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27 January 2021
Select party coordinator and alternate
Select in-house attorney and alternate
Ensure that emergency response team understands NTSB process
Ensure that communications team understands NTSB party restrictions
Ensure that senior management understand NTSB party restrictions
Ensure that trusted outside litigation counsel understand NTSB party restrictions
Anticipate need to make rapid decision on NTSB party participation
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 provides companies with an overview of how they can best prepare for NTSB investigations into transport accidents.
A company's NTSB party coordinator is a critically important person. They will be the face of the company in all NTSB interactions. All communications and documents will flow through them. In many ways, the success of the process from a party point of view is significantly dependent on the selection of an appropriate party coordinator.
Ideally, party coordinators must be technical enough to fully understand the technical issues and senior enough to make things happen. They must be more than just a senior technical company interface. They must be well spoken, confident, collegial and collaborative. Party coordinators will also need help on scene. At least one senior technical staff member should accompany the party coordinator at all times in order to take and memorialise, and sometimes act on, requests for information, documents and assistance. The NTSB will arrive on scene with no equipment and only a skeleton staff. It will rely on the transport provider or manufacturer to assist with evidence preservation. These efforts are often conducted simultaneously with efforts to get the rail or highway system up and running for the public.
Logistics must also be addressed. Party coordinators and their team will need a place to work. This should be a large, centrally located conference room (or two), preferably within an operations facility in which information and documents will be easily within reach. Every day that the NTSB is on scene, the room should be staffed from 7:00am until midnight with qualified assistants and possibly one or more paralegals from the legal department. These will be busy days, coordinating and responding to requests for information, documents and witness interviews.
Party coordinators must be well briefed on the NTSB process (preferably well before any incident) and understand that for the first 15 days they will be 100% involved in the NTSB investigation. For the following six months, the investigation will require about 25% of their workload, dropping to approximately 10% after the initial six months. Party coordinators will also experience bursts of intense activity when draft group factual reports require vetting and when a company's proposed findings and recommendations are being prepared.
NTSB investigations always seem to happen at inconvenient times. For that reason, companies should select and train both a primary and an alternate party coordinator, potentially for separate regions. In addition, party coordinators must be employees of the company and cannot be attorneys.
The need to keep NTSB investigative information confidential gives rise to the need for an ethical barrier within a company's legal department. Similar to predesignating and training party coordinators, companies should predesignate and train an in-house counsel for NTSB issues and an alternate.
This position is also critical to the success of the process. NTSB-specific in-house counsel will inevitably be working closely with NTSB-specific outside counsel and will be the in-house quarterback for:
Responsibilities include working with outside counsel on witness preparation, including for on-scene interviews and subsequent interviews of senior corporate witnesses regarding:
Additional involvement can be expected in connection with:
The NTSB party process is not intuitive. Party coordinators and those on their team must understand the process because they will be immersed therein.
Initially, it is particularly important for the investigation side of the emergency response team to understand how their procedures will need to change on receiving notice that the NTSB will be investigating. In general, the team will have to coordinate all planned investigative activity through the party coordinator to the NTSB's investigator in change (IIC) for understanding and approval. From here, the NTSB runs the investigation and the investigative side of the emergency response team assists. This includes all testing and evidence preservation, including preservation of first-person accounts through witness interviews and statements.
Questions always arise regarding best practices for transport providers and manufacturers during two timeframes:
Once a transport provider or manufacturer is on notice that the NTSB will be investigating, it should take any necessary steps before the NTSB's arrival to preserve perishable evidence, including evidence that will no longer exist in its immediate post-accident condition by the time that the NTSB arrives. This does not include testing that can reasonably await the NTSB's arrival. Although the NTSB IIC and their team may be in transit and be unavailable, the director or chief of the involved NTSB modal office will likely be available so that a company's team can explain the response work that it is doing and why it cannot wait.
Once the NTSB arrives on scene, and even before the company has become a party, the anticipated party coordinator should obtain understanding and approval from the NTSB IIC for all actions proposed by the investigation side of the emergency response team.
One reason to immediately establish contact with the NTSB, and to stay in close touch during the early hours of an investigation, is to reassure the IIC and their team that the company is educated in the NTSB's investigative process and that the emergency response team will not embark on its own investigation without NTSB notice or participation. Starting on the right foot is important.
The NTSB IIC is pulled in many directions at the outset of an investigation. If there is sampling, testing or other work that must be conducted in the early hours of an investigation to avoid losing the opportunity, party coordinators should clearly explain the situation to the NTSB IIC in writing. If the IIC is unresponsive or prevents that work from being done, companies may want to respectfully run the question up the chain of command to the chief or director. NTSB-dedicated outside counsel can assist with related decision making and these types of communication.
Despite NTSB involvement, companies will be taking care of their passengers, customers and employees that may have been affected by the accident. The NTSB will understand this and should be able to assist with that goal.
Companies' communications teams will want to acknowledge the situation on behalf of the company, recognise the fatalities, injuries and property damage and share the company's plans to take care of the families of those involved and attend to other customers. Before companies become a party, they are technically free to do all of this in an unfettered manner. After an agreement to become a party, the communications team is limited to the following two messages (conceptually) regarding the accident itself:
It is often best practice to adhere to these communication guidelines even before companies are a party. The second sentence can just assert that the company "expects to be working with" the NTSB.
However, the communications team can go into detail about taking care of those displaced and how and when the company expects to resume its operations or restore utility services. This is often an important part of the emergency response process.
The NTSB on-site team is often accompanied by a member of the NTSB press office. It is good practice, although usually not 100% necessary, to seek approval of proposed press releases by the NTSB press office staff.
It is absolutely forbidden for parties to publicly discuss the cause of an accident until the NTSB releases its accident report, which may not occur until 12 or more months after the incident. Similarly, parties cannot release any information or documents that have not already been released by the NTSB. The consequence of doing so may be a public rebuke and removal as a party to the investigation.
As noted earlier, party coordinators and their teams must agree to keep NTSB investigative information confidential. Pursuant to the party certification, which the party coordinator will be asked to sign on behalf of the company, employees on the investigation team cannot share NTSB investigative information with their co-workers or management or anyone else outside the investigation.
However, as noted above, there is a 'safety-need-to-know' exception to this confidentiality. The classic situation is when a party needs to know how an accident happened in order to consider whether changes in policies or procedures should be adopted, and the party cannot reasonably be expected to wait until the NTSB announces its findings and probable cause 12 or more months later. How far up the management chain the safety-need-to-know exception might apply likely depends on the scope of the calamity (or potential next calamity) and the change being contemplated. If a change to a policy or procedure is to be made as a result of an accident, the NTSB IIC must be advised.
A party's management (all the way up to the board of directors) must understand the party-related agreement as to confidentiality and its limited exception.
The NTSB investigation process is always frustrating for transport providers' and manufacturers' outside litigation counsel. This frustration is typically compounded because outside counsel have often not been included in the transport provider's or manufacturer's NTSB preparation efforts. For that reason, there is value in briefing them or making them a part of any related training.
The primary early frustration is that so many of the usual steps taken by outside litigation counsel to protect the company cannot be done, including:
Outside consultants cannot enter the incident scene until it is released by the NTSB.
Another source of frustration is that once litigation begins, NTSB party restrictions often prevent companies from fully answering the complaints and almost always prevent companies from fully responding to discovery demands. Litigants and judges are frequently patient in the early months but are likely to become impatient as time passes.
NTSB factual reports, which outside litigation counsel played no role in creating, are routinely admissible in civil litigation. These reports are often hundreds of pages long and, because of the NTSB's reputation, their content is usually difficult to dispute.
Other than for relatively minor aviation incidents, if a calamity is large enough to warrant the NTSB's attention, it is likely a major event for transport providers and manufacturers. As there will be so much activity in the hours after the event, it is extremely helpful when senior management and the legal department have previously analysed the advantages and disadvantages of party status, possibly considering different scenarios in which they may not want to burden themselves with NTSB party restrictions.
At least one potential party in recent years decided not to accept an NTSB party invitation when they believed that the cause of the incident was so clear that they did not perceive the benefit of vetting factual reports and making a party submission of proposed findings and recommendations as outweighing the restrictions on communications and the manner in which their own investigation would unfold.
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 (firstname.lastname@example.org or email@example.com). The Wilson Elser website can be accessed at www.wilsonelser.com.
(1) This is the second article in a series on NTSB investigations (for the first article in the series, please see "Overview of National Transportation Safety Board investigations"). Further details are available here.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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