 

the subject flights permission to carry or take on board 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 of Respondeat Superior cannot be 

justly applied in this instance. 

RESPONSE: MARTINAIRE did not give the pilot ofthe subject flights permission to carry or 

take on board 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. 

MARTINAIRE'S SEVENTH AFFIRMATIVE DEFENSE: As a small company that operates 

only small aircraft with less than 100 employees, the burden on MARTINAIRE caused by 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 11 
Interrogatory No. 10: Provide any and all case law or statutory law that 

Respondent intends to introduce at trial. 

MARTINAIRE'S RESPONSE TO INTERROGATORY NO. 10 

Objection. MARTINAlRE's undersigned counsel is aware of no requirement that a party 

is required to perform legal research for the opposing party. Notwithstanding said objection, 

MARTINAIRE has not yet prepared for hearing and it is premature to release all case law and/or 

statutory law upon which MARTINAIRE may subsequently rely at hearing. 

MARTINAIRE reserves the right to reference any statute, regulation or governmental 

order identified in Complainant's EIR, any case law citing or relying upon such legal authorities. 

Complainant, and its experienced learned counsel is fully aware of such case law, statutes, 

regulations, governmental orders and other legal authorities. 

Investigation, discovery and legal research are ongoing and continuing, and 

MARTINAIRE reserves the right to amend and/or supplement these responses up through the 

date of hearing. 

RESPONSE TO REQUESTS TO PRODUCE DOCUMENTS 

Request for Production of Document No.1: Produce copies of all documents Respondent 

intends to introduce into evidence in this proceeding, to include, but not 

limited to reports, letters, memoranda, writings, photographs, drawings, 

sketches, computer data, audio recordings and transcripts, and video 

recordings. 

FDMS: FAA-2011-1295 

MARTINAlRE's Objections and Responses to Complainant's Discovery 

Page 12 
MARTINAIRE'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 been heretofor produced by 

MARTINAIRE and provided to Complainant, under cover of letter dated October 11, 2011, 

including but not limited to the following MARTINAIRE documents: 

1. General Operations Manual excerpt-HAZMA T 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 of Ground and Crewmember Training for pilot Steven D. Witherspoon 

and Flight Follower Benjamin Keider (please see Paragraph 11 of each form for 

HAZMA T training; and 

5. Email memorandum, dated May 19, 2011, to all Martinaire pilots sent by Chief Pilot, 

Mike Bates, in response to the subject incident. 

To the extent that it has not already done so, MARTINAIRE will provide copies of all 

documents it intends to submit at hearing. Investigation and discovery are ongoing and 

continuing, and MARTINAIRE reserves the right to amend and/or supplement these responses 

up tlrrough the date of hearing. 

Finally, MARTINAIRE reserves the right to utilize at hearing any document not 

identified in these Objections and Responses to Request for Production for purposes of 

impeachment. 

Request for Production of Document No.2: Produce a copy of all prior written 

statements made by any person identified in Interrogatories 1, 3 and 6 

above which relates in any manner or has any bearing on the incident at 

FDMS: FAA-2011-1295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page 13 
issue 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 Request No.2, as if fully set 

forth herein. 

Request for Production of Document No.3: Provide a description of any non-document 

exhibit, not otherwise capable of being copied or reproduced, Respondent 

intends to introduce into evidence in this proceeding. 

MARTINAIRE'S RESPONSE TO REQUEST NO.3 

Please see MARTINAIRE's Response to Interrogatory No.8, which MARTINAIRE 

adopts and incorporates as its response to Request No.3 as if fully set forth herein. 

Request for Production of Document No.4: Provide any and all documents, policies, 

receipts of payment, invoices, or any other information regarding paying 

pilots to wash the 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 of Document No.4 does not specifY a time 

period, aircraft(s) nor provides any limiting language and thus presumably requests 34 years of 

FDMS: FAA-2011-1295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page 14 
records. 

Clarification is requested by from Complainant so Respondent can fully respond to this 

Request. 

DATED this 91

h day of March, 2012. 

Michael L. Dworkin 

Attorney for MARTINAIRE AVIATION, LLC 

FDMS: FAA-20ll-l295 

MARTINAIRE's Objections and Responses to Complainant's Discovery 

Page 15 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this 9th day of March, 2012, a true and correct 

copy of the foregoing MARTINAIRE AIRLINE INC.'S OBJECTIONS AND RESPONSES 

TO COMPLAINANT'S DISCOVERY was served as follows: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room E12-320 

Washington, D.C. 20590 

FAX: 1-202-366-7536 

{FAX and FEDEX} 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

{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