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United States District Court, N.D. Iowa, Eastern Division.

Hannah JESSKI, as Executrix and Personal Representative of the Estate of Dixie Blazier; Glenda Mundis; and Robert Mundis, Plaintiffs, v. DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION, Defendant.

No. 19-cv-2070-CJW

Decided: May 11, 2021

Larry Bendesky, Pro Hac Vice, Robert William Zimmerman, Pro Hac Vice, Scott A. Fellmeth, Pro Hac Vice, Saltz Mongeluzzi Barrett & Bendesky PC, Philadelphia, PA, Steven V. Lawyer, Des Moines, IA, for Plaintiffs. James D. Helenhouse, Stephen Joseph Rynn, Thomas C. Paschalis, Fletcher & Sippel LLC, Chicago, IL, for Defendant.


Before me is Plaintiffs’ Motion to Compel Documents Identified in Defendant Dakota, Minnesota & Eastern Railroad Corporation's Privilege Log. (Doc. 91.) Defendant Dakota, Minnesota and Eastern Railroad (“DM&E”) timely filed a resistance. (Doc. 92.) I conclude a hearing is unnecessary to resolve this dispute. LR 7(c).


The background facts leading to this case have been recited in other orders of the Court. (Docs. 59, 90.) For purposes of this motion, the relevant facts are that Dixie Blazier died in a collision involving a motor vehicle and a train. The collision occurred at approximately 11:54 a.m. on December 1, 2017 when Ms. Blazier was the front-seat passenger in a vehicle driven by her husband, James Blazier, who also died in the collision. (Doc. 25 1 at 4 ¶¶ 18, 22-23, 26.) Plaintiff Glenda Mundis was the backseat passenger and was injured in the collision. (Id. ¶ 25.) Mr. Blazier was driving north on Zinnea Avenue in Nora Springs, Iowa at the time of the collision, which occurred when his vehicle collided with a single DM&E engine traveling west at the grade crossing where Zinnea Avenue crosses over DM&E's mainline track (“the crossing”). (Id. ¶¶ 18-19, 22.)

At the time of the collision, warning devices at the crossing consisted of “flashing light signals, bells, and crossbuck signs.” (Doc. 93 2 at 5 ¶ 6.) On June 6, 2018, an Iowa Department of Transportation (“IADOT”) Crossing Grade Manager contacted several DM&E public works employees, including Mr. Daniel Sabatka, via email “and requested that DM&E apply for funding and approval to modify the signals at [the crossing] pursuant to 23 U.S.C. § 130.” (Id. ¶ 5.) According to Mr. Sabatka, “[u]nder the Section 130 program, federal funds are allocated annually through IADOT for the installation of warning devices, upgrade of existing warning devices and crossing closures.” (Id. ¶ 7.) On July 10, 2018, DM&E submitted a Section 130 application for funds to modify the signal system at the crossing per IADOT's request. (Id. ¶ 8.) On August 18, 2020, DM&E was granted approval to make the requested signal system modifications. (Id. at 6 ¶ 9.) A September 28, 2020 amendment allows the allotment of Section 130 funds for DM&E to install cantilevered flashing light signals, bells, and automatic gates at the crossing. (Id.) $236,675.80 in federal funds are allotted to DM&E for this project. (Id. ¶ 10.)

Plaintiffs’ instant motion seeks certain items identified on DM&E's March 26, 2021 privilege log (Def. Ex. A). (Doc. 91-1 at 5.) These items have been designated privileged by DM&E under to 23 U.S.C. Section 409, which protects from discovery certain information related to “identifying, evaluating, or planning the safety enhancement of ․ railway-highway crossings” pursuant to Section 130. Plaintiffs insist they are entitled to this information because information related to DM&E's knowledge about the danger of the crossing is relevant to refute DM&E's defense that Mr. Blazier was the sole cause of the collision. (Id. at 10.)


This dispute involves the scope of documents Defendant may withhold pursuant to 23 U.S.C. Section 409, which protects from discovery certain information related to the development of safety improvement projects. More particularly Section 409 states:

Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of ․ railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

23 U.S.C. § 409.

The plain language of the statute excludes from evidence all data compiled for purposes of highway and railroad crossing safety enhancement and construction for which a state receives federal funding. Other courts have recognized that the underlying intent of the statute is to “facilitate candor in administrative evaluations of highway safety hazards,” and to prohibit federally required record-keeping from being used as a “tool ․ in private litigation.”

Robertson v. Union Pac. R.R. Co., 954 F.2d 1433, 1435 (8th Cir. 1992) (internal citations omitted; ellipses in original); Rasmusen v. White, No. 10 C 6171, 2011 WL 5179894, at *1 (N.D. Ill. Oct. 31, 2011) (“While the legislative history is silent as to why Congress determined that such data should be inadmissible, courts have reasoned that this statute likely was meant to encourage candor in record-keeping by administrative bodies charged with determining road and railway hazards and to keep those records from becoming a ‘no-work tool’ for private litigants.”) (quotation omitted).

The Supreme Court addressed the limits of Section 409’s protections in Pierce Cnty., Wash. v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003). At issue in Guillen were the parameters of the discovery of information about accidents that had occurred at an intersection where the respondent's wife died in an automobile accident. Id. at 134-36, 123 S.Ct. 720. The Court explained that to be eligible for Section 103 funds, a state or local government must undertake a thorough evaluation of its public roads under 23 U.S.C. Section 152. Id. at 133, 123 S.Ct. 720. The Court held that although evidentiary privileges must be construed narrowly because they impede the search for the truth, in this instance, the narrowest reading of the statute—the reading asserted by the respondent—would have rendered the 1995 amendments to Section 409 a nullity. Id. at 145, 123 S.Ct. 720 (citations omitted). The Court held that Section 409

protects all reports, surveys, schedules, lists, or data actually compiled or collected for § 152 purposes, but does not protect information that was originally compiled or collected for purposes unrelated to § 152 and that is currently held by the agencies that compiled or collected it, even if the information was at some point “collected” by another agency for § 152 purposes.

[This reading] gives effect to the 1995 amendment by making clear that § 409 protects not just the information an agency generates, i.e., compiles, for § 152 purposes, but also any information that an agency collects from other sources for § 152 purposes. And, it also takes a narrower view of the privilege by making it inapplicable to information compiled or collected for purposes unrelated to § 152 and held by agencies that are not pursuing § 152 objectives. We therefore adopt this interpretation.

Our conclusion is reinforced by the history of the 1995 amendment. As we have already noted, the phrase “or collected” was added to § 409 to address confusion among the lower courts about the proper scope of § 409 and to overcome judicial reluctance to protect under § 409 raw data collected for § 152 purposes․ By amending the statute, Congress wished to make clear that § 152 was not intended to be an effort-free tool in litigation against state and local governments. Compare, e.g., Robertson v. Union Pacific R. Co., 954 F.2d 1433, 1435 (C.A. 8 1992) (recognizing that § 409 was intended to “prohibit federally required record-keeping from being used as a ‘tool ․ in private litigation’ ”) (quoting Light v. New York, 149 Misc. 2d 75, 80, 560 N.Y.S.2d 962, 965 (Ct. Cl. 1990)), with authorities cited supra, at 725. However, the text of § 409 evinces no intent to make plaintiffs worse off than they would have been had § 152 funding never existed. Put differently, there is no reason to interpret § 409 as prohibiting the disclosure of information compiled or collected for purposes unrelated to § 152, held by government agencies not involved in administering § 152, if, before § 152 was adopted, plaintiffs would have been free to obtain such information from those very agencies.

Id. at 144-46, 123 S.Ct. 720 (final ellipses in original).

Thus, where the privilege applies, it is absolute. See Carpio v. State, No. A-4397-12T3, 2013 WL 5268962, at *7 (N.J. Super. Ct. App. Div. Sept. 19, 2013) (“[T]here is nothing in the United States Supreme Court's analysis of § 409 in Guillen that indicates the privilege is subject to a balancing test or a consideration of the strength of a civil litigant's need”) (citing Cooper v. Public Belt R.R., 839 So. 2d 181, 185 (La. Ct. App. 2003) (noting that 23 U.S.C. § 409 confers an absolute privilege); Jicarilla Apache Nation v. United States, 60 Fed. Cl. 611, 613 (2004) (explaining that 23 U.S.C. § 409 “employ[s] language that leaves no doubt that Congress intended the information in question to be exempt from discovery”)).

Guillen addressed records in the possession of a public entity that was seeking funding under 23 U.S.C. Section 152. 537 U.S. at 136, 143, 123 S.Ct. 720. However, courts have recognized that Section 409’s broad protections also apply to railroads. See Powers v. CSX Transp., Inc., 177 F. Supp. 2d 1276, 1277 n.1 (S.D. Ala. 2001) (finding that “[t]he passive voice utilized by the statute is broad enough to encompass railroads, and the railroads’ significant role in identifying and correcting rail crossing hazards, recognized by statute and regulation, is sufficient to demonstrate Congress's intent that railroads be protected.”); Fry v. Southern Pac. Transp. Co., 715 So.2d 632, 637 (La. App. 1998) (noting that Section 409 applies not only to state agencies, but also to railroads) (citations omitted); see also Madden v. Antonov, No. 4:12-CV-3090, 2014 WL 5662267, at *1-2 (D. Neb. Nov. 4, 2014); Rasmusen, 2011 WL 5179894, at *3-4.

Regarding the scope of the privilege, Madden is instructive. Madden addressed the overly-broad application of Section 409’s privilege when it found that while the majority of items at issue fell under the scope of the privilege, some “merely reflect[ed] scheduled meetings and the names of attendees or invitees” and others referred to the general development of a broader grain elevator development and associated infrastructure in the area and did not address safety at all and therefore were not privileged. 2014 WL 5662267, at *2. Thus, not all items that are tangentially-related to a project touching on railroad safety will fall under the scope of Section 409.

A. Plaintiffs’ Arguments

Plaintiffs make no arguments related to specific items on DM&E's privilege log. Rather, they argue that the listed “emails, letters, agendas, handouts, estimates, and agreements” are not “reports, surveys, schedules, lists or data” subject to the protection of Section 409. (Doc. 91-1 at 9.)

Plaintiffs read Section 409 too narrowly. Correspondence and other items generated in conjunction with the pursuit and evaluation of highway safety projects eligible for federal funding are privileged under Section 409. Madden, 2014 WL 4295288, at *8 (emails, correspondence, and other documents privileged); Rasmusen, 2011 WL 5179894, at *3-4 (publicly-available stipulated agreement and order to install stop signs at crossing within 30 days and further safety measures within a year protected as was information of mere existence of agreement); Rodenbeck v. Norfolk & W. Ry. Co., 982 F. Supp. 620, 623-24 (N.D. Ind. 1997) (correspondence privileged); Shots v. CSX Transp., Inc., 887 F. Supp. 204, 205-06 (S.D. Ind. 1995) (correspondence, proposed plans, drawings, photographs, and invoices related to the crossing project all privileged under Section 409); see also Harrison v. Burlington N. R.R. Co., 965 F.2d 155, 160 (7th Cir. 1992) (testimony on contents of letter on subject of railroad crossing safety improvements privileged); Sawyer v. Ill. Cent. Gulf R.R. Co., 606 So. 2d 1069, 1072-73 (Miss. 1992) (letter, hazard rank inventory, and testimony regarding conditions at crossing all privileged under Section 409). The Eighth Circuit has given Section 409 a broad reading by affirming a trial court's decision to exclude from trial a newspaper article that was based on excluded Section 409 evidence. See Robertson, 954 F.2d at 1435.

Plaintiffs also argue that Powers, 177 F. Supp. 2d 1276 provides the proper basis for deciding the instant case. (Doc. 91-1 at 8.) Powers distinguished between information compiled or collected to identify or evaluate potential accident sites, plan safety enhancements of crossings, and develop improvement projects, which presumably satisfy the statute's purpose of “identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings” and information compiled or collected to implement a project, which do not. Id. at 1278-79. Thus, Plaintiffs argue, many items on DM&E's privilege list are likely not privileged because they relate to the implementation of the new crossing. However, I agree with DM&E that Powers is an outlier and that most courts apply Section 409’s privileges broadly. (Doc. 92 at 9.) Moreover, one of the other cases Plaintiffs cite for support employs a dubious analysis of the interplay between Sections 409 and 152. See Shanklin v. Norfolk S. Ry. Co., 173 F.3d 386, 397 (6th Cir. 1999), rev'd on other grounds, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). Shanklin relied on the difference between the approval of projects covered by Section 409 and the reporting requirements that states and the Secretary of Transportation have under 23 U.S.C. Sections 130, 144, and 152. Id. at 396-97. Shanklin noted that the states’ annual reports must include “compilations and analysis of extensive data, and [are] the basis for the annual report that the Secretary of Transportation must file with the Congress.” Id. at 397. Shanklin reasoned that Section 409 prohibits those “ ‘reports, surveys, schedules, lists, or data compiled or collected’ from being discovered and admitted into evidence. Section 409 does not, however, mention the Secretary's approval of any project as to which [this information has] been ‘compiled or collected,’ although both §§ 144 and 152 explicitly provide for the Secretary to issue approvals for these projects.” Id. Therefore, Shanklin found that project approval was not barred from discovery or admissibility. Id.

The problem with the reasoning of Shanklin is that while Section 152, to which it points throughout the decision, does not mention approval, it does state the following:

(g) Each State shall report to the Secretary of Transportation ․ on the progress being made to implement safety improvement projects for hazard elimination and the effectiveness of such improvements. Each State report shall contain an assessment of the cost of, and safety benefits derived from, the various means and methods used to mitigate or eliminate hazards and the previous and subsequent accident experience at these locations. The Secretary of Transportation shall submit a report to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives ․ on the progress being made by the States in implementing the hazard elimination program․ The report shall include, but not be limited to, the number of projects undertaken, their distribution by cost range, road system, means and methods used, and the previous and subsequent accident experience at improved locations.

23 U.S.C. § 152(g) (emphasis added). “[P]rogress being made to implement safety improvement projects for hazard elimination” and “projects undertaken,” all indicate projects that have been approved. “Effectiveness” assumes approval and implementation. Thus, project approval and implementation information would likely be included in the required reports and any underlying items. Therefore, I respectfully disagree with the reasoning of the Shanklin court and with the Powers approach to this issue. These approaches are at odds with the broad approach to Section 409 protection taken by the Eighth Circuit.

B. Application of Section 409 to Defendant's Privilege Log

To facilitate this analysis, I have added a column to DM&E's Exhibit A—Supplemental Privilege Log. DM&E did not assign each document on the privilege log a unique identifier, such as a Bates number or a letter. Indeed, many documents had duplicative numbers. A renumbered DM&E Exhibit A is attached to the end of this order as Attachment A. Throughout this order, documents will be referred to by their corresponding item numbers on Renumbered Exhibit A.3

There is no dispute that the crossing qualifies as a railway-highway crossing or that $236,675.80 in Section 130 funds are allotted to DM&E for the post-collision enhancement at the crossing. Thus, the crossing project, itself, is covered by 23 U.S.C. Section 409. The only question is whether items on DM&E's privilege log are privileged. As discussed above, the privilege is broad: correspondence and items other than “reports, surveys, and schedules” can be privileged under Section 409 if they are related to the crossing project. Even items that rely on these items as source materials can then be privileged. See Robertson, 954 F.2d at 1435 (newspaper article based on privileged source material).

DM&E has withdrawn its privilege objections to items 028 and 068-074 and will produce those items. Most of the remaining items at issue are emails and attachments to emails that are clearly related to funding, approval, details, and the final agreement for the crossing project. These items are protected under Section 409. In addition, DM&E claims that the Health Services’ employee records of two employees are protected from disclosure based on previous orders I issued in this case and DM&E's arguments proffered in conjunction with the motions resulting in those orders. (See Docs. 80, 88, 90.) The law of the case doctrine “requires courts to adhere to decisions made in earlier proceedings in order to ensure uniformity of decisions, protect the expectations of the parties, and promote judicial economy.” Gander Mountain Co. v. Cabela's, Inc., 540 F.3d 827, 830 (8th Cir. 2008) (quoting United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995)). DM&E is correct that previous discovery orders have become law of the case and cover the disclosure of these records. Therefore, items 082 and 083 are also not discoverable.

Some items on DM&E's privilege log, however, appear to be public items that were merely attached to emails. These items require more discussion.

Some of the items on the privilege log were attached to various emails and concerned the 2020 or 2021 “Winter Meeting.” (Doc. 92-1 at 3.) The winter meetings that are often mentioned in the privilege log appear to be meetings between IADOT, DM&E, and sometimes others to discuss safety. (See, e.g., item nos. 029, 032, 033.) To be sure, some of the items seem to be specific to DM&E and even to the crossing project, but some are generic. For example, DM&E is claiming privilege for the following items:

DM&E does not state why it is claiming privilege for these items, other than on the basis of Section 409. DM&E appears to be relying on Robertson’s prohibition on allowing into evidence raw data that has been used pursuant to Section 130 for purposes of monitoring and improving highway railroad crossing safety. 954 F.2d at 1435. I find that items 032, 033, 034, 043, 048, and 050 are items created by IADOT in the pursuit of monitoring and improving highway safety and were first obtained by DM&E for Section 152 purposes. See Guillen, 537 U.S. at 146, 123 S.Ct. 720 (information collected by public works agency first obtained for Section 152 purposes is privileged, even if same information would not be privileged in hands of law enforcement); 23 U.S.C. § 152(a)(2)(B) (“In carrying out paragraph (1), a State may, at its discretion--develop and implement projects and programs to address the hazards.”) These items are privileged. On the other hand, item 132 is a section of the Iowa Code, which is clearly not privileged.

There is another small group of items that seem innocuous, at best. Generic thank you notes, emails noting “out of office” or new contact information, and notes indicating delay in getting signatures due to power outages that do not contain substantive information related to the crossing project seem less likely to be privileged than the meeting schedules and names of meeting attendees at issue in Madden. 2014 WL 5662267, at *2.4 Thus, items 021, 022, 062, and 075 are likely not privileged. However, in an abundance of caution, they will be included in the in-camera inspection discussed below.

DM&E has designated items 063-067 as both privileged under Section 409 and irrelevant because they are not related to the instant case or the crossing project. I agree that the items are likely related to Section 130 projects (“downthread of Section 130 communications”). However, even if they were not related to Section 130 projects, they are not related to the crossing project and are therefore irrelevant and not subject to discovery in this case. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ․”) (emphasis added). Items 063-067 are not discoverable.

Lastly, there is a group of items whose descriptions are unhelpful and therefore I am unable to decide if they are privileged.

Items 030, 031, 045, and 052 are publicly-available names of state employees and “need answers” pamphlets listing names of state divisions. It is unclear if these lists and pamphlets are publicly available or if they were compiled specifically for some Section 130 or 152 objective.5 Publicly-available information can be privileged if compiled and collected for Section 152 purposes. Guillen, 537 U.S. at 130, 123 S.Ct. 720.

The titles of items 035 and 049 refer to “the basics” of Section 130 projects and appear to be brochures or similar items detailing state programs related to those projects, including instructions or guidance on how the state uses Section 130 funds and information about the state programs involved. This is not proprietary information. It is no secret that Iowa participates in the federal Section 130 funding scheme. See IOWADOT, Highway-Railroad Crossing Safety Program, IADOT explains the federal/state cost-sharing to the public and invites the public to report problem crossings to the state on a Section 130 Project Request Form. Id. (The “Project Request Form” button is a hyperlink to the Section 130 Project Request Form.). Iowa even publicly posts lists of pending applications and projects. See id. (Applications and Awards (Approved by the Iowa Transportation Commission) sections contain links to projects). Based on the description currently before the Court, these items may not be privileged. However, for the same reasons noted in the above paragraph, it is unclear whether these items are privileged because I do not know if these items contain compilations of raw materials originally gathered for Section 130 and 152 purposes. Finally, there is nothing in the descriptions of the rest of the items in this chart that indicates the items are related to the instant case or even Section 130 projects. Therefore, before I can decide whether these items are privileged, DM&E must provide the items to the Court in-camera. For each such item, DM&E may include a one-paragraph explanation describing the reasons it believes the privilege applies.

The following chart sums up my conclusions.

C. Plaintiffs’ Relevance Argument

The above analysis did not directly address Plaintiffs’ argument that Plaintiffs do not seek DM&E's privileged items to assign liability, but rather to rebut DM&E's defense that Mr. Blazier was the sole cause of the collision. (Doc. 91-1 at 10.) As discussed, privilege under Section 409 is absolute. See Carpio, 2013 WL 5268962, at *7. Courts are not required to assess the strength of litigants’ needs when applying the privilege. Id. Accordingly, Plaintiffs’ asserted need for the items does not change their discoverability.


For the reasons set forth herein, Plaintiffs’ Motion to Compel Discovery (Doc. 91) is granted in part and denied in part.

• Defendant DM&E shall have until May 21, 2021 to produce nonprivileged items; and

• DM&E must produce to the Court in-camera for the Court's review by May 21, 2021 items 021, 022, 030, 031, 035-038, 040, 045, 046, 049, 052, 062, and 075.

• DM&E's RENUMBERED Exhibit A is attached to this order as Attachment A.

IT IS SO ORDERED this 11th day of May, 2021.


Supplemental Privilege Log of Defendant Dakota, Minnesota & Eastern Railroad. Corp.


1.   Second Amended Complaint.

2.   Amended Declaration of Daniel Sabatka, DM&E Director of Projects and Public Works.

3.   I have used the word “item” instead of “document” to avoid confusion with references to Court-assigned docket numbers, which are referred to by the abbreviation, “Doc.”

4.   The thank you email in item 054 is more substantive and specifically mentions the Section 130 agreement for the crossing project at issue in case. Thus, I find that the thank you email numbered item 054 is privileged.

5.   I could not find these resources by doing a cursory internet search.

Mark A. Roberts, United States Magistrate Judge

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Docket No: No. 19-cv-2070-CJW

Decided: May 11, 2021

Court: United States District Court, N.D. Iowa, Eastern Division.

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