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Circumstances sometimes arise where justice requires that a party’s due process rights trump the inconvenience it may cause to a witness. Scheduling witness testimony is not an exact science, and often results in a minor and sometimes major inconvenience to the person being questioned.
It is necessary to weigh the due process rights of the party doing the questioning with the type of inconvenience imposed on the person being questioned. Two recent Noteworthy Panel Decisions (NPD), summarized below, illustrate how the Workers’ Compensation Appeals Board (WCAB) might analyze this situation for claims examiners when they are required to testify at depositions and at trial.
I. Deposition of a Claims Examiner
In the NPD of Thomas v. Kindred Healthcare, 2016 Cal. Wrk. Comp. P.D. LEXIS 445, a dispute arose as to liability for and payment of temporary disability to applicant. Applicant alleged that the defendant’s claims examiner had personal knowledge of the circumstances surrounding this issue and therefore noticed the deposition of the claims examiner handling the case. The deposition was set to take place at applicant attorney’s office in Oakland, California. Defendant argued that this appearance was exceedingly inconvenient for the examiner who happened to live and work in Southern California.
The sole issue to be decided at this trial was whether it was appropriate for the Workers’ Compensation Judge (WCJ) to order defendant to produce its Southern California claims examiner for deposition at applicant’s Northern California office.
At defendant’s request, the WCJ reviewed Code of Civil Procedure Section 2025.250 which provides in relevant part:
(a) Unless the court orders otherwise under Section 2025.260, the deposition of a natural person… shall be taken at a place that is… within 75 miles of the deponent’s residence… (Emphasis added.)
Since the claims examiner (deponent) lives in Southern California and the deposition was set to take place in Oakland, California (Northern California), this deposition request clearly exceeds the geographical limitations of Code of Civil Procedure Section 2025.250.
However, the WCJ noted that Code of Civil Procedure Section 2025.260 allows the court, in its discretion, to issue an order mandating a deposition take place outside the geographical limitations of Code of Civil Procedure Section 2025.250. Code of Civil Procedure Section 2025.260(b) lists the following factors the court must consider before issuing such an order:
(1) Whether the moving party selected the forum.
(2) Whether the deponent will be present to testify at the trial of the action.
(3) The convenience of the deponent.
(4) The feasibility of conducting the deposition by written questions under Chapter 11 (commencing with Section 2028.010), or of using a discovery method other than a deposition.
(5) The number of depositions sought to be taken at a place more distant than that permitted under Section 2025.250.
(6) The expense to the parties of requiring the deposition to be taken within the distance permitted under Section 2025.250.
(7) The whereabouts of the deponent at the time for which the deposition is scheduled.
In his Report and Recommendation, the WCJ explained his rationale for exercising his discretion to issue the order mandating the claims examiner’s deposition in Oakland, California, after considering the items listed in Code of Civil Procedure Section 2025.260(b), as well as the other arguments raised by defendants, as follows:
> Factor #1: Contrary to defendant’s argument that applicant selected the forum, the WCJ explained that venue in workers’ compensation cases is determined by Labor Code Section 5501.5. Per Labor Code Section 5501.5, this case must be venued in Oakland. It was not “the moving party’s selected forum.” The WCJ added that although defendant has offices all over the state, it was defendant’s choice to have this claim administered in Southern California, rather than a more geographically convenient Northern California location. So this factor would weigh in favor of applicant.
> Factor #3: The WCJ recognized that “submitting to a deposition hundreds of miles from home is inconvenient for the witness.” This factor would weigh on the side of deponent.
> Defendant Argued that the Order Issued Prior to an Evidentiary Hearing: The WCJ responded to this argument as follows, “The reader is reminded that a hearing (not an evidentiary hearing) was indeed scheduled on the issue, and written and oral argument by both parties was considered before ruling. To propose that a full trial must precede every evidentiary ruling is to suggest that the entire workers' compensation system grind to a halt….This is a discovery issue. Neither party has offered documentary evidence bearing on the issue and such evidence would be difficult to imagine…In any event, no particular offer is made as to the nature of the evidence to be offered at trial.”
> Defendant Argued that Judicial Economy Would Be Better Served by Deferring the Issue for Trial: The WCJ responded to this argument noting that defendant is “apparently implying that two trials would be more efficient than one. I am unable to appreciate the force of this argument.”
> Defendant Argued “Irreparable Harm and Significant Prejudice” Would Occur if the Deposition Went Forward: The WCJ responded to this argument by explaining that “in causing the witness to travel and be away from his office for ‘a day, or possibly two.’ The witness fee and travel money have been ordered. Nothing suggests the need to spend more than a day attending a 10 a.m. deposition, or even a full day.”
As stated above, the issue in dispute was liability for and payment of temporary disability to applicant. Defendant argued that the claims examiner’s testimony would not result in any relevant evidence to assist the parties in resolving this issue. However, the WCJ countered this argument by noting that “relevancy” is not the appropriate guidepost for discovery.
The WCJ further explained in his Report and Recommendation:
Rather, as stated in CCP section 2017.010, any party may obtain discovery regarding any non-privileged matter if it ‘either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.’ The testimony of the claims administrator on temporary disability claimed, but denied, would clearly appear to satisfy that standard.
The WCJ then concluded, “I continue to recognize that submitting to a deposition hundreds of miles from home is inconvenient for the witness. However, I also continue to feel that this inconvenience is outweighed by applicant's due-process discovery rights.” The WCAB affirmed his decision.
This case outlines the issues and Code of Civil Procedure sections parties should consider before requesting that a WCJ issue an order mandating deposition testimony of a claims examiner who is not within the geographical limits set forth in Code of Civil Procedure Section 2025.250.
II. Electronic Trial Testimony
In the NPD case of Simmons v. Just Wingin’ It, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 48, the WCJ also dealt with the payment and liability of temporary disability to an applicant (a cook) who had suffered an admitted industrial injury to his foot and ankle. In this case, the claims examiner who had handled applicant’s temporary disability payments lived and worked in the state of Illinois. Since the claims examiner’s testimony was required at trial in California, the WCJ issued a minute order requiring the examiner’s appearance in person.
Defendant filed a Petition for Removal of the WCJ’s minute order and argued that it would suffer “irreparable harm and substantial prejudice” (in accordance with 8 Cal. Code Reg. § 10843) if mandated to produce the examiner in person at trial. Defendant explained that in this case, there were alternative means of obtaining the examiner’s “live” testimony, such as through CourtCall or with video conferencing.
The WCAB granted defendant’s Petition for Removal. First, the WCAB noted that Labor Code Section 5708 provides that the WCAB is not bound by the common law or statutory rules of evidence and procedure. However, Labor Code Section 5710 “may cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts of this state under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure.”
Next, the WCAB noted that both the Code of Civil Procedure and the California Rules of Court allowed deposition testimony by remote electronic means as follows:
> Code of Civil Procedure Section 2025.310(a) provides that “A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means”; and
> California Rules of Court 3.1010(d) now provides that “A nonparty deponent may appear at his or her deposition by telephone, videoconference, or other remote electronic means with court approval upon a finding of good cause and no prejudice to any party. The deponent must be sworn in the presence of the deposition officer or by any other means stipulated to by the parties or ordered by the court. Any party may be personally present at the deposition.”
The WCAB applied the rationale permitting electronic testimony for out of state deponents to out of state witnesses at trial. The WCAB granted the defendant’s petition and rescinded the WCJ’s minute order, explaining that defendant was correct in asserting that there were other viable means of obtaining the examiner’s live testimony, rather than requiring the claims examiner’s “in person” testimony at trial.
Before requesting that a WCJ issue an order mandating the appearance of a claims examiner at either a deposition or trial, practitioners should review the analysis used by the WCAB to determine whether a less burdensome manner of obtaining the examiner’s testimony is viable, as outlined by the two NPDs above.
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