## SERVED: August 19, 2014

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

In The Matter Of: ) ) AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent ) DocketNo. FAA-2013-0291 ) ) Case No. 2011S0290032 ) )

ORDERDENYING RESPONDENT'S MOTION TO COMPEL DISCOVERY OF FAA ATTORNEY'S WORKPRODUCT ....•.**~**

OnMay 2, 2014 an Order Granting in Part and Denying in Partthe Respondent's Motion to Compel Discovery was filed. Among other things, this 5/2/14 Order directed the FAA to file with the Office ofHearings, on or before May 14, 2014, a copy ofthe un-redacted Enforcement Investigative Report ("EIR"), with an index identifying whatprivilege(s) the FAA was claiming for eachredacted section. (5/2/14 Order, 10**~** 2.)
Five days afterthe May 14, 2014 deadline, on May 19, 2014, the FAA filed with the Office ofHearings boththe EIR and a Privilege Index ("Index"), pursuantto the directive in the 5/2/14 Order. The Respondentdid not object to the late filing.
On June 23, 2014, an Order SettingNew Litigation Dates and Procedures was filed. Pursuant to this May 2, 2014 Order, the FAA was ordered, among otherthings, to fully respond to the Respondent's InterrogatoryNo.9, on orbefore May 14, 2014. A. Discovery Dispute The underlying discovery dispute involves the redacted parts ofSection B ofthe FAA's Enforcement Investigative Report ("EIR"), which is a total ofsixteen (16) pages, as well as one(1) email Item ofProof, #4 ("lOP"), which was one (1) redacted page attached to the EIR. 1The Respondent seeks full disclosure ofthese documents over the FAA's objection. The FAA claims
a "deliberative" process privilege for the lOP (Index, 2), and claims both an attorney-client privilege and a "deliberative" process privilege for the redacted portions 9fthe EIR. (!d.). FOIA "Deliberative" Process Privilege DistinguishedFrom WorkProductPrivilege It should first be notedthatthe "deliberative" process privilege is typically raised when
an agency asserts that its communications are exempt from disclosure under the Freedom of Information Act ("FOIA"). 5 U.S.C. §552(b)(5). The deliberative process covers "documents reflecting advisory opinions, recommendations and deliberations comprising part ofa process by which governmental decisions and policies are formulated." Dept. of Interior v. Klamath Water Users ProtectiveAss'n, 532 U.S. 1, 9 (2001). It is the "generally recognized privilege for 'confidential intra-agency advisory opinions."'NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (quoting KaiserAluminum & Chemical Corp. v. UnitedStates, 157 F. Supp. 9839, 946 (1958)). The FOIA "deliberative" process privilege is a qualified privilege that applies to all executive branch officials. It may be overcome by a sufficient showing ofneed. Judicial Watch, Inc. v. Dept. of Justice, 365 F. 3d 1108, 1114 (D.C. Cir. 2004). The dominant objective ofFOIA is "broad disclosure," and FOIA exemptions prohibiting disclosure are given "anarrow compass." Klamath, 532 U.S. at 8 (2001);AccordMilner v. Dept. of Navy, 131 S. Ct. 1259, 1262-65 (2011) (FOIA exemptions are explicit, and must be narrowly construed). The test for the "deliberative" privilege inFOIAreviews is whether the production ofthe document would be injurious to the "consultative" functions ofgovernment inpre-decisional policy making. See e.g., Electronic Frontier Foundation v. US. Dept. of Justice, 739 F.3d 1, 8-9 (D.C. Cir. 2014); Tax Analysts v. IR.S., 117 F. 3d 607, 616 (D.C. Cir. 1997) (the governmenthas the burden to show that the materials were generated before the adoption ofthe agency policy).
This case does not involve a FOIA request, nor does it involve a request for broad public disclosure. Instead, it involves a litigating party's request for agency investigative materials

1Originally, the dispute also involved the EIR's Table ofContents. However, in the FAA's Privilege Index, the FAA waived its claim ofprivilege regarding the EIR's Table ofContents, and stated that a copy had been provided to the Respondent. (Index, 1fn. 1.) Page 2 of 19created priorto the FAA filing ofa formal enforcement complaint. While FOIA exemption review incorporates the attorney work product doctrine, it is not controlling in litigation. See MarkS. Wallace, Discovery of GovernmentDocuments andthe OfficialInformation Privilege, 76 Colum. 

### L. Rev. 142, 154-163 (1976) [hereinafter "GovernmentDocuments"]; See also, S.E.C.
v. YorkvilleAdvisors, LLC, ---F.R.D. ---, 2014 WL 2208009 (S.D.N.Y. 2014) (deliberative process under FOIA is a "subspecies" ofwork product protection).
In essence, agency materials may be denied for general public disclosure under FOIA, yet stili be disclosed in an individual litigation upon a party's showing ofneed. NLRB v. Sears, Roebuck & Co., 421 U.S. at 149; F. TC. v. Grolier, Inc., 462 U.S. 19,25-28 (1983) (FOIA Exemption 5 exempts those documents "routinely" or "normally" privileged in litigation,.while the work product doctrine allows disclosure ofsuch documents upon a showing ofneed). Historically in these proceedings, the "deliberative" process privilege has often been referenced when addressing discovery disputes. In re AmericanAirlines, Inc., FAA OrderNo. 89-0006 at 8 (Dec. 20, 1989) (finding that documents and informationrelated to pre-complaint, "internal deliberations [regarding the civil penalty amount] are protected from discovery by the deliberative process privilege."); In re ContinentalAirlines, Inc., FAA OrderNo. 90-18 at 6 (Aug. 22, 1990) ("Informationrelating to the agency's decisionmaking process prior to the issuance ofa complaint is irrelevant, and protected from discovery by the deliberative process privilege."); see, e.g., In re Mateo Products, Inc., FAA-2002-12285 (Apr. 24, 2003) (applying deliberative process privilege to redacted portions ofEnforcement Investigation Report). However, when discussing the scope ofdiscovery ofan agency's documents during adversariallitigation, an agency's assertion of"deliberative" privilege is more accurately referenced as the attorney workproduct privilege or protection. See Government Documents, at 152-144; JeffA. Anderson, The WorkProductDoctrine, 68 Cornell 

### L. Rev. 760,795-796 (August 1983) [hereinafter, "WorkProductDoctrine"]2; See e.g., UnitedStates v. Chatham City Cmp. 72 F.R.D. 640 (D.Ga. 1976) (investigative reports ofF.B.I. agents prepared in anticipation

2 The Work ProductDoctrine is a comprehensive study ofthe history and development ofthe work product doctrine and the application ofRule 26(b)(3), from common law to 1983 (the date ofpublication). While not fully comprehensive for today's cases in 2014, it remains a valuable resource for practitioners, and is cited frequently in this Order. Page 3 of 19oflitigation are qualified work product). To assist the parties, abriefreview ofthe work product privilege (or immunity) is included here. 

### B. BriefSummary of Attorney Work Product Privilege 1. Discovery In General
In general, the discovery rules apply to the federal governmentjustas fully as they apply to any other litigant. The ordinary rule, except as modified by statute, is thatprivate persons do not surrender their evidentiary privileges when they institute a lawsuit. So long as this continues to be the rule for private persons it should be applied, in civil litigation, to the government. 8 Charles Alan Wright & Arthur R. Miller, Federal Practice andProcedure§ 2019 (3d ed. 2014). Nevertheless, "mutual knowledge ofall the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has inhis possession." Hickman v. Taylor, 329 U.S. 495, 507 (1947). The fundamental purpose ofdiscovery exchange is "fact-maximization and issue formulation." Thus, a party will seek discovery ofmaterials orinformation acquired orheld by the opposing party's attorney or agent. Some ofthis material will be provided in response to discovery requests (e.g., interrogatories, requests for admission, depositions, etc.). Otherrequests for material will be resisted, mosttypically on the grounds ofthe attorney work product privilege. Work ProductDoctrine at 763. 2. Development ofAttorney Work Product Privilege Although decided over 65 years ago, the case ofHickman v. Taylor, 329 U.S. 495 (1947) remains a "milestone" decision in the development ofdiscovery rules and recent caselaw requiring qualified protection ofan attorney's work product. WorkProductDoctrine at 780. The Hickman Court explainedthat the scope ofthe attorney-client privilege did not cover an attorney's workproduct such as "memoranda, statements, and mental impressions" or "briefs, communications and otherwritings prepared by counsel" or "anattorney's mental impressions, Page 4 of 19conclusions, opinions, or legal theories." Hickman, 329 US. at 508. However, the Hickman Courtfound that suchmaterial, which it identified as an attorney's ''workproduct," was not intendedby the discovery rules to beroutinely produced in discovery. Id. at 510. Were such materials opento opposing counsel on mere demand, much ofwhat is nowput downin writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving oflegal advice and in the preparation ofcases for trial. The effect onthe legal profession would be demoralizing. And the interests ofthe clients and the cause of justice would be poorly served. 

### ld. at 511.
In essence, theHickman Courtbalancedthe goals ofopendiscovery in an individual case againstthe needs ofthe adversarial system as a whole. Work ProductDoctrine at 786. "[O]pen discovery serves those purposes [issue and fact development] in each individual case, while the work product doctrine influences the nature ofthe attorney's fact-finding efforts in general." Id. at 787. The workproductdoctrine, definedby Hickman and developed by subsequentrule adoption and caselawinterpretations, provides for necessary discovery in an individual case, while atthe same time preservingthe adversarial system process, andthe privacy ofthe attorney's role inthat adversarial system. Id. at 784-86; See UnitedStates v. American Tel. & Tel. Co. 642 F.2d 1285 (D.C. Cir. 1980) (work product privilege exists to promote the adversary system). Thus, each party in an adversarial case is responsible for investigation, fact gathering, identifying legal theories and presenting arguments. Work ProductDoctrine at 785. "[T]he adversary system fosters a competitiverelationship that motivates eachparty to marshal all the law and facts beneficial to its case." Id; See Mattenson v. Baxter Healthcare Corp. 438 F.3d 763, 768 (7th Cir. 2006) (opposing counsel should not be allowed to shanghai the other party's research). "The work-product privilege is intended to prevent a litigant from taking a free ride on the research and thinking ofhis opponent's lawyer[,] andto avoid the resulting deterrent to a lawyer's committinghis thoughts to paper." UnitedStates v. Frederick, 182 F.3d 496, 500 (7th Cir. 1999) (citations omitted). Page 5 of 19Nevertheless, applying the work product protection in litigation remains a balancing test in each individual case, since some work product discovery may still be required. Work Product Doctrine at 800. "[T]he function ofworkproduct immunityis to preserve the benefits ofadverse representation without frustrating the goals ofopen discovery." 

### !d. at 786.
3. Rule 26(b)(3)Protection ofAttorney's Litigation Work Product The work product doctrine is applicable in administrative proceedings, when they are of
an adversarial nature. Wright & Miller, supra, § 2024. The workproductprotection is codified in Federal Rule ofCivil Procedure 26(b)(3)(A), 3 which states that a party may not "ordinarily" discover documents and tangible things prepared by an attorney or party agent in anticipation of litigation. However, Rule 26(b)(3)(A) also provides that these same documents "maybe discoverable" as follows: (i) they are otherwise discoverable under Rule 26(b)(1 ); and (ii) the party shows that it has substantial need for the·materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Fed. R. Civ. P. 26(b)(3)(A). Rule 26(b)(3)(B) also provides that certaintypes ofan attorney's "thinking" or "opinion" litigation work producthas special qualified protection against disclosure, as follows: Ifthe court orders discovery ofthose materials, it must protect against disclosure ofthe mental impressions, conclusions, opinions, or legal theories ofa party's attorney or other representative concerning the litigation. Fed. R. Civ. P. 26(b)(3)(B). In essence, the "workproduct" doctrine under Rule 26(b)(3) protects both ah attorney's overall trial preparation materials and the attorney's litigation "thinking" fromordinary discovery. This work product protection is not absolute, nor should it be applied rigidly, because there are certain circumstances when a party may legitimately demand work product disclosure. 4

3 After the Hickman decision was issued in 1947, Rule 26(b)(3) was amended several times, in orderto clarify the scope ofpermissible discovery in accordance with Hickman and other "work product" case decisions. ·
4 Itshould also be noted that in the adversarial system, it is common for attorneys to selectively disclose work product to strengthen their case. As a result, the courts must ensure that a party's selective disclosure ofwork Page 6 of 19WorkProductDoctrine at 777. Therefore, "varying degrees" ofprotection are provided "for certain information ormaterials prepared for litigation." 

### Id. at 788. 4. BriefSummary ofthe FourTypes ofDiscovery Material
In the adversarial system, there are four broad-based types ofmaterial that parties seek to obtain from each other in preparation for trial: "facts," "attorney ordinary work product," "attorney's opinion work product," and "legal theories." Work Product Doctrine at 788-89. Of these four types ofmaterial, facts 5 and legal theories 6 are freely discoverable, 

### Id. at 799, whereas an attorney's "ordinary" and "opinion" workproduct receive certain protections from discovery, Id. at 763-64. The remainder ofthis briefsummary will address only attorney work product materials, which are at issue inthis case. A. Attorney's "Ordinary" WorkProduct.
An attorney's "ordinary" (or "shell") work productis the full sum ofan attorney's work. WorkProductDoctrine at 789. Ordinary work product includes an attorney's "interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless othertangible and intangible" materials. !d. at 791 (quoting Hickman, 329 U.S 495 at 508). It also includes "investigative reports," or "inter- and intra-office memoranda of government agencies, ifthe memoranda are prepared in anticipation oflitigation." Work Product Doctrine at 795; See UnitedStates v. Nobles, 422 U.S. 225,238-39 (1975) (Rule 26(b)(3)

product does not create an "inherent unfairness" in the proceeding. Work ProductDoctrine at 884. For example, an attorney may not withhold work product information, butthen proffer a testimonial witness at trial who has utilized the same work productto refresh his memory. In such a scenario, the courts deem the work product protection regardingthe testimonial material to have been waived. The opposing attorney will be allowed access to the work product in order to effectively cross-examine the witness. Work Product Doctrine at 884-87.
5 "Facts" are actual physical circumstances in reality (e.g., objects, behavior, deeds, or events). Discoverability: Facts, when segregated from othertypes ofdiscoverable material, are not protected. They are always discoverable, often by voluntary disclosure, or by interrogatory or deposition. Work Product Doctrine at 789.

6 "Legaltheories" are the legal principles upon which a party intends to rely. Work ProductDoctrine at 784-86 at 838. Discoverability: Legal theories are not protected as work product, and are usually discovered through pleadings orthrough interrogatories and requests for admission. !d. at 838. Essentially, legal theories are "discoverable only after opposing counsel has done the preliminary work the adversary system seeksto encouragenarrowing issues and recognizing the importance ofparticular facts." /d. at 838.
Page 7 of 19protects documents prepared by or for a party,as long as they were prepared in anticipation of litigation).
In general, Rule 26(b)(3) requires three (3) tests to be satisfiedbefore materials maybe classified as an attorney's ordinary workproduct. The materials mustbe:

a. "documents and tangible things;" b. "prepared in anticipation oflitigation or for trial;" and c. "by or for anotherparty or by or for that otherparty's representative." Wright & Miller, supra, §2024. "The workproductdoctrine is not, however, an umbrellathat shades all materials preparedby a lawyer or agent ofthe client." 23 Am. Jur.2d §44 (2014). It applies only to documents a partyhas assembled, not to facts learned from those documents. Jd.



### I

d. For example, the doctrine does notprotect factual informationthat a lawyer obtains when investigating a case; the work product concept furnishes no shield against discovery, by interrogatories or by deposition, ofthe facts that the adverse party's lawyer has learned, orthe persons from whom he or she haslearned such facts, or the existence or nonexistence ofdocuments, even though the documents themselves may notbe subject to discovery

Ifthe court classifies material as an attorney's ordinary workproduct, facts contained in
an attorney's ordinary workproductmay still be isolated and discovered. WorkProductDoctrine ·at789; Wright & Miller, supra,§ 2024; 23 Am. Jur.2d 

### §44 (2014). Opinions, impressions, or other matters in the ordinary work product may also be discoverable. "(T]he work product doctrine encourages dual investigationby shielding documents that the otherparty could reproduce by diligent effort. Where, however, two investigations are impracticable because the substantial equivalent ofthe material sought is not available, discovery is permitted." Work Product Doctrine at 800 (emphasis added). B. Attorney."Opinion" WorkProduct An attorney's "opinion" work product is distinct from opinions contained in an attorney's ordinary workproduct materials. Work Product Doctrine at 817. In contrastto an attorney's ordinary work product, an attorney's opinion (or "core") workproduct is the attorney's thought Page 8 of 19processes.7 Work Product Doctrine at 791; Wright & Miller, supra. § 2026. Itis the "mental impressions, conclusions, or opinions ofthe lawyer." WorkProductDoctrine at 793. Opinion workproduct includes an attorney's legal strategy, such as his intended lines ofproofand cross-examinationplans. It encompasses an attorney's evaluation ofthe strengths and weaknesses ofhis case and the inferences he has drawn from interviews ofwitnesses. A counsel's ordering offacts and his marshaling, aligning, and indexing ofempirical data and documents is also given immunity from discovery. Even a mere compilation offacts may be protected under rule 26(b)(3) ifitreflects an attorney's mental impressions. 

### !d. at 818-819 (citations omitted). An attorney's "opinion workproduct" also includes the "mental impressions, conclusions, opinions, or legal theories of"otherrepresentative[s] ofa party" regarding the litigation. Id. at 817;AccordWright & Miller, supra, §§ 2019 and 2026. [T]he [workproduct] doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One ofthose realities is that attorneys oftenmustrely onthe assistance ofinvestigators and other agents in the compilation ofmaterials in preparation for trial. It is therefore necessary that the doctrine protectmaterial prepared by agents for the attorney as well as those preparedby the attorney himself. Nobles, 422 U.S. at 238-39. It should be pointed out, however, thatthe mere involvement ofcounsel is not a guarantee ofprotection for all the opinion work generated by agents or representatives. In fact,
even pertinent documents that may have been generated by the prospect offuture litigation are not always protected. Wright & Miller, supra, § 2024. There is a "qualified"privilege for materials preparedpriorto a complaintbeing filed, ifthematerials were created in anticipation oflitigation. Nobles, 422 U.S. at 238-39 (citing Hickman, 329 U.S. 495). "The courts have adopted a nuanced approachto the anticipation-of-litigationprong ofwork-product analysis, and individual cases turn ontheirparticular circumstances." Wright & Miller, supra, § 2024. "As with all assertions ofwork-product protection, opinion work product is guarded against

7 "Thought processes" have also been called "intangibles." For example, the lower court in Hickman v. Taylor described "intangibles" as: "the lawyer's use ofhis tongue, his pen, and his head, for his client." Work Product Doctrine, at 775, quotingHickman v. Taylor, 153 F. 2d 212,223 (3d Cir. 1945), aff'don othergrounds, 329 U.S. 495 (1947). Page 9 of 19discovery only ifprepared in anticipation oftrial; mental impressions ofan attorney in service to otherobjectives, such as negotiation ofa transaction, are not protected by the doctrine." 

### !d., § 2026. Discovery ofan attorney's opinion workproduct is "steadfastly safeguarded," but it is not absolutely barred from discovery. Work ProductDoctrine at 825. Under a strict protection standard, there mustbe an "extraordinary showing" ofnecessity and hardship by the moving party, in orderto obtain discovery ofthe opposing party's attorney's opinionworkproduct. 

### ld. at 829. However, the mere presence ofmental impressions, conclusions, and legal theories within documents held by a party's attorney is not determinative ofa privileged status. Instead, the opinion workproductprotection is limited only to documents that are trial preparationmaterial.8 Wright & Allen, supra,§ 2026. Other "information essential to ajustdecision" shouldremain available to the litigating parties. Work ProductDoctrine at 799. C. BriefSummary ofAttorney-Client Privilege "The attorney-clientprivilege protects communications (1) between a clientand his or her attorney (2) that are intendedto be, and in fact were, kept confidential (3) for the purpose of obtaining orproviding legal advice." UnitedStates v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011); Accord UnitedStates v. Davis, 636 F.2d 1028, 1040-41 (5th Cir. Unit A Feb. 1981). "[C]ourts apply the privilege onlywhere necessary to achieve its purpose and construe theprivilege narrowlybecause itrenders relevant information undiscoverable." Mejia, 655 F.3d at 132 (emphasis added and citations omitted). "Communications from a clientthatneitherreflect the lawyer's thinking nor are made for the purpose ofelicitingthe lawyer's professional advice or other legal assistance are not privileged." Frederick, 182 F.3d at 500 (citations omitted).

8 It should be noted that "materials prepared pursuantto regulatory requirements" by a public official should not automatically be considered as "prepared in anticipation oflitigation" simply because they are likely to be the subject oflater litigation. Wright & Allen, 'Supra, §2024; See Advisory Committee's Note, 48 F.R.D. 487, 501 (1970) ("Materials assembled pursuant to public requirements unrelated to litigation, or for other non-litigation purposes are not under [work product] immunity"); Grossman v. Schwarz, 125 F.R.D. 376,388-89 (S.D.N.Y. 1989) (it is essential to look atthe "hat" the public official was wearing when he prepared the document);. Boyer v. Gildea, 257F.R.D. 488, 491 (N.D. Ind. 2009) (whether a document is protected depends on the motivation behind its preparation, rather than on the person who prepares it); 1988 Colum. Bus. L. Rev. 587, 597, The Work Product Doctrine: Why Have an Ordinary Course of Business Exception (1988); Cf U.S. v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (a document created because ofthe prospect oflitigation does not Jose protection because it also provided help in a business decision).
Page 10 of 19In short, the attorney-clientprivilege protects the fundamental relationship ofan attorney withhis client. 

### It allows an attorney to "learnhis client's secrets" and give advice without fearing that he will laterbe forced to testify about such communications. WorkProductDoctrine at 765, 882. The attorney-clientprivilege is intended to encourage people who find themselves involved in actual orpotential legal disputes to be candid with any lawyer they retain to advise them

...The hope is thatthis will assistthe lawyer in giving the client good advice (which may head offlitigation, bring the client's conduct into conformity withlaw, or dispel legal concerns that are causing the client unnecessary anxiety or inhibiting him from engaging in lawful, socially productive activity) and will also avoid the disruption ofthe lawyer-client relationship that is brought about when a lawyer is soughtto be used as a witness against his client. Frederick, 182 F.3d at 500 (citations omitted). Ofcourse, ifthe client intends to share, or has shared, his "secrets" with others (i.e., not keep the information secret), thenthere is nojustificationfor the privilege. Work Product Doctrine at 882. Where waiver ofwork product immunity is at issue, a party will often raise the attorneyclient privilege as well. Id. at 881: Both waivers involve disclosure ofinformation to third parties. However, workproduct waiver is concerned with revealing "work product materials to
an opponent," whereas attorney-client waiver ofcommunications is concerned with revealing a client's "secrets"to the world. Id. at 881; See Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 150 (D.Del. 1977) (attorney-clientprivilege and work product doctrine are two concepts treated quite differently, reflecting different policy considerations). Thus, the workproductprotection is "farbroader" than that ofthe attorney-client protection. Work ProductDoctrine at 882;AccordNobles, 422 U.S. at 238-39 (citing Hickman, 329 U.S. at508). Rather thanthe limited focus ofprotecting a client's secrets, the work product protection "provides a working attorney with a 'zone ofprivacy' within which to think, plan, weigh facts and evidence, candidly evaluate a client's case, and prepare legal theories." Work Product Doctrine at 882.

Page 11 of 19

### D. FAA's Claim ofAttorney-Client Privilege The FAA asserted an attorney-client privilege only for the redactedportions ofSection B oftheFAA's Enforcement Investigative Report ("EIR"). As noted earlier, the attorney-client privilege is narrowly construed, and applied "only when necessary" to protect a client's "secrets" from disclosure. 

### Mejia, 655 F.3d at 132. 1. General EIRIdentification The EIR is identified on its first page as "EIR2011S0290032." (EIR, 1.) The EIR produced for 

### in camera inspection is not dated or signed. Itwas undisputed by the parties that it
was authored by FAA Safety Inspector Lipinski ("Inspector Lipinski"), who was the primary FAA investigator inthis safetyregulatory case. (3111114 Resp't Mot. to Compel, 4.) Based on the content ofthe EIR, and the arguments ofthe parties, it appears undisputed that the EIR was written in late 2010 or early inthe year 2011-approximatelytwo (2) years prior to the June 20, 20l3 filing ofthe Complaint in this case. 2. General Description ofthe EIR Contents The EIR contains information dating back to July 2009 (EIR, 3), which precedes the alleged dates ofthe three (3) violations charged inthe Complaint (i.e., August 2009, October 2009, and March 2010) (Compl., 2). The last date contained inthe EIRis May 2010. (EIR, 1.) In this case, the un-redacted EIR's title: "Statement ofCase and Factors Affecting Sanction," identifies the content ofthe document as a fact summary ofan FAA safety investigation, with proposed "sanctions" recommended for the alleged violations. The EIR's author, Inspector Lipinski, repeatedly describes factual information aboutthe Respondent (i.e., history ofits business and safety activities, the Respondent's responses to FAA inquiries, etc.). Inspector Lipinski also describes his and other safety inspectors' activities, analyses and opinions, and summarizes communications with both the Respondent and others. These FAA communications include a Letter ofWarning (EIR, 1) and Letters ofInvestigation (EIR, 1, 2, 3, 4) sentto the Respondent. The un-redactedportion ofthe EIRdemonstrates that Inspector Lipinski and other FAA employees were advising the Respondent, both in writing and withpersonal visits, ofthe alleged safety violations and the Respondent's need to correctthem. (EIR, 4-8.) In the redacted portions ofthe EIR, Inspector Lipinski reiterates certain opinions, offers analysis and conclusions, and makes certainrecommendations for legal action. Page 12 of 193. Allegation ofFAA Counsel Involvement- Not Dispositive The FAA's 3/21114 Response asserted that the FAA process for all safety investigations begins atthe inspection level, is next reviewed at a certain point (time unstated) by a "regional specialist" (identification/qualifications unknown), and then ultimately reviewed at times (but not always) by an FAA attorney (reviewprocess undescribed) for approval ofa certain type of "legal" action (undescribed). 9 (3/21/14 Response at 7-8.) Nevertheless, the FAA asserted that the attorney-client privilege protecting "confidences" was applicable to the EIR, because FAA counsel had been involved: The purpose ofthe document is to enable Flight Standards to determine whether to request legal action in a particular matter, and then presentthis request to FAA attorneys. (5/19/14 Privilege Index, 2.)
Atbest, this appears to be an acknowledgement that at some pointthere is an internal FAA regional request for an FAA attorney to become involved in the enforcement action. 12 This request by a regional specialist-whethertwo (2) months or two (2) years after the Respondent's actions were investigated--does not automatically convert the EIR into a privileged "attorneyclient" communication, either between Inspector Lipinski and FAA counsel, or between the regional specialist and FAA counsel. 14
Even ifF AA internal policy requires that a case be referred to an FAA attorney for review before "legal charging," such solicitation for "legal advice", and legal response (ifany) should be brightly distinguished from any factual record keeping made as part ofa regularly conducted safety investigation that involves public communications, and that might laterbe used

9 It was uristated when the internal request for FAA attorney review for "legal action" occurred. Thus, it could occur before the issuance ofa Notice ofProposed Civil Penalty (date unknown, copy not provided), or before the issuance ofthe May 29, 2013 Final Notice ofProposed Civil Penalty (copy notprovided), or beforethe issuance ofthe June 20, 2013 Complaint- which is the first date in this case where an FAA attorney's involvement is recorded.
12 What actual direct contact(s) the FAA attorney has with either the safety inspector who authors the EIR, or the regional specialist, and when such contact(s) occur, is unknown.
14 According to the FAA, at some point Inspector Lipinski finished writing the 2011 EIR (date unspecified). He then provided it (date unknown) to an FAA regional specialist (person unidentified) for review, for the purpose of ultimately having the regional specialist refer the EIR (process undescribed) to an FAA attorney, to get legal advice (communication undated/undescribed) on the sufficiency ofthe investigation (advice unstated) for the purpose of "legal action" (unspecified). Page 13 of 19to support a public prosecution. Indeed, an FAA safety inspector's creation ofsuch a record, to support either "warning advice" to thepublic, or a public prosecution (as requiredbythe regulations) presumes a desire to ''tell the world" all about it. This record keeping documentation, for the purpose ofpublic safety enforcement, is directly contraryto a client who tells secrets to his attorney, which needto be kept hidden from the world. See Melanie B. Leslie, Government Officials asAttorneys andClients: Why Privilege the Privileged? 77 Ind. L.J. 469, 499 and 502-503 (2002) [hereinafter, Government Officials] (Extending the attorney-client privilege to government communications that contain no confidential facts about the government agency ["the client"] serves no purpose). 4. Attorney-ClientPrivilege Not Applicable
In examiningthe facts in this particular case, nothing in Inspector Lipinski's EIR was identifiable as an FAA agency "secret" intended solely for the FAA counsel to consider, render advice about, andthen keep confidential from the world. See In reSealedCase, 737 F.2d 94, 98- 99 (D.C. Cir.1984) (the attorney-client privilege protects confidential communications from clients to their attorneys). There were no secrets revealed, no request for legal advice, nor any legal advice by FAA counsel proffered orreferenced. See TaxAnalysts v. I.R.S., 117 F. 3d 607, 618 (D.C. Cir. 1997) (the privilege protects communications from attorneys to their clients ifthe communications "restonconfidential information obtained from the client"); See also, Government Officials at 500 (in "scores" ofcases, the government has been allowedto shield its communications for no reason even "remotely connected"to the rationale for the attorney-client privilege); Emily Jones, Note and Comment, Keeping Client Confidences: Attorney-Client Privilege and Work Product Doctrine in Light ofUnitedStates v. Adlman, 18 Pace L. Rev. 419, 441 (1998) [hereinafter "Keeping Confidences"] (attorney-client privilege should not be misused to "build a wall ofsilence" to shield all in-house communications). The FAA's argumentthat its in-house employee communications to FAA counsel are equivalentto a private individual seeking consultation with an attorney (3/21/14 Response at 8) is also notpersuasive, particularly since Inspector Lipinski has nothired the FAA's counsel, is not sharing personal secrets, and has no expectation orright to control the agency's contracted privilege with its attorney employee. There was also no demonstration in this case ofany personal contactby Inspector Lipinski orthe regional specialist with FAA counsel, nor any legal Page 14of 19advice provided by FAAcounsel to either Inspector Lipinski or the regional employee(s). Government Officials at 495-511; See 

### S.E.C. v. Yorkville Advisors, LLC, ---F.R.D. ---,2014 WL 2208009 (D.N.Y. 2014) (describing standards for evaluating attorney-clientprivilege). As a result, based on the material submitted for in camera review and the record in this case, the narrowly construed attorney-client privilege protection is not applicable to the redacted portions ofthe EIR. 15 However, redacted information in the EIRmay qualify for protection underthe attorney workproductdoctrine. 

### E. FAA's Claim of "Deliberative" or WorkProduct Protection The FAA argued that both the lOP and the redacted portions ofthe EIR were "privileged" and protected from discovery. 1. Description ofDisputed DiscoveryMaterial The ElRhas already been described. The lOP was produced in the year 2010, by another FAA employee. It is an internal FAA email communication to Inspector Lipinski and other FAA employees. Itwas produced shortly after the alleged April 16, 2010 on-site FAA investigation of the Respondent's business, but approximatelythree (3) years prior to the June 20, 2013 filing of the Complaint inthis case. 2. Rule 26(b)(3) Classification Tests As noted earlier, Rule 26(b)(3) requires three (3) tests to be satisfiedbefore materials may be classified as an attorney's "ordinary" work product. The materials mustbe:

a. "documents andtangible things;" b. "preparedin anticipation oflitigation or for trial;" and c. "byorfor another party orby or for that otherparty's representative." Itwas undisputed that boththe EIR and the lOP were documents created byFAA employees. The FAA also asserted thatboth documents had been prepared for the FAA attorney's use in a "legal action." (3/21114 Response at 7-8.)

15 It should be noted that courts have recognized that infonnation regardingpending investigations in law enforcement could be privileged, to protect the sensitive nature ofan on-going investigation. However, once the investigation is completed, the general rule has been that litigants should be allowed access to the police file. Mark S. Wallace, supra, at 158-59 and 160-65. Page 15 of 193. FAA Attorney's Work Product- Classification Established Courts have recognized that "[p]rudentparties anticipate litigation, and begin preparation priorto the time suitis formally commenced." DiversifiedIndustries, Inc., v. Meredith, 572 F.2d 596, 604 (8th Cir.l977). Nevertheless, "dual purpose" documents (i.e., documents that were preparedbefore litigation commences) often come under special scrutiny in discovery. 16 Wright & Allen, supra,§§ 2024 and 2026. Thus, it cannot be automatically assumed that all "preliminary" FAA safety investigation work must qualify as "protected" under an "anticipation" oflitigation" standard, particularly ifit is part ofthe agency's overall regulatory mission and duties. MarkS. Wallace, supra, at 159-60.; Keeping Confidences (investigative documents not granted "blanketprotection" ifpossibility oflitigation is too remote).
In general, however, ifthe "primarymotivatingpurpose behind the creation ofthe documentwas to aid inpossible future litigation" then it will typically be considered work product. Davis, 636 F.2d at 1039. (emphasis added and citations omitted); accordIn re Kaiser Alum. & Chem. Co., 214 F.3d 586,593 (5th Cir. 2000). 17
In this case, it was undisputed thatthe redacted lOP and the redacted EIR were created by FAA employees, and that such document creation occurred in anticipation oflitigation. (3111/14 Motion to Compel, 4-5.) Thus, all three classificationtests under Rule 26(b)(3) are deemed satisfied, and both documents have qualified protection from disclosure under the attorney work product doctrine pursuantto Rule 26(b)(3). Based on the in camera review ofmaterials, the lOP is an attorney's "ordinary" work product, while the material in the redacted portions ofthe EIR is an attorney's "opinion" work

16 For example, ifthe document would have been prepared irrespective oflitigation, it typically is not considered an attorney's ordinary work product. Wright & Miller, supra, §§ 2024-2026; 23 Am. Jur.2d § 44 (20 14); See Advisory Committee'sNote, 48 F.R.D. 487, 501 (1970) ("Materials assembled in the ordinary course ofbusiness orpursuant to public requirements unrelated to litigation, orfor other non-litigation purposes are not under [work product] immunity"); AlliedIrish Banks v. Bank of America, N.A., 240 F.R.D. 96, 106 (S.D.N.Y. 2007); S.E.C. v. NIR Group, LLC, 283 F.KD. 127, 132 (E.D.N.Y. 2012) (Materials not prepared by counsel in anticipation oflitigation, but prepared by others for multiple purposes, were not workproduct); Caremark, Inc. v. AffiliatedComputer Services, Inc., 195 F.R.D. 610, 613-14 (N.D. Ill. 2000) (not all documents can be categorized as workproduct, simply because an internal investigation is co-existent with apresent or anticipated litigation).

17 See also, Thomas Wilson, The Work ProductDoctrine: Why Have an Ordinary Course of Business Exception 1988 Colum. Bus. L. Rev. 587, 597, (1988); Cf U.S. v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (a document created because ofthe prospect oflitigation does not lose protection because it also provided help in a business decision); Keeping Corifidences at 444-45. Page 16of 19product, because it contains an FAA inspector's opinions, impressions, .and "thoughts" about the legal action. See 39 Am. Jur. ProofofFacts 3dProof of Basis for, andGroundsfor Lifting, Work Product ProtectionAgainstDiscovery §8 (2014)
4. Respondent's Preliminary Showing ofNeed- Established
As discussed earlier, Rule 26(b)(3) provides that opposing counsel may still obtain work product documents, prepared in anticipation oflitigation, upon showing a substantial need or undue hardship in obtaining equivalentmaterials elsewhere. The standard for review is a two part examination. The first step is forthe Respondent to show a preliminary need for the materials. "To show 'need' for documents protectedby the workproductprivilege, a party must presenttestimony or evidence demonstrating the material requested is critical to the theory ofthe requestor's case orto some significant aspect ofthe case. 23 Am. 'Jur. 2d § 44 (2014).
Inthis case, the Respondent allegedthere was "clear evidence ofbias"by Inspector Lipinski, which led the Respondent to "question the integrity of [Inspector Lipinski's] decisionmaking process. (3/11/14 Resp't Mot. to Compel, 4.) In support ofthis defense theory, the Respondent's discovery responses identified multiple individuals who would testify about the inspector's "abusive and inappropriate" statements about the Respondent. (3111114 Motion, Ex. 3 at 12; 3/26/14 Reply, 5.) In addition, the Respondent also submitted the testimonial Declarations ofMr. James Savastano, Mr. John Sullivan, andMr. W. Joseph Payne, all ofwhomtestified about statements madebyInspector Lipinski that appearedto be adversarial andbiased against the Respondent. (3/26/14 Reply, Ex. 2.) This evidence was more fully discussed in the 5/2114 Order Granting in Part and Denying in Part the Respondent's Motion to Compel Discovery, and will notbe repeatedhere. (5/2114 Order, 4.) Itwas sufficient to support an in camera review. (5/2/14 Order, 9-10.) 5. Respondent's SubstantialNeed and Undue Hardship Tests- NotEstablished The second step is for the courtto determine, upon in camera review ofthe disputed work product, whether a) the materialprovides the evidence the Respondent alleges is needed, and b) whether such evidence is unavailable to the Respondent by other means without undue hardship. Work Product Doctrine at 801. "[D]uringthis review, the trial court can evaluate whether the contestedmaterials provide the requisite evidentiary value alleged by the requesting Page 17 of 19party and determine whetherthe requested materials are substantially similar to materials already available." 23 Am. Jur.2d §44 (2014). 

### A. RedactedlOP The redacted lOP was not authored by Inspector Lipinski. The 

### in camera review showed
no evidence of, orreferenceto, statements ofbias by InspectorLipinski. It therefore does not hold any evidentiary value as alleged by the Respondent. Thus, it does not qualify as "needed" by the Respondent.


### B. RedactedEIR In contrast, the redacted EIR was authoredbyInspectorLipinski and contains his "mental impressions, conclusions, opinions, or legal theories" concerningthe litigation. 

### Work Product Doctrine at 817; Wright & Miller, 

### supra,§§ 2019 and 2026. These couldbe broadly classified as "statements" bythe Inspector, which are the "most common example" ofsought-after work product, for a party seekingto "impeach a witness and thereby discredit a portion ofhis opponent's proof." 

### Work ProductDoctrine at 802. The 

### in camera review ofthe redacted EIR did notreveal any "bias" statements similarto those reportedbythe Respondent's testifying witnesses. It does contain statements ofopinion and analysis, as noted earlier, which mightbe utilizedto show a certainbias. However, "[t]he
mere hope or surmise that the asked for material may contain informationthat couldbe usedto impeach a witness is not enoughto show substantial need or undue hardship." 

### Young v. United ParcelService, 88 F.R.D. 269, 271 (D.S.D. 1980). The Respondent's desire to see the information, and to "determine whether it will shed light" on its defense (3/11/14 Resp't Mot. to Compel, 5) is insufficientto demonstrate "needed evidence" or to support disclosure over objection. 

### WorkProductDoctrine at 808.
In addition, the Respondent has not demonstrated, pursuantto Federal Rule ofCivil Procedure 26(b)(3)(A), an inability, "withoutundue hardship," to obtainInspector Lipinski's opinionsor analysis through other discovery. 

### !d. at 801 ("To fulfill the undue hardship requirement, a party musttry butbe unable to obtain the information contained in requested documents without going to great lengths; lack knowledge ofwhere else to obtain the information; or showthat the information is completely unavailable elsewhere.")
Page 18 of 19In this case, the Respondent filed its motion prior to taking Inspector Lipinski's or anyone else's deposition. As a result, even ifthe in camera reviewhad revealed relevant material, the Respondent has not demonstrated that it lacks the ability to obtain the information from Inspector Lipinski or others. For example (not inclusive), there has been no showing that Inspector Lipinski is unavailable for compulsory deposition, has demonstrated a lack ofmemory about his ownwork, or thathe has engaged in obstructive behavior during the discovery process. See 39 Am. Jur. ProofofFacts 3dProof of Basisfor, andGrounds for Lifting, Work Product ProtectionAgainstDiscovery §8 (2014); WorkProductDoctrine at808 and 790,fn. 184. 

### G. CONCLUSION
Pursuantto 14 C.P.R. §13.220, Fed. R. Civ. Proc. 26(b)(3), and after reviewing all relevant caselaw, regulations, statutory authority, andhaving considered all the arguments and evidence submitted bythe parties, and being fully advised; 

### IT IS HEREBY ORDERED: 1. Theredacted one (1) email Item ofProof, #4 ("lOP"), is the FAA attorney's ordinary work product. 2. The redactedparts ofSectionB ofthe FAA's Enforcement Investigative Report ("EIR"), is the FAA attorney's opinion workproduct.
3. The Respondent's Motionto Compel production oftheredacted lOP, which is the FAA attorney's ordinary workproduct, is denied on the grounds that it does nothold any evidentiary value as allegedby the Respondent.
4. The Respondent's Motionto Compel production ofthe redactedportions ofthe EIR, which is the FAA attorney's opinionwork product, is denied onthe grounds that the Respondent's allegation ofsubstantial need andundue hardship have not been met.

Attachment: Service List

Page 19 of 19SERVICE LIST- BY U.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-Suite 2W1000 16

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 FAX: 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 FAX: 202-944-3306 Judge J.E. Sullivan 

### US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-2013-0291 (Civil Penalty Action)

16 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.