In The Matter Of: **SEI~VEI):** 

### January 

### 26, 2017 

## DEPARTMENT OF TRANSPORTATION lJ.S. l)EPAH.TMENT OF

**'fR.ANSPC)I~TATIC)N** 

### C)FFICE ()F

**liEAI~INCiS** 

### WASI-IINCiTC)N, f)C 

## 1111 JAN 

## 21 A II: 5q

**OOCl~ET** 

## OPERATIONS DocketNo. FAA-2015-3307 FELTS FIELD AVIATION ) ) ) ) ) Case No. 2015WP910090 Respondent

ORDER GRANTING IN PART AND

**D~~NYING** IN PART THE RESPONDENT'S MOT.ION TO COMPEL

On April 14, 2016, 2016, an Order Setting Litigation Dates and Procedures was filed. OnJuly 14, 2016, an OrderExtending Certain Litigation Deadlines was filed. An1ong otherthings, this July 14, 2016 Order denied the Respondent's July 12, 2016 oral motion to bar Mr. Eric Wells fron1 testifying as the FAA expeti witness; and directed the FAA to serve the Respondent, on orbefore July 22, 2016, with either a n1odified redacted copy ofExhibit C-1, or a privilege logjustifyingthe redactions to the current Exhibit C-1. (July 14, 2016 Order, 3

**~~** 3- 4.) This Order also extended the deadline for cmnpleting general discovery from August 30. 2016, to Septetnber 16, 2016.

**(!d.~** 6.) On July 21, 2016, the FAA served the Respondent, Felts Field Aviation, with a privilege log and a supplemented Exhibit C-1. On Septen1ber 13,2016, the Respondent served the FAA with a Letter expressing dissatisfaction with the July 21, 2016 materials, and rei-requesting an "unredacted copy" ofthe FAA's Enforcement Investigative Report ("EIR"). On September 16,2016,the Respondent filed the Respondent's Motion to Con1pel ("Motion").On September22,2016, the FAAfiled the Complainant's Oppositionto Respondent's Motion to Compel ("Opposition"). On September 30, 2016, the Respondentfiled the Respondent's Reply to Complainant's Oppositionto Respondent's Motionto Compel ("Reply"). On Noven1ber 1 0, 2016, the parties convened by telephone for a Motion Conference. An1ong other matters discussed duringthis Motion Conference, the Court provided the parties with certainreference n1aterial and inforn1ation regardingthe scope ofthe attorney work product privilege. TheMotion Conference wasthen continued, by courttnotion, to Thursday, Decen1ber 15,2016, at 1:30 p.n1. Eastern time. (Nov. 14,2016 Order, 1,-r 1.) OnNovember21,2016the FAA filed the Complainant's Supplemental Response to Respondent's First SetofInterrogatories and Requests for Production ofDocuments ("Supplemental Disclosures"). Among otherthings, the Supplen1ental Disclosures notified the Respondentthatthe FAA was withdrawing Mr. Wells as its designated expert as a witness. The FAA also notified the Respondent that it planned to call FAA Inspectors Sin1one Clinton

**at~d** Shirley French, but solely as "lay"witnesses. On December 8, 2016, the Respondent filed Respondent's Supplen1ental Reply to C01nplainant's Oppositionto Respondent's Motion to Compel ("Supplen1ental Reply").
On December 15, 2016,the parties convenedbytelephone for the continued Motion Conference. Theparties addressedthe Respondent's Motion to Compel. This Courtthen made immediate oral rulings onthe Motion, which included setting specific litigationdeadlines. This written Ordercodifies and supplements the oral rulings contained inthe December 16, 2016 transcript ofthe Motion Conference. A. Overview ofAttorney WorkProduct Privilege As noted by this Courtduring both the November 10, 2016 Motion Conference and the December 15, 2016 Motion Conference (Nov. 10, 2016 Tr. 6:15--21; Dec. 16, 2016 Tr. 42:17- 48:4),there is a bright distinction between the broad pre-decisional "deliberative'' privilege available to anagency whenresponding to FOIA requests, versus any privilege raised by an agency when seekingto protect information from discovery in civil litigation. Agency materials Page 2 of 14

### may be denied from general public disclosure under FOIA standards, yet this same material mightbe disclosed in civil litigation underfederal discovery standards. See, NLRB v. Sears, Roebuck&Co.,421 

### U.S.l32, 149(1975); F.T.C. v. Grolier, 

### /nc.,462U.S.19,25-28(1983). Thus, when discussing the scope ofdiscovery ofan agency's investigative docun1ents during adversarial FAA civil penalty litigation, the FAA's assertion of"deliberative"privilege in this
case is more accurately referenced as the attorney work product privilege. See MarkS. Wallace, Discovery ofGovernmentDocuments andthe qfficialJnfbrmation Privilege, 76 Colum. L. Rev. 142, 152-144 (1976); 

### JeffA. Anderson, The Work Producl Doctrine, 1 

### 68 Cornell L. Rev. 760. 795-796 (August 1983); See e.g., UnitedStates v. Chatham City Corp. 

### 72 F.R.D. 640 (D.Ga. 1976) (investigative reports ofF.B.I. agents prepared in anticipation oflitigation are qualified attorney work product). This Courthas addressed this issue in other cases, and hereby incorporates by reference the lengthy discussion and analysis about the attorney work product privilege inAirborneMaint. Eng'gServs., 

### FAA-2013-0291, OrderDenying Respondent's Motion to Compel Discovery ofFAA Attorney's Work Product (Aug. 19, 2014). B. Overview ofDiscovery Dispute 

### In the instant case, the prin1ary underlying discovery dispute involves the redacted parts ofSection B ofthe FAA's Enforcen1ent Investigative Report ("EIR"), which is a total ofsix (6) pages, but contains tnultiple redactions on pages 2 through 6. (Mot., Exh. A.) These redacted pages purportto containthe pritnary factors that the FAA investigative personnel considered in calculating and recommending a proposed civil penalty for the alleged violations.2

1The Work ProductDoctrine is a comprehensive study ofthe history and development ofthe work product doctrine and the application ofRule 26(b)(3), from common law to 1983 (the date ofpublication). Whilenot fully comprehensive for today's cases in 2014, it remains a valuable resource for practitioners, and is cited frequently in this Order.
2 For example, according to FAA Order 2150.38 Chapter 8. when the FAA investigates and subsequently alleges a violation, the FAA personnel "analyze whether each ofthe factors in Chapter 7, paragraph 4 or Appendix C is relevant and applies to the case." (FAA Order 2150.38 Chap. 8, 8-2 (b)(2).) The.fcJcts that the FAA should consider include, but are not limited to, the following: I) the nature ofthe violation (including how safety was affected); 2) whether the violation was inadvertent and not deliberate; 3) the certificate holder's level ofexperience: 4) the use of the ce11ificate; 5) the violation history; 6) the action taken by the employer orother authority; 7) decisional law; 8) the alleged violator's ability to absorb the sanction; 9) the consistency ofthe sanction; I0) whether the violation was reported voluntarily; and, 11) any corrective action taken by the alleged violator. (!d.). In addition, the FAA is also supposed to utilize the guidance in Chapter 7 to determine ifthere are any mitigating or aggravating factors. (td.) Page 3 of 14In its discovery requests, the Respondent sought full disclosure ofan unredacted EIR overthe FAA's objection. In response, the FAA clai1ned that the redacted portions ofthe EIRcontained "deliberative" fact, mental impressions, and opinionby FAAinvestigative personnel. The FAA objectedto disclosure onthe groundsthatthis 1naterial was preliminary investigation work protectedbythe attorney work productprivilege (!d.). The Respondent's Septen1ber 16,2016Motion requested an un-redacted EIRbased on the argument that the EIRwas "essentiallythe research product ofthe FAA'sexpert witness" Inspector Wells. It was undisputed that Inspector Wells was an FAA en1ployee who had not conducted the FAA's prelin1inary investigation. Instead, he had reviewed the entire EIR and adopted it by his signature as a supervising FAA Inspector. The FAA identified FAA Inspector Wells as its only expert witness. The Respondent argued, therefore, that all facts and opinion contained in the EIR (whichhad been authored by FAA Inspector Simone Clinton) were disclosable, since the EIR served asthe sole basis ofFAA Inspector Well's expe11 opinion. (Mot. 2-3.) Subsequently, onNovember21, 2016 the FAA filed its' Supplemental Disclosures, which notifiedthe Respondent thatthe FAA was withdrawing Inspector Wells as its designated expert witness. The FAA also notified the Respondent that it would not be calling any expert witness in the case. Instead, the FAAre-asserted that it would call FAA Inspectors Simone Clinton and Shirley French, but only offer their testimony as

**~·lay"** witnesses. 3 (Supp. Disci., 1- 2.) Shortlythereafter, onDecember 8, 2016,the Respondent filed its Supplemental Reply, in which it argued thatthe EIRwas still fully disclosable, despite the FAA's withdrawal of

3 During the December 15, 2016 Motion Conference, the Court inquired about the FAA's identification oftwo FAA Inspectors as "lay witnesses", and expressed concern about the FAA's assertion that these two FAA Inspectors would not proffer testimony involving either FAA Inspector's specialized training or expertise. (Dec. 15. 2016 Tr. 9- 21.) It should be emphasized that in the year 2000, in response to a split in cou11 rulings, as well as the discussion and decision in Asplundh

**M,l~.** Div. v: Benton Harbor Engineering, 57 F.3d 1190 (3rd Cir. 1995), the Advisory Committee for the Federal Rules ofEvidence amended Rule 70I to limit lay opinion testimony to common kn·owledge mauers. Fact testimony "cannot be admitted under Rule 70I ifit is based on scientific, technical, or other specializedknowledge within the scope ofRule 702." (3-70I Federal Rules ofEvidence Manual, §70 1.02) (emphasis added). See also, Fed. R. Fed. P. 701 Advisory Committee Notes, 2000 Amendments. Page 4 of 14Inspector Wells as an expert witness and its asset1ion that Inspector Clinton would not proffer any experttestin1ony. 

### C. Limited Access to }?

### AA Employee ExpertWitness Data Pursuantto 14 C.F.R. 

### § 13.220(e), a party is entitled to discover "facts known" by an expert, orthe "opinions held" by an opposing party's proffered expert. It is also well-established in federal civil litigationthatpart ofthe data any proffered expertmay consider in fanning an opinion also includes the opinions ofothers. 

### The Work ProductDoctrine at 799-800; 

### see also, Fed. R. Fed. P. 703, and Fed. R. Fed. P. 703 Advisory Con1mittee Notes, 1972 (one ofthe
sources ofdata an expert n1ay review and consider is the opinions ofother experts). In support ofits asse11ion that the EIR re1nained fully disclosable afterthe withdrawal by the FAA ofInspector Wells as an expert, one ofthe cases the Respondentproffered was 

### S.E.C. v. 

### Koenig, 557 F.3d 736 (7th Cir. 2009). In 

### Koenig, the defendant had identified an economist as an expert witness. This expertprepared a report which was disclosed in discovery. The expert was also deposed by the plaintiff, the opposingparty. Attrial, however, the defendant chose not presentthe expert's report ortestimony. Instead, the plaintiffintroduced the economist expert's testimony viathe video ofhis deposition, because it was helpful to the plaintiff. The 

### Koenig Court found that even though the defendant had withdrawn the economist expert as a witness, the expe11's report and deposition testin1ony was fully available to the plaintiffto utilize, in part because once the defendant identified the econon1ist as an expert witness, he (and his expert report) was available for either side to utilize: A witness identified as a testimonial expertis available to either side; such a personcan'tbe transformed after the reporthas been disclosed, and a deposition conducted, to the status ofa trial-preparation expert whose identity and views may be concealed. Disclosure ofthe report ends the opportunity to invoke confidentiality. 

### Koenig, 557 F.3d at 744 (internal citation 01nitted); Mot., 4-5. In this case, the Respondent en1phasized that since Inspector Wells has already been identified as an expert witness, with parts ofthe EIR (upon which Inspector Wells based his expert opinion) disclosed, the FAA's withdrawal ofInspector Wells as an expert witness was
Page 5 of 14itTelevant. Since Inspector Wells had been identified, then the EIR data upon which he had intended to rely was fully available and should be disclosed without redaction for the Respondent to utilize. The Respondent's argument is notpersuasive. There is a sharp distinction to be made between

### Koenig and the instantcase. Pursuantto the FAA'sRule.s ofPractice, the Respondent is prohibited from calling any FAA en1ployee as an "expe11 or opinion witness." 14 C.F.R. § 

### 13.227. Similarly, the FAA is prohibited from calling any Respondent etnployee as an "expert or opinionwitness."4 (!d.) Because 14 C.F.R. 

### § 13.227 prohibits the Respondent from ever independently calling Inspector Wells (an FAA employee) as an expert oropinion witness, the Koenig Court's analysis that a patiy's expert witness identification "ends"the confidentiality accorded to an undisclosed "trial preparation expert'' (and expeti report), is not applicable here. Instead, once the.FAA withdrew its employee, Inspector Wells, as an expert witness, his testimonial opinion and the data supportinghis expert opinion were no longer "available"to the Respondentto utilize. Therefore, the FAA is not required to disclose the unredacted EIR as the "facts known, oropinions held" by Inspector Wells (14 C.F.R. § 13.220(e)) afterthe FAA withdrew its identified expert en1ployee, FAA Inspector Wells, as an FAA expert witness. 

### D. Redacted EIRData Qualifies as Attorney WorkProduct The next question is whetherthe redacted portions ofthe EIRqualify as atton1ey work product.5 In this case, the redacted EIR data does qualify as attorney work product. 1. BriefSumtnary ofthe·FourTypes ofDiscovery Material
In the adversarial systen1, there are four broad-based types ofmaterial that parties seek to obtain from each other in preparation for trial: "facts," "attorney ordinary work product," "attorney'sopinion workproduct," and "legal theories." Work ProductDoctrine at 788-89. Of

4 It is unclear from the language of 14 C.F.R. § 13.227 whether such FAA or Respondent employees could still be called by the opposing side as lay fact witnesses. 5 The FAA objected to disclosure on the grounds that the contents ofthe redacted portions ofthe ElR was protected underthe attorney work product. (Dec. 15, 2016 Tr. 48:3-4.) Page 6 of 14these four types ofmaterial, facts 6 and legal theories 7 are freely discoverable, !d. at 799, whereas an attorney's "ordinary" and "opinion'' work product receive ce1iain protections fron1 discovery, 

### !d. at 763-64. The ren1ainder ofthis section will address only attorney work product materials, which are at issue in this case. 2. Attorney's "Ordinary" Work Product An attorney's "ordinary" (or "shell") work productis the full sum ofan attorney's work. Work ProductDoctrine at 789. Ordinary work product includes an attorney's "interviews, statements, memoranda, correspondence, briefs, n1ental itnpressions, personal beliefs, and ·countless othertangible and intangible" materials. !d. at 791 (quoting Hickman, 329 U.S 495 at 508). It also includes "investigative reports," or "inter- and intra-office n1emoranda of goven1ment agencies, ifthe 1nen1oranda are prepared in anticipation oflitigation." Work Product Doctrine at

**795~** See UnitedStates v. Nobles, 422 U.S. 225, 238-39 (I975) (Rule 26(b)(J) protects documents prepared by orfor a patiy, as long as they were prepared in anticipation of litigation). In general, Rule 26(b)(3) requires three (3) tests to be satisfied before n1aterials n1ay be classified as an attorney's ordinary work product. The 1naterials must be:

a. "documents andtangiblethings;" b. "prepared in anticipation oflitigation orfor trial;" and c. "by or for anotherparty or by or for that otherparty's representative." Wright & Miller, supra, §2024. It should be emphasized, however, that the work product doctrine is not "an umbrella that shades all materials prepared by a lawyeroragent ofthe client." 23 Atn. Jur.2d §44 (2014).

6 "Facts" are actual physical circumstances in reality (e.g., objects, behavior, deeds, orevents). Facts, when segregated from othertypes ofdiscoverable material, are not protected. They are always discoverable, often by voluntary disclosure, or by interrogatory or deposition. Work ProductDoctrine at 789.
7 "Legal theories" are the legal principles upon which a pm1y intends to rely. Work Product Doctrine at 784-86 at 838. Discoverability: Legal theories are not protected as work product, and are usually discovered through pleadings orthrough interrogatories and requests for admission. /d. at 838. Essentially, legal theories are "discoverable only after opposing counsel has done the preliminary work the adversary system seeks to encouragenarrowing issues and recognizing the importance ofparticular facts." /d. at838.
Page 7 of 14Instead, it applies only to documents a party has assembled, not tofacts learnedfron1 those docun1ents. 

### Jd



### !d. Forexample, the doctrine does not protect factual infon11ation that a lawyer obtains when investigating a case; the work product concept furnishes no shield against discovery, by interrogatoriesorby deposition, ofthe facts that the adverse party's lawyer has learned, orthe persons fron1 whom he or she has learned such facts, orthe existence or nonexistence ofdocmnents, even though the documents thetnselves n1ay not be subject to
·discovery

Thus, even ifthe court classifies n1aterial as an attorney's ordinary work product_ facts contained in an attorney's ordinary work product n1ay still be isolated and discovered. 1¥ork ProductDoctrine at 789; Wright & Miller, supra,§ 2024; 23 Am. Jur.2d 

### §44 (2014). 3. Attorney "Opinion" Work Product An attorney's "opinion" work product is distinct fi·om opinions contained in an attorney·s ordinary work product n1aterials. Work Product Doctrine at 817. In contrast to anattorney's ordinary work product, an attorney's opinion (or "core") work product is the attorney's thought processes. 8 Work Product Doctrine at 791; Wright & Miller, supra. § 2026. 

### It is the "n1ental impressions, conclusions, or opinions ofthe lawyer." WorkProductDoctrine at 793. Opinion workproduct includes an attorney's legal strategy, such as his intended lines of · proofand cross-examinationplans. Itencompasses an attorney's evaluation ofthe strengths and weaknesses ofhis case and the inferences he has drawn fron1 interviews of witnesses. A counsel's ordering offacts and his tnarshaling, aligning, and indexing of empirical dataand docun1ents is also given itnn1unity from discovery. Even a mere compilation offacts tnay be protected under rule 26(b)(3) ifit ref1ects an attorney's n1ental impressions. 

### !d. at 818-819 (citations on1itted).

8 "Thought processes" have also beencalled "intangibles." For example, the lower court in Hickman v. Taylor described "intangibles" as: "the lawyer's use ofhis tongue, his pen, and his head, for his client." Work Product Doclrine, at 775, quotingHickman v. Taylor, 153 F. 2d 212, 223 (3d Cir. 1945),**c~fl'd** on othergroundY, 329 U.S. 495 ( 1947).
. Page 8 of 14An attorney's "opinion workproduct" also includes the "mental impressions, conclusions, opinions, orlegal theories of"otherrepresentative[s] ofa party" regarding the litigation.

### /d. at 817;

### AccordWright & Miller, 

### supra, §§ 2019 and 2026. [T]he [work product] doctrine is an intensely practical one, grounded in the realities of litigation in ouradversary system. One ofthose realities is that attorneys often n1ust rely onthe assistance ofinvestigators and otheragents in the con1pilation ofn1aterials in preparation for trial. It is therefore necessary that the doctrine protect n1aterial prepared by agents for the attorney as well as those prepared by the attorney hin1self. 

### Nobles, 422 U.S. at 238-39. It should be noted, however, thatthe mere presence ofmental impressions, conclusions, and legal theories within docun1ents held by a party's attorney is not determinative ofa privileged status. 

### Work ProductDoctrine at 825. Nor is discovery ofan atton1ey's opinion work product (which includes the opinion ofattorney investigators) absolutely barred from discovery. Instead, individual cases turn on theirparticular circumstances, and should be viewed with a "nuanced approach to the anticipation of- litigation prong ofwork- -product analysis." Wright & Miller, 

### supra, 

### §2024. Thus, opinions, impressions, or othermatters in an attorney's ordinary work product n1ay be discoverable. 

### WorkProductDoctrine at 800 (etnphasis added). 4. Redacted EIR Data Qualifies as Attorney Work Product In the instant case, the redacted EIR data in dispute was c01npiled by FAA investigators priorto the FAA filing formal charges in a legal enforcen1ent action. The redacted EIR data includes both recorded fact and opinion material. Itis datathatthe FAA attorney and other FAA personnel review

### priorto filing a fonnal civil penalty action. The FAA Investigator's fact and opinion material, contained in the EIR, n1ay be adopted, modified, or abandoned prior to the filing ofa legal enforcen1ent action. Thus, because an FAA's investigator's investigative work is preliminary to a regulatory legal enforcement action and subject to review and modification (or abandomnent), it qualifies as protected under an attorney ''work product" privilege. E. Discovery ofthe

**I~"'AA's** Evidentiary Data Regarding the Sanction The primary questions presented in FAA civil penalty actions area "whetherthe violation orviolati<?ns alleged occurred, and ifso, the appropriate civil penalty to be assessed."

### American
Page 9 of 14

### Airlines, Inc., FAA OrderNo. 89-0006 (Dec. 21, 1989); 

### see also,Airborne Main!. & 

### Eng 'g Servs., FAA-2013-0291, Order at 7 (May 2, 2014). As the complainingparty, the FAA has the burden to produce evidence to prove both its alleged violations and the**appropria~eness** ofits proposed civil penalty amount. 14 C.F.R. § 13.224; 

### SchumanAviationCo. Ltd., FAA OrderNo. 2016-2 at 2 (Aug. 24, 2016). As the defending party, the Respondent has a right to discover the FAA's fact and opinion evidence regarding the FAA's case-in-chief, priorto the hearing. It is well-established that "information

·essential to ajustdecision" should always remain available to the litigating parties. Work



### ProductDoctrine at 799. This 1neans thatthe evidence the FAA knew about and considered in support ofthe alleged violations in its Cmnplaint, as well the evidencethat the FAA considered
or relied upon in calculating the proposed civil penalty, is disclosable to the Respondent. In the instant case, the record reflects that the Respondent has been seeking disclosure of the FAA's sanction-related information (purportedly contained in the redacted part ofthe EIR) sincethe Respondent served the FAAon October 13, 2015 with the Respondent's First Set of Discovery Requests. On July 8, 2016 (i.e., eight (8) n1onths after receipt ofthe Respondent's discovery requests) the FAA faxed to the Respondent its Discovery Response. The Respondent then sought Court assistance to obtain requested discovery thatthe FAA had failed to disclose. OnJuly 14, 2016.this Court ordered the FAA to provide the Respondent with either a n1odified redacted copy ofthe EIR, ora privilege logjustifyingthe redactions. (July 14,2016 Order, 3**~** 3.) One month later, onAugust 9, 2016, the Respondent sent a "detailed letter" to the FAA renewing its discovery request for disclosure ofall facts the FAA "investigative personnel" utilized in calculatingthe FAA'sproposed sanction. Such facts are generally referenced in the redacted EIR's paragraph headings regarding the FAA's sanction evidence. (Dec. 16,2016Tr. 34:1-37:18; and 58:16-59:8;) According to the Respondent, the FAA responded to the August 9, 2016 letter by refusing to provide any further discovery on**tl~e** preliminary sanction evidence (contained in the EIR) on the grounds ofprivilege. {ld., at 35:5.) The FAA did not, however, provide any other infom1ation about the facts and opinion it had ultimately utilized in calculating the proposed $11,000 civil penalty contained in its Con1plaint. Thereafter, with discovery Page 10 of 14regardingthe FAA's sanction evidence still unresolved, the Respondent filed its Septen1ber 16, 2016 Motionto Compel. 

### It wasundisputedthatthe Respondent's August 9, 2016 letterrequestedthe "facts and circumstances" considered by FAA "investigativepersonnel" in proposing the sanction. (Motion, Ex. C, 1.) The Respondent's phrase "investigative personnel" was problen1atic (as this Court noted duringthe December 

### 16, 2016 Motion Conference), since such preliminary recon1mendations by investigative staffmay ormay not be ultin1ately utilized and adopted by the prosecuting FAA attorney. (Dec. 16,2016Tr. 51:12-52:10.) Thus,·because an FAA's investigator's investigative work is preli1ninary to a regulatory legal enforcement action and subjectto review andmodification (or abandonment), it qualifies as protectedunderan attorney "workproduct"privilege. However, once a decision is made by the FAA attorney to allege a regulatory violation andpropose a sanction, whatever facts and data and opinions actually utilized bythe FAA to support orexplainthe allegations in its Complaint are disclosable. This information may either be disclosed by the FAA by profferingunredacted portions ofthe EIR (ifsuch information is contained in the EIR) orthe FAA may disclose other information · not contained in the EIR which it considered. Whereverthe infon11ation is located, there should be no doubt that such evidentiary material is fully disclosable. Duringthe December 16, 2016 Motion Conference, the FAA stated that it was not opposed to providingto the Respondentthe specific facts and circUinstances suppm1ing the FAA's determination arid calculation ofthe proposed sanction. It hadnot done so, however, because it did notrecognize the Respondent'sAugust 9, 2016 follow-up letteras a proper request. Instead, it was waiting for the Respondent to serve it with "a separate interrogatory." (!d., 40:11-41 :9.) Notably, the FAA did not deny that it knewthe Respondent wanted the inforn1ation. The FAA also did not discuss or reference the repeated atten1pts by the Respondent, dating back to October2015, to obtainthe inforn1ation from the FAA. Based onthe record ih this case, the FAA's assertion that it needs a ''separate interrogatory" fron1 the Respondentbefore it discloses its sanction evidence is without n1erit. The record is rife withthe Respondent's frustrated attempts to seek information from the FAA Page 11 of14about its sanction calculation, as well as the FAA's continuingrefusal to provide any fact or opinion data about it, onthe grounds that it is all "privileged." It should be noted, therefore, that most ofthe specific facts and circumstances considered by the FAA in calculating its proposed sanction in any

**c~vil** penalty proceeding is usually presented by the FAA in its case in chiefat hearing. 

### It is basic evidence that virtually every respondent (both represented andprose) seeks in FAA civil penalty cases. Further, it is evidence that is often infonnally shared by the FAA with respondents during private settlement negotiations. It is not infonnation that should be deliberately held back by the FAA in the absence ofa "separate interrogatory" orbecause the respondent's discovery request is imperfectly phrased. 9 Once the FAA has been notified that a respondent seeks this inforn1ation, it should act promptly to disclose the tnaterial. The Respondent's Motionto compel the FAAto disclose to the Respondent, in detail, the specific facts and circumstancesthe FAA considered in its calculation ofthe proposed 

### $1 LOOO civil penalty shouldbe granted. F. Respondent's Brady Argument Finally, and briefly, this· Cowi declines to apply the Brady Rule to FAA civil penalty actions. (Mot. Compel, 3-4; Reply, 1 0; Suppl. Reply, 6-7.) In 

### Brady v. 

### Maryland 373 U.S. 83 (1963), a defendant admitted his participation in a murderbut claimed that his separately,tried associate did the actual killing counsel. The defendant's attorney requested that the prosecution allow him to exan1ine the extrajudicial statements ofthe defendant's associate. Theprosecutionprovided several statements, but withheldthe statements inwhichthe associate admittedto committingthe actual homicide. The defendant did notknow aboutthis withholding ofevidence until after he had beentried, convicted, and sentenced, and after his conviction had been affirmed. On appeal, the Supreme Court held that "the suppression by the prosecution ofevidence favorable to an accused.upon

9 Indeed, the FAA might consider voluntarily providing its sanction fact evidence to every respondent, as part ofits early initial disclosures. This would effectuate earlier settlement discussions, reduce costs oflitigation for both parties, and streamline any outstanding discovery exchange. Page 12of 14request violates due process where the evidence.is material eitherto guilt orto punishn1ent, irrespective ofthe goodfaith orbad faith ofthe prosecution."

### Brady, 373 U.S. at 87. In the case herein, the Respondent argued that "this is not a crin1inal case [but] Due Process is still required since it is an administrative adjudication with the possibility ofthe deprivation ofproperty interests. (Mot. Compel, 4 (citing 

### Bd. OfRegents of State Colleges v. Roth, 408 U.S. 564 (1972). The Respondent's argun1ent ignores subsequent cases that have found that the Brady Rule is a "rule ofcriminal law'' 

### Perez v. Wallis, 77 F.Supp.3d 730, 747 (N.D. Ill. 2014), and the Supretne Court has "never stated that the Brady rule applies in civil cases." 

### Demjanjukv. Petrovsky, 10 F.3d 338, 353 (6th Cir. 1993). In cases "where what was at stake in the underlying proceeding was 'n1oney and reputation, not whether someone [would] be locked away,' courts, includingthe Fourth Circuit, have uniforn1ly held that Brady is inapplicable."

### Stultz v. Va. Dep'tofTran\p.,No. 7:13CV00589, 2016 WL 4491714 at *16 (W.O. Va. Aug. 26, 2016) (quoting 

### UnitedStates v. Projecton Government Oversight, 839 F.Supp.2d 330, 343 (D.D.C. 2012) and citing a collection ofcases). FAA civil penalty actions are not akin to the exceptional circun1stances in which courts have extended the Brady Rule. 

### Demjanjuk, 10 F.3d 338 (denaturalization and extradition); 

### UnitedStates v. Edwards, 777 F. Supp. 2d 985 (E.D.N.C. 2011) (civil commitmentfor sexual offenders); 

### EEOC v. LosAlamos Constructors, Inc., 382 F.Supp. 1373 (D.N.M. 1973) (footnote in order directing govermnent to provide discovery). Nor has the FAA adopted its own version of the Brady Rule. Compare 17 C.F.R. 

### §201.230(a)(3) (SEC); 12 C.F.R. 

### § 1 081.206(a)(2) (CFPB). Therefore, this Court will not applythe Brady Rule as grounds for the FAA to provide an unredacted EIR. 

### G. Conclusion Havingreviewed the case file, all pleadings and motions, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised;

Page 13 of 14

### IT IS HEREBY ORDERED: 1. The Respondent's Motion to Compel is granted in pat1. On or before January 17, 2017, the FAA shall specifically disclose to the Respondent how each ofthe "Factors Affecting Sanction" headlined in the EIR, as well as any other data it considered pursuant to FAA Order 2150.3B, had been considered in the FAA's final detern1ination ofthe proposed 

### $11,000 civil penalty in its Complaint

### (see, Dec. 

### 16,2016 Tr. 

### 64:11-67:6).

2
. The Respondent's Motion to Compel the redacted portions ofthe EIR (i.e., Exhibit A. of the Respondent's Motion to Compel) is denied. In addition, an in comero review ofthe redacted portions ofthe EIR is denied.
3. The Hearing, currently set for March 

### 1. 2017 March 2, 

### 2017, is cancelled
. The parties shall reserve tlie week ofJune 19, 2013- June 23, 2017 as a possible new Hearing date.
4. The parties shall appear by telephone on Friday, February 3, 2017, at 1:00 p.m. Eastern time for a Scheduling Conference. The parties shall be prepared to schedule exact dates ofthe Hearing and deadlines to file dispositive motions, witness lists and exhibits, written stipulations, and other litigation n1atters. The parties shall access the Court's Conference line by dialing 1-888-278-0296, and when pron1pted, entering access code 5851842. 6. Ifeither party needs clarification or has any questions regarding the procedures contained in this Order, contact Ms. Kelly Ort, Judicial StafTAssistant, at the Office of Hearings (202-366-5121).



### Ju

Attachment: Service List

Page 14 of 14Docket No. FAA-2015-3307 (Civil Penalty Action)**SEI~VICE** 

### LIST- JJY 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--Suite2W1000 1

Ms. Fatin1ah Stokley 

### Complainant's Counsel Federal Aviation Administration Enforcement Division- Western Tean1 P.O. Box 920007 Los Angeles, CA 90009-2007 TEL: 310-725-7112 FAX: 310-725-6816 Mr. Mark J. Conlin Mr. Benjamin 

### L. Wyborney 

### Re.spondent 's Counsel Conlin, Maloney & Miller 421 W. Riverside Ave., Suite 911 Spokane, W A 99201 TEL: 509-624-3020 FAX: 509-623-1650 Judge J.E. Sullivan 

### U.S Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation ONE COPY

1200 NewJersey Avenue, S.E. (El1-310) Washington, DC 20590 TEL: 202-366-5121 FAX: 202-366-7536

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 2WI000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.