## SERVED: May 2, 2014
U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

In The Matter Of: ) ) ) ) ) ) AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent DocketNo. FAA-2013-0291

Case No. 201180290032

ORDER GRANTING IN PART AND DENYING IN PART THE RESPONDENT'S MOTION TO COMPEL DISCOVERY

OnFebruary 6, 2011 the Respondent served the FAA with its First Set ofSet of Interrogatories and DocumentRequests. (RExh. 3). · \!

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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 inwhich they provided supplemental explanations regarding their discovery positions. (R. Exh. 2, 1-2).
OnMarch 11, 2014 the Respondent filed its Motion to Compel Production ("Motion").
OnMarch 21,2014 the FAA filed a Response in Oppositionto Motionto Compel ("Response"). OnMarch 26, 2014, the Respondent filed its Oppositionto Complainant's Motionto Compel Production and Reply to Complainant's Opposition to Respondent's Motionto Compel ("Reply").
On April 17, 2014, an Order Granting inPart and Denying in Partthe FAA's Motionto Compel the Respondent to Answer FAA Interrogatory Nos. 2 and 12 was filed. Laterthat same day, on April17, 2014, an Order Denying in Part and Granting inPartthe FAA'sMotionto Compel the Respondent to Comply withNotices ofDeposition was filed. Among otherthings, this Order stated that a separate Order would issue shortly onthe Respondent's March 11, 2014 Motion to Compel Production.

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A. BRIEF DISCUSSION AND ANALYSIS
This briefdiscussion and analysis is limited in scope, and does not address every dispute raised by the parties intheir submitted materials. However, all facts, legal arguments, and legal authority contained inthe parties' motions, responses, and replies have beenread and fully considered. The Respondent's March 11,2014Motion seeks an order compellingthe FAAto 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 ofRequests for Document Production, specifically Document RequestNos. 2, 4, 5, 6, 7, 8, 9, and 10. The FAA objects onmultiple grounds, including: 1) the Respondent's First Discovery Requests are untimely, because they had not been served onJanuary 28, 2014 (Mot. Exh. 1, 1); 2) Respondent InterrogatoryNos. 10

- 12 and Document RequestNos. 4 -10 request information that isnotrelevant or admissible, nor does it lead to the discovery ofthe same (Mot. Exh. 1. 

### 1); and 3) Respondent InterrogatoryNo.9 and Document Request No.2request informationthat is protected bythe deliberative process and/or attorney-client privilege. (Mot. Exh. 1, 1-2). 1. The Timeliness ofthe 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 ajointagreement onlitigation scheduling. As part ofthe Respondent's proposal, the Respondent suggested delaying the initiation ofdiscovery until January 7, 2014, because ofthe Respondent attorney'strial schedule on an unrelated case. The parties discussed this, as well as other matters, during the Litigation Scheduling Conferenceheld onNovember 7, 2013. After discussion withthe parties, the date ofJanuary 28, 2014 was set as the general discovery start date, to allow the Respondent's attorney sufficient time to finish the othertrial and take actions onthis case. That same day, onNovember 7, 2013, an Order Setting Litigation Dates and Procedures ("LPO") was filed. Itdirectedthat "[o]n orbefore January 28, 2014, the parties shall begin serving additional general discovery requests[.]" (LPO 1,**~A-2.)** The FAA is correctthat on orbefore January 28, 2014, both parties were to begin the discovery exchange process. This January 28, 2014 date was setto ensure that discovery was initiated, andthen conducted in a manner that was efficient, effective, andtimely. 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, itdirected the parties to begin discovery, for the purpose ofensuring thatbothparties had sufficienttime to serve and answer any discovery requests, take depositions, and to move for discovery relief(ifnecessary) priorto the LPO discovery deadline ofJune 6, 2014.

Page 2 of 10As a result, the Respondent is also correct in asserting thatthe General Discovery Start Date is different from other deadlines contained inthe LPO (Reply, 13). Nevertheless, the January 28, 2014 discovery initiation date was part ofthe court's discovery order inthis case, and bothparties were expectedto comply. Pursuantto 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 "limitedto the extent ofthe 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 reliefon 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 ofuntimeliness, asserting thatthe Respondent's failure to commence discovery on January 28, 2014 should bar the Respondent from all discovery process. Itwas 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 onthe timing of the overall discovery process (Opposition, 2), neitherpartyhas argued that ithas been disadvantaged in any substantial way. As aresult, the FAA'sproposed sanction ofprecluding all Respondent discovery under 14 C.P.R.§ 13.220(n), based onthe Respondent's failure to comply with the January 28, 2014 general discovery start date, is not persuasive. Indeed, the parties are still inthe discovery process, and time remains available for discovery exchange, as well as motions and relief. Ifneeded, those nine lost days might be recaptured by extendingthe June 6, 2014 deadline to June 18, 2014. But currently, such a courtordered extension, or othertype ofsanction or "cure" for the noncompliance ofthe Respondent, does not appear required. 2. The Respondent's Interrogatory Nos. 10, 11. and 12: and Document RequestNos. 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 inthis case. (Mot. 2). In response, the FAA argues that Respondent's Interrogatory Nos. 10, 1 11,2 and 12,3 and Document RequestNos. 4, 5, 6, 7, 8, 9, and 10, 4 seek informationthat is notrelevant to the

1 In Interrogatory No. I0, the Respondent asks the FAA to identify all persons with knowledge ofor information concerning a March 30, 2012 meeting among Dennis Manibusan, then president ofCapital Cargo International Airlines, Inc. ("CCIA"), W. Joseph Payne, Senior Vice President, Corporate General Counsel & Secretary ofAir 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 Page 3 of 10

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allegations inthe Complaint or admissible in the case herein. The FAA also argues thatthe requested information would not lead to the discovery ofrelevant or admissible evidence inthis
case. (Mot. Exh. 1. 1 ). Instead, the FAA asserts that the requested discovery involves "personal complaints about an Aviation Safety Inspector" that are beyondthe scope ofdiscovery. (Mot. Exh. 1, 1).
In its Reply, the Respondent submitted the Declarations ofMr. James Savastano, Mr. John Sullivan, and 

### Mr. W. Joseph Payne. Among otherthings, 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 characterizedthe relationship betweenthe FAA and the Respondent as a "war." (Reply, Exh. 2, 1). Part of

### Mr. Payne'stestimony confirmed the testimony ofMr. Savastano about Inspector Lipinski's statements during the March 28, 2012 meeting. (Reply, Exh. 2, 5). Both Mr. Savastano and 

### Mr. Payne described theirmeetings with otherFAA 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 benefitto Mr. Sullivan'sbusiness, ifhis business stopped working with the Respondent:((Reply, Exh. 2, 3).

complained ofintimidating, harassing, abusive and inappropriate conduct on the part oflnspectorFrankLipinski. (Mot. Exh. 3 at 8**~10.)**
2 Interrogatory No. 11 asks the FAA to "identify all persons with knowledge oforinformation concerningthe complaints by Dennis Manibusan to Charles Beers, FAA Front-Line Manager, Inspector FrankLipinski'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 ofthe complaints." (ld. at 9**~11.)** It should be noted that Interrogatory No. 11 does not specify the date(s) ofsuch 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 FrankLipinski, John Henderson, an independent contractorthen retainedby Cargo Aircraft Management, Inc. ("CAM"), an affiliate ofCCIA, and James Camp, then Manager, Heavy Maintenance ofCCIA, during which Inspector Lipinski threatened the A&P Licenses ofJohn Henderson and Gordon Graves, then Director, Leasing Operations ofCAM, because there was a difference ofopinion between Mr. Henderson and Inspector Lipinski regarding AD documel)tation requirements." (!d. at 10**~12.)**
4 Requests for Production ofDocumentNos. 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 bythird parties regarding intimidating, harassing, abusive or inappropriate conductby**In~pector** Frank Lipinski, including any documents relatedto any FAA investigations ofsuch complaints and the conclusions reached or actions taken as a result ofthe complaints" (/d at 12**~6),** and all documents, including but not limitedto any communications between Inspector FrankLipinski and FlightstarAircraft Services, LLC

...concerning the performance of [Respondent] ofaircraft repair and maintenance services for CCIA, including the decision by CCIA to use [Respondent] for such services (!d. at 13**~10).** Page 4 of 10

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Ithas long beenestablished that statements made or adopted by a party are subject to attackbythe opposing party. 5-806 Weinstein's Federal Evidence §806.02 (2014). In addition, the credibility ofa party is always subject to attack during cross-examination at trial. (!d.). The Respondent is correcttha,t the scope ofdiscovery 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 "aparty may discover any matter that is not privileged and that is relevant to the subject matter ofthe proceeding." In addition, 14 C.F.R. § 13.220(e) provides inpart: "Aparty has no grounds to object to a discovery request on the basis that the information sought would not be admissible at the hearing ifthe information sought during discovery is reasonably calculated to lead to the discovery ofadmissible evidence." See also, Fed. R. Civ. P. 26. Nevertheless, the scope ofdiscovery is not unlimited. Even ifthe material sought is within the broad scope ofthe potential reach ofpre-trial discovery, suchrequested discovery may be limited based on the needs ofthe case, the amount in controversy, the parties' resources, the importance ofthe issues at stake in the litigation, and the importance oftheproposed 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 BaldMountainAir Services, Inc., DocketNo. FAA-1999-5770, Order Granting Motion (Jan. 7, 2000). The respondent inBaldMountain 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., Motionto Compel Discovery Responses, 1 (December 27, 1999)). In response, the FAA in BaldMountain agreed thatthe emails had been sent, and thatthe "Respondent's owners apparently found the content ofthese 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 inthe complaint." (/d.). · TheBaldMountain respondent moved for an order compelling the FAA safety inspector to answer certain questions at his scheduled,deposition (BaldMountain, Motionto Compel

5 Some ofthese sexual emails containedboth video and clip art. Despite a formal demand from the respondents' attorney for the sexually-charged emails to cease, the FAA safety inspector continuedto sendthem. Attached to the respondent's motion was a 30+page sampling ofthe emails. (BaldMountain., Motion to Compel Discovery Responses, 8-45 (December 27, 1999)). The respondent alleged the emails demonstrated a "manifestation ofsome peculiar feelings" towards the respondents, particularly the woman own:r, that were in**t~e** nature of"abias and prejudice." (/d., Reply to Complainant's Response to Respondent's MotiOn to Compel Dtscovery Responses, 2 (January 4, 2000)). Page 5 of 10

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Discovery Responses, 1 (December 27, 1999)). Initially, the respondent's motionto compel was denied. (!d., Order Denying Motion, 1 (January 3, 2000)). The BaldMountain 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 inspectorto answerthe deposition questions. (!d., 2000 FAA Lexis 40 (January 7, 2000)). The BaldMountain court found that there was "acredible allegation of conduct that may evince bias orprejudice that may have affectedthe inspector's questioning of actual orpotential 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. I0- 12, the Respondent essentially seeks disclosures from the FAA about what, ifany, internal communications, actions or "FAA investigations" (Interrogatory No. 11) occurred afterthe Respondent or otherpersons lodged complaints about Inspector Lipinski. These same requests are largely repeated inthe Respondent's Requests for Production ofDocumentNos. 4-10. The Respondent also seeks broad-based disclosure ofwhat (ifany) otherthird party complaints about Inspector Lipinski may have been filed with the FAA. "Inruling on a motionto compel discovery, the court's first determination is whether the information sought falls within the broad boundaries ofthe relevance standard, which makes information discoverable if: (1) the information is not privileged, (2) the information is relevant to the claim or defense ofany party, and (3) the relevant information, ifnot admissible in evidence, appears reasonably calculated to lead to the discovery ofadmissible evidence." 2-15 Moore's Manual, Federal Practice andProcedure, §15.41 (2014).Determiningrelevance is a matter of judicial discretion, requiring the trialjudge to strike a sensible balancebetween maximum probative value and minimum prejudice. 2-401 Weinstein's Federal Evidence §401.03 (2014).The FAAhas 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 FAAhas proposed a total civil penalty of$61,875 for the violations, ifall
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 inthe 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 2010) was discovered by the FAA. The meetings also occurred at least one year after the FAA issued its Notice ofProposed Civil Penalty. (Opposition, 4) These temporal gaps between the alleged violations, the FAA's discovery ofsuch violations, the timing ofthe FAA's decision
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to file a civil penalty action, and the dates ofthe personnel meetings for which discovery is sought, weighs strongly against the relevance ofsuch discovery inthe case herein. There may also be a privilege attached to any internal investigations orpersonnel actions taken by the FAA in 2012 orlatertowards InspectorLipinski, inresponse to any third party complaints. This issue need not be reached however, since the Respondent has not shown sufficient relevance ofthe FAA's internal personnel communications, investigations, or actions in2012 regarding Inspector Lipinski, in relation to the issues raised bythe complaint. See, In re AmericanAirlines, Inc., FAA OrderNo. 89-0006 (Dec. 21, 1989) (Information sought must be relevant and reasonably calculated to discover information regarding the "question ofwhether the violation orviolations occurred, and ifso, the appropriate civil penalty to be assessed."). The FAA's internal pursuit (or lack ofpursuit) on personnel complaints lodged against Inspector Lipinski in the year2012 is not relevant to the question ofwhetherthe 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, butnot directly involving, the Respondent, including "threats"to pull thirdparties' 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 ofa party is always subject to attack during cross-examination at trial. (!d.). Giventhe status oflnspectorLipinski 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 iswell-taken. An inspector's expressed beliefs and perceptions might well color his investigation, his investigationrecommendations, orthe proposed civil penalty amount. The Respondent clearly has access to several witnesses who have interacted with Inspector Lipinski, and who believe that his investigation orrecommendations 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 InspectorLipinski's work performance. Such information, ifproffered at the hearing, would then be assessed for relevance, probity, and weight inregard 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 ofcredibility. Lastly, the Respondent's request for disclosure by the FAA of"any communications between "InspectorFrank Lipinski and Flightstar Aircraft Services, LLC

...concerning the Page 7 of 10

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performance of[Respondent] ofaircraft repair and maintenance services for CCIA, including the decision by CCIA to use [Respondent] for such services" (Request for Production ofDocument No. 1 0), might arguably be within the bounds ofrelevant pre-trial discovery, for a limitedperiod oftime. However, the Respondent has failed to persuasivelypresent any facts ortime 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 orderto allowthe Respondent to investigate its defense theory ofInspector Lipinski's potential bias·orprejudice. 3) The Respondent's Interrogatory No.9.
In Interrogatory No.9, the Respondent asks the FAAto "identify all persons consulted by
orwith Inspectors BobbyEvans, Frank Lipinski and Jack Gasche, including butnot limited to otherFAA 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 ofthe "substance" ofeach person's "knowledge and howthat knowledge was acquired." (Mot. Exh. 3 at 8**~9.)** The Respondent is entitled to know the identity ofindividuals who may have knowledge ofthe facts pertinentto this proceeding. Interrogatory No. 9(a). For example, ifmultiple FAA inspectors viewed the aircraft as repaired, the Respondent may want to comparethose observations for consistency. The general scope ofinformation that the Respondent is entitledto 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 ProductionNo.2 The Respondent seeks an un-redacted version ofthe Enforcement Investigative Report ("EIR"). (Mot. 3-4.) In response, the FAA objects, asserting thatthe redacted portions ofthe EIR are protected by the deliberative processand/or attorney-client privilege. (Opposition, 7.) As an alternative motion, the Respondent requests that the Courtperform an in camera reviewto determine whether anyprivilege(s) exists. (Mot. 5.) Itis 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." UnitedStates v. Exxon Corp., 87 F.R.D. 624, 636 (D. D.C. 1980); Thisprivilege protects both "the administrative reasoning process," KaiserAluminum andChemical Corp. v. UnitedStates, 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 UnitedStates v. Morgan, 313 U.S. 409,422 (1941). See also, NLRB v. Sears, RoebuckandCo., 421 U.S. 132 (1975); FAA v. AmericanAirlines, Inc., FAA DocketNo. CP89GL0118, Decision

Page 8 of 10and Order (December 20, 1989). The rationale inprotecting an agency's pre-decisional documents is to protect the consultative process within the government. 

### Kaiser, supra, at 946. Itis also well-established that an agency may anticipate litigation and, therefore, generate material within the work productprivilege even before complaintis filed. 

### US v. Exxon, supra, at 636. However, 

### "[p]urely factual investigative information that can be severed from the deliberative portions ofthe documents without compromising the confidential material" is not protected by the deliberative processprivilege. 

### 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 orthe attorney-client privilege,6 such a claimed privilege(s) must be made "inthe form ofan affidavit, rather than a mere assertion in interrogatory orproduction answers." 

### US v. Exxon, supra, at 637. Typically, a single document (like the EIR) containing redacted portions ofmaterial would would be disclosed withboth a party's affidavit (or declarative statement), and by an index, which designates whichpages andparagraphs are withheld, and identifying whichprivilege attaches to eachredacted segment. (ld) A mere assertion ofthe privilege, without a description ofthe document (or document segment) tailored to the assertion, is insufficient. (!d.) Upon receipt ofthe opposingparty's affidavit ordeclaration claiming privilege withthe accompanying index, the receiving party may decide to accept the claim ofprivilege, orrequest additional informationregarding the privilege, ormove for relief. Inthe case herein, the Respondent- as the receiving party ofthe redacted EIR- has moved to either compel full disclosure or, in the alternative, for an 

### in camera review oftheredacted material and the FAA's claim(s) ofprivilege. A party resisting discovery on the ground that the material sought is privileged or constitutes work product bears the burden ofproving that the asserted privilege orprotection attaches. 7-37 

### Moore's Federal Practice- Civil§ 37.22 (2014). The courthas the discretion to conduct an 

### in camera inspection ofdisputed materials in order to rule onmotions to compel that are opposed on grounds ofprivilege or work product. (!d). See also, 

### UnitedStatesv. Zolin, 491 U.S. 554, 569 (1989)( parties who seek to avoid disclosure ofdocuments may be directed to make the documents available for in camerainspection.)

. The Respondent has made 

### a sufficient evidentiary showing to support it'srequest for an 

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

6 Specific claims ofattorney-client privilege must provide additional information. An attorney-client relationship alone "is insufficient" to protect documents under the attorney-client privilege. UnitedStates v. Exxon Corp., 87 F.R.D. 624, 6337-638 (D. D.C. 1980)(citingMeadData Cent. Inc. v. US. Dept. of AirForce, 566 F.2d 242,253 (D.C. Cir. 1997).

Page 9 of 10B. 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 orbefore May 14, 2014, the FAA shall file with the Office ofHearings a copy oftheredacted EIR, with an index identifying what privilege the FAA is claiming for each redacted section. The FAA shall also provide a copy ofthe un-redacted ofthe EIR for 

### in camera review. NOTE: The FAA shall serve the Respondent and theHearing Docket with only a copy ofthe redacted EIR and the index identifying the privileges asserted.
3. The Respondent's Motionto Compel the FAA to respond to Respondent's Interrogatory Nos. 10, 11, or 12 and Respondent's Request for Production ofDocumentsNos. 4, 5, 6, 7, 8, 9, or 10, is denied. 4. A separate Order will issue after May 14, 2014, addressing the potential disclosure ofthe redacted portions ofthe EIR.

Attachment: Service List

Page 10 of 10

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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-Suite2WI0007

Mr. Christopher R. Stevenson Complainant's Counsel Federal Aviation Administration ONE COPY

Office ofthe 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. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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.