UNITED STATES OF AMERICA:

DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: BIRMINGHAM FLIGHT CENTER RESPONDENT. DOCKET NO. FDMS NO.FAA-2014-0867

_____________________________________________________

TELECONFERENCE BEFORE THE HONORABLE J.E. SULLIVAN MONDAY, AUGUST 31, 2015 1:33 P.M. HISTORIC JORDAN SPRINGS 1160 JORDAN SPRINGS ROAD STEPHENSON, VIRGINIA 22656In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 2

1 APPEARANC ES 2 ON BEHALFOF THE PLAINTIFF, 3 FEDERAL A

VIATION ADMINSTRATION: 4 CHRISTOP HER R. STEVENSON, ESQUIRE 5 FEDERAL A

VIATION ADMINISTRATION 6 1701 COL UMBIA AVENUE 7 COLLEGE PARK, GEORGIA 30337 8 TELEPHONE: 404. 305.5200 9 FACSIMILE: 404. 305.5223 10 E-MAIL: CHRISTOPHER.SEVENSON@FFA.GOV 11 12 ON BEHALFOF THE DEFENDANT, 13 BIRMINGHA

M FLIGHT CENTER INCORPORATED: 14 PAUL BOR TH, ESQUIRE 15 BARNETT A

ND BORTH, LLC 16 800 WAUK EGAN ROAD, 17 SUITE 20 0 18 GLENVIEW , ILLINOIS 60025 19 TELEPHONE: 847. 724.5520 20 FACSIMILE: 815. 356.7042 21 22 23 24 25In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 3

1 E XHIBITS 2 Exhibit Page 3 4 F Exhibit F 39 5 6 G Exhibit G 39 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 4

1 HEARING 2 MONDAY, AUGUST 31, 2015 3 1:3 3 P.M. 4 THE COURT : Okay. We're on the record in 5 the matt er of Birmingham Flight Center, Inc. This is 6 docket F AA-2014-0867. Today is Monday, August 31, 7 2015, an d the parties have convened for a short 8 telephon e motion conference. The FAA is represented 9 by its a ttorney of record, Mr. Christopher R. 10 Stevenso n. The respondent, Birmingham Flight Center, 11 Inc., is represented by its attorney of record, Mr. 12 Paul R. Borth. Good afternoon to you both. I'll note 13 that als o present at the office of hearing room is Mr. 14 Cody L. Smith, an attorney advisor. He's also sitting 15 in as an observer only today. So, just to make sure 16 that we' re all on the same page, I'm going to pull my 17 file up. And our last order was issued Thursday, 18 August 2 7, 2015. That was the order setting today's 19 motion c onference. And essentially that order 20 identifi ed what the current motion set down in terms 21 of filin g dates, and I'm just going to reiterate 22 those. On August 25, 2015, the FAA filed a motion to 23 amend sc hedule to extend discovery and set deadlines 24 for disp ositive motions. That same day, August 25, 25 2015, th e respondent filed its response toIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 5

1 administrator's motion. And then, two days later on 2 August 27, 2015, the FAA filed a reply in support of 3 its motion. And what I'd like to do is talk a little 4 bit with the parties first about the litigation 5 scheduling order and just get a sense of what all has 6 occurred or has not occurred. And then I'm going to 7 ask you to answer some questions. And because I'm 8 going to be asking some questions first about the 9 prior deadlines that were set by order dated April 7, 10 2015, I'm going to start with the FAA, and then I will 11 turn to the respondent and have the respondent answer 12 the same questions or at least tell me if there's 13 information that they disagree with in terms of what 14 the FAA has told me. So, as I understand it, the 15 parties' positions right now, in looking at the April 16 7, 2015 order, both parties complied with the April 17 17, 2015 deadline for the exchange of initial 18 disclosures. And then both parties started general 19 discovery as noted in the April 7, 2015 order on or 20 before April 20, 2015. Mr. Stevenson, starting with 21 you, am I correct so far? 22 MR. STEVENSON: Well, I will note that I 23 made my notice of appearance in this case on July 1st, 24 2015. I can verify that the FAA filed its initial 25 disclosures. It has been represented to me that theIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 6

1 respondent submitted initial disclosures in April of 2 2015, and Mr. Borth provided me with a copy of those 3 on August 19th indicating they had previously been 4 provided. I don't have any reason to dispute that, 5 but I cannot personally verify that. Similarly, I 6 THE COURT: Well, I'm going to interrupt 7 you, sir. Let's talk a little bit about that, because 8 essentially, when the Court last convened with the 9 parties on April 7, 2015, your client was represented 10 by someone else, and that, an attorney named Mr. 11 Johnson has apparently left service with the FAA. Can 12 you tell me about when he left the FAA as an employee? 13 MR. STEVENSON: It was shortly before I 14 entered my notice of appearance. If you, I can look 15 and see if I have something, if you give me a moment. 16 We've got it written down. I, I'm sorry, Your Honor, 17 I don't have immediately available something that 18 indicates exactly when he left, but it would have been 19 very shortly before the case was reassigned to me, 20 within a ... 21 THE COURT: Okay, well, we know that you 22 filed a notice of appearance on behalf of your client 23 on July 1, 2015. So, when you say "shortly before," 24 what does that mean to you? 25 MR. STEVENSON: Within a week or two.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 7

1 THE COURT: Okay. So, one week would have 2 been approximately June 24, 2015. Two weeks would 3 have been about June 17, 2015. Does that sound about 4 right to you in terms of a timeframe? 5 MR. STEVENSON: That does sound about right. 6 THE COURT: Okay. So, in terms of this 7 transfer that occurred between you and Mr. Johnson, I 8 want to make sure I'm saying his name correctly. Yes. 9 Would the transfer have occurred before he left or 10 after he left? 11 MR. STEVENSON: After, Your Honor. 12 THE COURT: Okay. All right. So, when 13 you're looking at the file that you received from your 14 client, and I'm going to try and phrase this 15 carefully, because I don't want to ask you any 16 questions that would invite a disclosure that's 17 unnecessary or prohibited. The file in such, was the 18 file in an order that allowed you to pick up and go, 19 because it appears to me from the materials that I 20 have from you and the respondent that you had some 21 information gaps when you got the file. Would that be 22 a fair assessment or an unfair assessment? 23 MR. STEVENSON: It would be a fair 24 assessment that I had some information gaps. 25 THE COURT: Okay. So, when we're looking atIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 8

1 the April 7, 2015 order, your understanding of what 2 initial disclosures were provided by your predecessor 3 are based on a reconstruction of what may have 4 happened based on what the respondent has been able to 5 assist you with? 6 MR. STEVENSON: Yes, Your Honor, and that 7 doesn't include, to be clear, a date on a document 8 that was emailed to me. So, I, it's not purely a 9 verbal representation. It's just something that I 10 cannot verify on our end but that's where we were... 11 THE COURT: Okay. Well, let's, so, it's 12 established, then, to your satisfaction, anyway, that 13 initial disclosures were filed by your predecessor on 14 or before the due date of April 17, 2015 pursuant to 15 the April 7, 2015 order? 16 MR. STEVENSON: If I could have one moment, 17 Your Honor. I apologize. What I am doing is I, I 18 could verify from recollection that a copy of the 19 FAA's initial disclosures from April of 2015 was sent, 20 but from memory, I do not recall the precise date. 21 And so I am checking to see if I can verify the exact 22 date, but I was not anticipating this question, so I 23 don't have that document pulled out. I apologize. 24 THE COURT: Well, the reason that I'm asking 25 the question is because you have your friend acrossIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 9

1 the aisle is asserting that your motions for relief 2 should not be granted. And the basis upon which the 3 Court looks at these types of motions is your 4 diligence in exercising compliance with the Court's 5 litigation schedule. So, what I'm trying to find out 6 step by step from you is when that diligence faltered. 7 According to the respondent, there has been a failure 8 of the FAA to exercise diligence in complying with the 9 order. It appears to me that there may have been an 10 abandonment, quite frankly, by both parties of this 11 April 7, 2015 order, which is why I'm asking these 12 preliminary questions. So, it ... 13 MR. STEVENSON: I apologize, Your Honor, I 14 did not, if I, if there was some implication that the 15 Court's question was, that I felt the Court's question 16 was inappropriate, that was not the case. It is a, I 17 just had not anticipated that particular ... 18 THE COURT: No, I'm not suggesting that you 19 thought it was inappropriate, Mr. Stevenson. I'm not 20 suggesting that you had those beliefs. I'm simply 21 saying that the reason I'm asking these questions is 22 because it goes to the issue of diligence. So, as I 23 understand it from you, the April 17, 2015 deadline 24 for exchanging initial disclosures may have been met 25 by both parties, but you're not sure about yourIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 10

1 client. 2 MR. STEVENSON: Well, I can now verify, Your 3 Honor, that the FAA did provide its initial 4 disclosures on April 17th, 2015. 5 THE COURT: Okay. Then, let's talk about 6 the general discovery initiation. It appeared to me 7 that there was, by both parties, a compliance with the 8 April 20, 2015 general discovery initiation date based 9 on the materials that I have presented to me. Would 10 you agree or disagree with that, Mr. Stevenson? 11 MR. STEVENSON: I, I know that my, that Mr. 12 Johnson sent discovery out. I do not know when that 13 discovery was sent out except that obviously it was 14 before I took over the case. 15 THE COURT: Okay. 16 MR. BORTH: This is Paul Borth. 17 THE COURT: Mr. Borth, I know you're on the 18 line. I'm sure you have ... 19 MR. BORTH: Yes. 20 THE COURT: ... a lot of things that you 21 could add to this discussion, but I'm going to ask you 22 to be patient and wait ... 23 MR. BORTH: Okay ... 24 THE COURT: ... until I direct my ... 25 MR. BORTH: ... could verify that.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 11

1 THE COURT: ... question to you. 2 MR. BORTH: Very good. 3 THE COURT: So, Mr. Stevenson, let me go 4 back to you. Let's assume just for the sake of 5 argument that the FAA submitted their first set of 6 discovery requests to the respondent on or about April 7 20, 2015. Do you by any chance have a copy of that 8 material that your predecessor sent out in your file? 9 MR. STEVENSON: I do not. 10 THE COURT: Okay. Do you have a copy of the 11 material that the FAA received from the respondent on 12 or about April 20, 2015? 13 MR. STEVENSON: I, I now have what I 14 understand to be a complete copy of those requests. 15 At the time that I had received this file, I did not 16 have a complete copy of those. I had a partial copy. 17 THE COURT: Okay. Based on what you have 18 before you, can you tell me, if you know, whether or 19 not your predecessor disclosed any expert witnesses 20 pursuant to the April 7, 2015 order, which gave a 21 deadline of full disclosure of May 15, 2015? 22 MR. STEVENSON: My predecessor did not 23 disclose any expert witnesses. I do not, in my 24 assessment, know something has been presented that 25 would indicate that an expert witness would be used inIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 12

1 this hearing. 2 THE COURT: Did you receive, to the best of 3 your knowledge, on or before May 29, 2015, any 4 disclosed experts from your, opposing counsel? 5 MR. STEVENSON: No, Your Honor. 6 THE COURT: So, I'm moving into the page 7 three of the April 7, 2015 order. In paragraph A as 8 in apple, numeral 8, there was a June 19, 2015 9 deadline for issuing subpoenas and for arranging 10 depositions. This may or may not have occurred before 11 Mr. Johnson left. Do you know whether or not any 12 depositions were scheduled by him or his staff prior 13 to his departure? 14 MR. STEVENSON: To the best of my knowledge, 15 neither Mr. Johnson nor the respondent engaged in any 16 discussions about having depositions or noticed 17 depositions or took depositions. 18 THE COURT: Okay. So, that brings up up a 19 little bit to your involvement. As I understand the 20 materials, you became substitute counsel for your 21 predecessor who left the FAA, and you put in a notice 22 of appearance on July 1, 2015. Am I correct so far? 23 MR. STEVENSON: Yes, Your Honor. 24 THE COURT: Okay. You then issued, on July 25 7, 2015, new discovery requests. Do you know howIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 13

1 different or how similar those discovery requests were 2 to your predecessor's discovery packet? 3 MR. STEVENSON: There, I do know because I 4 can look at, based on the responses, that the 5 respondent gave to my predecessor's discovery 6 requests, there were several requests in there that 7 were largely duplicative, such as for, something along 8 the lines of for each person you intend to call as a 9 witness, please identify the subject of their 10 testimony and summarize what that testimony would be. 11 Most of the discovery requests were not duplicative. 12 THE COURT: After July 7, 2015 and up 13 through today's date, chronologically, can you tell me 14 what else you have done, if anything, in terms of 15 discovery? 16 MR. STEVENSON: Do you want me to limit 17 myself to actual discovery issued or received or also 18 communications between myself and opposing counsel 19 about discovery? 20 THE COURT: I think right now, just to limit 21 yourself as to anything that you have propounded. 22 MR. STEVENSON: I'm sorry, I have not 23 propounded any discovery after the July 7th, 2015 24 discovery. 25 THE COURT: Okay. Has anything beenIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 14

1 propounded to you since July 7, or July 1, 2015? 2 MR. STEVENSON: No, Your Honor. The only 3 discovery I have received since then was on August 4 19th which, my understanding is that is a copy of 5 something that had been previously propounded to the 6 FAA. 7 THE COURT: And when you say "a copy," you 8 basically received from the respondent what? 9 MR. STEVENSON: An email with a PDF of all 10 of the respondent's, to the best of my knowledge, all 11 of the respondent's communications with the FAA in 12 this matter have been done electronically when we are 13 served with a motion or a discovery request that is as 14 a PDF attachment to an email without an accompanying 15 hard copy. 16 THE COURT: I understand. So, that PDF file 17 that you received from Birmingham Flight Center, Inc. 18 on August 19, 2015 contained what? 19 MR. STEVENSON: On August 19th, I received, 20 I received the, a PDF of the respondent's initial 21 disclosures. I received a PDF of respondent's 22 interrogatories, a request for production, and expert, 23 and separate from that, an expert discovery request 24 that has further interrogatories and requests for 25 production. August 19th was the first time I had seenIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 15

1 the interrogatories. 2 THE COURT: And when you say you received 3 requests for production and interrogatories, are you 4 saying you received the responses to your propounded 5 discovery, or are you saying that you received 6 discovery requests from the respondent? 7 MR. STEVENSON: I received discovery 8 requests from the respondent. 9 THE COURT: Okay. I'm going to stop you 10 there, Mr. Stevenson, and I'm going to end up coming 11 back to you on some other questions. But I'm going to 12 turn now to the respondent. Mr. Borth, let's talk a 13 little bit about the April 7, 2015 order. And I'm 14 going to first ask you if having listened to the 15 Court's inquiry to the FAA, and dialogue with Mr. 16 Stevenson, if there's anything you would like to add 17 or correct to that particular dialogue before we talk 18 about your client's participation. 19 MR. BORTH: I did not specifically, I mean, 20 as to the initial disclosures, both parties complied 21 with the April 17 date and provided initial 22 disclosures, and both parties also complied with the 23 April 20 date by providing initial discovery requests. 24 THE COURT: Okay. Let's talk a little bit, 25 then, about Mr. Johnson's departure date. You wereIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 16

1 litigating against Mr. Johnson. 2 MR. BORTH: Yes. 3 THE COURT: Did he notify you sometime in 4 June that he was leaving? 5 MR. BORTH: Hold on one moment, Judge. Let 6 me take a look at my, I don't recall if, do we have, 7 so, let me, I don't want to speak out of hand here. 8 Let me, let me take a quick look at my emails on this, 9 and I can ... 10 THE COURT: Okay. 11 MR. BORTH: ... let you know. I have too 12 many things open right now. Okay. Goes to, let's 13 see. No, Judge, I didn't have any, I had, the only 14 conversations that I had with Mr. Johnson would have 15 pre-dated that, and I know I've had a number of 16 conversations with him prior to his departure. I know 17 it was in, you know, let's say April through June 18 about, you know, compliance with discovery, but 19 that's, those were just telephone conversations, and 20 we had a very amicable relationship professionally. 21 And, but I didn't hear anything about his departure. 22 He never informed me, and I didn't see anything from 23 his office, to my knowledge, that he was leaving the 24 FAA. And I ... 25 THE COURT: Can you tell us ...In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 17

1 MR. BORTH: ... he left ... 2 THE COURT: I'm sorry, sir, could ... 3 MR. BORTH: Okay, go ahead, sorry 4 THE COURT: I'm going to interrupt you. 5 MR. BORTH: Sure. 6 THE COURT: Could you tell us the date of 7 the last communication you had with Mr. Johnson? Do 8 you have that available? 9 MR. BORTH: I don't have that available. 10 Like I say, Judge, it was, there were periodic phone 11 calls. He would call me, I would call him. And I 12 know I was looking for his answers to discovery, but 13 primarily, since I had the EIR, I wasn't overly 14 concerned with it as initial disclosures set forth the 15 witnesses in pretty decent detail, so I wasn't overly 16 concerned. But I would say probably mid-June was the 17 last time I spoke to him about discovery compliance. 18 And I think the last communication I had with him was 19 an order that he provided to me for the, he was also 20 the attorney for the Pickett matter. Steve Pickett is 21 the owner, the co-owner of Birmingham Flight Center, 22 and he had an FAA enforcement action on him related to 23 the same probative facts in this case, and that case 24 was dismissed by Mr. Johnson. And that was the last, 25 you know, actual communication of paper that I gotIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 18

1 from Mr. Johnson. 2 THE COURT: Okay. So, you're talking about 3 an action that was probably before the National 4 Transportation Safety Board involving Mr. Pickett 5 personally? 6 MR. BORTH: Correct. 7 THE COURT: Okay. And when you say "mid8 June, 2015," I'm looking at the June calendar. And 9 the third week of June falls between June 14 and June 10 20. Does that sound about right in terms of mid-June? 11 MR. BORTH: No, I think actually, now that 12 I'm looking at the calendar, I think it was earlier 13 than that. It was the week of the 8th. 14 THE COURT: Okay. 15 MR. BORTH: Because I'm looking at my 16 calendar, and I was completely busy on that, that June 17 15th, I think I had a lot of things going on. So, I 18 don't, I don't believe I spoke to him the. So, I 19 think it would have been the week of probably June 20 8th. 21 THE COURT: Okay. So, about one week before 22 June 17, 2015. 23 MR. BORTH: Yes, I think that's, I think 24 that's fair. 25 THE COURT: Okay.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 19

1 MR. BORTH: As I said ... 2 THE COURT: Let's talk a little bit about 3 the April 20, 2015 general discovery. It appears that 4 your client propounded discovery to the FAA on April 5 20, 2015, and the FAA propounded discovery to you on 6 that same day or close to that same day. Would you 7 agree or disagree with that? 8 MR. BORTH: I agree. 9 THE COURT: Okay. It sounds as though Mr. 10 Johnson did not respond to any of your client's 11 discovery requests on or before May 20th, 2015, which 12 is 30 days after service. Is that correct? 13 MR. BORTH: Yes. 14 THE COURT: You got no responses to that 15 discovery at all within ... 16 MR. BORTH: Right. 17 THE COURT: ... the 30-day period? 18 MR. BORTH: No. No. Not, not, the 19 discovery that I propounded, he did provide me initial 20 disclosures, so I, I would consider that part of 21 discovery, but that's a Rule 26 disclosures. 22 THE COURT: Right, and we're not talking 23 about initial disclosures. We're talking about the 24 discovery that was propounded by the parties to each 25 other on or about April 20, 2015 pursuant to the orderIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 20

1 issued on April 7, 2015. So ... 2 MR. BORTH: Yes. 3 THE COURT: ... just to recap, It's my 4 understanding from the materials that the parties have 5 submitted, and from what you've been telling me, and 6 what Mr. Stevenson has been telling me, the FAA did 7 not file any responses to the April 20, 2015 discovery 8 within the 30 day period provided for in the 9 regulations. Would you agree or disagree with that? 10 MR. BORTH: Agree. 11 THE COURT: Would you also agree that your 12 client did not respond within the 30-day period to any 13 of the discovery that the FAA propounded on April 20, 14 2015? 15 MR. BORTH: Correct. 16 THE COURT: Okay. So, after those discovery 17 packets were exchanged, there was a directive in the 18 April 7, 2015 order that directed the parties to file 19 motions to limit discovery if there were problems with 20 the discovery. And that limitation language is on 21 page two of the April 7th, 2015 order. I think it's 22 fairly clear that if neither party responded with 23 discovery within the 30-day period that there was also 24 a failure to comply with the 10-day period within that 25 30-day period for moving to limit discovery. WouldIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 21

1 you agree or disagree with that? 2 MR. BORTH: I don't, I don't know that the, 3 I guess I would disagree, because in terms of motions 4 to limit discovery, I took this as being limitations 5 on the, too many questions or there was over-broad or 6 too many requests for production. That's what I 7 thought that's what this was referring to. And I 8 didn't have any problems with the extent of their 9 discovery, and according to, like speaking to Mr. 10 Johnson, he didn't, either. So, that's ... 11 THE COURT: Okay, so ... 12 MR. BORTH: ... what we thought. 13 THE COURT: ... so, when did your, when did 14 your client respond to Mr. Johnson's April 20, 2015 15 packet of discovery requests? 16 MR. BORTH: We have, one moment. I know 17 that it was, the discovery, the answers to the FAA's 18 requests to the facts were answered early on within 19 that first 30 days. I'm trying to find it here. I 20 know the answers to the, the questions of fact were 21 answered within that first 30 days, but the other 22 discovery was not. 23 THE COURT: Okay. Well, I don't have that 24 in front of me, so I'm going to ask you to walk me 25 through it a little bit. From what I have before me,In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 22

1 there was a request for production in that April 20, 2 2015 packet, a set of interrogatories, and then a 3 first set of discovery requests. And I'm not quite 4 sure what you're referring to ... 5 MR. BORTH: Well ... 6 THE COURT: ... with a, the request for 7 facts. What, what part of that discovery packet are 8 you referencing? 9 MR. BORTH: I apologize, Judge. That was in 10 the, the, what happened was the FAA propounded initial 11 discovery, as I recall it, in, on or about April 20th, 12 and there's a, it's stamped April 20th. That did not 13 have any requests to write back on it. The ... 14 THE COURT: Okay, I'm only talking to you 15 right now about the discovery that was propounded to 16 you on April 20, 2015. 17 MR. BORTH: Okay. 18 THE COURT: So, let's focus in on the April 19 20, 2015 discovery packet. 20 MR. BORTH: Okay. 21 THE COURT: According to the materials that 22 you submitted, there were three distinct components to 23 that April 20, 2015 packet. Those three ... 24 MR. BORTH: Right. 25 THE COURT: ... distinct components are,In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 23

1 number one, a first set of discovery requests; number 2 two, interrogatories; and number three, some requests 3 for production. Was there anything else in that first 4 set of discovery materials that you received that I 5 haven't identified? 6 MR. BORTH: No. 7 THE COURT: Okay. So, when did your client 8 respond, if at all, to this first set of discovery 9 requests from the FAA propounded to you on April 20, 10 2015? 11 MR. BORTH: August 1st, 2015. 12 THE COURT: Okay, thank you. Now, you also 13 propounded discovery upon the FAA on or about April 14 20, 2015. When, if at all, have you received any 15 responses from the FAA to that discovery? 16 MR. BORTH: Never. 17 THE COURT: Okay. And when this particular 18 packet, you had, if I recall correctly, number one, 19 interrogatories; number two, requests for production; 20 and then was there a third portion to that discovery 21 requests and, if so, what was it? 22 MR. BORTH: Yes, I had separate Rule 26 23 expert interrogatories and requests for production 24 that were only, were specific to expert opinions, 25 reports, and so forth, that were separate from theIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 24

1 interrogatories and requests for production. So, that 2 was the third ... 3 THE COURT: Okay. 4 MR. BORTH: ... heap of discovery. 5 THE COURT: Well, let's call that Expert 6 Disclosure Requests. 7 MR. BORTH: Correct, okay. 8 THE COURT: You've never received any 9 response from Mr. Johnson or, more currently, from Mr. 10 Stevenson to that April 20, 2015 packet? 11 MR. BORTH: Correct. 12 THE COURT: Okay. Now, let's talk a little 13 bit about things that have happened since Mr. 14 Stevenson has come on board. Would you agree or 15 disagree that the FAA propounded to you on July 7, 16 2015 some new discovery requests? 17 MR. BORTH: I agree. 18 THE COURT: Okay. Mr. Stevenson has said 19 that some of those were duplicative of what Mr. 20 Johnson had propounded on April 20, 2015 and some were 21 not. Would you agree or disagree with that? 22 MR. BORTH: I agree. 23 THE COURT: Okay. Mr. Stevenson also 24 indicated that, either in the materials or orally, 25 that on July 13, 2015, there was some propounding byIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 25

1 you to the FAA, your answers, essentially, to FAA 2 requests for admissions. Is that correct? 3 MR. BORTH: It is correct. 4 THE COURT: Okay. Was that your first set 5 of answers to the FAA's April 20, 2015 packet, or was 6 that something different? 7 MR. BORTH: That was in response to the 8 FAA's second set of discovery. 9 THE COURT: And that would have been 10 propounded on July 7, 2015? 11 MR. BORTH: Correct. 12 THE COURT: So, you had a six-day turnaround 13 to that particular portion of the discovery requests? 14 MR. BORTH: Correct. 15 THE COURT: Okay. In the discovery requests 16 that you received from Mr. Stevenson on or about July 17 7, 2015, in addition to the requests for admissions, 18 were there interrogatories, requests for production, 19 and other such requests and, if so, can you identify 20 them for me? 21 MR. BORTH: Yes. They, they were, the 22 requests to admit that I, you just addressed. Also, 23 what they called initial interrogatories and requests 24 for production. 25 THE COURT: Okay. Okay. Mr. StevensonIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 26

1 indicated in his oral statement a little earlier this 2 afternoon that on August 19, 2015, you sent to him a 3 PDF file that contained a variety of different 4 discovery material, including the respondent's initial 5 disclosures as well as the respondent's answers, I 6 think, to the requests for production, the 7 interrogatory responses, and the expert disclosures. 8 Would you agree or disagree with that? 9 MR. BORTH: That's correct. I provided the, 10 our answers to the second set of, the FAA's second set 11 of discovery from July was answered, the 12 interrogatories and requests for production were 13 answered, I have them here in my, on the 21st of 14 August, but let me double check my, yes, August 21st, 15 2015, respondent responded to the requests for 16 production, second request for production, and the 17 second set of interrogatories. 18 THE COURT: So, I'm a little confused. The 19 PDF that Mr. Stevenson received on August 19, 2015 20 precedes your date of August 21, 2015 by two days. 21 So, is ... 22 MR. BORTH: Okay. 23 THE COURT: ... Mr. Stevenson correct about 24 the August 19, 2015 date, or was, were there multiple 25 exchanges of different information within that two-dayIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 27

1 period? Can you, can you help me out with that? 2 MR. BORTH: Sure. Sure. I apologize, 3 Judge, because on August 19th, I believe we had a 4 telephone conversation, Mr. Stevenson and I, about the 5 discovery, at which time he informed me that he was 6 missing certain of, the discovery that I had 7 propounded upon the FAA, which was those, those three, 8 the interrogatories, requests for production, and then 9 the expert discovery. So, I had, on August 19th, I 10 sent him copies of those that had already been, they 11 were produced or were served on August, April 20th, 12 Judge. So, I provided those as a courtesy to him. 13 Here are the, here are the interrogatories, requests 14 for production, and expert interrogatories that were 15 propounded upon Mr. Johnson back in April. So, that's 16 what I did on the 19th of August, and then on the 17 21st, I provided answers to his discovery, so. 18 THE COURT: Okay. So, I'm going to just go 19 through this just so that I'm clear. As I understand 20 it, on August 1st, 2015, the FAA received the 21 respondent's responses for the first time to the April 22 20, 2015 discovery requests. Is that correct? 23 MR. BORTH: Yes. 24 THE COURT: And then on August 19, 2015, the 25 respondent provided the FAA with copies of both theIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 28

1 April 17, 2015 initial disclosures that it had given 2 to the FAA as well as copies of the responses that it 3 had given to the FAA 18 days prior on August 1, 2015. 4 Mr. Borth? 5 MR. BORTH: Yes. 6 THE COURT: Okay. And then on August 21, 7 2015, the respondent sent to the FAA its answers to 8 the remaining part of the July 7, 2015 discovery that 9 it, that the FAA had propounded, with the 10 understanding that there had already been answers to 11 requests for admissions sent on July 13, 2015. 12 MR. BORTH: That's correct. 13 THE COURT: Okay. And then we are looking 14 at a scenario where the respondent is still waiting to 15 get anything from the FAA. 16 MR. BORTH: That's correct. And I, can I 17 add one, one other thing, Judge? It's on August 17th, 18 respondent also filed a supplemental response to the 19 requests for production of documents, which added 20 another, we enclosed an email transmission that we 21 discovered, so we, that was just as an addendum, I 22 guess, or amendment to our earlier response. 23 THE COURT: Okay... 24 MR. BORTH: But that ... 25 THE COURT: ... thank you. Let me chat justIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 29

1 for a moment with you, Mr. Borth, about some of the 2 material that is in your packet. And I'm going to, I 3 need to flip over to a couple of different things. 4 Apparently this thing isn't as fast as it used to be, 5 so let me take a minute. 6 MR. BORTH: Are you're referring to the 7 discovery that I prepondered on the FAA? 8 THE COURT: What I'm looking at right now is 9 I'm looking at the respondent, at the FAA's reply in 10 support of its motion that contain the respondent's 11 answers to certain discovery requests. 12 MR. BORTH: Okay. 13 THE COURT: And I'm, I had tabbed various 14 things and now I find that that was not sufficient for 15 me to zip right to it. But I'm going to find it in 16 just a moment. Okay. I'm actually now at the 17 respondent's response to the FAA's motion, and this 18 was filed on August 25, 2015. And I wanted to ask you 19 just a question about this, these particular 20 responses, and I'm going specifically to respondent's 21 answers to the FAA's first set of interrogatories and 22 requests for production. And in that particular 23 document that's dated August 1, 2015, the respondent 24 identifies a variety of different people, including a 25 pilot, a co-pilot, and an aircraft broker. TheIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 30

1 respondent also states that these individuals will 2 testify about their background, training, experience, 3 those kinds of things, credentials. But then I state 4 that there are no expert witnesses that will be 5 called. And I've seen this fairly frequently, and so 6 I'm bringing it up. It would appear to me that half of 7 your witnesses are experts, and I'm wondering if 8 there's some reason why you would not see them as 9 experts. If you have individuals that have 10 specialized knowledge, specialized training, and 11 special credentials who would be testifying about 12 matters of expertise, to wit, flying an airplane, for 13 example. Can you help me with that, because that is 14 an ongoing concern for this Court and these types of 15 proceedings, where people, I shouldn't say people. 16 Excuse me. Where litigants have experts, but then 17 don't see the witness as an expert until they put them 18 on the stand. So if you can tell me what's going on. 19 MR. BORTH: No, I understand your point 20 well, Judge. And here's my response. I had just, I 21 can go through each of these witnesses, but these 22 witnesses are all, as far as background and their 23 experience and so forth, this case does not hinge 24 upon, in my view, something that is akin to expert 25 testimony that would be beyond the ken of the averageIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 31

1 juror or average judge. And I don't, in addition, I 2 don't believe that these, any of these witnesses are 3 of the type that the rules, Federal rules, would 4 consider to be experts as being employees of the 5 Birmingham Flight Center, in that they're not called 6 upon to render testimony on usual occasions. I've seen 7 that where the FAA does that all the time, and my 8 response is that this is a very back school scenario 9 that's really not about my expert versus their expert 10 in terms of flying or in terms of the operation of the 11 flight center. I think that for the most part all of 12 those issues are just pretty much admitted. It's a 13 matter of the factual scenario as what occurred on 14 this particular demonstration flight, and that's why, 15 in terms of my disclosures, when I say that they're 16 going to testify about their background, training, and 17 experience, it's just that, for instance, that Mr. 18 Pickett is the CEO of Birmingham Flight Center. And 19 then it says, it's for the most part a Part 91 flight 20 center, and it's not a 135. And what he does ... 21 THE COURT: I understand, I understand. Let 22 me ask you a different question. You had asked during 23 the April 7, 2015 litigation scheduling conference 24 about subpoenas and how to issue subpoenas. 25 MR. BORTH: Right.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 32

1 THE COURT: Have you already issued 2 subpoenas in this matter, and if so, when did you 3 obtain them? 4 MR. BORTH: Well, here's, I spoke, I brought 5 that, approached that subject with FAA's counsel in 6 our last conversation, I guess August 17th, whenever 7 that was. And the only reason I did that was just to 8 see what the FAA had done to secure these witnesses 9 for trial, for hearing testimony, and that subpoenas 10 had been issued on that front. Because I didn't 11 intend to take any depositions, so therefore I didn't 12 need to send subpoenas for deposition. So I inquired 13 to the FAA if they had filed, or served any, or 14 intended to serve any hearing subpoenas. And I was 15 going to coordinate that accordingly, because these 16 witnesses, they've got the, if we're in a group in 17 their case and she goes first, I expected them to 18 subpoena and secure these witnesses for hearing 19 testimony. So that's, I'm in the situation right now 20 where I'm waiting to see if they're going to do that. 21 If not, then I will ask, I will issue subpoenas to 22 these witnesses accordingly. But, like I say, I 23 haven't seen any answers to their interrogatories, so 24 I'm still a little bit unsure of exactly which 25 witnesses they want to bring to the hearing.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 33

1 THE COURT: Okay. In terms of your response 2 that was filed with the Court on August 25, 2015, it 3 appeared to me that you have some outstanding 4 discovery requests of your own. And that's contained 5 on page five of your response, paragraph two. They're 6 saying they want an order compelling the FAA to 7 provide complete and forthright responses to your 8 discovery requests. Are these the discovery requests 9 that basically have been pending since April 20, 2015? 10 MR. BORTH: Yes. 11 THE COURT: Before we go forward, I just 12 want to highlight for the parties that the 13 administrator is not the party litigant in this 14 matter. When these cases come before me, the 15 administrator is reserved for, as the Appellate 16 tribunal. And I think you know that, and I've 17 already, had already talked to Mr. Johnson about that 18 at a prior case. So I would be most appreciative if 19 you make sure that when you file future materials, 20 that you remove Mr. Hertiff (phonetic) and the 21 administrator's title from your materials. And if 22 anybody wants me to give you the cite in the Federal 23 regulations, I'd be happy to do that. But there is a 24 distinct bright line boundary between the regional 25 counsel bringing a case before this Court and theIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 34

1 administrator. So ... 2 MR. BORTH: I apologize. 3 THE COURT: Yes. That being said, Mr. 4 Stevenson, I'm going to go to you, and I think I now 5 have a better sense of where everybody is and what's 6 happened. And as I understand your motion, you're 7 moving for the following relief. Essentially, you want 8 to compel certain discovery that dispositive motion 9 deadlines that were not set on April 7th, 2015, and 10 you want to continue the November, 2015 hearing date. 11 What I'd like you to do, if you can tell me, is to 12 tell me specifically, in terms of your motion to 13 compel discovery, are you asking for discovery that is 14 still not received from the April 20, 2015 discovery 15 packet? Or are you focused exclusively on discovery 16 responses that you've received from your July 7th, 17 2015 discovery packet? 18 MR. STEVENSON: I was focusing on July 7. I 19 think there's some difficulty, or arguably difficulty, 20 enforcing the earlier discovery request that's been, 21 it seemed like it had been a long time since there was 22 an issue that I didn't have the original documents for 23 that. And it seemed like the relevant requests from 24 that were duplicated in the July 7th discovery 25 requests anyway.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 35

1 THE COURT: And what specifically are you 2 asking for? 3 MR. STEVENSON: Well, in that motion, which 4 I, you've noted that it was filed on August 25th. It 5 was served on August 20th. We had an issue with the 6 Chamber's fax machine, and so Your Honor only received 7 it certified mail. I know that's because, having 8 served it on the 20th, what I was asking for was 9 necessarily limited to the 20th. So as of the 20th, 10 we didn't have any responses to those July 7th 11 discovery requests except for the responses to the 12 request for admission. And opposing counsel had 13 represented the day before that up until that point he 14 did not know whether or not the FAA wanted responses 15 to these and that he was going to be working on them. 16 It seemed premature to file a motion to compel at that 17 point based on the representations of respondent's 18 counsel that the answers to these would be 19 forthcoming. As of the time the FAA filed its reply, 20 the respondent had provided answers to the July 7th 21 discovery requests. I can go in detail if Your Honor 22 would like, but as a general matter, I would assert 23 that those responses were severely deficient. 24 However, my understanding would be that before I could 25 specifically file a motion to compel with the Court, IIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 36

1 first need to take those deficiencies to respondent's 2 counsel and identify them and give him the opportunity 3 to correct them. I did that last week and I asked the 4 respondent to, by close of business Friday, let me 5 know whether there would be any forthcoming updates to 6 those discovery responses. I did not receive a 7 response on that front, so I at this point would 8 presume that I'm not going to get, and unless 9 something happens during this motion conference that 10 would make it unhelpful, my intent was to file the 11 motion to compel, as well as the motion to deem 12 admitted based on the discovery responses. I would 13 like to do it later today, but I probably actually 14 won't be able to get that done. So I would anticipate 15 tomorrow. 16 THE COURT: Well, that remains to be seen 17 actually. But let's talk a little bit about that. 18 And I don't disagree with you that if you are moving 19 to compel that you should contact and consult with 20 your friend across the aisle first pursuant to the 21 April 7th, 2015 order. And then when you, and if you, 22 file a motion to compel, it's accompanied by a Rule 37 23 declaration regarding that good faith attempt to 24 resolve the dispute informally. My concern is this. I 25 have an objection to any further discovery being made.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 37

1 I have an assertion by the respondent that the FAA has 2 not acted diligently with the litigation schedule. 3 And the FAA essentially declined earlier in the 4 proceeding to even pursue a dispositive motion. I can 5 say to you that it would appear to me at the very 6 least that there should be some accounting. Or what 7 the April 20, 2015 request for production, whether 8 those responses have been deemed adequate, as opposed 9 to what the July 7, 2015 discovery requested and 10 whether or not those are adequate. And the reason I 11 say that is because it's clear that taking over 12 someone else's case is not always easy. But the 13 inconvenience of taking over the case should usually 14 rest upon the party that has created the inconvenience 15 as opposed to the party who is responding to it. So 16 for example, if your predecessor had a certain theory 17 of the case and you look at that theory and think, 18 "Oh, I think I could do it differently," but time is 19 of the essence, you may end up getting stuck with that 20 former theory as opposed to starting from scratch and 21 forcing the respondent to litigate the case twice, 22 with two different people. So my concern right now is 23 duplication of the discovery requests. And my 24 question to you is, in general, in the discovery that 25 you received from the respondent on August 1, 2015,In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 38

1 was it adequate? It sounds like it was adequate, but 2 you're unhappy with the discovery responses to the new 3 discovery that you propounded July 7, 2015. Can you 4 discuss that a little bit, please. 5 MR. STEVENSON: Yes, Your Honor. The 6 responses to the original set of discovery requests 7 were not adequate. I did not, that had not been the 8 focus I was taking. But for example, in the letter 9 that I sent opposing counsel last week about the 10 problems with the answers to the July 7th discovery 11 request, some of those were because the responses were 12 references back to the prior discovery responses, and 13 those themselves were inadequate. For example, the 14 discovery, the interrogatory that Your Honor was using 15 for, which is asking about, for each person identified 16 as a potential witness, state the subject matter of 17 the testimony and summarize the substance of the 18 testimony. What universally the respondent answers 19 there is with a list of possible topics, some of which 20 seem to be relevant, some of which seem not to be 21 relevant. But no disclosure whatsoever of what these 22 witnesses are actually going to say. 23 THE COURT: Before you continue, can you 24 route me to your material so that I can look at what 25 you're looking at?In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 39

1 MR. STEVENSON: Yes, Your Honor. This is 2 the, you were just looking at this. It was an 3 attachment to the respondent's response in opposition 4 to the FAA's motion to amend the schedule. And in 5 particular, this was interrogatory number two. 6 THE COURT: Okay, give me a minute to get 7 back to that. Okay, I'm right with you, thank you. 8 MR. BORTH: I'm not sure what document 9 you're referring to. 10 THE COURT: Okay, Mr. Borth, we're looking 11 at your response filed with the Court on August 25, 12 2015. And it's Exhibit F as in Frank. 13 MR. BORTH: Okay, one moment. 14 THE COURT: I'm sorry, it's Exhibit G as in 15 George. My apologies. 16 MR. BORTH: Okay, one moment, Judge. I'm 17 sorry, I have those broken up. Hold on. Okay, these 18 are Exhibit G as in George, Judge? 19 THE COURT: Correct. 20 MR. BORTH: These are my respondent's 21 answers to complainant's first set of interrogatories; 22 correct? 23 THE COURT: Correct. 24 MR. BORTH: Okay. 25 THE COURT: Thank you. Okay, Mr. Stevenson,In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 40

1 let's turn back to you. So you're saying that the 2 answer given in Interrogatory No. 2, which is page 3 two, Exhibit G, of the respondent's response, is 4 inadequate. Can you explain why, in your opinion, the 5 response regarding Mr. Pickett, the CEO of Birmingham 6 Flight Center, is inadequate in your opinion? 7 MR. STEVENSON: Yes, Your Honor. Again, the 8 interrogatory sought a base of subject matter of the 9 testimony and to summarize the substance of that 10 testimony. So what we see here is an interrogatory 11 that states the subject matter, but does not summarize 12 the testimony. For example, it will say, he is 13 expected to testify regarding his interaction with 14 Steven Allen, aircraft broker with Premier Group, 15 regarding the subject aircraft. What is he going to 16 testify about that interaction? Was it oral, was it 17 written, what was the contents, what was communicated? 18 He is expected to testify regarding all aspects of the 19 arrangements with Mr. Allen to perform the 20 demonstration flight. Well, what is he going to say 21 about those arrangements? He is expected to testify 22 regarding all conversations held with his employees 23 and all statements made with FAA inspectors and 24 investigators. Well, again, what is he going to say? 25 What are the conversations that he's talking about?In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 41

1 And what is he going to say about his interactions 2 with the FAA inspectors? I understand that this isn't 3 a deposition, and opposing counsel obviously does not 4 have to sit here and come up with his direct 5 examination in advance, but that's why this asks for a 6 summary of the substance. And this has nothing of the 7 substance, of what these witnesses are actually going 8 to be testifying. 9 THE COURT: Okay, thank you for that 10 example. Let me turn now to a different topic, 11 because I know we've been on the phone quite some 12 time, and I appreciate the parties' patience. There 13 has been an assertion by the respondent Mr. Stevenson 14 that your client has failed to be diligent and to 15 comply with the April 7, 2015 order. Can you address 16 that, please? 17 MR. BORTH: Yes, Your Honor. As we 18 discussed earlier when this file was, as provided to 19 you by my client, they had received it from their 20 former attorney, and there were information gaps, I 21 believe was the phrase Your Honor used. And if it was 22 apparent to me that there were information gaps, I did 23 not know what discovery had been propounded. I did 24 not know what discovery responses had been sent. I 25 had nothing in the file. For example, if myIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 42

1 predecessor had not responded to a discovery request 2 from April, and I am inheriting a file on July 1st, I 3 would typically expect there to be something from the 4 other side about that. That, as Your Honor noted in 5 your scheduling order, the parties are supposed to 6 have filed a motion to compel within ten days of 7 having not received a discovery response. Here I 8 didn't have any indication of even a letter to the FAA 9 about not responding. And so almost immediately after 10 taking over this case, my recollection is that it was 11 the Friday of the week I filed my notice of 12 appearance. But I might be mis-recalling it. It 13 might be the following Monday. I called opposing 14 counsel to just generally talk about the case and say 15 hello. There's always informal communication, or 16 there's almost always informal communication that goes 17 on that's not going to be captured in the files, but 18 also specifically to talk about discovery. He was 19 either not in the office or was not available at that 20 time. I don't recall. I left a message specifically 21 asking him to contact me about this, and specifically 22 noting that I wanted to see if there were any 23 obligations that the FAA had at that point. I did not 24 receive a response to that. Later in July, I sent a 25 letter to the respondent, or sorry, to respondent'sIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 43

1 counsel, so to the attorney, not to the client. 2 Again, saying, look, I've called you, I haven't 3 received a response. Please let me know if there are 4 any obligations that the FAA has in this case. If you 5 don't tell me what they are, I can't do it. And I 6 didn't receive a response to that. On August 1st, the 7 respondent finally provided some discovery responses. 8 I was out of the country at the time. Actually, I was 9 back in the office on the Friday. I was out for about 10 a week and a half. And on the following Monday, I had 11 the opportunity to review those responses. So those 12 are the respondent's responses to the FAA's April, 13 2015 discovery request. And I noted in there that 14 there was a line about waiting for the FAA to provide 15 something. It didn't say anything about what, but 16 that they were waiting for the FAA. So on August 17 10th, I again sent opposing counsel an email, again 18 reiterating all of the events that I've just 19 discussed. And again, I did not get a response to 20 that. And so the first time I was able to interact 21 with opposing counsel about what the FAA might need to 22 provide was on August 19th, two days before the end of 23 discovery. And I do not know what reasonably more my 24 client, through myself, could have done, having taken 25 over this case, to try to ascertain what it was thatIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 44

1 the respondent needed, if anything, from the FAA at 2 that point in time. I, as I note in my motions, I and 3 the FAA intend to respond to these April, 2015 4 discovery requests. But if it was important to the 5 respondent to get those responses sooner, I, the FAA, 6 acted with diligence, tried to contact the 7 respondent's attorney about, well, not to try to 8 contact, but contacted respondent's attorney about 9 this. And for reasons I do not know, the respondent 10 declined to interact at that time. And I believe it is 11 inappropriate for the respondent, having declined to 12 interact on this subject for approximately a month and 13 a half, to now assert that the FAA was not acting 14 diligently during this timeframe. 15 THE COURT: Thank you. I'm going to ask you 16 some questions about your assertion that a dispositive 17 motion should be made in this case. But I'm going to 18 reserve that until I hear from Mr. Borth on this 19 diligence issue. Mr. Borth, can you respond to the 20 FAA's oral argument? I've read everybody's material. 21 I should have said. 22 MR. BORTH: Right, okay. 23 THE COURT: If you have anything you would 24 like to highlight or discuss, now would be the time. 25 MR. BORTH: I think that, Judge,In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 45

1 fundamentally I did respond. I had spoken with 2 Counsel on two or three occasions and I also tried to 3 arrange to discuss whatever matters he had. And also, 4 as I've been sending out my discovery to him, I 5 haven't seen any responses from him. He sent me 6 additional discovery and I've sent him, the requests 7 have been, when he sent his discovery, I sent him a 8 request back, the answers promptly. I didn't hear 9 anything back from him on that. In fact, when I sent 10 those he was out of the office. I have a, let's see, 11 I can't respond to these individual phone calls as I 12 really can't tell you when they occurred and I can't 13 do that. But what's really, what's troubling to me is 14 the fact that the easiest way to handle this isn't 15 necessarily coming to me. It's to look at the FAA, 16 I've sent all of my discovery in this case. The FAA 17 had my discovery back in April through the email of 18 Mr. Johnson. Now I'm assuming that Mr. Johnson's email 19 was dultherjohnson@faa.com (phonetic) or whatever that 20 was. I can tell you what it is. It's 21 dultherhjohnson@faa.com. When they decided to change 22 counsel, they would have had all of that information 23 right in the emails that I had been sending, which 24 included this discovery. And yet they didn't do that. 25 I just don't, I can't fathom how that occurs that ifIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 46

1 the, then if you look at the Court's order, the April 2 7th order, that we are supposed to engage in discovery 3 and set out initial disclosures and so forth. It 4 would be simple just to go through that and see in 5 their own files, in their own emails, in their own 6 electronic record what they do and do not have. 7 Instead, Counsel indicates that he calls me to tell 8 him what's deficient and what isn't. And I had done 9 that a number of times, in a couple of conversations I 10 had with him on the phone. And most recently, I talked 11 to him and said, my main concern, and it remains my 12 main concern, is to get these documents, get this 13 discovery from the FAA in time to meet the last 14 deadline. I believe it was September 15th or 18th, I 15 don't have it in front of me. At which time we're 16 supposed to set forth our exhibits that we're going to 17 use at the hearing of this case. And I don't know how 18 else I can explain that, but I worked diligently to 19 get his second wave of discovery done within the 20 timeframe that the Court ordered. And now we're some 21 time after that, about a week after that, and I 22 haven't seen one piece of paper from him other than 23 his motion to continue. And that's my problem. I'm 24 willing to stick with the same order so long as I can 25 get this discovery from them in time to put togetherIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 47

1 the exhibits for the Court and for the opposing 2 counsel. I'm fine with that. And that's the thrust of 3 my problem here and the thrust of my claim for relief 4 is just, if I can just get this information and these 5 answers and give me just a few days to get together my 6 exhibits so I can meet that next deadline, I'm fine 7 with that. So that's where I'm at. 8 THE COURT: I understand. Thank you. Mr. 9 Stevenson, before we move into the summary judgment 10 portion, do you have any reply you'd like to make to 11 the diligence issue? 12 MR. STEVENSON: I do, Your Honor. Perhaps I 13 misunderstood opposing counsel, but it sounded to me 14 as if opposing counsel was saying with respect to me 15 personally, the current FAA attorney, that he had had 16 multiple conversations with me on this subject. And 17 that he had attempted several times to arrange 18 conversations. If I understood him correctly, those 19 assertions are not accurate. I had never spoken to 20 opposing counsel prior to August 19th, 2015. He did 21 not return my contact, and that is memorialized in the 22 written statement that I included for the Court, that 23 I had sent respondent, including my, I believe, July 24 24th, 2015 letter and my August 10, 2015 email, where 25 I talked about how I have not gotten any response.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 48

1 The respondent certainly never emailed or mailed me 2 back to correct anything about my assertions in there. 3 The respondent also did not attempt to arrange 4 anything with me at any time prior to August 17th, 5 2015, when opposing counsel sent me an email 6 indicating that he would like to talk about discovery. 7 I was out of the office on the 17th. I responded back 8 on the 18th saying we could talk on the 19th, and we 9 did. Again, perhaps I misunderstood opposing counsel. 10 Perhaps all those references were with things to my 11 predecessor. But to the extent that those were 12 references to interaction with me, those were not 13 accurate. I would also note that opposing counsel is 14 mistaken about what his obligation here. We as 15 attorneys do have obligations to interact with each 16 other in good faith. Even if there had not been a 17 change in attorney here, it will happen from time to 18 time in cases where documents will get lost, or dates 19 will be confused. And parties in litigation need to 20 interact with each other in good faith to resolve 21 those issues. It sounds like the respondent's position 22 here is that once it has propounded these discovery 23 requests, that even if I am acting with all possible 24 diligence to try to contact them to find out what the 25 status is, what they still need, that they are underIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 49

1 no obligation to interact with me about that. That 2 they can literally wait until discovery is over and 3 then, or two days before discovery is over, two days 4 before discovery ends, to contact me and then after 5 discovery has ended to contact the Court to say, well, 6 now there's a problem because you should have provided 7 this months and months ago when we were declining to 8 interact with you. I do not believe that that is 9 consistent with our obligation to each other or the 10 Court. 11 THE COURT: Thank you, Mr. Stevenson. Mr. 12 Borth, normally I don't turn back to respondent or 13 non-moving party, but I do want to give you an 14 opportunity to identify, if you wish, any particular 15 date that you may have telephoned Mr. Stevenson 16 between the period of July 1st, 2015 and August 19, 17 2015. 18 MR. BORTH: Judge, I really can't. 19 Unfortunately I don't keep a log of my telephone 20 calls. I do have, I have sent him my discovery 21 responses. I sent the request to admit facts mid22 July, and I sent a, I mean, I can't really detail all 23 that. But I can say that I understand, mine is not, 24 Counsel claims that I'm trying to pull something over 25 or something. I don't understand, but they had aIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 50

1 complete file, and if there was incompleteness in 2 their file, I've lost documents myself, Judge, in the 3 course of litigation. But at least I knew I had them 4 in the first place. In this case, until the 19th of 5 August, I can't, I don't know how the Court can 6 consider that diligent to have these discovery, to not 7 look in your own electronic databank to find out what 8 discovery was available and what was submitted. I 9 don't find that diligent at all, and my whole point, 10 again, is just getting this discovery. It shouldn't 11 be that difficult. We talked about it on the 19th of 12 August, and here it is the 31st, and I have yet to see 13 anything. My discovery is very straightforward. 14 THE COURT: Thank you, very much. Mr. 15 Stevenson, I'm going to go to you next and just very 16 briefly, you had indicated that you thought that there 17 was a potential dispositive motion in this case. Can 18 you explain that? 19 MR. STEVENSON: Yes, Your Honor. In, with 20 the proviso, I would note that the FAA does not 21 believe that the respondent discovery obligation has 22 been complied with. So more information, I believe, 23 should be provided here. But the central issue in 24 this case, as presented, as I indicated, is the FAA, 25 that there's no dispute that this flight took place.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 51

1 It was, it is alleged by the FAA to be a charter 2 flight. The respondent defense, as presented through 3 discovery, is that this was not a charter flight 4 because it was a demonstration flight. There are 5 specific requirements for a demonstration flight. 6 There are specific sorts of charges that can be made 7 for it in order to make sure that people are not 8 calling things demonstration flights when they're 9 really charter flights. And the only things that can 10 be charged for a demonstration flight under 91-501 are 11 the specific charges that are tied to the actual costs 12 of operating the flight, such as fuel or if it's an 13 overnight trip and there are travel expenses for the 14 pilot. Or if there are some sort of fee if you're 15 crossing a border, or for landing at an airport they 16 charge a fee for something like that. You can 17 specifically only charge those. In this case, the 18 respondent has asserted they intended for it to be a 19 demonstration flight. It's the FAA's position that in 20 fact they did not intend for it to be a demonstration 21 flight. But that is probably not something that 22 would, that could be resolved on summary judgment. 23 However, the fact at issue here does not have a 24 specific intent. Even if they thought that they were 25 legitimately doing a demonstration flight and theyIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 52

1 weren't, they would still have violated the 2 regulation. So opposing counsel, as opposing counsel 3 indicated, he responded to the request to deem 4 admitted. One of those requests was, admit that, 5 regardless of what you intended, that this does not 6 meet the requirements for a demonstration flight. 7 That was denied. So one of the, almost the only 8 interrogatory that I actually got information out of 9 for the July 7th, 2015. One of those interrogatories 10 was, "For each of these requests for admission that 11 you've denied, please state your basis denying that." 12 And their basis for denying that was, for denying that 13 it was a demonstration flight was, we didn't intend 14 for it to be a demonstration flight. It was not our, 15 I'm sorry, we intended it to be a demonstration 16 flight. Our purpose was for it to be a demonstration 17 flight. That's not a defense. The respondent has 18 admitted in discovery that the passenger here, Dr. 19 Wong, was charged an hourly fee for use of the 20 aircraft. He was billed for fuel. He was billed an 21 hourly fee for the use of the aircraft. And he was 22 also billed a flat fee for pilot services. Other than 23 the fuel, those are not allowable charges for a 24 demonstration flight. They aren't related to the cost 25 of the flight. They are just flat charges that, thoseIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 53

1 are charges you'd expect to see for a charter. But 2 more importantly, for summary judgment purposes, they 3 are not allowable charges for a demonstration flight. 4 And these are disclosures that are in the discovery. 5 They, perhaps there's more going on here. There's 6 additional discovery responses. Perhaps when we make 7 this argument, if we were given the opportunity to 8 make this argument in a dispositive motion, the 9 respondent has more to add on that front or some 10 counter-argument that they haven't presented yet. But 11 the evidence disclosed seems to strongly indicate that 12 this is a case that can be disposed of on summary 13 judgment. But while obviously that was not built in to 14 the schedule at the beginning, when my predecessor was 15 asked about this, he did specifically note that a 16 determination could not be made about whether or not a 17 dispositive motion hearing would be required until 18 discovery. And now that we have discovery, it is 19 clear that this is a very strong candidate for a 20 dispositive motion. 21 THE COURT: Thank you. Mr. Borth, any 22 response? 23 MR. BORTH: Yes, Judge. First of all, I 24 have not one slip of paper from the FAA that verifies 25 anything that he just said. Secondly, in terms of theIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 54

1 billing and so forth, those were all of the questions 2 that I've asked in their request for documents. I 3 have their EIR. It doesn't have any of that stuff in 4 it. And I just, I don't, I have a hard time believing 5 that this case could be handled by way of summary 6 judgment on paper alone when the FAA has done all this 7 investigation, interviewed all the witness, had done 8 all that stuff prior to even filing this case. But 9 then now says, well, now we've got, they say, well, 10 summary judgment's not appropriate until the close of 11 discovery because discovery will identify new 12 documents and things that are going to be necessary 13 for a summary judgment motion. And I don't agree with 14 that entirely, because if they have witnesses that are 15 going to testify or somehow have affidavits in support 16 of a motion for summary judgment, then I would imagine 17 that they should disclose those. And I would have the 18 ability to depose those witnesses in relation to that. 19 But I don't, if this was so clear-cut a motion for 20 summary judgment on paper alone and on regulation 21 alone, I don't know why they didn't do that on day 22 two. I don't understand that at all. I think in this 23 case there are multiple questions of fact respecting 24 whether this is a demonstration flight, which my 25 client claims it is, and the evidence will show it is,In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 55

1 it was. Including the emails that were answered 2 about. I disclosed all of that. And they had some of 3 those. In addition, my client had disclosed those 4 emails and those email transmissions to the 5 investigators who chose not to look at them or even 6 reference them, but rather just decided to bring this 7 case. So I just don't think that the case is right 8 for summary judgment. I think there's multiple 9 questions of fact that would preclude summary 10 judgment. And in light of the fact that we have a 11 trial date set, I'd like to go forward, disclose our 12 witnesses, disclose our exhibits, and try the case. So 13 I just think prolonging it for the sake of prolonging 14 it because the FAA hasn't done anything by way of 15 discovery, and while they have probably some of my 16 discovery responses, including the one that he just 17 detailed with Mr. Pickett. I think if those weren't, 18 I think they were sufficient. I believe they were 19 sufficient. They talked about all the different 20 subject matter that may be brought up. Everyone knows 21 the issues in this case, and if they wanted more from 22 that, I really, I wasn't in a position to provide a 23 lengthy narrative response. They could have handled 24 at that position if they so chose. Not to mention the 25 fact that they had their investigators questioningIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 56

1 them up until the time when I was retained. So my 2 position is the same. I don't think the case is right 3 for summary judgment, and I don't think that delaying 4 the case would serve any judicial economy or any other 5 economy in waiting any further. 6 THE COURT: Thank you. Mr. Stevenson, this 7 is your motion. You have the right of final reply. 8 Do you want to take five minutes or less? 9 MR. STEVENSON: Yes, Your Honor. I do have 10 some more. To try to address the point that opposing 11 counsel raised, opposing counsel is correct that all 12 our inspectors talked to many witnesses. It involves 13 several witnesses probably, several witnesses in that. 14 However, that's not generally going to be sufficient 15 for a summary judgment motion, because that's their 16 recounting of events. One of the purposes of 17 discovery is to get the other side's recounting of 18 events. If an inspector tells me that this flight was 19 charged by the hour and the respondent says, no, it 20 wasn't, and all we have are those people's words, then 21 that is not something that's going to be able to do a 22 summary judgment. But in the discovery response that 23 you have, Your Honor, in response to Interrogatory No. 24 6, on the same one, there is a statement that Premier 25 Group gave us, Birmingham Flight Center, a verbalIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 57

1 estimate of the price per hour for the operation of 2 the aircraft. That's something that was disclosed 3 during discovery. It's something that the respondent 4 is admitting that happened, and they're admitting that 5 in a formal way. I already discussed about the 6 request for admission and the interrogatory to that. 7 Additionally, the fact that the FAA conducted an 8 investigation earlier does not mean that the FAA had 9 everything in front of it. For example, respondent, 10 in their request for production as they noted, asked 11 for a variety of documents, such as billing 12 information and contact. These are things that are 13 held by third parties, not by the FAA. Except what we 14 have in the EIR, which was all provided to them, 15 including documentation that the pilots were charged 16 that will collaborate. The respondent goes into this 17 case with an expensive road map to FAA. The FAA 18 doesn't have that benefit. We have to go through 19 discovery to get that out of a respondent typically. 20 But my, having spoken to opposing counsel on August 21 19th, my, although I do not have an obligation to go 22 to third parties and try to obtain documents since 23 they're not, I mean, true third party is not the FAA's 24 agents in any way. But I'm doing that anyway, because 25 I'm trying to provide the respondent with, as theyIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 58

1 asked for, full and forthright responses to discovery. 2 I spoke to Dr. Wong who now has provided me with an 3 email from the respondent to him, or what appears to 4 be an email from the respondent to him, saying that, 5 talking about hourly rates, talking about the total 6 cost, talking about the crew charges for this. And 7 again, once I have finished trying to go back and talk 8 to my investigators, see if there's, well, that's more 9 of my discovery. But there are, these are things that 10 came up in discovery. So there are billing documents. 11 And it is not helpful to witnesses or, I don't 12 believe, the judicial economy, although obviously that 13 would be Your Honor's call, to go to the time and 14 expense of a hearing on this when opposing counsel, 15 when you asked him, was not able to identify any issue 16 that was actually material fact that would preclude 17 summary judgment. Again, specific response to a 18 motion for summary judgment, maybe he has one. But 19 the fact that he does not, is not able to identify 20 one, that again is an indication that that would be 21 appropriate. On the final point of declaration, I 22 would generally not anticipate a declaration for 23 purposes of summary judgment to be created until 24 around that time. So I continue to not understand 25 opposing counsel's discussions of getting to takeIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 59

1 depositions on, based on declarations filed with 2 summary judgment motion. But, of course, the 3 respondent feels that, if I'm to amend things for 4 depositions, I guess he could make that motion. But 5 there's nothing in the FAA's motion that requires 6 that. Thank you. 7 THE COURT: All right. Thank you both very 8 much for your time and for your arguments and for your 9 written materials. What I'm going to do is this. I'm 10 going to cancel the hearing on November 18th and 19th, 11 2015 currently set for Birmingham, Alabama. That is 12 going to be reset. I am going to grant the FAA's 13 motion for some additional time, and I will find that 14 there has been sufficient diligence presented to the 15 Court to allow for that. Part of the concern that I 16 have is that number one, when the parties met on April 17 7th, 2015, they were agreeing to a very short, set 18 litigation schedule. And they did so both fully 19 cognizant of the fact that it was a very short, set 20 schedule. And it appears to have been derailed by 21 both parties. There has been problems on both sides. 22 Specifically, looking at the April 20, 2015 discovery 23 that was propounded in time pursuant to the April 7th, 24 2015 order. It would have been due under ideal 25 circumstances on or before May 20, 2015. NeitherIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 60

1 party complied with that type of rigorous schedule. 2 And it's understandable why that would be difficult to 3 do, although there are parties who are able to do it. 4 In this case, the only party who has responded so far 5 to the April 20, 2015 mutually exchanged discovery is 6 the respondent. And the respondent's response was not 7 presented to the FAA until August 1, 2015, essentially 8 30 days ago. So the respondent's not, the respondent 9 had difficulty with this short discovery schedule, as 10 well. The respondent has clearly done more work in the 11 discovery arena than the FAA, and I want to thank the 12 respondent for its efforts to try to comply with this 13 difficult schedule. The FAA, however, has had some 14 circumstances that rise to a level of good cause for 15 continuance. Specifically, having a prior attorney 16 begin the process and then leave mid-stream, and leave 17 in such a way so that it made it difficult for the 18 substitute counsel to take up the baton and run down 19 the racetrack. That's not to say that that would be an 20 excuse on any given occasion. We live with the 21 imperfections that are offered to us, especially when 22 we take over cases. But in this particular case, Mr. 23 Stevenson, the substitute counsel, jumped right onto 24 the racetrack and started running down the track. He 25 put in his notice of appearance on July 1, 2015, andIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 61

1 he began contacting respondent's counsel immediately 2 thereafter. Mr. Stevenson then filed a discovery 3 request on July 7, 2015, not knowing that his 4 predecessor had already propounded discovery to the 5 opposing side, and then made efforts from July 7, 2015 6 through August 20, 2015 to replicate, recover, or take 7 action on the file to try and comply with the April 7, 8 2015 deadline. So I cannot find that there has been 9 negligence, carelessness, or lack of attention. 10 Indeed, the Court must find the opposite. I would say 11 that based on what discovery has been presented and 12 filed with this Court, there is activity that both 13 sides need to address. Most importantly, the FAA 14 needs to respond to the respondent's April 20, 2015 15 discovery packet, and that should be the FAA's 16 priority at this point. After the FAA responds to the 17 April 20, 2015 discovery request from the respondent, 18 the FAA can then turn its attention to the discovery 19 that it believes is sufficient. At that point, the 20 FAA should be contacting and discussing those 21 deficiencies privately with Mr. Borth, the 22 respondent's counsel, to see if some agreement can be 23 reached. If not, then the FAA is welcome to file a 24 motion to compel that we can have a more complete 25 dialog about reasonable expectations the FAA may haveIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 62

1 regarding missing discovery. In terms of the 2 dispositive motion, I will grant the FAA's request to 3 have time to make a dispositive motion if it believes 4 that such would be meritorious from the discovery that 5 it has received so far and might receive in the near 6 future. Dispositive motions are, for the most part, 7 time intensive for the attorneys up front, but it 8 saves everyone time and money in the end. And so the 9 Court has a preference for making sure that the 10 parties have speedy, inexpensive resolutions to 11 disputes. Dispositive motions usually will bring 12 those, either if they're granted or not. If they're 13 not granted, they will at least narrow the issue for 14 the trial process so that fewer witnesses might need 15 to be called, less time exerted upon Counsel's time. 16 What we need to do at this point, excuse me, is talk a 17 little bit about some deadlines. And I think it would 18 be helpful, Mr. Stevenson, if you could share with us 19 when you think your client and you can respond fully 20 to the respondent's April 20, 2015 discovery request. 21 Do you have a good sense of how much time that would 22 take and when you could comply? 23 MR. STEVENSON: In order to comply fully to, 24 I guess I'd say the minimum requirements, and I can 25 explain what I mean by that in a moment. Effectively,In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 63

1 it will take however long it takes for my inspectors, 2 who are now scattered across the country, to review 3 their materials and confirm whether or not there is 4 anything that is not privileged and was not in the 5 EIR. And that is, to some extent, a factor of 6 everything else that they have. You can try to impress 7 on someone that this is really important, but we're 8 often, they've also been stuck with end of fiscal year 9 things. So I hope to have responses to that within a 10 week. They have been contacted. They have been 11 contacted ever since I contacted them after I got 12 complete discovery responses August 19th and learned 13 that the FAA had not responded before. And I say the 14 minimum, because as I noted, there are a number of 15 sets of documents that are, seem to be the sort of 16 document that would primarily be in the control of 17 third parties, such as communications between the 18 passenger and the respondent in this case, or bills, 19 or arrangements between the passenger and another 20 aviation company that I believe is in the Birmingham 21 area. If or when those individuals respond or get back 22 to me is entirely out of my control, but as I noted, I 23 don't actually have an obligation to make those 24 contacts anyway. I don't, as I understand the rules, 25 so that should not impede the FAA's responding,In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 64

1 fulfilli ng its obligations under the discovery 2 requests . 3 THE COURT : Okay. This is what I'm going to 4 suggest. Give me a moment, because I'm making some 5 notes. What I'm going to do, Mr. Stevenson, is I'm 6 going to give you a deadline. And if your witnesses 7 have fai led to respond to you by this deadline, then 8 they are basically choosing not to help you. And you 9 may tell them that. You have until September 30th, 10 2015, to file response to the April 20, 2015 discovery 11 packet t hat the respondent propounded to your 12 predeces sor and which you now have. Number two, I'm 13 going to give the two of you a deadline of October 15, 14 2015, by which time you should have discussed the 15 outstand ing discovery if any is left, and any concerns 16 you migh t have about deficient discovery that's in 17 your pos session. And that's for both of you. So that 18 means th at the respondent will have two weeks to look 19 through the discovery that's propounded to it, or the 20 response s to discovery that are provided to it by the 21 FAA on o r before September 30, 2015. And the FAA will 22 have a c hance to look at any supplemental discovery 23 that the respondent may choose to provide after 24 listenin g to this discussion today, between now and 25 October 15, 2015. But essentially I want the two ofIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 65

1 you to be talking to each other between September 30, 2 2015, and October 15, 2015, to determine whether or 3 not a motion to compel by either side is necessary. 4 If a motion to compel is necessary according to your 5 client, then that motion needs to be filed no later 6 than October 30, 2015. In addition, on or before 7 October 30, 2015, I would like the two of you to talk 8 privately and come up with a mutually agreeable, 9 comfortable schedule for filing a dispositive motion, 10 a response, and a reply, as well as a suggestion about 11 what date for a telephone conference on that motion 12 would be mutually available to you. And you're 13 welcome to contact Mr. Smith about various dates on my 14 calendar before you submit this suggestion so that 15 when you suggest some dates, you can pre-reserve, if 16 you will, some of those dates and times on my 17 calendar. Once I get your suggestion, I will either 18 accept it in full or I may tweak it a little bit 19 depending on what comes up in the calendar. Sometimes 20 we have emergency cases that come before us, at which 21 point I have to cancel everything on my calendar and 22 take care of the emergency case. So I always say, 23 with a little bit of a caveat, if you reserve on my 24 calendar, that's usually good. So we can talk about a 25 potential new trial date right now, or we can waitIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 66

1 until you file your recommended suggestion about a 2 dispositive motion deadline. If we do wait, then what 3 I would like you to do is also provide some 4 recommendations regarding a new trial time. Mr. 5 Stevenson, starting with you, what's your preference? 6 MR. STEVENSON: I do not have a preference 7 one way or the other. The, I guess the follow-up 8 question I would have is, to the extent that this 9 information is available, I know that Your Honor's 10 calendar is very full and books up well in advance. 11 So if we were going to have the conversation, either 12 during or after this call, it might be helpful to the 13 extent possible for the parties to know, have some 14 sense of the Court's availability so we're discussing 15 the right timeframe. 16 THE COURT: And, Mr. Borth, any comment or 17 thoughts about it from you? 18 MR. BORTH: I tend to agree with that, but I 19 think if the deadline, I'm looking at the schedule the 20 Court's setting out here. The deadline for motions to 21 compel is October 30th. I would assume, I'm not sure 22 what the date is for the brief, when we're supposed to 23 provide a briefing schedule. I'm assuming that will 24 be some time after that, because if we do have to file 25 a motion to compel, that will have to be handled inIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 67

1 advance of any briefing on a judgment motion, so. 2 THE COURT : Well, your assumption is 3 incorrec t. I would ask you to be filing on or before 4 October 30, 2015 your dispositive motion briefing 5 schedule . So I think you can basically assume that if 6 there is a motion to compel filed on or before October 7 30, 2015 , that the Court will handle that 8 expediti ously. 9 MR. BORTH : Okay. 10 THE COURT : Yes, so a better idea I think to 11 figure o ut contemporaneous with any particular motion 12 to compe l, what your briefing schedule is going to be. 13 Because clearly at this point there has been a lot of 14 informat ion already exchanged. And there may be some 15 addition al information that is required, more specific 16 informat ion ideally. But it doesn't appear that there 17 is a lot of information that's still outstanding, 18 outside of the FAA's obligation to respond completely 19 to the r espondent's discovery requests. So I'm looking 20 at my tr ial calendar, and I'm thinking we should 21 probably set the trial right now, and then you can 22 backtrac k appropriately from that. Today is August 23 31. And I should tell you, if you have not already 24 heard, t hat the other judge who handles these cases is 25 leaving. So for the short time period, my case loadIn Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 68

1 is doubled. So my calendar ... 2 MR. STEVENSON: That's Judge Goodwin? 3 THE COURT: Yes, Judge Goodwin is moving to 4 a wonderful, new opportunity. 5 MR. STEVENSON: Well, good for him. 6 THE COURT: Yes, yes. So I am looking at my 7 2016 calendar. And I'm going to double check with my 8 calendar on my computer, just so that I make sure I 9 don't miss that wall by mistake. How about the week 10 of September 12th, 2016? 11 MR. BORTH: Okay. Let me check. That works 12 for me, Judge. 13 THE COURT: And Mr. Stevenson, how about for 14 you? 15 MR. STEVENSON: Yes, Your Honor. 16 THE COURT: I currently have this case 17 scheduled for two days. We had set it for Tuesday and 18 Wednesday, I believe. Would Tuesday and Wednesday of 19 the week of September 11, 2016 still work? Mr. 20 Stevenson? 21 MR. STEVENSON: I believe so, Your Honor. 22 THE COURT: And Mr. Borth? 23 MR. BORTH: Yes, Judge. 24 THE COURT: Okay, then I'm setting it for 25 hearing on September 13th and September 14th, 2016.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 69

1 This again will be in Birmingham, Alabama, and I will 2 issue an order tomorrow at the very latest I hope, 3 codifying the September 30, 2015 date, the October 15, 4 2015 date, the October 30, 2015 date, and the hearing 5 date. And then I will ask the two of you to look at 6 your calendars accordingly and talk to each other 7 about the summary judgment, motion, response, reply, 8 and suggested telephone conference date. I'll simply 9 caution you, however, that the telephone conference 10 date should be about two months prior to the date of 11 September 13, 2016. So we're talking about having a 12 telephone conference no later than about July 15th, 13 2016. So keep that in mind when you're looking at 14 your potential motion to compel, as well as the 15 motion, response, reply to the dispositive motion. 16 What I'll do then, once I get your October 30, 2015 17 proposed schedule, is I will issue an amended 18 litigation procedural order that will include many of 19 the things that were in the April 7, 2015 order, 20 including, but not limited to, information about when 21 the list of witnesses, exchange of exhibits should be 22 done. When the written stipulations or agreed motions 23 in limine should be done. So you might want to add 24 those kinds of steps that have not yet been reached 25 into your proposed agreed schedule when you file it.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 70

1 So if there's anything that you can think of that you 2 would like to be included in the amended schedule, 3 please let me know and I will include it. Mr. 4 Stevenson, starting with you, is there anything else 5 that we need to address for your client before we 6 close today? 7 MR. STEVENSON: Not anything of substance. 8 During the course of this call I was able to determine 9 the, I don't think it matters, but I was able to 10 determine from Mr. Johnson's particular last day, so I 11 can put that on the record because you had asked about 12 it earlier, if you would like. I suppose that doesn't 13 matter at this point, but other than that, no. 14 THE COURT: When did he leave? 15 MR. STEVENSON: His last day was June 25th. 16 THE COURT: Okay, thank you very much. Mr. 17 Borth, any questions on behalf of your client? 18 MR. BORTH: Nothing further, Judge. 19 THE COURT: Then I thank you both very much 20 for your time and for your lengthy attendance at the 21 motion conference today. It appears our business is 22 complete. I'll look forward to receiving your written 23 materials in the near future. With that, we can go 24 off the record and I wish you all a good day. Thank 25 you.In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 71

1 (WHEREUPON, the hearing was concluded at 3:33 p.m.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 72

1 STIPULATION 2 3 The foregoing matter was taken on the date, and at 4 the time and place set out on the title page hereof. 5 6 It was requested that the matter be taken by the 7 reporter and that the same be reduced to typewritten 8 form. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 251 2 3 4

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**Faye O. LaVoy** 4th September 2015In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 74

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