In re Air Crash near Cali, Colombia On Dec. 20, 1995

• Decision Date: 07 February 1997
• Docket Number: No. 96-MD-1125.,96-MD-1125.
• Citation: 959 F.Supp. 1529
• Parties: IN RE AIR CRASH NEAR CALI, COLOMBIA ON DECEMBER 20, 1995.
• Court: U.S. District Court — Southern District of Florida

959 F.Supp. 1529

IN RE AIR CRASH NEAR CALI, COLOMBIA ON DECEMBER 20, 1995.

No. 96-MD-1125.

United States District Court, S.D. Florida.

February 7, 1997.

Aaron Podhurst, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, for Plaintiff.

Howard Barwick, Barwick, Dillian, Lambert & Ice, P.A., Miami, FL, Christopher H. Knight, Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, FL, for Defendant.

MARCUS, District Judge.

ORDER

THIS CAUSE comes before the Court upon the Defendants' "Motion for Reconsideration of October 1, 1996 Order," filed October 11, 1996. The pending motion concerns the Defendants' claim of a privilege for certain documents prepared pursuant to the American Airlines Safety Action Partnership ("ASAP") program. In reliance on this perceived privilege, America has refused to produce 23 documents that otherwise are responsive to the PSC's production requests. The initial round of briefing on this issue was completed in November, 1996. On December 13, 1996, the Court received an amicus submission from the Air Transport Association of America ("ATAA"), a non-profit organization that "represents the interests of the U.S. commercial airline industry before the United States Congress, federal agencies, state legislatures and before federal and state courts." ATAA Mem., at 2-3.¹ The Plaintiffs responded to the amicus brief on December 23, 1996.

After a thorough review of the record and pleadings, and being otherwise advised in the premises, the Defendants' motion is GRANTED IN PART. The Court finds, on this record, that the ASAP materials are entitled to a qualified privilege. Nevertheless, American shall submit all of the pertinent ASAP documents in camera for Court review within fifteen (15) days of the date of this Order. The PSC may attempt to overcome this qualified privilege upon a sufficiently particularized showing of substantial need and undue hardship.

I.

This litigation arises out of the crash of American Airlines flight no. 965 ("Flight 965") on December 20, 1995 near Cali, Colombia. One hundred fifty-nine passengers and crew members died as a result of the crash, with another four passengers suffering non-fatal injuries. The initial lawsuit was filed on December 29, 1995. Since then, over 130 additional lawsuits have been consolidated before this division of the Southern District of Florida. A nine-member steering committee (the "PSC") represents the Plaintiffs in these consolidated cases.

In May of 1996, the PSC served its initial request for the production of documents by American Airlines. American responded with a series of privilege logs referencing some of the sought-after materials. On July 22nd, the PSC moved to compel production of documents identified in these logs. In an Order dated October 1, 1996, the Court rejected American's argument that documents not falling within the work product or attorney-client privileges could be withheld under the so-called "self-critical analysis" privilege. We also directed American to submit in camera the relatively small number of documents for which it claimed work product or attorney-client protection.² On October 11th, the Defendants filed the instant motion for reconsideration of the October 1st Order, to the extent that it requires production of two documents prepared in conjunction with the ASAP program. These two documents are identified in exhibit "A" to its motion and have been submitted in camera. Since that time, American has identified 18 additional documents that, it asserts, were prepared in connection with the ASAP program. An updated list of the 20 documents at issue appears in the Defendants' amended exhibit "A", which is attached to their reply brief. On October 31, 1996, the Defendants uncovered another three ASAP documents.³ At no point in its privilege logs or in its memorandum in opposition to the motion to compel did American seek unique treatment for the ASAP materials.

II.

American's explication of the ASAP program is contained principally in the affidavit of Scott Griffith, the managing director of flight operations safety for the airline. See Def. Notice of Filing Revised Executed Aff., October 12, 1996. The affidavit explains that the ASAP program is an initiative undertaken in 1994 by the Federal Aviation Administration ("FAA" or "Agency"), the Allied Pilots Association ("APA") and American Airlines. It is a "voluntary pilot self-reporting program designed to encourage pilots to report incidents and violations." Id. at ¶ 4. The objectives of the program "are to identify and to reduce or eliminate possible flight safety concerns, as well as to minimize deviations from Federal Aviation Regulations [`FAR's']. This could include altitude, heading, speed and other deviations during flight, taxiway or runway incursions during ground operations, and navigational or terrain-avoidance problems." Def. Mot., at exh. C-1. Pilots' reports, which may contain self-disclosure of possible FAR violations or recount general flight safety concerns, are collected electronically. "Upon submission, the de-identified reports are reviewed on a weekly basis by a joint committee comprised of representatives from American, FAA and APA who in turn issue pilot advisories, procedure changes and individual skill enhancement recommendations," with an eye toward evaluating "changes in flight and training procedures and implement[ing] other corrections that may prevent further incidents." Griffith aff. at ¶ 5. The reports are kept confidential, and the identity of the reporting pilots cannot be disclosed outside of ASAP. Indeed, pursuant to a proposed FAA Advisory Circular, records submitted to the FAA for review in conjunction with ASAP programs will be exempted from the disclosure requirements of the Freedom of Information Act. Id. Moreover, "[i]nformation from ASAP reports will not be used to initiate or support an investigation of non-reporting airmen." Def. Mot., at exh. C-1.

Independent of the guarantee of confidentiality, pilots are given a strong practical incentive to disclose real and apparent violations of FAR's. Under the ASAP program, pilots who self-report minor, inadvertent violations may not be subject (if certain conditions and prerequisites are met) to license revocations or other enforcement actions by the FAA. Instead, the reporting pilot may be subject to "administrative action" in the form of a letter of correction (which does not contain a finding as to whether a violation actually occurred). Def. Mot., at exh. C-1. Letters of correction, when issued, are made a matter of public record for two years, after which they are expunged. Id.⁴ Moreover, "[i]n cases where the airman is the sole source of information indicating a possible violation of FAR's, every consideration will be given to corrective matters that do not involve FAA administrative action." Id. Although the ASAP program apparently has not been extended fully to air carriers other than American, some observers view it as a "prototype for future partnership programs between the airlines and the FAA to promote safety." ATAA Mem., at 1 (citing exh. 1). ASAP is one of several voluntary-reporting initiatives undertaken in recent years. See Def. Mot., at exh. C-1.

III.

Our starting point is Rule 26(b)(1) of the Federal Rules of Civil Procedure, which permits discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, [and] need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." In order to preserve the liberal discovery contemplated by the Federal Rules, the burden falls on the party opposing discovery—in this instance, American Airlines— to prove its entitlement to a privilege for otherwise relevant documents. See, e.g., In re Air Crash Disaster at Sioux City Iowa, 133 F.R.D. 515, 518 (N.D.Ill.1990) (reaffirming the well-settled proposition that "the party seeking the privilege has the burden of establishing all of its essential elements").

American seeks protection for the ASAP materials on one of two theories. First, it suggests that the materials fall within the "self-critical analysis" privilege. Second, it suggests, in more indirect terms, that we should recognize a new, common law privilege for materials produced in connection with the ASAP program.

The Court is unpersuaded that the self-critical analysis privilege applies in this context. We discussed the contours of this privilege in the Order of September 26, 1996:

The Defendant acknowledges that the Eleventh Circuit has not recognized this broad privilege in a case similar to the one at bar. According to American, however, facts and opinions obtained during a airline's retrospective investigation of a crash should be precluded from discovery, in order to ensure that commercial airlines remain free to undertake thorough, searching and honest review of what went wrong, with an eye toward protecting passengers from similar incidents in the future. As American sees it, such a review cannot take place if the airline's investigators fear that any incriminating findings will be divulged to outsiders. At least under the facts and circumstances of this case, we are unwilling to recognize a self-critical analysis privilege.

The first problem is one of definition. What American describes as the "self-critical analysis privilege" has been given different names and applied in widely different contexts by the courts. See Tharp v. Sivyer Steel Corp., 149 F.R.D. 177, 179 n. 5 (S.D.Iowa 1993) (collecting cases). For example, some courts have created a privilege for physician "peer reviews" concerning the quality of patient care. See Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C.1970), aff'd without op., 479 F.2d 920 (D.C.Cir.1973). Other courts have recognized a privilege for internal reports that evaluate a company's...