National Railroad Passenger Corp. et al v. Guy M. Turner, Incorporated

Filing 74

ORDER allowing in part and denying in part 33 Motion to Compel. Signed by Magistrate Judge Robert B. Jones, Jr on 5/9/2016. Counsel is directed to read the order in its entirety for important information. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:15-CV-68-BO
NATIONAL RAILROAD PASSENGER CORP.,
and CSX TRANSPORTATION, INC.,
Plaintiffs,

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v.

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GUY M. TURNER, IN CORPORATED, a/k/a
TURNER TRANSFER,
Defendant/Third-Party Plaintiff,

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ORDER

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v.

NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION and NORTH
CAROLINA DEPARTMENT OF PUBLIC
SAFETY, DIVISION OF STATE HIGHWAY
PATROL,

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Third-Party Defendants.

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This matter is before the court on a motion to compel filed by Defendant Guy M. Turner, Inc.
("Defendant").

[DE-33]. Plaintiffs National Railroad Passenger Corp. ("Amtrak") and CSX

Transportation, Inc. ("CSXT") (altogether "Plaintiffs") have responded to the motion. [DE-3 8, -39].
The matters raised in the motion are ripe for decision. For the reasons that follow, Defendant's
motion is allowed in part and denied in part.
I. BACKGROUND

According to Plaintiffs' complaint, filed May 1, 2015, this case arises from the collision of
an oversized and overweight tractor-trailer, owned and operated by Defendant, with an Amtrak
passenger train on a track owned by Defendant CSXT. Compl. [DE-1] ~ 8. The collision occurred

on March 9, 2015 in Halifax, North Carolina, while Defendant was stopped on a railroad crossing
located onN.C. Highway 903 while attempting to complete a left turn onto U.S. Highway 301 North
Bypass. Id. ~~ 21, 25. Plaintiffs allege the driver of Defendant's vehicle knowingly blocked the
railroad crossing in disregard of a sign expressly stating "Do Not Stop on Tracks" and failed to notify
Plaintiffs prior to the accident that the vehicle was blocking the crossing. Id. ~~ 8, 23, 25-27. As
a result, an Amtrak train collided with Defendant's vehicle, and the locomotive and baggage car of
the train derailed. Id. ii~ 31-32. Plaintiffs have alleged the following causes of action against
Defendant: negligence and gross negligence stemming from the alleged acts Defendant, its employee
driver, and two employees or agents escorting the tractor trailer involved in the collision,

id.~~

37-

49; negligent and grossly negligent hiring, supervision, and entrustment based on allegations that
Defendant's driver was incompetent or unfit to operate the tractor trailer, id.~~ 50-63; punitive
damages based on allegations that Defendant willfully sent its driver on the route after recklessly
failing to properly inspect the route to ensure there was adequate clearance for its vehicle, id.

~~ 64-

71; and indemnity or contribution for damages sought by Amtrak passengers, crew, and others
against Plaintiffs arising from the collision, id.~~ 72-75.
On June 3, 2015, Defendant answered the complaint denying liability, asserting affirmative
defenses, and bringing the following counterclaims against Plaintiffs: negligence and gross
negligence, based on their respective failures to ensure the railroad crossing was safe for travel by
approaching vehicles, failure to provide sufficient warnings of approaching trains and failure to
implement technologically feasible warning systems to prevent collisions with vehicles traversing
the crossing, Answer & Countercls. [DE-IO] at 16-19; and indemnity or contribution for damages
sought by Amtrak passengers, crew, and others against Defendant arising from the collision, id. at

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19-20.
On December 28, 2015, Defendant filed a third-party complaint impleading the North
Carolina Department of Transportation ("NCDOT") and North Carolina Department of Public
Safety, Division of State Highway Patrol ("NCSHP"). Third Party Compl. [DE-32-1]. Defendant
seeks contribution against NC DOT for its alleged failure to warn Defendant of the particular route
hazards and against NCSHP for its alleged failure to train its troopers to recognize route hazards and
for their trooper's failure to call the number posted at the crossing to report an emergency. Id.,, 1617, 23, 25-32.
On October 26, 2016, Plaintiffs served their responses to Defendant's First Set of
Interrogatories and First Requests for Productions of Documents. Def.'s Mot., Exs. A-D [DE-33-1
through -33-4].

From the correspondence provided with the motion, it appears that counsel

conferred regarding Plaintiffs' discovery responses Defendant believed were inadequate, a majority
of which are the subject of the motion to compel. Id., Ex. E & F [DE-33-5, -33-6].

II. ANALYSIS
A.

Standard of Review
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides the general rule regarding the

scope of discovery. "Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the case .... " Fed. R. Civ.
P. 26(b)(I). "Relevancy under this rule has been broadly construed to encompass any possibility that
the information sought may be relevant to the claim or defense of any party." Equal Emp 't

Opportunity Comm 'n v. Sheffield Fin. LLC, No. 1:06CV00889,2007 WL 1726560, at *3 (M.D.N.C.
June 13, 2007) (unpublished) (internal quotation marks, alterations, and citations omitted); Equal

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Emp't Opportunity Comm'n v. New Hanover Regional Med. Ctr., No. 7:09-CV-85-D, 2010 WL
4668957, at *3 (E.D.N.C. Nov. 9, 2010) (unpublished); Mainstreet Collection, Inc. v. Kirkland's,

Inc., 270 F.R.D. 238, 240 (E.D.N.C. 2010) ("During discovery, relevance is broadly construed 'to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear on,
any issue that is or may be in the case."') (quoting Oppenheimer Fund., Inc. v. Sanders, 437 U.S.
340, 351 (1978)).
Rule 37 of the Federal Rules of Civil Procedure provides that "[a] party seeking discovery
may move for an order compelling an answer, designation, production, or inspection" if a party fails
to answer an interrogatory under Rule 33 or fails to produce or make available for inspection
requested documents under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). For purposes of a motion
to compel, "an evasive or incomplete disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4). However, the Federal Rules also provide
that
the court must limit the frequency or extent of discovery otherwise allowed by these
rules or by local rule if it determines that: (i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive; (ii) the party seeking discovery has
had ample opportunity to obtain the information by discovery in the action; or (iii)
the proposed discovery is outside the scope permitted by Rule 26(b)(l).
Fed. R. Civ. P. 26(b)(2)(C). Additionally, "the court has 'substantial discretion' to grant or deny
motions to compel discovery." English v. Johns, No. 5:1 l-CT-3206-D, 2014 WL 555661, at *4
(E.D.N.C. Feb. 11, 2014) (unpublished) (quoting Lone Star Steakhouse & Saloon, Inc. v. Alpha of

Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995)). Finally, the party seeking the court's protection from
responding to discovery must make a particularized showing of why discovery should be denied, and

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conclusory or generalized statements fail to satisfy this burden as a matter of law. See Carefirst of
Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402-03 (4th Cir. 2003).

B.

Discussion
Defendant has moved the court to compel responses to 28 of its written discovery requests

to Plaintiffs Amtrak and CSXT, and the court will consider each of the requests in the order they are
presented in Defendant's brief [DE-34].
Interrogatory No. 4 to Amtrak
Defendant seeks the identification of all prior close calls or near accidents involving the
subject crossing, the subject tracks, or the intersection of Highway 903 and Highway 301 Bypass,
of which Amtrak (including its agents, investigators, or attorneys) is aware, identifying the person(s)
involved, the date and the nature of the close call or near accident, and all documentation of the close
call or near accident. Def.'s Mot., Ex. A [DE-33-1] at 5. Amtrak has objected on the grounds the
request is overly broad, overly burdensome, irrelevant and unreasonably calculated to lead to the
discovery of admissible evidence. Id. According to Amtrak, it has inquired into prior close calls or
near accidents (as defined as trains nearly colliding with motor vehicles) at the subject crossing in
the year prior to the accident and did not identify any responsive information. Id. Defendant agreed
to limit its request to any responsive information since 2000. Def.'s Mem. [DE-34) at 3. Amtrak
responds that it and CSXT have provided all documents related to calls reporting an emergency,
perceived emergency, stopped vehicle, close call or near accident at the subject crossing since 2009.
Pls.' Mem. [DE-38] at 5. Additionally, CSXT has produced records of oversized loads crossing the
Highway 903 crossing since 2009. Id. Plaintiffs contend that additional discovery on this issue is
overly broad and unduly burdensome. Id. at 5-6.

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Defendant takes the position that Amtrak knew of or should have known of prior close calls
or near accidents at the subject crossing, that such accidents could occur in the future, and that
Amtrak failed to take measures to prevent such accidents. Def.'s Mot., Ex. E [DE-33-5] at 2;
Answer & Countercls. [DE-I OJ at 16-19. Thus, the request seeks materials relevant to Defendant's
claims and within the scope of discovery. However, the court finds that the temporal scope of the
request, which as modified by Plaintiff seeks responsive information since 2000 (or 15 years prior
to the accident at issue), is overly broad. Amtrak and CSXT have produced responsive information
dating back to 2009, noting that CSXT upgraded its document storage system in 2009 and that
documents created prior to that time could not be transferred from the mainframe making them
"extremely difficult and potentially costly to access." Pls.' Mem. [DE-38] at 5, n.3. Plaintiffs have
provided no support for this conclusory assertion regarding the documents being "extremely difficult
and potentially costly to access." Id. (emphasis added); see JAK Prods., Inc. v. Robert Bayer, No.
2: l 5-CV-00361, 2015 WL 2452986, at* 10 (S.D. W. Va. May22, 2015)(unpublished)("To prevail
on the grounds of burdensomeness or breadth, the objecting party must do more to carry its burden
than make conclusory and unsubstantiated arguments.") (citing Bank ofMongolia v. M & P Global
Financial Services, Inc., 258 F.R.D. 514, 519 (S.D. Fla. 2009) ("A party objecting must explain the
specific and particular way in which a request is vague, overly broad, or unduly burdensome. In
addition, claims of undue burden should be supported by a statement (generally an affidavit) with
specific information demonstrating how the request is overly burdensome"); Convertino v. United
States Department ofJustice, 565 F. Supp. 2d 10, 14 (D.D.C. 2008) (the court will only consider an
unduly burdensome objection when the objecting party demonstrates how discovery is overly broad,
burdensome, and oppressive by submitting affidavits or other evidence revealing the nature of the

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burden); Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667, 672 (D. Kan. 2005) (the party opposing
discovery on the ground of burdensomeness must submit detailed facts regarding the anticipated time
and expense involved in responding to the discovery which justifies the objection)); Stoney Glen,
LLC v. S. Bank & Trust Co., No. 2:13CV8-HCM-LRL, 2013 WL 5514293, at *3 (E.D. Va. Oct. 2,

2013) (unpublished) (citations omitted). Thus, Amtrak has failed to demonstrate that responding to
this interrogatory is unduly burdensome or otherwise objectionable. Accordingly, the court sustains
in part and overrules in part Amtrak's objections, and Amtrak shall produce any additional
responsive documents from the period from 2005 to the date of the accident by no later than May
31, 2016.
Interrogatory No. 5 to Amtrak
Defendant seeks the identification of any and all phone calls made by any person to Amtrak,
any emergency operator, whether employed by Amtrak or otherwise, any law enforcement
representative, or by any representative of the North Carolina Department of Transportation related
to an emergency or any perceived emergency at the subject crossing prior to the accident. Def.'s
Mot., Ex. A [DE-33-1] at 5. Amtrak responded that on the day of the collision it received no calls
about the crossing before the accident occurred and, as to other occasions, Amtrak objected that the
request is overly broad, unduly burdensome, irrelevant, and not reasonably calculated to lead to the
discovery of admissible evidence. Id. Defendant agreed to limit its request to any responsive
information since 2000. Def.'s Mem. [DE-34] at 3-4. Amtrak responds that it and CSXT have
provided all documents related to calls reporting on emergency, perceived emergencies, stopped
vehicles, close calls or near accidents at the subject crossing since 2009. Pis.' Mem. [DE-38] at 5.
Additionally, CSXT has produced records of oversized loads crossing the Highway 903 crossing

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since 2009, and Plaintiffs contend additional discovery on this issue is overly broad and unduly
burdensome. Id. at 5-6.
Defendant takes the position that Amtrak received prior emergency calls regarding the subject
crossing prior to the day of the accident, that Amtrak knew or should have known that an emergency
situation could present itself in the future, and that Amtrak needed to take precautions in the event
of an emergency. Def.'s Mot., Ex. E [DE-33-5] at 1-2; Answer & Countercls. [DE-10] at 16-19.
The court concludes that the request seeks materials relevant to Defendant's claims. However, as
explained above, the time period of 15 years prior to the accident is overly broad. Amtrak has failed
to demonstrate the interrogatory is otherwise objectionable. Accordingly, the court sustains in part
and overrules in part Amtrak's objections, and Amtrak shall produce any additional responsive
documents since 2005 to the date of the accident by no later than May 31, 2016.
Interrogatory No. 8 to Amtrak
Defendant seeks the identity of all prior accidents at any railroad crossing in the United States
involving a collision between an Amtrak train and a tractor-trailer or any other oversized vehicle
from 1980 to the present. Def.'s Mot., Ex. A [DE-33-1] at 6. Amtrak objected on the grounds the
request is overly broad, unduly burdensome, irrelevant and not reasonably calculated to lead to the
discovery of admissible evidence. Id. Subject to its objections, Amtrak responded there were no
prior accidents at the subject crossing involving an Amtrak train and a tractor-trailer or any oversized
vehicle. Id. Defendant asserts that Amtrak has been involved repeatedly in accidents at railroad
crossings involving tractor-trailers or oversize vehicles throughout the United States and has failed
to take adequate precautions to guard against future accidents. Def. 's Mem. [DE-34] at 4; Def. 's
Mot., Ex. E [DE-33-5] at 3. Defendant agreed to limit the scope of this interrogatory to the time

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period from 2000 to the present. Def. 's Mem. [DE-34] at 4.
As to discovery regarding prior accidents and incidents at the subject crossing, Amtrak argues
that such discovery should be precluded due to the prejudicial nature of other accidents and the
requirement that material sought must be substantially similar to the subject accident to be probative.
Pis.' Mem. [DE-38] at 3-4. Regarding accidents at other locations, Amtrak argues there can be no
significant identity of circumstances between the accidents because they occur at other locations.
Id. at 4-5. According to Amtrak, any accident at a different location, involving a different type of

vehicle, under different circumstances is immaterial to any alleged hazard at the subject crossing.
Id. at 5. The authority cited by Amtrak concerns the admission of such evidence at trial rather than

its discovery. Id. at 3-4 (citing cases). The Federal Rules expressly provide that "[i]nformation
within th[ e] scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ.
P. 26(b )( 1). "When interpreting the relevance of discovery regarding other accidents, the court need
only find that the circumstances surrounding those accidents are similar enough to the accident at
issue that discovery concerning those incidents is reasonably calculated to lead to the disclosure of
substantially similar occurrences." Madden v. Antonov, AV, No. 4: 12CV3090, 2014 WL 4295288,
at *3 (D. Neb. Aug. 31, 2014) (unpublished) (citations omitted).
The court agrees with Plaintiffs that this request is overly broad in both geographic and
temporal scope, but that prior accidents at any railroad crossing in North Carolina involving a
collision between an Amtrak train and a tractor-trailer or any other oversized vehicle since 2005 to
the date of the accident are sufficiently similar for the purpose of discovery based on the allegations
and factors presented by the parties. Accordingly, Amtrak's objection is sustained in part and
overruled in part and Amtrak shall supplement its response to the request by no later than May 31,

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2016.
Interrogatory Nos. 11 & 12 to Amtrak
Defendant seeks the identification ofall standards, practices, procedures, policies, rules, and
training materials of every type which concern the design, inspection, evaluation, maintenance, and
safety of ( 1) the subject crossing or the subject tracks, and (2) railroad crossings traversed by
oversize or overweight vehicles or vehicles or rigs of the same or similar length to Defendant's
vehicle. Def.'s Mot., Ex. A [DE-33-1] at 7. Defendant seeks further for each item identified the date
it was implemented and how it was communicated to Amtrak's agents or employees. Id. Amtrak
objected to the request on the grounds the request is overly broad and unduly burdensome, but
referred to its response to Defendant's Request for Production No. 26 and the Rules of Practice for
Passenger Service, 49 C.F.R. §§ 200-299. Id. Notwithstanding its objections, Amtrak made
available to Defendant's counsel some rules it deemed relevant, as well as the table of contents,
which counsel reviewed. Pis.' Mem. (DE-38] at 6. Amtrak points out Defendant's counsel has not
otherwise identified particular rules it wants produced and that Defendant's counsel marked some
of the requested rules as deposition exhibits, demonstrating Defendant already had access to them.
For its part, Defendant argues it should not have to rely on only the rules that Amtrak deems to be
relevant. Def.'s Mot., Ex. E [DE-33-5] at 4. The court finds the substance of the material sought
is relevant and discoverable, but that Defendant's request is overly broad in that it lacks a temporal
limit. Accordingly, the court sustains in part and overrules in part Amtrak's objections and Amtrak
shall produce responsive materials in effect at the time of the accident by no later than May 31, 2016.
Interrogatory Nos. 13-15 to Amtrak
Defendant seeks a description of "Positive Train Control," including the purpose of this

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technology, its functionality and effectiveness, whether its implementation would have prevented
any accident of any nature involving an Amtrak train, and whether its implementation is predicted
to limit or prevent any accident of any nature involving an Amtrak train. Def. 's Mot., Ex. A [DE-331] at 8. Defendant also seeks the identification of every Amtrak train in the United States equipped
with "Positive Train Control" on or before March 9, 2015, as well as the reasons "Positive Train
Control" was installed on these Amtrak trains. Id.
Amtrak objects to these interrogatories on the grounds each is overly broad, unduly
burdensome, irrelevant, and not reasonably calculated to lead to the discovery of admissible
evidence. Id. Amtrak responds further that it was not required by either Congress or the Federal
Railroad Administration to implement Positive Train Control at the time of the collision and
therefore the purpose, functionality, effectiveness, and/or its implementation of Positive Train
Control is irrelevant and inapplicable to the subject incident. Id. Amtrak describes Positive Train
Control as a federally-mandated technology that every railroad must implement in the future. See
49 U.S.C. § 20157. 1 It appears uncontested that Positive Train Control was not required at the time
and location of the collision. Pis.' Mem. [DE-38] at 6.
According to Defendant, Positive Train Control is a technology which can alert trains to
obstacles ahead on the tracks including at grade crossings. Def.'s Mem. [DE-34] at 4. Defendant

1

By statute,

[nJot later than 90 days after the date of enactment of the Positive Train Control Enforcement and
Implementation Act of 2015, each Class I railroad carrier and each entity providing regularly
scheduled intercity or commuter rail passenger transportation shall submit to the Secretary of
Transportation a revised plan for implementing a positive train control system by December 31, 20 I 8

49 U.S.C. § 20157

II

takes the position that the collision could have been prevented had Amtrak implemented Positive
Train Control. Def.'s Mot., Ex. E [DE-33-5] at 3; Def.'s Mern. [DE-34] at 4-5, n.1. In particular,
Defendant claims Amtrak breached its duty to implement technologically feasible systems to prevent
collisions with vehicles attempting to traverse the subject crossing. Answer & Countercls. [DE-1 O]
~~

21-25. These interrogatories are directed to materials related to Defendant's claim of negligence

and gross negligence based on Amtrak's failure to implement technologically feasible warning,
control, and movement systems. The broad scope of discovery encompasses discovery requests
relevant to Defendant's claim, irrespective of whether that claim may be a successful one. Amtrak's
objections are overruled and it shall respond by no later than May 31, 2016.
Interrogatory No. 16 to Amtrak
Defendant seeks to identify any Amtrak employee who was working on the Amtrak train on
the date of the accident that had ever been working on a different train that was involved in an
accident or close call occurring prior to March 9, 2015. Def.'s Mot., Ex. A [DE-33-1] at 8.
Defendant seeks a description of the accident or close call with particularity, including, but not
limited to, identifying its date, location, and any documents to the accident or close call. Id. Amtrak
has objected on the grounds the request is overly broad, irrelevant, not reasonably calculated to lead
to the discovery of admissible evidence, and has been propounded to embarrass, annoy, harass and
oppress Amtrak and/or its employees. Id. Defendant responds that whether Amtrak employees
Charles Akers (the engineer), Jucinto Dufour (a qualifying conductor who was in the locomotive at
the time of the subject accident), and Keenan Talley (the conductor) were working on trains involved
in prior accidents or close calls is discoverable, as such information could show a pattern of poor job
performance or an awareness of potential hazards at grade crossings. Def.'s Mem. [DE-34) at 5;

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Def. 's Mot., Ex. E [DE-33-5] at 3. Plaintiffs state that Akers and Dufour were deposed by Defendant
and that Amtrak has produced their personnel files and disciplinary records. Pls.' Mem. [DE-38]
at 3. However, a party is not limited to utilizing only one form of discovery, and the fact that
Defendant has deposed these individuals does not preclude this inquiry. The court agrees with
Defendant and overrules Amtrak's objections. Amtrak shall respond by no later than May 31, 2016.
Request for Production No. 4 to Amtrak
Defendant seeks all onboard locomotive data including, but not limited to, all Locomotive
Digital Video Recorder (LDVR) video footage from the Amtrak train on the day of the accident.
Def. 's Mot., Ex. B [DE-33-2] at 4. According to Defendant, Plaintiff has produced a portion of the
requested video corresponding to a period of time prior to the accident. Def. 's Mem. [DE-34] at 5.
Defendant seeks video footage commencing from when the train was in Raleigh at which time
Charles Akers, the train engineer, began operating the train, until the time of the accident. Id.
Plaintiff responds that (1) it has produced all data from the train regarding its approach to the
Highway 903 crossing, including the train's speed, throttle position, brake applications, whistle and
bell usage, as well as the view from the train as recorded by the LDVR, (2) Defendant has already
had the opportunity to depose Akers and has questioned him extensively about the accident, and (3)
further discovery is overly broad and not relevant. Pis.' Mem. [DE-38] at 7. Defendant states
further, however, that Akers testified in his deposition that he sounded the train horn soon after the
line of vehicles came into view on the video at a distance ofa quarter mile from the railroad crossing,
in violation of federal and Amtrak rules for engineers, and that he did not see traffic on the day of
the accident but instead sounded the horn because he sometimes unilaterally sounds his horn at
random locations as he approaches grade crossings. Def.'s Mem. [DE-34] at 5-6. Defendant seeks

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to explore whether Akers frequently violated safety rules by sounding his horn earlier than required
and whether Amtrak endorsed this practice or whether Akers did so on only this occasion. Id. at 6.
The court finds the request seeks materials related to the claims made by Defendant and that Amtrak
has failed to demonstrate responding to the request is otherwise objectionable. Accordingly, Amtrak
shall respond by no later than May 31, 2016.
Request for Production No. 5 to Amtrak
Defendant seeks the train' s entire event recorder printout from the day of the accident. Def.' s
Mot., Ex. B [DE-33-2] at 4. In particular, Defendant seeks the train's event recorder printout from
the time the train was in Raleigh until the accident rather than the approximate one minute and seven
seconds prior to the accident, which has apparently been produced. Def. 's Mem. [DE-34] at 6;
Def. 's Mot., Ex. E [DE-33-5] at 4. According to Defendant, the requested documents contain
numerous pieces of information, including the date, time, distance from the location where the train
ultimately stopped at specific times; the train's speed at specific times and locations; the specific
time and location of the train when Mr. Akers blew the horn and the number of times the horn was
blown on each occasion; whether and when Mr. Akers was using train's throttle, idling, or had the
throttle off; and whether and when Mr. Akers applied the emergency brakes. Def.'s Mem. [DE-34]
at 6. Amtrak responds that it has produced all data from the train regarding its approach to the
Highway 903 crossing, including the train's speed, throttle position, brake applications, whistle and
bell usage as well as the view from the train as recorded by the LDVR. Pis.' Mem. [DE-38] at 7.
According to Defendant, the requested material is important because it would provide the train's
speed and the horn patterns as it approached other grade crossings prior to the collision, which would
be probative of Akers' pattern and practice of operating trains on approaches to grade crossings at

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the time of the collision. Def.'s Mem. [DE-34] at 6-7. The court finds the materials requested to
be relevant to Defendant's claim and that Plaintiff has failed to demonstrate grounds on which to
deny the request. Accordingly, Amtrak shall respond by no later than May 31, 2016.
Request for Production No. 26 to Amtrak
Defendant seeks all Amtrak Operating Rules, General Orders, Special Instructions, and safety
rules applicable to trains operating on the CSXT North End Subdivision. Def.'s Mot., Ex. B [DE33-2] at 8. Amtrak objects on the grounds the request is overly broad, unduly burdensome, irrelevant
and not reasonably calculated to lead to the discovery of admissible evidence. Id. Amtrak notes the
breadth of the request includes any such materials that have ever been implemented by Amtrak. Pls.'
Mem. [DE-38] at 6. Amtrak responds that it recognizes some of its rules would be relevant and it
appears from Amtrak's objections and response briefthat Amtrak has made available the following
documents in effect at the time of the accident: Amtrak Safety Instructions for Transportation
Employees, Air Brake and Train Handling Rules and Instructions, System General Road Foreman
Notices, and General Code of Operating Rules. Id. For the reasons stated in the ruling on
Interrogatory Nos. 11 and 12, Amtrak's objection is sustained in part and overruled in part, and to
the extent there remain materials in effect at the time of the accident that are responsive to the
request, such materials shall be produced no later than May 31, 2016.
Request for Production No. 28 to Amtrak
Defendant seeks all materials used to train all Amtrak employees that were working on the
Amtrak train on the day of the accident. Def.'s Mot., Ex. B [DE-33-2] at 8. According to
Defendant, Amtrak has produced training records for Charles Akers, the engineer, and Jacinto
Dufour, the qualifying conductor. Def. 's Mem. [DE-34] at 7. In exchange for limiting this request
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to the training records of Akers and Dufour, Defendant seeks records evidencing the training
received generally by Amtrak engineers to confirm that Akers and Dufour received proper training.
Id. Amtrak explains in its response brief that training records for Engineer Akers are representative

of the training required to be completed by all Amtrak engineers. Pls.' Mem. [DE-38] at 7. Based
on Defendant's modification of the request and the description of the response provided by Amtrak
in its briet: it appears the response is complete and Amtrak's objection is sustained.
Request for Production No. 30 to Amtrak
Defendant seeks all records, recordings and/or transcriptions of any calls and/or other
notifications made by CSXT to Amtrak prior to the accident that warned that a vehicle was on the
tracks at the subject crossing. Def.'s Mot., Ex. B [DE-33-2] at 9. Amtrak responds there are no
responsive documents for March 9, 2015, and otherwise objects to the request as it pertains to other
occasions on the grounds it is overly broad, unduly burdensome, irrelevant, and not reasonably
calculated to lead to the discovery of admissible evidence. Id. In agreeing to modify the scope of
the request to 2000 to the date of the accident, Defendant argues that such prior calls would impute
knowledge to Amtrak and CSXT that this scenario could occur in the future and that CSXT and
Amtrak needed to take appropriate precautions to prevent an accident. Def.'s Mem. [DE-34] at 7;
Def.'s Mot., Ex. E [DE-33-5] at 5. Amtrak responds that it has produced all documents relating to
calls reporting an emergency, perceived emergency, stopped vehicle, close call, or near accident at
the Highway 903 crossing since 2009. Pls.' Mem. [DE-38] at 5-6. Additionally, CSXT has
produced records of oversized loads crossing the Highway 903 crossing since 2009, but changed its
documents storage system from a mainframe system in 2009 and all documents prior to that time are
on the mainframe, which CSXT contends is difficult and potentially costly to access. Id. at 5 n.3.
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Despite Plaintiffs' production of some responsive material, for the reasons stated above in ruling on
Interrogatory Nos. 4 and 5, Amtrak's objection is sustained in part and overruled in part, and Amtrak
shall produce responsive material since 2005 to the date of the accident by no later than May 31,
2016.
Request for Production No. 31 to Amtrak
Defendant seeks all other documents related to any phone call made by any entity or person
to Amtrak and/or any of Amtrak's employees related to an emergency or perceived emergency at the
subject crossing. Def 's Mot., Ex. B [DE-33-2] at 9. Amtrak responds there are no responsive
documents for March 9, 2015, and otherwise objects to the request as it pertains to other occasions
on the grounds it is overly broad, unduly burdensome, irrelevant, and not reasonably calculated to
lead to the discovery of admissible evidence. Id. In agreeing to modify the scope of the request to
2000 to the date of the accident, Defendant argues that emergency calls received by Amtrak
regarding the crossing prior to the day of the accident are discoverable. Def.'s Mem. [DE-34] at 7.
Defendant takes the position that Amtrak received emergency calls regarding the subject crossing
prior to the day of the accident and that Amtrak knew or should have known that an emergency
situation could present itself in the future and that Amtrak needed to take precautions in the event
of an emergency. Def.'s Mot., Ex. E [DE-33-5] at 5. Amtrak responds that it has produced all
documents relating to calls reporting an emergency, perceived emergency, stopped vehicle, close
call, or near accident at the Highway 903 crossing since 2009. Pis.' Mem. [DE-38] at 5-6.
Additionally CSXT has produced records of oversized loads crossing the Highway 903 crossing
since 2009. Id. For the reasons previously stated with respect to Interrogatory Nos. 4 and 5 and
Request for Production No. 30, Amtrak's objection is sustained in part and overruled in part, and

17

Amtrak shall produce responsive material since 2005 to the date of the accident by no later than May
31,2016.
Request for Production No. 35 to Amtrak
Defendant seeks all investigative reports, memoranda, studies, written analyses,
communications, and/or other documents generated by Amtrak in connection with prior close calls
or near accidents occurring at the grade crossing where the accident occurred. Def. 's Mot., Ex. B
[DE-33-2] at 10. Amtrak objects on the grounds the request is overly broad, unduly burdensome,
irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Id. Amtrak
responds it has inquired into prior close calls or near accidents (as defined as trains nearly colliding
with motor vehicles) at the subject crossing in the year prior to the accident and there were none.
Id. In its response brief: Amtrak states that it has produced all documents relating to calls reporting
an emergency, perceived emergency, stopped vehicle, close call, or near accident at the Highway 903
crossing since 2009. Pis.' Mem. [DE-38] at 5-6. Additionally, CSXT has produced records of
oversized loads crossing the Highway 903 crossing since 2009. Id. In agreeing to modify the scope
of the request to 2000 to the date of the collision, Defendant argues prior close calls or near accidents
at the crossing from 2000 to the date of the collision are discoverable. Def. 's Mem. [DE-34] at 7-8.
Defendant's position is that Amtrak knew or should have known of prior close calls or near
accidents at the subject crossing and that such accidents could occur in the future, and that Amtrak
failed to take appropriate measures to prevent against such accidents. Def. 's Mot., Ex. E [DE-33-5]
at 5. Thus, the request seeks materials relevant to the claims or defenses asserted in this case, and
for the reasons stated above with respect to Interrogatory Nos. 4 and 5 and Requests for Production
Nos. 30 and 31, Amtrak's objection is sustained in part and overruled in part, and Amtrak shall

18

produce responsive material since 2005 to the date of the accident by no later than May 31, 2016.
Request for Production No. 36 to Amtrak
Defendant seeks all investigative reports, memoranda, studies, written analyses,
communications, and/or other documents, including lawsuits, related to prior accidents at any
railroad crossing involving a collision between an Amtrak train and a tractor-trailer or any other
oversized vehicle from 1980 to the present. Def.'s Mot., Ex. B [DE-33-2] at 10. Defendant
contends Amtrak has been repeatedly involved in accidents at railroad crossings involving tractortrailers or oversized vehicles throughout the United States since at least 1980. Id., Ex. E [DE-33-5]
at 5. Amtrak objects on the grounds the request is overly broad, unduly burdensome, subject to
attorney-client privilege and irrelevant and not reasonably calculated to lead to the discovery of
admissible evidence. Id., Ex. B [DE-33-2] at 10. Defendant argues that Amtrak has refused to
produce any documents to a request modified in scope relating to accidents between Amtrak trains
and tractor-trailers or oversized vehicles at other crossings in the United States since 2000. Def. 's
Mem. [DE-34] at 8. Defendant contends that these records would demonstrate Amtrak's knowledge
of the potential hazards associated with oversized vehicles traversing railroad crossings and, in tum,
precautions Amtrak should have taken to prevent collisions with such vehicles. Id.
Amtrak responds it has no documents in its possession relating to prior accidents at Highway
903 crossing in addition to what has already been produced. Pis.' Mem. [DE-38] at 3. Amtrak
argues further that such discovery should be precluded due to the prejudicial nature of other
accidents and the requirement that material sought must be substantially similar to the subject
accident to be probative. Id. at 3-4. Regarding accidents at other locations, Amtrak argues there can
be no significant identity of circumstances between the accidents because they occur at other

19

locations. Id. at 4-5. According to Amtrak, any accident at a different location involving a different
type of vehicle for example, under different circumstances is therefore immaterial to any alleged
hazard at the subject crossing and would fail to place Amtrak on any notice, as Defendant argues.
Id. at 5.
The import of Amtrak's position, as demonstrated by the authority cited, appears to concern
the admission of such evidence at trial, rather than its discovery. Id. at 3-4 (citing cases). For the
reasons stated in the ruling on Interrogatory No. 8, Amtrak's objection is sustained in part and
overruled in part and Amtrak shall produce responsive material limited to prior accidents at any
railroad crossing in North Carolina involving a collision between an Amtrak train and a tractor-trailer
or any other oversized vehicle since 2005 to the date of the accident by no later than May 31, 2016.
Request for Production No. 40 to Amtrak
Defendant seeks all documents which memorialize or are otherwise related to conversations
or discussions between Amtrak and/or its agents and any federal, state, or local governmental agency
in the past ten years regarding (I) the use of any crossing in the state by tractor-trailer and/or
oversized vehicles and the frequency of use of the crossing by these vehicles; and/or (2) accidents
or near misses between motor vehicles and trains at any crossing in the state of North Carolina.
Def.'s Mot., Ex. B (DE-33-2] at 11. Amtrak objects on the grounds the request is overly broad,
unduly burdensome, irrelevant, and not reasonably calculated to the discovery of admissible
evidence. Id. Defendant argues that such records demonstrate Amtrak's knowledge of the potential
hazards associated with oversized loads traversing railroad crossings and in turn precautions Amtrak
should have taken to prevent collisions with such vehicles. Def.'s Mem. [DE-34] at 8; Def. 's Mot.,
Ex. E [DE-33-5] at 5. Amtrak argues the request is overly broad in that it captures records of any

20

communications between Amtrak and any other government entity regarding tractor-trailers and/or
other oversized vehicles traversing all railroad crossings in North Carolina including reports of
accidents or near misses between "motor vehicles" and trains. Pis.' Mem. [DE-38] at 7. Amtrak
states that it has made a reasonable search for any such communications related to the Highway 903
crossing and there were none. The court agrees that the request is overly broad as it pertains to
"motor vehicles," and will limit the request to accidents or near misses between tractor-trailers
and/or other oversized vehicles and trains. Accordingly, Amtrak's objections are sustained in part
and overruled in part and it shall respond by no later than May 31, 2016.
Request for Production Nos. 43-45 to Amtrak
Defendant seeks ( 1) all memoranda, communications, studies, written analyses, evaluations,
and/or other documents related to "Positive Train Control," including, but not limited to, the purpose
of technology, its functionality, its effectiveness, whether its implementation would have prevented
any accident of any nature involving an Amtrak train, and whether its implementation is predicted
to limit or prevent any accident of any nature involving Amtrak trains, Def. 's Mot., Ex. B [DE-33-2]
at 12; (2) all memoranda, communications, and/or other documents related to Amtrak's decision,
analysis, and/or consideration of implementing or not implementing "Positive Train Control" on
Amtrak trains, id. at 13; and (3) all documents identifying the Amtrak trains in the United States
which were equipped with "Positive Train Control" on or before March 9, 2015, id.
Amtrak objects to these requests on the grounds that they are overly broad, unduly
burdensome, irrelevant, and not reasonably calculated to lead to the discovery of admissible
evidence. Id. at 12-13. Amtrak responds further that it was not required by either Congress or the
Federal Railroad Administration to implement Positive Train Control at the time of the collision and

21

therefore the purpose, functionality, effectiveness and/or its implementation of Positive Train
Control is irrelevant and inapplicable to the subject incident. Id. Amtrak describes Positive Train
Control as a federally-mandated technology that each Class I railroad carrier must implement in the
future. Id.; see 49 U.S.C. § 20157. For the reasons stated with respect to Interrogatory Nos. 13-15,
Amtrak's objections are overruled and it shall respond by no later than May 31, 2016.
Request for Production No. 58 to Amtrak
Defendant seeks all reports, including, but not limited to, any and all reports created by
Amtrak, CSXT, the North Carolina Department of Transportation, the Federal Railroad
Administration, the National Transportation Safety Board, the North Carolina Highway Patrol, and
any other law enforcement or governmental agency, that were created as a result of or related to the
accident that occurred on September 10, 2015, between Amtrak train 80, The Carolinian, and a
tractor-trailer in or near Northampton County, North Carolina. Def. 's Mot., Ex. B [DE-33-2] at 15.
Amtrak objects on the grounds the request is irrelevant and not reasonably calculated to lead to the
discovery of admissible evidence. Id. at 16. Defendant contends the September 10 accident and
subject accident each involved the Amtrak Train 80, The Carolinian, and a tractor-trailer or oversized
vehicle and that any report related to the accident is relevant and reasonably calculated to lead to the
discovery of admissible evidence. Def. 's Mot., Ex. E [DE-33-5] at 6; Def. 's Mem. [DE-34] at 8.
Defendant further contends that any changes in policy or identified preventability analyses as a result
of the September 10, 2015 grade-crossing collision would be relevant to the instant case and
documents evidencing such changes should be produced. Def.'s Mem. [DE-34] at 8-9.
Amtrak responds that the prior accident occurred at a different location and involved a
regular 5-axle tractor trailer as opposed to the 164 foot long 13-axle superload involved in the instant

22

case. Pis.' Mem. [DE-38] at 7. Amtrak argues the subsequent incident cannot meet the predicate
of substantial identity of circumstances, nor could it provide prior notice of anything. Id. at 7-8. The
court finds Amtrak's position too narrow and that the prior accident is sufficiently related for
purposes of discovery. Amtrak's objections to providing responsive material to this request are
overruled and it shall do so by no later than May 31, 2016.
Interrogatory No. 2 to CSXT
Defendant seeks the identity and description of the last upgrade to the warning devices at the
subject crossing prior to the accident, including, but not limited to, what upgrades were completed,
why the upgrades were completed, whether CSXT was required to make such upgrades and when
the upgrades were completed. Def.'s Mot., Ex. C [DE-33-3] at 3. CSXT responds that the last
upgrade installed at the crossing was the replacement of an original model Phase Motion Detector
("PMD-1 '')with a newer model PMD-3 in 2005. Id.; Pis.' Mem. [DE-38] at 8. CSXT explains that
the Phase Motion Detector is the equipment that detects an approaching train and causes the warning
devices to activate.

Pis.' Mem. [DE-38] at 8.

CSXT explains further that the upgrade was

completed in its normal course of business, the crossing signal plans were revised to reflect the new
PMD-3, and that no work order, invoice, or other such document was generated as a result of this
upgrade. Id. It appears to the court that CSXT has fully responded to this interrogatory.

Interrogatory No. 4 to CSXT
Defendant seeks the identity of the train tracks in the United States owned by CSXT on
which "Positive Train Control" was installed on or before March 9, 2015. Def.'s Mot., Ex. C [DE33-3] at 4. Defendant contends the information could demonstrate the feasibility of installing

23

Positive Train Control at the subject crossing and the instances where Positive Train Control has
prevented accidents on CSXT tracks at other crossings. Def.'s Mem. [DE-34] at 9. CSXT objects
on the grounds the interrogatory is overly broad, unduly burdensome, irrelevant and not reasonably
calculated to lead to the discovery of admissible evidence. Def.'s Mot., Ex. C [DE-33-3] at 4.
CSXT responds further that Congress and the Federal Railroad Administration have addressed the
subject matter of Positive Train Control and that this technology was not required of CSXT or any
other railroad at the time of the collision. Id. According to CSXT, positive train control, its purpose,
functionality, effectiveness and/or its implementation is irrelevant and inapplicable to the incident.
Id. It is Defendant's position that had CSXT equipped the subject crossing with Positive Train

Control technology the accident would not have occurred. Def.' s Mot., Ex. E [DE-33-5] at 6.
Defendant has asserted a counterclaim of negligence based in part on its theory that CSXT failed to
implement feasible controls at the crossing that could prevent the accident. Answer & Countercls.
[DE-1 O] at 18-19. The court finds that the interrogatory seeks information related to Defendant's
claims and is not otherwise objectionable, and CSXT shall respond by no later than May 31, 2016.
Request for Production No. 2 to CSXT
Defendant seeks all documents evidencing or relating to phone calls made prior to March 9,
2015, to the emergency number (1-800-232-0144) posted at the subject crossing and any responses
to such calls. Def. 's Mot., Ex. D [DE-33-4] at 3. Defendant argues that documents related to all
calls to the referenced number will demonstrate the frequency of such calls, the responsiveness of
CSXT to such calls, and the overall effectiveness of calling the emergency number, including its
ability to prevent accidents. Def.'s Mem. [DE-34] at 9; Def. 's Mot., Ex. E [DE-33-5] at 6. CSXT
states that it has produced all documents relating to calls reporting an emergency, perceived
24

emergency, stopped vehicle, close call, or near accident at the Highway 903 crossing since 2009.
Pis.' Mem. [DE-38] at 5. CSXT explains that it upgraded its document storage from a mainframe
in 2009, and that all documents created or gathered prior to 2009 could not be transferred to the new
system and remain in the mainframe, which would be extremely difficult and potentially costly to
access. Pis.' Mem. [DE-38] at 5 n.3. For the reasons stated above with respect to Interrogatory Nos.
4 and 5 and Requests for Production Nos. 30, 31 and 35, CSXT's objection is sustained in part and
overruled in part, and it shall produce responsive material for the period since 2005 to the date of
the accident by no later than May 31, 2016.
Request for Production Nos. 3 & 6 to CSXT
Defendant seeks all documents generated as a result of the last upgrade to the warning
devices at the subject crossing and all photographs of the subject crossing prior to the accident.
Def's Mot., Ex. D [DE-33-4] at 3-4. CSXT has asserted a privilege under 23 U.S.C. § 409 and
otherwise objects on the grounds the request is overly broad, unduly burdensome, irrelevant, and not
reasonably calculated to lead to the discovery of admissible evidence. Id. Defendant argues CSXT
has failed to provide an explanation regarding the objection or a privilege log, and that the court
should require CSXT to withdraw its objection and produce responsive documents or explain its
objection and provide a privilege log. Def. 's Mem. [DE-34] at 9-10; Def. 's Mot., Ex. E [DE-33-5]
at 6-7.
Title 23 section 409 provides that
[n]otwithstanding any other provision of law, repotis, surveys, schedules, lists, or
data compiled or collected for the purpose of identifying, evaluating, or planning the
safety enhancement of potential accident sites, hazardous roadway conditions, or
railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for
the purpose of developing any highway safety construction improvement project

25

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. As with all evidentiary privileges, section 409 must be narrowly construed. Pierce

Cnty. v. Guillen, 537 U.S. 129, 144 (2003) (concluding that courts should interpret section 409
narrowly because it "impede[s] the search for the truth"). The party seeking to invoke the privilege
bears the burden of establishing its applicability. Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 181
(3d Cir. 2013); In re Grand Jury Investigation, 918 F.2d 374, 385 n. 15 (3d Cir.1990) ("[A] party
who asserts a privilege has the burden of proving its existence and applicability."); Ross v.

Burlington N & Santa Fe Ry. Co., 63 F. Supp. 3d 1330, 1332 (W.D. Okla. 2014).
The issue is whether the information sought consists of materials compiled or collected
pursuant to the sections of Title 23 specifically identified in section 409. Ross, 63 F. Supp.3d at
1332. Other courts have observed that section 409 may be divided into two distinct parts: "[u]nder
the first, 'reports, data and the like' are excluded 'if they were compiled or collected to identify,
evaluate, or plan the safety enhancement of potential accident sites, hazardous roadway conditions,
or railway-highway crossings, pursuant to sections 130, 144, and 148,'" and "[t]he second part
exclude[s] such documents if they were compiled or collected to develop 'any highway safety
construction improvement project which may be implemented using Federal-aid highway funds.'"

Id at 1332-33 (citing Zimmerman, 706 F.3d at 181(quoting23 U.S.C. § 409)).
In response to the instant motion, CSXT provided a privilege log listing the documents
withheld pursuant to section 409. Pis.' Mem., Ex. D [DE-38-4]. The log describes the materials as
"Photographs of 9031301 Traffic Signal and Crossing," "Railroad Crossing Inventory Form (typed

26

and handwritten) incl. photographs," "Railroad Crossing Inventory Form wit'n ~'no'tographs (typed
and handwritten) incl. Railway-Highway Grade Crossing Inventory Section Field Note
Sketch/Checklist," "Crossing Traffic Survey (with photographs)" from 2010 and 2014, and
"Revisions to signal plans re installation of PMD-3 (4pp)."

Id. (emphasis in the original).

According to CSXT, all of the prior photographs of the Highway 903 crossing were either taken by
the NC DOT or were taken as part of a crossing study requested by the NCDOT, and were compiled
or collected as part of the NCDOT' s general examination of all railroad crossings in the state for the
purpose of identifying, evaluating, or planning the safety enhancements of potential accident sites,
hazardous roadway conditions, or railway-highway crossings pursuant to federal programs, or for
the purpose of developing highway safety construction improvement projects which could be
implemented utilizing federal-aid highway funds. Id. [DE-38] at 8.
In support of this assertion, CSXT cites the affidavit of Andrew R. Thomas, a licensed
professional engineer employed by the North Carolina Department of Transportation, Rail Division,
as a Crossing Inventory Manager. Id., Ex. E [DE-38-5] Aff. of Andrew R. Thomas. According to
Thomas, the Rail Division of the NCDOT is responsible for the coordination, management, and
implementation of publicly-funded safety projects at rail-highway grade crossings throughout North
Carolina. Id.

~

3. The Rail Division has developed an evaluation system, approved by the Federal

Highway Administration, to determine which crossings have the highest need for safety
improvements, which provides a process for federal funding of railroad crossing warning devices.
Id Thomas' affidavit describes the warning devices installed at the subject crossing and that federal
funds were used to install warning devices. Id

~~

4-6. Thomas describes a project installing gates

and bells at the subject crossing in the 1970s, funded by the federal government pursuant to 45

27

U.S.C. § 130 through the Federal Highway Administration, which the NCDOT inspected and
approved upon completion. Id.

ii 7.

The affidavit refers to an Exhibit A as a true and correct copy

of the Federal Highway Administration Letter of Authorization for expenditure of federal funds on
the Highway 903 crossing, which was not attached. Id.

ii 8.

Thomas describes another project at the

crossing involving the NCDOT to upgrade the flashing lights by replacing the existing eight-inch
red lenses with larger and more visible twelve-inch red lenses, which was paid for in part with
federal funds and which the NCDOT inspected and approved upon completion. Id.

ii 9.

The

affidavit refers to an Exhibit Bas a true and correct copy of the final inspection form for the project
to upgrade the flashing lights, which was not attached. Id.

ii 10.

Thomas further explains that at an

adjacent intersection, the Highway 903 traffic signal with railroad signal preemption was installed
in the late 1980s. Id.

ii 12.

"Railroad signal preemption" is the term used to describe the interaction

between the traffic signal and the railroad crossing signal and it functions as follows:
When a train approaches a crossing and enters the crossing signal circuit, it activates
the crossing warning devices. Where railroad signal preemption is used, the circuitry
will also preempt or override the usual operation of the traffic signal at the adjacent
intersection. The traffic signal then operates to clear any vehicles in the crossing area
and to stop approaching vehicles from coming on to the crossing. Railroad signal
preemption does not alter the operation of the railroad crossing warning devices in
anyway.

Id. This project was assigned State Project Number 6.307001 and it appears to have been paid for
with state funds, but is the type of safety project was eligible for and could have been paid for with
federal-aid highway funds. Id.

Thomas explains he has reviewed the files maintained by the

NCDOT rail division regarding the Highway 903 crossing and the Highway 903 traffic signal at the
adjacent intersection and that everything in the NCDOT rail division files is compiled or collected
for the purpose of identifying, evaluating, or planning the safety enhancements of potential accident

28

sites, hazardous roadway conditions, or railway-highway crossings pursuant to federal programs, or
for the purpose of developing highway safety construction improvement projects which could be
implemented utilizing federal-aid highway funds. Id. ~ 13.
The court finds that CSXT has established the section 409 privilege with respect to the
withheld documents and the objection is, therefore, sustained.
Request for Production No. 8 to CSXT
Defendant seeks all documents identifying the train tracks in the United States owned by
CSXT on which "Positive Train Control" was installed on or before March 9, 2015. Def.'s Mot.,
Ex. D [DE-33-4] at 4. CSXT objects on the grounds that the request is overly broad, unduly

burdensome, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence
and asserts that the Positive Train Control technology was not required of CSXT or any other
railroad at the time of the accident and that its purpose, functionality, effectiveness and/or its
implementation is irrelevant and inapplicable to the accident. Id. For the reasons stated in its ruling
on the other discovery requests related to Positive Train Control, the court overrules the objection
and CSXT shall respond by no later than May 31, 2016.

III. CONCLUSION
For the reasons set forth above, Defendant's motion to compel [DE-33] is ALLOWED TN
PART AND DENIED IN PART and Plaintiffs shal 1supplement their discovery responses by no later
than May 31, 2016.
SO ORDERED, the 9th day of May 2016.

6f/;Jf4

United States Magistrate Judge

29