U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINTON, DC In the Matterof: ) ) ) ) ) Docket No: FAA-2015-3307 FELTS FIELD AVIATION CaseNo: 20I5WP910090 Respondent



## ______________________ )

RESPONDENT'S REPLY TO COMPLAINANT'S OPPOSITIONTO RESPONDENT'S MOTIONTO COMPEL The Respondent, by and through its attorneys, BENJAMIN L. WYBORNEY and MARK J. CONLIN, moved this Court for an Order to Compel Discovery in the above referenced matter. The Complainant, by and through its attorney, FATIMAH STOKLEY submitted an Opposition to that Motion. This is the Respondent's Response to the Complainant's Opposition.



### COMPLAINANT'SARGUMENT The Complainant bases its opposition to the Respondent's Motion to Compel the Discovery of the Complainants Enforcement Investigative Report (EIR) on the Government's deliberative process privilege. The Complainant's attorney cites several

cases that apply that privilege. The Complainant then argues that Mr. Eric Wells, the Complainant'stestifying expert witness, while the signatory ofthe subject EIR, is not the author ofit. The Complainant finally argues that the Respondent has not met the bar for the exceptionto the deliberative process privilege, which occurs whenthe respondent can demonstrate a particularized need that outweighs the harm that could result to the Governmentby disclosing such privileged information.
REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the Matter ofFelts Field Aviation. Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 Page 1of12 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, W A 99201 (509) 624-3020 :''The Complainant's opposition does not invoke any other privilege otherthan the deliberative process privilege. This leads to the conclusion that the Complainant concedes thatthe deliberativeprocessprivilegeis the onlyprivilegethatmay apply.

RESPONSETO COMPLAINANT'SARGUMENT The Respondent recognizes that the deliberative process privilege ts well established. However, the Respondent argues that Complainanthas not properly asserted the deliberative process privilege. If, arguendo, the Complainant has, or is subsequently able to properly assert the deliberative process privilege, then by designating Mr. Eric Wells as testifying expert witness, the Complainant has waived the privilege with regard to Mr. Wells, and his "facts known and opinions held." Further, if designating a privileged communicant as an expert witness does not waive theprivilege, then contrary to the Complainant's contention, the exception to the privilege does apply because the Respondent has metthe burden ofshowing aparticularized need that outweighs any harm caused to the Government. Finally, the deliberative process privilege notwithstanding, the Complainant is a Goverrunent actor engaging in the "prosecutorial process" and should be subject to the Brady Rule. The Brady Rule requires that the Government disclose mitigating evidence. The EIR containsmitigating evidence. For the foregoing reasons. this Court should grant the Respondent's Motion to Compel the production ofthe testifying expertwitness'sunredacted EIR.

REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the MatterofFeits Field Aviation, Inc. Docket No. F AA-20I5-3307 Case No. 20 I5WP9I0090 Page 2 of12 Conlin. Maloney& Miller 42 I W. Riverside Ave., Ste 9I I Spokane. W A 9920I (509) 624-3020TheComplainanthas not properlyinvokedthe deliberativeprocess privilege. The Complainant has not properly invoked the deliberative process privilege. To assert the privilege effectively, the government must "(i) invoke the privilege through an agency head or properly chosen subordinate; (ii) specifically identify what records are subject to the privilege; and (iii) provide "precise and certain reasons" for withholding the requested'' inforn1ation. Sikorsky Aircraft Corp. v. United States, 106 Fed. Cl. 571, 577 (2012). The Complainant has not provided any indication ofwho is asserting the deliberative process privilege or if that individual is authorized to do so. The Complainant has not stated "with particularity what information is subject to the privilege." ld. And the Complainanthas not suppliedthe Court "with 'precise and certain reasons' for maintainingthe confidentiality ofthe requested" document. !d. at 578. All thatthe Complainanthas provided is a Privilege Logthat does not indicatethe author ofthe Log, when the author created the Log, who is asserting the deliberative process privilege, or ifthe asserting individual is authorized to assert the privilege. See Respondent's Motion to Compel, Ex. A. Further, while the Privilege Log does indicate the document to which it applies, the EIR, that indication does not provide sufficient ··pm1icularity" because information within the EIR is the subject of the Motion to Compel. Finally, otherthan a blanket asse11ion of"Pre-decisional and Deliberative," the Log does not indicate ''precise and certain reasons" for each redaction. Sikorsky informs this Court that "[b]lanket asse11ions of the privilege are insufficient." ld. The Respondent addressed these issues with the Complainant, but to no avail. See Respondent's Motion to Compel.Ex. C.

REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the MatterofFelts Field Aviation, Inc. DocketNo. FAA-20 15-3307 Case No. 2015WP910090 Page 3 of12 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, W A 9920I (509) 624-3020This Court should grant the Respondent's Motion to Compel because the Complainant has notproperly asserted the deliberativeprocess privilege.

The discoverability offacts known and opinions held by a testifying expert witness takeprecedenceoverthe deliberativeprocess privilege. The Respondent recognizes that the deliberative process privilege, if asserted properly, is a well established concept. However, equally well established, ifnot more so, is the discoverability of ·'facts known and opinions held by" a testifying expert witness. The issue then, is which takes precedent; the Government's need to protect its unhindered internal communications with the deliberative process privilege or the Respondent"s due process rights to discover "facts known and opinions held by" the Government'sidentified, testifying expert witness. The Respondentrespectfully submits that the discoverability of"facts known and opinions held by" a testifying expert witness takes precedence. First, when the Complainant designated Mr. Eric Wells as testifying expert witness, they waived privilege in regard to Mr. Wells, and his "facts known and opinions held." Second, Mr. Wells. as the signatory of the EIR, is responsible for, knowledgeable of, and is the approval authority for the EIR's contents. Reasonably, he is basing his expert opinion testimony on the EIR's contents, making the EIR's contents discoverable. Third, considering the regulatory guidance, 14 C.F.R. 

### § 13.220(e), the rules of statutory interpretation indicate that the discovery of a testifying expert's facts and opm10ns controls the issue because the sentence authorizing the discovery of "known facts, or opinions held,"' by a testifying expert comes after the sentence limiting discovery to "a REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the MatterofFelts Field Aviation, Inc. DocketNo. FAA-20 !5-3307 CaseNo. 20!5WP9!0090 Page 4 ofl2 Conlin. Maloney& Miller 421 W. Riverside Ave., Ste 9! I Spokane, WA 99201 (509) 624-3020matter that is not privileged
...." Fourth, and finally, as the Respondent's attorneys are endeavoringto discover Mr. Wells· signedreport as "facts known, and opinions held, by"
a testifying expeti witness and not as a direct attempt to pierce the deliberative process privilege, they need not qualify for the exception by showing a particularized need that outweighs anyharm. First, none ofthe Complainant's cited cases are directly on point. The proffered
cases consider the deliberative process privilege, but they do not address that privilege with regard to a testifying expert witness. Indeed, there seems to be a dearth of precedential cases directly on point. Arguably, the reason for the lack ofprecedentis that generally, the Government does not designate its privileged communicants as testifying expert witnesses, thereby by making their ''facts known and opinions held" discoverable. However, in the presentcase, the Government did designate aprivileged communicantas
a testifying expert and his report, the EIR, reasonably the basis ofhis experttestimony,is discoverable. See Panasonic Commc'ns Corp. ofAm. v. United States, 99 Fed. Cl. 422 (20I1) In Panasonic, inter alia, the taxpayer moved to compel the discovery of information held by the IRS's 'prospective' trial expert witness. The IRS asserted that this information was protected by the attorney-client privilege, not the deliberative process privilege. The U.S. Court of Federal Claims did not allow discovery of the information because the expert was a 'prospective' testifying expert in the trial in main and not atestifying expert in the instant administrative hearings priorto the trial in main. l_cL at 428. More directly on point the court found "[i]f and when he is formally identified, the question of what expert discovery Plaintiff may undertake of the IRS
REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the Matter ofFelts Field Aviation, Inc. DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 Page 5 of12 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, W A 9920I (509) 624-3020regarding Dr. Wright may be pertinent (and attorney-client privilege and work product doctrine issues be renewed)." !d. at 429. The court further observed that the IRS noted, ''the documents at issue will become discoverable only to the extent the privilege or protection may hereafter be waived by Dr. Wright's designation as a testifying expert for the United States." ld. In the case at bar, Mr. Wells is a testifying expert witness in the case in main. While the deliberative process privilege is not exactly the same as the attorney-client privilege,they are similarprivileges and can be pierced withthe same waivers. Thecourt in Panasonic indicates that designation as a testifying expert witness waives attorneyclient privilege. Designation as a testifYing expert witness also waives deliberative process privilege. Second, the Complainant counters thatMr. Wells is notthe author ofthe EIR, Ms. Clinton is. This does not matter. On the EIR's face, Mr. Wells is the signatory; this implies that Mr. Wells is familiar with, agrees with, and approves the EIR. See Respondent's Motion to Compel, Ex. A, Page 3. One can safely assume that Mr. Wells will base his expect testimony on information contained inthe EIR. Indeed, ifMr. Wells' testimony will be not be based on his discoverable facts known and opinions held as indicated in his EIR, then the Respondent respectfully requests that the Complainant produce the document that does contain the factual basis on which Mr. Wells forms his expert opinion. Further, considering signatory supervisors, analogously, ajudge is not generally the author ofan order that they sign. Usually, either amoving attorney submits an order
or ajudge's clerk authors the order. However, when ajudge signs the order, regardless
REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the Matter ofFelts Field Aviation, Inc. DocketNo. FAA-20 !5-3307 CaseNo. 20I5WP910090 Page 6of12 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 9920I (509) 624-3020ofthe actual author, thejudge is responsible for the contents ofthe order. Itis considered thejudge'sorder, notthe clerk's. The same analysis should applyto Mr. Wells' EIR. Third, the rule ofstatntory interpretation oflegesposteriorespriores contrarias abrogant. or ''later laws abrogate prior contrary laws", or even more commonly "last in time" is instructive here. When two statutes, or in this case, sentences in a regulation conf1ict, the latter sentence nnllifics the fonner. An examination of14 C.F.R. § 13.220(e) Scope of discovery reveals that the sentence "[a 

### J party may discover facts known, or opinions held, by an expert who any other party expects to call to testify at the hearing" follows the sentence "[s]ubjectto the limits on discovery set forth in paragraph (t) ofthis section, a party may discover any matter that is not privileged

...." Because the discoverability offacts known, and opinions held by a testifying expert witness follows the non-discoverability of privileged matters in the paragraph, the designation of a privileged commnnicant as a testifying expert witness nullifies or waives the privilege with regard to thatexpert witness. Fourth, the Complainant argues that the Respondent has not shown a particularized need to discover the Complainant's allegedly privileged EIR that outweighs any hann caused by discovery. As the Respondent seeks to discover the EIR based on the Complainant's designation ofMr. Wells as a testifying expert witness and the resulting waiver ofprivilege, no showing ofapa.tiicularized need is required. The Complainant has waived the privilege with regard to Mr. Wells by designating him a testifying expert witness. Facts known, and opinions held, by Mr. Wells are discoverable. Facts known, and opinions held, by Mr. Wells are contained in his EIR. The EIR is discoverable. Even ifthe Complainant has attempted to properly
REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the MatterofFelts Field Aviation, Inc. Docket No. FAA-2015-3307 CaseNo. 2015WP910090 Page 7 of 12 Conlin, Maloney & Miller 42I W. Riverside Ave., Ste 9 I I Spokane, WA 9920I (509) 624-3020assert the deliberative process privilege, this Court should still grant the Respondent's Motion to Compel Discovery ofthe EIR.

If designating Mr. Wells as a testifving expert witness does not waive the deliberative process privilege, then the EIR is still discoverable because the Respondent has met the burden of showing a particularized need that outweighs any harm causedto the Government. Initially, the Complainant provided a very heavily redacted copy ofthe EIR. See Exhibit A. Followingan Order from this Court, the Complaintproduced a supplemented, somewhat less redacted EIR and an insuilicient Privilege Log. See Respondent's Motion to Compel, Ex. A

.. Ex. C. The Respondent reviewed the unredacted information and identified several inappropriate redactions and errors. Further, the Respondent has not specified the harm it seeks to prevent. When comparing the original and supplemented E!Rs it is apparent that the Complainant is inappropriately redacting information. See Ex. A and Respondent's Motion to Compel, Ex. A. In addition to not providing four out of six pages, in the original EIR, the Complainant redacted quotations ofregulations, citations to Items of Proof, the paragraph heading •·supporting Evidence", and all ofthe citations to Items of Proof thereunder. Withholding entire pages, even if the entire page is redacted is inappropriate. An Item ofProofis detinitionally a fact. Redacting a citationto an Item ofProofis inappropriate. Redacting the name ofand the citations that are the substance ofthe "SupportingEvidence" index is inappropriate.

REPLY TO OPPOSITIONTO MOTION TO COMPEL DISCOVERY In the MatterofFelts Field Aviation, Inc. Docket No. FAA-2015-3307 CaseNo. 20 15WP910090 Page 8 of 12 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 91 I Spokane, W A 9920I (509) 624-3020When rev1ewmg the supplemented unredacted information, the Respondent is able to identify factual eJTors. The Complainantindicates thatthe Respondent "has aPart 

### 145 certificate and has two Forest Service contracts with the State ofWashington." See Respondent's Motion to Compel, Ex. A., Page 6. This is incoiTect. The Respondent relinquished these items several years ago. Ifthere are two eiTors in the only substantive paragraph in the supplemented information, that waiTants production and inspection of the entire ofthe ElR. The Respondent argues that it will suffer "potential" haiTn ifit produces the EIR and that the Respondent has not demonstrated a particularized need that outweighs that harm. See Complainant's Opposition, Page 3. The Complainant does not specify any actual hann. The Complainant only postulates disclosure would cause nebulous harm to the "FAA's investigative and prosecutorial process and discourage candid communicationbetweenAgencypersonnel

...." !d. at 4. Since there is no specification ofactual harm, there is no way to deteiTnine what weight to give to any haiTn. Since the Complainant's haiTn is indeteiTninate, the Respondent's particularized needs easily outweigh it. Where the Complainant has established that it is willing to redact information inappropriately, this by itselfshows a particularized need that outweighs any haiTn to the Govermnent. Where disclosure ofpreviously redacted infoiTnation reveals factual errors, this also shows a need to verify that outweighs any haiTn. Where the GoveiTnDent can only speculate as to "potential" harm, this speculative harm is outweighed by any quantum ofparticularized need. For the foregoing reasons, this Court should grant the Respondent's Motion to Compel.
REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the MatterofFeltsField Aviation, Inc. Docket No. FAA-2015-3307 Case No. 2015WP910090 Page 9 of12 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 9920I (509) 624-3020In the alternative, the Brady Rule should require the production of exculpatory evidence. In accordance with the Due Process spirit ofthe Brady Rule, the Complainant, a state actor, acting in a prosecutorial capacity to affect an administratively imposed civil penalty shouldbe required to disclose exculpatory evidence. The redacted portions ofthe EIR apparently contain such exculpatory evidence; the paragraph headings indicate there is redacted information on '·Reliability of Evidence," "Cont1icting Evidence," and "Other/Mitigating, Extenuating, or Aggravating Factors." See Respondent's Motion to Compel, Ex. A., page 3, 4. More specifically, in Brady, the Supreme Court held that the Due Process Clause ofthe Fifth Amendment requires disclosure ofexculpatory evidence "material to guilt or punishment" known to the government but unknown to the defendant in criminal cases. See Brady v. Maryland, 373 U.S. 83, 88 (1963). While acknowledging that this is not a criminal case; Due Process is still required since it is an administrative adjudication with the possibility of the deprivation of property interests. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). Because Due Process is required, and the Complainant, by its own characterization is engaging in a "prosecutorial process" that could deprive the Respondent ofa property interest, then the government should be compelled to disclose its exculpatory evidence. Sec Claimant's Opposition, Page4.

REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the Matter ofFelts Field Aviation, Inc. DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 Page 10of 12 Conlin, Maloney & Miller 421 W. Riverside Ave

.. Ste 911 Spokane, W A 9920I (509) 624-3020CONCLUSION Considering the forgoing, the Respondent respectfully requests that this Court grantthe Respondent's Motion to Compel.

RESPECTFULLY SUBMITTED this 30thday ofSeptember2016.

CONLIN, MALONEY & MILLER 

# /y

**~7** Benjamin L. Wyborne)j, WSBA# 50070 Attorneyfor Respondent 421 W. Riverside Avenue, Suite 911 Spokane, WA 99201 (509) 624-3020

REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the Matter ofFelts Field Aviation, Inc. Conlin, Maloney & Miller 421 W. RiversideAve., Ste 911 Spokane, WA 9920I (509) 624-3020 DocketNo. FAA-2015-3307 CaseNo. 20 !5WP910090 Page II of 12StatementofCase EXHIBITA Drug Abatement Division SINGLE LEGAL ENFORCEMENT ACTION SECTION B Case Number: 2015WP910090

Felts Freid Aviation. Inc. is a 135 certificate holder (GFVA247E). Operations Specification A449 certifies that the operator will comply with the requirements of 14 CFR part 120 and 49 CFR part 40for its Drug and Alcohol Testing Program. (lOP 1). On April7. 2015, an mspection of

**Fe~s** Field Aviation, Inc.'sAntidrug and Alcohol Misuse Prevention Program was conducted. As a result ofthe inspection Letter of Investigation (file number2015WP910090) was issued on Apri116, 2015 (lOP 2), and Response dated Apri127, 2015 was received (lOP 3).

Violation Description: On July2, 2007, Richard Webber co.theGround Training Program foraircrafts, Cessna T-210 and Cessna C182RG. Mr. Webbersubmittedto a Departmentof

**~ortation** (DOT) pre-employmenttest and was verified negative on May 28, 2008. -Areview of Felts Field Aviation, Inc.'s Duty and FlightTime Records from April 9, 2013to March 20, 2015 shows Mr. Webber performed a safety-sensitive function as a Pilot- Mr. Webberwas never added to the random drug and alcoholtesting pool untilApril6,201 As a result, Mr. Webber missed random selections 2008 but selections · 5, 2013 5, 201 4, 2013 3,

**~~-** April4, 201 October 3, 2014 (lOP 15 & 17), and January 2. 2015 Mr. not in the indomtesting pool forthese selections. so he had no chance ofbeing selected .•
FOR OFFICIAL USE ONLY Public availabilityto be determined under5 USC 552 i Exhibit C-1 Docket No. FM-2015-3307 REPLY TO OPPOSITION TO MOTIONTO COMPEL DISCOVERY In the MatterofFelts Field Aviation. Inc. Docket No. FAA-2015-3307 Case No. 20 15WP9I0090 ExhibitA: Page I of2 Conlin, Maloney & Miller 42I W. Riverside Ave., Ste 91 I Spokane, W A 9920I (509)624-3020EXHIBITA Drug Abatement Division SINGLE LEGAL ENFORCEMENT ACTION

ground training record dated July 2, 2007 for aircrafts, Cessna T-210 Nand Cessna Ci82RG j [ • FirstAdvantage pre-employment verified negativetest result dated May28, 2008, specimen 10# 0446011565 (1111111111111111!1111 • Felts Field Aviation. Inc.'s Duty and Flight Tiiiimj'elliiRiielicords for Richard Webber from April9. 2013 through March 20, 2015.• • Felts Field Aviation, Inc.'s active employee listfrom FirstAdvantage dated May 14, 2015. • Letterfrom Schmedding dated April 7. 2015.- • First Advantage enrollment history summary report for



### F~d Aviation. Inc. for the second quarter of2013, dated Apri15. 2013 .••• • FirstAdvantage enrollment hrstory summary reportfor Felts Field Aviation, Inc. for the third quarter of 2013, dated July 5, 2013.- • FirstAdvantage enrollment history summary reportfolrIFielltsiiiFiield Aviation, Inc. for the fourth quarter of2013. dated October4, 2013. • First Advantage enrollment history summary reportfor Field Aviation, Inc. for the first quarterof 2014, dated January 3, 20 • FirstAdvantage enrollment history summary report for Felts Field Aviation, Inc. forthe second quarterof2014, dated April 4, 2014.- • Flist Advantage enrollment history summary reportfor Felts Field Aviation, Inc. for the third quarter of 2014. dated July4. 2014.- • FirstAdvantage enrollment history summary report for Felts FieldAviation, Inc. for the fourth quarter of2014, dated October 3, 2014 .••• • First Advantage enrollment history summary report

**~ield** Aviation, Inc. for thefirst quarterof2015, dated January 2, 2015.- • Random Selection datesfor Felts Field Aviation from January2013- April 2015 from FirstAdvantage
...

FOR OFFICIAL USE ONLY Publicavailabilityto be determined under5 USC 552

**~** Exhibit C-1 Docket No. FAA-2015-3307 REPLY TO OPPOSITION TO MOTION TO COMPEL DISCOVERY In the MatterofFelts Field Aviation. Inc. DocketNo. FAA-20 15-3307 CaseNo. 2015WP910090 ExhibitA: Page 2 of2 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 9920I (509) 624-3020CERT!FICATE OF SERVICE

Ihereby certify thattheforegoing Motion to Compel Discoveryhasbeen servedvia facsimile (where indicated), and Regular Mail on September 30, 2016to the following: Judge J. E. Sullivan US. Administrative LawJudge Of1lce ofHearings, M-20 U.S. DepartmentofTransportation 1200NewJersey Ave, SE (E11-310) Washington, DC 20590 Phone: 202-366-6941 Fax: 202-366-7536 Federal Aviation Administration 800 IndependenceAvenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk,AGC-430 WilburWright Building- Suite 2W1000 Fatimah Stokley, Attorney Federal Aviation Administration Office ofthe ChiefCounsel EnforcementDivision, Western Team P.O. Box 920007 Los Angeles, CA 90009-2007 Fax: (310) 725-6816 DATED this 30thday ofSeptember, 2016

Benjamin



### LWYOrn~ Attorney for Respondent 421 W. Riverside Avenue, Suite 911 Spokane, WA 99201 (509) 624-3020