Opinion
No. 19-cv-2070-CJW
2021-05-11
Hannah JESSKI, as Executrix and Personal Representative of the Estate of Dixie Blazier; Glenda Mundis; and Robert Mundis, Plaintiffs, v. DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION, Defendant.
Larry Bendesky, Pro Hac Vice, Robert William Zimmerman, Pro Hac Vice, Scott A. Fellmeth, Pro Hac Vice, Saltz Mongeluzzi Barrett & Bendesky PC, Philadelphia, PA, Steven V. Lawyer, Des Moines, IA, for Plaintiffs. James D. Helenhouse, Stephen Joseph Rynn, Thomas C. Paschalis, Fletcher & Sippel LLC, Chicago, IL, for Defendant.
Larry Bendesky, Pro Hac Vice, Robert William Zimmerman, Pro Hac Vice, Scott A. Fellmeth, Pro Hac Vice, Saltz Mongeluzzi Barrett & Bendesky PC, Philadelphia, PA, Steven V. Lawyer, Des Moines, IA, for Plaintiffs.
James D. Helenhouse, Stephen Joseph Rynn, Thomas C. Paschalis, Fletcher & Sippel LLC, Chicago, IL, for Defendant.
ORDER
Mark A. Roberts, United States Magistrate Judge
Before me is Plaintiffs’ Motion to Compel Documents Identified in Defendant Dakota, Minnesota & Eastern Railroad Corporation's Privilege Log. (Doc. 91.) Defendant Dakota, Minnesota and Eastern Railroad ("DM&E") timely filed a resistance. (Doc. 92.) I conclude a hearing is unnecessary to resolve this dispute. LR 7(c).
I. BACKGROUND
The background facts leading to this case have been recited in other orders of the Court. (Docs. 59, 90.) For purposes of this motion, the relevant facts are that Dixie Blazier died in a collision involving a motor vehicle and a train. The collision occurred at approximately 11:54 a.m. on December 1, 2017 when Ms. Blazier was the front-seat passenger in a vehicle driven by her husband, James Blazier, who also died in the collision. (Doc. 25 at 4 ¶¶ 18, 22-23, 26.) Plaintiff Glenda Mundis was the backseat passenger and was injured in the collision. (Id. ¶ 25.) Mr. Blazier was driving north on Zinnea Avenue in Nora Springs, Iowa at the time of the collision, which occurred when his vehicle collided with a single DM&E engine traveling west at the grade crossing where Zinnea Avenue crosses over DM&E's mainline track ("the crossing"). (Id. ¶¶ 18-19, 22.)
Second Amended Complaint.
At the time of the collision, warning devices at the crossing consisted of "flashing light signals, bells, and crossbuck signs." (Doc. 93 at 5 ¶ 6.) On June 6, 2018, an Iowa Department of Transportation ("IADOT") Crossing Grade Manager contacted several DM&E public works employees, including Mr. Daniel Sabatka, via email "and requested that DM&E apply for funding and approval to modify the signals at [the crossing] pursuant to 23 U.S.C. § 130." (Id. ¶ 5.) According to Mr. Sabatka, "[u]nder the Section 130 program, federal funds are allocated annually through IADOT for the installation of warning devices, upgrade of existing warning devices and crossing closures." (Id. ¶ 7.) On July 10, 2018, DM&E submitted a Section 130 application for funds to modify the signal system at the crossing per IADOT's request. (Id. ¶ 8.) On August 18, 2020, DM&E was granted approval to make the requested signal system modifications. (Id. at 6 ¶ 9.) A September 28, 2020 amendment allows the allotment of Section 130 funds for DM&E to install cantilevered flashing light signals, bells, and automatic gates at the crossing. (Id. ) $236,675.80 in federal funds are allotted to DM&E for this project. (Id. ¶ 10.)
Amended Declaration of Daniel Sabatka, DM&E Director of Projects and Public Works.
Plaintiffs’ instant motion seeks certain items identified on DM&E's March 26, 2021 privilege log (Def. Ex. A). (Doc. 91-1 at 5.) These items have been designated privileged by DM&E under to 23 U.S.C. Section 409, which protects from discovery certain information related to "identifying, evaluating, or planning the safety enhancement of ... railway-highway crossings" pursuant to Section 130. Plaintiffs insist they are entitled to this information because information related to DM&E's knowledge about the danger of the crossing is relevant to refute DM&E's defense that Mr. Blazier was the sole cause of the collision. (Id. at 10.)
II. DISCUSSION
This dispute involves the scope of documents Defendant may withhold pursuant to 23 U.S.C. Section 409, which protects from discovery certain information related to the development of safety improvement projects. More particularly Section 409 states:
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 ... railway-highway crossings, pursuant to sections 130, 144, and 152 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.
The plain language of the statute excludes from evidence all data compiled for purposes of highway and railroad crossing safety enhancement and construction for which a state receives federal funding. Other courts have recognized that the underlying intent of the statute is to "facilitate candor in administrative evaluations of highway safety hazards," and to prohibit federally required record-keeping from being used as a "tool ... in private litigation."
Robertson v. Union Pac. R.R. Co. , 954 F.2d 1433, 1435 (8th Cir. 1992) (internal citations omitted; ellipses in original); Rasmusen v. White , No. 10 C 6171, 2011 WL 5179894, at *1 (N.D. Ill. Oct. 31, 2011) ("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.") (quotation omitted).
The Supreme Court addressed the limits of Section 409 ’s protections in Pierce Cnty., Wash. v. Guillen , 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003). At issue in Guillen were the parameters of the discovery of information about accidents that had occurred at an intersection where the respondent's wife died in an automobile accident. Id. at 134-36, 123 S.Ct. 720. The Court explained that to be eligible for Section 103 funds, a state or local government must undertake a thorough evaluation of its public roads under 23 U.S.C. Section 152. Id. at 133, 123 S.Ct. 720. The Court held that although evidentiary privileges must be construed narrowly because they impede the search for the truth, in this instance, the narrowest reading of the statute—the reading asserted by the respondent—would have rendered the 1995 amendments to Section 409 a nullity. Id. at 145, 123 S.Ct. 720 (citations omitted). The Court held that Section 409
protects all reports, surveys, schedules, lists, or data actually compiled or collected for § 152 purposes, but does not protect information that was originally compiled or collected for purposes unrelated to § 152 and that is currently held by the agencies that compiled or collected it, even if the information was at some point "collected" by another agency for § 152 purposes.
...
[This reading] gives effect to the 1995 amendment by making clear that § 409 protects not just the information an agency generates, i.e., compiles, for § 152 purposes, but also any information that an agency collects from other sources for § 152 purposes. And, it also takes a narrower view of the privilege by making it inapplicable to information compiled or collected for purposes unrelated to § 152 and held by agencies that are not pursuing § 152 objectives. We therefore adopt this interpretation.
Our conclusion is reinforced by the history of the 1995 amendment. As we have already noted, the phrase "or collected" was added to § 409 to address confusion among the lower courts about the proper scope of § 409 and to overcome judicial reluctance to protect under § 409 raw data collected for § 152 purposes.... By amending the statute, Congress wished to make clear that § 152 was not intended to be an effort-free tool in litigation against state and local governments. Compare, e.g., Robertson v. Union Pacific R. Co. , 954 F.2d 1433, 1435 (C.A. 8 1992) (recognizing that § 409 was intended to "prohibit federally required record-keeping from being used as a ‘tool ... in private litigation’ ") (quoting Light v. New York , 149 Misc. 2d 75, 80, 560 N.Y.S.2d 962, 965 (Ct. Cl. 1990) ), with authorities cited supra, at 725. However, the text of § 409 evinces no intent to make plaintiffs worse off than they would have been had § 152 funding never existed. Put differently, there is no reason to interpret § 409 as prohibiting 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 144-46, 123 S.Ct. 720 (final ellipses in original).
Thus, where the privilege applies, it is absolute. See Carpio v. State , No. A-4397-12T3, 2013 WL 5268962, at *7 (N.J. Super. Ct. App. Div. Sept. 19, 2013) ("[T]here is nothing in the United States Supreme Court's analysis of § 409 in Guillen that indicates the privilege is subject to a balancing test or a consideration of the strength of a civil litigant's need") (citing Cooper v. Public Belt R.R. , 839 So. 2d 181, 185 (La. Ct. App. 2003) (noting that 23 U.S.C. § 409 confers an absolute privilege); Jicarilla Apache Nation v. United States , 60 Fed. Cl. 611, 613 (2004) (explaining that 23 U.S.C. § 409 "employ[s] language that leaves no doubt that Congress intended the information in question to be exempt from discovery")).
Guillen addressed records in the possession of a public entity that was seeking funding under 23 U.S.C. Section 152. 537 U.S. at 136, 143, 123 S.Ct. 720. However, courts have recognized that Section 409 ’s broad protections also apply to railroads. See Powers v. CSX Transp., Inc. , 177 F. Supp. 2d 1276, 1277 n.1 (S.D. Ala. 2001) (finding that "[t]he passive voice utilized by the statute is broad enough to encompass railroads, and the railroads’ significant role in identifying and correcting rail crossing hazards, recognized by statute and regulation, is sufficient to demonstrate Congress's intent that railroads be protected."); Fry v. Southern Pac. Transp. Co. , 715 So.2d 632, 637 (La. App. 1998) (noting that Section 409 applies not only to state agencies, but also to railroads) (citations omitted); see also Madden v. Antonov , No. 4:12-CV-3090, 2014 WL 5662267, at *1-2 (D. Neb. Nov. 4, 2014) ; Rasmusen , 2011 WL 5179894, at *3-4.
Regarding the scope of the privilege, Madden is instructive. Madden addressed the overly-broad application of Section 409 ’s privilege when it found that while the majority of items at issue fell under the scope of the privilege, some "merely reflect[ed] scheduled meetings and the names of attendees or invitees" and others referred to the general development of a broader grain elevator development and associated infrastructure in the area and did not address safety at all and therefore were not privileged. 2014 WL 5662267, at *2. Thus, not all items that are tangentially-related to a project touching on railroad safety will fall under the scope of Section 409.
A. Plaintiffs’ Arguments
Plaintiffs make no arguments related to specific items on DM&E's privilege log. Rather, they argue that the listed "emails, letters, agendas, handouts, estimates, and agreements" are not "reports, surveys, schedules, lists or data" subject to the protection of Section 409. (Doc. 91-1 at 9.)
Plaintiffs read Section 409 too narrowly. Correspondence and other items generated in conjunction with the pursuit and evaluation of highway safety projects eligible for federal funding are privileged under Section 409. Madden , 2014 WL 4295288, at *8 (emails, correspondence, and other documents privileged); Rasmusen , 2011 WL 5179894, at *3-4 (publicly-available stipulated agreement and order to install stop signs at crossing within 30 days and further safety measures within a year protected as was information of mere existence of agreement); Rodenbeck v. Norfolk & W. Ry. Co. , 982 F. Supp. 620, 623-24 (N.D. Ind. 1997) (correspondence privileged); Shots v. CSX Transp., Inc. , 887 F. Supp. 204, 205-06 (S.D. Ind. 1995) (correspondence, proposed plans, drawings, photographs, and invoices related to the crossing project all privileged under Section 409 ); see also Harrison v. Burlington N. R.R. Co. , 965 F.2d 155, 160 (7th Cir. 1992) (testimony on contents of letter on subject of railroad crossing safety improvements privileged); Sawyer v. Ill. Cent. Gulf R.R. Co. , 606 So. 2d 1069, 1072-73 (Miss. 1992) (letter, hazard rank inventory, and testimony regarding conditions at crossing all privileged under Section 409 ). The Eighth Circuit has given Section 409 a broad reading by affirming a trial court's decision to exclude from trial a newspaper article that was based on excluded Section 409 evidence. See Robertson , 954 F.2d at 1435.
Plaintiffs also argue that Powers , 177 F. Supp. 2d 1276 provides the proper basis for deciding the instant case. (Doc. 91-1 at 8.) Powers distinguished between information compiled or collected to identify or evaluate potential accident sites, plan safety enhancements of crossings, and develop improvement projects, which presumably satisfy the statute's purpose of "identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings" and information compiled or collected to implement a project, which do not. Id. at 1278-79. Thus, Plaintiffs argue, many items on DM&E's privilege list are likely not privileged because they relate to the implementation of the new crossing. However, I agree with DM&E that Powers is an outlier and that most courts apply Section 409 ’s privileges broadly. (Doc. 92 at 9.) Moreover, one of the other cases Plaintiffs cite for support employs a dubious analysis of the interplay between Sections 409 and 152. See Shanklin v. Norfolk S. Ry. Co. , 173 F.3d 386, 397 (6th Cir. 1999), rev'd on other grounds, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). Shanklin relied on the difference between the approval of projects covered by Section 409 and the reporting requirements that states and the Secretary of Transportation have under 23 U.S.C. Sections 130, 144, and 152. Id. at 396-97. Shanklin noted that the states’ annual reports must include "compilations and analysis of extensive data, and [are] the basis for the annual report that the Secretary of Transportation must file with the Congress." Id. at 397. Shanklin reasoned that Section 409 prohibits those " ‘reports, surveys, schedules, lists, or data compiled or collected’ from being discovered and admitted into evidence. Section 409 does not, however, mention the Secretary's approval of any project as to which [this information has] been ‘compiled or collected,’ although both §§ 144 and 152 explicitly provide for the Secretary to issue approvals for these projects." Id. Therefore, Shanklin found that project approval was not barred from discovery or admissibility. Id.
The problem with the reasoning of Shanklin is that while Section 152, to which it points throughout the decision, does not mention approval, it does state the following:
(g) Each State shall report to the Secretary of Transportation ... on the progress being made to implement safety improvement projects for hazard elimination and the effectiveness of such improvements. Each State report shall contain an assessment of the cost of, and safety benefits derived from, the various means and methods used to mitigate or eliminate hazards and the previous and subsequent accident experience at these locations. The Secretary of Transportation shall submit a report to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives ... on the progress being made by the States in implementing the hazard elimination program.... The report shall include, but not be limited to, the number of projects undertaken, their distribution by cost range, road system, means and methods used, and the previous and subsequent accident experience at improved locations.
23 U.S.C. § 152(g) (emphasis added). "[P]rogress being made to implement safety improvement projects for hazard elimination" and "projects undertaken," all indicate projects that have been approved. "Effectiveness" assumes approval and implementation. Thus, project approval and implementation information would likely be included in the required reports and any underlying items. Therefore, I respectfully disagree with the reasoning of the Shanklin court and with the Powers approach to this issue. These approaches are at odds with the broad approach to Section 409 protection taken by the Eighth Circuit.
B. Application of Section 409 to Defendant's Privilege Log
To facilitate this analysis, I have added a column to DM&E's Exhibit A—Supplemental Privilege Log. DM&E did not assign each document on the privilege log a unique identifier, such as a Bates number or a letter. Indeed, many documents had duplicative numbers. A renumbered DM&E Exhibit A is attached to the end of this order as Attachment A. Throughout this order, documents will be referred to by their corresponding item numbers on Renumbered Exhibit A.
I have used the word "item" instead of "document" to avoid confusion with references to Court-assigned docket numbers, which are referred to by the abbreviation, "Doc."
There is no dispute that the crossing qualifies as a railway-highway crossing or that $236,675.80 in Section 130 funds are allotted to DM&E for the post-collision enhancement at the crossing. Thus, the crossing project, itself, is covered by 23 U.S.C. Section 409. The only question is whether items on DM&E's privilege log are privileged. As discussed above, the privilege is broad: correspondence and items other than "reports, surveys, and schedules" can be privileged under Section 409 if they are related to the crossing project. Even items that rely on these items as source materials can then be privileged. See Robertson , 954 F.2d at 1435 (newspaper article based on privileged source material).
DM&E has withdrawn its privilege objections to items 028 and 068-074 and will produce those items. Most of the remaining items at issue are emails and attachments to emails that are clearly related to funding, approval, details, and the final agreement for the crossing project. These items are protected under Section 409. In addition, DM&E claims that the Health Services’ employee records of two employees are protected from disclosure based on previous orders I issued in this case and DM&E's arguments proffered in conjunction with the motions resulting in those orders. (See Docs. 80, 88, 90.) The law of the case doctrine "requires courts to adhere to decisions made in earlier proceedings in order to ensure uniformity of decisions, protect the expectations of the parties, and promote judicial economy." Gander Mountain Co. v. Cabela's, Inc. , 540 F.3d 827, 830 (8th Cir. 2008) (quoting United States v. Bartsh , 69 F.3d 864, 866 (8th Cir. 1995) ). DM&E is correct that previous discovery orders have become law of the case and cover the disclosure of these records. Therefore, items 082 and 083 are also not discoverable.
Some items on DM&E's privilege log, however, appear to be public items that were merely attached to emails. These items require more discussion.
Some of the items on the privilege log were attached to various emails and concerned the 2020 or 2021 "Winter Meeting." (Doc. 92-1 at 3.) The winter meetings that are often mentioned in the privilege log appear to be meetings between IADOT, DM&E, and sometimes others to discuss safety. (See, e.g. , item nos. 029, 032, 033.) To be sure, some of the items seem to be specific to DM&E and even to the crossing project, but some are generic. For example, DM&E is claiming privilege for the following items:
| Court Item Number | DM&E Description |
|---|---|
| 032 | Attachment to 2021 Winter Meeting email consisting of 2020 Annual Snow Plow Guidance letter from IADOT to all city, county, IADOT drivers |
| 033 | Attachment to 2021 Winter Meeting email consisting of IADOT letter to all cities and counties regarding instructions for handling of festivals expected to increase volume of people around railroad crossings |
| 034 | Attachment to 2021 Winter Meeting email consisting of IADOT letter to all city and county road grader operators regarding guidance for traveling over railroad crossings |
| 043 | Attachment to 2020 Winter Meeting email consisting of 2019 Annual Snow Plow Guidance letter from IADOT to all city, county, IADOT drivers |
| 048 | Attachment to 2020 Winter Meeting email consisting of IADOT letter to all cities and counties regarding instructions for handling of festivals expected to increase volume of people around railroad crossings |
| 050 | Attachment to 2020 Winter Meeting email consisting of IADOT letter to all city and county road grader operators regarding guidance for traveling over railroad crossings |
| 132 | Attachment – Copy of Chapter 812 of Iowa Code |
DM&E does not state why it is claiming privilege for these items, other than on the basis of Section 409. DM&E appears to be relying on Robertson ’s prohibition on allowing into evidence raw data that has been used pursuant to Section 130 for purposes of monitoring and improving highway railroad crossing safety. 954 F.2d at 1435. I find that items 032, 033, 034, 043, 048, and 050 are items created by IADOT in the pursuit of monitoring and improving highway safety and were first obtained by DM&E for Section 152 purposes. See Guillen , 537 U.S. at 146, 123 S.Ct. 720 (information collected by public works agency first obtained for Section 152 purposes is privileged, even if same information would not be privileged in hands of law enforcement); 23 U.S.C. § 152(a)(2)(B) ("In carrying out paragraph (1), a State may, at its discretion--develop and implement projects and programs to address the hazards.") These items are privileged. On the other hand, item 132 is a section of the Iowa Code, which is clearly not privileged.
There is another small group of items that seem innocuous, at best. Generic thank you notes, emails noting "out of office" or new contact information, and notes indicating delay in getting signatures due to power outages that do not contain substantive information related to the crossing project seem less likely to be privileged than the meeting schedules and names of meeting attendees at issue in Madden . 2014 WL 5662267, at *2. Thus, items 021, 022, 062, and 075 are likely not privileged. However, in an abundance of caution, they will be included in the in-camera inspection discussed below.
The thank you email in item 054 is more substantive and specifically mentions the Section 130 agreement for the crossing project at issue in case. Thus, I find that the thank you email numbered item 054 is privileged.
DM&E has designated items 063-067 as both privileged under Section 409 and irrelevant because they are not related to the instant case or the crossing project. I agree that the items are likely related to Section 130 projects ("downthread of Section 130 communications"). However, even if they were not related to Section 130 projects, they are not related to the crossing project and are therefore irrelevant and not subject to discovery in this case. See Fed. R. Civ. P. 26(b)(1) ("Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ....") (emphasis added). Items 063-067 are not discoverable. Lastly, there is a group of items whose descriptions are unhelpful and therefore I am unable to decide if they are privileged.
| Court Item Number | DM&E Description |
|---|---|
| 030 | Attachment to 2021 Winter Meeting email listing contact information of Iowa County Engineers |
| 031 | Attachment to 2021 Winter Meeting email containing IADOT "Need Answers" pamphlet listing contact information for various state government divisions |
| 035 | Attachment to 2021 Winter Meeting email titled Railroad Crossing Programs Explanations, covering basics of Section 130 and crossing surfacing projects and state programs relating to same |
| 036 | Attachment – 2021 Railroad Crossing Inventory Phasing Schedule Map |
| 037 | Attachment – DME/CP Construction and Maintenance Hwy. Project Winter Meeting 2021 table |
| 038 | Attachment – 2021 Tentative Primary Schedule |
| 040 | Attachment – 6-20-20 DME Surface Projects table |
| 045 | Attachment to 2020 Winter Meeting email containing IADOT "Need Answers" pamphlet listing contact information for various state government divisions |
| 046 | Attachment – DME Highway Projects 1.7.20 spreadsheet |
| 049 | Attachment to 2020 Winter Meeting email covering basics of Section 130 and crossing surfacing projects and state programs relating to same |
| 052 | Attachment to Winter 2020 conference email listing contact information of all Iowa County Engineers |
Items 030, 031, 045, and 052 are publicly-available names of state employees and "need answers" pamphlets listing names of state divisions. It is unclear if these lists and pamphlets are publicly available or if they were compiled specifically for some Section 130 or 152 objective. Publicly-available information can be privileged if compiled and collected for Section 152 purposes. Guillen , 537 U.S. at 130, 123 S.Ct. 720.
I could not find these resources by doing a cursory internet search.
The titles of items 035 and 049 refer to "the basics" of Section 130 projects and appear to be brochures or similar items detailing state programs related to those projects, including instructions or guidance on how the state uses Section 130 funds and information about the state programs involved. This is not proprietary information. It is no secret that Iowa participates in the federal Section 130 funding scheme. See IOWADOT, Highway-Railroad Crossing Safety Program, iowadot.gov/iowarail/safety/federal-aid-crossing-safety-program. IADOT explains the federal/state cost-sharing to the public and invites the public to report problem crossings to the state on a Section 130 Project Request Form. Id. (The "Project Request Form" button is a hyperlink to the Section 130 Project Request Form.). Iowa even publicly posts lists of pending applications and projects. See id. (Applications and Awards (Approved by the Iowa Transportation Commission) sections contain links to projects). Based on the description currently before the Court, these items may not be privileged. However, for the same reasons noted in the above paragraph, it is unclear whether these items are privileged because I do not know if these items contain compilations of raw materials originally gathered for Section 130 and 152 purposes. Finally, there is nothing in the descriptions of the rest of the items in this chart that indicates the items are related to the instant case or even Section 130 projects. Therefore, before I can decide whether these items are privileged, DM&E must provide the items to the Court in-camera. For each such item, DM&E may include a one-paragraph explanation describing the reasons it believes the privilege applies.
The following chart sums up my conclusions.
| Privileged Items | Nonprivileged Item | Irrelevant Items | Withdrawn Items | Items that Require In-camera Review |
|---|---|---|---|---|
| 001-020 | 132 | 063-067 | 028 | 021-22 |
| 023-027 | 068-074 | 030-031 | ||
| 029 | 035-038 | |||
| 032-034 | 040 | |||
| 039 | 045-046 | |||
| 041-044 | 049 | |||
| 047-048 | 052 | |||
| 050-051 | 062 | |||
| 053-061 | 075 | |||
| 076-131 | ||||
| 133 |
C. Plaintiffs’ Relevance Argument
The above analysis did not directly address Plaintiffs’ argument that Plaintiffs do not seek DM&E's privileged items to assign liability, but rather to rebut DM&E's defense that Mr. Blazier was the sole cause of the collision. (Doc. 91-1 at 10.) As discussed, privilege under Section 409 is absolute. See Carpio , 2013 WL 5268962, at *7. Courts are not required to assess the strength of litigants’ needs when applying the privilege. Id. Accordingly, Plaintiffs’ asserted need for the items does not change their discoverability.
III. CONCLUSION
For the reasons set forth herein, Plaintiffs’ Motion to Compel Discovery (Doc. 91) is granted in part and denied in part.
• Defendant DM&E shall have until May 21, 2021 to produce nonprivileged items; and
• DM&E must produce to the Court in-camera for the Court's review by May 21, 2021 items 021, 022, 030, 031, 035-038, 040, 045, 046, 049, 052, 062, and 075.
• DM&E's RENUMBERED Exhibit A is attached to this order as Attachment A.
IT IS SO ORDERED this 11th day of May, 2021.
ATTACHMENT A
Supplemental Privilege Log of Defendant Dakota, Minnesota & Eastern Railroad. Corp.
Court # No. Document Description Date 001 O1 Email from IADOT to DM&E attaching 8/13/20 23 U.S.C. § 409 Zinnia Ave. agreement, sign and return 002 O1 Attachment -Section 130 agreement relating 8/13/20 23 U.S.C. § 409 to subject crossing 003 O2, O7 Email from DM&E to IADOT and DM&E 8/21/20 23 U.S.C. § 409 attaching revised estimate for cantilever portion of Section 130 project at subject crossing 004 O2, O6, Email from IADOT to Rail Signal Systems 8/20/20 23 U.S.C. § 409 O7, S6, and DM&E offering thanks for work on S7, S8, cantilever portion of Section 130 project at S9, S12 subject crossing 005 O2, O6, Email from Rail Signal Systems to IADOT, 8/20/20 23 U.S.C. § 409 O7, S6, Rail Signal Systems and DM&E regarding S7, S8, work on cantilever estimate for Section 130 S9, S10, project at subject crossing S12 006 O2, O6, Email from IADOT to Rail Signal Systems 8/20/20 23 U.S.C. § 409 O7, S6, and DM&E regarding inclusion of cantilever S7, S8, as part of Section 130 project at subject S9, S10, crossing S11, S12 007 O2, O6, Email from Rail Signal Systems to IADOT, 8/20/20 23 U.S.C. § 409 O7, S6, DM&E, and Rail Signal Systems regarding S7, S8, executed Section 130 agreement for subject S9, S10, crossing and safety review S11, S12 008 O2, O6, Internal Rail Signal Systems email 8/20/20 23 U.S.C. § 409 O7, S6, forwarding email from DM&E to DM&E and S7, S8, Rail Signal Systems attaching executed S9, S10, Section 130 agreement for subject crossing S11, S12 and IADOT authorization letter 009 O2, O6, Email from DM&E to DM&E and Rail 8/19/20 23 U.S.C. § 409 O7, S6, Signal Systems attaching executed Section S7, S8, 130 agreement for subject crossing and S9, S10, IADOT authorization letter
S11, S12, L7 010 O2, O6, Email from Brian Osborne regarding Zinnia 8/13/20 23 U.S.C. § 409 O7, O9, Ave. agreement signature S6, S7, S8 S9, S10, S11, S12, L7 011 O3, O8 Email from DM&E to IADOT and DM&E 11/22/19 23 U.S.C. § 409 attaching estimate for Section 130 signal project at subject crossing 012 O3, O5 Attachment -Signal estimate for Section 130 11/22/19 23 U.S.C. § 409 project at subject crossing 013 O4 Email from IADOT to DM&E, Floyd County 9/28/20 23 U.S.C. § 409 and IADOT attaching fully executed amendment to Section 130 agreement relating to subject crossing 014 O4 Attachment — fully executed Section 130 9/28/20 23 U.S.C. § 409 agreement amendment relating to subject crossing 015 O5, O8 Email from DM&E to IADOT attaching 8/12/20 23 U.S.C. § 409 estimate for Section 130 signal project at subject crossing 016 O6, S7 Email from DM&E to Rail Signal Systems, 9/17/20 23 U.S.C. § 409 DM&E and IADOT regarding revised. Estimate for Section 130 project at subject crossing 017 O6, S6, Email from Rail Signal Systems to DM&E 9/17/20 23 U.S.C. § 409 S7, S8, and IADOT regarding amendment approval S12 018 O6, S6, Email from Rail Signal Systems to DM&E 8/21/20 23 U.S.C. § 409 S7, S8, and Rail Signal Systems attaching revised S12 estimate for Section 130 project at subject crossing
019 O7 Email from IADOT to DM&E attaching 8/24/20 23 U.S.C. § 409 amendment to Section 130 agreement relating to subject crossing 020 O7 Attachment — unexecuted amendment to 8/24/20 23 U.S.C. § 409 Section 130 agreement relating to subject crossing 021 O8 Email from DM&E to IADOT. Thank You 8/13/20 23 U.S.C. § 409 022 O8 Email from IADOT to DM&E regarding 8/13/20 23 U.S.C. § 409 power outage at IADOT manager's residence causing delay in getting Section 130 agreement relating to subject crossing drafted 023 O9 Email from IADOT to DM&E regarding 8/17/20 23 U.S.C. § 409 provision of Section 130 agreement for subject crossing to Nora Springs government for signature 024 O9 Email from DM&E to IADOT and DM&E 8/17/20 23 U.S.C. § 409 attaching signed Section 130 agreement for subject crossing 025 O9 Internal DM&E email forwarding signed 8/15/20 23 U.S.C. § 409 Section 130 agreement for subject crossing 026 S1, S5 Email from DM&E to IADOT attaching 9/25/20 23 U.S.C. § 409 Section 130 agreement amendment executed by DM&E for subject crossing 027 S1, S5 Attachment — partially executed Zinnia Ave. 9/25/20 23 U.S.C. § 409 agreement amendment 028 S2, S14, Email from IADOT to DM&E regarding 7/16/19 Withdrawn. This S15, S16, fiscal year 2021 projects — 3 projects document has S17 been produced. See DME 3050. 029 S3 Email from IADOT to DM&E attaching 1/14/21 23 U.S.C. § 409 documents for Winter Meeting. 1/19/21 including list of Section 130 projects with project at subject crossing among them 030 S3 Attachment to 2021 Winter Meeting email 1/14/21 23 U.S.C. § 409 listing contact information of Iowa County Engineers
031 S3 Attachment to 2021 Winter Meeting email 1/14/21 23 U.S.C. § 409 containing IADOT "Need Answers" pamphlet listing contact information for various state government divisions 032 S3 Attachment to 2021 Winter Meeting email 1/14/21 23 U.S.C. § 409 consisting of 2020 Annual Snow Plow Guidance letter from IADOT to all city, county, IADOT drivers 033 S3 Attachment to 2021 Winter Meeting email 1/14/21 23 U.S.C. § 409 consisting of IADOT letter to all cities and counties regarding instructions for handling of festivals expected to increase volume of people around railroad crossings 034 S3 Attachment to 2021 Winter Meeting email 1/14/21 23 U.S.C. § 409 consisting of IADOT letter to all city and county road grader operators regarding guidance for traveling over railroad crossings 035 S3 Attachment to 2021 Winter Meeting email 1/14/21 23 U.S.C. § 409 titled Railroad Crossing Programs Explanations, covering basics of Section 130 and crossing surfacing projects and state programs relating to same 036 S3 Attachment — 2021 Railroad Crossing 1/14/21 23 U.S.C. § 409 Inventory Phasing Schedule Map 037 S3 Attachment — DME/CP Construction and 1/14/21 23 U.S.C. § 409 Maintenance Hwy. Project Winter Meeting 2021 table 038 S3 Attachment — 2021 Tentative Primary 1/14/21 23 U.S.C. § 409 Schedule 039 S3 Attachment to 2021 Winter Meeting email 1/14/21 23 U.S.C. § 409 titled DME Section 130 Projects that lists DM&E Section 130 projects in Iowa 040 S3 Attachment — 6-20-20 DME Surface Projects 1/14/21 23 U.S.C. § 409 table 041 S3 Attachment to Winter 2021 meeting email 1/14/21 23 U.S.C. § 409 entitled DME 2021 Winter Meeting Agenda
and listing agenda for IADOT-DM&E meeting, including Section 130 projects 042 S4 Email from IADOT to DM&E attaching 1/6/20 23 U.S.C. § 409 documents for Winter Meeting, 1/17/20, including list of Section 130 projects with project at subject crossing among them 043 S4 Attachment to 2020 Winter Meeting email 1/6/20 23 U.S.C. § 409 consisting of 2019 Annual Snow Plow Guidance letter from IADOT to all city, county, IADOT drivers 044 S4 Attachment — DME Section 130 spreadsheet 1/6/20 23 U.S.C. § 409 045 S4 Attachment to 2020 Winter Meeting email 1/6/20 23 U.S.C. § 409 containing IADOT "Need Answers" pamphlet listing contact information for various state government divisions 046 S4 Attachment — DME Highway Projects 1.7.20 1/6/20 23 U.S.C. § 409 spreadsheet 047 S4 Attachment to Winter 2020 meeting email 1/6/20 23 U.S.C. § 409 entitled DME 2020 Winter Meeting Agenda and listing agenda for IADOT-DM&E meeting, including Section 130 projects 048 S4 Attachment to 2020 Winter Meeting email 1/6/20 23 U.S.C. § 409 consisting of IADOT letter to all cities and counties regarding instructions for handling of festivals expected to increase volume of people around railroad crossings 049 S4 Attachment to 2020 Winter Meeting email 1/6/20 23 U.S.C. § 409 covering basics of Section 130 and crossing surfacing projects and state programs relating to same 050 S4 Attachment to 2020 Winter Meeting email 1/6/20 23 U.S.C. § 409 consisting of IADOT letter to all city and county road grader operators regarding guidance for traveling over railroad crossings
051 S4 Attachment — Crossing Surface Repair 1/6/20 23 U.S.C. § 409 spreadsheet 052 S4 Attachment to Winter 2020 conference email 1/6/20 23 U.S.C. § 409 listing contact information of all Iowa County Engineers 053 S4 Email from IADOT to IADOT and DM&E 10/16/19 23 U.S.C. § 409 regarding 1/17/20 Winter Meeting Conference Call to discuss Section 130 projects and other projects 054 S5 Email from IADOT to DM&E offering 9/25/20 23 U.S.C. § 409 thanks for providing amendment to Section 130 agreement for subject crossing executed by DM&E 055 S6, S12 Email from IADOT to DM&E and Rail 9/17/20 23 U.S.C. § 409 Signal Systems attaching Section 130 agreement amendment 056 S6 Attachment — Zinnia Ave. agreement 9/17/20 23 U.S.C. § 409 amendment 057 S12 Email from DM&E to IADOT, Rail Signal 9/17/20 23 U.S.C. § 409 Systems regarding DM&E review and approval of Section 130 agreement amendment 058 S13, Kr1 Email from IADOT to DM&E and IADOT 7/15/19 23 U.S.C. § 409 attaching list of projects for Crossing Surface Repair and Section 130 programs, including Section 130 project at subject crossing 059 S13, Kr1 Attachment — Spreadsheet of DM&E 7/15/19 23 U.S.C. § 409 resurfacing and Section 130 projects, including subject crossing 060 S13, Kr1 Email from DM&E to IADOT and DM&E 7/15/19 23 U.S.C. § 409 responding to below request to discuss surfacing and Section 130 projects, generally 061 S13, Kr1 Email from IADOT to DM&E regarding call 7/3/19 23 U.S.C. § 409 to discuss IADOT programs for crossing
resurfacing and Section 130 signal projects, generally 062 S13, Kr1 Email from DM&E to IADOT and DM&E 7/3/19 23 U.S.C. § 409 (by virtue of being regarding Jim Krieger retirement and Dan downthread of Section 130 Sabatka contact information for future communications; it does not itself relate correspondence on public projects to the subject crossing and this is also irrelevant) 063 S13, Kr1 Email from IADOT to DM&E, UP, Palo Alto 7/3/19 23 U.S.C. § 409 (by virtue of being Engineer and IADOT regarding crossings not downthread of Section 130 on Crossing Surface Repair program queue, communications; it does not itself relate including one over DM&E track at a location to the subject crossing and this is also unrelated to the subject litigation irrelevant) 064 S13, Kr1 Email from IADOT to IADOT and UP with 7/3/19 23 U.S.C. § 409 (by virtue of being identifying UP crossings in response to email downthread of Section 130 below communications; it does not itself relate to the subject crossing or DM&E and thus is also irrelevant) 065 S13, Kr1 Email from IADOT to IADOT and UP 7/1/19 23 U.S.C. § 409 (by virtue of being stating IADOT used an incorrect UP email downthread of Section 130 address in email below communications, it does not itself relate to the subject crossing or DM&E and thus is also irrelevant) 066 S13, Kr1 Response email from IADOT to IADOT and 7/1/19 23 U.S.C. § 409 (by virtue of being UP regarding identification of other UP downthread of Section 130 crossings needing IADOT attention or communications; it does not itself relate resurfacing funding to the subject crossing or DM&E and thus is also irrelevant) 067 S13, Kr1 Internal IADOT email regarding crossings in 7/1/19 23 U.S.C. § 409 (this email started a Emmetsburg and other crossings thread that was eventually forwarded to DM&E in conjunction with the above discussions of Section 130 projects; it does not itself relate to the subject crossing and thus is also irrelevant) 068 S14, S17 Email from DM&E to IADOT and DM&E 8/5/19 Privilege claim under 23 U.S.C. § advising IADOT proceed with 2021 409 is being withdrawn document crossings listed for funding will be produced. 069 S15 Email from IADOT to DM&E seeking 8/5/19 Privilege claim under 23 U.S.C. § confirmation DM&E will fund projects 409 is being withdrawn, document will be produced. 070 S16 Email from IADOT to DM&E phone call 7/16/19 Withdrawn: email and attachments has follow-up attaching project applications been produced as DME 3058-64 071 S16 Attachment Application for Rockingham 7/16/19 Withdrawn, email and attachments has Rd. project been produced as DME 3058-64
072 S16 Attachment — Application for Zinnia Ave. 7/16/19 Withdrawn; email and attachments project has been produced as DME 3058-64. 073 S16 Attachment — Application for B-40 project 7/16/19 Withdrawn; email and attachments has been produced as DME 3058-64. 074 S17 Email from IADOT to DM&E regarding 8/5/19 Privilege claim under 23 U.S.C. § 2021 crossing reminder 409 is being withdrawn; document will be produced. 075 K1 Email from IADOT to DM&E out of office 7/10/18 23 U.S.C. § 409 (Ex. 2 to Sabatka Dep.) 076 K1, Kr3 Attachment — Section 130 project request 7/10/18 23 U.S.C. § 409 Zinnia Ave. (Ex. 2 to Sabatka Dep.) 077 K1, L12, Email from DM&E to IADOT attaching 7/10/18 23 U.S.C. § 409 L13, L14, Section 130 project request application (Ex. 2 L15, Kr2, to Sabatka Dep.) Kr3 078 K1, L12, Email from IADOT to DM&E attaching 6/6/18 23 U.S.C. § 409 L13, L14, Section 130 (Ex. 2 to Sabatka Dep.) L15, Kr2, Kr3 079 K1, L12, Email from IADOT to DM&E and IADOT 6/6/18 23 U.S.C. § 409 L13, L14, regarding Zinnia Ave. signal system (Ex 2 to L15, Kr2, Sabatka Dep.) Kr3 080 M1 FRA Incident Report Highway-Rail Grade 49 U.S.C. § 20903 and Crossing Accident/Incident Report, provided 49 C.F.R. § by DM&E to the FRA following the incident 225.7 081 M2 Floyd County Crossing File, obtained by 23 U.S.C. § 409 DM&E's counsel on 10/29/2020. Contains: • 2020 IADOT letter concerning availability of Section 130 funds for upcoming year, criteria for highway authorities' selection of crossings for Section 130 projects, copy of Chapter 812 of Iowa Code, and list of DM&E crossings in Floyd County with accident predictor ratios • 8/18/20 email from IADOT to DM&E regarding state authorization to proceed with Section 130 project and Section 130
agreement for subject crossing, and attaching the foregoing authorization (an 8/18/20 letter from IADOT to DM&E) and agreement (fully executed on 8/18/20) • Iowa Department of Revenue Tax Exemption Certificate and Authorization Letter (attachment to Section 130 agreement) • 12/9/19 IADOT Diagnostic On-Site Safety Review (attachment to Section 130 agreement) • 11/15/19 cost estimate provided by Rail Signal Systems Corporation (attachment to Section 130 agreement) • 3 internal IADOT emails from 9/25/20 regarding execution of amendment to Section 130 agreement • 9/28/20 email from IADOT to DM&E regarding execution of amendment to Section 130 agreement to include costs missing from original agreement • Agreement Amendment (fully executed 9/28/20) • 8/21/20 cost estimate from Rail Signal Systems Corporation 082 M3 Health Services File of [Name Redacted by See Dkt. 80, 88 Court] 083 M4 Health Services File of [Name Redacted by See Dkt. 80, 88 Court] 084 L1 Email from IADOT to DM&E regarding 11/27/19 23 U.S.C. § 409 2020 diagnostic review and signal inspection in conjunction with Section 130 project at subject crossing 085 L2 Email from DM&E to Rail Signal Systems 11/6/19 23 U.S.C. § 409 and DM&E regarding signal request estimate
for Section 130 project at subject crossing and attaching IADOT letter 086 L3 IADOT letter to DM&E authorizing 11/6/19 23 U.S.C. § 409 preliminary engineering work to begin on Section 130 project at subject crossing 087 L4 DM&E email regarding Section 130 safety 1/28/21 23 U.S.C. § 409 projects and correspondence from IADOT regarding inactive list 088 L4, L16 Email from IADOT to IADOT and DM&E 1/28/21 23 U.S.C. § 409 regarding submission of bill to FHWA for Section 130 projects at subject crossing and one other crossing 089 L5 Email from IADOT to DM&E and IADOT 6/6/18 23 U.S.C. § 409 regarding Nora Spring crossing safety review (see Exhibit 2 to Sabatka dep.) 090 L6 Email from DM&E to IADOT attaching 2/9/21 23 U.S.C. § 409 Zinnia Ave. project invoices 091 L6 Attachment — DM&E invoice to IADOT for 2/9/21 23 U.S.C. § 409 Section 130 project at subject crossing dated 2/8/21 092 L6 Attachment — DM&E invoice to IADOT for 2/9/21 23 U.S.C. § 409 Section 130 project at subject crossing dated 2/8/21 (2) 093 L6 Attachment — Rail Signal Systems invoice to 2/9/21 23 U.S.C. § 409 DM&E for Section 130 project at subject crossing dated 10/16/20 094 L6 Attachment — Rail Signal Systems invoice to 2/9/21 23 U.S.C. § 409 DM&E for Section 130 project at subject crossing dated 11/18/20 095 L6 Attachment — Rail Signal Systems invoice to 2/9/21 23 U.S.C. § 409 DM&E for Section 130 project at subject crossing dated 1/5/21
096 L6 Attachment — Rail Signal Systems invoice to 2/9/21 23 U.S.C. § 409 DM&E for Section 130 project at subject crossing dated 1/14/20 097 L7 Internal DM&E email exchange relating to 8/27/20 23 U.S.C. § 409 execution of Section 130 Agreement, drainage in vicinity of existing bungalow and whether to modify land around existing bungalow or relocate bungalow in conjunction with Section 130 project 098 L7 Internal DM&E email exchange relating to 8/27/20 23 U.S.C. § 409 execution of Section 130 Agreement, drainage in vicinity of existing bungalow and whether to modify land around existing bungalow or relocate bungalow in conjunction with Section 130 project 099 L7 Email from Rail Signal Systems to DM&E 8/20/20 23 U.S.C § 409 and Rail Signal Systems attaching fully executed Zinnia Ave. agreement, please provide material ship date 100 L8 Email from IADOT to DM&E regarding 7/28/20 23 U.S.C § 409 billing practices for Section 130 projects to maintain Federal Highway Administration active status 101 L8, L9 Email from DM&E to IADOT and DM&E 7/28/20 23 U.S.C. § 409 regarding billing practices for Section 130 projects to maintain Federal Highway Administration active status 102 L8, L9 Email from IADOT to DM&E and IADOT 7/21/20 23 U.S.C. § 409 regarding billing practices for Section 130 projects to maintain Federal Highway Administration active status, listing of projects containing subject crossing 103 L10 Email from IADOT to DM&E and IADOT 11/19/20 23 U.S.C. § 409 regarding presence of utility representative at diagnostic studies for Section 130 projects, including one at subject crossing 104 L10, L11 Email from IADOT to DM&E and IADOT 11/16/20 23 U.S.C. § 409 regarding scheduled times for 2021/2022
diagnostic reviews, including that of subject crossing 105 L10, L11 Email from DM&E to IADOT and DM&E 11/13/20 23 U.S.C. § 409 regarding dates/times for diagnostic reviews at crossings slated for Section 130 projects 106 L10, L11 Email from IADOT to DM&E and IADOT 11/12/20 23 U.S.C. § 409 regarding dates/times for diagnostic reviews at crossings slated for Section 130 projects 107 L10, L11 Email from DM&E to IADOT and DM&E 11/11/20 23 U.S.C. § 409 regarding dates/times for diagnostic reviews at crossings slated for Section 130 projects 108 L10, L11 Email from IADOT to DM&E and IADOT 11/10/20 23 U.S.C. § 409 regarding dates/times for diagnostic reviews at crossings slated for Section 130 projects 109 L10, L11 Email from IADOT to DM&E regarding 11/10/20 23 U.S.C. § 409 google earth locations for diagnostic studies for Section 130 projects 110 L12, Kr2 Email from IADOT to DM&E and IADOT 7/19/18 23 U.S.C. § 409 regarding addition of crossing applications to be scored for Section 130 funding 111 L13 Email from IADOT to DM&E and IADOT 7/11/18 23 U.S.C. § 409 regarding processing applications and pre-diagnostics for Section 130 project at subject crossing 112 L13, L14 Email from DM&E to IADOT and DM&E 7/11/18 23 U.S.C. § 409 describing half roadway gates in response to reference to same in Section 130 application and emails relating to subject crossing 113 L13, L14, Email from IADOT to DM&E and IADOT 7/10/18 23 U.S.C. § 409 L15 regarding half roadway gates referenced in Section 130 application and emails relating to subject crossing 114 L16 Internal DM&E email regarding billing for 2/18/21 23 U.S.C. § 409 Section 130 projects at subject crossing and one other crossing in light of IADOT communication regarding requirements for
Federal Highway Administration active status 115 L16 Internal DM&E email forwarding email with 2/17/21 23 U.S.C. § 409 billing codes for Section 130 projects at subject crossing and one other crossing for FHWA active status 116 L16 DM&E email, invoices completed and done 2/17/21 23 U.S.C. § 409 for active status 117 L16 DM&E email, confirm invoice sent to keep 2/17/21 23 U.S.C. § 409 project funds active 118 L16 Internal DM&E email regarding billing in for 2/4/21 23 U.S.C. § 409 subject crossing and additional crossing for maintenance of active FHWA status for Section 130 projects 119 L17 Excel Item — Zinnia Ave. grade crossing n/a 23 U.S.C. § 409 survey report form 120 L18 Internal DM&E email regarding crossings to 4/27/15 23 U.S.C. § 409 consider for Section 130 application 121 L19 Internal DM&E email regarding crossings to 4/27/15 23 U.S.C. § 409 consider for Section 130 application 122 M5 IADOT file on subject crossing produced to 23 U.S.C. § 409 DM&E's counsel on March 20, 2018. Contains 2017 IADOT letter concerning availability of Section 130 funds for upcoming year, criteria for highway authorities' selection of crossings for Section 130 projects, copy of Chapter 812 of Iowa Code, and list of DM&E crossings in Floyd County with accident predictor ratios. 123 Kr4 Email from IADOT to DM&E, BNSF, 9/20/18 23 U.S.C. § 409 Alliant Energy, Progressive Rail, Burlington Junction Railway, UP, Iowa Northern, Iowa Interstate and other unknown recipients attaching (1) IADOT 2018 letter concerning availability of Section 130 funds for upcoming year, criteria for highway authorities' selection of crossings for Section 130 projects; (2) copy of Chapter 812 of
Iowa Code; and (3) list of all public railroad crossings in Iowa with accident predictor ratios. 124 Kr4 Attachment — IADOT 2018 letter concerning 9/17/18 23 U.S.C. § 409 availability of Section 130 funds for upcoming year 125 Kr4 Attachment — Copy of Chapter 812 of Iowa 23 U.S.C. § 409 Code 126 Kr4 Attachment — List of all public railroad 9/20/19 23 U.S.C. § 409 crossings in Iowa with accident predictor ratios 127 Kr5 Email from IADOT to DM&E, BNSF, 9/26/17 23 U.S.C. § 409 Alliant Energy, Progressive Rail, Burlington Junction Railway, UP, Iowa Northern, Iowa Interstate and other unknown recipients attaching (1) IADOT 2017 letter concerning availability of Section 130 funds for upcoming year, criteria for highway authorities' selection of crossings for Section 130 projects; (2) copy of Chapter 812 of Iowa Code; and (3) list of all public railroad crossings in Iowa with accident predictor ratios. 128 Kr5 Attachment — IADOT 2017 letter concerning 9/20/17 23 U.S.C. § 409 availability of Section 130 funds for upcoming year 129 Kr5 Attachment — Copy of Chapter 812 of Iowa 23 U.S.C. § 409 Code 130 Kr5 Attachment — List of all public railroad 9/26/17 23 U.S.C. § 409 crossings in Iowa with accident predictor ratios 131 Kr6 IADOT 2016 letter concerning availability of 9/30/16 23 U.S.C. § 409 Section 130 funds for upcoming year, criteria for highway authorities' selection of crossings for Section 130 projects; 132 Kr6 Attachment — Copy of Chapter 812 of Iowa 23 U.S.C. § 409 Code 133 Kr6 Attachment — List of all public railroad 10/4/16 23 U.S.C. § 409 crossings in Iowa with accident predictor ratios