Posted on 06/17/2015 at 07:19 AM by Melissa Schilling
Co-Authored with Russell L. Samson and Jill R. Jensen-Welch
In November 2014, I discussed a decision of the Iowa Court of Appeals which concluded that employers must disclose all surveillance video whether it is helpful or harmful to opposing counsel prior to the employee's deposition in a workers' compensation proceeding. On June 12, 2015, the Iowa Supreme Court reversed this decision! In Iowa Insurance Defense Institute v. Core Group of the Iowa Association for Justice, No. 13-1627 (Iowa 2015), the Iowa Supreme Court held that employers are not required to disclose surveillance video to opposing counsel prior to an employees deposition in a workers compensation proceeding. To reach this conclusion, the Iowa Supreme Court found that surveillance materials are protected from disclosure by the work product doctrine, at least initially. The work product doctrine is a legal doctrine that protects trial preparation materials from discovery. The Iowa Supreme Court explained that surveillance materials are clearly work product because they are: (1) documents or tangible things; (2) prepared in anticipation of litigation; and (3) prepared by or for another party or by or for that partys representative. These findings are consistent with the prevailing view in other jurisdictions and with the policies behind workers compensation. As Iowa Insurance Defense Institute highlighted in this case, truly injured workers the intended beneficiaries of workers compensation law do not need to see surveillance of themselves before they testify under oath in a deposition. It is those who testify falsely about physical limitations who get impeached effectively by video recordings they have not seen. Therefore, allowing an employer or an employers attorney to withhold surveillance until after the employee's deposition does not undermine the policies of workers compensation. Take Aways: While this decision brings good news to employers, a number of questions still remain. For instance, the Supreme Court did not rule on the following issues:
whether surveillance taken for litigation purposes loses its work product status when a determination is made that the surveillance will be used at the hearing;
whether a party has a substantial need for access to surveillance and is the party unable to obtain the substantial equivalent without undue hardship if the surveillance is going to be used at the hearing; and
if a party can withhold access to surveillance on the basis that it is work product, what disclosures must the party make in a privilege log.
While the Supreme Court did not rule on these issues, it hinted that surveillance video likely loses the status of protected work product once a determination is made that the surveillance will be used at a hearing. When to disclose video surveillance of employees, and indeed, whether to even conduct it in the first place, are issues that employers should carefully consider with the help of legal counsel. If you have any questions regarding the use of employee surveillance video in workers' compensation proceedings or in litigation, please contact Melissa Schilling.
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