Boeing Families Race to Unearth Incriminating Documents

The families of the 346 people who died in two Boeing 737 MAX crashes five years ago are racing to unearth incriminating documents in an effort to persuade the Justice Department to reopen the criminal case against the company.

U.S. District Court Judge Beryl Howell
Washington, D.C.

Looming over the families are two deadlines — July 7, 2024 by which time the Justice Department must decide whether Boeing violated the terms of the deferred prosecution agreement.

And April 24, 2024 when the Justice Department has scheduled a meeting in Washington, D.C. to consult with the families about the criminal prosecution.

On the deadline of July 7, the Justice Department has three options — dismiss the criminal charges against the company, extend the deferred prosecution agreement, or re-open the criminal case and prosecute the company and the executives involved in the crime that led to the 346 deaths.

Once the Department decides what it wants to do, a hearing will be held in federal court in Ft. Worth, Texas before Judge Reed O’Connor where lawyers for the family members will argue that the case should be reopened. 

But the lawyers for the families don’t want to go into Judge O’Connor empty handed and are in two federal courts seeking to unearth documents that will help persuade the judge that the case should be reopened.

One is in federal court in Washington, D.C. where a Freedom of Information Act (FOIA) lawsuit was filed earlier this year.

The other is in federal court in Chicago where more than 130 tort lawsuits against Boeing are consolidated.

The families filed a federal lawsuit under the Freedom of Information Act (FOIA) in federal court in Washington, D.C., seeking a temporary injunction forcing the Justice Department to accelerate its release of documents that might shed light on the circumstances that led to the controversial January 7, 2021 deferred prosecution agreement with Boeing. Columbia Law Professor John Coffee it “one of the worst deferred prosecution agreements ever.”

Federal Judge Beryl Howell denied the motion, but chastised the Justice Department for failing to take the case seriously and for not sending someone from the Fraud Section to the hearing.

“I certainly hope that the Department of Justice — despite the performance here today at this hearing – does take seriously the reputation of the Department of Justice in scrutinizing this deferred prosecution agreement carefully in responding to all of the smoke that has been generated about this deferred prosecution agreement,” Judge Howell said. “Although there was nobody from the Fraud Section here today to even hear this.”

And Judge Howell did seem sympathetic to the families’ concerns.

“To be sure, plaintiffs’ motion, citing public reports, raises serious questions about the terms of the deferred prosecution agreement, including ‘the use of special tactics, such as forum shopping,’ –  that’s a quote from the plaintiffs’ motion at page 20 –  quote, ‘the prospect that the statement of facts was ‘ghostwritten’ by defense counsel,’ and ‘the high-ranking justice department positions held by alumni of Kirkland & Ellis, which represented Boeing.’

Judge Howell read in open court questions from the families’ lawsuit.

Why did Boeing belatedly agree to cooperate with the criminal investigation? 

To what extent did Boeing’s lawyers draft the deferred prosecution agreement’s statement of facts? 

Why did the deferred prosecution agreement fail to recognize the causal connection between Boeing’s crimes and the deadly crashes? 

Why did it fail to address the conduct and culpability of the company’s leadership? 

Was the deferred prosecution agreement negotiated or approved by Department of Justice officials with ties to Boeing’s law firm? 

Why did the parties rush to complete the deferred prosecution agreement before President Biden was inaugurated? 

Why was the case filed in the Northern District of Texas? 

To what extent did Boeing urge the Department of Justice to exclude the victims’ families from the process and otherwise violate the Crime Victims Rights Act? 

“All very interesting questions,” the Judge wrote. And she wondered whether these questions were raised before Judge O’Connor.

“There simply may be no smoking gun documents sitting in the Department’s files,” Judge Howell said at the hearing.  “Plaintiffs think they may find a smoking gun in the responsive records, but they may just be wishful thinking . . . And the records that they obtain, even if their preliminary injunctive relief was granted, may not help them at all prove that the smoke that they’re seeing is anything more than ephemeral.”

Judge Howell seemed satisfied that the Department would produce an index of documents in time to meet the families’ deadlines and that there was no need for a preliminary injunction forcing the Department to act within a stricter timeline.

Last week, a separate but similar hearing was held in federal court in Chicago. 

Families who brought tort lawsuits against Boeing asked the court for a partial lifting of a May 2020 gag order over documents and testimony obtained during discovery in those cases.

“If and when the Department of Justice moves to dismiss the pending criminal information against Boeing – anticipated to be filed on or about July 7, 2024 –the families will need to be able to present information to Judge O’Connor as he assesses the public interest in dismissing this criminal action and before ruling on that motion,” lawyers for the families argued in court papers. 

The families seek “limited relief from the protective order to share and review materials with his Texas legal team and Judge O’Connor.” 

“These materials bear directly on the issue of whether or not it is in the public interest to dismiss the pending criminal charge — conspiracy to deceive the FAA — that has been filed against Boeing,” lawyers for the family wrote.

A hearing was held last week on the motion and the court said it would issue a ruling, but didn’t say when it would issue the ruling.

Judge Howell, in her decision denying the motion for a preliminary injunction in the FOIA case in D.C., made it clear that she thought that the federal judge in Texas (Judge Reed O’Connor) had the power to intervene in the deferred prosecution case. (“I don’t know who the judge is in the Northern District of Texas but he is going to hate these suggestions from me,” Judge Howell said.)

She quoted the Fifth Circuit as ruling — 

“The district court will assess the public interest according to case law as well as the CVRA, including violations already admitted to, as well as any other circumstances brought to its attention by the victims’ families” and that district judges are empowered to deny dismissal when dismissal is “clearly contrary to manifest public interest” as assessed “at the time of the decision to dismiss.”

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