0&/'88/201B 16:2 6 9072712600. , ::;-• . :--.:.•../'/•..: rFf^f^^'•:':••',:.: :^^ :.r--.';:•..•:-.•••. \. . ... PAGE 02/1 8 

r--r- ^'-7';'.':"-'>nT;,-iA\ i 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

. IN THE MATTER OF 

KYLE PONSFORD 

FAA DOCKET NO. CP09AL0007 

(Civil Penalty Proceeding) 

DMSNO.PAA-2009-0729 

AGENCY'S MOTION TO COMPEL DISCOVERY 

On May 4,2010, Complainant served its first discovery request on Respondent. This request 

includes 18 requests for admission, 4 interrogatories, and 1 request for production. Exhibit A is 

a copy of this request and the cover letter. On June 3,2010, Respondent served a document 

entitled, "Motion to Dispute Discovery.*' In it he states: 

1. All 18 requests are cumulatiye and jepetitious^. 

2. 15 requests are clearly internal information abready possessed by the agency. 

3. None of the requests .axe information the Agency cannot obtain, or has not 

obtained through other methods permitted. 

4. All! 8 requests can only be seen as unduly burdensome, and specifically 

expensive to me for reasons shown in previous letters. 

Exhibit B is a copy of his submission. 

Complainant moves for an Order compelling-Respondentto-admit or deny each of the 

requests for admission and to provide complete responses to each of the interrogatories and the 

request for production in the Agency's First Discovery Request. 

This case has an unusual history. Respondent requested a hearing in a letter dated July 20, 

file an answer as required by the Rules of Practice, Complainant, on October 5,2009, filed a 

^^ixwrnf^ss^S^ssmsmiemms^^i^i^ 
06/08/2010 16:26 9072712800 FAA PAGE 03/18 

motion to deem the allegations admitted. On October 22,2009, the assigned law judge issued an 

Order to Show Cause. In it the law judge orders Respondent to show cause by October 30,2009, 

why the relief sought by the Complainant should not be granted. In this Order the law judge also 

points out that the Rules of Practice require that a person filing an answer must admit, deny, or 

state that the person is without sufficient knowledge or information to admit or deny each 

numbered paragraph of the complaint. In his Order served on November 9,2009, the law judge 

finds that Respondent failed to file any pleading since his request for a hearing, and he deems the 

facts admitted and limits the hearing to the amount of the civil penalty to be imposed. By Orders 

served in January and February 2010, the law judge set the matter for a hearing in Juneau, 

Alaska, on June 29,2010, and established June 11,2010, as the deadline for completing 

discovery. 

On March 24,2010 Respondent ^pealed the law judge's decision to the FAA 

Decisionmaker. Diiring the processing of this appeal, it came to light that on October 28,2009, 

Respondent had timely submitted a letter in response to the law judge's Order to Show Cause, 

but Respondent had only sent it to the Hearing Docket. No copy was sent to either the law judge 

or Complainant's counsel. In his Order^dismissing Respondent's appeal and remanding the case 

to the law judge, the FAA Decisionmaker indicates the law judge should consider Respondent's 

letter and determine whether it establishes good cause for Respondent's failure to file an answer. 

On May 4,2010, the law judge entered an Order receiving Respondent's October 28,2010, letter 

as his answer, permitting Reroondent to address,the substantive allegations of the Complaint, 

and modifying his Order Deeming Allegations Admitted to the extent required by these matters. 

On May 4,2010, Complainant served the discovery request at issue. Each of the requests for 

admission is essentially a less formal restatement of each numbered paragraph in the complaint, 

;• 2 . . •.. :•,... .•opy r 
06/08/2010 16:26 9072712800 FAA PAGE 04/18 

Thus, the requests for admission seek nothing more than for Respondent to admit or deny or 

claim a lack of knowledge as to each of the numbered paragraphs in the complaint—which, 

heretofore, he has never done. The interrogatories and request for production ask that he explain 

the basis for any denial of a request for admission, identify each person he intends to call as a 

witness and provide a summary of expected testimony, produce copies of any statements made 

by his wimesses, state whether he contends he lacks the ability to pay the proposed civil penalty, 

and produce anything else on which he intends to rely at the hearing. 

Respondent offers nothing in support of his various contentions regarding Complainant's 

discovery request. Specifically he does not explain how he arrives at his conclusions that the 

individual requests are cumulative or repetitious, which is not obvious given that this is the 

Agency* s first discovery request. Likewise, he does not explain how having to answer them 

would be unduly burderwome, or cause him unnecessary expense. The Complainant is unsure of 

what Respondent means by "internal information," but it is not a recognized basis for resisting 

- . - . _^_L*'wAi.-. . . . ., J . *A.v . - , . • - '- ^ . . '- •^ ' . •• - ' • - • •• 'i. - • • • • _ . 

J • . , . 

legitimate discovery requests. With respect to his contention regarding what the Agency akeady 

possesses, Complainant agrees that Respondent should not have to produce documents that are 

already in Complainant's possession. The fact that certain admissions have been included in 

previous correspondence, however, is not a valid basis for refusing to answer requests for 

admission and interrogatories seeking factual.contentions.^ L^ly,^wInle.Complaiiiant could have 

undertak^i different discovery methods to obtaiii.the requested information, no one but 

Respondent can provide answers to questions seeking his contentions regarding the facts. 

In summary, each of the requests for admission seeks nothing more than for Respondent to 

admit or deny or claig^al^^k^^^^^ 

complaint. As the law judge notes in his Order to Show Cause, such responses are required by 

^?j;fH^^is?!«SfV^ifffy^!f§ias!ri^ 
06/08/2010 16:25 9072712800 FAA PAGE 05/18 

.•ijtJW^& i - M • 4-.W-I.!.-, -c-'t-ft-'v.- ->7;'^.,^'.-,•'.*:^•-,_ >->,-.iT!!f--4fc"*;j^??S:**,B» < t-i*R; V 

the Rules of Practice. A request to provide something as required by the Rules of Practice is not 

unduly burdensome regardless of how one might contrive an argument that the individual 

requests are somehow cumulative or repetitious. These requests seek information Complamant 

is entitied to have so that it can properly prepare for the hearing currently scheduled for June 29, 

2010. Respondent should, therefore, be ordered to fiiHy respond to each request by a date 

certain. 

Respectfully submitted this 8* day of June 2010, 

^72 12 I? HOWARD L. MARTIN, JR. 

Regional Counsel 

-ffis. 

Gleim H. Brown 

Senior Attorney 

'^ejr^rdi. r^^bf hcv.^ or.f;niif:h' cor '•'• mi ixguraent that • ^'. \~i6v 

--•-S^:^)-y^-. 

,4.v*..v^''\.--sVVV"V!*a:tt?-V--'/f.-'- .•-rr'^uV •••'-^i/J^-;*•*• •-, -lynniy^t^- ^.•\*-A:i-^ri-'i--'.-*tr: 
06/08/2010 16:26 9072712800 FAA PAGE 86/18 

CERTIFICATE OF SERVICE 

Re: Kyle Ponsford 

FAA Docket No. CP09AL0007 

DMS No. F AA-2009-0729 

I hereby certify that on this date I have served a copy of the Agency's Motion to Compel 

Discovery by postage-prepaid, certified mail, return receipt requested and facsimile to the 

following: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20; 

U.S. Department of transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El 2-320 

Washington, DC 20590 ' 

FAX: (202)366-7536 

Kyle Ponsford 

HC 60 Box 3394 

Haines, AK 99827 

I fiirther certify that on this date I have served the original of the Agency's Motion to Compel 

Discovery by postage-preps^tljceilified mail, return receipt requested and facsimile, addressed as 

follows: '^ ^ 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20S91 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

FAX; (202) 493-5020-s, , 

DATED: " " ^^ \ ^ ' 

l^ifkS. 

Federal Aviation Ac 

Office of Regional Counsel 

222 West 7th"/(y^uei^Boxl4, AAL-7 

Anchorage, Alaska 99513-7587 

. 5 
06/08/2010 16:26 9072712800 FAA PAGE 07/18 

& 

U.S. Department 

ofTitmsportation 

FederRi Aviation 

Administration 

r c 

Alaskan Region 

Office of the Regional Counsel 

222 West Seventh Avenue n ] 4 

Anchorage, Al«lta 99513-7587 

(907)271-3570 we e 

(907)271-2800 fax 

craig.black@taa.gov email 

May 4,2010 

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED 

Kyle Ponsford 

HC 60 Box 3394 

Haines, AK 99827 

RE: Case 2008AL700072 

Dear Mr. Ponsford: 

Enclosed please find the agency's first discovery request to you. Our request consists of 18 

requests for admissions, four interrogatories, and a request for production. 

You must respond to each request in writing. You must respond to us no later than June 8,2010. 

If you decide to send your response to us by mail, it must be postmarked no later than June 8, 

2010. Either you or your attorney must sign your response. If you do not respond to a request 

for admission by the required time, the request may be deemed admitted. 

If you have any questions about this request, you may call me at the above number or my 

associate Glenn Brown at (907) 271-5271. 

Sincerely, 

HOWARD L. MARTIN, JR 

Regional Counsel 

End: Agency's First Discovery Request 

..jn ; ;..;, i: iv.. r,i, s-c:i'i. lii^'. c:- M iVs'^a- ...'OX 
06/08/2010 16:26 9072712800 FAA PAGE 08/18 

c c 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

KYLE PONSFORD 

FAA DOCKET NO. CP09AL0007 

(Civil Penalty Action) 

DMS NO. FAA-2009-0729 

AGENCY^S FIRST DISCOVERY REQUEST 

To: Kyle Ponsford 

Under 14 C.F.R § 13.220, the Federal Aviation Ad^iinistration, 

Coxmsel, requests that you, not later than 35 days fo 

following interrogatories under oath, make the requested 

the requested documents for inspection and;copying 

Alaskan Region FAA, 222 W. 7tti Avenue^ Box 14, 

C.F.IL § 13.2U(d), the date of service is based on 

service below. 

the 

These requests are continuing, and any information 

requested answers or documents is to be supplied bj 

C.F.R § 13.220(i). ^ 

You are reminded that, as set forth in^f4''GlF!R}"§^i 

request for admission, in writing and signed by the 

after service of the request, is deemed an admission |of the 

contained in the request for admission." 

by and through its Regional 

lowing service of this request, answer the 

admissions, and identify and produce 

at^^;Office of the Regional Counsel, 

Anchorage, Alaska 99513-7587, Per 14 

date of mailing shown on the certificate of 

secured after answering or supplying the 

supplemental production pursuant to 14 

.220(1)(1), "[a] party's failure to respond to a 

ittomey or the party, not later than 30 days 

truth of the statement or statements 

TERMINOLOGY 

1. 

2. 

nuiiT^ wm aiic^ 

HA . 

"Agency", "Complainaiit", and "FA^" mean the United States Federal Aviation 

Administration.-T"^ • ; :>» 

"Documents" means, regardless of oiSgin 

letter, manual, memorandum, record, 

photograph, telegram, telex, or messf ge, 

taped, filmed or graphically represem ed 

the pos^ssion of, subject to the contijol 

your employees, agents, consultants. 

''•':''.• ^. -^v and f^tr^ • 'fc- "• 

or location, any handwriting, note, 

report, statement, study, drawing, sketch, 

i, whether reported, transcribed, punched, 

in any manner, or material of any kind in 

of, or within the knowledge of, you or 

5r experts. 

'\siw3 upipi 
06/08/2010 16:26 9872712800 FAA PAGE gg/ig 

3. **DOT" means the United States Department of Transportation. 

4. "HMR" means the United States Department of Transportation Hazardous 

Materials regulations appearing at 49 C.F.R. Chapter I, Subchapter C (Parts 171-

180), as amended firom time to time. 

5. "Identify" and "state the identity or, with reference to individuals, means to state 

the name, current or last known address, employer, job description or title, and 

telephone number of the individual. 

6. "Identify all documents'* means state the date and author unless apparent from 

the documem. 

7. "You," *'your," and "Respondent" as used herein refer to Kyle Ponsford, the 

Respondent in this matter. 

8. As listed herein, singular pronouns also include the plural. 

' REQUESTS FOR ADMISSION 

1. Please axlmit that, on December 8,2008, you were advised through a Notice of 

Proposed Civil Penalty ttiat the FAA proposed to assess a civil penalty in the 

amount of $1,000 against you. 

2. Please admit that, on or about August 27,2008, you were a ticket passenger on 

Alaska Airlines Flight No. 64, a regularly scheduled passenger-carrying fiight in 

3. Please admit that, before boarding the aircraft for the flight referenced in Request 

for Admission 2 above, you knowingly offered tiiree bags for transportation by air 

as part of your checked baggage on the flight. 

4. Please admit that the bags referenced in Request for Admission 3 above contained 

a 3.53-ounce canister of Jetboil Jetpowcr Isobutane/Propane Fuel Mix 

manufactured under DOT Special Permit 12562 and two l5.9-oimce canisters of 

.Prinju^Po3yeE;^^i^iSfia5oniMixJxanufiu5tOTeddin4«J^ 10677. 

5. Please admit that Jetboil Jelpower Isobutane/Propane Fuel Mix is classified as a 

hazardous material under the HMRs. 

6. Please admit that 

a. the HMRs assign to Jetboil Je^ower Isobutane/Propane Fuel Mix the 

proper shipping name of "Petroleum gas, liquified"; 

b:' 4 tbellMRs place Jetboil Jetpower' Isobutane/Propane Fuel Mix in hazard 

class 2.1; - . 

c. the HMRs assign an identification number of UNI 075 to Jetboil Jetpower 

Isobutane/Propane Fuel Mix, and ' 

Aeencv 's First Discovery Request 

In.theJimter QfKyle Ponsford -2- DMS No. FAA-2009-0729 
06/08/2010 16:26 9072712800 FAA PAGE 10/18 

d that column 9A of the § 172.101 table of the HMRs provides that Jetboil 

Jetpower Isobutane/Propane Fuel MU is forbidden on passenger amiraft. 

7. Please admit that DOT Special Permit 12562 prohibits the transportation of 

Jetboil Jetpower Isobutane/Propane Fuel Mix by aircraft. 

8. Please admit that Primus Power Gas 4 Season Mbc is classified as a hazardous 

material under the HMRs. 

9. Please admit that 

a. the HMRs assign to Primus Power Gas 4 Season Mbt the proper shipping 

name of "Petroleum gas, liquified"; 

b. the HMRs place Primus Power Gas 4 Season Mix in hazard class 2.1; 

c. the HMRs assign an identification number of UN1075 to Primus Power 

Gas 4 Season Mix, and 

d. that column 9A of the § 172.101 table of the HMRs provides tiiat Primus 

Power Gas 4 Season Mix is forbidden on passenger aircraft. 

10. Please admit tiiat DOT Exemption 10677 limits the air transportation of Primus 

Power Gas 4 Season Mix to cargo aircraft only. 

11. Please admit that the bags you offered as referenced m Request for Admission 3 

above were not accompanied by a Shipper's Declaratiori for Dangerous Goods. 

12. please admit that, at all times relevant to this matter, the bags you offered as 

referenced in Request for Admission 3 above were not accompanied by shipping 

papers which contained 

a, the proper shipping name for the hazardous materials contained within; 

b." ""^ ^thS haawd class of the materials; the assigned idientification numbers for 

the materials preceded by "UN" or 'TMA'V as applicable; ' ' 

c. a basic description of each hazardous material contained within, shown in 

sequence; and 

d. the total quantity by weight or volume of each hazardous material covered 

by the description. 

13. Please|ilmj^%5^^^^^^ 

above were not accompamed by shippmg papers wtuch contamed an emergency 

response'telephone number as prescribed in Subpart G of Part 172 of the HMRs. 

14. Please admit that, in offering the bags as referenced in Request for Admission 3 

above, you did not certify that each hazardous material within the bags was in 

accordance with the HMRs by printing on shipping papers accompanymg the 

bags the certification set forth in § 172.204(a) or § 172.204(c)(1) of the HMRs. 

Asericv 's First Discovery Request -' 

In the Matter ofKvle Ponsford -3- ,^ Dl^No. FAA-2009-0729 
06/08/2010 16:26 9072712800 FAA P^QE 11/18 

15. Please admit that, in offering tile bags as referenced in Request for Admission 3 

above, you did not provide two copies of tfie required shipper's certification. 

16. Please admit that, at all times relevant to this matter, the bags you offered as 

referenced in Request for Admission 3 above were not marked or labeled in any 

maimer to indicate the presence of the hazardous materials contained within. 

17. Please admit tiiat, at all timeis relevant to this matter, the bags you offered as 

referenced in Request for Ailmission 3 above 

a. were not marked with the proper shipping name and assigned 

identification number of each hazardous material contained within; and 

b. lacked the English-language markings required by the HMRs to be printed 

on or affixed to the surface of each bag that contained a hazardous 

material. 

18. Please admit that, at all times relevant to this matter, the bags you offered as 

referenced in Request for Admission 3 above had nc^ "Flammable gas" or "Cargo 

aircraft only" labels aflSxed to the bags. 

INTERROGATORIES ., 

1. For each of the above requests for admission for which your response is anything 

otherJbaaa^iMQSS^^f^fisjtei^lSJS*^' P^-^^ P^^Mn jvhat specific facts or 

' contentions in eadistatemeniypu contend are npt.tnie;9n<l state alli&cts that 

support your contstition in this regard. 

2. Please identify each person whom you intend to call as a witness at the hearing in 

this matter, and for each such wimess, provide a summary of their expected 

testimony, 

3. For each person identified in response to Interrogatory No. 2, please produce a 

«>Py o|tf?Sta?^^ii3fl!il^l?ffiSl 5l^fiibX>lfetiP-et§9adadyb»fihLt&SLfacts and 

circumstances of matters at issue in this case are referenced or discussed. 

4. Do you contend that you lack the ability to pay the proposed civil penalty? If so, 

then state every fact upon which you intend to rely at the hearing in support of 

this contention, and produce a copy of each and every document you intend to 

. introduce at the hearing in this matter in support of this contention. 

ii.-;r--' r*-=»-*l-^ 

REQUEST FOR PRODUCTION 

1. To the extent hot encompassed in your response to any of the foregoing items, 

please identify and produce all docimients upon which you expect to rely at the 

Agency's First Discoyerv Request 

In the Matter ofKvle Ponsford -4- DMS No. FAA-2009-0729 
06/08/2010 16:26 9072712800 FAA PAGE 12/18 

hearing or introduce as evidence in support of your position at the hearing in this 

matter 

DATED tills is 7 dayoi f May, 2010. 

HOWARD L. MARTIN, JR 

Regional Coi 

By: 

CERTIFICATE OF SERVICE 

Re: Kyle Ponsford 

FAA Case No. 2008AL700072 

FAA Docket No. CP09AL0007 

I hereby certify that on this date I served a copy of tiie AGENCY'S FIRST DISCOVERY 

REQUEST by placing it in tiie United States Mail, postage-prepaid, certified mail, return receipt 

requested, addressed as follows: ,. 

•J Ik ' 

Kyle Ponsford 

HC 60 Box 3394 

Haines, AK 99827 

VU./U<

-^

^ m 

Offlce of the Regional Counsel 

FAA Alaskan Region 

222 West 7th Avenue #14 

Anchorage, Alaska 99513-7587 

^^^/ ^ 

'• r-::e Nd!^101^iyS?®0O72-. 

:x;j3t 

Aiencv 's First Discoyerv Request 

In the Matter ofKvle Pofpsford 

: i . y-. 

DMS No, FAA-2009-0729 
06/08/2010 16:26 9072712800 FAA PAGE 13/18 

(lr5 

VIA CERTIFIED MAIL,RETURN RECEIPT REQUESTED 7 001 O^l^ QoO 7S1T 9 3 r ? 

The Honorable Richard C. Goodwin, 

Administrative Law Judge ''leCHSVE D 

Office of Hearings, M-20 

U.S. Department of Transportation JU.'j - . 20to 

1200 New Jersey Ave. S.E. \ • 

East Building Ground Floor, Room E12-320 %^ v ^ 

Washington, DC 20590 ^^A^^^^V^' 

RE: Case 2008AL700072 

MOTION TO DISPUTE DISCOVERY 

June 03.2010 

Dear Honorable Judgp Richard C. Goodwin^ 

I received the Agencies First Discovery Requesi: on May 18, 2010. 

Unfortunately my reply must be in the form of A DISCOVERY DISPUTE per the DOT 

rules (attached as required) for the following reasons: 

13.220 (f) 

1. All 1S requests are cumulative and repetitious, 

2. 15 requests are clearly internal information already possessed by the agency. 

3. None piTjI^qitequeg^ifffpinfomifltion tiie Ageticyc^ 

obtained through other methods permitted. ^ 

4. AlltS reqiieste can only be seen as unduly burdensome, and specifically 

expensive to me for reasons shown in previous letters. 

Therefore I herby file a motion that the Agencies First Discovery Letter be dismissed. 

If I am in error {i4ease inform me in \^hat way, 

Sincerely, 

Kyle PonsfoJ 

Defendant 

HC 60 Box 3394 

Haines AK 99827 

•'--Oj; fi- •^••'•O'"'";^*;- : ,1 ; • c : ' " " v. , 
06/08/2010 16:26 9072712800 FAA PAGE 14/18 

• t.'-^'U/^'v-^ •^/^- •-•i'-.i^.-.-r'^-,rSpir?-- •.. .--.,. \.. . ., ) .. _. -.-.f^,. ,, I 

Service List 

One copy 

The Honorable Richard C. Goodwin, 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave. S.E. 

East Building Ground Floor, Room E12-320 

Washington, DC20S90:dbu 

Agency Attorney of Record 

Howard L. Martin, Jr. 

Regional Counsel 

FAA Alaskan Region 

222 West 7* Avenue #14 

Anchorage, Alaska 99513-7587 

Original and One Copy 

Federal Aviation Adminisbation 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Qerk, AGC-340 

J • • > 

-,u 
06/08/2010 16:26 9072712800 FAA PAGE 15/18 

Federal Avtolion AdmtnMration, DOT 

(d) Procedure. A party .thall file a notice pf interlocutory appeal, with supporting documents, with the FAA decisionmakier wid the hearing docket 

cleric, and AhoU serve « copy of the nolice And Bupportin$ documents on each 

party and the adminiBtrative law 

judge, ivoi later tbuii 10 duyit ai'tcr Uw 

administrative law judge's decision 

forming the ba»iM of ai% iiilcrloouloi'y 

appeal of ti^ht or not later than lO 

dAys after the odtninlstrativc law 

judge's decinion granting an interlocutory appeal for cause, whichever is appropriate. A party shall file a reply 

brief, if ftny, with the FAA decisionmaker and nerve a copy of the reply 

brief on each party, ro t Inter than 10 

days after service of the appeal btief. 

Ttie FAA decisionmaker ithall ninder a 

decision on the interlocutory appeal, 

on the record and as a part of the decinion in the proceedings, within a reasonable time after receipt of the interlocutory appeal. 

(o) The FA A decisionmaker may reject trivolouii, repetitive, or dilatory 

appeals, and may issue an order precluding one o r moRs parties frota mak' 

•ng fUrthetrlnterloeutory appealf^^n a 

•^ pruve«iiitg'iiinwhieh''m»e''-bave~been 

ftivolous. repetitive, or dilatory intei> 

locutory appealii. '•' 

(Amdl, IJ-U. .53 Fft J737S, July 3. 1990,,a» 

amended by Amdt. 13-^3, SS FR, 4S983, Oct. 31. 

19901 

S lajtzo Dlaeovery. 

<a) iijitiatioii of dis<»very. Any pui'iy 

may initiate discovery described in 

this .'Mvtion. without the uoBHent or approval of the administrative law judge 

,ftt anyU^ijie - • 

filed inltbe i 

(b> Metbodn of'eliiicoviity, 

lowing methods of discovery are permitted under this sectioiji: doposiitipna 

on oial examination or written questions of any person; written interrogatories directed to a party; requests for 

production of documents or tangible 

items to any person; and requests for 

admission by a party. A party is not requited to file written Intenvgatories 

S 13.220 

the event of a discovery diftputc. a 

party shall attaeh a copy of these doeuments in support of a motion made 

under this section. 

(e) SierWce on ttx agency, A party 

i«hall serve each discovery request directed to the agency or any ageney employee on the agency attorney of 

record. 

(d) Time for responM to diaeayery lequefo. Unless orherwise directed by 

this subpart or agreed by the parties, a 

party shall respond to a request for diA' 

covety. Including filing objeetionii to a 

request ft»r discovery, not later than 30 

days of service of the request. 

(o) Scope of diwovefy, Subject to the 

limits on discovery set forth in paragraph if) of this section, a party may 

discover any matte r tha t is not privileged and tha t is relevant to the subject matte r of the proceeding. A party 

may discover information tha t relates 

to the claim o r defense of any party including the existence, description, nature, custody, eondition, and location 

of any document or other tangible item 

and the identity and location of any 

person. having knowledge of disc^Yerable ^matter. A party may 'discover 

facts known, or opinions held, by an 

expert who any other party expects to 

call to testify at the hearing. A party. 

. has no ground to object to a discovery 

request on the basis tha t the iafbrniation sought would not be admissible at 

the bearing if the information sou^ t 

during discovery is reasonably calculated to lead to the discovery of ndmiasibie evidence. 

If) Limiting discovery. The administraS^^?^w^«.«.'''•r.,i•^f;^ l «»nd extent of'^discovery .permitted' by od^ of dL^yery. The fol- this section if a party sfwis that -

(I) The information requested is cumulative or'fepetitiouii;' 

<2) The Information i«quested can be 

obtBiihed froxti another less burdensome 

and more convenient source; 

(3) The party requesting the information has had ample opportunity to ob-

_ tain the information through otiter disond reapons^^requesta for production covery methods permitted'under this 

,or dD(;^pwtit)i,9c:tangible' Itema'ahd i«- i^:»ectlon} or^v;;;: > ^ -

spona5^|« d «qu6«|s for admission and ** " (ifTi£"?S^!iS^^!^^^t^^^Soy>'i ^ 

response with the administrative law requested by'^the party ~i« unduly burjuc^e or'U K hearing doQJcBt(slerk, In den.<iome or expensive. 

63 

1,:.' I isK;"pousi)tKwou;aUTOi; iD?^-Willi I; .< 

e . • ^^'nrt^H•••^•rf^^¥'rtJrofTOlr>fc•:i'-soTi; hi 
05/08/2010 16:26 9072712600 FAA PAGE 16/i e 

S 13.220 

(g) Confidential onkrs. A party or person who has received a discovery request for infSormation tha t is related to 

a trade secret, confidential or sensitive 

material, competitive or commercial 

information) proprietory data» or Information on research and development, 

may file a motion for a confidential 

order with the administrative law 

judge and shall serve a copy of the motion for, aconfidetitiat order on each 

party. -J''- L^-'"^' " 

<1) The party or person making the 

motion must nhow tha t the conndential order is necessary to protect the 

information flcom disclosure to the public. 

(2) If the adminiAtrattvc law judge determines tha t the requested material is 

not necessary to decide the cane, the 

administrative law judge shall preclude 

any inquiry into the matter by any 

party. 

(3) If the administrative law judge determines tha t the requested material 

may be disclosed during discovery, the 

administrative law Judge may order 

tha t th^e material may b6 discovered 

wid disclosed under limited conditions 

or inay be used only under certain 

terms artd conditions. 

(4) If the administrative law Judge dcteimines tha t the requested material ia 

necessaiy to decide the cose and tha t a 

confidential order is warranted, the ad-

(i) An^opportun|ty for, review^pf^the 

document by the parties off the record; 

(ii) Procedures for excluding the information firora the record; and 

(ill) Order'that the parties shall not 

disclose the infbrmation in any manner 

and the parties shall not use the information in any other proceeding, 

(h) Ptotective orders. A party or a person who has received a request for discovery may file a motion for protective 

order with the administtatlve law 

tjon for protective, order on each party. 

The party W pcriM>n''^makirig the'motion must show tha t the proteectve 

order Is noceAsaty to protect the party 

or the petvon from annoyance, embarrassment, oppression, or undue burden 

or expense. As part of the protective 

order, the administrative law judge 

may: 

(1) Deny the discovery request; 

14 CFitCh. I (1-1-05 Edition) 

(2) Order that discovery be conducted 

only on specified terms and conditions, 

including a designation of the time or' 

place fbr discovery or a determination 

of the method of dincovery; or 

<3) Uml t the scope of discovery or 

preclude any Inquiry into certain matters during discovery, 

(i) JOuty to nupplement or amend responses, A party who has responded to a 

discovery request has a duty to supplement or amend the response, ea soon e» 

the information is known, as follows: 

(i> A party shall supplement or 

amend any response to a question requesting the identity and location of 

any person having knowledge of discoverable matters. 

(2) A party shall supplement or 

amend any response to a question requesting the identity of each person 

who will be called to testify at the 

tieortng as an expert witness and the 

Mubjcut matte r and substance of that 

witness' testimony. 

(3) A party shall supplement or 

amend any response tha t was incorrect 

'when made or any response tha t WOA 

correct when made'^ but is no longer 

correct, accurate, or complete. 

<J) Depoititions, The following rules 

apply to depositions taken pursuant to 

thiA section: 

(1) Form. A deposition shail be token 

on the jeeord,Bpd_ reduced to writing. 

"ThtfjieiwVbeing'dicpds^ f^^ sign the 

deposi t ion un leas'^ the liart lea' uigree to 

waive the requirement of a signature. 

^2) Adm/ni*trae/on of oatfas. Within the 

United States; or a terrTiory or possession subject to the Jurisdiction of the 

United States, a party shall take a deposition before a person authorized to 

administer oaths l>y the laws of the 

United States or authorized by the law 

of the place whore the examination is 

. held. In foreign countrieiit a party $hall 

-t<takjk^jSndcposition-.in..any..[naniter ol-

^lowednbyt the Federal Rules of Civil 

Procedure , rt y :-hn.l! f>apr i 

(3) Nbdoe of deposidon. A pcuty shall 

^.serve a notice of deposition, stating the 

:tirne and place of the deposition and 

thues name and address of each person to 

be examined,: on the person to be deposed, on the administrative law judge, 

on the hearing docket clerk, and on 

each party not Inter than 7 days before 

64 

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F«d«Kd Aviation AdmlnlttioHon, DOT 

the deposition. A party may serve a notice of depoaitlon less than 7 days before the deposition only'with consent 

of the administrative law judge. If a 

subpoena duces tecum is to be served on 

the person t o be examined, the party 

shall attach a copy of the subpoena 

dtiee» (eeuiB tha t .describes the tnatoriala to be produeied a t the deposition 

to the notice of deposition. 

<4) I7>e of depoaidont. A party may use 

any port or all of a deposition at a 

hearing authorized under this subpart 

only upon a showing of good eause. The 

deposition may be used against any 

party who was prment o r represented 

at the deposition or who hod reasonable notice of the deposition. 

(k) Interrogatoiiea. A party, the party's attorney, or the party's representative ihay sign the party's responses to 

integrrogatories. A party shall answer 

each interrogatory separately and completely in writing.If a party objects to 

an Interrogatory, the party shtCll state 

the objection and the reasons for the 

objection. An opposing party may use 

any part or all of a party's responses to 

interrogatories a t a bearing authorlied 

under thia..i^ubpan.to the extent-,that 

the response is relevant, material,'and 

not repetitious. 

(1) A party shall not serve more than 

30 interrogatories to each^ other party. 

Booh subpart of an interrogatory shall 

be counted as a separate interrogatory. 

(2) A party tahoU file a motion for 

leave to serve additional interrogatories on a party with the administrative law Judge befbrc serving additional 

Interrogatories on a party. The admin913.220 

ments have been provided or are reasonably available for inspection and 

copying. 

(I) Tlrne, A party's failure to respond 

to B request for admission, in writing 

and signed by the attorney 6r the 

party, not later than 30 days after service of the request, is deemed an admission of the -truth of th e statement or 

statements contained in the request fbr 

odmiwion. The administrative law 

judge may determine tha t a failure to 

respond to a request for admission is 

not deemed an admission of the truth if 

a party shows tha t the failure was due 

to clreumstonces beyond the control of 

the party or the party's attorney. 

(2> RespoBfe, A party may objeet to a 

request for admission and shall state 

the reasons for objection, A party may 

spocifieally deny the truth of the matter or de.'icrlbe the reasons why tite 

party is unable to tiuthfuUy deny or 

admit the matter. If a party is unable 

to deny or admit the truth of the matter, the party shall show ihat the party 

has mode reasonable inquiry into the 

matte r or tha t the information known 

to, oir readily obtainable by, the party 

is insufficient to enable tber^partxfxa 

admit or deny the matter. A patty inay 

admit or deny any port of the request 

for admission. If the , administrative 

'law judge "determines tha t a response 

does not comply with the requirements 

of this rule or tha t the response is insufflcicnt.'tho matte r is deemed admitted. 

(3) E/Tocfc/admission. Any matte r ad' 

mitted or deemed admitted under this 

section is conclusively estobUshod for. 

istrativelaw'Judge shall grant the m»< .^th e purpose,qf the hearing and appeal 

tion'only'if the party !iMwi'io6d-6iaac'*'^'Xmr'^Motio^ 

for the'party's failure to inquire about 'party, may tnoke^'motio n to compel 

the infbrmation previously and tha t discovery if a person refuses to answer 

the information, cannot reasonably be a question during a deposition, a party 

obtained using less tnirdensome .dis- 'fails or'refiues to answer an interrogcovcry methods or be obtained Irom 

other sources. 

(1) Kcquesti fbr admiiaioa. A party 

may serve a written request for admission of the truth of any matte r within 

the scope of discovery under this section or the ,authenticity of any docu' 

atory. If a person gives on evasive or 

incomplete answer'during a deposition 

or when responding to an interrogatory, or a party fails or rehises to 

produce documents or tangible items. 

During a deposition, the proponent of a 

question may complete the, deposition 

sion separately. *A"party shall 'serve 'cefuses toonswer!" " ^'"^ ' '^ 

copies of documents'referenced in the (n) Faiiura to'eontply witb a discovery 

request for admission unless the dociu- arder'ar order a> compel^ If a party fails 

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14 CFR Ch. I (1-1-05 Edillon) 

live law judge shall admit any orsj, 

documentary, or demonstrative evidence introduced by a party but shall 

exclude irrelevant. Immaterial, or unduly repetitious evidence. 

(c) Heatsay evidence. Heanay evidence is admissible in proceedings governed by this subpart. The fact that 

evidence submitted by a party is hearsay goes only to the weij^t of the evidence and does not affect its admisAlbiUty. 

ft 18.389 Staadarda f proof. 

The adminLstrative law judge shall 

issue an Initial decision or aluUl rule in 

a party's favor only if the decision or 

ruling is su|>ported by, and in accordance with, the reliable, prottatlve, and 

substantial evidence contained in the 

record. In order to prevail, the party 

with the burden of prpof shall prove 

the party's case or defense by a preponderance of reliable, probative, and substantial evidence. 

{1S,2M Burden of proof. 

(a) Except in the case of an oflSrmative defense, the burden of proof is on 

the agency. 

(b) Bxeept as otherwise provided by 

statut e or rule, the proponent of a motion, request, or order has the burden 

of proof. 

^firtnatiye defense |hu ^ the burden ol 

proving the affirmative defense. 

{lS.aSK Offer of proo£. 

^ " A party whose evidence has been excluded by a ruling of the administrative (aw Judge may'offier the evidence 

for the record on appeal, 

} lSJii2e Publle dlwloeure of evldeDoe. 

«13.221 

to comply with a discovery order o r on 

order to compel, the administrative 

law Judge, limited to the extent of the 

party's failure to eoroply with the discovery order or motion to compel, 

may: 

(1) Strike tha t portion of a party's 

pleadings; 

(2) {>reclude prehearing or discovery 

motions by tha t party; 

<3) Preclude admission of tha t portion of a party's evidence at the hearing; or 

(4) Preclude tha t portion of the testimony of tha t party's witnesses at the 

hearing. 

(Amdt. 13-8), SS F » 1737J. July 3. )W0. an 

omanded by Amdt. IS-l). M FR 45983. Oct. 31. 

1990] 

(13.231 Notloe of bearing. 

(a> Hodee. Tbie administrative law 

judge shall give each party a t least 60 

days notice of Che date, time, and location of the bearing. 

(b) IJate, tUae, and toaadon of the bear' 

Ing. The administrative law judge to 

wtiom the proceedings have been assigned shall set a reasonable date, 

time, and location for the hearing. The 

administrative law Judge shall consider 

the need for discovery and taiy joint 

procedural or discovery schedule submi tte4_ by^tl^e.jjartieB when determining theJhearti^(fdateT.i'^l|^^f^^^::^iS"t 

trative Jaw judge shall give, due regard 

to the convenience^of the 'partios. the 

location where the m^orit y of the witnesses reside or work, and whether the 

location is served by a scheduled air 

carrier. " " 

(e) Baxlier heating. With the consent 

of the administrative law judge, the 

parties may agree to bold the bearing 

on an earlier date than the date specified in the notice of hearing. (a> The administrative law judge may 

' iiHsa a virtri>««>: . .qr^tha t any infomiatlon contained 

^f^^^-^ ' - - \•t,^ ' ^^.^'n^tJ^^^S^^Vl^ljfiWAffWd^Wbyc 

(a) Oenerai. A party is>^,entitled"io rdi'''°^^*<'^t<Any.person,,may objeet to 

of 

present the party's cose'or defense by 

orolt doeutnentary, or demonstrative 

evidence, t o submit rebuttal evidence, 

ood to conduct any cros8-e;^amjnation 

tha t may be required for a fUll and true 

disclosure of the f^ts. 

(b) AdttussibiVty. A parry may introduce any oral, documentary* " r demonstrative evidence in support of the party's cose or defense. The admini.«tro-. 

disclosuRe of information in the record 

by filing a written motion to withhold 

^ specific information with tbie administrative law judge and serving a copy of 

the motion on, each party,. Tlie party 

shall state the speclfie grounds for nondisclosure In the motion. 

Cb) The administrative law judge 

shall grant the motion to withhold information in the record if, based on the 

't"tr - ••!• • ,• ' •-• < *"•-••.•. ••?•','.-, othr^*^t'i.sV •