SERVED: August 19, 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In The Matter Of: ) 

) 

AIRBORNE MAINTENANCE 

AND ENGINEERING SERVICES 

Respondent 

) Docket No. FAA-2013-0291 

) 

) Case No. 2011S0290032 

) 

) 

ORDER DENYING RESPONDENT'S MOTION TO COMPEL 

DISCOVERY OF FAA ATTORNEY'S WORK PRODUCT 

....•. ~ 

On May 2, 2014 an Order Granting in Part and Denying in Part the Respondent's Motion 

to Compel Discovery was filed. Among other things, this 5/2/14 Order directed the FAA to file 

with the Office of Hearings, on or before May 14, 2014, a copy of the un-redacted Enforcement 

Investigative Report ("EIR"), with an index identifying what privilege(s) the FAA was claiming 

for each redacted section. (5/2/14 Order, 10 ~ 2.) 

Five days after the May 14, 2014 deadline, on May 19, 2014, the FAA filed with the 

Office of Hearings both the EIR and a Privilege Index ("Index"), pursuant to the directive in the 

5/2/14 Order. The Respondentdid not object to the late filing. 

On June 23, 2014, an Order Setting New Litigation Dates and Procedures was filed. 

Pursuant to this May 2, 2014 Order, the FAA was ordered, among other things, to fully respond 

to the Respondent's Interrogatory No.9, on or before May 14, 2014. 

A. Discovery Dispute 

The underlying discovery dispute involves the redacted parts of Section B of the FAA's 

Enforcement Investigative Report ("EIR"), which is a total of sixteen ( 16) pages, as well as one 
(1) email Item of Proof, #4 ("lOP"), which was one (1) redacted page attached to the EIR. 1 The 

Respondent seeks full disclosure of these 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 Distinguished From Work Product Privilege 

It should first be noted that the "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 of a process by 

which governmental decisions and policies are formulated." Dept. of Interior v. Klamath Water 

Users Protective Ass'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 Kaiser Aluminum & Chemical Corp. v. United States, 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 of need. 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 "a narrow 

compass." Klamath, 532 U.S. at 8 (2001); Accord Milner 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 in FOIA reviews is whether the production of the document would be 

injurious to the "consultative" functions of government in pre-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 government has the burden to show 

that the materials were generated before the adoption of the 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 

1 Originally, the dispute also involved the EIR's Table of Contents. However, in the FAA's Privilege Index, the 

FAA waived its claim of privilege regarding the EIR's Table of Contents, and stated that a copy had been provided 

to the Respondent. (Index, 1 fn. 1.) 

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created prior to the FAA filing of a formal enforcement complaint. While FOIA exemption 

review incorporates the attorney work product doctrine, it is not controlling in litigation. See 

MarkS. Wallace, Discovery of Government Documents and the Official Information Privilege, 

76 Colum. L. Rev. 142, 154-163 (1976) [hereinafter "Government Documents"]; See also, S.E.C. 

v. Yorkville Advisors, LLC, ---F.R.D. ---, 2014 WL 2208009 (S.D.N.Y. 2014) (deliberative 

process under FOIA is a "subspecies" of work 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 of need. 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 of such documents upon a showing of need). 

Historically in these proceedings, the "deliberative" process privilege has often been 

referenced when addressing discovery disputes. In re American Airlines, Inc., FAA Order No. 

89-0006 at 8 (Dec. 20, 1989) (finding that documents and information related to pre-complaint, 

"internal deliberations [regarding the civil penalty amount] are protected from discovery by the 

deliberative process privilege."); In re Continental Airlines, Inc., FAA Order No. 90-18 at 6 

(Aug. 22, 1990) ("Information relating to the agency's decisionmaking process prior to the 

issuance of a 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 of Enforcement Investigation Report). 

However, when discussing the scope of discovery of an agency's documents during 

adversariallitigation, an agency's assertion of "deliberative" privilege is more accurately 

referenced as the attorney work product privilege or protection. See Government Documents, at 

152-144; Jeff A. Anderson, The Work Product Doctrine, 68 Cornell L. Rev. 760,795-796 

(August 1983) [hereinafter, "Work Product Doctrine"]2

; See e.g., United States v. Chatham City 

Cmp. 72 F.R.D. 640 (D.Ga. 1976) (investigative reports of F.B.I. agents prepared in anticipation 

2 The Work Product Doctrine is a comprehensive study of the history and development of the work product doctrine 

and the application of Rule 26(b)(3), from common law to 1983 (the date of publication). While not fully 

comprehensive for today's cases in 2014, it remains a valuable resource for practitioners, and is cited frequently in 

this Order. 

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oflitigation are qualified work product). To assist the parties, a brief review of the work product 

privilege (or immunity) is included here. 

B. Brief Summary of Attorney Work Product Privilege 

1. Discovery In General 

In general, the discovery rules apply to the federal government just as fully as they apply 

to any other litigant. 

The ordinary rule, except as modified by statute, is that private 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 and Procedure§ 2019 (3d ed. 

2014). 

Nevertheless, "mutual knowledge of all 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 in his possession." Hickman v. Taylor, 329 U.S. 495, 507 (1947). 

The fundamental purpose of discovery exchange is "fact-maximization and issue 

formulation." Thus, a party will seek discovery of materials or information acquired or held 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.). Other requests 

for material will be resisted, most typically on the grounds of the attorney work product 

privilege. Work Product Doctrine at 763. 

2. Development of Attorney Work Product Privilege 

Although decided over 65 years ago, the case of Hickman v. Taylor, 329 U.S. 495 (1947) 

remains a "milestone" decision in the development of discovery rules and recent caselaw 

requiring qualified protection of an attorney's work product. Work Product Doctrine at 780. The 

Hickman Court explained that the scope of the attorney-client privilege did not cover an 

attorney's work product such as "memoranda, statements, and mental impressions" or "briefs, 

communications and other writings prepared by counsel" or "an attorney's mental impressions, 

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conclusions, opinions, or legal theories." Hickman, 329 US. at 508. However, the Hickman 

Court found that such material, which it identified as an attorney's ''work product," was not 

intended by the discovery rules to be routinely produced in discovery. Id. at 510. 

Were such materials open to opposing counsel on mere demand, much of what is 

now put down in 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 of legal advice and in the 

preparation of cases for trial. The effect on the legal profession would be 

demoralizing. And the interests of the clients and the cause of justice would be 

poorly served. 

ld. at 511. 

In essence, the Hickman Court balanced the goals of open discovery in an individual case 

against the needs of the adversarial system as a whole. Work Product Doctrine 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 work product doctrine, defined by Hickman and developed by subsequent rule 

adoption and caselaw interpretations, provides for necessary discovery in an individual case, 

while at the same time preserving the adversarial system process, and the privacy of the 

attorney's role in that adversarial system. Id. at 784-86; See United States 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 Product Doctrine at 785. "[T]he 

adversary system fosters a competitive relationship that motivates each party 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 of his opponent's lawyer[,] and to avoid the resulting deterrent to a 

lawyer's committing his thoughts to paper." United States v. Frederick, 182 F .3d 496, 500 (7th 

Cir. 1999) (citations omitted). 

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Nevertheless, 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 of work product immunity is to preserve the benefits of adverse 

representation without frustrating the goals of open discovery." !d. at 786. 

3. Rule 26(b)(3) Protection of Attorney'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 work product protection is codified in 

Federal Rule of Civil 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 "may be 

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 certain types of an attorney's "thinking" or "opinion" 

litigation work product has special qualified protection against disclosure, as follows: 

If the court orders discovery of those materials, it must protect against disclosure 

of the mental impressions, conclusions, opinions, or legal theories of a party's 

attorney or other representative concerning the litigation. 

Fed. R. Civ. P. 26(b)(3)(B). 

In essence, the "work product" doctrine under Rule 26(b)(3) protects both ah attorney's 

overall trial preparation materials and the attorney's litigation "thinking" from ordinary 

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 order to clarify the 

scope of permissible discovery in accordance with Hickman and other "work product" case decisions. · 

4 It should 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 of work 

Page 6 of 19 
Work Product Doctrine at 777. Therefore, "varying degrees" of protection are provided "for 

certain information or materials prepared for litigation." Id. at 788. 

4. Brief Summary of the Four Types of Discovery Material 

In the adversarial system, there are four broad-based types of material 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 of material, facts 5 and legal theories 6 are freely discoverable, Id. at 799, 

whereas an attorney's "ordinary" and "opinion" work product receive certain protections from 

discovery, Id. at 763-64. The remainder of this brief summary will address only attorney work 

product materials, which are at issue in this case. 

A. Attorney's "Ordinary" Work Product. 

An attorney's "ordinary" (or "shell") work product is the full sum of an attorney's work. 

Work Product Doctrine at 789. Ordinary work product includes an attorney's "interviews, 

statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and 

countless other tangible 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, if the memoranda are prepared in anticipation of litigation." Work Product 

Doctrine at 795; See United States v. Nobles, 422 U.S. 225,238-39 (1975) (Rule 26(b)(3) 

product does not create an "inherent unfairness" in the proceeding. Work Product Doctrine at 884. For example, an 

attorney may not withhold work product information, but then proffer a testimonial witness at trial who has utilized 

the same work product to refresh his memory. In such a scenario, the courts deem the work product protection 

regarding the 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 other types of discoverable material, are not protected. They are always discoverable, 

often by voluntary disclosure, or by interrogatory or deposition. Work Product Doctrine at 789. 

6 "Legal theories" are the legal principles upon which a party intends to rely. Work Product Doctrine at 784-86 at 

838. Discoverability: Legal theories are not protected as work product, and are usually discovered through 

pleadings or through 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 seeks to encouragenarrowing issues and recognizing the importance of particular facts." /d. at 838. 

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protects 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 satisfied before materials may be 

classified as an attorney's ordinary work product. The materials must be: 

a. "documents and tangible things;" 

b. "prepared in anticipation oflitigation or for trial;" and 

c. "by or for another party or by or for that other party's representative." 

Wright & Miller, supra, §2024. 

"The work product doctrine is not, however, an umbrella that shades all materials 

prepared by a lawyer or agent of the client." 23 Am. Jur.2d § 44 (2014). It applies only to 

documents a party has assembled, not to facts learned from those documents. Jd. 

I d. 

For example, the doctrine does not protect factual information that a lawyer 

obtains when investigating a case; the work product concept furnishes no shield 

against discovery, by interrogatories or by deposition, of the facts that the adverse 

party's lawyer has learned, or the persons from whom he or she has learned such 

facts, or the existence or nonexistence of documents, even though the documents 

themselves may not be subject to discovery 

If the court classifies material as an attorney's ordinary work product, facts contained in 

an attorney's ordinary work product may still be isolated and discovered. Work Product Doctrine 

·at 789; 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 investigation by shielding documents that the other party could 

reproduce by diligent effort. Where, however, two investigations are impracticable because the 

substantial equivalent of the material sought is not available, discovery is permitted." Work 

Product Doctrine at 800 (emphasis added). 

B. Attorney ."Opinion" Work Product 

An attorney's "opinion" work product is distinct from opinions contained in an attorney's 

ordinary work product materials. Work Product Doctrine at 817. In contrast to an attorney's 

ordinary work product, an attorney's opinion (or "core") work product is the attorney's thought 

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processes.

7 Work Product Doctrine at 791; Wright & Miller, supra. § 2026. It is the "mental 

impressions, conclusions, or opinions of the lawyer." Work Product Doctrine at 793. 

Opinion work product includes an attorney's legal strategy, such as his intended 

lines of proof and cross-examination plans. It encompasses an attorney's 

evaluation of the strengths and weaknesses of his case and the inferences he has 

drawn from interviews of witnesses. A counsel's ordering of facts and his 

marshaling, aligning, and indexing of empirical data and documents is also given 

immunity from discovery. Even a mere compilation of facts may be protected 

under rule 26(b)(3) if it reflects an attorney's mental impressions. 

!d. at 818-819 (citations omitted). 

An attorney's "opinion work product" also includes the "mental impressions, 

conclusions, opinions, or legal theories of "other representative[ s] of a party" regarding the 

litigation. Id. at 817; Accord Wright & Miller, supra, §§ 2019 and 2026. 

[T]he [work product] doctrine is an intensely practical one, grounded in the realities of 

litigation in our adversary system. One of those realities is that attorneys often must rely 

on the assistance of investigators and other agents in the compilation of materials in 

preparation for trial. It is therefore necessary that the doctrine protect material prepared 

by agents for the attorney as well as those prepared by the attorney himself. 

Nobles, 422 U.S. at 238-39. 

It should be pointed out, however, that the mere involvement of counsel is not a 

guarantee of protection for all the opinion work generated by agents or representatives. In fact, 

even pertinent documents that may have been generated by the prospect of future litigation are 

not always protected. Wright & Miller, supra, § 2024. There is a "qualified" privilege for 

materials prepared prior to a complaint being filed, if the materials were created in anticipation 

oflitigation. Nobles, 422 U.S. at 238-39 (citing Hickman, 329 U.S. 495). "The courts have 

adopted a nuanced approach to the anticipation-of-litigation prong of work-product analysis, 

and individual cases turn on their particular circumstances." Wright & Miller, supra, § 2024. "As 

with all assertions of work-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 of his tongue, his pen, and his head, for his client." Work Product 

Doctrine, at 775, quoting Hickman v. Taylor, 153 F. 2d 212,223 (3d Cir. 1945), aff'd on other grounds, 329 U.S. 

495 (1947). 

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discovery only if prepared in anticipation of trial; mental impressions of an attorney in service to 

other objectives, such as negotiation of a transaction, are not protected by the doctrine." !d., § 

2026. 

Discovery of an attorney's opinion work product is "steadfastly safeguarded," but it is not 

absolutely barred from discovery. Work Product Doctrine at 825. Under a strict protection 

standard, there must be an "extraordinary showing" of necessity and hardship by the moving 

party, in order to obtain discovery of the opposing party's attorney's opinion work product. ld. at 

829. However, the mere presence of mental impressions, conclusions, and legal theories within 

documents held by a party's attorney is not determinative of a privileged status. Instead, the 

opinion work product protection is limited only to documents that are trial preparation material. 8 

Wright & Allen, supra,§ 2026. Other "information essential to a just decision" should remain 

available to the litigating parties. Work Product Doctrine at 799. 

C. Brief Summary of Attorney-Client Privilege 

"The attorney-client privilege protects communications (1) between a client and his or 

her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of 

obtaining or providing legal advice." United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011); 

Accord United States v. Davis, 636 F.2d 1028, 1040-41 (5th Cir. Unit A Feb. 1981). "[C]ourts 

apply the privilege only where necessary to achieve its purpose and construe the privilege 

narrowly because it renders relevant information undiscoverable." Mejia, 655 F.3d at 132 

(emphasis added and citations omitted). "Communications from a client that neither reflect the 

lawyer's thinking nor are made for the purpose of eliciting the 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 pursuant to regulatory requirements" by a public official should not 

automatically be considered as "prepared in anticipation of litigation" simply because they are likely to be the 

subject of later 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 at the "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 of litigation does not Jose protection because it also 

provided help in a business decision). 

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In short, the attorney-client privilege protects the fundamental relationship of an attorney 

with his client. It allows an attorney to "learn his client's secrets" and give advice without 

fearing that he will later be forced to testify about such communications. Work Product Doctrine 

at 765, 882. 

The attorney-client privilege is intended to encourage people who find themselves 

involved in actual or potential legal disputes to be candid with any lawyer they 

retain to advise them ... The hope is that this will assist the lawyer in giving the 

client good advice (which may head off litigation, bring the client's conduct into 

conformity with law, 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 sought to be used as a witness 

against his client. 

Frederick, 182 F .3d at 500 (citations omitted). 

Of course, if the client intends to share, or has shared, his "secrets" with others (i.e., not 

keep the information secret), then there is no justification for the privilege. Work Product 

Doctrine at 882. 

Where waiver of work product immunity is at issue, a party will often raise the attorneyclient privilege as well. Id. at 881: Both waivers involve disclosure of information to third 

parties. However, work product waiver is concerned with revealing "work product materials to 

an opponent," whereas attorney-client waiver of communications 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-client privilege and work product doctrine are two concepts treated 

quite differently, reflecting different policy considerations). 

Thus, the work product protection is "far broader" than that of the attorney-client 

protection. Work Product Doctrine at 882; Accord Nobles, 422 U.S. at 238-39 (citing Hickman, 

329 U.S. at508). Rather than the limited focus of protecting a client's secrets, the work product 

protection "provides a working attorney with a 'zone of privacy' within which to think, plan, 

weigh facts and evidence, candidly evaluate a client's case, and prepare legal theories." Work 

Product Doctrine at 882. 

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D. FAA's Claim of Attorney-Client Privilege 

The FAA asserted an attorney-client privilege only for the redacted portions of Section B 

ofthe FAA'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 EIR Identification 

The EIR is identified on its first page as "EIR2011 S0290032." (EIR, 1.) The EIR 

produced for in camera inspection is not dated or signed. It was undisputed by the parties that it 

was authored by FAA Safety Inspector Lipinski ("Inspector Lipinski"), who was the primary 

FAA investigator in this safety regulatory case. (3111114 Resp't Mot. to Compel, 4.) Based on 

the content of the EIR, and the arguments of the parties, it appears undisputed that the EIR was 

written in late 2010 or early in the year 2011-approximately two (2) years prior to the June 20, 

20 l3 filing of the Complaint in this case. 

2. General Description of the EIR Contents 

The EIR contains information dating back to July 2009 (EIR, 3), which precedes the 

alleged dates of the three (3) violations charged in the Complaint (i.e., August 2009, October 

2009, and March 2010) (Compl., 2). The last date contained in the EIR is May 2010. (EIR, 1.) In 

this case, the un-redacted EIR' s title: "Statement of Case and Factors Affecting Sanction," 

identifies the content of the document as a fact summary of an FAA safety investigation, with 

proposed "sanctions" recommended for the alleged violations. The EIR's author, Inspector 

Lipinski, repeatedly describes factual information about the Respondent (i.e., history of its 

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 of Warning (EIR, 1) and Letters of Investigation (EIR, 1, 2, 3, 4) sent to the 

Respondent. The un-redacted portion of the EIR demonstrates that Inspector Lipinski and other 

FAA employees were advising the Respondent, both in writing and with personal visits, of the 

alleged safety violations and the Respondent's need to correct them. (EIR, 4-8.) In the redacted 

portions of the EIR, Inspector Lipinski reiterates certain opinions, offers analysis and 

conclusions, and makes certain recommendations for legal action. 

Page 12 of 19 
3. Allegation of FAA Counsel Involvement- Not Dispositive 

The FAA's 3/21114 Response asserted that the FAA process for all safety investigations 

begins at the 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 (review process undescribed) for approval of a 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 of the document is to enable Flight Standards to determine whether to 

request legal action in a particular matter, and then present this request to FAA attorneys. 

(5/19/14 Privilege Index, 2.) 

At best, this appears to be an acknowledgement that at some point there is an internal 

FAA regional request for an FAA attorney to become involved in the enforcement action. 12 This 

request by a regional specialist-whether two (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 (if any) 

should be brightly distinguished from any factual record keeping made as part of a regularly 

conducted safety investigation that involves public communications, and that might later be used 

9 It was uri stated when the internal request for FAA attorney review for "legal action" occurred. Thus, it could occur 

before the issuance of a Notice of Proposed Civil Penalty (date unknown, copy not provided), or before the issuance 

ofthe May 29, 2013 Final Notice of Proposed Civil Penalty (copy not provided), or before the issuance of the 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 of the investigation (advice unstated) for the purpose of 

"legal action" (unspecified). 

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to support a public prosecution. Indeed, an FAA safety inspector's creation of such a record, to 

support either "warning advice" to the public, or a public prosecution (as required by the 

regulations) presumes a desire to ''tell the world" all about it. This record keeping 

documentation, for the purpose of public safety enforcement, is directly contrary to a client who 

tells secrets to his attorney, which need to be kept hidden from the world. See Melanie B. Leslie, 

Government Officials as Attorneys and Clients: 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-Client Privilege Not Applicable 

In examining the 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, and then keep confidential from the world. See In reSealed Case, 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 or referenced. See Tax Analysts v. I.R.S., 117 F. 3d 607, 

618 (D.C. Cir. 1997) (the privilege protects communications from attorneys to their clients if the 

communications "rest on confidential information obtained from the client"); See also, 

Government Officials at 500 (in "scores" of cases, the government has been allowed to 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 of United States v. Adlman, 18 Pace L. Rev. 419, 

441 (1998) [hereinafter "Keeping Confidences"] (attorney-client privilege should not be misused 

to "build a wall of silence" to shield all in-house communications). 

The FAA's argument that its in-house employee communications to FAA counsel are 

equivalent to a private individual seeking consultation with an attorney (3/21/14 Response at 8) 

is also not persuasive, particularly since Inspector Lipinski has not hired the FAA's counsel, is 

not sharing personal secrets, and has no expectation or right to control the agency's contracted 

privilege with its attorney employee. There was also no demonstration in this case of any 

personal contact by Inspector Lipinski or the regional specialist with FAA counsel, nor any legal 

Page 14 of 19 
advice provided by FAA counsel 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-client privilege). 

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 of the EIR. 15 However, redacted information in the EIR may qualify for protection 

under the attorney work product doctrine. 

E. FAA's Claim of "Deliberative" or Work Product Protection 

The FAA argued that both the lOP and the redacted portions of the EIR were 

"privileged" and protected from discovery. 

1. Description of Disputed Discovery Material 

The ElR has 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. It was produced shortly after the alleged April 16, 2010 on-site FAA investigation of 

the Respondent's business, but approximately three (3) years prior to the June 20, 20 13 filing of 

the Complaint in this case. 

2. Rule 26(b)(3) Classification Tests 

As noted earlier, Rule 26(b)(3) requires three (3) tests to be satisfied before materials 

may be classified as an attorney's "ordinary" work product. The materials must be: 

a. "documents and tangible things;" 

b. "prepared in anticipation of litigation or for trial;" and 

c. "by or for another party or by or for that other party's representative." 

It was undisputed that both the EIR and the lOP were documents created by FAA 

employees. The FAA also asserted that both 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 regarding pending investigations in law 

enforcement could be privileged, to protect the sensitive nature of an 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 19 
3. FAA Attorney's Work Product- Classification Established 

Courts have recognized that "[p ]rudent parties anticipate litigation, and begin preparation 

prior to the time suit is formally commenced." Diversified Industries, Inc., v. Meredith, 572 F.2d 

596, 604 (8th Cir.l977). Nevertheless, "dual purpose" documents (i.e., documents that were 

prepared before 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" 

of litigation" standard, particularly if it is part of the agency's overall regulatory mission and 

duties. MarkS. Wallace, supra, at 159-60.; Keeping Confidences (investigative documents not 

granted "blanket protection" if possibility oflitigation is too remote). 

In general, however, if the "primary motivating purpose behind the creation of the 

document was to aid in possible future litigation" then it will typically be considered work 

product. Davis, 636 F.2d at 1039. (emphasis added and citations omitted); accord In re Kaiser 

Alum. & Chem. Co., 214 F.3d 586,593 (5th Cir. 2000). 17 

In this case, it was undisputed that the redacted lOP and the redacted EIR were created by 

FAA employees, and that such document creation occurred in anticipation of litigation. (3111/14 

Motion to Compel, 4-5.) Thus, all three classification tests under Rule 26(b)(3) are deemed 

satisfied, and both documents have qualified protection from disclosure under the attorney work 

product doctrine pursuant to Rule 26(b)(3). 

Based on the in camera review of materials, the lOP is an attorney's "ordinary" work 

product, while the material in the redacted portions of the EIR is an attorney's "opinion" work 

16 For example, if the document would have been prepared irrespective of litigation, 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's Note, 48 F.R.D. 487, 501 (1970) ("Materials assembled in the ordinary course of business or pursuant 

to public requirements unrelated to litigation, or for other non-litigation purposes are not under [work product] 

immunity"); Allied Irish 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 of litigation, but 

prepared by others for multiple purposes, were not work product); Caremark, Inc. v. Affiliated Computer Services, 

Inc., 195 F.R.D. 610, 613-14 (N.D. Ill. 2000) (not all documents can be categorized as work product, simply because 

an internal investigation is co-existent with a present or anticipated litigation). 

17 See also, Thomas Wilson, The Work Product Doctrine: 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 of the prospect of litigation does not lose protection because it also provided help in a business 

decision); Keeping Corifidences at 444-45. 

Page 16 of 19 
product, because it contains an FAA inspector's opinions, impressions, .and "thoughts" about the 

legal action. See 39 Am. Jur. Proof of Facts 3d Proof of Basis for, and Grounds for Lifting, Work 

Product Protection Against Discovery §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 of litigation, upon showing a substantial need or 

undue hardship in obtaining equivalent materials elsewhere. The standard for review is a two 

part examination. The first step is for the Respondent to show a preliminary need for the 

materials. "To show 'need' for documents protected by the work product privilege, a party must 

present testimony or evidence demonstrating the material requested is critical to the theory of the 

requestor's case or to some significant aspect of the case. 23 Am. 'Jur. 2d § 44 (2014). 

In this case, the Respondent alleged there was "clear evidence of bias" 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 

of Mr. James Savastano, Mr. John Sullivan, and Mr. W. Joseph Payne, all ofwhom testified 

about statements made by Inspector Lipinski that appeared to be adversarial and biased 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 not be repeated here. (5/2114 Order, 4.) It was sufficient to support an in camera review. 

(5/2/14 Order, 9-10.) 

5. Respondent's Substantial Need and Undue Hardship Tests- Not Established 

The second step is for the court to determine, upon in camera review of the disputed 

work product, whether a) the material provides 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]uring this review, the trial court can evaluate 

whether the contested materials provide the requisite evidentiary value alleged by the requesting 

Page 17 of 19 
party and determine whether the requested materials are substantially similar to materials already 

available." 23 Am. Jur.2d § 44 (2014). 

A. Redacted lOP 

The redacted lOP was not authored by Inspector Lipinski. The in camera review showed 

no evidence of, or reference to, statements of bias by Inspector Lipinski. It therefore does not 

hold any evidentiary value as alleged by the Respondent. Thus, it does not qualify as "needed" 

by the Respondent. 

B. Redacted EIR 

In contrast, the redacted EIR was authored by Inspector Lipinski and contains his "mental 

impressions, conclusions, opinions, or legal theories" concerning the litigation. Work Product 

Doctrine at 817; Wright & Miller, supra,§§ 2019 and 2026. These could be broadly classified as 

"statements" by the Inspector, which are the "most common example" of sought-after work 

product, for a party seeking to "impeach a witness and thereby discredit a portion of his 

opponent's proof." Work Product Doctrine at 802. 

The in camera review of the redacted EIR did not reveal any "bias" statements similar to 

those reported by the Respondent's testifying witnesses. It does contain statements of opinion 

and analysis, as noted earlier, which might be utilized to show a certain bias. However, "[t]he 

mere hope or surmise that the asked for material may contain information that could be used to 

impeach a witness is not enough to show substantial need or undue hardship." Young v. United 

Parcel Service, 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 insufficient to demonstrate "needed evidence" or to support disclosure over 

objection. Work Product Doctrine at 808. 

In addition, the Respondent has not demonstrated, pursuant to Federal Rule of Civil 

Procedure 26(b)(3)(A), an inability, "without undue hardship," to obtain Inspector Lipinski's 

opinions or analysis through other discovery. !d. at 801 ("To fulfill the undue hardship 

requirement, a party must try but be unable to obtain the information contained in requested 

documents without going to great lengths; lack knowledge of where else to obtain the 

information; or show that the information is completely unavailable elsewhere.") 

Page 18 of 19 
In this case, the Respondent filed its motion prior to taking Inspector Lipinski's or 

anyone else's deposition. As a result, even if the in camera review had 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 of memory 

about his own work, or that he has engaged in obstructive behavior during the discovery process. 

See 39 Am. Jur. Proof of Facts 3d Proof of Basis for, and Grounds for Lifting, Work Product 

Protection Against Discovery §8 (2014); Work Product Doctrine at 808 and 790, fn. 184. 

G. CONCLUSION 

Pursuant to 14 C.P.R. §13.220, Fed. R. Civ. Proc. 26(b)(3), and after reviewing all 

relevant caselaw, regulations, statutory authority, and having considered all the arguments and 

evidence submitted by the parties, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The redacted one (1) email Item of Proof, #4 ("lOP"), is the FAA attorney's ordinary 

work product. 

2. The redacted parts of Section B of the FAA's Enforcement Investigative Report ("EIR"), 

is the FAA attorney's opinion work product. 

3. The Respondent's Motion to Compel production ofthe redacted lOP, which is the FAA 

attorney's ordinary work product, is denied on the grounds that it does not hold any 

evidentiary value as alleged by the Respondent. 

4. The Respondent's Motion to Compel production of the redacted portions of the EIR, 

which is the FAA attorney's opinion work product, is denied on the grounds that the 

Respondent's allegation of substantial need and undue hardship have not been met. 

Attachment: Service List 

Page 19 of 19 
SERVICE 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 of the 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 Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

1200 New 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.