IN THE COURT OF APPEALS OF IOWA
No. 13-1627
Filed October 29, 2014
IOWA INSURANCE INSTITUTE, IOWA DEFENSE COUNSEL ASSOCIATION,
IOWA SELF INSURERS’ ASSOCIATION, PROPERTY CASUALTY INSURERS
ASSOCIATION OF AMERICA, NATIONAL ASSOCIATION OF MUTUAL
INSURANCE COMPANIES, and IOWA ASSOCIATION OF BUSINESS AND
INDUSTRY,
Petitioners-Appellants,
vs.
CORE GROUP OF THE IOWA ASSOCIATION FOR JUSTICE, CHRISTOPHER
J. GODFREY, WORKERS’ COMPENSATION COMMISSIONER, DIVISION OF
WORKERS’ COMPENSATION, and IOWA DEPARTMENT OF WORKFORCE
DEVELOPMENT,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
An association of insurance companies appeals from a workers’
compensation commissioner’s declaratory order. AFFIRMED.
Joseph A. Happe, Sarah K. Franklin, Stephen M. Morain, and Elizabeth R.
Meyer of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for
appellants.
R. Saffin Parrish-Sams of Soldat & Parrish-Sams, P.L.C., West Des
Moines, for appellees.
Heard by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
2
VAITHESWARAN, P.J.
Under Iowa Code section 85.27(2), litigants in a workers’ compensation
proceeding must agree to the release of “all information . . . concerning the
employee’s physical or mental condition.” Iowa Code § 85.27(2) (2013). At the
heart of this judicial review proceeding is an employer practice of conducting
surveillance of employees claiming to have sustained work-related injuries. The
workers’ compensation commissioner filed a declaratory order interpreting
section 85.27(2) to require the release of these surveillance materials, subject to
assertions of a work-product privilege.1 We must determine (A) whether the
commissioner abused his discretion in deciding to file a declaratory order and
(B) whether the commissioner erred in his interpretation of the statutory
language.
I. Background Proceedings
The Workers’ Compensation Core Group of Iowa is a collection of
attorneys
charged with promoting the administration of justice for the public
good, upholding the honor and dignity of the profession of law,
advancing the cause of injured workers who must seek redress
therefore under Iowa’s workers’ compensation laws; and upholding
and improving the adversary system and right to a fair trial.
The Core Group petitioned the workers’ compensation commissioner for a
declaratory order interpreting Iowa Code section 85.27(2) to encompass
surveillance materials.
1
The work-product doctrine set forth in Iowa Rule of Civil Procedure 1.503(3) creates a
qualified privilege for trial preparation materials and has been referred to as the “work-
product privilege.” See Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d
38, 42-43 (Iowa 2004); see also Exotica Botanicals, Inc. v. Terra Int’l., Inc., 612 N.W.2d
801, 802 (Iowa 2000).
3
The Iowa Insurance Institute, Iowa Defense Counsel Association, Iowa
Self Insurers Association, Property Casualty Insurers Association of America,
and the National Association of Mutual Insurance Companies moved to
intervene, claiming they “collectively represent the majority of workers’
compensation Respondents in Iowa, and many of their legal advocates,” and
they “have a significant interest in protecting their rights to obtain a fair
adjudication in workers’ compensation proceedings, including the ability to
adequately protect trial preparation materials and impeachment evidence.” Their
motions were granted. Following argument by counsel, the commissioner issued
a declaratory order interpreting section 85.27. On judicial review, the district
court affirmed the agency decision. This appeal followed.
II. Analysis
A. Commissioner’s Decision to Issue Declaratory Order
The Iowa Administrative Procedure Act states “Any person may petition an
agency for a declaratory order as to the applicability to specified circumstances
of a statute, rule, or order within the primary jurisdiction of the agency.” Iowa
Code § 17A.9(1)(a). Section 17A.9(1)(b) sets forth certain parameters for
issuance or non-issuance of declaratory orders:
(1) An agency shall issue a declaratory order in response to a
petition for that order unless the agency determines that issuance
of the order under the circumstances would be contrary to a rule
adopted in accordance with subsection 2.
(2) However, an agency shall not issue a declaratory order that
would substantially prejudice the rights of a person who would be a
necessary party and who does not consent in writing to the
determination of the matter by a declaratory order proceeding.
4
In accordance with this provision and section 17A.9(2), which authorizes
rulemaking, the Workers’ Compensation Commission adopted rules governing
declaratory orders. See Iowa Admin Code r. 876-5.1-.13.
The Respondents focus on a portion of a rule prohibiting the issuance of
declaratory orders in certain circumstances. The rule states in pertinent part:
The workers’ compensation commissioner shall not issue a
declaratory order where prohibited by Iowa Code section 17A.9(1),
and may refuse to issue a declaratory order on some or all
questions raised for the following reasons:
....
2. The petition does not contain facts sufficient to
demonstrate that the petitioner will be aggrieved or adversely
affected by the failure of the workers’ compensation commissioner
to issue an order.
....
5. The questions presented by the petition would more
properly be resolved in a different type of proceeding or by another
body with jurisdiction over the matter.
....
9. The petition requests a declaratory order that would
necessarily determine the legal rights, duties, or responsibilities of
other persons who have not joined in the petition, intervened
separately, or filed a similar petition and whose position on the
questions presented may fairly be presumed to be adverse to that
of petitioner.
Iowa Admin. Code r. 876-5.9(1). The Respondents assert the commissioner
should have declined to issue a declaratory order under one or more of these
provisions.
Our review of the agency’s decision to bypass these provisions is for an
abuse of discretion. See Iowa Code § 17A.19(10)(n) (reviewing to determine
whether agency action is unreasonable, arbitrary, capricious, or abuse of
discretion); Arthur Bonfield, The Iowa Administrative Procedure Act: Background,
Construction, Applicability, Public Access to Agency Law, the Rulemaking
5
Process, 60 Iowa L. Rev. 731, 819 (1975) (discussing review of agency refusal to
rule on the merits of a petition and citing standard set forth in predecessor to
subsection n); see also City of Dubuque v. Iowa Util. Bd., No. 12-0789, 2013 WL
85807, at *3-4 (Iowa Ct. App. Jan. 9, 2013).
1. Iowa Administrative Code rule 876-5.9(1)(2). With respect to the
first provision—whether the petition “contain[s] facts sufficient to demonstrate
that the petitioner will be aggrieved or adversely affected by the failure of the
workers’ compensation commissioner to issue an order”—the Respondents
assert “the Core Group did not, and could not, demonstrate that it had a specific
legal interest or that it would suffer a specific injury if the Commissioner declined
to rule on its Petition.” See Iowa Admin. Code r. 876-5.9(1)(2). The
Respondents’ argument has superficial appeal under our traditional standing
rules. But a petition for an administrative declaratory order is not the same
animal as a civil petition.
As noted, section 17A.9(1)(a) authorizes “[a]ny person” to file a petition for
declaratory order. The statute defines “person” broadly as “any individual,
partnership, corporation, association, governmental subdivision, or public or
private organization of any character other than an agency.” Iowa Code
§ 17A.2(9). Allowing a large universe of potential filers serves the purpose of
declaratory orders. As the principal drafter of the Iowa Administrative Procedure
Act explained, these orders are designed to permit persons to seek formal
opinions on the effect of future transactions and arrange their affairs accordingly.
See Bonfield, 60 Iowa L. Rev. at 807. Because they are a means to “obtain
binding advice where it is necessary or helpful for [persons] to conduct their
6
affairs in accordance with law,” agency rules may not define “the classes of
persons who may seek such rulings too narrowly.” Id. at 812. Professor Bonfield
acknowledged agencies might want to “require some sort of standing to obtain a
declaratory ruling,” but insisted an “overly technical” standing requirement
posing a “substantial hurdle” and “frustrat[ing] the purpose of the provision” would
be “invalid as ultra vires agency authority.” Id. at 812-13.
A stringent standing requirement also is inconsistent with the precept that
declaratory orders may be based on hypothetical facts. Id. at 812; see also
Sierra Club Iowa Chapter v. Iowa Dep’t of Transp., 832 N.W.2d 636, 647-48
(Iowa 2013) (essentially presuming environmental organization could seek a
declaratory order before an agency); Tindal v. Norman, 427 N.W.2d 871, 873
(Iowa 1988) (stating declaratory order proceeding “contemplates rulings on
purely hypothetical sets of facts”). Because a real controversy is not essential,
traditional standing requirements have no place in administrative declaratory
order proceedings.
We turn to the allegations in this proceeding. The Core Group sought to
address an accepted and routine practice in workers’ compensation litigation: the
surveillance of employee-claimants. As the commissioner explained,
Core Group has an interest in workers’ compensation cases as it
applies to injured workers and the members themselves are
employees who work in the state of Iowa. The members of Core
Group frequently represent injured workers in contested cases
when surveillance is used by employers and insurance carriers.
Attorneys routinely use discovery in contested cases before the
division. Discovery disputes are quite common. Attorneys
representing claimants and Respondents frequently file motions
concerning discovery. The timing of disclosure of exhibits and
evidence is a frequent issue in arbitration hearings.
7
While Core Group members did not assert they were individually aggrieved,
nothing in section 17A.9 requires personal injury or harm as a predicate to filing a
petition for declaratory order. The Core Group’s assertions were consistent with
its mission and were sufficient to conclude the agency did not abuse its discretion
in declining to invoke the “aggrieved or adversely affected” ground of rule 876-
5.9(1)(2).
2. Iowa Administrative Code rule 876-5.9(1)(5). The Respondents
next contend the commissioner abused its discretion in ruling on the petition
because the “questions presented by the petition would more properly be
resolved in a different type of proceeding or by another body with jurisdiction over
the matter.” Iowa Admin. Code r. 876-5.9(1)(5). “The general rule with regard to
decisions of this type is that “the choice . . . is one that lies primarily in the
informed discretion of the administrative agency.” Teleconnect Co. v. Iowa State
Commerce Comm’n, 366 N.W.2d 515, 519 (Iowa 1985) (citing Bonfield, 60 Iowa
L. Rev. at 925) (discussing agency’s choice between rulemaking and contested
cases).
A request for an interpretation of section 85.27(2) is precisely the type of
issue lending itself to resolution by declaratory order. In Professor Bonfield’s
words, the agency-issued declaratory ruling is a means of obtaining “[a] definitive
response to a simple question about an ambiguity in the law.” Bonfield, 60 Iowa
L. Rev. at 805. This is all the Core Group seeks.
We recognize the issue the Core Group raised by way of a petition for
declaratory order was previously raised in individual contested cases. However,
nothing precluded the Core Group’s efforts to obtain a broader resolution via a
8
declaratory order. See id. at 820 (“[T]he framers . . . intended to make it difficult
rather than easy for agencies to decline to issue such a ruling.”).
Nor was the commissioner required to interpret section 85.27 by rule
rather than declaratory order. While the Respondents emphasize the “built-in
procedural protections” attending rulemaking proceedings, which “ensure broad
participation by all interested parties,” the commissioner afforded similar
protections in this declaratory order proceeding by identifying groups having a
stake in the order and inviting them to intervene.
We conclude the commissioner did not abuse his discretion by refusing to
find a different vehicle to address the issue.
3. Iowa Administrative Code rule 876-5.9(1)(9). The Respondents
finally contend the commissioner should have declined to issue a declaratory
order because such an order “prejudices Respondents in pending or future
workers’ compensation litigation who were not parties to the [action], but who
have conducted surveillance in reliance on the expectation it would be protected
from discovery under the prior interpretation of applicable law and procedure.”
This argument implicates Iowa Code section 17A.9(1)(b)(2) as well as Iowa
Administrative Code rule 876-5.9(1)(9). Professor Bonfield generally addressed
this argument as follows:
One might argue that since such rulings are typically issued only
with reference to the petitioning parties, they are not “rules” . . .
because they are not of general applicability. . . . The ruling does
not purport to be of general application. Thus, there is no
irreparable harm done by failing to assure public participation in the
making of such rulings because in fact they are only of particular
applicability; they are in the nature of individual adjudications.
9
Bonfield, 60 Iowa L. Rev. at 836 (emphasis added). By the Respondents’ own
admission, their groups include attorneys representing the majority of workers’
compensation defendants in Iowa. The declaratory order does not purport to
bind the few attorneys outside these groups.
We conclude the commissioner did not abuse his discretion in deciding to
rule on the petition for declaratory order.
B. Commissioner’s Interpretation of Section 85.27(2)
Iowa Code section 85.27(2) states in its entirety:
Any employee, employer or insurance carrier making or
defending a claim for benefits agrees to the release of all
information to which the employee, employer, or carrier has access
concerning the employee’s physical or mental condition relative to
the claim and further waives any privilege for the release of the
information. The information shall be made available to any party
or the party’s representative upon request. Any institution or
person releasing the information to a party or the party’s
representative shall not be liable criminally or for civil damages by
reason of the release of the information. If release of information is
refused the party requesting the information may apply to the
workers’ compensation commissioner for relief. The information
requested shall be submitted to the workers’ compensation
commissioner who shall determine the relevance and materiality of
the information to the claim and enter an order accordingly.
The Respondents take issue with the commissioner’s interpretation of section
85.27(2) to include surveillance materials. “[W]e will substitute our own
interpretation of the provision if we find the commissioner’s interpretation was
erroneous.” See Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 261 (Iowa 2012).
In other words, our review is for errors of law. See Iowa Code § 17A.19(10)(c).
As noted, the statute relates to information “concerning the employee’s
physical or mental condition.” Iowa Code § 85.27(2). The commissioner
preliminarily concluded “[s]urveillance materials in workers’ compensation claims
10
concern a claimant’s physical or mental condition.” The commissioner reasoned
that they were not “used for any other purposes in contested claims before the
division.” The Respondents do not seriously dispute this preliminary conclusion.
The statute next states the litigants agree to “the release of all information”
to which they have “access” concerning the employee’s physical or mental
condition. Id. The Respondents contend this language only applies “to
information . . . held by third parties (i.e. medical records, bills, and treating
and/or expert physician reports).” The commissioner concluded otherwise,
stating:
While Iowa Code section 85.27(2) does apply to medical evidence
and information held by third parties, it is not so limited. The law
requires release of all information concerning a claimant’s physical
or mental condition. The section of the law references all
information an employee, employer, or insurance carrier has
access to concerning a claimant’s physical or mental condition.
This is not limited to evidence held by third parties.
The commissioner’s conclusion flows from the unambiguous terms, “all”,
“information,” and “access.” See Wesley Ret. Servs., Inc. v. Hansen Lind Meyer,
Inc., 594 N.W.2d 22, 25 (Iowa 1999) (“When the text of the statute is plain and its
meaning clear, the court should not search for a meaning beyond the express
terms of the statute.”). The term “all” is an “all” encompassing word which brooks
no limits. Similarly, “information” is broad enough to include video surveillance
footage. As for the term “access,” there can be no question the Respondents
had the ability to obtain the surveillance information they requested and
authorized. No interpretation of section 85.27(2) is required to conclude
11
surveillance materials fall within the phrase “all information” to which the
employer has “access.”2
This brings us to the key question—whether surveillance materials are
subject to “release.” “Release” is defined as “to set free” or “to give up in favor of
another.” Webster’s New Collegiate Dictionary 968 (1981). The Respondents,
citing Iowa Code section 622.10 on “release” of medical records, argue this term
applies exclusively to third-party disclosure of medical records. In their view, the
legislature would have used the term “production” rather than “release”—as it did
in discovery rules 1.509(3) and 1.512—had it intended the provision to require
the disclosure of surveillance footage. Iowa R. Civ. P. 1.509(3), 1.512.
This constrained reading of “release” is not supported by the balance of
the sentence and, in particular, the reference to “all information.” This reading
also is not supported by the next sentence in section 85.27(2), which states “[t]he
information shall be made available to any party or the party’s representative
upon request.” Clearly, “release” means disclosure to the other parties in the
workers’ compensation proceeding. The term is part of a broad discovery rule
designed to “foster and encourage a ready access to the information necessary
to speedily process workers’ compensation claims.” Morrison v. Century Eng’g,
434 N.W.2d 874, 877 (Iowa 1989). The Respondents’ narrow reading fails to
honor the legislature’s intent to “provide[] for the free flow of information
regarding a worker’s physical or mental condition relative to a compensation
claim.” Id. at 876.
2
Because the statutory language is plain and unambiguous, we will not use the
legislative history of the provision to defeat the plain words of the statute. Stroup v.
Reno, 530 N.W.2d 441, 443-44 (Iowa 1995).
12
We recognize the commissioner previously required disclosure of
surveillance materials only after the claimant was deposed. In the Respondents’
view, the commissioner acted arbitrarily in declining to hew to this practice. They
cite Iowa Code section 17A.19(10)(h), which authorizes judicial review of agency
action “other than a rule that is inconsistent with the agency’s prior practice or
precedents, unless the agency has justified that inconsistency by stating credible
reasons sufficient to indicate a fair and rational basis for the inconsistency.”
This provision has been construed narrowly. In Finch v. Schneider
Specialized Carriers, Inc., 700 N.W.2d 328, 332-33 (Iowa 2005), the Iowa
Supreme Court stated,
[t]he controlling legal standards are those set out in the workers’
compensation statutes and in this court’s opinions, not in prior
agency decisions. . . . We do not believe that Iowa Code section
17A.19(10)(h) establishes an independent requirement that the
commissioner identify other agency rulings and explain possible
inconsistencies between those rulings.
Notwithstanding the absence of an obligation to distinguish prior agency
precedent, the commissioner did so. The commissioner explained that prior
contested case decisions cited by the Respondents did not address the language
of section 85.27(2). The commissioner also addressed the timing of disclosure
discussed in prior agency decisions and the claimed deprivation of the element of
surprise if disclosure of the surveillance materials were required before a
deposition of the claimant. The commissioner stated:
Modern rules of discovery seek to avoid surprise as a tactic in
litigation. The purpose of discovery rules in litigation is to remove
the element of surprise by letting each side know the available
evidence. Such policy drives parties to resolution of their matters
sooner rather than later based upon information readily available to
all parties—as opposed to non-disclosure and later seeking
13
surprise. A claimant can be questioned about her or his activities
and how it compares to the activities shown in surveillance
materials. An implausible answer as to why a claimant was shown
in surveillance performing certain physical activities will still
impeach a claimant’s testimony.
The commissioner’s reasoning comports with the Iowa Supreme Court’s
longstanding disapproval of litigation by surprise. See Blink v. McNabb, 287
N.W.2d 596, 600 (Iowa 1980) (stating “a major goal of the discovery rules” is
prevention of “surprise”); accord Hagenow v. Schmidt, 842 N.W.2d 661, 671
(Iowa 2014); Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 386 (Iowa
2012). “Gotcha” litigation is no longer sanctioned. Because the commissioner
provided “credible reasons sufficient to indicate a fair and rational basis for the
inconsistency with prior practice and precedent,” we conclude section
17A.19(10)(h) was not violated. Iowa Code § 17A.19(10)(h).
We are left with the Respondents’ assertion that the commissioner’s
interpretation “destroys attorney work-product privilege.” The Respondents cite
Iowa Rule of Civil Procedure 1.503(3), which “creates a qualified privilege for trial
preparation materials.” See Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc.,
690 N.W.2d 38, 43 (Iowa 2004). In their view, “[t]he mere fact that the
surveillance has occurred, if disclosed prior to the injured worker’s deposition,
informs the injured worker that the employer and insurer is aware of potential
non-compliance with work restrictions or activities inconsistent with alleged
injuries.” But an employee’s awareness is immaterial to the work-product
privilege. The privilege turns on whether the tapes are prepared in anticipation of
litigation (no one disputes they are) and, as the Respondents acknowledge,
whether they disclose the “mental impressions, conclusions, opinions, or legal
14
theories of an attorney or other representative of a party concerning the
litigation.” Surveillance, by itself, implicates none of these concerns; it discloses
the claimant’s condition—nothing more, nothing less. See Wegner v. Cliff
Viessman, Inc., 153 F.R.D. 154, 159 (N.D. Iowa 1994) (finding surveillance
information was otherwise discoverable as probative of the physical condition of
the plaintiff, noting work-product protection was designed to prevent
“unwarranted inquiries into the files and mental impressions of an attorney,” and
then stating, “Surveillance materials are certainly prepared in anticipation of
litigation. . . . It is simply too great a stretch to say, however, that opinion work
product is also thereby revealed.”).3 The Respondents may use the surveillance
footage to denigrate claims of disability but the footage alone does not reveal the
mental impressions of an attorney.
More to the point, even if surveillance footage is characterized as
“ordinary work product”—a term not used in Iowa precedent, and even if the
footage includes opinion work product, section 85.27(2) states “[a]ny employee,
employer or insurance carrier making or defending a claim for benefits . . .
waives any privilege for the release of the information.” Iowa Code § 85.27(2)
(emphasis added). Arguably, then, the footage is discoverable notwithstanding
its character as ordinary or opinion work product and notwithstanding rule
1.503(3). See Iowa Admin Code r. 876-4.35 (“The rules of civil procedure shall
3
The court rejected the notion that surveillance footage was valuable only as
impeachment evidence. Notwithstanding its creation in anticipation of litigation, the court
stated, plaintiffs have a right “to discover the evidence that exists within the defendants’
possession that will be available for use at trial.” Wegner, 153 F.R.D. at 159. The court
concluded, “[t]he purposes of just and speedy determination of matters on the merits will
best be served by requiring disclosure of surveillance in response to discovery
requests.” Id. at 159-60
15
govern the contested case proceedings before the workers’ compensation
commissioner unless the provisions are in conflict with these rules and Iowa
Code chapters 85, 85A, 85B, 86, 87 and 17A, or obviously inapplicable to the
workers’ compensation commissioner. In those circumstances, these rules or
the appropriate Iowa Code section shall govern.”).
The commissioner did not go this far. The commissioner elected to carve
out an exception to disclosure of surveillance materials for “the mental
impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.” The commissioner stated, “A
party may request that that information not be disclosed by following the
procedures of Iowa Code section 85.27(2) or Iowa R. Civ. P. 1.503(5)(a).” In
short, the commissioner reconciled rather than ignored the rule of civil procedure
on opinion work product.
We recognize the commissioner placed the onus of asserting the work-
product privilege on the party asserting it, which the dissent maintains is at odds
with the language of section 85.27(2). We do not see any conflict. Section
85.27(2) simply states that if a party requesting information is denied the
information the requesting party may seek relief from the commissioner.
Because the requesting party cannot assert a privilege on behalf of the party with
the undisclosed information, it would be incumbent upon the defense to raise any
objections based on the work-product privilege after the requesting party has
sought relief.
16
We conclude the commissioner’s interpretation of section 85.27(2) to
include surveillance materials, subject to an assertion of an opinion work product
privilege was not erroneous. We affirm the declaratory order.
AFFIRMED.
Doyle, J., concurs; McDonald, J., concurs specially.
17
MCDONALD, J. (concurring in part, dissenting in part)
I concur the commissioner had the authority to proceed by way of
declaratory order, but I respectfully dissent on the merits. The petition for
declaratory order requested the workers’ compensation commissioner answer
ten interrelated questions regarding the discoverability of surveillance materials
and reports prepared in defense of a workers’ compensation claim and regarding
the timing of production if discovery is allowed. In resolving this appeal, the
majority lumps the questions and answers together, which seems reasonable
and expeditious. Doing so, however, masks error that becomes apparent when
the questions and answers are delumped. Specifically, the commissioner erred
in holding section 85.27(2) applies to surveillance materials. The commissioner
compounded this error by conflating two separate legal doctrines into something
the commissioner denominated the “attorney-client work product privileged [sic].”
Assuming the “attorney-client work product privilege[]” refers to the work product
doctrine, the commissioner erred in holding that section 85.27(2) waives work
product protection and that the party asserting work product protection must seek
relief from the agency rather than vice versa. Finally, the commissioner erred in
holding surveillance materials must be produced prior to deposition of the
claimant.
I.
The first question presented to the commissioner related to the scope of
section 85.27(2): “a) Is Iowa code § 85.27(2) applicable to surveillance in
workers’ compensation claims? Answer: Yes.” The majority concludes the
commissioner’s interpretation is correct. I respectfully disagree.
18
We review the commissioner’s interpretation of this provision for errors at
law. See Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196 (Iowa 2010).
“Our goal, when interpreting a statute, is to give effect to the intent of the
legislature.” Id. at 197. In determining legislative intent, we examine the words
of the statute “as well as the context of the language at issue.” Id. In addition,
we consider “the statute’s subject matter, the object to be accomplished, the
purpose to be served, underlying policies, remedies provided, and the
consequences of the various interpretations.” State v. Lindell, 828 N.W.2d 1, 5
(Iowa 2013).
The statute, when read in context, limits “all information” and “the
information” to medical records and similar or related documents that typically,
although not necessarily, would be held by third parties. The statute repeatedly
refers to the parties’ “access” to information and “the release” of information, both
of which imply “the information” refers to medical records and similar or related
documents typically held by third-parties and not records created by the parties.
Section 85.27(2) also waives criminal and civil liability for “the release” of “the
information.” Again, this implies “the information” refers to medical records and
similar or related documents typically held by third-parties and not records
created by the parties.
Legislative history supports this interpretation. In 1976, the legislature
added what is now subsection 2 as an unnumbered paragraph to section 85.27.
See 1976 Iowa Acts ch. 1084, § 3. Unlike many acts in Iowa, this act was
accompanied by legislative explanation. The legislature explained the act related
to “the release of information concerning a person’s past physical or mental
19
condition.” The legislature’s intent to facilitate the release of information related
to the claimant’s past physical or mental condition clearly excludes post-claim
surveillance materials from the meaning of “all information” and “the information.”
The consequence of the majority’s interpretation militates against its
interpretation and in favor of the more limited meaning the legislature actually
intended. See Lindell, 828 N.W.2d at 5. Section 85.27(2) provides “[a]ny
employee, employer, or insurance carrier making or defending a claim for
benefits . . . waives any privilege for the release of the information.” Under the
legislature’s intended meaning of the statute, as set forth in the prior paragraph,
the statutory privilege waiver relates only to privileges associated with medical
care because “the information” refers only to medical records and similar or
related documents. Under the commissioner and the majority’s interpretation,
however, the statutory privilege waiver applies to all privileges because the
commissioner and the majority interpret “the information” to include anything
related to the claimant’s physical or mental condition. Under the commissioner
and the majority’s approach, all employees, employers, and insurance carriers,
merely by participating in a workers’ compensation proceeding, waive the
attorney-client privilege, the spousal privilege, and any other privilege heretofore
or yet-to-be recognized, to the extent the privileged communication “concern[s]
the employee’s physical or mental condition.” This consequence alone seems
enough reason to limit the meaning of “all information” and “the information” to
medical records and similar or related documents.
For the foregoing reasons, I conclude the commissioner erred in holding
section 85.27(2) applies to surveillance materials and reports.
20
II.
The commissioner’s second and third holdings related to the waiver of
privileges:
b) Pursuant to Iowa Code § 85.27, are all privileges
waived with respect to surveillance videos and
photographs showing the injured worker?
Answer: Yes, as to attorney-client work product privileged.
No as to mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning
the litigation.
c) Pursuant to Iowa Code § 85.27, are all privileges
waived with respect to surveillance reports concerning
the injured worker?
Answer: Yes, as to attorney-client work product privileged.
No as to mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning
the litigation.
The majority affirms the commissioner’s interpretation of section 85.27(2),
holding that section 85.27(2) waives work product protection. I conclude the
commissioner’s holding is muddled, predicated on a misunderstanding of the
work product doctrine, and legally erroneous.
Before directly addressing the commissioner and the majority’s holdings, it
is necessary to provide background regarding the work product doctrine. The
Iowa work product doctrine is codified in Iowa Rule of Civil Procedure 1.503(3).
See Keefe v. Bernard, 774 N.W.2d 663, 673-75 (Iowa 2009). The doctrine
protects from discovery and production materials prepared by an attorney, or the
attorney’s agent, in anticipation of litigation. “[W]hether a document was
prepared in anticipation of litigation is determined by whether, in light of the
nature of the document and the factual situation in the particular case, the
21
document can fairly be said to have been prepared or obtained because of the
prospect of litigation.” Wells Dairy, 690 N.W.2d at 48. Although the doctrine has
been applied in a variety of legal contexts, “[t]he essential element of each case
. . . is that the attorney was preparing for or anticipating some sort of adversarial
proceeding involving his or her client.” Simon v. G.D. Searle & Co., 816 F.2d
397, 401 (8th Cir. 1987). There are two kinds of work product subject to
protection: ordinary work product and opinion work product. Ordinary work
product includes raw factual information and is discoverable “only upon a
showing that the party seeking discovery has substantial need of the materials
. . . and . . . is unable without undue hardship to obtain the substantial equivalent
of the materials by other means.” Iowa R. Civ. P. 1.503(3). Opinion work
product consists of “the mental impressions, conclusions, opinions, or legal
theories of an attorney.” Iowa R. Civ. P. 1.503(3). Opinion work product enjoys
almost absolute immunity, and is discoverable in only very rare and extraordinary
circumstances.
The commissioner and majority’s analysis of the work product doctrine
goes astray, in part, by failing to recognize the distinction between ordinary work
product and opinion work product. For example, the majority concludes
surveillance footage is not work product subject to protection because
surveillance footage does not reveal “trial strategy.” That inquiry is relevant,
however, only to the distinction between ordinary work product and opinion work
product. As a general rule, surveillance video and photographs prepared in
anticipation of litigation are deemed ordinary work product subject to qualified
22
protection.4 See, e.g., Marchello v. Chase Manhattan Auto Fin. Corp., 219
F.R.D. 217, 219 (D. Conn. 2004) (“However, because they are created after a
party’s injury and in anticipation of litigation, surveillance tapes generally are
considered work product.”); Fletcher v. Union Pac. R.R. Co., 194 F.R.D. 666, 670
(S.D. Cal. 2000) (“Numerous courts have held that surveillance films constitute
work product and are subject to qualified immunity.”); Martino v. Baker, 179
F.R.D. 588, 590 (D. Colo. 1998) (“The surveillance tapes are work product as
they are tangible and prepared in anticipation of litigation. Since the tapes do not
contain the mental impressions, legal theories or conclusions of counsel,
defendant may only claim a qualified privilege, which can be overcome by
plaintiff's showing of substantial need.”); Smith v. Diamond Offshore Drilling, Inc.,
168 F.R.D. 582, 586 (S.D. Tex. 1996) (“Obviously, surveillance evidence is
gathered in anticipation of litigation and thus is generally protected as work
product.”); Ford v. CSX Transp., Inc., 162 F.R.D. 108, 110 (E.D.N.C. 1995)
(“Surveillance materials are clearly within the definition of work product since
they are tangible and were prepared in anticipation of litigation by or for a party to
the litigation.”); see generally Squealer Feeds v. Pickering, 530 N.W.2d 678, 688
(Iowa 1995) (“Documents prepared after the insured’s claim has been denied are
clearly not a contemporaneous record of events leading to the denial of the
insured’s claim. After the claim has been denied, the insurer evaluates its action
and prepares to defend its decision. Documents prepared during that time are
precisely the type of material sought to be protected from discovery by one’s
4
“Rule 1.503(3) . . . closely tracks Federal Rule of Civil Procedure 26(b)(3), and the
history and cases under the federal rule provide guidance in interpreting the Iowa
counterpart.” Keefe, 774 N.W.2d at 673-75.
23
adversary. We think an insurer is entitled to the same protection of this material
under rule [1.503(3)] as any other party.”), abrogated on other grounds by Wells
Dairy, 690 N.W.2d at 38. With these general principles in mind, I directly address
the agency decision and majority opinion.
The commissioner’s ruling is legally erroneous because it conflates two
separate legal doctrines—the attorney-client privilege and the work product
doctrine—into something the commissioner called “the attorney client work
product privilege[].” See In re Foster, 188 F.3d 1259, 1272 (10th Cir. 1999)
(“[The plaintiff] also invoked the work-product doctrine, which is broader than and
distinct from the attorney-client privilege.”); Robbins v. Iowa-Illinois Gas & Elec.
Co., 160 N.W.2d 847, 855-56 (Iowa 1968) (stating the work product doctrine is
clearly distinguishable from the attorney-client privilege); see also Iowa Practice,
Evidence § 5.502:21 (“The attorney-client privilege is distinct from the
independent doctrine restricting discovery of the work product of opposing
counsel.”). There is no “attorney-client work product privilege[].” We should not
affirm a declaratory order holding section 85.27(2) waives a non-existent
privilege, particularly when the entire declaratory order appears predicated on
this confusion.
The majority does not directly address this issue. Instead, the majority
elides the problem by assuming the commissioner meant to refer to the work
product doctrine. The assumption seems unwarranted; this does not appear to
be scrivener’s error; instead, it appears the agency simply confused two separate
issues. At page seven of the declaratory order, the commissioner stated “the
parties have also made as an issue whether section 85.27(2) would waive
24
attorney-client privilege.” The parties did not raise the issue of attorney-client
privilege, but they did raise the issue of work product protection. In the very next
paragraph of the declaratory order, the commissioner stated “[t]he Supreme
Court in Squealer Feeds v. Pickering, held that attorney-client privilege is
applicable in workers’ compensation proceedings.” The commissioner then
quoted language in Squealer Feeds regarding opinion work product and not the
attorney-client privilege in conducting its analysis. Further, in response to the
questions presented, the declaratory order concludes the “attorney-client work
product privilege[]” is waived but in the next sentence states it is not waived “as
to mental impressions, conclusions, opinions, or legal theories of an attorney or
other representative of a party concerning the litigation.” Based on the reasoning
and language in the declaratory order, it seems the commissioner conjoined the
attorney-client privilege and work product doctrine. We are only left to guess
what the agency’s order means, which militates in favor of reversal.
Setting aside this issue, the agency must be reversed for an additional
reason: the commissioner erred in holding section 85.27(2) waives work product
protection. The statute provides the parties’ “waive[ ] any privilege for the
release of the information.” While I recognize some of our cases informally refer
to the work product doctrine as a “privilege,” it is not a “privilege.” Rather, the
cases that squarely address the rationale underlying the work product doctrine
recognize that it is a qualified immunity from discovery governed by the rules of
civil procedure:
However, the work product of an attorney is clearly distinguishable
from the attorney-client privilege. The two concepts often appear
side-by-side in the cases since both may involve protection of trial
25
preparations. The attorney-client privilege is, however, generally
viewed as an evidentiary privilege belonging to the client and
designed to encourage full disclosure by him to his attorney. On
the other hand, the work product concept refers to material
prepared or acquired in anticipation of litigation not necessarily
privileged but immune from discovery under rule 141(a). Discovery
of trial preparations which fall outside evidentiary privileges can be
avoided only on the basis of protection furnished by discovery rules
themselves.
Robbins, 160 N.W.2d at 855-56 (citation omitted); see Keefe, 774 N.W.2d at 673-
75 (“Iowa Rule of Civil Procedure 1.503(3) codifies a qualified immunity from
discovery of materials prepared in anticipation of litigation.”); Shook v. City of
Davenport, 497 N.W.2d 883, 886-87 (Iowa 1993) (explaining the doctrine is
referred to as a privilege but is a “qualified immunity” from discovery), abrogated
on other grounds by Wells Dairy, 690 N.W.2d at 38.
Federal authority recognizes the same distinction as our case law. See,
e.g., Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 514 n.2 (5th Cir.1993)
(“This doctrine creates a form of qualified immunity from discovery for such
materials.”); S.E.C. v. Goldstone, CIV. 12-0257 JB/LFG, ___ F.R.D. ___ , 2014
WL 4347183, at *57 (D.N.M. Aug. 23, 2014) (“Because the work-product doctrine
is a qualified immunity set forth in the Federal Rules of Civil Procedure, and not a
privilege like the attorney-client privilege, the exceptions to the attorney-client
privilege that developed in the common law do not necessarily overcome the
protections which the work-product doctrine provides.”); Gutshall v. New Prime,
Inc., 196 F.R.D. 43, 45 n.2 (W.D. Va. 2000) (“The work product doctrine is not a
‘privilege,’ but a sort of ‘qualified immunity’ from discovery, originally established
in Hickman v. Taylor, and ultimately codified in Rule 26(b)(3).”). Indeed, in a
federal case where jurisdiction is based on diversity of citizenship, the court will
26
apply state law concerning attorney-client privilege and federal law regarding
work product doctrine because the work product doctrine is a rule of procedure
and not a substantive privilege. See Fed. R. Evid. 501 Advisory Comm. Notes
(requiring in civil actions where the rule of decision is supplied by state law, “the
privilege of a witness . . . shall be determined in accordance with State law”);
Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000); St. Paul Reins.
Co., Ltd. v. Commercial Fin. Corp., 197 F.R.D. 620, 627 (N.D. Iowa 2000).
Leading secondary authority also recognizes that the work product
doctrine is not a “privilege.” See 6 J. Moore & P. Higginbottom, Moore’s Federal
Practice § 26.70[1], at 26–435 (3d ed. 2010) (“The work product doctrine is not
actually a privilege, but rather a qualified immunity from discovery.”); 23 Am. Jur.
2d Depositions and Discovery § 44 (“Although sometimes classified as a
privilege, the work product rule is not a privilege but is a qualified immunity from
discovery, that may be overcome by a proper showing.”).
The distinction is predicated on the different values underlying privileges,
generally, and the work product doctrine. True privileges are designed to
promote and advance certain relationships, such as lawyer-client, priest-penitent,
and doctor-patient. See Edward J. Imwinklereid, The Validity of the 2010 Federal
Rule of Civil Procedure 26 Amendment Governing the Waiver of Work Product
Protection: Is the Work Product Doctrine an Evidentiary Privilege, 37 U. Dayton
L. Rev. 279, 290 (2012). The nature of these protected relationships requires
confidentiality to incent laypersons to avail themselves of these relationships
without fear of exposure. See id. In addition, true privileges are also recognized
to promote personal autonomy—that is, to allow laypersons to better exercise
27
personal autonomy by making more independent and better informed life
decisions. See id. In contrast, the holders of the work product immunity are
granted the immunity as functionaries in an adversarial legal system, primarily to
render the system workable after the adoption of the rules of civil procedure,
which increased the scope of pretrial discovery:
The pre-trial deposition-discovery mechanism established by Rules
26 to 37 is one of the most significant innovations of the Federal
Rules of Civil Procedure. Under the prior federal practice, the pre-
trial functions of notice-giving issue-formulation and fact-revelation
were performed primarily and inadequately by the pleadings.
Inquiry into the issues and the facts before trial was narrowly
confined and was often cumbersome in method. The new rules,
however, restrict the pleadings to the task of general notice-giving
and invest the deposition-discovery process with a vital role in the
preparation for trial. The various instruments of discovery now
serve (1) as a device, along with the pre-trial hearing under Rule
16, to narrow and clarify the basic issues between the parties, and
(2) as a device for ascertaining the facts, or information as to the
existence or whereabouts of facts, relative to those issues. Thus
civil trials in the federal courts no longer need be carried on in the
dark. The way is now clear, consistent with recognized privileges,
for the parties to obtain the fullest possible knowledge of the issues
and facts before trial.
Hickman v. Taylor, 329 U.S. 495, 500-01 (1947); see id. at 510 (“Historically, a
lawyer is an officer of the court and is bound to work for the advancement of
justice while faithfully protecting the rightful interests of his clients.”);
Imwinklereid, 37 U. Dayton L. Rev. at 290. The commissioner and the majority’s
conclusion that the “privilege” waiver in section 85.27(2) waives the work product
immunity is thus erroneous because the work product immunity is not a
“privilege.”
Even assuming the work product immunity is a “privilege,” the
commissioner further erred because the statutory privilege waiver does not apply
28
to the primary holder of the privilege. The statute provides “[a]ny employee,
employer or insurance carrier . . . waives any privilege.” Iowa Code § 85.27(2)
(emphasis added). The statute makes no mention of the parties’ respective
attorney(s). It is widely held that “the work product privilege belongs to both the
client and the attorney, either of whom may assert it.” In re Grand Jury
Proceedings, 561 F.3d 408, 411 (5th Cir. 2009). As a result, “a waiver by the
client of the work product privilege will not deprive the attorney of his own work
product privilege, and vice versa.” In re Grand Jury Proceedings, 43 F.3d 966,
972 (5th Cir. 1994); see also MapleWood Partners, L.P. v. Indian Harbor Ins.
Co., 295 F.R.D. 550 (S.D. Fla. 2013) (“Immunity from production of work-product
materials may be asserted by either the attorney or the client, and each can
waive that immunity, but only as to herself . . . .”). Thus, the commissioner erred
in concluding that section 85.27(2) waives the work product immunity because
the attorney also is entitled to assert the work product immunity, even contrary to
the client in response to a discovery request.
For the foregoing reasons, I conclude the agency must be reversed with
respect to these holdings.
III.
The commissioner’s declaratory order next addressed the discovery of
surveillance materials:
d) Pursuant to Iowa Code § 85.27, are Defendants
required to produce surveillance videos, photos,
and/or reports when asked for in appropriate
discovery requests?
Answer: Yes. Pursuant to Iowa Code section 85.27(2) defendants
may request the commission, or the commissioner’s designee, to
review the request and issue an order accordingly.
29
The majority concludes the commissioner’s conclusions are without error. Again,
I respectfully disagree.
The commissioner’s conclusion that work product, even ordinary work
product, is subject to discovery upon request and without the showing required
under the rules of civil procedure is directly contrary to controlling authority. In
Squealer Feeds, 530 N.W.2d at 688, the supreme court concluded “that a
claimant is not entitled to obtain the file of his adversary . . . merely upon
request.” (emphasis added)). The Squealer Feeds court reasoned as follows:
Counsel should be allowed to amass data and commit his opinions
and thought processes to writing free of the concern that, at some
later date, an opposing party may be entitled to secure any relevant
work product documents merely on request and use them against
his client.
Id. The court continued:
The fact remains that [the insurer’s] file compiled after the denial of
[the] claim is no different and entitled to no less protection than the
file of [the insured] and his attorney prepared during the same time
frame. An insurer, no less than any other party, should be able to
prepare its case free of concern that, at some later date, an
opposing party may be entitled to secure any relevant work product
documents merely on request.
Id. The commissioner and majority’s conclusion that work product—even
ordinary work product—is subject to production upon request is directly contrary
to this authority.
The commissioner and majority’s conclusion that the party asserting the
work product protection can obtain relief by requesting an order from the
commission is also in error. First, this conclusion does not jibe with the
commissioner and majority’s holding that section 85.27(2) waives work product
protection. If the statute waives work product protection, as they conclude, then
30
what relief is the party able to seek? Second, this conclusion is directly contrary
to the plain language of the statute, which provides: “If release of information is
refused the party requesting the information may apply to the workers’
compensation commissioner for relief.” The statute clearly provides that it is the
party seeking the information that must come to the commissioner for relief after
the opposing party’s assertion of work product immunity. The commissioner’s
declaratory order and the majority’s opinion is thus contrary to the plain language
of the statute.
For the foregoing reasons, the commissioner erred in concluding that
surveillance materials prepared in anticipation of litigation are discoverable upon
request and that the party claiming work product protection must seek relief from
the agency.
IV.
The declaratory order next addressed the timing of the production of
surveillance materials.
e) Pursuant to Iowa Code § 85.27, are Defendants
permitted to withhold surveillance videos, photos,
and/or reports until after deposing the injured worker?
Answer: No. Pursuant to Iowa Code section 85.27(2) defendants
may request the commissioner, or commissioner's designee, to
review the request and issue an order accordingly.
f) Pursuant to Iowa Code § 85.27, when are
Defendants required to produce surveillance videos,
photos and/or reports?
Answer: Iowa Code section 85.27(2) states, The information shall
be made available to any party or the party’s representative upon
request. If a request is made pursuant to Iowa Code section 85.27,
rather than through formal discovery, the period found in rule 876
IAC 4.17 shall apply. The report must be served upon the opposing
party within 20 day of filing an answer or if not then in possession
within 10 days of receipt, if requested by claimant or claimant’s
31
representative. If the request is made as a discovery request
pursuant to the Iowa Rules of Civil Procedure, the periods set forth
within the discovery rules shall apply.
The commissioner’s holding with respect to these two questions is predicated on
its erroneous legal conclusions that surveillance materials cannot be work
product, whether ordinary or opinion, and that work product is waived in workers’
compensation proceedings. Because of the commissioner’s erroneous reliance
on those two conclusions, it failed to consider these questions under the
controlling rules of civil procedure. See Iowa Admin. Code r. 876-4.35 (“The
rules of civil procedure shall govern the contested case proceedings before the
workers’ compensation commissioner unless the provisions are in conflict with
these rules and Iowa Code chapters 85, 85A, 85B, 86, 87 and 17A, or obviously
inapplicable to the workers’ compensation commissioner. In those
circumstances, these rules or the appropriate Iowa Code section shall govern.”).
In analyzing the work product protection under the rules and relevant case
law, I conclude that the employer or insurer in a workers’ compensation
proceeding should not be required to produce surveillance materials constituting
ordinary work product until after the deposition of the claimant. Federal courts
that have addressed this issue under the parallel Federal Rules of Civil
Procedure have struck this balance after considering the competing interests of
the parties. For example:
Once it is conceded, as it must be, that not only those
surveilled may be tempted to alter the truth, but that those
conducting the surveillance may be subject to the same temptation,
it becomes clear that surveillance information and material must be
subject to discovery. Moreover, it cannot reasonably be argued
that possibilities for impeachment presented by such evidence or,
to the extent applicable, the work-product doctrine preclude
32
discovery. Finally, account must be taken of the fact that, if the
adversarial process is to function efficiently, discovery must be
accomplished at a time when opportunity exists to test, through
further discovery, the manner and means by which the surveillance
was conducted. Accordingly, in cases pending in this division in
which surveillance material and information are sought in discovery,
the surveilling party shall, after the passage of sufficient time for
deposing those surveilled, make available for inspection and
copying all films and tapes taken in connection with the
surveillance. If inquiry is made, that party shall also provide the
name and address of any individuals conducting the surveillance,
the date or dates on which films or videotapes were taken and an
indication as to whether or not a written report exists with respect to
such surveillance.
Boyle v. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D. W.Va. 1992). Similarly:
Defendant’s argument against discovery of surveillance
materials has the appeal that they would be used only if plaintiff lies
or misleads in his testimony about the extent of his injuries, in
which case he should bear the consequences of his perjury or
misrepresentation. This assumes that only a plaintiff might attempt
to mislead the court. However, the court’s neutrality precludes any
such biased assumption. From the bench’s point of view, the
defendant is just as likely to resort to chicanery as the plaintiff. Just
as a plaintiff can lie or exaggerate, so can a defense surveillance
film be distorted through photography or editing. Plaintiff
hypothesizes that a film showing a plaintiff carrying a heavy load
might be stopped so as not to show him grabbing his back in agony
from the strain. The undersigned recalls a case in which a
surveillance film showed an injured plaintiff to be engaged in
activity (yard work) inconsistent with his claims of resulting
disability. By learning of the film in advance of trial, however, he
was able to produce records showing that following the activity he
was forced to get medical treatment and was admonished by a
physician not to do such work. Also . . . discovery of the materials
would permit them to be studied before their use at trial to ensure
that the photography was not misleading in any way.
The [order compelling production] balanced the needs of
both parties by requir[ing] the production of the materials pursuant
to discovery, but only after defendant had an opportunity to depose
plaintiff, by video-deposition, if it so chose. . . .
. . . [A]llowing discovery of surveillance materials after the
deposition of the plaintiff, but before trial, best meets the ends of
justice and the spirit of the discovery rules to avoid surprise at trial.
Ford v. CSX Transp., Inc., 162 F.R.D. 108, 111-12 (E.D.N.C. 1995). Likewise:
33
Accordingly, the Court believes that a reasonable
compromise between the Plaintiff’s interests and those of the
Defendant is to require the Defendant to disclose, before the taking
of the Plaintiff's deposition, the existence of any surveillance
evidence of the Plaintiff and the date on which the surveillance was
obtained, and to indicate whether the surveillance is in the form of
film, videotape, or still photographs. However, the Defendant is not
required to reveal the substance of the surveillance, where the
surveillance was obtained, or the reason it was obtained. The
actual surveillance evidence must be produced within thirty days
after the Plaintiff’s deposition has been taken.
Diamond Offshore Drilling, Inc., 168 F.R.D. at 587.
Other courts have reached the same conclusion. See Martino, 179 F.R.D.
at 590 (“To preserve the defendant’s right to use the tapes as impeachment
evidence, however, plaintiff’s deposition is to be completed before the tapes are
produced.”); Corrigan v. Methodist Hosp., 158 F.R.D. 54, 59 (E.D. Pa. 1994)
(stating general rule that “surveillance materials are discoverable, within the
context of the attorney work product doctrine” but that “before any of these
disclosures . . . the defense must be given an opportunity to depose the plaintiff
fully as to her injuries.”); Daniels v. Nat’l R.R. Passenger Corp., 110 F.R.D. 160,
161 (D.N.Y. 1986) (stating the same general rule).
The above-quoted and above-cited decisions balance three competing
interests: the injured person’s need to obtain information; the opposing party’s
right to prepare a defense to the claim; and the truth-seeking function of the
administrative/judicial process. See Ex Parte Doster Constr. Co., Inc., 772 So.
2d 447, 450-51 (Ala. 2000) (noting “the quest for the truth should be furthered
through protecting the videotape before the employee is deposed”); Wolford v.
JoEllen Smith Psychiatric Hosp., 693 So. 2d 1164, 1167 (La. 1997) (explaining
34
“delaying the production of the videotape until after the plaintiff has been fully
deposed aids in the search for the truth”).
In reaching my conclusion, I also take guidance from the agency’s practice
and procedure prior to this case. Prior to this case, the agency recognized that
surveillance materials are work product subject to protection. The agency
balanced the competing interests of the claimant and the employer/insurer by
requiring production of surveillance materials, but only after the claimant’s
deposition. See Ramirez v. Riverview Care Ctr., File Nos. 1243830, 1253740,
1253741, 1253742, 1253743, 2002 WL 32125248, at *2 (Iowa Workers’ Comp.
Comm’n Aug. 2, 2002) (“Under the prevailing rule, surveillance materials may be
withheld as privileged work product for a reasonable time until the party observed
can be deposed or otherwise compelled to take a position on the facts pertinent
to the surveillance.”); Hansen v. Graham Constr., File No. 1171846, 2000 WL
33992554, at *8 (Iowa Workers’ Comp. Comm’n Dec. 28, 2000) (stating that it
was not improper for the employer to withhold such documents until after
deposition); Hoover v. Iowa Dep’t of Agric., File No. 529205, 1993 WL 13021598,
at *4 (Iowa Workers’ Comp. Comm’n April 30, 1991) (approving defendant’s
withholding of surveillance material from disclosure in discovery until after the
claimant's deposition “to protect the impeachment value of the evidence until
after claimant’s deposition, where sufficient time remained before hearing for
claimant to avoid prejudice by examining the evidence and cross-examining the
surveillance witnesses”). It was only the commissioner’s erroneous conclusions
regarding the scope of discovery and waiver under section 85.27(2) that
35
convinced the commissioner to break from the agency’s prior practice and
procedure.
V.
I need not address the remainder of the questions presented to the
agency or the agency’s answers to the same, as they are all contingent on or
interrelated with the errors discussed above. I would reverse the judgment of the
district court and remand this matter for further proceedings.