Opposition Brief — In re USAir, Inc.

oe Supreme Court, U.S.

(y\ ae Be Re os

cst AUG 29 1996

No. 96-157

CLERK

tS

In The

Supreme Court of the United States

October Term, 1995

In Re: USAir, Inc.

On Petition For Writ Of Prohibition

To The United States District Court

For The District Of South Carolina

BRIEF OF RESPONDENTS

*

James W. Orr, Esquire Davip E. Rapoport, EsQuire

(Counsel of Record) Rapoport & Kupets

Bowers Orr & ROBERTSON Law OFFICES

1401 Main Street O’Hare International Center

Suite 1100 10275 West Higgins Road

P.O. Box 7307 Suite 370

Columbia, SC 29202 Rosemont, IL 60018

(803) 252-0494 (847) 803-9880

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW*

1. Whether USAir has established, by clear and indispu-

table evidence, that the courts below, interpreting

state privilege law, usurped judicial power by ruling

that the documents USAir sought to protect were not

privileged.

* Pursuant to Rule 24(2) of the Rules of the Supreme Court

of the United States, this section is included because Respon-

dents are dissatisfied with its presentation by USAir.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TABLE OF CONTRINGD <2 51544 ben Vansben essen vieen ii

TABLE OF AUTRE RRS +056 0c0cs kiciues cesses iii

SUMMARY OF THE ARGUMENT ................. 1

ARGUMBDNE .. ssa seiscepan piers tes Cee 1

A. TO PREVAIL USAIR MUST SHOW THAT ITS

RIGHT TO ISSUANCE OF A WRIT OF PROHIBI-

TION IS CLEAR AND INDISPUTABLE ........ 1

B. USAIR HAS FAILED TO SHOW THAT THE

DOCUMENTS IN QUESTION ARE SUBJECT TO

ANY PRIVILRS 62 iscicccssonendewetnsanaaee 3

1. THE COURTS BELOW FOUND THAT THE

SELF-CRITICAL EVALUATION PRIVILEGE

WAS NOT ‘APPLICABLS « <oiscctcctnnccciss 3

2. THE COURTS BELOW DID NOT USURP

THE FEDERAL AVIATION ADMINISTRA-

TION’S AUTHORITY OR OTHERWISE

ABUSE THEIR DISCRETION ...........:0.: 5

3. USAIR HAS NOT ESTABLISHED BY CLEAR

AND INDISPUTABLE EVIDENCE ITS

RIGHTS WILL BE IRRETRIEVABLY LOST

UNLESS THIS COURT ACTS.............+. 10

CONCLUSION . . .u5......05 ios 12

APPENDIX... i. sess. ssc eee App. 1

A. ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF SOUTH CARO-

LINA DENYING USAIR’S MOTION FOR RECON-

SIDERATION, NOVEMBER 14, 1995........... App. 1

lil

TABLE OF AUTHORITIES

Page

A. CAsEs

Carr v. Donohoe, 201 F.2d 426 (8th Cir. 1953).......... 1

Dowling v. American Hawaii Cruises, Inc., 971 F.2d

EE i UN Ge ssn s KGi VEGA) sh anv eens 4,8,9

Gulfstream Aerospace v. Mayacamas, 485 U.S. 271

SECA ENC AN SA sed oaN os 60 i cow ikea s Coke Ae tacd 1

Jaffee v. Redmond, __ U.S. __, 116 S.Ct. 1923

Se ern ae rere per rr eee hic te ae?

Kerr v. United States District Court for the Northern

District of California, 426 U.S. 394 (1976)............ 2

Mallard v. United States District Court for the South-

ern District of Iowa, 490 U.S. 296 (1989) .......... ae

Par v. United States, 351 U.S. 513, reh’g denied, 352

J EAE EGS ear tr en 1

Trammel v. United States, 445 U.S. 40 (1980)........... 2

United States v. Nixon, 418 U.S. 683 (1974)............ 2

Von Bulow v. Von Bulow, 828 F.2d 94 (2d Cir. 1987) ..... 2

B. STATUTES AND REGULATIONS

Federal Aviation Administration’s Advisory Cir-

i a aici ba 4.5. 6, 7,.40

Peaera: Ruse of Evidence S01 ..... 2... ccc ccc cece 3

SUMMARY OF THE ARGUMENT

To be entitled to a writ of prohibition USAir must

prove, by “clear and indisputable evidence,” that: 1) the

controlling state law, whether that of South Carolina or

North Carolina, recognizes the self-critical evaluation

privilege; 2) the documents at issue fall within the privi-

lege; and 3) its “rights” will be irretrievably lost if it

produces the documents or the wrong otherwise can

never be effectively presented on appeal. USAir cannot

meet this burden. Thus, its Petition for Writ of Prohibition

should be denied.

+

ARGUMENT

A. TO PREVAIL USAIR MUST SHOW THAT ITS

RIGHT TO ISSUANCE OF A WRIT OF PROHIBI-

TION IS CLEAR AND INDISPUTABLE.

The issuance of a writ of mandamus or prohibition

“is an extraordinary remedy, to be reserved for extraordi-

nary situations.” Gulfstream Aerospace v. Mayacamas, 485

U.S. 271 (1988). The power to issue such writs is discre-

tionary and should be sparingly exercised. Par v. United

States, 351 U.S. 513, reh’g denied, 352 U.S. 859 (1956). A

writ may not be relied upon as a means for invoking

review of non-appealable interlocutory orders, which do

not impair the actual or potential jurisdiction of the court.

Carr v. Donohoe, 201 F.2d 426 (8th Cir. 1953).

This Court recently reviewed the legal standards for

obtaining a writ of mandamus in Mallard v. United States

District Court for the Southern District of Iowa, 490 U.S. 296

(1989):

We have required that petitioners demonstrate a

“clear abuse of discretion,” or conduct amount-

ing to “usurpation of [the judicial] power,” to be

entitled to issuance of the writ. To ensure that

mandamus remains an extraordinary remedy,

petitioners must show that they lack adequate

alternative means to obtain the relief they seek,

and carry “the burden of showing that [their]

right to issuance of the writ is ‘clear and indis-

putable.’ ”

Id. at 309 (c1tations omitted).

Generally, discovery orders are not reviewable by a

writ of mandamus or prohibition. Von Bulow v. Von Bulow,

828 F.2d 94, 97 (2d Cir. 1987). This stringent legal stan-

dard is particularly appropriate where, as here, a party

seeks to create a new testimonial privilege. “[T]his Court

has well understood that the particular value the courts

are distinctively charged with preserving — justice — is

severely harmed by contravention of ‘the fundamental

principle that the public... has a right to every man’s

evidence.’ ” Jaffee v. Redmond, __ U.S. __, __, 116 S.Ct.

1923, 1933 (1996) (Op. of Scalia, J. joined by Rehnquist,

C.J., dissenting) (citing Trammel v. United States, 445 U.S.

40, 50 (1980)). Therefore, testimonial privileges “are not

lightly created nor expansively construed, for they are in

derogation of the search for the truth.” United States v.

Nixon, 418 U.S. 683, 710 (1974).

Even if there has been a clear abuse of discretion

relief does not automatically follow. Rather USAir must

prove the “wrong . . . otherwise can never be effectively

presented on appeal,” or that its rights will be irretrieva-

bly lost if the petition is not granted. Kerr v. United States

District Court for the Northern District of California, 426

U.S. 394 (1976). Therefore, to prevail USAir must prove,

by clear and indisputable evidence, that the courts below

either abused their discretion or usurped authority and as

a result USAir’s rights will be irretrievably lost unless its

petition is granted.

B. USAIR HAS FAILED TO SHOW THAT THE DOC-

UMENTS IN QUESTION ARE SUBJECT TO ANY

PRIVILEGE.

1. THE COURTS BELOW FOUND THAT THE

SELF-CRITICAL EVALUATION PRIVILEGE

WAS NOT APPLICABLE.

In the trial court, USAir argued that South Carolina

substantive privilege law applied! and that South Caro-

lina recognized the self-critical evaluation privilege.

USAir did not convince the trial court either that South

Carolina law applied or that it would recognize the self-

critical evaluation privilege if it did. On the contrary,

Judge Anderson held:

The court, however, finds it unnecessary to

decide the troubiesome issue of which state’s

1 As District Court Judge Joseph F. Anderson, Jr. explained:

“Federal Rule of Evidence 501 provides that where an action is

governed by federal law, issues of privilege are determined in

accordance with federal common law. Where, however, as here,

the matter before the court is based upon diversity of

citizenship, ‘the privilege . . . shall be determined in accordance

with state law.’ Fed. R. Evid. 501.” In Re Air Crash at Charlotte,

North Carolina on July 2, 1994, MDL 1014, Order of Judge Joseph F.

Anderson, Jr., Dated October 2, 1995, p. 2a (D.S.C. October 1995)

(Appendix A to Petition for Writ of Prohibition).

law should apply, or, alternatively, to what

extent the law of either North Carolina or South

Carolina would recognize the self-critical eval-

uation privilege. The court’s review of the docu-

ments for which this privilege is asserted yields

the conclusion that even if the relevant state

recognized the self-critical evaluation privilege

such a privilege would not apply under the

circumstances presented here.

In Re Air Crash at Charlotte, North Carolina on July 2, 1994,

MDL 1014, Order of Judge Joseph F. Anderson, Jr., Dated

October 2, 1995, p. 4a (D.S.C. October 1995) (Appendix A

to Petition for Writ of Prohibition). Furthermore, the dis-

trict court stated, “[t]he Supreme Court and the circuit

courts have neither definitely denied the existence of

such a privilege, nor accepted it and defined its scope.

Rather when confronted with a claim of the privilege,

they refused on narrow grounds to apply it to the facts

before them. ... ” In Re Air Crash at Charlotte, North

Carolina on July 2, 1994, MDL 1014, Order of Judge Joseph F.

Anderson, Jr., Dated October 2, 1995, p. 4a (D.S.C. October

1995) (quoting Dowling v. American Hawaii Cruises, Inc.,

971 F.2d 423, 427 fn1 (9th Cir. 1992)) (Appendix A to

Petition for Writ of Prohibition).

In denying USAir’s Writ of Prohibition, the Court of

Appeals ruled in the following manner:

[hjaving carefully reviewed the record and

received the arguments of the parties and the

amicus curiae we conclude that the district court

did not clearly abuse its discretion or usurp

judicial power in entering the challenged dis-

covery order. Cf. Mallard v. United States Dist.

Court, 490 U.S. 296 309 (1989). Accordingly,

USAir’s petition is denied.

In Re: USAir, Inc., Order Dated May 2, 1996, p. 9a (4th Cir.

1996) (Appendix B to Petition for Writ of Prohibition).

2. THE COURTS BELOW DID NOT USURP THE

FEDERAL AVIATION ADMINISTRATION’S

AUTHORITY OR OTHERWISE ABUSE THEIR

DISCRETION.

Apparently, USAir has now abandoned its claim that

the trial judge abused his discretion and appears to rest

solely on the contention, based on the Federal Aviation

Administration’s Advisory Circular 120-56 (“AC 120-56”),

that the courts below usurped the Federal Aviation

Administration’s (“FAA”) authority to make factual

determinations.? Petition for Writ of Prohibition, pp. 4-9.

USAir’s reliance on AC 120-56 is not only wrong, the

argument is frivolous. The title of the Advisory Circular

alone demonstrates the inapplicability of the document:

“Air Carrier Voluntary Disclobure Reporting Procedures.”

(emphasis added). USAir’s assertion that the FAA has

endorsed the concept of a common law self-critical eval-

uation privilege for airline internal safety reviews that

would bind state courts in tort cases finds no support in

the language of the Advisory Circular. The plain lan-

guage of AC 120-56 establishes that the FAA merely

2 While the Federal Aviation Administration’s Advisory

Circular 120-56 relied upon so heavily by USAir in this Court

has been in effect since 1992, it was not even cited to the trial

judge.

grants immunity from its civil penalties when an airline

elects “to voluntarily disclose apparent violations to the

Federal Aviation Administration.” Advisory Circular

120-56, p. 12a (Appendix D to Petition for Writ of Prohibi-

tion). Under this program, an airline must upon detection

of a violation promptly disclose the violation to the FAA and

take timely corrective action to ensure that the same or

similar violations do not recur. Before an airline obtains

immunity from civil penalties under AC 120-56, the FAA

must determine that the following five conditions are

met:

(1) The certificate holder immediately notified

the FAA of the apparent violation after

detecting it and before the agency learned

of it.

(2) The apparent violation must have been

inadvertent.

(3) The apparent violation does not indicate a

lack, or reasonable question, of basic quali-

fication of the certificate holder.

(4) Immediate action must have been taken, or

begun to have been taken, upon discovery

to terminate the conduct that resulted in

the apparent violation.

(5) The certificate holder must develop and

implement a comprehensive fix satisfactory

to the FAA.

Advisory Circular 120-56, pp. 14a-15a (Appendix D to Peti-

tion for Writ of Prohibition).

The documents USAir seeks to protect were not dis-

closed to the FAA. Any violations discovered were not

reported to the FAA. That USAir may have learned of

dangerous practices or violations of the Federal Aviation

Regulations in this audit and failed to report them to the

FAA is the exact opposite type of conduct than AC 120-56

was intended to foster.

The voluntary disclosure policy states, “[t]he FAA

believes that the open sharing of apparent violations and

a cooperative as well as an advisory approach to solving

problems will enhance and promote aviation safety.”

(emphasis added) Advisory Circular 120-56, p. 14a (Appen-

dix D to Petition for Writ of Prohibition). The intent of AC

120-56 is clear. It is to promote open communications

between the airlines and the FAA. Any attempt to read

this advisory circular as promoting a general policy of

nondisclosure is wrong.

USAir’s reliance on Jaffee v. Redmond, ___ U.S. ___, 116

S.Ct. 1923, 1933 (1996) to support its argument for a self-

critical evaluation privilege is misplaced. In Jaffe, after all

fifty states recognized the psychotherapist privilege, this

Court considered whether that privilege should be recog-

nized under federal common law in a Section 19835 case.

In concluding that the privilege should be recognized,

this Court explained: “[e]ffective psychotherapy . . .

depends upon an atmosphere of confidence and trust in

which the patient is willing to make a frank and complete

disclosure of facts, emotions, memories and fears. .

[T]he mere possibility of disclosure may impede develop-

ment of the confidential relationship necessary for suc-

cessful treatment.” Jaffee, 116 S.Ct. at 1928. The Court also

notes that the Judicial Conference Advisory Committee in

3 42 U.S.C. § 1983.

1972 recommended that “Congress recognize a psycho-

therapist privilege... . ” Id.

Jaffee is not at all analogous to this case. While USAir

continues to claim that the flow of information will be

curtailed in the future unless this Court finds these docu-

ments to be privileged, it has presented no evidence in

support of this self-serving conclusion. USAir asks this

Court to accept on faith that a privilege is mandatory to

get USAir to conduct ongoing internal safety audits.4

USAir’s claim that it will not conduct safety audits if they

are discoverable is not credible. Few courts have ever

recognized the self-critical evaluation privilege. None

have applied it to documents like those USAir seeks to

protect. Thus, at the time USAir prepared the subject

documents or had them prepared, it could not have relied

on the existence of a privilege. Yet, the documents were

prepared anyway, clear evidence that a privilege is not

needed to encourage airlines to self inspect.

USAir conducts safety audits for good reasons hav-

ing little or nothing to do with litigation issues. And

USAir will continue to because it is in its best interests to

do so, with or without a privilege. It is in USAir’s best

interests because a reputation for safety renders its ser-

vice more marketable. Cf. Dowling v. American Hawaii

Cruises, Inc., 971 F.2d 423, 426 (9th Cir. 1992). As Judge

Anderson explained:

4 USAir’s claim, if accurate, would demonstrate an

irresponsibility for the safety of the flying public inconsistent

with the privilege conferred upon USAir by the FAA to

transport passengers for hire.

It is beyond dispute that the airline industry is

highly competitive and tightly regulated. More-

over, all airlines have a keen interest in advanc-

ing and promoting safety as well as improving

service. Airlines are, therefore, likely to conduct

internal audits from time to time to insure

improved efficiency (both in terms of service

and economy), safety, and marketability. While

disclosure of these audits to competitors of

USAir would certainly deter use of them in the

future, disclosure for limited use in litigation

(such as to prove notice) is unlikely to deter

their use.

In Re Air Crash at Charlotte, North Carolina on July 2, 1994,

MDL 1014, Order of Judge Joseph F. Anderson, Jr., Dated -

October 2, 1995, p. 6a (D.S.C. October 1995) (Appendix A

to Petition for Writ of Prohibition).

In Jaffee, an interpretation of federal law was at issue.

The instant case involves the interpretation of state law.

In Jaffee, all fifty states and the District of Columbia

recognized the psychotherapist privilege. In the instant

case, almost no states recognize the self-critical evalua-

tion privilege. The Judicial Conference Advisory Commit-

tee recommended adoption of the psychotherapist

privilege, no similar recommendation was made regard-

ing the self-critical evaluation privilege. In Jaffee, there

was a split among the appellate courts over whether or

not the psychotherapist privilege should be recognized

under federal law. In contrast, the two courts of appeals

to address the self-critical evaluation privilege refused to

protect allegedly privileged documents. In Re: USAir, Inc.,

Order Dated May 2, 1996 (4th Cir. 1996); Dowling v. Ameri-

can Hawaii Cruises, Inc., 971 F.2d 423, 426 (9th Cir. 1992).

10

In summary, the courts below did not usurp author-

ity or abuse their discretion in rejecting USAir’s privilege

claims. Testimonial privileges are in derogation of the

search for truth and should, therefore, not be lightly

created nor expansively construed. Advisory Circular

120-56 is inapplicable on its face. USAir has wisely aban-

doned its arguments that the courts below abused their

discretion. Therefore, USAir has failed to prove by any

evidence, let alone that which is “clear and indisputable,”

that it is entitled to a writ of prohibition.

3. USAIR HAS NOT ESTABLISHED BY CLEAR

AND INDISPUTABLE EVIDENCE ITS RIGHTS

WILL BE IRRETRIEVABLY LOST UNLESS

THIS COURT ACTS.

There is no risk that any of USAir’s rights will be

irretrievably lost if this Court does not issue a writ of

prohibition. The contested documents have been and still

are covered by a protective order issued by the District

Court.5 Furthermore, after this Court denied USAir’s

5 On November 14, 1995, Tudge Anderson granted a

protective order governing the possible uses of the six

documents when produced. In particular, the court ruled:

WHEREFORE, IT IS ORDERED that plaintiffs and

their counsel shall be prohibited from disclosing,

disseminating or communicating in any manner to

any person or entity not involved in this litigation any

portion of the information contained in those

documents designated numbers 3, 4, 5, 20, 21, and 28

on defendant’s list of privileged documents, which

list was filed on September 20, 1995. Plaintiffs and

their counsel shall be further precluded from utilizing

11

motion for a stay, the subject documents were produced

on August 26, 1996. Therefore, subject to the protective

order, Respondents are now in possession of the con-

tested documents.

There is no indication that the protective order has

been or will be violated by any of the parties to this

litigation. There have been no rulings on the admissibility

of the documents at trial. Such rulings are fully review-

able by proper post-trial procedures. USAir rights will

not be irretrievably lost if this Court denies its Petition

for Writ of Prohibition. Indeed, since the documents have

now been produced, it is questionable whether a justicia-

ble issue remains to be decided by this Court at all.

sd

these documents or the information contained in

them for any purpose other than for this multidistrict

litigation.

In furtherance of this order, plaintiffs’ counsel shall

insure that each person who is to be given access to

the referenced documents, including plaintiffs and

their attorneys, shall first sign a document

acknowledging that they are aware of and will

comply with this order. Plaintiffs’ counsel shall

maintain a list of these persons which shall be

provided to Petitioner’s attorneys upon request,

subject to protection upon applicatiun to this court for

good cause shown.

In Re Air Crash at Charlotte, North Carolina on July 2, 1994, MDL

1014, Order of Judge Joseph F. Anderson, Jr., Dated November 14,

1995 (D.S.C.) (Attached to Respondents’ Brief as Appendix A).

12

CONCLUSION

Wherefore, Respondents request that this Court deny

USAir’s Petition for Writ of Prohibition.

Respectfully submitted,

James W. Orr, Esquire

(Counsel of Record)

Bowers Orr & ROBERTSON

1401 Main Street, Suite 1100

P.O. Box 7307

Columbia, SC 29202

(803) 252-0494

Davin E. Rapoport, EsQuIrRE

Rapoport & Kupers Law Offices

O’Hare International Center

10275 West Higgins Road

Suite 370

Rosemont, IL 60018

(847) 803-9880

Counsel for Respondents

App. 1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

IN RE: AIR CRASH AT )

CHARLOTTE, ) MDL DOCKET NO. 1041

NORTH ) JUDGE JOSEPH F.

CAROLINA ON ) ANDERSON, JR.

JULY 2, 1994 pace

)

)

) ON USAIR’S MOTION

) FOR RECONSIDERATION

) (SELF CRITICAL

) EVALUATION

) PRIVILEGE)

)

(Filed Nov. 14, 1995)

Defendant USAir, Inc. (“USAir”) has moved for

reconsideration of this court’s Order denying USAir’s

motion for a protective order and granting plaintiffs’

motion to compel discovery of specified documents as to

which USAir claims a self-critical evaluation privilege.

Order filed October 26, 1995. This court grants the motion

for reconsideration to the extent it seeks to limit the

possible uses of the documents to be produced. The

motion for reconsideration is denied in all other respects.

WHEREFORE, IT IS ORDERED that plaintiffs and

their counsel shall be prohibited from disclosing, dissem-

inating or communicating in any manner to any person or

entity not involved in this litigation any portion of the

information contained in those documents designated

numbers 3, 4, 5, 20, 21, and 28 on defendant’s list of

ie 4

App. 2

privileged documents, which list was filed on September

20, 1995. Plaintiffs and their counsel shall be further

precluded from utilizing these documents or the informa-

tion contained in them for any purpose other than for this

multidistrict litigation.

In furtherance of this order, plaintiffs’ counsel shall

insure that each person who is to be given access to the

referenced documents, including plaintiffs and their

attorneys, shall first sign a document acknowledging that

they are aware of and will comply with this order. Plain-

tiffs’ counsel shall maintain a list of these persons which

shall be provided to USAir’s attorneys upon request,

subject to protection upon application to this court for

good cause shown.

IT IS SO ORDERED.

/s/ Joseph F. Anderson, Jr.

Joseph F. Anderson, Jr.

United States District Judge

November 14, 1995

Columbia, South Carolina