Iowa: Surveillance Videos of Injured Workers Not Protected by Work Product Privilege

A divided Court of Appeals of Iowa, in Iowa Insurance Institute v. Core Group of the Iowa Association for Justice, 2014 Iowa App. LEXIS 1067 (Oct. 29, 2014), has held that surveillance footage of injured workers is part of the “all information … concerning the employee’s physical or mental health condition” that must be released, upon request, during the discovery phase of workers’ compensation litigation [see Iowa Code § 85.27(2)]. The majority of the court ruled that such surveillance footage is not protected by the work product privilege [see Iowa Rule of Civil Procedure 1.503(3)]. The workers’ compensation commissioner had earlier filed a declaratory order interpreting § 85.27(2) to require the release of the surveillance materials, subject to assertions of a work-product privilege. The commission’s decision was upheld by the appropriate state district court. The appellate court had been called upon to address two issues: (A) whether the commissioner abused his discretion in deciding to file a declaratory order and (B) whether the commissioner erred in his interpretation of the statutory language. 

Employer groups that joined in the litigation contended in relevant part that the “all information” provision applied to “medical records, bills, and treating and/or expert physician reports,” but not surveillance video. The majority of the appellate court disagreed, holding that the term was sufficiently broad so as to include surveillance footage.

The employer groups also argued that the commissioner’s ruling violated the work product privilege. The majority disagreed, stating:

… The privilege turns on whether the tapes are prepared in anticipation of litigation (no one disputes they are) and, as the Respondents acknowledge, whether they disclose the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Surveillance, by itself, implicates none of these concerns; it discloses the claimant’s condition—nothing more, nothing less.

Judge McDonald concurred in part and dissented in part, agreeing that the commissioner had the authority to proceed by way of declaratory order, but disagreeing on the merits. The judge concluded that the commissioner’s holding was “muddled, predicated on a misunderstanding of the work product doctrine, and legally erroneous.”