Ethics of Discovery Objections

This paper was originally written for and presented at the Atlanta Bar Association’s Advanced Workers’ Compensation seminar on February 18, 2000.

The workers’ compensation bar in Georgia is a relatively small one. The discovery nightmares that our brothers and sisters in the general litigation bar regularly endure are generally characterized as obstructionist in the genteel, somewhat anachronistic world of workers’ compensation litigation.

Nonetheless, there are ethical legal issues that arise in workers’ compensation discovery.

O.C.G.A. § 34-9-102(d)(1) makes The Civil Practice Act applicable to discovery in workers’ compensation cases. The scope of discovery, found in O.C.G.A. § 9-11-26 (b)(1) is very broad: 

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence;”

This paper will address those things that may or may not be discoverable and the methods and advisability of making objections.

I. PRIVILEGE

The first caveat in O.C.G.A § 34-11-26(b)(1) is the privilege exception. There are many varieties of privileges. Those most frequently encountered in workers’ compensation cases are discussed here.

A. Attorney-Client

O.C.G.A. § 24-5-25 states “No attorney shall be competent or compellable to testify for or against his client to any matter or thing, the knowledge of which he may have acquired from his client by virtue of his employment as attorney or by reason of the anticipated employment of him as attorney….”

The claimant’s attorney most often encounters this when the claimant has returned to work or has been working during receipt of temporary total or temporary partial benefits. What is the attorney’s obligation in this instance? Rule 3-107 of the Canons of Ethics of the State Board of Georgia states “A lawyer shall represent a client zealously within the bounds of the law.” EC 7-27 mandates that a lawyer “should not suppress evidence that he or his client has equal obligation to reveal or produce.” DR 7-102(B) states that “A lawyer who receives information clearly establishing that: (1) his client has, in the course of the representation, perpetrated a fraud upon the person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do, he shall reveal the fraud to the affected person or tribunal.”

This could be a very ticklish situation for the attorney. What exactly constitutes fraud? Is the claimant who has been receiving workers’ compensation benefits but who does odd jobs here and there perpetrating a fraud? Does the receipt of money for babysitting result in the receipt of income that must be reported to the workers’ compensation insurer? Does one odd job constitute a return to work? These are difficult questions because revealing that the employee did some work, no matter how little, may result in the employer/insurer’s decision to terminate benefits thereby forcing the attorney to seek a hearing which will take months to get.

On the other hand, failing to report income may constitute a violation of these ethical standards. The attorney is further compromised by the knowledge that reporting what may or may not be income will not only jeopardize his client’s benefits but may jeopardize the amount of an expected settlement.

At the initial interview and when it appears that that the claimant may soon be able to do some work the attorney must explain to the claimant that receipt of temporary total benefits is predicated upon not working at all. All of us have encountered claimants who have been discovered to be working and who claim to be ignorant as to this element of the law.

Knowledge that his or her benefits may or will be suspended even for working an odd job has the unintended consequence of discouraging a claimant from seeking work. Some claimants, knowing that the attorney has an obligation to inform the insurer of the claimant’s work activities, respond by not passing this information along to the attorney.

What should the claimant’s attorney do? If the attorney is convinced that the client indeed is working, he should ask the client for permission to reveal this information to the insurer. The attorney should make it clear that DR 7-102(B) requires the attorney to reveal this information even if the client will not give him the permission. This does not make the client happy but the undersigned has never encountered a client who, when fully understanding the situation, has denied permission to reveal the information.

The attorney should fully investigate the return to work, getting as much documentation as possible, particularly when the work was for a very brief period, and present the information in such a way as to encourage the adjuster to make a brief adjustment to temporary partial benefits and then return to temporary total.

B. Privilege Against Self-Incrimination

O.C.G.A. § 24-9-27(a) states: “No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace, or public contempt upon himself or any member of his family.”

This privilege arises in many contexts. Georgia has been experiencing a large influx of immigrants. Many of these immigrants have entered this country illegally. Being an illegal alien does not prohibit the employee from receiving workers’ compensation benefits. Dynasty Sample Co. v. Beltran, 224 Ga. App. 90, 479 S.E. 2d 773 (1996). Certainly, an illegal alien has they have the right to assert this privilege concerning the illegal status. However, pursuant to Jefferson Ins.Co. of N.Y.v. Dunn, 224 Ga. App. 732, 482 S.E. 2d 383 (1997) pleading the 5th amendment in civil cases means that the fact finder may draw any inference against the claimant.

The claimant’s attorney has an ethical obligation to explain to the client the ramifications of not asserting this privilege. While not asserting the privilege will hasten the resolution of the workers’ compensation case, it may subject the client to ultimate deportation. This is one of the many potential conflicts that claimant’s attorneys encounter with their clients. None of us would feel rewarded by the pocketing of a fee while subsequently learning that the client’s workers’ compensation claim has ultimately led to an enforced trip south.

Full disclosure to the client is the key to resolving this conflict. The client must understand that his testimony under oath may be the first step in deportation. While it is my understanding that the INS does not have the resources to make this a meaningful threat, it must be the client’s informed decision to testify and not the attorney’s.

C. Physician-Patient Communications and Records

O.C.G.A. § 34-9-207 invalidates any claim as to the confidentiality of communications between doctor and patient or the release of any medical records for a workers’ compensation claimant. This waiver extends to communications with psychiatrists or psychologists.

The statute further requires that the employee provide the employer with a signed release for medical records. Board form WC-207 has been created to facilitate this. Refusal to sign the release subjects the claimant to an immediate suspension of income benefits. Some defense attorneys request that their own form be signed. The employee has no obligation to sign anything other than the Board’s form.

Some medical providers, however, particularly those providing mental health or AIDS treatment, will not accept this form, requiring instead their own release form. Because O.C.G.A. § 34-9-207 waives the privilege “related to the claim or history or treatment of injury arising from the incident that the employee has had”, the employee should sign any release form that conforms to this standard. Should the inquiry be for a matter wholly unrelated to the claim, however, a strong argument can be made that the employee has no obligation to sign.

II. RELEVANCY

A second caveat in O.C.G.A. § 9-11-26(b)(1) is that the subject matter be relevant.

The evidence sought need not be admissible at the hearing. Note that O.C.G.A. § 9-11-26(b)(1) allows queries as long as they are “reasonably calculated to lead to the discovery of admissible evidence.”  Bullard v. Ewing, 158 Ga. App. 287, 279 S.E. 2d 737 (1981).

There are limits, however. The Bullard case sustained an objection as “unreasonably broad and too general” to a question in a dispute in a suit seeking payment for work done by a contractor when an interrogatory required the contractor to “State the name, address and telephone of every individual, corporation, or company for whom you or your company have performed construction or building repair work since January 1, 1975…”

We have all received questions of this nature. This objection can be easily obviated by limiting in as many ways as possible the scope of the question. 

In Bullard the court denied the request for a protective order with respect to questions concerning any jobs done by the contractor and the owner of the property. The proponent of the interrogatory argued that although there was no evidence as to fraud, the answers to these questions might aid in the discovery whether there was fraud. The court agreed that there was no such evidence but essentially found that because the objecting party failed to produce anything showing that there would not be fraud that these questions should indeed be answered.

On the other hand, it is not sufficient that materials sought may provide grounds for impeachment. In E.H. Siler Realty and Broker v. Sanderlin, 158 GA. App. 796, 282 S.E. 2d 381 (1981), tax returns were sought based upon the belief that the opposing party had misrepresented her yearly earnings and therefore tax returns might show a previous false statement which would be impeaching. The court found that evidence of an impeaching nature must relate to a relevant issue in the case and denied this request. See also Southern Outdoor Promotions, Inc. v. National Banner Co., 215 Ga. App. 133, 449 S.E. 2d 684 (1994).

Siler is also significant for its holding that the propounding party may request the names and addresses of those individuals who have knowledge of relevant facts, but cannot require the opposing party to reveal the names and addresses of those who will be witnesses at the trial or hearing.

At deposition, the relevancy objection could be more accurately described as the “I’ve been sitting in this deposition for three hours, the defense attorney looks like he’s only about half way through his checklist and I’m really hungry” objection. Within reason virtually anything can be relevant. Unless the questions are consistently beyond the realm of the reasonable, this objection should not be interposed.

III. WORK PRODUCT

O.C.G.A. § 9-11-26(b)(3) excludes documents and tangible things “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case, and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”

This is the “work product” exception. The work product exception includes statements taken of another party by the insurer in anticipation of litigation.  Copher v. Mackey,220 Ga. App.43, 467 S.E. 2d 362 (1996), Warmack v. Mini-Skools Ltd., 164 Ga. App. 737, 297 S.E. 2d 365 (1982).

In Warmack the propounder of the discovery alleged that he had a “substantial need” for the statements and could not “without undue hardship” obtain the “substantial equivalent of the materials by other means”. The court found that there was some benefit to be obtained from the statements taken from fresher memories and also for impeachment value but held that no substantial hardship nor the inability to obtain the substantial equivalent was shown and denied the motion to compel discovery. 

How then does one obtain this information? The party seeking discovery can, of course, depose witnesses and can send interrogatories. More basically, one can speak directly with the witnesses. What if the witnesses are employees of the employer?

In limited instances, the claimant’s attorney can speak directly to these employees. Clearly the attorney can speak to a former employee pursuant to Sanifill of Georgia, Inc. v. Roberts, 232 Ga. App. 510, 502 S.E. 2d 343 (1998). This court ruled that ex parte communication with a former employee was not a violation of Standard 47 of Rule 4-102 of the Rules and Regulations of the State Bar of Georgia, which prohibits communication with a party known to represented by a lawyer. The court held that a former employee is not a party represented by a lawyer.

The court cited State Bar of Georgia Formal Advisory Opinion 87-6 (1989) which found that when a corporation is an opposing party, Standard 47 only applies ” to an employee whose acts or omissions may be imputed to the corporation in relation to the subject matter of the case, as well as to an officer or director or other employee with authority to bind the corporation.” This can be loosely interpreted as a non-supervisory employee.

Claimant’s attorney can best assure that there is no dispute and no ethical violation by calling opposing counsel and discussing the status of the employee with whom he or she wishes to speak. If claimant’s counsel can be sure through other means that the person with whom he wishes to speak is merely a worker with no supervisory responsibility, then it would be permissible to speak directly with that employee. Before asking substantive questions, the attorney should confirm with the employee that he or she is indeed not a supervisor.

IV. SURVEILLANCE

Mark Gannon’s paper in this seminar contains an extensive survey of surveillance. He believes that the best policy is for the surveillance tape to be provided to opposing counsel, provided the defense counsel has the opportunity to take the claimant’s deposition first. The Board’s position is to reverse the sequence. Attached is the Scott decision in which the employer/insurer, in the process of objecting to the production of the videotape, offered to produce the videotape in exchange for the claimant’s deposition. The Appellate Division required that the videotape be produced prior to the taking of the employee’s deposition. 

There is a belief by some members of the defense bar that the primary reason to withhold the videotape from claimant’s counsel is to prevent claimant’s counsel from fabricating testimony to conform to the tape. This is an extraordinarily cynical view. As the cases cited in Mr. Gannon’s paper attest, no side has a monopoly on the truth. No attorney is as effective when confronted with the tape for the first time on the morning of the hearing as he or she would be with the opportunity to discuss and review the tape with the employee. Pictures do not lie, but they can be deceptive. What someone can do occasionally, one might not be able to do all day. A claimant unable to perform a job requiring constant bending may be able to walk out of his house and pick up his newspaper. A claimant unable to lift all day may be able to take the groceries from the car to the house. The conclusion that the truthful claimant need not view the videotape in advance because he or she has nothing to hide, if taken to its logical conclusion, leads to the theory that a truthful claimant does not even need a lawyer because truth will prevail. This is a naïve concept.

For this issue to arise, of course, the employee’s counsel must be aware that there has been a videotape made. In most cases, this presupposes that the attorney is going to inquire. The defense counsel has no obligation to volunteer this information absent a discovery request. What if claimant’s counsel merely orally asks the question? While this may not be the preferred way to conduct discovery, the defense counsel has an obligation to answer truthfully. The employee’s attorney who does not make any inquiries and is surprised at the hearing has no room for complaint.

V. OBLIGATION TO PROVIDE MEDICAL 

Board Rule 200 (c) contains a provision for the employer/insurer to provide “copies of all medical records and reports which are in his/her possession concerning the treatment for the accident which is the subject of the claim.” Correspondingly, the employer/insurer is required, upon request of the employee, to furnish “copies of all medical records and reports in their possession concerning the treatment for the accident which is the subject of the claim” and shall also provide all medical records and reports obtained through the use of Board form WC-207 pursuant to O.C.G.A. § 34-9-207(b). Additionally, Board Rule 102 (g)(3) allows the parties to utilize board form WC-102 to obtain copies of board forms, wage records and job descriptions submitted to the doctor pursuant to Board Rule 240 in addition to medical records.

What obligation does the attorney for either side have to provide this documentation in absence of either a discovery request or a Board Rule 200 request? Board Rule 102(b)(3) requires all medical evidence to be exchanged no later than 10 days prior to the hearing. What about damaging medical evidence that the party has no intention of tendering into evidence? If the party has sent discovery or the Rule 200 request or utilized Board form WC-102 then this documentation must be provided. Rule 200 clearly contemplates an ongoing responsibility to provide newly received documentation. Although O.C.G.A. § 9-11-26(e) imposes no duty to supplement responses, it does make an exception for the identity of experts and the substance of their opinions which essentially requires that newly obtained medical reports be provided to the opposite party.

On the other hand, if no request has been made there is no obligation to provide documentation. It goes without saying that in all cases some form of written request should be made.