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Southern Pacific Transportation Co. v. Yarnell5/27/1993
aintiffs filed a motion to compel discovery. The superior court denied the former motion and granted the latter. In a detailed minute entry order, the court interpreted 23 U.S.C. section 409 as protecting only the "reports, surveys, schedules, lists or data" mentioned in the statute and as exposing to discovery "simple factual information gathered for or contained in such reports or compilations . . . ." "An otherwise discoverable or admissible fact," the court reasoned, "is not made non-discoverable or non-admissible simply by its inclusion in a privileged document or conversation." Consequently, the court ordered that "factual information" -- but not reports, other documents, opinions or Conclusions -- was discoverable.
The Disposition of this dispute is determined by the federal statute. Although the plaintiffs have made a state law wrongful death claim, the federal statute overrides Arizona's discovery rules by virtue of the Supremacy Clause. U.S. Const. art. VI, cl. 2. We are bound to follow the federal statute.
The statute protects the information from discovery. The statutory privilege sweeps broadly indeed, but that is the rule Congress enacted. The 1991 amendment to section 409 clarified that not only is the protected data inadmissible in court, but also shall "not be subject to discovery . . . or considered for other purposes . . . ." More importantly, Congress broadly defined the scope of protected information as "reports, surveys, schedules, lists, or data compiled" in connection with Federal Railroad Safety Act (45 U.S.C. sections 421-447) and Federal Highway Safety Act (23 U.S.C. sections 101-160) programs. (Emphasis added). These federal safety programs include surveys and programs conducted by the states pursuant to federal highway and rail safety mandates. See 23 U.S.C. §§ 130(d), 152(a), 402(a); 45 U.S.C.
§ 433; 23 C.F.R. Parts 646, 924. Arizona participates in these programs and has specifically delegated rail crossing safety authority to the Corporation Commission. See A.R.S. §§ 40-337 to 337.03. The parties in this special action do not disagree that the information sought was related to a federal safety program.
The key to determining the scope of the section 406 privilege is Congress' decision to protect "data." The ordinary meaning of "data" is "facts." When the data has been "compiled," to use the statutory term, it is protected both against discovery and against admission into evidence.
The real parties in interest assert that "data" does not mean facts or raw data, but only means the written documents into which the data has been incorporated. That contention contradicts the plain language used by Congress. As the real parties in interest conceded at oral argument, "We're not reading the statute as it's written."
Any other interpretation would render the statutory privilege illusory. Physical documents which contained data would be protected, but the data itself would not. Any other meaning would also undercut the statutory purpose. Congress apparently intended to protect the process of making rail crossing safety decisions from outside scrutiny and interference. With countless miles of rail lines and highways throughout the United States but only finite resources, improving safety is necessarily an ongoing process. Not every safety measure can be adopted at every rail crossing with a snap of the fingers. Congress thought that decisions seeking to optimize the proper balance between safety and fiscal restraints would be best produced in a system free from intrusive second-guessing by civil tort actions, a system in which candid evaluations of highwa
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