## u.s. DEPARTMENT OF TRANSPORTATIOfl

# E

# cEIV,ED OFFICE OF HEARINGS FEDERAL AVIATIONADMINISTRATION. 

## AUG 2 12013



## .HEARING DOCKET
FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. Docket No. FAA-2012-0477 FAA CaseNo, 20UGL030070 LIBERTY FOUNDATION, Respondent. Judge Sullivan
RESPONSE IN OPPOSITION TO RESPONDENT'S DISCOVERYMOTION After more than six months of discovery, Respondent's Director of Maintenance was made available for deposition and disclosed certain facts that established Respondent's liability for acts of violation intertwined with those charged in the Complaint. Accordingly, the Complaint was amended to reflect the facts disclosed dming discovery. Phrased 

### it in several different ways, Respondent's ensuing motion asks for additional discovery on these subjects. This motion should be denied

- Respondent is already in possession ofthe evidence on these Issues. As an initial matter, one ofthe speculative allegations madebyRespondent in the Motion should be addressed. In particular, Respondent alleges that "It is inconceivable that Complainant just learned ofthese issues as a result ofits deposition ofMr. Schneider." This allegation is not only inaccmate, but rather bizarre in light of the conversation between the undersigned and opposing counsel's immediately after the deposition, dming which we discussed these revelations and opposing counsel represented that even he had not been aware ofthesefacts prior to the deposition. After the deposition opposing counsel expressly stated, ratherapologetically, to the undersigned thathe had been unaware ofthe failure to make a maintenance log entry prior to the June 13, 2011 flight. And when we discussed the possible effect of Schneider's testimony about serving as Director ofMaintenance when the work involved in this
case was performed, opposing counsel specifically questioned the accuracy of the timing provided by Schneider. Itis entirelyunclear why Respondent would, through counsel, insist that the FAA must have known ofthese facts, when its own attorney did not know them, despite having a long-term working relationship with Respondent, 1representing Respondent inthis case, and representing Schneider in the prior certificate action arising out ofthe same factual matters? Further, Respondent had, through counsel, previously presented to the FAA an "expert" report opining thatthe welding had notfailed priorto the June 13, 2011, fire- either opposing counsel
was unaware ofthe failure ofthe welding, or else he lmowingly presented false evidence to the FAA in discovery. In short, Respondent's complaint that the FAA should have known ofthese facts, whenthey were apparently not even disclosed to its own attorney, is absurd. However, all ofthis informationwas knownto Respondent's Executive Director/ChiefPilot, Ray Fowler, who personally signed Respondent's discovery responses - if Respondent wanted this information addressed inthe litigation priorto Schneider's deposition, it should have disclosed it sooner. However, while the FAA addresses the above for the sake ofaccuracy, it does not affect the actual issue raised in the Motion, which is whether additional time is necessary to conduct additional discovery, or whetherthe FAA should be ordered to produce the evidence upon which it relies. No such time is necessary because all discovery has already been conducted, and all

1For example, the exemptionthatpermitted Respondentto operate duringthe time frame atissue inthis case was issued to opposing counsel. 2Respondentnotes thatthe FAA has had access to the applicable log book entries. This is true, butirrelevant. No log book entry disclosedthe information that supports the amendmentto the complaint.evidence has been produced. Indeed, the three new aspects added in the Amended Complaint
were added becausetheywere all matters thathad beenconclusively addressed in discovery. The Amended Complaint added three new elements (1) N390TH was not in a condition for safe operation after the February 2011 alteration; (2) no maintenance log entry was made for the June 13, 2011 repair before the June 13, 2011 flight; and (3) Respondent is liable for the underlying maintenance allegations. Each ofthese allegations is based on anewfact, and each of these facts was admitted by Schneider during his deposition. First, Schneider admitted that the February 2011 alteration caused the June 2011 fuel leak. Second, Schneider admitted that no maintenance log entry was made priorto the June 13, 2011 flight. Third, Schneider admittedthat he was Respondent's Director ofMaintenance at all relevanttimes. There is little else to add. Respondent alleges two broad issues on which he is entitled to discovery. There is no further discovery to behad on any ofthese subjects. First, Respondent asserts that it is entitled to discovery regarding the extent of Schneider's authority as Director of Maintenance. This suggestion is rather odd, given that this is information that Respondent already has in its possession

- why would Respondent need to propound discovery requests to the FAA about its relationship with its own Director ofMaintenance? Itis also worth noting that Respondent's first affirmative defense inthis case is that it is notresponsible for evenits own operational violations because it relied on Schneider as an outside certificated mechanic. Any information pertinent to the Director of Maintenance issue was already pertinent to that affirmative defense. Further, Respondent already addressed Schneider's revelation in discovery

- for example, in the deposition of Respondent's Executive Director, which took place the day after Schneider's admissions, the Executive Director spontaneously held forth on the role of the Director ofMaintenance, and opposmg counsel asked the Executive Director specific questions about Schneider'spositionwithRespondent. Second, Respondent asserts that it is entitled to know what evidence, witnesses, and documents the FAA will use to support these new allegations. Rather than simply filing an Amended Complaint without any explanation, which the FAA could have done, the undersigned went to great lengths to explain exactly what the basis for the additional allegations was - the evidence disclosed by Schneider during his deposition. There is nothing further to disclose. The fact that the February 2011 alteration caused the June 2011 fuel leak is established by Respondent's then-Director ofMaintenance, who performed both the February 2011 alteration and the June 2011 repair, admitting that the cause ofthe June 2011 fuel leak was a failure inthe February 2011 welding. The FAA had already identified four expert witnesses to testify about the aircraft's unairworthiness after the February 2011 alteration

- the same four will still testifying that the aircraft was unairworthy, to the extent that any testimony is even necessary. The fact that no maintenance log entry was made until after the June 13, 2011 flight is established by Respondent's then-Director ofMaintenance admitting that he did not make the maintenance log entry for the June 13, 2011 repair until after N390TH had been lost during the June 13, 2011 flight. The fact that Respondent's then-Director ofMaintenance was Respondent's Director of Maintenance is established by the Respondent's then-Director of Maintenance admitting that fact- as well as confirmation ofthis fact atthe subsequent depositiontestimony of Respondent's ChiefPilot/Executive Director and Respondent's prior Director ofMaintenance, both ofwhich were attended by opposing counsel. Thatthere is nothing leftto disclose on this front is further emphasizedby areview ofthe FAA's summary judgment motion. That motion attaches extensive evidence, but every singledocument is one that was previously disclosed and every single affidavit is signed by a witness previously disclosed and deposed. Respondent has failed to identify any issue on which additional discovery is necessary or appropriate. The additions to the Complaint are straightforward and, while they are new to the Complaint, they are not new to this litigation, but merely a recitation offacts already covered during discovery, andthe legal consequences thereof. Resolution ofthis case should notbe further delayed. No further discovery is required for Respondent to be aware ofthe evidence supporting the additions to the Complaint- the contents of Schneider's deposition were known to Respondent before the Amendment, they were identified inthe Amendment, and theyhave been reiterated here.
WHEREFORE, the FAArequests that Respondent's motionto reopen discovery be denied.

ittedthis 16th day ofAugust, 2013.

CHRISTOPHER R. STEVENSON Attorney Office ofthe Regional CounselCERTIFICATE OF SERVICE I hereby certifythatthe foregoing FAA'sResponse to DiscoveryMotionwas sent: Original and one copy viacertifiedmail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: HearingDocket Clerk, AGC-430 WilburWrightBuilding- Suite 2Wl000 One copy viacertifiedmailto: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 StuartA. Goldstein, P.A. 9350 SouthDixie Highway, 101hFloor Miami, FL 33156 Facsimile: (305) 670-7065 

# &**[}li)~fXLf**u DONNAST

## ~\ Legal Assistant Office ofthe Regional Counsel


### .t.UG 16 Dated