request,” even if requested before the claimant’s deposition.
11
Iowa Code
§ 85.27(2).
The commissioner’s interpretation of section 85.27(2) is consistent
with several other states’ rules and decisions addressing surveillance
materials specifically in the workers’ compensation context. See, e.g.,
Camelback Contractors, Inc. v. Indus. Comm’n, 608 P.2d 782, 785 (Ariz.
Ct. App. 1980) (“[T]he hearing officer correctly determined that the
surveillance tapes . . . were discoverable upon timely and properly served
interrogatories.”); McNease v. Murphy Constr. Co., 682 So. 2d 1250,
1250–51 (La. 1996);
12
Johnson v. Archdiocese of New Orleans, 649 So. 2d
12, 13–14 (La. Ct. App. 1994); Sires v. Nat’l Serv. Corp., 560 So. 2d 448,
11
In Squealer Feeds, we stated “a claimant is not entitled to obtain the file of his
adversary . . . merely upon request.” Squealer Feeds v. Pickering, 530 N.W.2d 678, 688
(Iowa 1995), abrogated on other grounds by Wells Dairy, Inc. v. Am. Indus. Refrigeration,
Inc., 690 N.W.2d 38, 47–48 (Iowa 2004). However, the question at issue in Squealer
Feeds required the court to interpret and apply the civil procedure rule establishing
work product protection—not answer the question presented here under section
85.27(2). See id. Thus, my conclusion is not incompatible or inconsistent with our
holding in Squealer Feeds. See Iowa Admin. Code r. 876—4.35 (providing that the
provisions of chapter 85 supersede rules of civil procedure when the two conflict).
12
The Louisiana Supreme Court distinguished McNease in Bell v. Treasure Chest
Casino, L.L.C., 950 So. 2d 654, 655–56 (La. 2007). However, Bell involved security
camera footage that would show the actual occurrence of an injury, not surreptitious
surveillance of a claimant’s postinjury activities. See id. at 656. Additionally, Bell is a
personal injury case, whereas McNease is a workers’ compensation case. Compare id.
at 655, with McNease, 682 So. 2d at 1250. As I have noted, this distinction is crucial
given the informal nature of workers’ compensation proceedings. Indeed, in New York
the distinction is also significant, but for a different reason: workers’ compensation
cases are not subject to the general rule of discovery that all films, photographs, and
videos are discoverable upon demand. Compare De Marco v. Millbrook Equestrian Ctr.,
732 N.Y.S.2d 121, 122 (App. Div. 2001) (concluding the general discovery statute
governing disclosure of surveillance is not binding on the workers’ compensation
board), with Tran v. New Rochelle Hosp. Med. Ctr., 786 N.E.2d 444, 448 (N.Y. 2003)
(“[N]otwithstanding the danger of tailored testimony, [the general statute governing
disclosure of surveillance] requires full disclosure with no limitation as to timing, unless
and until the Legislature declares otherwise.”). I again emphasize that personal injury
cases are not always valuable analytical guides when resolving issues in the workers’
compensation arena.