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

\ 0\{'J l\L;lrEDERAL AVIATION ADMINISTRATION 

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In the Matter of: 

OFFICE OF HEARINGS 

WASHINGTON, DC 

APR 0 5 2013 

HEARING DOCKET 

FAA DOCKET No. FAA-2013-0040 

Martinaire Aviation, LLC FAA Case No.2011SW700189 

(Civil Penalty Action) 

Respondent 

FDMS No. FAA-2013-0040 

JUDGE GOODWIN 

MOTION FOR PROTECTIVE ORDER 

NOW COMES the Complainant, acting through his Regional 

Counsel, and moves the Law Judge for a Protective Order pursuant 

to Section 26 (c) (1) (D) of the Federal Rules of Civil Procedure 

regarding deliberative process involving materials, data, 

information and testimony requested by 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) . It provides in 

part: 

" .... The court may, 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 certain matters, or limiting the 

scope of disclosure or discovery;" 

The agency seeks this protective order to prevent discovery into 

matters involving the how the agency arrived at its civil 

penalty of $206,550.00. The deliberative process privilege 

generally protects documents reflecting the internal opinions 

and deliberations that are part of the process in which 

government officials make decisions and formulate policies. 

Dept't of Interior and Bureau of Indian Affairs v. Klamath Water 

Users Protective Ass'n, 532 U.S. 1,8, 121 S.Ct. 1060, 149 L.Ed 

2d. 87 (2001). The information subject to the protection of the 
privilege must be both pre-decisional and deliberative in 

nature. Dairyland Power Co-op. v. United States, 77 Fed. Cl. 

330, 337 (2007). 

A party may obtain discovery of any relevant matter, not 

otherwise privileged, including requests for information that 

appear "reasonably calculated to the discovery of admissible 

evidence." Fed. R. Civ. P. 26(b). A court, upon motion and 

good cause, may issue a protective order to prohibit or limit 

discovery. Fed R. Civ. P. 26(c). Millennium Marketing Group 

LLC, et al., v. United States 238 F.R.D. 460, 462 (2006). 

2. On March 26, 2013, the parties discussed mutually 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 revised Notice of 

deposition. This deposition notice is attached and marked as 

exhibit A. 

3. Respondent seeks to depose the following persons: 

DEPONENT: The Complainant's Person Most Knowledgeable 

TOPIC OF KNOWLEDGE: The purpose and intent of 49 CFR Section 

175.31, Shipping paper and notification of pilot-in~command, as 

it applies to this matter, specifically the purpose and ends 

that a notification of pilot-in command is intended to 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 Person Most 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 any person 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 Person Most 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 any person having 

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knowledge 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 Person Most 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 any person "having 

knowledge of Complainant's purpose for seeking a $206,550.00 

penalty in this action." Complainant objects to discovery of 

"any person having knowledge of Complainant's basis 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 any person with knowledge of "the manner 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 inquiry by the 

deliberative process privilege. 

6. The Agency will produce the Paul Klimas, a Hazardous 

Material Specialist and Bryan Buchanan, Manager Hazardous 

Materials. A current curriculum vitae for Paul Klimas and Bryan 

Buchanan are attached as exhibits B and C to this motion. The 

Agency requests the court to limit the scope of discovery to the 

areas listed below. 

DEPONENT: Paul Klimas, Hazardous Materials Specialist. 

TOPIC OF KNOWLEDGE: The purpose and intent of 49 CFR Section 

175.31, Shipping paper and notification of pilot-in command, as 

it applies to this matter, specifically the 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 curriculum vitae is attached as exhibit B. 

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DEPONENT: Bryan Buchanan, Manager Hazardous Materials 

Specialist. 

TOPIC OF KNOWLEDGE: 49 USCS § 5123 (c) Penalty considerations. 

In determining the amount of a civil penalty under 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 ability to pay, and any effect on the ability to 

continue to do business; and (3) other matters 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) A current curriculum vitae. 

(2) All writings or documents reflecting date and purpose 

of initial involvement in this matter. 

(3) Writings recorded memorializing: 

(a) Correspondence and communications with Federal 

Aviation Administration 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 raw data which Complainant's conclusions and 

opinions about the appropriateness of the civil 

Penalty in this matter are based. 

(5) Copies of all writings, texts, treatises, books, 

articles, legal opinions, orders, advisory circulars, 

statutes, regulations, or other publications or 

sources of information Complainant has reviewed, 

examined and/or relied upon in formulating opinions 

and conclusions as to the appropriateness of the civil 

penalty in this matter. 

(6) All financial documents generated or received by 

Complainant in connection with the calculation of the 

civil penalty in this matter. 

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(7) All reports and notes prepared by Complainant during 

the course of Complainant's review of materials, 

interviews with witnesses, Federal and State 

employees, including but 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 protected by deliberative process privilege. In 

addition, the agency has 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. A copy 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 the Agency. 

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 4th day of April 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 certify that on this date, I have sent via Federal 

Express an executed original and one copy of the Agency's Motion 

For Protective Order addressed as follows: 

Federal Aviation Administration 

Attention: Hearing Docket, AGC 430 

600 Independence Avenue, SW 

Washington DC 20591 

Wilbur Wright Building-Suite 2W1000 

Washington, DC 20591 

(original plus one copy) 

(Federal Express) 

I further certify that on this date, I have sent via 

Federal Express a true copy of the Agency's Motion For 

Protective Order addressed as follows: 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

Department of Transportation 

1200 New Jersey Avenue, S.W. 

Washington, DC 20590 

FAX: ( 202) 366-7 536 

(Federal Express) 

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' .. 

,;· 

I further certify that on this date, I have sent via 

Federal Express a true copy of the Agency's Motion For 

Protective Order addressed as follows: 

Mr. Michael L. Dworkin and Associates 

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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