Iowa Supreme Court Reverses Commissioner’s Surveillance Declaratory Order

On June 12, 2015 the Iowa Supreme Court issued a lengthy ruling on the Surveillance Declaratory Order setting aside the commissioner’s order interpreting Iowa Code § 85.27(2). 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. In setting aside that decision, the Iowa Supreme Court held that an employer will no longer have to immediately disclose surveillance, at least not before they have an opportunity to depose claimant and more accurately assess their veracity.

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 Iowa Supreme Court concluded that §85.27(2) is limited to health-care related privileges such as the physician patient privilege, and does not affect privileges and protections related to the litigation process such as the work product doctrine. In essence the Supreme Court did not hold that an employer is free to not disclose any surveillance or other information, but held that 85.27(2) does not give the commissioner authority to require the disclosure of anything that would otherwise be protected as work product.

Iowa Rule of Civil Procedure 1.503(3) protects materials “prepared in anticipation of litigation.” To constitute work product, something must be (1) a document or tangible thing, (2) prepared in anticipation of litigation, and (3) prepared by or for another party or by or for that party’s representative. Surveillance materials are documents or tangible things, prepared in anticipation of litigation, by or for another party or that party’s representation. Therefore, the Iowa Supreme Court held surveillance materials are protected work-product. It is important to note however, that surveillance materials may be discoverable upon a showing of substantial need and undue hardship. The Supreme Court also noted that there is a consensus that surveillance loses the status of protected work product once a determination is made that the surveillance will be used at trial.

The Iowa Supreme Court has definitively held that surveillance of an employee in anticipation of litigation is work product and does not have to be immediately disclosed upon request. For questions or additional information on this topic, please do not hesitate to contact an Iowa Workers’ Compensation attorney at 402.475.1075.