Amicus Curiae Brief — In re USAir, Inc.

29 16 2

Docket No. 96-157

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

In Re: USAir, Inc.

ON PETITION FOR WRIT OF PROHIBITION

TO THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH CAROLINA

MOTION OF AIR TRANSPORT ASSOCIATION OF

AMERICA FOR LEAVE TO FILE BRIEF AS AMICUS

CURIAE AND BRIEF AS AMICUS CURIAE IN SUPPORT

OF PETITION FOR WRIT OF PROHIBITION

LOUISE B. COBBS*

HAIGHT, GARDNER, POOR & HAVENS

2000 Pennsylvania Avenue, N.W., Suite 4400

Washington, D.C. 20006

Tel: (202) 496-2700

*Counsel of Record for the

Amicus Curiae

August 29, 1996

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No. 96-157

In Re: USAir, Inc.

ON PETITION FOR WRIT OF PROHIBITION

TO THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH CAROLINA

MOTION OF AIR TRANSPORT ASSOCIATION OF

AMERICA FOR LEAVE TO FILE BRIEF AS AMICUS

CURIAE IN SUPPORT PETITION FOR

WRIT OF PROHIBITION

The Air Transport Association of America ("ATA") hereby

respectfully moves for leave to file the attached brief amicus curiae

in this case.

The ATA has notified all other parties to this action and has

received the following responses to its request for consent to file

this brief amicus curiae: Petitioner, USAir, Inc. has consented;

David Rapoport, Rapoport & Kupets Law Offices, has objected on

behalf of plaintiffs below; and no other party has responded.

The ATA is a non-profit unincorporated association of

federally-certificated air carriers providing scheduled and charter

passenger and cargo air transportation. ATA represents the

2

interests of U.S. airlines’ that account for more than 95 percent

of domestic passenger and cargo traffic. Its principal function is

to represent the interests of the U.S. commercial airline industry

before the United States Congress, federal agencies, state

legislatures, and before federal and state courts. ATA works

closely with federal agencies concerned with aviation safety and

provides a forum in which airlines can discuss and encourage

safety initiatives through industry working groups. ATA has filed

numerous amicus briefs in federal and state court proceedings

concerning a wide variety of issues of interest to its members,

including an amicus brief in the court below.

In the court below, Petitioners and ATA argued for

application of the self-critical analysis privilege to protect from

disclosure certain internal airline safety reports. The ATA as

amicus is uniquely ab’e to describe the significant effect on the

airline industry’s safety programs if the decision of the court below

is allowed to stand. The Court has consistently allowed industry

associations, including, e.g., the ATA, to file briefs as amicus

curiae. See American Airlines, Inc. v. Wolens, _ U.S.__, 115

S.Ct. 817 (1995); Northwest Airlines, Inc. v. County of Kent,

Michigan, 510 U.S. 355 (1994).

Millions of passengers justifiably rely on ATA’s member

airlines, whose excellent safety record is due in part to internal

safety review mechanisms that the self-critical analysis privilege is

designed to protect and foster. The self-critical analysis privilege

has been applied by many courts, primarily trial courts in

' ATA’s members are: Alaska Airlines,Inc.; Aloha Airlines, Inc.; America

West Airlines, Inc.; American Airlines, Inc.; American Trans Air, Inc;

Continental Airlines, Inc.; Delta Air Lines, Inc.; DHL World Airways, Inc.;

Evergreen International Aviation, Inc.; Federal Express Corp.; Hawaiian

Airlines, Inc.; Kiwi International Airlines, Inc.; Midwest Express Airlines, Inc.;

Northwest Airlines, Inc.; Polar Air Cargo, Inc.; Reeve Aleutian Airways, Inc.;

Southwest Airlines Co.; Trans World Airlines, Inc.; United Airlines, Inc.; United

Parcel Service Co.; and USAir, Inc. Associate members are: Air Canada;

Canadian Airlines International; and KLM-Royal Dutch Airlines.

5 A AER BT

3

interlocutory orders addressing discovery disputes. The federal

courts of appeals have also recognized the privilege, but have

disagreed on its elements and have applied it in an uneven,

inconsistent, and unpredictable manner, including the court below.

Further, the decision of the court below ignored the criteria set

forth in this Court’s decision in Jaffee v. Redmond, _US. _,

116 S.Ct. 1923 (1996).

The lack of clarity in the federal courts of appeals regarding

the scope and application of the privilege has a serious chilling

effect on airlines’ ability to engage in full and frank internal safety

analyses. In ATA’s view, not only does Petitioner raise an

important question of federal law worthy of this Court’s

consideration, but the chilling effect of the lower courts’ disarray

on the scope of the self-critical analysis privilege provides an

additional compelling reason for this Court’s review.

Accordingly, ATA seeks the Court’s permission to file this

brief amicus curiae to demonstrate that the self-critical analysis

privilege is crucial to fostering meaningful internal safety reviews

that benefit the travelling public. Failure to recognize and apply

the privilege to internal airline safety audits and reviews is

contrary to public policy and is inconsistent with Congressional

and Federal Aviation Administration policies protecting safety data.

Further, failure to so apply the privilege will have a substantial

chilling effect on the frankness and completeness of such reviews.

4

WHEREFORE, ATA respectfully requests leave to file the

attached brief.

Respectfully submitted,

LOUISE B. COBBS*

HAIGHT, GARDNER, POOR & HAVENS

2000 Pennsylvania Ave., NW, Suite 4400

Washington, DC 20006-1812

(202) 496-2700

* Counsel of Record for Amicus Curiae

Air Transport Association of America

i

QUESTIONS PRESENTED

1. Does the failure of the court below to follow the criteria set

forth in Jaffee and Upjohn for applying a privilege add to judicial

confusion regarding the self-critical analysis privilege and ignore

compelling public policies protecting airline safety reviews?

2. Does the public policy of and the public interest in fostering

airline safety compel the protection from discovery of internal

airline documents analyzing airline operations under the self-

critical analysis privilege?

ii

TABLE OF CONTENTS

Page(s)

DURST eee PUN CTIA © o'6. 6: a's S oodiecn bth aces i

TREES A GROWER c.5-0. 0 0 o'5 5 8 6 EA eo ROE ii

SARS IE RESTORE 6 be ee Bie bee ds ee iv

IEA EI 53.650 5 8 ON ES Pe wee 1

INTEREST OF AMICUS CURIAE ................ “

ADIIUMENE. 6.50 63% CAS CECE Eee ee 5

I. THE COURT BELOW FAILED TO FOLLOW

PRINCIPLES RECENTLY SET FORTH BY THIS

COURT, ADDED TO JUDICIAL CONFUSION,

AND FAILED TO RECOGNIZE STATUTORY

PUBL. FUER. e COs 6 bee bce see 5

A. The Court Below Failed to Follow This

Court’s Decision in Jaffee in Applying the

Self-Critical Analysis Privilege ......... 5

B. The Failure of the Court Below to Follow

Jaffee Adds to the Confusion in the Lower

Courts About the Scope and Application of the

Self-Critical Analysis Privilege ......... 9

C. Protection of Aijrline Internal Safety

Investigations from Disclosure is a Matter of

Compelling Public Policy ........... 12

oer

II. AIRLINEINTERNALSAFETY INVESTIGATIONS

CLEARLY FALL WITHIN THE SCOPE OF THE

SELF-CRITICAL ANALYSIS PRIVILEGE ... 14

A. Airline Internal Safety Investigations Are

Conducted to Improve Airline Procedures and

PO ea os bd eed eee 14

B. Airline Internal Safety Investigations are

Intended to Remain Confidential to Preserve

the Free Flow of Ideas ............. 15

C. Permitting Discovery of Airline Internal Safety

Investigations will Significantly Curtail the

Flow of Information and Will Diminish Their

WE Ae ss eed oe a ees Oe 15

Ill. BOTH CONGRESS AND THE FAA INTENDED

TO INSULATE SAFETY-RELATED

INFORMATION FROM LITIGATION ...... 16

A. Congress Mandated the Protection of Aviation

Safety-Related Information .......... 16

B. The FAA Strongly Encourages and Protects

Internal Audits and Safety Reviews ..... 18

et Re es Te eer aaa aa See, ae ar ae ca ge 20

FR Gy pa ae Sa kes Rb ee oe ees Al

iV

TABLE OF AUTHORITIES

Page(s)

CASES

ASARCO, Inc. v. NLRB, 805 F.2d 194 (6th Cir. 1986) 8, 11, 12

Banks v. Lockheed Co., 53 F.R.D. 283 (N.D. Ga. 1971) .. 13

Bradley v. Melroe Co., 141 F.R.D. 1 (D.D.C. 1992)..... 13

Bredice v. Doctors Hospital Inc., 50 F.R.D. 249

(D.D.C. 1970), aff’d without opinion, 479 F.2d 920

GPA Rae ae ee eS CASES 2 ks 8,9, 12

Brem v. Decarlo, 162 F.R.D. 94 (D. Md. 1995) ....... 10

Critical Mass Energy Project v. NRC, 975 F.2d 871

(D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993) ..... 14 |

Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297

IN cle 50s VIER RE SS ree es bes 9 !

Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423

ie oe ioe ae 9, 10, 11

i

Etienne v. Mitre Corp., 146 F.R.D. 145 |

Le CSP ale eek ici ew bs ce ewe 10, 11

FTC v. TRW, Inc., 628 F.2d 207 (D.C. Cir. 1980) ... 10, 11

First Eastern Corp. v. Mainwaring, 21 F.3d 465

ia Ma Anak oo a eee re 8 OR Se dis 10

Granger v. National R.R. Passenger Corp., 116 F.R.D. 507

es ll ED ek ae a eC eee 10

TS

Vv

In re Crazy Eddie Security Litigation,

pe OS oe SN A. ae 13

In re Grand Jury Proceedings, 861 F. Supp. 386

I eel eat ia Wiss o gos eva e 6 wees ea 9, 11

In re United States, 864 F.2d 1153 (Sth Cir. 1989)........ 9

Jaffee v. Redmond, _U.S._, 116 S.Ct. 1923 (1996)... 3, 5,6

Keyes v. Lenoir Rhyne College, 552 F.2d 579

(4th Cir. 1977), cert. denied, 434 U.S. 904 (1977) ...... 13

Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518

ie SM ae binky Ghee ae aon aed S, £1, 12, 13

McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235

er Pee Pe ee 11

O'Keefe v. Boeing Co., 38 F.R.D. 329 (S.D.N.Y. 1965) .. 11

Reichhold Chem., Inc. v. Textron, Inc., 157 F.R.D. 522

II 6 oc got oro oe tes i eee eee 11, 12, 13

Reynolds Metals Co. v. Rumsfield, 564 F.2d 663

(4th Cir. 1977), cert. denied, 435 U.S. 995 (1978)....... 10

Richards v. Maine Cent. R.R., 21 F.R.D. 590

ROPERS See Te en 12

Siskonen v. Stanadyne, Inc., 124 F.R.D. 610

I I ong hs ee are wis oo o.'2 5, 6

Southern Ry. Co. v. Lanham, 403 F.2d 119

be REE Sane 8,9, 12

vi

United States ex rel Falsetti v. Southern Bell Tel. & Tel. Co.,

SIS F. Supp. S06 GUD. Fie. T90G) «on ke eee a ws 11

University of Pa. v. EEOC, 493 U.S. 182 (1990) ........ 7

Upjohn Co. v. United States, 449 U.S. 383 (1981) ... 2, 6,8

Warren v. Legg Mason Wood Walker, Inc.,

SPO FG, Se Gris BU as bo eee eV sO 10

STATUTES

FP itis © ORIN 6 64 5 SN ee oo OA ee kes 11, 15, 19

op eS Serr er rae re eee ek. ees 9

RE Eg 3 Ure a ear mopar ey ge ae 9

OP as hc UWA ate a Wes ee hee been 17

Parnes ORO hose bob bea be chee eases 17

Oe Bees Es 0k 00s cae 5 6 we ewan eee 2, 16

Us CONE kas a es ES a ee 2, 16

Oe aes UTNE 6 5 00 ba oa eae en ee 3, 16, 17

OTHER AUTHORITIES

Order of Judge Anderson, Oct 25, 1995, In re Air Crash at

Charlotte North Carolina on July 2, 1994,

ok ee eer er a ee ee a 5

H.R. 3159, 104th Cong. 2d. Sess. (1996)............. 17

H.R. 3536, 104th Cong. 2d. Sess. (1996)............. 17

Ty Ameer

Vii

S.1994, 104th Cong. 2d. Sess. (1996)............... 17

A Call for the Development of Prototype(s) for a

Global Analysis and Information Network (GAIN),

Oe Wars WO, BUM cs Sc ec cc eee 18, 19

Federal Aviation Administration (FAA)

Advisory Circular (AC) 120-56 ............. 11, 15, 19

Robert J. Busch, Comment, Stimulating Corporate Self-Regulation

-- The Corporate Self-Evaluative Privilege: Paradigmatic

Preferentialism or Pragmatic Panacea, 87 NW. U.L. REV. 597

RRR at pr che aes A ge ia Nis eh hea 6, 9, 13

Flight Safety Foundation, News, FSF Chairs Aviation Industry

Data-sharing Task Force, Feb. 13, 1996 ............. 18

1 MICHAEL H GRAHAM, HANDBOOK OF FEDERAL EVIDENCE

ace tp-oe Lise qs, AOE OE eR Pe eee 5

William B. Johnson, Annotation, Discoverability of Traffic

Accident Reports and Derivative Information, 84 A.L.R.4th 15

Ce ra em a 556 re ok eae bet te be ake os eis 13

David P. Leonard, Codifying a Privilege for Self-Critical Analysis,

25 HARV. J. ON LEGIS. 113 (1988) ................ 13

National Transportation Safety Board Reauthorization: Joint

Hearings before the Subcomm. on Aviation, Subcomm. on

Railroads of the House Comm. on Trans. and Infrastructure, 104th

Cong., 2d. Sess. 39 (1996) (Statement of Jim Hall, Chairman,

aaa ath Os ward oa RA Sea ke Shack 17, 18

Note, The Privilege of Self-Critical Analysis,

96 HARV. L. REV. 1083 (1983) .............. Pe

Vili

NTSB Comparison of U.S. Transportation Fatalities - Year 1994

we. Four: Tare Cee. 3h Te oak kok Re l

John F.X. Peloso, The Privilege for Self-Critical Analysis:

Protecting the Public by Protecting the Confidentiality of Internal

Investigations in the Securities Industry, 18 SEC. REG. L.J.

SAP EE ke ks Re ee eee 13

Paul B. Taylor, Encouraging Product Safety Testing by Applying

the Privilege of Self-Critical Analysis When Punitive Damages are

Sought, 16 HARV. J.L. & PUB. POL’Yy, 769 (1993) ...... 13

23 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL

PRACTICE AND PROCEDURE (Supp. 1996) ............. 8

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No. 96-157

In Re: USAir, Inc.

ON PETITION FOR WRIT OF PROHIBITION

TO THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH CAROLINA

BRIEF AS AMICUS CURIAE IN SUPPORT

OF PETITION FOR WRIT OF PROHIBITION

INTRODUCTION

Public policy has demanded that aviation safety be minutely

scrutinized ever since airplanes began carrying passengers. Today,

more than ever, aviation safety is on everyone’s mind. Despite the

fact that the U.S. aviation industry is the safest in the world, and

is considerably safer than traveling by automobile’, aviation safety

is a constant topic of public debate. It is also a constant topic of

private internal analysis and discussion at U.S. airlines.

Understanding the causes of accidents and other incidents is

the primary objective of airlines’ internal safety reviews and

audits. Only free and frank discussion and investigation of

' According to National Transportation Safety Board ("NTSB") estimates,

there were 41,700 highway fatalities in 1995 whereas there were only 177

fatalities in involving U.S. airlines, including commuter airlines. NTSB

Comparison of U.S. Transportation Fatalities -Year 1994 vs. Year 1995 (Dec.

31, 1995).

2

accidents, incidents, trends, and procedures without apprehension

about whether such investigations will later become the focus of

discovery, can serve the public policy goals expressed in the

Transportation Laws. See 49 U.S.C. § 40101(a)(1) (mandating

safety as the Department of Transportation’s highest priority in air

commerce); 49 U.S.C. § 44701(c) (requiring the FAA to regulate

in a way to reduce or eliminate accidents). The privilege against

disclosure of self-critical analysis should be applied to airlines’

internal safety reviews in recognition and support of the important

legislative and human goal of airline safety.

The U.S. aviation industry’s safety record is neither

accidental nor routine. Indeed, the industry’s safety record is due,

in large part, to policies set independently at each airline that

require and encourage employees to vigilantly assess day-to-day

operational safety for inconsistencies. The ability of airline

management to solicit and obtain frank information regarding an

airline’s operational safety, and suggestions to improve that safety,

is the linchpin of the industry’s enviable record.” Just as there is

nothing routine about safety, there is nothing routine about airline

internal safety reviews. The airlines’ highest management demand

not only consistent internal safety investigations but also special

investigations into particular matters that may be of concern.

Among federal and state courts that have had to address the

self-critical analysis privilege, there is considerable confusion and

conflict as to the privilege’s scope and application. As this Court

stated in Upjohn Co. v. United States, 449 U.S. 383, 393 (1981):

An uncertain privilege, or one which purports to be

certain but results in widely varying applications by the

courts, is little better than no privilege at all.

? Aircraft manufacturers have similar quality assurance and review programs

that solicit safety-related suggestions.

3

In light of this Court’s ruling only last term in Jaffee, v. Redmond,

__U.S.__, 116 S.Ct. 1923 (1996), this observation is particularly

apropos. The failure of the court below to follow the rationale

articulated in Jaffee infects this issue with the uncertainty

condemned in Upjohn and jeopardizes the ability of airlines to

maintain and improve airline safety.

The Court should not allow the present state of disarray to

continue. The parameters of the self-critical analysis privilege,

over which state and federal courts disagree, presents a compelling

issue which this Court should settle under FED. R. Evip. 501.

This issue is especially compelling because of the importance of

this privilege to promoting practices and procedures in the U.S.

airline industry intended to maintain and improve safety. The

prevailing confusion and conflict is inconsistent with the kind of

candid, thorough, and systematic safety reviews necessary to

ensure that air carriers satisfy their "duty . . . to provide service

with the highest possible degree of safety in the public interest."

49 U.S.C. § 44701(d)(1)(A).

The first part of this brief discusses the failure of the court

below to follow Jaffee, the courts’ confusion about the scope and

application of the self-critical analysis privilege, and the history of

the privilege. The second and third parts discuss the applicability

of the privilege in the aviation context and the statutory and

regulatory support for the privilege, respectively.

4

INTEREST OF AMICUS CURIAE

The ATA is a non-profit unincorporated association of

federally-certificated air carriers providing scheduled and charter

passenger and cargo air transportation. ATA represents the

interests of U.S. airlines’ that account for more than 95 percent

of domestic passenger and cargo traffic. Its principal function is

to represent the interests of the U.S. commercial airline industry

before the United States Congress, federal agencies, state

legislatures, and before federal and state courts. ATA works

closely with federal agencies concerned with aviation safety and

provides a forum in which airlines can discuss and encourage

safety initiatives through industry working groups. ATA has filed

numerous amicus briefs in federal and state court proceedings

concerning a wide variety of issues of interest to its members,

including an amicus brief in the court below.

3 ATA’s members are: Alaska Airlines,Inc.; Aloha Airlines, Inc.; America

West Airlines, Inc.; American Airlines, Inc.; American Trans Air, Inc;

Continental Airlines, Inc.; Delta Air Lines, Inc.; DHL World Airways, Inc.;

Evergreen International Aviation, Inc.; Federal Express Corp.; Hawaiian

Airlines, Inc.; Kiwi International Airlines, Inc.; Midwest Express Airlines, Inc.;

Northwest Airlines, Inc.; Polar Air Cargo, Inc.; Reeve Aleutian Airways, Inc.;

Southwest Airlines Co.; Trans World Airlines, Inc.; United Airlines, Inc.; United

Parcel Service Co.; and USAir, Inc. Associate members are: Air Canada;

Canadian Airlines International; and KLM-Royal Dutch Airlines.

5

ARGUMENT

I. THE COURT BELOW FAILED TO FOLLOW

PRINCIPLES RECENTLY SET FORTH BY THIS

COURT, ADDED TO JUDICIAL CONFUSION, AND

FAILED TO RECOGNIZE STATUTORY PUBLIC

POLICY GOALS

A. The Court Below Failed to Follow This Court’s Decision in

Jaffee in Applying the Self-Critical Analysis Privilege

Only last term, in Jaffee v. Redmond, _U.S._, 116 S.Ct.

1923 (1996), this Court recognized the existence of a new

psychotherapist-patient privilege under FED. R. Evip. 501 and

reaffirmed that Congressional intent in drafting Rule 501 was for

the "federal courts to continue the evolutionary development of

testimonial privileges’". Id. at _, 116 S.Ct. at 1928 (citations

omitted). This Court looked to several factors in deciding that

* Jaffee was brought under federal question jurisdiction and hence federal

common law applied to the privilege under FED. R. Evip. 501. In the instant

litigation, federal jurisdiction arose initially out of diversity, although USAir has

consistently raised federal preemption as an affirmative defense. While the

general rule would be to apply state privilege in diversity cases, “where state and

federal issues are commingled . . . [cJourts that have confronted this issue in the

context of the discoverability of evidence have uniformly held that the federal law

of privilege governs even where the evidence sought might be relevant to a

pendant state claim.” 1 MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL

EVIDENCE § 501.1, at 511 n.8 (4th ed. 1996). Hence, as in Jaffee, this Court

can and should address the federal common law privilege of self-critical analysis

under Rule 501.

Because of the confusion about the parameters of the self-critical analysis

privilege, federal courts, including the district court below, have looked beyond

their own jurisprudence for a clear doctrinal rule. See Order of Judge Anderson,

Oct 25, 1995, In re Air Crash at Charlotte North Carolina on July 2, 1994

(M.D.L. No. 1041) at 4-5 (Appendix A to USAir’s Petition) (looking to a number

of federal appellate and district court decisions rather than North Carolina or

South Carolina state law for jurisprudential guidance in applying the self-critical

analysis privilege); Siskonen v. Stanadyne, Inc., 124 F.R.D. 610, 611-12 (W.D.

6

the privilege described in Jaffee "’promotes sufficiently important

interests to outweigh the need for probative evidence... .”" Id.

(citations omitted). Among the factors that counselled for

recognition of the new privilege was that 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." Jd. That rationale is consistent with

Upjohn, where the Court recognized the "Hobson’s choice" facing

corporate counsel absent a privilege.°

The Jaffee test for the recognition of a privilege is four-fold:

(1) The communication must "depend upon an atmosphere of

confidence and trust . . . to make a frank and complete disclosure

of facts..." Jaffee, U.S. at __, 116 S.Ct. at 1928; (2) The

privilege must serve a public interest such as the "transcendent

public good" of mental or physical health of the citizenry. /d. at

__, 116 S.Ct. at 1929; (3) The public benefits of non-disclosure

must outweigh the evidentiary benefit of disclosure so that

important communications will not be chilled; and (4) The general

support of such privilege in the legislative and judicial

communities.

Mich. 1989) (looking to federal jurisprudence in diversity case absent precedent

under Michigan law).

> Upjohn, 449 U.S. at 391. See also Robert J. Busch, Comment, Stimulating

Corporate Self-Regulation - The Corporate Self-Evaluative Priviledge:

Paradigmatic Preferentialism or Pragmatic Panacea, 87 NW. U.L. REV. 597,

599-600 (1993) [hereinafter Busch, Comment] (noting that corporations are faced

with “discordant stimuli” with regulators and consumers calling for "aggressive

self-policing” but with “perverse” countervailing incentives that chill such

efforts).

7

Airlines’ internal safety audits and investigations meet all of

the criteria for application of the self-critical analysis privilege.®

1. Airlines, because they depend so heavily upon the actions

of many individual employees for safe operations, must create an

“atmosphere of confidence and trust” in order to obtain "frank and

complete disclosure of facts" to maintain operational safety and

avoid accidents. Airline employees, whether they are investigating

an accident, a routine operational procedure, or being interviewed

about areas of safety that have attracted the interest of airline

management, must be free of the fear that their words and thoughts

will be used against the company or themselves in litigation at a

later date. Without the privilege, both investigators and

interviewees cannot be expected to commit to paper "minor"

problems or deficiencies before they become "major" ones, thus

depriving airline managements of vital safety-related information

and the opportunity to address potential safety issues early and

efficiently. Not having this kind of information flow available has

been referred to as a "dual chilling effect" because not only does

disclosure discourage airlines and their safety personnel from

investigating and documenting discrepancies, but also because

individual employees may be less willing to come forward with

candid information. See Note, The Privilege of Self-Critical

Analysis, 96 HARV. L. REV. 1083, 1091-93 (1983) ("Harvard

Note"). The same dilemma led the Court to reject the “control

group test" of privilege in Upjohn.

2. Maintaining and improving aviation safety is clearly a

"transcendent public good.”

° The ultimate balancing of interests for applying self-critical analysis in the

context of aviation safety is closely analogous to the balancing of interests with

respect to the psychotherapist privilege in Jaffee. This interpretation would in no

way be inconsistent with University of Pa. v. EEOC, 493 U.S. 182 (1990), where

the crux of the Court’s decision not to recognize a new privilege protecting

academic peer review was based on the fact that the public benefit of creating

such a privilege was outweighed by the “great, if not compelling, governmental

interest” in “ferreting out” invidious discrimination. Jd. at 193.

8

3. In the context of aviation accident litigation, the only

reason to discover self-critical analysis is the pursuit of punitive

damages because liability is not generally an issue. Punitive

damages have never been sustained in such a context. The value of

producing such self-critical documents, even assuming they show

procedural anomalies, is minimal in comparison with the chilling

effect on airline employees discussed above. In Upjohn, the Court

allayed concerns about burdening discovery by distinguishing

between actual facts an employee would have to disclose and the

privileged communications. Upjohn, 449 U.S. at 395-96.

Similarly, the self-critical analysis privilege does not hinder

discovery of particular facts or access to individuals but protects

those documents or meetings relating to safety evaluation and

potential areas for change to procedures. See Lloyd v. Cessna

Aircraft Co., 74 F.R.D. 518, 521-22 (E.D. Tenn. 1977) (strictly

limiting scope of questioning regarding aircraft manufacturer’s list

of problem products and prohibiting any discovery relating to

meetings designed to "review, analyze, and evaluate operation for

continued self-improvement” of products).

4. While application of the self-critical analysis privilege to

airline safety audits and investigations is apparently an issue of

first impression, both the courts and federal and state legislatures

have supported the privilege in analogous safety fields. See, e.g.,

ASARCO, Inc. v. NLRB, 805 F.2d 194, 199-200 (6th Cir. 1986);

Southern Ry. Co. v. Lanham, 403 F.2d 119, 131-33 (Sth Cir.

1968). In addition, virtually every state has adopted the privilege

for "medical review boards", another "public safety" area. See 23

CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL

PRACTICE AND PROCEDURE § 5431, 428-442 (Supp. 1996)

(summarizing the statutory "medical review" privileges state by

state). These privileges are largely synonymous with and have the

same origin as the self-critical analysis privilege. See Bredice v.

9

Doctors Hospital Inc., 50 F.R.D. 249, 250-51 (D.C. Cir. 1970),

aff'd without opinion, 479 F.2d 920 (D.C.Cir. 1973).’

By failing to apply the standards enunciated in Jaffee to this

case, the court below also failed to follow this Court’s clear intent

to shield documents meeting the criteria set forth in Jaffee.

B. The Failure of the Court Below to Follow Jaffee Adds to

the Confusion in the Lower Courts About the Scope and

Application of the Self-Critical Analysis Privilege

The tests enunciated by various circuits and by numerous

district courts has led to a patchwork of rules ill-defining the scope

and application of the self-critical analysis privilege. As a result,

the courts themselves recognize that they are in disarray.*

The federal courts of appeals have either enunciated differing

rules of application or declined to rule at all. Thus, in the Fifth

Circuit, companies may protect "full and candid evaluations of the

cause of accidents . . ." Southern Ry. Co. v. Lanham, 403 F.2d

119, 131 (Sth Cir. 1968), but in the Ninth Circuit, a similar report

may not be shielded See Dowling v. American Hawaii Cruises,

Inc., 971 F.2d 423, 427 (9th Cir. 1992) ("routine pre-accident

7 Support for applying the self-critical analysis privilege in aviation can be

found in Federal law regulating air transportation. See infra Part Ill. Cf. In re

United States, 864 F.2d 1153 (Sth Cir. 1989) (granting mandamus to protect from

disclosure medical quality assurance records in accordance with 10 U.S.C. §

1102); 38 U.S.C. § 5705(a) (codifying the protected status of quality assurance

programs within the Veteran’s Administration hospital system).

5 See In re Grand Jury Proceedings, 861 F. Supp. 386, 387 (D. Md. 1994)

(noting that "[t}he Supreme Court and the circuit courts have neither definitively

denied the existence of [the self-critical analysis] . . . privilege, nor accepted it

and defined its scope"); Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D.

297, 305 (N.D. Ill. 1993) (remarking on “inconsistencies in the district court

opinions and the Supreme Courts’ failure to [explicitly] recognize the [self-critical

analysis] privilege . . ."); Busch, Comment, supra, at 607-12 (discussing the

inconsistent application of the privilege).

10

safety reviews are not protected... ."). In the D.C. Circuit, the

privilege may be applied in cases involving public health or safety,

First Eastern Corp. v. Mainwaring, 21 F.3d 465, 467 n.1 (D.C.

Cir. 1994) (noting that the self-critical analysis privilege "has been

found only in limited cases involving areas of public health . . . or

public safety”); whereas the Sixth Circuit focused on the requestor.

FTC v. TRW, Inc., 628 F.2d 207, 210-11 (D.C. Cir. 1980)

(holding that the self-evaluative privilege does not apply where

documents are sought by or subpoenaed by government agencies);

and the Fourth Circuit in one case focused on whether the reports

were prepared for "internal use" only. See Reynolds Metals Co.

v. Rumsfield, 564 F.2d 663, 667 (4th Cir. 1977), cert. denied, 435

U.S. 995 (1978).

The Dowling case, the latest circuit court decision to address

the self-critical analysis privilege in depth, adopted a three-prong

test enunciated in a 1983 Harvard Law Review article,’ but also

considered the voluntary or involuntary nature of disclosures, the

intended use of the documents, and whether the documents were

generated prior to or following an accident. Dowling, 971 F.2d at

425-27. Even in Dowling, however, the court wavered about

whether it was fair to mandate production of documents the litigant

was required by the government to prepare. Jd. at 426-27.

* Harvard Note, supra, at 1086 (drawing these three criteria from then-

existing case law). The three prongs are:

First, the information must result from a critical self-analysis

undertaken by the party seeking protection; Second, the public must

have a strong interest in preserving the free flow of the type of

information sought; finally, the information must be of the type whose

flow would be curtailed if discovery were allowed.

Id. Seealso Bremv. Decarlo, 162 F.R.D. 94, 101 (D. Md. 1995); Etienne v.

Mitre Corp., 146 F.R.D. 145, 147 (E.D. Va. 1993); Granger v. National R.R.

Passenger Corp., 116 F.R.D. 507, 509 (E.D. Pa. 1987) (under state law

privilege). See also Warren v. Legg Mason Wood Walker, Inc., 896 F. Supp.

540, 541 (E.D.N.C. 1995) (stating similar criteria to the test enunciated in Brem).

11

Other courts have added to, modified, or ignored the three

prong self-critical analysis test discussed above, focusing, inter alia

on: (1) distinctions between subjective and objective factual

information in documents sought to be protected’®; (2) finding

post-accident investigations warrant more protection than pre-

accident safety reviews''; (3) the voluntary or involuntary nature

of disclosure to the government’; (4) whether the government is

the party seeking the information; and the type of data sought

to be protected."

© See O'Keefe v. Boeing Co., 38 F.R.D. 329 (S.D.N.Y. 1965).

'! See United States ex rel Falsetti v. Southern Bell Tel. & Tel. Co., 915 F.

Supp. 308 (N.D. Fla. 1996) (distinguishing Dowling where a pre-accident safety

review was not within the privilege from Reichold Chem., Inc. v. Textron, 157

F.R.D. 522 (N.D. Fla. 1994) where a retrospective self-assessment of

environmental damage was privileged). In the aviation context, the notion that

pre-accident evaluations are not as protected as post-accident evaluations is

equivalent to saying airlines should not attempt to improve safety before an

accident.

" Compare Dowling, 971 F.2d at 426-27 (noting “It may be unfair for a court

to require a party to turn over to an opposing litigant self-damning assessments

that the government has required it to prepare.) with Etienne v. Mitre Corp. 146

F.R.D. 145, 148 (E.D. Va. 1993) ("Because such reports and studies are

produced involuntarily, there is no reasonable expectation . . . that such material

will remain confidential.”). Cf. FAA Advisory Circular (AC) 120-56 (Appendix

D to USAir’s Petition) (exempting records voluntarily submitted to the FAA from

disclosure under the Freedom of Information Act, 5 U.S.C. § 552(b)(4)).

McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235 (E.D. Mo. 1996) (holding

that internal adverse impact analysis studies voluntarily turned over to the EEOC

at EEOC’s request could not be disclosed by the EEOC).

3 See, e.g., FTC v. TRW, Inc., 628 F.2d 207, 210-11 (D.C. Cir. 1980)

(holding that the self-evaluative privilege does not apply where documents are

sought by or subpoenaed by government agencies); In re Grand Jury

Proceedings, 861 F. Supp. 386, 388 (D. Md. 1994).

4 See ASARCO, Inc. v. NLRB, 805 F.2d 194, 199 (6th Cir. 1986)

(protecting internal safety analysis containing opinions and recommendations but

not pictures taken following accident); Lloyd v. Cessna Aircraft Co., 74 F.R.D.

12

The court below has added to this confusion by concluding

that the trial court did not abuse its discretion and by failing to

give the trial court clear instructions to protect the disputed

documents.

C. Protection of Airline Internal Safety Investigations from

Disclosure is a Matter of Compelling Public Policy

The genesis of the self-critical analysis privilege lies in the

areas of health and safety. Although Bredice v. Doctors Hospital

Inc., 50 F.R.D. 249 (D.D.C. 1970), aff'd without opinion, 479

F.2d 920 (D.C. Cir. 1973), holding that "self analysis" by a

medical review committee was privileged, is often considered the

first enunciation of the self-critical analysis privilege, that case was

predated by cases holding that documents prepared during accident

investigations were privileged. See Southern Ry. Co. v. Lanham,

403 F.2d 119, 131 (Sth Cir. 1968) (prohibiting discovery of

portions of post-accident reports prepared by claims agents for the

railroad, because: "[FJear of discovery might deter [the railroad]

from seeking full and candid evaluations of the cause of accidents

and the proper disposition of claims"); O’Keefe v. Boeing Co., 38

F.R.D. 329 (S.D.N.Y. 1965); Richards v. Maine Cent. R.R., 21

F.R.D. 590 (D. Me. 1957).

Since the 1970s, courts have found that the underlying balance

of interests has weighed in favor of the self-critical analysis

privilege where the information sought to be protected deals with

health or safety issues. See ASARCO, Inc. v. NLRB, 805 F.2d

194, 199-200 (6th Cir. 1986) (holding privileged a "self-critical

report" prepared by company after mining accident); Reichhold

Chem., Inc. v. Textron, Inc., 157 F.R.D. 522, 526 (N.D. Fla.

1994) ("[t]he public interest in allowing individuals and

corporations to candidly assess their compliance with

518, 521-22 (E.D. Tenn. 1977) (differentiating between lists identifying problem

products to which limited protection applied and actual minutes or records of

internal safety meeeting that were fully privileged).

\\ << <i AW aaa

13

environmental regulations ’promotes sufficiently important interests

to outweigh’ the interest of opposing private litigants . . .");

Bradley v. Melroe Co., 141 F.R.D. 1, 3 (D.D.C. 1992) ("[I]t is

not realistic to expect candid expressions of opinion or suggested

changes in policies, procedures, or processes knowing that such

statements or suggestions may very well be used against colleagues

and employees in subsequent litigation."); Lloyd v. Cessna Aircraft

Co., 74 F.R.D. 518, 520-22 (E.D. Tenn. 1977) (prohibiting

discovery related to self-improvement meetings held by aircraft

manufacturer). In the health field, protection of medical review

boards is well-recognized and has been codified in virtually every

state. Reichold, 157 F.R.D. at 525.

The scope and application of the self-critical analysis privilege

has raised debate in academic writings, with many commenters

calling for clear guidance.’ Further, the self-critical analysis

privilege has teem applied in many areas outside health and safety

where the policy justifications for the privilege are considerably

different. See Banks v. Lockheed Co., 53 F.R.D. 283 (N.D. Ga.

1971) (employment discrimination); Jn re Crazy Eddie Security

Litigation, 792 F. Supp. 197, 205-06 (E.D.N.Y. 1992) (internal

reviews of accounting procedures); Keyes v. Lenoir Rhyne College,

552 F.2d 579 (4th Cir. 1977), cert. denied, 434 U.S. 904 (1977)

(academic peer review).

'S See Paul B. Taylor, Encouraging Product Safety Testing by Applying the

Privilege of Self-Critical Analysis When Punitive Damages are Sought, 16 HARV.

J.L. & PUB. POL’ Y, 769 (1993); Busch, Comment, supra; John F.X. Peloso, The

Privilege for Self-Critical Analysis: Protecting the Public by Protecting the

Confidentiality of Internal Investigations in the Securities Industry, 18 SEC. REG.

L.J. 229 (1990); David P. Leonard, Codifying a Privilege for Self-Critical

Analysis, 25 HARV. J. ON LEGIS. 113 (1988); Harvard Note, supra; see also

William B. Johnson, Annotation, Discoverability of Traffic Accident Reports and

Derivative Information, 84 A.L.R.4th 15, § 13 (1987) (discussing application of

the self-critical analysis privilege to traffic accident reports).

14

As discussed in Part III, none of these latter applications is the

product of a more compelling public policy than airline safety."

Il. AIRLINE INTERNAL SAFETY INVESTIGATIONS

CLEARLY FALL WITHIN THE SCOPE OF THE SELF-

CRITICAL ANALYSIS PRIVILEGE

The rationale for the application of the self-critical analysis

privilege is strongest in the health and safety fields, including

aviation safety. Self-critical analysis by airlines meets all of the

criteria usually enunciated by the courts, including this Court in

Jaffee.

A. Airline Internal Safety Investigations Are Conducted to

Improve Airline Procedures and Products

Notwithstanding comprehensive safety oversight by the FAA,

airlines are, of course, primarily responsible for aviation safety.

Airlines use internal audits, reviews, and investigations, among

various other means, to continuously improve not only the safety

of individuals within the system but also the system itself, in

addition to being encouraged by the highest levels of government,

internal reviews and analyses are a function demanded by the

highest levels of airline management to identify anomalies within

the system. Self-critical analysis is sometimes performed by

internal airline auditors and, sometimes, by outside consultants,

but its objective is always the same: improved safety for the

travelling public.

'6 There is possibly one other industry that is as highly regulated as aviation -

the nuclear power industry. The comprehensive regulatory schemes mandated

by Congress for both of these industries is the result of Congress’s concern for

public health and safety. Cf. Critical Mass Energy Project v. NRC, 975 F.2d 871

(D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993) (holding that information

generated as part of a voluntary safety information sharing system and voluntarily

disclosed to the Nuclear Regulatory Commission ("NRC") could not be disclosed

by the NRC to third parties).

15

B. Airline Internal Safety Investigations are Intended to

Remain Confidential to Preserve the Free Flow of Ideas

Because of the sensitivity of the information developed by

internal safety investigations, airlines do not expect the results of

their safety reviews to be published. Rather, the information,

analysis, and recommendations developed during such reviews are

used to improve an airline’s safety performance, usually under the

direction of a company-wide safety officer who reports directly to

the company’s president or chief executive officer. As noted

below, even when an airline uncovers suspected violations of the

FAA’s regulations and communicates its findings to the FAA, the

FAA considers the communication to be confidential information

that cannot be disclosed under the Freedom of Information Act."

C. Permitting Discovery of Airline Internal Safety

Investigations Will Significantly Curtail the Flow of

Information and Will Diminish Their Value

There is significant value in having the results of internal

safety reviews in writing. Airlines are large organizations and

formal communication of these analyses is essential if they are to

be effective. Moreover, future generations of airline management

need to be able to learn from their predecessors. However, if

reports of airline internal audits and investigations were to be

divulged in the context of law suits, where otherwise constructive

ideas and recommendations may assume the aspect of hobgoblins

coming back to haunt the airline, frank discussion of observations

and incisive analysis of safety matters would come to a virtual end,

at least in writing, much to the detriment of airline programs

intended to improve safety.

7 See FAA Advisory Circular (AC) 120-56 (Appendix D to USAir’s

Petition) (exempting records voluntarily submitted to the FAA from disclosure

under the Freedom of Information Act, 5 U.S.C. § 552(b)(4)).

16

The issue before the Court should not be confused with

questions of liability or the availability of monetary awards in

aviation accidents. ijirlines already have strong incentives,

including (but certainly not limited to) judicially-awarded damages

and the potential of FAA certificate action and penalty

proceedings, to conduct the safest possible operations. When put

in the context of the airline industry, withholding self-critical

documents, whether generated by the airline or by an outside

consultant, is not an attempt to deprive plaintiffs of information,

but rather an attempt to further overriding statutory and public

policy goals that should and must supersede individual goals.

Forcing disclosure of internal safety documents will hinder, not

advance, that public policy goal and, ultimately, the safety of the

air transportation system.

This Court should recognize that compelling public policy

considerations dictate that such information should not be disclosed

in this litigation, especially since the factual data underlying an

airline’s analysis can be obtained elsewhere, can be analyzed by

plaintiffs’ experts, and can form the basis of those experts’

opinions.

Ill. BOTH CONGRESS AND THE FAA INTENDED TO

INSULATE SAFETY-RELATED INFORMATION FROM

LITIGATION

A. Congress Mandated the Protection of Aviation Safety-

Related Information

Airline safety is one of the most heavily-regulated endeavors

in the nation. The Department of Transportation (DOT) is directed

by statute to consider "maintaining safety as the highest priority in

air commerce” even when addressing economic decisions, 49

U.S.C. § 40101(a)(1). The FAA, the agency with primary

jurisdiction over airline safety, is obliged to regulate airlines "in a

way that best tends to reduce or eliminate the possibility or

recurrence of accidents in air transportation." 49 U.S.C. §

44701(c). And, as noted above, airlines have a duty to operate

17

with the "highest possible degree of safety in the public interest."

49 U.S.C. § 44701(d).

A clear example in aviation that the lack of protection chills

free and frank discussion of safety issues arises in the context of

the reluctance of airlines to share information relating to past

performance of pilots with other airlines."* As a result, Congress

is considering several bills, such as H.R. 3536, 104th Cong. 2d.

Sess. (1996), the "Airline Pilot Hiring and Safety Act," and Title

VII of the "Federal Aviation Administration Authorization Act of

1996," S.1994, 104th Cong. 2d. Sess. (1996), to discourage suits

and encourage sharing of pilot information between airlines.

Similarly, in establishing the NTSB, the independent agency

charged with investigating aviation tragedies such as the one that

is the subject of this litigation, the Congress anticipated that

litigants might wish to use the NTSB’s analysis, findings, and

recommendations for purposes that were not safety-related.

Accordingly, the Congress provided that:

No part of a report of the Board, related to an accident

or an investigation of an accident, may be admitted into

evidence or used in a civil action for damages resulting

from a matter mentioned in the report.

49 U.S.C. § 1154(b) (emphasis added). There are even more

stringent restrictions on the discovery and use of cockpit voice

recorder tapes and transcripts in litigation. See 49 U.S.C. §

1154(a). The House of Representatives recently passed H.R.

3159, 104th Cong. 2d. Sess. (1996), that would prohibit any

agency from disclosing safety-related information voluntarily

submitted to the NTSB in order to specifically encourage sharing

of safety data by airlines. See National Transportation Safety

'* Following a 1994 accident, the NTSB recommended that the FAA require

airlines to share pilot training and performance information, with due

consideration to privacy concerns.

18

Board Reauthorization: Joint Hearings before the Subcomm. on

Aviation, Subcomm. on Railroads of the House Comm. on Trans.

and Infrastructure, 104th Cong., 2d. Sess. 39, 50 (1996)

(Statement of Jim Hall, Chairman NTSB) ("This proposed

amendment would cure private sector concern and permit agency

access to information not now readily available to it.")

Although Congress left the specifics of aviation safety

oversight to the FAA, Congressional policy is clear, consistent,

and contrary to the use of safety-related investigative materials in

litigation arising out of aviation accidents. This Court should do

no less.

B. The FAA Strongly Encourages Internal Safety Audits and

Reviews

Government regulators cannot monitor every flight or look

over every employee’s shoulder, a fact that is recognized both by

the FAA and the airlines. For example, with FAA support the

aviation industry is planning to share safety data with a test-bed

Flight Operations Quality Assurance program. As the Chairman

of the Flight Safety Foundation states:

We believe strongly that nonpunitive safety-data

programs are excellent accident-prevention tools... .

But we must assure the industry that these data will

remain confidential and will not be used in legal actions,

and that individual privacy will be protected. ... .

Confidentiality, data security and the potential for

punitive and legal actions are among the industry’s top

concerns in establishing a widespread data exchange.

Flight Safety Foundation, News, FSF Chairs Aviation Industry

Data-sharing Task Force, Feb. 13, 1996.

The FAA, in proposing to implement a Global Analysis and

Information Network (GAIN) to encourage sharing of safety data

has also recognized the need for "adequate safeguards . . . to

19

protect the security and confidentiality concerns of the information

providers... ." A Call for the Development of Prototype(s) for

a Global Analysis and Information Network (GAIN), 61 Fed. Reg.

21522, 21523-524 (1996). The FAA gives several examples of

how effective data-sharing arrangements in other countries solved

critical safety problems before accidents occurred."

The FAA encourages airlines to perform internal safety audits

and reviews, to improve their safety and systems as a result of

their internal findings, and to report any suspected lapses to the

FAA without jeopardy of FAA enforcement action, imposition of

civil penalties, or disclosure to third parties under the Freedom of

Information Act, 5 U.S.C. § 552, because disclosure of such

reports would both:

(1) impair the Government’s ability to collect similar

information in the future, and (2) cause harm to an

"identifiable" governmental interest.

FAA Advisory Circular (AC) 120-56, p. 7. While AC 120-56

applies, by its terms, only to suspected instances in which an

airline may not have complied with the FAA’s regulations, the

principle stated in the Advisory Circular (as well as in a similar

Advisory Circular directed to the aviation manufacturing

community and in policy statements by the U.S. Secretary of

Transportation and the FAA Administrator) is crystal clear: There

is an overriding governmental interest in airlines’ engaging in

internal investigations of their safety performance without the

threat of punishment by the FAA or discovery by third parties for

use in litigation.

'S For example, data analysis found that an airline’s pilots were frequently

disregarding ground proximity warnings due to a high false alarm rate and led to

software fixes to reduce false alarms. Jd. at 21524. Data analysis also disclosed

that a particular type of aircraft was developing cracks due to hard landings

where no post-landing inspections were required, leading to mandatory

inspections following such landings. Jd.

20

Allowing the court below to compel disclosure of airline

internal safety analyses is directly contrary to a strong public

policy expressed by Congress in adopting the comprehensive

aviation safety regulatory scheme of the transportation laws and is

directly contrary to the implementation of those laws by the agency

designated by Congress to establish such policies. This Court

should adopt the good judgment of the federal agency with primary

jurisdiction over airline safety, the FAA, and refuse to allow the

court below to compel disclosure of the documents sought by

plaintiffs.

CONCLUSION

For the foregoing reasons, this Honorable Court should grant

USAir’s Petition for a Writ of Prohibition.

Respectfully submitted,

LOUISE B. COBBS*

HAIGHT, GARDNER, POOR & HAVENS

2000 Pennsylvania Ave., NW, Suite 4400

Washington, DC 20006-1812

(202) 496-2700

* Counsel of Record for Amicus Curiae

Air Transport Association of America

Al

APPENDIX A

5 U.S.C. § 552. Public information; agency rules,

(b)

opinions, orders, records, and proceedings

This section does not apply to matters that are -

(4) trade secrets and commercial or financial information

obtained from a person and privileged or confidential;

*~_ xe xe kK *

10 U.S.C. § 1102. Confidentiality of medical quality

(a)

(b)

assurance records: qualified immunity for

participants

Confidentiality of records. Medical quality assurance

records created by or for the Department of Defense as

part of a medical quality assurance program are

confidential and privileged. Such records may not be

disclosed to any person or entity, except as provided in

subsection (c).

Prohibition on disclosure and testimony.

(1) No part of any medical quality assurance record

described in subsection (a) may be subject to discovery

or admitted into evidence in any judicial or

administrative proceeding, except as provided in

subsection (c).

(2) A person who reviews or creates medical quality

assurance records for the Department of Defense or who

participates in any proceeding that reviews or creates

such records may not be permitted or required to testify

in any judicial or administrative proceeding with respect

to such records or with respect to any finding,

recommendation, evaluation, opinion, or action taken by

A2

such person or body in connection with such records

except as provided in this section.

** * *k * *

38 U.S.C. § 5705. Confidentiality of medical quality

assurance records

(a) Records and documents created by the Department as part

of a medical quality assurance program (other than reports

submitted pursuant to section 7311(g) of this title) are

confidential and privileged and may not be disclosed to any

person or entity except as provided in subsection (b) of this

section.

x** kek kK &

49 U.S.C. § 1154. Discovery and use of cockpit voice

and other material

(a) Transcripts and recordings.

(1) Except as provided by this subsection, a party in a

judicial proceeding may not use discovery to obtain -

(A) any part of a cockpit voice recorder transcript that

the National Transportation Safety Board has not made

available to the public under section 1114(c) of this title;

and

(B) a cockpit voice recorder recording.

(2) (A) Except as provided in paragraph (4)(A) of this

subsection, a court may allow discovery by a party of a

cockpit voice recorder transcript if, after an in camera

review of the transcript, the court decides that -

A3

(i) the part of the transcript made available to the

public under section 1114(c) of this title does not

provide the party with sufficient information for

the party to receive a fair trial; and

(ii) discovery of additional parts of the transcript

is necessary to provide the party with sufficient

information for the party to receive a fair trial.

(B) A court may allow discovery, or require production

for an in camera review, of a cockpit voice recorder

transcript that the Board has not made available under

section 1114(c) of this title only if the cockpit voice

recorder recording is not available.

(3) Except as provided in paragraph (4)(A) of this subsection,

a court may allow discovery by a party of a cockpit voice

recorder recording if, after an in camera review of the

recording, the court decides that -

(4)

(A) the parts of the transcript made available to the

public under section 1114(c) of this title and to the party

through discovery under paragraph (2) of this subsection

do not provide the party with sufficient information for

the party to receive a fair trial; and

(B) discovery of the cockpit voice recorder recording is

necessary to provide the party with sufficient information

for the party to receive a fair trial.

(A) When a court allows discovery in a judicial

proceeding of a part of a cockpit voice recorder

transcript not made available to the public under section

1114(c) of this title or a cockpit voice recorder

recording, the court shall issue a protective order -

(i) to limit the use of the part of the transcript or

the recording to the judicial proceeding; and

A4

(ii) to prohibit dissemination of the part of the

transcript or the recording to any person that does

not need access to the part of the transcript or the

recording for the proceeding.

(B) A court may allow a part of a cockpit voice recorder

transcript not made available to the public under section

1114(c) of this title or a cockpit voice recorder recording

to be admitted into evidence in a judicial proceeding,

only if the court places the part of the transcript or the

recording under seal to prevent the use of the part of the

transcript or the recording for purposes other than for the

proceeding.

(5) This subsection does not prevent the Board from referring

at any time to cockpit voice recorder information in making

safety recommendations.

(b) Reports.

No part of a report of the Board, related to an accident or an

investigation of an accident, may be admitted into evidence or

used in a civil action for damages resulting from a matter

mentioned in the report.

49 U.S.C. § 40101. Policy

(a) Economic regulation.-In carrying out subpart II of tais

part and those provisions of subpart IV applicable in carrying

out subpart II, the Secretary of Transportation shall consider

the following matters, among others, as being in the public

interest and consistent with public convenience and necessity:

(1) assigning and maintaining safety as the highest

priority in air commerce.

x~x ene &*

AS

49 U.S.C. § 44701. General requirements

(c) Reducing and eliminating accidents. The Administrator

shall carry out this chapter in a way that best tends to reduce

| or eliminate the possibility or recurrence of accidents in air

transportation. However, the Administrator is not required to

give preference either to air transportation or to other air

commerce in carrying out this chapter.

(d) Considerations and classification of regulations and

standards. --When prescribing a regulation or standard under

subsection (a) or (b) of this section or any of sections 44702-

44716 of this title, the Administrator shall--

(1) Consider--

(A) the duty of an air carrier to provide service

with the highest possible degree of safety in the

public interest; and

(B) differences between air transportation and

other air commerce; and

(2) classify a regulation or standard appropriate to the

differences between air transportation and other air

commerce.

~_* eke &