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In The Matter Of: 

SERVED: December 8, 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC ; '-f. . . :. ·-~ 

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Docket No. FAA-2013-0291 

AIRBORNE MAINTENANCE 

AND ENGINEERING SERVICES 

Respondent 

Case No. 2011S0290032 

ORDER RESERVING THE RESPONDENT'S MOTION 

FOR SANCTIONS, AND DIRECTING THE PARTIES 

TO ENGAGE IN A RULE 37 DISCUSSION 

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On November 21,2014, an Order Denying Motion for Suspension of Litigation, ReExtending Deposition Deadline, and Reconfirming Remaining Litigation Dates was filed. 

On December 2, 2014 the Respondent filed a Motion for Sanctions ("Motion"). As part 

of this Motion, the Respondent seeks exclusion of evidence, on the grounds that that the FAA 

has been non-compliant with the court-ordered discovery schedule. 

On December 5, 2014 the FAA filed a Response to Motion for Sanction ("Response"). 

As part of this Response, the FAA alleges there was good cause for its untimely discovery filing. 

The FAA also asserts that the Respondent's Motion should be denied in full because the 

Respondent has also failed to comply with the court-ordered litigation schedule. 

A. Brief Discussion: 

The Respondent asserts in its Motion that the FAA's expert disclosure statement, filed 

thirteen (13) days late on December 1, 2014, was "unexcused." (Motion, 1.) Although it is 

seeking evidentiary exclusion sanctions, the Respondent acknowledged that it had notcomplied 

with the September 30, 2014 Order (paragraph G) and engaged in a Rule 37 conference with 

FAA counsel. The Respondent explained, however, that it believed the failure ofthe FAA to 
meet its deadline could not be cured by any Rule 37 discussion (Motion, 2 fn 1). Nevertheless, 

the Respondent seeks exclusion of all FAA identified experts, not only because of the missed 

discovery deadline, but also because of discovery "insufficiencies" it alleges exist in the FAA's 

late-filed December 1, 2014 disclosure. 

In Response, the FAA moves for an order denying the Motion in full, because the 

Respondent failed to comply with the September 30,2014 Order (paragraph G). The FAA 

acknowledged that its expert disclosure deadline had been late, and that its deadline had been 

November 19,2014 (Response, 1), but the FAA explained that its attorney had been called out of 

the office from November 18, 2014 through November 31, 2014 for a family medical 

emergency. (Response, 1-2.) The FAA counsel returned to the office on December 1, 2014 and 

sent an email to the Respondent that same day, in which he explained that his lack of action on 

the case since November 18, 2014 was due to a medical emergency. (FAA Exh. F.) In addition, 

as part of the FAA's Response, it asserts that a pre-motion discussion with the Respondent could 

have resulted in some resolution of the discovery discrepancies alleged by the Respondent. 

The Respondent is correct that the FAA failed to comply with the court-ordered deadline. 

However, the FAA is also correct that the Respondent failed to comply with the court-ordered 

Rule 37 conference, and that a non-compliant party might be granted excuse from noncompliance, upon a sufficient showing of good cause.

1 

As previously directed by this court, the parties must try to amicably resolve their 

disputes before any Motions regarding discovery are considered. (11/7/13 Order Setting 

Litigation Dates and Procedures, 3 ~ D; and 9/30/14 Order Granting/Denying Relief, and 

Modifying the Litigation Dates and Procedures, 2-3 ~ G). This includes (but is not limited to) 

discussing whether good cause exists for the FAA's non-compliance with the November 18, 

2014 discovery deadline; what specific insufficiencies might exist in the FAA's late-filed 

December 1, 2014 disclosure; whether or not there is a cure to such alleged insufficiencies; and 

so forth. Upon conclusion ofthe Rule 37 discussion, the Respondent must file a Rule 37(a)(1) 

declaration as directed in the 9/30/14 Order, if it seeks to renew any part of its Motion. 

1 The FAA's footnote assertion that it should be able to engage in unilateral discovery deadline delays (e.g., delays 

without notice to, and agreement with, opposing counsel) and, by such non-compliance with court-orders, force the 

opposing side to spend time and money in filing motions to force compliance via judicial relief (Response, 2, fn. 6), 

will not be addressed in this Order. 

Page 2 of4 
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B. Conclusion 

After reviewing all relevant caselaw, regulations, statutory authority, and being fully 

advised; 

IT IS HEREBY ORDERED: 

1. The Respondent's Motion for Sanctions is reserved. 

2. The FAA's responsive request for an order denying the Respondent's Motion for 

Sanctions in its entirety (Response, 3-4), for failure of the Respondent to engage in a 

Rule 37 conference and submit a declaration of compliance, is denied. 

3. Pursuant to the September 30, 2014 Order, page 2-3 ~ G, the parties are directed to 

engage in a Rule 37 Discussion regarding any/all issues regarding such discovery, 

including (but not limited to) any assertion of good cause delay by the FAA for the latefiled December 1, 2014 discovery, as well as any alleged deficiencies in such late 

discovery disclosure, and whether such deficiencies may be cured. 

4. After the Rule 37 Discussion, if any discovery dispute remains unresolved, the 

Respondent may renew its Motion for Sanctions upon filing a Rule 37 Declaration 

pursuant to the September 30, 2014 Order. 

Attachment: Service List 

Page 3 of4 
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 2Wl 0002 

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 

FAX: 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 

FAX: 202-944-3306 

Judge J.E. Sullivan 

US. 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) 

2 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.