Washington Law Review


Megan Walseth


To prove that dangerous roadways caused their traffic accidents, plaintiffs often seek discovery of highway information from state and local governments. Title 23 U.S.C. § 409 bars discovery of some of that information; it creates an evidentiary privilege for materials and data collected for certain federal highway safety funding programs. For example, state and local governments receiving funds through the federal hazard elimination program codified at 23 U.S.C. § 152 must maintain an engineering survey of all state public roads. Section 409, in turn, makes certain data and materials compiled or collected for § 152 exempt from discovery and inadmissible at trial. Courts have differed in interpreting § 409's scope, with some state courts initially construing the privilege narrowly. Congress amended the statute in 1995, expressing its intent to broaden those narrow interpretations. In Guillen v. Pierce County, the Washington State Supreme Court held that this amendment—interpreted as a significant expansion of the privilege—exceeded Congress' authority under the United States Constitution and violated state sovereignty. This Note argues that the court's approach to interpreting § 409 disregarded judicial principles that favor narrowly construing evidentiary privileges and avoiding constitutional holdings. A narrow interpretation of the 1995 amendment would protect the integrity of state tort systems while fulfilling congressional intent and adhering to established principles for construing statutes and evidentiary privileges.

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