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Southern Pacific Transportation Co. v. Yarnell5/27/1993
The Congressional amendment clarifying that the privilege indeed does bar discovery erased this misconception, and with it the vitality of Martinolich.
The real parties in interest nevertheless urge us to restrain the scope of the federal privilege and subject to discovery data developed after the Corporation Commission issued its order authorizing the improvement of this crossing. We find no authority for this proposition and, in view of the broad Congressional language, we are disinclined to restrict the privilege. Moreover, the Congressional purpose is best served by protecting such data. As the real parties in interest acknowledged at oral argument, the Corporation Commission's order to improve this crossing did not designate when improvement was to begin: It stated that the improvement was to be made when the railroad had the available resources. Thus, decisions concerning the installation of the gates were not complete when the commission issued its order. Therefore, the release of information about this particular crossing compiled after the commission's order would still subject the decision making process to scrutiny. In addition, disclosure of information about other crossings generated after the commission issued its order would expose the process to the harsh glare of hindsight. Congress apparently intended to prevent precisely this kind of intrusion.
The real parties in interest also contend that the data is discoverable because it might have been gathered for purposes other than federal safety programs. The record fails to reveal that the data was gathered for other purposes. More importantly, that fact would be immaterial even if it could be proved: The federal statutory language and purpose would still require that the data be privileged. In Robertson v. Union Pac., 954 F.2d at 1435 n. 3, the court held just such an argument to be "without merit."
The real parties in interest next argue that the statute does not protect data produced
prior to the effective date of the 1991 amendment. Prior to that date, they contend, the statute barred admission of the data into evidence at trial but not its pretrial discovery. See Martinolich, 532 So.2d at 439.
We reject this contention first because Congress intended all along to protect the data from discovery. The earlier version of the statute barred not only the admission of the data into evidence, but also its consideration "for other purposes." In our opinion, Martinolich misinterpreted the statute; the Congressional amendment clarified that the provision already extended the privilege to discovery materials rather than altering the privilege by expanding its scope.
Secondly, even if the 1991 amendment extended the scope of the statute, the amendment was retroactive. Federal law considers procedural amendments such as this one to be presumptively retroactive. Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). Thus, no matter when the data originated, the 1991 amendment barred its discovery at any time after the effective date of that amendment. See Perkins v. Ohio Dep't of Transp., 584 N.E.2d at 803; Claspill v. Missouri Pacific R.R. Co., 793 S.W.2d at 140 (23 U.S.C. section 409 is retroactive). There is no dispute that the 1991 version was in effect at the time the discovery requests were made in this case. Thus, the statute barred the requested discovery.
The final argument advanced by the real parties in interest is that application of the federal statute to state court actions violates the Tenth Amendment to the United States Constitution, which provides: "The powers
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