ADJ12181367 · January 15, 2025

Defendant's failure to provide investigator and witness logs does not require exclusion of the sub rosa video absent a genuine dispute as to authenticity or relevance; applicant may still object and seek discovery.

From the decision · page 6Here, we agree with the WCJ that nothing in the governing statues or regulations appears to per se require defendant to provide investigative and witness logs that correspond to sub rosa surveillance it intends to forward to the AME along with the surveillance videos themselves. Nor do any of the cases cited in the Petition directly involve the statutory and regulatory provisions at issue here. Accordingly, the failure to serve those logs on applicant does not compel a finding that the sub rosa surveillance must be suppressed.

Defendant failed to provide investigator and witness logs for sub rosa video, but applicant did not raise a genuine dispute as to authenticity or relevance.

Favours Defendant prevailed

The absence of a genuine dispute as to authenticity or relevance meant the video was not required to be excluded solely due to procedural failure.

From the decision · page 6Here, however, there appears to be no such genuine dispute or, at least, no such genuine dispute has clearly been alleged. Applicant's arguments thus far appear limited to the contention that defendant's failure to comply with its discovery obligations require the video to be suppressed. This, however, puts the cart before the horse in the absence of any genuine dispute as to the video's relevance, we think it would be premature to suppress the video based on defendant's alleged failure to respond to an objection that has not yet clearly been asserted. Review of

Applicant is permitted to depose investigators regarding the sub rosa video.

Favours Applicant prevailed

Clarification that applicant may conduct discovery addresses applicant's concern about ability to challenge authenticity.

From the decision · page 7In light of that possibility, we consider applicant's argument that defendant's failure to provide the names and addresses of the investigators deprives it of the ability to conduct discovery as to the authenticity of the video, such as by taking depositions of the investigators. (See Petition, at p. 5.) Although we see no reason that service of subpoenas must be at the home addresses of the investigators rather than their work addresses, we take applicant's point to the extent that the F&O's prohibition on the taking of testimony from the investigators could be construed to prevent the taking of their depositions as well. We will therefore amend the F&O to make clear that it does not prevent the taking of the investigators' depositions, should applicant elect to proceed down that route.

Labor Code § 4062.3(b)

Labor Code section 4062.3(b): Information that a party proposes to provide shall be served on the opposing party 20 days before the information is provided to the evaluator. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records shall not be provided to the evaluator. Either party may use discovery to establish the accuracy or authenticity of nonmedical records prior to the evaluation.

Applied to determine whether failure to provide investigator and witness logs required exclusion of sub rosa video.

From the decision · page 5Labor Code section 4062.3 (a) states in relevant part: "Any party may provide... medical and nonmedical records relevant to determination of the medical issue." (Lab. Code, § 4062.3(a)(2).) Subdivision (b) of the same section states in relevant part: "Information that a party proposes to provide... shall be served on the opposing party 20 days before the information is provided to the evaluator. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records shall not be provided to the evaluator. Either party may use discovery to establish the accuracy or authenticity of nonmedical records prior to the evaluation." (Lab. Code, § 4062.3(b).)

California Code of Regulations, title 8, § 35

California Code of Regulations, title 8, section 35: Non-medical records, including films and video-tapes, may be provided to the AME after compliance with service and objection procedures.

Applied to determine procedural requirements for serving and objecting to sub rosa video evidence.

From the decision · page 5California Code of Regulations, title 8, section 35, subdivision (a) allows for the provision to the AME of "non-medical records, including films and video-tapes, which are relevant to the determination of medical issue(s) in dispute, after compliance with subdivision 35(c)." (Cal. Code Regs., tit. 8, § 35(a)(5).) Subdivision (c) of the same regulation, meanwhile, provides that the party seeking to provide such non-medical records shall serve the evidence on the opposing party at least 20 days prior to providing it to the evaluator. (Cal. Code Regs., tit. 8, § 35(c).) Subdivision (d) allows the opposing party 10 days to object to the provision of the records, in which case the

Applicant's objection to sub rosa video was based on alleged legal violations, not on authenticity or relevance; no genuine dispute as to authenticity or relevance was raised.

From the decision · page 7applicant's original objection to the provision of the surveillance video indicates that objection was not based upon relevance and/or authenticity instead, the objection was made based on "Defendants' violation of law and willful suppression of evidence." (See Applicant's Ex. 2, at p. 1.)