Specific information items in dispute in discovery
On Dec. 15 2021 the defendant's attorneys filed a motion to compel discovery, in other words a motion seeking an order by the court requiring the prosecution to turn over to the defense specific information. Taking some liberties here, I'm posting the section which describes, in detail, information the defense believes it is entitled to receive, but the government has not yet produced. First there is a section about the volume of discovery so far in this case (and "Brady" and "Giglio" refer to information the prosecution has to turn over because such information is exculpatory or impeaching). (I know this isn't a lawyers' forum, but a pilot is being held up as a scapegoat by the awesome power of the federal government, and perhaps his brothers and sisters among PPRuNers should, and do, care to know more.)
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At the outset, it should be noted that this case is not the usual criminal case. Rather, this case involves an enormous volume of discovery (15.4 million documents, comprising some 60,000,000 pages) and, even as continued, is on a rapid trajectory that makes it extremely challenging, if not impossible, for the defense to digest all of the information provided by the government before the current trial date, less than two months from now.
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C. Specific requests to compel evidence.
In addition to a general order for the government to identify Brady/Giglio evidence in the already disclosed discovery, and to produce any Brady/Giglio material that has not yet been produced, Mr. Forkner also makes the following specific observations about particular items whose production was requested in Appendices A and C.
Appendix A, Items 3 & 3A: Mr. Forkner asked for production of evidence that what he experienced in the 737-MAX simulator on November 15, 2016 was not MCAS acting as designed, but rather simply a simulator malfunction. In response, the government points to grand jury testimony of, and documents relating to, Vince Pupo, DR 1079, and a presentation from TRU Simulation. See Appendix B, at 3. These answers are non-responsive. Mr. Pupo said that he does not know or remember whether, on November 15, 2016, the simulator incorporated a simulation of MCAS. Likewise, TRU Simulation has nothing to say about this, as they provided only hardware and did not know the software. In line with the government’s obligations under Brady, we move to compel the government to produce any and all evidence that Mr. Forkner did not experience MCAS on November 15, 2016, either because MCAS was not programmed into the simulator, or because the trimming that Mr. Forkner saw was an unrelated glitch in the simulator’s software which later got fixed by Boeing.
Appendix A, Item 4: Mr. Forkner requested several categories of evidence regarding, generally, (1) Boeing’s disclosures to the FAA about MCAS prior to the MAX crashes, including the low-speed expansion, as well as certain MCAS features implicated in the crashes; (2) internal FAA communications about those disclosures, including who at the FAA was aware of the expansion, when and how they learned of it, and what they did in response; and (3) the FAA’s own review of its communications with Boeing about MCAS, including any findings or criticisms related to the AEG. This evidence is relevant to establishing whether or not government witness Stacey Klein or others in the AEG in fact knew about the low-speed expansion – and therefore were not deceived – or should have known about the expansion – and thus have a motive or bias to point the finger at Mr. Forkner. As such, this evidence is potentially both exculpatory and impeaching. In response, the government points to a presentation Boeing counsel gave to DOJ and summaries of government interviews with FAA employees, but they do not identify where in the tens of millions of pages of FAA documents this evidence can be found. In line with the principles set forth above, the government “[who] has presumably reviewed the discovery in this case,” should be compelled to specifically identify documents responsive to these requests.
Appendix A, Item 5: Mr. Forkner requested evidence that a large number of personnel at the Federal Aviation Administration (“FAA”) had access to Boeing 737-MAX information on the “Share Point” system; and he particularly requested evidence that FAA employee Stacey Klein, a designated government witness, had such access and, if so, when and how she accessed that system. This evidence is potentially both exculpatory and impeaching, as it could show that Ms. Klein in fact knew or should/could have known about the MCAS expansion even independently of anything Mr. Forkner did or did not tell her. The government, however, refers us to a document range of some 3 million pages. Under the principles set out above, the government should be compelled to identify more specifically where the requested information is located.
Appendix A, Item 6: Mr. Forkner requested any and all evidence, including witness statements, that MCAS and MCAS’s expansion to low speeds was not material to the decision about what level of pilot training should be required for the 737-MAX. Such evidence is obviously exculpatory, since it would negate a critical element of each of the charges against Mr. Forkner. The government, however, simply referred us to “the interview reports and agent notes in this case, including those for both FAA and U.S.-based airlines’ personnel.” In line with the principles set forth above, the government should be compelled to specifically identify the witnesses who made such statements and the particular statements that they made, rather than simply pointing to a mass of discovery.
Appendix A, Item 12: Mr. Forkner requested evidence related to specific representations made by Boeing counsel to the government about Boeing counsel’s preparation of a key witness, who the government intends to call in its case in chief. Specifically, Boeing counsel prepared the witness “using all of the documents that counsel identified for DOJ in advance of [the witness’] testimony,” and after the testimony, DOJ told Boeing counsel that “the Grand Jury went as advertised with regard to [the witness].” Mr. Forkner asked the government to provide (1) the documents that Boeing counsel “identified for DOJ in advance of Loffing’s testimony” and (2) the content of how the witness’ testimony was “advertised” before he appeared. In response, the government points to the same notes referenced above and records of Loffing’s grand jury testimony and interviews. These answers are non-responsive. Obtaining answers is important: this witness claims to have remembered a key verbal conversation with Mr. Forkner “as part of the preparation for testifying in front of the grand jury,” and he places the conversation in a date range that he was “able to narrow [ ] down” with Boeing’s lawyers. Under the principles laid out above, the government should be compelled to either produce any additional notes and records of the referenced conversations, or confirm that they have none.
Appendix A, Item 14: Mr. Forkner requested evidence as to a June 7, 2013 internal meeting at Boeing that concerned how to minimize the certification and training impact of MCAS, but the government simply “refer[red us] to the discovery as to this request.” To the extent this implicates Brady (as we suggest in the last sentence of that item), the Court should definitely compel identification and/or production of the implicated Brady material. But even as to the Rule 16 implications of this request, it is inadequate to refer us to a range of 67.2 million pages of discovery. In order to expedite trial preparation for a February 7, 2022 trial date, the Court should compel the government to more specifically identify and/or produce the requested evidence.
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