U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES, 

Respondent. 

Docket No. F AA-2013-0291 

FAA Case No. 2011S0290032 

Judge Sullivan 

REPLY IN SUPPORT OF MOTION TO COMPEL 

- -~~ 

On l\1arch 14, 2014, The FAA filed a motion to compel Respondent to comply with ,. ' i ' ' : 

discovery requests. On March 25, 2014, Respondent filed a response in opposition to that 

motion. The FAA hereby replies in support of its motion. 

In its Response, Respondent complains that the FAA's own discovery responses were 

late. Response at 1-2, 13-14. This is irrelevant as to whether Respondent's discovery responses 

were deficient. It is also false. The FAA's initial response to Respondent's discovery requests, 

which were attached to Respondent's Motion to Compel, were timely filed (indeed, they were 

filed before they were due). Respondent may have been displeased that this response was 

entirely objections to Respondent's untimely and otherwise improper discovery requests, but to 

say that the FAA had not responded in a timely fashion is simply incorrect. Respondent fnrther 

asserts that the FAA "w;J.ited until the last day" to file its objections. Response at 14 n.6. This is ' . ' - ' ' ' j _· ~ ' ' : ·' - 1 : • 

also false. Respondenn di~cswery ~equests (attached tp R..~sponc!ent's JY!otion to Compel) were ~-- ·-- ~~~ . i.,': '- T''·'·- j·.,l.\;'_';. \_I;-}:·.:·.~.:>'·-~· ;: ~:~ ., :·.,:_;'_ ~; 

served and·received-onJ\ebruary-6, 20H. The.de.a.dfine to respond to those discovery requests1 
30 days later- would have been March 8, 2014, but because that was a Saturday, the deadline 

was March 10, 2014, The FAA's initial discovery responses (also attached to Respondent's 

Motion to Compel) were filed before that date, Regardless, Respondent's obligation to answer 

discovery requests is in no way dependent on whether the FAA's initial discovery response was 

early or simply on time, 1 

In its Motion to Compel, the FAA requested that Respondent be compelled to respond to 

a discovery request that asked Respondent to identify deficiencies in any inspector's statements 

contained in the EIR, In its Response, Respondent argues that it carmot respond to this question 

at all until it has been provided with an umedacted copy of privileged documents, Response at 2-

4,2 This is not the case, As a factual matter, Respondent clearly can identify any errors it 

1 It is also in no way dependent on whether the FAA's initial discovery requests were timely filed, which they were, 

Respondent now argues for the first time that the FAA's discovery responses were untimely, Response at 14, As an 

initial matter, as Respondent failed to make any objection as to the timeliness of the FAA's discovery requests, any 

such objection was waived and is not relevant Regardless, Respondent's assertions in this respect miss the mark, 

The deadline for initiating discovery in this matter was January 28, 2014, As the Judge may be aware, and as was 

heavily covered on national media, the Atlanta metro area was affected by a severe weather event on January 28, 

2014, that resulted in the metro area being shut down for several days, See, e,g,, 

http://www ,reuters,com/article/20 14/0 1129/us-usa-weather-idUSBREAOQ !DK20 140 129, 

http://www, usatoday ,com/story/weather/20 14/0 1/29/snowstonn-travel-disruption-south/50 10845/, 

http://en,wikipedia,org/wiki/Januarv 2014 Gulf Coast winter storm, The undersigned's office, which is located in 

the Atlanta metro area, was closed at !PM on January 28, 2014, and did not re-open until Friday, January 31, 2014, 

The undersigned personally sent the discovery requests via facsimile and made sure that the physical copies were 

placed in the mail system before leaving the building on January 28, 2014, The fact that the physical copies were 

unable to leave the building until January 31, 2014, when the building and mail room re-opened, was more than 

good cause for any "lateness" in the FAA's discovery requests, Indeed, given that leaving the building by !PM on 

January 28, 2014 still resulted in attorneys from this office being stuck on frozen roads for hours while attempting to 

get home, there would have been ample cause for the undersigned to simply have left for horne earlier and not filed 

the discovery requests at all until January 31, 2014, This situation is in no way comparable to Respondent's 

conscious choice to disregard the deadline that it had agreed to, had submitted to the Judge, and that the Judge had 

then placed into an Order, and any delay in the mailing of the physical copy of the FAA's discovery requests due to 

severe weather does not operate as any sort of estoppel as to the FAA's objections to the untimeliness of 

Respondent's discovery requests. 

2 Respondent additionally re-iterates its assertion that the FAA should be required to produce privileged documents 

for review by the Judge, but fails to present any sufficient argument or evidence on that point Response at 2-7, 

There is no basis in law for removing the attorney-client or deliberative process privileges based on nothing more 

than an allegation that the individual making the communication in question is biased, Respondent continues to 

assert that it wishes to explore the basis for the Inspector's "focns on the actions of the Respondent," but the FAA's 

reasons for choosing to "focus" on a Respondent are a question ofprosecutorial discretion. See Response at 3. The 

question before the Judge is only whether Respondent committed the violations alleged, not why the FAA chose to 

exercise its discretion in investigating those violations and proposing a civil penalty, Respondent also asserts that 

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perceives in the portion of Section B that was provided, as well as the other statements by 

inspectors contained in the Items of Proof. Respondent is not e':ltitled to refuse to answer a 

discovery requests about statements by individuals because there exist other, privileged 

statements by those individuals to which it does not have access. Indeed, such a position would 

largely preclude any Respondent ever answering discovery requests about statements FAA 

Inspectors, given that the FAA Inspector will always have made statements to the FAA attorney 

that are privileged and are therefore not available to the Respondent (similarly, the FAA would 

never have to answer discovery requests about statements by a Respondent, given that 

Respondent would surely have made privileged statements to its attorney that were not available 

to the FAA). Even if there existed other statements that were not privileged and to which 

because the FAA is "working so hard" to oppose its motion, rather than simply producing the privileged documents, 

see Response at 3-4, but this argument is frivolous. The fact that a party to litigation asserts a privilege implies 

nothing about the contents of the privileged communications. Whether the Inspector's written opinions as to 

Respondent's attitude were positive, neutral, or negative, the Inspector's communication of those opinions to the 

undersigned is privileged, and the precise nature of those opinions has no effect on whether the FAA is willing to 

assert applicable privileges. Respondent further reiterates that the deliberative process privilege should be removed 

simply because it asserts bias. See Responseat 5. Contrary to Respondent's assertions, the case that it cites (which 

involved a grand jmy seeking communications to the executive in a case where the alleged crime was that the 

communications contained false statements) does not hold that. This case does not turn on whether an Inspector has 

a positive or negative opinion of Respondent, and even if the Inspector's general opinions of Respondent were 

relevant, Respondent has demonstrated no reason why it would need to review privileged documents to learn those 

opinions- the particular privileged written communications at question are completely unnecessary in this effort 

(even if this subject was within the scope of discovery, it can be adequately addressed without disclosing privileged 

information). Respondent criticizes the FAA's observation that, if it is allowed to explore the supposed "bias" to be 

found in the Inspector's alleged statements, the FAA will be required to produce evidence of problems with 

Respondent, arguing that this is some sort of empty "threat" by the FAA. On the contrary, this is simply a factual 

observation. As the FAA noted, if one takes seriously Respondent's assertion that the Inspector's alleged negative 

statements about Respondent demonstrate bias (which they do not), then the marmer in which the FAA would have 

to rebut that allegation of bias would be to present evidence for the actual basis for these alleged statements (to the 

extent one can present a basis for statements that never happened). And this would require presenting evidence of 

other conduct by Respondent and comments made to the Inspector about the Respondent. Indeed, while arguing that 

opening this Pandora's box would not result in the need to introduce otherwise irrelevant evidence, Respondent 

demonstrates the validity of the FAA's contention by attaching otherwise irrelevant evidence to its motion, in what 

appears to be a pre-emptive effort to rebut the FAA's coming rebuttal of Respondent's "impeachment" of the 

Inspector. See Response at 7, Exhibit 1. It is somewhat ironic that Respondent attaches an e-mail from CCIA 

praising AMES for its work on N287SC, when this e-mail carne before the May 2010 discovery of the deficiencies 

in AMES's work on that aircraft, and later letters from CCIA fmding AMES to have improperly performed the 

maintenance in question. Regardless, the Respondent's assertions that the Inspector behaved in an "intemperate" 

fashion, see Response at 11, continue to have nothing to do with bias (and frequently have nothing to do with the 

Respondent), and are beyond the scope of discovery. 

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Respondent did not have access, that would not prevent Respondent from providing answer as to 

the statements it has especially where, as here, the Respondent admitted in its discovery response 

that it does have answers, but simply does not want to give them. 

In its Motion to Compel, the FAA requested that Respondent be compelled to a discovery 

request (Interrogatory # 12) concerning the physical condition of certain aircraft components, in 

particular their condition as of May 2010. In its Response, Respondent simply reiterates that the 

Complaint alleges improper maintenance in August 2009, October 2009, and March 2010. 

Response at 7-9. Respondent asserts that an interrogatory covering the time frame from August 

2009 through May 2010 would be "sweeping" and that it would have "no basis" for responding, 

and would have objected. Response at 8. That Respondent "would have" objected is irrelevantit did not object. Further, any such objection would not have been well-taken. A 1 0-month time 

frame is hardly "sweeping," and Respondent also worked on each of these aircraft at least once 

between the reinstallation of the main landing gear and the FAA's discovery of the improper 

installation. Respondent could, and should, have addressed this interrogatory in the same manner 

that anyone could address any interrogatory concerning the status of something over a time 

frame- by noting the points in time at which the party had knowledge of the status, and what the 

status was at that point in time. 

Further, while Respondent mocks the relevance of the physical condition of the aircraft in 

May 2010, see Response at 8-9, it makes no serious argument that it is not within the scope of 

discovery. It is absolutely routine for maintenance violations to be founded on observations of 

the condition of an aircraft at a time after the maintenance was completed.3 For example, in this 

case multiple FAA inspectors observed missing components on the mair, landing gear assemblies 

3 Indeed, it is a rather rare case where an FAA inspector is present at the time improper maintenance is being 

performed, and when it does occur the inspector will generally point out the improper maintenance rather than 

permitting the mechanic to return the aircraft to service in an unairworthy condition. 

4 
on the aircraft in question, as well as damage to aircraft components that was caused by the 

Improper reinstallation of the main landing gear doors. Respondent is free to dispute the 

accuracy of these observations and is free to attempt to present testimony disputing the 

conclusions about the cause of the damage, but Respondent is not free to refuse to respond to 

discovery requests on the subject. Respondent could,4 and should, have answered interrogatory 

# 12 by including any alleged information it has on the physical condition of the components in 

May2010. 

In sum, Respondent has presented no senous arguments as to why it should not be 

required to comp!y with the FAA's discovery requests. Respondent's desire to see privileged 

communications do not absolve it of the responsibility to respond to discovery requests 

concerning statements in documents that the FAA has provided. And the physical condition of 

the aircraft in question in May 2010 was within the scope of interrogatory #12 and within the 

scope of discovery. Respondent should be compelled to fully answer both of these requests. 

siRespectfully submitted thi;3,\ day of March, 2014. 

Attorney 

Office of the Regional Counsel 

4 In the FAA's Motion to Compel, the FAA noted that Respondent had contradicted itself by stating with regards to 

Interrogatory #12 that it had no knowledge of the condition of the aircraft in May 2010, and then making assertions 

elsewhere about the condition of the aircraft in May 2010. See Motion to Compel at 4-5. In its Response, the 

Respondent asserts that it never said this. Response at 9. As cited in the FAA's Motion to Compel, the Respondent's 

original response to Interrogatory #12 asserted that Respondent "cannot respond to this interrogatory" except to say 

that the relevant components were airworthy at the time Respondent installed the main landing gear. See Motion to 

Compel, Attachment B, at 7 ~ 12. 

5 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Motion to Compel was sent: 

original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1 000 

one copy via certified mail to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (E11-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

one copy via certified mail to: 

Robert P. Silverberg, Esq. 

1101 301

h Street, NW, Suite 120 

Washington, D.C. 20007 

Facsimile: (202) 944-3306 

sis ant 

Office of the Regional Counsel 

'APR r-1 2014) 

Dated 

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