Admissibility and Public Availability of Transit Safety Planning Records (2018) / Chapter Skim
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Pages 29-39
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From page 29... ...
29 4 Torts and Evidentiary Protection To make accurate decisions, courts need information. The fundamental assumption is that the law has the "right to every man's evidence" (United States v.
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30 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS state open records laws that can provide a separate avenue for plaintiffs to obtain information, even when that information is barred from discovery. PUBLIC INTEREST RATIONALE FOR TORTS AND EVIDENTIARY PROTECTION The tort liability system is widely viewed as having two outcomes: (1)
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TORTS AND EVIDENTIARY PROTECTION 31 context of a lawsuit against a public transit agency, such claims generally involve a plaintiff -- whether a passenger, a pedestrian, a person in another vehicle, or an employee -- suffering injury due to (1) a person operating a transit vehicle (or having some role in its operation)
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32 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS gent manner or (2) a hazard created by deficient equipment or infrastructure that the agency had a duty to operate in a reasonably safe manner.
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TORTS AND EVIDENTIARY PROTECTION 33 similar to the controversial and mixed empirical basis of the claim of a tort deterrence effect. The evidentiary protections afforded defendants in provisions such as Section 409 do not deny a plaintiff the right to sue an agency; they only limit, through litigation discovery rules, the plaintiff's ability to obtain certain kinds of records and to use such records in supporting a case.
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34 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS federal courts. State discovery rules depend on the law in each state but tend to have much in common with one another and with federal discovery rules.
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TORTS AND EVIDENTIARY PROTECTION 35 is available under those laws, Section 409 does not affect its availability through that avenue. On the surface, the availability of a record through open records laws appears to nullify the discovery protection.
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36 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS bition at least bars admitting the record into evidence at trial or filing it in connection with a motion (i.e., a request to a judge for a legal ruling)
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TORTS AND EVIDENTIARY PROTECTION 37 a record covered by Section 409 failed or chose not to object to its discovery. Similarly, the committee is not aware of anyone raising objections or threatening a highway agency with sanctions for not insisting on protecting the record as permitted by Section 409.
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38 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS restriction, it is important that legislators make clear whether the discovery restriction is a nonwaivable bar or a waivable privilege. There are other matters to be considered relating to the advisability of provisions like Section 409.
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TORTS AND EVIDENTIARY PROTECTION 39 Buzby, J
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