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Forkner & Boeing Oppose Subpoenas

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Forkner & Boeing Oppose Subpoenas

Old 19th Feb 2020, 15:47
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Forkner & Boeing Oppose Subpoenas

Have we missed this news to date?

Former Boeing official subpoenaed in 737 MAX probe won’t turn over documents, citing Fifth Amendment 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.

Justice Department spokesman Peter Carr declined to comment. Boeing also declined to comment.

More
--and-- (Full text of this one because I know it will be blocked for anyone without an account -- and sharing it here definitely qualifies as fair use.)

Boeing Resists Deposition Over Max 8 Docs Given to Congress | National Law Journal

Amanda Bronstad | November 06, 2019The Boeing Co. goes to court on Wednesday to fight a subpoena to depose one of its executives in lawsuits brought over last year’s Ethiopian Airlines crash involving its grounded 737 Max 8 aircraft.Plaintiffs’ lawyers, representing the families of the victims of the crash, want to know why Boeing produced certain discovery materials to Congress but not to them. They originally scheduled a Feb. 18 videotaped deposition but held off after Boeing brought a motion to quash the subpoena, insisting that plaintiffs’ attorneys received the same information that Congress did, and that attorney-client privilege protected decisions relating to the production of those documents.

U.S. Magistrate Judge David Weisman of the Northern District of Illinois is set to hear the motion on Wednesday.

“Plaintiffs have issued a deposition notice that would require Boeing to produce a corporate representative to testify about Boeing’s collection and production of documents for a separate proceeding—specifically, the ongoing Congressional inquiries into the 737 Max,” wrote Boeing attorney Dan Webb in the Feb. 13 motion to quash. “But this deposition notice improperly seeks privileged information, for Boeing’s collection and production of documents to Congress has of course been overseen and directed by counsel.”

The motion included an attached declaration from Boeing Assistant General Counsel Jonathan Boatman, insisting that such information was “inextricably intertwined with not only advice and communications with counsel, but also attorney mental impressions and thought processes.”

Webb, co-executive chairman at Winston & Strawn, did not respond to a request for comment.

Attorney Robert Clifford, of Chicago’s Clifford Law Offices, said Boeing has not given plaintiffs the same documents that Congress received, and a corporate representative should explain why.

“We’re trying to get the discovery moving here,” he said.

The discovery dispute comes as Congress continues to probe the cause of the March 10 crash that killed 157 people and came about four months after 189 people perished on a Lion Air flight that also involved the Max 8 aircraft. In October, the U.S. House of Representatives Committee on Transportation and Infrastructure and the U.S. Senate Committee on Commerce, Science, and Transportation held hearings about the Max 8.

Boeing, meanwhile, has delayed reintroducing the Max 8 to the air. Last month, Boeing posted its first annual loss in two decades due to the grounding of the aircraft, which has cost nearly $19 billion.

Last year, Boeing agreed to mediate lawsuits brought over the Lion Air crash, and offered a $100 million fund to local community groups and nonprofits to assist families of the victims of both Max 8 crashes.

About 100 lawsuits brought over the Ethiopian Airlines crash are pending, with discovery just beginning.

In a Monday status report, Boeing said it had agreed to make John Hamilton, the chief engineer of the Max 8 who testified before Congress, available for a deposition on April 15 or 16, but still opposed the request for a corporate representative. The Jan. 14 subpoena included “all methods and/or procedures” Boeing used in its production of documents to Congress.

“These review and collection efforts were prepared, directed, and performed by or in conjunction with counsel,” Webb wrote in Boeing’s motion to quash. “Plaintiffs nevertheless seek to probe into privileged subject matter including counsel’s mental impressions, strategy decisions, and thought processes.”

Boeing, which said it had produced 27,000 documents to Congress, said plaintiffs’ lawyers have the same materials other than those relating to the particulars of the crash investigations, which the National Transportation Safety Board prohibits it from disclosing under Annex 13 of the Convention on International Civil Aviation.

In Monday’s status report, Clifford said Boeing is using the federal limitation to protect too much.

“Whether and to what extent Boeing withheld materials relevant to the design failures on the 737 Max aircraft from the Lion Air investigators is critical to the question of liability and punitive damages,” he wrote in Monday’s status report.
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Old 19th Feb 2020, 19:34
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Been there, done that. Not a lawyer, but in engineers words: As soon as a corporation is caught pants down by an US court or similar authority and subponead every paper produced after the reception of the subponea, including the lunch menu - at least in the defendants opinion - is stamped priviledged attorney work product and becomes part of the defence stategy and shall not be used by the opponents. SOP if the shit hits the fan. Court has then to decide if the lunch menu is actually such a privileged attorney work product or not.
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Old 19th Feb 2020, 22:10
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“These review and collection efforts were prepared, directed, and performed by or in conjunction with counsel,” Webb wrote in Boeing’s motion to quash. “Plaintiffs nevertheless seek to probe into privileged subject matter including counsel’s mental impressions, strategy decisions, and thought processes.”

"Jedi mind tricking" me thinks!
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Old 20th Feb 2020, 00:10
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I would have thought that a confidentiality limitation derived by NTSB, in turn derived from Annex 13, exists independent of attorney mental impressions or tangible work (work-product), as well as independent of the att'y-client privilege. So in one sense, it seems plaintiffs' subject matter designation for what certainly appears to have been a Rule 30(b)(6) deposition of a corporate representative - sometimes referred to as PMK, person-most-knowledgeable - seeks content essentially the same as a privilege log, doesn't it? What was withheld from production, its subject matter (and pro forma items like dates, to/from), and the basis for withholding it.

Another aspect though is did the Defendant, or did the Defendant not, turn over to Mr. Clifford and his co-counsel the exact same set of documents given to Congress? It can't be both Yes and No - and if No, see above.

Interesting, the depo would have been....yesterday.
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Old 20th Feb 2020, 16:07
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Reuters/SeattleTImes

For example, Forkner had no way of recreating the crash scenarios - when MCAS triggered off data from a single faulty”angle of attack” sensor - because there was “no technical way” to shut off one of the two sensors in the simulator, said one of the people, a former test pilot with direct knowledge of the simulator Forkner used.

“It wasn’t even something they would be looking for,” he added.
So there was some impropriety in the language in 'chat' messages - but the subject of Forrkners chats was simulator software not even in the area of the flight envelope that had anything to do with MCAS or MCAS failures.

Last edited by Ian W; 20th Feb 2020 at 16:18.
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Old 20th Feb 2020, 17:11
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Originally Posted by Ian W View Post
Reuters/SeattleTImes
So there was some impropriety in the language in 'chat' messages - but the subject of Forrkners chats was simulator software not even in the area of the flight envelope that had anything to do with MCAS or MCAS failures.
Well, according to a couple of his friends/former colleagues, speaking long after the fact and obviously motivated to defend their friend. Taken in the context of the messages we've seen, that conclusion is not necessarily warranted. It's all very likely to be made clear, eventually. The legal processes will grind slowly but very fine.
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Old 21st Feb 2020, 03:06
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Boeing said it had agreed to make John Hamilton, the chief engineer of the Max 8 who testified before Congress, available for a deposition on April 15 or 16, but still opposed the request for a corporate representative.
That pretty much sums up the moral fibre of the majority of our industry’s executive folk. I’d be ashamed to say I was Airline management now days.
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Old 21st Feb 2020, 03:39
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Hamilton retired at the end of 2019 didn't he? How generous of Boeing to offer him up. I hope he gets his own legal advice and doesn't rely on Boeing's legal staff.

"Mr. Hamilton, we have a bus over here we'd like you to just take a look under ..."
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Old 21st Feb 2020, 04:35
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Originally Posted by Dave Therhino View Post
Hamilton retired at the end of 2019 didn't he? How generous of Boeing to offer him up. I hope he gets his own legal advice and doesn't rely on Boeing's legal staff.

"Mr. Hamilton, we have a bus over here we'd like you to just take a look under ..."
Dave,

How right you are.
When I viewed the hearings, Mr. Hamilton came across as a person who was trying to answers the questions with facts compared with the other person sitting next to him!
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Old 21st Feb 2020, 22:53
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Originally Posted by 568 View Post
Dave,

How right you are.
When I viewed the hearings, Mr. Hamilton came across as a person who was trying to answers the questions with facts compared with the other person sitting next to him!

I agree, and felt the same.
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Old 23rd Feb 2020, 19:53
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I haven't quite got this from the above, whether the documents were demanded by a government investigation into the accidents
a grand jury subpoena issued by U.S. Justice Department prosecutors looking into the design and certification of the plane
in which case they should be handed over, or by the lawyers working "on behalf of the families"
Plaintiffs’ lawyers, representing the families of the victims of the crash
working on a percentage of the damages collected and who commonly have their own agenda.
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Old 24th Feb 2020, 00:12
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Originally Posted by WHBM View Post
I haven't quite got this from the above, whether the documents were demanded by a government investigation into the accidents in which case they should be handed over, or by the lawyers working "on behalf of the families" working on a percentage of the damages collected and who commonly have their own agenda.


Both a federal grand jury and civil litigation on behalf of the victims' families are in progress. Your post seems to suggest that you think the attorneys in the latter situation are somehow not worthy or authorized recipients. I assure you that the rules of procedure and evidence, in the legal systems on both sides of the pond, provide for compelled production of evidence in both types of proceedings. If that were not the case, there would be no possibility for the system to even occasionally result in justice being done.

Sorry if you don't like it.
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Old 24th Feb 2020, 03:00
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Originally Posted by WHBM View Post
I haven't quite got this from the above, whether the documents were demanded by a government investigation into the accidents in which case they should be handed over, or by the lawyers working "on behalf of the families" working on a percentage of the damages collected and who commonly have their own agenda.


Solicitors don't work to "an agenda". They work on behalf of their clients.
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Old 24th Feb 2020, 06:57
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Originally Posted by WHBM View Post
I haven't quite got this from the above, whether the documents were demanded by a government investigation into the accidents in which case they should be handed over, or by the lawyers working "on behalf of the families" working on a percentage of the damages collected and who commonly have their own agenda.


The documents are evidence of conduct and as to the intentions underlying that conduct. If the conduct was possibly illegal or irresponsible, then those responsible should be held to account. None can more legitimately call for this than those who have lost family as a result of the conduct in question.
If lawyers acting for families will take a percentage of resulting damages, this will presumably be on a 'no win, no fee' basis. If they lose, they do not profit. If they win, then the court has found the defendant company to be at fault or to be liable, in which case bringing the case, and requiring disclosure of evidence, was surely justified.
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Old 24th Feb 2020, 08:16
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Not a surprising reaction in these days of ignoring subpoenas and lack of respect for courts and laws.
It starts from the top. The message to society is “Get away with all you can.”
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Old 24th Feb 2020, 14:13
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Though an enticing subject to comment upon, the way the legal process works and does not work is one I'm staying out of - - except to say no one should lose sight of the fact that documents (a fancier word for "records" and which encompasses many other tangible forms of things) cannot testify. Attorneys must assemble (through the lawyerly art, on both sides of a case) a "theory" of the case, more than "a story" yet still seeing deeply behind the scenes already revealed . . . or trying to do so.

If someone can credibly claim to know, at present, a full, factually-based, comprehensive telling of the entirety of the 737 MAX matters, I would like to meet that person. And I'll buy him or her a round of whatever it is they're drinking these days. Maybe, more than one round.

As for plaintiffs' counsel, these air crash disasters weren't some hot coffee spill. I'd dare anyone decrying "agendas" they perceive, to debate publicly and in person any of the well-known attorneys on the plaintiffs' side. I'll moderste, no charge. I enjoy watching a good legal-streetfight, I'm from Chicago, see?
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Old 24th Feb 2020, 15:14
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Originally Posted by WillowRun 6-3 View Post
Though an enticing subject to comment upon, the way the legal process works and does not work is one I'm staying out of - - except to say no one should lose sight of the fact that documents (a fancier word for "records" and which encompasses many other tangible forms of things) cannot testify. Attorneys must assemble (through the lawyerly art, on both sides of a case) a "theory" of the case, more than "a story" yet still seeing deeply behind the scenes already revealed . . . or trying to do so.

If someone can credibly claim to know, at present, a full, factually-based, comprehensive telling of the entirety of the 737 MAX matters, I would like to meet that person. And I'll buy him or her a round of whatever it is they're drinking these days. Maybe, more than one round.

As for plaintiffs' counsel, these air crash disasters weren't some hot coffee spill. I'd dare anyone decrying "agendas" they perceive, to debate publicly and in person any of the well-known attorneys on the plaintiffs' side. I'll moderste, no charge. I enjoy watching a good legal-streetfight, I'm from Chicago, see?
I'll pay for tickets.

And I'll refrain from exploring, here, the question of whether or not the production of Forkner's documents may be testimonial.
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Old 25th Feb 2020, 17:09
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Unhappy

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