Copyright © 2010 Holland & Knight LLP All Rights Reserved

The Role of Counsel for a Party to an NTSB Investigation

Gary L. Halbert | Holland & Knight Partner

2099 Pennsylvania Avenue, N.W., Suite 100 | Washington DC 20006 T: 202.469.5150 | F: 202.955.5564 | M: 703.470.3943

gary.halbert@hklaw.com | www.hklaw.com

Colgan Air Flight 3407, Buffalo, NY

Miracle on the Hudson

Continental 1404, Denver, CO

WMATA Metro Trains, Washington, D.C.

Bluffton U. Motorcoach, Atlanta, GA

Metrolink, Chatsworth, CA

Metrolink, Chatsworth, CA

PG&E NG Pipeline, San Bruno, CA

PG&E NG Pipeline, San Bruno, CA

3 Brief Topics

• Who is the NTSB and how do they go about investigating transportation accidents?

• How is a company or entity involved in the accident expected to assist?

• What are some of the common complications with the process?

NTSB: Who are these people? • Proudly independent federal agency • No industry regulatory authority

–Not FAA, FRA, FTA, FMCSA, PHMSA, or DOT • Surprising size: ~400 employees • Stated goal: transportation safety • Key processes/methods

–Established accident investigation process –Official disseminator of accident info –Safety Recommendations

What is the “Board”? • 5-Member Board appointed by the President, confirmed by the Senate

• Board Members have staggered terms • Chairman exercises executive authority • Votes of the Board (if held) require vote by a quorum – statutory minimum is 3

Current Board Members

Chairman Hersman Member Sumwalt Vice Chairman Hart

Member Weener Member Rosekind

Key Features of NTSB Model • Independence from other organizations • Priority over other investigations • Authority to obtain & control evidence • Authority to control investigative testing • Party process/system • Public processes/evidence

3 Brief Topics

• Who is the NTSB and how do they go about investigating transportation accidents?

• How is a company or entity involved in the accident expected to assist?

• What are some of the common complications with the process?

Stages of NTSB Major Investigation • Launch & initial organization • On-scene investigation • Field notes • Follow-on investigation/component tests • Public hearing (if held) • Technical review • Party submissions • Sunshine Act board meeting & final report

NTSB Go Team • Team members for “major” launch

– Investigator-in-Charge (IIC) – Member of NTSB Board – Group Chairmen

• From various specialties • Goal: launch w/in 2-3 hrs of decision • Immediate communication with “Parties”

IIC and Parties • IIC runs investigation for NTSB • IIC designates “Parties” • Parties provide technical assistance • Regulatory agencies serve as Parties • Parties have “obligations” to investigation

–Party Form and Guidance

What is a Party? • 49 CFR § 831.11(a)

– (a) All investigations, regardless of mode. – “(1) The investigator-in-charge designates parties to participate in

the investigation. – [continued]“Parties shall be limited to those persons, government

agencies, companies, and associations whose employees, functions, activities, or products were involved in the accident or incident and who can provide suitable qualified technical personnel actively to assist in the investigation.”

– “(2) Participants in the investigation (i.e., party representatives, party coordinators, and/or the larger party organization) shall be responsive to the direction of Board representatives and may lose party status if they do not comply with their assigned duties and activity proscriptions or instructions, or if they conduct themselves in a manner prejudicial to the investigation.” (emphasis added)

What Governs Conduct of a Party? • 49 CFR § 831.11(b)

– (b) Aviation investigations. – “In addition to compliance with the provisions of paragraph (a) of

this section, and to assist in ensuring complete understanding of the requirements and limitations of party status, all party representatives in aviation investigations shall sign “Statement of Party Representatives to NTSB Investigation” immediately upon attaining party representative status.”

• Now, being required by NTSB in all investigations, regardless of mode

• When might a potential Party decline?

NTSB Initial On-Scene Actions

• Survey accident site • Establish command post (major) • Arrange communications • Confirm security & biohazard precautions

• Begin work w/ first responders & Parties

NTSB Organizational Meetings (major) • Chaired by NTSB IIC • Goals

– Establish order – Designate parties – Identify Party Coordinators – Organize investigation groups – Review applicable Rules of Conduct – Review on-site safety precautions

Investigative Focus Areas • On any given investigation, focus areas can be quite broad:

Rail Signals Operations Structures Powerplants Systems Air Traffic Control Weather Human Performance Survival Factors Regulatory Oversight Corporate Policies ***Safety Culture*** Governance

3 Brief Topics

• Who is the NTSB and how do they go about investigating transportation accidents?

• How is a company or entity involved in the accident expected to assist?

• What are some of the common complications with the process?

Issues for Counsel to Parties • Potential conflicts – client? • Company witnesses? Representation? • Do you tell them their names will be public? • Criminal issues/competencies

– 18 U.S.C. § 1001 • Fact-finding stage

– Attorney’s role is sensitive subject w/ NTSB – Cannot be the Party Coordinator – Caution in how company prepares for

litigation during the fact-finding stage

What Can Go Wrong as a Party • Compromise of “investigative information” • Comments, even by Headquarters, regarding causation

– Or about investigative information – Or about NTSB investigative activities

• Failure to produce relevant information – NTSB expects almost unreasonably fast

responses by Parties • Loss of evidence (yes, it does happen)

What Can Go Wrong as a Party (Cont.) • Conducting a parallel investigation • Shielding/coaching employee witnesses • Interviewing witnesses ahead of NTSB • Disputes re protecting internal findings, company tests, or remedial measures

• Protecting company proprietary matters • And, ultimately, “Public” removal as a Party to investigation

Planning Strategies • Proper selection of Party Representatives • Coordination and recordkeeping for Party documents given to NTSB

• Parallel safety review and analysis, and remediation

• Preparation and coordination for signing of Field Notes, review of Group Factual Reports, and the Party’s Submission

Comments by Director, NTSB RPH • Will not encourage broad marking of

confidential commercial trade secrets –Will not discourage the practice

• Usually able to accommodate protections of trade secret materials

–Concerned about handling PTC technologies –Will attempt to provide adequate lead time to Party

• Treatment of video recordings

Public Hearings

Public Hearing – High Risk • Board of Inquiry, technical panel, Party spokesperson, and the witnesses

• Spokesperson cannot be an attorney • Help prepare Party participants:

–Understand NTSB rules (Part 845) –Practice with employee witnesses –Assist spokesperson during Hearing –Help prepare submission (831.14, 845.27)

Party Submissions • Party opportunity to share its views • Suggestion: Use format and organization of NTSB reports

• Table of Contents/Table of Exhibits • Narrative form with exhibits • Introduction/Executive Summary • All submissions placed in Public Docket

–As are most letters to IIC or Board Members

Board Meetings

Board Meeting • Not a public “town hall” meeting • A Sunshine Act meeting where public (and Party members) can observe

• Not permitted – public questions or comment, disruptions, objections by counsel

• Petition for Reconsideration post-publication of report (845.41)

Copyright © 2010 Holland & Knight LLP All Rights Reserved

The Role of Counsel for a Party to an NTSB Investigation

Gary L. Halbert | Holland & Knight Partner

2099 Pennsylvania Avenue, N.W., Suite 100 | Washington DC 20006 T: 202.469.5150 | F: 202.955.5564 | M: 703.470.3943

gary.halbert@hklaw.com | www.hklaw.com