                   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.

1
 The 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 “work-
product 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.”).3 The 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 work-

product 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 pre-
       trial 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.
