# .

# ·:.~;~:_;.F:,:;:i;o_tt...s. DEPARTMENT oF TRANsPoRTATION

# RECEIVED \0\{'J l\L;lrEDERAL AVIATIONADMINISTRATION 

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In theMatter of: OFFICE OF HEARINGS WASHINGTON, DC 

## APR052013 

# HEARINGDOCKET

FAADOCKET No. FAA-2013-0040
MartinaireAviation, LLC FAA CaseNo.2011SW700189 (Civil PenaltyAction) Respondent FDMS No. FAA-2013-0040

JUDGE GOODWIN 

### MOTION FOR PROTECTIVE ORDER
NOW COMES the Complainant, acting through his Regional Counsel, andmoves the Law Judge for a Protective Order pursuant to Section 26 (c)(1)(D) of the Federal Rules of Civil Procedure regarding deliberative process involvingmaterials, data, information and testimony requestedby Respondent in his Notice of Deposition. In support of this Motion, the Complainant states the following:
1. The Agency seeks a protective order pursuant to the Fedeial Rules of Civil Procedure, Rule 2 6(c)(1)(D)

. Itprovides in part:"

....The courtmay, for good cause, issue an order to protect a party or person from annoyance, embarrassment, , oppression, or undue burden or expense, including orte or more of the following: (D)forbidding inquiry into certainmatters, or limiting the scope of disclosure or discovery;"
The agency seeks this protective order toprevent discovery into matters involving the how the agency arrived at its civil penalty of $206,550.00. The deliberativeprocess privilege generallyprotects documents reflecting the internal opinions and deliberations that are part of the process in which government officialsmake decisions and formulate policies. Dept't ofInterior andBureau ofIndianAffairs v. Klamath Water Users ProtectiveAss'n, 532 U.S. 1,8, 121 S.Ct. 1060, 149 L.Ed 2d. 87 (2001). The information subject to the protection of theprivilegemust be bothpre-decisional and deliberative in nature. DairylandPower Co-op. v. United States, 77 Fed. Cl. 330, 337 (2007).
Apartymay obtain discovery of any relevant matter, not otherwiseprivileged, including requests for information that appear "reasonablycalculatedto the discovery of admissible evidence." Fed. R. Civ. P. 26(b). Acourt, upon motion and good cause, may issue a protective order to prohibit or limit discovery. Fed R. Civ. P. 26(c). MillenniumMarketing Group LLC, et al., v. United States 238 F.R.D. 460, 462 (2006).
2. On March 26, 2013, the parties discussedmutually convenient times to take the depositions. During this discussion the agency attorney informed respondent's attorney it would file a motion for a protective order. On the same day, the parties discussed settlement but no agreement was reached. On March 27, 2013, Respondent Martinaire filed a revisedNotice of deposition. This deposition notice is attached andmarked as exhibitA.
3. Respondent seeks to depose the following persons: DEPONENT: The Complainant's PersonMost Knowledgeable TOPIC OF KNOWLEDGE: The purpose and intent of 49 CFR Section 175.31, Shippingpaperandnotification of**pilot-in~command,** as it applies to thismatter, specificallythe purpose and ends that a notification ofpilot-in command is intendedto serve. DATE/TIME: May 17, 2013 at 9:00 a.m. LOCATION: 2000 East Lamar Boulevard, Suite 600, Arlington, Texas 76006, Telephone (817) 462-4000. DEPONENT: The Complainant's PersonMost Knowledgeable TOPIC OF KNOWLEDGE: The existence, description, nature, custody, condition, and location of any document or other tangible item and the identity and location of anyperson having knowledge of Complainant's purpose for seeking a $206,550.00 penalty in this action. DATE/TIME: May 17, 2013 at 11:00 a.m. LOCATION: 2000 East Lamar Boulevard, Suite 600, Arlington, Texas 76006, Telephone: (817) 462-4600. DEPONENT: The Complainant's PersonMost Knowledgeable TOPIC OF KNOWLEDGE: The existence, description, nature, custody, condition, and location of any document or other tangible item and the identity and location of anyperson having



### 2knowledge of Complainant's basis calculating a civil penalty in the amount of $206,550.00, as sought in this action. DATE/TIME: May 17, 2013 at 1:00 p.m. LOCATION: 2000 East Lamar Boulevard, Suite 600, Arlington, Texas 76006, Telephone: (817) 462-4600. DEPONENT: The Complainant's PersonMost Knowledgeable TOPIC OF KNOWLEDGE: The manner in which Complainant determined that $206,550.00 penalty is reasonable and appropriate in this matter. DATE/TIME: May 17, 2013 at 3:00p.m. LOCATION: 2000 East Lamar Boulevard, Suite 600, Arlington, Texas 76006, Telephone: (817) 462-4600.
4. Complainant objects to discovery of anyperson "having knowledge of Complainant's purpose for seeking a $206,550.00 penalty in this action." Complainant objects to discovery of "anyperson having knowledge of Complainant'sbasis for calculating a civil penalty in the amount of $206,550.00, as sought in this action." In addition, the Complainant objects to discovery of anypersonwith knowledge of "themanner in which Complainant determined that a $206,550.00 penalty is reasonable and appropriate in this matter."
5. The Complainant seeks a protective order to protect inquiries into the above-mentioned areas. How the agency arrived at $206,550.00 is protected from inquiryby the deliberative process privilege.
6. The Agency will produce the Paul Klimas, a Hazardous Material Specialist and Bryan Buchanan, Manager Hazardous Materials. Acurrent curriculumvitae for Paul Klimas and Bryan Buchanan are attached as exhibits Band Cto this motion. The Agency requests the court to limit the scope of discovery to the areas listedbelow. DEPONENT: Paul Klimas, Hazardous Materials Specialist. TOPIC OF KNOWLEDGE: The purpose and intent of 49 CFR Section 175.31, Shippingpaperandnotification ofpilot-in command, as it applies to this matter, specificallythe purpose and ends that a notification of pilot-in command is intended to serve. DATE/TIME: May 17, 2013 at 9:00a.m. LOCATION: 2000 East Lamar Boulevard, Suite 600, Arlington, Texas 76006, Telephone (817) 462-4000. Paul Klimas' current curriculumvitae is attached as exhibit B.

3DEPONENT: Bryan Buchanan, Manager Hazardous Materials Specialist. TOPIC OF KNOWLEDGE: 49 USCS § 5123 (c) Penaltyconsiderations. In determining the amount of a civil penaltyunder this section, the Secretary shall consider-(1) the nature, circumstances, extent, and gravity of the violations; (2) with respect to the violator, the degree of culpability, any history of prior violations, the abilityto pay, and any effect on the ability to continue to do business; and (3) othermatters that justice requires. DATE/TIME: May 17, 2013 at 11:00 a.m. LOCATION: 2000 East Lamar Boulevard, Suite 600, Arlington, Texas 76006, Telephone: (817) 462-4600.
7. In his Notice of Deposition, respondent's attorney also requested the following information: (1) Acurrent curriculumvitae. (2) All writings or documents reflecting date andpurpose of initial involvement in this matter. (3) Writings recordedmemorializing: (a) Correspondence and communications with Federal AviationAdministration agents and employees. (b) Correspondence and communications with Respondent. (c) Correspondence and communications with third parties relating to or obtained in expectation of this matter. (4) All rawdatawhich Complainant's conclusions and opinions about the appropriateness of the civil Penaltyin thismatter arebased. (5) Copies ofall writings, texts, treatises, books, articles, legal opinions, orders, advisory circulars, statutes, regulations, or otherpublications or sources of information Complainanthas reviewed, examinedand/or reliedupon informulating opinions andconclusions as to the appropriateness of the civil penaltyin thismatter. (6) All financial documents generated or receivedby Complainant in connection with the calculation of the civil penaltyin this matter. 

### 4(7) All reports and notes preparedby Complainant during the course of Complainant's review ofmaterials, interviews with witnesses, Federal and State employees, includingbut not limited to the NTSB, the FAA, investigators, technicians, and Respondent representatives.
8. Complainant objects to requests number (4) and (5) above. The Agency asserts that the information requested in (4) and (5) above is protectedby deliberative process privilege. In addition, the agencyhas provided respondent a copy of all the other information requested in its Notice of Deposition. This material is the releasable portions of the EIR. It was sent to respondent's attorney on June 19, 2012. Acopy of this document is attached as Exhibit D. During the informal conference on November 15, 2012, Complainant requested a copy of the last three years of Respondent's tax returns. Respondent provided these tax returns to theAgency.
9. Unless this protective order is imposed on respondent, respondent will breach the deliberative process privileges of Complainant. WHEREFORE the agency requests a protective order limiting the scope of discovery involving sanctions to the purpose and ends that a notification of pilot-in-command is intended to serve and the factors stated in 49 USCS § 5123(c) Penalty considerations and that the respondent be precluded from discovery into the agencies deliberative process involving how the agency arrived at its civil penalty in this case.
Respectfully submitted this 4thday ofApril 2013.

ERIC E. ANDERSON Regional Counsel Southwest Region



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### CERTIFICATE OF SERVICE
Re: Martinaire Aviation, LLC, FAA Case No. 2011SW700189
I hereby certifythat on this date, I have sent via Federal Express an executed original and one copy of theAgency'sMotion For ProtectiveOrder addressed as follows:
Federal AviationAdministration Attention: Hearing Docket, AGC 430 600 IndependenceAvenue, SW Washington DC 20591 Wilbur Wright Building-Suite 2W1000 Washington, DC 20591 (original plus one copy) (Federal Express)
I further certifythat on this date, I have sent via Federal Express a true copy of theAgency'sMotion For Protective Order addressed as follows:
The Honorable Richard C. Goodwin Administrative Law Judge Office of Hearings, M-20 Department of Transportation 1200 New JerseyAvenue, S.W. Washington, DC 20590 FAX: (202) 366-7536 (Federal Express)



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I further certifythat on this date, I have sent via Federal Express a true copy of theAgency'sMotion For Protective Order addressed as follows:
Mr. Michael L. Dworkin andAssociates Law Offices 465 California Street, Suite 210 San Francisco, California 94104-1808 (Federal Express) Telephone: (415) 421-2500 Facsimile: (415) 421-2560

April 4, 2013



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