U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION 

ADMINISTRATION, 

Complainant, 

FAA Docket No. 2015-0208 

RECElVFr vs. 

WEBGISTIX CORPORATION, 

Respondent. 

JUN 1 5 2015 

HEARING DOCI'\.c . 

WEBGISTIX CORPORATION'S RESPONSES TO FEDERAL AVIATION 

ADMINISTRATION'S REQUEST FOR DISCOVERY 

Pursuant to Rule 26(b) and 34(a) of the Federal Rules of Civil Procedure, the discovery 

guidelines set forth in case precedent, and Section 13.220 of the Rules of Practice in FAA Civil 

Penalty Actions [14 C.P.R. §13.220], Webgistix Corporation ("Webgistix"), by counsel Patrick 

G. Byrne, Esq. and Justin A Shiroff, Esq., hereby submit this Response to Federal Aviation 

Administration's ("FAA") Request for Discovery. 

GENERAL OBJECTIONS AND RESERVATION OF RIGHTS 

The following general objections apply to every Request for Admission, Interrogatory, 

and Request for Production (collectively "Requests"). 

1. Webgistix objects to the Requests to the extent they seek information and/or 

admission of materials protected by the attorney-client privilege, the work product doctrine, or 

any other legally recognized privilege, immunity, or exemption from discovery. Webgistix 

hereby claims such privileges and protections and objects to the admission of any inf01mation or 

materials subject thereto. This general objection is intended to prevent any waiver of these 

privileges or protections as to any specific document request. If any privileged or protected 

information or materials are inadvertently produced, Webgistix does not waive or intend to waive 

any privilege, protection, or claw-back right pertaining to such information or materials. 

2. Webgistix objects to the Requests to the extent they seek to impose di<~~ 
obligations broader than, or inconsistent with, the Rules of Civil Procedure applicable to this 

matter. 

3. In providing these responses, Webgistix does not waive or intend to waive: (a) 

objections as to competency, relevancy, materiality, or admissibility; (b) objections on any 

ground to the use of these responses in any proceecling, including any hearing in this action or any 

other action; (c) objections as to burden, vagueness, overbreadth, or ambiguity; or (d) further 

objections on any ground to this or any other discovery request in this proceeding. 

4. Webgistix's decision to provide information or material, notwithstanding the 

objectionable nature of the Requests, should not be construed as: (a) an admission or stipulation 

that the material is relevant, admissible in evidence, or reasonably calculated to lead to the 

discovery of admissible evidence; (b) a waiver of these General Objections or the objections 

asserted in response to specific document requests; or (c) an agreement that requests for similar 

information will be treated in a similar manner. 

5. Any production in response to FAA's Requests is subject to Webgistix's right to 

object to the admission into evidence of any and all such productions on the grounds that they, or 

any of them, are irrelevant to the issues in this action or otherwise inadmissible. These 

productions and objections are based upon Webgistix's' present lmowledge, information, and 

belief. 

6. Webgistix reserves the right to use all documents, electronically stored 

information, and tangible things that are in the possession, custody, or control of any party. 

Webgistix also reserves the right to supplement these responses if more information becomes 

available. 

Without waiving these objections, Defendant responds as follow: 

REQUESTS FOR ADMISSION 

REQUEST NO. 1: 

Admit Exhibit l, photograph 5a- 5m truly and accurately depicts the shipment described 

in paragraph II.2 of the Complaint. 

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RESPONSE: 

Admit 

Request No.2: 

Admit Exhibit 2, is a true and accurate copy of the MSDS Respondent submitted to UPS 

on or about October 12, 2012. 

RESPONSE: 

Admit 

Request No.3: 

Admit Exhibit 3, is a true and accurate copy of the MSDS for the product shipped on or 

about October 12, 2012, effective March 1, 2013. 

RESPONSE: 

Admit 

Request No.4: 

Admit Respondent did not prepare a Shipper's Certification or Declaration of Dangerous 

Goods for the fiberboard box described in paragraph II .2 of the Complaint. 

RESPONSE: 

Admit only that Webgistix did not prepare a Shipper's Certification or Declaration of 

Dangerous Goods for the fiberboard box described in paragraph II.2 of the Complaint; denied as 

to any requirement to do so. 

Request No.5 

Admit Respondent did not prepare shipping papers for the fiberboard box described in 

paragraph II.2 of the Complaint as required by 49 C.F.R. §§ 172.200(a). and 172.202(a). 

RESPONSE: 

Admit only that Webgistix did not prepare shipping papers for the fiberboard box 

described in paragraph II.2 of the Complaint; denied as to any requirement to do so. 

Request No.6: 

Admit Respondent did not mark the fiberboard box described in paragraph 11.2 of the 

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Complaint "Corrosive". 

RESPONSE: 

Admit only that Webgistix did not mark the fiberboard box described in paragraph 11.2 of 

the Complaint "Corrosive"; denied as to any requirement to do so. 

Request No.7: 

Admit Respondent did not affix a "Corrosive" label to the fiberboard box described in 

paragraph 11.2 of the Complaint 

RESPONSE: 

Admit only that Webgistix did not affix a "Corrosive" label to the fiberboard box 

described in paragraph 11.2 of the Complaint "Corrosive"; denied as to any requirement to do so. 

Request No.8: 

Admit Respondent did not provide emergency response information with the fiberboard 

box described in paragraph 11.2 of the Complaint. 

RESPONSE: 

Admit only that Webgistix did not provide emergency response information with the 

fiberboard box described in paragraph 11.2 of the Complaint; denied as to any requirement to do 

so. 

Request No.9: 

Admit Respondent did not provide an emergency response telephone number with the 

fiberboard box described in paragraph 11.2 of the Complaint. 

RESPONSE: 

Admit only that Webgistix did not provide an emergency response telephone number with 

the fiberboard box described in paragraph 11.2 of the Complaint; denied as to any requirement to 

do so. 

INTERROGATORIES 

Interrogatory No. 1: 

The name, occupation, and business address of each person Respondent intends to call as 

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a witness in this proceeding. 

RESPONSE: 

Webgistix's prospective witnesses include Joe DiSorbo, CEO ofWebgistix; Becky Wood, 

CMO of Webgistix; Gary Low, Customer Support Manager of Webgistix; Angel Gomez, 

Warehouse Manager of Webgistix; and Mike Manzione, Chief Operating Officer ofWebgistix. 

Interrogatory No.2: 

The subject matter upon which each intended witness is expected to testify, the facts and 

opinions as to which each intended witness is expected to testify, and a summary of the .grounds 

for each opinion. 

RESPONSE: 

Each of the witnesses identified in Response to Interrogatory 1 is expected to testify as to 

the facts and circumstances concerning the allegations set forth in the Complaint. Additionally, 

Joe DiSorbo will testifY on the details on volume of shipments Webgistix handles, the 

percentages of Webgistix shipments that go by air, Webgistix's general policy concerning 

refusing to knowingly ship hazardous products, as well as related testimony. Becky wood will 

testifY on Webgistix's immediate response to the alleged incident, including those actions taken 

against Future Health Today, Ltd. d/b/a Keavy's Korner ("Keavy's Korner"), the client 

responsible for the shipment, as well as related testimony. Gary Low will testifY on the nature of 

Webgistix's relationship with Keavy's Korner and their affirmative denial of the hazardous nature 

of the product, as well as related testimony. Angel Gomez will testifY on Webgistix's inspection 

process in receiving goods from clients and Webgistix's packaging and shipping process. Mike 

Manzione will testifY as to the current state of Webgistix's training, policies, and other aspects of 

the business. 

Interrogatory No.3: 

IdentifY each expert witness you may call to testifY at a hearing on this matter. For each 

expert witness identified, state the subject matter upon which each is expected to testifY, 

summarize the substance of such expected testimony (including, without limitation, the subject of 

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expected opinion testimony) and state the grounds for each such opinion (including, without 

limitation, identification of all facts, treatises, reports, records, documents or tangible evidence 

that form the basis for such opinion). 

RESPONSE: 

Paul W. Gantt, M.Eng., CSP, CET. The tentative opinions he is expected to testify to are 

as follows: 1) the sodium chlorite solution was an irritant and not a corrosive within the meaning 

of the hazardous materials definitions; and 2) Webgistix's remedial efforts and response to the 

alleged incident are not sufficient to justify more than the minimum fine within the context of the 

Sanction Guidance Matrix. Though Mr. Gantt's opinions are in a preliminary stage (pending 

further research and possible testing), he intends to opine that the 4x dilution of the sodium 

chlorite solution is an indicator that it was sufficiently dilute as to no longer be technically 

corrosive. He also opined that the MSDS for the solution contained glaring inconsistencies, at 

times treating the solution as I 00% sodium chlorite while simultaneously proscribing clean-up 

and treatment directives that were only sufficient if the substance was an irritant. He also opined 

that the ground response to the alleged spill likely supports the contention that the substance was 

an irritant, not a corrosive, as there is no indication that neutralizing agents or other specialized 

equipment was used to clean up the alleged spill. Webgistix reserves its right to supplement this 

response as additional information comes to light. 

Interrogatory No. 4: 

Please describe evidence of any corrective or remedial action taken as a result of this 

matter including the date such action was implemented. 

RESPONSE: 

Webgistix audited all inventory at each of its warehouses to identify any product that 

could potentially fall into a Hazmat category and immediately stop shipping any such product. 

Additionally, Webgistix asks all clients for a Material Safety Data Sheet ("MSDS") for any liquid 

product or product that otherwise could be considered Hazmat. Webgistix will review new 

products with UPS to confirm that such products do not qualify as Hazmat Materials and do not 

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have any special shipping requirements. Additionally, Webgistix's air shipping is less than .1% of 

its Las Vegas shipments (and approximately 2% of the company's shipments altogether). 

Each of Webgistix's warehouse manages received official Hazmat training. While not 

formal Hazmat certification training, Webgistix's Warehouse Managers also conduct monthly 

safety and training meetings for all warehouse employees, including those responsible for product 

intake and handling. While the safety topics vary, Hazmat training is one of the topics 

addressed. I have attached at Tab 3 the sign-in sheet for the January 2014 training meeting, 

which was dedicated exclusively to Hazmat issues. Webgistix remains open to require additional 

employees to secure such training. The facilities in question, however, are small in size, allowing 

the Warehouse Manager to have a solid handle on all operations. At the time of the incident, the 

Las Vegas facility was only 25,000 square feet. It has since expanded to 50,000 square feet. 

As a result of this incident - and before the FAA provided its notice of proposed civil 

penalty (August 6, 2013)- Webgistix made several changes to improve its operating procedures 

to prevent the inadvertent shipping of Hazmat materials. While no process is perfect, Webgistix 

has appropriate checks and balances to enforce its policy. 

Interrogatory No.5: 

For each request for admission not admitted or denied, please state in detail the reason for 

the denial or non-admission. 

RESPONSE: 

As Webgistix contends that the substance may not actually be a Corrosive within the 

meaning of the Hazardous Materials rules, Webgistix does not admit that it was obligated to act in 

accordance with any of the hazmat guidelines upon which the FAA bases the Complaint and its 

Requests for Admission. 

Interrogatory No.6: 

Please state the specific facts upon which you base your response that you are without 

lmowledge to admit or deny Paragraph II.6 of your Answer and Affirmative Defenses to 

Complaint. 

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RESPONSE: 

No witness from Webgistix was present in Louisville, KY on the date of the alleged 

incident at the moment the purportedly leaking package was identified; as a result Webgistix is 

without sufficient lmowledge to admit or deny the identity of who discovered any potential leak 

in the shipment. 

Interrogatory No.7: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II. 7 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

It is unknown if the contents were exactly as described in this paragraph or if the shipment 

contained additional products. As a result, Webgistix is without sufficient lmowledge to admit or 

deny the allegation. 

Interrogatory No.8: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.8 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

Webgistix, by and through its employees, did not conduct any investigation into the 

alleged leak; as a result, Webgistix is without sufficient knowledge to admit or deny the 

approximate amount of liquid that may or may not have leaked. 

Interrogatory No.9: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.9 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

Webgistix, as only an intermediary shipper and not the product's manufacturer, is without 

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sufficient knowledge to admit or deny the specific nature of the allegedly hazardous material at 

the center of the allegations in the Complaint. Additionally, the MSDS is internally inconsistent 

in labeling the product as a possibly corrosive substance while simultaneously describing 

symptoms, precautionary measures, treatment guidelines, and clean-up commensurate with an 

irritant substance, not a corrosive within the definition of the Hazmat guidelines. 

Interrogatory No. 10: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.lO of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

Webgistix, as only an intermediary shipper and not the product's manufacturer, is without 

sufficient knowledge to admit or deny the specific nature of the allegedly hazardous material at 

the center of the allegations in the Complaint. Additionally, the MSDS is internally inconsistent 

in labeling the product as a possibly corrosive substance while simultaneously describing 

symptoms, precautionary measures, treatment guidelines, and clean-up commensurate with an 

irritant substance, not a corrosive within the definition of the Hazmat guidelines. 

Interrogatory No. 11: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.ll of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

Webgistix, as only an intermediary shipper and not the product's manufacturer, is without 

sufficient knowledge to admit or deny the specific nature of the allegedly hazardous material at 

the center of the allegations in the Complaint. Webgistix also cannot admit or deny what papers 

might have been required for the shipment. 

Interrogatory No. 12: 

Please state the specific facts upon which you base your response that you are without 

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knowledge to admit or deny Paragraph II.12 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

Webgistix, as only an intermediary shipper and not the product's manufacturer, is without 

sufficient knowledge to admit or deny the specific nature of the allegedly hazardous material at 

the center of the allegations in the Complaint. Webgistix also cannot admit or deny what papers 

might have been required for the shipment. 

Interrogatory No. 13: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.13 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

Webgistix, as only an intermediary shipper and not the product's manufacturer, is without 

sufficient knowledge to admit or deny the specific nature of the allegedly hazardous material at 

the center of the allegations in the Complaint. Webgistix also carmot admit or deny what 

packaging might have been required for the shipment. 

Interrogatory No. 14: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.14 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at 1ssue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazmat guidelines. 

Interrogatory No. 15: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.l5 of your Answer and Affirmative Defenses to 

Complaint. 

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RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at 1ssue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazrnat guidelines. 

Interrogatory No. 16: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.16 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at 1ssue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazmat guidelines. 

Interrogatory No. 17: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.17 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at issue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazmat guidelines. 

Interrogatory No. 18: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.l2 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at 1ssue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazmat guidelines. 

Interrogatory No. 19: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.l9 of your Answer and Affirmative Defenses to 

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Complaint. 

RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at Issue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazrnat guidelines. 

Interrogatory No. 20: 

Please state the specific facts upon which you base your response that you are without 

lmowledge to admit or deny Paragraph II.20 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at Issue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazrnat guidelines. 

Interrogatory No. 22: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.l2 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at Issue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazmat guidelines. 

Interrogatory No. 23: 

Please state the specific facts upon which you base your response that you are without 

knowledge to admit or deny Paragraph II.23 of your Answer and Affirmative Defenses to 

Complaint. 

RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at Issue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazrnat guidelines. 

Interrogatory No. 24: 

Please state the specific facts upon which you base your response that you are without 

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knowledge to admit or deny Paragraph II.24 (a) through (ff) of your Answer and Affirmative 

Defenses to Complaint. 

RESPONSE: 

There is evidence suggesting that the allegedly hazardous material at Issue m the 

Complaint is not, in fact, corrosive within the meaning of the Hazmatguidelines. 

Interrogatory No. 25: 

Please state the specific facts upon which you base your affirmative defense that 

"Pursuant to 49 U.S.C. 5123(c), the alleged circumstances of the incident do not warrant a 

monetary civil penalty" as stated in your Answer and Affirmative Defenses to Complaint. 

RESPONSE: 

Webgistix incorporates its Response to Interrogatory 4. As a foundational concern, 

Webgistix does not concede that the substance at issue in the Complaint is, in fact, a Corrosive 

substance. The MSDS is internally inconsistent in labeling the product as a possibly corrosive 

substance while simultaneously describing symptoms, precautionary measures, treatment 

guidelines, and clean-up commensurate with an irritant substance, not a corrosive within the 

definition of the Hazmat guidelines. 

Also, Webgistix fits within the description of a category B business entity - a business 

entity, which does not use or handle Hazmat in the course of its regular business. The incident in 

question was not a result of a conscious decision to ship Hazmat materials; it was an unintentional 

oversight because of the customer's misrepresentation (whether negligent or intentional) coupled 

with the nature of the consumer product, which was intended to be consumed in drinking water. 

Webgistix did not intend to ship Hazmat materials. 

Webgistix assumes the FAA's position is a result of a misunderstanding in the language in 

Webgistix Customer Manual. The manual contains the following language: "Further, additional 

handling charges may be applied to the account for any hazardous material." This language is 

intended to justify charges Webgistix will levy if it discovers, after the fact, that a customer has 

placed products with Webgistix that classify as Hazmat materials, and Webgistix is then forced to 

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remove/dispose of such products. Webgistix subsequently amended this language to clarify tl1at 

it does not, under any circumstances, accept Ha=at materials. 

The Matrix also addresses a number of factors the FAA should consider when assessing 

the penalty range. Most of these appear to favor a minimum penalty. For example, the product 

type (Class 8 PGII liquid (sodium chlorite diluted to 22.4%) with a small quantity (4 ounces) 

("Mitigating factors may also exist fuat have not been adequately considered. For example, a 

shipment containing a de minims quantity of material. ... "). 

Another mitigating factor is whether Webgistix reasonably relied on incorrect information 

from another source. Here, Webgistix relied on fue representations of the Keavy's Korner as well 

as the product labeling which included no Hazmat warnings. Webgistix' s procedures were not 

perfect - and that this incident would likely have been prevented with ilie redundancy of the 

amended procedures - but the product type and overall misleading labeling resulted in ilie 

Webgistix employee not checking the actual product ingredients. 

Anofuer factor that should be given serious consideration is the corrective steps that 

Webgistix has taken to prevent future incidents- steps that were taken before ilie notice of a civil 

penalty, including Hazmat training, amending the contract language with its customers, closer 

product inspection at intake (including demanding MSDS when appropriate) and utilizing the 

expertise of its shipping partner UPS to screen new products. As the Guidelines state: "Systemic 

change intended to prevent future violations should be given greater consideration. Similarly, 

corrective action that commences upon the violator's first notice of the violation ordinarily is 

given greater credit than corrective action fuat commences only after the Notice of Proposed Civil 

Penalty has been issued." 

REQUESTS FOR PRODUCTION 

Request for Production No. 1: 

To the extent that any expert witness is expected to testify, reports and records that form 

the basis for this testimony. 

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RESPONSE: 

Mr. Gantt only reviewed documents produced by the FAA in its Discovery Requests. 

Webgistix reserves the right to supplement this response in the event that Mr. Gantt reviews 

additional reports or records. 

Request for Production No.2: 

Copies of any documents which Respondent intends to introduce into evidence and which 

have not already been submitted to the Agency. Please identify those documents which have 

already been submitted to the Agency. 

RESPONSE: 

None at this time; Webgistix reserves the right to supplement this response. 

Request for Production No.3: 

Please provide evidence of any corrective or remedial action taken as a result of this 

matter. 

RESPONSE: 

Webgistix previously submitted such evidence as atachments to correspondence. To the 

extent that any additional documentary evidence comes within Webgistix's possession or control, 

Webgistix reserves the right to supplement this response. 

Dated: June 5, 2015 SNELL & WILMER L.L.P. 

. / // // 

By: c~ .. !L Pa~&i' @fByrne 

Nevada Bar No. 7636 

Justin A. Shiroff 

Nevada Bar No. 12869 

3883 Howard Hughes Parkway, Suite 1100 

Las Vegas, NV 89169 

Attorneys for Webgistix Corporation 

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CERTIFICATE OF SERVICE 

I hereby certifY that a copy of the foregoing Webgistix Corporation's Responses to Federal 

Aviation Administration's Request for Discovery has been mailed this date by First Class Mail to 

the following: 

(Sent via First Class Mail Original and One Copy) 

Hearing Docket Clerk 

FAA, AGC-430, Suite 2W1000 

Wilbur Wright Building 

600 Independence Avenue, SW 

Washington, DC 20591 

(Sent via First Class Mail) 

Rashawn Rich George 

Office of the Regional Counsel, AS0-7 

Federal Aviation Administration, Southern 

Region 

1701 Columbia Avenue 

Suite 530 

College Park, GA 30337 

DATED June 5, 2015. 

21699697.1 

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