Provided by Eyal Doron with S. Horowitz, Tel Aviv, Israel

On March 3, 2026, the Supreme Court of Israel handed down a landmark ruling that directly impacts how Flight Operational Quality Assurance (FOQA) data may — and may not — be used in civil litigation against airlines. The bottom line: while FOQA data may lose its privilege and be disclosed to a claimant under certain circumstances, it remains categorically inadmissible as evidence in civil court proceedings. For airlines operating in or through Israel, this decision offers significant protection for flight safety data, but also carries an important cautionary note about handling FOQA files during discovery.  

The Case 

The case arose from a personal injury claim filed against El Al Israel Airlines by a passenger who alleged he was injured during a flight when the aircraft encountered severe air pockets. In the course of litigation, the claimant requested disclosure of FOQA data recorded at the time of the incident. El Al produced the file — but later claimed it had done so inadvertently, and that use of the file in court proceedings was prohibited under Section 141 of Israel’s Aviation Law, 2011 (the “Act”). The Tel Aviv District Court rejected El Al’s motion to exclude the file, finding that it fell within an exception allowing disclosure where justice so requires, and permitted the claimant to rely on it. El Al sought leave to appeal before the Supreme Court (Israel’s highest judicial instance).  

The Supreme Court’s Ruling 

The Chief Justice, writing for the Court, accepted the appeal in part, establishing an important analytical framework for FOQA data under Israeli law.  

First, the Court confirmed that FOQA output constitutes a “flight data recording” within the meaning of Section 141(a) of the Act, relying on both the statutory language and the legislative history, which explicitly referenced FOQA systems. The Court rejected the claimant’s argument that because the raw data is retained for only 90 days, the processed FOQA file should fall outside the statute’s scope. The distinction between raw and processed data, the Court held, is artificial — both are produced automatically by the same system.  

Second, and most critically, the Court drew a sharp distinction between the two separate legal mechanisms embedded in Section 141(b): privilege (the prohibition on disclosure) and inadmissibility (the prohibition on receiving the recording as evidence). While the statute’s balancing test — permitting disclosure where the interest of justice outweighs the interest in non-disclosure — applies to privilege, the Court held that it does not extend to admissibility. In other words, even if a court lifts the privilege over FOQA data and orders its disclosure, the data still cannot be admitted as evidence in civil proceedings.  

Practical Outcome 

Applying this framework, the Court ruled that the FOQA file in question was no longer privileged — it had already been disclosed (albeit inadvertently), was referenced in a safety investigation report previously provided to the claimant, and as automatically generated data, it posed a low risk of a “chilling effect” on safety investigations. However, the file was declared inadmissible as evidence and cannot be used in court.  

Key Takeaways 

This ruling reinforces the inadmissibility of FOQA data in civil proceedings in Israel as a near-absolute statutory bar, distinct from the more flexible privilege regime. Nevertheless, it also underscores that inadvertent disclosure of FOQA data can result in the loss of its privileged status, even if it cannot ultimately be admitted as evidence. Airlines should ensure that internal protocols for handling FOQA data during litigation are robust, and that discovery responses are carefully reviewed to prevent unintended production of protected flight safety information.

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