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 22656
In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 2

1 APPEARANCES

2 ON BEHALF OF THE PLAINTIFF,

3 FEDERAL AVIATION ADMINSTRATION:

4 CHRISTOPHER R. STEVENSON, ESQUIRE

5 FEDERAL AVIATION ADMINISTRATION

6 1701 COLUMBIA 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 BEHALF OF THE DEFENDANT,

13 BIRMINGHAM FLIGHT CENTER INCORPORATED:

14 PAUL BORTH, ESQUIRE

15 BARNETT AND BORTH, LLC

16 800 WAUKEGAN ROAD,

17 SUITE 200

18 GLENVIEW, ILLINOIS 60025

19 TELEPHONE: 847.724.5520

20 FACSIMILE: 815.356.7042

21

22

23

24

25
In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 3

1 EXHIBITS

2 Exhibit Page

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4 F Exhibit F 39

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6 G Exhibit G 39

7

8

9

10

11

12

13

14

15

16

17

18

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25
In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 4

1 HEARING

2 MONDAY, AUGUST 31, 2015

3 1:33 P.M.

4 THE COURT: Okay. We're on the record in

5 the matter of Birmingham Flight Center, Inc. This is

6 docket FAA-2014-0867. Today is Monday, August 31,

7 2015, and the parties have convened for a short

8 telephone motion conference. The FAA is represented

9 by its attorney of record, Mr. Christopher R.

10 Stevenson. 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 also 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 27, 2015. That was the order setting today's

19 motion conference. And essentially that order

20 identified what the current motion set down in terms

21 of filing dates, and I'm just going to reiterate

22 those. On August 25, 2015, the FAA filed a motion to

23 amend schedule to extend discovery and set deadlines

24 for dispositive motions. That same day, August 25,

25 2015, the respondent filed its response to
In 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 the
In 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 at
In 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 across
In 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 your
In 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 in
In 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 how
In 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 been
In 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 seen
In 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 were
In 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 got
In 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 order
In 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. Would
In 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 the
In 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 by
In 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. Stevenson
In 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-day
In 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 the
In 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 just
In 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. The
In 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 average
In 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 the
In 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, I
In 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 my
In 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's
In 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 that
In 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 if
In 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 together
In 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 under
In 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 a
In 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 they
In 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, those
In 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 the
In 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 questioning
In 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 verbal
In 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 they
In 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 take
In 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. Neither
In 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, and
In 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 have
In 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 fulfilling 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 failed 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 that the respondent propounded to your

12 predecessor 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 outstanding discovery if any is left, and any concerns

16 you might have about deficient discovery that's in

17 your possession. And that's for both of you. So that

18 means that the respondent will have two weeks to look

19 through the discovery that's propounded to it, or the

20 responses to discovery that are provided to it by the

21 FAA on or before September 30, 2015. And the FAA will

22 have a chance to look at any supplemental discovery

23 that the respondent may choose to provide after

24 listening to this discussion today, between now and

25 October 15, 2015. But essentially I want the two of
In 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 wait
In 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 in
In 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 incorrect. 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 expeditiously.

9 MR. BORTH: Okay.

10 THE COURT: Yes, so a better idea I think to

11 figure out contemporaneous with any particular motion

12 to compel, what your briefing schedule is going to be.

13 Because clearly at this point there has been a lot of

14 information already exchanged. And there may be some

15 additional information that is required, more specific

16 information 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 respondent's discovery requests. So I'm looking

20 at my trial calendar, and I'm thinking we should

21 probably set the trial right now, and then you can

22 backtrack appropriately from that. Today is August

23 31. And I should tell you, if you have not already

24 heard, that the other judge who handles these cases is

25 leaving. So for the short time period, my case load
In 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.)

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In 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.

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CERTIFICATE OF REPORTER AND SECURE ENCRYPTED

 I, Faye O. LaVoy, do hereby certify that the

 foregoing matter was reported by stenographic and/or 

 mechanical means, that same was reduced to written form,

 that the transcript prepared by me or under my direction, 

 is a true and accurate record of same to the best of my 

 This transcript and certificate have been digitally

 the action filed or its outcome.

 knowledge and ability; that there is no relation nor 

 parties hereto, nor financial or otherwise interest in

 employment by any attorney or counsel employed by the

Court Reporter

SIGNATURE AND DELIVERY OF CERTIFIED TRANSCRIPT

 signed and securely delivered through our encryption

 server.

 IN WITNESS HEREOF, I have here unto set my hand 

 this day of , .

Faye O. LaVoy

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

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1 6:23

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14:1 28:3

29:23 37:25

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 75

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 76

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 77

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 78

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 79

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communication
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42:15 42:16

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counsel

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32:5
In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 81

33:25 35:12

35:18

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43:1

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39:10 39:11

39:14 39:19

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days 5:1

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 82

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 83

discovery

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 84

double

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Exhibit 39:12

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 85

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 86

figure 67:11

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given 28:1

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53:7 60:20
In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 87

Goodwin

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 88

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 89

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 91

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 92

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 97

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In Re: Birmingham Flight Center August 31, 2015 VR # 2162-2 Page 98

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