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To Produce or not to Produce?

Written By: Lauren K. Dimitri, Esq.

In July of this year, the Appellate Division of the State Board of Workers’ Compensation rendered a decision on surveillance that has created quite the buzz in the Comp community. The Employee in State Board of Appeal #2013024225 appealed the administrative law judge’s order which granted the Employer’s motion for a protective order seeking protection of surveillance video that was taken of the Employee by an investigator hired by the Employer. The Employee argued that the administrative law judge abused his discretion in denying her motion to compel discovery of the video, while the Employer stood by its position that the video was protected from discovery as being prepared in anticipation of litigation.

The specific discovery request at issue asked for the identities of persons having knowledge relevant to the claim, whether the Employer had conducted surveillance of the Employee and, if so, the identities of the persons performing such surveillance and the dates of such surveillance, and “all documentary and non-documentary evidence including, but not limited to, tapes, recording[s], statements and/or transcriptions of same that support claimant’s contentions…” In response, the Employer disclosed that it conducted surveillance of the Employee, the dates of the surveillance and the identity of the investigator who performed the surveillance. The video, of course, was withheld as it was prepared during a time when actual litigation was pending.

Ultimately, in finding that the administrative law judge properly granted the Employer’s motion for a protective order, the Appellate Division recognized “the significant value of obtaining such surveillance is to evaluate the strengths of the parties’ contentions and to serve as potential impeachment evidence.” Specifically, the Board found that the Employee does not have a substantial need for the video before her discovery deposition. In fact, the Board went even further to state, “requiring their production prior to [the Employee’s] deposition would cause unnecessary harm to the Employer’s hearing preparation in that it would deprive them of the opportunity to obtain [the Employee’s] sworn testimony based on her candid recollections unrefreshed by materials generated by the Employer for this purpose.” However, the Board tempered its decision by finding that the Employee’s substantial need for the video can be met by production at any time prior to a hearing on the merits, as it gives the Employee a “reasonable opportunity” to review the material for authenticity, integrity and for the purpose of preparing rebuttal evidence.

This decision essentially split the baby – the Employer is protected from giving up the goods initially, but ultimately must turn it over. However, at what point does the video need to be produced? Arguably, fairly soon after the Employee’s deposition or at some reasonable time prior to a hearing. The issue that may be further explored by a later challenge is the timeliness of the production. Moreover, what about other evidence, such as recorded statements? This decision should support the contention that an employee’s recorded statement, if one exists, is also protected until sometime after the employee’s deposition so long as it was created in anticipation of litigation. The lesson then, given the uncertainty of these peripheral issues, is that employers, employees and their counsel must consider how this opinion may play a role in current and future litigation.