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03 February 2021
Legal team's on-scene actions
NTSB control of site
NTSB working groups
NTSB interview process
Witness interviews – dos and don'ts
Federal regulators as NTSB parties
State regulators as NTSB parties
Evidence gathering and responding to requests
Post-scene investigative work
The National Transportation Safety Board (NTSB) investigates aviation, railroad, highway, marine and pipeline accidents to determine their probable cause and issues safety recommendations to reduce the risk of future accidents.(1) This article outlines the NTSB's investigation process within the initial 30 days following an incident.
When an incident is being investigated by the NTSB, the transport provider or manufacturer's in-house attorney assigned to the NTSB investigation and the company's NTSB-dedicated outside counsel must converge on the accident scene, along with the pre-designated party coordinator, as quickly as possible. A dedicated conference room must be requisitioned along with support staff and technology. If the emergency response plan has not already triggered periodic internal coordination conference calls, that should also be done. A similar separate call will most likely have to be coordinated for those involved with the NTSB investigation.
One of the first orders of business for the legal team will be to issue a broad legal hold, inclusive of electronic records, including email. The scope of the hold, including the list of potential custodians, can be expected to grow as the investigation unfolds. Once the scope stabilises, the company should consider retention of an outside vendor to conduct a forensic collection. Having control of relevant documents becomes particularly important if the incident is investigated by entities beyond the NTSB and, of course, for anticipated litigation.
The NTSB's on-scene goal is to preserve perishable evidence. However, the NTSB will also want to begin interviewing individuals with direct involvement quickly, including those assisting with emergency response efforts. It seems to be universally thought by the NTSB that the longer that it waits to conduct these interviews, the more likely that people's memories will become contaminated by:
Once the NTSB team arrives on scene, they will want to meet with the incident commander, if there is one, and the first responders. The NTSB team will want to assess physical hazards and biohazards and determine when the scene will be available to begin their investigation.
The NTSB will invite the following parties to an organisational meeting at the facility that it has chosen as its headquarters in the area:
If the NTSB arrives in the morning, the organisational meeting will be that afternoon or early evening. If they arrive in the afternoon, that meeting will most likely be early the next day. No lawyers (for a company or injured party) or insurance claims people can attend this meeting.
The organisational meeting is the NTSB working group members' opportunity to introduce themselves and explain the party investigation process and party confidentiality obligations. They will invite those listed above and sometimes others to be parties to the investigation and will ask each of their representatives to sign an NTSB party certification on behalf of their organisation. This is an important document which contains obligations and restrictions that must be carefully reviewed and understood.
NTSB working groups will then be announced along with the NTSB chair for each group. The parties will be asked to staff and provide resources for each group.
These organisational meetings sometimes stop at organisational efforts but often go directly into the substantive aspects of the event. If that happens, the parties may be asked to provide a summary of what they know so far and recommendations as to how best to proceed.
The NTSB's investigator-in-charge (IIC) will want the transport provider to arrange 24-hour security at the accident site. They will also expect the transport operator to arrange for any necessary testing. The IIC will demand copies of all test results, pictures and notes from all parties.
NTSB investigations make use of working groups to focus on different aspects of an accident. Each working group is comprised of a chair from the NTSB, additional NTSB investigators and a representative from each party. These party representatives must have technical expertise in the working group's focus area and cannot be lawyers.
A major aviation or rail calamity may involve a dozen or more NTSB working groups, including:
Marine and highway incidents involve fewer working groups.
NTSB working groups coordinate with the IIC on their own requests to the parties (and others) for information, documents and witness interviews. A working group may be on scene for several days, coordinating excavation and testing, and then start conducting interviews of operator staff, contractors or others.
Should an NTSB request for information or documents be met with resistance, federal subpoenas are issued without hesitation by the NTSB Office of the General Counsel. The NTSB's investigative authority is broad and even extends into health and autopsy records, for which any civil litigant would need specific authorisations.
While a company should pre-select likely party coordinators, it is difficult to pre-select members for participation in NTSB working groups. These party representatives are typically local to an incident and must be rapidly brought up to speed on the NTSB process.
Witness interviews in NTSB investigations typically take place in the first few days on scene and then midway through the factual investigation at a party's corporate offices. NTSB interviews often feel unusual. The NTSB strives to make them as informal as possible and put the witnesses at ease. They begin with a casual statement by the working group chair that the NTSB's mission is to prevent future accidents as opposed to finding fault. The interviews are typically recorded rather than having the testimony taken down by a court reporter. There is no formal swearing in or affirmation to tell the truth. While it is a felony to lie to a federal agent or obstruct a federal investigation, the NTSB does not routinely caution witnesses about this. These interviews typically move along much more superficially and rapidly than those in a litigation deposition. Witnesses are often asked, in a single question, to provide a brief statement of their educational background and work history, along with an explanation of their actions at the time of the incident and why such actions were taken. Background topics that might occupy hours in a deposition are covered in a few minutes and any follow-up questions are rare. Topics are also often introduced with little or no foundation. For many witnesses, this approach is not a problem, but for others it can be confusing and lead to misunderstandings by both the witness and the questioner.(2)
The purpose of these interviews is for the working group to quickly learn as much as it can from witnesses on specific aspects of the accident. The NTSB knows that the interviews are typically not comprehensive or thorough. Unlike most depositions, these witnesses can be re-interviewed later or their employer can be asked for any necessary clarification. It is also rare that there is any logical place to start with the interviews; witnesses may be unavailable or an interview sequence that makes sense in the morning may be disrupted by what is learnt throughout the day.
The working group chair always starts each witness's questioning. The questioning then moves to the other NTSB working group members and finishes with each of the party representatives. The questioning will then be repeated in that order, sometimes multiple times. When a party's employee is being questioned, that party's representative may have an opportunity to resolve confusion with clarifying questions. That said, most party representatives have never been involved in, much less trained for, participation in such an interview process. The process is far from perfect but it seems to work from the NTSB's point of view.
Most NTSB interviews are less than two hours, with many less than one hour.
Everyone interviewed by the NTSB is entitled to have a representative at the interview. As explained by many IICs early on in an interview, this representative could be nearly anyone, including the witness's:
If there are potentially criminal implications, witnesses will often be represented at NTSB interviews (if they are willing to be interviewed at all) by a criminal defence attorney. In most investigations, company witnesses are represented by the NTSB-specific outside counsel that the company has retained in connection with the NTSB investigation.
With multiple witnesses interviewed day after day on scene – typically only one or two days after the incident, there is often little time to conduct traditional preparation, even if two or more company lawyers are involved. However, at a minimum, it is critical that witnesses are instructed to:
Witnesses must be aware that it is a crime to lie to a federal investigator.
While an attorney is free to make litigation-style objections at an NTSB interview, such objections are typically not well received. In addition, such objections are usually phrased differently – for instance, in response to a compound question, a knowledgeable outside NTSB attorney will comment "oh my goodness that sounds like quite a few questions" rather than "objection, compound question".
For interviews that are recorded, witnesses are provided transcripts of their interviews and offered the opportunity to submit an errata sheet. While witnesses are typically admonished to propose changes only for transcription errors, the better practice is to propose changes to any answers that are incorrect or misleading upon further reflection. The NTSB needs a solid factual foundation upon which to base its findings and recommendations; failing to propose a correction to an answer that is wrong or misleading does not serve the investigation or witness.
Federal regulators (the Federal Aviation Administration, the National Highway Traffic Safety Administration, the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, the Federal Transit Administration, the Pipeline and Hazardous Materials Safety Administration and the United States Coast Guard) are almost always parties to NTSB investigations. They typically send a skilled investigator and are active participants both on scene and in interviews. That said, these regulators routinely make their own demands for documents and information. The usual request of an IIC is that the NTSB expects to receive a copy of any document or information that is given to any regulator.
State regulators are sometimes parties. However, whether parties or not, they will make their own demands for documents and information. As discussed, any documents that are given to such state regulators will most likely need to be shared with the NTSB.
The first few days of any investigation are filled with informal requests for documents and information, much of which is ultimately irrelevant and may not be read. However, to be fair, early in an investigation it is unclear what will become relevant, which results in intentionally broad requests.
Attorneys are accustomed to responding to requests only if they are in writing and in a reasonable amount of time. Neither can be expected in the case of NTSB investigations. Requests are often made orally with the expectation that whatever is requested will be provided by the next morning. This makes for many long days and nights, reinforcing the need to appropriately staff the situation.
All documents that are supplied to the NTSB in connection with an investigation should be Bates labelled and logged on a Bates index. That index should include:
If documents are supplied before this process is up and running, duplicate documents that are Bates labelled should be exchanged for the non-Bates labelled versions. To facilitate this process, the administrative team, and most likely the party coordinator and attorneys involved, should all have software capable of Bates labelling and be trained in its use.
The NTSB will not sign non-disclosure agreements but it will allow parties to mark documents as "confidential" and agree to provide notice should it want to use said document in one of its reports or respond to a Freedom of Information Act request. Any confidential document provided to the NTSB should be clearly marked "confidential" on every page.
All responses to requests should flow through the party coordinator, regardless of who on the NTSB team made them. All oral responses to NTSB requests made over the course of a day should be followed up that night with polite confirming emails. All documents provided in hard copy, on flash drives or attached to emails should also be uploaded on the same day to the NTSB's file transfer protocol (FTP) website by a party's staff member whose job it is to keep the NTSB's FTP site up to date. This staff member should know how to use the site and understand the NTSB document naming conventions.
It should be presumed that all communications with the NTSB will someday be made public and be subject to discovery demands in litigation.
As with external communications, it should similarly be presumed that all non-privileged internal communications will someday be subject to discovery demands in litigation. Everyone on the team must understand that a document or communication does not become protected by attorney-client privilege merely because a lawyer is copied in. It must also be understood that attorney-client privilege can be waived if a document or communication is forwarded for a purpose other than to seek legal advice.
The NTSB typically arrives on scene with great fanfare, encouraging the press to cover its arrival. The spokesperson will be the presidentially appointed member, typically with the IIC standing at their side.
After the decision is made to launch a major investigation, the NTSB team on such a launch will likely include:
Sometimes, the team also includes a representative from the NTSB family-assistance office and an attorney from the NTSB Office of the General Counsel.
Phone call from NTSB chair
It is routine on the first day of an investigation for the NTSB chair to request a call with the chair or president of the transport provider. The purpose of the call is to confirm cooperation, answer any questions which they may have about the NTSB investigation and offer a direct line of communication should anything go awry.
NTSB review of scene
The NTSB team typically travels straight from the airport to the scene. From there, they will seek meetings with the incident commander, first responders and transport provider. As discussed above, they will also assess physical hazards and biohazards. The NTSB typically cannot begin their on-scene work until the site is released to them by the incident commander.
NTSB command centre set up
The NTSB typically sets up its command centre in a large conference room at a local hotel. This is because this is likely to be the location of their morning and evening internal briefings.
NTSB organisational meeting and identification of parties to investigation
As discussed above, the organisational meeting is the NTSB working group members' opportunity to introduce themselves and explain the party investigation process and party confidentiality obligations. Parties will be asked to sign the NTSB party certification on behalf of their organisation. NTSB working groups will then be announced, along with the NTSB chair for each group. The parties will be asked to staff and provide resources for each group. Frequently, the plan for the day (or the next day, if the organisational meeting is late) is announced and comments and suggestions are taken.
Ideally, the IIC will provide parties with access to the NTSB's accident-specific FTP site, along with instructions for its use, including a file naming convention. However, often this accident-specific site is not set up for several days or even weeks. In the meantime, parties often volunteer to provide a file-sharing site for the NTSB's temporary use.
Try to be helpful but avoid informal interviews
The NTSB team will begin interacting with the company's personnel as soon as they arrive on scene. This presents a problem. While the company will want to be helpful, there will be a concern that an offhand remark in these discussions will be taken as fact and later result in misunderstandings. Everyone involved must be made aware of this concern. When interacting with NTSB personnel, it is important to be courteous and professional. However, if a company employee is asked substantive questions in a conversation with the IIC or other members of the NTSB team, the employee must politely refer the NTSB to the company's party coordinator. This is much easier said than done, but it is important.
Initial NTSB press briefing
There is typically a press briefing, timed to coincide with the national news cycle, each day that a member is on scene. This is usually the initial three or four days following the incident. Subsequently, the NTSB will release news from its Washington DC headquarters.
While press briefings are usually held in large hotel conference rooms with a blue backdrop prominently featuring the NTSB logo, the NTSB will occasionally hold press briefings at an accident scene.
The press briefings are carefully planned to involve the release of only basic facts, often with graphics and illustrations. It is rare for the NTSB to release more substantive information at this stage of its investigation.
Although snippets of these press briefings are often available on the nightly news, or in full on YouTube within a few days, a representative from the company's NTSB team must attend. If confusion arises and there is a misstatement of fact, it must be called to the IIC's attention immediately after the briefing. Should the briefing delve beyond fact and into opinion, or if a likely cause of the accident is announced, everyone on the team must know as soon as possible.
Multiple parallel efforts
Day two will be the first day of multiple parallel efforts by the NTSB working groups. It will most likely be the day of maximum stress for the party coordinator, legal team and staff. Many things will be happening.
Physical evidence harvesting and preservation
The NTSB will focus on gaining an understanding of whatever there is to understand at the scene. It will want instant access to maps and drawings, as well as to all maintenance and test data. It will also want construction crews ready to do whatever work must be done.
Requests for documents and information
Simultaneously, the NTSB will start compiling a categorical list of people, possibly with some specific names, ahead of interviews that will begin as early as the afternoon of day two, although it is more common to start the morning of day three. To prepare for the interviews, the in-house legal team must:
Throughout the day, the IIC and group chairs will make oral requests for documents from the party coordinator and party members of the working groups. The party members should immediately advise the party coordinator and the legal or admin team responsible for assembling the information and documents. The NTSB will expect some of the documents immediately with the balance before the morning meeting the next day.
NTSB press briefing
Due to national news cycles, the daily NTSB press briefing is often as early as 3:30pm. This can be disruptive because the IIC must meet with the member and their team to prepare for the briefing and be present at the briefing in case a question is posed that the member cannot answer.
End of day NTSB progress meeting with parties
At the end of every day on scene, the NTSB's IIC will hold a single meeting for their staff and all party coordinators and party members (typically at 5:00pm or 6:00pm), at which each working group will summarise its progress that day and confirm plans for the next day. The large group will brainstorm ideas and try to resolve any problems.
At the conclusion of this meeting, the party coordinator should speak privately with the IIC to make sure that they are pleased with the level of cooperation and ask if there is anything more that the company can do to make the IIC's job and the investigation progress more effective or efficient.
Coordination meeting with party's NTSB team
After the NTSB progress meeting, the party coordinator and the rest of the company's NTSB team will meet to debrief, confirm outstanding information and document requests and assist the party coordinator and working group members with logistical or other issues.
By day three, interviews are typically earnestly moving forward. Often, two working groups will be conducting interviews simultaneously, requiring simultaneous representation for two company witnesses.
Make sure party's working group members are properly prepared
A common mistake is a failure to appreciate that the party may have a party representative who is serving as a working group member and will therefore be participating in all interviews with an opportunity to ask questions. That party representative will most likely not have done anything like this before. They need an explanation of the process and some examples of how best to clarify the record if things get confusing. Witnesses must also be informed that questions from their fellow employee who is serving as a working group member are likely intended to clarify the record.
Make sure employees are appropriately prepared
As witness preparation is considered, if there is a reasonable likelihood that criminal charges may be brought against the witness, they should be informed of this possibility and offered the opportunity (typically at the company's expense, although this is a policy decision) to retain criminal counsel to advise them about the interview and overall situation.
If there is no reasonable likelihood of criminal charges, the NTSB-specific outside counsel and their inside counsel counterpart must still decide whether there is a reasonable likelihood that the interests of the company and the witness may at some point diverge. If so, the witness must be advised, preferably in front of a witness, that:
Once these issues are addressed, appropriate preparation varies. As discussed earlier, it is critical that witnesses:
Witnesses must also understand absolutely that it is a crime to lie to a federal investigator.
Preparation beyond this level is a matter of judgement. Some attorneys choose not to go much further, while others choose to prepare by reviewing everything that the witness recalls and possibly associated company policies and procedures and related documentation.
Employees are entitled to representation at interviews
In the absence of extenuating criminal or other circumstances, most transport providers and manufacturers, as a matter of policy, ask their employees to be represented by the company's NTSB-specific attorney at NTSB interviews. That said, one of the first questions to all witnesses is who the witness has chosen as a representative at the interview.
The NTSB will often want to interview witnesses from any involved third-party contractors. It is not appropriate for a party's NTSB counsel to represent these witnesses, but it is often in the party's best interest for the attorney (or other representative, such as their union steward) serving as a representative to have a reasonable familiarity with the NTSB process. The company should make efforts to familiarise that person as needed.
More requests for documents and information
On scene, requests for documents and information are never ending.
NTSB press briefing
The company should ensure that someone from its NTSB team attends the NTSB press briefing.
End of day progress meeting with parties
The party coordinator must speak again privately with the IIC at the end of day three to ensure that they are pleased with the company's level of cooperation and ask whether there is anything more which the company might do to make the IIC's job and the investigation move more effective or efficient.
Coordination meeting with party's NTSB team
This meeting is important. By day three, the team should be compiling a formal timeline in tabular form of who did what when as it relates to the accident, with specific references to supporting documentation.
Day four and onwards
As the investigation progresses there will be more scene work, interviews and requests for documents and information.
NTSB press briefing
Daily NTSB press briefings will generally continue only as long as an NTSB member is on scene to conduct them. An IIC will occasionally be asked to continue the press briefings after the on-scene member has departed.
End of day meetings
The end of day progress meetings with parties and coordination meetings with the party's NTSB team will also continue on a daily basis as the investigation progresses.
Penultimate and last day of investigation
Review of draft NTSB field notes
Each individual working group's field notes are important. The NTSB working group chair typically cannot depart the investigation until their field notes are finalised.
Propose factual corrections and additions to field notes
Working group members should start talking to the working group chair about the field notes midway through the efforts on scene and offer to assist however they can. During these discussions, the importance of the field notes should be made clear and it should be clearly communicated that there will be an earnest desire to carefully review a near-final draft. The concern that almost always materialises is that one or more of the working group chairs will offer little or no meaningful opportunity to review the field notes before announcing that they are departing and need their field notes approved immediately.
Sign off on field notes
If the company's working group member is dissatisfied with the field notes, or the field notes are not complete in some material way, they should not sign off on them. The preferred approach is to negotiate for the opportunity to suggest changes or additions and to delay signing off on the field notes until logistics allow, such as when the working group chair has returned home.
NTSB's preliminary report
For major investigations, the NTSB aspires to release a preliminary report approximately 30 days after an incident. These reports are typically innocuous and contain only a confirmation of the press coverage from the first few days after the accident. These reports are intended to be purely factual.
The NTSB is inconsistent about providing parties to investigations a realistic opportunity to factually vet these reports before they become public.
More requests for documents and information
Parties to NTSB investigations should expect a steady stream of requests for information and documents to continue even after the NTSB team has left the scene.
Testing at NTSB laboratory in Washington DC (and elsewhere)
Evidence is frequently shipped to the NTSB laboratory in Washington DC for testing. Usually, the parties are given an opportunity to provide input as to testing protocols. If a party has the appropriate expertise, it is often invited to witness the testing. The NTSB will demand copies of any pictures or notes taken by a party at the testing.
NTSB laboratory reports on testing are routinely (but not always) shared with parties
If there is litigation pending, the parties are prohibited by their party obligations from informing the litigants or the court about the testing, even if the testing will be destructive in nature. The best practice for a party facing such a dilemma is to obtain a specific instruction from the NTSB Office of the General Counsel prohibiting them from advising the litigants about the destructive testing. Further, the testing should be documented as well as possible with a consideration for future disclosure in litigation to avoid causing prejudice to the opposing parties in litigation.
NTSB safety culture interviews at party's home office
As discussed above, the NTSB's primary focus is not just what happened, but also why it happened. In most investigations this leads to a review of documents and information about the company's:
This review will be followed by interviews with the senior management in these areas. More traditional preparation is appropriate for these interviews.
Review working groups' draft factual reports
Each working group will issue its own factual report at the conclusion of the factual phase of the investigation. Parties will have an opportunity to review these documents in draft form. This vetting process is particularly important because the documents usually come into evidence in any related civil litigation. This contrasts with NTSB's accident reports, which contain the NTSB's ultimate opinions as to factual findings and the probable cause of the accident, along with recommendations on the prevention of future incidents. NTSB accident reports are prohibited by both federal statute and regulation from being admitted into evidence in civil litigation.
Parties are typically provided only 10 calendar days to vet a factual report that may be 50 to 100 pages long. It is important to have the correct people prioritise carefully reviewing these reports. A page or line document with proposed changes, and the documentation for the changes, should be created as part of this process. Facts that are wrong are low-hanging fruit. The more important changes may be inappropriate innuendo deriving from a lack of context or the drafter's phrasing. There should be no opinions in a factual report.
For further information on this topic please contact Thomas Tobin or Daniel Braude at Wilson Elser by telephone (+1 914 262 2891 or +1 212 564 2522) or email (email@example.com or firstname.lastname@example.org). The Wilson Elser website can be accessed at www.wilsonelser.com.
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