**ORIOLE MOBILITY LEGAL DEPARTMENT**  
*100 Electric Avenue, Suite 400*  
*Tec Valley, CA 90210*  

**VIA ELECTRONIC FILING AND OVERNIGHT MAIL**

**DATE:** October 26, 2023  

**TO:** Federal Transport Safety Office (FTSO)  
Attn: Chief Investigator  
Administrative Law Division  
1200 Government Plaza, Washington, D.C. 20001  

**RE: RESPONSE TO ADMINISTRATIVE SUBPOENA NO. FTSO-2023-894 (THE “SUBPOENA”)**

Dear Chief Investigator:

Pursuant to the Administrative Subpoena No. FTSO-2023-894 issued on October 12, 2023, Oriole Mobility (“Oriole”) hereby provides this Response and Production Proposal regarding the investigation into three battery-thermal events involving the Osprey electric delivery van.

**Preservation Notice:** Oriole confirms that all potentially responsive records within our possession, custody, or control have been identified and preserved in accordance with Rule 9 of the Governing Law. A litigation hold has been issued to all custodians and information systems personnel. This preservation obligation remains active throughout these negotiations.

Oriole is committed to cooperating with the FTSO’s lawful safety investigation while protecting legitimate privileges and minimizing burdens that are grossly disproportionate to investigative relevance. Consistent with Rule 3, this response details specific objections where necessary, but explicitly commits to producing non-privileged material for every request.

Where the Subpoena requests material exceeding reasonable relevance or imposes a burden grossly disproportionate to likely utility, we propose the specific narrowing and phased production detailed below (Rule 1 & 10). We seek your written agreement on these narrowed parameters prior to final production of voluminous datasets.

### I. OBJECTIONS AND RESPONSES TO REQUESTS 1–6

#### **Request 1: Customer Complaints (Heat, Smoke, Fire, Charging, Batteries)**
**Objection:** Overbreadth regarding vehicle models and time period; Uncertainty regarding third-party data control.  
**Grounds & Analysis:** The investigation concerns the Osprey van. Commercial service for the Osprey began on **January 1, 2022**. Requests for complaints regarding other Oriole vehicle lines (which utilize different battery architectures) or prior to January 1, 2022, are not reasonably relevant to the safety of the Osprey’s specific battery system. Furthermore, Rule 7 requires a reasonable inquiry before concluding lack of control over third-party data.
**Proposed Response & Narrowing:**
1.  **Scope Narrowing:** We propose narrowing this request to complaints specifically filed regarding the **Osprey model**.
2.  **Date Range Narrowing:** We propose narrowing the date range to **January 1, 2022 through Present** (current commercial service period).
3.  **Reseller Data Inquiry:** Oriole sells through independent regional resellers who maintain separate ticketing systems. We are currently conducting a **reasonable inquiry** to determine: (a) whether our contracts grant a right of retrieval; (b) the volume of Osprey-specific complaints held by resellers; and (c) technical accessibility.  
    *   *Action:* Oriole will not represent that these records are outside our control until this inquiry concludes in 14 days. We commit to producing all responsive internal complaint data immediately upon agreement to the narrowed scope above, while continuing the investigation into reseller data.

#### **Request 2: Communications Containing Specific Keywords (No Custodian/Date Limit)**
**Objection:** Burden grossly disproportionate to relevance; Vague/Overbroad search parameters.  
**Grounds & Analysis:** The preliminary review indicates this keyword combination returns approximately **18 million messages**, including irrelevant cafeteria notices, HR fire drill reminders, and routine marketing emails regarding home charging. Reviewing 18 million messages is a burden grossly disproportionate to the likely relevance of non-technical communications.
**Proposed Response & Narrowing:**
1.  **Custodian Limitation:** We propose limiting production to key personnel involved in Osprey battery design, safety compliance, and incident response. We identify the following **five initial custodians**: (1) Chief Battery Engineer; (2) Director of Product Safety; (3) General Counsel (Legal Dept); (4) VP of Engineering; (5) Quality Assurance Lead.
2.  **Date Range Narrowing:** As with Request 1, we propose narrowing the range to **January 1, 2022 through Present**, or potentially backdated to the start of Osprey development in **July 2020**.
3.  **Search Term Refinement:** We propose excluding terms when used in non-technical contexts (e.g., "fire drill," "office fire exit"). Terms should be limited to proximity matches within technical documentation (e.g., "battery" AND ("thermal" OR "overheat")).
4.  **Phased Production:** We will produce a sample set of 500 documents from the narrowed search for your review. If the sample confirms relevance, we will proceed with full production.

#### **Request 3: Communications Between Oriole and Counsel (Battery Safety/Events)**
**Objection:** Potential assertion of blanket privilege over mixed-content documents is improper.  
**Grounds & Analysis:** Under Rule 4, attorney-client privilege does not protect underlying incident facts, ordinary engineering data, or final business decisions merely because they were copied to counsel. We cannot withhold non-privileged information based on this objection.
**Proposed Response:**
1.  **Production:** Oriole will produce all engineering photographs, test data, and factual incident reports sent to counsel that do not contain legal advice.
2.  **Withholding & Logging:** Communications containing substantive legal advice regarding the investigation strategy or regulatory compliance advice will be withheld. We will provide a **privilege log** (see Section II below) for these specific documents.
3.  **Scope Narrowing:** We propose narrowing this to communications specifically generated in response to the three specific thermal events and any subsequent litigation risk assessment, rather than general "battery safety" emails which may include non-privileged engineering coordination.

#### **Request 4: Board and Safety Committee Materials**
**Objection:** Overbreadth regarding counsel-prepared attachments.  
**Grounds & Analysis:** Ordinary board minutes are business records and are responsive (Rule 3). However, attachments prepared by outside counsel specifically for the investigation may be protected work product or privileged legal advice.
**Proposed Response:**
1.  **Production:** We will produce all standard Board and Safety Committee meeting minutes and decks regarding the Osprey battery system and the three events that consist of business/engineering data.
2.  **Review:** Counsel-prepared presentations or legal memos attached to board materials will be reviewed. Non-privileged portions (e.g., statistical summaries) will be redacted or produced; privileged portions will be logged.

#### **Request 5: Incident Database, Test Results, Source Data, Metadata**
**Objection:** None.  
**Grounds & Analysis:** Rule 5 clarifies that reports prepared in the ordinary course of product testing are not protected merely because litigation arises. The facts indicate this data can be collected within eight days.
**Proposed Response:** Oriole objects to no part of this request. We will produce the complete incident database and engineering repository data for the three events and substantially similar Osprey events within **eight (8) business days** of your written confirmation of the date range proposed in Request 1.

#### **Request 6: Reports by Emberline Engineering**
**Objection:** Differentiation between ordinary course testing and litigation anticipation required.  
**Grounds & Analysis:** Rule 5 distinguishes between work product and ordinary testing. Emberline prepared annual validation reports (2020–2024) under a standing engineering contract. These are ordinary course data and not protected. However, the specific post-event analysis retained by counsel for litigation risk assessment may qualify as work product or privileged legal strategy.
**Proposed Response:**
1.  **Production:** We will produce all Emberline annual battery-validation reports from 2020 through 2024 (Standing Contract).
2.  **Withholding & Logging:** The specific confidential engagement report prepared by Emberline *after* the second thermal event, specifically analyzing litigation and enforcement risk for counsel, will be withheld as attorney work product/legal advice. A privilege log entry will be provided.

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### II. PRIVILEGE LOG PROTOCOL

In accordance with Rule 6, Oriole shall provide a specific log for all documents or communications withheld based on Attorney-Client Privilege or Work Product protection. Categorical logging is not claimed; each document will be identified individually.

**Privilege Log Fields:**
For each withheld item, the log shall contain:
1.  **Date of Document/Communication**
2.  **Author/Custodian** (e.g., Name and Title)
3.  **Recipient(s)**
4.  **Document Type** (e.g., Email, Memo, Report)
5.  **Subject Matter Description** (Statement of subject without revealing protected legal advice or confidential strategy).
6.  **Privilege Asserted** (e.g., Attorney-Client Privilege OR Work Product Protection).
7.  **Sufficient Facts to Evaluate Claim** (e.g., "Communication regarding potential regulatory liability assessment prepared by outside counsel in anticipation of FTSO enforcement action").

**Treatment of Mixed Documents:**
*   **Redaction:** Where a single document contains both privileged and non-privileged information, the non-privileged factual portions will be produced with redactions applied to protected advice. The privilege log will reference the total page count but note the production of redacted pages.
*   **Attachments:** Attachments containing only engineering data or business facts will be produced even if included in a privileged email thread. Only the portion constituting legal advice regarding that attachment will be logged/withheld.

**Timing:** The initial privilege log will accompany the first tranche of production within 30 days of agreement on narrowed parameters. Additional logs will follow subsequent productions within five (5) business days.

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### III. CLAWBACK PROTOCOL AND NON-WAIVER AGREEMENT

Oriole accepts the FTSO’s offer of a non-waiver and clawback agreement, subject to the terms below consistent with Rule 8.

1.  **Inadvertent Production:** If privileged or protected work product material is inadvertently produced by Oriole, it shall be deemed not to have waived privilege, provided Oriole notifies FTSO promptly upon discovery of the inadvertent production.
2.  **Recall and Return:** Upon notice of inadvertent production, FTSO must (a) cease reviewing such materials, and (b) return or destroy all copies within ten (10) business days.
3.  **Duty to Review:** This agreement does not excuse Oriole from the duty to conduct a reasonable review prior to production (Rule 8). Deliberate overproduction of privileged advice is not covered.
4.  **Review by Other Parties:** Neither party shall assert that waiver occurred against any third party resulting from this administrative investigation without prior notice and opportunity to intervene.
5.  **Scope:** This protocol applies solely to the current investigation regarding the Osprey battery thermal events.

**Conclusion**
Oriole proposes entering a stipulation narrowing Requests 1, 2, 3, and 6 as described above to facilitate an expeditious production of non-privileged material while preserving rights under federal law. We request the FTSO's written concurrence by **November 9, 2023**.

Respectfully submitted,

**_J. H. Sterling, Esq._**  
*General Counsel*  
Oriole Mobility