Train Accident Leads to E-Discovery Battle
By: chris.placitella @ Feb 12, 2013
BY ZACK NEEDLES | The Legal Intelligencer | February 12, 2013 — When attorney Mark Goodheart asked opposing counsel for a copy of the surveillance footage captured by a video camera on the front of the train that collided with his client’s truck, he had no idea he was sparking an electronic discovery fight that would last nearly two years.
In Pannunzio v. Norfolk Southern, Goodheart, an attorney with Cohen, Placitella & Roth in Philadelphia, represented plaintiff William M. Pannunzio, who was injured when his delivery truck was hit by a train owned and operated by defendant Norfolk Southern Corp., according to court papers.
Pannunzio’s complaint alleged that Norfolk Southern’s train had failed to sound a proper warning that it was approaching while his truck was stopped on the tracks. He also alleged that the train was travelling at an excessive rate of speed and that the tracks, which were also owned and operated by Norfolk Southern, failed to provide an adequate view of oncoming trains.
According to court documents, the defense, following a hearing on preliminary objections in the Allegheny County Court of Common Pleas in April 2011, showed Goodheart the surveillance footage of the crash on a laptop in one of the courtrooms.
According to Goodheart, the footage showed the view from the front of the train, along with the speed at which the train had been travelling at the time and whether a horn was sounded.
“My thought was, ‘How often do you actually have video of what the litigation’s about?'” Goodheart told the Law Weekly.
But, according to court documents, when Goodheart expressed interest in obtaining a copy of the video, he was told by the defense that the video could only be played using special software called “RailView,” which he would have to purchase from a company called SAIC.
According to court documents, the defense told Goodheart that if he did not wish to purchase the software, he would have to come to Norfolk Southern’s office to view the footage again.
Goodheart contacted SAIC and was told by a representative that in order to use the software, he would have to purchase a $500 license that could only be used on one computer and would expire after one year, according to court documents.
Goodheart told the Law Weekly that to purchase licenses for multiple computers, as well as for the various plaintiffs experts in the case, it would have cost around $2,500.
According to court documents, Goodheart was told by the SAIC representative that Norfolk Southern actually owned the software and could waive the fees if it so desired.
In May 2012, according to court documents, Goodheart called Norfolk Southern’s counsel to inquire about obtaining the software free of charge during the litigation. Norfolk Southern’s attorney told Goodheart he’d get back to him on the issue but never did.
In the fall, Goodheart filed a motion to compel discovery of the video footage.
On September 7, 2012, Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. granted the motion, giving Norfolk Southern 30 days to produce the video footage and the necessary software to allow it to be viewed on five different computers, at no cost to the plaintiffs.
Norfolk Southern first filed a motion for reconsideration of the order, which Wettick denied, and then appealed the issue to the state Superior Court, according to court records.
In the meantime, 30 days passed and Norfolk Southern failed to comply with Wettick’s order, according to Goodheart.
Goodheart filed a motion for sanctions against Norfolk Southern on November 14, alleging that the railroad company was attempting to discourage plaintiffs’ access to discovery materials by charging exorbitant fees to view the surveillance footage.
Goodheart also alleged in the motion that Norfolk Southern had engaged in similar conduct elsewhere in the country, citing the 2012 case Norfolk Southern v. Hartry, in which the Court of Appeals of Georgia ordered the company to produce video footage and the RailView software.
Along with monetary sanctions, the motion also sought sanctions in the form of an order precluding Norfolk Southern from using the footage as evidence and an adverse inference jury instruction at trial.
Norfolk Southern, meanwhile, filed a brief in opposition, arguing that requiring it to provide the footage and software for free constituted unfair cost-shifting.
On November 30, 2012, however, Wettick entered another order, requiring Norfolk Southern to turn over the video and the RailView software within 60 days.
On January 22, about a week ahead of its deadline, Norfolk Southern complied with the order, according to Goodheart.
As of press time, Norfolk Southern’s original appeal of Wettick’s September 7, 2012, order granting the plaintiffs’ motion to compel was still pending before the Superior Court.
Goodheart said he’s unsure what that means now that Norfolk has complied with the order, however.
Leonard Deutchman, general counsel and administrative partner of LDiscovery, said that while it’s routine for discovery materials to require specific software –— for example, Intuit QuickBooks files –— the unique aspect of this case is that the proprietary software at issue was owned by the opposing party.
While widely used products like QuickBooks and even Microsoft Windows are technically “proprietary,” Deutchman said the term is typically reserved in e-discovery to describe technology that is expensive and available to very few people.
“Nobody would grant this motion if it was QuickBooks,” Deutchman said. Deutchman writes an e-discovery column for the Law Weekly.
Goodheart told the Law Weekly he has never encountered another instance in which discoverable video or similar technology was set up the way Norfolk Southern’s footage was.
“Rather than technological advances making discovery of this type of material more difficult, it should actually make it much easier,” Goodheart said.
Norfolk Southern’s attorney, Scott D. Clements of Pion Johnston in Pittsburgh, could not be reached for comment.
Cohen, Placitella & Roth, PC (215) 567-3500