### SERVED: November 26,2013

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### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

In The Matter Of: ) ) ) ) ) ) LIBERTY FOUNDATION, INC. Respondent DocketNo. FAA-2012-0477

Case No. 2011-GL-03-0070

ORDERDENYING RESPONDENT'S MOTIONTO STRIKE, AND GRANTING/DENYING OTHERRELIEF l ,_- ·: •") !_ ;;_ ;,_• ;**~--·** - L**~._.'·**

On August 27,2013, an Order Cancelling November 2013 Hearing and Granting/Denying Other Reliefwas filed. Among otherthings, this Order provided the parties a brieftime period ofAugust 23, 2013- December 20, 2013 to conduct additional discovery arising from the five new allegations in the FAA'sJuly 31, 2013 Amended Complaint. On October 29, 2013, the Respondent's Motion to Strike Complainant's Objections to Respondent's Limited Discovery Requests ("Motion to Strike") was filed. OnNovember4, 2013, the FAA filed FAA's Response in Opposition to Respondent's Motionto**Stri~e** ("FAA's Response") and FAA's Motion to Compel was filed. These were contained in a single document but will be referred to separately. OnNovember 6, 2013; the Respondent filed Respondent's Motion to Compel. OnNovember 12, 2013, the FAA filed FAA'sResponse in Opposition to Respondent's Motionto Compel. OnNovember 12,2013,the Respondent filed its Response to FAA'sMotion to Compel and a Request for Telephonic Conference. These were contained in a single document but will be referred to separately. OnNovember 14,2013,the FAA filed FAA's Reply in Support ofFAA's Motion to Compel ("FAA Reply"). This Order separately addresses all four motions below.**~-,-;"if/!**

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.**~ ~--"**  : • '--o'I. Respondent's October 29, 2013 Motion to Strike The Respondent moved to strike the FAA's objections to Respondent's limited discovery requests (i.e., interrogatories and requests for production) onthe grounds thatthe FAA's objections were untimely filed. The Respondent did not, however, state what specific reliefit sought ifthe objections were stricken (e.g., objections deemed waived, certain pleadings struck, discovery compelled, certaintestimonyprecluded, etc.). The Respondent did not include a Civ. R. 37(a)(l)declaration with its motion.

a. Applicable Order and Regulation re Motion to Strike The Respondent cites to the August 27,2013 Order CancellingNovember 2013 Hearing and Granting/Denying Other Reliefas legal supportfor its motion. I The August 27, 2013 Order, Paragraph 6 provided: Pursuantto 14 C.F.R. 

### § 13.220(f)-(k), any objection(s) ormotions regarding additional discovery shall be filed withinten (10) days afterreceipt. Pursuant to 14 C.F.R. § 13.220(m) and Paragraph Dherein, any motions to compel for deficientinterrogatoryresponses shall be filed withten (10) days after receipt of the objection or deficient answer. The August 27, 2013 Order, Paragraph D also provided:

I D. Any Motions regarding discovery, including a Motion to Compel Discovery, must be filed within ten (10) calendar days after service ofa deficient response or after the response to the discovery is due, whichever occurs first. Motions to Compel and other discovery motions mustbe accompanied bythe relevant discovery requests and responses, and a declaration by the moving party, pursuant to Civ. R. 37(a)(l),thatthe movanthas conferred or attempted to confer in good faith withthe party alleged to have failed to make discovery or disclosure. The Civ. R. 37(a)(1) declaration shall specifically indicate the efforts made by the movantto resolve the dispute and identify which discovery matters remain in dispute. Statements in opposition to discovery motions must be filed within ten (10) calendardays after service ofthe motion. The failure to timely file objections to discovery may result in the objections being deemed waived. Belated service ofburdensome discovery requests may also be grounds for denial ofa motionto compel compliance with suchrequests. Althoughthe Respondent did not cite to it, 14 C.F.R. 

### § 13-.22l(n)(1) provides that a party may file a motionto strike a limitedportion ofthe pleadings when anotherparty fails to comply with a discovery order. In addition, 14 C.F.R. § 13.221(n)(2-4) allows alternate remedial sanctions for a party'snon-compliance with a discovery order (i.e., precluding discovery motions, and/or admission ofcertain evidence, and/or admission ofcertain testimony).

Page 2 of 10b. Summary ofParties' Arguments The Respondent asserted thatthe August 27, 2013 Order, Paragraph 6required thatthe FAA file any objectionto requested discovery within 10 days ofreceipt ofsuch discovery. Itwas undisputed thatthe FAA received, viafax, Respondent's Requests on 9111/13. (Mot. to Strike 1; FAA's Resp. 

### 1.) The FAA did not serve its Response to Limited Discovery Requests until October 17, 2013 (by mail)- 36 days after receipt. The Respondent did notreceive the Responses sent by mail until October 22, 2013. (Mot. to Strike 1.) Therefore, the Respondent asserted thatthe FAA's objections were untimely and shouldbe stricken. In response, the FAA argued that August 27,2013 Order's 10-daytime for filing objections applied only to filing specialized objections, pursuantto 14 C.F.R. § 13.220(f)-(k), and not to routine discovery objections pursuantto 14 C.P.R. 

### § 13.220(d), which allow for a 30 day response time absent agreement or court order (FAA's Resp. 2-3.) In support ofthat interpretation, the FAApointed outthat the Respondent's Answers to Limited Discovery were not served until October 8, 2013 (i.e., 26 days after receipt), demonstratingthatboth parties interpreted the 10 day filing requirement in paragraph 6to apply only to specialized objections. 

### (!d. at 3.) Even under this 30 day interpretation, the FAA agreed that it had served its discovery 6 days late (i.e., on October 17, 2013). The FAA argued, however, that good cause existed to excuse the late service (i.e., birth ofchild and government furlough). In the alternative, the FAA argued that ifthe 1 0-day time for filing objections appliedto its discovery objections, the birth oftheFAA attorney's daughter on September 22, 2013, and the FAA attorney's family leave, shouldbe deemed good cause for any late filing. (Jd.)

c. Analysis The FAA's argumentregarding the interpretation ofParagraph 6 is correct. Therefore, the FAA's discovery responses and objections were due on orbefore October 11,2013 (i.e., the 30th day after receipt ofthe requested discovery). Itwas undisputed that the FAA served its objections 6 days late (i.e., on October 17, 2013). As the Respondent points out, a failure to timely respond/object to discovery waives the right to object, absent compelling circumstances. (Resp'tMot. to Compel 2.) The issue then is whetherthe FAA had good cause for serving its objections by U.S. mail6 days late. The August 23, 2013 transcript record reflects that the FAA attorney orally notified the Respondent andthis administrative court ofhis potential unavailability during the months of September and October 2013 because ofthepending birth ofhis child (8/23/13 Tr. 66:4-17). During the August 23, 2013 motion conference, the parties were asked to work together within the modified litigation schedule to accommodate the FAA attorney's pending family leave (8/23/13 Tr. 65:8-69:22). Itis undisputed thatthe FAA attorney's daughter was born on September 22,2013. (FAA's Resp. 3.) The birthresulted in the FAA attorney being absent from the office from September 23-0ctober 1, 2013. (!d. at 1-2.) Then, the government was Page 3 of 10partially shut down from October 1-16, 2013, during which time the FAA attorney was forbidden towork. The government re-opened on October 17, 2013. The FAA attorney returned to work that same day, and servedthe FAA'sresponses and objections to the Respondent's requested discovery that same day. The FAA is correct in statingthat it was impossible for it to serve its objections and responses on October 11, 2013, during the period ofthe partial government shut-down (i.e., October 1, 2013- October 16, 2013), when the FAA attorney was prohibited from working. The FAA has shown good cause for filing its objections 6 days late. The Respondent's Motion to Strike is denied.



### II. Respondent's November 6, 2013 Motion to Compel The Respondent seeksto compel complete responses to Interrogatories 1-5 and Requests for Production2 and 3 ofRespondent's Requests. Each interrogatory correspondsto one ofthe new allegations contained in the Amended Complaint and requests the identity ofthe witnesses that will testify regarding the allegation. Each ofthe subparts B-E ofthe interrogatory requests additional information onthe witnesses identified in subpart A. The Respondent's Motion to Compel onlyprovides a detailed argument regarding Interrogatory 1. Asproofofcompliance with Civ. R. 37(a)(1), the Respondent submitted a briefemail string between the parties. In this email communication, the Respondent requested a telephone conference withthe FAA, but did not clearly state that it sought a Civ. R. 37(a)(1) meeting. In response, the FAA declinedthe Respondent's request to talk about any discovery disputes, and requested all communications in writing (11/6/13 Respondent's Motion To Compel, 4; Exhibit E).



### a. Applicable Order and Regulation re Respondent's Motion to Compel The previously cited paragraphs in the August 27, 2013 Order Cancelling November 2013 Hearinf and Granting/Denying OtherReliefremain applicable. In addition, both 14 C.F.R. § 13.220(m) and 14 C.F.R. § 13.220(fiare applicable.

1 14 C.F.R. § 13.220(m) states: A party may make a motion to compel discovery ifa person refuses to answer a question during a deposition, a party fails orrefuses to answer an interrogatory, ifa person gives an evasive or incomplete answer during a deposition orwhen responding to an interrogatory, ora party fails orrefuses to produce documents ortangible items.

2 14 C.F.R. § 13.220(f) states: The administrative lawjudge shall limit the frequency and extent ofdiscovery permitted by this section ifa party shows that-(I) The information requested is cumulative orrepetitious; (2) The information requested can be obtained from another less burdensome and more convenient source; (3) The party requestingthe information has had ample opportunity to obtain the information through other discovery methods permitted under this section; or (4) The method orscope'Ofdiscovery requested by the party is unduly burdensome orexpensive. Page 4 of 10b. Summary ofParties' Arguments The Respondent'srenewed arguments regarding the FAA'suntimely responses are identical to arguments made in its Motion to Strike. (Mot. to Compel 1-2.). The Respondent also arguedthat 

### ithad "an absolute rightto know which ofFAA's witnesses will testify" onthe new allegation that the aircraft was "unsafe for flight" and which documents the FAArelied upon in support ofsuch testimony. 

### (!d. at 3.) The Respondent asserted that the FAA's objections/responses to Interrogatories 1-5 was only a partial answer (i.e., that the "witnesses have previously been identified"), because there is no response or objectionto each ofthe subparts. (/d.) In response, the FAA asserted that ithad already disclosed to the Respondentthe basis for the new allegations, as well as the names ofits witnesses and the documents that established the allegations. (FAA's Response 3-4.) In support ofthis argument, the FAA pointed to the August 26, 2013 Order, whereinthis administrative court ruled upon four separate Respondent motions, filed afterthe FAA served its July 31, 2013 Amended Complaint. 

### (!d. at 2.) The FAA also argued that 

### ithad disclosed the requested information both in the Amended Complaint as well as in the FAA'sMotion for Summary Judgment, which is 40 pages long, and has 200 pages ofexhibits attached. 

### (/d. at 3.)

c. Analysis The Respondent's timeliness arguments are noted. Given the unique facts involving the FAA attorney's anticipated family leave, and the unanticipatedpartialgovernment shut-down, the Respondent'srequestfor reliefon the basis ofuntimeliness is notpersuasive. The FAA's argument asserting discovery completion is also not persuasive, in part because it misconstrues this administrative court's August 26, 2013 Order addressing four prior Respondent motions filed on August 7, 2013. This includedthe Respondent's motion to compel the FAAto disclose its witnesses and documents relatedto the five new allegations in the FAA's July 31, 2013 Amended Complaint, priorto requiring the Respondent to file an Answerto the Amended Complaint. In essence, althoughthe August 26, 2013 Order grantedthe Respondent's motion to order the FAA to disclose its witnesses and documentation onthe Amended Complaint, it also found that such general discovery had beenprovided, basedonthe FAA's August 23, 2013 oral assertion. Itmust be pointed outthat such general identification is considered initial discovery, as identified by Civ. R. 26(a)(1), which is made at the beginning ofa complaint process, prior to a litigation scheduling conference. The August 26, 2013 Order then directed the Respondent to file an Answer to the Amended Complaint, and for the parties to conduct additional, specific, discovery exchange limitedto the 5new allegations in the Amended Complaint. One day later, on August 27, 2013, a new litigation scheduling Order was issued, that specifically codified the deadlines the parties had discussed and agreed to on August 23, 2013 for limited discovery on the five new allegations.

Page 5 of 10The FAA's argument ignores its obligationto respond in good faith to reasonable discovery requests. The Respondent is not asserting that it does not knowthe names ofall the witnesses that may be called by the FAA or-otherthan for Interrogatory 1-thegeneral contents ofeach witness's testimony. Rather, the Respondent is requesting that the FAA specify, from its general knowledge ofits witnesses and their testimony, which witnesses and information will be addressing each ofthe five new allegations. The FAA's assertionthatthe Respondent shouldbe able to figure this outby studying eitherthe FAA'sAmended Complaint and/or its voluminous Motion for Summary Judgment is not persuasive. A requesting party in discovery exchange is not supposed to be sent on a solitary scavenger huntfor information. Indeed, one ofthe purposes ofdiscovery exchange is to allow the parties to helpfully educate each other as to the strengths and weaknesses in each other's cases. The FAAhas an affirmative obligation to respond, specifically and in good faith, to the Respondent's inquiry. In addition, application ofthefollowing four factors contained in 14 C.F.R. § 13.220(£) supports granting the Respondent's Motionto Compel: 1. Is the informationrequested cumulative orrepetitious? NO The FAA argues that all ofthe requested informationhas beenprovided. However, the essence ofthe request is the linkbetweenthe information and the allegation, which the FAA has notprovided in its discovery response. 2. Can the information requested be obtained from another less burdensome and more convenient source? NO Here again, the essence ofthe request is the link between the FAA's known information and the specific allegation(s). The FAA is the primary source for the information. While it is certainly less burdensome and more convenient for the FAA to pointthe Respondent to other materials andtell the Respondentto figure it out, this is an avoidance ofthe FAA's obligation in discovery exchange. It is notthe Respondent's burdentotry and constructthe FAA'sresponse for it, from the FAA's Amended Complaint and the FAA's240 page Motion for Summary Judgment. Instead, it is the FAA'sburdento identify what specific materials, even those already provided, whichthe FAA intends to utilize to prove any specified allegation. 3. Has the party requesting the informationhad ample opportunity to obtain the information through other discovery methods permitted under this section? NO The opportunity for limited discovery onthe five new allegations was granted only on August 26, 2013, afterthe July 31, 2013 Amended Complaintwas served. This is the Respondent's first and only opportunityto request discovery specific to the new allegations. 4. Is the method or scope ofdiscovery requested by the party unduly burdensome or expensive? NO Considering the FAA's argument that the information is readily available, and the fact that only FAA counsel would knowfor sure what witnesses and documents the FAA may offer to support each allegation, it is not unduly burdensome or expensive to require the FAA to fully respond to the Respondent's Interrogatories 1-5 and Requests for Production 2-3. Page 6 of 10

### III. FAA's November4, 2013 Motion to Compel The FAA seeks to compel complete responses to FAA Interrogatories 3, 7, and 8 and FAA Request for Production 2 ofthe FAA's Requests. 3 The FAA did not include a Civ. R. 37(a)(l) declaration with its motion.



### a. Applicable Order and Regulation reFAA's Motion to Compel The previously citedAugust 27, 2013 Order CancellingNovember2013 Hearing and Granting/Denying Other Reliefremains applicable. In addition, both 14 C.F.R. § 13.220(m) and 14 C.F.R. § 13.220(f) remain applicable. 

### b. TheParties' Arguments and Analysis 1. FAA Interrogatory 3 Interrogatory 3 asked for basis for the denial ofthe allegations that work was not performed in a manner acceptable to the Administrator and that the aircraft was not restored to its original orproperly altered condition. The FAA argues that the Respondent's answer that "it is the Administrator's burdento provehis allegations" and "ithad a rightto rely onthe work of maintenance personnel, is nonresponsive." (FAA's Mot. to Compel 5.) By denying the allegation in the Amended Complaint, the Respondent must provide a basis for that denial during discovery. (!d.) The Respondent argues that its answer to Interrogatory 3 is not deficient because "it sets forth its position onthe legal issue that Respondent had a right to rely on its licensed, professional, maintenanceproviders." (Response to FAA'sMot. to Compel2.) Additionally, the Respondentpreviously provided an expertreporttothe FAA in the field ofwelding. (ld.) TheFAA is correctthatthe Respondent's answer is nonresponsive. The question asks for the basis for the Respondent's denial ofthe allegations that work was not performedin a manner acceptable to the Administrator and that the aircraft was notrestored to its original or properly altered condition; not for the Respondent's legal basis for denying that it violated the regulations. The Respondent mustprovide a specific, good faith basis for that denial during discovery exchange. 2. FAA Interrogatory 7 Interrogatory 

### 1requests that the Respondent "identify what, ifanything, it believes [Messrs. Soerens, Duellman, Dodge, and Bourgoine] know that is germane to the Amended Complaint." (FAA's Mot. to Compel6.) The FAA asserted that it asked this questionto determine whetherthe Respondenthad grounds for re-deposing these FAAwitnesses. (!d.) The

3 The FAA originally argued that interrogatories 3, 4, 7, 8 and 12 were deficient. (FAA's Mot. to Compel 5.) However, the FAA subsequently agreed in its Reply that the Respondent fully answered interrogatories 4 and 12 in its Response to FAA's Motion to Compel and Request for Tehiphonic Conference. (FAA's Reply I Support of FAA's Motion to Compel, 1.) Page 7 of 10FAA argues thatthe Respondent must disclose its basis for believingthatthese witnesses have relevant information. In response, the Respondent argues that "[I]fRespondentwere in possession ofthe facts known to these [FAA] witnesses related to the amendments, additional discovery as to them would not be necessary." (Response to FAA's Mot. to Compel4.)

1

, The Respondent is correctthat the FAA requests an impossibility. These witnesses have been identified as supporting the FAA's case in chief. 8/27/13 Tr 17:18-21. Itis asking the Respondent to provide information about apotential FAA deponent which cannotbe known to · the Respondentuntil the FAA identifies the knowledge these individuals may have about the five new allegations, and/or who are actually deposed. 3. FAA Interrogatory 8 Interrogatory 8 asked whetherthe Respondent asserted thatthere had been any error in the statements ofMr. Schneider and Mr. Fowler during their depositions, as it pertained to the Amended Complaint. (FAA's Mot. to Compel 7.) The FAA argues thatthe Respondent should be compelled to answer fully whether it believes any ofthe pertinent statements were made in error. (Jd.) The Respondent "maintainsthe appropriateness ofits response to [Interrogatory 8]." (Responseto FAA'sMot. to Compel4.) "However, counsel has notbeen advised ofany errors inthe transcription ofthe depositions ofMr. Schneider or Mr. Fowler." (!d.) The Respondent sufficiently answered interrogatory 8in its Response to FAA's Motion to Compel by stating, "[ c]ounselhas not been advised ofany errors in the transcription ofthe depositions ofMr. Schneider orMr. Fowler." 4. FAA Request for Production 2 The FAA argues thatbecause the Director ofMaintenance, Rodney Schneider, was an agent oftheRespondent, the FAA asked for all documentation ofthe subject work, including communicationsbetween the personnel involved in the work-Mr. Schneider, Ray Fowler, and CullenUnderwood. 

### (ld. at 8.) The FAA asserts thatthe Respondent mustprovide this documentation whether otnotit is in direct possession ofthe documentation. (Id.) The Respondent asserts that all documentation concerningthe workperformed onthe fuel system has alreadybeen provided. (Response to FAA'sMot. to Compel6.) The Respondent also states that it does not believe any documents existrelating to communications to or from Mr. Schneider, Mr. Fowler, and Mr. Underwood. (Jd.) The Respondent's answer to Request for Production 2 is insufficient. A party must produce all discoverable documents orthings responsive to a request that are in the party's possession, custody or control. Baiker-McKee, et al., Federal CivilRules Handbook 886 (West 2012) (commentary onFederal Rule ofCivil Procedure 34). This includes documents held by an Page 8 of 10officer or agent ofthe party. 

### !d. The Respondent must assert that it made good faith efforts to obtain any documents thatmightexistrelating to communications between Messrs. Schneider, Fowler, and Underwood, and to disclose such documents to the FAA ifsuch exist.

IV. The Respondent's November 12,2013 Motion for aTelephone Conference In its November 12, 2013 Response, the Respondentrequested atelephone conference, if the court "deems it necessary"to help resolve the motions seeking relieffiled by bothparties. The Respondent did not, however, provideto the court any proposed dates/times for such a telephone conference, pursuantto the August 27, 2013 Order CancellingNovember 2013 Hearing and Granting/Denying Other Relief, para G.·

Pursuantto 14 C.F.R. § 13.205(a)(8), based onthe foregoing and after reviewing all relevant caselaw, decisions, regulations, statutory authority, motions, pleadings, and being fully advised;

IT IS HEREBY ORDERED: 1. The Respondent's Motionto Strike Complainant's Objectionsto Respondent's Limited Discovery Requests is denied. 2. Discovery Deadline Extended: The deadline to complete additional limited discovery is extended from December 20, 2013 to January 10,2013,to address the loss of 16 days of time in discovery exchangethatresulted during the recent, October 2013 government shut-down. 3. Both parties are directed to comply withthe August 27, 2013 Order, paraD, and engage in good faith in a Civ. R. 37(a)(l) conference, priorto filing any motion regarding discovery problems. 4. Any future discovery motion filed without a declaration, pursuantto Civ. R. 37(a)(l) and the directive in the August 27, 2013 Order, para D, will result in an immediate denial of the motion as incomplete. 5. The Respondent's Motionto Compel is granted. The FAA shall provide and serve full answers to the Respondent's discovery requests, identified as Interrogatories 1-5 and Requests for Production 2 and 3, or before December 10, 2013. Ifany relevant materials have already beenprovided by the FAA in its 240 page Motion for Summary Judgment, the FAAmust specify in its supplemental discovery response where the applicable

. material is located in such Motion, by exhibit name and page number(s).

Page 9 of 106. The FAA'sMotionto Compel is granted in part. The Respondent shall provide and serve full answers to the FAA's discovery requests identified as FAA Interrogatory 3 and Request for Production 2, on or before December 12, 2013. 7. The FAA's Motionto Compel is denied in part. All otherreliefsought by the FAA in its Motion, including that the Respondent be required to amend its Answerto admit paragraphs 5(a) and 5(b) oftheAmended Complaint, is denied. 8. The Respondent's Request for a Telephonic Conference isdenied.

Attachment: Service List

Page 10 of 10SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal AviationAdministration4 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000

Mr. Christopher Stevenson Complainant's Counsel Office ofthe Regional Counsel P.O. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. StuartA. Goldstein Respondent's Counsel Stuart A.,Goldstein, P.A. 7300 North Kendall Drive, Suite 380 Miami, FL 33156 TEL: 305-670-1222 FAX: 305-400-0685 Judge J.E. Sullivan U 

### S. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (El1-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 ONE COPY FDMS No. FAA-2012-0477 (Civil Penalty Action)

4 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.