867 N.W.2d 58
Iowa2015Background
- The Workers’ Compensation Core Group petitioned the Iowa Workers’ Compensation Commissioner for a declaratory order asking whether Iowa Code § 85.27(2) requires employers/insurers to produce surveillance videos, photos, and reports concerning a claimant’s physical or mental condition upon request and before the claimant’s deposition.
- The commissioner ruled § 85.27(2) applies to surveillance materials and waives the work-product protection (except for attorney mental impressions), requiring pre-deposition production on request.
- The Iowa Insurance Institute and other employer/insurer groups intervened and challenged the commissioner’s order in district court; the district court and court of appeals affirmed the commissioner.
- The Iowa Supreme Court granted further review to decide (1) whether the commissioner properly issued the declaratory ruling, and (2) whether § 85.27(2) covers surveillance/work-product materials and mandates pre-deposition disclosure.
- The Supreme Court held the commissioner had authority to issue the declaratory order but concluded § 85.27(2) is directed at health-care-related records (e.g., medical provider records) and does not abolish or displace work-product protections for litigation surveillance; it vacated the court of appeals decision, reversed the district court, and remanded to the commissioner.
Issues
| Issue | Plaintiff's Argument (Core Group) | Defendant's Argument (Institute/intervenors) | Held |
|---|---|---|---|
| 1. Was the commissioner authorized to rule on the declaratory petition? | Commissioner should decide; declaratory process appropriate to resolve issue. | Commissioner should have declined (lack of necessary parties/other procedures better). | Commissioner acted within discretion and § 17A.9 did not bar ruling. |
| 2. Does § 85.27(2) mean “all information concerning physical or mental condition” includes surveillance prepared for litigation? | “All information” is broad and includes surveillance and related reports. | Text and context limit § 85.27(2) to health-care records; it was not meant to override discovery protections like work product. | Ambiguous text resolved in context: § 85.27(2) is aimed at health-care/provider records, not post-claim litigation work product. |
| 3. Does § 85.27(2) waive the work-product doctrine (and require production of surveillance pre-deposition)? | Statutory waiver of “any privilege” covers work product and requires production upon request. | Work-product is an immunity/protection distinct from privilege and § 85.27(2) does not mention or reach it; employers/insurers may withhold surveillance until after deposition. | § 85.27(2) does not abrogate work-product protections; it does not give the commissioner authority to require production of materials otherwise protected as work product. |
| 4. Timing: if surveillance is not covered by § 85.27(2), must it still be produced pre-deposition? | (Core Group) Early disclosure promotes nonadversarial, efficient resolution; impeachment value still exists after disclosure. | (Institute) Pre-deposition disclosure undermines impeachment value and benefits claimants; withholding until after deposition preserves truth-finding. | Court declines to decide general discovery/timing rules here; leaves timing and related civil-procedure questions for cases squarely presenting them. |
Key Cases Cited
- Squealer Feeds v. Pickering, 530 N.W.2d 678 (Iowa 1995) (describing the absolute protection for attorney mental impressions under work-product doctrine)
- Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38 (Iowa 2004) (adopting the Wells standard for assessing whether materials were prepared in anticipation of litigation)
- Keefe v. Bernard, 774 N.W.2d 663 (Iowa 2009) (explaining Iowa R. Civ. P. 1.503(3) and the two-tiered work-product framework)
- Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154 (N.D. Iowa 1994) (treating surveillance materials as work product that may be discoverable upon a proper showing)