U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS LITIGATION SCHEDULING CONFERENCE

IN THE MATTER OF: BRAILLE BATTERY, INC.

Thursday, November 1, 2012 Via Teleconference FDMS No. FAA-2012-0781

The litigation scheduling conference commenced at 11:00 a.m.
BEFORE: THE HONORABLE J.E. SULLIVAN, Administrative Law Judge



# RECEIVED NOV 1 62012 

## HEARING DOCKET

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.comAPPEARANCES:

On Behalf of the Respondent: CHARLES FLETCHER, ESQ. of: Gray-Robinson, P.A. 201 N. Franklin Street Suite 2200 Tampa, FL 33602 Tel: (813) 273-5000 Fax: (813) 273-5145

On Behalf of the Complainant: GERALD A. ELLIS, ESQ. Office of the Regional Counsel Southern Region Federal Aviation Administration P.O. Box 20636 Atlanta, GA 30320 Tel: (404) 305-5200 Fax: (404) 305-5223

ALSO PRESENT: CODY L. SMITH, Attorney, Department of Transportation Office of Hearings

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1 P-R-0-C-E-E-D-I-N-G-S 2 (11:01 a.m.) 3 JUDGE SULLIVAN: We're on the 4 record in the matter of Braille Battery Inc. 5 This is Docket Number FAA-2012-0781. 6 Today is Thursday November 1, 7 2012, and the parties have convened for a 8 Rule 16 Litigation Scheduling Conference. 9 The Federal Aviation 10 Administration which I will herein after 11 abbreviate as FFA, is represented by it's 12 attorney of record, Gerald A. Ellis. 13 The respondent, Braille Battery 14 Inc. is representedby it's attorney of record 15 Charles Fletcher. 16 Also present at the office of 17 hearings, sitting in as observer only is 18 Attorney Cody L. Smith. 19 Good morning, everybody. Before 20 we Jump into studying and confirming dates, 21 let me ask you a couple questions. And I'm 22 going to direct the first question to you, Mr.

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.. N.W. WASHINGTON. D.C. 20005-3701 www.nealrgross.com4 1 Ellis. 2 You have indicated Tampa, Florida 3 I believe as the venue for this hearing. Have 4 the parties talked about that, is that an 5 agreement? 6 MR. ELLIS: I don't think we've 7 talked about it yet, but I think that's near 8 their location. 9 JUDGE SULLIVAN: Okay. And how 10 many days do you anticipate your case would 11 take for hearing, if there were no dispositive 12 motions granted and no stipulations entered 13 into by the parties. 14 I mean assuming that you'd have to 15 put on the full case, how much time would 16 you're client need to present at hearing? 17 MR. ELLIS: I think we can do it 18 in two days. 19 JUDGE SULLIVAN: Okay, thanks. 20 There a Respondent's letter answer that was 21 filed with the original complaint. The letter 22 was dated June 29, 2012. Has that been

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1 accepted by the FFA as the Respondent's answer 2 to the complaint? 3 MR. ELLIS: I didn't do anything 4 officially in response to that, I did receive 5 it however. 6 JUDGE SULLIVAN: The response was 7 fairly detailed. Have you been operating as 8 if it was an answer? 9 MR. ELLIS: Yes, Your Honor. 10 JUDGE SULLIVAN: Okay. Thank you. 11 Okay, I'm going to ask Mr. Fletcher a couple 12 questions now. 13 Mr. Fletcher, what is your 14 preferred venue site, since you and Mr. Ellis 15 haven't specifically talked about it yet? 16 MR. FLETCHER: Tampa, Florida is 17 acceptable I believe in some of our 18 correspondence we suggest that as a venue and 19 that is acceptable to us. I believe there's 20 a FAA office there. 21 JUDGE SULLIVAN: Okay, thank you. 22 Assuming that there are no dispositional

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com6 1 motions granted and the parties don't 2 stipulate to any facts, how many days would 3 your client need to put on it's responsive 4 case of hearing? 5 MR. FLETCHER: I believe we would 6 also neem approximately two days, Your Honor. 7 JUDGE SULLIVAN: Okay. And then 8 just so I tie up any loose ends, I do have a 9 copy of your June 29, 2012 letter. Was that 10 intended on behalf of your client to be formal 11 answer? 12 MR. FLETCHER: Yes, Your Honor, 13 and then we additionally filed a formal answer 14 under the rules of procedure I believe within 15 the last few weeks. I can pull out the date, 16 for Your Honor, if that would be helpful. 17 We have requested an extension of 18 time, and then subsequently filed a formal 19 answer to the complaint. 20 JUDGE SULLIVAN: Would you like to 21 pull that out now and see if you ever served 22 it upon the Office of Hearings? Because we

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com7 1 don't have it. 2 MR. FLETCHER: Okay. We, 3 according to my docket file, we served on 4 October 19th. 5 JUDGE SULLIVAN: With whom? Mr. 6 Fletcher? 7 MR. FLETCHER: Yes, I'm looking at 8 the, the file copy I have simply indicates 9 that it went to the Office of Administrative 10 Hearings. It does not indicate any more 11 detail than that. 12 JUDGE SULLIVAN: Okay. I can tell 13 you that we do not have it. Could you do me 14 the favor of faxing a courtesy copy to this 15 office today? 16 MR. FLETCHER: I will do that, 17 Your Honor. 18 JUDGE SULLIVAN: Okay, that would 19 be so helpful. Thank you so much. 20 Just so that you know, Mr. 21 Fletcher and Mr. Ellis. Mr. Fletcher's June 22 29, 2012 letter, which I do have, had various

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com8 1 attachments referenced in the letter. Both in 2 the body of the letter and then at the very 3 end of the letter. 4 My copy of the June 29, 2012 5 letter does not contain any of the 6 attachments. So if you had intended for the 7 Office of Hearings to get copies of the 8 attachments, I'mjust letting you know that we 9 didn't get them. If you had no intent of 10 providing the attachments then that's exactly 11 what happened. 12 So I'll leave it to the two of you 13 to talk about that, and then, Mr. Fletcher, if 14 you want the Office of Hearings files to 15 include those attachments, then again I would 16 ask you to send me a courtesy copy via fax. 17 MR. FLETCHER: We will do that, 18 Your Honor. 19 JUDGE SULLIVAN: Okay, and again 20 it's not absolutelynecessary for my purposes, 21 it's only for whether or not you think that's 22 an important part of your case at the hearing

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(202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com9 1 level. 2 MR. FLETCHER: Understood, Your 3 Honor. 4 JUDGE SULLIVAN: Okay. Then let's 5 talk a little bit about the proposals that 6 you've made, thank you very much for your 7 blank proposed procedural schedule which was 8 filed in this office on October 31, 2012. 9 I'm going to talk a little bit 10 about some of the deadlines. And I think 11 probably what we need to talk about first is 12 the hearing date that you've proposed. You 13 had identified June 16, 2013 as the hearing 14 date. Which is lovely, except it's a Sunday. 15 And it's only one day instead of 16 four. So I thought maybe we could start with 17 that and just note that I'm happy to hear 18 something inJune, but it typicallypreferable 19 for my calendar to do it during the work week. 20 MR. ELLIS: I didn't have a 2013 21 calendar when I worked that out, Your Honor, 22 I just kind did it by days.

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com10 1 JUDGE SULLIVAN: Yes. Well I just 2 wanted to let you know that however much I 3 like to work, I usually like to take Sunday 4 off. So I will not be strictly adopting that 5 particular day for you all. 6 Let's talk then about a beginning 7 date, you had indicated November 22, 2012 as 8 the general discovery exchange deadline. I'm 9 presuming you're talking about the initiation 10 of general discovery. Would that be a fair 11 statement, Mr. Ellis? Mr. Ellis? 12 MR. ELLIS: I said yes. 13 JUDGE SULLIVAN: Okay, I did not 14 hear you, thank you. 15 Typically what I like to do is 16 also set a due date for the initial discovery 17 exchange. Most often attorneys have already 18 done most, if not all of their initial 19 discovery by the time the case gets to me for 20 the Rule 16 conference. 21 But because you have set November 22 22, 2012 as your proposal to begin general

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com11 1 discovery, I thought maybe I could propose 2 adding a date of November 15, 2012 for the 3 conclusion of the exchange of initial 4 discovery requests. Pursuant to CR26 AlA. 5 And then as you both probably 6 know, but that's really the very basic broad 7 discovery about giving information about who 8 knows things about your case that would be 9 discoverable. A general description of the 10 documents that you have that could be 11 discoverable, and so forth. 12 Starting with you, Mr. Ellis, 13 would November 15, 2012 be an acceptable date 14 for the completion of exchanging that general 15 discovery information? I'm sorry, not 16 general, initial discovery. 17 MR. ELLIS: Yes. 18 JUDGE SULLIVAN: And, Mr. 19 Fletcher, is that acceptable to you as well? 20 MR. FLETCHER: Well, Your Honor, 21 our preference would be to stick with the 22 November 22, deadline, but if you would like

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com12 1 to add that additional element, we will not 2 object to that. 3 JUDGE SULLIVAN: Okay. Yes, I'm 4 happy to adopt December 22, 2012 deadline to 5 begin general discovery. That's what I had in 6 your materials. General discovery exchange 7 deadline with a February 7, 2013 deadline for 8 responses? 9 Did you intend something other 10 than general discovery? Were you kind of 11 factoring in initial discovery into that date 12 as well? 13 MR. FLETCHER: Yes, Your Honor. 14 Yes. 15 JUDGE SULLIVAN: Well, if you like 16 I can change it so they're exactly the same, 17 but it puts a little bit of a burden upon you. 18 Because then you're looking at 19 doing your general, your initial discovery 20 exchange up to the very day where you have to 21 start general discovery. But if that's your 22 preference, I'm happy to adopt it. Mr. Ellis?

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1 MR. ELLIS: I can work that out, 2 Your Honor. 3 JUDGE SULLIVAN: Okay. And Mr. 4 Fletcher? 5 MR. FLETCHER: Yes, Your Honor. 6 JUDGE SULLIVAN: Okay. And let's 7 talk about February 7th. I'm happy to adopt 8 that as your deadline for responses to general 9 discovery requests as well as most of your 10 other materials. 11 I think however before we start 12 setting that in stone, maybe we should be 13 looking at all of our calendars for a week of 14 hearing dates. 15 Because if we can't find hearing 16 dates the week of June 16, 2013, and we end up 17 for example setting a hearing in August, we 18 can play a little bit with these other dates, 19 so that you're not squeezed up so closely into 20 a June deadline. 21 So, Mr. Ellis, starting with you, 22 let's go to your June calendar if that's where

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1 you want to start for a hearing schedule. 2 You have a full week, the week of 3 say June 14th through the 18th, for a hearing 4 in Tampa, Florida? 5 MR. ELLIS: Let's see, the 14th is 6 a Friday. 7 JUDGE SULLIVAN: I have, oh I'm on 8 July 2014, so I'm jumping way ahead, excuse 9 me. 10 Okay, so the week of June 16, I 11 can't do the whole week, so let's. I have the 12 full week, I'm sorry, I'm having a little bit 13 of trouble with my calendar. 14 I have the full week of June 23rd 15 through June 28th. Would that work for you? 16 MR. ELLIS: It would, Your Honor. 17 JUDGE SULLIVAN: Okay, and Mr. 18 Fletcher, how about for you? 19 MR. FLETCHER: Yes, Your Honor. 20 JUDGE SULLIVAN: Okay, well then 21 good, let's just set it for the week of June 22 24th through the 28th.

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1 Since we're going to schedule four 2 days of hearing, I need to know from you 3 whether you want to start the hearing on 4 Monday, the 24th, using Sunday the 23rd as the 5 travel day. Or whether you want to start the 6 hearing on Tuesday the 25th, using Monday the 7 24th as the travel day. Mr. Ellis? 8 MR. ELLIS: Let me correct 9 something first, Your Honor, I was proposing 10 that we could get through with the entire 11 hearing in two days. Not that I would need 12 two days. 13 JUDGE SULLIVAN: Okay. Well 14 that's helpful to know. How much time do you 15 think you would need for your prima facie 16 case, Mr. Ellis? 17 MR. ELLIS: I could definitely get 18 that done in a day. 19 JUDGE SULLIVAN: Okay. Turning to 20 you, Mr. Fletcher, you had indicated that you 21 would need two days for your responsive case, 22 did I misunderstand you, or is that still

NEAL R. GROSS
(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com16 1 true. 2 MR. FLETCHER: Your Honor, I 3 believe we will need at least one full day. 4 Being conservative I've indicated two days, I 5 think a day and a morning would be sufficient 6 in our case. 7 JUDGE SULLIVAN: Let's err on the 8 side of caution and just say keep the two day 9 time period just in case. If we don't use it, 10 that's great. But if we find out that we need 11 it, then we have it set. 12 MR. FLETCHER: Okay. 13 JUDGE SULLIVAN: So if we have a 14 three day hearing, Mr. Ellis, would it be 15 acceptable to have Monday June 24, 2013 as the 16 travel day, setting the case for Tuesday, 17 Wednesday, Thursday, with Friday as a travel 18 back day for you? 19 MR. ELLIS: Yes, that would be 20 fine. 21 JUDGE SULLIVAN: Okay, and Mr. 22 Fletcher, is that acceptable for you too?

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1 MR. FLETCHER: Yes, Your Honor. 2 JUDGE SULLIVAN: Okay. Let me go 3 back. Then we use most of these days I 4 think. 5 Okay, so we stopped with the 6 November 22, 2012 deadline to begin general 7 discovery exchange, I'm happy to adopt the 8 February 27, 2013 deadline for responses to 9 general discovery. 10 I'm happy to adopt the February 11 21, 2013 supplemental discovery request 12 deadline where you exchange your requests. As 13 well as the March 5, 2013 for the deadline to 14 finish taking all supplemental deposition and 15 responding and serving answers to all 16 supplemental discovery requests. 17 In terms of the March 26, 2013 18 deadline for dispositive motion, I presume 19 that that was the date that you wanted all 20 initial motions on dispositive issues to be 21 filed. Since I also need to setup a deadline 22 for filing an answer to such motions as well

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com18 1 as a deadline for filing a reply if any. 2 Mr. Ellis, was the March 26, 2013 3 deadline for the initial motion, was that your 4 intent? 5 MR. ELLIS: Yes, and I believe the 6 times for responses are already in the rules, 7 Your Honor. 8 JUDGE SULLIVAN: Well, that may 9 be, I typically will do two to three weeks for 10 an answer. And then two weeks for a reply, 11 unless you tell me differently. Mr. Ellis? 12 MR. ELLIS: Yes, I was just 13 thinking about what I said earlier. I don't 14 want to contradict what the rules require. 15 JUDGE SULLIVAN: Well, I have the 16 rules right in front of me, are you talking 17 about the Civil Rules? 18 MR. ELLIS: No, the regulatory 19 rules. DOT rules for civil. 20 JUDGE SULLIVAN: Okay, I have the 21 regulatory rules in front of me as well. So 22 do you want to route me to the specific rule

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com19 1 you want me to utilize? 2 MR. ELLIS: I have to look it up, 3 if you want to give me a minute I can do that. 4 JUDGE SULLIVAN: Please do. 5 MR. ELLIS: Okay, under 13.218 (d), 6 that's a motion for decision. However I don't 7 see a rule for responding to the motion for 8 decision. 9 JUDGE SULLIVAN: And when you say 10 a motion for decision, okay, I see what you're 11 talking about. 12 In essence essentially under many 13 state rules, and I believe the Federal rule, 14 you usually have approximately two to three 15 weeks after the initial motion for summary 16 judgement, for example, it's filed to file an 17 answer. 18 MR. ELLIS: Well I, the rules is 19 under, what I was thinking about, was 20 13.218(d) which gives you ten days in general 21 to answer motions. 22 JUDGE SULLIVAN: Yes, but that is

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(202) 234·4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.• N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com20 1 usually for motions that are different than 2 dispositive motions as I understand 3 litigation. 4 So I'm happy within this 5 litigation order to provide a ten day turn 6 around time for motions to compel any other 7 types of motions that are a little less 8 serious than a dispositive motion. 9 But when you talk about 10 dispositive motions, which require the 11 presentation and the rebuttal of allegations 12 with evidentiary material. 13 I think I'm suppose to err on the 14 side of caution and allow both the movement 15 and the responding party enough time to 16 perfect those motions. If they're granted, 17 they dispose of part or all of the trial for 18 the non moving party. 19 Do you have an objection in some 20 way shape or form, for following that type of 21 system? 22 MR. ELLIS: Not specifically, Your

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com21 1 Honor. It's just that, you know, typically in 2 the cases that I've done, we followed the 3 rules in the Administrative proceedings. 4 JUDGE SULLIVAN: Well, I don't 5 have any objections to following the rules in 6 the Administrative proceedings. But I don't 7 think that with dispositive motions the 8 parties are limited to ten day turn around 9 time for a response. And in fact I think

-- 10 MR. ELLIS: Maybe that was in the 11 past it's just that the party needed more 12 time, we're very liberal with allowing that. 13 JUDGE SULLIVAN: That's great, and 14 this way I can avoid all those kinds of 15 motions being presented to me up front. 16 So what I'm going to do is I'm 17 going to set for an answer date, if we agree 18 that March 26, 2013 is the deadline for filing 19 a dispositive motion, all or in part. 20 I'm going to set, let me take a 21 look at my calendar. I'll set April 16, 2013 22 for the deadline for filing an answer. That

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com22 1 means obviously if you both do motions for 2 summary judgement, you both have three weeks 3 to respond in those cross motions. 4 And then I will set April 30th as 5 the deadline for filing a reply. That means 6 we need to set up in May, a one hour time for 7 oral argument. 8 Because I like to hear oral 9 argument and I usually have a lot of questions 10 to ask the parties about their motions. 11 I've got my calendar, do either of 12 you have time the week of May 19 through May 13 24, for one hour argument? And I'11 start 14 with you, Mr. Ellis. 15 MR. ELLIS: I do. 16 JUDGE SULLIVAN: Okay, do you have 17 any black out date within that week? 18 MR. ELLIS: No, Your Honor. 19 JUDGE SULLIVAN: Okay. Mr. 20 Fletcher, how about you? 21 MR. FLETCHER: I'm available 22 except for the 24th.

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE.• NW. WASHINGTON. D.C. 20005-3701 www.nealrgross.com23 1 JUDGE SULLIVAN: Okay. Why don't 2 we plan on Tuesday, May 21 and since we met at 3 11:00 today let's keep 11:00 a.m. time for the 4 oral argument too, May 21 too. 5 And then let's talk about the list 6 of witness exchange. Typically what I've 7 heard from other parties is they like to have 8 that, about two to three weeks prior to the 9 hearing date. 10 And I wanted to check in with you 11 and see if that's about where you want to land 12 on the deadline date for the exchange of 13 witness lists and exhibits. Mr. Ellis, what's 14 your preference? 15 MR. ELLIS: What is the option, 16 Your Honor? Is it something different than 17 what we've written? 18 JUDGE SULLIVAN: Well, typically 19 if you have a summary judgement motion, and 20 all or part of it is granted, you probably 21 want to have a deadline for the exchange of 22 witness lists and exhibits after the summary

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com24 1 judgement motion, so that you can eliminate 2 some work for yourself. If in fact if you 3 find that you don't have to go to trial on all 4 or part of the issue. 5 So what I'm suggesting to you, and 6 it's up to you of course, is that if you have 7 a summary judgement oral argument on May 21, 8 2013, it might be helpful to wait until after 9 that date, to have your list of witnesses and 10 exhibits exchanged. 11 MR. ELLIS: To me the only that 12 matters is that we have a reasonable amount of 13 time for the actually hearing. As long as I 14 have three weeks or so before the hearing, 15 that's fine with me. 16 JUDGE SULLIVAN: Okay. Mr. 17 Fletcher, do you have a preference? 18 MR. FLETCHER: Your Honor, I 19 generally agree with Mr. Ellis, as long as 20 we've got three weeks between the date of the 21 exchange and the hearing, that's fine. 22 And with pushing out the hearing

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1 dates slightly, I think that would put us in 2 the last week of May. Which would give us 3 some time after the motion hearing as you 4 described to revise our list. So perhaps we 5 could do it that last week of May. 6 JUDGE SULLIVAN: Okay, why don't 7 we say May 31, for the list of witness 8 exchange and exhibits. And then I have often 9 had people ask me for a due date for filing 10 written motions and in limine and or party 11 stipulations prior to the trial. 12 That doesn't preclude you of 13 course from making some oral motions in 14 limine or presenting oral stipulations at the 15 trail. 16 But for many people it's helpful 17 to have a deadline to do it ahead of time. Do 18 either of you have a preference regarding 19 that? Starting with you. Mr. Ellis. 20 MR. ELLIS: No, Your Honor. 21 JUDGE SULLIVAN: And, Mr. 22 Fletcher?

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1 MR. FLETCHER: No, Your Honor. 2 JUDGE SULLIVAN: Okay. I'm going 3 to go ahead and give you a due date for that, 4 just to be on the safe side. So why don't we 5 say June 11th for that date. 6 And then I have some other 7 suggestions for you that other parties have 8 done. You can do this or not do this as you 9 see fit. 10 I've often had parties ask for a 11 date, between, excuse me, before the deadline 12 for responses to general discovery. Which in 13 your case is February 7, 2013. To add in some 14 deadlines for exchanging factual witness 15 lists, exchanging expert witness disclosure 16 and reports. 17 First by the claimant to the 18 respondent, and then second for the respondent 19 back to the claimant. 20 Do you want me to add in those 21 types of deadlines for you in this litigation? 22 Or are you comfortable just figuring that out

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1 for yourself? Mr. Ellis? 2 MR. ELLIS: I usually ask for that 3 kind of stuff in discovery, so, no. 4 JUDGE SULLIVAN: Okay. Mr. 5 Fletcher? 6 MR. FLETCHER: I don't think we 7 need to add any additional deadlines, Your 8 Honor. 9 JUDGE SULLIVAN: Okay. So noted. 10 Starting with you, Mr. Ellis, is 11 there anything else that we need to address 12 for you in this proceeding this morning? 13 MR. ELLIS: No, Your Honor. 14 JUDGE SULLIVAN: And, Mr. Fletcher? 15 MR. FLETCHER: No, Your Honor. 16 JUDGE SULLIVAN: Okay. I' 11 be 17 sending out a litigation procedural order for 18 you that identifies and lists all these 19 different dates that we've talked about. 20 I'll also note that it'll provide 21 for you some information about how to mark 22 your exhibits for hearing.

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1 It also provides the tenth 2 calendar date time frame for filing motions 3 like a motion to compel discovery for example, 4 or a motion for relief if you have a deficit 5 response in an interrogatory, those kinds of 6 things. 7 It also notes, and this may sound 8 familiar to you, that if you do have any type 9 of motion to compel, I do want you to adhere 10 to the practice under the CR 37 about 11 contacting the other party, trying to resolve 12 it informally. And then including that CR 37 13 negotiation in whatever motion you file. 14 In order to get on my calendar as 15 fast as possible, during that CR 37 16 discussion, please talk to the opposing side 17 and get three mutually agreeable calendar 18 dates that you can call my office with, for 19 putting that motion on my calendar. So I have 20 it all set up and we don't have lots of 21 delays. 22 And then you can file with your

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 WWN.nealrgross.com29 1 motion, for the purposes of that calendar 2 date. Whatever the disputed discovery is that 3 needs to be addressed by me. 4 But that way you don't have long 5 periods of time waiting to get on my calendar, 6 so that we don't get derailed with the 7 schedule we have right now. 8 And then in addition I have in the 9 order, Mr. Smith's name and phone number in 10 case you have any questions you need to ask 11 about the procedures or how to get up on my 12 calendar, that kind of thing. 13 So, Mr. Ellis, with that, is there 14 anything else that we can address for you and 15 your client today? 16 MR. ELLIS: I guess, just let me 17 clarify what you just said about getting on 18 your calendar. I haven't had to do that with 19 anyother judges, I typically would just file 20 something. So help me understand what you're 21 trying to accomplish with that? 22 JUDGE SULLIVAN: Well, when I say

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(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHOOE ISLAND AVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com30 1 that I want you to contact the other side and 2 engage in a CR 3 7 conference, if you have 3 problems with discovery, do you know what I'm 4 talking about? 5 MR. ELLIS: Yes, I understand that 6 part. 7 JUDGE SULLIVAN: While you're in 8 your CR 37 discussion, I want you to talk to 9 the other side about your calendar 10 availability. 11 The easiest way to get on a 12 calendar is to find out what your opposing 13 counsel's calendar availabilityis, compare it 14 with your own. 15 And then contact my legal 16 secretary, who's name is Diane Mays, and say, 17 we need to get in front of Judge Sullivan as 18 soon as possible. We've already talked about 19 our calendar availability. These are three 20 dates where we both are available. Could you 21 look at her calendar and see if she has any of 22 these date available.

NEAL R. GROSS
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1 MR. ELLIS: We'd be hearing this 2 orally, is what you're saying? 3 JUDGE SULLIVAN: That's right. 4 MR. ELLIS: Without any disputes 5 about discovery? 6 JUDGE SULLIVAN: I'm going to be 7 asking you to set up a matter on my calendar, 8 so that once I get your motion, if I need to 9 talk to you, if I have questions. I already 10 have a telephone conference set up. 11 MR. ELLIS: Okay. 12 JUDGE SULLIVAN: So it is a 13 combination of both having motions with 14 written material filed which also have 15 attached discovery issues. 16 So if you have, for example, a 17 deficit interrogatoryandyou're claiming that 18 you have a right to a bigger response to that 19 interrogatory than you received, then I will 20 have that written material in front of me. 21 I will also have ideally the 22 answer to the motion in front of me. And I

NEAL R. GROSS
(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE

.. N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com32

1 will have you both on the phone at a mutually 2 agreeable time so that if I have questions to 3 ask either of you, you're both going to be 4 available for argument. Does that make sense? 5 MR. ELLIS: Yes, Your Honor. 6 JUDGE SULLIVAN: Okay. Is there 7 another question that you have about that 8 particular procedure? 9 MR. ELLIS: No, Your Honor. 10 JUDGE SULLIVAN: Okay. Mr. 11 Fletcher on behalf of your client, is there 12 anything you would like to add, or any 13 questions you have? 14 MR. FLETCHER: No, Your Honor. 15 Thank you. 16 JUDGE SULLIVAN: Okay, thank you 17 both very much for your presence today. It 18 appears our business is complete. 19 We can go off the record and I 20 wish you a good day. 21 (Whereupon, the hearing was 22 concluded at 11:33 p.m.)

NEAL R. GROSS
(202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.comA

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Neal R. Gross & Co., Inc. 202-234-4433 Page 3738 C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Braille Battery, Inc.

Before: us DOT

Date: 11-01-12

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202)234-4433 Court Reporter

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com