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Iowa Supreme Court finds work comp surveillance videos not subject to pre-deposition disclosure

By Amanda Atherton

The Iowa Supreme Court ruled today that employers defending workers’ compensation claims do not have to disclose video surveillance of a claimant before the claimant’s deposition.  The decision reverses a prior ruling to the contrary by the former Iowa Workers’ Compensation Commissioner.  The question had been posed to the Workers’ Compensation Commissioner in a petition for a declaratory order filed by a group of attorneys representing the Claimant’s bar.

Iowa Code § 85.27(2) states employees, employers, and carriers involved in a work comp claim agree to disclose all information to which they have access regarding the claimant’s mental or physical condition, and waive any privilege they could claim to avoid disclosure. The question at issue was whether that provision required employers to disclose information regarding surveillance materials prepared for purposes of litigation.

The  former Commissioner’s declaratory order broke with years of what was the accepted practice and held that the waiver of privilege did apply to surveillance, and therefore pre-deposition disclosure was required. The Iowa Supreme Court reversed -returning interested parties to the long established practice.

The Court began its analysis by holding that, in general, surveillance materials are work product, and are therefore protected by the work-product privilege unless a party intends to use them at trial, in which case they must be disclosed. Post-deposition disclosure is acceptable in order to maintain a strategic advantage. The Court then determined that § 85.27(2) does not provide an exception to that general rule. The section as a whole pertains to medical services and medical records. If it were interpreted to cover other information in the employer’s possession, it would waive attorney-client privilege and attorney-opinion work product as well, which the statute does not appear to contemplate.

The Court also noted that claimants who are genuinely injured and truthful are generally not successfully impeached when presented with surveillance video at hearing, so today’s ruling did not thwart the purpose of the statute to benefit injured workers. Surveillance will simply serve as a tool to help identify those workers who misrepresent the nature or extent of an alleged injury.

Justice Hecht dissented, finding that the work comp statute’s underlying purpose of benefitting injured workers supported pre-deposition disclosure of surveillance materials. Justice Zager took no part.

The Court also considered whether the Commissioner should have issued a declaratory order when the surveillance question was presented at the administrative level. The Court found that the order did not prejudice any necessary parties and, therefore, its issuance was within the Commissioner’s discretion. 



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