## SERVED: June 16, 2014

·-";**~~** . --.. 

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

In The Matter Of: AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent 

### WASHINGTON,DC ",:;\! ) ) ) ) ) ) DocketNo. FAA-2013-0291

Case No. 2011S0290032 .' --1 '**~** ; .l

ORDER RESERVING THE RESPONDENT'S SECOND MOTION TO COMPEL

AND DIRECTING THE PARTIES TO ENGAGE IN A RULE 37DISCUSSION

On May 2; 2014, an Order Granting In Part and Denying In Part the Respondent's Motionto Compel Discovery was filed. Pursuantto this May 2, 2014 Order, the FAA was ordered, among otherthings, to fully respond to the Respondent's Interrogatory No.'9, onor before May 14,2014. On May 14, 2014, the parties filed a Joint Motionto Suspend Litigation Dates ("Joint Motion"). This Joint Motionrequested a "suspension" ofthe deposition and discovery schedule, without a specified ending date. (Joint Motion, 1-2). OnMay 15, 2014, an Order GrantingJoint Motion to Suspend Litigation Dates was filed. Among otherthings, this Orderrequired the parties to file a revised litigation schedule on or before June 16, 2014, which would also include an agreed telephone conference date and time. ';J:**t~**

# s

On May 22, 2014, the Respondent filed a second Motionto Compel ("Motion"), inwhich ' it asserted thatthe FAAhad failed to comply withthe May 2, 2014 Order directingthe FAAto fully respond to the Respondent's Interrogatory No.9 on orbefore May 14, 2014. On June 4, 2014, the FAA filed a Response in Opposition to Motionto Compel. ("Response".)

### A. BRIEF DISCUSSION AND ANALYSIS The underlying discovery dispute was first addressed in the May 2, 2014 Order, where the FAA was ordered to fully respond to 'Interrogatory No. 9, on orbefore May 14, 2014. Interrogatory No. 9 states as follows: "Identify all persons consulted by or with Inspectors Bobby Evans, Frank Lipinski and Jack Gasche, including but not limitedto otherFAA Inspectors (e.g., Inspectors assigned to orwho surveilled AMES) concerning the allegations against AMES as set forth inthe Complaint. For each suchperson: a. Identifythe individuai, includinghis or her title andaffiliation, telephone number andbusiness address; and b. Describe in detail the substance ofeach such person's knowledge andhowthat knowledge was acquired." · (R.'s Motion to Compel, Ex. 3 (Mar. 10, 2014)(emphasis added) As noted earlier herein, onMay 14, 2014, the parties informally agreed to "suspend"the deposition and discovery litigation deadlines to an unspecified date. The purpose ofsuch "suspension" was to allowthe parties additional time to conduct discovery. (Joint Motion 1-2.) It was unclear fromthe Joint Motion whether ornot the parties intended to delay the courtordered date ofMay 14, 2014. OnMay 20,2014, the FAA served its Third Response to Respondent's FirstDiscovery Requests ("Third Response"), in which·the FAA responded to Interrogatory No. 9 byproviding the names ofindividuals consulted by the named Aviation Safety Inspectors (Motion, Ex. 2). However, the FAA did notprovide the telephone number orbusiness address ofcertain. individuals, nor describe the substance ofeach individual's knowledge orhowthatknowledge· was acquired (Motion. 2; Ex. 2.) In its May 22, 2014 Motion, the Respondent asserts that the FAA failed to fully answer Interrogatory No.9, and failed.to comply with the court's May 14, 2014 deadline. However, the Respondent agreed that it had not immediately objected to the FAA'sMay 14,2014request for more time beyond May 14, 2014 (Motion, 1.) Given a lack ofobjection orresponse by the Respondent, the FAA'sbeliefthatits May 14, 2014 request for more time had been accepted is understandable. Page 2 of4On May 28, 2014, six (6) days after the Respondent filed rts May 22, 2014 Motion, the FAA served its Fourth Response to Respondent's First Discovery Requests ("Fourth Response"), in which it described the general substance ofeach individual's knowledge. Shortly thereafter, on June 4, 2014, the FAA filed its Response to the Motion, in whichthe FAA asserts multiple defenses. It also asserts that the Respondent has acted in bad faith in bringing the Motion (Response, 1-2). The Respondent is correctthat the May 2, 2014 Orderrequired the FAA to fully respond to Interrogatory No.9. (Motion, 3; 5/2/14 Order, 10.) This Order specifically addressed each subpart oflnterrogatoryNo.9. (!d. at 8.) Therefore, a full response to Interrogatory No.9 would have included each individual's title and affiliation, telephone number and business address, and howthe individual acquired the knowledge proffered. In its Motion, however, the Respondent specifically waived "any further information" with respect to the "list ofindividuals" (number ofand names unidentified) employed with either the Respondent orby its sister company, CCIA. (Motion, 2, fn. 2.) The Respondent also waived the need for any further address information for five (5) specified FAA Safety Inspectors. (Motion, 2, fn. 3.) The FAA is correctthatthe Respondent should have tried to amicably resolve the dispute with the FAA, before filing its second Motionto Compel. (Response, 2 and 11/7/13 Order Setting Litigation Dates and Procedures, 3**~D.)** In addition, this court is not able to readily discern which individuals inthe FAA'sFourth Response the Respondent is now excluding from its request for further information. The Respondent should also be specifically advisingthis court ofthe names ofany FAA Safety Inspectors for whom the FAA still needs to provide telephone and address disclosure, instead ofobliquely referringto missing information. It is not this court'sjobto pore through the proffered discovery, to try and discern- bythe process of elimination- which individuals the Respondent is referencing. Clearly, the Respondent seeks to have greater specificity provided, as outlined in its request for relief. (Motion, 4.) However, the Respondent should specifically identify to the FAA whichportions oflnterrogatoryNo.9 it still seeks to enforce. Priorto any further court order, the parties also need to comply with the Rule 37 directive contained in the 11/7/13 Order. Page 3 of4B. CONCLUSION Pursuantto 14 C.F.R. §§ 13.205(a)(6) and (8), and 13.220(m) and (n), and after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised; IT IS HEREBY ORDERED: 1. The Respondent's second Motionto Compel is reserved. 2. Pursuant to the November 7, 2013 Order, page 3**~** D, the parties are directed to engage in a Rule 37 Discussion regarding any outstanding discovery requested by Respondent's Interrogatory No. 9 and ordered by the court in its May 2, 2014 Order. 3. Afterthe Rule 3 7 Discussion, ifany discovery dispute remains unresolved, the Respondent may renew its second Motion to Compel. 4. In any Motion for Renewal, the Respondent is directed to comply with the November 7, 2013 Order (page 3**~D)** and confirm by a Rule 37 declaration it's good faith efforts to resolve the dispute. The Respondent should also perfect its Motion to Renewby providing a clear, specified list ofwhat discovery is still needed and from which individuals.

Attachment: Service List IVan**~~·mstrative** LawJudge

Page 4 of4SERVICE LIST- BYU.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-Suite2W10001



### 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 FPCX: 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 US. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FPC(: 202-366-7536 · FDMS No. FAA-2013-0291 (Civil Penalty Action)

1 Service was byU.S. Mail. For service inperson orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur WrightBuilding-Suite 2Wl000, Washington, DC 20591; Atte.ntion: Hearing Docket Clerk, AGC-430.