### InThe Matter Of: 

# u.s.



# DEPA~~~~~~~=~~RTATION 

# R E

# cEI\/ED WASHINGTON, D.C. 

## OCT 1 3 2015 

## HEARING DOCr(ET

BIRMINGHAM FLIGHT CENTER, INC. DocketNo. FAA-2014-0867 Judge J.E. Sullivan Respondent. FAA CaseNo. 201280090053

MOTIONTO COMPEL 

### During discovery inthis matter, the FAA promulgated a variety ofinterrogatories to the Respondent. Some ofthese interrogatories were appropriately responded to. Many others were not, as discussed in more detail below. The problems with these responses have been identified
to Respondent, and Respondent has refused to supplement in any way. Accordingly, the FAA

nowmoves to compel Respondentto fully respondto its interrogatories. Background 

### On April 20, 2015, the FAA promulgated discovery requests on Respondent, including

seven interrogatories. 

### See Exhibit A at 1-6. On July 7, 2015, the FAA promulgated additional discovery requests on Respondent, including fifteen interrogatories. 

### See Exhibit B at 2-3. 1 

### On August 1, 2015, Respondent responded to the April 20, 2015 interrogatories. Exhibit A at 1-6. On August 21, 2015, Respondent responded to the July 7, 2015 interrogatories. Exhibit Cat 1-7. On August 27, 2015, the undersigned provided Respondent with a list identifying deficiencies in

1As discussed in the recentmotion conference in this case, at thetimetheundersigned servedthe July 7, 2015, discovery requests, the undersignedwas unaware ofthe April20, 2015 discoveryrequests. As a result, there is some duplication betweenthetwo sets ofinterrogatories. In general, these duplications are ofroutine discoveryrequests

- identification offact and expert witnesses, descriptions oftheirtestimony, documents to be used at hearing, andthe basis for the denial ofthe allegations in the Complaint. Unless otherwise specified, references inthis motionto Interrogatory #X are references to interrogatories from the second set.



### 1

### or inaccurate (whether simply inaccurate, mischaracterizing an otherwise true fact, or omitting pertinent information). Exhibit B at 2-3. Respondent refused to give any answer to any ofthese interrogatories. Exhibit C at 1-5. However, Respondent provided no valid basis for these refusals. Respondent asserted that the questions were vague, but they are not. Respondent asserted that the questions were "overly broad," but they are confined to the contents ofspecific documents that are exclusively about the exact matters atissue inthis case. Respondent objected that these discovery requests could require a line-by-line review ofthe documents in question, but the fact that a discovery requests will require time and attention to respond to is not a valid basis for refusing to respond to it. Respondent asserts that these questions would be "more appropriately" addressed at a deposition, but Respondent's opinion as to what method of discovery the FAA should have chosen does not relieve Respondent of the obligation of responding to discovery. Respondent asserts that these questions would be "more appropriately" addressed athearing, butthat would defeatthe entire purpose ofdiscovery, which is to exchange information prior to hearing. Respondent objects to the interrogatories as calling for legal conclusions as to whether statements are false, but whether these statement are false are factual conclusions, not a legal ones - and, regardless, discovery requests can permissibly ask for legal conclusions. Respondent further objects on the basis that the questions ask what Respondent will do on cross examination, thus violating the work product privilege, but the requests simply ask for factual information (or, at least, Respondent's view ofwhat the facts are). The FAA requests thatthe Court compel Respondent to answer these interrogatories. Interrogatory #4: 

### This request asked Respondent to identify what, ifany, basis it had for objecting to the particular sanction amount sought by the FAA, expressly asking Respondent to address sanction specifically by asking Respondent to respondent within the context of the

3

### and the FAA is entitled to Respondent's acknowledgement of this relationship. The FAA requests that the Court compel Respondentto fully respondto this interrogatory. Conclusion 

### Respondent failed to adequately respond, or in some cases respond at all, to Interrogatories I, 2, 4, 6, 7, 8, 9, and II from the July 7, 2015 discovery requests and Interrogatory #2 from the April20, 2015 discovery requests. The FAA requests that the Court compel Respondent to respond to Interrogatories 2, 7, 8, and 9, and compel Respondent to respond fully to Interrogatories I, 4, 6, and 11.

Respectfully submittedthis

# b**~ay** ofOctober, 2015.

CHRISTOPHERR. STEVENSON Attorney Office ofthe ChiefCounsel, EnforcementDivision, Southern Team



### 5

### CERTIFICATE OF SERVICE 

### I hereby certify thatthe foregoing Motionto Compel was sent: original and one copyvia certifiedmail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000

one copyviacertified mail to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 Paul R. Borth, Esq. Barnett & 

### Borth, LLC 800 Waukegan Road, Suite 200 Glenview, IL 60025 facsimile: (815) 356-7042

Dated

7U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS, WASHINGTON, DC MICHAEL P. HUERTA, Administrator Federal Aviation Administration Complainant v. ) ) ) ) ) ) BIRMINGHAM FLIGHT CENTER, INC. ) Respondent. ) ) DocketNo. FAA-2014-0867 Judge J.E. Sullivan
FAA Case No, 2012S0090053

RESPONDENT'S ANSWERS TO COMPLAINANT'S FIRST SET OF INTERROGATORIES AND REQUESTS FORPRODUCTION Respondent, Birmingham Flight Center, by its attorneys, Barnett & Borth, LLC. hereby answers the Administrator's First Set ofInterrogatories as follows: InterrogatoryNo. I Identify eachpersonyou may call as a witness at a hearing on this matter. Answer: Steven Pickett, CEO, Birmingham Flight Center Shawn StacyFlowers, PIC, Birmingham Flight Center Justin Matthew Lollar, Copilot/instructor, BirminghamFlight Center Sandi Pickett, Owner, Birmingham Flight Center
Dr. Alan Long, Passenger, BE-58 owner Mr. Steve Allen, Premier Group, Aircraft Broker Respondentreserves the right to call and/or cross examine the FAA'switnesses involved in the investigation ofthis matter including but not limited to: YanceyRushton
PatBruce (Operations Supervisor) Clay Perkins Inspector

liP age "' GOVERNMENT \ EXAlT 

# I_..-!

_ __.__David Hargett (Inspector) Mr. Pat Bruce (Rushton's Operations supervisor) Mr. Bob Kent, Director ofOperations, Aviation Services Group Rhonda Masters, Scheduler/Dispatcher, Aviation Services Group InterrogatoryNo. 2 For each person identified in response to InterrogatoryNo. I, state the subject matter upon which each is expected to testify and summarize the substance ofthat person's expected testimony. Answer: Steven Pickett, CEO, BirminghamFlight Center Mr. Pickett is expectedto testify regarding his backgrow1d, training and experience, his FAA credentials, his involvement in the instant matter, his operation of the BirminghamFlight Center, his assignment ofpilots for the demonstration flight with Alan Long on N525LP, his understanding ofthe reputations and pilot credentials ofthe pilots involved in the subject demonstration flight, his interaction with Bob Kent and all witnesses involved in this matter, his understanding ofthe various e-mails, documents and correspondence respecting the FAA's investigation and ElR and all such documents related to the subject flight. He is expectedtotestify regarding his interaction with the Steve Allen, aircraft broker with Premier Group, regarding the subject aircraft and his understandingthat Dr. Long was interested in the purchase ofthe aircraft. He is expected to testify regarding all aspects ofthe arrangements with Mr. Allen to perform the demonstration flight with Dr. Long. He is expectedto testify regarding all conversations held with his employees and all statements made with FAA inspectors and investigators. He is expected to testify about all aspects ofthe demonstrationflight with Alan Long, Dr. Long's flight training and Dr. Long's use and storage ofhis Baron aircraft. He is expected to testify regarding his company's relationship with Aviation Services Group and its employees and directors. He is expectedto providetestimony concerningthe denials ofthe allegations contained in the Administrator's complaint. He is expected to lay the foundation for all documents for which he has personal knowledge including those disclosed by the parties duringthe discoveryphase ofthis case. Shawn Stacy Flowers, PIC, Birmingham Flight Center Mr. Flowers is expected to testify regarding his background, training and experience, his FAA credentials, his involvement in the instant matter, his demonstration flight with AlanLong onN525LP, his understanding ofthe reputations and pilot credentials ofthe pilots involved in the subject demonstration flight, his interaction with Bob Kent and all witnesses involved in this matter, his understanding ofthevarious emails, documents and correspondence respecting the FAA's investigation and EIR and all such documents related to the subject flight. He is expectedto testify regarding his 

### 21Pagcinteraction with the Steve Allen, aircraftbrokerwithPremier Group, regarding the subject aircraft and his understandingthatDr. Longwas interested inthe purchase ofthe aircraft. He is expected to testifyregarding all aspects ofthe arrangements with Mr. Allen to perform the demonstration flight with Dr. Long. He is expectedto testify regarding all conversations held with his employees and all statements made with FAA inspectors and investigators. He is expectedto testify about all aspects ofthe demonstration flight with AlanLong, Dr. Long's flight training and Dr. Long's use and storage ofhis Baron aircraft. He is expected to testify regarding his company's relationship withAviation Services Group and its employees and directors. He is expected to provide testimony concerningthe denials ofthe allegations contained in the Administrator's complaint. He is expectedto lay the foundation for all documents for whichhe has personallmowledge includingthose disclosed bythe parties during the discoveryphase ofthis case. JustinMatthewLollar, Copilot/instructor, Birmingham Flight Center Mr. Lollar is expected to testify regardinghis background, training and experience, his FAA credentials, his involvement inthe instantmatter, his demonstration flight with Alan Long onN525LP, his understanding ofthe reputations and pilot credentials ofthepilots involved in the subjectdemonstration flight, his interaction with Bob Kent and all witnesses involved in this matter, his understanding ofthe various emails, documents and correspondence respectingthe FAA's investigation and EIR and all such documentsrelated to the subjectflight. He is expected to testifyregarding his interaction with the Steve Allen, aircraftbrokerwithPremier Group, regarding the subjectaircraft and his understandingthatDr. Longwas interested in the purchase ofthe aircraft. He is expectedto testify regarding all aspects ofthe arrangements with Mr. Allento perform the demonstration flight with Dr. Long. He is expectedto testify regarding all conversations held with his employees and all statements made with FAA inspectors and investigators. He is expected to testify about all aspects ofthe demonstration flight withAlan Long, Dr. Long's flight training andDr. Long's use and storage ofhis Baron aircraft. He is expectedto testifyregardinghis company's relationship with Aviation Services Group and its employees and directors. He is expected to provide testimony concerningthe denials ofthe allegations contained in the Administrator's complaint. He is expected to lay the foundation for all documents for which he has personalknowledge including those disclosed by the paTties during the discovery phase ofthis case. Sandi Pickett, Owner, Birmingham Flight Center Ms. Pickett is expectedto testify regardinghis background, training and experience, her FAA credentials, her involvement in the instant matter, her operation of the BirminghamFlight Center, his assignment ofpilots for the demonstration flight with Alan Long onN525LP, his understanding ofthe reputations and pilot credentials ofthe pilots involved in the subject demonstration flight, her interaction with Bob Kent and all witnesses involved in this matter, herunderstanding ofthe various e-mails, documents and correspondence respectingthe FAA'sinvestigation and EIR and all such documents relatedto the subject flight. She is expected to testify regardinghis interaction with Steve

31PageAllen, aircraft broker with Premier Group, regarding the subject aircraft and her understandingthat Dr. Long was interested in the purchase ofthe aircraft. She is expectedto testify regarding all aspects ofthe arrangements with Mr. Allen to perform the demonstration flight with Dr. Long. She is expected to testify regarding all conversations held with his employees and all statements made with FAA inspectors and investigators. She is expected to testify about all aspects ofthe demonstration flight with Alan Long, Dr. Long's flight training and Dr. Long's use and storage ofhis Baron aircraft. She is expected to testify regarding his company's relationship with Aviation Services Group and its employees and directors. She is expected to provide testimony concerningthe denials ofthe allegations contained in the Administrator's complaint. She is expectedto lay the foundation for all documents for which he has personal knowledge includingthose disclosed by the parties during the discovery phase ofthis case. Dr. Alan Long- Passenger, BE-58 owner Dr. Long is expected to testify regarding his background, training and experience, his FAA credentials, his involvement in the instant matter, his involvement in the demonstration flight, his understanding ofthe reputations and pilotcredentials ofthe pilots involved in the subject demonstration flight, his interaction with the Respondent's employees and all witnesses involved in this matter, his understanding ofthe various emails, documents and correspondence respecting the FAA's investigation and EIR and all such documents related to the subjectflight. He is expected to testify regarding his interest in the purchase ofthe aircraft. He is expectedto testify regarding all conversations held with his employees and all statements made with FAA inspectors and investigators. He is expectedto testify regarding his relationship with Aviation Services Group and its employees and directors. He is expectedto lay the foundation for all documents for which he has personal knowledge includingthose disclosed bythe parties during the discovery phase ofthis case. 

### Mr. SteveAllen- Premier Group, Aircraft Broker Mr. Long is expected to testify regarding his background, training and experience, his involvement in the instant matter, his involvement in providing the aircraft for use in the demonstration flight, his understanding ofthe reputations and pilot credentials ofthe pilots involved in the subject demonstration flight, his interaction with the Respondent's employees and all witnesses involved in this matter, his understanding ofthe various emails, documents and correspondence respecting the FAA's investigation and EJR and all such documents related to the subject flight. He is expectedto lay the foundation for all documents for which he has personal knowledge includingthose disclosed bythe parties during the discoveryphase ofthis case. FAA Witnesses: Respondent reserves the right to call and/or cross examine the FAA's witnesses involved in the investigation ofthis matter includingbut not limited to the following witnesses. They are expected to testify respecting theirrelative involvement, observations, research and all other aspects ofthe facts and allegations contained inthe Administrator's Complaint in this matter.



### 41PageYanceyRushton Pat Bruce (Operations Supervisor) ClayPerkins Inspector David Hargett (Inspector) Mr. Pat Bruce (Rushton's Operations supervisor) InterrogatoryNo. 3 Identify each person, other than any person already identified inresponse to Interrogatory No. 1, whom you believe to have knowledge ofthe facts ofthis matter. Answer: None atthis time. Investigation continues. InterrogatoryNo. 4 Identify each expert witness you may call to testify at a hearing on this matter. For each expert witness identified, state the subject matterupon which each is expected to testify, summarize the substance ofsuch expectedtestimony (including, without limitation, the substance ofexpected opiniontestimony) and state the grounds for each such opinion (including, without limitation, identification ofall facts, treatises, reports and records that form the basis for such opinion). Answer: None atthis time. Respondentreserves the right to disclose expert(s) should the need arise. InterrogatoryNo. 5 Identify documents and any tangible items thatyou mayproffer as evidence in a hearing on this matter. Answer: See Respondent's response to the administrator's requests for production of documents. InterrogatoryNo. 6 Ifyou deny any ofthe allegations ofthe Complaint, explain the factual basis for each denial, and identify witnesses and exhibits you anticipate offering as evidence for such factual bases. Answer: The Respondent specifically denies thatthe subject flight was anything but a demonstration flight and awaits answers to the discovery propoundedupon the Administratorto discoverwhat ifany documents and proofare disclosed to prove the

SIP ageprima facie elements ofthe Administrator's case in chief. The e-mailtransmissions by and between the Respondent its witnesses and Dr. Long establishthat Dr. Long was involved in a demonstration flight, that his was in the marketfor an airplane and that nothing that the Respondent or its witnesses did violates any FAR. Birmingham flight center did not act under the rules ofpart 135 as outlined in the EIR. Money did not change hands between Bim1ingham Flight Center and Dr. Long. Dr. Longrequested a demonstration flight, Birmingham Flight Center found an available option. Dr. Long expressed interest inthe option. Dr. Long was atthattime a management client as well as a student oftheBinningham Flight Center. He owned a Beech craft Baron 58. For several months priorhe hadbeen speaking ofupgrading into a larger aircraft in orderto transport his family to and from various destinations. A citation seemedto be the best choice given it's speed and efficiency. On the 18th ofSeptember, JustinLollar was scheduledto have a flight with Dr. Long inhis Baron that Birmingham Flight Center managed for him. This flight had been scheduled for quite some time. The day priorto the flight, Mr. Lollar contacted Mr. Pickett with concerns that the weather forecast showed conditions thatmay be outside the capabilities ofthe Baron. Knowing that Dr. Long had an interest in the citation series ofaircraft, Mr. Pickett contacted Shawn Flowersto lethim know that Dr. Longhad expressed interest in buying ajet, and to verifythat his was still listed for sale. He confirmed it was still for sale. The flight was agreed upon by all parties to be a demonstration flight ofthe CJ's capabilities to Dr. Long, as he had expressed interest in that caliber ofaircraft and needed to see it's capabilities prior to going down any avenues ofpurchase. Premier Group was contacted to arrange a demonstration ofthe aircraft. They contactedthe owner, who approved the use ofthe plane for a demonstration flight. Birmingham Flight Center did not charge anything for setting up the demonstration flight. Premier group gave us a verbal estimate ofthe price perhour for operation ofthe aircraft, which was passed directly to Dr. Long. Dr. Longpaid for the fuel directly. Birmingham Flight Center did not receive income for the aircraft, fuel, orthe pilots in any way whatsoever. Accordinglythe Respondent stands by its denials ofthe allegations ofAdministrator's complaint as set forth in its answer. InterrogatoryNo. 7 State each affirmative defense you assert, explain the factual basis for each, and identify witnesses whose testimony you may offer, and exhibits you mayproffer into evidence, at trial to prove those factual bases for affirmative defenses. Answer: Respondent has notfiled any affirmative defenses in this action.

61PageRESPONSE TO REQUESTFORPRODUCTION
In response to the Administrator's request for production, Respondent attaches the following documents: June 17, 2012 E-mail ofAlan Long to Bim1ingham Flight Center September 18, 2012 E-mail of.T. StevenAllen, President Premier Group to Dr. Long September 19, 2012 E-mail ofDr. Longto J. Steven Allen, PresidentPremier Group and Sheila Wallace September23, 2012 E-mail ofJustin Lollarto Dr. Long Respondentreserves the right to utilize and introduce the exhibits disclosed by the Administratorwith the appropriate witnesses atthe hearing ofthis matter.
Respectfully submitted, BARNETT & BORTH, LLC Dated: August I, 2015

Paul R. Borth Counsel for Respondent, Birmingham Flight Center, Inc. Bamett & Borth, LLC 800WaukeganRoad Suite 200 Glenview, IL 60025 Tel. (847) 724-5520 Fax (815) 356-7042 prb@bamettlegal.com

7[PageCERTIFICATE 

### OF SERVICE
Ihereby certifythat Ihave this date faxed and emailedthe foregoing RESPONDENT'S ANSWERS TO COMPLAINANT'S FIRST SET OF INTERROGATORIES AND REQUESTS FORPRODUCTION addressed to: Christopher Stevenson Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Servicevia e-mail: chris.stevenson@faa.gov

**D~ted:** A.u .1, 2015

**~~~**



## -~~ Paul R. Borth Counsel for Respondent Barnett & Borth, LLC 800WaukeganRoad Suite 200 Glenview, IL 60025 Tel. (847) 724-5520 Fax (815) 356-7042 prb@barnettlegal.com

81Page

### In The Matter Of: U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

BIRMINGHAM FLIGHT CENTER, INC. DocketNo. FAA-2014-0867 Judge 

### I.E. Sullivan Respondent. FAA Case No. 2012S0090053

FAA'S FIRSTDISCOVERYREQUESTS Pursuant to the provisions of 14 CFR § 13.220, please respond to the following Interrogatories, Requests for Production ofDocuments, and Requests for Admission separately and fully under oath within 30 days from your receipt ofthis request. This request is intended to discover information and/or documents not only within your personal knowledge or obtainable by you, but also information in the possession ofor obtainable by your attorneys, investigators, representatives, employees, agents, or anyone acting on your behalfor on theirbehalf. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which eventthe reasons for objection shall be stated in lieu ofan answer. You may respond to the Requests for Production by producing true and accurate copies ofthe originals to the undersigned. Ifyou refuse to produce any documents or other evidence on the basis ofprivilege or other objection, identify specifically the items withheld from production. Each response shall be continuing in nature so as to require you to file supplemental responses in the following circumstances: a) When you become aware of a fact or the identity and location of any docwnent that is not identified inyour original response; b) When your original response was initially correct, but subsequently rendered incorrect or inaccurate based upon information discovered after the original response is prepared. Ifyour answer to any interrogatory is "N/ A" or "Not Applicable," describe in detail your reasons for making such reply. In reply to any interrogatory, do not merely state, "see attached records" unless you have no additional memory ofthe matters referred to in the interrogatory. If you have any additional memory ofthe relevant events, describe it in detail.

GOVERNMENT EXHIBIT 

# (3

### DEFINITIONS 

### "Documents" include, without limitation, notes, memoranda, invoices, work orders, receipts, reports, letters, audio and video tapes, photographs, facsimiles, transcripts, written statements, records of conversations, computer disks or tapes, e-mails, and other tangible or intangible materials. "You" or "your" refers to Respondent, Birmingham Flight Center, Inc

.. "Identify," when referring to persons, requires you to provide the full name, address, telephone number (business and residence, where available) and any other informationpertinent to locating such person. When pertaining to an object or place, "identify" means to provide the name, location or other description ofsuch object orplace. "This matter" refers to the events and circumstances underlying the allegations setforth in the Complaint, including amendments and other additions to the Complaint. Interrogatories 

### I. For eachperson listed in your initial disclosures, describe in detail that person's knowledge ofand involvement with this matter, including not limited to what maintenance that personperformed, what knowledge ofthe situationthat person has, and any communications that person had with others about the situation. 2. Ifyou assert that the inspector's statements inthis matter (inclusive ofrecords of conversation, e-mails, memoranda, or other documents), as contained inthe EIR, contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail yourbasis for believing that the statement is in error, and describe what you believe to be the actual situation. 3. For each allegation in the Complaint that you deny, please state with specificity the basis (whether factual and/or legal) for that denial. 4. Ifyou assert that the penalty proposed in this case is inappropriate even ifthe FAA proves the allegations inthe Complaint, please state with specificity the basis for that assertion, whether factual and/or legal. 5. Describe in detail the circumstances and course ofthe September 18,2012, and all arrangements prior to, during, and after the flight. This includes, but is not limited to, any discussions about the nature ofthe flight, any arrangements for any payment ofany sort to you or the pilots, the time and route ofthe flight, and how the route ofthe flight was determined.
6. Describe in detail your relationship and involvement with Justin Lollar and Shawn Flowers during the second halfof2012.

### 7. Ifyou assert that the October 3, 2012 and/or October 12, 2012 statements by Alan Long contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail your basis for believing that the statement is in error, describe what you believe to be the actual situation, and describe why Mr. Long made the erroneous statement. 8. Ifyou assert that the September 21,2012 and/or October 2, 2012 e-mails from Justin Lollarto YanceyRushton contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail your basis for believing that the statement is in error, describe what you believe to be the actual situation, and describe why Mr. Lollar made the erroneous statement. 9. Ifyou assertthat the undated letters from Shawn Flowers to Yancey Rushton (stamped received by the AL/NW FLORIDA FSD0-09 on October 15,2012 and on October 24, 2012) contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail yourbasis for believing thatthe statement is in error, describe what you believe to be the actual situation, and describe why Mr. Flowers made the erroneous statement. I0. Ifyou assert any inaccuracy or incompleteness in any ofthe maintenance records related to this case and/or included in the EIR, please identify with specificity any such inaccuracy or incompleteness, your basis for believing that the record is inaccurate or incomplete, and what the record should have stated. II. Identify each person you may call as a witness at hearing in this matter, identifythe subject oftheir testimony, and summarize the substance oftheir expected testimony. You do not need to repeat information already contained in your initial disclosures, but you must expand on those answers to the extentnecessary to answerthis interrogatory. 12. Identify each person you may call as an expert witness in this matter, identify the subject oftheir testimony, summarize the substance oftheir expected testimony, and describe in detail your basis for believing that the witness is an expert. 13. For each interrogatory, request for production and request to admit, identify the individuals aiding inresponding to that request. 14. For each document identified in your initial disclosures, describe howthat document supports your position in this matter. 15. Ifyou deny any request for admission, state with specificity the basis for that denial. Requests for Production 

### With respect to each ofthe request for production below, you need not produce an additional copy ofany document that was contained in the EIR in this matter, but should identify any such document that is not being produced and which request for production it is responsive to.

### I. Please produce each and every document referred to in your initial disclosures. 2. Please produce any document referenced in your interrogatory responses. 3. Please produce any document you may use as evidence in this matter. 4. Please produce any document used, relied upon, or referred to in answering the interrogatories or requests to admit. 5. Please produce all documents relating to N525LP during September 2012, including but not limited to any insurance agreements in effect at the time, any leases in effect at the time, aircraft and engine logbooks, maintenance records, flight records, and financial records relating to the maintenance, operation, or lease ofthe aircraft. 6. Copies ofall correspondence (letters, e-mails, or otherwise) to or from Birmingham Flight Center, Steven Pickett, and/or Sandi Pickett concerning this case or the operation of N525LP in September 2012. Request to Admit 

### I. Admit that (regardless ofyour intent) the September 18,2012 flight in N525LP were not demonstration flights. 2. Admit that Dr. Long was charged amounts beyond those permitted by 14 C.F.R. § 91.50I(d). 3. Admitthat it was the intent ofBirmingham Flight Center and the pilots involved in the September 18,2012 flight to charge amounts that are not listed as permissible charges in 14 C.F.R. § 91.50l(d). 4. Admit that you operated N525LP on September 18,2012.

y"\ 

### Submitted this

# 1_day ofJuly, 2015.



# C~. STEVENSON Attorney Office ofthe Regional Counsel

### CERTIFICATE OF SERVICE 

### I hereby certify that the foregoing FAA's First Discovery Requests was sent via certified mail and facsimile to: Paul R. Borth, Esq. Barnett & 

### Borth, LLC 800 WaukeganRoad, Suite 200 Glenview, IL 60025 facsimile: (815) 356-7042



# ~&~N~ Legal Assistant Office ofthe Regional Counsel


### ,J

### U 

### L .. I 

### 2GJJ DatedU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS, WASHINGTON, DC MICHAEL P. HUERTA, Administrator ) Federal Aviation Administration ) ) Complainant ) v. ) ) BIRMINGHAMFLIGHT CENTER, INC. ) ) Respondent. ) DocketNo. FAA-201 4-0867 Judge J.E. Sullivan FAA Case No, 2012S0090053



### RESPONDENT'S ANSWERS TO COMPLAINANT'S "INITIAL" SET OF INTERROGATORIES AND REQUESTS FORPRODUCTION Respondent, Birmingham Flight Center, by its attomeys, Bamett & Borth, LLC. hereby answers the Administrator's "Initial" Set oflnterrogatories and Requests for Production as follows: 1. For eachperson listed in your initial disclosures, describe in detail thatperson's knowledge ofand involvement with this matter, including not limited to what maintenance that person performed, whatknowledge ofthe situationthatperson has and any communications that personhad with others aboutthe situation. Answer: See Respondent's Answers to Interrogatories 1and 2 ofthe Administrator's first set of Interrogatories filed on August 1, 2015. 2. Ifyou assertthat the inspector's statements inthis matter (inclusive ofrecords of conversation, e-mails, memoranda, or other documents); as contained in the EIR, contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail your basis for believingthatthe statement is in error, and describe whatyou believe to be the actual situation. Answer: This lnterrogatory is overly broad and vague and would require a narrative response better suited to deposition and/or hearing testimony ofthe witnesses in this case. The requested answer would require a narrative response requiring complete factual detail and a line by line review ofall documents that are referenced. To the extentthatthis question seeks to narrow this Interrogatory is unduly burdensome and overbroad andwouldmore appropriately be addressed by way ofdeposition or hearing testimony. Respondent further objectto this Interrogatory to the extentthat they are asked to state a legal opinion

liP age**~GOVERNMENT** 

## j EXHIBIT 

# i con "falsehoods", errors, etc. In addition, the Rules ofCivil Procedure do not require the Respondent to explain and disclose whatthe Respondent intends to showby way ofcross examination ofthe FAA's inspectors and witnesses which places this interrogatory inthe category ofrequesting the mental impressions and workproductofthe Respondent's trial counsel which is not allowed and is objectionable. Respondentfurther objects to this Interrogatory to the extent it (i) Requests thatRespondentprovide a lengthynarrative response to an impermissibly broad and compound question; (ii) Requests the Respondent to provide detailed legal analysis ofsuch infonnation. An undertaking ofthis nature is notrequired bythe Federal Rules ofCivil Procedure and is designed to burden and harass Respondent andto cause it to incur enormous expenses. (iii) Marshall facts from all documents inthis case to support any contentions of"error", misrepresentation, etc. 3. ·For each allegation in the Complaintthat you deny, please state with specificity the basis (whetherfactual and/or legal) for that denial. Answer: This request is overly broad and unduly burdensome because it attempts to require Respondentto provide a narrative account ofeachpotential witness' anticipated testimony and to develop a narrative account ofeach and everypotential defense that Respondent may assert in this action. "Each interrogatory should consist ofa brief, simple, direct, and unambiguous question, dealing with one point only. The question should be objective and non-argumentative. They should not seek narrative answers or attemptto argue, cross-examine, or impeach." Hiltv. SFC. Inc., 170 F.R.D. 182, 186-187 (D.Kan. 1997). In addition, the denials ofeach ofthe Administrator's complaint allegations stand ontheir own and are self-explanatory. TheRespondent has no burden ofproofin this case. See also Answerto Interrogatory number 6 ofthe Administrator's first set ofInterrogatories filed on August I, 2015. 4. Ifyou assert thatthe penalty proposed in this case is inappropriate even ifthe FAAproves the allegations in the Complaint, please state with specificitythe basis for that assertion, whetherfactual and/or legal. Answer: The proposed penalty asserted by the FAA in this case is inappropriate by virtue ofthe fact that the FAA cannotprove its allegations ofviolation ofthe cited regulations since the in light ofthe fact that the subject flight was a demonstration flight and was not operated for compensation orhire. The various e-mails contained in the FAA's EOR, the statements made by Mr. Picket and the e-mail transmissions disclosed by Respondent of the pertinentwitnesses in this case bear outthe fact thatthe subjectflight was a demonstration flight thereby rendering the allegations ofthe Administrator's compliant moot.



### 21Page5. Describe in detail the circumstances and course ofthe September 18, 2012, and all arrangements priorto, during, and after the flight. This includes, but is not limited to, any discussions about the nature ofthe flight, any arrangements for any payment ofany sort to you orthe pilots, the time and route ofthe flight, and how the route ofthe flight was determined. Answer: This request is overly broad, compound and unduly burdensome because it attempts to require Respondent to provide a narrative account ofeachpotential witness' anticipated testimony and to develop a narrative account ofeach and every potential defense that Respondent may assert in this action. "Each interrogatory should consist ofa brief, simple, direct, and unambiguous question, dealing with one point only. The question shouldbe objective and non-argumentative. They shouldnot seeknarrative answers or attempt to argue, cross-examine, or impeach." Hilt v. SFC. Inc., 170 F.R.D. 182, 186-187 (D.Kan. 1997). Notwithstandingthe informationthat is sought in this interrogatory can be gleaned from the rather extensive investigative reports ofthe FAA's investigator's and witnesses and the documents contained in the FAA'sEIR and the documents previously disclosed by the Respondent. 6. Describe in detail your relationship and involvement with Justin Lollar and Shawn Flowers during the second halfof2012. Answer: See the documents contained in the FAA EIR and Respondent's Answers to Interrogatories I and 2 ofthe Administrator's first set ofInterrogatories filed onAugust 1,2015. 7. Ifyou assert that the October 3, 2012 and/or October 12, 2012 statements by Alan Long contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail your basis for believing thatthe statement is in error, describe whatyou believe to be the actual situation, and describe whyMr. Long made the erroneous statement. Answer: This Interrogatory is overlybroad, compound and vague and would require a narrative response better suited to deposition and/or hearing testimony ofthe witnesses inthis case. The requested answer would require anarrative response requiring complete factual detail, and to the extentthatthis question seeks to narrow this Interrogatory is unduly burdensome and overbroad and would more appropriately be addressed by way of deposition. Respondent further objectto this Interrogatory to the extentthat they are asked to state a legal opinion on "falsehoods", errors, and the general credibility ofDr. Long withoutthe benefit ofhis sworn testimony or cross examination. ln addition, the Rules ofCivil Procedure do notrequire the Respondent to explain and disclose what the Respondent intends to showby way ofcross examination ofAlan Long whichplaces this interrogatory in the category ofrequesting the mental impressions, strategic impressions and tactics and attorney workproduct ofthe Respondent'strial counsel which is not 3IPageallowed and is objectionable. See also the contemporaneous e-mail transmissions to and from Dr. Long contained in the FAA's EIR and those previously disclosed by Respondent. 8. Ifyou assert that the September 21, 2012 and/or October 21 2012 e-mails from Justin Lollar to Yancey Rushton contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail yourbasis for believingthatthe statement is in error, describe what you believe to be the actual situation, and describe why Mr. Lollar made the erroneous statement. Answer: This Interrogatory is overlybroad, compound and vague and would require a narrative response better suited to deposition and/or hearing testimony ofMr. Lollar and Mr. Rushton. The requested answer wouldrequire a narrative response requiring complete factual detail, and to the extentthatthis question seeks to narrowthis Interrogatory is unduly burdensome and overbroad and would more appropriately be addressed by way of deposition. Respondent further objectto this Interrogatoryto the extentthatthey are asked to state a legal opinion on "falsehoods", errors, etc. Without the benefit ofthe testimony ofMr. Rushton, an assessment concerningthe credibility ofhis investigation cannot be surmised. 1n addition, no such e-mails have been disclosed bythe Administrator nor are they contained as items ofproofin the FAAEIR. The Rules of Civil Procedure do not require the Respondentto explain and disclose what the Respondent intends to showby wayofcross examination ofAlan Long which places this interrogatory in the category ofrequesting the mental impressions and workproduct of the Respondent's trial counsel which is not allowed and is objectionable. See also theemail transmissions to and from Dr. Long contained in the FAA'sEIRand those previously disclosed byRespondent. 9. Ifyou asseJi that the undated letters from ShawnFlowers to Yancey Rushton (stamped received bythe AL/NW FLORJDA FSD0-09 on October 15, 2012 and on October 24, 2012) contain any inaccuracies, falsehoods, mischaracterizations, or other errors, please specifically identify such errors, describe in detail yourbasis for believing that the statementis in error. describe what you believeto be the actual situation and describe why Mr. Flowers made the enoneous statement. Answer: This Interrogatory is overly broad, compound and vague and would require a narrative response better suited to deposition and/or hearing testimony ofMr. Flowers. The requested answer would require a narrative response requiring complete factual detail, and to the extent thatthis question seeks to narrow this Interrogatory is unduly burdensome and overbroad and would more appropriatelybe addressed by way of deposition. Respondent further object to this Interrogatory to the extentthat they are asked to state a legal opinion on "falsehoods", errors, etc. The Rules ofCivil Procedure do not require the Respondentto explain and disclose whatthe Respondent intends to show by way ofdirect or cross examination of Mr. Flowers Longwhich places this intenogatory in the category ofrequesting the mental impressions and workproduct of 

### 41Pagcthe Respondent's trial counsel which is not allowed and is objectionable. As to the October 15, 2012 dated letter it speaks for itself. The October 24 dated letter, the first three paragraphs appear to be accurate while the last paragraph appears to be a lay assessment ofunlmownFAR's that would require a legal analysis and mental impressions to decipher and comment upon renderingthis question which invades attorney workproduct. See also the contemporaneous e-mail transmissions to and from Dr. Long contained in the FAA's EIR and those previously disclosed by Respondent. 10. Ifyou assert any inaccuracy or incompleteness in any ofthe maintenance records related to this case and/or included in the EIR, please identify with specificity any such inaccuracy or incompleteness, your basis for believingthatthe recordjs inaccurate or incomplete, and what the record shouldhave stated. Answer: None ofthe allegations ofthe Administrator's compliantconcernthe "maintenance records" ofanything nor have any such records beenproduced bythe Administrator or contained inthe FAA's EIR. As such, Respondent has no way to answer the interrogatory and questions the relevance ofthe interrogatory to any aspect ofthis matter. 11. Identify each person you may call as a witness athearing in this matter, identify the subject oftheirtestimony, and summarize the substance oftheir expected testimony. You do notneed to repeat information already contained in your initial disclosures, but you must expand on those answers to the extent necessary to answer this interrogatory. Answer: See Respondent's Answers to Interrogatories 1 and 2 ofthe Administrator's first set of Interrogatories filed on August 1, 2015. 12. Identifyeach person you may can as an expert witness in this matter, identifythe subject oftheirtestimony, summarize the substance oftheir expected testimony, and describe in detail your basis for believingthatthe witness is an expert. Answer: None. 13. For each interrogatory, request for production and request to admit, identifythe individuals aiding in responding to that request. Answer: StevenPickett

SIP age14. For each document identified in your initial disclosures, describe how that document supports your position in this matter. Answer: This Interrogatory is overlybroad, compound and vague and would require a narrative response The requested answer would require a narrativeresponse requiring complete factual detail, and to the extentthatthis question seeks to narrow this Interrogatory is unduly burdensome and overbroad In addition, the Rules ofCivil Procedure do not require the Respondent to explain and disclose what the Respondent intends to showby way ofthe voluminous documents that make up this case. This interrogatory is in the category ofrequesting the mental impressions and workproductofthe Respondent'strial counsel which is not allowed and is objectionable. 15. Ifyou deny any request for admission, state with specificity the basis for that denial. Answer: REQUEST TO ADMIT: l. Admitthat (regardless ofyour intent) the September 18,2012 flight in N5254LP were not demonstration flights. ANSWER: Denied on the basis that the intention andpurpose ofBirminghamFlight Center, its principals, employees and agents thatthe flight was a flight taken as a demonstration flight on the authority ofthe owner and broker ofthe aircraft. REQUEST TO ADMIT: 2. AdmitthatDr. Long was charged amounts beyondthose permittedby 14 C.F.R. §91.50l(d). ANSWER: Denied on the basis that §91.501 (b) providesthat operations thatmay be conducted under the rules in this subpart instead ofthose inparts 121, 129, 135, and 137 ofthis chapterwhen conunon carriage is not involved, include (3) Flights for the demonstration ofan airplane to prospective customers whenno charge is made except for those specified in paragraph (d) ofthis section. 

### §91.501 (d) then provides that the following may be charged, as expenses ofa specific flight, for transpmtation as authorized byparagraphs (b) (3) and (7) and ( c)(1) ofthis section: (1) Fuel, oil, lubricants, and other additives. (2) Travel expenses ofthe crew, including food, lodging, and ground transportation. (3) Hangar and tie-down costs away from the aircraft's base ofoperation. ( 4) Insurance obtained for the specific flight. (5) Landing fees, airport taxes, and similar assessments. (6) Customs, foreign permit, and similar fees directly related to the flight. (7) In flight food and beverages. 61Page·(8) Passenger ground transportation. (9) Flightplanning and weather contract services. (I0) An additional charge equal to I00 percent ofthe expenses listed in paragraph (d)(l) ofthis section. No inappropriate charges were requested nor incurred ofor by Dr. Long and no documentation to the contrary is contained in the FAA's EIR nor has any such docwnentation that any inappropriate charges were requested ofor by Dr. Long been produced by the Administrator. REQUEST TO ADMIT: 3. Admit that itwas the intent ofBirmingham Flight Center and the pilots involved in the September 18,2012 flight to charge amounts that are not listed as permissible charges in 14 C.P.R.§ 91.50l(d). ANSWER: Denied on the basis set forth in answer to Request to admit 1and 2. REQUEST TO ADMIT: 4. Admitthat you operated N525LP on September 18, 2012. ANSWER: Denied onthe basis thatthe term "operated" is not defined and Respondent does not wish to have an inappropriate definition of"operated" to be applied to the factual situations involved to admit or imply thatthe subject flight was a charter, 135 or commercial flight or any other flight other that a demonstration flight which it was. RESPONSE TO REQUEST FOR PRODUCTION
In response to the Administrator's "Initial" request for production, Respondent Provides the following responses: 1. Pleaseproduce each and every documentreferenced in your initial diclosures. Response: See Respondent's Responses to the Administrator's first set ofRequests for Production of Documents filed onAugust 1, 20 15 and Respondent's Supplemental Response filed on August 17,2015. 2. Please produce any documentreferenced in your interrogatory responses. Response: See Respondent's Responses to the Administrator's first set ofRequests for Production of Documents filed on August 1, 2015 and Respondent's Supplemental Response filed on August 17,2015. Other documents are contained in the FAA's EIR.
71Page3. Please produce any document you may use as evidence in this matter. Response: See Respondent's Responses to the Administrator's first set ofRequests for Production of Documents filed on August I, 2015 and Respondent's Supplemental Response filed on August 17, 2015. Other documents are contained in the FAA's EIR. The specific documents to be used at the hearing ofthis matter will beproducedwith appropriate exhibit reference on orbeforethe September 18,2015 date for disclosures as set forth in the Court's Pre-Trial Order**at~** I0. 4. Please produce any document usedrelied upon, orreferred to in answering the interrogatories orrequests to admit. Response: Respondentutilized all documents set forth in Respondent's Responses to the Administrator's first set ofRequests for Production ofDocuments filed on August 

### I, 2015 and Respondent's Supplemental Response filed onAugust 17, 2015. Other documents are contained in the FAA'sEIR. 5. Please produce all documents relatedto N525LP during September2012 including butnotlimitedto any insurance agreements in effect atthetime, any leases in effect at the time, aircraft, engine and maintenance logbooks, maintenance, flight records and financial records relating to the maintenance, operation or lease ofthe aircraft. Response: Respondent was notthe owner ofthe subject aircraft and is notin possession ofany records or documents responsive to this request.
6. Copies ofall correspondence (letters, e-mails or otherwise) to or from Birmingham Flight Center, Steven Pickett, and/or Sandi Pickettconcerningthis case or the operation ofN525LP in September 2012. Response: See Respondent's Responses to the Administrator's first set ofRequests for Production of Documents filed on August 1, 2015 and Respondent's Supplemental Response filed on August 17,2015. Other documents are contained in the FAA's EIR. Respondentreserves the rightto utilize and introduce the exhibits disclosed bythe Administratorwith the appropriate witnesses at the hearing ofthis matter.

81PageRespectfully submitted, BARNETT & BORTH, LLC Dated: August 21 , 2015

Paul R. Borth Counsel for Respondent, BirminghamFlight Center, Inc. Barnett & Borth, LLC 800\VaukeganRoad Suite 200 Glenview, IL 60025 Tel. (847) 724-5520 Fax (815) 356-7042 prb@barnettlegal.com



### 91PageCERTIFICATE OF SERVICE
I hereby certifythatI havethis date faxed and emailed the foregoing RESPONDENT'S ANSWERS TO COMPLAINANT'S "INITIAL" INTERROGATORIES AND REQUESTS FOR PRODUCTION addressed to: Christopher Stevenson Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel, ASO-7 Southern Region 1701 Columbia Avenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Servicevia e-mail: chris.stevenson@faa.gov Dated: August 21,2015**~~**

# c~~~ Paul R. Borth Counsel for Respondent Barnett & Borth, LLC 800Waukegan Road Suite 200 Glenview, lL 60025 Tel. (847) 724-5520 Fax (815) 356-7042 prb@barnettlegal.com

10 

## IPageU.S. Department ofTransportation federal Aviation Administration

VIA E-MAIL ONLY PaulR.Borth Barnett & Borth, LLC 800 Waukegan Road, Suite 200 Glenview, IL 60025 facsimile: (815) 356-7042 email: prb@barnettlegal.com Office of the Chief Counsel

Re: FAA v. Birmingham Flight Center, FAA-2014-0867 Mr. Borth: Enforcement Division Southern Team 1701 Columbia Avenue College Park, GA 30337

20 12S0090053

I am writing to follow up on your August 21, 2015 responses to the FAA's July 7, 2015 discovery requests. These responses were substantially deficient in a variety of ways, as discussed in more detail below. Please let me know immediately ifyou plan up updating your responses to correct these deficiencies and, ifso, when you anticipate doing so. Given that these responses were two weeks late and that we are now outside ofthe currently-scheduled discovery period, prompt action will be required on this front. Accordingly, be advised that if I do not receive a suitable response regarding your intentions by close ofbusiness tomorrow, August 28, 2015, a Motion to Compel will be filed next week. Intenogatories #I, 11: Interrogatory 

### #1 sought a detailed description of several persons' "knowledge of and involvement with this matter," including what their knowledge of the situation was and what conm1Llnications that person had with others about the situation. Intenogatory # 11 sought similar information with regard to expected witnesses

- identification of the subject of their testimony, and a summary of the substance of that testimony. In response to both of these intenogatories; you refened to your answers to Interrogatories #1 and #2 of a prior set of discovery requests. However, those discovery responses do not adequately answer this interrogatory. In particular, I note that the answers to those intenogatories provide no detail about what the individuals knew or what their communications were. for example, the prior response concerning Steven Pickett states that he is expected to testify about "all aspects" ofthe flight and about his communications with various individual. But it does not say what he actually knows about the flight or what those communications were. Your responses identify the potential subject of testimony, but provide no information about the substance ofthat testimony. For example, it is not enough to simply say that a witness will "testify about the weather"

- a complete response would specific that the witness was going to testify that it was raining and chilly, or wann and sunny.



### GOVERNMENT EXHIBIT 

# 0Interrogatories #2, 7, 8, 9: These interrogatories asked Respondent to state whether it considered the contents of various statements, letters, and records of conversation to he accurate or inaccurate (whether simply inaccurate, mischaracterizing an otherwise true fact, or omitting pertinent information), You refused to answer any ofthese questions, However, yom slated reasons tor doing so are not valid ones, Contrary to your assertion, these questions are not vague, Contrary to your assertion, they are not "overly broad," but rather are confined to specitic documents used as Items of Proof in the ETR in this case, You are correct that they require a line-by-line review ofthe documents in question, but that is not a reason to refuse to answer the question. You suggest that these questions .would be "more appropriately" addressed at a deposition, but your opinion as to what method ofdiscovery the FAA should have chosen does not relieve Respondent of the obligation of responding to discovery. You suggest that these questions would be "more appropriately" addressed at hearing, but that would defeat the entire purpose of discovery, which is to exchange information prior to hearing, You object to these questions as calling for legal conclusion as to whether statements are false, but that is a factual conclusion, not a legal one - and, regardless, discovery requests can permissibly ask for legal conclusions, You further object on the basis that this request asks what you intend to do in cross examination, but that is inaccurate, TI1is request asks for factual information (or, at least, Respondent's view ofwhat the facts are), Respondent must answerthese interrogatories, Interrogatory #4: This request sought Respondent's arguments, ifany, for asserting thatthe penalty was inappropriate "even ifthe FAA proves the allegations inthe Complaint" Your answer to this question exclusively consisted ofdenying that the allegations in the Complaint were true, Unless Respondent will agreeto stipulate that, ifthe violations are proven, the penalty is appropriate, Respondent must answerthis interrogatory as to the alleged defects in the sanction selected, Interrogatory #5: This interrogatory sough a detailed description ofthe circumstances ofthe flight at issue in this case. You objected to the interrogatory as "overly board" and "unduly burdensome" and because, you asserted, it sought a narrative accow1t ofeach witness's complete testimony, Your objection without merit The discovery request does not call for such a response- it calls for a description ofevents, not a description oftestimony, It is entirely appropriate for an interrogatoryto seek a description ofevents at issue in a case, In addition to objecting, you also responded by referring to the EIR. This is not an adequate response, especiallywhen we knowthat Respondent does not actually agree with every aspect ofeach ofthe accounts ofevents contained in those documents (for example, 

### DL Long asserts the notion ofa demonstration flight never came up until after the flight, while Respondent asserts that itdid), The intonnation sought by this interrogatory is not what those individual witnesses said- the information sought by this interrogatory is what the Respondent's ot1icial position is as to what transpired with regards to this flight lnteiTogatory #6: 111is intenogatory sought a description ofthe relationship between Respondent and pilots Justin Lollar and Shawn Flowers during the latter halfof2012, You did not object to this question, but only responded byreferring to other interrogatory responses, andto the entire EIR. This is not an adequate response, First, the interrogatoryresponses referenced to do appearto address this at all- as noted above, those responses simply referenced topics without content. Second, simply referring to EIR as a whole is inappropriate- it couldperhaps be appropriate to direct the FAA to the contents ofa particular docwnent, ifthat document containedinformation that fully and completely answered the question. Butthere was no such direction provided, theundersigned is unaware ofsuch a document, and iftl1ere is such a document, Respondentmust still go on the record as fom1ally adopting the contents ofthat document. Interrogatory 

### #15 and Requests for Admission 1, 4: This interrogatory requested that Respondent identify the basis for denying any requests for admissionthat had been denied. All ofthese interrogatories were responded to. However, these responsesrevealed that there was not a valid basis for the original denials. Request tor Admission #1 specifically asked Respondent to admit that the flight was not a demonstration flight, regardless ofwhether Respondent intended it to be a demonstration flight. Your response to tllis interrogatory is that the basis for the denial isthattl1e "intention and purpose" ofthe flight was a demonstration flight- in shmi, the denial had nothing to do withthe question. Request for Admission #4 asked Respondentto admitthat it had operatedthe night. That request was denied, and the explanation provided was that the term "operated" was not defined. In short, Respondent answered "denied" even though ithad no basis to deny the request for admission. You are advised that the definition ofthe word operate is contained in 14 C.F.R. § 1.1. As to both ofthese interrogatories, Respondent must revise its answer to the request for admission and/or supplement its response to this interrogatoryto provide a valid basis for denying the requests for admission. Failure to do so will result in the filing ofa Motion to Deem Admitted. As noted above, please let me knowby close ofbusiness tomorrow, August 28, 2015, whether you intend to correct these deficiencies, and ifso, your anticipated time frame for doing so. Sincerely,

CIIRISTOPHER R. STEVENSON Attorney Office ofthe ChiefCounsel- Enforcement Division, Southern Team800 Waukegan Road, Suite 200 • Glenview, Illinois 60025
847-809-9520 September 29,2015 Christopher Stevenson Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue CollegePark, GA 30337 ViaE-mail: Chris.StevensoniWfaa.gov
Re: In Re Birmingham Flight Center Discovery Mr. Stevenson: prb@barnettlegal.com

I have had the opportunityto review your discovery responses and have the following comments. In response to respondent's expert interrogatories you state that "the FAA has not identified any expert witnesses atthis time." In addition, you object claimingprivilege in response to Respondent's expertrequests for productionnumbers 2, 3, 4 and Respondent's request for productionnumbers 5, 6, 7, 10, 12, 24, and 25. A review ofthe docwnents disclosed byAdministrator demonstrate that Mr. Rushton and Mr. Hargettwere both involved inthe investigation ofthis case on behalfofthe FAA and both wrote reports concerningtheir investigation.
Itis ourpositionthatbothMr. Rushton andMr. Hargett are experts in the eyes ofthe Federal Rules subjectto rule 26 and, accordingly, your objections and claims ofprivilege respectingresponse requests for expert discovery are unfounded. You have identified Mr. Rushton as an individual who will provide testimony at the hearing buthave merely disclosed that "Mr. Rushton willprovide testimony respecting all FAA allegations contained in the administrator's complaintfor which he has personallmowledge". Your answerto Respondent's interrogatorynumber 7 states that the FAA anticipates callingthe three FAA aviation safety inspectors who were involved in the investigation as well. The allegations ofthe administrator's complaintconcern CFR'sthat one would assume Mr. Rushtonhas studied and for which Mr. Rushton holds opinions vis-it-vis the factual scenario involved in this case drawing onhis experience as a former owner ofa charter service (Rushton Air). Federal Rule ofCivil Procedure Rule 26 (2) Disclosure ofExpert Testimony dictates that: (A) In General. In addition to the disclosures required by Rule 26(a)(l), apartymust disclose to the otherparties the identity of any witness itmayuse at trial to present evidence underFederal Rule ofEvidence 702, 703, or 705. GOVERNMENT EXHIBIT liPage 

# E(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered bythe court, this disclosure must be accompanied by a written report-prepared and signed bythe witness-ifthewitness is one retained or specially employed to provide expert testimony in the case or onewhose duties as the party's employee regularly involve giving experttestimony. The report must contain: (i) a complete statement ofall opinions the witness will express andthe basis and reasons for them; (ii) the facts or dataconsideredby the witness in fmming them; (iii) any exhibits that will be used to summarize or supportthem; (iv) the witness's qualifications, including a list ofall publications authored in the previous I0 years; (v) a list ofall other cases in which, during the previous 4 years, thewitness testified as an expert at trial orby deposition; and (vi) a statement ofthe compensation to be paid for the study and testimony in the case. (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, ifthe witness is not required to provide a written report, this disclosure must state: (i) the subjectmatter onwhich the witness is expected to present evidence under Federal Rule ofEvidence 702,703, or 705; and (ii) a summary ofthe facts and opinions to whichthewitness is expectedto testify. (Emphasis supplied). Both Mr. Yancey and Mr. Hargettmeetthe criteria of"one whose duties as the party's employee regularly involve giving experttestimony". They are both employees ofthe FAA and theirpositions withthe FAA likely involve regularly providing experttestimony in cases such as the present one. Accordingly the Administratorhas failed to complywithRule 26 (2)(B) in all respects and notwithstanding Rule 26(2), Respondent would be severely prejudiced bybeing forced to cross examine an expert whose opinions have not been previously disclosed. We would appreciate it ifyou wouldreconsider your objections and purported privileges andprovide us with full disclosure ofthe opinions and documents requested in respondent's discovery requests. In additionto your purported privileges have not been accompaniedby a privilege log. Since 1993, FRCP 26(b)(5) has includedthe following language: "When a party withholds information otherwise discoverable by claimingthat the information is privileged or subjectto protection as trial preparation material, the party must: i) Expresslymake the claim; and ii) Describe the nature ofthe documents, communications, ortangible things notproduced or disclosed

-- and do so in a mannerthat, withoutrevealing information itselfprivileged or protected, will enable otherparties to assess the claim. The language ofRule 26(b)(5) is "commonly satisfiedby filing a privilege log." Wolkv. Green, No. C06-5025 BZ, 2007 WL 3203050, at *1-2 (N.D. Cal. 2007). We would appreciate it ifat your earliestconvenience, you would file a privilege log that meets the above criteria so that an in camera inspection may be conducted. With respect to your answers to Respondent's non-expert interrogatories, interrogatory number 7 requests a briefsummary ofthe facts and opinions ofwhich each identified witness willtestify. Absentfrom your answer is any indication ofthe facts and opinions that will be expressed by the three FAA aviation safety inspectors. At your earliestconvenienceplease provide a morethorough answer to this interrogatory.Interrogatory n\lmber 8 asks the Administratorto provide a list ofthe documents that will be used to supportthe Administrators claim that respondent violated aviationregulations. While the Respondent is in possession ofthe EIR, he is not cognizant ofwhich documents contained in the EIRwill be used bythe Administrator to supporthis case. While it is true thatthe Respondent "can read the documents for itself'the Respondent is uncertain ofwhich documents the Administrator deems supportive ofhis case. Pleaseprovide a more thorough answerto this interrogatory. Based on the Administrator's answer to interrogatory number 10 and 11 andthe Administrator's response to respondent's request for production numbers 16, the Respondent assumes thatthe Administratorhas no affirmative responses to these requests and is waving the potential use ofresponsive documents related to these requests. Please advise ifthe Respondent is mistaken in this regard. With respectto the Respondent's responses to the Administrator's discovery, Respondent stands by the answers and responses previously servedupon the Administrator and disagrees with the arguments to the contrary setforth in your undated letter on this subject.

PRB/tbm



### 31Pagc Sincerely, BARNETT & BORTI!, LLC



# ~?~

**~--·..---='** Paul Borth, Attorney at Law