Name of Assigned Judge D. Leinenweber Sitting Judge if Other or Magistrate Judge Harry than Assigned Judge
For the reasons stated herein, Defendant BNSF Railway Co.'s Motion for a Protective Order  is granted.
O[ For further details see text below.] Notices mailed by Judicial staff.
Before the Court is Defendant BNSF Railway Co.'s ("BNSF") Motion for a Protective Order. For the reasons that follow, the motion is granted.
This lawsuit arises out of a July 13, 2009, train-auto collision in LaSalle County that killed three members of the Rasmusen family and injured two others. Plaintiff Eric Rasmusen alleges that BNSF was negligent in failing to install additional warning devices at the rural grade crossing where the accident occurred. Five days before the accident, on July 8, 2009, the Illinois Commerce Commission ("ICC") entered an order directing BNSF to install stop signs at the crossing within 30 days of the order and lights and gates within one year. (the "Order"). The Order resulted from an investigation undertaken by the ICC, the Illinois Department of Transportation, the Adams Township Road District, and BNSF.
The Order was preceded by a Stipulated Agreement signed by members of those entities in January and February 2009. The agreement sets forth the plan for improving the crossing, at East 23rd Road near Somonauk, and includes two exhibits. Exhibit A provides data about the crossing, including its surface conditions, the signage at the crossing, and the amount of auto and train traffic. Exhibit B is an estimate of the costs for the project. Ultimately, it was up to the ICC whether to accept the Stipulated Agreement, see 625 Ill. Comp. Stat. 5/18c-7401, which it did through the issuance of the Order. See Stipulated Agreement, § 9, Ex. A to Def.'s Mot. for a Protective Order.
Plaintiff wants to depose BNSF employees who either signed the Stipulated Agreement or have knowledge of the process that led to it. Plaintiff contends that he plans to use this discovery to show that BNSF had notice of the hazard which existed at the crossing, not to prove that a hazardous condition was present. BNSF seeks to bar those depositions and any other evidence of either the Stipulated Agreement or the process that led to it.
Defendant's argument is based on 23 U.S.C. § 409, which provides, in relevant part:
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.
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. Harrison v. Burlington N. R.R., 965 F.2d 155, 157 n.3 (7th Cir. 1992) (quoting Light v. State of N.Y., 560 N.Y.S.2d 962, 965 (N.Y. Ct. Cl. 1990)). Since the predecessor of this statute went into effect, Congress has twice strengthened the protection it offers, first by making it expressly applicable to discovery and later by making it clear ...