BrentR. Cole Law Office ofBrentR. Cole, P.C. 821 N Street, Suite 208 Anchorage, AK 99501 (907) 277-8001 Attorneys for Redemption Air, Inc. U.S. 

### DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

In the matter of: Redemption Air, Inc. 

### WASHINGTON, DC 

### ) ) FAACaseNo. 2013AL030106 ) Docket No. FAA-2014-0115

______________ ) (Civil PenaltyAction) 

### MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCOVERY ORIMPOSE SANCTIONS Redemption Air, Inc. ("Redemption Air") moves this Court for an order compelling the Federal Aviation Administration ("FAA") to make employee Christina Bryant (Ms. Bryant") available to be deposed pursuant to 13 CFR § 14.220(j) or, in the alternative, impose sanctions precluding her testimony in this matter. Further, Redemption Air requests that this Court order the FAA to reimburse for reasonable expenses associated with the FAA's abuse ofdiscovery rules pursuant to Federal Rule of Civil Procedure 37. Ms. Bryant's deposition had been previously scheduled for November 20, 2014, but she failed to appear atthe time and location scheduled. An order is needed because counsel for FAA refuses to allow the deposition to proceed with the personal attendance ofRedemption Air's owner, Bob Stanford ("Mr. Stanford").

Memorandum in Support ofMotion to Compel Discovery orImpose Sanctions In re: RedemptionAir, Inc., DocketNo. FAA-2014-0115 Page I of6

### I. FACTS The Complaint against Redemption Air was filed with this Court on April 17, 2014. Redemption Air answered on May 20, 2014. In its answer, Redemption Air denied most ofthe allegations made against it and all ofthe allegations related to Ms. Bryant, an aviation inspector with the FAA. A procedural order issued on April 25, 2014 and was served on both Redemption Air and counsel for the FAA. Discovery closes on January 9, 2015. Counsel for the Redemption Air has repeatedly requested the opportunity to depose the principal complainant in this action: Ms. Bryant. Related to this motion, counsel for Redemption Air wrote to the FAA on October 7, 2014, again asking to depose Ms. Bryant. After some discussion, the FAA agreed to make Ms. Bryant available but indicated that it would only do so ifMr. Stanford, the owner ofRedemption Air, were not permitted to attend. Mr. Stanford is unwilling to waive his right to be present at the deposition and his presence is necessary to assist counsel at the deposition. Instead, and pursuant to 14 CFR § 

### 13.2200), a Notice of Deposition was served on the FAA on November 11, 2014. A copy ofthe notice is attached hereto as Exhibit A. 

### On November 20, 2014, Ms. Bryant failed to appear at the time and location ofher deposition. Redemption Air was present with a court reporter ready to administer the oath by the laws ofthe United States. A transcript ofproceeding is attached. See Exhibit B.

Memorandum in Support ofMotion to Compel Discovery orImpose Sanctions In re: RedemptionAir, Inc., DocketNo. FAA-2014-0115 Page 2 of6

### II. ARGUMENT A. Ms. 

### Bryant's Deposition Should Be Compelled or, 

### in the Alternative, Her Testimony Should Be Precluded at the Hearing. In a civil penalty action, a party may discover any matter that is notprivileged and that is relevant to the subject matter ofthe proceeding. 14 CFR § 13.220(e). Further, a party may discover "information that relates to the claim or defense ofany party..." 

### !d. Discovery may be initiated by any party and may be in the form of deposition of any person. 14 CFR § 13.220(a) and (b). Subsection (j) contains rules for depositions and provides that before a deposition may be taken, the deposing party "shall serve a notice of deposition, stating the time and place ofthe deposition and the name and address ofeach person to be examined, on the person to be deposed, on the administrative lawjudge, on the hearing docket clerk, and on each party not later than 7 

### days before the deposition." 14 CFR § 13.220(j). If a person refuses to be deposed or answer questions, subsection (m) allows for a party to move to compel. 14 CFR §13.220(m). Additionally, this Court may preclude the testimony of a witness at the hearing, preclude the admission of a portion of evidence, and strike portions of pleadings in the event that a party fails to comply with discoveryrules or orders to compel. 

### 14 CFR § 

### 13.220(n). Here, Ms. Bryant's testimony is relevant and not privileged. All ofthe allegations in the complaint against Redemption Air are related to an incident involving her and Mr. Stanford. Redemption Air has attempted to initiate discovery in the form ofa deposition and has complied with the notice requirements. See 

### Exhibit B. The FAA and Ms. Bryant refuse to cooperate or participate in the deposition. Mr. Stanford's presence to assist his

Memorandum in Support ofMotion to Compel Discovery orImpose Sanctions In re: RedemptionAir, Inc., Docket No. FAA-2014-0115 Page 3 of6attorney in confronting and cross-examining the FAA's crucial witness is a fundamental tenant ofdue process. As a consequence, this Court should compel Ms. Bryant to appear at a time and location to be deposed or, in the alternative, preclude her testimony and evidence related to her testimony pursuantto 14 CFR § 13.220(n). 

### B. The FAA Should Be Required to Reimburse Redemption Air For Ms. 

### Bryant's Failure to Attend the Previously Scheduled Deposition. 14 CFR § 13.220 is silent as to reimbursement for expenses incurred by a party as

a result of another's failure to adhere to the discovery rules. However, Federal Rule of Civil Procedure 37(a)(5) provides, "If the motion [to compel] is granted

- or if the disclosure or requested discovery is provided after the motion was filed,

-- the court must... require the party or deponent whose conduct necessitated the motion

... pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed. R. Civ. P. 37(a)(5). This Court should adopt and impose similar sanctions and require the FAA to pay Redemption Air's expenses. Many of the discovery rules applicable to civil penalty actions appear to be derived from the Federal Rules of Civil Procedure and have similarities. One can infer that this was done because the Court and parties in a civil penalty action share many of the same interests as litigants in a civil suit. Civil Rule 3 7 discovery sanctions are designed to compensate court and other parties for added expenses caused by discovery abuses, compel discovery, deter others from engaging in similar conduct, and to penalize the offending party. 

### TDS Healthcare Systems Corp. v. Humana Hasp. Illinois, Inc., 880 F.Supp. 1572, 1278 (N.D.GA. 1995).

Memorandum in Support ofMotion to Compel Discovery orImpose Sanctions In re: RedemptionAir, Inc., DocketNo. FAA-2014-0115 Page4 of6

### Civil discovery rules are generally construed liberally in favor ofthe party seeking discovery. Marshall v. Electric Hose & 

### Rubber Co., 68 F.R.D. 287 (D.C.Del. 1975). The purpose ofRule 37 is to secure thejust, speedy, and inexpensive determination offacts. Babcock & 

### Wilcox Co. v. North Carolina Pulp Co., 25 F. Supp. 596 (D.Del. 1938). Simply put, the FAA's abuse ofthe discovery rules has delayed the determination offacts and caused expense to Redemption Air. This Court has an interest in deterring this behavior in the future by compensating Redemption Air for expenses incurred as a result ofthe FAA's conduct. This Court should adopt sanctions imposed by Rule 37. III. CONCLUSION 

### Despite proper notice and a showing ofrelevance by Redemption Air, the FAA and Ms. Bryant refuse to comply with discovery rules set forth in 14 CFR §13.220. Ms. Bryant's failure to appear at the time and place set for her deposition is unlawful and without basis. This Court should compel her participation or, in the alternative, preclude her testimony at the hearing. Further, this Court should order the FAA to reimburse Redemption Air reasonable costs associated with this motion and expenses incurred in arranging for Ms. Bryant'spreviously scheduled deposition.

Memorandum in Support ofMotion to Compel Discovery orImpose Sanctions In re: RedemptionAir, Inc., DocketNo. FAA-2014-0115 Page 5 of6DATED this 3/!>dayofDecember, 

### 2014, at Anchorage, Alaska.

CERTIFICATE OF SERVICE This is to certify that on this day of December, 2014, a true and correct copy ofthe foregoing document was

**~Mailed** 

### D Hand-delivered .,...

# e-.-( fii1. Faxed to the following: Original and one copy: Attention: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2Wl000 Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 One copy: Craig Wm. Black, Esq. Office ofthe Regional Counsel 222 West 7th Avenue, #14 Anchorage, AK 99513-7587 Craig.Black@faa.gov Fax: 271-2800 The Honorable Richard C. Goodwin, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 Richard.Goodwin@dot.gov Fax: 202-366-7536



# cw;~ §iJMemorandum in Support ofMotion to CompelDiscovery orImpose Sanctions LAW OFFICE OF BRENT R. COLE, P.C. Attorneys for Redemption Air, Inc.



# By:_~_~_...:.__::_A...--_-_1 ____.:C=--------::....L
__ _ BrentR. Cole AK State BarNo. 

### 8606074

In re: RedemptionAir, Inc., Docket No. FAA-2014-0115 Page 6 of6

### Brent R. Cole Law Office ofBrent R. Cole, P.C. 821 N Street, Suite 208 Anchorage, AK 99501 (907) 277-8001 Attorneys for Redemption Air, Inc. U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS WASHINGTON,DC 

### In the matter of: ) 

### Redemption Air, Inc. ) FAA Case No. 2013AL030106 ) DocketNo. FAA-2014-0llS 1 _____________ ) 

### (Civil PenaltyAction) NOTICE OFDEPOSITION OFCHRISTINABRYANT PLEASE TAKE NOTICE that Redemption Air, Inc., pursuant to 

### 49 CFR § 

### 821.19, will 

### take the video deposition of Christina Bryant, before a Notary Public or some other person qualified to take oaths, in the Law Office of Brent R. Cole, P.C., Anchorage, Alaska, on November 20, 2014, at 9:00 am, and said examination will continue from day to day until completed. You

### are invited to attend and examine ifyou so desire. 

### DATED this 

## II ,,.day

### ofNovember, 2014, at Anchorage, Alaska. LAW OFFICE OF BRENT R. COLE, P.C. Attorneys for Redemption Air, Inc.

NOTICE OF DEPOSITIONOF CHRISTINABRYANT In re: RedemptionAir, Inc., DocketNo. FAA-2014.0115 Page I of2 Exhibit ACERTIFJCAT!! OFSEBYICE This is to certify that onthis \/)

# t"day ofNovember, 2014, atrue and correct copy -;;flh.'foregoingdocument 

### 0 Mailed 

# ! Hand-delivered Faxed to the foil wing: CraigWm. Black, E"''· Office ofthe Regional Counsel 222 West 7th Avenue, #14 Anchorage, AK 99513-7587 Craig Black@faa.goy Fax: 271-2800

NOTICE OF DEPOSITION OF CHRISTINA BRYANT In re: RedemptionAir, Inc., DooketNo. FAA-2014-0115 Page 2 of2 Exhibit A

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

WASHINGTON, D.C. In the matter of: Redemption Air, Inc.,

FAA Case No. 2013AL030106 Docket No. FAA-2014-0115 (Civil Penalty Action) ) )



### STATEMENT IN LIEU OF DEPOSITION OF CHRISTINA BRYANT November 20, 2014 APPEARANCES: FOR REDEMPTION AIR, INC.: MR. BRENT R. COLE Attorney at Law 821 N Street, suite 208 Anchorage, Alaska 99501 (907) 277-8001



# I Exhibit BPage 2 Page 4 1 PROCEEDINGS 1 CERTIFICATE 2 (Anchorage, Alaska- 11120/2014) 2 UNITED STATES OFAMERICA) 3 (On record) )os 

# • REPORTER: We're on record. Thetime is 9:03. 3 STATEOFALASKA ) 4 I, SalenaA. Hile, Notary Public in and fortbe 5 B,..t,go ahead. 5 State ofAlllka, reaidi:ng inAnchorage in aid st.te, 6 MR. COLE: We'reon record in thematterof 

## ' do hereby certify that the deponent in the forqoin1 7 Redemption, Inc., Docket No. FAA-2014-0115 Civil 7 mau.rwas duly swornto kotify to the lndh, ond 

# • Pmalty Action. This is !k-ent Cole. I'm an attorney 8 nothing butthetruth; 

# • for Redemption Air. 

### rm seated at my law office and 

## ' Thatllidtestimony waa taken at the dme ud 10 the date and time is November20d!, 2014. Previously 10 place therein stated; 11 we had scheduled anoticeofdeposition ofChristina 11 Thatthe testimony ofsaid witness was recorded 12 Bryant in this matt«and that should be made a partof 12 electronicallyandthereafta-trulscn"bod undermy 13 the record in thisdeposition. Thisdeposition 13 ditmloo and reduced.10 prim; 14 Thatthefortaoiag is afall, complete, and 14 required Ms. Bryon! to appear at9:00a.m. and itis 16 true record ofsaid testimony. 15 now 9:03 a.m. for avideo deposition. Ms. Bryant is 16 Ifurtherurtifythat Iam notandative, nor 16 notpresent in this office. 17 employee, norattorney, norofcolllliiCI ofanyofthe 17 Iwas con!JK:ted by the FAA attorney, Mr. Craig 19 parties to the foregoing matlcr", nor in any way 18 Black, who indicated that neither he norM& Blyant 

## " inten::sted in the outcomeofthe Dlltk:rthcn:io named. 

# " wouldbe p!<8Ciltatthis deposition today. We have 20 IN WITNESS WHEREOF Ihavelxmmtosetmy hand 20 reached an impasse reprding my clion(s right to have 21 and affixed my scsithiii2Sth dsyofNo""'"""'2014. 21 his ownerappear atthe deposition. Because Ibelieve 22 2J 22 that itwas essential for my client toparticipate in Salem A. Hile 23 this dq>osition and tobe apartofit, I refused to Nowy Public, SllleofAlask.a 24 

# ,. agree that Ma Bryont wouldbe deposed withouthis MyCommiss.ion Expires 9/16118 25 presenceorparticipation. Because I woukt not agree, 25 Page 3 l Mr. Black indicated that she, Ms.**Bryan~** would not be 2 presenttDday and wouldnotbe madeavailable fora 3 deposition. 4 I indicatedto him that we would putthis on s the record and lhen moveappropriately for sanctions 

# • with the hearing coun. My clientis not J'l"*'nt in 7 this room forthe reoaon that we**didn~** want to go to 

# • the expenseofbiinging him all tbe way herejust to 

# • show up and not have adeposition. So al\orlearning 10 that Ms. Blyant and her attorney would not show up, I 11 instructed him lhat it would ootbe necessaryfor him 12 to attend l'hulk you. 13 REPORTER: That ccncludes the statementon 14 record. Thetime is 9:06. 15 (Offreoord) 16 (END OFPROCEEDINGS) 17 18 19 20 21 22 23 24 25 

# I Exhibit B 2 (Pages 2 to 4)