## SERVED: APRIL 17,2014 U.S. DEPARTMENT OFTRANSPORTATION

. OFFICE OFHEARINGS WASHINGTON' DC 

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In The Matter Of: AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent ) ) ) ) ) ) DocketNo. FAA-2013-0291

Case No. 2011S0290032

ORDER GRANTING IN PARTAND DENYING IN PART THEFAA'S MOTIONTO COMPELTHERESPONDENT TO ANSWER FAAINTERROGATORY NOS. 2 AND 12 On April 17, 2014, an OrderDenying in Part and Granting in Part the FAA'sMotion to Compel the Respondentto Comply with Notices ofDeposition was filed. Among otherthings, this Order stated that separate Orders would issue shortly on the Respondent's March 11, 2014 Motionto Compel Production and the FAA's March 18,2014Motionto Compel.

A. BRIEFDISCUSSION AND ANALYSIS This briefdiscussion and analysis is limited in scope, and does not address every dispute raised by the parties intheir submitted materials. However, all facts, legal arguments, and legal authority contained inthe parties' motions, responses, and replies have beenread and fully considered. The FAA's March 18,2014Motion to Compel ("Motion") seeks an order compellingthe Respondent to respond fully to the FAA'sFirst Set ofInterrogatories, specifically Interrogatory Nos. 2 and 12. Inresponse, the Respondent objects, citing various grounds in its Oppositionto Complainant's Motion to Compel Production ("Opposition"). Pursuant to 14 C.F.R. S13.220 (b), the parties may serve written interrogatories oneach other. Pursuant to 14 C.F.R. S13.220 (e), a party may discover information that "relates to the claim ordefense ofany party."The language in 14 C.F.R. 13.220 regarding the use and scope ofwritten 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.matterthat isrelevant 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)." Inthe instant case, the FAA served its First DiscoveryRequests upon the Respondent on January 

### 28, 2014 (Motion, 1). OnMarch 6, 2014 the Respondent filed its Responses to FAA's First Discovery Requests ("Responses") (FAA Exh. B). 1. FAA InterrogatoryNo.2 In its March 6, 2014 Responses, the Respondent declinedto answer FAA Interrogatory No.2, onthe grounds thatithadrequested full disclosure ofSection B ofthe FAA'sEIR, and had not yet received it. The Respondent further explained: "Wishing to first see all ofSection B priorto respondingto interrogatory number 2, AMES will not respond to the FAA'srequest at this time." (FAA Exh. B, 2). In subsequent email communications, the FAA and the Respondent also disagreed about the scope ofthe interrogatory's question and requested answer, inthat the Respondent interpreted the questionto involve only one FAA inspector, whereas the FAA asserted thatthe question involved only one document, and included all FAA inspectors involved. (FAA Exh. C). InterrogatoryNo.2 states inpart: "Ifyou assert that the inspector's statements in this matter (inclusive ofrecords of conversation, e-mails, memoranda or other documents), as contained in the EIR

..." (FAA Exh. B, 2). In its Motion, the FAA first asserts thatthe Respondent could notrefuse to respond to the FAA's valid discovery request, onthe 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 ofthe full context ofthe Inspectors using findings priorto commenting uponthem." (Opposition, 4). The Respondent also argued that the court could authorize a delay in discovery inthe interests of justice. (Opposition, 4). While the court certainly could authorize a delay indiscovery 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 scopeofdiscovery received from the Page 2 of5opposing side. "Aparty is not excused from answering discovery because another party has failed to answer discovery." Steven Baicker-McKee, et.al, Federal CivilRulesHandbook, West Publishing (2012) (Rule 26 (d)). It is improper for one party to withhold discovery onthe grounds that disclosure is contingent uponthe opposingparty'sproduction ofdiscovery. (/d.); LandOcean 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 aparty to refuse to answerproperly served discovery requests, on the grounds that the opposing party is failing to comply with disclosure). The proper remedy ifanotherparty fails to answer discovery "is a motion to compel underRule 37, not a refusal by the party to comply with valid discovery requests." Steven Baicker-McKee, et.al, Federal CivilRules 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 ofinquiry in Interrogatory No. 2. It should be noted that as part ofits March 11,2014 Motionto Compel, the Respondent submitted a copy ofthe redacted EIRfor court review. (R. 3/11/14 Exh. 4). The redacted copy ofthe EIR is not signed, dated, or endorsed by any FAA Inspector. The EIR "Statementofthe 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 ofthe 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 ofbothInspector Evans and a FAA Inspector Gasche are referenced, but neitherInspector appears to be making or endorsing any statements contained inthe 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), thatreferences documents that appearto have been authored by InspectorEvans (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 reliefthat may be offered by this court is limited. Assumingthatthe EIRis authored by FAA Inspector Lipinski, then the EIR is a statement offered bythat one FAA Inspector. While there may also be hearsay statements contained inthe redacted EIR, orthat may be attached to the EIR upon which Inspector Lipinski relied upon, those additional statements have not been adequately identified orreferenced in the request for information contained inthe FAA's Interrogatory No. 12. Thus, the Respondent is

Page 3 of5obligated to answer Interrogatory No.2 based on the fact that the EIRis the authored work representing one inspector's statements, i.e., Inspector Lipinski. 2. FAA InterrogatoryNo. 12 In regard to FAA Interrogatory No. 12, the Respondent's March 6, 2014 Responses provided a general answerto the FAA'squestion, based on the time frames alleged in the three violations charged against it in the FAA'sJune 20,2013 Complaint. (FAA Exh. B, 7; Complaint). The FAA asserts that this answer was incomplete, and that informationregarding the time period through May 2010 was missing. (Motion, 3-4). Interrogatory No. 12 states in part: "Describe in detail the physical condition ofthe 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 ofthe components at all times material to this litigation (thatbeing August 2009 through May 2010)." (Motion, 3-4). The FAA is mistaken. The Interrogatory simply references the physical condition ofthe aircraft "atissue" in this case. Absent atime frame specified in the Interrogatory, the Respondent mustrely 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 thatthe periods ofSeptember 2009, NovemberDecember 2009, January-February 2010, April2010, or May 2010 are a:t issue. The FAA asserts thatthe 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 courtmight also agree that the Respondent has taken the most conservative reading ofthe Interrogatory. However, the Respondent has a right to read the question and respond to what has been asked, without offering more. Ifthe FAA sought informationthat included a period oftime beyond the time periods charged inthe Complaint, it needed to specify.such an expandedtime period. 

### B. CONCLUSION Pursuantto 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 of5

### ITIS HEREBY ORDERED: 1. The FAA's Motion to Compel the Respondent to answer FAA Interrogatory No.2 is granted inpart. The Respondent is directed to answer Interrogatory No.2, in regards to any statements made by Inspector Lipinski, the author ofthe EIR, in the redacted EIR currently inthe Respondent's possession. The deadline for the Respondent to serve its answer to Interrogatory No. 2 is May 2, 

### 2014. 2. The FAA'sMotionto Compel the Respondent to answer FAA Interrogatory No.2 in terms ofstatements attributedto other FAA Inspectors (i.e., InspectorEvans orInspector Gasche) is denied. 3. The FAA's Motion to Compel the Respondentto supplement its answer to FAA InterrogatoryNo. 12 is denied. 4. A separate Order will issue shortly on the Respondent's March 11, 2014 Motionto Compel Production.

Attachment: Service List

Page 5 of5SERVICE 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-Suite2W1000 1

Mr. Christopher R. Stevenson Complainant's Counsel Federal Aviation Administration ONE COPY

Office ofthe 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 LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-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.