On January 27, 2021, the U.S. District Court for the Eastern District of Texas held that Boeing had no right to withhold documents and information based on an alleged litigation privilege granted by International Civil Aviation Organization (“ICAO”) Annex 13. The lengthy opinion, which was issued in a RICO class action against Southwest Airlines and Boeing alleging that both defendants wrongfully withheld from consumers fatal defects in 737 MAX aircraft, could have broader implications on the ability of Boeing, as well as other manufacturers and air carriers, to rely on Annex 13 to protect documents exchanged in the course of an aviation accident investigation from disclosure in litigation.1
In 1944, recognizing a lack of uniformity in civil aviation regulations, 54 nations gathered to draft and ratify the Convention on International Civil Aviation, frequently known as the Chicago Convention. The Chicago Convention formed ICAO to promulgate standards for regulating international civil aviation; each standard or recommended practice established by ICAO is known as an Annex. Important here, ICAO Annex 13 outlines the procedures for civil aircraft accident investigations. Annex 13 prohibits the State of Occurrence from disclosing, except in specific circumstances, information and records related to the accident or incident for purposes unrelated to the investigation, such as in civil litigation. It also prohibits accredited representatives and “technical advisers” to an investigation from divulging information on the progress and the findings of the investigation without the express consent of the State conducting the investigation.
Pursuant to Annex 13, Boeing withheld and redacted documents and information from plaintiffs relating to the crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302, both of which involved 737 MAX aircraft. Boeing claimed that producing such documents and information would violate Annex 13 because it had been appointed as a technical adviser to both investigations, and was directed not to disclose information from those investigations. Notwithstanding that the court recognized that treaties of the United States such as the Chicago Convention, are considered to be the supreme law of the land, and that judicial bodies are required to respect such treaty boundaries, the court noted the distinction between treaties “that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law.”2 It further held that where a treaty operates with the assistance of legislative aid, it is self-executing; whereas, when a treaty does not evince such executory intentions, it is non-self-executing, and does not take force absent an implementing statute. According to the court, “[n]on-self-executing treaties do not give rise to domestically enforceable federal law absent implementing legislation passed by Congress, and with no law to expound upon, federal courts have no role to play.”
The court held that Annex 13 is a non-self-executing treaty and thus does not have the effect of federal law because, although it was adopted by the ICAO Council and ratified by the ICAO Assembly, it was never ratified by the U.S. Senate. The court thus rejected Boeing’s primary rationale for withholding from plaintiffs documents and information from the investigations.
Boeing also argued that the court should follow Annex 13 despite its conclusion that Annex 13 does not have the effect of federal law because its policies simply were the way international aviation accident investigations were conducted. The court rejected that argument as well, holding that international law is not binding on U.S. courts.
Boeing further argued that statutes governing the National Transportation Safety Board (“NTSB”), which appointed Boeing as a technical adviser to both crash investigations, also prevented Boeing from disclosing certain information from the accident investigations in civil litigation on the basis of privilege. According to Boeing, NTSB directives prohibited Boeing from disclosing the information at issue, and the NTSB’s own interpretation of the relevant statutory scheme ought to be given deference under Chevron U.S.A., Inc. v. Nat’l Res. Def. Council.3 This rule of statutory construction, often known as the Chevron deference, holds, that courts typically defer to how a regulatory agency such as the NTSB interprets and implements its regulations. But here, the court held the NTSB’s interpretation was not entitled to such deference because Congress applied the regulation at issue prohibiting the disclosure of foreign accident-related information to the NTSB itself, but was silent as to disclosure by private parties that participated in the accident investigations, such as Boeing. According to the court, Congress’ silence as to private parties did not allow the court to defer to the NTSB’s interpretation that private parties should be prohibited from divulging the information at issue.
Boeing then argued that evidence it proffered in response to the plaintiffs’ motion to compel disclosure of the information at issue demonstrated that the NTSB itself created a litigation privilege exempting private parties such as Boeing from disclosing in a judicial proceeding information learned from a foreign accident investigations. The court disagreed, holding that only Congress had the power to create such a privilege, and Congress had not clearly exercised its power here. Finally, Boeing also claimed that a potential foreign affairs problem arising from Boeing’s disclosure of what was thought to be protected information should affect the court’s analysis. Here too the court was unpersuaded, holding that just because the court’s conclusion may have political implications that traditionally fall within the province of the other branches of government does not mean that the court was free to abstain from resolving the matter before it.
On the basis of the foregoing, the court held that no Annex 13 privilege exists and ordered Boeing to produce the documents and information it had withheld on that basis.
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1 Earl et al. v. The Boeing Company et al., No. 4:19-cv-507 (E.D. Tex. Jan. 27, 2021).
2 Medellín v. Texas, 552 U.S. 491, 504 (2008).
3 See 467 U.S. 837, 842–43 (1984).