In Sky Jet M.G. Inc., v. VSE Aviation Services, LLC, No. 23-2210-HLT-ADM (D. Kan. June 12, 2025), Kansas Magistrate Judge Angel D. Mitchell, finding Plaintiff had intent to deprive Defendant of Cockpit Voice Recorder (CVR) readouts from a plane hot-start incident, ordered adverse inference sanctions (among other sanctions) against Plaintiff.
Case Discussion and Judge’s Ruling
This case concerns a “hot start” incident of a 1996 Beech 1900D aircraft, which Sky Jet M.G. Inc. (Plaintiff) attributes to a faulty fuel-control unit (FCU) overhauled by VSE Aviation Services, LLC (Defendant). VSE contends the damage was preventable by proper pilot handling and that Sky Jet had prior issues with the engine. VSE requested spoliation sanctions against Sky Jet for failing to preserve the aircraft’s Cockpit Voice Recorder (CVR) readouts from the hot-start incident.
- Sky Jet’s Claim: Sky Jet alleged the hot start was caused by a defective FCU, overhauled by VSE, which sent too much fuel to the engine.
- VSE’s Defense: VSE disputed this, claiming Sky Jet had prior engine issues and that “no matter what the cause, the damage would have been prevented if the pilots had properly handled the situation.”
- Pilots/Mechanic: The pilots and mechanic involved are no longer employed by Sky Jet and their whereabouts are unknown (believed to be in Canada).
- Aircraft Recorders: The aircraft was equipped with a Flight Data Recorder (FDR), recording aircraft performance, and a Cockpit Voice Recorder (CVR), recording voices and sounds inside the cockpit. Sky Jet admitted to sending both the CVR and FDR to Logic Air for data extraction as part of its investigation.
Judge Mitchell meticulously detailed Sky Jet’s actions leading to the spoliation finding:
- Initial Misrepresentation: In August 2023, VSE’s Request for Production (RFP) No. 14 sought “any recording of the two starts that are the subject of the Complaint.” Sky Jet responded, “None known.”
- Logbook Discovery: In late November 2023, VSE’s counsel discovered logbook entries stating the FDR and CVR were re-installed in 2022 “AFTER READOUT,” suggesting recordings had existed. Sky Jet’s counsel then stated his client told him the data “no longer existed.”
- Corporate Deposition (Rule 30(b)(6)): On December 14, 2023 (the day before discovery closed), Sky Jet’s President, Mathieu Gringas, testified. This was the first time VSE learned the FDR and CVR had been sent to Logic Air for readouts. Gringas claimed Sky Jet never received the readouts back from Logic Air and that no one in maintenance had a copy.
- Conflicting Testimony: The next day, Gerry Letiec, Sky Jet’s former Director of Maintenance, testified that no one had asked for the CVR or FDR readouts in the past six months and he never tried to find them. Judge Mitchell found Gringas’s testimony “conflicts with all other evidence in the record.”
- Logic Air Engagement: After these depositions, Sky Jet requested data from Logic Air, which sent what it found. Sky Jet later claimed this data was from the wrong date, and Logic Air stated the CVR data was lost due to a computer malfunction.
- VSE’s Efforts to Obtain Data: VSE sought court intervention, leading to discovery reopening specifically for CVR/FDR data. VSE had to engage Canadian counsel and obtain a subpoena from the Quebec Superior Court because Logic Air did not voluntarily cooperate.
- Key Email Discovery: On June 25, 2024, Logic Air’s Production Manager, Marc Meagher, testified that Logic Air sent Sky Jet the readouts on two identical DVDs with CVR and FDR data. Two days later, Logic Air produced critical emails between Sky Jet’s Labrie and Meagher. An email from Labrie the day after the incident expressed Sky Jet’s desire to “obtain and extract the vocal sound track and data information for internal management purpose.” Labrie explicitly wrote in red, bold, all-caps: “IMPORTANT DO NOT ERASE ANY DATA FROM BOTH UNIT.” Meagher emailed Labrie confirmation that “The downloads are done and recorded on two DVDs they will be in the box with the units…. The CVR channels can be listened to with a PC the one you want to listen to is Channel 4 This is the area mic. It’s more interesting from the 30 minute mark.” Importantly, Sky Jet never produced these emails; VSE obtained them from Logic Air.
Court’s Findings on Threshold Requirements
Judge Mitchell found all three prerequisites for spoliation under Rule 37(e) were met:
- Duty to Preserve: Sky Jet had a duty to preserve the CVR data. Judge Mitchell rejected Sky Jet’s “half-hearted attempt” to argue Canadian law applies or that the data was not relevant, emphasizing that U.S. federal rules govern, and the data was clearly relevant, especially since Sky Jet itself sought the readouts for its investigation. The CVR recording “would have provided a real-time accounting of the pilots’ actions and aircraft performance by the voices and sounds recorded.”
- Failure of Reasonable Steps: Sky Jet “did not take reasonable steps to preserve the data.” Logic Air testified it returned the DVDs with readouts, but Sky Jet offered “no explanation whatsoever as to what it did with those DVDs.” Gringas’s testimony denying receipt conflicted with Logic Air’s testimony and the physical return of units in the same box as DVDs. The “absence of any explanation whatsoever by Sky Jet as to what happened to the CVR readouts after Logic Air delivered them to Sky Jet” led to the conclusion that Sky Jet failed to take reasonable steps.
- Loss/Irreplaceability: The CVR readouts are lost and cannot be restored or replaced. Judge Mitchell found the FDR data not cumulative of the CVR, as the CVR captures “cockpit voices and sounds,” which are distinct from aircraft performance characteristics. The CVR would have provided “additional important data about what actually caused the hot start.”
Court’s Findings on Prejudice (Rule 37(e)(1))
Judge Mitchell found VSE was prejudiced by the loss of the CVR recordings:
- The CVR data is “important to the litigation because it would have provided an additional source of evidence about what actually caused the hot start.”
- VSE’s expert opinions would have been “strengthened with access to the [CVR] data,” particularly because the pilots involved are unavailable to testify.
- “Spoliation of evidence causes prejudice when, as a result of the spoliation, the party claiming spoliation cannot present evidence essential to the underlying claim.”
Court’s Findings on Intent to Deprive (Rule 37(e)(2))
Judge Mitchell found that Sky Jet acted with the intent to deprive VSE of the CVR data, which can be inferred from circumstantial evidence:
- No Explanation for Loss: Sky Jet provided “absolutely no explanation as to how or why the CVR data disappeared from its facility.” Judge Mitchell reasoned that “the only facts it could offer on this front would be unfavorable.”
- Cover-Up During Discovery: Sky Jet engaged in a pattern of obfuscation and dishonesty: 1) False “none known” response to RFP No. 14, despite knowing the recordings existed and had been sent to Logic Air; 2) Concealment of crucial emails between Labrie (Sky Jet) and Meagher (Logic Air) detailing the request for, importance of, and delivery of the CVR data. These emails included an explicit instruction from Sky Jet not to erase data and Meagher’s note that the CVR data was “more interesting from the 30 minute mark”; 3) Evasive and dishonest corporate witness (Gringas) testimony, denying receipt of readouts and contradicting other evidence and subsequent testimony; 4) Lack of proactive assistance in obtaining data from Logic Air after VSE learned of Logic Air’s involvement.
- Running Out the Clock: Judge Mitchell inferred Sky Jet “was attempting to run out the clock on discovery so that VSE would never learn about Sky Jet’s spoliation of this evidence.”
- Conclusion: Sky Jet’s conduct, including the “untruthful ‘none known’ discovery response, the evasive and dishonest 30(b)(6) testimony, the fact that it was Logic Air (not Sky Jet) that ultimately produced the emails… and the lack of any early initiative by Sky Jet to obtain its own discovery from Logic Air,” led Judge Mitchell to conclude that Sky Jet’s actions were “beyond the result of mere negligence” and demonstrated “intent to deprive VSE of the CVR data in this litigation.”
Fashioning the Appropriate Sanction
Given the findings of prejudice (Rule 37(e)(1)) and intent to deprive (Rule 37(e)(2)), Judge Mitchell imposed the following sanctions:
- Adverse-Inference Jury Instruction: The jury will be instructed that Sky Jet had a duty to preserve CVR data, failed to take reasonable steps, and the data was lost. The jury will be instructed that it “may presume that the lost CVR data was favorable to VSE and unfavorable to Sky Jet.” This sanction is warranted because the missing data “may very well have been favorable to VSE” (as indicated by Meagher’s email) and because Sky Jet acted with intent to deprive.
- Preclusion of Pilot Testimony: Judge Mitchell will bar the pilots involved in the hot-start incident from testifying at trial. This is deemed necessary to “even the playing field” and address the prejudice to VSE, as VSE lacks a complete discovery record (CVR data) to effectively cross-examine such witnesses, and the pilots are unavailable.
- Award of Attorneys’ Fees and Expenses: VSE will be awarded reasonable attorneys’ fees and expenses incurred in discovering the CVR readouts and in connection with the spoliation motion. This aims to “cure the prejudice VSE has suffered” due to Sky Jet’s lack of forthrightness. Specific deadlines were set for VSE to submit its requested amount and for parties to confer or file motions regarding the amount.
- Dismissal Denied: Judge Mitchell found dismissal or default judgment too extreme given the circumstances, noting that such severe sanctions are reserved for “extreme circumstances” and often follow more direct warnings, which were not given here.
So, what do you think? Have you ever seen a case involving Cockpit Voice Recorder data before? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.