U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant, 

# RECEIVED NOV 1

## 22013 

## HEARING DOCKET

vs. DocketNo. FAA-2012-0477 FAA CaseNo. 2011GL030070 LIBERTY.FOUNDATION, Respondent. Judge Sullivan

FAA'S RESPONSE IN OPPOSITION TO RESPONDENT'S MOTION TO COMPEL The FAA, by and throughundersigned counsel, hereby responds in oppositionto Respondent's Motionto Compel. Factual Background Pursuant to the Judge's August 27, 2013, Order, discovery was re-opened in this case for the limited purpose of examining new matters identified in the Amended Complaint. On September 11, 2013, Respondent served new discovery requests, which were received by the FAA that day via facsimile. On Sunday, September 22, 2013, the undersigned's daughter was born. Accordingly, the undersigned was not in the office beginning on Monday, September 23, 2013. This absence continued through October I, 2013, when the undersigned was, pursuant to the Anti-Deficiency Act, prohibited from being present in the office during the government shutdown. On October 17, 2013, the govermnent shutdown ended and the undersigned returned to the office. On October 18, 2013, the FAA responded to Respondent's discovery requests, including routine discovery objections.

1On October 29, 2013, Respondent moved to strike the FAA's objections to some ofits discovery requests. On October 30, 2013, the FAA responded to that motion. Also on October 30, 2013, Respondent's attorney contacted the undersigned and asked for a phone call concerning unspecified issues thatRespondent had with the FAA's discovery responses. Also on October 30, 2013, the undersigned requested that Respondent's attorney convey these issues in writing, rather than during a phone call. Respondent declined to do so, and filed the Motion to Compel on October 31, 2013. Respondent's Motionto Compel Should Be Denied As an initial matter, Respondent argues that the FAA shouldnot be permitted to object at all to its discovery requests because those objections were not made within ten days. This argument is a reiteration ofthe argument made in Respondent's Motion to Strike, and it is as meritless here as it was there. As discussed in greater detail in the FAA's Response in Opposition to the Motion to Strike, the I0-day time limit is expressly not applicable to routine discovery objections, ouly to matters such as requests for protective orders that must be filed with the Judge. As to the substance of its Motion to Compel, Respondent complains of the FAA's response to one Request for Production and five Interrogatories, each of which sought information concerning the documents and witnesses that the FAA would use to support the allegations in the Amended Complaint. In each instance, the FAA objected that it had already providedthis information. Innumberedparagraph 3 ofthe Judge'sAugust26,2013 Order, it was stated that "The Respondent's Motion to Order Complainant to Disclose its Witnesses and Documents is related to the Amendment is granted. The FAA's completion ofthis disclosure, during the August 23, 2013, Motion Conference, is herebynoted."

2As noted in the Judge's Order, the FAA has already provided the information requested to Respondent. The basis for the allegations in the Amended Complaint was presented in the Amendment itself. It was re-presented in the FAA's Response in Opposition to Respondent's Discovery Motion. The legal and factual (including evidentiary) basis for the FAA's allegations in this matter, including those presented in the Amended Complaint, was presented in detail in the FAA's Motion for Summary Judgment- which, as the Respondent noted when requesting additional time to respond to that motion, was 40 pages long and had 200 pages ofdocuments attached, including multiple detailed affidavits from fact and expert witnesses. It is difficult to
see how the FAA could have given the Respondent amore thorough roadmap ofthe factual and legal issues presented by this case, and how the FAA would prove its allegations if this case proceededto hearing. 1 Despite the fact that the FAA has repeatedly and at length described for Respondent the basis for the allegations in the Amended Complaint, and the witnesses and documents that supportthose allegations, Respondent's Motionto Compel simply asserts that it is entitledto this information, without identifying anything that was requested and has not been provided? Itwas entitled to this information, as noted inthe Judge's August 26, 2013, Order, but the information has already been presented and Respondent is not entitled to have the FAA re-present the informationyet again.

1As outlinedin its Motion for Sunuuary Judgment, the FAA is entitledtojudgment as a matter of!aw, and as such no hearing is necessary. 2 The only particular raisedby Respondent is notcoveredby its discoveryrequests. Respondent asserts thatTimothy Bourgoinehasnot addressedthe question ofwhetherthe aircraftwas unsafe for flight after Respondent's improper alteration and attbe time ofthe flight during which it caughtfire, made a forced landing andburnedto the ground. See Motion to**Compel~** 3. Itis unclearwhat, exactly, Respondent seeks in this regard. Respondent appears to be wondering whether Mr.Bourgoinewill be providingtestimony on a subjectthatwas not covered in his expert affidavit, and whichtheFAA did not include in a sunuuary ofMr. Bourgoine's possible testimony. Nothing in Respondent's interrogatories requestedthatthe FAAprovided a comprehensive list ofall possibletopics and whether eachpotentialwituess would orwouldnotbe testifying on that topic. Mr. Bourgoine's six-page, 34- paragraph affidavithas already beenpresentedfor Respondent's review. IfRespondentwishes to know what topics Mr. Bourgoinehas an expert opinion on, itcan simplyreview the affidavit. 

### 3In sum, Respondent's Motion to Compel should be denied. The FAAhas repeatedly, and at great length, disclosed to Respondent the basis for the Amended Complaint, and the witnesses and documents that establish the allegations in it. It is difficult to avoid comparing the lengthy disclosures made by the FAA on these subjects to the Respondent's own discovery responses, wherein itrefusedto provide any explanation at all for most ofits denials ofthe allegations inthe Amended Complaint. WHEREFORE, the FAA respectfully requests that the Respondent's Motion to Compel be denied. 

# 7 1"'\ Respectfully submitted this

__day ofNovember, 2013.

Attorney Office ofthe Regional Counsel



### 4CERTIFICATE OF SERVICE I hereby certify that the foregoing FAA's Motion to Compel and Response to Motion to Strike was sent: Original and one copy via certifiedmail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 One copy via certifiedmailto: 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 Stua.rtA. Goldstein, P.A. 7300 North Kendall Dr., Suite 380 Miami, FL 33156 Facsimile: (305) 400-0685

# ~rffiW**1** Legal Assistant Office oftheRegional Counsel 

### NOV 

### 7 2013 Dated



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