IN THE SUPREME COURT OF IOWA

No. 13–1627

Filed June 12, 2015

Amended September 30, 2015

IOWA INSURANCE INSTITUTE, IOWA DEFENSE COUNSEL 

ASSOCIATION, IOWA SELF-INSURERS’ ASSOCIATION, PROPERTY 

CASUALTY INSURERS ASSOCIATION OF AMERICA, NATIONAL 

ASSOCIATION OF MUTUAL INSURANCE COMPANIES, and IOWA 

ASSOCIATION OF BUSINESS AND INDUSTRY,

Appellants,

vs.

CORE GROUP OF THE IOWA ASSOCIATION FOR JUSTICE; 

CHRISTOPHER J. GODFREY, Workers’ Compensation Commissioner, 

Division of Workers’ Compensation; and THE IOWA DEPARTMENT OF 

WORKFORCE DEVELOPMENT,

Appellees.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Scott D. 

Rosenberg, Judge.

Several professional and trade associations comprised of 

employers, attorneys, and insurance carriers seek further review after 

the district court and court of appeals affirmed the workers’ 

compensation commissioner’s ruling on a petition for declaratory order. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT REVERSED AND CASE REMANDED.
2

Joseph A. Happe, Stephen M. Morain, Elizabeth R. Meyer, and 

Sarah K. Franklin of Davis, Brown, Koehn, Shors & Roberts, P.C., Des 

Moines, for appellants.

R. Saffin Parrish-Sams of Soldat & Parrish-Sams, PLC, West Des 

Moines, for appellees.
3

MANSFIELD, Justice.

In this case we are asked to determine whether the workers’ 

compensation commissioner correctly interpreted Iowa Code section 

85.27(2) as overriding the work product immunity and therefore 

requiring the disclosure of surveillance video of any claimant seeking 

workers’ compensation benefits before the claimant is deposed. For the 

reasons set forth herein, we conclude that section 85.27(2) is limited to 

health-care-related privileges such as the physician–patient privilege. 

Section 85.27(2), in other words, does not affect privileges and 

protections related to the litigation process such as the work product 

doctrine. Accordingly, we vacate the decision of the court of appeals, 

reverse the judgment of the district court, and remand this proceeding to 

the commissioner. 

We decline to address a number of follow-on questions related to 

the work product doctrine in Iowa; our present holding is simply that 

section 85.27(2) does not affect the work product doctrine and does not 

give the commissioner authority to require the disclosure of anything 

that would otherwise be protected as work product.

I. Background Facts and Proceedings.

Under the Iowa Administrative Procedure Act (IAPA), “Any person 

may petition an agency for a declaratory order as to the applicability to 

specified circumstances of a statute, rule, or order within the primary 

jurisdiction of the agency.” Iowa Code § 17A.9(1)(a) (2011). The Iowa 

Workers’ Compensation Commissioner has adopted a corresponding rule 

allowing any person to petition the commissioner for a declaratory order. 

Iowa Admin. Code r. 876—5.1. On April 20, 2012, pursuant to section 

17A.9(1)(a) and rule 876—5.1, the Workers’ Compensation Core Group of 
4

the Iowa Association for Justice (Core Group)1 filed a petition for 

declaratory order with the commissioner. The petition sought a 

determination whether Iowa Code section 85.27(2)2 mandates that 

employers or insurance carriers defending workers’ compensation claims 

must immediately provide copies of surveillance videos, photographs, 

and reports concerning the claimant’s physical or mental condition upon 

receiving a properly phrased discovery request.

Core Group asked the commissioner to answer ten related 

questions:

a) Is Iowa Code § 85.27(2) applicable to surveillance in 

workers’ compensation claims?

b) Pursuant to Iowa Code § 85.27, are all privileges waived 

with respect to surveillance videos and photographs showing 

the injured worker?

c) Pursuant to Iowa Code § 85.27, are all privileges waived 

with respect to surveillance reports concerning the injured 

worker?

1Core Group members are attorneys who represent injured workers in workers’ 

compensation claims.

2Section 85.27(2) provides:

Any employee, employer or insurance carrier making or defending a 

claim for benefits agrees to the release of all information to which the 

employee, employer, or carrier has access concerning the employee’s 

physical or mental condition relative to the claim and further waives any 

privilege for the release of the information. The information shall be 

made available to any party or the party’s representative upon request. 

Any institution or person releasing the information to a party or the 

party’s representative shall not be liable criminally or for civil damages 

by reason of the release of the information. If release of information is 

refused the party requesting the information may apply to the workers’ 

compensation commissioner for relief. The information requested shall 

be submitted to the workers’ compensation commissioner who shall 

determine the relevance and materiality of the information to the claim 

and enter an order accordingly.

Iowa Code § 85.27(2).

 
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d) Pursuant to Iowa Code § 85.27, are Defendants required 

to produce surveillance videos, photos, and/or reports when 

asked for in appropriate discovery requests?

e) Pursuant to Iowa Code § 85.27, are Defendants permitted 

to withhold surveillance videos, photos, and/or reports until 

after deposing the injured worker?

f) Pursuant to Iowa Code § 85.27, when are Defendants 

required to produce surveillance videos, photos and/or 

reports?

g) Pursuant to Iowa Code § 85.27, if the information is 

requested in an interrogatory, is there any privilege against 

or valid objection to identifying the fact that surveillance was 

performed, the form of surveillance conducted, who 

performed it, when it was performed, and who has 

possession of it?

h) Pursuant to Iowa Code § 85.27, if the information is 

requested in an interrogatory, when must Defendants 

identify the fact surveillance was performed, the form of 

surveillance conducted, who performed it, when it was 

performed, and who has possession of it?

i) In the event that [questions “a” or “b”] are answered “NO,” 

if Defendants assert a privilege in response to a request for 

production of surveillance, are they also required to provide 

a privilege log under Iowa Rule of Civil Procedure 1.503(5) 

which identifies the fact surveillance was performed, the 

form of surveillance conducted, who performed it, when it 

was performed, and who has possession of it?

j) Pursuant to Iowa Code § 85.27, can an injured worker 

move to compel production of surveillance videos, photos 

and/or reports, and for appropriate sanctions, under Iowa 

Rule of Civil Procedure 1.517?

Core Group further provided its proposed answers to these 

questions: Section 85.27(2) applies to surveillance materials; all 

privileges otherwise justifying withholding of surveillance materials when 

requested in discovery are waived; and employers or insurance carriers 

must disclose surveillance materials promptly when requested without 

first taking the claimant’s deposition.

Desiring input from multiple organizations representing various 

interests in workers’ compensation proceedings, the commissioner 
6

invited interested parties to intervene. See generally Iowa Code 

§ 17A.9(4); Iowa Admin. Code r. 876—5.3. Four professional and trade 

associations, including the Iowa Insurance Institute, intervened.3

On June 26, the commissioner held a hearing on the petition for 

declaratory order. At the hearing, Core Group asserted section 85.27(2)

applies to surveillance materials because surveillance footage, 

photographs, and reports are “information . . . concerning the employee’s 

physical or mental condition relative to the claim.” See Iowa Code 

§ 85.27(2). In response, the Institute as a threshold matter contended 

the commissioner should decline to rule on the petition for declaratory 

order because the issue would be better resolved in a contested case 

proceeding. The Institute urged that the declaratory order framework 

might leave out several necessary parties and that Core Group lacked

standing to petition for a declaratory order. See Iowa Code 

3The intervenors represent the interests of various employers, insurers, and 

attorneys. In its petition for intervention, the Iowa Insurance Institute explained it “is 

an association composed of Iowa based property/casualty insurance companies and out 

of state property/casualty insurance companies that write significant volumes of 

coverage in Iowa.” The Iowa Defense Counsel Association (IDCA) and the Iowa Self 

Insurers’ Association (ISIA) joined Iowa Insurance Institute’s petition for intervention. 

IDCA explained it “is an organization comprised of approximate[ly] 335 lawyers and 

claims professionals actively engaged in the practice of law or in work relating to 

handling of claims or defense of legal actions.” ISIA is an organization whose members 

are self-insured Iowa employers and therefore may be involved in workers’ 

compensation proceedings from time to time. Property Casualty Insurers Association of 

America (PCI) intervened separately to raise procedural objections to the declaratory 

order petition. PCI’s members also write workers’ compensation insurance in Iowa.

Two other trade associations—the National Association of Mutual Insurance 

Companies (NAMIC) and the Iowa Association of Business and Industry (IABI)—

intervened after the case reached the district court. NAMIC and IABI joined in the legal 

arguments presented by the Iowa Insurance Institute, IDCA, ISIA, and PCI. In the 

petition for intervention, NAMIC explained it “is a trade association of approximately 

1400 mutual property and casualty insurance companies, some of whom issue 

Workers’ Compensation coverage to employers in . . . Iowa.” IABI explained it “is an 

organization of over 1400 Iowa businesses [that] employ over 300,000 persons covered 

by Iowa’s Workers’ Compensation Act.” We refer to all six intervenors collectively as 

“the Institute.”

 
7

§ 17A.9(1)(b)(2) (“[A]n agency shall not issue a declaratory order that 

would substantially prejudice the rights of a person who would be a 

necessary party and who does not consent in writing to the 

determination of the matter by a declaratory order proceeding.”); Iowa 

Admin. Code r. 876—5.9(1)(2) (providing the commissioner “may refuse 

to issue a declaratory order” if “[t]he petition does not contain facts 

sufficient to demonstrate that the petitioner will be aggrieved or adversely 

affected” if an order is not issued). The Institute further asserted that if 

the commissioner ruled on the petition, he should conclude section 

85.27(2) does not mandate that employers disclose surveillance materials 

before deposing a claimant.

On October 23, the commissioner ruled on the petition for 

declaratory order. The commissioner concluded section 85.27(2) applies 

to surveillance materials and waives the work product privilege except to 

the extent that requested materials contain “mental impressions, 

conclusions, opinions, or legal theories of an attorney or other 

representative of a party concerning the litigation.” See Squealer Feeds v. 

Pickering, 530 N.W.2d 678, 689 (Iowa 1995) (internal quotation marks 

omitted), abrogated on other grounds by Wells Dairy, Inc. v. Am. Indus. 

Refrigeration, Inc., 690 N.W.2d 38, 47–48 (Iowa 2004). He further 

concluded employers or insurers must produce surveillance materials 

upon request from a claimant and may not withhold the materials until 

after deposing the claimant.

The ruling relied on a literal interpretation of the phrase “all 

information” in rejecting the Institute’s assertion that section 85.27(2) 

refers only to the release of medical records and reports. Additionally, 

the commissioner acknowledged surveillance materials are used to test a 

claimant’s veracity, but noted “the veracity [being tested] relates to the 
8

claimant’s physical or mental condition” and is therefore included within 

section 85.27(2). Finally, the commissioner concluded predeposition 

disclosure of surveillance materials does not vitiate all impeachment 

value, stating, “An implausible answer as to why a claimant was shown 

in surveillance performing certain physical activities will still impeach a 

claimant’s testimony.”

The commissioner’s ruling addressed questions (a) through (h) and 

(j) presented by Core Group and was based entirely on the 

commissioner’s interpretation of Iowa Code section 85.27(2). The 

commissioner did not reach question (i), the only question that did not 

involve interpretation of section 85.27(2).

The Institute sought judicial review in the district court. See 

generally Iowa Code § 17A.19(10) (setting forth grounds on which a 

district court reviewing agency action may grant relief from that agency 

action). The district court affirmed the commissioner’s ruling in its 

entirety.

The Institute appealed, and we transferred the case to the court of 

appeals. The court of appeals likewise affirmed the commissioner’s 

declaratory order, with one member of the panel dissenting. The 

Institute sought, and we granted, further review.

II. Standard of Review.

We must resolve three questions: (1) whether section 17A.9 

prohibited the commissioner from ruling on the petition for declaratory 

order, (2) whether the commissioner should have declined to issue a 

ruling for reasons set forth in the agency’s rules, and (3) whether the 

commissioner’s interpretation of section 85.27(2) is correct.

Iowa Code section 17A.9(1)(b)(2) states an agency “shall not issue a 

declaratory order that would substantially prejudice the rights of a 
9

person who would be a necessary party.” Relying on this section, the 

Institute asserts the declaratory order proceedings left out necessary 

parties who would be substantially prejudiced, and therefore, the 

commissioner’s decision to rule exceeded his authority. The parties 

agree that our review of this point is for correction of errors at law.

Section 17A.9(1)(b)(1) provides that an agency shall not issue a 

declaratory order when it “determines that issuance of the order under 

the circumstance would be contrary to a rule” adopted by the agency. 

Iowa Code § 17A.9(1)(b)(1). The commissioner’s rules list several 

circumstances when the commissioner “may refuse to issue a declaratory 

order.” Iowa Admin. Code r. 876—5.9(1). We review the commissioner’s 

exercise of this discretion for an abuse of discretion.

We also review the commissioner’s actual interpretation of Iowa 

Code section 85.27(2) for errors at law. See Iowa Code § 17A.19(10)(c). 

In recent years, we have repeatedly declined to give deference to the 

commissioner’s interpretations of various provisions in chapter 85. See 

Staff Mgmt. v. Jimenez, 839 N.W.2d 640, 648 (Iowa 2013) (“In our prior 

cases, we held the legislature has not delegated any interpretive 

authority to the workers’ compensation commissioner to interpret Iowa 

Code chapter 85.”); Waldinger Corp. v. Mettler, 817 N.W.2d 1, 7 (Iowa 

2012) (holding that the commissioner was not clearly vested with 

interpretive authority for section 85.34(1)); Neal v. Annett Holdings, Inc., 

814 N.W.2d 512, 519 (Iowa 2012) (concluding the legislature “did not 

vest the authority to interpret the phrase ‘suitable work’ for purposes of 

Iowa Code section 85.33(3) in the . . . commission[er]”); Burton v. Hilltop 

Care Ctr., 813 N.W.2d 250, 261 (Iowa 2012) (“[W]e will substitute our 

own interpretation of sections 85.36 and 85.61(3) if we find the 

commissioner’s interpretation was erroneous.”); Swiss Colony, Inc. v. 
10

Deutmeyer, 789 N.W.2d 129, 133 (Iowa 2010) (“Using the refined 

standard in Renda [v. Iowa Civil Rights Commission, 784 N.W.2d 8, 11 

(Iowa 2010)], we are not convinced the legislature intended to vest the 

commissioner with the authority to interpret Iowa Code section 

85.34(5).”). Additionally, any terms of section 85.27(2) at issue here are 

“not uniquely within the subject matter expertise of the agency.” Renda, 

784 N.W.2d at 14.

III. Analysis.

A. The Commissioner’s Decision to Rule on Core Group’s 

Petition. We first address the Institute’s contention that the 

commissioner should not have issued a declaratory order for either of the 

two reasons set forth in Iowa Code section 17A.9. Iowa Code section 

17A.9 establishes the procedure for agencies to issue declaratory orders. 

In a recent case, we held a party “fail[s] to exhaust administrative 

remedies by not seeking a declaratory order under section 17A.9(1)(a) 

prior to petitioning for judicial review.” Sierra Club Iowa Chapter v. Iowa 

Dep’t of Transp., 832 N.W.2d 636, 643, 648 (Iowa 2013). We determined 

the legislature intended declaratory orders to serve as a practical 

alternative to judicial declaratory judgments. See id. at 646–47.

The original version of Iowa Code section 17A.9 was only two 

sentences long. See Sierra Club, 832 N.W.2d at 643. In 1998, the 

general assembly adopted an amended version of section 17A.9, based 

upon the 1981 amendments to the Model State Administrative Procedure 

Act. See id. The post-1998 version of section 17A.9 provides that an 

agency “shall” issue a declaratory order when petitioned to do so unless 

the agency determines that issuance of an order “would be contrary to a 

rule” or the order “would substantially prejudice the rights of a person 

who would be a necessary party and who does not consent in writing to 
11

the determination of the matter by a declaratory order proceeding.” Iowa 

Code § 17A.9(1)(b)(1)–(2). The section goes on to require each agency to 

adopt rules “describ[ing] the classes of circumstances in which the 

agency will not issue a declaratory order.” Id. § 17A.9(2).

Professor Arthur Bonfield, the reporter–draftsperson for the 1998 

amendments, provided the following explanation regarding the revised 

version of Iowa Code section 17A.9 and the situations when declaratory 

orders should not be issued:

This section repeals the declaratory order provision 

contained in current IAPA section 17A.9. Iowa law has not 

previously required that an agency issue a ruling, and has 

not contemplated indispensable parties in the declaratory 

order proceeding. Under this proposed provision, however, 

an agency is required to issue a declaratory order unless (i) 

such an order is contrary to a rule properly adopted by the 

agency in accordance with subsection (2), or (ii) such an 

order substantially prejudices the rights of any person who 

would be an indispensable party to the proceeding and who 

has not consented in writing to a determination of the matter 

by a declaratory order. In the first case, the rule adopted by 

the agency must delineate the circumstances in which a 

declaratory order will not be issued. In the second case, 

note that some indispensable parties might refuse to consent 

because, in a declaratory order proceeding, they lack many 

of the procedural rights to which they are entitled in a 

contested case proceeding.

Arthur Earl Bonfield, Amendments to Iowa Administrative Procedure Act, 

Report on Selected Provisions to Iowa State Bar Association and Iowa 

State Government 37 (1998) (hereafter Bonfield).4

4This explanation is similar to the official comment to the 1981 model act:

[A]s subsection (a) makes clear, an agency must issue a declaratory order 

upon receipt of a proper petition therefor unless it determines that under 

the particular circumstances its issuance would either (1) be contrary to 

a rule issued in accordance with subsection (b) [enacted as subsection (2) 

in Iowa], or (2) would substantially prejudice the rights of any persons 

who would be indispensable parties to the proceeding and do not consent 

to determination of the matter by a declaratory order.

 
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1. Whether a necessary party would be substantially prejudiced. 

The Institute asserts numerous employers and insurers did not 

participate in the declaratory order proceedings but should be deemed

necessary parties. See Iowa Code § 17A.9(1)(b)(2). However, the Institute 

has not identified any specific necessary parties that did not participate 

in the declaratory order proceedings and has not explained how the 

interests of any nonparticipants might differ from the broad range of 

interests represented by the Institute.

Ultimately, we conclude that even if some necessary parties did not 

participate in the declaratory order proceedings, the commissioner’s 

decision to rule did not substantially prejudice them. According to its 

own petition for intervention, the Institute “collectively represent[s] the 

majority of workers’ compensation Defendants in Iowa, and many of their 

legal advocates.” In the same petition, though, the Institute stated that it

did “not have authority to bind [its] members to the determination of the 

matters presented in this declaratory order proceeding.” See Iowa 

Admin. Code r. 876—5.12 (indicating that a declaratory order “is binding 

[only] on the . . . commissioner, the petitioner, and any intervenors who 

consent to be bound”).

This tightrope walk by the Institute demonstrates to us that the 

requirements of Iowa Code section 17A.9(1)(b)(2) have been satisfied. 

Practically speaking, the commissioner’s declaratory order—especially 

once reviewed by this court—can affect nonparties as a precedent. But 

of course that is true of any declaratory order, and any contested case 

proceeding as well. See Iowa Admin. Code r. 876—5.12 (“A declaratory 

Model State Admin. Procedure Act § 2-103 cmt. (amended 1981), 15 U.L.A. 27 

(2000).

_____________________________________
13

order has the same status and binding effect as a final order issued in a 

contested case proceeding.”). We think the prejudice must be more than 

just precedential effect,5 especially when a broad range of interests were 

represented in the declaratory order proceeding and the Institute cannot 

identify an interest that was not represented. The commissioner 

correctly concluded section 17A.9(1)(b)(2) did not preclude a ruling on 

Core Group’s petition.

2. Agency rules. Pursuant to the mandate in section 17A.9(2), the 

commissioner has adopted regulations guiding the decision whether to 

rule on declaratory order petitions. See Iowa Code § 17A.9(2); Iowa 

Admin. Code r. 876—5.9. The agency’s rule provides the commissioner 

“shall not issue a declaratory order where prohibited by Iowa Code 

section 17A.9(1).” Iowa Admin. Code r. 876—5.9(1). Additionally, the 

regulations provide the commissioner “may refuse to issue a declaratory 

order on some or all questions” if one or more criteria are satisfied. Id. r. 

876—5.9(1). Three of these criteria are pertinent here: subsections (2), 

(5), and (9). Id. r. 876—5.9(1)(2), (5), (9).

Subsection (2) allows the commissioner to refuse to rule if he or 

she concludes “[t]he petition does not contain facts sufficient to 

demonstrate that the petitioner will be aggrieved or adversely affected” if 

the commissioner does not issue an order. Id. r. 876—5.9(1)(2). 

Subsection (5) allows the commissioner to decline to rule if he or she 

determines “[t]he questions presented by the petition would more 

5The term “indispensable party” normally means someone whose interests will 

be more directly affected than by the precedential effect of a ruling. See Sear v. Clayton 

Cnty. Zoning Bd. of Adjustment, 590 N.W.2d 512, 517 (Iowa 1999) (stating that parties 

who had obtained a variance as the result of a zoning decision were indispensable 

parties to a certiorari proceeding challenging the decision because “[b]y annulling the 

special variance they had been granted, the actions of the district court necessarily 

affected the Sears’ interest in their land”).

 
14

properly be resolved in a different type of proceeding or by another body 

with jurisdiction over the matter.” Id. r. 876—5.9(1)(5). Subsection (9) 

authorizes the commissioner to refuse to rule if he or she determines a 

ruling “would necessarily determine the legal rights, duties, or 

responsibilities of other persons . . . whose position on the questions 

presented may fairly be presumed to be adverse to that of petitioner.” Id.

r. 876—5.9(1)(9).

The Institute asserts the “aggrieved or adversely affected” standard

under subsection (2) is tantamount to a requirement that Core Group 

demonstrate standing. See id. r. 876—5.9(1)(2); see also Bonfield at 37–

38 (noting that “an agency may include in its rules reasonable standing, 

ripeness, and other requirements for obtaining a declaratory order”). We 

have often referred to similar language as a requirement that parties 

seeking judicial review under chapter 17A demonstrate standing. See 

City of Des Moines v. Pub. Emp’t Relations Bd., 275 N.W.2d 753, 759 

(Iowa 1979); see also Richards v. Iowa Dep’t of Revenue & Fin., 454 

N.W.2d 573, 575 (Iowa 1990); Iowa Power & Light Co. v. Iowa State 

Commerce Comm’n, 410 N.W.2d 236, 239 (Iowa 1987). We have not 

decided, however, what standing a party must have to initiate declaratory 

order proceedings.6

It is noteworthy that “[s]ection 17A.9 contemplates rulings based 

on purely hypothetical facts, and renders them subject to review.” 

Women Aware v. Reagen, 331 N.W.2d 88, 92 (Iowa 1983); accord City of 

Des Moines, 275 N.W.2d at 758; cf. Tindal v. Norman, 427 N.W.2d 871, 

6In Women Aware v. Reagen, the agency declined to rule on a petition for 

declaratory order in part because the petition “failed to show petitioners had standing to 

challenge [the agency’s prior decision].” 331 N.W.2d 88, 89 (Iowa 1983). However, we 

resolved that case on other grounds without reaching the standing issue. See id. at 93.

 
15

873 (Iowa 1988) (concluding the declaratory order procedure was 

inapplicable in a case presenting an actual controversy because “section 

17A.9 contemplates rulings on purely hypothetical sets of facts, not on 

concrete challenges”). This means that in many declaratory order 

proceedings, it is possible no party can demonstrate the type of concrete 

or imminent particularized injury we typically require for standing in 

contested cases.

The commissioner’s rules are discretionary; they provide that the 

commissioner “may refuse to issue a declaratory order . . . for the 

following reasons.” Iowa Admin. Code r. 876—5.9(1) (emphasis added). 

Whether or not Core Group would be aggrieved or adversely affected if its 

request for a declaratory order were denied, the commissioner could have 

concluded “the importance and nature of the questions [to be] decided” 

would justify dispensing with a strict standing requirement. City of Des 

Moines, 275 N.W.2d at 759 (concluding the mootness doctrine should not 

preclude judicial review of a declaratory order proceeding due to the 

important questions at issue). We conclude the commissioner did not 

abuse his discretion in deciding to rule on Core Group’s petition 

notwithstanding rule 876—5.9(1)(2).

Next, the Institute contends the commissioner should have 

declined to rule because, under subsection (5), “[t]he questions presented 

by the petition would more properly be resolved in a different type of 

proceeding”—specifically, either a contested case proceeding or a 

rulemaking proceeding. See Iowa Admin. Code r. 876—5.9(1)(5). 

Relatedly, the Institute asserts the commissioner’s ruling establishes an 

improper one-size-fits-all rule that does not allow for consideration of 

factual nuances in future contested cases. At the same time, the 

Institute also criticizes the commissioner’s ruling for promulgating a 
16

sweeping rule, when declaratory orders are intended to provide only 

comparatively narrow advice for parties requesting them. See Arthur 

Earl Bonfield, The Iowa Administrative Procedure Act: Background, 

Construction, Applicability, Public Access to Agency Law, the Rulemaking 

Process, 60 Iowa L. Rev. 731, 813 (1975) (suggesting agencies “should 

require great specificity and precision” in petitions for declaratory orders

so that agencies are not “bombarded with petitions seeking answers to 

. . . excessively general fact situations”).

The legislature has granted agencies multifaceted authority. 

Agencies assert their authority in a quasi-judicial way when deciding 

contested cases; and beyond the realm of contested cases, agencies 

utilize the authority vested in them by the legislature when they 

promulgate rules and rule on petitions for declaratory orders. Compare

Iowa Code § 17A.4, with id. § 17A.9, with id. §§ 17A.15–.16. Agency 

action through the exercise of one of these manifestations of authority 

does not foreclose action through another. See Lenning v. Iowa Dep’t of 

Transp., 368 N.W.2d 98, 102 (Iowa 1985) (concluding agencies can 

develop legal principles through contested cases and rulemaking 

procedures, without limiting themselves to one or the other); Young 

Plumbing & Heating Co. v. Iowa Natural Res. Council, 276 N.W.2d 377, 

382 (Iowa 1979) (“Either means may be used so long as the statutory 

procedure is complied with.”). While the commissioner would have been 

within his discretion in declining to issue a declaratory order here, he did 

not abuse that discretion in going forward. The issues that he reached 

were purely legal, as acknowledged by the Institute at oral argument. 

And the commissioner received input from diverse parties, as would have 

likely occurred in a rulemaking. Accordingly, the prospect that the 

commissioner could address the discoverability of surveillance materials 
17

in a contested case or in an agency rule does not foreclose his issuance 

of a declaratory order on the same subject.

Lastly, the Institute contends that the commissioner should not 

have ruled on Core Group’s petition because it had the effect of 

“necessarily determin[ing] the legal rights, duties, or responsibilities of 

other persons . . . whose position on the questions presented may fairly 

be presumed to be adverse to that of petitioner.” Iowa Admin. Code r. 

876—5.9(9). We find no abuse of discretion under the circumstances 

presented here. As explained above, the commissioner solicited, and 

received, submissions from parties opposed to Core Group’s petition.

B. Whether Section 85.27(2) Applies to Surveillance Materials. 

Having concluded the commissioner acted within his discretion in ruling 

on the petition, we turn to the underlying question: What effect does

Iowa Code section 85.27(2) have on surveillance materials? Specifically, 

we must determine whether “all information . . . concerning the 

employee’s physical or mental condition relative to the claim” includes 

work product that was obtained after the claim was filed and that may 

shed light on the employee’s condition or whether the phrase is limited to 

records and information normally kept by health care providers. 

Furthermore, if section 85.27(2) applies to work product, we must also 

determine whether it requires that the relevant information must be 

turned over to the requesting party immediately or whether the employer 

can withhold the material until the claimant is deposed.

Section 85.27(2) provides:

Any employee, employer or insurance carrier making or 

defending a claim for benefits agrees to the release of all 

information to which the employee, employer, or carrier has 

access concerning the employee’s physical or mental 

condition relative to the claim and further waives any 

privilege for the release of the information. The information 
18

shall be made available to any party or the party’s 

representative upon request. Any institution or person 

releasing the information to a party or the party’s 

representative shall not be liable criminally or for civil 

damages by reason of the release of the information. If 

release of information is refused the party requesting the 

information may apply to the workers’ compensation 

commissioner for relief. The information requested shall be 

submitted to the workers’ compensation commissioner who 

shall determine the relevance and materiality of the 

information to the claim and enter an order accordingly.

Iowa Code § 85.27(2).

Core Group contends that the phrase “all information . . . 

concerning the employee’s physical or mental condition relative to the 

claim” means the legislature intended the section to apply to surveillance 

footage, photographs, and reports. Core Group further contends that the 

reference to “waives any privilege” includes waiver of the work product 

protection and that the relevant surveillance materials must be disclosed 

before deposing the claimant in a given case. The Institute, on the other 

hand, contends the section should be interpreted more narrowly to apply 

only to health care provider records.

1. Surveillance as work product. Before delving into the meaning 

of Iowa Code section 85.27(2) ourselves, we believe it is helpful to discuss 

the potential status of surveillance as work product under the Iowa Rules 

of Civil Procedure.7 Iowa Rule of Civil Procedure 1.503(3) protects 

materials “prepared in anticipation of litigation.” Iowa R. Civ. P. 1.503(3); 

see also Keefe v. Bernard, 774 N.W.2d 663, 673 (Iowa 2009). The Iowa 

rule resembles Federal Rule of Civil Procedure 26(b)(3), “and the history 

7Those rules generally apply in workers’ compensation proceedings unless 

otherwise superseded. See Iowa Admin. Code r. 876—4.35 (“The rules of civil procedure 

shall govern the contested case proceedings before the workers’ compensation

commissioner unless the provisions are in conflict with these rules and Iowa Code 

chapters 85, 85A, 85B, 86, 87 and 17A, or obviously inapplicable to the workers’ 

compensation commissioner.”).

 
19

and cases under the federal rule provide guidance in interpreting the 

Iowa counterpart.” Ashmead v. Harris, 336 N.W.2d 197, 199 (Iowa 1983)

(citing Fed. R. Civ. P. 26(b)), abrogated on other grounds by Wells Dairy, 

690 N.W.2d at 47–48.

Iowa Rule of Civil Procedure 1.503(3) and Federal Rule of Civil 

Procedure 26(b)(3) provide specific parameters for the work product 

doctrine:

Like its federal counterpart, Iowa Rule of Civil 

Procedure 1.503(3) provides for production of “documents 

and tangible things” that have been “prepared in anticipation 

of litigation” by opposing counsel “only upon a showing that 

the party seeking discovery has substantial need of the 

materials . . . and . . . is unable without undue hardship to 

obtain the substantial equivalent of the materials by other 

means.” This rule requires the court, however, to “protect 

against disclosure of the mental impressions, conclusions, 

opinions, or legal theories of an attorney” when ordering 

such discovery.

Keefe, 774 N.W.2d at 673 (alteration in original) (quoting Iowa R. Civ. P. 

1.503(3)); see also Fed. R. Civ. P. 26(b)(3).

There are “two tiers of work product recognized by Iowa rule 

1.503(3).” Keefe, 774 N.W.2d at 674; see also Squealer Feeds, 530 

N.W.2d at 689 (“[A] claimant must focus on the availability from other 

sources of the facts necessary to establish his claim . . . . [I]n no event 

are the mental impressions, conclusions, opinions, or legal theories of an 

attorney or other representative of a party concerning the litigation 

discoverable.” (Internal quotation marks omitted.)). In the lower tier, 

work product containing or consisting of relevant facts may be 

“discoverable upon a showing of substantial need and undue hardship.” 

Keefe, 774 N.W.2d at 674 (internal quotation marks omitted). The upper 

tier insulates from discovery any work product revealing attorneys’ 
20

mental impressions and conclusions—“[t]hose materials are absolutely 

immune.” Squealer Feeds, 530 N.W.2d at 689.

To constitute work product, something must be (1) a document or 

tangible thing, (2) prepared in anticipation of litigation, and (3) prepared 

by or for another party or by or for that party’s representative. See Iowa 

R. Civ. P. 1.503(3). In 2004, we adopted a new standard for determining 

whether a document or tangible thing is prepared in anticipation of 

litigation. See Wells Dairy, 690 N.W.2d at 48. If a document or tangible 

thing may fairly be said to have been prepared or obtained because 

litigation is foreseeable or ongoing, it constitutes work product; litigation 

need not be the primary reason for creating or obtaining the materials. 

See id. (“Rule 1.503(3) merely requires a document to be prepared in 

anticipation of litigation. It does not require the primary purpose 

motivating the creation of the document to be to aid in litigation.”).

It is clear that surveillance materials are documents or tangible 

things, prepared in anticipation of litigation, by or for another party or 

that party’s representative. We therefore agree with the prevailing view 

in jurisdictions following the federal definition of work product that 

surveillance materials are protected, lower-tier materials, at least 

initially. See Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159 (N.D. 

Iowa 1994) (“Surveillance materials are certainly prepared in anticipation 

of litigation.”); Huet v. Tromp, 912 So. 2d 336, 339 (Fla. Dist. Ct. App. 

2005) (“Clearly any documents, reports or video tapes prepared by the 

investigators are now protected by the work product privilege.”); Pioneer 

Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind. Ct. App. 1996) (“[I]t 

seems needless to record the activities of the claimant unless it is 

anticipated that those recordings will be used against the claimant 

during litigation.”); Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989) (holding 
21

that surveillance material is “work product” that is “qualifiedly immune 

from discovery”); In re Weeks Marine, 31 S.W.3d 389, 391 (Tex. Ct. App. 

2000) (“[T]he surveillance report that includes photographs of Martinez 

and the video tape are privileged as work product.”). But see Shields v. 

Burlington N. & Santa Fe Ry., 818 N.E.2d 851, 855 (Ill. App. Ct. 2004) 

(finding that surveillance is not work product under the Illinois 

definition, which differs from the federal definition and does not offer 

protection to materials that do not reveal “any mental processes or other 

such conceptual data”); Moak v. Ill. Cent. R.R., 631 So. 2d 401, 404 (La. 

1994) (finding that surveillance is not work product under Louisiana law 

because Louisiana’s work product exclusion refers only to “writing” and 

not to other tangible things like videos or photographs); Dominick v. 

Hanson, 753 A.2d 824, 826 (Pa. Super. Ct. 2000) (“Although this 

evidence constitutes work product because it is prepared solely in 

anticipation of litigation, [Pennsylvania Rule of Civil Procedure] 4003.3

provides that work product is discoverable, with the exception of the 

mental impressions and opinions of the party’s attorney and other 

representatives.”).

The consensus also seems to be that surveillance loses the status 

of protected work product once a determination is made that the 

surveillance will be used at trial. Donovan v. AXA Equitable Life Ins. Co., 

252 F.R.D. 82, 82 (D. Mass. 2008) (finding that surveillance, if it will be 

used at trial, must be produced in discovery once the plaintiff has been 

deposed); Dodson v. Persell, 390 So. 2d 704, 707–08 (Fla. 1980) (finding 

the contents of surveillance films and materials are subject to discovery 

where they are to be presented at trial but that allowing the discovery 

deposition before disclosure “is an appropriate middle road to ensure 

that all relevant evidence reaches the trier of fact in a fair and accurate 
22

fashion”); see also Wegner, 153 F.R.D. at 159 (finding a substantial need 

exists for production when the materials will be used against the plaintiff 

at trial); Pioneer Lumber, 673 N.E.2d at 17 (“Bartels has a substantial 

need for the tape only if Pioneer and Wiesemann intend to present it at 

trial.”); Cabral, 556 A.2d at 50 (holding that a substantial need exists for 

production of surveillance once a decision is made to use it at trial, but 

the surveillance can be withheld until after deposition).

2. Is Iowa Code section 85.27(2) ambiguous? Our first step in 

interpreting section 85.27(2) is to determine whether the phrase “all 

information . . . concerning the employee’s physical or mental condition 

relative to the claim” is ambiguous. Iowa Code § 85.27(2). Again, in the 

view of Core Group, it applies to any information that may bear upon the 

employee’s physical or mental condition, including otherwise protected 

work product. According to the Institute, it applies only to information 

that addresses the employee’s physical or mental condition directly, as a 

health care provider record would, rather than inferentially.8

“ ‘A statute is ambiguous if reasonable minds could differ or be 

uncertain as to the meaning of the statute.’ ” Mall Real Estate, L.L.C. v. 

City of Hamburg, 818 N.W.2d 190, 198 (Iowa 2012) (quoting Sherwin–

Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 424 (Iowa 2010)). 

We have said that “[a]mbiguity may arise from specific language used in 

8One parallel to this current debate exists under federal bankruptcy law. Title 

11, section 523(a)(2)(B) excepts from discharge debts that were obtained by use of a 

materially false written statement “respecting the debtor’s . . . financial condition.” 11 

U.S.C. § 523(a)(2)(B) (2012). Different views have emerged in the courts over how to 

interpret the phrase “statement . . . respecting the debtor’s . . . financial condition.” See 

In re Kosinski, 424 B.R. 599, 608–10 (B.A.P. 1st Cir. 2010). Under one view, any 

statement that has a bearing on the debtor’s financial condition is included; under 

another, the statement must at least informally describe the debtor’s overall financial 

condition. See id.

 
23

a statute or when the provision at issue is considered in the context of 

the entire statute or related statutes.” Id. (quoting Sherwin–Williams Co., 

789 N.W.2d at 425). In other words, even if the meaning of words might 

seem clear on their face, their context can create ambiguity.

That is because we read statutes as a whole rather than looking at 

words and phrases in isolation. See, e.g., Phillips v. Chi. Cent. & Pac. 

R.R., 853 N.W.2d 636, 649 (Iowa 2014) (noting that statutory terms are 

often “clarified by the remainder of the statutory scheme” (internal 

quotation marks omitted)); Den Hartog v. City of Waterloo, 847 N.W.2d 

459, 462 (Iowa 2014) (“We have often explained we construe statutory 

phrases not by assessing solely words and phrases in isolation, but 

instead by incorporating considerations of the structure and purpose of 

the statute in its entirety.”); In re Estate of Melby, 841 N.W.2d 867, 879 

(Iowa 2014) (“When construing statutes, we assess not just isolated 

words and phrases, but statutes in their entirety . . . .”); see also Iowa 

Code § 4.1(38) (“Words and phrases shall be construed according to the 

context and the approved usage of the language . . . .”).

As we examine Iowa Code section 85.27 in its entirety, we see that 

all the other subsections relate to health care services. For example, 

subsection (1) provides as follows:

1. The employer, for all injuries compensable under 

this chapter or chapter 85A, shall furnish reasonable 

surgical, medical, dental, osteopathic, chiropractic, podiatric, 

physical rehabilitation, nursing, ambulance and hospital 

services and supplies therefor and shall allow reasonably 

necessary transportation expenses incurred for such 

services. The employer shall also furnish reasonable and 

necessary crutches, artificial members and appliances but 

shall not be required to furnish more than one set of 

permanent prosthetic devices.

Iowa Code § 85.27(1); see also id. § 85.27(3) (providing that disputed 

“health service provider charges” may be referred to the commissioner for 
24

determination); id. § 85.27(4) (discussing the furnishing and cost of 

“reasonable services and supplies to treat an injured employee”); id. 

§ 85.27(5) (requiring an employer to “repair or replace” any “artificial 

member or orthopedic device . . . damaged or made unusable by 

circumstances arising out of and in the course of employment”); id.

§ 85.27(6) (providing that while a contested case is pending before the 

commissioner, “no debt collection . . . shall be undertaken against an 

employee . . . for the collection of charges for . . . treatment rendered an 

employee by any health service provider”); id. § 85.27(7) (discussing when 

an employee is entitled to pay following “sustaining a compensable 

injury”).

Thus, when the legislature adopted subsection (2) in 1976, it stuck

it within an existing provision (section 85.27) that concerned health care 

services. This would be an unusual place to situate a provision intended 

to override the litigation work product doctrine. It also tends to support 

the Institute’s view that section 85.27(2) pertains to records of health 

care services. See, e.g., State v. Robinson, 859 N.W.2d 464, 487 (Iowa 

2015) (examining the context in which Iowa Code section 804.20 appears 

in the Code and concluding that it “applies to the period after arrest but 

prior to the formal commencement of criminal charges”).

Hence, after considering both the wording of section 85.27(2) and 

its context, we conclude that reasonable minds could differ as to whether 

it encompasses surveillance video of a claimant obtained for litigation

purposes. This means we need to resort to our established tools of 

statutory interpretation.

3. Other language in section 85.27(2) itself. In addition to 

considering section 85.27 as a whole, we must of course focus on the 

wording of section 85.27(2) itself.
25

Core Group justifiably attaches significance to the words “all 

information.” See Iowa Code § 85.27(2). In a number of past 

pronouncements, we have indicated that the word “all” is quite broad. 

For example, we have said that the word “is commonly understood and 

usually does not admit of an exception, addition or exclusion.” Consol. 

Freightways Corp. of Del. v. Nicholas, 258 Iowa 115, 121, 137 N.W.2d 

900, 904 (1965); see also Luttenegger v. Conseco Fin. Servicing Corp., 671 

N.W.2d 425, 433–34 (Iowa 2003) (noting that when a statute describes 

“all charges . . . including” four examples, the word “including” cannot 

create an exclusive list because that “would conflict with the word ‘all’ ” 

(internal quotation marks omitted)); Barron v. State Farm Mut. Auto. Ins. 

Co., 540 N.W.2d 423, 426 (Iowa 1995); Cedar Rapids Cmty. Sch. Dist. v. 

City of Cedar Rapids, 252 Iowa 205, 211, 106 N.W.2d 655, 659 (1960) 

(“The word ‘all’ is commonly understood, and when so used does not 

admit of an exception or exclusion not specified.”); In re Peers’ Estate, 

234 Iowa 403, 411, 12 N.W.2d 894, 898 (1944) (“[W]e cannot by judicial 

interpretation nullify the definite pronouncements of the legislature 

which has particularly declared that the statute in question applies to ‘all 

claims.’ ”).

Yet in some cases, we have concluded the word “all” means

something short of all-inclusive. See, e.g., In re Estate of Troester, 331 

N.W.2d 123, 126 (Iowa 1983) (“To interpret literally the words ‘all orders’ 

. . . to apply to all procedural orders would lead to a[n] undesired 

result.”); Johnson v. Bd. of Adjustment, 239 N.W.2d 873, 880–81 (Iowa 

1976) (concluding the words “all uses” in a zoning ordinance did not 

mean every lot was required to satisfy a minimum acreage requirement); 

Silver Lake Consol. Sch. Dist. v. Parker, 238 Iowa 984, 997, 29 N.W.2d 

214, 221 (1947) (holding “the word ‘all’ in various parts of the school 
26

laws” applied only to all public schools); In re Licenses for Sale of Used 

Motor Vehicles, 179 N.W. 609, 611 (Iowa 1920) (concluding the words “all 

vehicles” did not include all used vehicles). In short, our precedents do 

not foreclose us from looking at the word “all” contextually.

The Institute emphasizes other aspects of the wording of Iowa Code 

section 85.27(2). It points out, for one thing, that the section refers to a 

waiver of “any privilege” and the work product doctrine is not a privilege, 

but rather a protection or an immunity. See Iowa Code § 85.27(2). This, 

in the Institute’s view, demonstrates that section 85.27(2) does not speak 

to work product.

As Core Group notes, there are cases where we have used the word 

“privilege” to refer to the work product immunity. See, e.g., Wells Dairy, 

690 N.W.2d at 43 (“Iowa Rule of Civil Procedure 1.503(3) creates a 

qualified privilege . . . .”); Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612 

N.W.2d 801, 804–05, 807 (Iowa 2000) (using “work product privilege” in 

three section headings and referring multiple times to the work product 

privilege).

However, our occasional lack of precision does not necessarily 

mean the legislature was being imprecise when it adopted section 

85.27(2) in 1976. See 1976 Iowa Acts ch. 1084, § 3 (codified at Iowa 

Code § 85.27(2)). Our pre-1976 caselaw had rather carefully 

distinguished information covered by the work product immunity from 

information that was privileged. See Robbins v. Iowa-Ill. Gas & Elec. Co., 

160 N.W.2d 847, 855–56 (Iowa 1968) (“[T]he work product of an attorney 

is clearly distinguishable from the attorney-client privilege. The two 

concepts often appear side-by-side in the cases since both may involve 

protection of trial preparations. The attorney-client privilege is, however, 

generally viewed as an evidentiary privilege belonging to the client and 
27

designed to encourage full disclosure by him to his attorney. On the 

other hand, the work product concept refers to material prepared or 

acquired in anticipation of litigation not necessarily privileged but 

immune from discovery . . . .” (Citation omitted.)); Bengford v. Carlem 

Corp., 156 N.W.2d 855, 867 (Iowa 1968) (“[S]uch questions are not 

objectionable either as privileged or work product.”); Schaap v. Chi. & 

N.W. Ry., 261 Iowa 646, 649, 155 N.W.2d 531, 533 (1968) (“Privileged 

information is, of course, protected as is the attorney’s work product.”).

In interpreting section 85.27(2), the caselaw that the legislature 

had before it in 1976 would seem more germane than any word choices 

we may have made since then. See Jahnke v. Inc. City of Des Moines, 

191 N.W.2d 780, 787 (Iowa 1971) (“We assume the legislature knew the 

existing state of the law and prior judicial interpretations of similar 

statutory provisions. We assume, too, its use of terms was in the 

accepted judicially established context unless there is clear evidence to 

the contrary.”); see also Iowa Farm Bureau Fed’n v. Envtl. Prot. Comm’n, 

850 N.W.2d 403, 434 (Iowa 2014) (“The legislature is presumed to know 

the state of the law, including case law, at the time it enacts a statute.” 

(Internal quotation marks omitted.)).

Additionally, as the Institute observes, Iowa Code section 85.27(2) 

is only directed at employees, employers, and insurers. Work product, 

however, is often in the possession or control of the attorney, and a client 

cannot unilaterally waive the work product doctrine as to materials he or 

she does not have. See Hanson v. U.S. Agency for Int’l Dev., 372 F.3d 

286, 294 (4th Cir. 2004) (“[T]he ability to protect work product normally 

extends to both clients and attorneys, and the attorney or the client, 

expressly or by conduct, can waive or forfeit it, but only as to himself.”

(Alteration in original.) (Internal quotation marks omitted.)); MapleWood 
28

Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 (S.D. Fla. 

2013) (“Immunity from production of work-product materials may be 

asserted by either the attorney or the client, and each can waive that 

immunity, but only as to herself, as both the attorney and the client 

benefit from the privilege.”). This tends to support the view that the 

section is concerned with medical records that might otherwise be 

covered by the physician–patient privilege or other health care privileges, 

not work product materials.

4. Presumption against superfluous words. Another principle of 

statutory interpretation is that “[w]e presume statutes or rules do not 

contain superfluous words.” State v. McKinley, 860 N.W.2d 874, 882 

(Iowa 2015); see also Iowa Code § 4.4(2) (setting forth the presumption 

that “[t]he entire statute is intended to be effective”).

Iowa Code section 85.27(2) provides, among other things, that 

“[a]ny employee, employer or insurance carrier making or defending a 

claim for benefits . . . waives any privilege for the release of the 

information.” Iowa Code § 85.27(2). Core Group points out that if 

“privilege” is limited to health-care-related privileges, the language of the 

section is broader than it needs to be, because employers and insurers 

do not have such privileges to waive.

This argument is not without force, but it should not be overstated. 

Employers and insurers could have access to medical records that the 

employee does not have. Thus, it was necessary to include them in 

section 85.27(2). And it is true that employers and insurers do not get to 

assert a physician–patient privilege for the benefit of a patient who has 

waived that privilege. So technically speaking, it was not necessary for 

the legislature to have “employer” and “insurance carrier” remain part of 
29

the subject for the last clause of the sentence. Thus, the legislature 

could have used more words and drafted the statute as follows,

Any employee, employer or insurance carrier making or 

defending a claim for benefits agrees to the release of all 

information to which the employee, employer, or carrier has 

access concerning the employee’s physical or mental 

condition relative to the claim and further [any employee]

waives any privilege for the release of the information.

When one reads this longer, less readable version, it suggests an 

alternative explanation for why the legislature wrote the law the way it 

did: The legislature may have simply opted for cleaner, more abbreviated

language. Under this view, although the wording of the last clause 

sweeps somewhat more broadly than necessary, the breadth does not 

change the substantive meaning of the statute, but merely reinforces 

that employers and insurers need to produce the records.

5. Avoiding absurd results. We have long recognized that statutes 

should not be interpreted in a manner that leads to absurd results. See

Iowa Code § 4.4(3) (setting forth a presumption that “[i]n enacting a 

statute . . . [a] just and reasonable result is intended”); id. § 4.6(5) (noting 

that when a statute is ambiguous, we should consider “[t]he 

consequences of a particular construction”). In order to apply this wellestablished rule, we sometimes consider fact patterns other than the one 

before the court to determine if a particular statutory interpretation 

would have untoward consequences. See, e.g., State v. Hoyman, 863 

N.W.2d 1, 14 (Iowa 2015); Andover Volunteer Fire Dep’t v. Grinnell Mut. 

Reins. Co., 787 N.W.2d 75, 86 (Iowa 2010); Bell Bros. Heating & Air 

Conditioning v. Gwinn, 779 N.W.2d 193, 207 (Iowa 2010); State v. 

Carpenter, 616 N.W.2d 540, 544 (Iowa 2000). That is part of the judicial 

function—to consider alternative statutory interpretations and see where 

those alternatives logically lead.
30

Applying this principle in the case at hand reveals a problem with 

Core Group’s reading of the statute. If “all information” means all 

information and not merely, in context, all health care provider 

information, Core Group’s interpretation would eliminate all privileges 

and protections—e.g., work product, attorney work product, attorney–

client, priest–penitent—to the extent the item refers to the employee’s 

physical condition. We believe that is an absurd result that could not 

have been intended by the legislature.

In fact, the commissioner’s declaratory order implicitly recognizes 

the absurdity of such a result. On page 7 of his order, the commissioner 

states “that the mental impressions, conclusions, opinions, or legal 

theories of an attorney or other representative of a party concerning the 

litigation are not waived by Iowa Code section 85.27(2).” While we 

understand the impulse to carve out and preserve upper-tier work 

product, the declaratory order fails to explain what in section 85.27(2) 

shields upper-tier but not lower-tier work product from discovery. The 

order is internally inconsistent—a serious flaw in our view.

6. Legislative history. In construing an ambiguous statute, the 

court may consider “[t]he circumstances under which the statute was 

enacted” and “[t]he legislative history.” See Iowa Code § 4.6(2)–(3). Here 

the bill explanation indicates that section 85.27(2) relates to “the release 

of information concerning a person’s past physical or mental condition.” 

See H.F. 863, 66th G.A., 2d Sess. explanation (1976) (emphasis added).

“[W]e give weight to explanations attached to bills as indications of 

legislative intent.” Star Equipment, Ltd. v. State, 843 N.W.2d 446, 454 

(Iowa 2014) (internal quotation marks omitted); see also Postell v. Am.

Family Mut. Ins. Co., 823 N.W.2d 35, 49 (Iowa 2012) (same). We have 

recently explained the relevance of legislative explanations:
31

The legislature enacts the bill—not the accompanying 

explanation. But, the internal rules governing the general 

assembly require the title and explanation to be accurate. 

An explanation or title included when a bill is introduced 

may become irrelevant when the text of the bill is materially 

changed by subsequent amendments. But, when the 

explanation accompanies the text of the bill enacted without 

a relevant substantive change, the explanation is part of the 

legislative history that can be examined in our efforts to 

determine the meaning of the text.

Star Equipment, 843 N.W.2d at 454 n.3 (citations omitted).

Surveillance for litigation purposes would not normally be 

classified as information concerning a person’s “past” physical or mental 

condition. Rather, it is typically conducted after a claim has been 

brought. This tends to support the Institute’s proposed interpretation of 

Iowa Code section 85.27(2).

Of course, there is the truism that once information like

surveillance has been gathered, it always relates to the “past.” But such 

a reading of the explanation would render the word “past” redundant to 

the word “information.” A more logical reading of the explanation is that 

the word “past” refers to information that had been obtained before the 

claim was filed. Ensuring the exchange of prior health care records 

appears to have been the legislature’s main purpose in enacting section 

85.27(2).

7. Prior administrative interpretations. The commissioner’s 

declaratory order also appears to be inconsistent with long-held 

administrative views of the agency. See Ramirez v. Riverview Care Ctr., 

Iowa Workers’ Comp. Comm’n Nos. 1243830, 1253740, 1253741, 

1253742, 1253743, 2002 WL 32125248, at *2 (“Under the prevailing 

rule, surveillance materials may be withheld as privileged work product 

for a reasonable time until the party observed can be deposed or 

otherwise compelled to take a position on the facts pertinent to the 
32

surveillance. They may not be withheld after the 30-day case 

preparation deadline in the hearing assignment order.” (Citations

omitted.)); Hansen v. Graham Constr., Iowa Workers’ Comp. Comm’n No. 

1171846, 2000 WL 33992554, at *8 (“[D]efendants, upon a proper 

discovery request, are to provide to claimant the results of any 

surveillance conducted but may postpone doing so until claimant has 

been deposed.”); Hoover v. Iowa Dep’t of Agric., Iowa Workers’ Comp. 

Comm’n No. 529205, 1993 WL 13021598, at *4 (approving defendants’

withholding of surveillance material from disclosure in discovery until 

after the claimant’s deposition “to protect the impeachment value of the 

evidence until after claimant’s deposition, where sufficient time remained 

before hearing for claimant to avoid prejudice by examining the evidence 

and cross-examining the surveillance witnesses”).

“Longstanding administrative interpretations are entitled to some 

weight in statutory construction.” Griffin Pipe Prods. Co. v. Bd. of Review, 

789 N.W.2d 769, 775 (Iowa 2010). It is true, as we have already said, 

that we must interpret section 85.27(2) ourselves, but at a minimum the

durability of the previous interpretation is worth noting. The 

commissioner correctly observes that these agency cases did not 

specifically discuss Iowa Code section 85.27(2). Still, section 85.27(2) is 

a bread-and-butter statute regularly administered by the agency. If it 

was viewed as having any relevance to the discoverability of surveillance, 

it seems likely that one of these decisions would have mentioned it.

8. The rule in other jurisdictions. Although we have not found 

another jurisdiction with a statute that resembles Iowa Code section 

85.27(2), it appears that most jurisdictions to have considered the issue

allow the responding employer to withhold production of surveillance 

until after the employee’s deposition—while requiring the surveillance to 
33

be produced before the hearing. See, e.g., Ex parte Doster Constr. Co., 

772 So. 2d 447, 451 (Ala. 2000) (“[T]he quest for the truth should be 

furthered through protecting the videotape before the employee is 

deposed.”); Congleton v. Shellfish Culture, Inc., 807 So. 2d 492, 495–96 

(Miss. Ct. App. 2002) (upholding as “fair to both parties” a procedure 

under which the employer provided notice of the existence of surveillance 

prior to the employee’s deposition, but did not produce the surveillance 

itself until after the deposition); De Marco v. Millbrook Equestrian Ctr., 

732 N.Y.S.2d 121, 122 (App. Div. 2001) (affirming a determination by the 

workers’ compensation board that the employer was not obligated to turn 

over a copy of the surveillance video until after the employee’s 

deposition); see also Comm’n on Official Legal Pubs., Connecticut Practice 

Book § 13-3(c), at 214 (2015) (requiring production of films, photographs, 

and audiotapes “thirty days after the completion of the deposition of the 

party who is the subject” of surveillance); N.J. Admin. Code § 12:235-

3.11(a)(4)(i) (West, Westlaw current through amendments dated May 18, 

2015) (“A party is not required to provide or exhibit electronic 

information, including surveillance tapes, to another party prior to the 

other party’s testimony under oath.”).

Missouri is the only state clearly to take a contrary approach. It 

requires predeposition disclosure of surveillance in workers’

compensation proceedings but on the rationale that this is a “statement” 

by the claimant and, therefore, discovery provisions allowing a person to 

obtain his or her own statement apply. See, e.g., State ex rel. Feltz v. Bob 

Sight Ford, Inc., 341 S.W.3d 863, 866–68 (Mo. Ct. App. 2011). 

Respectfully, we do not agree that an employee engaging (or not

engaging) in physical activity for its own sake is making a “statement.” 

See Iowa R. Evid. 5.801(a) (defining a statement as “(1) an oral or written 
34

assertion or (2) nonverbal conduct of a person, if it is intended by the 

person as an assertion”). The commissioner does not rely on such a 

justification for his declaratory order.

This center of gravity in the authorities suggests, at a minimum, 

that allowing an employer or an employer’s attorney to withhold 

surveillance until after the employee’s deposition does not undermine the 

policies behind workers’ compensation. Notably, the foregoing 

jurisdictions, like Iowa, place a high value on getting benefits in the 

hands of injured workers. See Ex Parte Lumbermen’s Underwriting 

Alliance, 662 So. 2d 1133, 1137 n.3 (Ala. 1995) (referring to “the public 

policy behind the adoption of workers’ compensation acts—to provide 

necessary day-to-day financial support to an injured worker and the 

worker’s dependents”); Pietraroia v. Ne. Utils., 756 A.2d 845, 854 (Conn. 

2000) (noting that the workers’ compensation act “is remedial and must 

be interpreted liberally to achieve its humanitarian purposes” (internal 

quotation marks omitted)); Metal Trims Indus., Inc. v. Stovall, 562 So. 2d 

1293, 1297 (Miss. 1990) (“Because of the broad policy declarations made 

by the Mississippi Legislature in adopting the Worker’s Compensation 

Act, this Court has given liberal construction to the compensation 

statutes.”); Fitzgerald v. Tom Coddington Stables, 890 A.2d 933, 938 (N.J. 

2006) (“We have consistently held that our statutory workers’ 

compensation scheme is remedial social legislation and should be given 

liberal construction in order that its beneficent purposes may be 

accomplished.” (Internal quotation marks omitted.)); Crosby v. State

Workers’ Comp. Bd., 442 N.E.2d 1191, 1195 (N.Y. 1982) (“The broad 

scheme of compensation for work-related injuries or death contained in 

the Workers’ Compensation Law has as its purpose the provision of a 
35

swift and sure source of benefits to injured employees or the dependents 

of deceased employees.”

Iowa’s underlying workers’ compensation goals are not unique. 

Other jurisdictions have found those goals can be met while allowing 

surveillance to be withheld until the claimant is deposed.

9. Policy considerations. Finally, both sides to this proceeding 

argue that sound policy is on their side. Core Group urges that 

immediate disclosure of surveillance materials should occur because the 

workers’ compensation system “is designed to be essentially 

nonadversarial. Whatever its faults, real or imagined, the system 

presupposes that all workers will benefit more if claims are processed 

routinely and paid quickly.” Morrison v. Century Eng’g, 434 N.W.2d 874, 

877 (Iowa 1989). Core Group contends that the workers’ compensation 

is a system where the parties should put their cards on the table as early 

as possible so that, if possible, the claim can be resolved quickly. Also, 

surveillance can still have impeachment value, even if the deponent has 

seen it beforehand.

The Institute responds that the fundamental purpose of the 

workers’ compensation statute is “to benefit the injured workers,” see 

Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa 2010), and 

putting the worker under oath before he or she has seen any surveillance 

helps one determine whether the worker is injured as claimed. 

According to the Institute, truly injured workers—the intended 

beneficiaries of workers’ compensation law—do not need to see 

surveillance of themselves before they testify under oath in a deposition. 

It is those who testify falsely about physical limitations who get 

impeached effectively by video recordings they have not seen. Trial 

lawyers are taught at an early age not to show their impeachment 
36

material to a witness and ask him or her to “explain” it, but to get the 

witness to commit to a story before revealing the impeachment evidence. 

This is viewed as an effective way to expose the witness who is not telling 

the truth.

Certainly, in the workers’ compensation field, assessing the 

claimant’s credibility is vitally important. Many claimants suffer from 

workplace-related impairments that are more serious than the purely 

objective medical findings might indicate. They deserve to be 

compensated. On the other hand, some claimants exaggerate their 

symptoms.

In sum, there are valid policy reasons for and against requiring 

predeposition disclosure of surveillance in workers’ compensation claims.

10. Conclusion. Reasonable arguments can be made for and 

against the commissioner’s interpretation of Iowa Code section 85.27(2). 

In the end, however, we are persuaded that the section is directed at 

health care provider records and not at any information that might have 

any bearing on an employee’s physical or mental condition, including 

work product surveillance. Section 85.27(2) does not refer to attorneys, 

does not mention discovery barriers other than “privileges” (which the 

work product immunity is not), and falls within a code provision that is 

otherwise limited to health care services.

Most importantly, the commissioner’s interpretation has no 

limiting principle. If all means all, then even an attorney–client privileged 

email from a claimant to her attorney discussing her impairment would 

have to be produced—an outcome that even the commissioner is 

unwilling to countenance. Hence, we find the declaratory order 

erroneously determined that Iowa Code section 85.27(2) applies to 

surveillance.
37

C. Other Issues. The commissioner’s declaratory order, as we 

have noted, was limited to section 85.27(2). The commissioner did not 

reach question (i), the only question that did not involve interpretation of 

section 85.27(2). We believe our opinion should be similarly limited.

In an actual workers’ compensation proceeding, a determination 

that section 85.27(2) does not require disclosure of surveillance would 

not resolve all potential discovery issues. Other potential issues include

these questions: (1) Does surveillance taken for litigation purposes lose 

its work product status under Iowa Rule of Civil Procedure 1.503(3) when 

a determination is made that the surveillance will be used at the 

hearing? (2) Does a party have substantial need for access to 

surveillance and is the party unable to obtain the substantial equivalent 

without undue hardship if the surveillance is going to be used at the 

hearing? (3) If a party can withhold access to surveillance on the basis 

that it is work product, what disclosures must the party make in a 

privilege log? See Iowa R. Civ. P. 1.503(3), (5)(a). These matters arise, as 

well, in ordinary civil litigation and are discussed only in passing in the 

parties’ briefs. We believe a ruling on these civil procedure questions 

would have a wide impact outside of workers’ compensation and should 

await a case or cases in which they are fully briefed and squarely 

presented.

IV. Conclusion.

The commissioner did not err or abuse his discretion in ruling on 

Core Group’s petition for declaratory order. However, we conclude the 

commissioner erroneously interpreted Iowa Code section 85.27(2). See

Iowa Code § 85.27(2). For the foregoing reasons, we set aside the 

commissioner’s order interpreting Iowa Code section 85.27(2) as 
38

requiring the production of postclaim surveillance to the employee before 

the employee’s deposition.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED.

All justices concur except Hecht, J., who concurs in part and 

dissents in part, and Zager, J., who takes no part.
39

#13–1627, Iowa Ins. Inst. v. Core Grp.

HECHT, Justice (concurring in part and dissenting in part).

I agree with the majority on the procedural question, but disagree 

on the substantive one. In my view, the majority has overlooked the 

nuances attending Core Group’s petition and the important differences 

between workers’ compensation cases and general civil litigation. 

Because I find the majority’s reasoning unpersuasive, I respectfully 

dissent in part.

The majority relies on rules of statutory interpretation to interpret 

section 85.27(2), but omits one very important rule specifically applicable 

in workers’ compensation cases: “a fundamental purpose of the workers’ 

compensation statute is to benefit . . . injured workers.” Jacobson 

Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa 2010); accord Xenia 

Rural Water Dist. v. Vegors, 786 N.W.2d 250, 257 (Iowa 2010) (“We apply 

the workers’ compensation statute broadly and liberally in keeping with 

its humanitarian objective . . . .”); Griffin Pipe Prods. Co. v. Guarino, 663 

N.W.2d 862, 865 (Iowa 2003) (“[T]he primary purpose of chapter 85 is to 

benefit the worker and so we interpret this law liberally in favor of the 

employee.”). Applying the statute broadly and liberally consistent with 

our longstanding practice, I conclude the commissioner’s interpretation 

of section 85.27 is correct. Accordingly, I would affirm the decisions of 

the district court and the court of appeals.

I. Whether Section 85.27(2) Applies to Surveillance Materials. 

The majority concludes the phrase “all information” in section 

85.27(2) means “all medical information” and “the employee’s physical or 

mental condition” actually means “the employee’s past physical or 

mental condition.” See Iowa Code § 85.27(2). It does so on the ground 

that other subsections of section 85.27 are more directly applicable in 
40

particular medical contexts, and because the bill book containing the 

house file enacted in 1976 features an explanation stating the bill made 

revisions “concerning a person’s past physical or mental condition.” H.F. 

863, 66th G.A., 2d Sess. explanation (Iowa 1976). I disagree.

I would not read implied limitations into section 85.27(2) because I 

conclude “all information” really means all information. “[T]he word ‘all’ 

has an important use. If it has no significance . . . it might as well be 

dropped from the language as superfluous.” Parsons v. Parsons, 66 Iowa 

754, 762, 24 N.W. 564, 565 (1885). “All” has a plain meaning that “is 

commonly understood and usually does not admit of an exception, 

addition or exclusion.” Consol. Freightways Corp. of Del. v. Nicholas, 258 

Iowa 115, 121, 137 N.W.2d 900, 904 (1965). When a statute contains 

the word “all,” this court has said it sees “no logical reason to hold [the 

statute] means less than it says.” Cedar Rapids Cmty. Sch. Dist. v. City 

of Cedar Rapids, 252 Iowa 205, 211, 106 N.W.2d 655, 659 (1960).

The decisions of this court have given the word “all” a very broad 

meaning. See, e.g., Luttenegger v. Conseco Fin. Servicing Corp., 671 

N.W.2d 425, 434 (Iowa 2003); Barron v. State Farm Mut. Auto. Ins. Co., 

540 N.W.2d 423, 426 (Iowa 1995); In re Peers’ Estate, 234 Iowa 403, 411, 

12 N.W.2d 894, 898 (1944); Grimes v. Nw. Legion of Honor, 97 Iowa 315, 

324, 64 N.W. 806, 808 (1895) (“[T]he legislature, by the use of the words 

‘all insurance companies or associations,’ intended to cover every form of 

insurance.”); State v. Hutchison, 72 Iowa 561, 562–63, 34 N.W. 421, 421 

(1887) (concluding a statutory prohibition against “all intoxicating liquors 

whatever” included alcoholic cider manufactured from apples). I would 

again give the word a broad meaning in this case. 

I find our decision in Consolidated Freightways instructive. See 

Consol. Freightways Corp., 258 Iowa at 121, 137 N.W.2d at 904. There 
41

we concluded the plain meaning of the word “all” rebutted a contention 

“that the words ‘all states’ and ‘total fleet miles’ . . . refer to ‘all 

apportioning states’ and to ‘total fleet miles in apportioning states.’ ” Id. I 

similarly reject the majority’s conclusion that in the context of section 

85.27(2) “all information” actually means “all medical information” and 

“the employee’s physical or mental condition” actually means “the 

employee’s past physical or mental condition.” See Iowa Code § 85.27(2). 

We should “not write such . . . provision[s] into the statute in the guise of 

interpretation.” Clarke Cnty. Reservoir Comm’n v. Abbott, 862 N.W.2d 

166, 177 (Iowa 2015).

I acknowledge that in some cases we have concluded the word “all” 

meant something short of all-inclusive. See, e.g., In re Estate of Troester, 

331 N.W.2d 123, 126 (Iowa 1983); Johnson v. Bd. of Adjustment, 239 

N.W.2d 873, 880–81 (Iowa 1976); Silver Lake Consol. Sch. Dist. v. Parker, 

238 Iowa 984, 997, 29 N.W.2d 214, 221 (1947); In re Licenses for Sale of 

Used Motor Vehicles, 179 N.W. 609, 611 (Iowa 1920). The majority 

concludes these cases are a sufficient counterweight to the truism that 

all means all. Notably, however, none of these cases in which we 

concluded the word “all” meant something less than all-inclusive 

presented a question requiring interpretation of our workers’ 

compensation statute. 

When deciding workers’ compensation issues, this court has 

consistently refused to read terms into chapter 85 that are not there 

expressly, because doing so would create a narrow construction 

incompatible with the statute’s benevolent purpose. See, e.g., Holstein 

Elec. v. Breyfogle, 756 N.W.2d 812, 816 (Iowa 2008); Cedar Rapids Cmty. 

Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); Disbrow v. Deering 

Implement Co., 233 Iowa 380, 392, 9 N.W.2d 378, 384 (1943); see also 
42

Andover Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 787 N.W.2d 75, 

88 (Iowa 2010) (Hecht, J., concurring specially) (writing separately to 

question an interpretation of a statute that “results in an embellishment 

of the words chosen by the legislature”). Unfortunately, today’s majority 

is not faithful to this well-established maxim.

Despite the indisputably broad language in section 85.27(2) and 

the notion that chapter 85 should be interpreted broadly, the majority 

concludes the words “all information” in section 85.27(2) must mean 

something less than all information because the legislature placed them 

among other subsections referring to medical treatment for work-related 

injuries. I disagree. The legislature could, of course, have narrowly 

limited the scope of information released under subsection (2) to “records 

of medical services.” But it did not. See Nelson v. Lindaman, 867

N.W.2d 1, 10 (Iowa 2015) (concluding a statute should be interpreted 

broadly because if the legislature wanted to limit the statute’s scope, “it 

would have said so, as it has in other statutes”). The legislature chose 

instead to define the release broadly to include “all information to which 

the employee, employer, or carrier has access concerning the employee’s 

physical or mental condition relative to the claim.” Iowa Code § 85.27(2). 

It is in my view perfectly sensible that the legislature intended a broad 

understanding of the words “all information” in this context. 

Surveillance showing a workers’ compensation claimant’s physical 

activity can provide information that is exquisitely relevant to the 

determination of physical capacity and disability—matters which depend 

in significant part upon medical opinions and substantially impact 

medical diagnosis and treatment. Accordingly, I conclude the 

commissioner correctly interpreted “all information” in subsection (2) to 

include surveillance information.
43

I also find unpersuasive the majority’s conclusion that the 

commissioner’s interpretation of section 85.27(2) would lead to absurd 

results. There is nothing absurd about a statutory framework requiring 

all parties to a workers’ compensation case to open their files and release 

all information about the claimant’s physical or mental condition. The 

commissioner’s interpretation requiring such disclosure comports quite 

comfortably with the purpose of workers’ compensation proceedings—to 

enable prompt, inexpensive resolution of claims. See Flint v. City of 

Eldon, 191 Iowa 845, 847, 183 N.W. 344, 345 (1921) (noting the purpose 

and intent of workers’ compensation “is to avoid litigation, lessen the 

expense incident thereto, . . . and afford an efficient and speedy tribunal 

to determine and award compensation”). That purpose is more likely 

achieved when parties are required to reveal to each other all information 

relevant to claimants’ physical or mental condition, rather than holding 

some of it back in the hope of maximizing a potential litigation 

advantage. 

The majority’s assertion that the commissioner’s interpretation of 

section 85.27(2) would jeopardize a wide array of privileges is 

unconvincing. The declaratory order in fact addresses a single 

privilege—work product—not several. Indeed, the waiver of that single 

privilege under the commissioner’s interpretation of the statute is limited 

to a very narrow category of information including only surveillance and 

does not purport to address whether spousal communications or priest–

penitent conversations must be released. The scope of the disclosures 

required by the commissioner’s order is further limited by its 

preservation of work product protection for the mental impressions and 

conclusions of employers, their insurers, or their attorneys. Thus, under 

the commissioner’s interpretation of section 85.27(2), the sky would not 
44

fall and the evidentiary floodgates would not open. Surveillance 

information left unprotected by the work product privilege would only 

include videos, photographs, and surveillance reports evidencing the 

physical or mental condition of the claimant. 

I also dispute that the bill book explanation of the statute in 1976 

referring to “past physical or mental condition” supports the majority’s 

reasoning in this case. Because surveillance is “typically conducted after 

a claim has been brought,” the majority concludes the general assembly 

did not include surveillance information within the universe of 

information that must be released under section 85.27(2). But this 

temporal analysis does not hold together when placed in the practical 

context of workers’ compensation cases. Surveillance materials, like 

medical records and reports, address a claimant’s physical or mental 

condition as of a particular moment in time. At all times after such 

materials, records, and reports have been created, they are accurately 

described as evidencing a past condition of the claimant. Thus, under 

section 85.27(2), parties must release all relevant medical records and 

reports pertaining to workers’ compensation claimants whether they were 

generated before or after the injury that is the subject of the proceeding—

or before or after the workers’ compensation contested case was 

commenced—because they are “past records” by the time they are 

released. This statutory requirement to release all relevant medical 

records without regard to temporal considerations is essential to proper 

processing and management of claims. For this reason, I believe the 

word “past” in the bill book explanation cannot plausibly deserve the

significance suggested by the majority. Because the general assembly 

must have intended in section 85.27(2) that all relevant medical records 

be released by all parties without regard to when they were generated 
45

because they evidence the physical or mental condition of the claimant, I 

believe the commissioner correctly concluded all surveillance materials 

and reports probative of physical or mental condition must be released 

upon request. 

Furthermore, the majority’s reliance on the 1976 legislative 

explanation ignores well-established principles of statutory 

interpretation. We determine legislative intent “by what the legislature 

said, rather than what it should or might have said.” Iowa R. App. P. 

6.904(3)(m) (providing this rule of statutory interpretation is “so well 

established that authorities need not be cited” to support it); see also 

Iowa Code § 4.6(3), (7) (permitting courts interpreting a statute to 

consider legislative history and statements of policy only if the statute 

itself is ambiguous). Here, “the word ‘all’ . . . is not limited in any way. 

That is clear, so we need not engage in statutory construction.” Barron, 

540 N.W.2d at 426. Additionally, “[t]he legislature enacts the bill—not 

the accompanying explanation.” Star Equip., Ltd. v. State, 843 N.W.2d 

446, 454 n.3 (Iowa 2014). I see a significant difference between the 

accompanying explanation of section 85.27(2) and other indications of 

legislative intent expressly approved by the legislature and included 

within—not just alongside—a particular enactment. See, e.g., LSCP, 

LLLP v. Kay-Decker, 861 N.W.2d 846, 861 (Iowa 2015); Roberts Dairy v. 

Billick, 861 N.W.2d 814, 820 (Iowa 2015). 

There is yet another problem with the majority’s interpretation of 

section 85.27(2) limiting the waiver to the claimant’s interest in 

confidentiality of medical records: It renders part of section 85.27(2) 

superfluous. See Rojas v. Pine Ridge Farms, L.L.C., 779 N.W.2d 223, 231 

(Iowa 2010) (“We . . . presume the legislature included all parts of the 

statute for a purpose, so we will avoid reading the statute in a way that 
46

would make any portion of it redundant or irrelevant.”). Section 85.27(2) 

expressly extends the interests waived to those of “[a]ny employee, 

employer, or insurance carrier making or defending a claim for benefits.” 

Iowa Code § 85.27(2) (emphasis added). But if, as the majority 

concludes, the waiver implemented in section 85.27(2) is limited to 

medical records and information for which a claimant could claim a 

physician–patient privilege, employers and their insurance carriers will 

never be subject to it. Employers and their insurance carriers have no 

physician–patient privilege in such information to waive, and their 

inclusion in section 85.27(2) among those waiving an interest would be 

entirely superfluous. We should give effect to every part of the statute, if 

possible. See Rojas, 779 N.W.2d at 231; Beier Glass Co. v. Brundige, 329 

N.W.2d 280, 285 (Iowa 1983) (“[W]e construe a statute . . . based on our 

presumption the legislature intended every part for a purpose.”). The 

commissioner’s declaratory order gives effect to the words “employer or 

insurance carrier” by correctly concluding the waiver effected by the 

statute requires release of surveillance information evidencing a 

claimant’s physical or mental condition.

The majority dismisses this point by suggesting the legislature 

really meant to impose the waiver under section 85.27(2) only on 

employees but obscured that intent in favor of “cleaner” language 

expressly imposing it on all parties to workers’ compensation cases. In 

my view, this explanation is doubtful at best. As noted above, it fails 

completely to account for the general assembly’s language waiving the 

employer and insurer’s privilege in information. The majority’s solution 

of the problem is to write out of the statute the troublesome words 

expressly eliminating a privilege otherwise held by employers and their 

insurance carriers. I believe the commissioner’s understanding of the 
47

statute—one consistent with the canon that we interpret statutes to give 

meaning to all their words when possible—breathes life into all of its 

words. Because the employer or insurer has no protected or protectable 

interest in the claimant’s medical records whether the claimant 

possesses them or not, I conclude the general assembly must have 

intended a waiver of some interest other than the physician–patient 

privilege. I find the commissioner’s interpretation of section 85.27(2) 

more persuasive than the majority’s in part because it gives meaning to 

the words of the statute extending the waiver to surveillance information 

held by the employer or its insurance carrier—information that would 

otherwise be protected by the work product doctrine. 

II. Whether Section 85.27(2) Waives Work Product Protection. 

The majority concludes section 85.27(2) cannot effect a waiver of 

work product protection because the work product doctrine provides 

qualified immunity from discovery rather than a “privilege.” This 

characterization of the work product doctrine emphasizes form over 

substance and adopts a semantic label without considering how work 

product protection actually operates.

A. Limited Scope of Inquiry. I do not dispute that there are “two 

tiers of work product recognized by Iowa rule 1.503(3).” Keefe v. 

Bernard, 774 N.W.2d 663, 674 (Iowa 2009). I also do not dispute that 

surveillance materials constitute work product in the civil litigation 

context because they are documents or tangible things prepared by or for 

a party in anticipation of litigation. See Iowa R. Civ. P. 1.503(3). 

However, the types of surveillance materials for which Core Group 

requested a declaratory order—videos, photos, and factual reports—will 

never fall within the upper tier of work product, because they do not 

reveal mental impressions and conclusions. Accordingly, the majority’s 
48

warning that section 85.27(2) might waive other privileges—for example, 

priest–penitent privilege—and the inconsistency it perceives in the 

commissioner’s ruling are in my view red herrings.

The commissioner’s ruling did not need to explain which part of 

section 85.27(2) justifies a distinction between upper-tier and lower-tier 

work product because the distinction does not flow from the statute at 

all; it flows from the nature of the materials and their obvious relevance 

to a claimant’s physical or mental condition. Further, as I have already 

noted, the commissioner’s declaratory order proceeding did not address 

any other privileges. Accordingly, there is no need to address other 

privileges in our decision because their continuing vitality in workers’ 

compensation cases was not at issue in the agency and is not before the 

court on appeal. See Morrison v. Century Eng’g, 434 N.W.2d 874, 876–77 

(Iowa 1989) (addressing only the physician–patient privilege because that 

was the only question presented); see also Eugene Volokh, The 

Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1137 (2003) 

(“The slippery slope is in some ways a helpful metaphor, but as with 

many metaphors, it starts by enriching our vision and ends by clouding 

it.”); cf. State v. Thompson, 836 N.W.2d 470, 495 n.8 (Iowa 2013) (Appel, 

J., concurring specially) (resisting “any slippery-slope-type argument 

regarding . . . other privileges” because “the only issue before the court 

involves the application of [a particular statute] . . . to the facts at hand”).

B. Immunity Versus Privilege. The majority concludes section 

85.27(2) does not eliminate work product protection for surveillance 

information because the work product doctrine provides immunity from 

discovery rather than an evidentiary privilege. The terms “immunity” 

and “privilege” have been used alternatively in our caselaw. The majority 

suggests our alternating use of the terms merely illustrates that the 
49

court’s word choices are occasionally imprecise. I can accept that 

premise, but only if we also accept that the general assembly uses 

imprecise language on occasion, too, and that it may have done so in this 

particular statute. Unlike the majority, I do not presume the general 

assembly’s use of the word “privilege” and the Institute’s characterization 

of work product protection as a procedural immunity are dispositive of 

the issue before us.9 Instead, I evaluate substance rather than form—

and because work product protection operates in practice in the same 

manner as other evidentiary privileges, I consider it a privilege for 

purposes of section 85.27(2).

In a general sense, both “privilege” and “immunity” concepts place 

the burden of proof on the party asserting protection. See Anderson v. 

State, 692 N.W.2d 360, 364 (Iowa 2005) (discretionary function 

immunity); AgriVest P’ship v. Cent. Iowa Prod. Credit Ass’n, 373 N.W.2d 

479, 482 (Iowa 1985) (“One resisting discovery through assertion of a 

privilege has the burden to show the privilege exists and applies.”). But, 

once established, an immunity leads courts to only one possible 

conclusion, while a privilege does not. In other words, an opposing party 

cannot override a claim of immunity based upon their substantial need 

for information or other ground; they can only assert the immunity does 

not apply. But an opponent can override an adversary’s claim of privilege 

with a proper showing. See, e.g., In re A.M., 856 N.W.2d 365, 373 (Iowa 

2014) (applying a statutory exception to the psychotherapist–patient 

privilege); State v. Countryman, 572 N.W.2d 553, 561 (Iowa 1997) 

9With respect to the analogous federal rule, the authors of a preeminent federal 

practice manual suggest the difference between “privilege” and “immunity” is purely a 

matter of nonsubstantive semantics. 8 Charles Alan Wright et al., Federal Practice & 

Procedure § 2023, at 492–94 (3d ed. 2010) (“This matter of nomenclature should . . . not 

continue to be of importance.” (Emphasis added.)).

 
50

(recognizing two exceptions to the marital-communications privilege); 

Chung v. Legacy Corp., 548 N.W.2d 147, 150–51 (Iowa 1996) (exploring 

the patient–litigant exception that overrides the physician–patient 

privilege when the party claiming the privilege places their condition at 

issue).

The framework of rule 1.503(3) best fits the privilege framework. 

Although a party can establish that a requested document or item is 

protected work product, the party seeking that document or item can still 

obtain it upon a showing of substantial need and undue hardship. See

Iowa R. Civ. P. 1.503(3). Because the work product doctrine, like 

evidentiary privileges, is subject to override upon an opponent’s proper 

showing, it is more like a privilege than an immunity. Cf. Bob McKiness 

Excavating & Grading, Inc. v. Morton Bldgs., Inc., 507 N.W.2d 405, 411 

(Iowa 1993) (looking “beyond the labels to the actual nature of the action” 

to determine the applicable statute of limitations); Essex Ins. Co. v. 

Fieldhouse, Inc., 506 N.W.2d 772, 775 (Iowa 1993) (examining substance 

rather than form “[r]egardless of the label”). I reject the majority’s 

conclusion that the “immunity” label is dispositive of the issue before us, 

preferring instead an analytical framework that examines the substance 

of the question rather than its form.

I acknowledge that work product materials including surveillance 

are often in the possession of attorneys rather than the employers and 

insurance carriers they represent. The majority concludes clients cannot 

unilaterally waive the work product doctrine as to materials in their 

attorneys’ possession. Yet, the waiver under section 85.27(2) is effected 

by the statute, not by employers’ or insurers’ unilateral actions. More 

importantly, parties to workers’ compensation proceedings must, under 

the statute, release not only information they have in their possession, 
51

but also information to which they have access. Parties to workers’ 

compensation proceedings have access to surveillance videos, 

photographs, and reports in the possession of their attorneys. 

Accordingly, I believe the clear language of the statute extends the 

limited waiver of the work product privilege to surveillance materials in 

the possession of attorneys for employers and their insurance carriers. 

III. Timing of Disclosure. 

Previous agency decisions had concluded that postponing 

disclosure until after the claimant’s deposition preserved impeachment 

value. However, agency decisions interpreting the law are not binding on 

this court. Keystone Nursing Care Ctr. v. Craddock, 705 N.W.2d 299, 304 

n.2 (Iowa 2005) (“[T]he commissioner’s final decision is judged against 

the backdrop of the workers’ compensation statute and the Iowa 

appellate cases interpreting it, not previous agency decisions.”). And 

until today, we had not confronted a case presenting the temporal 

question at issue here.

Surveillance materials undoubtedly have some impeachment 

value. See Snead v. Am. Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 

150 n.1 (E.D. Pa. 1973) (“It is in the best interests of society that valid 

claims be ascertained and fabricated claims be exposed.”). However, 

“surveillance footage . . . is hardly a smoking gun,” even when it depicts 

a claimant “performing tasks inconsistent with the claimed disability.” 

Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 848–49 (Iowa 

2011). 

Two Louisiana cases illustrate the important competing interests 

at stake in determining whether predeposition disclosure is appropriate. 

In Moak v. Illinois Central Railroad, the Louisiana Supreme Court 

concluded the timing of disclosure should turn on “when the production 
52

of surveillance films, tapes or photographs will most likely assist the 

search for truth.” Moak v. Ill. Cent. R.R., 631 So. 2d 401, 406 (La. 1994). 

The court determined predeposition disclosure is often appropriate:

While . . . surprise may have a healthy prophylactic effect 

against possible perjury, it is more likely that the adversarial 

process will function efficiently and cases will be decided 

fairly on the merits if the parties are aware of all the 

evidence. Furthermore, discovery of surveillance materials 

permits the kind of stipulations and admissions required for 

effective pre-trial procedures. It also encourages settlement 

or abandonment of less than meritorious claims.

Id. at 405 (citation omitted) (internal quotation marks omitted).

Several years later, the Louisiana Supreme Court distinguished 

Moak. Wolford v. JoEllen Smith Pyschiatric Hosp., 693 So. 2d 1164, 

1166–67 (La. 1997). The court concluded the unique impeachment value 

of surveillance justifies a per se rule preventing disclosure before the 

plaintiff’s deposition. See id. at 1167. The court explained:

Surveillance videotape picturing the plaintiff engaged in 

physical activity has the potential to reveal inconsistencies 

between the plaintiff’s claimed injuries and resulting

limitations and the plaintiff’s actual abilities. However, any 

potential impeachment value would be destroyed by ordering 

pre-deposition disclosure of such surveillance materials. If 

the plaintiff were to view the surveillance videotape prior to 

being deposed as to his physical injuries and limitations 

during the time period pictured in the videotape, he would be 

more likely, either inadvertently or deliberately, to tailor his 

testimony to correspond with the actions pictured in the 

videotape. . . . [D]elaying the production of the videotape 

until after the plaintiff has been fully deposed aids in the 

search for the truth.

Id.

The majority relies on many other cases that essentially utilize the 

Wolford rule (or something like it) and allow defendants to withhold 

surveillance materials until after deposing the plaintiff. See, e.g., Smith 

v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 587 (S.D. Tex. 1996); 
53

Boyle v. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D. W. Va. 1992); 

Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980). But these cases 

constituting what the majority characterizes as a consensus are not 

persuasive here for several significant reasons.

First, not all courts prioritize impeachment value over “the free 

flow of information.” See Morrison, 434 N.W.2d at 876. For example, one 

New York court stated:

Although it is possible that a plaintiff will attempt to 

tailor his or her testimony after learning what the 

surveillance films reveal, it seems unlikely that he or she 

would risk going to trial knowing that the films are accurate

. . . . We believe it is more likely that disclosure will result in 

a settlement, or possibly a voluntary discontinuance of the 

lawsuit, in either case avoiding costly and time consuming 

litigation.

Kane v. Her-Pet Refrigeration, Inc., 587 N.Y.S.2d 339, 344 (App. Div. 

1992); see also Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159–60 

(N.D. Iowa 1994) (“[R]equiring discovery of surveillance by defendants . . . 

will not jeopardize the ability of defendants to impeach plaintiffs.”); 

Shields v. Burlington N. & Santa Fe Ry., 818 N.E.2d 851, 856 (Ill. App. Ct. 

2004) (“[W]e see no need for special treatment of the substantive evidence 

in a surveillance videotape.”); Williams v. Dixie Elec. Power Ass’n, 514 So. 

2d 332, 335 (Miss. 1987) (“Once an opponent requests discoverable 

material, an attorney has a duty to comply with the request regardless of 

the advantage a surprise may bring.”).

Second, surveillance materials sometimes are not fairly described 

as a smoking gun. See Pease, 807 N.W.2d at 848. In a personal injury 

case, the New Jersey Supreme Court addressed and rejected an assertion 

that requiring disclosure of surveillance materials would render them 

toothless for impeachment purposes:
54

[D]efendants’ position suffers from an obvious analytical 

weakness: it is based on the premise that defendants’ 

evidence (in the form of the undercover films) is the exclusive 

repository of truth and virtue and its disclosure . . . will 

deprive them of the opportunity to demonstrate . . . the fraud 

plaintiff seeks to work upon them. While defendants do not 

state that assumption quite so bluntly, their argument rests 

upon it at least implicitly. The premise is one we can hardly 

indulge. It is no more unlikely that a defendant may resort 

to chicanery in fabricating motion pictures of one alleged to 

be the plaintiff than it is that a plaintiff may indeed be a 

faker.

Jenkins v. Rainner, 350 A.2d 473, 476–77 (N.J. 1976); see also Boyle, 

142 F.R.D. at 437 (“[T]hose surveilled may be tempted to alter the truth, 

but . . . those conducting the surveillance may be subject to the same 

temptation . . . .”); Snead, 59 F.R.D. at 150 (questioning the purportedly 

unassailable nature of surveillance materials because “[a]n emergency 

situation may be made to appear commonplace” and a one-time event 

can be made to appear recurring); Orgeron v. Tri-State Road Boring, Inc., 

434 So. 2d 65, 68 (La. 1983) (“[P]ictures or videotapes must be 

approached with great caution because they show only intervals of the 

activities of the subject, they do not show rest periods, and do not reflect 

whether the subject is suffering pain . . . .”).10 

Furthermore, as the Core Group suggests, in some instances 

surveillance information has no impeachment value whatsoever because 

it is probative of the physical impairment claimed by an injured 

employee. And even when surveillance information does have 

10I also find unpersuasive the Institute’s assertion that the claimant always 

knows the activities in which he or she has participated during surveillance, so 

disclosure would merely duplicate existing knowledge. While it is true enough in theory 

that a person knows what they do from day to day, I doubt most claimants have a 

memory so encyclopedic that they can generate, weeks or months later, the substantial 

equivalent of surveillance materials depicting precise moments on specific days. See 

Olszewski v. Howell, 253 A.2d 77, 78 (Del. Super. Ct. 1969) (“[E]ven assuming the 

plaintiff[] can recall the events of the two days in question, the precise evidence which 

the defendant has, the film, is now unique and cannot be reproduced.”).

 
55

impeachment value, “if [it is] at all effective will [it] not also be 

substantive evidence going directly to . . . injuries and damages?” 

Spencer v. Beverly, 307 So. 2d 461, 462 (Fla. Dist. Ct. App. 1975) 

(Downey, J., specially concurring). Whether or not such information has 

impeachment value, it is in my view probative of a claimant’s physical or 

mental condition and the commissioner therefore correctly declared it 

should be released under section 85.27(2) when requested. See Iowa 

Code § 85.27(2).

But most importantly, as I have already noted, cases adjudicating 

discovery disputes between plaintiffs and defendants engaged in civil 

litigation are qualitatively different from workers’ compensation cases 

involving claimants and employers or insurers. Unlike personal injury 

actions sounding in tort or statutory actions brought under the Federal 

Employers’ Liability Act, the workers’ compensation system “is designed 

to be essentially nonadversarial.” Morrison, 434 N.W.2d at 877; see also 

Flint, 191 Iowa at 847, 183 N.W. at 345 (noting the workers’ 

compensation system is designed to “avoid litigation . . . and afford an 

efficient and speedy tribunal”). Thus, when considering decisions from 

other courts resolving work product disputes, I strongly agree with those 

prioritizing “the free flow of information regarding a worker’s physical or 

mental condition relative to a compensation claim.” See Morrison, 434 

N.W.2d at 876. Sometimes the difference between types of cases is 

crucial. See Williams-Yulee v. Fla. Bar, ___ U.S. ___, ___, 135 S. Ct. 1656, 

1673, 191 L. Ed. 2d 570, 591–92 (2015) (plurality opinion) (judges are 

different); Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2464, 

183 L. Ed. 2d 407, 418 (2012) (children are different). This is one such 

instance. I would conclude surveillance materials are discoverable “upon 
56

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, 

11In 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).

12The 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.

 
57

449 (La. Ct. App. 1990); State ex rel. McConaha v. Allen, 979 S.W.2d 188, 

189–90 (Mo. 1998) (concluding surveillance video tapes are “statements” 

under Missouri’s workers’ compensation scheme and rules of civil 

procedure, and thus, claimants are always entitled to view them); Minn. 

R. 1420.2200(8)(A)–(B) (Westlaw current through May 13, 2015) 

(requiring disclosure of surveillance materials at the same time a party 

discloses the existence of surveillance, which must occur “upon discovery 

demand but no later than 30 days prior to the hearing date”); 34 Pa. 

Code § 131.61(a) (Westlaw current through Pa. Bulletin, Vol. 45, No. 22, 

dated May 30, 2015) (requiring parties to exchange all information, 

including “tapes, films and photographs,” as part of their initial 

disclosures, without waiting for a discovery request).

Some other states utilize different procedures. See, e.g., Ex parte 

Doster Constr. Co., 772 So. 2d 447, 451 (Ala. 2000); Congleton v. Shellfish 

Culture, Inc., 807 So. 2d 492, 495–96 (Miss. Ct. App. 2002); De Marco v. 

Millbrook Equestrian Ctr., 732 N.Y.S.2d 121, 122 (App. Div. 2001). 

However, none of these states’ workers’ compensation schemes features 

any statute or rule resembling section 85.27(2). Accordingly, I would 

hold the commissioner’s declaratory order correctly concluded the 

statute mandates predeposition disclosure upon request of surveillance 

materials. Iowa Code § 85.27(2).

IV. Fact of Surveillance. 

One final question remains: whether the fact that surveillance 

exists—along with other factual details such as dates of surveillance and 

the form it takes—is itself protected from disclosure. The majority 

declines to answer this question. I conclude the fact of surveillance is 

not protected from disclosure, and neither are related factual details.
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The caselaw reveals two competing views on this issue in the 

personal injury context. A decision of the Wisconsin Court of Appeals 

succinctly describes the position the Institute espouses here:

A lawyer’s strategic decision to invest a client’s 

resources on photographic or video surveillance is protected 

work-product. The decision not only reflects the lawyer’s 

evaluation of the strengths or weaknesses of the opponent’s 

case but the lawyer’s instructions to the person or persons 

conducting the surveillance also reveals the lawyer’s analysis 

of potentially fruitful areas of investigation. . . . Disclosure 

of the fact of surveillance and a description of the materials 

recorded would thus impinge on the very core of the workproduct doctrine.

Ranft v. Lyons, 471 N.W.2d 254, 261–62 (Wis. Ct. App. 1991). However, 

this appears to be a minority rule. Even in those cases allowing 

defendants to withhold surveillance materials until deposing the plaintiff, 

courts generally hold factual information regarding the surveillance 

receives no protection. See, e.g., Fletcher v. Union Pac. R.R., 194 F.R.D. 

666, 668 (S.D. Cal. 2000) (“[W]hether Defendant conducted surveillance 

and the dates on which any surveillance took place [a]re not privileged.”);

Smith, 168 F.R.D. at 587 (requiring defendants to disclose whether they 

performed surveillance, when they did so, and the format of surveillance 

used); Doster Constr. Co., 772 So. 2d at 451; Dodson, 390 So. 2d at 707 

(“[A] party must disclose the existence of material which is or may be 

relevant to the issues in the cause whether as substantive, corroborative, 

or impeachment evidence. Relevant evidence cannot be allowed to 

remain hidden . . . .”).

I would adopt the latter view, and I find particularly persuasive the 

federal court’s reasoning in Smith:

It may well be that the decision about if, when, or how 

surveillance of a plaintiff should be conducted does reveal 

something about how the defendant’s attorney investigates 

and prepares a case for trial. However, not every action that 
59

reveals, to some minimal degree, an attorney’s general 

strategy or approach to a case amounts to protected opinion 

work product. For example, the manner in which an 

attorney phrases his answers to interrogatories may reveal, 

to some degree, the attorney’s strategy in defending against 

the plaintiff’s claims. Nonetheless, the attorney could not 

refuse to answer the interrogatories on the grounds of the 

work product doctrine.

Smith, 168 F.R.D. at 587. Because the workers’ compensation system is 

nonadversarial, in this context we should uphold even more doggedly the 

maxim that litigation by surprise is incompatible with modern-day law 

practice. See Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 386 

(Iowa 2012) (noting trial by surprise interferes with the search for truth); 

State ex rel. Hager v. Carriers Ins. Co., 440 N.W.2d 386, 389 (Iowa 1989) 

(advancing “the basic notion of fairness . . . aimed at elimination of trials 

by ambush” (internal quotation marks omitted)); cf. Simons v. State 

Comp. Mut. Ins. Fund, 865 P.2d 1118, 1121–22 (Mont. 1993) (excluding 

surveillance footage from trial when the employer did not disclose it as 

an anticipated trial exhibit). Requiring employers and insurers to 

disclose upon request the fact of surveillance, the dates of surveillance, 

the form of surveillance, and the investigator’s identity serves this 

purpose.

V. Conclusion.

Although I agree the commissioner did not err or abuse his 

discretion in ruling on Core Group’s petition for declaratory order, I 

disagree with the majority’s conclusion that the commissioner erred in 

interpreting Iowa Code section 85.27(2). I believe the commissioner 

correctly interpreted section 85.27(2) as requiring parties in workers’ 

compensation proceedings to release to a claimant—upon request—

surveillance materials and factual information about such surveillance 

conducted in connection with the claimant’s case. As both the district 
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court and the court of appeals reached the same conclusion as the 

commissioner, I would affirm their decisions.