Garcia v. N.M. Dep't of Transp.

535 P.3d 728

Ted Jose GARCIA and Cindy Garcia, Plaintiffs-Appellants/Cross-Appellees,

v.NEW MEXICO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee/Cross-Appellant.

No. A-1-CA-40113

Court of Appeals of New Mexico.

Filing Date: June 26, 2023

Certiorari Denied, September 7, 2023, No. S-1-SC-40023

Keller & Keller, LLC, Michael G. Duran, Samantha L. Drum, Albuquerque, NM, Grayson Law Office, LLC, Brian G. Grayson, Albuquerque, NM, for Appellants

Park & Associates, L.L.C., Alfred A. Park, Lawrence M. Marcus, Albuquerque, NM for Appellee

BUSTAMANTE, Judge, retired, sitting by designation.

{1} The direct appeal in this case involves a federal statutory evidentiary privilege created by 23 U.S.C. § 407 (hereinafter § 407 ).¹ The cross-appeal challenges the district court's denial of a bill of costs. Plaintiffs Ted Jose Garcia and Cindy Garcia appeal the district court's exclusion of the Final Project Prioritization Plan for the NM 599 Corridor (the Plan) pursuant to the privilege. Plaintiffs contend that Defendant New Mexico Department of Transportation (DOT) waived its right to assert the privilege. Alternatively, Plaintiffs contend that the district court improperly applied too broad an interpretation of the privilege. DOT cross-appeals the district court's subsequent bill of costs denial, arguing that the district court erred by failing to include in its order the required "good cause" for the denial. We affirm the district court's exclusion of the Plan, reverse the bill of costs denial, and remand with instructions that the district court file an amended order in which it specifies the reasons for its decision to deny costs for reconsideration.

BACKGROUND

{2} This case arises from a vehicle collision on New Mexico Highway 599 (NM 599) in Santa Fe County, New Mexico that resulted in one death and severe injuries to Plaintiffs. Decedent Arsenio Sanchez failed to yield at the intersection of NM 599 and Via Veteranos Road, colliding with Plaintiffs' vehicle as it was traveling south on NM 599. Plaintiffs sued DOT for personal injuries and loss of consortium, alleging that DOT's inadequate traffic controls and warnings caused the collision. DOT produced the Plan during discovery.

{3} The Plan was prepared for DOT in April 2010 as an aid in prioritizing construction improvements along NM 599. According to the Plan, "[i]mproved access to or across NM 599 is needed for ... all modes of travel as the area continues to develop. There is public perception that improvements are needed to address safety concerns, particularly at existing at-grade intersections." The Plan provides detailed evaluations of alternative construction projects along NM 599, with the purpose of prioritizing "public funding that addresses the access issues and supports economic development, regional transportation and long range planning goals." The Plan prioritizes projects "based on their ability to satisfy the purpose and need, public input, and cost." In addition to the original purpose and need, the Plan considers multiple factors, including safety, as the basis for the need of transportation improvement. The Plan recommends constructing an interchange at the intersection where the accident took place. The Plan observes that this recommendation "would improve the safety at the intersection of C[ounty] R[oad] 70 (Via Veteranos) and NM 599."

{4} Plaintiffs sought to introduce the Plan during trial to demonstrate that DOT was aware of the intersection's dangerous conditions for over five years. DOT responded by filing a motion in limine to exclude admission of the Plan pursuant to § 407. After a hearing on the motion, the district court ruled in favor of DOT and ordered Plaintiffs not to introduce the Plan into evidence or allude to the Plan during trial. A three-day jury trial ensued, and the jury rendered its verdict in favor of DOT. Following entry of the verdict, DOT filed a bill of costs requesting $23,058.84 pursuant to Rule 1-054(D) NMRA. The district court denied the request.

{5} Plaintiffs appeal the exclusion of the Plan, and DOT cross-appeals the denial of their bill of costs.

DISCUSSION

I. The District Court Did Not Err in Excluding the Plan

{6} We generally "review discovery orders and initial determinations regarding the applicability of privileges for an abuse of discretion." Albuquerque J. v. Bd. of Educ. of Albuquerque Pub. Schs. , 2019-NMCA-012, ¶ 15, 436 P.3d 1. The district court's construction of a privilege, however, is reviewed de novo. Id. In reviewing the application of a federal privilege, our duty is to give effect to the intent of Congress; we may find guidance to do so in federal case law interpreting the privilege. See State v. Branham , 2004-NMCA-131, ¶ 11, 136 N.M. 579, 102 P.3d 646 ("Our duty, when interpreting federal statutes, is to give effect to the intent of the legislative body. In this instance, we endeavor to give effect to the intent of Congress. When doing so, we may find guidance in federal case law interpreting federal statutes." (citations omitted)).

{7} We first address Plaintiffs' arguments that DOT waived the privilege by producing the Plan during the discovery process and by not producing a privilege log. Plaintiffs argue that DOT produced the Plan "without any claim that the document was privileged ... fail[ing] to preserve any claim to privilege," and thus "the ... Plan should have been admissible at trial." DOT responds that the Plan was "available to the public, so no harm was done in producing it in discovery." We agree with DOT because § 407 provides that protected documents "shall not be subject to discovery or admitted into evidence" (emphasis added), indicating the privilege is not lost solely because the evidence has been produced in discovery. In addition, § 407 does not impose a confidentiality component for the privilege to apply. Compare § 407, and Zimmerman v. Norfolk S. Corp. , 706 F.3d 170, 180, 183 (3d Cir. 2013) (holding that a report was privileged under § 407 even though it was publicly available through the National Crossing Inventory, a database of highway-railroad crossing in the United States), with Rule 11-511 NMRA ("A person who possesses a privilege against disclosure of a confidential matter or communication waives the privilege if the person voluntarily discloses or consents to disclosure of any significant part of the matter or communication.").

{8} Furthermore, DOT need not produce a privilege log to assert the § 407 privilege. See Albuquerque J. , 2019-NMCA-012, ¶ 21, 436 P.3d 1 (explaining that a party asserting a privilege may provide support therefor "through a variety of mechanisms, including submission of a privilege log or an affidavit, in camera interview, or other means as required by the circumstances of a particular case" (internal quotation marks and citation omitted)). One purpose of producing a privilege log is to provide the district court sufficient details to make an independent judicial determination regarding the applicability of the privilege. See Pina v. Espinoza , 2001-NMCA-055, ¶ 24, 130 N.M. 661, 29 P.3d 1062 (asserting that failure to prepare a sufficiently detailed privilege log thwarts meaningful independent judicial review). The Plan's availability allowed the district court to determine whether § 407 applied based on the Plan itself, obviating the need for a privilege log describing the Plan's content. See Albuquerque J. , 2019-NMCA-012, ¶ 21, 436 P.3d 1 (noting that the circumstances of a particular case may determine the means through which a party supports its assertion of privilege). Accordingly, DOT did not waive its assertion of the § 407 privilege by producing the Plan during discovery or by failing to produce a privilege log.

{9} Next, we turn to whether the district court erred in its application of § 407, which provides that

[n]otwithstanding 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 [§§] 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing [f]ederal-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.

In Pierce County, Washington v. Guillen , 537 U.S. 129, 133-36, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003), the United States Supreme Court explored the background and purpose of § 407, though it did not apply the relevant part of the privilege. The Court explained that, beginning in the late 1960s, "Congress ... endeavored to improve the safety of our Nation's highways by encouraging closer federal and state cooperation with respect to road improvement projects." Pierce , 537 U.S. at 133, 123 S.Ct. 720. Thus, Congress established several federal programs to assist the states in identifying and evaluating roads and highways in need of safety improvements and to provide funding for those projects. Id. (citing §§ 130 (Railway-Highway Crossings), 144 (National Bridge and Tunnel Inventory and Inspection Standards), and 148² (Highway Safety Improvement Program)).

{10} The Court explained that one of those programs, the Highway Safety Improvement Program, required any state that wanted federal funds for safety improvement projects to "undertake a thorough evaluation of its public roads." Pierce , 537 U.S. at 133, 123 S.Ct. 720. Shortly after the program was adopted, the states objected to the lack of confidentiality regarding their compliance measures because they "feared that diligent efforts to identify roads eligible for aid under the [p]rogram would increase the risk of liability for...