### In the Matter of: UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

# ~ECEIVED SEP 2 62012 

# HEARING DOCKET

AVIATION TECHNICAL SERVICES, (Civil Penalty Action) 

### ) ) ) ) ) ) FAA Docket No. 2010NM010105 FDMS NO. FAA-2011-0682 

### )



# _______________________ ) Administrative Law Judge Richard C. Goodwin
COMPLAINANT'S RESPONSE TO RESPONDENT'S MOTION TO COMPEL DISCOVERY Pursuant to 14 C.F.R. 

### § 13.220(m), Complainantthrough its undersigned counsel respectfully opposes the Respondent's Motion to Compel Discovery in this matter. Statement of Facts On December 22, 2011 the Administrative Law Judge issued a Procedural Order setting forth a procedural schedule in this matter. The Order provided 

### in paragraph 2: 2. On or before March 2, 2012, the parties shall conclude all discovery including, but not limited to, depositions, document production, responses to production requests and/or interrogatories. Ifthe parties cannot resolve a discovery dispute they shall subject the dispute to the undersigned for resolution in a timely manner. The Respondent served an initial discovery request upon the Complainant which
was dated January 13, 2012. The Complainant responded on February 14, 2012, with responses to interrogatories and an extensive production of documents. On February 17, 2012, Respondent's counsel requested additional information from the Complainant. Complainant served Supplemental Responses on February 29, 2012. Discovery closed
on March 2, 2012. Counsel for Respondent did not raise the subject of discovery againuntil the filing ofthe instant Motion to Compel Discovery, which was received atthe offices of Complainant's counsel on September 10, 2012 (Ex. 1 ). LEGAL ARGUMENT 1. Respondent's Motion to Compel should be denied as untimely. The Procedural Order in this matter provided that discovery should be concluded by March 2, 2012. While no deadline was established for filing a motion to compel, all discovery related disputes were to be raised to the Administrative Law Judge for resolution "in a timely manner." The Respondent received Complainant's discovery responses on or about February 14, 2012 and its supplemental responses on or about February 29, 2012. Ifthe Complainant's responses and supplemental responses were inadequate, Respondent should have raised that concern by March 2, 2012, and certainly earlier than September 2012. 2. Respondent's counsel did not raise an issue ofadequacy ofthe Complainant's February 29, 2012 supplemental responses with the Complainant's counsel priorto filing the instant motion. As alleged in Respondent's motion, counsel for the Respondent sought supplementation ofthe Complainant's discovery responses on February 17, 2012, and counsel for the Complainant responded promptly by supplementing the Complainant's responses on February 29, 2012. Respondentwas also provided an extensive body of documents in response to its requests for production. Respondent's counsel raised no further concerns from the close of discovery until filing the instant motion on September 7, 2012. While the December22, 2011 Procedural Order in this matter does notexpressly require counsel to cooperate in discovery, it provides, "ifthe parties cannot resolve a discovery dispute they shall submit the dispute to the undersigned for resolution in a

Complainant'sResponse to Respondent'sMotionto CompelDiscovery FAAv. Aviation Technical Services FAA CaseNo. 2010NM010105 Page 2 of5 KARENDAVIS HUBER, FAAATTORNEY TEL: (425) 227-2167; FAX: (425) 227-1007timely manner," establishing an expectation thatthe parties notify each other if responses or supplemental responses are deemed insufficient.' Respondent's counsel failed to raise any concerns after receiving the Complainant's supplemental responses dated February 29, 2012.
3. The Complainant's responses and supplemental responses establish that the Complainant did not give evasive or incomplete answers in its responses and supplemental responses to the Respondent's interrogatories.
Rule 13.220(m) permits a motion to compel "if

.....a party fails or refuses to
answer an interrogatory, ifa person gives an evasive orincomplete answerduring a deposition orwhen responding to an interrogatory, or a party fails or refuses to produce documents ortangible items." Even ifthe Respondent's motion to compel weretimely, it should be clearfrom examination ofthe discovery requests and responses appended to its motion (which omit the Complainant's extensive document production) that the Complainant fully and fairly responded to the Respondent's discovery requests, and did not provide evasive or incomplete answers. Respondent's primary complaint appears to concern the level of detail ofthe description ofthe "knowledge" which various persons and witnesses possessed about the case. Complainant's responses provided a summary ofthe witnesses' knowledge. The Respondent had an opportunity to depose these witnesses during the discovery period, but did not do so.

1Whilethe Federal Rules ofCivil Procedure do notapply in this matter, they maybeused as guidance; under FRCP 37(a), apartymustcertifY making a good faith effortto conferwiththe opposing party on a discovery dispute in supportofamotionto compel discovery. Complainant's Response to Respondent's Motionto CompelDiscovery FAA v. Aviation Technical Services FAA CaseNo. 2010NM010105 Page 3of5 KARENDAVIS HUBER, FAAATTORNEY TEL: (425) 227-2167;FAX: (425) 227-1007Forthe foregoing reasons, the Complainant respectfully prays that the Respondent's Motion to Compel be denied.

Karen D. Huber Attorney for Complainant

Complainant's Response to Respondent's Motionto Compel Discovery FAAv. Aviation Technical Services FAACaseNo. 2010NM010105 Page 4 of5 KARENDAVIS HUBER, FAAATTORNEY TEL: (425) 227-2167;FAX: (425) 227-1007CERTIFICATE OF SERVICE

I hereby certifythat on this date, I have served the foregoing COMPLAINANT'S RESPONSE TO RESPONDENT'S MOTION TO COMPEL DISCOVERY by Federal Express and by facsimile transmission this date upon:
Dane B. Jaques, Esq. DombroffGilmore Jaques 

### & French, P.C. 1676 International Drive, Penthouse Mclean, VA 22102 (FAX) (703) 336-8750 Federal Aviation Administration 800 IndependenceAvenue SW Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 WilburWright Building- Suite 2W1 000 Fax: (202) 493-5142 Honorable Richard Goodwin Office of Hearings, M-20 U.S. Department ofTransportation 1200 NewJerseyAvenue, S.E. Washington, D.C. 20590 FAX: (202) 366-7536

DATED this 201 h day of September, 2012

# ~~~10~~> , ana Stephenson

Complainant's Response to Respondent's Motionto Compel Discovery FAA v. Aviation Technical Services FAA CaseNo. 2010NMOIOI05 Page 5 of5 Legal Assistant Office ofthe Regional Counsel 1601 Lind Avenue SW Renton, WA 98055 Ph: (425) 227-2164

KARENDAVIS HUBER, FAAATTORNEY TEL: (425) 227-2167; FAX: (425) 227-1007BECKYCOX 703-336-8740 DOMBROFF & GILMORE 1676 INTERNATIONALDRIVE MCLE.A:N VA221024P2 

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KAREN DAVIS HUBER, ESQ. FAA., OFF1CKOF REGIONAL COUNSEL NORTHWEST MOUNTAIN REGION, ANM-7 1601 IJNDAVENUE S.W. 

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