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Discovery Rights for Workers’ Comp

What independent discovery rights do parties have in a contested workers’ compensation claim in California?

The system is so complex that foundational education about discovery rights is required to improve and advocate for proper public policy and behavior by participants. This article is offered as a means to educate all parties about their discovery rights.

The law and the courts have stated that each party is entitled to a complete, accurate and documented record of all aspects of their case. This includes employment records, medical reports, accident records, claim files, etc.

The right to obtain, review and prepare the record for any legal action is performed by discovery. Discovery can be defined as processes used for obtaining information and copies of all legally relevant documents between parties or non-parties in a court proceeding as a legal requirement of the courts, before trial. The court in Fairmont Ins. Co. v. Superior Court, (2000) 22 Cal.4th 245 defined what happens if the right of discovery is not afforded parties. It states: “Without an opportunity for discovery as of right, parties would face substantial barriers to effective trial preparation, with results inimical to the overall purpose of the discovery statutes to reduce litigation costs, expedite trials, avoid surprise, and encourage settlement.”

The Federal Rules of Civil Procedure (1938) have been updated and annotated by James William Moore as well as numerous judges, lawyers and scholars and are the most referred to rules of legal procedure. Moore’s Federal Practice (1997), 3rd Ed., vol. 4, pp. 1014-1016, lists what discovery is intended to accomplish:

— to give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury;
— to provide an effective means of detecting and exposing false, fraudulent and sham claims and defenses;
— to make available, in a simple, convenient and inexpensive way, facts that otherwise could not be proved except with great difficulty;
— to educate the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements;
— to expedite litigation;
— to safeguard against surprise;
— to prevent delay;
— to simplify and narrow the issues;
— to expedite and facilitate both preparation and trial.

Thus, the scope of permissible discovery is one of reason, logic and common sense. In Glenfed Dev. Corp. v Superior Court, (1997) 53 CA 4th 1113, the court wrote that California’s “pretrial discovery procedures are designed to minimize the opportunities for fabrication and forgetfulness, and to eliminate the need for guesswork about the other side’s evidence, with all doubts about discoverability resolved in favor of disclosure.”

The legislature enacted California Code of Civil Procedure, also referred to as the California Civil Discovery Act (1986). §2019.010, which lists ways a party may obtain discovery: “Any party may obtain discovery by one or more of the following methods:

(a) Oral and written depositions,
(b) Interrogatories to a party,
(c) Inspections of documents, things and places,
(d) Physical and mental examinations,
(e) Requests for admissions,
(f) Simultaneous exchanges of expert trial witness information.

§2031 reads: “The court in which an action is pending may:

— order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by subdivision (b) of Section 2016 of this code and which are in his possession, custody, or control; or

— order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying or photographing the property or any designated object or operation thereon within the scope of the examination permitted subdivision (b) of Section 2016 of this code. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.” [56 Cal.2d 370]

California Code of Civil Procedure Section 2017(a) states that “unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.”

In Irvington-Moore, Inc. v. Superior Court, (1993) 14 Cal.App.4th 733, the court states that “in establishing the statutory methods of obtaining discovery, the legislature intended that discovery be allowed whenever consistent with justice and public policy” for all litigation actions. It further states: “a party may demand that any other party produce and permit the party making the demand, or someone acting on the party’s behalf, to inspect and to copy a document that is in the possession, custody, or control, or control of the party on whom the demand is made.”

The same court relied on Greyhound Corp. v. Superior Court (1961), 56 Cal.2d 355, 382-383, 388 as to how statutes must be viewed, stating: “The statutes must be liberally construed in favor of discovery, and the courts must not extend the limits on discovery beyond those expressed by the legislature. Other than to protect against possible abuse, the legislature did not differentiate between the right to one method of discovery and another, but intended the right to use each of the various vehicles of discovery to be inherently the same. Selection of the method of discovery is made by the party seeking discovery; it cannot be dictated by the opposing party.”

The Discovery Act of 1986 codifies the liberal discovery concept providing a bona fide right for parties to conduct independent discovery in every litigated matter.

The Glenfed Dev. Corp. v. Superior Court, supra, court crystallized relevance. “In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence.” (See also, Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612).

One of the most significant cases for discovery in the workers’ compensation arena is Patricia Ann Hardesty et al., (John D. Hardesty, Jr., deceased), v. McCord & Holdren, Inc. and Industrial Indemnity Company (1976) 41 CCC 111. The ruling is: “Each party to a workers’ compensation proceeding must make available to the other party for inspection all non-privileged statements of witnesses which are in his possession, or which might come into his possession before the time of trial, since the denial of discovery of non-privileged statement would unfairly prejudice the opposing party in preparing his case and would unduly expose him to the danger of surprise at trial.”

Labor Code §5710 is the authority on California workers’ compensation for taking the deposition of applicants, physicians, experts, employers and claims adjusters. (Note: Deposition can mean either the oral taking of a statement under oath or deposing of records). §5710 reads: “The appeals board, a workers’ compensation judge, or any party to the action or proceeding, may, in any investigation or hearing before the appeals board, cause the deposition of witnesses residing within or outside the state to be taken in themanner prescribed by law of like depositions in civil actions in the superior courts of this state under Title 4 of Part 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure.”

Case law supports the right of parties to subpoena records. This right can be found in Irvington-Moore, Inc. v. Superior Court. It states: “A party may demand that any other party produce and permit the party making the demand, or someone acting on the party’s behalf, to inspect and to copy a document that is in the possession, custody or control of the party on whom the demand is made.”

In workers’ compensation, the most common form of discovery to develop the record is obtained through documented business and medical records and witness depositions. The right to issue a subpoena is found in California Evidence Code §1560(e), which states: “The subpoenaing party in a civil action may direct the witness to make the records available for inspection or by copying by the party’s attorney, the attorney’s representativeor deposition officer as described in Section 2020.420 of the Code of Civil Procedure, at the witness’ business address under reasonable conditions during normal business hours.”

Subpoena rights are also buttressed by Workers’ Compensation Title 8 Regulation §10530: “The Workers’ Compensation Appeals Board shall issue subpoenas and subpoenas duces tecum upon request in accordance with the provisions of Code of Civil Procedure sections 1985 and 1987.5 and Government Code section 68097.1.”

Workers’ Compensation Title 8 Regulation §10626 iterates: “Except as otherwise provided by law, all parties, their attorney, agents and physicians shall be entitled to examine and make copies of all or any part of physician, hospital or dispensary records that are relevant to the claims made and the issues pending in a proceeding before the Workers’ Compensation Appeals Board.”

Subpoena duces tecum means: “bring with you under penalty of law” and compels the party or non-party custodians of record to bring records that they have and to verify to the court that the documents or records have not been altered. California Code of Civil Procedure §1985(c) states that: “The clerk, or a judge, shall issue a subpoena or subpoena duces tecum signed and sealed but otherwise in blank to a party requesting it, who shall fill it in before service. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena to require attendance before the court in which the action or proceeding is pending or at the trial of an issue therein, or upon the taking of a deposition in an action or proceeding pending therein; the subpoena in such a case need not be sealed. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena duces tecum to require production of the matters or things described in the subpoena.”

Title 8 Regulation §10530 provides for the WCAB issue subpoenas and subpoenas duces tecum upon request. Subpoenas for records are sent to one or multiple businesses. California Evidence Code §1270 identifies meanings for business and evidence. “As used in this article, “a business” includes every kind of business, governmental activity, profession, occupation, calling or operation of institutions, whether carried on for profit or not.” This same code defines business record and the requirement that they are made under oath as to authenticity. Section 1271 states: “Evidence of a writing made as a record of an act, condition or event is not made inadmissible by the hearsay rule when offered to prove the act, condition or event if:

(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the act, condition, or event;
(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

California Evidence Code §1560(e) states: “as an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the party’s attorney, the attorney’s representative, or deposition officer as described in Section 2020.420 of the Code of Civil Procedure.”

California Code of Civil Procedure §1985.3(a)(4) defines deposition officer as a person who meets the qualifications specified in Section 2020.420. The qualification states: “The officer for a deposition seeking discovery only of business records for copying under this article shall be a professional photocopier registered under Chapter 20 (commencing with Section 22450) of Division 8 of the Business and Professions Code, or a person exempted from the registration requirements of that chapter under Section 22451 of the Business and Professions Code. This deposition officer shall not be financially interested in the action, or a relative or employee of any attorney of the parties.”

California Business and Professions Code §22458 states: “A professional photocopier shall be responsible at all times for maintaining the integrity and confidentiality of information obtained under the applicable codes in the transmittal or distribution of records to the authorized persons or entities” and able to swear under oath as to its authenticity, establishing the proper evidential chain of custody.

The substantial evidence rule is applied by the California Appellate Court to the Workers’ Compensation Board decision. The substantial evidence rule is a principle that a reviewing court should uphold an administrative body’s ruling if it is supported by evidence on which the administrative body could reasonably base its decision. “Substantial” means that the evidence must be of ponderable legal significance. It must be reasonable in nature, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case.

Citing Petrocelli v. Workmen’s Comp. Appeals Bd. (1975) 45 Cal.App.3d 635, the California Appellate Court in Georgia-Pacific Corp. v. Workers’ Comp. Appeals Bd., (1983) 144 Cal.App.3d 72, wrote that “the respondent board’s decision to uphold the finding of the workers’ compensation judge should not be disturbed where supported by substantial evidence or fairly drawn inferences . . .” — thereby demonstrating that Appellate Court findings can set precedent on an administrative order/finding.

A party must be able to conduct independent discovery, or the case will not be litigated based on a complete and accurate record, which is a violation of the due process of law. (U.S. Const. amend. IV and XIV).