A PRACTITIONER’S NOTES ON ON-BOARD LOCOMOTIVE DIGITAL VIDEO RECORDERS (aka Locomotive Videocameras)
Railroad crossing litigation is changing with the modernization of railroad equipment. While event recorder data and dispatch audiotapes are still critical pieces of evidence, there are now several others that need to be sought and explored by plaintiffs in discovery. One such item is the digital information from on-board digital video recorders on locomotives. The following is a brief introduction to this relatively new equipment and its possible implications.
A. The Equipment
The railroads are now using video recorders on their locomotives. Generally, these video recorders are stand-alone digital recorders that connect directly to the standard locomotive power system. They are mounted to the inside of the right front window of the locomotive and record the engineer’s eye-view as the train moves down the track. In addition to capturing color or black and white digital video of the tracks, the rights-of-ways, and grade crossings, the video recorders also record the conversations of the crew and horn, bell, and braking sounds with microphones inside and outside the locomotive cab. Moreover, speed, direction, braking, and power control (emergency) status are recorded. All these events are correlated with time and date, and the system can be synchronized with the event recorder. Special software from the manufacturer of the video recorder is required to view the digital information.
There are at least two types of video recorders used by the railroads. The first is the Railview Locomotive Video Recorder. Railview is manufactured by Science Application International Corporation (SAIC). The Railview is diminutive, measuring 2.5” x 2.75” x 4.5” and weighing only three pounds. Its standard storage capacity is an 80 GB hard disk drive and a removable 1 GB solid state disk drive. The hard drive may store as much as five days of data. The digital information is downloaded through either an external Ethernet network or a parallel port. The Railview Playback Viewer software is required to hear and view the footage and information. Once installed, the software allows a frame-by-frame playback down to quarters of second. [FN1] As the event recorder, the Railview recorder requires the input of the wheel size measurement. [FN2]
The other on-board video recorder used by the railroads is the LocoCAM. The LocoCAM is manufactured by GE Transportation and is similar to the Railview in many respects. One difference appears to be that the LocoCAM allows for a wireless download. [FN3] The on-board video cameras have also been called track image recorders (“TIR”) and the “Silent Witness” [FN4], but it is unclear whether these are different names for the same Railview and LocoCAM recorders or to different types of video recorders altogether.
Norfolk Southern Railway Co. (NS) uses the Railview while Burlington Northern and Santa Fe Railway Co. (BNSF), CSX Transportation (CSX) and perhaps Canadian Pacific (CN) use the LocoCAM. NS began employing the technology for research in 1995 and installing them on its fleet of locomotives in 1999. As of fall 2005, NS had equipped 1100 of its 3000 locomotives with the Railview recorders. [FN5] BNSF was the first to use the LocoCAM recorders on a locomotive, and had purchased 450 LocoCAM recorders by May 2006. [FN6] CSX and CN were receiving deliveries or scheduled to receive deliveries of LocoCAM recorders around the same time. [FN7] UP began installing on-board video cameras, TIRs, in 2005, had 4000 locomotives and 85 percent of its freight trains equipped with video recorders by January 2008, and planned on installing another 1600 video recorders and having nearly 90 percent of its entire fleet of 6000 locomotives equipped with the video recorders by the end of 2008. [FN8]
The railroads have several applications for the digital information from these video recorders. The railroads use the video recordings as an operational tool for studying varied conditions of track, including grade crossing “near-hits” or right-of-way conditions, as a training tool for their crews, and “a tool for investigating pedestrian or grade-crossing incidents.” [FN9] In fact, an example of a near-hit with a dump truck captured by an on-board video recorder can be viewed on UP’s website. [FN10] As the on-board video recorders store video and audio information regarding events leading up to, during, and after incidents on the tracks, the railroads also use the video recordings to reduce and deter claims and litigation expenses. Last, the railroads use the video recordings as evidence against plaintiffs in state and federal courts. [FN11]
Plainly, these video recordings are just as valuable to the plaintiff. Recordings from the time of the collision will document obstructive vegetation on the right-of-way, improper horn, bell, and braking activity, excited utterances from the crew, malfunctions of signals, a missed signal, an “unwavering” motor vehicle, proper driving behavior by the motorist, etc., to support a grade crossing, pedestrian or derailment case. [FN12] They may impeach the accounts of the train crew. In addition, previous recordings of the area will capture near-misses, other collisions, use by hazardous materials trucks and school buses, increased traffic, and known trespassers and demonstrate notice to the railroad of a dangerous situation and a need for additional precautions. [FN13]
Given the significance of this evidence, plaintiffs need to pay special attention to the task of obtaining the video recordings. Discovery requests and preservation letters must be carefully written to cover the various manufacturers, types, and names of the video recorders and distinguished from event recorders. The requests and letters also need to cover all the locomotives on the train, as video recorders have been found on locomotives other than the lead locomotive. A request for production might read:
Produce true, correct, and complete copies of any and all recordings from each and every Railview, LocoCAM, Track Image Recorder (TIR) or other on-board video recorder or video camera on each and every locomotive on this train from the date of the collision.
Because of the lack of case law and statutes specifically addressing the preservation of these video recordings, a poorly phrased discovery or preservation request may draw an argument by the railroad that it did know that these particular recordings would be sought in litigation. Such a plea seems incredulous in the face of the railroads’ affirmative use of the video recordings as evidence against plaintiffs in reported cases. [FN14] However, the railroads continue to make comparable arguments in defense of their failure to preserve of other types of media long established as important evidence by the courts such as the dispatch audiotapes. [FN15]
Plaintiffs should also request the equipment inspection form and wheel measurement documents associated with the video recorder. Figure 1 and Figure 2 are examples. The wheel measurement documents are important because the video recorders, at least the Railview recorders, require the wheel measurement to process the digital information. The recorded events could thus appear faster or slower depending on the wheel measurement entered, making the accuracy and timeliness of the measurement an issue. [FN16] The equipment inspection form also documents such information as the tampering or vandalism and whether the particular video recorder was equipped with microphones inside and outside the locomotive. Note that a microphone inside the locomotive still captures the noises made by the horn, bell, braking, and impact.
Furthermore, plaintiffs should depose a corporate representative for an understanding of the purposes and capabilities of a particular video recorder and the railroad employees involved with downloading and processing the digital information. Depositions of these latter employees are especially useful if there are discrepancies regarding the wheel measurement. As practitioners are aware, different measurements of the same wheel or a “growing” wheel are not uncommon in grade crossing litigation.
If the railroad responds that none of the locomotives on the subject train were equipped with video recorders, then plaintiffs should request the railroad’s inventory of its locomotives that were equipped with video recorders on the date of the collision. It is difficult to argue that the request is not reasonably calculated to lead to the discovery of admissible evidence since railroads have as much as 90 percent of their fleet equipped with video recorders. [FN17] The request is even more reasonable because the inventory is likely stored in electronic form in the railroad’s database and easily printable. NS, for example, printed a 2002 list of its locomotives equipped with Railview recorders from the company database. A copy of that inventory is appended as Figure 3.
Due to the recent proliferation of the video recorders, spoliation is a very real possibility. The crucial element — that is, the railroad knows the video recordings are “highly relevant” and important evidence in litigation — is already established by the railroad’s use of the video recordings as evidence against plaintiffs in other cases. [FN18] There is certainly a stronger case for spoliation here than in the traditional spoliation case where the railroads are sanctioned for destroying dispatch audiotapes. [FN19] Unlike dispatch audiotapes, the video recordings are not limited to the communications over the radio with dispatchers; the video recordings contain all conversations and sounds while the recorder is powered. Moreover, the video recorders capture video of the collision as well the train operations information picked up by the standard event recorder. Destroying the video recordings, even pursuant to a document retention policy, should subject a railroad to spoliation sanctions. [FN20]
The knowledge bank on the video recorders is in its infancy for those outside the railroad industry. As usual the railroads are reluctant to provide information on the video recorders and the software required to view the video recordings. The situation bears a striking similarity to the introduction of event recorders to railroad litigation. What is certain is that the video recorders provide the information recorded by both the dispatch audiotapes and event recorders about events immediately before, during, and after an incident, and much, much, more . What is also certain is that the video recorders are common and are now being used by the railroads in their daily operations and more significantly, for leverage in pre-litigation negotiations and as evidence in actual litigation. Practitioners, therefore, need to commit part of their basic discovery to the video recorders and treat them like “silent witnesses”. In an age when people are watching news broadcasts on handheld mp3 players, these videos could make or break the case.
* José M. Bautista is a former Chair of the Railroad Law Section of the American Association of Justice (AAJ) and a partner at Bautista LeRoy LLC in Kansas City, Missouri. This article was originally published in the AAJ Annual Conference Materials 2009.