July 10, 2025 • 23 mins
What does it take for a court to dismiss a case due to spoliation of evidence? The SkyJet v. VSE Aviation decision provides a troubling answer to this persistent question in e-discovery jurisprudence.<br><br>When temperatures in a twin-engine aircraft skyrocketed during startup, causing severe engine damage, the resulting litigation hinged on critical recorded evidence. The aircraft's cockpit voice recorder (CVR) captured pilot communications during the incident, while the flight data recorder (FDR) tracked performance metrics. With the pilots mysteriously "unavailable" (reportedly in Canada), these recordings represented the only objective record of what transpired.<br><br>The discovery story that unfolded revealed a deliberate pattern of concealment. SkyJet initially claimed no recordings existed, then suggested they'd never received data from Logic Air (the company that extracted it). Yet emails eventually obtained directly from Logic Air revealed they had provided SkyJet two DVDs containing the recordings, with specific notes about which audio channel was "more interesting from the 30-minute mark."<br><br>Magistrate Judge Angel Mitchell's analysis pulled no punches, finding SkyJet had engaged in "dishonest and misleading discovery conduct" and acted with "intent to deprive" under Rule 37(e)(2). The court noted SkyJet provided "absolutely no explanation" for what happened to the data after receipt and characterized their litigation position as "baseless."<br><br>Yet despite this damning assessment, the court declined to dismiss the case. Instead, it issued a permissive adverse inference instruction, precluded pilot testimony, and awarded attorneys' fees. This outcome raises profound questions about whether our discovery rules provide sufficient deterrence against calculated evidence destruction.<br><br>The case serves as a masterclass in diligent e-discovery advocacy by VSE's counsel, who methodically pursued the missing evidence trail, coordinated with the court, and assembled a compelling spoliation narrative. But it also represents a cautionary tale about the limitations of Rule 37 sanctions in addressing even the most egregious discovery misconduct.<br><br>How can you better protect your case from similar discovery abuses? Contact us today to discuss effective preservation strategies and approaches to documenting potential spoliation.
Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Kelly Twigger (00:37):
Thank you, hi, and welcome to this episode of
the Meet and Confer podcast.
The principal at ESI Attorneys,a law firm for e-discovery and
information law, as well as theCEO at Minerva 26, where I take
the insights from my 28 years asa discovery strategist and
litigator and, together with myteam, provide a strategic
command center for litigators toleverage the power of ESI.
(00:59):
Thanks so much for joining metoday.
Our case of the week segment onthe Meet and Confer podcast is
brought to you by Minerva 26 inpartnership with ACEDS.
On this segment, I analyze arecent decision on discovery
issues involving ESI and talkabout what you should take away
from the court's decision andwhy.
It's no secret that our rulesgoverning discovery are not
(01:21):
keeping pace with technology.
It's a struggle to fit a squarepeg in a round hole.
Judicial decisions,interpreting those rules in the
context of today's technologyand the electronic evidence that
we create using that technologyacts as our guide to how we
need to advocate for clients.
As always, judicial decisionsare as good as the facts and
arguments presented to the court.
So part of what we talk abouthere is the lawyering are as
(01:43):
good as the facts and argumentspresented to the court.
So part of what we talk abouthere is the lawyering, the good,
the bad, the ugly.
Our decision today highlights aquestion that we keep seeming
never to get the answer toExactly how bad does your
conduct have to be in discoveryfor the court to order a
terminating sanction?
(02:03):
This week's decision comes to usfrom the case of Sky Jet versus
VSE Aviation.
This is a decision from UnitedStates Magistrate Judge Angel
Mitchell, dated June 12, 2025.
Now this case has a number ofacronyms in it, so stick with me
and try to pay attention as wego along.
I don't want to confuse you,but it's hard constantly
(02:26):
repeating the things as opposedto the acronyms, let's talk
about the facts of the case.
Let's go back to January 2022.
The facts of the case arise froma so-called "hot start, an
incident involving a 1996 Beachtwin-engine turboprop aircraft
owned by Skyjet.
(02:46):
During attempts to start theengine on January 30, 2022, the
engine temperatures in theaircraft rose significantly and
caused severe damage to the leftengine.
The day prior to the incident,Sky Jet had replaced the fuel
control unit, or the FCU, in theaircraft with a unit that had
(03:08):
been recently overhauled by VSEAviation Services.
VSE is the plaintiff here.
Sky Jet alleged that VSE didnot properly overhaul the FCU
and that the unit caused the hotstart by sending too much fuel
to the engine.
Vse disputed that theiroverhaul of the unit was
(03:30):
defective and argued insteadthat SkyJet had been having
problems with the engine forweeks prior to the incident and
that the damage could have beenprevented but for pilot error in
handling the situation.
Of course, coincidentally, thepilot and mechanic not only no
longer work for SkyJet, buttheir whereabouts are unknown,
(03:51):
and the court notes that theyare believed to be in Canada.
The plane at issue was equippedwith a flight data recorder, or
FDR, that records aircraftperformance, power settings and
other characteristics relatingto engine performance.
The aircraft also contained acabin and cockpit voice recorder
(04:13):
, which is called a CVR, thatrecords voices and sounds in the
cockpit.
Now, since we don't have thepilots, the CVR, as it's noted
by the court, is the only way toknow what was said in the
aircraft during the event.
Now, skyjet filed suit infederal court against VSE on May
9th 2023, so about 16 monthsafter the incident.
(04:35):
Discovery opened.
In July, vse served requestsfor production to SkyJet asking
for any recording of the twostarts alleged in the complaint,
and SkyJet responded to thoserequests for production, as
quote none known.
In November, skyjet produceddocuments that included
maintenance records verifyingthat both the flight data
(04:58):
recorder and the cabin cockpitrecorder were installed on the
aircraft.
Council for VSE then reachedout to Council for SkyJet and
tried to reconcile the RFPresponse that it included,
saying that there was no knownrecordings, with the fact that
there were recorders on theaircraft.
Council for SkyJet then toldCouncil for VSC that he had
(05:20):
asked his client for the datarecordings and was told that
they no longer existed.
Now Discovery was set to closeon December 15th.
Vse served a 30b6 notice onSkyJet the day before Discovery
closed and during thatdeposition VSE learned that
SkyJet's maintenance departmenthad sent the FDR and the CVR to
(05:41):
Logic Air after the incident tohave the data extracted into
readouts and that SkyJet neverreceived the FDR and CVR
readouts back from Logic Air.
Very important, that's what thetestimony is from SkyJet.
Through additional discovery,however, vsc learned that SkyJet
(06:03):
learned from SkyJet's formerdirector of maintenance and now
chief mechanic that no one hadever asked for the CVR or FDR
readouts in the past six monthsand he had never tried to find
the readout from the recordings.
So basically, in response tothe discovery request, skyjet
did not go back to Logic Air andask them for anything.
Did not go back to Logic Airand ask them for anything.
(06:24):
That is again SkyJet'stestimony.
After the depositions, skyjetwent to Logic Air to request the
data.
According to SkyJet, logic Airsent the data, but it was for
the wrong flight.
Skyjet realized that it was forthe wrong flight and asked
Logic Air, who told SkyJet thatthe CBR data for the correct
flight was lost during acomputer malfunction, despite
(06:47):
knowing that SkyJet produced thedata in discovery to VSE for
the wrong flight.
Vse realized that the data wasfrom the wrong flight and sought
permission to work directlywith LogicAir to find the flight
recordings.
The court reopened discovery onthat issue based on
disfoliation evidence that VSEpresented to it Fast forward to
(07:09):
March 2023.
Skyjet produced the FDR readoutto VSE, but said that Skyjet
could not locate a copy of theCVR data and the efforts to seek
the data from Logic Air, whichwas a Canadian company, were
unsuccessful.
Add to the mix that the datafrom Logic Air, which was a
Canadian company, wereunsuccessful.
Add to the mix that the datafrom the FDR readouts that were
finally produced, even afterthey were said they didn't have
(07:30):
them, did not contain anyinformation about engine
temperatures, which VSE allegedwere normally captured and were
important to determining thecause of damage to the engine.
So, while it's not discussed inthe opinion, there's some
question as to whether or notthe FDR readouts that SkyJet
provided were, let's say,redacted to remove information
(07:54):
that might have been relevant tothe incident at hand.
Skyjet also confirmed that theCVR, so the voice recording data
, was still missing and thatLogic Air had advised the
parties that their copy of thevoice recording data was deleted
.
Vse also advised the court thatSkyJet had not assisted in any
way in facilitating thedeposition of Logic Air to learn
(08:15):
whether Logic Air in factdownloaded and sent the CVR data
to SkyJet before it was deleted.
It was deleted A month later,after VSE worked directly with
Logic Air to get a deposition,logic Air's production manager
testified that Logic Air hadsent SkyJet the readouts on two
(08:35):
identical disks, with the CBRand FDR data on each in the same
box in which it returned theunits to SkyJet.
The plot thickens.
Logic Air then produced itsemails with SkyJet from the days
after the incident, in whichSkyJet's primary maintenance
control officer specificallystated to Logic Air that it was
(08:55):
in all caps IMPORTANT DO NOTERASE ANY DATA FROM BOTH UNITS.
One of the emails which had tobe translated from French to
English, stated that quote thedownloads are done and recorded
on two DVDs.
They will be in the box withthe units.
The CVR channels can belistened to with a PC.
(09:16):
The one you want to listen tois channel four.
This is the area mic.
It's more interesting from the30 minute mark, close quote
SkyJet never produced thoseemails between SkyJet and Logic
Air.
Instead, vse received thoseemails from Logic Air in June of
2024.
(09:37):
We are now before the court onthe defendant, vse's motion for
spoliation sanctions forSkyJet's failure to preserve the
aircraft's cockpit voicerecorder readouts from the hot
start incident.
Vse seeks dismissal of SkyJet'scomplaint with prejudice or a
default judgment against SkyJet,an adverse inference, jury
instruction, preclusion oftestimony by SkyJet's witnesses
(09:59):
and attorneys fees and expenses.
Vse contends that SkyJet had aduty to preserve the CBR data
from the hot start incident butdid not preserve it, that VSE
has been prejudiced by thedestruction of that relevant
evidence and that SkyJet actedin bad faith by intentionally
preventing VSE from reviewingthe CVR data.
Skyjet opposed the motion,arguing that it did not fail to
(10:22):
preserve, but that VSE not thatit did not fail to preserve,
meaning that it acquiesced tothat notion, but that VSE not
that it did not fail to preserve, meaning that it acquiesced to
that notion, but that VSE is notprejudiced by the lack of CVR
data and that it acted in goodfaith.
All right, let's talk about thecourt's analysis.
There's one really interestingpoint here that the court raises
(10:43):
right away at the beginning ofits analysis, and that is that
VSE's counsel attempted toinvoke the court's inherent
authority and relied on pre-2015case law to fashion sanctions
for spoliation, and the courtnoted right away that that was
not correct and that Rule 37 wasamended in 2015 to provide the
(11:05):
exclusive framework to remedyalleged spoliation and that the
court would apply the analysisunder Rule 37.
Now we've done this analysismany times on the case of the
week, and it involves athree-step process.
A court may sanction the lossof ESI only if one the ESI
should have been preserved.
Two, a party failed to takereasonable steps to preserve it.
(11:27):
And three, it cannot berestored or replaced.
Under Rule 37E1, where a partyis prejudiced by the loss of the
information, the court mayorder measures no greater than
necessary to cure the prejudice.
Under the next section, 37e2,if the court finds that the
(11:56):
party acted with intent todeprive another of the
information's use in litigation,the court may impose sanctions
regardless of prejudice.
Of course, rule 37 only applieswhen information is lost after
a party's duty to preserve haskicked in.
Here there was really no disputeabout whether or not SkyJet had
a duty to preserve the cabinvoice recorder data, according
to the court.
The court also found thatSkyJet did not take reasonable
steps to preserve the data.
Skyjet received the data backfrom Logic Air and provided no
(12:20):
explanation whatsoever as towhat it did with the data after
that.
The court dismissed SkyJet'sclaims that they did not receive
the data back as not credible.
Finding that the email trafficbetween SkyJet and Logic Air
documented the delivery of theDVDs was in direct conflict with
the testimony from SkyJet thatit did not receive the data.
The court also found that thedata could not be replaced with
(12:42):
additional discovery such as theFDR data, because that only
includes aircraft performancecharacteristics and not cockpit
voices and sounds, which wouldhave provided additional
important data about what causedthe hot start.
Having met all the requirementsfor finding spoliation, the
court then turned to whether ornot VSE was prejudiced under
Rule 37E1 or whether SkyJet hadthe requisite intent to deprive
(13:05):
for sanctions under Rule 37 E2.
No real surprise here.
The court found that VSE wasprejudiced because it could not
present the CVR data as evidencein support of its expert's
testimony that pilot errorcaused the hot start and that
sanctions were warranted underRule 37 E1.
So we've got prejudice.
Next the court looked atwhether or not there was intent
(13:27):
to deprive.
As to intent, the court spendsparagraphs going over the
timeline of facts and detailsSkyJet's behavior here, which
was appalling.
Here's a direct quote from thecourt.
This is not an instance wherethe CBR data was lost as a
result of the routine deletionof electronic data that SkyJet
(13:50):
considered unimportant.
Skyjet specifically sent theCVR and FDR to Logic Air for
readouts because it viewed thedata from these devices as
important in determining thecause of the hot start.
Skyjet received the CVR and FDRdata back from Logic Air as
well as the data from eachdevice.
Yet the CVR and FDR readoutswent missing.
(14:12):
Skyjet argues that it simplyquote, fell short of its attempt
to preserve the data closequote and was, at worst,
negligent.
But the court is unpersuaded bythis argument for two reasons.
First and foremost, skyjet hasprovided absolutely no
explanation as to how or why theCVR data disappeared from its
facility.
(14:33):
None, but the lack of anyfactual record whatsoever to try
and counter what appears to bea rather shameful trail of
events leads the court toconclude that SkyJet has not
offered any explanation,credible or otherwise, because
the only facts it could offer onthis front would be unfavorable
.
Second, and relatedly, thisconclusion is bolstered by
(14:56):
SkyJet's actions in covering upthe loss of this data during
discovery.
In sum, the only reasonableinference the court can draw
from SkyJet's dishonest andmisleading discovery conduct,
combined with the lack of anyexplanation whatsoever as to
what happened to the CBR dataafter SkyJet received it back
(15:16):
from Logic Air, and the factthat SkyJet now advances the
baseless argument that it had noduty to preserve under Canadian
law, when the federal rules ofcivil procedure clearly govern
its preservation obligations ina case SkyJet itself brought in
United States court, is thatSkyJet acted with the intent to
deprive VSE of the CBR data inthis litigation.
(15:38):
Close quote With all of that,what are the sanctions that the
court awarded here?
All of that, what are thesanctions that the court awarded
here?
Shockingly, the court declinedto grant dismissal, as requested
by VSE, but did find that anadverse jury instruction was
warranted, given that themissing data may very well have
(15:58):
been favorable to VSE and thatSkyJet never produced the email
saying that the recording wasmore interesting from the
30-minute mark.
The court then provided theexact language for the adverse
inference instruction.
Quote SkyJet was under a dutyto preserve the data from its
aircraft cockpit voice recorderfollowing the hot start incident
with the aircraft's left engine.
(16:19):
Skyjet did not take reasonablesteps to preserve the CVR data
and the CVR data was lost as aresult.
The lost CVR data cannot berestored or replaced by
additional information providedduring this litigation.
Because of this, you may, butare not required to infer that
the lost CVR data would havebeen favorable to VSE and
(16:40):
unfavorable to SkyJet.
Close quote Meaning the courtprovided a permissive adverse
inference instruction that thejury is permitted to decide that
that information may have beenunfavorable to skyjet.
It's sort of the loweststandard of an adverse inference
instruction in this situation.
(17:01):
The court also precludedtestimony from any of the pilots
about what happened in thecockpit, because that data would
have been captured by the voicerecorder and awarded BSE
attorneys fees and costs on bothits efforts to obtain the
reporter data, as well as on themotion for sanctions.
Now, the preclusion oftestimony by the pilots is a
good move by the court,obviously, because that doesn't
allow SkyJet to go back.
(17:21):
Find those pilots who'vesuddenly been missing during
this litigation.
Bring them to court to testifyback.
Find those pilots who'vesuddenly been missing during
this litigation.
Bring them to court to testify.
Obviously, there are a lot ofrules that might preclude that
anyway, but the court herespecifically says they can't
testify.
If VSE doesn't have the voicerecorder, you don't get the
pilots.
What are our takeaways from thiscase?
Wow, this case is, in my view,another baffling example of a
(17:46):
party intentionally destroyingcritical evidence and
essentially getting away with it.
As I read the facts of thiscase, the only real way to know
what happened during the hotstart is via the testimony of
the pilots or the voicerecorders, recorder evidence,
(18:06):
which the court found thatSkyJet did intentionally.
Skyjet created a situationwhere allowing a jury to
essentially guess what happenedcould go in their favor,
assuming this case ever gets totrial.
An adverse instruction, aninference instruction, a
permissive adverse inferenceinstruction, may have
significant impact if this casegets to trial, but if it doesn't
, skyjet wins.
Oh, and, incidentally, somehowthe pilot and the maintenance
(18:28):
person from the aircraft on thatday also just happened to
disappear.
I see a trend.
What is the standard fordismissal or a default judgment?
Yes, it's a harsh sanction.
No, I'm not a judge, so I don'tget to decide.
But is this result in this casereally what Rule 37
contemplates?
Because if it is, we have someserious questions to raise about
(18:50):
justice and how a party canactually meet that standard.
Skyjet's conduct here was wrongon every level.
The court details it inparagraphs in its discussion.
The attorney submitted falsediscovery responses.
That's not really called outhere.
Witnesses lied, data wasdeleted or destroyed, even after
(19:12):
SkyJet's team specifically toldLogic Air not to delete it, in
capital letters in an email thatit failed to produce, all to
cover up what was on that voicerecorder.
The only logical explanationand this is mine, not the
court's is that what was on thatrecording would sink SkyJet's
case and they would rather rollthe dice with the court on a
sanctions motion and take theloss, and a permissive adverse
(19:34):
inference instruction is theresult.
I would really ask the rulescommittee here to go back and
consider if that's what theycontemplated in drafting Rule 37
.
This was a carefullyorchestrated effort by SkyJet
that the court notes in somefashion but isn't willing to go
all the way to a dismissal or adefault judgment.
It seems to me that the courtsthat the Rules Committee needs
(19:56):
to acknowledge that we needbetter language for judges to
interpret.
We have seen this time and timeagain on Case of the Week that
some judges are willing toinvoke terminating sanctions and
some are not.
It falls into what I call the98% rule, that the law is 98%
bullshit and 2% law, and it'sthe 98% that VSE got here.
(20:16):
They got a judge who wasn'twilling to issue a terminating
sanction in a place where theconduct clearly warranted it.
For VSE, they'll have toconsider whether any proposed
settlement is greater than thecost and risk of going to trial.
I just keep asking whether whatis the intention of Rule 37
here.
(20:36):
Setting that aside for themoment, this case also raises
several of our key themes hereon Case of the Week that are
always worth repeating.
First, the timeline Based onthe dates laid out by the court.
Vse's counsel did an excellentjob here of reviewing data as
soon as it came in andcontinuing to stay focused on
the loss of data from the tworecorders.
There are no six months gaps ormultiple month gaps in things
(21:00):
happening during discovery thatwe often see and that sometimes
cause the court to weigh againstthe party alleging spoliation.
So kudos to VSE's counsel here.
Second, the timing of seekingthird-party discovery is
critical and counsel for VSE dida good job of going back to the
court multiple times with factsto support why discovery should
be reopened.
(21:20):
On the spoliation issue, we'veseen time and time again here on
Case of the Week where theparties don't coordinate
sufficiently with the court andthe court is unhappy about that.
Kudos to VSE's counsel fordoing that here.
Discovery in this case was shortand it's not clear when the
facts came out that VSE learnedabout Logic Air's role in
(21:41):
downloading the data from theirrecorders.
But they worked diligently toget data from Logic Air and
stayed in touch with the court.
That's the way to conductdiscovery in a cost-effective
manner for your client.
Now I'm left at the end of thiscase with wondering how VSC's
counsel could have made betterarguments for the court on
sanctions.
That would have made adifference.
They went down every rabbithole.
(22:02):
They found all the puzzlepieces.
They put all the puzzle piecestogether in a way that could
only lead to one conclusion, andthat is that SkyJet was
basically hiding all of thisinformation because it was bad
for them.
Certainly, costs imposed willbe considerable here, but money
is rarely a driving factor incuring behavior.
(22:24):
Real sanctions that wouldimpact SkyJet's bottom line and
potentially change futurebehavior are what was needed
here.
We need to set a precedent tostop this kind of conduct from
happening.
It feels like our courts set aprecedent that you can engage in
intentionally bad behavior tothe other side and then the
other side has to spend the timeand money to prove it, and then
(22:44):
, when they do, they still haveto go to trial and hope for the
right result with a permissiveadverse inference instruction.
Now our system is based on anevidence code and the failure to
preserve evidence impacts whatevidence is put forth at trial.
I understand that.
That's why it ends here andthat's what the judge's analysis
is.
I'm just not sure that that'sright.
(23:05):
That's our case of the week.
For this week, be sure tofollow us on the Meet and Confer
podcast on your favoritepodcast platform or, if you
prefer, you can follow us on ourblog at Minerva26.com backslash
blog.
Thanks, have a great week,thank you.
Thank you, hi, and welcome to this episode of
the Meet and Confer podcast.
The principal at ESI Attorneys,a law firm for e-discovery and
information law, as well as theCEO at Minerva 26, where I take
the insights from my 28 years asa discovery strategist and
litigator and, together with myteam, provide a strategic
command center for litigators toleverage the power of ESI.
(00:59):
Thanks so much for joining metoday.
Our case of the week segment onthe Meet and Confer podcast is
brought to you by Minerva 26 inpartnership with ACEDS.
On this segment, I analyze arecent decision on discovery
issues involving ESI and talkabout what you should take away
from the court's decision andwhy.
It's no secret that our rulesgoverning discovery are not
(01:21):
keeping pace with technology.
It's a struggle to fit a squarepeg in a round hole.
Judicial decisions,interpreting those rules in the
context of today's technologyand the electronic evidence that
we create using that technologyacts as our guide to how we
need to advocate for clients.
As always, judicial decisionsare as good as the facts and
arguments presented to the court.
So part of what we talk abouthere is the lawyering are as
(01:43):
good as the facts and argumentspresented to the court.
So part of what we talk abouthere is the lawyering, the good,
the bad, the ugly.
Our decision today highlights aquestion that we keep seeming
never to get the answer toExactly how bad does your
conduct have to be in discoveryfor the court to order a
terminating sanction?
(02:03):
This week's decision comes to usfrom the case of Sky Jet versus
VSE Aviation.
This is a decision from UnitedStates Magistrate Judge Angel
Mitchell, dated June 12, 2025.
Now this case has a number ofacronyms in it, so stick with me
and try to pay attention as wego along.
I don't want to confuse you,but it's hard constantly
(02:26):
repeating the things as opposedto the acronyms, let's talk
about the facts of the case.
Let's go back to January 2022.
The facts of the case arise froma so-called "hot start, an
incident involving a 1996 Beachtwin-engine turboprop aircraft
owned by Skyjet.
(02:46):
During attempts to start theengine on January 30, 2022, the
engine temperatures in theaircraft rose significantly and
caused severe damage to the leftengine.
The day prior to the incident,Sky Jet had replaced the fuel
control unit, or the FCU, in theaircraft with a unit that had
(03:08):
been recently overhauled by VSEAviation Services.
VSE is the plaintiff here.
Sky Jet alleged that VSE didnot properly overhaul the FCU
and that the unit caused the hotstart by sending too much fuel
to the engine.
Vse disputed that theiroverhaul of the unit was
(03:30):
defective and argued insteadthat SkyJet had been having
problems with the engine forweeks prior to the incident and
that the damage could have beenprevented but for pilot error in
handling the situation.
Of course, coincidentally, thepilot and mechanic not only no
longer work for SkyJet, buttheir whereabouts are unknown,
(03:51):
and the court notes that theyare believed to be in Canada.
The plane at issue was equippedwith a flight data recorder, or
FDR, that records aircraftperformance, power settings and
other characteristics relatingto engine performance.
The aircraft also contained acabin and cockpit voice recorder
(04:13):
, which is called a CVR, thatrecords voices and sounds in the
cockpit.
Now, since we don't have thepilots, the CVR, as it's noted
by the court, is the only way toknow what was said in the
aircraft during the event.
Now, skyjet filed suit infederal court against VSE on May
9th 2023, so about 16 monthsafter the incident.
(04:35):
Discovery opened.
In July, vse served requestsfor production to SkyJet asking
for any recording of the twostarts alleged in the complaint,
and SkyJet responded to thoserequests for production, as
quote none known.
In November, skyjet produceddocuments that included
maintenance records verifyingthat both the flight data
(04:58):
recorder and the cabin cockpitrecorder were installed on the
aircraft.
Council for VSE then reachedout to Council for SkyJet and
tried to reconcile the RFPresponse that it included,
saying that there was no knownrecordings, with the fact that
there were recorders on theaircraft.
Council for SkyJet then toldCouncil for VSC that he had
(05:20):
asked his client for the datarecordings and was told that
they no longer existed.
Now Discovery was set to closeon December 15th.
Vse served a 30b6 notice onSkyJet the day before Discovery
closed and during thatdeposition VSE learned that
SkyJet's maintenance departmenthad sent the FDR and the CVR to
(05:41):
Logic Air after the incident tohave the data extracted into
readouts and that SkyJet neverreceived the FDR and CVR
readouts back from Logic Air.
Very important, that's what thetestimony is from SkyJet.
Through additional discovery,however, vsc learned that SkyJet
(06:03):
learned from SkyJet's formerdirector of maintenance and now
chief mechanic that no one hadever asked for the CVR or FDR
readouts in the past six monthsand he had never tried to find
the readout from the recordings.
So basically, in response tothe discovery request, skyjet
did not go back to Logic Air andask them for anything.
Did not go back to Logic Airand ask them for anything.
(06:24):
That is again SkyJet'stestimony.
After the depositions, skyjetwent to Logic Air to request the
data.
According to SkyJet, logic Airsent the data, but it was for
the wrong flight.
Skyjet realized that it was forthe wrong flight and asked
Logic Air, who told SkyJet thatthe CBR data for the correct
flight was lost during acomputer malfunction, despite
(06:47):
knowing that SkyJet produced thedata in discovery to VSE for
the wrong flight.
Vse realized that the data wasfrom the wrong flight and sought
permission to work directlywith LogicAir to find the flight
recordings.
The court reopened discovery onthat issue based on
disfoliation evidence that VSEpresented to it Fast forward to
(07:09):
March 2023.
Skyjet produced the FDR readoutto VSE, but said that Skyjet
could not locate a copy of theCVR data and the efforts to seek
the data from Logic Air, whichwas a Canadian company, were
unsuccessful.
Add to the mix that the datafrom Logic Air, which was a
Canadian company, wereunsuccessful.
Add to the mix that the datafrom the FDR readouts that were
finally produced, even afterthey were said they didn't have
(07:30):
them, did not contain anyinformation about engine
temperatures, which VSE allegedwere normally captured and were
important to determining thecause of damage to the engine.
So, while it's not discussed inthe opinion, there's some
question as to whether or notthe FDR readouts that SkyJet
provided were, let's say,redacted to remove information
(07:54):
that might have been relevant tothe incident at hand.
Skyjet also confirmed that theCVR, so the voice recording data
, was still missing and thatLogic Air had advised the
parties that their copy of thevoice recording data was deleted
.
Vse also advised the court thatSkyJet had not assisted in any
way in facilitating thedeposition of Logic Air to learn
(08:15):
whether Logic Air in factdownloaded and sent the CVR data
to SkyJet before it was deleted.
It was deleted A month later,after VSE worked directly with
Logic Air to get a deposition,logic Air's production manager
testified that Logic Air hadsent SkyJet the readouts on two
(08:35):
identical disks, with the CBRand FDR data on each in the same
box in which it returned theunits to SkyJet.
The plot thickens.
Logic Air then produced itsemails with SkyJet from the days
after the incident, in whichSkyJet's primary maintenance
control officer specificallystated to Logic Air that it was
(08:55):
in all caps IMPORTANT DO NOTERASE ANY DATA FROM BOTH UNITS.
One of the emails which had tobe translated from French to
English, stated that quote thedownloads are done and recorded
on two DVDs.
They will be in the box withthe units.
The CVR channels can belistened to with a PC.
(09:16):
The one you want to listen tois channel four.
This is the area mic.
It's more interesting from the30 minute mark, close quote
SkyJet never produced thoseemails between SkyJet and Logic
Air.
Instead, vse received thoseemails from Logic Air in June of
2024.
(09:37):
We are now before the court onthe defendant, vse's motion for
spoliation sanctions forSkyJet's failure to preserve the
aircraft's cockpit voicerecorder readouts from the hot
start incident.
Vse seeks dismissal of SkyJet'scomplaint with prejudice or a
default judgment against SkyJet,an adverse inference, jury
instruction, preclusion oftestimony by SkyJet's witnesses
(09:59):
and attorneys fees and expenses.
Vse contends that SkyJet had aduty to preserve the CBR data
from the hot start incident butdid not preserve it, that VSE
has been prejudiced by thedestruction of that relevant
evidence and that SkyJet actedin bad faith by intentionally
preventing VSE from reviewingthe CVR data.
Skyjet opposed the motion,arguing that it did not fail to
(10:22):
preserve, but that VSE not thatit did not fail to preserve,
meaning that it acquiesced tothat notion, but that VSE not
that it did not fail to preserve, meaning that it acquiesced to
that notion, but that VSE is notprejudiced by the lack of CVR
data and that it acted in goodfaith.
All right, let's talk about thecourt's analysis.
There's one really interestingpoint here that the court raises
(10:43):
right away at the beginning ofits analysis, and that is that
VSE's counsel attempted toinvoke the court's inherent
authority and relied on pre-2015case law to fashion sanctions
for spoliation, and the courtnoted right away that that was
not correct and that Rule 37 wasamended in 2015 to provide the
(11:05):
exclusive framework to remedyalleged spoliation and that the
court would apply the analysisunder Rule 37.
Now we've done this analysismany times on the case of the
week, and it involves athree-step process.
A court may sanction the lossof ESI only if one the ESI
should have been preserved.
Two, a party failed to takereasonable steps to preserve it.
(11:27):
And three, it cannot berestored or replaced.
Under Rule 37E1, where a partyis prejudiced by the loss of the
information, the court mayorder measures no greater than
necessary to cure the prejudice.
Under the next section, 37e2,if the court finds that the
(11:56):
party acted with intent todeprive another of the
information's use in litigation,the court may impose sanctions
regardless of prejudice.
Of course, rule 37 only applieswhen information is lost after
a party's duty to preserve haskicked in.
Here there was really no disputeabout whether or not SkyJet had
a duty to preserve the cabinvoice recorder data, according
to the court.
The court also found thatSkyJet did not take reasonable
steps to preserve the data.
Skyjet received the data backfrom Logic Air and provided no
(12:20):
explanation whatsoever as towhat it did with the data after
that.
The court dismissed SkyJet'sclaims that they did not receive
the data back as not credible.
Finding that the email trafficbetween SkyJet and Logic Air
documented the delivery of theDVDs was in direct conflict with
the testimony from SkyJet thatit did not receive the data.
The court also found that thedata could not be replaced with
(12:42):
additional discovery such as theFDR data, because that only
includes aircraft performancecharacteristics and not cockpit
voices and sounds, which wouldhave provided additional
important data about what causedthe hot start.
Having met all the requirementsfor finding spoliation, the
court then turned to whether ornot VSE was prejudiced under
Rule 37E1 or whether SkyJet hadthe requisite intent to deprive
(13:05):
for sanctions under Rule 37 E2.
No real surprise here.
The court found that VSE wasprejudiced because it could not
present the CVR data as evidencein support of its expert's
testimony that pilot errorcaused the hot start and that
sanctions were warranted underRule 37 E1.
So we've got prejudice.
Next the court looked atwhether or not there was intent
(13:27):
to deprive.
As to intent, the court spendsparagraphs going over the
timeline of facts and detailsSkyJet's behavior here, which
was appalling.
Here's a direct quote from thecourt.
This is not an instance wherethe CBR data was lost as a
result of the routine deletionof electronic data that SkyJet
(13:50):
considered unimportant.
Skyjet specifically sent theCVR and FDR to Logic Air for
readouts because it viewed thedata from these devices as
important in determining thecause of the hot start.
Skyjet received the CVR and FDRdata back from Logic Air as
well as the data from eachdevice.
Yet the CVR and FDR readoutswent missing.
(14:12):
Skyjet argues that it simplyquote, fell short of its attempt
to preserve the data closequote and was, at worst,
negligent.
But the court is unpersuaded bythis argument for two reasons.
First and foremost, skyjet hasprovided absolutely no
explanation as to how or why theCVR data disappeared from its
facility.
(14:33):
None, but the lack of anyfactual record whatsoever to try
and counter what appears to bea rather shameful trail of
events leads the court toconclude that SkyJet has not
offered any explanation,credible or otherwise, because
the only facts it could offer onthis front would be unfavorable
.
Second, and relatedly, thisconclusion is bolstered by
(14:56):
SkyJet's actions in covering upthe loss of this data during
discovery.
In sum, the only reasonableinference the court can draw
from SkyJet's dishonest andmisleading discovery conduct,
combined with the lack of anyexplanation whatsoever as to
what happened to the CBR dataafter SkyJet received it back
(15:16):
from Logic Air, and the factthat SkyJet now advances the
baseless argument that it had noduty to preserve under Canadian
law, when the federal rules ofcivil procedure clearly govern
its preservation obligations ina case SkyJet itself brought in
United States court, is thatSkyJet acted with the intent to
deprive VSE of the CBR data inthis litigation.
(15:38):
Close quote With all of that,what are the sanctions that the
court awarded here?
All of that, what are thesanctions that the court awarded
here?
Shockingly, the court declinedto grant dismissal, as requested
by VSE, but did find that anadverse jury instruction was
warranted, given that themissing data may very well have
(15:58):
been favorable to VSE and thatSkyJet never produced the email
saying that the recording wasmore interesting from the
30-minute mark.
The court then provided theexact language for the adverse
inference instruction.
Quote SkyJet was under a dutyto preserve the data from its
aircraft cockpit voice recorderfollowing the hot start incident
with the aircraft's left engine.
(16:19):
Skyjet did not take reasonablesteps to preserve the CVR data
and the CVR data was lost as aresult.
The lost CVR data cannot berestored or replaced by
additional information providedduring this litigation.
Because of this, you may, butare not required to infer that
the lost CVR data would havebeen favorable to VSE and
(16:40):
unfavorable to SkyJet.
Close quote Meaning the courtprovided a permissive adverse
inference instruction that thejury is permitted to decide that
that information may have beenunfavorable to skyjet.
It's sort of the loweststandard of an adverse inference
instruction in this situation.
(17:01):
The court also precludedtestimony from any of the pilots
about what happened in thecockpit, because that data would
have been captured by the voicerecorder and awarded BSE
attorneys fees and costs on bothits efforts to obtain the
reporter data, as well as on themotion for sanctions.
Now, the preclusion oftestimony by the pilots is a
good move by the court,obviously, because that doesn't
allow SkyJet to go back.
(17:21):
Find those pilots who'vesuddenly been missing during
this litigation.
Bring them to court to testifyback.
Find those pilots who'vesuddenly been missing during
this litigation.
Bring them to court to testify.
Obviously, there are a lot ofrules that might preclude that
anyway, but the court herespecifically says they can't
testify.
If VSE doesn't have the voicerecorder, you don't get the
pilots.
What are our takeaways from thiscase?
Wow, this case is, in my view,another baffling example of a
(17:46):
party intentionally destroyingcritical evidence and
essentially getting away with it.
As I read the facts of thiscase, the only real way to know
what happened during the hotstart is via the testimony of
the pilots or the voicerecorders, recorder evidence,
(18:06):
which the court found thatSkyJet did intentionally.
Skyjet created a situationwhere allowing a jury to
essentially guess what happenedcould go in their favor,
assuming this case ever gets totrial.
An adverse instruction, aninference instruction, a
permissive adverse inferenceinstruction, may have
significant impact if this casegets to trial, but if it doesn't
, skyjet wins.
Oh, and, incidentally, somehowthe pilot and the maintenance
(18:28):
person from the aircraft on thatday also just happened to
disappear.
I see a trend.
What is the standard fordismissal or a default judgment?
Yes, it's a harsh sanction.
No, I'm not a judge, so I don'tget to decide.
But is this result in this casereally what Rule 37
contemplates?
Because if it is, we have someserious questions to raise about
(18:50):
justice and how a party canactually meet that standard.
Skyjet's conduct here was wrongon every level.
The court details it inparagraphs in its discussion.
The attorney submitted falsediscovery responses.
That's not really called outhere.
Witnesses lied, data wasdeleted or destroyed, even after
(19:12):
SkyJet's team specifically toldLogic Air not to delete it, in
capital letters in an email thatit failed to produce, all to
cover up what was on that voicerecorder.
The only logical explanationand this is mine, not the
court's is that what was on thatrecording would sink SkyJet's
case and they would rather rollthe dice with the court on a
sanctions motion and take theloss, and a permissive adverse
(19:34):
inference instruction is theresult.
I would really ask the rulescommittee here to go back and
consider if that's what theycontemplated in drafting Rule 37
.
This was a carefullyorchestrated effort by SkyJet
that the court notes in somefashion but isn't willing to go
all the way to a dismissal or adefault judgment.
It seems to me that the courtsthat the Rules Committee needs
(19:56):
to acknowledge that we needbetter language for judges to
interpret.
We have seen this time and timeagain on Case of the Week that
some judges are willing toinvoke terminating sanctions and
some are not.
It falls into what I call the98% rule, that the law is 98%
bullshit and 2% law, and it'sthe 98% that VSE got here.
(20:16):
They got a judge who wasn'twilling to issue a terminating
sanction in a place where theconduct clearly warranted it.
For VSE, they'll have toconsider whether any proposed
settlement is greater than thecost and risk of going to trial.
I just keep asking whether whatis the intention of Rule 37
here.
(20:36):
Setting that aside for themoment, this case also raises
several of our key themes hereon Case of the Week that are
always worth repeating.
First, the timeline Based onthe dates laid out by the court.
Vse's counsel did an excellentjob here of reviewing data as
soon as it came in andcontinuing to stay focused on
the loss of data from the tworecorders.
There are no six months gaps ormultiple month gaps in things
(21:00):
happening during discovery thatwe often see and that sometimes
cause the court to weigh againstthe party alleging spoliation.
So kudos to VSE's counsel here.
Second, the timing of seekingthird-party discovery is
critical and counsel for VSE dida good job of going back to the
court multiple times with factsto support why discovery should
be reopened.
(21:20):
On the spoliation issue, we'veseen time and time again here on
Case of the Week where theparties don't coordinate
sufficiently with the court andthe court is unhappy about that.
Kudos to VSE's counsel fordoing that here.
Discovery in this case was shortand it's not clear when the
facts came out that VSE learnedabout Logic Air's role in
(21:41):
downloading the data from theirrecorders.
But they worked diligently toget data from Logic Air and
stayed in touch with the court.
That's the way to conductdiscovery in a cost-effective
manner for your client.
Now I'm left at the end of thiscase with wondering how VSC's
counsel could have made betterarguments for the court on
sanctions.
That would have made adifference.
They went down every rabbithole.
(22:02):
They found all the puzzlepieces.
They put all the puzzle piecestogether in a way that could
only lead to one conclusion, andthat is that SkyJet was
basically hiding all of thisinformation because it was bad
for them.
Certainly, costs imposed willbe considerable here, but money
is rarely a driving factor incuring behavior.
(22:24):
Real sanctions that wouldimpact SkyJet's bottom line and
potentially change futurebehavior are what was needed
here.
We need to set a precedent tostop this kind of conduct from
happening.
It feels like our courts set aprecedent that you can engage in
intentionally bad behavior tothe other side and then the
other side has to spend the timeand money to prove it, and then
(22:44):
, when they do, they still haveto go to trial and hope for the
right result with a permissiveadverse inference instruction.
Now our system is based on anevidence code and the failure to
preserve evidence impacts whatevidence is put forth at trial.
I understand that.
That's why it ends here andthat's what the judge's analysis
is.
I'm just not sure that that'sright.
(23:05):
That's our case of the week.
For this week, be sure tofollow us on the Meet and Confer
podcast on your favoritepodcast platform or, if you
prefer, you can follow us on ourblog at Minerva26.com backslash
blog.
Thanks, have a great week,thank you.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Special Summer Offer: Exclusively on Apple Podcasts, try our Dateline Premium subscription completely free for one month! With Dateline Premium, you get every episode ad-free plus exclusive bonus content.