Declaratory Order Addressing Surveillance Challenged; Affirmed.

In October of 2012, former Commissioner Christopher Godfrey ruled in a Declaratory Order that surveillance video of and reports pertaining to a claimant must be disclosed upon request by the claimant or claimant’s counsel. Prior to this Order, it was common practice to withhold surveillance until the surveilled party was deposed or otherwise compelled to take a position on facts relevant to what was depicted in the surveillance.

Upon Petition of the Workers’ Compensation Core Group of the Iowa Association for Justice, the former Commissioner ruled that under Iowa Code §85.27(2), surveillance and surveillance reports must be produced on request. Iowa Code §85.27(2) states in part that, “any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information for which [they] have access to concerning the employee’s physical or mental condition…shall be made available to any party or the party’s representative upon request…” The defense bar challenged the Declaratory Order, arguing that statute only applied to the release of medical evidence.

On October 29, 2014, the Iowa Court of Appeals affirmed the former Commissioner’s Order. The Iowa Court of Appeals agreed with the Commissioner that §85.27(2) applies not only to information held by third parties, but to all information that an employee, employer or insurance carrier has access to regarding a claimant’s physical or mental condition. The Court also stated that this interpretation of §85.27(2) also comports with the overall longstanding disapproval of “litigation by surprise.”

It is important to note, however, that the Court of Appeals affirmed the former Commissioner’s preservation of the attorney work-product privilege. It is not entirely clear when this privilege can be asserted. The Court stated that surveillance, by itself, does not implicate any mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. However, a surveillance report arguably may contain such information. The Court acknowledged that the Declaratory Order allows for a party to object and request that the information not be disclosed pursuant to either §85.27(2) or Iowa R. Civ. P. 1.503(5)(a). Under Iowa R. Civ. P. 1.503(5)(a), a party will be required to describe the nature of the surveillance or surveillance report in a manner that, without revealing the privileged information, will enable the other parties to assess the applicability of the privilege.

For questions or additional information on this topic, please contact Iowa Workers’ Compensation attorney Emily R. Motto at EMotto@baylorevnen.com or 402.475.1075.