I’ve been writing about electronic discovery for almost three years now. I’ve learned that most of the time, it’s not worth trying to interest non-attorneys in the subject. My friends’, family’s, and girlfriend’s eyes glaze over pretty quickly when I started mentioning the EDRM model or document review.
So when I saw the story early this morning about big e-discovery news in the litigation following a tragic plane crash, at first I thought I had misread something.
On February 12, 2009, Colgan Air Flight 3407 crashed near Buffalo Niagara International Airport in New York, killing 50 people. Later that year, authorities blamed pilot error for the crash. Unsurprisingly, families of the victims have sued the airline for failing to provide trained, capable, and rested pilots. This week, attorneys for the families released internal company e-mails that appear to show Colgan knew the pilot of the doomed flight was having serious problems.
What do the e-mails have to say?
The pilot, Marvin Renslow, was officially blamed for the crash. In late 2009, authorities said neither he nor his first officer realized the plane was slowing down too quickly, and that he also reacted improperly to warning signs that the plane was entering a stall.
Before starting work at the airline, Renslow failed a check flight, the flying equivalent to a driving test in a car. He failed two more while he worked at Colgan.
Despite that, in August 2009, Philip Trenary, president and CEO of Pinnacle Airlines, the parent company of Colgan Air, testified at a Senate hearing that they didn’t know enough to prevent Renslow from flying.
“Had we known what we know now, no, he would not have been in that (pilot’s) seat,” Trenary said.
But yesterday, CNN got its hands on company e-mails that show Colgan Air might have known even more than it let on.
E-mails obtained by CNN Sunday from attorneys representing victims’ families, meanwhile, show Colgan Air in August 2008 decided not to include Renslow among those upgrading to fly the Q400 [the plane that crashed]. Renslow “had a problem upgrading,” chief pilot Bill Honan wrote in the e-mails.
“Anyone that does not meet the (minimum requirements) and had problems in training before is not ready to tackle the Q,” Harry Mitchel, Colgan’s vice-president of operations, responded.
The company said some time after those e-mails were sent, Renslow eventually did pass a series of tests that qualified him to fly the Q400.
It’s fine and dandy that he eventually passed, but it’s strange that the airline didn’t include any of that information as part of Renslow’s employment file, according to Hugh Russ, an attorney for the victims’ families. He said the information in the e-mails is “central to the issues in this case.”
That makes sense. Even if the issues were supposedly resolved before the crash six months later, the pilot’s explicitly documented, problematic flying history — which his employer clearly knew about — seems slam-dunk relevant. It’s analogous to employment lawsuits, where annual performance reviews can be crucial evidence.
A spokesperson for the airline said it never withheld the information. The NTSB knew about it, said Colgan spokesman Joe Williams. He added that Colgan gave the e-mails to the plaintiffs three months ago. But the documents were classified, and the plaintiffs had to request that they be unsealed.
“This was the first time in the litigation that (plaintiffs) requested a ‘confidential’ document be de-designated,” he said. “However, we have serious concerns that plaintiffs may attempt to continue to attempt to try this case in the media, which could impact Colgan’s ability to receive a fair trial in Buffalo.”
It’s hard to tell if the plaintiffs are blowing this out of portion, or if it’s really the smoking gun litigators dream about. Either way, we’ll probably hear more about this down the road. And for all the attorneys who, like me, sometimes get tired of people not seeming to care about the work you do, now you can say: “My work is mainstream, CNN covered it, and THIS is why it matters.”
Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at [email protected]. You can read more of his work at chrisdanzig.com..