SERVED: May 2, 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In The Matter Of: ) 

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) 

) 

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AIRBORNE MAINTENANCE 

AND ENGINEERING SERVICES 

Respondent 

Docket No. FAA-2013-0291 

Case No. 201180290032 

ORDER GRANTING IN PART AND DENYING IN PART 

THE RESPONDENT'S MOTION TO COMPEL DISCOVERY 

On February 6, 2011 the Respondent served the FAA with its First Set of Set of 

Interrogatories and Document Requests. (R Exh. 3). · 

\! 

. i 

Thirty days later, on March 6, 2011, the FAA served its Response to the Respondent's 

First Discovery Requests. (R. Exh. 1 ). 

The next day, on March 7, 2011, the parties engaged in an email exchange in which they 

provided supplemental explanations regarding their discovery positions. (R. Exh. 2, 1-2). 

On March 11, 2014 the Respondent filed its Motion to Compel Production ("Motion"). 

On March 21,2014 the FAA filed a Response in Opposition to Motion to Compel 

("Response"). 

On March 26, 2014, the Respondent filed its Opposition to Complainant's Motion to 

Compel Production and Reply to Complainant's Opposition to Respondent's Motion to Compel 

("Reply"). 

On April 17, 2014, an Order Granting in Part and Denying in Part the FAA's Motion to 

Compel the Respondent to Answer FAA Interrogatory Nos. 2 and 12 was filed. 

Later that same day, on April17, 2014, an Order Denying in Part and Granting in Part the 

FAA's Motion to Compel the Respondent to Comply with Notices of Deposition was filed. 

Among other things, this Order stated that a separate Order would issue shortly on the 

Respondent's March 11, 2014 Motion to Compel Production. 
• 

A. BRIEF DISCUSSION AND ANALYSIS 

This brief discussion and analysis is limited in scope, and does not address every dispute 

raised by the parties in their submitted materials. However, all facts, legal arguments, and legal 

authority contained in the parties' motions, responses, and replies have been read and fully 

considered. 

The Respondent's March 11,2014 Motion seeks an order compelling the FAA to respond 

fully to the following: 1) the Respondent's First Set oflnterrogatories, specifically Interrogatory 

Nos. 9, 10, 11, and 12; and, 2) the Respondent's First Set of Requests for Document Production, 

specifically Document Request Nos. 2, 4, 5, 6, 7, 8, 9, and 10. 

The FAA objects on multiple grounds, including: 1) the Respondent's First Discovery 

Requests are untimely, because they had not been served on January 28, 2014 (Mot. Exh. 1, 1); 

2) Respondent Interrogatory Nos. 10 - 12 and Document Request Nos. 4 -10 request information 

that is not relevant or admissible, nor does it lead to the discovery of the same (Mot. Exh. 1. 1 ); 

and 3) Respondent Interrogatory No.9 and Document Request No.2 request information that is 

protected by the deliberative process and/or attorney-client privilege. (Mot. Exh. 1, 1-2). 

1. The Timeliness of the Respondent's First Discovery Requests 

On September 17, 2013, the FAA and the Respondent filed separate discove:ry/litigation 

plans, because they had been unable to reach a joint agreement on litigation scheduling. As part 

of the Respondent's proposal, the Respondent suggested delaying the initiation of discovery until 

January 7, 2014, because of the Respondent attorney's trial schedule on an unrelated case. The 

parties discussed this, as well as other matters, during the Litigation Scheduling Conference held 

on November 7, 2013. After discussion with the parties, the date of January 28, 2014 was set as 

the general discovery start date, to allow the Respondent's attorney sufficient time to finish the 

other trial and take actions on this case. 

That same day, on November 7, 2013, an Order Setting Litigation Dates and Procedures 

("LPO") was filed. It directed that "[o]n or before January 28, 2014, the parties shall begin 

serving additional general discovery requests[.]" (LPO 1, ~A-2.) 

The FAA is correct that on or before January 28, 2014, both parties were to begin the 

discovery exchange process. This January 28, 2014 date was set to ensure that discovery was 

initiated, and then conducted in a manner that was efficient, effective, and timely. However, the 

LPO did not specify what discovery needed to be initiated on or before January 28, 2014, nor did 

it say that all discovery needed to be propounded by that date. Rather, it directed the parties to 

begin discovery, for the purpose of ensuring that both parties had sufficient time to serve and 

answer any discovery requests, take depositions, and to move for discovery relief(ifnecessary) 

prior to the LPO discovery deadline of June 6, 2014. 

Page 2 of 10 
As a result, the Respondent is also correct in asserting that the General Discovery Start 

Date is different from other deadlines contained in the LPO (Reply, 13). Nevertheless, the 

January 28, 2014 discovery initiation date was part of the court's discovery order in this case, 

and both parties were expected to comply. 

Pursuant to 14 C.P.R.§ 13.221(n), the court may impose sanctions for a party's failure to 

comply with a discovery order, but such sanctions should be "limited to the extent of the party's 

failure to comply" with the order. 14 C.P.R. § 13.221(n). 

In the case herein, the FAA seeks to prohibit the Respondent from obtaining relief on its 

motion to compel discovery as a sanction for failure to comply with the LPO. The FAA also 

objected, in general, to answering the Respondent's discovery on the grounds of untimeliness, 

asserting that the Respondent's failure to commence discovery on January 28, 2014 should bar 

the Respondent from all discovery process. 

It was undisputed that the Respondent served the FAA with its First Discovery Request 

on February 6, 2014. (Response, 2). This was nine days after the January 28, 2014 General 

Discovery Start Date (!d.). While those lost nine days likely had some impact on the timing of 

the overall discovery process (Opposition, 2), neither party has argued that it has been 

disadvantaged in any substantial way. As a result, the FAA's proposed sanction of precluding all 

Respondent discovery under 14 C.P.R.§ 13.220(n), based on the Respondent's failure to comply 

with the January 28, 2014 general discovery start date, is not persuasive. 

Indeed, the parties are still in the discovery process, and time remains available for 

discovery exchange, as well as motions and relief. If needed, those nine lost days might be 

recaptured by extending the June 6, 2014 deadline to June 18, 2014. But currently, such a courtordered extension, or other type of sanction or "cure" for the noncompliance of the Respondent, 

does not appear required. 

2. The Respondent's Interrogatory Nos. 10, 11. and 12: and Document Request Nos. 4, 5, 6, 

7, 8, 9. and 10. 

The Respondent asserts that it seeks to explore, through the discovery process, the 

potential bias, prejudice, or credibility ofF AA Inspector Lipinski, who was the investigating 

aviation safety inspector in this case. (Mot. 2). 

In response, the FAA argues that Respondent's Interrogatory Nos. 10,1 11,2 and 12,3 and 

Document Request Nos. 4, 5, 6, 7, 8, 9, and 10, 4 seek information that is not relevant to the 

1 In Interrogatory No. I 0, the Respondent asks the FAA to identify all persons with knowledge of or information 

concerning a March 30, 2012 meeting among Dennis Manibusan, then president of Capital Cargo International 

Airlines, Inc. ("CCIA"), W. Joseph Payne, Senior Vice President, Corporate General Counsel & Secretary of Air 

Transport Services Group, Inc. (the parent company of [Respondent] and CCIA), and Robert Talmadge, Manager of 

the FAA's South Florida Certificate Management Office, during which Dennis Manibusan and W. Joseph Payne 

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,, 

allegations in the Complaint or admissible in the case herein. The FAA also argues that the 

requested information would not lead to the discovery of relevant or admissible evidence in this 

case. (Mot. Exh. 1. 1 ). Instead, the FAA asserts that the requested discovery involves "personal 

complaints about an Aviation Safety Inspector" that are beyond the scope of discovery. (Mot. 

Exh. 1, 1). 

In its Reply, the Respondent submitted the Declarations of Mr. James Savastano, Mr. 

John Sullivan, and Mr. W. Joseph Payne. Among other things, Mr. Savastano testified that he 

participated in a March 28, 2012 meeting with FAA Inspector Lipinski, where Inspector Lipinski 

opined that the Respondent was "evil" and characterized the relationship between the FAA and 

the Respondent as a "war." (Reply, Exh. 2, 1). Part of Mr. Payne's testimony confirmed the 

testimony of Mr. Savastano about Inspector Lipinski's statements during the March 28, 2012 

meeting. (Reply, Exh. 2, 5). Both Mr. Savastano and Mr. Payne described their meetings with 

other FAA officials, reporting to the FAA their concerns about Inspector Lipinski's behavior and 

statements. ((Reply, Exh. 2, 1-2, 4-6). Mr. Sullivan, an employee for Air Transport 

International, Inc., also testified about a March 13, 2012 meeting, where Inspector Lipinski 

promised a potential FAA benefit to Mr. Sullivan's business, if his business stopped working 

with the Respondent: ((Reply, Exh. 2, 3). 

complained of intimidating, harassing, abusive and inappropriate conduct on the part oflnspector Frank Lipinski. 

(Mot. Exh. 3 at 8 ~10.) 

2 Interrogatory No. 11 asks the FAA to "identify all persons with knowledge of or information concerning the 

complaints by Dennis Manibusan to Charles Beers, FAA Front-Line Manager, Inspector Frank Lipinski's direct 

supervisor, regarding Inspector Lipinski's intimidating, harassing, abusive and inappropriate conduct, including 

those persons knowledgeable about any FAA investigations ofthe complaints and the conclusions reached or actions 

taken as a result of the complaints." (ld. at 9 ~11.) It should be noted that Interrogatory No. 11 does not specify the 

date(s) of such complaints by Mr. Manibusan. 

3 Interrogatory No. 12 asks the FAA to "identify all persons with knowledge or information concerning a meeting 

held on July 30, 2012 among Inspector Frank Lipinski, John Henderson, an independent contractor then retained by 

Cargo Aircraft Management, Inc. ("CAM"), an affiliate of CCIA, and James Camp, then Manager, Heavy 

Maintenance of CCIA, during which Inspector Lipinski threatened the A&P Licenses of John Henderson and 

Gordon Graves, then Director, Leasing Operations of CAM, because there was a difference of opinion between Mr. 

Henderson and Inspector Lipinski regarding AD documel)tation requirements." (!d. at 10 ~12.) 

4 Requests for Production of Document Nos. 4-10 ask for documents related to the two meetings held on March 30, 

2012 and July 30, 20I2 (Jd. at II ~4, 13 ~9), the complaints made by CCIA President Mr. Manibusan to FAA 

Supervisor Mr. Beers [date(s) unspecified] (I d. at 12 ~5), documents related to two other meetings held on March 

13,2012 and March 28, 20I2 (ld. at I3 ~8 and I2 ~7), documents concerning "any complaints to the FAA by third 

parties regarding intimidating, harassing, abusive or inappropriate conduct by In~pector Frank Lipinski, including 

any documents related to any FAA investigations of such complaints and the conclusions reached or actions taken as 

a result of the complaints" (/d at 12 ~6), and all documents, including but not limited to any communications 

between Inspector Frank Lipinski and Flightstar Aircraft Services, LLC ... concerning the performance of 

[Respondent] of aircraft repair and maintenance services for CCIA, including the decision by CCIA to use 

[Respondent] for such services (!d. at 13 ~10). 

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' 

It has long been established that statements made or adopted by a party are subject to 

attackby the opposing party. 5-806 Weinstein's Federal Evidence §806.02 (2014). In addition, 

the credibility of a party is always subject to attack during cross-examination at trial. (!d.). 

The Respondent is correct tha,t the scope of discovery is broad, and may include matters 

that are not admissible at the hearing. (Mot. Exh. 1, 1-2). 14 C.F.R. § 13.220(e) specifically 

provides that "a party may discover any matter that is not privileged and that is relevant to the 

subject matter of the proceeding." In addition, 14 C.F.R. § 13.220(e) provides in part: "A party 

has no grounds to object to a discovery request on the basis that the information sought would 

not be admissible at the hearing if the information sought during discovery is reasonably 

calculated to lead to the discovery of admissible evidence." See also, Fed. R. Civ. P. 26. 

Nevertheless, the scope of discovery is not unlimited. Even ifthe material sought is 

within the broad scope of the potential reach of pre-trial discovery, such requested discovery 

may be limited based on the needs of the case, the amount in controversy, the parties' resources, 

the importance of the issues at stake in the litigation, and the importance ofthe proposed 

discovery in resolving the issues. 7-37 Moore's Federal Practice- Civil§ 37.22 (2014). 

In support for its Motion to Compel, the Respondent points to In re Bald Mountain Air 

Services, Inc., Docket No. F AA-1999-5770, Order Granting Motion (Jan. 7, 2000). The 

respondent in Bald Mountain asserted that immediately after charging the respondent with the 

FAA safety violations (i.e., by Notice ofProposed Civil Penalty on January 21, 1999), the FAA 

safety inspector began "harassing Petitioners with grossly inappropriate sexually oriented 

emails."5 (/d., Motion to Compel Discovery Responses, 1 (December 27, 1999)). 

In response, the FAA in Bald Mountain agreed that the emails had been sent, and that the 

"Respondent's owners apparently found the content of these messages offensive." (/d., 

Complainant's Response to Respondent's Motion to Compel Discovery Responses, 2 (January 4, 

2000)). The FAA noted, however, that it did not intend to call this particular FAA safety 

inspector as a witness at the hearing. Thus, the FAA argued, any deposition questions addressed 

to the safety inspector during his pre-hearing deposition should be limited to "his investigation of 

the flight referenced in the complaint." (/d.). · 

The Bald Mountain respondent moved for an order compelling the FAA safety inspector 

to answer certain questions at his scheduled, deposition (Bald Mountain, Motion to Compel 

5 Some of these sexual emails contained both video and clip art. Despite a formal demand from the respondents' 

attorney for the sexually-charged emails to cease, the FAA safety inspector continued to send them. Attached to the 

respondent's motion was a 30+ page sampling of the emails. (Bald Mountain., Motion to Compel Discovery 

Responses, 8-45 (December 27, 1999)). The respondent alleged the emails demonstrated a "manifestation of some 

peculiar feelings" towards the respondents, particularly the woman own:r, that were in t~e nature of "a bias and 

prejudice." (/d., Reply to Complainant's Response to Respondent's MotiOn to Compel Dtscovery Responses, 2 

(January 4, 2000)). 

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Discovery Responses, 1 (December 27, 1999)). Initially, the respondent's motion to compel was 

denied. (!d., Order Denying Motion, 1 (January 3, 2000)). 

The Bald Mountain respondent moved for reconsideration, asserting that it would be 

calling the safety inspector as a hostile witness. Upon reconsideration, the court granted the 

motion to compel the safety inspector to answer the deposition questions. (!d., 2000 FAA Lexis 

40 (January 7, 2000)). The Bald Mountain court found that there was "a credible allegation of 

conduct that may evince bias or prejudice that may have affected the inspector's questioning of 

actual or potential percipient witnesses." (!d.). 

Unlike the facts in Bald Mountain, the Respondent in the case herein does not seek to 

propound questions directly to Inspector Lipinski about statements he has made during his 

investigation, or communications he has offered. Instead, in its Interrogatory requests Nos. I 0-

12, the Respondent essentially seeks disclosures from the FAA about what, if any, internal 

communications, actions or "FAA investigations" (Interrogatory No. 11) occurred after the 

Respondent or other persons lodged complaints about Inspector Lipinski. These same requests 

are largely repeated in the Respondent's Requests for Production of Document Nos. 4-10. The 

Respondent also seeks broad-based disclosure of what (if any) other third party complaints about 

Inspector Lipinski may have been filed with the FAA. 

"In ruling on a motion to compel discovery, the court's first determination is whether the 

information sought falls within the broad boundaries of the relevance standard, which makes 

information discoverable if: (1) the information is not privileged, (2) the information is relevant 

to the claim or defense of any party, and (3) the relevant information, if not admissible in 

evidence, appears reasonably calculated to lead to the discovery of admissible evidence." 2-15 

Moore's Manual, Federal Practice and Procedure, §15.41 (2014).Determining relevance is a 

matter of judicial discretion, requiring the trial judge to strike a sensible balance between 

maximum probative value and minimum prejudice. 2-401 Weinstein's Federal Evidence §401.03 

(2014). 

The FAA has alleged that the Respondent failed to perform proper landing gear door 

maintenance on three different Boeing aircraft in August 2009, October 2009, and March 2010. 

(Complaint, 1-3). The FAA has proposed a total civil penalty of$61,875 for the violations, if all 

are proved. Nine (9) violations have been charged. Each carries a maximum penalty of $25,000. 

(!d.) 

The meeting dates for which the Respondent seeks disclosure in Interrogatory Nos. 10-12 

took place in the year 2012. This was three years after the first two violations charged in this · 

case allegedly occurred, and two years after the allegedly faulty maintenance (occurring in 2009 

and 201 0) was discovered by the FAA. The meetings also occurred at least one year after the 

FAA issued its Notice of Proposed Civil Penalty. (Opposition, 4) These temporal gaps between 

the alleged violations, the FAA's discovery of such violations, the timing ofthe FAA's decision 

Page 6 of 10 
--------------------.......... 

to file a civil penalty action, and the dates of the personnel meetings for which discovery is 

sought, weighs strongly against the relevance of such discovery in the case herein. 

There may also be a privilege attached to any internal investigations or personnel actions 

taken by the FAA in 2012 or later towards Inspector Lipinski, in response to any third party 

complaints. This issue need not be reached however, since the Respondent has not shown 

sufficient relevance of the FAA's internal personnel communications, investigations, or actions 

in 2012 regarding Inspector Lipinski, in relation to the issues raised by the complaint. See, In re 

American Airlines, Inc., FAA Order No. 89-0006 (Dec. 21, 1989) (Information sought must be 

relevant and reasonably calculated to discover information regarding the "question of whether 

the violation or violations occurred, and if so, the appropriate civil penalty to be assessed."). 

The FAA's internal pursuit (or lack ofpursuit) on personnel complaints lodged against 

Inspector Lipinski in the year 2012 is not relevant to the question of whether the charged aircraft 

maintenance violations in 2009 and 2010 occurred. Likewise, any intimidating, harassing, 

abusive, or inappropriate conduct by Inspector Lipinski allegedly directed to individuals other 

than, but not directly involving, the Respondent, including "threats" to pull third parties' A&P 

Licenses is not sufficiently linked to this case. 

Nevertheless, the Respondent is correct that statements made or adopted by a party are 

su~ject to attack by the opposing party. 5-806 Weinstein's Federal Evidence §806.02 (2014). In 

addition, the credibility of a party is always subject to attack during cross-examination at trial. 

(!d.). 

Given the status oflnspector Lipinski as th.e primary safety investigator in this case, the 

Respondent's theory that the inspector's perceptions and expressed opinions about the 

Respondent may be relevant is well-taken. An inspector's expressed beliefs and perceptions 

might well color his investigation, his investigation recommendations, or the proposed civil 

penalty amount. 

The Respondent clearly has access to several witnesses who have interacted with 

Inspector Lipinski, and who believe that his investigation or recommendations in Respondent's 

case has been colored by prejudice. These witnesses might be called to testify about any 

potentially inflammatory or negative statements the inspector made about the Respondent. They 

might also testify about complaints they made to FAA personnel about their perceptions of 

Inspector Lipinski's work performance. Such information, if proffered at the hearing, would then 

be assessed for relevance, probity, and weight in regard to the alleged aircraft maintenance 

violations. The Respondent also has the ability to directly question Inspector Lipinski during 

cross-examination about any statements he purportedly made about the Respondent, which might 

serve to establish bias, prejudice, or lack of credibility. 

Lastly, the Respondent's request for disclosure by the FAA of"any communications 

between "Inspector Frank Lipinski and Flightstar Aircraft Services, LLC ... concerning the 

Page 7 of 10 
--------------------.......... . 

performance of [Respondent] of aircraft repair and maintenance services for CCIA, including the 

decision by CCIA to use [Respondent] for such services" (Request for Production of Document 

No. 1 0), might arguably be within the bounds of relevant pre-trial discovery, for a limited period 

of time. However, the Respondent has failed to persuasively present any facts or time period of 

. inquiry regarding why such information involving this specific business - which is not a party to 

the proceedings herein - would be relevant and probative in order to allow the Respondent to 

investigate its defense theory of Inspector Lipinski's potential bias·or prejudice. 

3) The Respondent's Interrogatory No.9. 

In Interrogatory No.9, the Respondent asks the FAA to "identify all persons consulted by 

or with Inspectors Bobby Evans, Frank Lipinski and Jack Gasche, including but not limited to 

other FAA Inspectors (e.g., Inspectors assigned to or who surveilled [Respondent]) concerning 

the allegations against [Respondent] as set forth in the Complaint." Interrogatory No. 9 also 

requests a detailed description of the "substance" of each person's "knowledge and how that 

knowledge was acquired." (Mot. Exh. 3 at 8 ~9.) 

The Respondent is entitled to know the identity of individuals who may have knowledge 

of the facts pertinent to this proceeding. Interrogatory No. 9(a). For example, if multiple FAA 

inspectors viewed the aircraft as repaired, the Respondent may want to compare those 

observations for consistency. 

The general scope of information that the Respondent is entitled to obtain from these 

individuals under Interrogatory No. 9(b) is also discoverable. The FAA should answer 

Respondent's Interrogatory No. 9. 

4) The Respondent's Request for Production No.2 

The Respondent seeks an un-redacted version of the Enforcement Investigative Report 

("EIR"). (Mot. 3-4.) In response, the FAA objects, asserting that the redacted portions of the 

EIR are protected by the deliberative process and/or attorney-client privilege. (Opposition, 7.) 

As an alternative motion, the Respondent requests that the Court perform an in camera review to 

determine whether any privilege(s) exists. (Mot. 5.) 

It is well-established that "the government enjoys a privilege for intra-agency memoranda 

and documents that record the deliberative, pre-decisional process leadi!J.g to an agency 

decision." United States v. Exxon Corp., 87 F.R.D. 624, 636 (D. D.C. 1980); This privilege 

protects both "the administrative reasoning process," Kaiser Aluminum and Chemical Corp. v. 

United States, 157 F.Supp. 9393, 946 (1958), as well as "those thoughts, ideas and analyses that 

encompass the process by which an agency reaches a decision." U.S. v. Exxon, supra, (citing 

United States v. Morgan, 313 U.S. 409,422 (1941). See also, NLRB v. Sears, Roebuck and Co., 

421 U.S. 132 (1975); FAA v. American Airlines, Inc., FAA Docket No. CP89GL0118, Decision 

Page 8 of 10 
and Order (December 20, 1989). The rationale in protecting an agency's pre-decisional 

documents is to protect the consultative process within the government. Kaiser, supra, at 946. 

It is also well-established that an agency may anticipate litigation and, therefore, generate 

material within the work product privilege even before complaint is filed. US v. Exxon, supra, 

at 636. However, "[p ]urely factual investigative information that can be severed from the 

deliberative portions of the documents without compromising the confidential material" is not 

protected by the deliberative process privilege. Petroleum lnf. Corp. v. Dept. of Interior, 976 

F.2d 1429, 1434 (D.C. Cir. 1992))(citing EPA v. Mink, 410 U.S. 73, 87-91 (1973)) .. 

When the government asserts in discovery the deliberative work process privilege or the 

attorney-client privilege,6 such a claimed privilege(s) must be made "in the form of an affidavit, 

rather than a mere assertion in interrogatory or production answers." US v. Exxon, supra, at 

637. Typically, a single document (like the EIR) containing redacted portions of material would 

would be disclosed with both a party's affidavit (or declarative statement), and by an index, 

which designates which pages and paragraphs are withheld, and identifying which privilege 

attaches to each redacted segment. (ld) A mere assertion of the privilege, without a description 

of the document (or document segment) tailored to the assertion, is insufficient. (!d.) 

Upon receipt of the opposing party's affidavit or declaration claiming privilege with the 

accompanying index, the receiving party may decide to accept the claim of privilege, or request 

additional information regarding the privilege, or move for relief. In the case herein, the 

Respondent- as the receiving party of the redacted EIR- has moved to either compel full 

disclosure or, in the alternative, for an in camera review ofthe redacted material and the FAA's 

claim( s) of privilege. 

A party resisting discovery on the ground that the material sought is privileged or 

constitutes work product bears the burden of proving that the asserted privilege or protection 

attaches. 7-37 Moore's Federal Practice- Civil§ 37.22 (2014). The court has the discretion to 

conduct an in camera inspection of disputed materials in order to rule on motions to compel that 

are opposed on grounds of privilege or work product. (!d). See also, United States v. Zolin, 491 

U.S. 554, 569 (1989)( parties who seek to avoid disclosure of documents may be directed to 

make the documents available for in camera inspection.) 

. The Respondent has made a sufficient evidentiary showing to support it's request for an 

in camera review of the redacted portions of the EIR, and the agency's claim ofprivilege(s). 

6 Specific claims of attorney-client privilege must provide additional information. An attorney-client relationship 

alone "is insufficient" to protect documents under the attorney-client privilege. United States v. Exxon Corp., 87 

F.R.D. 624, 6337-638 (D. D.C. 1980)(citing Mead Data Cent. Inc. v. US. Dept. of Air Force, 566 F.2d 242,253 

(D.C. Cir. 1997). 

Page 9 of 10 
B. CONCLUSION 

Pursuant to 14 C.F.R: §§13.205(a)(6), and 13.220, and after reviewing all pleadings, 

motions, relevant caselaw, regulations, statutory authority, and being fully advised; 

IT IS HEREBY ORDERED: 

I. The Respondent's Motion to Compel the FAA to respond to Respondent's Interrogatory 

No. 9 is granted. On or before May 14, 2014, the FAA shall fully respond to 

Interrogatory No. 9. 

2. The Respondent's Motion to Compel the FAA to respond to Respondent's Request for 

Production No. 2 is granted in part. On or before May 14, 2014, the FAA shall file with 

the Office of Hearings a copy ofthe redacted EIR, with an index identifying what 

privilege the FAA is claiming for each redacted section. The FAA shall also provide a 

copy of the un-redacted of the EIR for in camera review. NOTE: The FAA shall serve 

the Respondent and the Hearing Docket with only a copy of the redacted EIR and the 

index identifying the privileges asserted. 

3. The Respondent's Motion to Compel the FAA to respond to Respondent's Interrogatory 

Nos. 10, 11, or 12 and Respondent's Request for Production ofDocuments Nos. 4, 5, 6, 

7, 8, 9, or 10, is denied. 

4. A separate Order will issue after May 14, 2014, addressing the potential disclosure of the 

redacted portions of the EIR. 

Attachment: Service List 

Page 10 of 10 
.. 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2WI0007 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

ONE COPY 

Office of the Regional Counsel, Southern Region 

P. 0. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAJ{: 404-305-5223 

Mr. Robert P. Silverberg 

Respondent's Counsel 

Silverberg, Goldman & Bikoff, LLP 

Georgetown Place, Suite 120 

1101 30th St., N.W. 

Washington, DC 20007 

TEL: 202-944-3300 

FPC(: 202-944-3306 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 · 

TEL: 202-366-6941 

FAX: 202-366-7536 

FDMS No. FAA-2013-0291 

(Civil Penalty Action) 

7 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.