SERVED: November 26,2013 

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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In The Matter Of: ) 

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LIBERTY 

FOUNDATION, INC. 

Respondent 

Docket No. FAA-2012-0477 

Case No. 2011-GL-03-0070 

ORDER DENYING RESPONDENT'S MOTION TO STRIKE, 

AND GRANTING/DENYING OTHER RELIEF 

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On August 27,2013, an Order Cancelling November 2013 Hearing and 

Granting/Denying Other Relief was filed. Among other things, this Order provided the parties a 

brief time period of August 23, 2013- December 20, 2013 to conduct additional discovery 

arising from the five new allegations in the FAA's July 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. 

On November 4, 2013, the FAA filed FAA's Response in Opposition to Respondent's 

Motion to 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. 

On November 6, 2013; the Respondent filed Respondent's Motion to Compel. 

On November 12, 2013, the FAA filed FAA's Response in Opposition to Respondent's 

Motion to Compel. 

On November 12,2013, the Respondent filed its Response to FAA's Motion to Compel 

and a Request for Telephonic Conference. These were contained in a single document but will be 

referred to separately. 

On November 14,2013, the FAA filed FAA's Reply in Support of FAA's Motion to 

Compel ("FAA Reply"). 

This Order separately addresses all four motions below. 

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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) on the grounds that the FAA's 

objections were untimely filed. The Respondent did not, however, state what specific relief it 

sought if the objections were stricken (e.g., objections deemed waived, certain pleadings struck, 

discovery compelled, certain testimony precluded, 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 Cancelling November 2013 Hearing 

and Granting/Denying Other Relief as legal support for its motion. I 

The August 27, 2013 Order, Paragraph 6 provided: 

Pursuant to 14 C.F.R. § 13.220(f)-(k), any objection(s) or motions regarding 

additional discovery shall be filed within ten (10) days after receipt. Pursuant to 

14 C.F.R. § 13.220(m) and Paragraph D herein, any motions to compel for 

deficient interrogatory responses shall be filed with ten (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 of a deficient response or 

after the response to the discovery is due, whichever occurs first. Motions to 

Compel and other discovery motions must be accompanied by the relevant 

discovery requests and responses, and a declaration by the moving party, pursuant 

to Civ. R. 37(a)(l), that the movant has conferred or attempted to confer in good 

faith with the 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 

movant to resolve the dispute and identify which discovery matters remain in 

dispute. Statements in opposition to discovery motions must be filed within ten 

(10) calendar days after service of the motion. The failure to timely file 

objections to discovery may result in the objections being deemed waived. 

Belated service of burdensome discovery requests may also be grounds for denial 

of a motion to compel compliance with such requests. 

Although the Respondent did not cite to it, 14 C.F.R. § 13-.22l(n)(1) provides that a party 

may file a motion to strike a limited portion of the pleadings when another party 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's non-compliance with a discovery order (i.e., precluding discovery 

motions, and/or admission of certain evidence, and/or admission of certain testimony). 

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b. Summary of Parties' Arguments 

The Respondent asserted that the August 27, 2013 Order, Paragraph 6 required that the 

FAA file any objection to requested discovery within 10 days of receipt of such discovery. It was 

undisputed that the FAA received, via fax, 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 not receive the 

Responses sent by mail until October 22, 2013. (Mot. to Strike 1.) Therefore, the Respondent 

asserted that the FAA's objections were untimely and should be stricken. 

In response, the FAA argued that August 27,2013 Order's 10-day time for filing 

objections applied only to filing specialized objections, pursuant to 14 C.F .R. § 13 .220(f)-(k), 

and not to routine discovery objections pursuant to 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 of that 

interpretation, the FAA pointed out that the Respondent's Answers to Limited Discovery were 

not served until October 8, 2013 (i.e., 26 days after receipt), demonstrating that both parties 

interpreted the 10 day filing requirement in paragraph 6 to 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 of child and government furlough). 

In the alternative, the FAA argued that if the 1 0-day time for filing objections applied to 

its discovery objections, the birth ofthe FAA attorney's daughter on September 22, 2013, and 

the FAA attorney's family leave, should be deemed good cause for any late filing. (Jd.) 

c. Analysis 

The FAA's argument regarding the interpretation ofParagraph 6 is correct. Therefore, 

the FAA's discovery responses and objections were due on or before October 11,2013 (i.e., the 

30th day after receipt of the requested discovery). 

It was 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't Mot. to Compel 2.) The issue then is 

whether the 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 and this administrative court of his potential unavailability during the months of 

September and October 2013 because ofthe pending 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). It is undisputed that the FAA attorney's daughter was born on 

September 22,2013. (FAA's Resp. 3.) The birth resulted in the FAA attorney being absent 

from the office from September 23-0ctober 1, 2013. (!d. at 1-2.) Then, the government was 

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partially shut down from October 1-16, 2013, during which time the FAA attorney was forbidden 

to work. The government re-opened on October 17, 2013. The FAA attorney returned to work 

that same day, and served the FAA's responses and objections to the Respondent's requested 

discovery that same day. 

The FAA is correct in stating that it was impossible for it to serve its objections and 

responses on October 11, 2013, during the period of the 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 seeks to compel complete responses to Interrogatories 1-5 and Requests 

for Production 2 and 3 of Respondent's Requests. Each interrogatory corresponds to one of the 

new allegations contained in the Amended Complaint and requests the identity of the witnesses 

that will testify regarding the allegation. Each of the subparts B-E of the interrogatory requests 

additional information on the witnesses identified in subpart A. The Respondent's Motion to 

Compel only provides a detailed argument regarding Interrogatory 1. 

As proof of compliance with Civ. R. 37(a)(1), the Respondent submitted a brief email 

string between the parties. In this email communication, the Respondent requested a telephone 

conference with the FAA, but did not clearly state that it sought a Civ. R. 37(a)(1) meeting. In 

response, the FAA declined the 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 Other Relief remain applicable. In addition, both 14 C.F.R. 

§ 13.220(m) and 14 C.F.R. § 13.220(fi are applicable. 

1 14 C.F.R. § 13.220(m) states: A party may make a motion to compel discovery if a person refuses to answer a 

question during a deposition, a party fails or refuses to answer an interrogatory, if a person gives an evasive or 

incomplete answer during a deposition or when responding to an interrogatory, or a party fails or refuses to produce 

documents or tangible items. 

2 14 C.F.R. § 13.220(f) states: The administrative law judge shall limit the frequency and extent of discovery 

permitted by this section if a party shows that-( I) The information requested is cumulative or repetitious; (2) The 

information requested can be obtained from another less burdensome and more convenient source; (3) The party 

requesting the information has had ample opportunity to obtain the information through other discovery methods 

permitted under this section; or (4) The method or scope 'Of discovery requested by the party is unduly burdensome 

or expensive. 

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b. Summary of Parties' Arguments 

The Respondent's renewed arguments regarding the FAA's untimely responses are 

identical to arguments made in its Motion to Strike. (Mot. to Compel 1-2.). 

The Respondent also argued that it had "an absolute right to know which of FAA's 

witnesses will testify" on the new allegation that the aircraft was "unsafe for flight" and which 

documents the FAA relied upon in support of such 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 

objection to each of the subparts. (/d.) 

In response, the FAA asserted that it had already disclosed to the Respondent the basis 

for the new allegations, as well as the names of its 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, wherein this administrative court ruled upon four separate Respondent 

motions, filed after the FAA served its July 31, 2013 Amended Complaint. (!d. at 2.) The FAA 

also argued that it had disclosed the requested information both in the Amended Complaint as 

well as in the FAA's Motion for Summary Judgment, which is 40 pages long, and has 200 pages 

of exhibits 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 unanticipated partial government shut-down, 

the Respondent's request for relief on the basis of untimeliness is not persuasive. 

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 included the Respondent's motion to compel 

the FAA to disclose its witnesses and documents related to the five new allegations in the FAA's 

July 31, 2013 Amended Complaint, prior to requiring the Respondent to file an Answer to the 

Amended Complaint. 

In essence, although the August 26, 2013 Order granted the Respondent's motion to order 

the FAA to disclose its witnesses and documentation on the Amended Complaint, it also found 

that such general discovery had been provided, based on the FAA's August 23, 2013 oral 

assertion. It must be pointed out that such general identification is considered initial discovery, as 

identified by Civ. R. 26(a)(1), which is made at the beginning of a 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 limited to the 5 new 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. 

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The FAA's argument ignores its obligation to respond in good faith to reasonable 

discovery requests. The Respondent is not asserting that it does not know the names of all the 

witnesses that may be called by the FAA or-other than for Interrogatory 1-the general 

contents of each witness's testimony. Rather, the Respondent is requesting that the FAA specify, 

from its general knowledge of its witnesses and their testimony, which witnesses and information 

will be addressing each of the five new allegations. 

The FAA's assertion that the Respondent should be able to figure this out by studying 

either the FAA's Amended 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 hunt for information. Indeed, one of the purposes of discovery exchange is to allow 

the parties to helpfully educate each other as to the strengths and weaknesses in each other's 

cases. The FAA has an affirmative obligation to respond, specifically and in good faith, to the 

Respondent's inquiry. 

In addition, application ofthe following four factors contained in 14 C.F.R. § 13.220(£) 

supports granting the Respondent's Motion to Compel: 

1. Is the information requested cumulative or repetitious? NO 

The FAA argues that all of the requested information has been provided. However, the 

essence of the request is the link between the information and the allegation, which the FAA has 

not provided in its discovery response. 

2. Can the information requested be obtained from another less burdensome and 

more convenient source? NO 

Here again, the essence of the 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 point the Respondent to other 

materials and tell the Respondent to figure it out, this is an avoidance of the FAA's obligation in 

discovery exchange. It is not the Respondent's burden to try and construct the FAA's response 

for it, from the FAA's Amended Complaint and the FAA's 240 page Motion for Summary 

Judgment. Instead, it is the FAA's burden to identify what specific materials, even those already 

provided, which the FAA intends to utilize to prove any specified allegation. 

3. Has the party requesting the information had ample opportunity to obtain the 

information through other discovery methods permitted under this section? NO 

The opportunity for limited discovery on the five new allegations was granted only on 

August 26, 2013, after the July 31, 2013 Amended Complaint was served. This is the 

Respondent's first and only opportunity to request discovery specific to the new allegations. 

4. Is the method or scope of discovery 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 know for 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. 

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III. FAA's November 4, 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 re FAA's Motion to Compel 

The previously cited August 27, 2013 Order Cancelling November 2013 Hearing and 

Granting/Denying Other Relief remains applicable. In addition, both 14 C.F.R. § 13.220(m) and 

14 C.F.R. § 13.220(f) remain applicable. 

b. The Parties' Arguments and Analysis 

1. FAA Interrogatory 3 

Interrogatory 3 asked for basis for the denial of the allegations that work was not 

performed in a manner acceptable to the Administrator and that the aircraft was not restored to 

its original or properly altered condition. The FAA argues that the Respondent's answer that "it 

is the Administrator's burden to prove his allegations" and "it had a right to rely on the 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 on the legal issue that Respondent had a right to rely on its licensed, 

professional, maintenance providers." (Response to FAA's Mot. to Compel2.) Additionally, 

the Respondent previously provided an expert reportto the FAA in the field of welding. (ld.) 

The FAA is correct that the Respondent's answer is nonresponsive. The question asks 

for the basis for the Respondent's denial of the allegations that work was not performed in a 

manner acceptable to the Administrator and that the aircraft was not restored to its original or 

properly altered condition; not for the Respondent's legal basis for denying that it violated the 

regulations. The Respondent must provide a specific, good faith basis for that denial during 

discovery exchange. 

2. FAA Interrogatory 7 

Interrogatory 1 requests that the Respondent "identify what, if anything, 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 question to 

determine whether the Respondent had grounds for re-deposing these FAA witnesses. (!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.) 

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FAA argues that the Respondent must disclose its basis for believing that these witnesses have 

relevant information. 

In response, the Respondent argues that "[I]fRespondent were in possession of the 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 correct that 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. It is asking the 

Respondent to provide information about a potential FAA deponent which cannot be known to · 

the Respondent until 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 whether the Respondent asserted that there had been any error in 

the statements of Mr. Schneider and Mr. Fowler during their depositions, as it pertained to the 

Amended Complaint. (FAA's Mot. to Compel 7.) The FAA argues that the Respondent should 

be compelled to answer fully whether it believes any of the pertinent statements were made in 

error. (Jd.) 

The Respondent "maintains the appropriateness of its response to [Interrogatory 8]." 

(Response to FAA's Mot. to Compel4.) "However, counsel has not been advised of any errors 

in the transcription ofthe depositions of Mr. Schneider or Mr. Fowler." (!d.) 

The Respondent sufficiently answered interrogatory 8 in its Response to FAA's Motion 

to Compel by stating, "[ c ]ounsel has not been advised of any errors in the transcription of the 

depositions of Mr. Schneider or Mr. Fowler." 

4. FAA Request for Production 2 

The FAA argues that because the Director of Maintenance, Rodney Schneider, was an 

agent ofthe Respondent, the FAA asked for all documentation ofthe subject work, including 

communications between the personnel involved in the work-Mr. Schneider, Ray Fowler, and 

Cullen Underwood. (ld. at 8.) The FAA asserts that the Respondent must provide this 

documentation whether ot not it is in direct possession of the documentation. (Id.) 

The Respondent asserts that all documentation concerning the work performed on the 

fuel system has already been provided. (Response to FAA's Mot. to Compel6.) The 

Respondent also states that it does not believe any documents exist relating 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 or things responsive to a request that are in the party's 

possession, custody or control. Baiker-McKee, et al., Federal Civil Rules Handbook 886 (West 

2012) (commentary on Federal Rule of Civil Procedure 34). This includes documents held by an 

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officer or agent of the party. !d. The Respondent must assert that it made good faith efforts to 

obtain any documents that might exist relating to communications between Messrs. Schneider, 

Fowler, and Underwood, and to disclose such documents to the FAA if such exist. 

IV. The Respondent's November 12,2013 Motion for a Telephone Conference 

In its November 12, 2013 Response, the Respondent requested a telephone conference, if 

the court "deems it necessary" to help resolve the motions seeking relief filed by both parties. 

The Respondent did not, however, provide to the court any proposed dates/times for such a 

telephone conference, pursuant to the August 27, 2013 Order Cancelling November 2013 

Hearing and Granting/Denying Other Relief, para G.· 

Pursuant to 14 C.F.R. § 13.205(a)(8), based on the 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 Motion to Strike Complainant's Objections to 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 exchange that resulted during the recent, October 2013 government 

shut-down. 

3. Both parties are directed to comply with the August 27, 2013 Order, para D, and engage 

in good faith in a Civ. R. 37(a)(l) conference, prior to filing any motion regarding 

discovery problems. 

4. Any future discovery motion filed without a declaration, pursuant to 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 Motion to 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. If any relevant materials 

have already been provided by the FAA in its 240 page Motion for Summary Judgment, 

the FAA must specify in its supplemental discovery response where the applicable . 

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

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6. The FAA's Motion to 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 Motion to Compel is denied in part. All other relief sought by the FAA in its 

Motion, including that the Respondent be required to amend its Answer to admit 

paragraphs 5(a) and 5(b) ofthe Amended Complaint, is denied. 

8. The Respondent's Request for a Telephonic Conference is denied. 

Attachment: Service List 

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SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration4 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 000 

Mr. Christopher Stevenson 

Complainant's Counsel 

Office of the Regional Counsel 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Stuart A. 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. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey 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.