Judge grants request from families of Ethiopian Air Boeing 737 MAX crash victims to share confidential docs with DOJ

(CHICAGO) — A federal magistrate judge in Chicago on Monday granted a request from families of victims of the 2019 Ethiopian Air Boeing 737 MAX crash to provide the U.S. Department of Justice confidential documents and testimony obtained in their civil lawsuit against Boeing. The families contend the information they want to share with federal prosecutors supports “holding Boeing criminally liable” beyond the single criminal charge — conspiracy to defraud the United States — which formed the basis of a deferred prosecution agreement (DPA) between the government and Boeing in 2021.

Tracy Brammeier, an attorney for the victims’ families, said at the hearing in federal court that the documents they want the DOJ to review include exhibits to depositions of various Boeing employees that were taken in the civil case and some limited excerpts of testimony.

“The families are asking for the opportunity to discuss freely … the criminal behavior, or behavior that the families argue is criminal, with the DOJ,” Brammeier said.

Ethiopian Airlines Flight 302, the Air Boeing 737 MAX, crashed near Addis Ababa airport just six minutes after takeoff, killing all on board in 2019.

It was the second crash involving a Boeing 737 Max within five months. In October 2018, Lion Air Flight 610 was airborne for only 13 minutes before it plunged into the Java Sea off the coast of Indonesia. A total of 346 people died in both accidents.

Last month, prosecutors informed Boeing that the company had allegedly breached the terms of the DPA, by failing to “design, implement, and enforce a compliance and ethics program to prevent and detect violations of the U.S. fraud laws throughout its operations.”

The DOJ’s determination — which came about four months after the door plug of an Alaska Airlines Boeing 737 MAX 9 blew out mid-flight — effectively mooted the DPA and opened up Boeing to possible prosecution on the original charge or “for any federal criminal violation of which the United States has knowledge,” according to a DOJ letter sent last month to U.S. District Judge Reed O’Connor, who presides over the criminal case. The DOJ said it is still considering how it intends to proceed and will make its determination on or before July 7.

Boeing has disputed the DOJ’s finding of a breach.

“We believe that we have honored the terms of that agreement, and look forward to the opportunity to respond to the Department on this issue,” the company said in a statement in May.

Three previous requests from the families to share the documents with DOJ were turned down by the court. In seeking permission to share the materials now, attorneys for the families provided the court with a letter from Glenn Leon, Chief of DOJ’s Fraud Section, indicating the department’s willingness to meet with the families to discuss the documents.

“You may represent to the district court overseeing the civil action that the Fraud Section is willing to meet with the families and counsel to entertain such evidence,” Leon wrote, while cautioning that the department’s support “should not be understood to express a view on the part of the Department about whether Boeing will be prosecuted or, if prosecuted, whether any charge or charges beyond the one count in the Criminal Information would be warranted.”

In reaching his decision, Magistrate Judge M. David Weisman cited the DOJ’s letter and the recently changed circumstances surrounding Boeing’s alleged violations of the DPA.

“In totality, and in isolation, each of those reasons, I think, establish the good cause necessary to modify the protective order” to allow the families to share the documents with prosecutors, Weisman said.

Before Weisman granted the families’ request, Dan Webb, an attorney for Boeing, argued that modifying the confidentiality order in the civil case was unnecessary, because prosecutors have other means of obtaining information they want from the company. “The government has substantial resources to do that through … the grand jury process and other investigative tools,” Webb said at the hearing.

“If DOJ simply brings it to us, we’ll produce the documents to DOJ pursuant to a grand jury subpoena or the investigative tools that DOJ wants to use, now that we know they’re interested in it,” Webb added.

Under Weisman’s order, lawyers for the families will be required to inform Boeing of the specific documents they intend to share with the DOJ. Boeing will be given three days to lodge any objections if they believe the documents contain commercial trade secrets or classified information.

Brammeier, the families’ attorney, acknowledged that the DOJ may already possess some of the documents, but she said the families have been prohibited from being able to discuss the information with prosecutors because of the confidentiality order in the civil case

Boeing did not immediately respond to a request for comment.

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