Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation (2016)

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6As seen in some of the documents in the Appendix of this digest, the language of the regulations can be used to form the basis of a roadway agency’s Motion to Quash or Motion in Limine. The second prong of the statute is known as the “Federal Funding Test,” wherein Congress expressed its intent that reports, surveys, schedules, lists, or data compiled or collected for the purpose of devel- oping any safety construction projects that could be implemented using designated federal safety funds are also protected from civil litigation. Examples of the use of this prong of the statute in pleadings can also be found in the Appendix of this digest. State and federal courts generally explain that Congress intended for the states and local agencies to be able to comfortably collect, review, and compile safety data, and then make recommendations for site improvements. Highway departments must be able to conduct this work without concern that the infor- mation will be used against them in litigation.24 III. ELEMENTS OF EXISTING CASELAW This section includes a detailed discussion of fed- eral and state cases that illustrate the important components of the law of § 409 and its protections. The end result of the judicial application of § 409 may be that documentation or evidence that is legally relevant in a civil personal injury or wrong- ful death case is not admissible in that suit, and cases with merit may not be successfully prosecuted by a plaintiff. It is apparent that Congress was aware of the potential for injustice for individuals when the legislation was enacted. The court in Coniker v. State of New York25 commented as follows: Clearly, the result of the statute is harsh. Evidence that would otherwise be crucially relevant on a number of issues that routinely arise in highway negligence litigation may not be admitted or disclosed, notwithstanding that such may influence or perhaps determine the outcome of the liti- gation. Nevertheless, Congress has determined that the effect of the prohibition would be to enhance the safety of the Nation’s highways and, in the long run reduce the num- ber of people killed and injured in accidents that could be avoided by systematic analysis, and that this goal out- weighs the barriers that it creates for litigants attempting to prove that a State’s negligence contributed to their inju- ries. Indeed, one could perhaps make an apt analogy to other exclusionary rules, such as those in criminal cases, where evidence that would otherwise be probative is barred from admission in furtherance of what is deemed to be a higher goal. Our system of government assigns the balanc- ing of such competing interests to the legislative branch, and the role of this court is not to second-guess the analysis that resulted in this evaluation, or to attempt, in a particu- lar case, to find a way around it, but rather to effectuate congressional intent.26 Because both highway agencies and railroad cor- porations have protections under federal law, the influence of railroad cases on the interpretation of § 409 is an important component of the analysis of the law. Hundreds of state and federal cases in some manner interpret § 409, and many of those cases involve railroad crossings and data rather than highway intersections and accident data. Although highway and railroad issues may be simi- lar, in that the same types of documents are pro- tected, the courts may treat highway and railroad cases differently because the basis of the protec- tions are found in different sections of federal law. Counsel should closely evaluate the text of the law that relates to documents held by government and railroad companies before assuming that a particu- lar ruling is applicable to their fact pattern. At least one court has noted that Congress may have intended to provide a stronger protection to docu- mentation collected by states than to documenta- tion collected by railroads.27 The cases are divided into the following topics: preemption of state law, raw data, typically protected documents, data available from other sources, public records requests, waiver of privilege, trial strategy, the evidentiary foundation necessary to establish privilege, and the influence of railroad cases. A. Preemption of State Law The Supremacy Clause in the United States Constitution provides for the federal preemption (or over-riding) of state law and was intended to resolve potential conflicts between federal and state law. Congress, within constitutional limitations, may supersede or “overrule” state law. Federal law essen- tially trumps or preempts state law when the two are in conflict. Courts, however, require clear lan- guage of Congress’s intent in order to find that a state law has been preempted by federal law. After § 409 was enacted, the issue of whether Congress intended to supersede state evidentiary rules was litigated extensively. Courts eventually agreed that Congress intended to preempt state evidentiary rules as to documents gathered for purposes related to the federal statute. In Martinolich v. Southern Pacific Transportation Co.,28 the court analyzed the principle as follows: 24 See Sawyer v. Ill. Cent. Gulf R.R. Co., 606 So. 2d 1069 (Miss. 1992). 25 181 Misc. 2d 801, 695 N.Y.S.2d 492 (Ct. Claims N.Y. 1999). 26 Id. at 805, 695 N.Y.S.2d at 495. 27 See Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 182 (3d Cir. 2013). 28 532 So. 2d 435 (La. App. 1988).

723 U.S.C. § 409 begins with the language “[n]otwithstanding any other provision of law....” The substance that follows this preface, applicable to both federal and state courts, is the regu- lation of evidence: “[certain documents]...shall not be admitted into evidence in Federal or State court or considered for other purposes....” Insofar as this statute applies to the function of state courts conducting their business—it is preemptive. …. Where, as here, the intrusion is into an area traditionally occupied by the states, Congress’ intent to preempt must be clear. …. “We start with the assumption that the historic police pow- ers of the states were not to be superseded...unless that was the clear and manifest purpose of Congress,” quoting from Ruth Packing Co.29 [A] state’s regulation of its court system is in our opinion as fundamental a function of its sovereignty as the normal exercise of its police power even in matters concerning the health and safety of its citizens. Congress’ intrusion, in this instance, however, is constitutionally permissible because Louisiana’s participation in the federal funding scheme is voluntary; because the improvement of state highways with federal funds is in pursuit of “[providing] for the general wel- fare” as provided in U.S. Const. Art. I, § 8, cl. 1 (“spending power”); because it is clear that participation in the funding program requires acquiescence to the intrusion; and, finally, because the intrusion is related to a valid federal interest.30 B. Raw Data Raw data, in the hands of a state or local trans- portation agency, are protected from disclosure, dis- covery, or admission into evidence in a court of law as long as they were collected or compiled for the purposes enumerated in the law. Raw data can be documents such as accident reports, reports of prop- erty damage, hazard rankings, charts or graphs showing data analysis, or traffic counts. As detailed in the following section, Pierce County v. Guillen31 provides guidance for practitioners and judges in interpreting the provisions of § 409 relating to data. In Pierce County, the U.S. Supreme Court over- ruled multiple inconsistent lower court interpreta- tions of the law and set out guidelines that are consistent with the plain language of § 409 and con- gressional intent. The case involved a fatal accident at the intersection of two county roads in the State of Washington. Plaintiff, through the state Public Disclosure Act, requested that the agency provide the accident history of the intersection along with other safety documentation such as collision diagrams prepared by a County employee, a memorandum from the County public works director, and a list of acci- dents that had occurred at the intersection. Lower courts granted plaintiff ’s requests for the docu- ments. The case reached the U.S. Supreme Court after the Washington Supreme Court ruled that § 409 protection was limited to documents created originally by the road agency for § 152 purposes and that § 409 was unconstitutional because it violated the Commerce Clause of the U.S. Constitution. The U.S. Supreme Court reviewed the legislative history of the Federal Hazard Elimination Program, noting that the program was intended to provide state and local governments with funding to improve the most dangerous sections of their roads, and then set out the three different versions of § 409 and compared them to illustrate the changes in the law. The Court considered several different interpretations of the law as presented by the parties and the federal govern- ment and ultimately concluded that the protections found in the statute should be interpreted narrowly. A unanimous Court found that because Congress could reasonably believe that the roadways would be safer as a result of the application of § 409 by public agencies, it was a law that was aimed at improving safety in the channels of commerce and “increasing protection for the instrumentalities of interstate commerce” and therefore constitutional.32 The Court reversed the lower court’s ruling that the requested data should be released, finding that the requested information was “collected or compiled” by the County and, even if the data had been compiled for or by another agency, as long they had been compiled for § 152 purposes as part of the Hazard Elimination Program, data sought from the County were pro- tected both from discovery and admission at trial. Although the Court recognized that its ruling could impact individual plaintiffs’ cases negatively, it found that the goal of greater safety on the nation’s highways was paramount. The Court stated its rea- soning as follows: Congress adopted Section 152 to assist state and local gov- ernments in reducing hazardous conditions in the Nation’s channels of commerce. That effort was impeded, however, by the States’ reluctance to comply fully with the requirements of Section 152, as such compliance would make state and local governments easier targets for negligence actions by providing would-be plaintiffs a centralized location from which they could obtain much of the evidence necessary for such actions. In view of these circumstances, Congress could reasonably believe that adopting a measure eliminating an unforeseen side effect of the information-gathering require- ment of Section 152 would result in more diligent efforts to collect the relevant information, more candid discussions of hazardous locations, better informed decision making, and, ultimately, greater safety on our Nation’s roads.33 29 430 U.S. 519, 523, 97 S. Ct. 1305, 1309, 51 L. Ed. 2d 604, 613. 30 Martinolich, 532 So. 2d at 437. 31 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). 32 Pierce, 537 U.S. at 147. 33 Id. at 148.

8The Court found that § 409 protects not just the information the agency itself has generated or com- piled, but also any information that the agency col- lects from other sources for § 152 purposes, rejecting arguments that only materials actually created by the responsible agency were protected. C. Typically Protected Documents The plain language of the law indicates that cer- tain documents such as “reports, surveys, schedules, lists or data” that are compiled or collected to evalu- ate roadway locations and plan for safety improve- ments are protected from disclosure. The court in Martinolich, supra, was one of the first courts to elaborate on the types of materials and evidence proscribed by § 409: These documents may reflect mental impressions, conclu- sions, and opinions of [state transportation department] representatives regarding a survey of railroad grade cross- ings in need of separation, relocation, or protective devices... if compiled in compliance with 23 U.S.C. § 130; or mental impressions, conclusions, and opinions of [state transporta- tion department] representatives regarding hazardous locations, sections, and elements...[to be assigned] priorities for the correction of such...and [for the implementation of] a schedule of projects for their improvement, if compiled in compliance with 23 U.S.C. § 152.34 Hazard Rankings. These documents show, in order, which locations are considered by state or local safety administrators to be the most dangerous locations within their jurisdictions. The rankings are normally supported by study data, accident reports, on-site visits, and other analytical methods. In Sawyer v. Illinois,35 the railroad initially brought suit against Sawyer for property damage that occurred when he tried to cross the tracks in front of an oncoming train. In response, Sawyer alleged that the crossing was dangerous and attempted to use hazard rankings and recommen- dations of the state highway department to support his counterclaim for injuries. The rankings indicated that the crossing in question was the 23rd most dan- gerous crossing in Mississippi and ranked in the top 1 percent of the state’s hazardous locations. Prior to this accident, the state highway department had recommended an active, flashing light warning device. On review, the court found that the hazard rankings and related evidence were protected, com- menting that: Nobody made Mississippi get into the railroad crossing safety enhancement program. It is a voluntary program. Duly authorized officials of this state, however, have com- mitted us to the program—in exchange for ninety percent federal funding—and it does not strike us outrageous that we should accede to the federal government’s rules and regulations appertaining thereto.36 Similarly, in Claspill v. Mo. Pacific,37 a railroad engineer claiming personal injuries as a result of a railroad crossing accident attempted to use an exhibit at trial that listed the crossing where he was injured as one of the most dangerous crossings in the state. The appellate court, in finding that the document was properly excluded, explained that it was protected because it was compiled by the Missouri Public Service Commission in an effort to obtain federal funds for crossing improvements. More recently, in Dickerson v. CSX Transportation,38 the plaintiff attempted to use expert testimony, which was based on information contained in a fed- eral railroad database, to show that a railroad cross- ing was the ninth worst in the state. The court held that the expert could not testify concerning the safety ranking of the junction nor discuss any data provided by the railroad safety database because they were protected under § 409. The court cited to Dugle v. Norfolk Southern R. Co.,39 where that court noted “under the plain language of the law, the court is prohibited from allowing any party to use the pro- tected information as evidence.”40 In Ross v. Burlington Northern and Santa Fe Ry.,41 defendant Burlington Northern was unsuccessful in protecting National Crossing Inventories and acci- dent reports from admission into evidence at the trial court level. The National Crossing Inventory is a database of highway–railroad crossings in the United States that contains reports on each crossing, including information such as the number of trains that pass through daily, the typical train speed, and the maximum speed. Relying on Zimmerman v. Norfolk Southern Corp.,42 the Ross court explained that § 409 can be divided into two distinct parts. Under the first part, “reports, data and the like” are excluded if they were compiled or collected to identify, evaluate, or plan the safety enhancement of potential accident sites, hazardous roadway con- ditions, or railway–highway crossings, pursuant to §§ 130, 144, and 148. The second part excludes such documents if they were compiled or collected to 36 Id. at 1074. 37 793 S.W.2d 139 (Mo. 1990). 38 Civil Action No. 1:10cv-9-JHM, 2014 U.S. Dist. LEXIS 16260 (Feb. 10, 2014). 39 Civil Action No. 07-40, 2010 U.S. Dist. LEXIS, 47146 (May 13, 2010). 40 Id. at 9. 41 763 F. Supp. 3d 1330 (W.D. Okla. 2014). 42 706 F.3d 170 (3d Cir. 2013). 34 Martinolich, 532 So. 2d at 439. 35 606 So. 2d 1069 (1992).

9develop “any highway safety construction improve- ment project which may be implemented using Fed- eral-aid highway funds.”43 Burlington Northern was unable to present evidence that the inventory reports were collected by the Federal Railroad Administration pursuant to any section of the law that would protect them and thus, the court found that the inventories were not protected, affirming the ruling of the trial court. Surveys and Studies Used to Identify Potentially Hazardous Locations. The documents within this category may include accident analysis diagrams, videotapes, photos, speed studies, traffic counts, and any other studies considered to be engineering stud- ies that are commonly used to identify hazardous and nonhazardous locations. In Robertson v. Union Pacific,44 a personal injury action, the court held that the Arkansas Highway Department’s formula for evaluating the hazardous- ness of crossings, and a newspaper article that iden- tified the crossing in question as the “most hazard- ous” in the state, were inadmissible, because the formula was developed by the highway department pursuant to 23 U.S.C. § 130.45 The newspaper article was offered as evidence by the plaintiff to show notice to the railroad of the hazardousness of the crossing; it was, however, based on engineering data compiled by the Arkansas Highway Department. The railroad contended that the district court prop- erly excluded the newspaper article from evidence, arguing that allowing the introduction of the data through the newspaper article would circumvent the purpose of the statute. The appellate court agreed and found that Robertson could not use evi- dence that was otherwise inadmissible simply because it was reported by a secondary source. In Boyd v. National RR Passenger Corp.,46 the plaintiff obtained railroad surveillance tapes show- ing bicyclists and children using the crossing at issue after the crossing gates were lowered. Plaintiff offered the videos, which had been made by the rail- road as part of a study of the corridor, as evidence of the railroad’s notice of a dangerous condition. The trial court refused to allow the admission of the tapes. On appeal, the court found that the videos were protected by § 409 because “corridor analysis,” which included making videos, was covered under the statute. The court noted that the “surveillance tapes were compiled as part of a comprehensive analysis of whether four-quadrant gates should be installed at all grade crossings” along the railroad line.47 On appeal to the state Supreme Court in Boyd v. National RR Passenger Corp.,48 the court overturned the lower court’s grant of summary judgment in favor of the railroad but left the § 409 rulings in place. In Carson v. CSX Transportation,49 the court pro- hibited a state department of transportation (DOT) engineer from testifying about his recommendation to perform safety upgrades at an intersection. The recommendation for upgrades had been made just weeks before the accident that spurred the litiga- tion. Because the crossing had been evaluated for the purpose of obtaining federal funds, the trial court’s ruling was upheld on appeal. A comparable ruling was made by the court in Illinois Central Railroad Company v. Cryogenic Transportation, Inc.50 Plaintiffs sought to depose an employee of the Mississippi Department of Transportation (MDOT) to obtain detailed information about accidents at the location where the accident that prompted their suit occurred. Plaintiff ’s subpoena was quashed by the court based on § 409, and the underlying safety data were protected by the court. Applications for Federal Funding. State and local transportation agencies, as well as railroads, are able to apply for federal funding assistance for safety projects such as intersection improvements, signal replacements, installation of crossbars and flashing lights, and a multitude of other improvements. The application process is dictated by the federal govern- ment, and proof of the need for the project must be provided. A detailed analysis of the problems that have occurred or are likely to occur at the location in question must therefore be outlined in the proposal for funding. These applications would be fertile ground for plaintiffs who seek to identify hazardous locations or state a cause of action in a lawsuit. For this reason, the applications are protected by federal law if they contain data that have specifically been gathered for the purpose of seeking funding for improvements to roadways. In Benoit v. Town of Vinton,51 the court considered the plaintiff ’s requests for admission as to whether the town applied for, received, or expended federal funding to improve a particular crossing. The court found that the facts of whether or not the funds were applied for or used were areas of proper inquiry for the plaintiff, and not protected information, and ordered the town to answer the discovery requests. 43 Id. at 181. 44 954 F.2d 1433 (8th Cir. 1992). 45 Id. at 1432. 46 62 Mass. App. Ct. 783, 821 N.E.2d 95 (2005). 47 Id. at 796, 821 N.E.2d at 796. 48 845 N.E.2d 356 (Mass. 2006). 49 734 S.E.2d 148 (S.C. 2012). 50 901 F. Supp. 2d 790 (D.C., Miss. 2012). 51 745 So. 2d 1218 (La. Ct. App. 1999).

10 The plaintiff in the case of Van Osdol v. DOT52 sub- mitted a request under the state’s public record law for a list of hazardous locations and intersections. The Pennsylvania Department of Transportation refused to provide the information, arguing that those docu- ments were exempt under state public records law. The appellate court agreed, finding that the docu- ments containing that information were actually unfunded grant applications and therefore not public records according to Pennsylvania state law. Formulas Used to Determine Hazardousness. Local, state, and federal agencies are required to pri- oritize locations for safety projects to compete for federal funding. The analysis necessarily requires a review of accident history and features of the high- ways such as curves, hills, speeds of drivers, and clear zones. Factors such as these, combined with accident rates, traffic counts, and other empirical data, are considered by engineering and diagnostic staff when determining which locations within their jurisdiction merit safety improvements. Because this analysis is based on information such as mental impressions and engineering judgment, the formu- las used by agencies to decide how safety funds are allocated are protected under federal law. In the case of Robertson v. Union Pacific,53 a teen- age boy riding in a vehicle was seriously injured after the vehicle collided with a train at a crossing known as El Paso Crossing in Russellville, Arkansas. Plaintiff sought to introduce evidence of the Arkansas State Highway and Transportation Department’s (AHTD) railroad crossing hazardousness formula and traffic counts to show the “dangerousness” of the crossing. After a review of the plain language of § 409, the court found that the formula and automo- bile count were compiled and utilized by AHTD pursuant to 23 U.S.C. § 130(d) for purposes of moni- toring and improving highway railroad crossing safety, and thus exempt from disclosure. Correspondence by Officials and Others Request- ing Safety Improvements. In general, as long as doc- uments are collected or compiled by a public agency or railroad, correspondence requesting improve- ments is protected if it is compiled for the purposes set out in § 409. The courts emphasize that all letters and other documents in a transportation department’s possession are not protected (empha- sis added). To be protected, they must relate to the purposes defined in federal law such as determining locations for federal funding or improving the safety of a roadway or railroad. Reichert v. State Department of Transportation and Development54 involved a three-vehicle collision that occurred at the intersection of two Louisiana highways. During trial, the court allowed into evidence correspondence from the Louisiana Department of Transportation and Development (LaDOTD) chief engineer to state representatives and an LaDOTD memorandum recommending against the flashing beacon. The appellate court found that the docu- ments should not have been used as evidence because they were collected or compiled in further- ance of potential projects that might be supported by federal funds. A similar issue was considered in the case of Miller v. Bailey,55 when LaDOTD filed a pretrial motion in limine to exclude a letter written to the department asking for “No Parking” signs to be installed along the highway. The trial judge admit- ted the letter into evidence because LaDOTD failed to provide evidence that Highway 13 was part of a federally funded project or program, even though the road was part of the federal highway system. On appeal, the court found that the trial judge erred as a matter of law in admitting the letter. Similarly, in Estate of Bloodworth v. Illinois Central R.R. Co.,56 evidence of a meeting among MDOT, the county, and the railroad where they dis- cussed malfunctions of a crossing and potential safety upgrades was found to be inadmissible. In Robertson, supra, the court found that correspon- dence used to evaluate a grade crossing for improve- ments was also protected by federal law, and those documents need not be produced in discovery.57 Reports of Routine Investigations. If documents such as accident investigations are compiled in the regular course of business of a transportation agency, they are protected. This issue was addressed in Coniker v. State of New York.58 The plaintiff argued that because the New York State Department of Transportation (NYSDOT) regularly investigated accident scenes, documents compiled or composed during that pro- cess were not protected by § 409 because they 52 909 A.2d 428 (Pa. Commw. 2006). 53 954 F.2d 1433 (8th Cir. 1992). 54 694 So. 2d 193 (La. 1997). 55 621 So. 2d 1174 (La. Ct. App. 1993). 56 129 So. 3d 888 (Miss. 2013). 57 For other analogous rulings, see Powers v. CSX Transp., Inc., 177 F. Supp. 2d 1276 (S.D. Ala. 2001), BNSF Ry. Co. v. Town of Vinton, 980 So. 2d 152 (La. App. 3d Cir. 2008), Dowell v. State ex rel. Dep’t of Transp. & Dev., 750 So. 2d 498 (La. App. 2d Cir. 2000), Long v. State ex. rel. Dep’t of Transp., 916 So. 2d 87 (La. 2005), and Madden v. Antonov, Civil Action No. 4:12–cv-3090, 2014 U.S. Dist. LEXIS 158873 (Nov. 4, 2014). 58 181 Misc. 2d 801, 695 N.Y.S.2d 422 (Ct. Cl. N.Y. 1999).

11 were business records. On appeal, the court found that accident investigation reports, which included safety evaluations, investigation summaries, and evaluations of potentially hazardous locations, were protected from disclosure. The court further concluded that there was no “ordinary course of business” exception to § 409 that would exempt the documents from the protections provided by federal law.59 D. Protected Data Available from Other Sources Although it has been established that safety doc- umentation and raw data are protected in the files or “hands” of a public agency that has the documen- tation for § 409 purposes, that information in the hands of another agency may not be protected. According to Pierce County, supra, the data are dis- coverable from local officials who originally gener- ated the reports for their own purposes, but are not discoverable from the state agencies to which they have been transmitted for purposes contemplated by § 409. Several later cases stand for the proposition that discovery cannot be used to obtain information from a source that has obtained it for purposes out- lined in federal law. In Lockett v. State of Louisiana Department of Transportation and Development,60 a wrongful death case, plaintiffs were able to admit into evidence letters written by various City of Baker officials to senators, LaDOTD, and local planning commissions to show that LaDOTD had been aware of the “flawed” condition of the intersection for many years. Plain- tiffs obtained the letters from the City of Baker, Louisiana, rather than LaDOTD. After an unfavor- able verdict, LaDOTD argued that the letters should not have been admitted by the trial court. On appeal, the court found that the fact that the records of the mayor of Baker or Baker’s chief of police included information that could be construed to be safety records of LaDOTD did not confer immunity on the records, citing to Pierce County. Although Lockett was later overruled on other grounds, the trial court’s § 409 rulings were undisturbed. The court in Long v. Department of Transportation and Development61 also dealt with the issue of letters of complaint held by other agencies. Correspondence between the City of Bonita, Louisiana, and LaDOTD indicated that the City had requested additional warning signs at the railroad crossing in question, and the State had responded that it intended to signalize the crossing with funds obtained through a federal safety program. The initial letter from the mayor to LaDOTD requested a safety review of the location. The court determined the letter, and subsequent correspondence, to be related to the process of obtaining federal assistance for the rail- road upgrade, and found that the documents were protected by federal law because of their content. The court stated: [O]f course, this is not to say that all documents and infor- mation in the state’s possession will always be privileged under section 409. We conclude only that records amassed pursuant to federal safety evaluation programs…or for the purpose of developing other highway safety improvement projects which may be federally funded, are protected.62 The court in Reichert v. Louisiana Department of Transportation63 reached a similar conclusion. In Goza v. Parish of West Baton Rouge,64 the par- ish tried to protect accident reports from distribu- tion by the state highway patrol, arguing that acci- dent reports were protected because state funds had been used to develop the report format. The court found that mere use of state funds in the develop- ment of the report format was not sufficient to invoke the § 409 protection. Because the highway patrol did not compile or collect the reports for § 152 purposes, they were not protected. In a similar manner, in Gendler v. Batiste,65 the plaintiff sought to obtain bicycle-accident records for Seattle’s Montlake Bridge after he wedged his bicy- cle tires in the grating of the bridge and was seri- ously injured. The plaintiff intended to use the records in a civil suit if they supported his theory that the bridge became unsafe for bicyclists after the decking had been replaced. The state patrol refused to provide the records, alleging that they were pro- hibited from releasing the documents unless the plaintiff agreed to not use the information in litiga- tion against the State. The plaintiff refused to sign a release and filed suit instead. The appellate court found that because the § 409 prohibition on the release of the records only applied to the state DOT, the refusal to provide the records was improper, and the court awarded attorney’s fees to the plaintiff. The court reasoned that because the state patrol had an independent statutory obligation to collect the data, unrelated to § 409, the records were not protected when held by the highway patrol. On further appeal, the state Supreme Court agreed, dis- regarding the State’s argument that because both 62 Id. at 98, citing Palacios v. Delta R.R. Inc., 740 So. 2d 95 (La. 1999), at 101. 63 694 So. 2d 193 (La. 1997). 64 21 So. 3d 320 (La. App. 1st Cir. 2009). 65 158 Wash. App. 61, 242 P.3d 947 (2010). 59 Id. at 807, 695 N.Y.S.2d at 497. 60 844 So. 2d 949 (La. App. 2003). 61 916 So. 2d 87 (La. 2005).

12 the highway patrol and the Washington State Department of Transportation (WSDOT) used the forms, they were protected under federal law. The published opinion does not address the fact that the records request was actually made to the state high- way agency because WSDOT was the only entity that had access to the records and could produce them. The Gendler Supreme Court effectively held that WSDOT was required to give out the protected information because a state law required the high- way patrol to keep the information, thus judicially nullifying § 409 in Washington.66 Even though the information was not protected by the courts, the application of this ruling is likely limited to the State of Washington and possibly just to the facts of this case. An affidavit from one of the witnesses involved in the case is included in the Appendix of this digest as an example of a useful affidavit. Finally, in the case of Miller v. Utah Department of Transportation,67 the plaintiffs sought the history for the location of their accident, and the Utah Depart- ment of Transportation refused to provide it, obtain- ing a protective order. Prior to the trial, the plaintiff attempted to obtain the accident history from a local university that was using the same data for research purposes that were unrelated to § 409. The court found that the statutory bar on discovery did not expire simply because the data were transferred to another entity, even though the university was not using the data for federal-funding purposes. Practice Note. As noted in Pierce County, supra, the court must consider an agency’s purpose in obtaining and/or maintaining the records. The differ- ence in the rulings in Lockett, Goza, and Miller appears to be that in Lockett, for instance, the City of Baker did not write or keep the letters in question pursuant to federal law in an attempt to obtain fund- ing for road improvements. Pierce County stands for the proposition that information compiled and used for purposes related to § 152, even if created and in the hands of another agency, is protected by § 409. For example, as in Pierce County, the accident reports were originally collected for law-enforcement pur- poses, i.e., to make note of who was in the accident, where it occurred, and the contributing circumstances. Those reports were prepared for law-enforcement purposes and are not protected. Once they have been gathered, or compiled, by the DOT for its purposes, they are protected in the hands of the transportation or public works department. Pierce County is the final word on this issue. E. Waiver of Privilege This section reviews cases dealing with both the intentional and unintentional disclosure of protected documents when they are included with pleadings, affidavits, or in discovery. In Walden v. DOT,68 the Alaska Department of Transportation provided a document called a Design Study Report to the plaintiff in discovery. Despite taking an opposite position at trial, on appeal the plaintiff argued that since the document had been provided in discovery, the transportation department had waived the protection of the statute, and the study should have been admitted into evidence in trial. The appellate court found that even if the depart- ment waived the protection of federal law by provid- ing the document, the waiver was only as to discovery and not a waiver as to the admission at trial. In a similar fashion, before the trial began in Vega v. State of New York,69 NYSDOT requested pro- tection of all of its internal documents that labeled the route in question as “dangerous.” The plaintiffs had provided the records to their expert after they had been voluntarily produced in discovery. The trial court considered whether the protection had been waived during the discovery phase of the case. Examining the law, the court concluded that the privilege can be waived in discovery but if it is, the evidentiary bar of § 409 still protects the documents from admission at trial. The result of the ruling was that the judge struck most of the expert’s testimony because he had relied exclusively on the documents and had not done an independent investigation or obtained the documents that he relied on for his opinion from another source. The court in Renfro v. Burlington Northern and Santa Fe R.R.70 also examined the waiver issue. LaDOTD used documents that had been prepared to obtain federal funding as attachments to its motion for summary judgment. After their review of LaDOTD’s motion, the plaintiffs sought to use the documents to support their case, arguing that the privilege had been waived because the documents had been filed in court as part of a pleading. LaDOTD argued that the privilege was not waivable, but the court found that a waiver occurred when the State voluntarily disclosed protected information, noting that “a primary attribute of a privilege is that it may be waived by the party for whose benefit it exists.”71 66 See Gendler v. Batiste, 174 Wash. 2d 244, 274 P.3d 346 (2012). 67 2012 UT 54, 285 P.3d 1208 (2012 filed). 68 27 P.3d 297 (Alaska 2001). 69 10 Misc. 3d 822, 804 N.Y.S. 229 (N.Y. Ct. Cl. 2005). 70 945 So. 2d 857 (La. App. 3d Cir. 2006). 71 Id. at 860, citing Powers v. CSX Transp., 177 F. Supp. 2d 1276 (S.D. Ala. 2001).

13 In Dugle v. Norfolk Southern R. Co.,72 however, Dugle’s counsel sought to use railroad inventory forms as evidence of the “private” or “public” classifi- cation of the crossing in a negligence action against Norfolk Southern. Norfolk Southern argued that the forms were inadmissible due to § 409. The plaintiffs noted, however, that the forms had been produced by the railroad in support of its motion for summary judgment, and argued that the railroad had waived any privilege connected with the documents. The court found that the prohibition on admitting “reports, surveys, schedules, lists or data” meant that the information could not be admitted for any pur- pose by any party and disallowed their use at trial.73 Practice Note. Several courts have commented that § 409 is a privilege that may be waived. The court in Renfro v. Burlington Northern and Santa Fe R.R.74 commented, “We see no compelling reason that the State cannot waive the privilege afforded to it by § 409. Section 409 merely affords the State a disclosure and evidentiary privilege regarding cer- tain materials.”75 In trial practice, if accident or safety data are favorable to the agency, counsel may consider waiving the privilege. For instance, a speed study may support an increase or decrease in the posted speed that the agency is defending, and coun- sel may want the jury to hear about the engineering methodology and judgment that went into the agen- cy’s decision to increase or decrease the speed. Coun- sel should carefully consider, however, the broad implications of using protected or privileged data as a defense in a case. F. Public Records Requests State and other local agencies occasionally receive requests from newspapers and other media for protected documents such as summaries of acci- dents, hazard rankings, or funding applications. Although a public agency may be able to lawfully deny such a request for information for litigation purposes based on the application of state law, the information usually must be produced pursuant to an appropriate public records request by the media or member of the public. This is because the text of § 409 specifically prohibits the release of the docu- ments in the litigation context, but does not address Freedom of Information (FOIA) or media requests. Because the law is silent as to the release of the information for nonlitigation purposes, many courts have ruled in favor of the release of information. Statutory privileges are interpreted narrowly because they are not favored in the law, and courts frequently observe that the search for truth requires the review of evidence, not the suppression of evi- dence.76 The State of Washington and several other states, however, enjoy an exemption from disclosure to public records laws for records that are not discover- able in a lawsuit under court rules.77 In the states with this type of exemption, § 409 documents do not have to be released in response to a public record request because they are not discoverable in litigation. Refusal to comply with a public records request may result in the award of attorney’s fees against the agency. Cases from Kansas and New York illus- trate these problems. In Telegram Publishing Co. v. Kansas Depart- ment of Transportation,78 Telegram filed a public records request with the Kansas Department of Transportation (KDOT), asking for copies of haz- ardous railroad crossing rankings. The request was denied by the State, and Telegram’s motion for sum- mary judgment was granted, requiring the State to produce the records. Almost a year later, the trial court awarded attorney’s fees in the amount of $13,000 against the agency. KDOT appealed that order. Under state law, attorney’s fees could be awarded if the agency did not act in good faith when denying access to the records. KDOT argued that because it relied on § 409 and its state law that exempted records that were “specifically prohibited or restricted” by law, it had acted in good faith when it did not supply the records. The appellate court agreed and reversed the award of attorney’s fees. On further appeal, the state Supreme Court reversed the appellate ruling and reinstated the award of attorney’s fees, finding that both § 409 and state law must be interpreted narrowly. Similarly, in Newsday Inc. v. State Department of Transportation,79 Newsday submitted a FOIA request for a priority list of hazardous locations and a schedule of projects for improvement to the NYSDOT. The request was denied. On review, the court observed that all documents held by the agency are presumptively available for review by the public and ordered the documents to be released. The court further noted, however, that while the protection offered under § 409 could be diminished if 72 Civil Action No. 07-40, 2010 U.S. Dist. LEXIS 47146 (May 13, 2010). 73 See also Boyd v. Nat’l R.R. Passenger Corp., 62 Mass. Ct. App. 783 (2005), n.11. 74 945 So. 2d 857 (La. App. 3d Cir. 2006). 75 Id. at 860. 76 Univ. of Pa. v. EEOC, 493 U.S. 182, 110 S. Ct. 577, 107 L. Ed. 2d 571 (1990). 77 See RCW 42.56.290. 78 275 Kan. 779, 69 P.3d 578 (Kan. 2003). 79 5 N.Y.3d 84, 833 N.E.2d 210, 800 N.Y.S.2d 67 (N.Y. 2005).

14 the media published the information it obtained, the protection was not entirely eliminated, because a tort plaintiff would not have access to the informa- tion except to the extent the media published it. The court also stated that the evidentiary bar to the admission of evidence was still in place, regardless of the release of the information to the media. Based on its analysis of state and federal law, the lower court did not award attorney’s fees. That ruling was affirmed on appeal. If a document is not a public record, it is not subject to release regardless of who requests it. In Van Osdol v. DOT,80 the plaintiff requested a list of hazardous intersections and locations, progress reports, and related correspondence for four Pennsylvania coun- ties. The State denied the request due to its interpre- tation of state public records law. The court on appeal agreed with the State’s decision, finding that the material was exempt from disclosure under a state law that disallowed the release of “pre-decisional and deliberative aspects of agency decision making.”81 Practice Note. Most state agencies have a public records request process that is handled by a public affairs or customer service department. Requests for information such as right-of-way maps, lists of pro- posed projects, and specifications for bidding on projects are processed without the aid of counsel unless the request appears to involve potentially protected material. In general, state agencies keep a list of documents that are provided to the public on request without review by counsel’s office. G. Influence of Railroad Cases In 1970, Congress enacted the Railroad Safety Act,82 which granted comprehensive authority to the U.S. Department of Transportation to oversee the safety practices and equipment of railroad carriers. The Act was amended in 1973, mandating that states develop a program for improving the safety of road- way and railroad crossings based on federal require- ments and report their progress annually to the Secretary of Transportation.83 That Act required states to conduct and maintain a survey of all rail- roads so that they could identify railroad crossings that would benefit from location improvements. Those improvements could be items such as separa- tion of tracks and roads, relocation, or protective devices.84 States were required to evaluate the identi- fied sites, compile accident records, and determine a cost of proposed safety improvements. The evaluation document typically includes information such as roadway conditions, accident history, geometry of the road, train speed, type of warning devices in place, and traffic volume. States were also required to rank the locations that were in need of improvement.85 According to the Railway Safety Improvement Act of 2008,86 states must regularly submit inventories of crossings to the U.S. Secretary of Transportation. Although railroads and state and local roadway agencies have similar interests in protecting sensi- tive safety data, the entities do not share the same statutory protections.87 States are obligated to sub- mit crossing reports under 23 U.S.C. § 130, which is referenced in § 409. Railroads submit their crossing reports pursuant to 49 U.S.C. § 20160, which is not referenced in § 409, and therefore, according to some courts, the reports are not subject to the same pro- tection as reports submitted pursuant to 23 U.S.C. § 130. In fact, the court in Zimmerman v. Norfolk Southern Corp.88 commented that “[C]ongress may well have had a stronger interest in protecting states, rather than railroads, from litigation.”89 There are multiple appellate cases involving rail- roads in the § 409 arena, and those cases may pro- vide guidance for state highway agencies. Those cases should be carefully studied to determine whether they are applicable or relevant to state and local highway cases. In Zimmerman the court found the difference in the statutory basis for submission of the reports to be important. The plaintiff requested copies of 9 crossing reports and 10 accident reports in discov- ery. Some of the reports had been submitted by the State pursuant to 23 U.S.C. § 130, and the remain- der of the reports were submitted by the railroad pursuant to the Railway Safety Improvement Act of 2008. The crossing reports gave detailed informa- tion about the typical speed of trains traveling through the area, which was pertinent in this case. The accident reports were important to the plaintiff because they showed the classification of the tracks, which was used to determine the appropriate train speed at the crossing. The trial court found that all the crossing reports were protected as data “com- piled or collected” to identify or plan the safety enhancement of potential accident sites. The plain- tiff appealed the court’s rulings, arguing that although the data were collected pursuant to federal 80 909 A.2d 428 (Pa. Commw. 2006). 81 See id. at 434. 82 49 U.S.C. §§ 20101–20144; 21301–21304. 83 23 U.S.C. § 402. 84 23 U.S.C. § 130. 85 23 C.F.R. 924. 86 Pub. L. No. 110-432, 122 Stats. 4848. 87 The state reporting requirement can be found in 23 U.S.C. § 130(1). The railroad reporting requirement can be found in 49 U.S.C. § 20160. 88 706 F.3d 170 (3d Cir. 2013). 89 Id. at 182.

15 law, they were not collected for § 130 purposes. The appellate court held that the reports submitted by the State were protected, but that the reports sub- mitted by the railroad were not protected, based on the text of the statutes. The court further noted that the railroad failed to provide the evidence to support the necessary burden of proof to show the statutory basis for protection. H. Foundation to Establish State’s Protection An agency must prove the elements of § 409 so that internal documents can be protected from dis- covery and admission at trial. To accomplish this goal, a proper foundation for the evidence must be established. Transportation agencies frequently attest that their safety data should be protected by using an affidavit of an employee of the agency. Sometimes a court will require an “in camera” or in chambers review of the documents that are alleged to be protected, and other times a court will require testimony by a state or local transportation employee to establish the foundation required by the statute. This section reviews cases that illustrate the appro- priate foundation for that testimony. An affidavit or testimony in court must be framed so that the elements of § 409 are addressed ade- quately and the testimony or affidavit tracks the elements of the law. For ease of comparison with the caselaw, the text of the statute follows: Notwithstanding any other provision of law, reports, sur- veys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous road- way conditions, or railway–highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or con- sidered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data. Either of the two prongs of the test may be estab- lished in order for the protection to attach to the records: data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous road conditions, or railway–highway crossings or for the purpose of developing any highway-safety con- struction project that may be implemented using federal-aid highway funds.90 Guidance for establishing the first prong of the test can be found in 23 Code of Federal Regulations (C.F.R). 924.9(a)(1), which requires states to take the following steps as part of their safety process to ensure federal funding: collect and maintain acci- dent, traffic, and highway data; analyze the data to identify hazardous locations, sections, and elements; conduct engineering studies of those locations; estab- lish priorities for implementation of the projects identified; schedule and implement the projects; and finally, evaluate the effectiveness of the project.91 An affidavit should contain all of this information. The affidavit should also tie that information to the spe- cific component of the federal law that requires the collection of the data. Guidance for establishing the second prong of the test can be found in Zimmerman, supra. It should be noted that Zimmerman is a case that narrowly inter- prets the “compiled or collected for the purpose of developing any highway safety construction improve- ment project”92 prong of the statute. The court in Zimmerman found that the foundation for protection of the data could only be laid with testimony that the reports were collected with the specific intention of using them for a particular construction project. For example, data and reports gathered by the agency for the specific purpose of improving a particular loca- tion would be protected, but data and reports gath- ered by the agency to compare potential locations for improvement and determine which project would be of more benefit to the public would not be protected. Generally speaking, to establish the second prong, the agency would provide information via affidavit or through live testimony about a project or projects it was considering for submission to the Federal Highway Administration (FHWA) for safety purposes. Details include the specific purpose and need for the project as outlined in the supporting documentation. The court in Department of Transportation v. Superior Court of Solano County93 refused to protect accident reports, investigation reports, and other data collected by the California Department of Transportation (Caltrans) when it ruled that Caltrans failed to properly establish the foundation for statutory protection. The court reasoned that Caltrans failed to prove the elements of the statute because even though it provided evidence that the data were collected, it failed to submit evidence that it had the duty to collect the data under § 152. In a similar fashion, in Carpio v. State of New Jersey,94 the court reviewed an affidavit submitted by the New Jersey Department of Transportation 90 See Pine Belt Chevrolet v. Jersey Cent. Power & Light, 132 N.J. 564, 579, 626 A.2d 434, 441 (1993) for a discussion on the meaning of “or.” 91 See 23 C.F.R. 924(a)(5). 92 Zimmermann, 706 F.3d at 181. 93 55 Cal. Rptr. 2d 2, 47 Cal. App. 4th 852 (1996). 94 2013 N.J. Super. Unpublished LEXIS 2306 (Sept. 19, 2003).

16 (NJDOT) in support of its request to protect safety data, and noted that the affidavit was rather con- clusory on the subject of how the materials sought by the plaintiff fell within the federal mandate. The agency offered an affidavit from an employee in the traffic safety section that stated (in pertinent part): 13. The reports generated from the data that is collected and compiled by the Bureau of Transportation Data and Safety is used to prepare requests for federal aid not only for the construction and improvement of State roads, but for the construction and improvement of County and Munici- pal roads, as well. Federal aid is a significant component of the money expended by the New Jersey Department of Transportation on roadway construction and improvement each year with respect to roads owned by the New Jersey Department of Transportation. Federal aid also is a signifi- cant component of the money expended each year on the construction and improvement of county and municipal roadways in the State of New Jersey. 14. It is my understanding that while the crash reports are not confidential and available as public records, the fact that NJDOT collects the data by location is confidential information. 15. 23 U.S.C.[A.] 409 precludes the discovery, admission as evidence, or consideration “for any other purpose” of reports, data and other information compiled by State or Federal highway authorities for specified purposes. 16. NJDOT maintains the documents requested by plaintiff to identify crash locations, and to consider plan and design safety enhancements at certain locations, and to establish priorities in view of the work to be done and the resources available. NJDOT does this for two reasons. First, it pro- vides a valuable tool to help protect the traveling public. Second, it is mandated by the federal government for all states seeking federal aid for street and highway construc- tion and safety enhancement projects. 23 U.S.C.A. 152. Fed- eral aid is an important component to the State in funding many of the numerous construction and safety enhance- ment projects.95 Finally, in Browne v. State of Louisiana through the DOT,96 LaDOTD sought to exclude exhibits detailing the accident history of the pertinent inter- section. At the motion hearing, LaDOTD argued that the § 409 privilege was applicable but offered no evidence to satisfy any of the requirements for its use. The court reasoned that because evidentiary privileges must be strictly construed, it could not assume that the § 409 privilege was applicable. Cases such as Solano County, Carpio, and Browne illustrate the importance of an affidavit or court tes- timony that thoroughly outlines the basis of the objection to the production of the protected data. Foundational issues frequently reviewed by the court include the following topics: Whether federal funding was expended or requested; the requirement of proving the data were related to a particular safety project; and whether the material was gathered exclusively for § 409 purposes. Cases exploring these concepts are noted in the following section. Whether federal funding was expended or requested is frequently considered by the court when reviewing potentially protected data. In Harrison v. Burlington Northern,97 the Illinois Commerce Commission inspected the subject railroad crossing as a result of the accident that spurred the lawsuit and determined that the crossing warranted warning upgrades. Both the trial and appellate courts ruled that allowing testimony related to the inspection by the commission or its report would circumvent the purposes of § 409, stating that if a project conceivably could be financed by federal funds, as this one was, the report was protected under federal law. In a similar manner, in Miller v. Bailey,98 suit was brought after a drunk driver struck several pedestri- ans who were standing on a rural state highway watching a bar fight. Cars had been parked on the narrow shoulder of the highway, and fault was alleged against LaDOTD for allowing parking on the road- way and failing to provide a safe roadway. LaDOTD argued that a letter written by a state highway patrolman notifying the department of the need for “No Parking” signs on Highway 13 should not have been admitted at trial. The trial judge allowed the evidence because LaDOTD failed to show that Highway 13 was part of a federally funded project or program, though it was part of the federal highway system. On appeal, the court found that the trial judge erred as a matter of law in admitting the evi- dence, relying on 23 U.S.C. § 409 and Martinolich.99 No requirement that the State prove that the infor- mation is linked to a particular federally funded safety project. In Borden v. Kansas City Southern Ry. Co.,100 the court found that data gathered as part of a general examination of all railroad crossings in the state were protected, reasoning that it was nec- essary to gather the data so that a determination could be made as to which crossings need improve- ment. The Borden court focused on the “intended to aid in planning safety projects” language in the § 409 statute.101 In Zimmerman, supra, however, the court consid- ered the same language and limited its application (and protection) to only a particular safety project, rather than any documents that might be collected when an agency is gathering information that could 95 Id. at 9. 96 2015 CA 0667 (La. App., 1st Cir. 2016). 97 965 F.2d 155 (7th Cir. 1992). 98 621 So. 2d 1174 (La. App. 1993). 99 Id. at 1182. 100 895 So. 2d 787 (La. 2005). 101 Id. at 795.

17 be used in the future to plan projects. In its analysis, the court compared the verbs in the two “prongs” of the statute, suggesting that the language “identifying, evaluating and planning projects” found in the first prong related to both potential and actual projects, whereas the second prong referred only to “developing” projects, which the court ruled meant a particular highway project. It should be noted that Zimmerman was a railroad case. This is potentially important because that court also noted that Congress might have had a stronger interest in protecting state docu- mentation than railroad documentation.102 If a project is eligible for federal funding, proof of actual federal funding is not required. Some courts require a showing that funding might be available, recognizing that in many instances projects are developed far in advance of the time funding is sought. In Rodenbeck v. Norfolk and Western Rwy.,103 a representative from the railroad gave a county highway official a list of grade crossings that poten- tially qualified for “Stop” signs based on federal guidelines. The list was later sought in discovery. The court found that the protection of § 409 was not limited to approved or completed plans, and that § 409’s protection applied regardless of whether the projects were actually funded, reasoning that to hold otherwise would “chill the candor” that is expected in administrative evaluations of highway safety materials.104 Material does not have to be gathered exclusively for § 409 purposes to be protected. The court in Lusby v. Union Pacific Railroad Co.105 found that state materials do not fall outside the protective scope merely because they are not compiled only for fed- eral reporting purposes.106 Evidence of the fact that federal funding was used in a project is admissible to show federal preemp- tion. Plaintiffs in many cases attempt to make the argument that because documents that support a proposal for federal funding are privileged, docu- mentation of the fact that federal funding has occurred is also privileged. In Gremillion v. Kansas City Southern Railway Co.,107 the court considered a writ that had been requested by the state DOT after the DOT refused to provide potentially relevant doc- uments to the railroad based on its reading of § 409. The court considered whether any “exceptions” to the protection of § 409 existed in the context of the railroad attempting to prove federal funds were used on a project. If federal funding could be shown, the railroad could establish that it was preempted by federal law from making changes to the crossing. Citing to Hargrove v. Union Pacific,108 the court noted that there was no exception to the statute pertain- ing to the funding issue, and that the Hargrove court had simply ruled that the documents at issue were not compiled or collected for safety-enhancement purposes and were therefore admissible. Relying on Hargrove, the Gremillion court found that the docu- ments sought by the railroad were not subject to the privilege because they were not collected for the statutorily enumerated purposes. In a similar manner, in Illinois Central Railroad Company v. Cryogenic Transportation, Inc.,109 the plaintiffs sought to depose an employee of MDOT to obtain information about an accident site. At the request of MDOT, the plaintiff ’s subpoena was quashed by the court based on § 409. After that rul- ing, MDOT submitted an affidavit that stated that its safety studies, data, and diagnostic reports were used to obtain federal funding for a project at the crossing, but did not outline any specifics about the data. The court allowed the use of the MDOT affida- vit so that the railroad could prove it used federal funds in an improvement project and establish fed- eral preemption. The underlying safety data were protected by the court. The court in Zimbovskiy v. Union Pacific R.R. Co.110 also addressed this topic. In this case, the Minnesota Department of Transportation (MinnDOT) provided employee affidavits that recited that the pertinent safety improvements were paid for with federal safety funds and had been collected and/or compiled pursuant to 23 U.S.C. § 409. The documents attached to the affidavits detailed project expenditures and included a letter authorizing construction, an agree- ment showing federal funds would pay for 90 percent of the improvements, and a certificate of FHWA inspection and completion of the project. The plain- tiff argued that the affidavits could not be considered as evidence because § 409 prohibited data collected pursuant to its requirements from admissibility in discovery or trial. The court found that the affidavits were admissible to show that federal funds had been used in the project. Because of that ruling, the rail- road was allowed to show that federal law required it to complete the improvements that were funded at 102 Zimmerman, 706 F.3d at 182. 103 982 F. Supp. 620 (N.D. Ind. 1997). 104 Id. at 624. See also Harrison v. Burlington Northern Santa Fe, 965 F.2d 155 (7th Cir. 1992) and Powers v. CSX Transp., 177 F. Supp. 2d 1276 (S.D. Ala. 2001). 105 4 F.3d 639, 641 (8th Cir. 1992). 106 See also Mackie v. Grand Truck Western R.R. Co., 215 Mich. App. 20, 544 N.W.2d 709 (Mich. Ct. App. 1996). 107 945 So. 2d 819 (La. App. 3d Cir. 2006). 108 925 So. 2d 25 (La. App. 3d Cir. 2006). 109 901 F. Supp. 2d 790 (Miss. 2012). 110 812 N.W.2d 867 (Minn. App. 2012).

18 that location and not fund other improvements sug- gested by the plaintiffs. Official immunity and discretionary doctrines as foundational issues. Some states allow public employees and their employers immunity from tort lawsuits under official immunity and discretionary immunity doctrines. The courts, however, will not simply accept the word of an agency that appropri- ate discretion was exercised and allow the agency to establish the defense without providing appro- priate evidence. For example, in Madden v. Indiana Department of Transportation,111 the Indiana Department of Transportation (INDOT) was sued by a passenger on a train who was injured when the train struck a truck that was on the railroad tracks. The plaintiff alleged that INDOT negligently set the timing for a traffic signal that was in close proximity to the train tracks. Indiana law allows governmental immunity to be established by testimony that the government con- sidered the signal improvements that the plaintiff alleged were necessary for the crossing to be safe. As a basis for its summary judgment motion, INDOT suggested that the data it had gathered pursuant to § 409 supported its theory that the employee had used the appropriate discretion in setting the signal timing. INDOT was dismissed from the suit when its motion for summary judgment was granted. On appeal, the court noted that INDOT had not submit- ted documentation that affirmatively proved that the traffic engineer who programmed the signal used engineering discretion, and noted that the State could not establish its immunity without explaining what the immunity was based on, stating that INDOT could not place an issue before the trier of fact and then assert a privilege to protect the evidence. Practice Note. Examples of affidavits and other supporting material used by practitioners can be found in Section V of this digest. I. Trial Strategy This section discusses topics that are often addressed by trial counsel. Although it is likely that a trial court will recognize the preemptive effect of § 409 and protect an agency’s internal safety data from admission into evidence at trial, counsel must be prepared to address the evidence if it is used in court. As noted, accident reports and summaries are frequently used to show notice to the agency of a dangerous condition. Just because evidence of other accidents is offered at trial to show notice of a condi- tion or general “dangerousness,” however, that does not mean it is admissible. Evidentiary rules must still be followed. For instance, evidence of substan- tial similarity between the subject accident and other accidents that are alleged to be similar is fre- quently required as a prerequisite for the admission of accident reports. The requirement for substantial similarity frequently means that the plaintiff must show similarity of weather conditions, lack of the contribution of alcohol or drugs, and in rural areas, the lack of wildlife or other conditions of the road that may have contributed to the accident. In Carpio v. State of New Jersey,112 the plaintiffs sought pertinent accident reports from the state police; however, the cost to obtain the reports from the police exceeded $27,000. Based on evidence of the cost of obtaining the reports, the trial court ordered the State to disclose them, even though the State objected. The court reasoned that getting the records through NJDOT was “the least restrictive and least burdensome manner of acquiring the acci- dent reports,” because requiring the plaintiffs to obtain them from the state police would be costly and burdensome.113 The appellate court explained that § 409 was an absolute, rather than a qualified privilege, and found that the trial court should not have applied a “balancing act” to resolve the plain- tiff ’s difficulties in obtaining the documents.114 Waiver of privilege can work against DOT coun- sel. The DOT sometimes makes a tactical decision to “waive” the privilege.115 In Renfro v. Burlington Northern and Santa Fe R.R.,116 the State submitted protected documents in support of its motion for summary judgment, opposing a claim that it had negligently failed to provide adequate warning at a railroad crossing. After the plaintiff reviewed the motion submitted by LaDOTD, she sought to use the documents to support her case and argued that any associated privilege had been waived because the documents had been filed in court as part of a plead- ing. The court agreed, finding that waiver of the privilege had occurred when the documents were submitted to the court and LaDOTD deliberately placed the contents of the documents at issue. The statute can be used effectively to protect informa- tion, but waiver should be considered very carefully, both because it can set a precedent for future waiv- ers and because the consequences can be severe. In Hussey v. Russell,117 an LaDOTD interoffice memo that described detailed protected safety infor- mation was introduced at trial. Although the court 111 832 N.E.2d 1122 (Ct. App. Indiana 2005). 112 2013 Super. Unpub. LEXIS 2306 (Sept. 19, 2003). 113 Id. at 18. 114 Id. at 19. 115 See § III.E. Waiver of Privilege, in this digest. 116 945 So. 2d 857 (La. App. 3d Cir. 2006). 117 934 So. 2d 766 (La. 2006).

19 on appeal agreed that error had been committed by the admission of the letter, it ruled that the error was harmless because sufficient other evidence had been introduced, excluding the memo, that showed the roadway was unreasonably dangerous and sup- ported the jury verdict. In a similar manner, in Quinn v. State,118 the DOT refused to provide accident history for the location at issue. At trial, however, counsel elicited testimony from an expert about the lack of accidents and argued that because there was no evidence of other accidents, the road must be safe. Again, the court found harmless error, reasoning that a lot of other evidence was introduced that showed the site was safe. The court pointed out, however, that once LaDOTD chose to exercise the § 409 privilege and not provide the documents in discovery, it should have been precluded from using the evidence. In Miller v. Utah Department of Transportation,119 the plaintiffs were injured when a vehicle crossed through the median on Interstate 15 and struck their vehicle. The Utah Department of Transportation’s (UDOT) failure to install median barriers was alleged to be the cause of their injuries. Before trial, the Millers attempted to obtain records that showed the accident history of the stretch of roadway where the accident occurred. UDOT obtained a protective order for the records and an order prohibiting their use at trial. Counsel for UDOT was instructed prior to trial that he could not argue or infer that the stretch of road was free from accidents. During the trial, however, counsel elicited testimony that acci- dent history, among other factors, was considered by UDOT when deciding where to place guardrails, implicitly suggesting that no other similar acci- dents had occurred at that location. Because of that testimony, the Millers submitted a proposed jury verdict that stated as follows: UDOT maintains a computer-based database of the accidents occurring on State and Federal roads in Utah…this database is maintained under federal guidelines for the purpose of receiving Federal aid highway funding for improvements of state roadways and [section 409] prohibits accident victims who are pursuing lawsuits and their attorneys or experts from obtaining or using information from this database. Con- sequently you should not be critical of the Millers for not hav- ing that information or of UDOT for not providing it.120 The instruction was rejected. Because UDOT implicitly argued or inferred that accident history was a factor in the decision not to install guardrails at the accident location, the appellate court found the instruction should have been given. Experts. Although rules of court typically allow experts to testify about hearsay, when documents are protected by § 409, an expert is precluded from bas- ing any testimony on those documents. If the expert has done an investigation independent of the DOT’s analysis, testimony based on that independent analy- sis and personal observation is admissible. In Robertson v. Union Pacific,121 Odis Robertson, a teenage driver, was seriously injured when the vehi- cle he was driving was struck by a train at the El Paso Crossing in Russellville, Arkansas. Shortly before the accident, Robertson had been observed rac- ing his car without headlights and squealing its tires in a nearby parking lot, along with three 15-year-old friends. Robertson’s family brought suit against the railroad and attempted to use evidence of a newspa- per article that identified the El Paso Crossing as the most hazardous railroad crossing in the state, the for- mula used by AHTD for evaluating the hazardous- ness of crossings, and AHTD’s automobile count at El Paso Crossing. The court found that all of AHTD’s information was protected and therefore not admis- sible, and instructed Robertson’s expert witness to disregard any information gathered by the highway department in formulating his opinion. In Dickerson v. CSX Transportation,122 the plain- tiff ’s expert intended to use information found in the federal railroad accident prediction system to show that the Memphis Junction Road Crossing was the ninth worst in the state. The plaintiffs argued that the information was admissible due to Federal Rule 703, which allows experts to testify to hearsay and other information that would not be permissible tes- timony by a lay witness. The court found that Rule 703 does not trump federal law and that § 409 was nondiscretionary, citing Dugle, supra, stating that “under the plain language of the law the court is prohibited from allowing any party to use the pro- tected information as evidence.”123 In a similar man- ner, in Vigil v. Burlington N. and Santa Fe Ry. Co.,124 the court found that “the statute precludes an expert from rendering an opinion…based on materials compiled for the purpose of complying with the fed- eral program of enhancing safety at crossings.”125 In Vega v. State of New York,126 NYSDOT requested protection of all internal documents that character- ized the route at issue as “dangerous.” The documents had been voluntarily disclosed in discovery. The trial 118 Docket No. 2009 CA 0085 (La. App. 1st Cir. 2009). 119 285 P.3d 1208 (2012 filed). 120 Id. at 1213. 121 954 F.2d 1433 (8th Cir. 1992). 122 2014 U.S. Dist. LEXIS 16260 (W.D. Ky. 2014). 123 Id. at 18. 124 521 F. Supp. 2d 1185, 1209 (N.M. 2007). 125 Id. at 1209 (citations omitted). See also Stark-Romero v. Nat’l R.R. Passenger Co., 276 F.R.D. 531 (N.M. 2011). 126 804 N.Y.S.2d (N.Y. Ct. Cl. 2005).