In The Matter Of: 

## SERVED: February 19,2016
U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2014-0867 BIRMINGHAM FLIGHT CENTER, INC. 

### ) ) ) ) ) ) CaseNo. 2012S0090053 Respondent

ORDERSTRIKING THE RESPONDENT'S RESPONSE AND DENYING THE FAA'S MOTION TO COMPEL On September 1, 2015, an Order Granting the Motion to Amend, Continuing the November 2015 Hearing to September 2016, and granting Other Reliefwas filed

. 

# . On October 13, 2015 the FAA filed a Motionto Compel. ("Motion"). This Motion was accompanied by a Good FaithDeclaration, as previously directed by the Court. OnNovember 13, 2015 the Respondent, Birmingham Flight Center, Inc., filed the Respondent's Response to the FAA's Motionto Compel ("Response"). OnNovember 18,2015 the FAA filed a Reply in Support ofMotionto Compel ("Reply"). As part ofthis Reply, the FAA moved to strike the Respondent's November 13, 2015 Response onthe ground ofuntimeliness. 

### A. Short Summary ofDispute OnApril 20, 2015 the FAApropounded seven (7) interrogatories to the Respondent. On July 7, 2015, after newcounsel took over the FAAprosecution, the FAApropounded an additional fifteen (15) interrogatories to the Respondent, for a total oftwenty-two (22) interrogatories_! On August 1, 2015 and August 21, 2015 the Respondent servedresponses to the

1 These additional interrogatories were not sequentially numbered from the initial interrogatorypacket. The record reflects thatthe FAA propounded its second set ofinterrogatories before realizingthatthe first sethadpreviously been served by former counsel. As a result, some ofthe interrogatories are identified bythe same number (i.e., InterrogatoryNo. 1). For example, the FAA complains that the Respondent asserts it already answered Interrogatory No. 1 with the responses it gave to the "former interrogatory #1". (Motion, Ex. D, 1.)FAA interrogatories. 2 (Motion, 1.) The FAA alleges that the Respondenthas failed to respond, or adequately respond, to the following nine (9) interrogatories: 1) April20, 2015 InterrogatoryNo. 2; and, 2) July 7, 2015 InterrogatoryNos. 1, 2, 4, 6, 7, 8, 9 and 11. 

### (!d. at 5). As part ofits initial response to the FAA, the Respondent citedto 

### Hilt v. SFCInc., 170 F.R.D. 182, 186-187 (D.N.M. Kan. 1997), and asserted that the FAA was misusing interrogatories to seek detailed narrative statements on broad issues, in contravention ofthe purpose ofinterrogatories. (Motion, Ex. C, 2.) In its .filed Response, the Respondent asserted that its responses to three (3) interrogatories (i.e., April20, 2016 Int. No.2, and July 7, 2015 Int. Nos. 1 and 11) were sufficient, and the FAA's Motion was not supported by law. (Resp. 1-4). The Respondent asserted that its responses were proper to four (4) interrogatories (i.e., July 7, 2015 Int. Nos. 2, 7, 8, and 9), and thatthe FAA's request for additional information was an "unduly burdensome request" that was not favored by the courts. (Resp. 4-5.) The Respondent asserted that its response to the July 7, 2015 Int. No.4 was sufficient, and that the FAA's request "will not lead to discoverable evidence." (Resp. 5.) Lastly, the Respondent asserted that the FAA's July 7, 2015 Int. No.6 was "overlybroad" and could notbe answered without further definition. (Resp. at 6.)


### B. FAA Motion to Strike Response The FAApointed out in its Reply thatthe Respondent had filed a late Response on November 18, 2015, seventeen (17) days afterthe deadline, withno explanation for the late filing. (Reply, 1-2.) The FAA requested that the Response be stricken as untimely. The FAA's Rules ofPractice provide a ten (10) day deadline for response to any motion. 14 C.F.R. 

### § 13.218(d). This is more fuliy addressed inthe December 16, 2015 Order 3 and

### will notberepeated here. Inthe instant case, the Respondentneither sought stipulation from FAA counsel nor an order ofextensionfrom this Court. In the absence ofanyjoint stipulation or an 

### ' order granting an extension ofthe ten day time period, the untimely Response shouldbe stricken.

2 The Respondent didnot objectto the duplication ofinterrogatory questions, but simply referenced its second set of answers backto the first set ofinterrogatories when duplication was noticed.
3 See, December 16,2015 Order Striking The Respondent's Untimely Response To The FAA's Motion To Deem Admitted, And Granting/Denying Other Relief. Page 2 of7 ·

### C. BriefOverview ofLegal Authority Regarding Interrogatories Pursuant to 14 C.F.R. 

### § 13.220(k)(l), a party may propound up to thirty (30) interrogatories to the opposing side without seeking leave from the Court. In addition, "Each subpart ofan interrogatory shall be counted as a separate interrogatory." 14 

### C.F.R. 

### § 13.220(k)(l).

1. Federal Rules "Instructive" in FAA Civil Penalty Cases When the FAA's Rules ofPractice were adopted in 1990, the FAAAdministrator explained that its' own rules regarding discovery, although not as detailed as the Federal Rules of Civil Procedure ("Rules"), were "already roughly parallel.

.. [to] the Federal Rules". 55 Fed. Reg. 27548,27563 (Jul. 3, 1990) (Discussion ofFinal Rule).Thus, adding additional discovery safeguards, as urged by commentators, was unnecessary. The FAAAdministrator also assured the public.that the Federal Rules

- and case law construing them

- wouldbe "instructive" in administrative civil penalty cases, for any discovery disputes or alleged abuses thatmight arise. 

### (!d.) 2. 

### Limitation ofInterrogatories As noted above, the number ofinterrogatories a party may propound incivil penalty cases is limited. TheFAA Administrator generally explained that "[t]hirty interrogatories should normally be sufficientto obtainrelevant information in the typical civil penalty case." 55 Fed. Reg. 27548, 27563 (Jul. 3, 1990) (Discussion ofFinal Rule). Setting a maximum limitation for interrogatories, absent court leave, was "necessary" to "discourage

...unduly burdensome or excessive discovery." (!d.) 

### 3. Reason for Limitation The FAA'srule regarding interrogatories is similar to Federal Rule 33, which allows for twenty-five (25) interrogatories, "including all discrete subparts" without seeking leave from the court.4 

### (Rule 33(1).) Additional guidance regarding why interrogatories have been limited in b.oth FAA cases and in general federal practice may be found in Rule 33, whichwas amended in

4 Both 14 C.F.R. § 13.220(1<)(2) and Rule 33(a)(2) provide that a Court may grant leave to a party to propound additional interrogatories upon motion and proofofgood cause. · Page 3 of71993 to set a maximum oftwenty-five (25) interrogatories per party. l:ri connection

### withthis 1993 amendment, the Advisory Committee explained that setting a limit on interrogatories "reduce[d] the frequenci' ofinterrogatory use, while at the same time "increas[ ing].:. [its]

... efficiency", especially since much ofthe information previously sought by interrogatories wa,s now disclosable under Rule 26(a)(l)-(3). Rule 33,Advisory Cmtee Notes, 1993 Amendments, Subdivision (a). The Advisory Committee also warned that parties "cannot evadethis presumptive limitationthrough the device of joining as "subparts" questions that seek information about discrete separate subjects." (Id.) The goal was to allow relevant, necessary discovery that was proportional to the needs ofthe case. (Id). See also, Rule 26(b)(2)(c). 

### D. BriefOverview ofInterrogatory Form, Proof, Response and Objection 1. Short and Specific Form Interrogatories shouldbe short and**specifi~.** 

### § 21.01[B] Disadvantages, DISCPR §21.01 [B]. They should be framed so that a responsive answer will be material to the issues. 27 C.J.S. Discovery§ 76 (December, 2015). To be effective, and to avoid objection, interrogatories should be few innumber and targeted at discrete issues, rather thanblanketingthe case. William W. Schwarzer et al., CivilDiscovery andMandatory Disclosure: A Guide to EfficientPractice, 4-5 to 4-7 (2d ed.l994). Each interrogatory should consist ofa brief, simple, direct, and unambiguous question, dealing with one point only. The question shouldbe objective and nonargumentative. They should not seek narrative answers or attempt to argue, cross-examine, orimpeach. They should be written so thatthe question and the expected answer canbe understood easily when read attrial. Schwarzer et al., supra, at4-10 to 4-11. 2. Proportional to ProofNeeded To be proportional to the evidence, interrogatories should inquire about material facts. They should seekto elicit information that is necessary to the interrogating party'sproofofits primafacie case. 27 C.J.S. Discovery§ 83 (Dec. 2015). Interrogatories differ from depositions inthat information sought ininterrogatories "does not presuppose or contemplate details of evidence." Colorado Mill & Elevator Co. v. Am. Cyanamid Co., 11 F.R.D. 580, 581-582 (W.D. Mo. 1951) Interrogatories that are notproportional to an interrogator's proofmaybe excluded as improper in scope whenthey are merely ofa "fishing" character, or seekingto obtainthe proof Page 4 of7or evidence ofthe responding party. 

### 27 C.J.S. Discovery§ 

### 83 (Dec. 

### 201 5). "Itwas never intended that a party shouldby interrogatories compel the adverse party to submit every item of evidence he expects to produce onthe trial ofthe case." Colorado Mill & Elevator Co., 11 F.R.D. at 582. 3. Response and Objection In general, a party responding to interrogatories must furnish informationthat 1s available to it, if

### it canbe given without undue labor and expense. 8B Fed. Prac. 

### & Proc. Civ. 

### § 2174 (3d ed.); La Chemise Lacoste v. Alligator Co., Inc., 60 F.R.D. 164 (D. Del. 1973). However, interrogatories that seekto require the opponentto state every fact, identify every witness, and specify each document supporting each allegation ofthe complaint or answer are "blunderbuss interrogatories" which are likely to be found objectionable as overbroad and too burdensome. 8B Fed. Prac. & Proc; Civ. §2174 (3d ed.); See also, Lawrence v. FirstKansas Bank & Trust Co., 169 F.R.D. 657, 663-64 (D. Kan. 1996). [A] party crumot ordinarilybe forced to prepare its opponent's case. Consequently it was well :recognized before Rule 26(b)(2)(C)'s explicitproportionality limits were adopted that interrogatories thatrequire a party to mal<e extensive investigations, research, or compilation or evaluation ofdatafor the oppos.ing party are inmany circumstances improper. 8B Fed. Prac. & Proc. Civ. 

### § 2174 (3d ed.)


### E. BriefDiscussion All the arguments submittedbythe FAA were fully considered. However, only certain matters willbehighlightedinthis discussion.

1. Interrogatory Limitation Includes Subparts Firstit shouldbe noted, as earlier statedherein, that a party ina civil penalty case may propound up to thirty (30) interrogatories, although"[e]ach subpart ofan interrogatory shallbe counted as a separate interrogatory." 14 C.F.R. § 13.220(k)(l). The majority ofthe FAA's interrogatories, propounded onApril20, 2015 and July 7, 2015, were not concise and did not contain questions with "counted" subpartspursuantto the

Page 5 of7

### requirements of 14 C.P.R.§ 13.220(k)(1). Instead, they contained compound questions coupled with subparts that were not identified or counted as separate interrogatories. For example: Ifyou assert thatthe October 3, 2012 and/or October 12, 2012 statements byAlan Long contain any inaccuracies, falsehoods, mischaracterizations, or other errors,.please specifically identify such errors, describe in detail yourbasis for believing that the statement is in error, describe what you believe to be the actual situation, and describe why Mr. Long made the erroneous statement. July 7, 2015 FAA Int. No.7. Thus, FAA Int. No. 7 encompasses two (2) separate time frames and has a minimum of three (3) subparts. 5 

### Pursuant to 14 C.P.R. § 

### 13.220(k)(l) this single interrogatory shouldbe counted as eight (8) interrogatories. Given the total oftwenty-two (22) interrogatories propoundedbythe FAA, with a majority ofthose 22 interrogatories including multiple (but uncounted) subparts, the FAA interrogatories far exceed the maximum limit ofthirty (30) interrogatories allowed.

2. Interrogatories Overbroad and Burdensome The FAA's Interrogatories, as a whole, are a fishing expeditionwhichis overbroad and burdensome. They are not craftedto seek specific items ofproofmaterial tothe FAA's case in chief. They do not seekto narrowthe material issues by pointed inquiry. Instead, the FAA's interrogatories seek extensive narration, data compilation, and reports from the Respondent, on every aspect ofthe complaint and the respondent's answer. This is a misuse ofinterrogatories as a discovery tool, as discussed above. See also, 

### Hilt v. 

### SFCInc., 170 F.R.D. 182 (D. Kan. 1997)(Nojustification was presented for the interrogatories, which indiscriminately sweptthe entire pleading, including allegations which were admitted, with an excessive number of interrogatories, and in essence required arunning narrative ofthe entire case); Steil v. Humana Kansas City, Inc., 197 F.R.D. 445,447 (D. Kan. 2000)(The scope ofthe interrogatories seeking "every fact and document," is overly broad and unduly burdensome onplaintiff); Flour Mills of America, Inc. v. Pace, 75 F.R.D. 676, 680 (E.D. Okla. 1977)(An objection will be sustained if

5 While it is possiblethat an,opposing party might argue that each descriptive (i.e., inaccuracies, falsehoods, mischaracterizations, or other errors) identify different issues, and therefore should also count as separate questions, such argument is notbeforethe court in this case. Page 6of7either a particular interrogatory or a set ofinterrogatories is thoughtbythe courtto be so broad and all inclusive as to be burdensome); and

### Kainz v. Anheuser-Busch, Inc., 15 F.R.D. 242 (N.D. Ill. 1954) (Interrogatories should not be used as a device to compel the opposing partyto prepare the interrogator's case for him). 

### F. Conclusion Given the fact that the FAA's interrogatories are not written in compliance with 14 C.P.R.§ 13.220(k)(1), exceedthe maximum number ofallowable interrogatories, and as a whole are overbroad and undulyburdensome, the FAA's Motion should be denied in its entirety. Pursuantto 14 C.P.R. § 13.205 and 14 C.F.R. § 13.220, and afterreviewing all relevant caselaw, regulation, statutory authority, and being fully advised;, 

### IT iS HEREBY ORDERED: 1. The FAA's Motionto Strike the Respondent's Response is granted. 2. The Respondent's November 13,2015 Response is stricken onthe grounds of untimeliness·. 3. The FAA's October 13, 2015 Motion to Compel is denied in its entirety.

Attachment: Service List

Page 7 of7

### DocketNo. FAA-2014-0867 (Civil Penalty Action)


### 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-Suite2W10006 

### ONE COPY Mr. Christopher R. Stevenson Complainant's Counsel 

### Federal Aviation Administration Office ofthe Regional Counsel, ASO-7 SouthernRegion 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Paul R. 

### Borth Respondent's Counsel 

### Barnett & 

### Borth, LLC 800 Waukegan Road, Suite 200 Glenview, IL 60025-4387 TEL: 847-724-5520 FAX: 815-356-7042 Judge J.E. Sullivan US. Administrative Law Judge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 BirminghamFlight Center, Inc. Respondent 

### 4243 East Lake Blvd. Birmingham, AL 35217

6 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 2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.