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Legal Research Digest 72 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM December 2016 SUMMARY OF FEDERAL LAW RESTRICTING USE OF HIGHWAY SAFETY DATA IN TORT LITIGATION This report was prepared under NCHRP Project 20-06, âLegal Problems Arising Out of Highway Programs,â for which the Transportation Research Board is the agency coordinating the research. The report was prepared under Topic 22-04 by Terri Parker, Nixa, Missouri. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. Background State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. The NCHRP Legal Research Digest series is intended to keep departments up-to-date on laws that will affect their operations. Foreword In 1987, Congress enacted 23 U.S.C. § 409, Discovery and Admission as Evidence of Certain Reports and Surveys, which prohibits the use, in tort litigation, of highway safety data created for purposes related to safety improvements on roads qualifying for federal safety improvement funding. The law since has been amended to clarify and/ or expand its scope. This amendment has generated a large amount of federal and state caselaw interpreting its provisions. Present-day state and local transportation agencies would be aided by a summary of this law, its application, and the large body of interpretative decisions. The sum- mary includes the following: 1. The origin of the law, the reason for its enactment, and its relationship to other similar statutes such as 23 U.S.C. § 402(k)(1). 2. Explanation of the provisions of the law, particularly the safety data governed by the law. 3. The purpose and effect of amendments since 1987. 4. The development of caselaw interpreting and applying the law. 5. Explanation of the 2003 Supreme Court decision, Pierce County v. Guillen, 537 U.S. 120, 123 S. Ct. 720, 154 L. Ed. 610 (2003), upholding the constitutionality of the law, and the effect of Guillen on later caselaw. 6. Current major interpretation and application issues involving the law, including how it is affected by pub- lic records law or how it affects public records law. This digest should be helpful to attorneys, risk man- agers, safety specialists, financial officials, inspectors, and others who have oversight or responsibility for high- way safety. Responsible Senior Program Officer: Gwen Chisholm Smith