SERVED: APRIL 17,2014 

U.S. DEPARTMENT OF TRANSPORTATION . 

OFFICE OF HEARINGS 

WASHINGTON' DC zc; '; : ..--~ .:>1- _, .. · __ ·_-'! • 

. ~\ :<~~= c~ i 

In The Matter Of: 

AIRBORNE MAINTENANCE 

AND ENGINEERING SERVICES 

Respondent 

) 

) 

) 

) 

) 

) 

Docket No. FAA-2013-0291 

Case No. 2011S0290032 

ORDER GRANTING IN PART AND DENYING IN PART 

THE FAA'S MOTION TO COMPEL THE RESPONDENT TO ANSWER 

FAA INTERROGATORY NOS. 2 AND 12 

On April 17, 2014, an Order Denying in Part and Granting in Part the FAA's Motion to 

Compel the Respondent to Comply with Notices of Deposition was filed. Among other things, 

this Order stated that separate Orders would issue shortly on the Respondent's March 11, 2014 

Motion to Compel Production and the FAA's March 18,2014 Motion to Compel. 

A. BRIEF DISCUSSION AND ANALYSIS 

This brief discussion and analysis is limited in scope, and does not address every dispute 

raised by the parties in their submitted materials. However, all facts, legal arguments, and legal 

authority contained in the parties' motions, responses, and replies have been read and fully 

considered. 

The FAA's March 18,2014 Motion to Compel ("Motion") seeks an order compellingthe 

Respondent to respond fully to the FAA's First Set of Interrogatories, specifically Interrogatory 

Nos. 2 and 12. In response, the Respondent objects, citing various grounds in its Opposition to 

Complainant's Motion to Compel Production ("Opposition"). 

Pursuant to 14 C.F.R. S13.220 (b), the parties may serve written interrogatories on each 

other. Pursuant to 14 C.F.R. S13.220 (e), a party may discover information that "relates to the 

claim or defense of any party." 
The language in 14 C.F .R. 13.220 regarding the use and scope of written interrogatories 

generally follows the scope ofthe federal interrogatory requirements in Civ. R. 26(b) and Civ. R. 

33. Civ. R. 26 (b)(l) allows a party to discover any "nonprivileged.matter that is relevant to any 

party's claim or defense." Civ. R. 33 allows the parties to serve written interrogatories on each 

other, regarding "any matter that may be inquired into under Rule 26 (b)." 

In the instant case, the FAA served its First DiscoveryRequests upon the Respondent on 

January 28, 2014 (Motion, 1). On March 6, 2014 the Respondent filed its Responses to FAA's 

First Discovery Requests ("Responses") (FAA Exh. B). 

1. FAA Interrogatory No.2 

In its March 6, 2014 Responses, the Respondent declined to answer FAA Interrogatory 

No.2, on the grounds that it had requested full disclosure of Section B ofthe FAA's EIR, and 

had not yet received it. The Respondent further explained: "Wishing to first see all of Section B 

prior to responding to interrogatory number 2, AMES will not respond to the FAA's request at 

this time." (FAA Exh. B, 2). 

In subsequent email communications, the FAA and the Respondent also disagreed about 

the scope of the interrogatory's question and requested answer, in that the Respondent 

interpreted the question to involve only one FAA inspector, whereas the FAA asserted that the 

question involved only one document, and included all FAA inspectors involved. (FAA Exh. C). 

Interrogatory No.2 states in part: 

"If you assert that the inspector's statements in this matter (inclusive of records of 

conversation, e-mails, memoranda or other documents), as contained in the EIR ... " 

(FAA Exh. B, 2). 

In its Motion, the FAA first asserts that the Respondent could not refuse to respond to the 

FAA's valid discovery request, on the grounds that the Respondent believed, and was formally 

alleging, that the FAA had failed to fully answer Respondent's discovery. (Motion, 2-3). In its 

Opposition, the Re·spondent asserted that it could decline, because it was "entitled" to be 

"informed of the full context of the Inspectors using findings prior to commenting upon them." 

(Opposition, 4). The Respondent also argued that the court could authorize a delay in discovery 

in the interests of justice. (Opposition, 4). 

While the court certainly could authorize a delay in discovery while considering a motion 

to compel, the court has not done so. Discovery may proceed in any sequence. Discovery does 

not stop simply because a party is unhappy with the type or scope of discovery received from the 

Page 2 of 5 
opposing side. "A party is not excused from answering discovery because another party has 

failed to answer discovery." Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, West 

Publishing (2012) (Rule 26 (d)). It is improper for one party to withhold discovery on the 

grounds that disclosure is contingent upon the opposing party's production of discovery. (/d.); 

Land Ocean Logistics, Inc. v. Aqua Golf Corp., 181 F.R.D. 229, 235 (W. D.N.Y., September 2, 

1998) (absent court order, there is no authority for a party to refuse to answer properly served 

discovery requests, on the grounds that the opposing party is failing to comply with disclosure). 

The proper remedy if another party fails to answer discovery "is a motion to compel 

under Rule 37, not a refusal by the party to comply with valid discovery requests." Steven 

Baicker-McKee, et.al, Federal Civil Rules Handbook, West Publishing (2012) (Rule 26 (d)). 

The Respondent has properly filed such a motion, which will be addressed by separate order. In 

the meantime, the Respondent must comply with discovery, and respond to the FAA's 

interrogatory requests. 

As a second matter, the parties dispute the scope of inquiry in Interrogatory No. 2. It 

should be noted that as part of its March 11,2014 Motion to Compel, the Respondent submitted 

a copy ofthe redacted EIR for court review. (R. 3/11/14 Exh. 4). 

The redacted copy of the EIR is not signed, dated, or endorsed by any FAA Inspector. 

The EIR "Statement ofthe Case" references some work by FAA Inspector Bobby Evans (R. 

3111114 Exh. 4, 1) but does not include any particular statements allegedly made by him. It also 

references a Principal Maintenance Inspector ("PMI"). Ahe bulk of the Statement appears to 

relate the PMI's actions and report. (R.3/11/14 Exh. 4, 1-3). The parties appear to agree that the 

PMI is Inspector Lipinski. (R. 3/11/14 Motion, 2; R. Motion, 3; FAA Motion, 2). 

In the EIR "Discussion," the actions ofboth Inspector Evans and a FAA Inspector 

Gasche are referenced, but neither Inspector appears to be making or endorsing any statements 

contained in the EIR. (R. 3/11/14 Exh. 4, 4). There is, however, a section entitled "Items of 

Proof (R. 3/11/14 Exh. 4, 15-16), that references documents that appear to have been authored by 

Inspector Evans (e.g., Index Nos. 5, 7), and Inspector Gasche (e.g., Index No.9), as well as the 

PMI, Inspector Lipinski (e.g., Index No.8). 

Nevertheless, based on the question posed, the relief that may be offered by this court is 

limited. Assuming that the EIR is authored by FAA Inspector Lipinski, then the EIR is a 

statement offered by that one FAA Inspector. While there may also be hearsay statements 

contained in the redacted EIR, or that may be attached to the EIR upon which Inspector Lipinski 

relied upon, those additional statements have not been adequately identified or referenced in the 

request for information contained in the FAA's Interrogatory No. 12. Thus, the Respondent is 

Page 3 of 5 
obligated to answer Interrogatory No.2 based on the fact that the EIR is the authored work 

representing one inspector's statements, i.e., Inspector Lipinski. 

2. FAA Interrogatory No. 12 

In regard to FAA Interrogatory No. 12, the Respondent's March 6, 2014 Responses 

provided a general answer to the FAA's question, based on the time frames alleged in the three 

violations charged against it in the FAA's June 20,2013 Complaint. (FAA Exh. B, 7; 

Complaint). The FAA asserts that this answer was incomplete, and that information regarding 

the time period through May 2010 was missing. (Motion, 3-4). 

Interrogatory No. 12 states in part: 

"Describe in detail the physical condition of the landing gear and flying door assemblies 

at issue in this matter ... ". 

(FAA Exh. B, 7). 

The FAA agreed that Interrogatory No. 12 did not specify a time frame. However, the 

FAA asserted that "the discovery request covered the condition of the components at all times 

material to this litigation (that being August 2009 through May 2010)." (Motion, 3-4). 

The FAA is mistaken. The Interrogatory simply references the physical condition of the 

aircraft "at issue" in this case. Absent a time frame specified in the Interrogatory, the 

Respondent must rely upon the charging document (i.e., the Complaint) as guidance. The 

Complaint clearly specified three time frames at issue: August 2009, October 2009, and March 

2010. There is no assertion in the Complaint that the periods of September 2009, NovemberDecember 2009, January-February 2010, April2010, or May 2010 are a:t issue. 

The FAA asserts that the Respondent knew it wanted more information. That may be 

true. In fact, in most cases, each party seeks more information during discovery exchange that 

the other wishes to give. This court might also agree that the Respondent has taken the most 

conservative reading of the Interrogatory. However, the Respondent has a right to read the 

question and respond to what has been asked, without offering more. If the FAA sought 

information that included a period of time beyond the time periods charged in the Complaint, it 

needed to specify.such an expanded time period. 

B. CONCLUSION 

Pursuant to 14 C.F.R. §§ 13.205(a)(6), and 13.220, and after reviewing all pleadings, 

motions, relevant caselaw, regulations, statutory authority, and being fully advised; 

Page 4 of 5 
IT IS HEREBY ORDERED: 

1. The FAA's Motion to Compel the Respondent to answer FAA Interrogatory No.2 is 

granted in part. The Respondent is directed to answer Interrogatory No.2, in regards to 

any statements made by Inspector Lipinski, the author of the EIR, in the redacted EIR 

currently in the Respondent's possession. The deadline for the Respondent to serve its 

answer to Interrogatory No. 2 is May 2, 2014. 

2. The FAA's Motion to Compel the Respondent to answer FAA Interrogatory No.2 in 

terms of statements attributed to other FAA Inspectors (i.e., Inspector Evans or Inspector 

Gasche) is denied. 

3. The FAA's Motion to Compel the Respondent to supplement its answer to FAA 

Interrogatory No. 12 is denied. 

4. A separate Order will issue shortly on the Respondent's March 11, 2014 Motion to 

Compel Production. 

Attachment: Service List 

Page 5 of 5 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 0001 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

ONE COPY 

Office of the Regional Counsel, Southern Region 

P. 0. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Robert P. Silverberg 

Respondent's Counsel 

Silverberg, Goldman & Bikoff, LLP 

Georgetown Place, Suite 120 

1101 30th St., N.W. 

Washington, DC 20007 

TEL: 202-944-3300 

FAX: 202-944-3306 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

FDMS No. F AA-2013-0291 

(Civil Penalty Action) 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.