by Dana F. Aoudi –
Although applicant’s 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 a deposition may seem. After all, the applicant is still giving their 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 § 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 pops up of them doing something completely contradictory.
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 (1989) 16 CWCR 76, 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 WCAB panel decision, Hurst v. Home Depot (1996) 25 CWCR 22, 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 defendants’ the med-legal experts to review the videos.
In the panel decision of Monsanto v. WCAB 79 CCC 730, the WCAB 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 MSC, approximately seven months after applicant’s attorney initially made their 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 them at the time that applicant’s attorney first made their 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 lbs. at the local gym or pushing their SUV down the Hollywood Freeway, just remember to serve a “reasonable” time before setting the case for trial.
Viewing this website does not form an attorney/client relationship between you and Bradford & Barthel, LLP or any of its attorneys. This website is for informational purposes only and does not contain legal advice. Please do not act or refrain from acting based on anything you read on this site. This document is not a substitute for legal advice and may not address every factual scenario. If you have a legal question, we encourage you to contact your favorite Bradford & Barthel, LLP attorney to discuss the legal issues applicable to your unique case. No website is entirely secure, so please be cautious with information provided through the contact form or email. Do not assume confidentiality exists in anything you send through this website or email, until an attorney/client relationship is formed.