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Southern Pacific Transportation Co. v. Yarnell5/27/1993
y safety hazards would flourish and information-gathering would be uninhibited. Robertson v. Union P. R.R. Co., 954 F.2d 1433, 1435 (8th Cir.1992) (evaluations); Perkins v. Ohio Dep't of Transp., 65 Ohio App.3d 487, 584 N.E.2d 794, 802 (1989) (information); Sawyer v. Illinois Cent. Gulf R.R. Co., 606 So.2d 1069, 1074 (Miss.1992) (information).
The clear weight of authority holds that data as well as documents are protected by the statute. In Robertson v. Union Pac., the court upheld the exclusion of rail crossing safety data, of a newspaper article based on such data, and of expert opinion testimony based on such data. The court held that introduction of data compiled for the purpose of highway and rail crossing safety enhancement was barred by " he plain language of the statute." 954 F.2d at 1435. Moreover, the statute also bars secondary sources -- such as the newspaper article -- because "' o allow the introduction of the data through the newspaper article would circumvent the purpose of the statute.'" Id. (quoting district court). In short, both the documents containing data and the data itself are protected.
The superior court nevertheless rejected Robertson as authority because "it is not controlling on Ninth Circuit state trial courts." While Robertson is not "controlling" in a strict sense, it is powerfully persuasive. That decision is one of only two United States Court of Appeals decisions on point. The other decision is consistent with Robertson: It holds that a witness cannot testify about the contents of documents otherwise protected by the statute, because to allow such testimony "would have circumvented the purposes of the statute." Harrison v. Burlington N. R.R. Co., 965 F.2d 155, 160 (7th Cir.1992). It is of little consequence that these are decisions of the Seventh and Eighth Circuits of the Court of Appeals rather than
of the Ninth Circuit. None of these courts has the power to directly review any decisions by Arizona state courts. Thus, none of them can issue "controlling" decisions, at least in the strict sense. No juridical reason warrants rejection of other circuits' opinion simply because the Ninth has not yet spoken. Thus, we are left with two consistent opinions from the penultimate federal court in the land interpreting a federal statute. In our view, this comprises such weighty authority on a federal question that we would be extremely reluctant to disagree with it.
State court decisions are largely consistent with the two federal appellate decisions: The states also interpret the federal privilege expansively. In Perkins v. Ohio Dep't of Transportation, for example, the court held that data -- "evidence of any accidents which came to the attention of defendant solely as a result of its programs operated pursuant to a federal . . . program" -- was inadmissible. 584 N.E.2d at 802. In Sawyer v. Illinois Cent. Gulf R.R. Co., 606 So.2d at 1073, the court rejected as "specious" a "literalistic reading of the statute, to exclude the actual documents, but allow witnesses to testify to their contents." See also Claspill v. Missouri Pacific R.R. Co., 793 S.W.2d 139 (Mo.1990) (upholding exclusion of testimony, but not expressly interpreting scope of federal privilege statute).
A single state case, upon which the real parties in interest heavily rely, does not overcome the weight of federal and state authority. In Martinolich v. Southern P. Transp. Co., 532 So.2d 435 (La.Ct.App.1988), the court held that the language of the pre-amendment version of section 409 should be read narrowly as preventing only the admission of evidence at trial and not as barring the pretrial discovery of information.
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