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Long v. State6/29/2005
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In light of the amendment to § 409, the court concluded that the exhibits were erroneously admitted "as each of them reflects information collected and compiled by the DOTD in furtherance of potential highway safety projects that may have been supported by federal funds." Reichert, 06-1419 p. 5, 694 So.2d at 198. Thus, because the exhibits reflected information gathered for purposes of a highway safety program, this court held the documents were inadmissible under § 409.
In Palacios v. Delta R.R. Inc., 98-2932 (La. 7/2/99), 740 So.2d 95, we recognized the principle that the § 409 privilege is intended to encourage states to actively and thoroughly investigate railroad crossing safety, free from the fear that information compiled to serve this purpose might be later used to establish tort liability. In Palacios, plaintiffs' interrogatories, requests for admissions, and requests for production of documents questioned the DOTD about its records and files concerning the crossing. The discovery sought studies, inspections, accident histories or complaints involving the intersection. The DOTD opposed the discovery of the evidence under § 409, contending that the state's information on the intersection, as well as every railroad crossing in the state, is collected in order to comply with federal law concerning federal highway and railroad safety. In analyzing whether the documents were privileged, this court extracted certain pertinent language from § 409 to create a framework for courts to apply in determining whether documents should be afforded § 409 protection. The Court held that the protection of § 409 will apply to:
(1) reports, surveys, schedules, lists or data
(2) compiled or collected,
(3) for the purpose of identifying, evaluating, or planning the safety enhancement of ...railway-highway crossings,
(4) pursuant to 23 U.S.C. §130.
Palacios, 98-2932 p. 8, 740 So.2d at 99.
After reviewing the discovery request in Palacios together with the congressional intent of § 409, a unanimous court found that the information sought was "assembled as part of a federal railway safety program intended to aid the state and federal governments in identifying, evaluating and planning its railroad crossing safety enhancement needs, as mandated by 23 U.S.C. § 130(d), so as to trigger the application of 23 U.S.C. § 409." Palacios, 98-2932 p. 12, 740 So.2d at 101. The court further stated that "such a result is consistent with the purpose of Section 409, which is to encourage states to actively and thoroughly investigate the railroad crossings within their borders, free from the fear that data compiled to serve this purpose might be later used to establish tort liability." Id.
This Court recognized the potential that its holding in Palacios would be perceived as a bright line rule that all information in the state's possession was inadmissible and cautioned:
Of course, this is not to say that all documents and information in the state's possession will always be privileged under section 409. We conclude only that records amassed pursuant to the federal safety evaluation programs described in 23 U.S.C. Sections 130, 144 or 152, or for the purpose of developing other highway safety improvement projects which may be federally funded, are protected.
Palacios, 98-2932 p. 12-13, 740 So.2d at 101.
Thus, this Court has instructed courts not to rule on the admissibility of documents in a vacuum, but rather to examine the documents to determine whether the information was amassed pursuant to the federal highway safety evaluation programs.
Several years after our deci
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