Discovery/Attorney-client work product/ Witness Statements

The question is whether defendants can delay production of the statements until after the deposition of the applicant. The outcome of this case is consistent with the cases on films, which concluded that films are discoverable but defendants have a right to first take the deposition of the applicant as long as the deposition is scheduled within a reasonable amount of time after the requests for films. The board is split on this issue as there are other cases allowing the applicant to have the statements prior to the deposition.

Brumm v. State of California (BPD) ADJ 7490993

The facts show defendant took the statements of fifteen witnesses in a case in which AOE-COE was disputed. The applicant made a discovery request for production of the witness statements and refused to have his deposition taken until the production of witness statements by defendant.

The WCJ ruled that attorney-client work product privilege did not preclude disclosure of the witness statements and justice would best be served by disclosing the witness statements but not until after the deposition of the applicant.

Defendants did not appeal the portion of the decision requiring disclosure the witness statements.

Applicant appealed and argued that defendant would have an unfair vantage, and would be able to ask questions out of context, which would produce inadvertent inconsistencies, which would then be a basis for a medical opinion. Applicant referred to this as a “discovery by surprise”.

The WCJ indicated the applicant was not entitled to discovery of the witness statements until after the deposition.

Applicant argued based on the case of Hardesty v. McCord (41 CCC 111), that discovery is designed to facilitate pre-trial preparation, eliminate surprise and encourage settlement. The applicant’s attorney argued that allowing the discovery of the statements prior to the deposition would avoid surprise. The applicant’s attorney indicated that the case of Hardesty stood for the proposition that there was a need to safeguard against unfair surprise.

The WCJ indicated that one of the principal purposes of discovery was to do away with the theory of surprise at trial. In this case there is no threat of surprise at trial. Hardesty stands for the proposition of the need to safeguard against unfair surprise is at trial, and does not prevent any and all surprise. The process of discovery by which a party discovers unknown information inherently leads to some amount of surprise. The applicant will have an opportunity to respond before trial. The judge concluded that the arguments for disclosure of the statements before the deposition of the applicant fail to show significant prejudice or irreparable harm. Any surprise can be remedied by further discovery.

The WCAB denied removal finding no significant prejudice or irreparable harm
NOTE: Based on the Supreme Court case of Coito v. The Superior Court of Stanislaus County; State of California (2012) 54 Cal. 4th 489, witness statements in Worker’s Compensation cases are discoverable as ruled by the WCJ in this case.

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