Ex Parte State of Highway Dept.

572 So. 2d 389 (1990)

Ex parte STATE of Alabama HIGHWAY DEPARTMENT. (Re Shirley Ann BOONE, et al. v. SOUTHERN RAILWAY COMPANY, et al.)

89-1101.

Supreme Court of Alabama.

September 21, 1990.

Rehearing Denied December 7, 1990.

Jack F. Norton, Chief Counsel, and Jerry L. Weidler and Janie Baker Clarke, for Alabama Highway Dept.

Leah O. Taylor of Taylor & Roberson, Birmingham, for respondent Shirley Ann Boone, et al.

Crawford S. McGivaren, Jr. and Steve A. Tucker of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for respondents Southern Ry. Co., Norfolk Southern Corp. and Alabama Great Southern R. Co.

PER CURIAM.

The petition for a writ of mandamus is denied on the condition that the production of the requested records be made in camera, so that the trial court can determine which of the records, if any, are germane to any matters upon which the plaintiffs might pursue further discovery of evidence that may be admissible at trial.

WRIT DENIED.

HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, and KENNEDY, JJ., concur.

MADDOX, HOUSTON and STEAGALL, JJ., dissent.

MADDOX, Justice (dissenting).

I would grant the writ in this case, because I do not believe that the records sought are properly discoverable.

The writ of mandamus sought by the State of Alabama Highway Department's petition should be issued, because 23 U.S.C. § 409 provides a privilege for the documents described in § 409 and that privilege is a complete bar to the admissibility or discovery of such documents. In addition, the purpose behind 23 U.S.C. § 409 requires the documents described in § 409 to be protected from disclosure. Section 409 prohibits both the admissibility and the discovery of all documents described in the statute. This conclusion is mandated by the language of the statute itself, by opinions interpreting the statute, and by a comparison with other similar statutes and decisions interpreting those statutes.

Although I recognize that material can be discovered if it will lead to the discovery of admissible evidence, it is clear that privileged information is not subject to discovery. Because I believe that the information sought to be discovered here is privileged, I would grant the Alabama Highway Department's petition for writ of mandamus; consequently, I must respectfully dissent.

HOUSTON and STEAGALL, JJ., concur.