Bnsf Railway Company v. the Town of Vinton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 07-890

BNSF RAILWAY COMPANY, ET AL

VERSUS

THE TOWN OF VINTON, ET AL

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ON SUPERVISORY WRITS FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2006-241
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

AFFIRMED IN PART; REVERSED IN PART.

Charles Carmen Foti, Jr.
Attorney General
P. O. Box 94005
Baton Rouge, LA 70804
(225) 326-6000
Counsel for Defendant/Applicant:
State of Louisiana, DOTD

Stacey Allen Moak
Stacy Moak & Associates
P. O. Box 77651
Baton Rouge, LA 70879-7651
(225) 751-6300
Counsel for Defendant/Applicant:
State of Louisiana, DOTD

John Edmund McElligott, Jr.
Davidson, Meaux, Sonnier & McElligot
P. O. Drawer 2908
Lafayette, LA 70502-2908
(337) 237-1660
Counsel for Plaintiffs/Respondents:
Union Pacific Railroad Company
BNSF Railway Company

Christopher W. Stidham
Attorney at Law
P. O. Box 77651
Baton Rouge, LA 70879-7651
(225) 751-6300
Counsel for Defendant/Applicant:
State of Louisiana, DOTD

SAUNDERS, Judge.

This case arises out of a collision between a pickup truck and a train, operated

by the BNSF Railway Company (hereinafter “BNSF”), in the Town of Vinton,

Louisiana, in Calcasieu Parish. We granted writs to determine whether the

Department of Transportation and Development (hereinafter “the DOTD”) has

established that certain information sought by plaintiffs during discovery is privileged

under 23 U.S.C. § 409.

FACTS AND PROCEDURAL HISTORY:

On July 22, 2005, a collision occurred between a train, operated by BNSF, and

a pickup truck, operated by Ms. Patsy Ardoin (hereinafter “Ms. Ardoin”), at the Eddy

Street railway-highway crossing in the Town of Vinton, Louisiana. As a result of the

accident, Ms. Ardoin was killed and her daughter, Ms. Jasmine Cezar (hereinafter

“Ms. Cezar”), suffered severe injuries.

As a result of the collision, two lawsuits were filed. BNSF and Union Pacific

Railway Company (hereinafter “Union Pacific”) filed suit in the 14th Judicial District

Court on January 18, 2006, asserting claims of property damage and interruption of

business. Named as defendants were the Town of Vinton, the Estate of Ms. Ardoin,

and Ms. Cezar’s father Mr. Derrick J. Cezar (hereinafter “Mr. Cezar”) individually

and on behalf of Ms. Cezar. On October 18, 2006, BNSF and Union Pacific amended

their petition, adding as defendants Mr. Cezar, in his capacity as administrator of Ms.

Ardoin’s estate, and Ms. Ardoin’s other children. Mr. Cezar filed a separate suit in

Jefferson County, Texas, on February 2, 2006, naming BNSF, Union Pacific, and

other defendants.

The DOTD, though not a party to this litigation, became involved as a result

of discovery requests made by BNSF and Union Pacific in both the Louisiana and

Texas lawsuits. In the instant suit, BNSF and Union Pacific have noticed the

deposition of DOTD employee Mr. William Shrewsberry (hereinafter “Mr.

Shrewsberry”), the Highway/Railway Safety Engineer who was involved in the

federal safety enhancement programs at the Horridge Street and Eddy Street crossings

in the Town of Vinton. The notice of deposition also contains a subpoena duces

tecum asking Mr. Shrewsberry to produce certain documents.

In conjunction with their discovery request, on November 16, 2006, BNSF,

Union Pacific, and the DOTD filed a Joint Motion in Limine and Request for

Protective Order, asking that the court issue a Protective Order prohibiting, inter alia,

the introduction of documents in the DOTD’s file which are protected from discovery

pursuant to 23 U.S.C. § 409 and the introduction of any evidence or argument

concerning the DOTD’s activity at the Horridge Street or Eddy Street railway-

highway crossings. The trial court denied the Motion in Limine and Request for

Protective Order on January 25, 2007.

Mr. Shrewsberry’s deposition was taken on March 19, 2007. During the

deposition, counsel for the DOTD took the position that certain testimony and

documents sought by BNSF and Union Pacific were protected under 23 U.S.C. § 409.

As such, counsel advised Mr. Shrewsberry not to answer questions which would lead

to the disclosure of information believed to be protected by 23 U.S.C. § 409 and

refused to produce documents containing such information from the DOTD’s file.

The deposition was then adjourned, so that BNSF and Union Pacific could

seek a court order compelling the testimony and production of documents not

afforded by Mr. Shrewsberry’s deposition. BNSF and Union Pacific filed such a

motion, which was heard by the trial court on April 26, 2007. At the hearing, the

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court ordered that the DOTD produce its entire file to the court within ten days for an

in camera inspection. Counsel for the DOTD timely produced its file on the Horridge

Street and Eddy Street crossings to the Court, along with a Table of

Contents/Privilege Log setting forth each document in the file and the nature of any

objection to its discovery. Documents in the file which the DOTD determined were

not protected by 23 U.S.C. § 409 or other privileges were forwarded to all counsel on

May 10, 2007.

On May 30, 2007, after reviewing the file and considering the relevant

statutory law and jurisprudence, the trial court issued an Amended Ruling on 23

U.S.C. § 409 Privilege, setting forth which DOTD documents were discoverable.

Notice of the ruling was issued to all counsel on June 11, 2007. On June 27, 2007,

the DOTD provided notice of its intent to seek supervisory writs from this court, and

asked the trial court to set a return date. The trial court set a return date of July 11,

2007. Additionally, the DOTD filed a Motion and Order to Stay the Production of

Documents and Deposition of Mr. Shrewsberry, which was granted on June 27, 2007.

The DOTD now offers this writ application.

ASSIGNMENT OF ERROR:

1. Did the trial court commit legal error in ruling that certain documents in the

possession of the DOTD were discoverable because the documents were compiled or

collected for the purpose of identifying, evaluating or planning the safety

enhancement of the railroad-highway grade crossings at Horridge and Eddy Streets

in the Town of Vinton and are not discoverable or admissible as evidence pursuant

to 23 U.S.C. § 409?

DISCUSSION:

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The DOTD asserts that the trial court committed legal error by ruling, in

violation of 23 U.S.C. § 409, that certain documents were discoverable. We agree in

part and disagree in part.

The discovery and admission as evidence of certain reports and surveys related

to railroad-highway grade crossings is governed by 23 U.S.C. § 409. That statute

provides:

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 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 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.

Of the sections mentioned in the text of 23 U.S.C. § 409, only 23 U.S.C. §

130—entitled “Railway-Highway Crossings”—is relevant to the case at bar.1

Faced with a scenario similar to that found in the instant case, the supreme

court in Palacios v. La. and Delta Railroad, Inc., 98-2932, p. 8 (La. 7/2/99), 740

So.2d 95, 99, distilled the relevant analysis of 23 U.S.C. § 409 as follows:

[A]s pertains to this case, the protection of section 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.

“[If] any of these four factors are absent, the protections afforded by Section 409 are

1

The other sections of Title 23 mentioned in 23 U.S.C. § 409, sections 144 and 148, concern the
Highway Bridge Replacement and Rehabilitation Program and the Highway Safety Improvement
Program, respectively. Neither section is relevant to our discussion of the case at bar.

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inapplicable regardless of whether it is the defendant or plaintiff who wishes to use

the documents.” Hargrove v. Mo. Pac. R.R. Co., 03-818, p. 9 (La.App. 3 Cir.

12/17/03), 861 So.2d 903, 909, writ denied, 04-187 (La. 3/26/04), 871 So.2d 349.

Thus, with respect to the various discovery requests at issue here, unless all four

Palacios factors are present, the trial court will not have committed legal error in

ruling that the documents requested were not protected by 23 U.S.C. § 409 privilege.

We will address each of the categories of documents that are the objects of the

DOTD’s objections in turn.

Bates Page Numbers 463, 464, 403, 404, 505, 506, 633, 82, 119, 397-402, 421, 431,

617, 636

The DOTD first argues that certain items of correspondence sent by the Mayor

of Vinton, Mr. Charles C. Coppels, to certain employees of the DOTD—specifically,

Mr. Merlin Pistorius, Mr. P. J. Frederick, and Mr. Shrewsberry—were improperly

deemed discoverable by the trial court. We agree.

In support of the applicability of 23 U.S.C. § 409 privilege, the DOTD cites

Long v. State ex rel. Department of Transportation & Development, 04-485 (La.

6/29/05), 916 So.2d 87. There, the supreme court was asked to decide whether letters

prepared by the mayor of Bonita, Louisiana, and sent to the DOTD were protected by

23 U.S.C. § 409. In finding that the privilege did apply to those letters, the Long

court reasoned:

The mayor agreed that the local government would provide pavement
markings and signs as required, and his commitment to do so is
contained in Letter 3.
Hence, we find these three letters represent information necessary
for the commencement of the upgrade for this roadway/railroad
crossing, and thus, the letters effectuate the purpose of the federal safety
program. Taken as a whole, and in the context of the framework of the
purpose of § 409, we find the letters were compiled and collected by the

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DOTD for purposes related to funding through § 130, a federal safety
program. Thus we find the letters are protected from discovery and are
inadmissible under 23 U.S.C. § 409.

Id. at 100.

In the instant case, for purposes of 23 U.S.C. § 409 privilege, the letters written

by Mayor Coppels mirror almost exactly those at issue in Long. As in Long, the

letters in this case represent Mayor Coppels’ agreements to either provide or maintain

pavement markings and signs for the purpose of effectuating the re-opening of the

railway crossing in question. As such, the letters stand as data compiled or collected

by the DOTD for the purpose of planning the safety enhancement of railway-highway

crossings, pursuant to 23 U.S.C. § 130, and are thus protected from discovery by the

23 U.S.C. § 409 privilege.

The validity of our conclusion is bolstered by the fact that, although the

documents that are the object of this objection were deemed discoverable by the trial

court, the trial court elsewhere deemed exact copies of those documents to be

protected by 23 U.S.C. § 409. Further, while the letters bearing Bates Page Numbers

463 and 464 were not elsewhere deemed privileged, the text of those letters is

virtually identical to that of documents labeled Bates Page Numbers 584, 596, and

604, which the trial court deemed were protected by 23 U.S.C. § 409. Thus, in

accordance with Long and the mandate of 23 U.S.C. § 409, we hold that the above-

referenced documents are privileged, and thus exempt from discovery.

Bates Page Numbers 487-494, 631-632

The DOTD next argues that certain copies of a line-item cost estimate for the

installation of a crossing warning system are subject to the 23 U.S.C. § 409 privilege.

We agree. These estimates qualify as reports or data, compiled or collected by

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DOTD, for the purpose of planning the safety enhancement of the railway-highway

crossing in question, pursuant to 23 U.S.C. § 130. Accordingly, we hold these

documents to be protected from discovery.

Bates Page Number 474

The DOTD next argues that the trial court erred in allowing discovery of a

letter, dated April 15, 1997, in which Mayor Coppels informs Mr. Shrewsberry that

the Eddy Street railway-highway crossing was closed and requests the DOTD’s

assistance in re-opening the crossing. We agree.

As with the documents discussed regarding the DOTD’s previous objection,

the document at issue here qualifies as a report or data, compiled or collected by the

DOTD, for the purpose of evaluating or planning the safety enhancement of the

railway-highway crossing in question, pursuant to 23 U.S.C. § 130. Further, as with

certain other documents excluded from 23 U.S.C. § 409 protection by the trial court,

exact copies of the letter—labeled Bates Numbers 15 and 16—were elsewhere

deemed by the trial court to be privileged. Thus, we hold this document to be

privileged under 23 U.S.C. § 409.

Bates Page Numbers 618-620

The DOTD further argues that three letters, dated May 6, 1997, were

improperly denied the protection of 23 U.S.C. § 409. In these letters, Union Pacific

Director of Washington Affairs, Mr. Michael Rock, informs United States Senator

Mary Landrieu, United States Senator John Breaux, and United States Representative

Chris John of the closing of the Eddy Street railway-highway crossing, and advises

them that the DOTD has the prospect of re-opening the crossing under active

consideration. The DOTD contends that the trial court committed legal error when

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it ruled that these documents were not subject to the 23 U.S.C. § 409 privilege. We

disagree.

While the letters at issue here arguably satisfy the first two prongs of Palacios

as reports or data that have been compiled or collected, there is nothing in the letters

to indicate that the purpose of such collection was to identify, evaluate, or plan the

safety enhancement of the Eddy Street railway-highway crossing. By compiling the

letters, the state in no way uncovered a new safety problem, underwent analysis

geared toward understanding the nature of an already-identified safety problem, nor

formulated a plan of action for resolving a safety problem or otherwise increasing the

safety of a railway-highway crossing. On the contrary, it appears that the purpose of

compiling or collecting these letters merely was to maintain a record of Union

Pacific’s having informed Senator Landrieu, Senator Breaux, and Congressman John

of the closing of the crossing. As such, we must hold that the trial court did not

commit legal error in ruling that these letters were discoverable.

Bates Page Numbers 37-47

Next, the DOTD contends that the trial court erred in ruling that several

documents—including certain handwritten notes, memos, and maps—were

discoverable. We agree, in part.

The notes, memos, and maps in question qualify as reports, lists, or data

compiled or collected for the purpose of evaluating or planning the safety

enhancement of railway-highway crossings, pursuant to 23 U.S.C. § 130. Thus, these

documents are protected from discovery by the 23 U.S.C. § 409 privilege. However,

the documents bearing Bates Numbers 42, 44, and 45 are the letters to Senator

Landrieu, Senator Breaux, and Congressman John discussed in reference to the

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DOTD’s previous objection which we have already held to be discoverable.

Bates Page Numbers 128, 135-136

The DOTD argues that copies of certain email correspondence between Union

Pacific employees, Mr. David Peterson (hereinafter “Mr. Peterson”), Manager of

Industry Projects for Union Pacific; Mr. Brent Waquespack; Mr. Dale Keifels

(hereinafter “Mr. Keifels”); and Mr. Will Franks, dated May 30, 1997, and June 4,

1997, are protected by 23 U.S.C. § 409. We agree.

The emails in question discuss the arrangements necessary to reopen the Eddy

Street crossing, including discussions regarding the specifications called for by the

project and estimates of the labor costs associated with the project. As such, the

emails qualify as reports compiled for the purpose of evaluating and planning the

safety improvements to the Eddy Street railway-highway crossing, pursuant to 23

U.S.C. § 130. Therefore, these documents are subject to the 23 U.S.C. § 409

privilege.

Bates Page Numbers 80-81, 107-113, 117-118, 125-127, 129, 139, 419-420, 429-

430, 565-566, 615-616

The DOTD next contends that several copies of a June 3, 1997, letter from Mr.

William Temple, Chief of the Maintenance Division of the DOTD, to Mr. Peterson

are privileged under 23 U.S.C. § 409. In this letter, Mr. Temple informs Mr. Peterson

that the Eddy Street crossing has been closed and directs him to make arrangements

for Union Pacific to install a new crossing and remove the road closure barriers there.

The DOTD argues that the trial court committed legal error when it ruled that these

documents were not subject to the 23 U.S.C. § 409 privilege. We disagree.

Assuming that the letter in question qualifies as a report that has been compiled

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or collected, the DOTD again encounters trouble in satisfying the third prong of the

Palacios test. Here, it does not appear that the letter at issue was compiled or

collected for the purpose of identifying, evaluating, or planning the safety

enhancement of the Eddy Street railway-highway crossing. Rather, it seems clear that

at the time this letter was collected, the safety enhancement of the Eddy Street

crossway had already moved past the planning stage and into the implementation

stage. As such, this letter fails to satisfy the requirements of Palacios.

By way of counterargument, the DOTD argues that there is no prohibition in

Palacios against affording 23 U.S.C. § 409 protection to documents compiled during

the implementation stage of a safety enhancement plan. In effect, the DOTD argues

that because safety evaluation of railway-highway crossings is an ongoing process,

the applicability of 23 U.S.C. § 409 is not strictly foreclosed the moment that work

begins on a particular project. Even assuming that proposition to be correct, the fact

that 23 U.S.C. § 409 may apply after work has begun on a safety enhancement project

does not relieve the party asserting that privilege from the burden of showing that the

document in question meets the four-fold requirements of Palacios. Here, although

Mr. Temple’s letter could have satisfied Palacios had it reflected a purpose of

identifying, evaluating, or planning the safety enhancement of the Eddy Street

crossing, the text of the letter reflects no such purpose. On the contrary, rather than

discussing the nature of the safety problem or weighing the merits of some aspect of

the planned enhancement, the letter merely directs Union Pacific to begin installation

of a new crossing along parameters already determined by the DOTD. Thus, we hold

that the trial court did not commit legal error in ruling that these documents were not

protected by the 23 U.S.C. § 409 privilege.

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Bates Page Numbers 600, 627, 123, 131-134, 599, 137, 138, 141, 598

The DOTD argues that two copies of the Project Notice for Railway-Highway

Master Agreement, dated July 18, 1996, are protected from discovery by 23 U.S.C.

§ 409. We disagree. The document in question merely authorizes Union Pacific to

install two automatic flashing light signals at the Horridge Street crossing and to

close the Eddy Street crossing. In no way was this document compiled or collected

for the purpose of identifying, evaluating, or planning the safety enhancement of

either crossing, and thus it is not protected by 23 U.S.C. § 409.

The DOTD also argues that several copies of the Plan Change and/or Special

Agreement and accompanying memorandum, dated June 19, 1997, are protected from

discovery under 23 U.S.C. § 409. We agree. Here, although the Plan Change

document in question requires five signatures in order to be effective, the document

contains only one such signature. As such, rather than reflecting the implementation

of a change that had already been decided upon before the document was compiled

or collected, the document instead represents the planning stage of such a project. In

effect, these copies lend credence to the DOTD’s position that because planning of

safety enhancement projects is an ongoing process that can continue into the

implementation stage, the applicability of 23 U.S.C. § 409 may extend past the

beginning of work on a safety enhancement project. Because these copies were

compiled or collected for the purpose of planning the safety enhancement of Eddy

Street, they are protected from discovery by the 23 U.S.C. § 409 privilege.

Similarly, several copies of transmittal coversheets and letters forwarding the

Plan Change and/or Special Agreement to Union Pacific for execution and return to

the DOTD are also protected by 23 U.S.C. § 409. These documents were compiled

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or collected for the purpose of planning the safety enhancement of the Eddy Street

railway-highway crossing, pursuant to 23 U.S.C. § 130. Thus, they are subject to the

23 U.S.C. § 409 privilege.

Bates Page Numbers 409, 495, 496, 448-456

The DOTD contends that the trial court committed legal error in allowing

discovery of certain printouts from the DOTD’s database, in violation of 23 U.S.C.

§ 409. We agree. The documents at issue here appear to reflect data compiled for the

purpose of facilitating all stages of the safety enhancement process—including

identification, evaluation, planning, and implementation. To the extent that

information concerning the identification, evaluation, and planning of the Eddy Street

and Horridge Street projects could be shielded practicably from discovery, allowing

discovery solely of information not related to that prohibited subject matter would be

ideal. However, in the absence of such an arrangement, we must hold that these

documents are protected by the 23 U.S.C. § 409 privilege, and thus they are not

subject to discovery.

Bates Page Numbers 183-186, 199, 222-223, 189, 196, 200, 205, 213, 215, 224-225,

563

The DOTD next contends that several copies of a letter, dated April 15, 2003,

from Mayor David Riggins to Mr. Shrewsberry are protected from discovery by 23

U.S.C. § 409. We agree. In the letter in question, Mayor Riggins expresses

opposition to re-closure of the Eddy Street crossing and proposes further discussion

regarding funding for the crossing. As such, we hold that these copies stand as

reports or data compiled or collected for the purpose of planning the safety

enhancement of the Eddy Street crossing, pursuant to 23 U.S.C. § 130, and are thus

12

privileged under 23 U.S.C. § 409. This conclusion is bolstered by the fact that the

trial court elsewhere deemed exact copies of the April 15, 2003, letter—bearing Bates

Page Numbers 192, 216, and 564—to be protected by 23 U.S.C. § 409.

The DOTD further argues that copies of letters from Mayor Riggins to Senators

Breaux and Landrieu, dated April 28, 2003, are privileged under 23 U.S.C. § 409.

We agree. These letters express Mayor Riggins’ opposition to the closing of any

crossings in the Town of Vinton and request federal assistance for funding the

crossings. Therefore, these letters qualify as reports of data compiled or collected for

the purpose of evaluating or planning the safety enhancement of railway-highway

crossings in the Town of Vinton, pursuant to 23 U.S.C. § 130. They are thus

privileged under 23 U.S.C. § 409.

The DOTD also argues that the trial court erred in ruling that several copies of

a letter from Mayor Riggins to Mr. Shrewsberry, dated May 27, 2003, were

discoverable. We agree. The letter in question details Mayor Riggins’ offer, on the

behalf of the Town of Vinton, to contribute up to fifty percent of the cost of installing

the Eddy Street crossing. Thus, this letter is protected from discovery under 23

U.S.C. § 409, as it is a report or data compiled or collected for the purpose of

evaluating or planning the safety enhancement of the Eddy Street crossing.

Bates Page Numbers 193-194, 204, 238-239, 203, 211, 235-237

The DOTD further contends that the trial court erred in ruling that copies of a

series of letters were not protected by 23 U.S.C. § 409. We agree. These letters

consist of correspondence from Senator Landrieu to Mr. Samuel Reid of the

Department of Transportation, dated May 22, 2003; from Mr. Allan Rutter of the

Federal Railroad Administration to Senator Landrieu, dated August 21, 2003; from

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Senator Breaux to Mr. Sean O’Hollaran (hereinafter “Mr. O’Hollaran”) of the United

States Department of Transportation, dated May 21, 2003; and from Mr. Rutter to

Senator Breaux, dated August 21, 2003. These letters meet the requirements for

protection under 23 U.S.C. § 409: they are reports or data compiled or collected for

the purpose of evaluating or planning the safety enhancements of the railway-

highway crossings in the Town of Vinton, pursuant to 23 U.S.C. § 130. Thus, they

are subject to the 23 U.S.C. § 409 privilege.

Bates Page Numbers 242-245, 561-562, 333-334

The DOTD argues that copies of a DOTD transmittal slip from Mr. Temple to

Mr. Karl Finch, dated June 13, 2006, along with attached maps and handwritten notes

regarding the results of a diagnostic review of the Eddy Street crossing performed by

DOTD, are protected under 23 U.S.C. § 409. We agree. These documents are

reports, surveys, or data compiled for the purpose of evaluating and planning the

safety enhancement of the Eddy Street crossing, pursuant to 23 U.S.C. § 130. Thus,

they are protected from discovery.

The DOTD also contends that copies of email correspondence between Mr.

Shrewsberry, Mr. Mark Suarez, Mr. John C. Diaz, and Congressman John, dated

January 8, 2007, are protected under 23 U.S.C. § 409. We agree. These emails are

reports compiled or collected for the purpose of evaluating and planning the safety

enhancement of railway-highway crossings in the Town of Vinton, and they are thus

privileged under 23 U.S.C. § 409.

Bates Page Numbers 124, 638

Finally, the DOTD argues that copies of a single page from a survey of the

railway-highway crossings in Calcasieu Parish should be excluded from discovery,

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pursuant to 23 U.S.C. § 409. We agree. These copies are surveys that were compiled

for the purpose of evaluating and planning the safety enhancement of railway-

highway crossings in Calcasieu Parish, including the two crossings relevant to the

case at bar. Further, these surveys were compiled for the purpose of complying with

23 U.S.C. § 130(d): “Each State shall conduct and systematically maintain a survey

. . . .” Thus, the survey is protected from discovery by 23 U.S.C. § 409.

CONCLUSION:

For the above-stated reasons, this court affirms the interlocutory ruling of the

trial court with respect to the discoverability of the May 6, 1997 letters from Mr.

Rock to Senator Landrieu, Senator Breaux, and Congressman John; the June 3, 1997,

letter from Mr. Temple to Mr. Peterson; and the July 18, 1996 Project Notice for

Railway-Highway Master Agreement. As to all other documents asserted in this writ

application to be privileged under 23 U.S.C. § 409, we reverse the ruling of the trial

court. Costs are to be shared by the DOTD, BNSF, and Union Pacific.

AFFIRMED IN PART; REVERSED IN PART.

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