PBL, PJ2, enjoyed the discussion.
Reality remains that where evidence exists that is not subject to privilege, then it is fair game in discovery. The NZL Dash-8 accident use of the CVR by the police was justified on this basis, and later the law amended to limit the problem.
Since mandating of CVR's in air transportation in 1965, it is notable that almost all, if not all other close coupled professions do not use operational recording systems, yet the fatalities in say, the medical profession, is orders of magnitude greater than the losses in aviation, in fact, the losses in the USA annually exceed by orders of magnitude the total losses in global jet transportation. From negligence, or other causation excluding natural cause.
One can imagine the reticence of any O.R. staff to the implementation of any recording system in the "interests of safety" that are subsequently available for the purpose of litigation.
Aviation losses are newsworthy. Aviation is high profile. Aviation is also historically proactive in the field of safety, yet the society that benefits from this openness, wants to additionally be able to use the same information for determination of liability; have your cake and eat it too...
As PBL notes, the solution is not clear in the question of access to the information. As is also noted variously, the interpretation of an audio tape by a jury or by the opposing counsels in the adversarial arena of a civil case is hardly optimal, or even likely to be valid or fair to any parties. Further, even competent analysts of CVR and spectra often have difficulty determining a particular meaning or event from the data, a case that becomes more difficult where the question of liability intrudes. Observer bias...
In this particular instance, it is unusual that the plaintiff is the one with the data, and the party requesting the access is the defendant, particularly in light of the known facts of the flight. While there are issues related to RESA and WADD etc that may be of interest to systemic risk reduction, it pales in comparison to the reported operation.
Aviations safety programs will survive this issue, and crews will be put at higher levels of personal liability than previously accepted in the interest of safety. Pilots will continue to fly and grumble about the inequity of the issue, and at the same time their professional standing will continue to be eroded beyond where it has decayed to, to date, that of a burger flipper. The public will continue to be complicit in this erosion, by demanding cheaper commodities in air travel, while being surprised when they get dead as a consequence. At least if the professional erosion continues long enough the health of the pilots will improve, the Colgan pilots won't be able to afford french fries, and the Russians won't be able to buy Vodka!
Arbitrage of safety doesn't work.
L.B. Pearson has some issues, but it just one of a long line of airports where safety is hardly the major driver. Perhaps we will have some indication of a serious interest in safety by the public when noise abatement stops having a greater operational priority than operational safety of flight which results in reduced safety margins and qualitative risk management decisions by crews on issues of quantitative outcomes.
cheers
FDR