IN THE COURT OF APPEALS OF IOWA

No. 13-1627

Filed October 29, 2014

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,

Petitioners-Appellants,

vs.

CORE GROUP OF THE IOWA ASSOCIATION FOR JUSTICE, CHRISTOPHER 

J. GODFREY, WORKERS’ COMPENSATION COMMISSIONER, DIVISION OF 

WORKERS’ COMPENSATION, and IOWA DEPARTMENT OF WORKFORCE 

DEVELOPMENT,

Respondents-Appellees.

________________________________________________________________

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

Judge.

An association of insurance companies appeals from a workers’ 

compensation commissioner’s declaratory order. AFFIRMED.

Joseph A. Happe, Sarah K. Franklin, Stephen M. Morain, and Elizabeth R. 

Meyer of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for 

appellants.

R. Saffin Parrish-Sams of Soldat & Parrish-Sams, P.L.C., West Des 

Moines, for appellees.

Heard by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
2

VAITHESWARAN, P.J.

Under Iowa Code section 85.27(2), litigants in a workers’ compensation 

proceeding must agree to the release of “all information . . . concerning the 

employee’s physical or mental condition.” Iowa Code § 85.27(2) (2013). At the 

heart of this judicial review proceeding is an employer practice of conducting

surveillance of employees claiming to have sustained work-related injuries. The 

workers’ compensation commissioner filed a declaratory order interpreting 

section 85.27(2) to require the release of these surveillance materials, subject to 

assertions of a work-product privilege.1 We must determine (A) whether the 

commissioner abused his discretion in deciding to file a declaratory order and 

(B) whether the commissioner erred in his interpretation of the statutory 

language. 

I. Background Proceedings

The Workers’ Compensation Core Group of Iowa is a collection of 

attorneys 

charged with promoting the administration of justice for the public 

good, upholding the honor and dignity of the profession of law, 

advancing the cause of injured workers who must seek redress 

therefore under Iowa’s workers’ compensation laws; and upholding 

and improving the adversary system and right to a fair trial. 

The Core Group petitioned the workers’ compensation commissioner for a 

declaratory order interpreting Iowa Code section 85.27(2) to encompass

surveillance materials.

 

1The work-product doctrine set forth in Iowa Rule of Civil Procedure 1.503(3) creates a 

qualified privilege for trial preparation materials and has been referred to as the “workproduct privilege.” See Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 

38, 42-43 (Iowa 2004); see also Exotica Botanicals, Inc. v. Terra Int’l., Inc., 612 N.W.2d 

801, 802 (Iowa 2000).
3

The Iowa Insurance Institute, Iowa Defense Counsel Association, Iowa 

Self Insurers Association, Property Casualty Insurers Association of America,

and the National Association of Mutual Insurance Companies moved to 

intervene, claiming they “collectively represent the majority of workers’

compensation Respondents in Iowa, and many of their legal advocates,” and 

they “have a significant interest in protecting their rights to obtain a fair 

adjudication in workers’ compensation proceedings, including the ability to 

adequately protect trial preparation materials and impeachment evidence.” Their 

motions were granted. Following argument by counsel, the commissioner issued 

a declaratory order interpreting section 85.27. On judicial review, the district 

court affirmed the agency decision. This appeal followed. 

II. Analysis

A. Commissioner’s Decision to Issue Declaratory Order

The Iowa Administrative Procedure Act states “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). Section 17A.9(1)(b) sets forth certain parameters for 

issuance or non-issuance of declaratory orders: 

(1) An agency shall issue a declaratory order in response to a 

petition for that order unless the agency determines that issuance 

of the order under the circumstances would be contrary to a rule 

adopted in accordance with subsection 2.

(2) However, an 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. 
4

In accordance with this provision and section 17A.9(2), which authorizes 

rulemaking, the Workers’ Compensation Commission adopted rules governing

declaratory orders. See Iowa Admin Code r. 876-5.1-.13. 

The Respondents focus on a portion of a rule prohibiting the issuance of 

declaratory orders in certain circumstances. The rule states in pertinent part:

The workers’ compensation commissioner shall not issue a 

declaratory order where prohibited by Iowa Code section 17A.9(1), 

and may refuse to issue a declaratory order on some or all 

questions raised for the following reasons:

. . . . 

2. The petition does not contain facts sufficient to 

demonstrate that the petitioner will be aggrieved or adversely 

affected by the failure of the workers’ compensation commissioner 

to issue an order.

. . . . 

5. The questions presented by the petition would more 

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

body with jurisdiction over the matter.

. . . . 

9. The petition requests a declaratory order that would 

necessarily determine the legal rights, duties, or responsibilities of 

other persons who have not joined in the petition, intervened 

separately, or filed a similar petition and whose position on the 

questions presented may fairly be presumed to be adverse to that 

of petitioner.

Iowa Admin. Code r. 876-5.9(1). The Respondents assert the commissioner 

should have declined to issue a declaratory order under one or more of these 

provisions.

Our review of the agency’s decision to bypass these provisions is for an 

abuse of discretion. See Iowa Code § 17A.19(10)(n) (reviewing to determine 

whether agency action is unreasonable, arbitrary, capricious, or abuse of 

discretion); Arthur Bonfield, The Iowa Administrative Procedure Act: Background, 

Construction, Applicability, Public Access to Agency Law, the Rulemaking 
5

Process, 60 Iowa L. Rev. 731, 819 (1975) (discussing review of agency refusal to 

rule on the merits of a petition and citing standard set forth in predecessor to 

subsection n); see also City of Dubuque v. Iowa Util. Bd., No. 12-0789, 2013 WL 

85807, at *3-4 (Iowa Ct. App. Jan. 9, 2013).

1. Iowa Administrative Code rule 876-5.9(1)(2). With respect to the 

first provision—whether the petition “contain[s] facts sufficient to demonstrate 

that the petitioner will be aggrieved or adversely affected by the failure of the 

workers’ compensation commissioner to issue an order”—the Respondents

assert “the Core Group did not, and could not, demonstrate that it had a specific 

legal interest or that it would suffer a specific injury if the Commissioner declined 

to rule on its Petition.” See Iowa Admin. Code r. 876-5.9(1)(2). The 

Respondents’ argument has superficial appeal under our traditional standing 

rules. But a petition for an administrative declaratory order is not the same

animal as a civil petition. 

As noted, section 17A.9(1)(a) authorizes “[a]ny person” to file a petition for 

declaratory order. The statute defines “person” broadly as “any individual, 

partnership, corporation, association, governmental subdivision, or public or 

private organization of any character other than an agency.” Iowa Code 

§ 17A.2(9). Allowing a large universe of potential filers serves the purpose of 

declaratory orders. As the principal drafter of the Iowa Administrative Procedure 

Act explained, these orders are designed to permit persons to seek formal 

opinions on the effect of future transactions and arrange their affairs accordingly. 

See Bonfield, 60 Iowa L. Rev. at 807. Because they are a means to “obtain 

binding advice where it is necessary or helpful for [persons] to conduct their 
6

affairs in accordance with law,” agency rules may not define “the classes of 

persons who may seek such rulings too narrowly.” Id. at 812. Professor Bonfield 

acknowledged agencies might want to “require some sort of standing to obtain a 

declaratory ruling,” but insisted an “overly technical” standing requirement 

posing a “substantial hurdle” and “frustrat[ing] the purpose of the provision” would 

be “invalid as ultra vires agency authority.” Id. at 812-13.

A stringent standing requirement also is inconsistent with the precept that 

declaratory orders may be based on hypothetical facts. Id. at 812; see also

Sierra Club Iowa Chapter v. Iowa Dep’t of Transp., 832 N.W.2d 636, 647-48

(Iowa 2013) (essentially presuming environmental organization could seek a 

declaratory order before an agency); Tindal v. Norman, 427 N.W.2d 871, 873 

(Iowa 1988) (stating declaratory order proceeding “contemplates rulings on 

purely hypothetical sets of facts”). Because a real controversy is not essential, 

traditional standing requirements have no place in administrative declaratory 

order proceedings. 

We turn to the allegations in this proceeding. The Core Group sought to 

address an accepted and routine practice in workers’ compensation litigation: the 

surveillance of employee-claimants. As the commissioner explained, 

Core Group has an interest in workers’ compensation cases as it 

applies to injured workers and the members themselves are 

employees who work in the state of Iowa. The members of Core 

Group frequently represent injured workers in contested cases 

when surveillance is used by employers and insurance carriers. 

Attorneys routinely use discovery in contested cases before the 

division. Discovery disputes are quite common. Attorneys 

representing claimants and Respondents frequently file motions 

concerning discovery. The timing of disclosure of exhibits and 

evidence is a frequent issue in arbitration hearings. 
7

While Core Group members did not assert they were individually aggrieved, 

nothing in section 17A.9 requires personal injury or harm as a predicate to filing a 

petition for declaratory order. The Core Group’s assertions were consistent with 

its mission and were sufficient to conclude the agency did not abuse its discretion 

in declining to invoke the “aggrieved or adversely affected” ground of rule 876-

5.9(1)(2).

2. Iowa Administrative Code rule 876-5.9(1)(5). The Respondents

next contend the commissioner abused its discretion in ruling on the petition 

because the “questions presented by the petition would more properly be 

resolved in a different type of proceeding or by another body with jurisdiction over 

the matter.” Iowa Admin. Code r. 876-5.9(1)(5). “The general rule with regard to 

decisions of this type is that “the choice . . . is one that lies primarily in the 

informed discretion of the administrative agency.” Teleconnect Co. v. Iowa State 

Commerce Comm’n, 366 N.W.2d 515, 519 (Iowa 1985) (citing Bonfield, 60 Iowa 

L. Rev. at 925) (discussing agency’s choice between rulemaking and contested 

cases). 

A request for an interpretation of section 85.27(2) is precisely the type of 

issue lending itself to resolution by declaratory order. In Professor Bonfield’s 

words, the agency-issued declaratory ruling is a means of obtaining “[a] definitive 

response to a simple question about an ambiguity in the law.” Bonfield, 60 Iowa 

L. Rev. at 805. This is all the Core Group seeks. 

We recognize the issue the Core Group raised by way of a petition for 

declaratory order was previously raised in individual contested cases. However, 

nothing precluded the Core Group’s efforts to obtain a broader resolution via a 
8

declaratory order. See id. at 820 (“[T]he framers . . . intended to make it difficult 

rather than easy for agencies to decline to issue such a ruling.”).

Nor was the commissioner required to interpret section 85.27 by rule 

rather than declaratory order. While the Respondents emphasize the “built-in 

procedural protections” attending rulemaking proceedings, which “ensure broad 

participation by all interested parties,” the commissioner afforded similar 

protections in this declaratory order proceeding by identifying groups having a 

stake in the order and inviting them to intervene.

We conclude the commissioner did not abuse his discretion by refusing to 

find a different vehicle to address the issue.

3. Iowa Administrative Code rule 876-5.9(1)(9). The Respondents

finally contend the commissioner should have declined to issue a declaratory 

order because such an order “prejudices Respondents in pending or future 

workers’ compensation litigation who were not parties to the [action], but who 

have conducted surveillance in reliance on the expectation it would be protected 

from discovery under the prior interpretation of applicable law and procedure.” 

This argument implicates Iowa Code section 17A.9(1)(b)(2) as well as Iowa 

Administrative Code rule 876-5.9(1)(9). Professor Bonfield generally addressed 

this argument as follows:

One might argue that since such rulings are typically issued only 

with reference to the petitioning parties, they are not “rules” . . . 

because they are not of general applicability. . . . The ruling does 

not purport to be of general application. Thus, there is no 

irreparable harm done by failing to assure public participation in the 

making of such rulings because in fact they are only of particular 

applicability; they are in the nature of individual adjudications. 
9

Bonfield, 60 Iowa L. Rev. at 836 (emphasis added). By the Respondents’ own

admission, their groups include attorneys representing the majority of workers’

compensation defendants in Iowa. The declaratory order does not purport to 

bind the few attorneys outside these groups. 

We conclude the commissioner did not abuse his discretion in deciding to 

rule on the petition for declaratory order.

B. Commissioner’s Interpretation of Section 85.27(2)

Iowa Code section 85.27(2) states in its entirety: 

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.

The Respondents take issue with the commissioner’s interpretation of section 

85.27(2) to include surveillance materials. “[W]e will substitute our own 

interpretation of the provision if we find the commissioner’s interpretation was 

erroneous.” See Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 261 (Iowa 2012). 

In other words, our review is for errors of law. See Iowa Code § 17A.19(10)(c). 

As noted, the statute relates to information “concerning the employee’s 

physical or mental condition.” Iowa Code § 85.27(2). The commissioner 

preliminarily concluded “[s]urveillance materials in workers’ compensation claims 
10

concern a claimant’s physical or mental condition.” The commissioner reasoned 

that they were not “used for any other purposes in contested claims before the 

division.” The Respondents do not seriously dispute this preliminary conclusion. 

The statute next states the litigants agree to “the release of all information” 

to which they have “access” concerning the employee’s physical or mental 

condition. Id. The Respondents contend this language only applies “to 

information . . . held by third parties (i.e. medical records, bills, and treating 

and/or expert physician reports).” The commissioner concluded otherwise, 

stating: 

While Iowa Code section 85.27(2) does apply to medical evidence 

and information held by third parties, it is not so limited. The law 

requires release of all information concerning a claimant’s physical 

or mental condition. The section of the law references all 

information an employee, employer, or insurance carrier has 

access to concerning a claimant’s physical or mental condition. 

This is not limited to evidence held by third parties. 

The commissioner’s conclusion flows from the unambiguous terms, “all”, 

“information,” and “access.” See Wesley Ret. Servs., Inc. v. Hansen Lind Meyer, 

Inc., 594 N.W.2d 22, 25 (Iowa 1999) (“When the text of the statute is plain and its 

meaning clear, the court should not search for a meaning beyond the express 

terms of the statute.”). The term “all” is an “all” encompassing word which brooks 

no limits. Similarly, “information” is broad enough to include video surveillance 

footage. As for the term “access,” there can be no question the Respondents

had the ability to obtain the surveillance information they requested and 

authorized. No interpretation of section 85.27(2) is required to conclude 
11

surveillance materials fall within the phrase “all information” to which the 

employer has “access.”2

This brings us to the key question—whether surveillance materials are 

subject to “release.” “Release” is defined as “to set free” or “to give up in favor of 

another.” Webster’s New Collegiate Dictionary 968 (1981). The Respondents,

citing Iowa Code section 622.10 on “release” of medical records, argue this term 

applies exclusively to third-party disclosure of medical records. In their view, the 

legislature would have used the term “production” rather than “release”—as it did 

in discovery rules 1.509(3) and 1.512—had it intended the provision to require 

the disclosure of surveillance footage. Iowa R. Civ. P. 1.509(3), 1.512.

This constrained reading of “release” is not supported by the balance of 

the sentence and, in particular, the reference to “all information.” This reading 

also is not supported by the next sentence in section 85.27(2), which states “[t]he 

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

upon request.” Clearly, “release” means disclosure to the other parties in the 

workers’ compensation proceeding. The term is part of a broad discovery rule 

designed to “foster and encourage a ready access to the information necessary 

to speedily process workers’ compensation claims.” Morrison v. Century Eng’g, 

434 N.W.2d 874, 877 (Iowa 1989). The Respondents’ narrow reading fails to 

honor the legislature’s intent to “provide[] for the free flow of information 

regarding a worker’s physical or mental condition relative to a compensation 

claim.” Id. at 876.

 

2 Because the statutory language is plain and unambiguous, we will not use the 

legislative history of the provision to defeat the plain words of the statute. Stroup v. 

Reno, 530 N.W.2d 441, 443-44 (Iowa 1995).
12

We recognize the commissioner previously required disclosure of 

surveillance materials only after the claimant was deposed. In the Respondents’

view, the commissioner acted arbitrarily in declining to hew to this practice. They 

cite Iowa Code section 17A.19(10)(h), which authorizes judicial review of agency 

action “other than a rule that is inconsistent with the agency’s prior practice or 

precedents, unless the agency has justified that inconsistency by stating credible 

reasons sufficient to indicate a fair and rational basis for the inconsistency.” 

This provision has been construed narrowly. In Finch v. Schneider 

Specialized Carriers, Inc., 700 N.W.2d 328, 332-33 (Iowa 2005), the Iowa 

Supreme Court stated,

[t]he controlling legal standards are those set out in the workers’

compensation statutes and in this court’s opinions, not in prior 

agency decisions. . . . We do not believe that Iowa Code section 

17A.19(10)(h) establishes an independent requirement that the 

commissioner identify other agency rulings and explain possible 

inconsistencies between those rulings. 

Notwithstanding the absence of an obligation to distinguish prior agency 

precedent, the commissioner did so. The commissioner explained that prior 

contested case decisions cited by the Respondents did not address the language 

of section 85.27(2). The commissioner also addressed the timing of disclosure 

discussed in prior agency decisions and the claimed deprivation of the element of 

surprise if disclosure of the surveillance materials were required before a 

deposition of the claimant. The commissioner stated:

Modern rules of discovery seek to avoid surprise as a tactic in 

litigation. The purpose of discovery rules in litigation is to remove

the element of surprise by letting each side know the available 

evidence. Such policy drives parties to resolution of their matters 

sooner rather than later based upon information readily available to 

all parties—as opposed to non-disclosure and later seeking 
13

surprise. A claimant can be questioned about her or his activities 

and how it compares to the activities shown in surveillance 

materials. 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 reasoning comports with the Iowa Supreme Court’s 

longstanding disapproval of litigation by surprise. See Blink v. McNabb, 287 

N.W.2d 596, 600 (Iowa 1980) (stating “a major goal of the discovery rules” is 

prevention of “surprise”); accord Hagenow v. Schmidt, 842 N.W.2d 661, 671 

(Iowa 2014); Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 386 (Iowa 

2012). “Gotcha” litigation is no longer sanctioned. Because the commissioner 

provided “credible reasons sufficient to indicate a fair and rational basis for the 

inconsistency with prior practice and precedent,” we conclude section 

17A.19(10)(h) was not violated. Iowa Code § 17A.19(10)(h).

We are left with the Respondents’ assertion that the commissioner’s 

interpretation “destroys attorney work-product privilege.” The Respondents cite 

Iowa Rule of Civil Procedure 1.503(3), which “creates a qualified privilege for trial 

preparation materials.” See Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 

690 N.W.2d 38, 43 (Iowa 2004). In their view, “[t]he mere fact that the 

surveillance has occurred, if disclosed prior to the injured worker’s deposition, 

informs the injured worker that the employer and insurer is aware of potential 

non-compliance with work restrictions or activities inconsistent with alleged 

injuries.” But an employee’s awareness is immaterial to the work-product 

privilege. The privilege turns on whether the tapes are prepared in anticipation of 

litigation (no one disputes they are) and, as the Respondents acknowledge,

whether they disclose the “mental impressions, conclusions, opinions, or legal 
14

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

litigation.” Surveillance, by itself, implicates none of these concerns; it discloses 

the claimant’s condition—nothing more, nothing less. See Wegner v. Cliff 

Viessman, Inc., 153 F.R.D. 154, 159 (N.D. Iowa 1994) (finding surveillance 

information was otherwise discoverable as probative of the physical condition of 

the plaintiff, noting work-product protection was designed to prevent 

“unwarranted inquiries into the files and mental impressions of an attorney,” and 

then stating, “Surveillance materials are certainly prepared in anticipation of 

litigation. . . . It is simply too great a stretch to say, however, that opinion work 

product is also thereby revealed.”).3The Respondents may use the surveillance 

footage to denigrate claims of disability but the footage alone does not reveal the 

mental impressions of an attorney. 

More to the point, even if surveillance footage is characterized as 

“ordinary work product”—a term not used in Iowa precedent, and even if the 

footage includes opinion work product, section 85.27(2) states “[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) 

(emphasis added). Arguably, then, the footage is discoverable notwithstanding 

its character as ordinary or opinion work product and notwithstanding rule 

1.503(3). See Iowa Admin Code r. 876-4.35 (“The rules of civil procedure shall 

 

3 The court rejected the notion that surveillance footage was valuable only as 

impeachment evidence. Notwithstanding its creation in anticipation of litigation, the court 

stated, plaintiffs have a right “to discover the evidence that exists within the defendants’ 

possession that will be available for use at trial.” Wegner, 153 F.R.D. at 159. The court 

concluded, “[t]he purposes of just and speedy determination of matters on the merits will 

best be served by requiring disclosure of surveillance in response to discovery 

requests.” Id. at 159-60 
15

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. In those circumstances, these rules or 

the appropriate Iowa Code section shall govern.”).

The commissioner did not go this far. The commissioner elected to carve 

out an exception to disclosure of surveillance materials for “the mental 

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

representative of a party concerning the litigation.” The commissioner stated, “A

party may request that that information not be disclosed by following the 

procedures of Iowa Code section 85.27(2) or Iowa R. Civ. P. 1.503(5)(a).” In 

short, the commissioner reconciled rather than ignored the rule of civil procedure

on opinion work product.

We recognize the commissioner placed the onus of asserting the workproduct privilege on the party asserting it, which the dissent maintains is at odds 

with the language of section 85.27(2). We do not see any conflict. Section 

85.27(2) simply states that if a party requesting information is denied the 

information the requesting party may seek relief from the commissioner. 

Because the requesting party cannot assert a privilege on behalf of the party with 

the undisclosed information, it would be incumbent upon the defense to raise any 

objections based on the work-product privilege after the requesting party has 

sought relief. 
16

We conclude the commissioner’s interpretation of section 85.27(2) to 

include surveillance materials, subject to an assertion of an opinion work product 

privilege was not erroneous. We affirm the declaratory order.

AFFIRMED.

Doyle, J., concurs; McDonald, J., concurs specially.
17

MCDONALD, J. (concurring in part, dissenting in part)

I concur the commissioner had the authority to proceed by way of 

declaratory order, but I respectfully dissent on the merits. The petition for 

declaratory order requested the workers’ compensation commissioner answer 

ten interrelated questions regarding the discoverability of surveillance materials 

and reports prepared in defense of a workers’ compensation claim and regarding 

the timing of production if discovery is allowed. In resolving this appeal, the 

majority lumps the questions and answers together, which seems reasonable 

and expeditious. Doing so, however, masks error that becomes apparent when 

the questions and answers are delumped. Specifically, the commissioner erred 

in holding section 85.27(2) applies to surveillance materials. The commissioner 

compounded this error by conflating two separate legal doctrines into something 

the commissioner denominated the “attorney-client work product privileged [sic].” 

Assuming the “attorney-client work product privilege[]” refers to the work product 

doctrine, the commissioner erred in holding that section 85.27(2) waives work 

product protection and that the party asserting work product protection must seek 

relief from the agency rather than vice versa. Finally, the commissioner erred in 

holding surveillance materials must be produced prior to deposition of the 

claimant. 

I.

The first question presented to the commissioner related to the scope of 

section 85.27(2): “a) Is Iowa code § 85.27(2) applicable to surveillance in 

workers’ compensation claims? Answer: Yes.” The majority concludes the 

commissioner’s interpretation is correct. I respectfully disagree. 
18

We review the commissioner’s interpretation of this provision for errors at 

law. See Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196 (Iowa 2010). 

“Our goal, when interpreting a statute, is to give effect to the intent of the 

legislature.” Id. at 197. In determining legislative intent, we examine the words 

of the statute “as well as the context of the language at issue.” Id. In addition, 

we consider “the statute’s subject matter, the object to be accomplished, the 

purpose to be served, underlying policies, remedies provided, and the 

consequences of the various interpretations.” State v. Lindell, 828 N.W.2d 1, 5 

(Iowa 2013). 

The statute, when read in context, limits “all information” and “the 

information” to medical records and similar or related documents that typically, 

although not necessarily, would be held by third parties. The statute repeatedly 

refers to the parties’ “access” to information and “the release” of information, both 

of which imply “the information” refers to medical records and similar or related 

documents typically held by third-parties and not records created by the parties. 

Section 85.27(2) also waives criminal and civil liability for “the release” of “the 

information.” Again, this implies “the information” refers to medical records and 

similar or related documents typically held by third-parties and not records 

created by the parties. 

Legislative history supports this interpretation. In 1976, the legislature 

added what is now subsection 2 as an unnumbered paragraph to section 85.27. 

See 1976 Iowa Acts ch. 1084, § 3. Unlike many acts in Iowa, this act was 

accompanied by legislative explanation. The legislature explained the act related 

to “the release of information concerning a person’s past physical or mental 
19

condition.” The legislature’s intent to facilitate the release of information related 

to the claimant’s past physical or mental condition clearly excludes post-claim 

surveillance materials from the meaning of “all information” and “the information.” 

The consequence of the majority’s interpretation militates against its 

interpretation and in favor of the more limited meaning the legislature actually 

intended. See Lindell, 828 N.W.2d at 5. Section 85.27(2) provides “[a]ny 

employee, employer, or insurance carrier making or defending a claim for 

benefits . . . waives any privilege for the release of the information.” Under the 

legislature’s intended meaning of the statute, as set forth in the prior paragraph, 

the statutory privilege waiver relates only to privileges associated with medical 

care because “the information” refers only to medical records and similar or 

related documents. Under the commissioner and the majority’s interpretation, 

however, the statutory privilege waiver applies to all privileges because the 

commissioner and the majority interpret “the information” to include anything 

related to the claimant’s physical or mental condition. Under the commissioner 

and the majority’s approach, all employees, employers, and insurance carriers, 

merely by participating in a workers’ compensation proceeding, waive the 

attorney-client privilege, the spousal privilege, and any other privilege heretofore 

or yet-to-be recognized, to the extent the privileged communication “concern[s] 

the employee’s physical or mental condition.” This consequence alone seems 

enough reason to limit the meaning of “all information” and “the information” to 

medical records and similar or related documents.

For the foregoing reasons, I conclude the commissioner erred in holding 

section 85.27(2) applies to surveillance materials and reports. 
20

II.

The commissioner’s second and third holdings related to the waiver of 

privileges:

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

waived with respect to surveillance videos and 

photographs showing the injured worker?

Answer: Yes, as to attorney-client work product privileged. 

No as to mental impressions, conclusions, opinions, or legal 

theories of an attorney or other representative of a party concerning 

the litigation.

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

waived with respect to surveillance reports concerning 

the injured worker?

Answer: Yes, as to attorney-client work product privileged. 

No as to mental impressions, conclusions, opinions, or legal 

theories of an attorney or other representative of a party concerning 

the litigation.

The majority affirms the commissioner’s interpretation of section 85.27(2), 

holding that section 85.27(2) waives work product protection. I conclude the 

commissioner’s holding is muddled, predicated on a misunderstanding of the 

work product doctrine, and legally erroneous. 

Before directly addressing the commissioner and the majority’s holdings, it 

is necessary to provide background regarding the work product doctrine. The 

Iowa work product doctrine is codified in Iowa Rule of Civil Procedure 1.503(3). 

See Keefe v. Bernard, 774 N.W.2d 663, 673-75 (Iowa 2009). The doctrine 

protects from discovery and production materials prepared by an attorney, or the 

attorney’s agent, in anticipation of litigation. “[W]hether a document was 

prepared in anticipation of litigation is determined by whether, in light of the 

nature of the document and the factual situation in the particular case, the 
21

document can fairly be said to have been prepared or obtained because of the 

prospect of litigation.” Wells Dairy, 690 N.W.2d at 48. Although the doctrine has 

been applied in a variety of legal contexts, “[t]he essential element of each case 

. . . is that the attorney was preparing for or anticipating some sort of adversarial 

proceeding involving his or her client.” Simon v. G.D. Searle & Co., 816 F.2d 

397, 401 (8th Cir. 1987). There are two kinds of work product subject to 

protection: ordinary work product and opinion work product. Ordinary work 

product includes raw factual information and is discoverable “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.” Iowa R. Civ. P. 1.503(3). Opinion work 

product consists of “the mental impressions, conclusions, opinions, or legal 

theories of an attorney.” Iowa R. Civ. P. 1.503(3). Opinion work product enjoys 

almost absolute immunity, and is discoverable in only very rare and extraordinary 

circumstances. 

The commissioner and majority’s analysis of the work product doctrine 

goes astray, in part, by failing to recognize the distinction between ordinary work 

product and opinion work product. For example, the majority concludes 

surveillance footage is not work product subject to protection because 

surveillance footage does not reveal “trial strategy.” That inquiry is relevant, 

however, only to the distinction between ordinary work product and opinion work 

product. As a general rule, surveillance video and photographs prepared in 

anticipation of litigation are deemed ordinary work product subject to qualified 
22

protection.4 See, e.g., Marchello v. Chase Manhattan Auto Fin. Corp., 219 

F.R.D. 217, 219 (D. Conn. 2004) (“However, because they are created after a 

party’s injury and in anticipation of litigation, surveillance tapes generally are 

considered work product.”); Fletcher v. Union Pac. R.R. Co., 194 F.R.D. 666, 670 

(S.D. Cal. 2000) (“Numerous courts have held that surveillance films constitute 

work product and are subject to qualified immunity.”); Martino v. Baker, 179 

F.R.D. 588, 590 (D. Colo. 1998) (“The surveillance tapes are work product as 

they are tangible and prepared in anticipation of litigation. Since the tapes do not 

contain the mental impressions, legal theories or conclusions of counsel, 

defendant may only claim a qualified privilege, which can be overcome by 

plaintiff's showing of substantial need.”); Smith v. Diamond Offshore Drilling, Inc., 

168 F.R.D. 582, 586 (S.D. Tex. 1996) (“Obviously, surveillance evidence is 

gathered in anticipation of litigation and thus is generally protected as work 

product.”); Ford v. CSX Transp., Inc., 162 F.R.D. 108, 110 (E.D.N.C. 1995) 

(“Surveillance materials are clearly within the definition of work product since 

they are tangible and were prepared in anticipation of litigation by or for a party to 

the litigation.”); see generally Squealer Feeds v. Pickering, 530 N.W.2d 678, 688 

(Iowa 1995) (“Documents prepared after the insured’s claim has been denied are 

clearly not a contemporaneous record of events leading to the denial of the 

insured’s claim. After the claim has been denied, the insurer evaluates its action 

and prepares to defend its decision. Documents prepared during that time are 

precisely the type of material sought to be protected from discovery by one’s 

 

4

“Rule 1.503(3) . . . closely tracks Federal Rule of Civil Procedure 26(b)(3), and the 

history and cases under the federal rule provide guidance in interpreting the Iowa 

counterpart.” Keefe, 774 N.W.2d at 673-75.
23

adversary. We think an insurer is entitled to the same protection of this material 

under rule [1.503(3)] as any other party.”), abrogated on other grounds by Wells 

Dairy, 690 N.W.2d at 38. With these general principles in mind, I directly address 

the agency decision and majority opinion. 

The commissioner’s ruling is legally erroneous because it conflates two 

separate legal doctrines—the attorney-client privilege and the work product 

doctrine—into something the commissioner called “the attorney client work 

product privilege[].” See In re Foster, 188 F.3d 1259, 1272 (10th Cir. 1999) 

(“[The plaintiff] also invoked the work-product doctrine, which is broader than and 

distinct from the attorney-client privilege.”); Robbins v. Iowa-Illinois Gas & Elec. 

Co., 160 N.W.2d 847, 855-56 (Iowa 1968) (stating the work product doctrine is 

clearly distinguishable from the attorney-client privilege); see also Iowa Practice, 

Evidence § 5.502:21 (“The attorney-client privilege is distinct from the 

independent doctrine restricting discovery of the work product of opposing 

counsel.”). There is no “attorney-client work product privilege[].” We should not 

affirm a declaratory order holding section 85.27(2) waives a non-existent 

privilege, particularly when the entire declaratory order appears predicated on 

this confusion.

The majority does not directly address this issue. Instead, the majority 

elides the problem by assuming the commissioner meant to refer to the work 

product doctrine. The assumption seems unwarranted; this does not appear to 

be scrivener’s error; instead, it appears the agency simply confused two separate 

issues. At page seven of the declaratory order, the commissioner stated “the 

parties have also made as an issue whether section 85.27(2) would waive 
24

attorney-client privilege.” The parties did not raise the issue of attorney-client 

privilege, but they did raise the issue of work product protection. In the very next 

paragraph of the declaratory order, the commissioner stated “[t]he Supreme 

Court in Squealer Feeds v. Pickering, held that attorney-client privilege is 

applicable in workers’ compensation proceedings.” The commissioner then 

quoted language in Squealer Feeds regarding opinion work product and not the 

attorney-client privilege in conducting its analysis. Further, in response to the 

questions presented, the declaratory order concludes the “attorney-client work 

product privilege[]” is waived but in the next sentence states it is not waived “as 

to mental impressions, conclusions, opinions, or legal theories of an attorney or 

other representative of a party concerning the litigation.” Based on the reasoning 

and language in the declaratory order, it seems the commissioner conjoined the 

attorney-client privilege and work product doctrine. We are only left to guess 

what the agency’s order means, which militates in favor of reversal.

Setting aside this issue, the agency must be reversed for an additional 

reason: the commissioner erred in holding section 85.27(2) waives work product 

protection. The statute provides the parties’ “waive[ ] any privilege for the 

release of the information.” While I recognize some of our cases informally refer 

to the work product doctrine as a “privilege,” it is not a “privilege.” Rather, the 

cases that squarely address the rationale underlying the work product doctrine 

recognize that it is a qualified immunity from discovery governed by the rules of 

civil procedure:

However, the 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 
25

preparations. The attorney-client privilege is, however, generally 

viewed as an evidentiary privilege belonging to the client and 

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 under rule 141(a). Discovery 

of trial preparations which fall outside evidentiary privileges can be 

avoided only on the basis of protection furnished by discovery rules 

themselves. 

Robbins, 160 N.W.2d at 855-56 (citation omitted); see Keefe, 774 N.W.2d at 673-

75 (“Iowa Rule of Civil Procedure 1.503(3) codifies a qualified immunity from 

discovery of materials prepared in anticipation of litigation.”); Shook v. City of 

Davenport, 497 N.W.2d 883, 886-87 (Iowa 1993) (explaining the doctrine is 

referred to as a privilege but is a “qualified immunity” from discovery), abrogated 

on other grounds by Wells Dairy, 690 N.W.2d at 38. 

Federal authority recognizes the same distinction as our case law. See, 

e.g., Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 514 n.2 (5th Cir.1993) 

(“This doctrine creates a form of qualified immunity from discovery for such 

materials.”); S.E.C. v. Goldstone, CIV. 12-0257 JB/LFG, ___ F.R.D. ___ , 2014 

WL 4347183, at *57 (D.N.M. Aug. 23, 2014) (“Because the work-product doctrine 

is a qualified immunity set forth in the Federal Rules of Civil Procedure, and not a 

privilege like the attorney-client privilege, the exceptions to the attorney-client 

privilege that developed in the common law do not necessarily overcome the 

protections which the work-product doctrine provides.”); Gutshall v. New Prime, 

Inc., 196 F.R.D. 43, 45 n.2 (W.D. Va. 2000) (“The work product doctrine is not a 

‘privilege,’ but a sort of ‘qualified immunity’ from discovery, originally established 

in Hickman v. Taylor, and ultimately codified in Rule 26(b)(3).”). Indeed, in a 

federal case where jurisdiction is based on diversity of citizenship, the court will 
26

apply state law concerning attorney-client privilege and federal law regarding

work product doctrine because the work product doctrine is a rule of procedure 

and not a substantive privilege. See Fed. R. Evid. 501 Advisory Comm. Notes 

(requiring in civil actions where the rule of decision is supplied by state law, “the 

privilege of a witness . . . shall be determined in accordance with State law”); 

Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000); St. Paul Reins. 

Co., Ltd. v. Commercial Fin. Corp., 197 F.R.D. 620, 627 (N.D. Iowa 2000).

Leading secondary authority also recognizes that the work product 

doctrine is not a “privilege.” See 6 J. Moore & P. Higginbottom, Moore’s Federal 

Practice § 26.70[1], at 26–435 (3d ed. 2010) (“The work product doctrine is not 

actually a privilege, but rather a qualified immunity from discovery.”); 23 Am. Jur. 

2d Depositions and Discovery § 44 (“Although sometimes classified as a 

privilege, the work product rule is not a privilege but is a qualified immunity from 

discovery, that may be overcome by a proper showing.”). 

The distinction is predicated on the different values underlying privileges, 

generally, and the work product doctrine. True privileges are designed to 

promote and advance certain relationships, such as lawyer-client, priest-penitent, 

and doctor-patient. See Edward J. Imwinklereid, The Validity of the 2010 Federal 

Rule of Civil Procedure 26 Amendment Governing the Waiver of Work Product 

Protection: Is the Work Product Doctrine an Evidentiary Privilege, 37 U. Dayton 

L. Rev. 279, 290 (2012). The nature of these protected relationships requires 

confidentiality to incent laypersons to avail themselves of these relationships 

without fear of exposure. See id. In addition, true privileges are also recognized 

to promote personal autonomy—that is, to allow laypersons to better exercise 
27

personal autonomy by making more independent and better informed life 

decisions. See id. In contrast, the holders of the work product immunity are 

granted the immunity as functionaries in an adversarial legal system, primarily to 

render the system workable after the adoption of the rules of civil procedure, 

which increased the scope of pretrial discovery:

The pre-trial deposition-discovery mechanism established by Rules 

26 to 37 is one of the most significant innovations of the Federal 

Rules of Civil Procedure. Under the prior federal practice, the pretrial functions of notice-giving issue-formulation and fact-revelation 

were performed primarily and inadequately by the pleadings. 

Inquiry into the issues and the facts before trial was narrowly 

confined and was often cumbersome in method. The new rules, 

however, restrict the pleadings to the task of general notice-giving 

and invest the deposition-discovery process with a vital role in the 

preparation for trial. The various instruments of discovery now

serve (1) as a device, along with the pre-trial hearing under Rule 

16, to narrow and clarify the basic issues between the parties, and 

(2) as a device for ascertaining the facts, or information as to the 

existence or whereabouts of facts, relative to those issues. Thus 

civil trials in the federal courts no longer need be carried on in the 

dark. The way is now clear, consistent with recognized privileges, 

for the parties to obtain the fullest possible knowledge of the issues 

and facts before trial.

Hickman v. Taylor, 329 U.S. 495, 500-01 (1947); see id. at 510 (“Historically, a 

lawyer is an officer of the court and is bound to work for the advancement of 

justice while faithfully protecting the rightful interests of his clients.”); 

Imwinklereid, 37 U. Dayton L. Rev. at 290. The commissioner and the majority’s 

conclusion that the “privilege” waiver in section 85.27(2) waives the work product 

immunity is thus erroneous because the work product immunity is not a 

“privilege.” 

Even assuming the work product immunity is a “privilege,” the 

commissioner further erred because the statutory privilege waiver does not apply 
28

to the primary holder of the privilege. The statute provides “[a]ny employee, 

employer or insurance carrier . . . waives any privilege.” Iowa Code § 85.27(2) 

(emphasis added). The statute makes no mention of the parties’ respective 

attorney(s). It is widely held that “the work product privilege belongs to both the 

client and the attorney, either of whom may assert it.” In re Grand Jury 

Proceedings, 561 F.3d 408, 411 (5th Cir. 2009). As a result, “a waiver by the 

client of the work product privilege will not deprive the attorney of his own work 

product privilege, and vice versa.” In re Grand Jury Proceedings, 43 F.3d 966, 

972 (5th Cir. 1994); see also MapleWood Partners, L.P. v. Indian Harbor Ins. 

Co., 295 F.R.D. 550 (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 . . . .”). Thus, the commissioner erred 

in concluding that section 85.27(2) waives the work product immunity because 

the attorney also is entitled to assert the work product immunity, even contrary to 

the client in response to a discovery request.

For the foregoing reasons, I conclude the agency must be reversed with 

respect to these holdings.

III.

The commissioner’s declaratory order next addressed the discovery of 

surveillance materials:

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?

Answer: Yes. Pursuant to Iowa Code section 85.27(2) defendants 

may request the commission, or the commissioner’s designee, to 

review the request and issue an order accordingly.
29

The majority concludes the commissioner’s conclusions are without error. Again, 

I respectfully disagree.

The commissioner’s conclusion that work product, even ordinary work 

product, is subject to discovery upon request and without the showing required 

under the rules of civil procedure is directly contrary to controlling authority. In 

Squealer Feeds, 530 N.W.2d at 688, the supreme court concluded “that a 

claimant is not entitled to obtain the file of his adversary . . . merely upon 

request.” (emphasis added)). The Squealer Feeds court reasoned as follows:

Counsel should be allowed to amass data and commit his opinions 

and thought processes to writing free of the concern that, at some 

later date, an opposing party may be entitled to secure any relevant 

work product documents merely on request and use them against 

his client. 

Id. The court continued:

The fact remains that [the insurer’s] file compiled after the denial of 

[the] claim is no different and entitled to no less protection than the 

file of [the insured] and his attorney prepared during the same time 

frame. An insurer, no less than any other party, should be able to 

prepare its case free of concern that, at some later date, an 

opposing party may be entitled to secure any relevant work product 

documents merely on request.

Id. The commissioner and majority’s conclusion that work product—even 

ordinary work product—is subject to production upon request is directly contrary 

to this authority. 

The commissioner and majority’s conclusion that the party asserting the 

work product protection can obtain relief by requesting an order from the 

commission is also in error. First, this conclusion does not jibe with the 

commissioner and majority’s holding that section 85.27(2) waives work product 

protection. If the statute waives work product protection, as they conclude, then 
30

what relief is the party able to seek? Second, this conclusion is directly contrary 

to the plain language of the statute, which provides: “If release of information is 

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

compensation commissioner for relief.” The statute clearly provides that it is the 

party seeking the information that must come to the commissioner for relief after

the opposing party’s assertion of work product immunity. The commissioner’s 

declaratory order and the majority’s opinion is thus contrary to the plain language 

of the statute.

For the foregoing reasons, the commissioner erred in concluding that 

surveillance materials prepared in anticipation of litigation are discoverable upon 

request and that the party claiming work product protection must seek relief from 

the agency.

IV.

The declaratory order next addressed the timing of the production of 

surveillance materials. 

e) Pursuant to Iowa Code § 85.27, are Defendants 

permitted to withhold surveillance videos, photos, 

and/or reports until after deposing the injured worker?

Answer: No. Pursuant to Iowa Code section 85.27(2) defendants 

may request the commissioner, or commissioner's designee, to 

review the request and issue an order accordingly.

f) Pursuant to Iowa Code § 85.27, when are 

Defendants required to produce surveillance videos, 

photos and/or reports?

Answer: Iowa Code section 85.27(2) states, The information shall 

be made available to any party or the party’s representative upon 

request. If a request is made pursuant to Iowa Code section 85.27, 

rather than through formal discovery, the period found in rule 876 

IAC 4.17 shall apply. The report must be served upon the opposing 

party within 20 day of filing an answer or if not then in possession 

within 10 days of receipt, if requested by claimant or claimant’s 
31

representative. If the request is made as a discovery request 

pursuant to the Iowa Rules of Civil Procedure, the periods set forth 

within the discovery rules shall apply.

The commissioner’s holding with respect to these two questions is predicated on 

its erroneous legal conclusions that surveillance materials cannot be work 

product, whether ordinary or opinion, and that work product is waived in workers’ 

compensation proceedings. Because of the commissioner’s erroneous reliance 

on those two conclusions, it failed to consider these questions under the 

controlling rules of civil procedure. 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. In those 

circumstances, these rules or the appropriate Iowa Code section shall govern.”).

In analyzing the work product protection under the rules and relevant case 

law, I conclude that the employer or insurer in a workers’ compensation 

proceeding should not be required to produce surveillance materials constituting 

ordinary work product until after the deposition of the claimant. Federal courts 

that have addressed this issue under the parallel Federal Rules of Civil 

Procedure have struck this balance after considering the competing interests of 

the parties. For example:

Once it is conceded, as it must be, that not only those 

surveilled may be tempted to alter the truth, but that those 

conducting the surveillance may be subject to the same temptation, 

it becomes clear that surveillance information and material must be 

subject to discovery. Moreover, it cannot reasonably be argued 

that possibilities for impeachment presented by such evidence or, 

to the extent applicable, the work-product doctrine preclude 
32

discovery. Finally, account must be taken of the fact that, if the 

adversarial process is to function efficiently, discovery must be 

accomplished at a time when opportunity exists to test, through 

further discovery, the manner and means by which the surveillance 

was conducted. Accordingly, in cases pending in this division in 

which surveillance material and information are sought in discovery, 

the surveilling party shall, after the passage of sufficient time for 

deposing those surveilled, make available for inspection and 

copying all films and tapes taken in connection with the 

surveillance. If inquiry is made, that party shall also provide the 

name and address of any individuals conducting the surveillance, 

the date or dates on which films or videotapes were taken and an 

indication as to whether or not a written report exists with respect to 

such surveillance. 

Boyle v. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D. W.Va. 1992). Similarly:

Defendant’s argument against discovery of surveillance 

materials has the appeal that they would be used only if plaintiff lies 

or misleads in his testimony about the extent of his injuries, in 

which case he should bear the consequences of his perjury or 

misrepresentation. This assumes that only a plaintiff might attempt 

to mislead the court. However, the court’s neutrality precludes any 

such biased assumption. From the bench’s point of view, the 

defendant is just as likely to resort to chicanery as the plaintiff. Just 

as a plaintiff can lie or exaggerate, so can a defense surveillance 

film be distorted through photography or editing. Plaintiff 

hypothesizes that a film showing a plaintiff carrying a heavy load 

might be stopped so as not to show him grabbing his back in agony 

from the strain. The undersigned recalls a case in which a 

surveillance film showed an injured plaintiff to be engaged in 

activity (yard work) inconsistent with his claims of resulting 

disability. By learning of the film in advance of trial, however, he 

was able to produce records showing that following the activity he 

was forced to get medical treatment and was admonished by a 

physician not to do such work. Also . . . discovery of the materials 

would permit them to be studied before their use at trial to ensure 

that the photography was not misleading in any way.

The [order compelling production] balanced the needs of 

both parties by requir[ing] the production of the materials pursuant 

to discovery, but only after defendant had an opportunity to depose 

plaintiff, by video-deposition, if it so chose. . . .

. . . [A]llowing discovery of surveillance materials after the 

deposition of the plaintiff, but before trial, best meets the ends of 

justice and the spirit of the discovery rules to avoid surprise at trial. 

Ford v. CSX Transp., Inc., 162 F.R.D. 108, 111-12 (E.D.N.C. 1995). Likewise:
33

Accordingly, the Court believes that a reasonable 

compromise between the Plaintiff’s interests and those of the 

Defendant is to require the Defendant to disclose, before the taking 

of the Plaintiff's deposition, the existence of any surveillance 

evidence of the Plaintiff and the date on which the surveillance was 

obtained, and to indicate whether the surveillance is in the form of 

film, videotape, or still photographs. However, the Defendant is not 

required to reveal the substance of the surveillance, where the 

surveillance was obtained, or the reason it was obtained. The 

actual surveillance evidence must be produced within thirty days 

after the Plaintiff’s deposition has been taken.

Diamond Offshore Drilling, Inc., 168 F.R.D. at 587. 

Other courts have reached the same conclusion. See Martino, 179 F.R.D. 

at 590 (“To preserve the defendant’s right to use the tapes as impeachment 

evidence, however, plaintiff’s deposition is to be completed before the tapes are 

produced.”); Corrigan v. Methodist Hosp., 158 F.R.D. 54, 59 (E.D. Pa. 1994) 

(stating general rule that “surveillance materials are discoverable, within the 

context of the attorney work product doctrine” but that “before any of these 

disclosures . . . the defense must be given an opportunity to depose the plaintiff 

fully as to her injuries.”); Daniels v. Nat’l R.R. Passenger Corp., 110 F.R.D. 160, 

161 (D.N.Y. 1986) (stating the same general rule). 

The above-quoted and above-cited decisions balance three competing 

interests: the injured person’s need to obtain information; the opposing party’s 

right to prepare a defense to the claim; and the truth-seeking function of the 

administrative/judicial process. See Ex Parte Doster Constr. Co., Inc., 772 So. 

2d 447, 450-51 (Ala. 2000) (noting “the quest for the truth should be furthered 

through protecting the videotape before the employee is deposed”); Wolford v. 

JoEllen Smith Psychiatric Hosp., 693 So. 2d 1164, 1167 (La. 1997) (explaining 
34

“delaying the production of the videotape until after the plaintiff has been fully 

deposed aids in the search for the truth”).

In reaching my conclusion, I also take guidance from the agency’s practice 

and procedure prior to this case. Prior to this case, the agency recognized that 

surveillance materials are work product subject to protection. The agency 

balanced the competing interests of the claimant and the employer/insurer by 

requiring production of surveillance materials, but only after the claimant’s 

deposition. See Ramirez v. Riverview Care Ctr., File Nos. 1243830, 1253740, 

1253741, 1253742, 1253743, 2002 WL 32125248, at *2 (Iowa Workers’ Comp. 

Comm’n Aug. 2, 2002) (“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 surveillance.”); Hansen v. Graham Constr., File No. 1171846, 2000 WL 

33992554, at *8 (Iowa Workers’ Comp. Comm’n Dec. 28, 2000) (stating that it 

was not improper for the employer to withhold such documents until after 

deposition); Hoover v. Iowa Dep’t of Agric., File No. 529205, 1993 WL 13021598,

at *4 (Iowa Workers’ Comp. Comm’n April 30, 1991) (approving defendant’s 

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”). It was only the commissioner’s erroneous conclusions 

regarding the scope of discovery and waiver under section 85.27(2) that 
35

convinced the commissioner to break from the agency’s prior practice and 

procedure. 

V.

I need not address the remainder of the questions presented to the 

agency or the agency’s answers to the same, as they are all contingent on or 

interrelated with the errors discussed above. I would reverse the judgment of the 

district court and remand this matter for further proceedings.