RECEIVED 

JAN 0 I 201~ 

HEARING DOCKET '" IGINAL 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

- - - - X 

In the Matter of: 

1 

TYLER PENNYWITT, Docket No.: FAA-2013-0716 

Respondent. 

- - - X 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

(Ell-310) 

Washington, D.C. 20590 

Thursday, December 12, 2013 

SCHEDULING CONFERENCE (TELEPHONIC) 

The above-entitled matter came on for hearing 

at 10:03 a.m., pursuant to notice. 

BEFORE: HON. J.E. SULLIVAN, 

U.S. Administrative Law Judge 

Diversified. Reporting Services, Inc. 

1101 Sixteenth Street, NW Second Floor 

Washington, DC 20036 

(202) 467-9200 
APPEARANCES: 

For the Agency: 

CHRISTOPHER R. STEVENSON, ESQ. (via telephone) 

Federal Aviation Administration 

Office of Regional Counsel 

Southern Region, AS0-7 

P.O. Box 20636 

Atlanta, Georgia 30320 

( 404) 305-5200 

For the Respondent: 

TYLER PENNYWITT, pro se (via telephone) 

4483 Hanover Park Drive 

Jacksonville, Florida 32224 

(904) 252-1356 

Observer: 

CODY L. SMITH, ESQ., Attorney Advisor 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

Diversified Reporting Services, Inc. 

1101 Sixteenth Street, NW Second Floor 

Washington, DC 20036 

(202) 467-9200 

2 
3 

1 P R 0 C E E D I N G S 

2 JUDGE SULLIVAN: We're on the record in the 

3 matter of Tyler Pennywitt. This is Docket Number FAA4 2013-0716. Today is Thursday, December 12, 2013, and 

5 the parties have convened for a CR 16 litigation 

6 scheduling conference. The claimant, which is the FAA, 

7 is represented by its attorney of record, Christopher 

8 R. Stevenson. The respondent, Mr. Tyler Pennywitt, is 

9 present, representing himself. And present at the 

10 Office of Hearings, sitting in as an observer only, is 

11 Mr. Cody L. Smith, an attorney-advisor with this 

12 office. 

13 Good morning to you all. Also, just mention 

14 that on October 22nd, 2013, I issued an order setting 

15 Rule 16 "Litigation Scheduling Conference" and 

16 directing a Rule 26(f) planning and submission. On 

17 page 1 of that two-page order, there was a direction to 

18 the parties to convene privately, prior to today, and 

19 conduct a Rule 26(f) planning meeting, and then submit 

20 a jointly proposed scheduling and discovery plan no 

21 later than Thursday, December 5, 2013. 

22 None has been submitted, and I've had no 

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1 contact from either party individually about proposals 

2 if no agreement was reached. So I'll turn to you 

3 first, Mr. Stevenson. Is there some reason there 

4 hasn't been a CR 26(f) planning and submission to this 

5 court? 

6 MR. STEVENSON: Mr. Pennywitt and I did have a 

7 discussion. We did come up with a joint scheduling 

8 plan and it should have been sent in. This is normally 

9 the part where I would look at my file and pull out the 

10 copy that was sent out and to confirm whether it was 

11 sent out. Unfortunately, my physical copy of the file 

12 is stuck in the file retriever, which is down for 

13 maintenance of some sort right now, so I can't confirm 

14 that. But, apparently, that was not sent in. I 

15 apologize to you and Mr. Pennywitt. We did discuss one 

16 and he had signed it and sent it back to me to send it 

17 to you under both of our signatures. 

18 JUDGE SULLIVAN: Okay. Well, let me ask Mr. 

19 Pennywitt. Do you have a copy of that with you today? 

20 MR. PENNYWITT: Yes, Your Honor. 

21 JUDGE SULLIVAN: Okay. Can you tell me, just 

22 briefly, what it says without reading it? Can you just 

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1 tell me generally what your deadlines or dates that you 

2 agreed to are? 

3 MR. PENNYWITT: Okay. What I have here is a 

4 "Joint Proposed Scheduling Discovery Plan,- and 

5 pursuant to your Order, I guess the next date would be 

6 January 9, 2014, deadline for initial disclosures. 

7 JUDGE SULLIVAN: Okay. What else does it say? 

8 MR. PENNYWITT: January 23rd, 2014, deadline 

9 for issuance of initial discovery requests. 

10 JUDGE SULLIVAN: Okay. 

11 MR. PENNYWITT: March 3rd, 2014, through March 

12 28, 2014, depositions --

13 JUDGE SULLIVAN: Go ahead. 

14 MR. PENNYWITT: -- as necessary in 

15 parentheses. April 11, 2014, close of discovery. 

16 JUDGE SULLIVAN: Please continue. 

17 MR. PENNYWITT: May the 2nd, 2014, dispositive 

18 motions deadline. 

19 JUDGE SULLIVAN: Got it. What's next? 

20 MR. PENNYWITT: May 23rd, 2014, deadline to 

21 respond to dispositive motions. 

22 JUDGE SULLIVAN: Keep going, please. 

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1 MR. PENNYWITT: And June 6, 2014, deadline for 

2 replies in support of dispositive motions. 

3 JUDGE SULLIVAN: Got it. Anything else? 

4 MR. PENNYWITT: And then it says, "This 

5 schedule should permit a motion conference and 

6 appropriate time for prehearing submissions in or after 

7 late August 2014.n 

8 JUDGE SULLIVAN: And is there anything in that 

9 joint submission before you that talks about a 

10 preferred trial time or length of trial, any of that? 

11 MR. PENNYWITT: No, Your Honor. That. is it. 

12 JUDGE SULLIVAN: Okay. Let's talk a little 

13 bit about that, and then also chat about some other 

14 things. 

15 Mr. Pennywitt, we looked up your phone number 

16 in order to contact you to let you know about the 

17 telephone conference today, just a little reminder 

18 message. And so I just want to confirm that this 

19 telephone number that I have right now is a preferred 

20 phone number as your number for these proceedings. 

21 It's (904) 223-3572. Is that your preferred phone 

22 number for contact by both this office and, say, Mr. 

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1 Stevenson? 

2 MR. PENNYWITT: That is my home number. 

3 JUDGE SULLIVAN: Okay. 

4 MR. PENNYWITT: Again, that's if you really 

5 need to get-- I mean if you call that number, I'll get 

6 the message. But, again, my phone contact should be my 

7 cell phone. 

8 JUDGE SULLIVAN: And what number is that? 

9 MR. PENNYWITT: So my cell phone number is are 

10 code 904-252-1356. 

11 JUDGE SULLIVAN: I'll repeat that and I'll 

12 simply list that as your phone number of record from 

13 here on out. 904-252-1356. 

14 MR. PENNYWITT: Correct. 

15 JUDGE SULLIVAN: Okay. Do you have a fax 

16 number that you would like us to use in the event that 

17 we have an order that we want faxed to you? 

18 MR. PENNYWITT: Yes, Your Honor. 

19 JUDGE SULLIVAN: Okay. Fax number? 

20 MR. PENNYWITT: Bear with me, Your Honors. 

21 I'm looking it up right now. 

22 JUDGE SULLIVAN: Okay. 

Diversified. Reporting Services 1 Inc. 

1101 Sixteenth Street, NW Second Floor 

Washington, DC 20036 

(202) 467-9200 
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1 MR. PENNYWITT: My work fax number would be 

2 area code 904-928-0909. 

3 JUDGE SULLIVAN: I'm going to repeat that. 

4 904-928-0909. Is that correct? 

5 MR. PENNYWITT: Yes, Your Honor. 

6 JUDGE SULLIVAN: Okay. Since this is a work 

7 fax number, do you want communications coming from this 

8 office to your work? Is that acceptable to you? 

9 MR. PENNYWITT: That is acceptable. 

10 JUDGE SULLIVAN: Okay. Let me ask you another 

11 question, Mr. Pennywitt, and then I'm going to turn 

12 back to the counsel for the FAA. You had indicated in 

13 the answer that you filed on November 25, 2013, that 

14 you did not believe it was right to be charged twice 

15 for the same crime resulting from the same conduct. I 

16 don't know anything about that. Can you briefly 

17 describe to what you're referring? 

18 MR. PENNYWITT: I am referring to double 

19 jeopardy, meaning that --

20 JUDGE SULLIVAN: Yes, I got that, but I don't 

21 know what has happened to you in the past. 

22 thing --

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The only 
9 

1 MR. PENNYWITT: I have already been sentenced 

2 and convicted on the federal level for sending 

3 aiming -- a laser light at an aircraft. 

4 JUDGE SULLIVAN: Okay. When did that 

5 MR. PENNYWITT: And there's a federal charge 

6 out there that I have already been convicted of. 

7 JUDGE SULLIVAN: Okay. When was that 

8 conviction entered? 

9 MR. PENNYWITT: I was -- August the 2nd, Your 

10 Honor. 

11 JUDGE SULLIVAN: Of this year, 2013? 

12 MR. PENNYWITT: Correct. 

13 JUDGE SULLIVAN: Okay. As part of that 

14 conviction, were you ordered to pay any kinds of fines 

15 or fees or costs? 

16 MR. PENNYWITT: It was determined by the court 

17 that I was unable to pay any fines. 

18 JUDGE SULLIVAN: Okay. So the matter was 

19 considered by the court at that time? 

20 MR. PENNYWITT: Yes, Your Honor. 

21 JUDGE SULLIVAN: Were you represented by a 

22 federal public defender? 

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1 MR. PENNYWITT: No, Your Honor. It was -- I 

2 hired an attorney to represent me. 

3 JUDGE SULLIVAN: Okay. Mr. Stevenson, let me 

4 turn to you. Were you involved in that particular 

5 proceeding, or were you aware of it? 

6 MR. STEVENSON: I was not involved in it. I 

7 was aware that it existed and I have become I am 

8 more informed about it now, because at some point in 

9 this proceeding, Mr. Pennywitt's criminal attorney had 

10 contacted me about whether or not it was appropriate 

11 for there to be a separate civil, to be a civil action 

12 going on. 

13 JUDGE SULLIVAN: Okay. 

14 MR. STEVENSON: But during the course, the 

15 process we go through where we issue a notice, and 

16 issue a final notice, it is my understanding that Mr. 

17 Pennywitt's criminal attorneys made a strategic 

18 decision that it was best to not participate in that 

19 part of this -- of the process -- because of what was 

20 going on in the criminal case. So I didn't become 

21 fully informed about what was going on in the criminal 

22 case until after Mr. Pennywitt had pled guilty and been 

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1 convicted. 

2 JUDGE SULLIVAN: Okay. Mr. Pennywitt, let me 

3 ask you this about that particular matter that you've 

4 already experienced in the District Court. Were you 

5 sentenced to any kind of jail time, either to be served 

6 or to be suspended? 

7 MR. PENNYWITT: I was arrested twice; one by 

8 the local sheriff's office, and then I was indicted by 

9 a grand jury and arrested by the federal agencies. But 

10 I did spend two days in jail, as far as jail time. 

11 Beyond that, no. I was not sentenced to further jail 

12 time. 

13 JUDGE SULLIVAN: Okay. Sometimes when people 

14 appear before the criminal court and go home, they 

15 don't realize that they've been sentenced to time, 

16 given credit for time served with the rest of the time 

17 suspended during a probationary period. Do you know 

18 whether or not you have suspended jail time hanging 

19 over your head for a certain probation period? 

20 MR. PENNYWITT: Yes, I was sentenced to one 

21 year probation and 50 hours community service. 

22 JUDGE SULLIVAN: And have you finished your 50 

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1 hours with community service, yet? 

2 MR. PENNYWITT: No, Your Honor. 

3 JUDGE SULLIVAN: What type of service are you 

4 anticipating doing, or are you doing it this time? 

5 MR. PENNYWITT: Currently, I have not done any 

6 community service, but I probably will, starting 

7 probably during Christmas time during my time-off work 

8 at the homeless center. 

9 JUDGE SULLIVAN: And when you say at the 

10 homeless center, does this mean that you would be like 

11 serving meals? 

12 MR. PENNYWITT: Correct, or good will. I 

13 haven't really decided what agency I'm going to do the 

14 community service for yet. 

15 JUDGE SULLIVAN: Is this something that you 

16 have to figure out and set up for yourself, or is there 

17 a parole, a probation officer at the District Court 

18 working with you? 

19 MR. PENNYWITT: There is a probation officer 

20 at the court. I do have a probation officer that I am 

21 working with. 

22 JUDGE SULLIVAN: Do you know for your one-year 

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1 probationary period whether or not there is any type of 

2 further jail time hanging over your head in the event 

3 that you fail for whatever reason to comply with the 

4 conditions of service that have been ordered? 

5 MR. PENNYWITT: Yes, I believe so. I mean I 

6 have to complete the 50 hours of community service 

7 assigned to me by August the 2nd of next year. Failure 

8 to do so could result in jail time. 

9 JUDGE SULLIVAN: And how much jail time do you 

10 recall, if you know would be hanging over? 

11 MR. PENNYWITT: That I do not know, Your 

12 Honor. 

l3 JUDGE SULLIVAN: Okay. Do you have a copy of 

14 the judgment and sentence that was issued by the 

15 District Court on August 2nd, 2013, that describes all 

16 of this? 

17 MR. PENNYWITT: Yes, Your Honor. I do have 

18 that, but I do not have it in front of me. 

19 JUDGE SULLIVAN: Okay. Mr. Stevenson, do you 

20 have a copy of that material? 

21 MR. STEVENSON: I have documentation -- I had 

22 some documentation from the criminal docket, because 

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1 after receiving Mr. Pennywitt's answer, I had asked if 

2 I could get some of that. Unfortunately, that would be 

3 in the file which is stuck in a broken retriever right 

4 now. So I don't have any way to look at it. 

5 JUDGE SULLIVAN: Yes, okay. I got that. Mr. 

6 Stevenson, let me ask you this. Does that information 

7 in and of itself have any impact upon how you may be 

s looking at this case? 

9 MR. STEVENSON: I'm not sure in what way 

10 you're asking about. I didn't mean to in effect help -

11 

12 JUDGE SULLIVAN: Well, let me try and clarify 

13 it for you. When I received Mr. Pennywitt's answer 

14 filed on November 25, 2013, I was advised for the first 

15 time through his answer that there had been a separate 

16 and independent criminal action taken against him. I 

17 didn't know that before. It appeared from our earlier 

18 discussion this morning that you may not have 

19 participated in that directly, and the filing of the 

20 civil action may have occurred prior to the entry of an 

21 August 2nd, 2013, judgment and sentence in the District 

22 Court. 

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1 Given that, I'm interested to know whether the 

2 August 2nd, 2013, judgment and sentence is something 

3 that you have an interest in looking at for purposes of 

4 settlement discussions with Mr. Pennywitt. If so, then 

5 it would make sense to me to continue the CR 16 

6 scheduling conference for a short period of time so the 

7 two of you can discuss this privately. If it's not of 

8 interest to you, then that's informative to me, and I 

9 can ask Mr. Pennywitt to send me a copy of the material 

10 and then start scheduling the parties in this case for 

11 litigation. 

12 MR. STEVENSON: I do not think it is of 

13 further interest to me with regards to the settlement. 

14 I've spoken with Mr. Pennywitt, even if I did not have 

15 the copy of the particular judgment. At that point in 

16 time, when I spoke to him, I was aware that there was a 

17 judgment. My understanding is -- and I could be wrong 

18 about this, and so you may want to check with Mr. 

19 Pennywitt. 

20 But, my understanding of this is that Mr. 

21 Pennywitt is concerned that anything that he admits or 

22 would agree to in this case could interfere with any 

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1 sort of potential appeal or further action in his 

2 criminal case. And so that in addition to thinking it 

3 was unfair for there to be a separate civil action and 

4 criminal action, I think he did not want to enter into 

5 any sort of agreement that would be an admission of 

6 having done something wrong over here, which would be 

7 the sort of terms that we would need to resolve the 

8 case in a settlement. 

9 JUDGE SULLIVAN: Okay. Let me turn back to 

10 you, Mr. Pennywitt, and just ask you a little bit about 

11 that. What kind of appellate issue, if any, are you 

12 preserving for your District Court action, if in fact 

13 you have a conviction at this point? Did you go to 

14 trial on this, or was there a plea entered? 

15 MR. PENNYWITT: There was a plea. 

16 JUDGE SULLIVAN: Okay. Was it a guilty plea 

17 or a nolo contendere plea? Do you recall? 

18 MR. PENNYWITT: I believe it was a guilty 

19 plea, Your Honor. 

20 JUDGE SULLIVAN: Okay. Typically, when some 

21 enters a guilty plea in lieu of going to trial, you 

22 basically cut off appellate issues with entering that 

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1 type of plea. Do you have some type of appellate issue 

2 that you're trying to preserve at this point? 

3 MR. PENNYWITT: I do. 

4 JUDGE SULLIVAN: Okay. Is it something that 

5 you're willing to discuss today? Or would you prefer 

6 not to discuss it? 

7 MR. PENNYWITT: I would prefer not to. 

8 JUDGE SULLIVAN: Okay. All right. Let me ask 

9 you this. Would you be willing to send me a copy of 

10 your judgment and sentence in the District Court case? 

11 And you don't have to. I can ask you for it, but you 

12 can decline. 

13 MR. PENNYWITT: I mean --

14 JUDGE SULLIVAN: Do you want to think about 

15 it? Do you want to just think about that request? 

16 MR. PENNYWITT: Well, can't you just subpoena 

17 it? I mean --

18 JUDGE SULLIVAN: Well, I'm --

19 MR. PENNYWITT: Or Mr. Stevenson does. I 

20 think that's up to him. 

21 JUDGE SULLIVAN: Okay. You're welcome to say 

22 no, and I'll take that as a no at this point. 

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I'm not 
18 

1 a litigating party, and so I generally don't subpoena 

2 things from either of the parties. Typically, i.f 

3 there's something of interest to the court, I'll ask 

4 you about it, which I've done at this point. Let me 

5 ask you this, Mr. Pennywitt, and then I'm going to turn 

6 to Mr. Stevenson again. You had indicated in the 

7 discovery discussion that the two of you had that there 

8 is a suggestion of January 9, 2014, for the exchange of 

9 initial discovery, and then a January 23, 2014, 

10 deadline for general discovery. Do you know what that 

11 means? 

12 MR. PENNYWITT: To be honest, Your Honor, no. 

13 

14 JUDGE SULLIVAN: Okay. Okay. 

15 MR. PENNYWITT: I don't know. I thought that 

16 me and Mr. Stevenson talked about it, but I'm not an 

17 attorney and --

18 JUDGE SULLIVAN: No, I understand that. I 

19 just wanted to get a sense of how much you knew of what 

20 this involved. 

21 MR. PENNYWITT: I mean it's my understanding 

22 at initial disclosures Mr. Stevenson sends me a request 

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1 for documentation, and then I can request from him 

2 documentation is what I got out of it. 

3 JUDGE SULLIVAN: Okay. Well, I will explain 

4 what all of this means in due time. Let me ask you 

5 this. Do you know what depositions are and have you 

6 ever been involved in one? 

7 MR. PENNYWITT: I know what a deposition is, 

8 yes. I have never been involved in one. 

9 JUDGE SULLIVAN: Okay. How about with 

10 dispositive motions? Do you know what those are and 

11 what they might entail? 

12 MR. PENNYWITT: I think those dispositive 

13 motions are rebuttals to depositions, or rebuttals of 

14 some sort, I think. It would be my guess. 

15 JUDGE SULLIVAN: Okay. That helps me. That 

16 gives me an idea of what we need to discuss. Mr. 

17 Stevenson, let me turn back to you. How much time or 

18 how many witnesses do you anticipate you would call if 

19 this case went to trial? 

20 MR. STEVENSON: If this case went to trial, 

21 and I had to prove everything from scratch up, and 

22 obviously there's going to be a judgment motion from 

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1 the administrator based on-- we're talking to the 

2 administrator from the FAA based on Mr. Pennywitt's 

3 guilty plea in the criminal case, if based on nothing 

4 else. But if we had to prove everything at the 

5 hearing, I would anticipate calling at least two 

6 witnesses. 

7 I would have to double-check to see if there 

8 was a third, and those would be the police officers who 

9 were in the Jacksonville Sheriff's Office helicopter at 

10 the time of the laser incident, and then a police 

11 officer -- any separate police officer -- who 

12 interviewed Mr. Pennywitt. I apologize. I would also 

13 call the FAA investigator who put together the package, 

14 as that would be a potential witness, possibly just 

15 about documentation exchanged between the investigator 

16 and Mr. Pennywitt's attorneys. 

17 JUDGE SULLIVAN: So would that be a total of 

18 almost four, potentially four people? 

19 MR. STEVENSON: Potentially four. 

20 JUDGE SULLIVAN: Okay. And how much time do 

21 you think you would need for the presentation of your 

22 case if everything went to trial? 

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1 MR. STEVENSON: I believe that my direct 

2 examination would be half a day, perhaps, for the 

3 actual presentation of the testimony. 

4 JUDGE SULLIVAN: Okay. And where would you 

5 anticipate this case being tried? 

6 MR. STEVENSON: I believe that in 

7 Jacksonville, Florida, would be the best location. 

8 That would be the most convenient for the Sheriff's 

9 office, and unless I'm mistaken, though, Mr. Pennywitt 

10 also still resides there. 

11 JUDGE SULLIVAN: Okay. Mr. Pennywitt, let's 

12 turn to you, and I'm going to ask you the same kinds of 

13 questions. Can you identify for me, as best you can at 

14 this point, how many witnesses you'll be calling in 

15 your responsive case at trial? 

16 MR. PENNYWITT: If it were to go to trial, I 

17 guess I would call the JSO helicopter pilots as 

18 witnesses. 

19 JUDGE SULLIVAN: And when you say "JSO," what 

20 does that stand for, please? 

21 

22 

MR. PENNYWITT: Jacksonville Shares Office. 

JUDGE SULLIVAN: Okay. So one pilot -- and 

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1 would there be someone like yourself testifying as 

2 well? 

3 MR. PENNYWITT: Possibly. 

4 JUDGE SULLIVAN: Okay. Anyone else? 

5 MR. PENNYWITT: Uh. That's all I can think of 

6 at this time, Your Honor. I think that would be it. 

7 JUDGE SULLIVAN: Okay. Have you ever 

8 testified at a trial before? Or at a hearing -- excuse 

9 me. 

10 MR. PENNYWITT: No, Your Honor. 

11 JUDGE SULLIVAN: Have you ever participated as 

12 a helper or as a lead in presenting trial material at a 

13 hearing or a semi-formal trial? 

14 MR. PENNYWITT: No, Your Honor. 

15 JUDGE SULLIVAN: Okay. Well, this will be 

16 your first chance for both if we have the trial. And I 

17 don't want to kid you. It's a lot of work, but that's 

18 okay. There are people who have done it before, and 

19 others who will do it after. But you want to make sure 

20 that you are crossing all your T's and dotting your I's 

21 throughout this process. So how much time do you think 

22 it would take for you to present one pilot and your own 

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1 testimony, if you so choose to testify? How long do 

2 you think it would take to ask questions of your 

3 witness and then to give a narrative discussion of your 

4 own testimony? Do you have any idea? 

5 MR. PENNYWITT: Two days at the most. 

6 JUDGE SULLIVAN: Okay. Two days is a very 

7 long time. Typically --

8 MR. PENNYWITT: Half a day? 

9 JUDGE SULLIVAN: Yeah. Why don't we suggest 

10 maybe a half a day at this point, and we can kind of 

11 play a little bit with that as we go along. 

12 MR. PENNYWITT: Okay. 

13 JUDGE SULLIVAN: Mr. Stevenson has suggested 

14 Jacksonville, Florida, as the place that we all convene 

15 for a hearing. Is that acceptable to you? 

16 MR. PENNYWITT: Yes, Your Honor. 

17 JUDGE SULLIVAN: Okay. And let's talk a 

18 little bit about discovery. I know you and Mr. 

19 Stevenson had a discussion, but I'm going to reiterate 

20 some of the things you probably have already talked 

21 about. Discovery is the formal phrase that we in the 

22 legal field used to talk about the exchange of 

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1 documents and information between the parties who are 

2 in dispute. 

3 Mr. Stevenson, who is your friend across the 

4 aisle, has information about the case, just as you, his 

s friend across the aisle, have information that you know 

6 about the case. Discovery is the process by which the 

7 two of you discover from each other what that 

s information is and how you think it is helpful to you 

9 or not helpful to you. So there are several different 

10 stages of discovery. The first stage is the initial 

ll discovery, and this is a stage that is highlighted and 

12 described in the Rules of Civil Procedure and in the 

l3 regulations that the FAA uses to govern these types of 

l4 cases. 

lS Initial discovery is discovery where no one 

l6 has to request anything. You just give it to the other 

l7 side, and you do so essentially right after the case is 

l8 filed. Do you have access to a law library, Mr. 

l9 Pennywitt? 

20 MR. PENNYWITT: Law library, I have access to 

21 the Internet. 

22 JUDGE SULLIVAN: Oh, perfect. 

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1 MR. PENNYWITT: Not at a law library; I guess 

2 you could consider the Internet a law library? 

3 JUDGE SULLIVAN: The Internet is one of the 

4 biggest law libraries I've ever seen. 

s MR. PENNYWITT: Okay. 

6 JUDGE SULLIVAN: You can look up almost 

7 anything on the Internet. And one of the things that 

8 we're going to be talking about is initial discovery, 

9 and that is governed by Rule 26(a) (1), the Civil Rule 

10 of Procedure 26(a) (1). And I will be issuing a written 

11 order that I'll send to both you and Mr. Stevenson, and 

12 I will give you some citations to legal rules and to 

13 FAA regulations so that you had them in front of you 

14 and you can look them up on the web. 

15 If you Google them, you should be able to find 

16 them fairly easily. And that will help you as you go 

17 down this path as your own attorney. Rule 2 6 (a) ( 1) 

18 simply talks about how the party to a litigation should 

19 provide without a request the name and address and 

20 phone number of any individual likely to have relevant 

21 information about the case to the other side. And we 

22 know that you do, and Mr. Stevenson already has your 

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1 name, address and phone number. So that's taken care 

2 of. It sound like Mr. Stevenson already knows about 

3 the pilot, but if you're planning to call him and you 

4 know his name, address and phone number already, you 

s should identify him to Mr. Stevenson after we finish 

6 this phone call. 

7 If you have documents or any kind of 

8 electronically stored information that's relevant to 

9 the case, then you must identify that as well. So 

10 those are the two main things that are incorporated by 

11 initial discovery. General discovery is a little 

12 different. General discovery is where you have to 

13 request information. It's not automatically given to 

14 you, nor are you expected to automatically give it to 

15 Mr. Stevenson. 

16 So general discovery would be asking questions 

17 through a form called interrogatories. It would be 

18 asking for admissions in the form of a request for 

19 admission. It would be setting up depositions of 

20 certain witnesses to have a court reporter present 

21 outside the presence of the court and asking that 

22 witness questions and having it court reported for use 

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1 at trial later on. It would be all kinds of different 

2 things like that, and, in general discovery, there are 

3 some time limitations that are important. And one of 

4 those time limitations involves objecting to request 

5 for discovery as being outside the scope of reasonable 

6 requests, objecting to a certain request because it's 

7 over broad. There are ways to limit discovery through 

8 objections. 

9 There are also important time periods to look 

10 at in responding to discovery. Typically, the response 

11 time is 30 days from the date that you receive a 

12 request for general discovery, but for some things, 

13 especially for requests for admission, the time period 

14 is a little shorter, usually. And I'm going to check 

15 my rule book for the FAA. It looks like in the FAA's 

16 regulations the time period for requests for admissions 

17 is also 30 days, so 30 days for all of that. 

18 So I will be setting up some time periods for 

19 you and Mr. Stevenson about that. Depositions don't 

20 always -- aren't always necessary in every case, and 

21 

22 

they're expensive. So you might want to think about 

that. Even though you are representing yourself right 

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1 now, that doesn't mean you can't informally ask someone 

2 to help you. I have known many litigants who have a 

3 consultant or a helper at hand that they can call and 

4 ask questions. It's less expensive than hiring an 

5 attorney to represent them full time. So you might 

6 want to consider that option, among others. 

7 You are also welcome to hire an attorney at 

8 any time, but the sooner you hire, if that's what you 

9 want to do, the better it is, because the attorney then 

10 has more time to work with you and with Mr. Stevenson 

11 in a comfortable time period prior to trial to get the 

12 case ready. In addition, while you're preparing for 

13 trial, you should also be thinking always about 

14 settlement. That is not specific to this case. It is 

15 a general rule for all cases. 

16 People who begin to exchange information and 

17 to learn about each other's cases often find that they 

18 are not as far apart as they originally thought they 

19 were in trying to resolve disputes. And so you want to 

20 always think in terms of whether new information or a 

21 more careful review of information leads you to be 

22 closer to holding hands across the table than not. 

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1 People typically save time and money if they find ways 

2 to settle. Not all disputes settle, and that's 

3 perfectly acceptable, but you want to keep that option 

4 open for yourself. 

5 So let's talk about the close of discovery. 

6 You have indicated a potential April 11, 2014, closure 

7 date. What that means is by that proposed date you and 

8 Mr. Stevenson will have finished all exchange of 

9 information upon request, and that you are satisfied by 

10 April 11, 2014, that you have learned everything you 

11 possibly can learn through requests from the other side 

12 of what their strengths and weaknesses are. Shortly 

13 after that, you've presented a schedule for dispositive 

14 motion, May 2nd, 2014, for the filing of a dispositive 

15 motion, May 23, 2014, for answering such a motion, and 

16 June 6, 2014, for a final reply. 

17 Dispositive motions are motions that are made 

18 to try and take the case off the court's trial 

19 calendar. Dispositive motions seek to get a final 

20 ruling without anyone going to trial. A party who has 

21 learned a great deal in discovery may find that there 

22 is no issue in dispute and that the dispute may be 

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1 resolved by a ruling without anyone appearing in court 

2 or testifying. So dispositive motions are very 

3 important and they can completely resolve all issues, 

4 or they can resolve some issues. 

5 For example, in the kind of case that has been 

6 filed against you, Mr. Pennywitt, there are two, major 

7 issues. One, whether you have committed an FAA 

8 violation as alleged by the FAA in its August 30, 2013, 

9 complaint. And, number two, whether the proposed civil 

10 penalty of $11,000, as proposed by the FAA, is an 

11 appropriate penalty, according to how penalties are 

12 assessed. So, for example, in your type of case, I 

13 often see the FAA file a motion for partial summary 

14 judgment. The FAA will move for judgment on the 

15 violation itself and say there is no dispute based on 

16 all the exchange of discovery that the violation 

17 occurred. 

18 There is a dispute, however, about the 

19 proposed civil penalty. So we will ask the court to 

20 enter a finding by dispositive motion that the jet 

21 violation occurred, and completely take that off the 

22 table at trial. As a result, what we want is to only 

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1 go to trial on the proposed fine. We have a dispute. 

2 There's a possible trial issue there, and so we still 

3 want to go to trial on that proposed civil penalty. 

4 That can happen and has happened in my caseload. And 

5 sometimes I grant those motions and sometimes I don't. 

6 When I granted the motion for partial summary 

7 judgment, then that first issue -- the issue of whether 

8 the violation occurred -- is decided before the parties 

9 ever show up for trial, and we don't even talk about 

10 it. Sometimes, when a motion for summary judgment has 

11 been filed, it's been filed about everything-- both 

12 the violation and the proposed civil penalty. And 

13 sometimes I've granted those and sometimes I've denied 

14 them. In any event, if you or Mr. Stevenson file a 

15 motion for a dispositive ruling, usually called a 

16 summary judgment motion, those are very important 

17 motions, and you should file an answer of some kind or 

18 a reply. And a reply is a continuing dialog, 

19 essentially. 

20 So the proponent of the motion filed initially 

21 --let's say, if I adopt your timeframe -- on May 2nd, 

22 2014, or before, the person answering or the party 

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l answering the motion filed an answer by May 23rd, and 

2 then the moving party -- the party that had filed the 

3 motion to begin with -- gets to write a final reply and 

4 gets to put in a second filing to talk about what the 

5 answer said and why they disagree with it. And that 

6 would be if I accept the timeline, June 6, 2014. I 

7 will also set up a telephone conference in which I take 

s argument from the parties about dispositive motions, 

9 and then we can talk about the trial as well. 

lO Mr. Pennywitt, I've spent a lot of time 

ll talking a little bit about these things with you. Do 

12 you have any questions, so far? 

l3 MR. PENNYWITT: About what you discussed? No, 

l4 Your Honor. 

lS JUDGE SULLIVAN: Okay. Does it make sense in 

l6 a general way? 

l7 MR. PENNYWITT: Yes, Your Honor. 

lB JUDGE SULLIVAN: Okay. What I will do then is 

l9 I like to take a look at my calendar and see when I 

20 have time for trial. And then I'm going to backtrack 

21 from there, because if I don't have trial available 

22 right after June 6, 2014, we may be able to stretch 

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1 some of these other dates a little bit for the parties' 

2 comfort. So, Mr. Stevenson, turning to you, did you 

3 have any particular month in which you wanted to start 

4 looking for a trial date? 

5 MR. STEVENSON: I don't think we had a 

6 particular month. In setting that June 6th, my 

7 anticipation had been that usually after that point in 

8 time, there would be at least a month and a half with 

9 how I interacted previously in Your Honor's cases for 

10 prehearing submissions and a prehearing conference. So 

11 I had anticipated it being at least a month and a half 

12 or so from that date where we might have -- I am 

13 occupied in the middle of August. 

14 So for me, I had anticipated that late August 

15 or September would be when we might be able to begin 

16 looking at hearing. If Your Honor actually had time in 

17 July and wanted to schedule it then, then I'm available 

18 in July as well. 

19 

20 

21 

22 

JUDGE SULLIVAN: Well, actually, I have 

hearings in July and August. Those two months are 

booked. And, September, I have a two-week commitment 

and then another trial. So I'm actually looking at 

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1 October, actually, about the week of October 20th, 

2 starting with you, Mr. Stevenson. 

3 MR. STEVENSON: I am not scheduled for 

4 anything the week of October 20th. 

5 JUDGE SULLIVAN: Mr. Pennywitt, does the week 

6 of October 20th, 2014, look good for you? 

7 MR. PENNYWITT: Yes, Your Honor. 

B JUDGE SULLIVAN: Okay. Mr. Stevenson, you'll 

9 be traveling from Atlanta, Georgia. Is that correct? 

10 MR. STEVENSON: Yes, Your Honor. Yes, Your 

11 Honor. 

12 JUDGE SULLIVAN: Do you have a preference for 

13 days of trial? And I'm going to suggest that we set 

14 two-day, just to be on the safe side. We may only need 

15 one, but I think two days would be erring on the side 

16 of caution, and I'd like to do that at this time. 

17 MR. STEVENSON: My only preference would be, I 

1B think, what would be the standard, which is to not 

19 schedule the hearing, to start on Monday morning or to 

20 go through to Friday to try to keep the travel 

21 

22 

JUDGE SULLIVAN: Okay. It sounds like 

(A telephone recorded announcement interrupted 

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l the proceeding.) 

2 JUDGE SULLIVAN: Folks, I just got a message 

3 from the conference operator saying we needed to extend 

4 the time. Mr. Smith who's been at the Office of 

5 Hearings, Hearing Room, has just stepped out. He's 

6 going to contact the conference operator to extend the 

7 time so we have enough time to finish this conference. 

s So, and I will let you know when he returns to the 

9 hearing room. So how about if we set the trial for 

lO October 21 and October 22, which are Tuesday and 

ll Wednesday, that leaving Monday the 20th and Thursday 

l2 the 23rd for travel dates. Mr. Stevenson, would that 

l3 work for you? 

l4 MR. STEVENSON: Yes, Your Honor. 

l5 JUDGE SULLIVAN: Okay. And Mr. Pennywitt, 

l6 would that work for you? 

l7 MR. PENNYWITT: Yes, Your Honor. 

l8 JUDGE SULLIVAN: Okay. Excellent. So let's 

l9 talk a little bit about the time period. I have no 

20 problem adopting all of the periods of time that you've 

2l given me. But, what I want to do is schedule a 

22 telephone conference for the summary judgment or 

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1 dispositive motion, and then I also want to check with 

2 you about other matters. 

3 Let's talk first about the telephone motion 

4 conference after June 6, 2014. I'm going to take a 

5 look at my calendar and see what I have available. Mr. 

6 Stevenson, starting with you, do you have time 

7 available the week of June 23rd, 2014, for -- I'm going 

8 to say -- a one and a half-hour telephone conference 

9 for any dispositive motions that might be filed. 

10 MR. STEVENSON: Yes, Your Honor. I'm pretty 

11 clear on that week. 

12 JUDGE SULLIVAN: And Mr. Pennywitt, how about 

13 you? Would that week work for you for us to start 

14 looking for a second telephone conference time? 

15 MR. PENNYWITT: Yes, ma'am. Yes, Your Honor, 

16 that will work. 

17 JUDGE SULLIVAN: Okay. Do you have a 

18 preference, Mr. Pennywitt, for morning or afternoon? 

19 Does it matter to you? 

20 MR. STEVENSON: It does not matter. 

21 JUDGE SULLIVAN: Mr. Stevenson, any preference 

22 from your side? 

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1 MR. STEVENSON: I have a slight preference for 

2 the afternoon. 

3 JUDGE SULLIVAN: Okay. Then let's plan on 

4 Thursday. That would be June 26th, 2014, and let's set 

5 this from 2 to 3:30, just to be on the safe side. And 

6 I'll note that Mr. Smith has come back. He's nodding 

7 to me, and our conference time has been extended, 

8 accordingly. So on June 26, 2014, from 2 to 3:30, 

9 we'll have the dispositive motion conference. And, 

10 folks, what I'm going to do -- and I do this all the 

11 time -- is that if nobody files any dispositive 

12 motions, I will keep the telephone conference schedule 

13 on my calendar and we will convene on June 26, 2014, 

14 for a prehearing status conference. 

15 So even if no one filed any dispositive 

16 motions at all, keep that on your calendar and we'll 

17 convene, just to check in and see if there are any 

18 matters that need to be addressed. If you've reached a 

19 settlement, you can tell me at that time. If there are 

20 some unexpected detours that you've taken that you need 

21 to apprise me of, you can tell me about that, too. So 

22 after June 26, 2014, we need to then talk about whether 

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1 or not the parties would like to have a final 

2 settlement conference before October. And we also need 

3 to talk about an exchange of witness list and exhibits 

4 prior to the October trial time. 

5 Mr. Stevenson, let me turn to you first. We 

6 have a hearing scheduled to begin on October 21, 2014. 

7 When do you want to have your list of exhibits -- I'm 

8 sorry list of witnesses and your exhibits exchanged? 

9 Do you prefer a three- to four-week time prior to the 

10 hearing, or some other period? 

11 MR. STEVENSON: Three to four weeks before the 

12 hearing would work for me, especially, in my case, two 

13 weeks before the hearing I'm scheduled to have a 

14 hearing in front of Your Honor in another case. So, 

15 effectively, two weeks before the hearing is three or 

16 four weeks before the hearing anyway. 

17 JUDGE SULLIVAN: Yeah. That would mean about 

18 September 23rd, 2014. Mr. Pennywitt, would that work 

19 for you? 

20 MR. PENNYWITT: Yes, Your Honor. 

21 JUDGE SULLIVAN: Okay. And when I say "list 

22 of witnesses, exchange of exhibits," essentially what 

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1 that means is that on or before September 23rd, 2014, 

2 you and Mr. Stevenson would exchange a list of the 

3 witnesses you're planning to call for trial and a copy 

4 of all the paper exhibits that you are planning to try 

s and admit as evidence through your witnesses or by 

6 agreement with the parties each other -- at the 

7 trial. So if you had, for example I'm just going to 

8 make something up. If you had a copy of your high 

9 school diploma and you wanted to have it admitted into 

10 evidence for some reason, you would have a copy of your 

11 high school diploma, and you would identify it as one 

12 of your exhibits and give it to Mr. Stevenson marked as 

13 "Respondent's Exhibit Number 1," so that he's fully 

14 aware of what exhibits you are going to try to offer to 

15 the court at trial. 

16 He will be doing the same thing with you. And 

17 I will have-- in the Order that I send out, I'll have 

18 a little statement about what you need to serve and how 

19 to serve it and how to mark it. And, essentially, all 

20 of your exhibits are pre-marked. Mr. Stevenson is 

21 considered the complainant, and so his exhibits would 

22 be marked C-1, C-2, C-3, 4. "Complainant Number 1," 

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2 

"Complainant Number 2," "Complainant Number 3 " ' 

forth. Your exhibits, Mr. Pennywitt, would be 

40 

and so 

3 identified as R-1, R-2, R-3, et cetera, and that stands 

4 for "Respondent Exhibit 1," Respondent Exhibit 2," and 

5 so forth. 

6 And then when you come to the trial, you bring 

7 more copies. You bring three copies of your exhibits 

8 for me. One copy goes to the court reporter who will 

9 be there. Two copies go to me. One is a judge's copy 

10 for me, personally, and the other one is a copy that I 

11 will file with the Hearing Docket when I issue my 

12 decision, and that becomes a permanent, public record. 

13 Not all the exhibits that you bring are admitted 

14 sometimes. Sometimes people bring 25 exhibits and they 

15 only move for admission of five of them. 

16 The only exhibits I take with me are the ones 

17 that have been moved for admission. Sometimes I deny 

18 the motion to admit, but if I deny the motion to admit, 

19 I still take that exhibit, because it's been moved for 

20 admission and that's part of the appellate record. But 

21 the goal is to have enough exhibits and copies of 

22 exhibits ready to go. And when you exchange some with 

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1 the opposing party, you exchange them about a month 

2 ahead of time, and then bring more copies for the court 

3 for the day of trial. So the exchange date for 

4 everybody, as we've already discussed, is September 

s 23rd, 2014. 

6 Mr. Stevenson, starting with you, do you want 

7 to have a final settlement conference after the June 

8 26th, 2014, summary judgment conference? We could set 

9 something up in August, 2014, or early September 2014 

10 if you and Mr. Pennywitt think that that would be 

11 helpful. What's your preference? 

12 MR. STEVENSON: I do not think it would be 

13 helpful. I would anticipate that when or if settlement 

14 becomes a possibility, because of developments in Mr. 

15 Pennywitt's criminal case, that we would be able to 

16 discuss it at that time. And if developments don't 

17 permit such a discussion, then I don't think the 

18 conference would affect Mr. Pennywitt's decision, but 

19 perhaps he disagrees. 

20 JUDGE SULLIVAN: Mr. Pennywitt, what's your 

21 thought process about this? Would you like to have 

22 another conference prior to exchanging witness lists 

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1 and exchange of exhibits, or do you feel comfortable 

2 with the current schedule as is? It's up to you. It 

3 doesn't matter to me. 

4 MR. PENNYWITT: I'm okay with the current 

5 schedule, Your Honor. 

6 JUDGE SULLIVAN: Okay. All right. And I will 

7 simply note that we have a January 9, 2014, deadline 

8 for the parties to exchange initial discovery, and it 

9 means between now and then. Both sides should be 

10 identifying for each other the names, telephone numbers 

11 and addresses of their potential witnesses. In 

12 addition, the parties should be identifying for each 

13 other any documentation that is relevant. And that 

14 should be done without request. Then on January 23rd, 

15 2014, the parties should begin exchanging general 

16 discovery requests, if you still have them, and that 

17 can include written questions called interrogatories. 

18 It can include requests for admission, which are formal 

19 requests to another party to admit certain information. 

20 It can include requests for certain documentation, and 

21 so forth. 

22 That particular general discovery period runs 

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1 from January 23rd, 2014, through April 11, 2014. So 

2 the sooner you get out your request, the better it is, 

3 because the opposing side has 30 days to respond. If 

4 there are problems with general discovery requests for 

5 any reason, I have some information in the order that 

6 I'll send out to you about how to file for help from 

7 the court, that I would caution each of you that before 

8 you file for help you should be contacting each other 

9 to see if you can resolve the matter informally. And 

10 that contact is called CR 37 conference, and that 

11 relates to the civil rule that governs that particular 

12 matter. 

13 If you can't resolve it and you need the 

14 court's assistance, and you want to have a telephone 

15 conference, talk to each other. Find three mutually 

16 agreeable dates that you may be available for a 

17 telephone conference and then call Mr. Smith, the 

18 attorney advisor who works with me on my cases, and he 

19 has access to my calendar and he can help set up a 

20 telephone conference with my calendar. And there'll be 

21 an explanation about how to do that in the Order that I 

22 send out to you. 

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1 I will also confirm the parties' agreements 

2 that between March 3rd, 2014, and March 28, 2014, 

3 depositions should be taken, if necessary. In 

4 addition, I'll confirm the parties' agreements to have 

5 a May 2nd, 2014, dispositive motion filing deadline; a 

6 May 23rd, 2014, deadline for filing any answers to 

7 dispositive motions if they're filed; and a June 6, 

8 2014, deadline for filing any reply, if one is needed. 

9 The parties have also agreed that June 26, 

10 2014 from 2 to 3:30 p.m. is the date and time for 

11 appearing before the court again to present any oral 

12 arguments on dispositive motions and to answer the 

13 court's questions about the same. And we have a trial 

14 date set up for October 21, 2014 and October 22, 2014 

15 in Jacksonville, Florida, in the event that the parties 

16 do not reach settlement prior to that time. 

17 And I will reiterate again, just so that we 

18 all have it, that on September 23rd, 2014, the parties 

19 will be exchanging a written list of witnesses and 

20 their marked exhibits. With that, Mr. Stevenson, is 

21 there anything that we need to address for you and your 

22 client that we have not already done? 

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1 MR. STEVENSON: The one question I would have 

2 is that earlier in this conference, Your Honor, you had 

3 asked Mr. Pennywitt to provide some documentation from 

4 his criminal case. He'd indicated that he did not want 

5 to. Would you like the administrator to or the FAA to 

6 provide the court with that documentation at this time? 

7 JUDGE SULLIVAN: If you have that 

8 documentation, I would be most appreciative of 

9 receiving it. You're welcome to provide it. And I 

10 would also ask you if you would resend your CR 26(f) 

11 materials once your computer is back up and running 

12 since we never got it. 

l3 MR. STEVENSON: I apologize for that, Your 

14 Honor, and I will resend it. 

15 JUDGE SULLIVAN: Okay. Thank you for that 

16 inquiry, and I appreciate your offer of information. 

17 Anything else, Mr. Stevenson, before I turn to Mr. 

18 Pennywi tt? 

19 MR. STEVENSON: No, Your Honor. 

20 JUDGE SULLIVAN: And, Mr. Pennywitt, is there 

21 anything else that I can do on your behalf today or any 

22 question that I can answer before we close today? 

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1 MR. PENNYWITT: Yes, Your Honor. Mr. 

2 Stevenson sort of beat me to the punch. Regarding the 

3 sentencing, you requested that document. And it kind 

4 of threw me for a loop, because I thought this was just 

5 a scheduling conference. Should I send that to you? I 

6 guess my question is what was the purpose for that? Is 

7 that going to change anything? 

8 JUDGE SULLIVAN: That's a good question. You 

9 have raised in your materials a concern about double 

10 jeopardy, and I should have answered that more fully. 

11 You are not looking at double jeopardy in this 

12 particular case, because this is a civil case as 

13 opposed to a criminal case. The very best public 

14 example, I think, of something similar, is the 0. J. 

15 Simpson trial. You may recall how 0. J. Simpson was 

16 charged with a criminal case in which he was accused of 

17 murdering his wife, and it was a very public trial. 

18 And he was acquitted. 

19 The family, the gentleman who was murdered at 

20 the same time as Mrs. Simpson, filed a civil case 

21 against 0. J. Simpson arising out of the exact same 

22 acts. And 0. J. Simpson argued before the civil court 

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1 that it was double jeopardy, that he could not be 

2 charged with a civil action, because he had already 

3 been acquitted of the crime. Do you remember this at 

4 all, Mr. Pennywitt? 

5 MR. PENNYWITT: Yes, Your Honor. 

6 JUDGE SULLIVAN: Okay. The civil court found 

7 that, in fact, Mr. Simpson could be identified and 

8 charged in a civil case or a civil action because 

9 they're two, different types of actions. The civil 

10 case went forward. There was a trial and Mr. Simpson 

11 was found by a jury to be liable, civilly, to the 

12 family of the deceased gentleman. So in your case, you 

13 have something of the same type of conundrum, because 

14 you have a criminal matter that you faced, whether 

15 through and finished to all practical purposes with a 

16 guilty plea. And now you think the civil action 

17 arising out of the same event where the FAA as the 

18 complaining party is seeking to have you assessed a 

19 civil penalty, it can do that. 

20 The purpose for my interest is that having 

21 that information helps inform me about your particular 

22 position that you were being overly punished about one 

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1 instant. So it is much more informational at this 

2 point, particularly, to, I think, assist the parties in 

3 questions they might have regarding possible settlement 

4 and to also give the court as much information as 

s possible so the court can be accurate in its responses 

6 to both parties about the value of that information for 

7 possible settlement. 

8 That does not mean that you or Mr. Stevenson 

9 cannot utilize that information as evidence, either in 

10 dispositive motions or at the trial itself. If the 

11 parties do not reach settlement and the case goes to 

12 trial, or for dispositive motions, the only information 

13 that I utilized in reaching a decision is information 

14 that has been properly admitted into evidence before 

15 me. I know that sounds like an implausibility, but it 

16 is actually true. 

17 I can know all kinds of things about a 

18 dispute, and yet limit my decision only to what is 

19 admitted into evidence. I can separate out what I have 

20 learned through conferencing and set that aside, and 

21 look at only testimony and documents that have been 

22 admitted by evidentiary standards. So, at this point 

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l in time, the value of providing that information to me 

2 is informational only. It does not inform or prejudice 

3 me in terms of your case for trial. 

4 The information at this point, to be clear, is 

s that knowing that you have had a case already before 

6 the District Court, and knowing that you have suffered 

7 a certain punishment, that being not only the time in 

s jail -- the 50 hours of community service and the 

9 horrific angst that it must have felt to not only have 

lO been arrested, but searched, put into the jail, and 

ll then face the grand jury indictment -- but the stain of 

l2 that that follows you, because it is a public 

l3 proceeding and it is a record against you. And those 

l4 things have great significance. And as your own 

lS attorney, those are things that should be spoken of 

l6 privately when you talk with Mr. Stevenson, and he will 

l7 be cognizant of that, because he is an attorney. 

lS So those are things that you should be 

l9 utilizing in your private discussions, at least to talk 

20 about and see if there's a possible reduction of the 

2l currently proposed civil penalty that the FAA has 

22 suggested against you; but that's up to the two of you 

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1 at this point. If that's a helpful answer, I hope so. 

2 Does that help you, Mr. Pennywitt? 

3 MR. PENNYWITT: Yes, Your Honor. Thank you 

4 very much. 

5 JUDGE SULLIVAN: Okay. Do you have any other 

6 question that you would like to ask before we close 

7 today, Mr. Pennywitt? 

8 MR. PENNYWITT: Okay. I guess Mr. Stevenson 

9 is going to send you the signed thing. Do I need to 

10 send it to you, or Mr. Stevenson? 

11 JUDGE SULLIVAN: No. No. 

12 MR. PENNYWITT: Or am I done for now? 

13 JUDGE SULLIVAN: Mr. Stevenson has already 

14 offered, and since he has to resend the CR 26(f), I 

15 think it will be just as easy for him to send 

16 everything at once. And so, you, Mr. Pennywitt, do not 

17 have to send it, but I will simply note that you appear 

18 not to object at this point. Would that be correct? 

19 MR. PENNYWITT: That is correct. 

20 JUDGE SULLIVAN: Okay. So noted. 

21 MR. PENNYWITT: I will be sending out to both 

22 of you an order setting litigation dates and 

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1 procedures. I will also note on that order Mr. Smith's 

2 name and phone number. If you have any questions, feel 

3 free to ask him about that order. I will note, 

4 however, that Mr. Smith does make a record of the 

5 general inquiries, so that I can put it on the record 

6 or note it in a follow-up order. 

7 I want to make sure that everybody knows that 

8 I don't have private discussions with either party. 

9 You're welcome to contact Mr. Smith, either of you, 

10 about questions at any time, but he will let me know 

11 that there's been a contact, and I will note that for 

12 the record, either in writing or at our next 

13 conference. 

14 With that, it appears our business is 

15 complete. I'm going to wish you both a very happy 

16 holiday in the interim. Happy New Year, and we can go 

17 off the record at this time. 

18 Thank you. 

19 (Whereupon, at 11:16 a.m. the telephone 

20 scheduling conference was concluded.) 

21 • * * * * 

Diversified Reporting: Services, Inc. 

1101 Sixteenth Street, NW Second Floor 

Washington, DC 20036 

(202) 467-9200