§ 271.11 - Discovery and admission as evidence of certain information.

§ 271.11 Discovery and admission as evidence of certain information.

Cross Reference

Link to an amendment published at 85 FR 12852, Mar. 4, 2020.

(a) Protected information. Any Except as provided in paragraph (a)(3) of this section, any information compiled or collected after February 17, 2021 solely for the purpose of planning, implementing, or evaluating a risk reduction program under this part shall not be subject to discovery, admitted into evidence, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage. For purposes of this section - :

(1) “Information” includes plans, reports, documents, surveys, schedules, lists, or data, and specifically includes a railroad's analysis of its safety risks under § 271.103(b) and a railroad's statement of mitigation measures under § 271.103(c); and

(2) “Solely” means that a railroad originally compiled or collected the information for the exclusive purpose of planning, implementing, or evaluating a risk reduction program under this part. Information compiled or collected for any other purpose is not protected, even if the railroad also uses that information for a risk reduction program. “Solely” also means a railroad continues to use that information only for its risk reduction program. If a railroad subsequently uses for any other purpose information that was initially compiled or collected for a risk reduction program, this section does not protect that information to the extent that it is used for the non-risk reduction program purpose. The use of that information within the railroad's risk reduction program, however, remains protected. This section does not protect information that is required to be compiled or collected pursuant to any other provision of law or regulation; and

(3) A railroad may include a Confidential Close Call Reporting System (C³RS) program in a risk reduction program established under this part. For Federal or State court proceedings described by this paragraph (a) that are initiated after March 4, 2021, the information protected by this paragraph (a) includes C³RS information a railroad includes in its risk reduction program, even if the railroad compiled or collected the C³RS information on or before February 17, 2021, for purposes other than planning, implementing, or evaluating a risk reduction program under this part.

(b) Non-protected information. This section does not affect the discovery, admissibility, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage of information compiled or collected for a purpose other than that specifically identified in paragraph (a) of this section. Such information shall continue to be discoverable, admissible, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage if it was discoverable, admissible, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage on or before February 17, 2021. Specifically, the types of information not affected by this section include:

(1) Information compiled or collected on or before February 17, 2021;

(2) Information compiled or collected on or before February 17, 2021 and that continues to be compiled or collected, even if used to plan, implement, or evaluate a railroad's risk reduction program; or

(3) Information that is compiled or collected after February 17, 2021, and is compiled or collected for a purpose other than that identified in paragraph (a) of this section.

(c) Information protected by other law or regulation. Nothing in this section shall affect or abridge in any way any other protection of information provided by another provision of law or regulation. Any such provision of law or regulation applies independently of the protections provided by this section.

(d) Preemption. To the extent that State discovery rules and sunshine laws would require disclosure of information protected by this section in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage, those rules and laws are preempted.

(e) Enforcement. This section does not apply to civil or criminal law enforcement proceedings.

[85 FR 9314, Feb. 18, 2020, as amended at 85 FR 12852, Mar. 4, 2020]