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Carpio v. State

Superior Court of New Jersey, Appellate Division

September 19, 2013

CLARY E. CARPIO, Administratrix of the Estate of VICTOR F. CARPIO, deceased, Plaintiff-Respondent,


Argued September 10, 2013

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2399-10.

Robert H. Murphy, Deputy Attorney General, argued the cause for appellants State of New Jersey and State of New Jersey Department of Transportation (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Esther E. Bakonyi, Deputy Attorney General and Mr. Murphy, on the brief).

Ernest P. Fronzuto argued the cause for respondent Clary E. Carpio (Fronzuto Law Group, attorneys; Mr. Fronzuto, of counsel; Casey Anne Cordes, on the brief).

Before Judges Messano, Sabatino, and Hayden.


On leave granted in this wrongful death case, we review the trial court's January 18, 2013 discovery order and ensuing March 26, 2013 order denying reconsideration, which direct the State and the Department of Transportation ("DOT") to furnish plaintiff's counsel with copies of reports of accidents occurring between mileposts 25 and 30 on Interstate 80 for the years 2003 through 2008. The trial court rejected the State defendants' contention that the records sought were absolutely privileged under a federal statute, 23 U.S.C.A. § 409.

For the reasons that follow, we vacate the trial court's order compelling disclosure and remand for (1) further proceedings to develop the record more fully concerning the specific purposes for which the reports are maintained by the DOT, and (2) to enable the trial court to consider in the first instance the potential significance of the Third Circuit's recent opinion in Zimmerman v. Norfolk Southern Corp., 706 F.3d 170 (3d Cir. 2013), construing the scope of the federal statutory privilege.


Plaintiff alleges that on August 4, 2008, her decedent husband, Victor Carpio, was operating a 1999 Ford Ranger when he was involved in a multi-vehicle accident at or around milepost 28.7 on Interstate Route 80 in Morris County. Plaintiff alleges that her husband's Ford was struck by another vehicle that had crossed the grass median into oncoming traffic. According to the complaint, the Ford was overturned by the collision and engulfed in flames, resulting in decedent's death.

Plaintiff filed a complaint against the State, the DOT, and the Ford Motor Company ("Ford") in the Law Division, alleging that they were liable in tort and on other theories for their respective roles in connection with her husband's fatal accident. With regard to the State defendants, plaintiff asserted in the complaint that they were palpably unreasonable in their maintenance of and control over the allegedly dangerous condition of the portion of Route 80 where the collision occurred. See N.J.S.A. 59:4-2. The State defendants jointly filed an answer denying liability. Ford, meanwhile, filed a third-party complaint against several other individuals and an insurance company.[1]

During the course of discovery, plaintiff's counsel sent to the DOT a request for the production of documents, including "[a]ny and all accident reports for Route 80 between mile-markers 25-30." The DOT responded that such documents were confidential and non-disclosable pursuant to 23 U.S.C.A. § 409. That federal statute, in its current amended form, instructs as follows:

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.

[Emphasis added.]

As we explain in Part II, infra, the main purpose of this federal statute is to encourage states to evaluate the safety of their public roadways and to compile and report certain materials and data concerning accidents on those roadways to the federal government without allowing such items to be readily obtained from state highway departments by potential plaintiffs who would want "an effort-free tool in litigation against state and local governments." Pierce Cnty. v. Guillen, 537 U.S. 129, 146, 123 S.Ct. 720, 731, 154 L.Ed.2d 610, 626 (2003).[2]

After learning of the DOT's invocation of privilege, plaintiff's counsel attempted to obtain the records instead from the State Police. He served a subpoena and an Open Public Records Act ("OPRA") request, N.J.S.A. 47:1A-1 to -13, upon the State Police, requesting copies of all reports relating to motor vehicle accidents from 2003 to 2008 on Route 80 between mileposts 25 and 35 in which a vehicle crossed the median. The State Police responded that it would comply with the subpoena upon payment of $21, 077.32 for the time that it claimed would be required to review the requested records.

Plaintiff's counsel then sent a similar but narrower subpoena to the State Police's Traffic Records Unit, seeking reports of accidents from 2003 through 2008 on Route 80 between mileposts 27 and 30 in which a vehicle crossed the median. The Traffic Records Unit replied that the records from 2003 to 2005 had been destroyed pursuant to its six-year document retention schedule, but there were 627 reported accidents from 2006 to 2008 in the requested area. The Traffic Records Unit further stated in its response that reports for that 2006-08 time frame were available to plaintiff at a cost of $10 per report.

Plaintiff's counsel declined at that point to further pursue the accident records from the State Police and pay the quoted charges. The reasonableness of the quoted charges is not a subject of this appeal. Instead, he moved in the trial court to compel the production of those records from the DOT.

The DOT opposed the motion, principally relying upon a certification from William Day, a manager of the DOT's Bureau of Transportation Data and Safety. According to Day's certification, the DOT "collects and compiles data that it utilizes to identify crash prone sites, evaluate the nature of the existing conditions, and aid in the planning and design of safety enhancements." That data is used to create a database, which Day contends is maintained as "mandated by federal law for those states seeking federal aid for highway and road construction and improvement projects." Day also certified that records are collected from various law enforcement agencies within the State, which forward all "reportable" crash reports to the DOT.

Day's certification includes the following key paragraphs, 13 through 16, that attempt to substantiate the DOT's claim of privilege under 23 U.S.C.A. § 409:

13. The reports generated from the data that is collected and compiled by the Bureau of Transportation Data and Safety is used to prepare requests for federal aid not only for the construction and improvement of State roads, but for the construction and improvement of County and Municipal roads, as well. Federal aid is a significant component of the money expended by the New Jersey Department of Transportation on roadway construction and improvement each year with respect to roads owned by the New Jersey Department of Transportation. Federal aid also is a significant component of the money expended each year on the construction and improvement of county and municipal roadways in the State of New Jersey.
14. It is my understanding that while the crash reports are not confidential and available as public records, the fact that NJDOT collects the data by location is confidential information.
15. 23 U.S.C.[A.] § 409 precludes the discovery, admission as evidence, or consideration "for any other purpose" of reports, data and other information compiled by State or Federal highway authorities for specified purposes.
16. NJDOT maintains the documents requested by plaintiff to identify crash locations, and to consider plan and design safety enhancements at certain locations, and to establish priorities in view of the work to be done and the resources available. NJDOT does this for two reasons. First, it provides a valuable tool to help protect the traveling public. Second, it is mandated by the federal government for all states seeking federal aid for street and highway construction and safety enhancement projects. 23 U.S.C.A. §152. Federal aid is an important component to the State in funding many of the numerous construction and safety enhancement projects.

The DOT has also relied upon a separate certification from Sebastian DeAngelo, a senior DOT engineer, attesting that production of the requested accident reports would be "cumbersome, overly burdensome, and insurmountabl[y] difficult[]."[3]

After considering these submissions and the applicable law, the trial court issued an order and a written opinion on January 18, 2013, granting plaintiff's motion to compel disclosure of the records, and ordering their production despite the DOT's invocation of the federal statute. In the course of his analysis, the motion judge recognized that 23 U.S.C.A. § 409 is designed to encourage states to comply with federal record-keeping requirements without providing private litigants with additional tools for use in cases against governmental defendants. The judge nevertheless ordered the DOT to provide the requested accident reports because, as he put it, plaintiff's attempts to obtain the records through other channels had shown that doing so would be "costly, burdensome, and potentially incomplete." By contrast, the judge found that obtaining the records through the DOT was "the least restrictive and least burdensome manner of acquiring the accident reports."

The DOT moved for reconsideration, which the motion judge denied on March 26, 2013. The judge issued a supplemental statement of reasons, further explaining why he rejected the DOT's assertion of an absolute privilege, noting the general tradition under our State law to construe assertions of privilege narrowly. See, e.g., Kinsella v. Kinsella, 150 N.J. 276, 294 (1997). We subsequently granted the State defendants leave to appeal the trial court's orders compelling disclosure.


The sole issue presented in this interlocutory appeal is whether 23 U.S.C.A. § 409 provides the DOT with a privilege allowing it to decline to produce to plaintiff the requested accident reports. As this is mainly a question of law regarding the meaning of a statute, we review the trial court's legal determinations de novo. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). However, as we shall further explain, the proper application of that statute here also turns upon certain factual aspects that are not adequately resolved by the present record, a deficiency which complicates our de novo review.

The United States Supreme Court examined 23 U.S.C.A. § 409 at length in a unanimous opinion in Pierce County, supra, 537 U.S. at 129, 123 S.Ct. at 720, 154 L.Ed.2d at 610. In that case, a woman was killed in an automobile accident at an intersection. In preparation for litigation, her surviving husband sought from the defendant county its records regarding prior accidents at the same intersection. Id. at 136, 123 S.Ct. at 725-26, 154 L.Ed.2d at 620. The county refused, claiming that such documents were protected under 23 U.S.C.A. § 409. Id. at 136, 123 S.Ct. at 726, 154 L.Ed.2d at 620. The county had, in fact, unsuccessfully requested funding from the federal government for the intersection under 23 U.S.C.A. § 152[4] several months prior to the accident, but a renewed request for funding was granted three weeks after the accident. Id. at 136, 123 S.Ct. at 725, 154 L.Ed.2d at 620.

The Supreme Court first discussed in Pierce County the history of § 409, noting that prior to that provision's adoption, Congress had in place various statutes designed to assist the states in identifying needed improvements to transportation infrastructure. Id. at 133, 123 S.Ct. at 724, 154 L.Ed.2d at 618. Of particular note was § 152, which required states to evaluate their public roads and report the associated data to the federal government, in order to receive funding to improve the roads' most dangerous sections. Ibid. Some states, apparently concerned that the reporting requirements of § 152 exposed them to increased risk of civil liability for accidents at hazardous locations, were reluctant to fully comply with § 152 without confidentiality protection. Id. at 133-34, 123 S.Ct. at 724, 152 L.Ed.2d at 619. Consequently, in 1987 Congress adopted § 409 to address those concerns. Id. at 134, 123 S.Ct. at 724, 154 L.Ed.2d at 619.

The Court further recognized in Pierce County that "statutes establishing evidentiary privileges must be construed narrowly because privileges impede the search for the truth." Id. at 144, 123 S.Ct. at 730, 154 L.Ed.2d at 625. Given that § 409 establishes such a privilege, the Court determined that the provision required such a narrow construction. Id. at 145, 123 S.Ct. at 730, 154 L.Ed.2d at 626.

The United States Government, participating as an intervenor in Pierce County through the Solicitor General, argued that § 409 protects information compiled or collected for § 152 purposes, but does not protect information "originally compiled or collected for purposes unrelated to § 152 and that is currently held by the agencies that compiled or collected it." Id. at 144, 123 S.Ct. at 730, 154 L.Ed.2d at 625. In its opinion, the Court adopted the Solicitor General's interpretation, noting that "an accident report collected only for law enforcement purposes and held by the county sheriff would not be protected under § 409 in the hands of the county sheriff, even though that same report would be protected in the hands of the Public Works Department, so long as the department first obtained the report for § 152 purposes." Ibid.

The Court found that the Solicitor General's interpretation of § 409 was sufficiently narrow and properly accounted for the 1995 amendment to § 409, which had broadened the protective language from merely information "compiled" to information "compiled or collected." Id. at 144-46, 123 S.Ct. at 730-31, 154 L.Ed.2d at 625-27 (emphasis added). By so amending the statute, the Court observed, Congress intended to "overcome judicial reluctance to protect under § 409 raw data collected for § 152 purposes." Id. at 146, 123 S.Ct. at 731, 154 L.Ed.2d at 626. The Court therefore adopted the Solicitor General's interpretation of § 409, and held that § 409 protected both the information generated by a government entity for § 152 purposes and information collected for § 152 purposes from other sources. Ibid. However, § 409 does not insulate information compiled or collected by government entities that are not pursuing § 152 objectives. Id. at 145-46, 123 S.Ct. at 730-31, 154 L.Ed.2d at 626. The Court remanded the case for further proceedings to apply this interpretation of the statute. Id. at 147-48, 123 S.Ct. at 732, 154 L.Ed.2d at 627-28.

Subsequent cases have applied § 409 in a similar manner, focusing upon whether the reports or data in question had been compiled or collected for the specific purposes enumerated in that provision and the purposes for which the records had been sought. For example, in Goza v. Parish of West Baton Rouge, 21 So.3d 320 (La. Ct. App. 2009), a state appellate court rejected a state transportation agency's contention that certain accident reports obtained from law enforcement officials were privileged under § 409. In that case, a man drove off a roadway into a ditch, flipping his car and causing serious injuries. Id. at 325. He successfully sued the Louisiana Department of Transportation, alleging that the design, construction, and signage of the road were defective. Ibid. On appeal from the jury verdict and a motion for judgment notwithstanding the verdict, the state agency sought to undo the outcome of trial because, the agency alleged, the trial court had erroneously admitted certain accident reports maintained by the state into evidence. Id. at 326.

The state agency in Goza had created a standard accident report form, and had trained police officers to properly complete the form so the department could fulfill its obligations under 23 U.S.C.A. § 152. Id. at 328. However, the officers themselves filled out the form pursuant to their duty under Louisiana statutes to investigate and report accidents. Ibid. The plaintiff obtained the completed forms from the local sheriff's office. Id. at 326. Given these circumstances, the appellate court found that the state agency's action in creating a form designed to aid it in complying with § 409 was alone insufficient to "transform the normal accident investigation duties of local law enforcement agencies into an act of information compilation and collection for § 152 purposes." Id. at 328 (internal quotation marks omitted). The court therefore found no merit in the state agency's claim that its involvement in the design of the form and its training of the police rendered the completed forms privileged under § 409. Ibid.

In Telegram Publishing Co. v. Kansas Department of Transportation, 69 P.3d 578 (Kan. 2003), the Kansas Supreme Court considered the purview of § 409 in a case where the state department of transportation had denied, on § 409 grounds, a newspaper's repeated requests for certain information regarding a railroad crossing. The court in Telegram first noted that § 409 was designed to protect states from litigants who used the reporting requirements of statutes such as § 152 as "'an effort-free tool in litigation[.]'" Id. at 787-88 (quoting Pierce County, supra, 537 U.S. at 146, 123 S.Ct. at 731, 154 L.Ed.2d at 626). Because it was a newspaper in Telegram seeking information, the Kansas justices did not believe the underlying purpose of § 409 would be met by deeming the requested documents privileged from such a newspaper's request. Id. at 789. Furthermore, the court noted that because there was "no prohibition against disclosure upon a request by a newspaper reporter, " § 409 did not afford a privilege to the department in the face of such a request. Ibid.; accord Newsday, Inc. v. State Dep't of Transp., 780 N.Y.S.2d 402 (N.Y.App.Div. 2004).

In the case before us, the motion judge made no explicit finding as to whether the requested documents were compiled or collected pursuant to § 148 (or former § 152), as the DOT principally claims they were. Instead, noting that § 409 was designed "to ensure that the record-keeping required by the federal funding provision does not provide an additional tool for direct use in private litigation, " the motion judge focused on the fact that plaintiff's attempts to obtain the documents through other channels "have proved that production of those materials would be costly, burdensome, and potentially incomplete." The motion judge therefore determined that the DOT should be compelled to provide the requested documents "[i]n the spirit of [Rule] 4:10-2(g)"[5] because "it is the least restrictive and least burdensome manner of acquiring the accident reports."

The motion judge's analysis of the parties' competing interests relating to the accident record and data prompts us to address a critical threshold question: whether § 409 creates an absolute or only a qualified privilege from disclosure for state transportation authorities like the DOT, where the foundational requirements of the statute have been met. We conclude that, if the predicate conditions are fulfilled, the privilege is absolute and does not yield to competing considerations of a plaintiff's need or convenience. Our conclusion on this point is demonstrated by the text of § 409 itself, which begins with the overarching phrase, "Notwithstanding any other provision of law . . . ." Such "other provision of law" logically would include state rules of civil discovery, and associated case law applying those state-law principles.

In addition, there is nothing in the United States Supreme Court's analysis of § 409 in Pierce County that indicates the privilege is subject to a balancing test or a consideration of the strength of a civil litigant's need. The cases applying the statute have repeatedly treated it as absolute rather than qualified. See, e.g., Cooper v. Pub. Belt. R.R., 839 So.2d 181, 185 (La. Ct. App. 2003) (noting that 23 U.S.C.A. § 409 confers an absolute privilege); Jicarilla Apache Nation v. United States, 60 Fed.Cl. 611, 613 (Fed. Cl. 2004) (explaining that 23 U.S.C.A. § 409 "employ[s] language that leaves no doubt that Congress intended the information in question to be exempt from discovery").

We recognize that describing the § 409 privilege barring disclosure by state transportation agencies as "absolute" is tempered by the fact that the very same reports and data might be obtainable from other state or local agencies that may compile the information for other purposes. But that dichotomy established by Congress was expressly recognized by the Supreme Court in Pierce County, supra, 537 U.S. at 145, 123 S.Ct. at 730-31, 154 L.Ed. at 626-27, and upheld. The essence of the privilege, as the Court stated in Pierce County, was to avoid having the data gathered for the statute's enumerated purposes to become "an effort-free tool in litigation against state and local governments." Id. at 146, 123 S.Ct. at 731, 154 L.Ed.2d at 626 (emphasis added). The statutory scheme does not preclude a requestor from obtaining the same information, but perhaps with more "effort, " from other sources.

At oral argument on the appeal, plaintiff's counsel contended that judges applying § 409 must take into account the availability or unavailability of accident reports and data from other sources. We disagree.

Plaintiff points out that the Supreme Court in Pierce County stated that § 409 "evinces no intent to make [tort] plaintiffs worse off than they would have been had § 152 funding never existed." Id. at 131; 123 S.Ct. at 723, 154 L.Ed.2d at 618. She further points to the Court's explanation that § 409 does not prohibit "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 146, 123 S.Ct. at 731, 154 L.Ed.2d at 626-27. Plaintiff contends that these observations signify that § 409 must be read to allow disclosure when such other potential sources are not viable or are too burdensome. In that regard, plaintiff suggests she is unduly prejudiced by the apparent unavailability of State Police copies of the accident records on the relevant portion of Route 80 predating 2006 and the costs of obtaining the 2006-08 records from that alternative source.

We do not read the Supreme Court's language in Pierce County to impose any limitation upon the privilege created by § 409 for state transportation agencies, where the predicates for that privilege have been fulfilled. To do so would eliminate certainty and predictability in the transportation agencies' reliance upon the privilege when maintaining the records and data for the statute's enumerated purposes, and would also revive a "chilling effect" that Congress manifestly intended to eliminate.

Having concluded that the § 409 privilege is absolute and not subject to countervailing claims of need or convenience, we do have uncertainty about whether, in fact, the DOT has adequately demonstrated in its written submissions the prerequisites for invoking the privilege. Day asserts in his certification that the accident reports and related data in question have been "mandated by the federal government" under 23 U.S.C.A. § 152, [6] but he does not adequately explain the basis for that conclusion.

We recognize that, pursuant to 23 U.S.C.A. § 148(c)(1), states must maintain a highway safety improvement program to be eligible to receive federal aid for highways. Such a program must involve the collection of highway safety data, and reports must be sent to the United States Secretary of Transportation regarding the effectiveness of highway safety improvement projects that a state has undertaken. 23 U.S.C.A. §§ 148(c) and (d). However, it is not entirely clear from the existing record why all of the materials sought by plaintiff from the DOT are within that federal mandate. The Day certification is rather conclusory on this point, and its assumptions and underpinnings have not been explored, either in a deposition or at an evidentiary hearing under N.J.R.E. 104. Such conclusory assertions are unhelpful for meaningful judicial assessment. See, e.g., Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 26 (2004) (disfavoring reliance upon conclusory statements); Monmouth Lumber Co. v. Indem. Ins. Co. of N. Am., 21 N.J. 439, 449 (1956) (same).

In some respects, Day's certification appears to suggest that all accident reports and data maintained by the DOT are held pursuant to a "federal mandate" under § 152, and are therefore covered by the absolute privilege. If that is so, it is puzzling why Day also relies in his certification upon the fact that the material held by the DOT "provides a valuable tool to protect the traveling public" and that it helps the DOT "establish priorities in view of the work to be done and the resources available." These separate contentions relating to the DOT's overall planning appear to be aimed at a different basis for asserting the privilege within § 409, i.e., whether the materials have been compiled or collected "for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds." 23 U.S.C.A. § 409. This latter portion of § 409 is connected to the earlier portion referring to § 148 and other specific federal provisions by the word "or, " signifying the disjunctive. Pine Belt Chevrolet, Inc. v. Jersey Cent. Power & Light Co., 132 N.J. 564, 578 (1993) (noting that "the word 'or' carries with it a natural disjunctive import") (quoting State v. Duva, 192 N.J.Super. 418, 421 (Law Div. 1983)). So, if as Day suggests, the withheld materials are all mandated by § 152 (now § 148) and are thus fully privileged on that basis, it is unclear why Day mentions these alternative reasons under the second portion of § 409 at all. This ambiguity of analysis should be clarified before the trial court.

Earlier this year, the Third Circuit Court of Appeals significantly construed the alternative "second" basis under § 409 in Zimmerman, supra, 706 F.3d at 170, to be limited to particular highway construction projects rather than to a state transportation agency's generic plans for such future construction. In Zimmerman, a motorcyclist collided with a train because his view was obscured by a building adjacent to the tracks, and he brought action against the owner and operator of the railroad track. Id. at 174-75. On appeal from a grant of summary judgment to the defendant, the motorcyclist argued that the district court improperly excluded crossing reports under § 409 that were obtained from a federal database. Id. at 180.

The Third Circuit panel majority noted that § 409 contains two privilege provisions: first, a privilege against discovery of documents that were collected or compiled pursuant to 23 U.S.C.A. §§ 130, 144, and 148; and second, a privilege against discovery of documents that were collected or compiled to develop "'any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds.'" Id. at 181 (quoting 23 U.S.C.A. § 409). The district court in Zimmerman had excluded the crossing reports under the first part of § 409, and the defendant argued that the reports were collected specifically pursuant to § 130, which imposed upon states various safety-related obligations related to railroads. Ibid.

Some of the reports in Zimmerman were collected and reported to the United States Secretary of Transportation by the state under § 130(1), but others were reported by the railroad under 49 U.S.C.A. § 20160. Id. at 182. The Third Circuit therefore made the textually-based conclusion that only the state reports under § 130 were privileged because that provision was cited in § 409. Ibid. However, the railroad reports were not privileged because 49 U.S.C.A. § 20160 was not cited in § 409. Ibid.

Yet more reports in Zimmerman were collected by the state, but the defendant had failed to show that they were collected pursuant to § 130 or any other named provision, so the circuit court considered whether the second part of § 409 nevertheless rendered the reports privileged. Id. at 184.

Recognizing that the language of the latter portion of § 409 was open to interpretation, the Third Circuit majority followed the Supreme Court's admonition in Pierce County that § 409 ought to be construed narrowly. Ibid. The majority therefore rejected an interpretation that "would privilege any document that was collected to improve highway safety" in favor of a narrower interpretation that would privilege only a report collected "with the intent to use it for a particular construction project." Ibid. The court noted that the narrower interpretation was also more faithful to the text of § 409, because the broader interpretation would render the second privilege provision of § 409 largely redundant. Ibid. Because many of the reports in Zimmerman were not collected with a particular project in mind, the court found that they were not privileged under the latter portion of § 409. Ibid. Circuit Judge Aldisert filed a partial dissent in Zimmerman, in which he concluded that the accident records were indeed privileged under § 409 Id. at 193-209

The trial court in this case did not have the opportunity to consider the Third Circuit's reasoning in Zimmerman a case that was not cited to us by counsel in the appellate briefs and was only discussed extemporaneously at oral argument Without necessarily endorsing here the Third Circuit majority's analysis we commend Zimmerman in the first instance to the motion judge's consideration We are mindful that the State defendants' counsel attempted to distinguish Zimmerman at oral argument on appeal because that case involved records maintained by a railroad rather than by a state transportation agency This distinction if it matters at all may be considered by the trial court after appropriate briefing

For these reasons we vacate without prejudice the trial court's orders compelling disclosure from the DOT of the requested records We remand this matter for further proceedings including additional discovery at the discretion of the trial court consistent with this opinion Jurisdiction is not retained.

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