41134-alp_18-2 Sheet No. 21 Side A 05/22/2019 08:15:05 30 : L 60 air- 27 19 17 320 -MAY- passengers , Swissair Flight 149 1420 121 , carrying 1702 49 U.S.C. §49 U.S.C. 1154: . He appeared on the television program , American Airlines Flight . 1016 990 Evidence is Centrally is Evidence , catastrophe nearly struck on Runway , catastrophe nearly struck on 2001 .txt unknown Seq: 206 2014 and Discoverable under and Discoverable \ALP 2 , - 18 The Flight 1702 Example The Flight 13 .of the National Board of Mr. Rapoport is a former President 2014 by David E. Rapoport* and Matthew S. Sims** by David E. Rapoport* , in the segment entitled “Open and Shut Case,” discussing some of the in the segment entitled “Open and Shut Important in Civil Litigation Civil in Important 13 \productn\A\ALP\ 01 . Mr. Sims is active within both local and national-level aviation bar , which crashed during takeoff at Philadelphia International Airport on , which crashed during takeoff at Philadelphia , and US Airways Flight Cockpit Voice Recorder Audio Recorder Voice Cockpit On March M K at Philadelphia International Airport when an Airbus A at Philadelphia International craft designated US Airways Flight Introduction 1702 * of Rapoport Weisberg & Sims, Mr. Rapoport is the founding shareholder P.C. in Chicago. extensive air disaster litigation expe- He is a trial lawyer with multimillion-dollar settlements and ver- rience who has obtained numerous air disaster cases.dicts in commercial and general aviation Mr. Rapoport was Committees in lawsuits arising out of the appointed to the Plaintiffs’ Steering crashes of EgyptAir Flight 111 1702 \\jciprod associations. March Trial Advocacy and former Chairman of the Chicago Bar Association’s Avia- Trial Advocacy and former Chairman Committee.Law tion He has been a regular author of papers for this journal and its predecessor since ** Mr. Sims is a shareholder of Rapoport Weisberg & Sims, P.C. A full-time and trial attorney, Mr. Sims’ practice is limited to representing individuals families in catastrophic personal injury and wrongful death matters. has He handled a wide variety of aviation matters including fixed-wing and rotary- wing crashes throughout the United States.Mr. Rapoport, David with Along Sims served recently served as co-lead counsel in the prosecution of American Flight Airlines and US Airways for the piloting conduct aboard US Airways Minutes and their family members may en- unexpected issues that plane crash victims disaster.counter in the aftermath of an air Mr. Sims, Matthew with Along counsel in the prosecution of American Rapoport recently served as co-lead conduct aboard US Airways Flight Airlines and US Airways for the piloting C Y 41134-alp_18-2 Sheet No. 21 Side A 05/22/2019 08:15:05 A 05/22/2019 21 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 21 Side B 05/22/2019 08:15:05 , M K 1 3 8 ); 30 : :2 13 C Y 8 By 2014 6 19 17 , ), on file was re- (Mar. 13 [Vol. 1 -MAY- from engine 081 00659 1702 (Mar. MA 1702 081 14 Under these reg- , No. 5 was not included. 221 NTSB Accident Survey, MA 2016 14 See 1702 4 flight must be “operating flight must be . . but others carried away but others 2 1 1 121 note , https://www.ntsb.gov/investigations/ note ). Berthiaume v. US Airways, Inc., et al., 2018 7 ( supra supra nd Policy nd ). a 359 ). . w a 2019 121 .txt unknown Seq: , 2018 , ( 206 18 609 35 tion L tion . . \ALP a 2 - 91 Major Investigations 18 . 121 1 minutes in total), was recorded, including cockpit com- minutes in total), was recorded, note 38 ) (“Alright here we go [increasing thrust for takeoff]”). NTSB Accident Survey, NTSB Accident Survey, NTSB, crew members, started a takeoff that ended just over one ended just over a takeoff that started crew members, C.F.R. §§ C.F.R. § \productn\A\ALP\ 5 of the U.S Federal Aviation Regulations, Flight Aviation Regulations, Flight of the U.S Federal 01 supra 2014 The NTSB erroneously reported no injuries. Medical reports of the plaintiffs in Common Pleas Ct., Phila. County (Jan. Term See 14 14 See See NTSB Accident Survey – DCA Aviation, No. (last visited Mar. with the authors’ office. NTSB CVR Factual Report – Aviation No. DCA No. NTSB CVR Factual Report Aviation – A partial transcript of this recording was prepared by the A partial transcript of this recording Like all other large turbine engine airplanes governed by Part turbine engine airplanes Like all other large these requirements, the entire duration of Flight these requirements, the entire duration quired to have a cockpit voice recorder (CVR). quired to have ulations, the CVR on every Part ulations, the CVR continuously from the use of the checklist before the flight to the use of the checklist continuously from the flight,” and con- final checklist at the end of completion of the two-hour loop. on a solid state drive for a tinuously record the crash sequence (approx- start and push from the gate, through imately physical and emotional injuries that will continue to endure. injuries that will continue physical and emotional munications, tower communications, pilot utterances, and munications, tower communications, hitting runway markers, en- mechanical sounds, such as wheels gine noises, and a tail strike. 2 3 4 5 6 7 8 NTSB as part of its investigation and eventually made publicly NTSB as part of its investigation available. CVR transcript contains While the NTSB-prepared an essential error by the first of- valuable information, revealing into the flight computer that ficer in placing the wrong runway until the aircraft was taking the was not detected by the captain a partial transcription and impor- runway for takeoff, it is only the search for the full truth about tant information valuable in of Flight what happened in the cockpit 1 and crashed airborne and then became later after the aircraft minute the left side on its belly off skidding runway, eventually into the River. of the Delaware came to rest short where it of the runway unscathed, escaped Many passengers lives were lost that day. Fortunately, no 121 \\jciprod 250 Avi in Issues 41134-alp_18-2 Sheet No. 21 Side B 05/22/2019 08:15:05 B 05/22/2019 21 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 22 Side A 05/22/2019 08:15:05 30 : 418 , 19 17 , the air- ble 251 1 a 10 -MAY- ). Plaintiffs’ Re- See 00659 Plaintiff’s Memoran- nd Discover nd 321 a , that the audio tapes be 0 - , No. nt 8 a See also 2016 11 . E.g. United States v. Nixon 1 note lly Import lly –other CVR partial typical of a in greater detail, just some of the detail, just in greater . supra 1702 infra . many plaintiffs ac- This was because 00659 .txt unknown Seq: , the House authorized its Judiciary Committee , Sean Wilentz explained: 1702 206 The deleted expletives, in substance and in The deleted expletives, , No. 9 \ALP 1974 2 ) (rejecting President Nixon’s attempt to limit production of - 18 1974 ( New Yorker Berthiuame 683 Less than four months after the Saturday Night Massacre, in NTSB Accident Survey, against the House committee, as well as against Cox’s replace- to initiate hearings on whether there were sufficient grounds to impeach the President. Nixon was now fighting on two fronts— ment, the special prosecutor Leon Jaworski—and he faced a subpoena that Jaworski had obtained to release the tapes in full, so he tried to revive the Stennis compromise in a new form. February of \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 U.S. See at speeds well below V The crash reconstruction revealed that distinction between summary Courts have long recognized the critical transcripts and actual voice recordings. Watergate tapes to transcripts and ordering, released in their entirety). Reflecting recently on what happened, writing for the dum of Law in Support of their Motion to Compel Production of Cockpit dum of Law in Support of their Motion v. US Airways, Inc., Com- Voice Recorder (CVR) Recording, Berthiaume mon Pleas Ct., Phila. County (Jan. Term craft was displaying an electronic centralized aircraft management craft was displaying an electronic chime, a Master Caution warning, (ECAM) warning, a level-two caution “retard” thrust. and a repeating aural instruction to sponse to Defendants’ Motion for Summary Judgment on Punitive Dam- sponse to Defendants’ Motion for Summary ages, 9 In the lawsuits filed by injured passengers in a variety of juris- filed by injured passengers in In the lawsuits M K transcripts transcripts – numerous notations, forty unintelligible were over five instances of “questionable insertions,” instances of so-called several non-spec- “unintelligible voice(s),” and specifically labeled ified “expletives.” defendant not to contest lia- cepted stipulations from the airline punitive damages and mooting bility, waiving claims for discovery on the merits. who rejected the For the two litigants liability for compensatory proposed stipulation not to contest provided a wealth of new damages, the CVR audio eventually of punitive damages, but not information legally justifying claims own order initially refusing the until the trial court reversed its plaintiffs access to the audio evidence. tone, turned out to be centrally relevant evidence for divining the to be centrally relevant evidence tone, turned out with a takeoff roll in choosing to proceed intent of the captain to do so. literally screaming at him not with an aircraft 9 10 11 dictions, only a few litigants eventually gained access to the CVR few litigants eventually gained dictions, only a audio from Flight While the shortcomings inherent with the NTSB-prepared CVR the NTSB-prepared inherent with shortcomings While the are discussed transcripts with the NTSB-prepared apparent problems facially potential for Flight CVR transcript \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 22 Side A 05/22/2019 08:15:05 A 05/22/2019 22 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 22 Side B 05/22/2019 08:15:05 M K 30 : :2 C Y 8 (E.D. 19 17 [Vol. 1 -MAY- 32976 421 U.S. Dist. Lexis 2006 ), https://www.newyorker.com/news/ “The Reputational Interests” of William 2019 , 4 in the case of U.S. v. Nixon, ordered nd Policy nd 0 a – 8 w how the law came to be, how most courts law came to be, how the a (Apr. as an example, this article tells the story of tells the story this article as an example, 12 .txt unknown Seq: 206 ) (“Having now conducted an in camera review of the tion L tion , R. W. Apple called the release of the transcripts , R. W. Apple called the release of \ALP a ORKER 2 1702 - 2006 18 Y , 5 Times Air Crash Near Kirksville, EW N , Instead, Nixon’s trick proved the beginning of the end.Instead, Nixon’s trick proved the beginning Ja- With televised fanfare, the White House released a multivolume With televised fanfare, the White House swore to the world con- transcript of the tapes, which Nixon pertaining to Watergate. tained every scrap of audio evidence outside verification, this The President voluntarily agreed to chair, Peter Rodino, and time by the House Judiciary Committee the ranking member, Edward Hutchinson.it moment, a For in Nixon’s favor; writing seemed as if the tide might be turning for the far in his long struggle to Nixon’s “strongest counterattack so survive Watergate.” the U.S. District Court worski wouldn’t settle for the transcripts; his subpoena; and the Su- judge John Sirica refused to quash preme Court, ruling that the tapes be released in their entirety.“smoking the With gun” evidence made public, Nixon was doomed, and, sixteen days later, he resigned. \productn\A\ALP\ ’s CVR audio was not guaranteed and did not come easy, as ’s CVR audio was not guaranteed Sean Wilentz, Daily Comment, Barr daily-comment/the-reputational-interests-of-william-barr. 01 E.g. In re [cockpit voice] recording, the Court concludes Plaintiffs have not met their burden of establishing that discovery of the cockpit recorder recording is necessary to provide sufficient information for Plaintiffs to receive a fair trial. The Court therefore will deny Plaintiffs’ motion.”). Mo. May What may be surprising is that the discoverability of Flight What may be surprising is that Using Flight Using Flight have allowed litigants access and why this is how it should be, this is how it access and why litigants have allowed wrong, and far have been access so courts prohibiting why the language to consider changing the statutory why Congress might a few have al- judges do not make the mistake assure that more and private inter- improperly aligning the public ready made, by ests involved. balanced under these interests are properly When audio must be as most courts realize, CVR the federal statute, air crashes. civil litigation arising out of discoverable in 49 U.S.C. § 1154 how federal law has sometimes been misapplied to keep CVR au- to keep been misapplied law has sometimes how federal secret, dio recordings 12 1702 by the airline defendants its production was actively opposed court judge to deny access to the who initially persuaded a lower \\jciprod 252 Avi in Issues 41134-alp_18-2 Sheet No. 22 Side B 05/22/2019 08:15:05 B 05/22/2019 22 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 23 Side A 05/22/2019 08:15:05 , , . , 3 30 : 1 309 - 6376 )). Sec- 1982 97 , at A 19 17 14 . ble 25 1990 a ( -MAY- as part of 1987 , 1990 . 18 1905 Amendments: Computer Warned 1990 U.S.C.C.A.N. , Pub. L. No. 00659 , Aug. 1990 nd Discover nd 521 was to safeguard or was to safeguard a U.S.C. § 1990 1982 : Northwest Airlines, Inc. IMES , No. nt 49 a 046 , speculating about what 1154 N.Y. T MA 255 , Richard Witkin, 87 lly Import lly Berthiuame reprinted in a ). ), . Compare 1990 1990 , originally enacted in , originally enacted ( 6380 -day moratorium on production of the -day moratorium on production , 30 60 450 1154 - .txt unknown Seq: 17 ) (codified as amended at 206 101 (Aug. Whether new legislation was necessary or ex- Whether new legislation was . 15 O \ALP 1982 . 2 ( - 18 This ruling was surprising and out of step with and out was surprising This ruling . N 16 U.S.C. § 201700 13 U.S.C.C.A.N. at EP 1987 1453 brought new and unprecedented protections to CVR unprecedented protections brought new and , 49 WL 16 S. R 1990 US Airways, Inc. and American Airlines, Inc.’s Memorandum of Law NTSB Accident Summary DCA Stat. ; \productn\A\ALP\ 1154 ] is Centr Audio Evidence CVR 01 See in Opposition to Plaintiff’s Motion to Compel Production of Cockpit Voice Recorder (CVR) Recording, See 1990 See Independent Safety Board Act Amendments of 96 Id. Accident at Romulus, MI. Pilots in Crash of ‘Stall’ Danger – Cockpit Recorder Indicated Jet Was Jet Indicated Recorder Pilots in Crash of ‘Stall’ Danger Cockpit – –Slowly At Least 152 Dead Too Going 9 One of the announced purposes of § One of the announced The reason the CVR audio was not automatically discoverable, was not automatically the CVR audio The reason The Senate Committee on Commerce, Science and Transporta- The Senate Committee on Commerce, M K already provided for a the Independent Safety Board Act Amendments of Safety Board Act Amendments the Independent tion “In the recent past, tort litigants have initiated law suits against “In the recent past, tort litigants establish control over ongoing the NTSB to gain access to and/or being conducted by the aircraft accident investigations resulted in needless delays in these NTSB. . . . These cases have investigations . . . .” caused its crash just two days earlier near Romulus, Michigan on caused its crash just two days August protect the NTSB against premature public speculation regard- against premature public protect the NTSB could conduct a full an airline crash so the agency ing the cause of and fair investigation. of some a laudable This was in the eyes of pilot remarks from the goal, given the premature publication CVR for Northwest Airlines Flight CVR transcript and audio, which should have been enough to CVR transcript and audio, which information published so soon af- prevent the release of the CVR ter the crash. isting legislation should have been enforced more aggressively is isting legislation should have statute, on the books since debatable, since the predecessor audio evidence, protections which persist to this day. protections which persist to audio evidence, common practice. common afford- is a federal statute quasi-secrecy, for its ongoing and also for CVR audio. protections ing special be This legislation can found at 13 14 15 16 17 tion took note during debates on the proposed tion took note during debates on CVR audio. \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 23 Side A 05/22/2019 08:15:05 A 05/22/2019 23 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 23 Side B 05/22/2019 08:15:05 M K 30 : :2 in C Y 8 19 17 255 [Vol. 1 -MAY- ). 1990 , 3 621 : (Dec. 1154 ) (statement of Henry Duffy, Presi- 300993 1990 WL ( 36 1990 nd Policy nd Beyond the premature release of the the premature Beyond , a 1 - 18 w d Sess. a 2 .txt unknown Seq: 6381 206 tion L tion \ALP prevents civil litigants from gaining immediate prevents civil litigants from gaining a comparing what can be heard with the NTSB- comparing what can be heard 2 This and similar testimony apparently impacted This and similar - 18 st Cong., 19 20 . 101 1154 36 U.S.C.C.A.N. a court may allow discovery by a party of a cock- pit . . . recorder recording if, after an in-camera re- view of the recording, the court decides that— at I am also concerned that the provision . . . dealing I am also concerned of airline cockpit voice recorder with the disclosure man- recordings be interpreted in a transcripts and ner that is fair to all parties. is important to pro- It sensationalism and tect these materials from it is also important unwarranted disclosure, but complete disclosure that courts provide prompt and judicial proceedings to litigants with an interest in involving aircraft accidents. effort should be Every . . . in a way that made to construe the provision between these preserves an appropriate balance goals. \productn\A\ALP\ 01 in camera, See The Reauthorization of the Nat’l Transp. Safety Bd.: Hearing Before the Subcomm. on Aviation of the Senate Comm. on Commerce, Sci., and Transp., Id. 1990 dent, Air Line Pilots Association). Section Privacy interests were also claimed. interests were Privacy Duffy, then-presi- Henry testimony supporting the new legislation before the Senate Sub- before the new legislation supporting the testimony on Aviation. committee CVR information issue, Mr. Duffy added that use of CVRs in issue, Mr. Duffy added that CVR information intrusion into the was an “unprecedented commercial aircraft for the pilots and an invasion of personal privacy” workplace and their families. access to the CVR audio until after a judge listens to the record- access to the CVR audio until ing prepared partial transcript. § Under the new statute, as recognized by President George H.W. Bush as recognized by President the new statute, the bill into law: when he signed 18 19 20 Properly Implementing § 1154 Has Proved Challenging for Some Courts dent of the Air Line Pilots Association (ALPA), latched onto the (ALPA), latched Association the Air Line Pilots dent of from Northwest information release of CVR premature \\jciprod 254 Avi in Issues 41134-alp_18-2 Sheet No. 23 Side B 05/22/2019 08:15:05 B 05/22/2019 23 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 24 Side A 05/22/2019 08:15:05 30 : in U.S. Air 93 -CV- 32976 06 comes 19 17 : 5 ble 255 and dis- 2007 ) (crash of In re a (W.D.N.Y. -MAY- on final ap- 1154 22 2007 21 ) (hydroplaning , 1154 6 3407 (AKH), ) (runway overrun 110934 2004 97 U.S. Dist. Lexis 2002 nd Discover nd 721 requires issuance of requires issuance a (d) of this ti- (d) of this MC nt 2006 a , 21 ) (crash of United Flight 1154 1114 (N.D. Tex. (E.D. Ky. Dec. (C.D. Cal. ). 2007 , 114 U.S. Dist. LEXIS 12 (c) or 617 lly Import lly 1999 90045 a on landing at Little Rock Airport, caus- , 4 2010 F.R.D. due to pilot failures to follow standard ap- 1114 Yet even with this protection, pilot Yet even with 1420 F.R.D. ). ). but see Kirksville Air Crash Near Lexington, Case No. 23 222 at Hollywood Burbank Airport); Buschmann v. at Hollywood Burbank Airport); Buschmann 5966 208 2018 2018 In re ) ( ) ( 1455 .txt unknown Seq: due to pilots taking off from incorrect runway); Dris- due to pilots taking off from incorrect 3 4 (S.D.N.Y. Sept. th Litigation), Case No. 206 (a)( (a)( 11 U.S. Dist. LEXIS \ALP 5191 2 - ) (aerodynamic stall of Colgan Air Flight 67259 18 1154 1154 24 2007 Sept. 2010 , 19 In re tle . . . do not provide the party with sufficient in- the party with not provide tle . . . do trial; and to receive a fair for the party formation (B) the cockpit . . . recorder recording discovery of in- provide the party with sufficient is necessary to party to receive a fair trial. formation for the (A) to the made available of the transcript the parts section public under , KSF, U.S.C. § U.S.C. § \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 (denying CVR discovery without discussion in a case involving the crash of Corporate Air Flight Lindsey Fenwick, Air Line Pilots Association Access to Data; Privacy, Propriety and Union Issues, Presented at the International Symposium on Transportation Recorders (May 49 49 McCoy v. SW Airlines, 316 coll ( Little Rock Int’l Airport, proach procedures). ing runway overrun); of Southwest Flight Comair Flight proach due to pilot error); of American Airlines Flight Oct. Dist. LEXIS Crash Near Clarence Center, Shanksville, Pa. after passengers thwarted terrorist attack); 9 Most courts applying the statute in aviation disaster cases have the statute in aviation disaster Most courts applying applying § The most recent published decision If and when discovery is permitted, § If and when discovery M K cusses the surrounding issues in litigation arising out of the crash cusses the surrounding issues in from then-Chief Judge of the Western District of New York Wil- from then-Chief Judge of the Western the cases applying § liam Skretny, who summarizes a protective order to limit the use of the CVR audio to the judicial to limit the use of the CVR a protective order public. prohibit dissemination to the proceeding and unions have still actively opposed the production of CVR audio in unions have still actively opposed civil litigation. explains, “Justice de- A representative of ALPA disasters], but fairness dictates mands accountability [in aviation will be available to aid the that not all recorded information prosecution.” 24 21 22 23 ordered production of the CVR audio, subject to the statutorily of the CVR audio, subject ordered production order. required protective \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 24 Side A 05/22/2019 08:15:05 A 05/22/2019 24 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 24 Side B 05/22/2019 08:15:05 M K 30 : :2 C Y 8 19 17 , - [Vol. 1 -MAY- 06 208 : 2007 5 , , ) (ordering in camera , No. Buschmann 90045 821 McCoy 2007 2006 , , 6 27 See In Re Air Crash August near Clarence Center, New York on Center, near Clarence U.S. Dist. LEXIS nd Policy nd (E.D.Ky. Dec. a 2 w (finding that the recording “is not a 3407 2007 .txt unknown Seq: , at * 206 : 620 tion L tion \ALP a 2 - -KSF, 18 2009 , 4321865 316 12 Having reviewed the audio recording recording reviewed the audio Having correctly argue that the written First, Plaintiffs written transcript Inherent in the creation of the CV- recorder recording, the production of cockpit voice in part, because “the transcript was reached by group consensus, and an expert might disagree with the NTSB’s interpretation.”); complete and it does not reflect noises that might be meaningful to plaintiffs’ experts”). This Court’s own examination of the recording revealed several minor transcription errors, out-of-sequence nota- tions, and editorial insertions that were not readily audible on the recording. And as the this Court finds that Plaintiffs have satisfied their have satisfied finds that Plaintiffs this Court that the written transcript burden of demonstrating that production of the recording is insufficient, and trial. ensure that they receive a fair is necessary to may recording is incomplete and transcript of the be inaccurate. cases, As it does in most air crash Transportation Safety Board the National to the a committee to listen (“NTSB”) assembled audio recording and prepare cockpit voice recorder a written transcript. created a writ- The committee and an addendum ten transcript of the recording thereto. classifications of are collective determinations and like.words, sounds, noises, and the example, For characterizations the transcript contains numerous words, of noises, designations of “non-pertinent” to mention several notations of “expletives,” not could not decipher words that the committee (“unintelligible”). determinations in- Each of these which Plain- volves a judgment by the committee, examine with the tiffs are entitled to evaluate and benefit of their own experts. at Lexington, Kentucky, F.R.D. at WL \productn\A\ALP\ 01 February of Colgan Air Flight of Colgan \\jciprod 256 Avi in Issues 41134-alp_18-2 Sheet No. 24 Side B 05/22/2019 08:15:05 B 05/22/2019 24 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 25 Side A 05/22/2019 08:15:05 30 : 19 17 , , ble 257 a -MAY- 208 2006 , . , 4321865 27 118 nd Discover nd 921 a WL See In Re Air was enacted to ) (internal cita- ) (internal nt a See McCoy (noting that writ- 2007 , August 2004 F.R.D. at F.R.D. , 1154 620 lly Import lly 222 a 90045 (N.D.Tex. F.R.D. at 117 208 (noting that § , , .txt unknown Seq: 206 114 620 \ALP Buschmann v. Little Rock Nat’l Airport Buschmann v. 2 - 18 McCoy (releasing recording where transcript was in- (releasing recording where transcript U.S. Dist. LEXIS F.R.D. 2 Third, the NTSB has concluded its investigation Second, production of the recording is necessary the recording is production of Second, true situational a transcript cannot reflect the environment in the cockpit. tone of voice, The made by pitch, and inflection of statements be relevant to crew members, all of which may condition, and their state of mind, emotional absent situational awareness, are completely on the printed page. access to At a minimum, recording is information on the CVR audio to the discovery reasonably calculated to lead of admissible evidence. at * because the written transcript does not and cannot does not the written transcript because voice, pitch, volume, or inflection, reflect tone of accurately reflect ambient nor does it necessarily pertinent to the aircraft’s opera- and other noises tion. of the recording are relevant These attributes and the Bombardier defend- to Plaintiffs’ claims and fairness dictates that the parties ants’ defenses, examine the raw recording.be permitted to the As court in noted, ten transcript of recording was insufficient because ten transcript of recording was it did not reflect noises that could be meaningful to plaintiffs’ expert). of this accident and issued its probable cause deter- mination. Safeguarding the integrity of the NTSB investigation and protecting against premature speculation regarding the cause of the accident is therefore no longer a concern. tions omitted). recording is there- Discovery of the trial. fore necessary to ensure a fair Crash at Lexington, Kentucky F.R.D. at 222 2007 and no ambient complete with missing words noise); court noted, a “better trained ear” might discover trained ear” might a “better court noted, or omissions. other errors \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 9 M K \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 25 Side A 05/22/2019 08:15:05 A 05/22/2019 25 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 25 Side B 05/22/2019 08:15:05 M K 30 : :2 C Y 8 19 17 , [Vol. 1 In -MAY- 27 WL 1990 d Cir. . 2 ( 10 - 5 F.R.D. at F.R.D. at F.R.D. 2007 630 , August , , 10 21 , at * 208 222 , , 626 90045 d 2 110934 F. McCoy 687 , Buschmann ); 1975 nd Policy nd , a 6381 w U.S. Dist. LEXIS a (releasing recording, in part, because (releasing recording, .txt unknown Seq: 25 2 U.S. Dist. LEXIS U.S. Dist. LEXIS 206 2010 tion L tion , \ALP a 2 - , at * (b).”). 18 2007 26 ) (“The CVR tape is an important piece of evi- ) (“The CVR tape is an important , (allowing discovery of the recording, in part, the recording, discovery of (allowing (“. . . the tape is one of the few neutral pieces of (“. . . the tape is one of the few Finally, the Second Circuit has recognized the Circuit has recognized Finally, the Second is and what is not relevant in the CVR audio to achieve its goal of determining the probable cause of an air crash. What might not be rele- vant to the NTSB’s determination of probable the NTSB investigation was complete, thereby the NTSB investigation as a with the investigation eliminating interference concern). from of the audio recording evidentiary importance is often the only a cockpit voice recorder, which air crash case. piece of neutral evidence in an F. Kennedy Int’l Re Air Crash Disaster at John Airport on June 24 620 to support their evidence available to plaintiffs relevant under claims, and, as such, it is clearly Rule • The NTSB is making determinations about what 1982 dence in an aircrash case.”); protect against premature public speculation re- public speculation against premature protect allow for a crashes to the cause of airline garding (citing fair investigation) full and at U.S.C.C.A.N. 117 investigation was concluded); because the NTSB at Lexington, Kentucky In Re Air Crash 2006 4321865 \productn\A\ALP\ Issues in Avi Issues 01 Clarence Center Summarizing what Judge Skretny and others have written on Summarizing what Judge Skretny 8 25 Why the NTSB-Prepared Transcript of the CVR Audio Is Why the NTSB-Prepared Transcript Victim Litigation Insufficient for Aviation Disaster reasons the NTSB-prepared CVR the topic, there are persuasive to permit a “fair trial” for victims transcript is likely “insufficient” of an aviation disaster: \\jciprod 25 41134-alp_18-2 Sheet No. 25 Side B 05/22/2019 08:15:05 B 05/22/2019 25 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 26 Side A 05/22/2019 08:15:05 , 9 30 : CCI- A 19 17 ble 25 a -MAY- VIATION be noted in the A 31 . 30 5 ) (The NTSB “does may dissenting 28 nd Discover nd 11 21 2002 a , at * ( NTSB Investigation Man- omit 4 nt the directors of the Offices - a 3 ANDBOOK FOR 110934 H See also ). lly Import lly a ) (“In discerning an audio event, if a dis- 1996 27 ( ECORDER 26 2016 ( R at the discretion of 3 556 . , 9 U.S. Dist. LEXIS OICE § 549 from the CVR report that changes or from the CVR report V .txt unknown Seq: . 29 206 The 1990 Independent Safety Board Act Amendments The 1990 Independent Safety Board 2010 OM , \ALP omit 2 (“Changes or comments from the crew - OCKPIT 18 3 . 15 L. & C DENT NVESTIGATION IR § interpretations of CVR audio transcription from audio transcription of CVR interpretations on made available transcript the NTSB-prepared the aviation docket; the crew were made; comments from omissions not apparent on the transcript; omissions not apparent on the ture, is almost always incomplete and may be always incomplete and may ture, is almost inaccurate; classifications of collective determinations and be accurately words, sounds, noises that cannot reduced to a transcript. For example, a tran- characterizations script often contains numerous words, of noises, designations of “non-pertinent” words that the notations of “expletives,” and (“unintel- NTSB committee could not decipher ligible”). subjective Each determination involves that includes judgment by the NTSB committee experts; none of a victim’s own selected cause might be relevant in the legal determina- in the legal be relevant cause might tion of culpability; and review the CVR recording portunity to listen and then recommend and resulting transcript, additions or changes. The NTSB has the discre- tion to I NTSB C be documented in the transcript. Inclusion of differing observations • discover errors or A “better trained ear” might •na- of a recording, by its The written transcript • transcript are Inherent in creating the written • to has the discretion The NTSB •op- is customarily permitted an The flight crew J. A \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 See See id. Clarence Center Id. Id. Craig M. Blitzer, 61 CVR factual report.” (emphasis added)). of Research and Engineering and Aviation Safety.” (emphasis added)). agreement arises among the group members, the differing observations may within the final product is ual-Major Team Investigations, App. N., at ual-Major Team Investigations, App. not determine liability, nor does it attempt to do so.”). 9 M K 27 28 29 30 31 26 \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 26 Side A 05/22/2019 08:15:05 A 05/22/2019 26 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 26 Side B 05/22/2019 08:15:05 M K 30 : :2 C Y 8 ). 19 17 RIAL TO [Vol. 1 1998 -T -MAY- RE P d ed. 2 , the court, in a 12 21 ASE FROM C VIATION A review, ruled “Plaintiffs have not (Desmond T. Barry ed., and other authorities, history has and other authorities, history nd Policy nd 136 . . a , w 620 620 123 a in camera 36 .txt unknown Seq: ITIGATING THE can remain a source of confusion and frustra- can remain a source of confusion L 32 206 In re Air Crash Near Kirksville Demonstrative Evidence and its Effective Use in Avia- and tion L tion in \ALP 35 a 34 , 2 - F.R.D. at F.R.D. at 33 18 1154 RGUMENT Clarence Center A 208 208 , ing crew members or controllers whose recollec- ing crew members or controllers the words can be tion of the events or delivery of self-serving. of evidence available to plaintiffs to support their of evidence available claims; what oc- ble tool available for reconstructing curred; flect tone of voice, pitch, volume, or inflection, volume, or of voice, pitch, flect tone ambient accurately reflect it necessarily nor does aircraft’s to the noises pertinent and other operation; in the cockpit.uational environment of The tone inflection of statements made voice, pitch, and all of which may be relevant by crew members, and mind, emotional condition, to their state of are absent on a printed situational awareness, page; • impeach surviv- The CVR audio may be used to • is one of the few neutral pieces The CVR audio • and most relia- The CVR audio is often the best • re- does not and cannot transcript The written • sit- cannot reflect the true The written transcript \productn\A\ALP\ LOSING 01 Id. Id. McCoy Mark Dombroff, tion Litigation C McCoy, For example, in Yet, despite the persuasive rationale laid out by Chief Judge Yet, despite the persuasive rationale rare example, after an tion for judges and litigants. How § 1154 Can Be Unfairly Applied to the Detriment of Victims met their burden of establishing that discovery of the cockpit re- met their burden of establishing that discovery of the cockpit for corder recording is necessary to provide sufficient information proven that § 32 33 34 35 36 Skretny in \\jciprod 260 Avi in Issues 41134-alp_18-2 Sheet No. 26 Side B 05/22/2019 08:15:05 B 05/22/2019 26 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 27 Side A 05/22/2019 08:15:05 , , 30 : 6 the 1702 38 19 17 , ble 261 ). a -MAY- Berthiaume 2016 This was un- 39 nd Discover nd 13 21 a . 6 nt – a 5 Once the recordings were , at * 41 While the court stated its con- court stated While the . lly Import lly a 37 32976 (Common Pleas Ct., Phila. County, Sept. (Common Pleas Ct., Phila. County, Mar. 1702 reversed course, ordering the produc- 40 00659 Berthiaume v. US Airways, Inc. v. US Airways, Berthiaume 00659 .txt unknown Seq: , No. , No. 206 case, deposing counsel did not have the benefit case, deposing counsel U.S. Dist. Lexis \ALP 2 - Berthiaume 18 2006 (Common Pleas Ct., Phila. County, Jan. Term 1702 . , , captioned , captioned ). Berthiaume Berthiaume ). 00659 00659 1702 2017 , \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 No. Kirksville No. Order, 2017 Plaintiffs’ Renewed Motion to Compel Production of CVR, Order, 29 9 During their depositions, the pilots offered testimony not only the pilots offered testimony During their depositions, Ultimately, what flowed from production of the Flight Similarly, in litigation arising from the crash of US Airways crash of US arising from the in litigation Similarly, Fortunately, following the defendant pilots’ depositions and af- Fortunately, following the defendant M K fair because the pilots had listened to the CVR audio as part of pilots had listened to the CVR fair because the of the CVR had and the airline as the owner the investigation, audio. access to the full without but essentially unchallengeable potentially exculpatory, access to the CVR audio. the first time, there For instance, for conversations which allegedly oc- were claims made of purported were absent from the NTSB- curred in the cockpit, but which prepared CVR transcript. court initially followed the same approach, denying the plaintiffs’ denying the the same approach, followed court initially further discussion obtain the CVR audio without first request to or reasoning. were taken a result, when the pilot depositions As in the Flight released it became clear the pilots had not fairly characterized released it became clear the pilots at the critical moments what the CVR audio clearly documented an obviously dangerous takeoff when a decision to proceed with roll was made.was that the non-transcribed, but Also, of note the pilots, was totally absent from claimed conversation between an untruth that would have gone the audio recording, exposing left to rely solely on the testimony unchecked had the parties been and partial NTSB transcript. clusion clearly, no supporting reasoning was offered. reasoning clearly, no supporting clusion Flight a complete CVR transcription or the CVR audio. a complete CVR CVR audio was not just highly material and remarkable evidence that supported plaintiffs’ negligence claims against the defend- 37 38 39 40 41 ter a second motion to permit discovery of the CVR audio, the ter a second motion to permit lower court in Plaintiffs to receive a fair trial.” to receive a fair Plaintiffs and unmixed copy of the CVR au- tion of a full-length, unedited, dio recordings from Flight \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 27 Side A 05/22/2019 08:15:05 A 05/22/2019 27 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 27 Side B 05/22/2019 08:15:05 M K 30 : :2 C Y 8 ) of 114 2 ( (“Puni- Pa. 19 17 908 [Vol. 1 00 . 582 -MAY- 8 to take off. ) (adopting § 14 21 1984 1702 ( Pa. SSJI (Civ.) regarding parts of what regarding parts 742 d 2 See also A. 485 , Berthiaume, nd Policy nd 383 a w Pa. a .txt unknown Seq: 206 506 tion L tion , as [the First Officer] was attempting to , as [the First Officer] \ALP a 2 42 s of different first officers, I can state that s of different first officers, I can 6 - . 18 24 100 : years of experience, high time and having flown years of experience, high time 23 In my opinion, [the Captain’s] reaction of “God- In my opinion, [the Captain’s] : As indicated on the NTSB CVR Transcript at the NTSB CVR Transcript As indicated on ). Immediately upon receiving that clearance, [the Immediately upon receiving be heard on the re- Captain and pilot flying] can “Goddamn it.”cording uttering under his breath It professional pilot to is extremely unusual for any in a phase of use this type of language, especially takeoff, when ster- the flight that is critical, such as place to ensure that ile cockpit regulations are in taking place in the only pertinent conversations are cockpit. is generally The fact that [the Captain] unusual state- mild mannered makes this highly ment that much more out of place. As a pilot with damn it” in response to receiving the takeoff clear- damn it” in response to receiving that he knew he ance was an acknowledgement was not ready to start the takeoff, knew he had not completed his checklist and knew that he did not feel comfortable starting the takeoff, given the er- rors that had only just been discovered, [yet the Captain so] soon after saying “Goddamn it,” ad- vance[d] the throttles instead of obtaining the time this expression is not one heard in cockpits where this expression is not one heard the aircraft. the flight crew is properly operating complete the aircraft’s taxi checklist and with the taxi checklist and with complete the aircraft’s been the incorrect runway had pilots aware that can aircraft, Air Traffic Control configured in the clearance for flight be heard giving 37 with 18 \productn\A\ALP\ 2005 01 Feld v. Merriam, ( the Restatement (Second) of Torts). tive Damages – General Instructions”); Hutchinson v. Luddy, Plaintiffs’ piloting expert offered the following description, offered the piloting expert Plaintiffs’ 42 ants, it also provided proof of punishable conduct, which under conduct, which of punishable also provided proof ants, it conduct or “outrageous” proof of law requires Pennsylvania of mind of the state invariably implicating indifference,” “reckless actors. the pilot docket in filed in the public audio: cockpit revealed by the CVR happened in the \\jciprod 262 Avi in Issues 41134-alp_18-2 Sheet No. 27 Side B 05/22/2019 08:15:05 B 05/22/2019 27 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 28 Side A 05/22/2019 08:15:05 3 30 : 1702 19 17 ble 26 a 44 -MAY- . 00659 nd Discover nd 15 21 a nt , No. a 43 lly Import lly a Berthiaume CVR audio, but omitted from the CVR audio, but 1702 . .txt unknown Seq: 206 00659 the sound of the level two caution chime the sound of the \ALP 2 9 - . 18 , No. 46 : 23 As noted previously, this is a highly unusual ex- As noted previously, this is a the entirety of the It is my opinion that based on As indicated on the NTSB CVR Transcript, at the NTSB CVR Transcript, As indicated on : that corresponded with the electronic centralized that corresponded (ECAM) message and Master aircraft monitoring au- be clearly heard on the CVR Caution alert can dio. [the this level two caution chime, Following very clearly uttering Captain] can again be heard “Goddamn it.” use during a critical pression for any professional to moment of flight. now in a take- circumstances, including an aircraft runway error, off roll with a recently discovered checklist, a rushed failure to complete the required chime, Master takeoff clearance, level two caution in this moment Caution alert, and ECAM message, his subjective [the Captain] is clearly expressing is not properly and understanding that the aircraft proceeding is dan- safely configured for takeoff and gerous. he had not The captain was in a situation to continue. trained for and had no good reason he needed from Air Traffic Control to complete his Control to from Air Traffic he needed the takeoff have revealed which would checklist, all abnormal and avoided error data programming in the flight. circumstances 18 Plaintiffs’ Renewed Motion to Compel Production of CVR, \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 For a full discussion of the significance of the content of the Flight CVR audio, see Plaintiff’s Response to Defendants’ Motion for Summary Judgment on Punitive Damages, See Berthiaume 9 The manner, tone, and inflection of the captain’s multiple uses The manner, tone, and inflection Even more evidence of the pilot actors’ state of mind was of the pilot actors’ state Even more evidence M K NTSB-prepared CVR transcript: NTSB-prepared 43 44 of “Goddamn it” in the context of what was happening in the of “Goddamn it” in the context of what was happening in cockpit was undeniably critical and central to the defendants’ state of mind. In retrospect, the reason for the airline’s strong and resistance to the production of the CVR audio was apparent had nothing to do with either a premature impact on the official available on the Flight available on the \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 28 Side A 05/22/2019 08:15:05 A 05/22/2019 28 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 28 Side B 05/22/2019 08:15:05 , M K 30 : :2 C Y 8 389 19 17 [Vol. 1 : -MAY- 47 ONSPECTUS 1154 At stake was At stake C – which omitted 45 If the airline de- AW 46 16 21 L 1702 OMM C 11 (Common Pleas Ct., Phila. County, Nov. ]. This may be used to the . nd Policy nd 559 a 00659 1154 w a , at .txt unknown Seq: 26 , No. 206 tion L tion \ALP a 2 note - “Privileged Communications?”“Privileged The Bright Line Rule in the 18 years earlier by Craig Blitzer, one of the first com- Craig Blitzer, one of the first years earlier by it is hard to envision how aviation disaster victims 48 ). 20 ). supra Berthiaume 2003 ( [B]ecause the CVR is the property of the person [B]ecause the CVR is the property will have access whose airplane crashed, that party any to the entire CVR recording [notwithstanding finding under § owner’s advantage. of the CVR record- The owner to “hide behind” ing now may have the opportunity were either over- parts of the CVR recording that or are oth- looked, misunderstood, misinterpreted, investigators. erwise unintelligible to the NTSB 2017 , \productn\A\ALP\ 01 The NTSB investigation was concluded by the time the plaintiffs’ sought the production of the CVR audio. Order, 15 Blitzer, Van Stewart, Use of Cockpit Voice Recorder Tapes, 405 Now, with access to what was recorded in the cockpit, the in the cockpit, what was recorded access to Now, with The fundamental unfairness arising from denying plaintiffs ac- unfairness arising from denying The fundamental While some commentators have argued that NTSB-prepared While some commentators have an attempt to shield the airline from an obvious liability and ex- an obvious liability airline from to shield the an attempt punitive damages.posure to of this. court had none The trial judgment summary punitive damages defendants’ court denied fact for the jury to finding triable issues of motions in all respects, punitive damages claims. decide in plaintiffs’ the above-referenced spoken words and context the above-referenced spoken words – should provide to deny them access to the “sufficient information” to litigants CVR audio, fendants had their way, the plaintiffs would have never discov- way, the plaintiffs would fendants had their other evidence, “Goddamn it” evidence, and ered the critical of the possibility of a fair trial. depriving them it was predicted should come as no surprise; cess to CVR audio more than mentators to weigh in on the possible impact of § in on the possible impact mentators to weigh could ever meet their burden of proof on a pilot actor’s state of could ever meet their burden of proof on a pilot actor’s state the mind without the benefit of the actual words as spoken in 45 46 47 48 There Is No Better Evidence about What Happened in the There Is No Better Evidence about Cockpit than the CVR Audio for Flight CVR transcripts such as the one investigation or any legitimate privacy concern. privacy or any legitimate investigation \\jciprod 264 Avi in Issues 41134-alp_18-2 Sheet No. 28 Side B 05/22/2019 08:15:05 B 05/22/2019 28 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 29 Side A 05/22/2019 08:15:05 30 : 49 in- 19 17 ) (“In this ble 265 a -MAY- 1957 ( in the future in camera 224 , creates what has 1154 Charles Claflin Allen, nd Discover nd 223 17 21 a nt 1154 a See also . U. L.Q. ). ASH 1918 lly Import lly ( , and the court in the initial rul- W a review under § 425 , 1957 supra , , 418 ). ). 51 U.S. 2018 2018 in camera .txt unknown Seq: 206 245 (a) ( (b) ( , to erroneously default to a rule against discov- , to erroneously default to a rule 49 Kirksville \ALP 2 - become clearer. Section 18 1154 1154 1702 and whether discovery of the CVR audio “is neces- and whether discovery of the 50 1154 U.S.C. § U.S.C. § \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 Towne v. Eisner, 49 49 State of Mind in Civil Cases field, as indeed in every field of speech and writing, the exact meaning of words necessarily varies with the context.”). 9 Further confounding matters, it is unlikely that judges called So what exactly is “necessary”? What is “sufficient”? What With this predicament in mind, the problems inherent in in mind, the problems With this predicament M K spection. the matter, as President While this grossly overstates the legislation into law, Con- Bush recognized when he signed what might seem to be a difficult gress has imposed on a judge “the transcript. . . do[es] not pro- burden of determining whether for the party to receive vide the party with sufficient information a fair trial” sometimes been incorrectly described as a presumption against incorrectly described as a presumption sometimes been shift following an discoverability, which can only erability. reading may represent one While this erroneous Congress chose, President possible construction of the language that this is not the result Congress Bush recognized from the start ap- intended, as have most judges, at least implicitly, who have plied the statute. upon to perform the sary to provide the party with sufficient information for the party sary to provide the party with to receive a fair trial.” 49 50 51 constitutes a “fair trial”? “fair trial” under one state’s tort Can a law regime be unfair in another? On these important questions, the statute provides no real guidance. This has led some judges, like the court in U.S.C. § moment in the context of everything else which may or may not else which may of everything in the context moment in the cockpit.be perceived cannot be of context The importance not be controversial. and should overstated Wendell Oliver As and un- transparent is not a crystal, put it, “[a] word Holmes greatly in and may vary a living thought it is the skin of changed, and the time in according to the circumstances color and content which it is used.” a § Properly Equipped to Handle Few Judges Are Audio 1154 Review ing in Flight \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 29 Side A 05/22/2019 08:15:05 A 05/22/2019 29 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 29 Side B 05/22/2019 08:15:05 M K 30 : :2 C Y 8 1154 19 17 [Vol. 1 -MAY- in camera MAX aircraft. 737 18 21 This is aptly illustrated 53 years ago openly questioned the 20 . nd Policy nd 553 a w a , at .txt unknown Seq: 26 206 tion L tion \ALP a 2 note - 18 supra For instance, preventing public access to CVR audio For instance, preventing public 52 . \productn\A\ALP\ 01 Blitzer, Id. Commentators more than Moreover, it is not a leap of faith to presume that few, if any, that few, of faith to presume it is not a leap Moreover, jurist struggling with § Worse yet for the well-intentioned 1154 Now, with the prevalence of camera-equipped smartphones, the what occurs within the cabin of an airplane in a disaster or the moments leading up to it might be well-documented, while by the two recent tragedies involving Boeing price the public would pay because of the implementation of price the public would pay § prevents the public from voicing its opinion to elected leaders, they including Congress, about airline safety concerns because lack essential information from a crash. 52 53 is the patent prejudice that would flow from an incorrect decision is the patent prejudice that would audio.that denies access to the CVR Such a denial might, as a and not reviewable due to tim- practical matter, be appeal-proof ing and litigation practicalities. Even where there is review of the court would probably en- CVR audio on appeal, however, judge does in determining what counter the same problems a trial exactly it is listening for. erroneous denial of access to the The airlines and pilots possibly re-char- CVR audio opens the door to the available portions of the acterizing or otherwise “spinning” audio recording simply collects CVR transcript, while the actual dust at the airline’s home office. Suffers The Safety of the Flying Public will have meaningful aviation experience or have ever even en- or have ever experience meaningful aviation will have qualified to them poorly before, leaving CVR audio countered for. important to listen is or is not know what a meaningful enough to make experienced judges are slang, acronyms, littered with quick-talk, review of a recording used in the cock- of background noises commonly and other types ear. only be perceptible to a skilled pit, but which may By com- has a purpose the qualification that the NTSB parison, (but with even the NTSB determining liability and fault), different from in aviation ex- committee of professionals steeped must convene a the NTSB-pre- the CVR audio to generate perience to discern pared transcript. \\jciprod 266 Avi in Issues 41134-alp_18-2 Sheet No. 29 Side B 05/22/2019 08:15:05 B 05/22/2019 29 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 30 Side A 05/22/2019 08:15:05 L 30 : ’ NT I 19 17 , when ). ble 267 a -MAY- preventing 2018 2017 /perspectives- ( VIONICS 01 / A 39 – , 01 / 2018 3338 nd Discover nd 19 21 2001 a , nt a FAA Reauthorization Act of 3186 Stat. See also lly Import lly ), https://www.inc.com/bill-murphy-jr/ 132 a , 2018 425 , .html. also prevents industry leaders, train- also prevents industry leaders, 24 , § 2018 254 1154 - After What Congress Did at 2:52 A.M. Saturday, Life .txt unknown Seq: . (Sept. 115 206 NC I \ALP , ), https://www.aviationtoday.com/ 2 - 18 These sentiments echo through to today in recent re- These sentiments echo through 2001 , 55 1 While any change that potentially impacts passenger that potentially impacts While any change , Pub. L. No. Bill Murphy Jr., [A] critical aspect of accident investigations, in my opinion, is transparency. We live in a world where 54 . \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 See May Change Radically for Airline Passengers and Flight Attendants. Here Are the Details 2018 Perspectives: The Case for Cockpit Video Recorders (Jan. airline-passengers-flight-attendants-congress-delta-united-american-south west-jetblue-airlines-faa- the-case-for-cockpit-video-recorders/. 9 Beyond the access denied to the public and lawmakers, ongo- denied to the public and lawmakers, Beyond the access Former NTSB Chairman James Hall once noted that “given Former NTSB Chairman James Public access to information turned into debate with resulting debate with turned into to information Public access 1154 M K a physician was forcibly removed from an overbooked flight, cap- an overbooked removed from was forcibly a physician in part for a pro- video, which is credited tured in now infamous FAA Reauthorization Act of vision in the passengers from being forcibly removed from overbooked being forcibly removed passengers from flights. ing pilots, uninvolved airlines, and safety experts from having ing pilots, uninvolved airlines, that could prevent future avia- access to important information tion disasters. information For example, critically important and pilot decision-making about cockpit resource management to certain attorneys and litigants, should not be available only from other stakeholders who while simultaneously being shielded to prevent future disasters. could best utilize this information under such a utilization of Public safety undoubtedly suffers § marks by the current NTSB chairman about the critical role of marks by the current NTSB chairman enhancing public safety: investigational transparency in safety in a positive way should be applauded, why must what way should be applauded, safety in a positive cockpit door occurs behind the –decisions where life and death are made – and our in secrecy from the public remain shrouded lawmakers? ing improper use of § 54 55 most important data about what happened in the cockpit remains in the cockpit what happened data about most important a secret. in April of Airlines incident a United action following \\jciprod 201 the history of complex accident investigations and the lack of cru- the history of complex accident cockpit environment, I believe that cial information regarding the take precedence over all other the safety of the flying public must concerns.” C Y 41134-alp_18-2 Sheet No. 30 Side A 05/22/2019 08:15:05 A 05/22/2019 30 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 30 Side B 05/22/2019 08:15:05 M K 30 : :2 10 in C Y 8 , 19 17 .aspx. 5191 ), https:// [Vol. 1 -MAY- 2017 Even promi- 20171207 , 7 57 20 21 56 ). That the stakes are high 2011 ( 58 249 , . 231 Y 147 ’ th Annual Assad Kotaite Lecture, Montreal nd Policy nd -hour news cycle. . . . -hour news a OL 14 24 , at w a 24 The Erosion of Secrecy in Air Disaster Litigation .txt unknown Seq: 206 L. & P tion L tion note \ALP a 2 - 18 supra VIATION A One way to counter misinformation is being misinformation to counter One way of the public . . . I believe it is in the best interest transparent. I’m talking about trans- When sin- talking about tweeting every parency, I’m not find.gle thing that you about Rather, I’m talking and information, in a controlled releasing factual deliberate manner. the I’m talking about allowing so a the investigative processes public to see inside can draw the same conclusions reasonable person as you did. . . . . safety, to be open and in the interests of improving and transparent with investigations. there is distrust of government. a world We live in of cynicism and skepticism. live in a world We is a where there \productn\A\ALP\ Issues in Avi Issues SSUES 01 Robert L. Sumwalt, Chairman, Nat’l Transp. Safety Bd., Lessons from the Ashes: Improving International Aviation Safety through Accident In- vestigations, Speech at David E. Rapoport, I Fenwick, Branch of the Royal Aeronautical Society (Dec. www.ntsb.gov/news/speeches/RSumwalt/Pages/sumwalt- Courts have long recognized that wide public access to aviation Courts have long recognized that What could be more transparent than publishing unabridged What could be more transparent of secrecy and public access It should be clear that elimination 8 nent players opposing release of CVR audio acknowledge that nent players opposing release without reservation: drivers of avia- “One of the most powerful America is money, specifically the tion safety initiatives in North money derived from civil litigation.” provides a compelling reason for putting the most important case provides a compelling reason for on incomplete information evidence in play, instead of relying with large gaps. disaster information helps foster public debate on issues concern- ing public safety. As related to the crash of Comair Flight 56 57 58 and unedited versions of CVR transcripts and, in some instances, and unedited versions of CVR the associated audio? the CVR audio, ultimately serves to CVR information, including the public interest. litigation often involves a battle- Air disaster safety issues. ground involving important public \\jciprod 26 41134-alp_18-2 Sheet No. 30 Side B 05/22/2019 08:15:05 B 05/22/2019 30 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 31 Side A 05/22/2019 08:15:05 9 d 30 : 2 F. (June 19 17 29 710 ble 26 a -MAY- , at * fatalities, the fatalities, 65974 49 nd Discover nd 21 21 a nt a 61 U.S. Dist. LEXIS lly Import lly a 2009 )). 60 .txt unknown Seq: 1983 206 \ALP 2 59 - th Cir. 18 6 ( . . ) (citing Brown & Williamson Tobacco Corp. v. F.T.C., 30 39 1177 Air Crash at Lexington, , Throughout our history, the open courtroom has the open courtroom our history, Throughout judi- of the American fundamental feature been a cial system. to guide principles have emerged Basic judi- respecting public access to judicial discretion cial proceedings. to These principles apply as well to in- of whether to permit access the determination in court documents because formation contained provide important, sometimes court records often or explanations for a court’s the only, bases decision. . . . . crash that resulted [T]he public interest in a plane is quite strong, as in the deaths of forty-nine people is the public interest in air safety. With respect to civil cases, the [Sixth Circuit Court With respect to civil cases, the of private dis- of Appeals] said: “The resolution and remedies af- putes frequently involves issues public.fecting third parties or the general The only occur if the community catharsis, which can is also necessary public can watch and participate, in civil cases.” 2009 at * at * , \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 In re 16 1165 Id. Id. 9 Why then has that public interest taken a back seat to other Why then has that public interest The pilots’ unions long ago staked out their position against M K late Judge Karl S. Forester, recognizing the need for public de- the need for recognizing Karl S. Forester, late Judge litigation, wrote: to air disaster issues relating bate on 59 60 61 Flight Crew Privacy Interests Must Yield to Public Safety Flight Crew Privacy Interests Must interests?from pilots’ unions has been that A common refrain “right to privacy.”such access invades the flight crew’s But as set must yield to the safety of out below, any such privacy interests the flying public. releasing the CVR audio, even articulating the oxymoronic argu- CVR ment that fairness requires denying crash victims access to Lexington, Kentucky, a disaster that resulted in a disaster that Kentucky, Lexington, \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 31 Side A 05/22/2019 08:15:05 A 05/22/2019 31 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 31 Side B 05/22/2019 08:15:05 M K 30 : :2 C Y 8 ENT less .-K 19 17 HI [Vol. 1 C -MAY- 93 , 22 21 64 . 151 nd Policy nd ). a , at w a 2018 ( 24 .txt unknown Seq: As a recent law review article summarized: As a recent law review article 206 26 The Piper Lecture: Survey of (Mostly Outdated and – tion L tion note 63 \ALP a 2 - 225 18 , supra 221 . While the public’s right to know about matters that af- matters that to know about public’s right While the EV (citations omitted). In general, courts do not consider the workplace a In general, courts do not consider to provide a secluded and private area sufficient “zone of privacy.” a privately-owned Even within akin to a public workplace, courts consider it more privacy is most place than, say, one’s home, where sacrosanct. indeed recognized While courts have degree of privacy in that employees can have some notice by the em- the workplace, it is also true that defeat any expecta- ployer of monitoring can often tion of privacy by employees. 62 \productn\A\ALP\ 01 Fenwick, Robert Sprague, Often Ineffective) Law Affecting Work-Related Monitoring L. R Id. years, what has changed is that public access to this informa- access to this is that public has changed years, what It is hard to envision how any claim to a right of privacy in the It is hard to envision how any As further support that cockpit discussions deserve no special The answer is they probably shouldn’t.The answer is the common Under fect public safety surely has not changed dramatically in the last dramatically has not changed safety surely fect public 62 63 64 cockpit can be a reasonable one since most courts outright reject cockpit can be a reasonable one constitutes a “zone of privacy.” that a privately-owned workplace a cockpit that makes it differ There is nothing sacrosanct about it comes to expectations of pri- from any other workplace when vacy. is that the cockpit is even Indeed, a better argument fully deserving of privacy protection since every pilot is already ut- aware that federal law mandates the recording of every single terance in the cockpit. protections, the Restatement of Law on Employment only defines audio. 30 widespread. mainstream and become more tion has In today’s cameras, cameras, traffic dashboard body cameras, world, police parts of the coun- are a fact of life in most and security cameras try. recorded on digital a wide variety of fields are Workers in store clerks, station attendants to convenience devices, from gas to blackjack dealers.to police officers, pilots deserve Why should the public? at the risk of harm to any special protection have not con- that have taken up similar issues law, most courts area worthy of to be a secluded and private sidered the workplace of special pri- “zone of privacy” and deserving being deemed a vacy protections. \\jciprod 270 Avi in Issues 41134-alp_18-2 Sheet No. 31 Side B 05/22/2019 08:15:05 B 05/22/2019 31 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 32 Side A 05/22/2019 08:15:05 . 30 : NST I 19 17 AW ble 271 a -MAY- flight and . L M A ( 121 06 . be recorded as a 7 nd Discover nd § 23 21 a must AW nt a L But an intrusion is only But an 65 lly Import lly a MPLOYMENT , E AW This is, in no uncertain terms, a high bar in no uncertain This is, L 66 .txt unknown Seq: 206 \ALP 2 - 67 18 , which recognizes a special public safety interest in a special public safety interest , which recognizes 06 . 7 ). d. Public interests in the intrusion. Public interests employer’s interests. extend beyond a particular positions, for ex- For employees in safety-sensitive workplace testing for ample, courts have ruled that only the employer’s illegal drug use furthers not public’s interest in business interests but also the the reliable, safe delivery of services. Other public- may serve include policy interests that an intrusion or institutional the transparency of governmental information relevant processes; the need to obtain and the in- to a lawsuit or other public proceeding; with and enforcing terest in securing compliance the law. cmt. d. \productn\A\ALP\ ESTATEMENT OF THE ] is Centr Audio Evidence CVR 01 R 2015 Id. Id. 9 The interest of the public is covered in comment d to Restate- the public is covered in comment The interest of It would seem a flight crew assigned to a Part It would seem a flight crew assigned M K directly responsible in a “safety-sensitive position,” responsible directly responsible in a “safety-sensitive hundreds) of passengers, for the lives of dozens (and sometimes knowing full well that their conversations have no reasonable expectation of matter of federal law, should privacy in the cockpit. Further, it is hard to imagine under what circumstances any intrusion into the cockpit could be considered in- “highly offensive,” especially in light of the important public terests that exist in keeping the flying public safe from aviation disasters. in In sum, any privacy interests claimed by pilots pale “highly offensive” if it is “clearly unreasonable when judged when is “clearly unreasonable offensive” if it “highly the public’s interests or legitimate business the employer’s against in intruding.” interests to forbid such an intrusion.to forbid such legitimate Assessing an employer’s keen interests in it is clear that airlines have business interests, as well as their bil- and passengers safe, keeping their employees in the air.lion-dollar fleets has an indispu- Moreover, the public safe air travel. table interest in ment § the context of “safety-sensitive positions”: the context of “safety-sensitive 65 66 67 a “wrongful” intrusion as one that is “highly offensive to a reason- offensive as one that is “highly intrusion a “wrongful” circumstances.” under the able person \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 32 Side A 05/22/2019 08:15:05 A 05/22/2019 32 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 32 Side B 05/22/2019 08:15:05 M K 30 : :2 C Y 8 19 17 [Vol. 1 -MAY- is disclosure of (c) or a similar state (c) protective order, 24 21 1154 26 26 nd Policy nd a can hurt air crash victims, their families, w a .txt unknown Seq: (c). 1154 206 26 tion L tion \ALP a 2 - . of would put into the hands This solution 18 . P. IV 1154 68 . R. C \productn\A\ALP\ ED 01 F When it comes to the safety of the flying public, compromises Even without legislative change, the great weight of authority In circumstances where there is a legitimate basis to limit dis- where there is a legitimate In circumstances A less drastic, and perhaps more readily achievable solution, A less drastic, and perhaps more So where does that leave things?So where does One possible solution to the rule, which already permits “[a] party or any person from whom rule, which already permits “[a] protective order to protect from discovery is sought” to seek a oppression, or undue burden or “annoyance, embarrassment, expense.” al- CVR audio, subject to a statutorily required protective order, though opportunities for disparity still exist. that jeopardize safety should be the exception, not the rule. Im- properly applied, § than it would be for that judge to attempt to interpret whether than it would be for that judge a complex multi-channel recording what is present (or missing) on is necessary for a fair trial in a contested liability case. supports the view that the default under § everyone, including the public, legislators, and safety advocates, the public, legislators, and everyone, including for public discussion.the CVR audio would likely This solution return on public safety. have the highest in a protective order could seek semination, any party interested Procedure one under Federal Rule of Civil 68 which would provide victims more reliable access to CVR audio, which would provide victims more to explicitly state what most courts involves amending the statute that there is no presumption have already implicitly recognized, in air disaster cases.against disclosure of CVR audio This solu- protective order and reduce or tion would maintain a default erroneous withholding of CVR au- eliminate the opportunity for dio from crash litigants. this approach it would be easier Under the last dying words of a pilot are for a judge to decide whether a Rule worthy of special protection under comparison to the interests of both air crash victims and the air crash victims of both to the interests comparison public. Conclusion of restric- above is the wholesale elimination problems outlined dissemination of CVR audio.tions on public In other words, re- peal of § \\jciprod 272 Avi in Issues 41134-alp_18-2 Sheet No. 32 Side B 05/22/2019 08:15:05 B 05/22/2019 32 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 33 Side A 05/22/2019 08:15:05 3 30 : 19 17 ble 27 a -MAY- nd Discover nd 25 21 a nt a lly Import lly a .txt unknown Seq: 206 \ALP 2 - 18 \productn\A\ALP\ ] is Centr Audio Evidence CVR 01 9 M K and the general public, by eliminating critical source information critical source by eliminating general public, and the and most is often the best recorder that cockpit voice from the in an what occurred for reconstructing evidence available reliable disaster. aviation have legit- that flight crews it is doubtful While take place that in protecting conversations interests imate privacy assuming such a bearing on their fault, even on the flight deck interests of the exists, it should yield to the safety privacy interest public. \\jciprod 201 C Y 41134-alp_18-2 Sheet No. 33 Side A 05/22/2019 08:15:05 A 05/22/2019 33 Side Sheet No. 41134-alp_18-2 41134-alp_18-2 Sheet No. 33 Side B 05/22/2019 08:15:05 M K 30 : :2 C Y 8 19 17 [Vol. 1 -MAY- 26 21 nd Policy nd a w a .txt unknown Seq: 206 tion L tion \ALP a 2 - 18 \productn\A\ALP\ 01 \\jciprod 274 Avi in Issues 41134-alp_18-2 Sheet No. 33 Side B 05/22/2019 08:15:05 B 05/22/2019 33 Side Sheet No. 41134-alp_18-2