The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
This document relates to: ALL CASES
Presently before this Court is Plaintiffs' Joint Motion to Compel production of the cockpit voice recorder audio recording from Continental Connection Flight 3407. (Docket No. 286.) Defendants Bombardier Aerospace Corporation and Bombardier, Inc. join Plaintiffs' motion. (Docket No. 294.) Defendants Colgan Air, Inc. and Pinnacle Airlines Corp. oppose it.*fn1 (Docket No. 311.)
Having reviewed the cockpit voice recorder audio recording in camera, this Court finds that discovery of the recording is necessary to allow for a fair trial. Plaintiffs' motion is therefore granted. The audio recording will be made available to the parties under the terms of a protective order.
Plaintiffs filed their Motion to Compel on March 23, 2010. They maintain that without access to the recording, they will be denied a fair trial, because the written transcript of the recording is incomplete and inaccurate. Plaintiffs further argue that the recording contains evidence relevant to pre-impact terror, conscious pain and suffering, the pilots' attentiveness, the atmosphere in the cockpit, and situation awareness, none of which can be assessed or judged through the written transcript. The Bombardier defendants add that the recording undoubtedly contains evidence relevant to two of their defenses: misuse of the aircraft and negligence of the Captain and First Officer.
Colgan maintains that production of the audio recording is not necessary because the written transcript is accurate and Plaintiffs have not demonstrated that production of the recording is required to ensure a fair trial. In Colgan's view, the written transcript sufficiently reflects the pilots' attentiveness and accurately conveys what occurred in the cockpit. Moreover, it argues that the recording itself is not relevant to the decedents' pre-impact terror because it is a cockpit recording, not a recording from the cabin. It further argues that the recording is not relevant to punitive damages because the personal discussions between the pilots - whether appropriate or not - are not indicative of "corporate culture" or a corporate policy. Finally, Colgan argues that even if the statutory requirements for production are met, the recording should not be disclosed on public policy grounds, because it invades the privacy right of the flight crew and their families and would serve only to sensationalize the allegations of pilot error, thus unfairly prejudicing the jury against the defendants.
Discovery of a cockpit voice recorder audio recording is governed by 49 U.S.C. § 1154. Pursuant to § 1154 (a)(3), discovery of a recording is authorized if, after in camera review, the court decides that (1) the available transcript does not provide the moving party with sufficient information for that party to receive a fair trial, and (2) discovery of the recording is necessary for the moving party to receive a fair trial. Discovery of a non-public recording can occur only under the terms of a protective order that, in the least, (1) limits use of the recording to the judicial proceeding, and (2) prohibits dissemination of the recording to any person that does not need access to it for the proceeding. 49 U.S.C. § 1154 (a)(4)(A). Section 1154 is designed to "strike a balance between the privacy interests of crew members and the need for full and fair investigations." Buschmann v. Little Rock Nat'l Airport, 222 F.R.D. 114, 116 (N.D.Tex. 2004) (citing Senate Report No. 101-450, 1990 U.S.C.C.A.N. 6376, 6381); see also McCoy v. Southwest Airlines Co., Inc., 208 F.R.D. 617, 619 (C.D.Cal. 2002).
Having reviewed the audio recording in camera, this Court finds that Plaintiffs have satisfied their burden of demonstrating that the written transcript is insufficient, and that production of the recording is necessary to ensure that they receive a fair trial.
First, Plaintiffs correctly argue that the written transcript of the recording is incomplete and may be inaccurate. As it does in most air crash cases, the National Transportation Safety Board ("NTSB") assembled a committee to listen to the cockpit voice recorder audio recording and prepare a written transcript. (Krzak Decl., Docket No. 287, ¶ 5.) The committee ...