U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

RECEIVED 

NOV 1 2 2013 

HEARING DOCKET 

vs. 

Docket No. F AA-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 through undersigned counsel, hereby responds in opposition to 

Respondent's Motion to 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. 

1 
On October 29, 2013, Respondent moved to strike the FAA's objections to some of its 

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 that Respondent 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 Motion to Compel Should Be Denied 

As an initial matter, Respondent argues that the FAA should not be permitted to object at 

all to its discovery requests because those objections were not made within ten days. This 

argument is a reiteration of the 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 I 0-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 

provided this information. In numbered paragraph 3 of the Judge's August 26,2013 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 of this disclosure, 

during the August 23, 2013, Motion Conference, is hereby noted." 

2 
As 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 of documents 

attached, including multiple detailed affidavits from fact and expert witnesses. It is difficult to 

see how the FAA could have given the Respondent a more thorough roadmap of the factual and 

legal issues presented by this case, and how the FAA would prove its allegations if this case 

proceeded to 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 

support those allegations, Respondent's Motion to Compel simply asserts that it is entitled to this 

information, without identifying anything that was requested and has not been provided? It was 

entitled to this information, as noted in the 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 

information yet again. 

1 As outlined in its Motion for Sunuuary Judgment, the FAA is entitled to judgment as a matter of!aw, and as such 

no hearing is necessary. 2 The only particular raised by Respondent is not covered by its discovery requests. Respondent asserts that Timothy 

Bourgoine has not addressed the question of whether the aircraft was unsafe for flight after Respondent's improper 

alteration and at tbe time of the flight during which it caught fire, made a forced landing and burned to the ground. 

See Motion to Compel~ 3. It is unclear what, exactly, Respondent seeks in this regard. Respondent appears to be 

wondering whether Mr. Bourgoine will be providing testimony on a subject that was not covered in his expert 

affidavit, and which the FAA did not include in a sunuuary of Mr. Bourgoine's possible testimony. Nothing in 

Respondent's interrogatories requested that the FAA provided a comprehensive list of all possible topics and 

whether each potential wituess would or would not be testifying on that topic. Mr. Bourgoine's six-page, 34-

paragraph affidavit has already been presented for Respondent's review. If Respondent wishes to know what topics 

Mr. Bourgoine has an expert opinion on, it can simply review the affidavit. 

3 
In sum, Respondent's Motion to Compel should be denied. The FAA has 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 it refused to provide any explanation at all for most of its denials of the allegations in the 

Amended Complaint. 

WHEREFORE, the FAA respectfully requests that the Respondent's Motion to Compel 

be denied. 

7 1"'\ 

Respectfully submitted this __ day of November, 2013. 

Attorney 

Office of the Regional Counsel 

4 
CERTIFICATE 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 certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl000 

One copy via certified mail to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Stua.rt A. Goldstein, P.A. 

7300 North Kendall Dr., Suite 380 

Miami, FL 33156 

Facsimile: (305) 400-0685 

~rffiW 1 Legal Assistant 

Office ofthe Regional Counsel 

NOV 7 2013 

Dated 

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