While Boeing and transportation-industry officials search for a cause of the battery problems on the 787 Dreamliner plane, the company finds itself in a very familiar position: that of “party” to an investigation led by the National Transportation Safety Board, a status Boeing has occupied hundreds of times in the last 45 years. And perhaps unlike other types of government investigations, which are conducted once an incident has occurred, this is the kind of investigation in which active involvement by a company can be a welcome opportunity.
In other words: “As a party you get to participate in the investigation,” says Condon & Forsyth partner David Harrington, who has advised multiple air carriers and aircraft manufacturers during NTSB investigations.
And as Holland & Knight partner Gary Halbert, the former general counsel of the NTSB, puts it: “Many times you’re working right there beside them.”
The NTSB investigates all civil aviation accidents in the U.S., along with significant accidents involving other modes of transport. Yet the relatively small agency (about 400 employees) often can’t do it alone. So they seek the expertise from those who have it, such as manufacturers and operators of the vehicles or systems they’re investigating, by offering them party status in the investigation. (The Federal Aviation Administration becomes a party in every aviation investigation the NTSB conducts.)
The primary reason for a company to accept such an invitation from the NTSB—which has subpoena power, too—according to Halbert, is to improve consumer safety. He counsels parties to be “responsive, accurate, and helpful in identifying the root cause of an accident.” Readily providing assistance also helps a company “preserve its reputation as having a focus on safety,” he adds.
But party status also comes with access to information about the investigation, along with an opportunity for a company to have input on the investigative process. “It’s always better to be on the inside” of an NTSB inquiry, says Harrington.
During the fact-finding phase, a party can review field notes from the investigation and offer comments if they disagree with the NTSB. Parties can also view information that other companies submit to investigators, just as they can participate in interviews with witnesses. “It’s not an ironclad rule that you get to see everything, but typically you do,” Harrington says.
As an investigation proceeds, Harrington’s biggest advice to clients is to maintain an active role. “You need to keep a very watchful eye on the NTSB investigation and the direction it’s taking,” he says, adding, “If you’re going to be a party participant, be a proactive one.”
For example, if you think investigators are heading down the wrong path, speak up, says Harrington. And keep a record of points you disagree with. That way, Harrington explains, down the road, a party will be able to say, “We suggested that; they didn’t do it.”
Party representatives to the NTSB generally have technical expertise in areas like safety, quality assurance, or engineering; counsel aren’t permitted to be the direct link between the agency and the company. What in-house counsel and outside attorneys can do is provide support as the party fields requests for documents and information. For example, a company may need to protect proprietary information from winding up in the public docket that the NTSB produces.
Halbert recommends coming up with a knowledge management system to keep up with requests from the government, which can come fast. That way, a party can ensure its responses are accurate—and keep track of the answers it has provided to investigators. “Unless you have kept a good record, you can’t do that,” he says.
Ultimately, it’s up to the NTSB to determine the probable cause of an event. Parties, however, can provide the agency with what’s called a submission—their own interpretation on the findings—before the final report is released. “It’s a way of articulating your views of a particular accident to your stakeholders,” Halbert says.
While Boeing is the only company that’s a party to the NTSB’s ongoing 787 investigation, that could change as investigators continue to search for the reason why the plane’s lithium-ion batteries have caught fire. “We may also invite additional parties to the investigation,” NTSB Chairman Deborah Hersman said at a press conference on Thursday.
See also: "Regulators Working to Get Boeing Dreamliner Back in the Air," CorpCounsel, January 2013.
