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

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A-1 APPENDIX A—A SAMPLING OF MOTIONS USED BY STATE DEPARTMENTS OF TRANSPORTATION IN SUPPORT OF THEIR REQUEST FOR THE RESTRICTION OF DATA THAT IS PROTECTED BY FEDERAL LAW

A-2 ARIZONA SUPERIOR COURT ) MARICOPA COUNTY ) ) YULAN LI ) STATE OF ARIZONA’S MOTION IN LIMINE V. ) STATE OF ARIZONA DEPARTMENT OF TRANSPORTATION ) Defendant State of Arizona hereby moves the court in limine for an order prohibiting Plaintiff’s attorney and any of Plaintiff’s experts from introducing any evidence, argument, or making any reference to Defendant’s refusal to provide accident statistics, reports, or other data regarding the Meteor Crater Exit 233 off-ramp which have been gathered, compiled, or maintained by the Arizona Department of Transportation (ADOT) to populate its computerized database known as the Accident Identification and Surveillance System (ALISS) or maintained by ADOT’s Hazard Elimination Section (HES) to identify potentially hazardous roadway conditions. These materials constitute reports, surveys, and data protected under 23 U.S.C. Section 409 that may not be admitted into evidence or considered for any other purpose in any federal or state court in any action for damages arising from any occurrence at a location mentioned or addressed in the reports or data. 23 U.S.C. Section 409. RELEVANT FACTS Early on in this litigation, Plaintiffs submitted discovery requests to Defendant inquiring about other accidents on the Meteor Crater Exit 233A off ramp. For example, in a Request for Admissions, dated August 20, 2008, Plaintiffs requested that the Defendant admit that there have been numerous other accidents on the exit ramp associated with the eastbound I-40 Freeway Exit 233A involving vehicles going off the paved surface of the roadway. Defendant denied this allegation and in answer to Plaintiff’s Non-Uniform Interrogatory on the subject refused to produce further information stating as follows:

A-3 Defendant denies that there have been numerous accidents on the eastbound Meteor Crater exit ramp involving vehicles going off the paved surface of the roadway. There are some accidents on all freeways and all exit ramps of all freeways involving vehicles leaving the roadway no matter how carefully the roadway is constructed. ADOT gathers accident information which is compiled in a computerized database known as the Accident Identification and Surveillance System (ALISS). This system is maintained for periodic review by ADOT's Hazard Elimination Section (HES) to identify potentially hazardous roadway conditions. Defendant objects to providing any data on the number and nature of accidents occurring on the Meteor Crater Exit 233 off-ramp because all such data is compiled for purposes of identifying, evaluating, and planning safety enhancements and for the purpose of developing highway safety improvement projects utilizing federal and state highway funds. This data is not subject to subpoena or admission in evidence pursuant to 23 U.S.C. § 409; Pierce County,Washington v. Guillen, 537 U.S. 129, 123 S. Ct. 720 (2003). The person most knowledgeable regarding the statistics in this system is ADOT Engineer Mike Smith, who may be reached in care of the Attorney General's Office. On December 28, 2009, Plaintiff’s attorney took the deposition of Douglas Reed Henry to inquire further regarding data maintained by the Arizona Department of Transportation with respect to other accidents occurring at the Meteor Crater Exit 233 off ramp. During the course of that deposition, Mr. Henry described at length ADOT’s ALISS database and how it was created in response to the Federal Highway Act. (Henry depo. p. 10, lines 6-15). State statute requires law enforcement agencies to report all crashes meeting a minimum threshold directly to the Arizona Department of Transportation. A.R.S. Section 28-667. Enforcement officers make their reports on an ADOT Arizona Traffic Report form that specifies it is for ADOT use only. These reports are compiled by ADOT’s Traffic Records Section to input information into the ALISS database. (Henry depo. p. 20, line 19–p. 21 line 19). Using the ALISS system and a highway inventory database, ADOT the analyzes the crashes to identify high accident locations. The criteria for identifying these location is specified by the Code of Federal Regulations which requires the State to maintain a highway safety improvement program. This information is then used to determine how much money the State will receive from the federal government for State highway safety improvements. (Henry Depo. p. 40, line 2–p. 41, line 22). According to Mr. Henry, based

A-4 upon this data compilation, Arizona received appropriations rates of approximately $30 million in the last five years for highway safety improvements. (Id). After Mr. Henry’s deposition, Plaintiffs obtained copies of the accident reports for crashes at or near the Meteor Crater off-ramp directly from the Department of Public Safety which compiles those reports in a database that is not maintained for the purpose of evaluating or planning safety enhancements of potential accident sites. LEGAL ARGUMENT. 23 U.S.C. § 409 provides: Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway– highway crossings, pursuant to 23 U.S.C. §§ 130, 144, or 152, or for developing any highway safety construction improvement project that may use Federal–aid highway funds, shall not be subject to discovery or admitted into evidence in any federal or state court proceedings involving an action for damages arising from an occurrence at a location mentioned in such documents. Surface Transportation and Uniform Relocation Assistance Act of 1987, § 132, 101 Stat. 170. The scope of the above federal statutes was considered at length in the United States Supreme Court case of Pierce County, Washington v. Guillen, 537 U.S. 129, 123 S. Ct. 720 (2003). In that case, plaintiff filed a complaint under the Public Disclosure Act (PDA) seeking access to historical accident reports and other materials held by county agencies relating to traffic accident at an intersection. The plaintiff in that case also filed a tort action against the county for negligent failure to install proper traffic controls at the intersection. In the course of deciding that Section 409 falls within the Congress’ commerce Clause power, the Court addressed the scope of Section 409’s evidentiary privilege. The petition in the case argued that a document initially prepared and then held by an agency for purposes unrelated to obtaining federal highway financing became protected under the section when a copy of the document was collected by another agency for the purpose of federal highway funding. The respondents contended that Section 409 protected only

A-5 materials actually created by the agency responsible for seeking the federal funding. The United States proposed a third interpretation: 409 protects all reports on the surveys, schedules, lists or data actually compiled or collected for Section 152 purpose but does not protect information that was originally compiled or collected for purpose unrelated to 152 and is currently held by the agency that compiled or collected it, even if the information was at some point “collected” by another agency for federal funding purposes. The Supreme Court adopted the government’s interpretation as follows: The interpretation proposed by the Government, however, suffers none of these faults. It gives effect to the 1995 amendment by making clear that Section 409 protects not just the information an agency generates, i.e. compiles, for 152 purpose, but also any information that an agency collects from other sources for 152 purpose. And, it also takes a narrower view of the privilege by making it inapplicable to information compiled or collected by purposes unrelated to 152 and held by agencies that are not pursuing 152 objectives. We therefore adopt that interpretation. Pierce County v. Guillen, 537 U.S. at 1450146, 123 S. Ct. at 730731. Based on the above, ADOT was correct in refusing to turn over its ALISS data regarding the Meteor Crater ramp or the reports it collected to populate that system. Because ADOTS data and reports cannot be used by the Plaintiffs for any purpose, they are not subject to discovery and cannot be commented on in this case. Dated this 31st day of March, 2011.

A-6 IN THE DISTRICT COURT OF HOWARD COUNTY, NEBRASKA Yvonne Rowland v. Brief in Support of Nebraska’s Motion for Protective Order State of Nebraska Plaintiffs have served a Request for Production seeking "[c]opies of all accident reports filed with the State of Nebraska reflecting motor vehicle accidents occurring within 1/4 mile of the accident site from and after January l, 1990." The documents Plaintiffs seek, however, are protected by federal law. Specifically, federal law requires each state to participate in the "Hazard Elimination Program." Materials collected or compiled by a state in furtherance of the Hazard Elimination Program are protected from disclosure, are inadmissible at trial, and cannot serve as the basis on any expert opinion. The federal government has established the Hazard Elimination Program, codified in 23 U.S.C § 152, for financing improvements to public roads and transportation facilities. The regulations promulgated in furtherance of the Hazard Elimination Program are contained in Title 23 of the Code of Federal Regulations. Title 23 of the C.F.R. mandates the activities a transportation agency must undertake to participate in the Hazard Elimination Program, including, but not limited to, the collection of accident and highway data by states pursuant to an approved Highway Safety Improvement Program ("HSIP"). 23 C.F.R § 924.9. To promote the objectives of the Hazard Elimination Program as well as a more candid assessment of highway conditions by roads departments, 23 U.S.C § 409 was enacted to provide extensive protection to data compiled or collected during these processes from discovery and admission in civil actions. 23 U.S.C. § 409 provides as follows:

A-7 Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 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 considered 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. It is important to note that § 409 is written in the disjunctive. Protection is accorded: 1) to materials compiled or collected pursuant to statutorily mandated highway safety improvement programs; OR 2) to materials compiled or collected for the purpose of developing a safety improvement project which may be implemented utilizing federal funds. Movant believes the materials identified in its Motion for Protective Order contain data compiled and collected pursuant to a statutorily mandated highway safety improvement program. I. History and Purpose of 23 U.S.C. § 409 The following excerpt from Freedom of Information Acts, Federal Data Collections, and Disclosure Statutes Applicable to Highway Projects and the Discovery Process, 33 National

A-8 Cooperative Highway Research Program Legal Research Digest, (April, 1995), describes the purpose and rationale behind 23 U.S.C. § 409: In the early 1960s, the federal government concluded that a significant reduction in fatalities and injuries could be achieved by establishing in each state a systematic and continuing process of identifying, selecting, scheduling, constructing, and evaluating highway safety improvements. In 1964, the federal government urged the states to implement safety improvements intended to reduce the number and severity of accidents through engineering improvements to hazardous highway locations and elements. This voluntary approach to federal-aid funding of highway safety improvements met with limited success. As a consequence, Congress gave impetus to the safety improvement program by enacting the Highway Safety Act of 1973, which for the first time provided federal-aid highway funds to be used exclusively for safety improvement projects. Part of this act was the Highway Safety Improvement Program (HSIP)... HSIP has proven successful. The federal highway administration (FHWA) estimates that highway safety improvement projects constructed since 1974 have saved 29,000 lives and have prevented more than 600,000 serious injuries… HSIP did, however, result in an unintended consequences: large judgments in civil actions against public entities for highway accidents…In short, the documentation generated by the federally mandated HSIP became a veritable wellspring of proofs for the plaintiffs bar in pursuit of large judgments against public entities. As a natural consequence, the participants in HSIP (public entities and railroads)

A-9 became reluctant to gather the extensive array of self-critical material that HSIP required. 33 NCHRP Legal Research Digest, 14–15. In response to this problem, the United States Congress passed 23 U.S.C. § 409 in 1987. Section 409 was amended in 1991 (expanding the protection to pre-trial discovery) and in 1995 (expanding protection to materials collected but not compiled by the agency). The fact that Congress has twice amended § 409 to provide greater protection to sensitive highway data is a clear indication of the Congressional intent to provide broad protection for this important data. The purposes of the broad protections of 23 U.S.C. § 409 are summarized in Coniker v .State of New York, 695 N.Y.S.2d 492 (1999): Clearly, the result of the statute [§ 409] 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 litigation. 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 number of people killed and injured in accidents that could be avoided by systematic analysis, and that this goal outweighs the barriers that it creates for litigants attempting to prove that a state's negligence contributed to their injuries. Indeed, one could perhaps make an apt analogy to other exclusionary rules, such as those that obtain 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 balancing 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 particular case, to find a way around it,

A-10 but rather to effectuate congressional intent. Coniker, 695 N.Y.S.2d at 805. II. Prong One of § 409—Highway Safety Improvement Programs The first prong of § 409 relates to the Highway Safety Improvement Program (HSIP). The documents the State seeks to protect in the present case are part of the state of Nebraska's Highway Safety Improvement Program established pursuant to 23 U.S.C. § 152. Specifically, 23 C.F.R. Chapter I, Subchapter J, Part 924, promulgated under the authority of § 152, sets forth the requirements for the development and implementation of an HSIP in each participating state. Subsection 924.9 sets forth the Planning requirements of an HSIP program as follows: (A) The planning component of the highway safety improvement program shall incorporate: (1) A process for collecting and maintaining a record of accidents, traffic, and highway data, including, for railroad-Highway grade crossings, the characteristics of both highway and train traffic; (2) A process for analyzing available data to identify highway locations, sections and elements determined to be hazardous on the basis of accident experience or accidents potential; ... The State of Nebraska established an HSIP that complies with the requirements of the federal regulations. (See, Exhibit 1, Affidavit of Randy Peters, Exhibit 2, Affidavit of Bob Grant).

A-11 III. Prong Two of § 409—Eligibility for Federal Safety Funding ln prong two of § 409 (hereafter referred to as the "federal funding prong") Congress unmistakably expressed its intent that reports, surveys, schedules, lists or data compiled or collected for the purpose of developing any highway safety construction improvement project which may be implemented utilizing federal-aid highway funds should be privileged from discovery in both federal and state court proceedings. Although Defendant believes that the materials identified in Defendant's Motion for Protective Order may be subject to the federal funding prong of § 409, Defendant does not offer this as a basis for a Protective Order. Defendant reserves the right to offer the federal funding prong as a basis for excluding the materials identified in the Motion for Protective Order and certain documents that have been produced to Plaintiffs from admission at trial. IV. Scope and Interpretation of 23 U.S.C. § 409: Pierce County v. Guillen After its passage, § 409 was subject to a wide variety of interpretations by courts nationwide. It is obvious that many courts disagreed with the broad protections afforded transportation agencies by § 409. This resulted in a number of decisions that were clearly at odds with the plain, unambiguous language of the statute. In response to these decisions, Congress twice amended the provisions of § 409 to reinforce its purposes. Despite these amendments, prior to the United States Supreme Court decision in Pierce County v. Guillen, cited and discussed below, the case law on § 409 remained a quagmire of exceptions and inconsistent interpretations. The recent decision of the United States Supreme Court in Pierce County, Washington v. Guillen, 537 U.S. 129, 123 S. Ct. 720 (2003) has now eliminated the precedential value of inconsistent lower court interpretations and has set out standards of interpretation for § 409 that

A-12 are consistent with the plain language of the statute and the Congressional intent. The Guillen case began as an action under the State of Washington's Public Disclosure Act (PDA) (Washington's public records act). The plaintiff therein claimed the State of Washington violated the PDA by refusing to disclose: 1) a list of accidents for a certain location, 2) a collision diagram dated July 18, 1989, 3) a collision diagram dated January 5, 1989, 4) all accident reports for the specified location, and 5) a draft memorandum from the public works director. Guillen, 537 U.S. at 136-137, FN3. The Washington Supreme Court ruled that § 409 protection was limited to documents originally created by the roads agency solely for § 152 purposes and that § 409 was unconstitutional. Guillen, 537 U.S. at 139–144. The United States Supreme Court reversed the decision of the Washington Supreme Court ruling that § 409 is constitutional and that it creates a broad privilege protecting materials compiled or collected for their § 152 programs. Id. at 146–147. The Guillen Court began its analysis of the scope of the § 409 privilege with the following discussion: Beginning with the Highway Safety Act of 1966, Congress has endeavored to improve the safety of our Nation's highways by encouraging closer federal and state cooperation with respect to road improvement projects. To that end, Congress has adopted several programs to assist the States in identifying highways in need of improvements and in funding those improvements. See, e.g.23 U.S.C. §§ 130 (Railway-Highway Crossings), 144 (Highway Bridge Replacement and Rehabilitation Program), and 152 (Hazard Elimination Program). Of relevance to this case is the Hazard Elimination Program (Program) which provides state and local governments with funding to improve the most dangerous sections of their roads. To be eligible for funds under the Program, a state or local government must undertake a thorough evaluation of its public roads. Specifically, § 152 (a) (1) requires them to:

A-13 Conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations, sections, and elements, including roadside obstacles and unmarked or poorly marked roads, which may constitute a danger to motorists, bicyclists, and pedestrians, assign priorities for the correction of such locations, sections, and elements, and establish and implement a schedule of projects for their improvement. Not long after the adoption of the Hazard Elimination Program, the Secretary of Transportation reported to Congress that the States objected to the absence of any confidentiality with respect to their compliance measures under § 152. H.R. Doc. No. 94-366, p. 36 (1976). According to the Secretary's report, the States feared that diligent efforts to identify roads eligible for aid under the Program would increase the risk of liability for accidents that took place at hazardous locations before improvements could be made. Ibid. In 1983, concerned that the States reluctance to be forthcoming and thorough in their data collection efforts undermined the Program's effectiveness, the United States Department Of Transportation (DOT) recommended the adoption of legislation prohibiting the disclosure of information compiled in connection with the Hazard Elimination Program. See Brief for the United States as Amicus Curiae in Alabama Highway Dept. v. Boone, O.T. 1991, No. 90-14 12, p. 10, cert. denied, 502 U.S. 937 (1991). To address the concerns expressed by the states and the DOT, in 1987, Congress adopted 23 U.S.C. § 409, which provided: Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled for the purpose of identifying [,] evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-

A-14 highway crossings, pursuant to sections 130, 144, and 152 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 admitted into evidence in Federal or State court or considered for other purposes in any action for damages arising from any occurrence at a locations mentioned or addressed in such reports, surveys, schedules, lists, or data. (citation omitted). The proper scope of § 409 became the subject of some dispute among the lower courts. Some state courts, for example, concluded that § 409 addressed only the admissibility of relevant documents at trial and did not apply to pretrial discovery. According to these courts, although information compiled for § 152 purposes would be inadmissible at trial, it nevertheless remains subject to discovery. See. e.g. Ex parte Alabama Highway Dept., 572 So. 2d 389 (Ala. 1990), cert denied sub nom. Alabama Highway Dept. v. Boone, 502 U.S. 937 (1991); Light v. New York, 149 Misc. 2d 75, 80, 560 N.Y.S. 2d 962, 965 (Ct. CL 1990); Indiana Dept. of Transp. v. Overton, 555 N.E. 2d 510, 512 (Ind. App. 1990). Other state courts reasoned that § 409 protected only materials actually generated by a governmental agency for § 152 purposes, and documents collected by that agency to prepare its § 152 funding application remained both admissible and discoverable. See, e.g. Wiedman v. Dixie Elec. Membership Corp., 627 So. 2d 170, 173 (La. 1993), cert. denied, 511 U.S. 1127 (1994). See also, e.g. Southern Pacific Transp. Co. v. Yarnell, 181 Ariz. 316, 319-320, 890 P. 2d 611,614-615, cert. denied, 516 U.S. 937 (1995) (applying the same rule in the context of the Railroad-Highway Crossings program); Tardy v. Norfolk Southern Corp., 103 Ohio App. 3d 372,378-379, 659 N.E.2d 817, 820-821 (same), appeal not allowed, 74 Ohio St. 3d 1408, 655 N.E. 2d 187 (1995) (Table).

A-15 Responding to these developments, Congress amended § 409 in two ways. In 1991, Congress expressly made the statute applicable to pretrial discovery, see Intermodal Surface Transportation Efficiency Act of 1991, § 1035 (a), 105 Stat. 1978 and in 1995, Congress added the phrase "or collected" after the word "compiled," National Highway System Designation Act of 1995, § 323, 109 Stat. 591. As amended, § 409 now reads: Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway- Highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented using Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered 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. Guillen, 537 U.S. at 133–135. Ultimately, the Guillen Court found that § 409 protects not just the information the agency generates itself, (i.e. "compiles") for § 152 purposes, but also any information that an agency collects from other sources for § 152 purposes. Id. at 145. Therefore, the Court found that the documents at issue therein were protected. Id. at 145. The Guillen Court rejected arguments that § 409 protects only materials actually created by the agency responsible for seeking federal funding for § 152 purposes. Guillen stands for the simple proposition that § 409 should be interpreted consistent with the way Congress wrote it.

A-16 V. The Documents the Defendant Seeks to Protect are Within the Purview of 23 U.S.C. § 409 The federal Hazard Elimination Program requires participating states to develop Highway Safety Improvement Programs (HSIP). 23 U.S.C. § 152. An HSIP must include processes for collecting, maintaining and analyzing accident, traffic and highway data. 23 C.F.R. § 924.9. Accident data collected and compiled in HSIP's developed pursuant to the Hazard Elimination Program are protected from discovery by 23 U.S.C. § 409. The State of Nebraska has developed and implemented an HSIP that conforms to the requirements of the federal Hazard Elimination Program and the regulations of 23 C.F.R. § 924. (Exhibit 1, Affidavit of Randy Peters, Attachment "A"). Nebraska's HSIP involves the collection of accident reports using standardized forms designed to help isolate the accident data elements that are tracked by the NDOR's computerized database. Nebraska's HSIP also involves the extraction of data from the accident reports and the maintenance of this data in the Highway Safety Information system. (Exhibit 1, Affidavit of Randy Peters, Exhibit 2, Affidavit of Bob Grant). One of the main purposes of the Highway Safety Information system is to provide the information needed for state and local government applications for federal funds to make safety-related capital improvements to highways. (Exhibit 1, Affidavit of Randy Peters). The documents identified in the Affidavits submitted in support of the State's Motion for Protective Order are protected from discovery pursuant to 23 U.S.C. § 409 because these documents are all integral parts of the Nebraska's HSIP. (Exhibit 1, Affidavit of Randy Peters, Exhibit 2, Affidavit of Bob Grant). In addition, the documents identified in the Affidavits submitted in support of the State's Motion for Protective Order are protected from discovery pursuant to 23 U.S.C. § 409 because they contain accident data collected and

A-17 compiled pursuant to Nebraska's HSIP. (Exhibit 1, Affidavit of Randy Peters, 6; Exhibit 2, Affidavit of Bob Grant, 5, 6). The documents the Defendant seeks to protect are identical in nature to the documents protected by the United States Supreme Court in Guillen. The Guillen Court held that the accident reports collected by the transportation agency for a specific location as well as compilations of the data extracted from these accident reports, including collision diagrams and lists of all accidents at a certain location, were within the scope of § 409. In the present case Plaintiffs seek discovery of all accident reports collected by the Nebraska Department of Roads for a specific segment of Highway 58. Clearly, the documents Plaintiffs seek to discover in the present case are indistinguishable from the documents at issue in Guillen. The United States Supreme Court has ruled that these types of documents may properly be withheld from disclosure pursuant to 23 U.S.C. § 409. CONCLUSION The United States Supreme Court, in Pierce County, Washington v. Guillen, 537 U.S. 129, 123 S. Ct. 720 (2003), has determined that accident reports collected by transportation agencies and accident data compilations by transportation agencies are protected by 23 U.S.C. § 409. The accident reports and accident data compilations sought by Plaintiffs in the present case are identical in nature to the accident reports and accident data compilations at issue in Guillen and are protected by the unambiguous provisions of 23 U.S.C. § 409. For these reasons, the Court should sustain the Defendant's Motion for Protective Order and enter an Order protecting these documents from discovery by the Plaintiffs herein. Dated _

A-18 IN THE DISTRICT COURT OF HOWARD COUNTY, NEBRASKA YVONNE ROWLAND V. STATE OF NEBRASKA STATE OF NEBRASKA, COUNTY OF LANCASTER The Affiant, Bob Grant, being the first duly sworn, deposes and states as follows: I . I am the Highway Safety Manager for the Traffic Engineering division of the Nebraska Department of Roads (NDOR). I have held that position since 2000. My job duties include direct supervision of the Highway Safety Section of the NDOR Traffic Engineering Division. Prior to 2000 I was employed as the Risk Management Supervisor of the Highway Safety Division of the NOOR. My job duties as the Risk Management Supervisor included supervision of the analysis section of the Highway Safety Division. I have been employed by the NDOR since 1977. I have spent my entire tenure at the NOOR as either a manager or an analyst of transportation data, primarily accident report data. I have worked closely with federal transportation agencies and have become familiar with federal requirements for accident record databases. I am familiar with the kinds of accident records historically maintained in the State of Nebraska and the development of the systems used to maintain those accident records. In addition, I am familiar with the process of location coding of all accident reports for state highways.

A-19 2. A significant part of the data collected and compiled by the Highway Safety Section are all State of Nebraska Investigator's Motor Vehicle Accident Reports ("accident reports") for crashes on all state and local roads in Nebraska. Investigator's accident reports collected by the NDOR are scanned soon after receipt. A scanned Investigator's report for a specific accident is made available to law enforcement, insurance companies, motorists and other interested parties who must determine the legal and financial responsibility of the drivers involved in that particular accident. The NDOR also collects accident reports submitted by the driver(s) involved in accidents. These reports are known as the Driver's Motor Vehicle Accident Reports. The Driver's reports are also scanned soon after receipt, however, they are not made available for inspection by any person pursuant to the provisions of Neb. Rev. Stat. § 60-699(4). 3. The State of Nebraska has developed a comprehensive computerized database of accident and highway data referred to as the Highway Safety Information system. Much of the data in the Highway Safety Information system is derived from the Investigator's accident reports and Driver's accident reports collected by the Highway Safety Section. After scanning, the original accident reports are sent to NDOR employees referred to as "Indexers." The scanned reports are indexed by driver's name, accident location, and accident date among other data elements. The role of the Indexer is to enter a minimum amount of data about that accident report

A-20 that is sufficient to match it up with other reports from the same accident. The Indexers review the highway, accident and injury codes from the accident report forms. The accident report is then sent to data entry personnel for input into the Highway Safety Information system. Data entry personnel enter the data from each accident report into the Highway Safety Information system. Up to 150 accident data elements can be entered from the accident report. In addition, the data entry personnel also determine and enter a precise location for each crash on the State Highway System using a Reference Post system that is accurate to one-hundredth of a mile. The accident location coding is determined by NDOR employees and is not done by officers on the accident report. 4. The Highway Safety Information system permits specific accident data to be identified and retrieved through the use of "queries" based on one or more of the 150 accident data elements tracked by the system. The only practicable way to identify accident data for a specific location, specific highway, accident type, or injury characteristic is through the Highway Safety Information system. Upon receipt of a request for accident data, the Highway Safety Section designs a query that is based on the location, time period and other criteria specified in the request and then runs the query on the Highway Safety Information system. The Highway Safety Information system returns the records that meet the specifications of the query. An employee of the Highway Safety Section then prepares an Accident Study that restates the retrieved accident data in a more organized and useful format.

A-21 5. I have reviewed an Accident Study for the period of January 1, 1990 through January 31, 2000, completed by the Highway Safety Division at the request of the Attorney General's Office. It is my understanding that the above referenced Accident Study was initiated by the NDOR's attorneys in response to the request of the Plaintiffs in the above captioned lawsuit for all accident reports "reflecting motor vehicle accidents occurring within l/4 mile of the accident site from and after January 1, 1990." The Accident Study consists of an accident summary page, a collision diagram, and all Investigator's Motor Vehicle Accident Reports and Driver's Motor Vehicle Accident Reports that have been collected by the NDOR since January 1, 1990 through January 31, 2000 for accidents that occurred on Nebraska Highway 58, between Reference Post 16+29 and Reference Post 17+29. The contents of the Accident Study consist entirely of data contained in the Highway Safety Information system. 6. The accident summary page of the above referenced accident study contains references to accidents for which the NDOR has collected a Driver's Motor Vehicle Accident Report but there is no corresponding Investigator's Motor Vehicle Accident Report. Further, the accident summary page erroneously indicates that the NDOR is in possession of an Investigator's Motor Vehicle Accident Report for an accident that occurred on May 11, 1992. Further, af f iant saith not .

A-22 STATE OF SOUTH CAROLINA COUNTY OF HAMPTON Lester L. Igou, Plaintiff, CSX Transportation, Inc., Charles Allen Cribbs, and American Marine Transport, Inc., Defendants, Of whom American Marine Transport, Inc., is The Cross-Complainant v. CSX Transportation, Inc., Defendant, AND American Marine Transport, Inc., is also the Third-Party Plaintiff, v. The South Carolina Department of Transportation Third-Party Defendant. PROTECTIVE ORDER QUASHING AMERICAN MARINE TRANSPORT, INC.'S NOTICE OF 30(b)(6) DEPOSITIONS r="' Ii rn r. ,,/

A-23 This matter came before the Court on Motions by the Defendant South Carolina Department of Transportation (SCDOT) and CSX Transportation, Inc. (CSX) for a Protective Order quashing defendant American Marine Transport, Inc.’s March 2, 2006, Second Amended 30(b)(6) Notice of Taking Depositions to South Carolina Department of Transportation and CSC Transportation, Inc., Duces Tecum. The Motion was heard telephonically, by the consent of all parties, with a court reporter present. For the reasons set forth herein, the Court grants the Motions of SCDOT and CSX. SCDOT asserts the matters listed as areas of inquiry in the deposition notice, and the documents sought thereby, are subject to a discovery and evidentiary privilege established by 23 U.S.C. § 409. Specifically, the deposition notice seeks information on, inter alia, any railway-highway crossings throughout South Carolina for a ten-year period which "have been found to be within a close distance to signalized or stop-controlled roadway intersections with limited storage space between such crossings and the intersections." Additionally, the notice seeks testimony related to options available to reduce hazards posed by such condition, changes made to reduce hazards posed by such condition, the availability of signaling or other equipment available to reduced hazards posed by such condition, the availability of passive or active control devices to reduce hazards posed by such condition and the criteria for installing such devices. The deposition notice further requests the production of documents related to the matters set forth in the notice. SCDOT has provided the Court an Affidavit of R. F. Jenkins, its employee, providing that all the testimony and information requested in the subject deposition notice would require his

A-24 "review and reliance upon 'data compiled for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings pursuant to 23 U.S.C. Sections 130, 144, and 152."' Jenkins' Affidavit further states all the documents requested by the notice "constitute 'data compiled for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings pursuant to 23 U.S.C. Sections 130, 144, and 152."' Based on Jenkins' Affidavit, the Court finds the materials and testimony sought by the subject deposition notice are of a category contemplated by and protected by 23 USC §409. Prior to the issuance of the subject deposition notice, this Court, the Honorable R. Markley Dennis presiding, issued its Order dated January 17, 2006, denying American Marine Transport Inc. 's (American Marine) Motion to Compel production of documents "compiled or collected pursuant to federal mandate or for use in designing safety upgrades which would be eligible f o r federal funding." The Order provides such documents are not discoverable. American Marine now seeks to depose, pursuant to Rule 30(b)(6), SCRCP, individuals designated by SCDOT and CSX t o provide testimony expressly on those matters to which American Marine has, by the January 17, 2006, Order, been denied access. As discussed in detail in the January 17, 2006, Order, 23 U.S.C. §409 was enacted to prohibit the states' federally-mandated recordkeeping, on the subject of highways, railways, and bridges, from being used as a tool in private litigation. Federal law provides funding for highway improvements and hazard abatement, and requires the states to maintain programs of surveying and systematically tracking hazardous highway sites, including railway grade

A-25 crossings. Public policy requires that such programs be conducted in candor, without fear that the required documentation can be used against the state in litigation. I find that the intersection of United States Highways 321 and 3, and the subject highway-railway grade crossing at that location, are subject to and eligible for federal funding. Therefore, this location, and this action, is subject to the application and protections of §409. American Marine Transport, Inc., asserts that the case of Peterson v. National Railroad Passenger Corporation, 365 S.C. 391, 618 S.E.2d 903 (2005), stands for the proposition that the materials and testimony it seeks are discoverable, because they are relevant to a party's deviation from its own internal policies as an aspect of negligence. The Court has reviewed Peterson, and finds it is inapplicable to this matter, for several reasons. First, at no point in Peterson is 23 U.S.C. §409 addressed, and, therefore, it appears it was not raised in that action. Second, the Peterson holding concerned admissibility of evidence on relevance grounds, not discovery. Third, the issue of privilege was not raised in Peterson. Rather, the respondent’s in that action raised the preemptive effect of federal Jaw standards as a bar to the use of the company's own internal standards as a measure of negligence. Fourth, Peterson did not involve a state agency and documentation required by, and privileged under, federal law, but sought the policies of a railroad company. The Court, therefore, is unpersuaded by Peterson. The Court is, however, persuaded by the reasoning, albeit non- precedential, of Shots v. CSX Transportation, Inc., 887 F. Supp. 204 (S.D. Ind. 1995), in which it was held that a party barred from discovering documents protected by 23 USC §409 cannot then elicit witnesses' testimony about the contents of those documents as a means to obtain the same information in spoken f01m, but that the privilege of §409 applies to testimony about data as well as to the data itself. It is well-settled that materials protected by 23 U.S.C.

A-26 §409 may not be obtained in discovery. Specifically, the statute states that material required to be collected pursuant to the applicable federal laws may not be considered ''for other purposes in any action for damages…." Id. This Court concludes the privilege extends to testimony from the SCDOT personnel gathering the protected information concerning those documents. See generally, Reinbeck v. Norfolk & Western Railway Co., 982 F. Supp. 620 (N.D. Ind. 1997) (excluding documents and testimony about the documents); Dowell v. Louisiana Dep't of Trans. and Development, 750 So.2nd 498 (La. App. 2000) (excluding testimony by government officials concerning contents of protected documents); Reichert v. Louisiana Dep't of Trans. and Development, 694 So.2nd 193 (La. Sup. Ct. 1997) (excluding evidence relating to proposed highway safety project which may receive federal funds including documents held by DOTD that may reflect mental impressions, conclusions, and opinions of DOTD representatives regarding survey results). For the reasons set forth above, the Court grants SCDOT's and CSX's requested Protective Order, and directs that Rule 30(b)(6) depositions of SCOOT and CSX are not to be taken on the requested topics nor any topics governed by 23 USC §409. The Court invites the third- party plaintiff to use Interrogatories or Requests for Production, so that a privilege log may be generated as to any matters withheld in response, so that the Court may make an in camera review of any withheld matters and issue a ruling on each item withheld. AND IT IS SO ORDERED. Circuit Court Judge, Fourteenth Judicial Circuit

A-27 State of Washington Thurston County Superior Court Michael W. Gendler, Plaintiff ) v. ) John Batiste, Washington State Patrol Chief ) Defendant I, Brian Limotti, declare under penalty of perjury under the laws of the State of Washington that the following is true and correct: 1. I am over the age of eighteen years, a citizen of the United States, have personal knowledge of the facts stated herein, and am competent to testify to these stated facts. I make this declaration based on my education, training and experience. 2. I retired from the Washington State Department of Transportation (WSDOT) in December 2006. At that time, I was the Assistant Manager of the Collision Data and Analysis Branch for the Transportation Data Office (TDO) of the WSDOT. I had held that position since June 2004. I had been employed by the WSDOT since 1977.

A-28 3. Beginning in 1984, I was the Collision Analysis Supervisor at the TDO, and was responsible for producing all reports that analyzed collision data. After 1991, I also supervised the location coding of all collision reports for state highways. 4. I spent more than 20 years of my career at WSDOT involved with transportation data, primarily collision report data. I worked closely with federal transportation agencies and have become familiar with federal requirements for collision record databases and the historical development of those requirements. I have also worked closely with local transportation agencies and the Washington State Patrol (WSP). I am familiar with the kinds of records historically maintained in Washington and the development of the systems used to maintain those collision records. 5. Prior to the adoption of the federal Highway Safety Programs in 1966, there were no uniform police traffic collision report forms (PTCR’s). Law enforcement agencies utilized a myriad of different rudimentary report forms that did not specifically focus on a system for the collection of highway safety data. Prior to 1966 collisions were not coded to precise locations on roads, nor was collision data collected in a manner that would allow the WSP to generate an accurate list of accidents occurring at any specific location. Before the federal Highway Safety Programs, Washington did not have a comprehensive collision records database because neither the necessary information nor the necessary computer systems existed.

A-29 6. In Washington, a comprehensive collision records database was created in the late 1960s and early 1970s to comply with federal highway safety reporting requirements. In order to qualify for federal highway safety funding, the Federal Highway Administration (FHWA) required states to maintain a computerized collision record database. The uniform PTCR was created during this time in order to capture and collect the data that was necessary to satisfy federal reporting requirements. 7. One of the first changes in response to the passage of the federal Highway Safety Programs was the creation of the uniform PTCR. This form contained numerous database fields and created, for the first time, a comprehensive and uniform system by which law enforcement officers could collect the collision data necessary for WSDOT to evaluate a given accident location for highway safety purposes pursuant to 23 U.S.C. Sections 152, 130, and 144. The United States Department of Transportation was instrumental in encouraging standard data elements in uniform collision reports in response to the federal Highway Safety Programs. The uniform PTCR currently has approximately 113 data elements that were specifically created and embedded in the PTCR in response to the federal Highway Safety Programs and the ensuing regulatory guidelines. 8. Until 1997, the WSP entered collision data from the PTCRs into a computer database and the procedure for entering the data was very similar to that described below for WSDOT.

A-30 The principal difference between the WSP collision records system and the WSDOOT system is that the WSP computer was very old (circa 1970) and was unable to sort data in response to specific queries. The WSP computer was used only to produce certain pre-programmed collision summaries and reports. The WSP computer could not generate an accurate list of accidents by specific location. 9. Until 1997, the WSP sent electronic copies of its database to WSDOT and the public works or road departments of larger jurisdictions. WSDOT and those public works or road departments loaded the electronic files onto their more modern computers. Those computers could sort and analyze the collision data for highway safety purposes by specific locations and highway accident characteristics. For smaller jurisdictions, the WSP sent quarterly hard copy printouts of collision data, and the public works or road departments of those jurisdictions would have to manually sort the data for use in their highway safety activities. 10. The WSP maintenance of the collision database, but not individual collision reports, ended in 1997 when there was an unsuccessful attempt to convert an optical character recognition system. After 1997, WSDOT maintained the state highway collision database to comply with essential highway safety requirements. Local collision data was not separately available until spring 2002 when WSDOT began implementing the new collision database for all state roads, which included local city streets.

A-31 11. Beginning with collisions occurring in 2002, the WSDOT TDO has compiled and collected the data needed by WSDOT and the local jurisdictions (usually a public works or road department) to prioritize and fund improvements to state highways and local roads. A significant portion of the raw data compiled by the TDO are the uniform PTCR’s for collisions on all state and local roads. The implementing federal regulations for the Hazard Elimination Act of 1973 require each state to maintain the collision reports in a comprehensive computerized database: the database contains extensive coding of highway feature and collision causes that might be useful in developing federally funded highway improvement projects. The federal regulations also require WSDOT and local road agencies to accurately locate all collisions that occur on public roadways, something which is not typically done by officers or motorists who complete the forms (approximately 10% of the collision reports are submitted by vehicle operators and not law enforcement officers). 12. As indicated above, the federal government has a major hazard reduction program for roads (23 U.S.C. 152) and specific safety improvement programs for bridges (23 U.S.C. 144) and for railroad crossings (23 U.S.C. 130). 13. Pursuant to state law, and as a part of the cooperative system for identifying, evaluating and planning highway safety enhancements, local law enforcement agencies submit the original copy of the PTCR to the WSP collision records section. Drivers involved in collisions submit vehicle collision reports (VCR) when law enforcement officers are not called to a collision. The WSP collision

A-32 records section scans the collision reports into WSDOT’s database. The scanned report becomes the official record and the paper report is destroyed. 14. The WSP indexes the scanned reports by driver’s name and collision report number, among other items. The scanned reports are available to law enforcement, insurance companies, motorists, and other interested parties who must determine the legal and financial responsibility of the drivers involved in the reported collision. 15. After the raw collision reports are scanned, they are sent to one of approximately 30 WSDOT collision analysts. The role of the analyst is to extract and compile data from the reports for entry into the comprehensive collision database required by federal highway safety laws. The collision analyst reviews the location information, collision, and injury codes on the report forms. The analyst changes the codes as needed to correct errors, to improve consistency, and to make the data more accurately reflect the prose descriptions and collision diagrams on the reports. The corrected data is then entered into the collision database. 16. For collisions on state highways, the WSDOT analyst also determines and enters a precise location for each collision, accurate to a 100th of a mile. The ability to precisely locate a collision is critical to the analysis of potentially hazardous situations and is required by federal highway safety reporting requirements. Data fields that have been embedded in the PTCR for 23 U.S.C. 152 purposes provide the raw data for collection that allows WSDOT, through

A-33 further compilation and analysis, to create an accurate list of collisions that have occurred at a specific location. It is not possible for either the WSP or WSDOT to generate an accurate list of collisions at a specific location using nothing other than the raw collision report. An accurate list of collisions at a specific location can only be generated after the collection of data embedded in the PTCR, compilation of data, and analysis of the raw collision reports that is performed by WSDOT for federal 152 purposes. 17. In 2003, a Memorandum of Understanding was executed between the WSP and WSDOT regarding collision records. This agreement reflected the differing business needs of the agencies and in particular the data collection and analysis requirements imposed on WSDOT for federal highway safety purposes. The WSP collision records section and WSDOT share the collision reports database, but have different levels of access. The portion of the database containing the ability to generate an accurate list of collisions at a specific location was created in order to comply with 152 and is owned by WSDOT. 18. A copy of the uniform PTCR sorted by location or by road, collision, or injury characteristics can be located only by using the information compiled in the collision database to comply with the federal highway safety laws and rules. Federal law provides that reports, surveys, schedules, lists or data which are compiled or collected for purposes of the federal highway safety improvement programs are not discoverable or admissible as evidence in any court in any action for damages at a location addressed by the reports or other data. The

A-34 FHWA treats 23 U.S.C. 409 as a grant condition with which states must abide by if they are to participate in the federal hazard elimination program. Washington participates in this federal program. A true and accurate copy of the FHWA guideline for implementing 409 is attached to this declaration. 19. The WSP and local law enforcement agencies provide the implementation arm for the collection and compilation of this important safety collision data. The investigating officers are charged with specifically collecting the collision data, accurately filling out the PTCRs, and forwarding the original copy of the PTCR to the WSP in a timely manner. 20. Regarding the last two updates made to the PTCRs in the last ten years, I was involved in proposing revisions that would allow law enforcement officers to collect even more highway safety data during the course of an accident investigation, which in turn would allow TDO and state and local agencies to more accurately evaluate highway safety information. The WSP, WSDOT, Washington Department of Licensing, and the Washington State Traffic Safety Commission jointly publish a manual to train and instruct law enforcement officers as to the particulars of how to collect the accident data and how to accurately fill out the form. I assisted in drafting the current manual. The introduction to the training manual reads in part: The information made available by accurate collision investigation and reporting is invaluable in developing programs to reduce the number and/or severity of vehicle collisions. It provides a basis for developing proper traffic laws

A-35 and ordinances, traffic safety programs, and other collision prevention programs … 21. There are currently more than 40 fields on the PTCR for a law enforcement officer to fill out, in order to access the 113 data elements imbedded in the forms. Each of these fields provides important collision data that is entered into the WSDOT collision database for purposes of complying with federal law and implementing regulations. In turn, this data is used to identify and evaluate particular accident locations to apply for federal aid highway safety funds for particular capital improvement projects. EXECUTED THIS 8th day of October, 2008, at Olympia, Washington.