Norfolk S. Ry. Co. v. Hartry

• Decision Date: 29 June 2012
• Docket Number: No. A12A0649.,A12A0649.
• Parties: NORFOLK SOUTHERN RAILWAY COMPANY v. HARTRY et al.
• Court: Georgia Court of Appeals

316 Ga.App. 532

729 S.E.2d 656

12 FCDR 2195

NORFOLK SOUTHERN RAILWAY COMPANY

v.HARTRY et al.

No. A12A0649.

Court of Appeals of Georgia.

June 29, 2012.

Eileen M. Crowley, Atlanta, Amanda Rodman Smith, Macon, Ronald Keith Wray II, for Norfolk Southern Railway Company.

Michael J. Warshauer, Douglas Campbell Dumont, Atlanta, for Winford Hartry.

BLACKWELL, Judge.

On June 16, 2010, a train operated by Norfolk Southern Railway Company collided with a tractor-trailer in Clayton County. Pursuant to an agreement between Norfolk Southern and Science Applications International Corporation, Inc. (“SAIC”), the train was equipped with an event data recorder known as “RailView” that is owned by SAIC and licensed to Norfolk Southern. The RailView device records digital images of the train's movement, as well as data about the train's speed, direction, horn activity, and braking activity.

Winford Hartry, who was the engineer of the train, was injured as a result of the collision. After Hartry and his wife sued Norfolk Southern and others, they sought discovery from Norfolk Southern of the data recorded by the train's RailView system around the time of the collision. Norfolk Southern agreed to provide a copy of the data disk to the Hartrys, but only under certain conditions, and Norfolk Southern advised the Hartrys that they would only be able to view the information on the RailView data disk if they “obtain[ed] the proprietary Rail[V]iew Playback software directly from SAIC” for $500. Norfolk Southern claimed that it could not provide the Hartrys with a copy of the data disk without imposing these conditions because it owned nothing more than a license to the SAIC software, that the software is necessary to view the data, and Norfolk Southern's agreement with SAIC did not allow it to provide the software to the Hartrys or anyone else.

The Hartrys filed a motion to compel discovery, and Norfolk Southern filed a motion for a protective order to prevent the Hartrys from requiring it to produce the RailView data except under the conditions it had offered. The Court below granted the motion to compel and denied the motion for a protective order. Its order requires Norfolk Southern to provide the RailView video and data recordings “in some usable form to the [Hartrys]” either by obtaining permission from SAIC to produce the data to the Hartrys (presumably through Norfolk Southern's purchase of a $500 license for the benefit of the Hartrys), by providing the Hartrys with a computer with the necessary software, or by producing the data through “any other method the parties may agree to....” ¹ Norfolk Southern now appeals from that ruling, claiming that the court below erred in grantingthe Hartrys' motion to compel.² BUT WE WILL NOT REverse a trial court's ruling on discovery matters absent a clear abuse of discretion. Ambassador College v. Goetzke, 244 Ga. 322, 323(1), 260 S.E.2d 27 (1979); Dempsey v. Kaminski Jewelry, 278 Ga.App. 814, 815, 630 S.E.2d 77 (2006); see also Vaughn & Co. v. Saul, 143 Ga.App. 74, 80(4), 237 S.E.2d 622 (1977) (“Historically it has been the policy of Georgia appellate courts not to interfere with the trial judge's broad discretion granted to him under the discovery provisions of the Civil Practice Act.”). We find no abuse of discretion here.

Pursuant to OCGA § 9–11–26(b)(1), parties to a lawsuit “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Here, the relevance of the materials sought to be discovered, which relate to the functioning of the train before and during the collision, is not disputed. Indeed, the information included in the RailView data is not only directly relevant, but it appears to be critical to the claims asserted by the Hartrys. But while the parties apparently agree about the relevance of the RailView data, they do not agree about who should bear the expense of providing the Hartrys with access to it.

Under OCGA § 9–11–34(a), any party may request that another party “produce and permit the party making the request ... to inspect and copy [discoverable] documents....” And when, as here, the document to be produced is a “data compilation” from which information can be obtained, the producing party is tasked with translating the document “through detection devices into reasonably usable form.” ³ Id. So, while a requesting party does not have the right to unrestricted and direct access to a producing party's data compilations,⁴OCGA § 9–11–34(a) allows the requesting party to inspect and copy the data after the producing party has translated the data into a reasonably usable form. And while the requesting party generally must bear the burden of its own inspection and copying,⁵ the producing party may be required to bear the expense of producing the documents and, when necessary, translating them into reasonably usable form.

The burden of discovery on the producing party will, therefore, vary from case to case, but courts have the discretion under OCGA § 9–11–26(c) to protect the producing party against, among other things, “undue burden or expense” by a protective order that restricts discovery or requires that the requesting party be permitted to conduct the discovery only upon specified terms and conditions. See Simmons v. Community Renewal, etc. LLC, 286 Ga. 6, 8(3), 685 S.E.2d 75 (2009); see also Bloodworth v. Bloodworth, 225 Ga. 379, 392(8), 169 S.E.2d 150 (1969).⁶ Unless the trial court has clearly abused its discretion, however, we will defer to its conclusion about whether a protective order should be granted. See McKesson HBOC v. Adler, 254 Ga.App. 500, 505(3), 562 S.E.2d 809 (2002).

Here, Norfolk Southern filed a motion for a protective order, but the court below concluded that Norfolk Southern would not be saddled with an “undue burden or expense” if it was required to bear the cost of producing the RailView data in a form that would allow the Hartrys to make their own copy of the data. It appears undisputed that, at most, producing the data in a reasonably usable form would require Norfolk Southern to pay SAIC $500 for an additional license for the Hartrys to use the SAIC software.⁷ We cannot say that the court below clearly abused its discretion in making such a determination, especially given the crucial nature of the evidence, the relatively minor cost of the license when compared to the amount at stake in the lawsuit,⁸ and the fact that it was Norfolk Southern's decision to equip its locomotive with a licensed device for recording data so that it would only be able to provide that data to third parties upon payment of a license fee.⁹

It is true, of course that a party ordinarily must finance its own litigation, see Baum v. Village of Chittenango, 218 F.R.D. 36, 40–41(2)(B) (N.D.N.Y.2003), and no one should mistake our decision today as a retreat from that principle or as a generalized endorsement of cost shifting. We hold only that, in the circumstances presented here, the decision below was no clear abuse of discretion.

Judgment affirmed.

MIKELL, P.J., and MILLER, J., concur.

1. We note that, although the court below denied Norfolk Southern's motion for a protective order, it did place several conditions on the Hartrys' use of the data, ordering them to file any of the digital video data under seal and...