Flight 3407: Release of "Internal E-mails" to Public Results in Motion for Protective Order

Pre-trial discovery by plaintiff lawyers for some of the families of the victims of the air crash near Buffalo, resulted in the public release, in October, of "internal" Colgan Air e-mails that questioned the pilot's qualifications to fly the type of plane that crashed.

Colgan Air attorneys have moved in Federal Court for a "protective order", claiming the plaintiff attorneys were using them to its prejudice, swaying public opinion and making it less possible to have a fair trial, by tainting the jury pool. Trial is scheduled for March, 2012.

The release of those materials caused a stir because the National Transportation Safety Board, which investigated the crash had not seen them while it was determining the cause of the crash.

Plaintiff attorneys responded that there was a lot of information that was "incredibly damaging" to the defendants, and by moving for "protection" the defendants were seeking to keep it from public disclosure.

The federal courts usually follow state law with respect to "Trial Publicity", and conduct by attorneys. Rule 3.6 of the Model Rules says, in part, "A lawyer who is participating in a civil matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

"Likelihood of materially prejudicing an adjudicative proceeding" is defined, in a civil proceeding before a jury as "information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial..."

Attorneys are allowed to disseminate by means of public communication information contained in a public record.

One plaintiff attorney said that confidentiality should only be allowed to protect trade secrets or the privacy rights of individuals.

I would be surprised if a protective order was granted by the court, as I believe that the internal e-mails would be admissible as evidence at trial.