Story just came to my attention. Link may be paywalled:
https://www.seattletimes.com/busines...nt-protection/
A former Boeing official who played a key role in the development of the 737 MAX has refused to provide documents sought by federal prosecutors investigating two fatal crashes of the jetliner, citing his Fifth Amendment right against self-incrimination, according to a person familiar with the matter
Mark Forkner, Boeing’s chief technical pilot on the MAX project, invoked the privilege in response to a grand jury subpoena issued by U.S. Justice Department prosecutors looking into the design and certification of the plane, the person said.
Invoking the Fifth to avoid testifying, while a legal right, is sometimes interpreted as an admission of guilt. Its use to resist a subpoena for documents is less common and may only imply a dance between prosecutors and defense attorneys, legal experts say.
Forkner, now a first officer for Southwest Airlines, referred questions to his attorney when reached by phone. His attorney, David Gerger, of Houston, did not respond to inquiries.
Forkner, who worked at Boeing from 2011 to 2018, according to his LinkedIn profile, was frequently anxious about the deadlines and pressures faced in the MAX program, going to some of his peers in the piloting world for help, a person who worked on the project previously told The Seattle Times, speaking on condition of anonymity.
The MCAS system, designed to move a powerful control surface at the tail to push the airplane’s nose down in certain rare situations, played a critical role in the crashes when the planes nose-dived out of the sky.
During the certification process, Forkner suggested to the Federal Aviation Administration (FAA) that MCAS not be included in the pilot manual, according to previous Seattle Times reporting.
The FAA, after internal deliberations, agreed to keep MCAS out of the manual, reasoning that MCAS was software that operates in the background as part of the flight-control system, according to an official familiar with the discussions.
While the Fifth Amendment protects people from testifying against themselves, it “usually does not apply to being required to produce documents because producing a document is not the same as being required to testify,” said University of Washington law professor Jeffrey Feldman.
But there are exceptions that allow the privilege to be asserted where “the mere act of producing the document” may be seen as an incriminating act, Feldman said.
Paul Rothstein, a Georgetown University law professor, said documents may show a person “has them, knows about them or admits they exist.”
“This information can often be somewhat incriminating of that person and thus covered by his Fifth Amendment privilege against self-incrimination,” Rothstein said.
Some courts have held that broad document requests require the person to “use his or her mental processes to interpret and respond to the subpoena, and the production itself could be viewed as testimonial,” said Peter Joy, a Washington University law professor.
In Forkman’s case, Feldman said, it could turn on the type of documents. “Are these the employee’s personal documents? His diary or personal emails? Or are they Boeing’s documents?”
Forkner could ask for immunity from use of the information in the documents, or prosecutors could offer it, the experts said.
Edit: Previously published article:
https://www.nytimes.com/2019/06/01/b...max-crash.html
On March 30, 2016, Mark Forkner, the Max’s chief technical pilot, sent an email to senior F.A.A. officials with a seemingly innocuous request: Would it be O.K. to remove MCAS from the pilot’s manual?
The officials, who helped determine pilot training needs, had been briefed on the original version of MCAS months earlier. Mr. Forkner and Boeing never mentioned to them that MCAS was in the midst of an overhaul, according to the three F.A.A. officials.
Under the impression that the system was relatively benign and rarely used, the F.A.A. eventually approved Mr. Forkner’s request, the three officials said.