Although applicants' attorneys may be entitled to discover sub rosa video that could poke holes in an applicant’s story, defendants need not provide the films prior to the deposition, according to a 1989 panel decision.
Depositions are a very beneficial discovery tool used to dig deeper into the facts of the claim and afford defendants an opportunity to learn the strengths and weaknesses of the opposing side.
Although it is not taking place before a judge or in a courtroom, the deposition is still a legal proceeding, regardless of how informal it may seem. After all, the applicant is still giving testimony under oath during the deposition.
Lying under oath is perjury, and perjury is a crime that can result in fines and imprisonment. It is also unlawful under Insurance Code Section 1871.4 to make or cause to be made a knowingly false or fraudulent material statement or material representation for the purpose of obtaining workers’ compensation benefits.
But what if you, the defendant, have damning sub rosa video that could blow a hole in applicant’s narrative? We’ve all seen cases where applicant testifies to one thing, then video of something completely contradictory pops up.
One of the great legal minds in Southern California, retired Associate Chief Judge Mark Kahn, has pointed out that in the 1989 panel decision of Downing v. City of Hayward, it was held that video does not need to be released to applicant’s counsel prior to the deposition. Applicant’s attorney can ask for it, but that doesn’t mean it must be released immediately.
Kahn noted that another Workers' Compensation Appeals Board panel decision, Hurst v. Home Depot (1996), has concluded that the applicant’s rights are sufficiently protected as long as the applicant has a “reasonable time” to rebut the video prior to trial. Disclosure of sub rosa videos well before the mandatory settlement conference is necessary anyway, because it is usually helpful for the defendant's the med-legal experts to review the videos.
In the panel decision of Monsanto v. WCAB, the board touched on the issue of what constitutes “reasonable time” with regard to service. The court found that it was proper to exclude surveillance films from evidence at trial because the defendant had not disclosed the tapes in question until the approximately seven months after applicant's attorney initially made demands for production of same.
Thus, producing evidence seven months after it was first demanded was deemed unreasonable, even though defendant had not yet obtained it at the time that applicant's attorney made the demand.
The standard is one of reasonableness. Accordingly, if a defendant has witness statements that could strengthen the defense and schedule the applicant’s deposition within a reasonable time, then defendants can strategically choose whether to serve the witness statements on applicant’s attorney prior to a deposition versus first securing the applicant’s testimony under oath.
Ultimately, if there’s a fight over the video (and often there is), our friendly local workers’ compensation judges have jurisdiction to resolve such disputes.
Whether you’ve got footage of applicant bench-pressing 500 pounds at the local gym or pushing an SUV down the Hollywood Freeway, just remember to serve a “reasonable” time before setting the case for trial.
Dana Aoudi is a workers’ compensation defense attorney for Bradford & Barthel’s Ontario office. This entry from Bradford & Barthel's blog appears with permission.
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