The National Transportation Safety Board (NTSB) investigates aviation, railroad, highway, marine and pipeline accidents to determine their probable cause and issues safety recommendations to reduce the risk of future accidents.(1) This article outlines the NTSB's investigation process within the initial 30 days following an incident.

Legal team's on-scene actions

When an incident is being investigated by the NTSB, the transport provider or manufacturer's in-house attorney assigned to the NTSB investigation and the company's NTSB-dedicated outside counsel must converge on the accident scene, along with the pre-designated party coordinator, as quickly as possible. A dedicated conference room must be requisitioned along with support staff and technology. If the emergency response plan has not already triggered periodic internal coordination conference calls, that should also be done. A similar separate call will most likely have to be coordinated for those involved with the NTSB investigation.

One of the first orders of business for the legal team will be to issue a broad legal hold, inclusive of electronic records, including email. The scope of the hold, including the list of potential custodians, can be expected to grow as the investigation unfolds. Once the scope stabilises, the company should consider retention of an outside vendor to conduct a forensic collection. Having control of relevant documents becomes particularly important if the incident is investigated by entities beyond the NTSB and, of course, for anticipated litigation.

Perishable evidence

The NTSB's on-scene goal is to preserve perishable evidence. However, the NTSB will also want to begin interviewing individuals with direct involvement quickly, including those assisting with emergency response efforts. It seems to be universally thought by the NTSB that the longer that it waits to conduct these interviews, the more likely that people's memories will become contaminated by:

  • what their co-workers tell them;
  • what they hear on the news;
  • what they think must have happened; and
  • possible discussions with company lawyers.

Organisational meetings

Once the NTSB team arrives on scene, they will want to meet with the incident commander, if there is one, and the first responders. The NTSB team will want to assess physical hazards and biohazards and determine when the scene will be available to begin their investigation.

The NTSB will invite the following parties to an organisational meeting at the facility that it has chosen as its headquarters in the area:

  • the transport provider;
  • manufacturers (if involved);
  • federal regulators;
  • state regulators (if there are any);
  • any involved contractors; and
  • the first responder organisations.

If the NTSB arrives in the morning, the organisational meeting will be that afternoon or early evening. If they arrive in the afternoon, that meeting will most likely be early the next day. No lawyers (for a company or injured party) or insurance claims people can attend this meeting.

The organisational meeting is the NTSB working group members' opportunity to introduce themselves and explain the party investigation process and party confidentiality obligations. They will invite those listed above and sometimes others to be parties to the investigation and will ask each of their representatives to sign an NTSB party certification on behalf of their organisation. This is an important document which contains obligations and restrictions that must be carefully reviewed and understood.

NTSB working groups will then be announced along with the NTSB chair for each group. The parties will be asked to staff and provide resources for each group.

These organisational meetings sometimes stop at organisational efforts but often go directly into the substantive aspects of the event. If that happens, the parties may be asked to provide a summary of what they know so far and recommendations as to how best to proceed.

NTSB control of site

The NTSB's investigator-in-charge (IIC) will want the transport provider to arrange 24-hour security at the accident site. They will also expect the transport operator to arrange for any necessary testing. The IIC will demand copies of all test results, pictures and notes from all parties.

NTSB working groups

NTSB investigations make use of working groups to focus on different aspects of an accident. Each working group is comprised of a chair from the NTSB, additional NTSB investigators and a representative from each party. These party representatives must have technical expertise in the working group's focus area and cannot be lawyers.

A major aviation or rail calamity may involve a dozen or more NTSB working groups, including:

  • operations;
  • structures;
  • traffic control;
  • cockpit or engine voice recorders;
  • flight data or event recorders;
  • weather;
  • human performance; and
  • survival factors.

Marine and highway incidents involve fewer working groups.

NTSB working groups coordinate with the IIC on their own requests to the parties (and others) for information, documents and witness interviews. A working group may be on scene for several days, coordinating excavation and testing, and then start conducting interviews of operator staff, contractors or others.

Should an NTSB request for information or documents be met with resistance, federal subpoenas are issued without hesitation by the NTSB Office of the General Counsel. The NTSB's investigative authority is broad and even extends into health and autopsy records, for which any civil litigant would need specific authorisations.

While a company should pre-select likely party coordinators, it is difficult to pre-select members for participation in NTSB working groups. These party representatives are typically local to an incident and must be rapidly brought up to speed on the NTSB process.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.