# RECEIVED DEC1 22013 

## HEARINGDOCKET U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION - - - - - - X In theMatter of NORTHEASTERN AVIATION CORP., Docket No.: FAA-2012-1264 Respondent. - - - - X U.S. Department of Transportation Office ofHearings, M-20 1200 New JerseyAvenue, S.E. (E11-310) Washington, D.C. 20590 Thursday, November 14, 2013 PREHEARING STATUS CONFERENCE (TELEPHONIC) The above-entitledmatter came on for hearing at 10:32 a.m., pursuant to notice. BEFORE: HON. J.E. SULLIVAN, U.S. Administrative Law Judge

DiversifiedReportingServices,Inc. 1APPEARANCES: For the Respondents: JAMES EHRIG, ESQ. (By telephone) KATE MOORE, ESQ. (By telephone) Eckert Seamans Cherin &Mellot, LLC 1717 PennsylvaniaAvenue, N.W., 12th Floor Washington, D.C. 20006-4604

(202) 659-6672 For theAgency: ZACHARY M. BERMAN, ESQ. (By telephone) Office of the Regional Counsel (AE-7) FederalAviationAdministration Eastern Region l Aviation Plaza Jamaica, New York 11434 (718) 553-3258 Observer: CODY L. SMITH, Attorney-advisor U.S. Department of Transportation 1200 New JerseyAvenue, S.E. Washington, D.C.

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P R0 C E E D I N GS 1 2 3 JUDGE SULLIVAN: We are on the record in the matter ofNortheasternAviation Corporation. This is Docket Number 4 FAA-2012-1264. Today is Thursday, November 14, 2013, and the 5 parties have convened for a prehearing status conference. 6 Just interms of recent history, note that onMay 7 14, 2013, there was an order issued resetting the Rule 16 8 Litigation Scheduling Conference from May 20, 2013, to 9 Tuesday, June 4, 2013. The parties then appeared on June 4, 10 2013, for the Rule 16Litigation Scheduling Conference; and, 11 subsequently, there was a June 5, 2013 corrected order 12 setting litigation dates andprocedures, which, among other 13 things, set today's date and time for a telephone conference. 14 Mr. Berman, I'm going to turn to you first. There 15 were no dispositivemotions filedby eitherparty. We do 16 have a trial scheduled for January 28, 2014, through January 17 29, 2014, and in the New York City area. Can you apprise me 18 on the status ofthe case at this point. 19 MR. BERMAN: Well, the status of the case is that 20 we've exchanged discovery. I just spoke a few minutes ago 21 withMr. Ehrig, andwe've discussedthepossibility of 22 settlement. And I'mdisappointed it doesn't looklike we are

DiversifiedReportingServices,Inc.1 goingto settle. 2 JUDGE SULLIVAN: Okay. Then can you tellme if 3 you're still going to need 1-1/2 days for hearingtime? Is 4 that a safe estimate? 5 6 MR. BERMAN: It sounds like an accurate estimate. JUDGE SULLIVAN: Okay. Anything else that you 7 would like to note before I turn to Mr. Ehrig? 4

s MR. BERMAN: No, just that we are going to -- well, 9 I spoke toMr. Ehrig, as I said, a few minutes ago, and 10 there's one witness that we bothwant to have testify. And 11 we were talking about how we do that. And I would like to -- 12 I'mgoing to request a subpoena for that witness. So how do 13 I know ifMr. Ehrig also wants to -- if I do that, ifhe also 14 wants to request a subpoena? But, that's all. 15 JUDGE SULLIVAN: Okay. Mr. Ehrig, turningto you 16 next, the case is still planned for trial, as I understand 17 it, intheNew York Cityarea. Andwas there anything you 18 would like to addto what Mr. Berman has just said, or 19 correct or change? 20 MR. EHRIG: I agree with everythingMr. Bermanjust 21 said. I thinkthe length of the hearing isprobably 22 accurate. Itmight evenjust take a day, but let's reserve

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1 it the second dayjust in case. And, we as well want to 2 subpoena Mr. Kalish, both the FAA andmy client would like to 3 subpoena him. Sojust how would Your Honor like to handle 4 that as far as I'mnot sure itmakes sense to issue you 5 two requests for a subpoena. 6 JUDGE SULLIVAN: No. I don't think itmakes sense 7 either. So let me just take a look at the rule. And, Mr. 8 Berman, I'm going to turn to you. Do you want to pointme to 9 the rule, the specific rule right away, or should I just kind 10 of hunt a littlebit onmy own? 11 MR. BERMAN: I don't have it off the top ofmy 12 head, and I don't evenhave it. 13 14 JUDGE SULLIVAN: Okay. Well, in that time I was able to find it. Thank you. It's 14 C.F.R. § 13.228, so I'm 15 just lookingto see if there's anything inparticular. 16 [Pause.] 17 JUDGE SULLIVAN: I think, probably, after looking 18 at the regulation, what I'm going to suggest to theparties 19 is this. You can eithermove jointly for the issuance of the 20 subpoena, or you canhave Mr. Berman do it, since he's the 21 prosecuting agent. In any event, you would needto submit a 22 request in writingwiththe name of the individual, the

DiversifiedReportingServices,Inc.1 address of the individual, the purpose ofhis testimony for 2 the FAA, in general the purpose of his testimony for the 3 responding party. It wouldbe helpful ifyou also identify 4 whether or not you have come to an agreement about paying 5 this individual's cost for attendance, particularly ifhe's 6 outside ofNew York CityMetro area. 7 Anypersonwho is subpoenaed shouldhave costs, 8 attendant costs paid for bythe subpoenaingparty. If 6

9 there's particular language that you would like to have as 10 part of subpoena in terms of notifying this individual about 11 how to challenge the subpoena, that shouldbe included in 12 yourmotion, since that particular language shouldbe 13 included in any subpoena that's issued from this office. 14 If you have a preferred subpoena form, you're 15 welcome to proffer it. That's not necessarily an indication 16 that I would accept it. I have a bank of subpoena forms that 17 I generallyuse; but, ifthere's something that is preferred 18 for the locale inwhich this person is going to get served 19 in, that's helpful to know. 20 MR. BERMAN: Shouldthis be in the form of a motion 21 to you, Your Honor? Or, in the past, what I've done is 22 written an e-mail to StephanieMcLain, the hearing docket

DiversifiedReportingServices,Inc.1 clerk. Would that suffice to just write an e-mail to Ms. 2 McLain with that information? 3 JUDGE SULLIVAN: You can do that, but she would 4 stillneed to -- you can do that, andthe hearing docket 7

5 clerkcan issue the subpoena, but I can also issue it, if you 6 look at the rule. So, essentially it says, and I quote, "The 7 hearing docket clerk shall deliver the subpoena signedby the 8 hearing docket clerk or an administrative lawjudge, but 9 otherwise inblank to the party." 10 MR. BERMAN: Okay. 11 JUDGE SULLIVAN: So you canpursue a subpoena 12 throughthe hearing docket clerk, ifyou like, or you can 13 14 15 pursue it throughme. MR. BERMAN: Thank you. JUDGE SULLIVAN: Okay. Next question. Since the 16 case isproceeding to trial, I wantedto get an idea from 17 both of you as to preferred locales, eitherwithinNew York 18 Cityarea or outside the general New York City area. And I'm 19 goingto start with you, first, Mr. Berman. 20 In the past, what has been a readily available 21 locale, since I will need to havemy staff start looking for 22 a location for the trial?

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1 MR. BERMAN: In general, in the past we've had 2 hearings at 26 Federal Plaza inManhattan. But there's also 3

-- I've never done a hearing there, but there's also space 4 available, I understand

-- although I'mnot sure, 5 necessarily, the date that we have inmind

-- at Central 6 Islip Federal Courthouse. 7 8 JUDGE SULLIVAN: Okay. MR. BERMAN: Which wouldbe, actually, probably 9 more convenient for my witnesses, because it's in Long 10 Island. 11 JUDGE SULLIVAN: Right. We've had good luck 12 getting court space there, as well. 13 Mr. Ehrig, do you have anypreferred locales or 14 recommended locales for my staff? 15 MR. EHRIG: Well, Manhattan's preferable, but if 16 the FAA thinks that theirwitnesses will be easier for the 17 Long Island, that's fine. We're not going to object to that. 18 JUDGE SULLIVAN: Okay. We'll seewhat we can come 19 up with, and we'll notifyyouboth inwriting as soon as 20 possible. In terms of exhibits, I know inthe litigation and 21 procedural order, I indicatedonpage 3 of 

### 4 inparagraph e, 22 as in egg, that you shouldbring at least three copies of any

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1 documents you intend to offer for exhibits. And I justwant 2 tomake one change to that. I will take the original and one 3 copy, andthen the court reporter will actually get the third 4 copy, so that you know that I'llbe taking two, and the court 5 reporter will onlybe taking one. 6 Other than that, is there is anything else, Mr. 7 Berman, that we need to discuss or take care of before we see s each other next year in 2014 on this case? 9 MR. BERMAN: I just have a question. There's a 10 prehearing, the order setting the procedures gives a deadline 11 for motion in limine after the exhibits are submitted. Would 12 that include objections to any exhibits? And, if so, is that 13 somethingthatmight be resolvedbefore the hearing, if 14 anybodyhas any objections to exhibits? 15 JUDGE SULLIVAN: That's an interesting question. 16 It actuallydidn't anticipate that, but we can talk about 17 that now. 18 Mr. Ehrig, do youhave anyparticular comment or 19 response to that? 20 MR. EHRIG: Yes, Your Honor. I'mjust curious what 21 exhibits, inparticular, the FAA is going to object to? 22 MR. BERMAN: Well, I don't anticipate

-- fromwhat

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I've seen, I don't anticipate objecting to any exhibits. I'm just anticipating that, perhaps, my exhibits wouldbe objectedtobythe respondent. JUDGE SULLIVAN: Okay. Well, why don' we do this? I haven't seen any of the discovery and I didn't expect to. I don't know what exhibits or objections youmight have to such exhibits would encompass. And given the short time between January 21, 2014, and January 28, 2014, I'mnot sure that I wouldhave time tomake rulings on objections since they're lengthy. And I don't want to cut the parties off frommaking all objections during the course of the trial. If there is obvious objections that you can see and you canput together inwriting tomeet that January 21, 2014 deadline, that probablywouldbe helpful, although I don't want to limit the parties to simplythose objections, when in fact sometimes you have authenticityand custody issues that you needwitnesses to address during trial. So, Mr. Berman, let me get backto you. I presume, andperhaps I presume in error, that Mr. Ehrig has received copies of any and all documents that you arepotentially planning to submit as exhibits at this point. Would that be a fair presumption?

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1 2 that. MR. BERMAN: Actually, just thismorning, I thought Itjust occurredto me this morning documents that I 3 haven't submitted yet, haven't receiveduntil a couple days 4 ago. And, for themost part, he has all my exhibits. It's 5 prettymuch what's in the original enforcement investigator 6 file. There's one document. I could tell themnow. It's an 7 84-10 form that reflects the check rides thatMr. Kalish 8 received, and I don't think that check ride is in dispute. 9 But I will provideMr. Ehrigwith a copy of that. 10 JUDGE SULLIVAN: Okay. Once that's provided, Mr. 11 Ehrig, will yoube able to address that informally if you 12 have any concerns about the foundation or the authenticity, 13 or the use of the document withMr. Bermanprior to the 14 January 21, 2014 deadline that's in the current corrected 15 order setting litigation dates andprocedures? 16 MR. EHRIG: Yes, Your Honor. That shouldn't be a 17 problem. And itwas at this time Doug anticipatedto 18 objectingto any of the exhibits that we've seen so far. 19 can't comment on the ones that I haven't seenyet, Your 20 Honor. I

21 JUDGE SULLIVAN: Okay. Thenwhy don't we leave it 22 at this, instead? Ifthe parties wishto file written

DiversifiedReportingServices,Inc.1 objections to any and all exhibits, theymay do so on or 2 before January 21, 2014, but I don't want to use that as a 3 date of finality, because I think things come up at trial 4 that no one can anticipate. But, if there are obvious 5 disagreements that you know about, itwouldbe helpful to 6 alertme in advance. And then I will address those 7 objections and any others that come to my attentionwhen we 8 convene inNew York State on January 28, 2014. And I will 12

9 try for theManhattan location first, and then I will try for 10 the Central Islip location, as well. 11 Well, let me change that. I will try for the 12 Central Islip location first, since that's more convenient 13 and there's no objection; and, ifthat doesn't work, I will 14 go to the Manhattan location. So we'll go from Islip to 15 Manhattan, if Islip's not available, and then I will get that 16 notice out to you as soon as possible so that you can arrange 17 for.your witnesses accordingly. 18 With that, and let me just double-check one other 19 thing. I shouldmention, and this again goes backto the 20 June 5, 2013, corrected order, page 3, paragraph e, as in 21 egg. I did not list that in this document, but I have been 22 listing it since this document was filed inother orders.

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1 would likeboth of you toprovideme when you giveme your 2 exhibits a cover sheet identifying the exhibits so that it's 3 an index sheet. As an example, the index sheet would say, 4 "Index sheet for respondent's exhibits." And then on the 5 left-hand side, it would say "R-1." On the right-hand side 6 itwould say, "Copy of driver's license for Bob Jones." 7 8 MR. BERMAN: Okay. JUDGE SULLIVAN: Yeah, that kind of thing so that I 9 have a quick reference to all of the exhibits as we move 10 through the trial. And I can keep a more accurate record of 11 what's beenmoved for admission, what's been admitted, what's 12 been denied, and so forth, so that we have a good appellate 13 recordto work from, ifneeded. 14 With that, Mr. Berman, is there anything else that 15 we can address for your client today? 16 17 MR. BERMAN: No, Your Honor. JUDGE SULLIVAN: Okay. And, Mr. Ehrig, anything we 18 can address for your client? 19 20 MR. EHRIG: No, JUDGE SULLIVAN: thank you, Your Honor. Okay. Then I look forward to 21 seeing you all in about 2-1/2 months. 22

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1 With that, we can go off the record, and I wish you 2 all a good day. Thankyou. 3 [The prehearing telephone conference was concluded 4 at 10:50 a.m.] 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 

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