December 2010

Court Orders Production of Audio Recording of Cockpit Voice Recorder

Holland & Knight Newsletter
Judy R. Nemsick

In multidistrict litigation arising from the February 2009 crash of Continental Connection Flight 3407 near Clarence Center, New York, the district court granted the plaintiffs’ motion to compel the production of the audio recording of the cockpit voice recorder (CVR) after concluding it was necessary for a fair trial. Defendants Colgan Air, Inc. (Colgan), the operator of the code-share flight with Continental, and Pinnacle Airlines Corp., the parent company of Colgan, opposed production of the audio recording, while defendants Aerospace Corp. and Bombardier, Inc. joined in the plaintiffs’ motion.1

The plaintiffs argued that production was necessary because the written transcript of the CVR was incomplete and inaccurate, and contained evidence relevant to passengers’ pre-impact fear and pain and suffering, the pilots’ attentiveness and situational awareness, and the cockpit atmosphere. The Bombardier defendants contended that the recording contained evidence relevant to two of their defenses: misuse of the aircraft and negligence by the captain and first officer. Colgan argued that sounds from the cabin could not be heard on the CVR, the written transcript sufficiently conveyed the information sought by the movants, and that production would be unfairly prejudicial because “it invades the privacy right of the flight crew and their families” and “sensationalize[s] the allegations of pilot error.”

In deciding the motion, the court followed the federal regulation governing discovery of a CVR audio recording, which permits discovery if, after an in camera review, the court decides (1) that the available written transcript does not provide the moving party with sufficient information for the party to receive a fair trial, and (2) discovery is necessary for the moving party to receive a fair trial. See 49 U.S.C. § 1154 (a)(3). The production of a non-public recording such as a CVR may occur only under the terms of a protective order that, at a minimum, limits its use to the judicial proceeding and prohibits dissemination to any person that does not require access to it. The statute is intended to balance the privacy interests of crew members with the need for a complete and fair investigation.

Problems With the Written Transcript and Audio Recording

Following its in camera review, the court agreed with the plaintiffs that the written transcript of the recording was incomplete and inaccurate, expressly noting that there were “several minor transcription errors, out-of-sequence notations, and editorial insertions that were not readily audible on the recording.” Additionally, the court determined that the plaintiffs’ experts should be permitted to evaluate the reasoning of the NTSB committee charged with interpretation of the audio recording in deciding how to classify words, sounds and noises, including the designations of “unintelligible” and “non-pertinent” words.2 The court further held that disclosure was necessary to reflect the tone of voice, pitch, volume and inflection along with ambient noise and other sounds relevant to the operation of the aircraft. According to the court, all of these may be relevant to the crew members’ state of mind, emotional condition, and situational awareness and, therefore, “fairness dictates that the parties be permitted to examine the raw recording.”

Because the NTSB had completed its investigation, the court reasoned that there was little concern with safeguarding the integrity of that investigation. Finally, the court emphasized the importance of this evidence because the CVR “is often the only piece of neutral evidence in an air crash case.” To alleviate concerns for the privacy rights of the crew and their families and the possibility of unfairly prejudicing the jury pool, the court issued a protective order to govern the distribution of the audio recording.


1 Defendant Continental Airlines, Inc. did not take a position on the motion.

2
Citing In Re Air Crash at Lexington, Kentucky, August 27, 2006, No. 5:06-CV-316-KSF, 2007 WL 4321865 (E.D. Ky. Dec. 6, 2007) (ordering production because written transcript was reached by group consensus and expert may disagree with interpretation of recording); McCoy v. Southwest Airlines Co., 208 F.R.D. 617, 619 (C.D. Cal. 2002) (ordering production because recording was incomplete and may not reflect noises that may be relevant to plaintiffs’ experts).

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