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DISCOVERY

"In 1976, Commissioner Mervin N. Glow wrote the opinion in Hardesty, a board panel decision that is still a leading case on discovery in workers’ compensation law (Hardesty v. McCord & Holdren, Inc., 41 CCC 111 (BPD-1976). The Board found that "the procedural provisions of  the Code of Civil Procedure (§§2016, et seq.) relating to discovery are not applicable in workers' compensation proceedings. Proceedings before the Workers' Compensation Appeals Board are governed by the specific provisions of the Labor Code and of the Board's Rules of Practice and Procedure adopted pursuant to the authority conferred by §5307 of the Labor
Code, not by the Code of Civil Procedure." Apart from the subpoena and the deposition, no other discovery methods have been incorporated from the Code of Civil Procedure [CCP]."  See People Who Made A Difference

Hardesty is still the guiding light: In Hardesty v. McCord & Holdren, Inc. (1976) 41 CCC 111: Commissioner Glow discussed why interrogatories are not welcome: "[T]he procedural provisions of the Code of Civil Procedure...relating to discovery are not applicable in workers' compensation proceedings. Proceedings before the Workers' Compensation Appeals Board are governed by the specific provisions of the Labor Code and of the Board's Rules of Practice and Procedure adopted pursuant to the authority conferred by § 5307 of the Labor Code, not by the Code of Civil Procedure. Moreover, although we recognize that the liberal rules relating to discovery which were added to the Code of Civil Procedure in 1957 have had the salutary effect of facilitating pre-trial preparation, eliminating surprise during trial, and encouraging settlement, those provisions have not been a wholly unmixed blessing to litigants and their attorneys. We are enjoined by Article XX § 21 of the Constitution of this state to afford the parties appearing before us a forum which shall accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character. The adoption by us of a set of rules relating to discovery which would permit a paper war of interrogatories and would require frequent pre-trial appearances by counsel to argue discovery motions would be inconsistent with that constitutional mandate."

Privileges: See Privilege Issues

Procedure: The WCAB has broad discretion to issue discovery orders under Labor Code §§5300 and 5301. The Board can also conduct an in camera review of disputed issues (see privacy and confidentiality and privacy. But discovery is cut off at the MSC:  "If the claim is not resolved at the Mandatory Settlement Conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party’s proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference." LC §5502(d)(3).

Discovery issues that require Board intervention can be handled at a Status Conference.

See, too, DepositionsSubpoenaing Records, Surveillance, and Privacy & Confidentiality.

Label Item Links Comments
Labor Code Labor Code §5310: "Any workers' compensation administrative law judge appointed by the administrative director has the powers, jurisdiction, and authority granted by law, by the order of appointment, and by the rules of the appeals board."

While the WCAB is not bound by statutory rules of evidence, they are bound by the rules relating to privileges. See Evid Code §910.
LC §5310   
Code of Civil Procedure CCP § 2017.010: "Unless otherwise limited by order of the court in accordance with this title, 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. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other  property."

CCP § 2017.020: "The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040...."

CCP §2031:010 allows access to electronically stored information (Facebook, emails, cell phone records, etc.)

CCP §2017.010
















CCP § 2017.020









CCP § 2031.010

 
Evidence Code "Except as otherwise provided by statute, the provisions of this division apply in all proceedings. The provisions of any statute making rules of evidence inapplicable in particular proceedings, or limiting the applicability of rules of evidence in particular
proceedings, do not make this division inapplicable to such proceedings."
Evid Code §910  
Regulations/Rules Board Rule §10348. Authority of Workers' Compensation Judges: "In any case that has been regularly assigned to a workers' compensation judge, the judge shall have full power, jurisdiction and authority to hear and determine all issues of fact and law presented and to issue any interim, interlocutory and final orders, findings, decisions and awards as may be necessary to the full adjudication of the case, including the fixing of the amount of the bond required in Labor Code section 3715. Orders, findings, decisions and awards issued by a workers' compensation judge shall be the orders, findings, decisions and awards of the Workers' Compensation Appeals Board unless reconsideration is granted.

A workers' compensation judge or a deputy commissioner may issue writs or summons, warrants of attachment, warrants of commitment and all necessary process in proceedings for direct and hybrid contempt in a like manner and to the same extent as courts of record."
8 CCR §10348  
Cases Allison v. Workers' Comp. Appeals Bd. (1999) 72 Cal.App.4th 654: "Two issues are raised in this writ proceeding. [1a] First, to what extent does a workers' compensation claimant retain the right to assert the patient-physician privilege regarding her past medical history after she has filed her claim? [2a] Second, do WCJ's have authority to issue orders compelling discovery?"  The Court of Appeal relied on Hardesty v. McCord & Holdren, Inc. (1976) 41 CCC 111, Britt (below) and Labor Code §5310.

Britt v. Superior Court (1978) 20 Cal. 3d 844: "[I]t has been clear for over two decades that the First Amendment provides substantial protection of an individual's interest in associational privacy and that it places severe restrictions on state-compelled disclosure of private affiliations and activities. The present decision simply recognizes that these firmly established constitutional precepts cannot be ignored merely because the issue of compelled disclosure arises in the context of litigation discovery; in this realm, as in all others, such disclosure of confidential associational affiliations and...activities must be justified by a compelling state interest and must be precisely tailored to avoid undue infringement of constitutional rights."

In Coito v. Super. Ct. (2012) 54 Cal. 4th 480, the Supreme Court discussed how and when work product privilege attaches to witness statements taken by the attorney or at attorney's request.
Allison v. WCAB









Britt v. Superior Court
















Coito v. Super. Ct.
 
Websites Civil Discovery & Privilege Law: Discovery Referee Richard E. Best provided extensive links. California discovery law  Always re-research
Practice Tips Make a discovery plan connected to the issues of your case. What is needed to carry the burden of proof? Is it substantial evidence? What law supports it? Download Issues & Evidence spreadsheet
Articles  Social Media & Discovery: handout from DWC 20th annual educational conference 2/13

The Right to Discovery vs. Privacy and Privilege


California: Privilege Issues In Workers’ Compensation Cases by Howard Stevens

Discovery of Witness Statements by Mark Kahn (Associate Chief Judge, Retired)

Discovery: handout from DWC 21st annual educational conference 2/14

Social Media & Discovery

Right to Discovery vs. Privacy and Privilege

Privilege Issues


Witness Statements

 

Discovery

Be aware that new Labor Code §980 allows an employer access to an employee's social media in certain situations. See too State Bar item on Social Media Postings as Evidence.
Magazine Articles How to Prevent Harassing Conduct During Workers'
Compensation Depositions by David L. Hart, Esq.

Depo Prep Made Easy: 7 steps to effective deposition preparation by Marjory Harris, Esq.
Prevent Harassing Depo Conduct

Depo Prep Made Easy
 
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