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Jarvis v. Mid-South Rail Corp.8/24/1998
tribute federal funds, while the Maintenance Unit coordinates and gets agreements for DOTD construction projects that involve railroads such as improving crossings.
Shrewsberry commented that he is familiar with Project No. 737-04-0015, but did not know its exact completion date. He is also familiar with Crossing No. 302-527-S as far as the Database and DOTD's information on the crossing. He explained that when making his affidavit, he reviewed information which counsel for the parish had obtained by researching the microfilm project records listed in DOTD's general files and compared this with Maintenance Division records, which are different. Shrewsberry said his affidavit was based on his knowledge of Maintenance Division records and the information gathered by the parish's counsel, Sterritt. In regards to that information, Shrewsberry said he believes that Sterritt had information concerning the federal DOT numbers and inspection reports for this project. The records Sterritt researched would show specifically what was done to "upgrade" the crossing. The Maintenance Division records apparently also contain reports and other data compiled from the National Inventory Database.
Shrewsberry stated that it was his recollection that Project No. 737-04-0015 provided funds for the placement of advance warning signs and cross-buck signs at the Golson Road crossing. But when questioned about the source of his affidavit statement that federal funds were used at the crossing, he answered that the source is correspondence with the Federal Highway Administration ("FWHA") in the Maintenance Division Railroad Unit's records containing references to the Federal Railway Safety Act, federal funds and FWHA review of the project.
When asked if he could testify on his own knowledge that the Golson Road crossing was upgraded, all Shrewsberry could say was that this crossing was upgraded with federal funds according to the documents presented to him. Asked by Sterritt if federal funds were utilized to place signs at this crossing, he answered yes. Finally, Shrewsberry said that while he would need to look at records to determine what signs were installed at the crossing or the amount of federal funds used there, he does know that federal funds were used to put up signs at the crossing.
Shrewsberry was served with a subpoena duces tecum directing him to produce at his deposition all of the DOTD records pertaining to Project No. 737-04-0015 and any records pertaining to the upgrading of railroad crossing No. 302-527-S. Shrewsberry did not appear with any of the requested documents, explaining that he thought Sterritt had already produced the fruits of his research and that the remaining records were shielded by 23 U.S.C. § 409.
Federal law bars discovery and introduction into evidence of any reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of railway-highway crossings with federal funds. Fry cited supra. Shrewsberry asserted that he was instructed by the Attorney General's office and counsel for DOTD not to produce the subpoenaed documents they opined were protected by 23 U.S.C. § 409.
Some of the records Shrewsberry relied on when making his affidavit are in DOTD's general files and may be admissible while other records may be privileged under federal law. See Fry, supra. Sterritt, in any event, as counsel for the parish, at least had access to DOTD's general files.
Additionally, we note that the record does not reflect that any defendant moved to quash plaintiffs' subpoena duces tecum or sought a protective order from the trial court regarding records a
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