State ex rel. John McConaha, Appellant, v. The Honorable Nelson G. Allen, Jr., Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State ex rel. John McConaha, Appellant, v. The Honorable Nelson G. Allen, Jr., Respondent. Case Number: 53724 Handdown Date: 12/16/1997 Appeal From: Circuit Court of Buchanan County, Hon. Randall R. Jackson Counsel for Appellant: John B. Boyd Counsel for Respondent: Robert E. Douglass Opinion Summary: The Buchanan County Circuit Court entered a preliminary writ of mandamus in favor of the appellant/employee John McCohana regarding Administrative Law Judge Nelson G. Allen Jr.'s protective discovery order. After a hearing on the matter, the circuit court quashed the preliminary writ and granted the employer/insurer's motion to dismiss. AFFIRMED. Division Three holds: The employee had a right to request, via subpoena duce tecum and Rule 57.09(b) V.A.M.R., books, paper, documents or tangible things designated therein, but a surveillance videotape that lacks an audio track is protected work product, which is not governed by Rule 56.01 V.A.M.R. As such, the circuit court did not err in quashing its preliminary writ of mandamus. Citation: Opinion Author: Forest W. Hanna, Judge Opinion Vote: AFFIRMED. Howard, P.J., and Breckenridge, J., concur. Opinion: Opinion modified by Court's own motion on January 13 , 1998. This substitution does not constitute a new opinion. The relator/employee, John McConaha, sought a writ of mandamus in Buchanan County Circuit Court directed to

Administrative Law Judge Nelson G. Allen, Jr. (ALJ) with regard to McConaha's workers' compensation hearing. The circuit court entered a preliminary writ and then, after reviewing the employer/insurer's answer and hearing oral arguments, the circuit court quashed the preliminary writ of mandamus, and granted the employer/insurer's motion to dismiss. McConaha has appealed from the circuit court's order. Since mandamus "had been granted preliminarily by the circuit court, appeal to this court is the proper procedure for presenting the matter for review." State ex rel. River Cement Co. v. Pepple, 585 S.W.2d 122, 123 (Mo. App. 1979) (citations omitted). We affirmed. The underlying action is a workers' compensation claim related to an alleged on-the-job injury sustained by McConaha while working for his employer, Missouri-Nebraska Express, Inc. In defending the claim, the employer/insurer videotaped McConaha engaged in various activities. Subsequently, the employer/insurer's medical expert, Dr. Michael J. Poppa, examined McConaha and viewed the surveillance videotape. Dr. Poppa formulated his opinion, based on his examination and review of the videotape, as set forth in his written report.(FN1) McConaha, initially, sought production of the videotape from the employer/insurer through section 287.215 of the workers' compensation statute, which concerns the production of "statements" made by injured employees.(FN2) When this approach proved to be unsuccessful, McConaha served notices of deposition with subpoena duces tecum notices directing Dr. Poppa's office manager (and/or Dr. Poppa's records custodian) and the claims adjuster for the employer's insurer to produce the videotape at their depositions. The employer/insurer requested a protective order from the Division of Workers' Compensation. They claimed that the videotape was not discoverable because: (1) it lacked an audio track, (2) it was trial preparation material, and it was obtained in anticipation of litigation or for trial, and (3) McConaha had made no showing of substantial need or undue hardship. On September 6, 1996, the ALJ entered an order finding that McConaha was seeking to "discover preparation materials and materials which were prepared in anticipation of litigation or for trial (hearing)" without a showing of substantial need or undue hardship. The ALJ ordered that "the parties the employee is seeking to depose are only required to produce (at their depositions) audio tapes containing the voice of the employee." McConaha filed a petition for writ of mandamus with the Buchanan County Circuit Court, which asked the court to command the ALJ to set aside his order and direct the deponent witnesses to produce the videotape taken of McConaha. Initially, the circuit court entered a preliminary order in mandamus. After the circuit court entered a subsequent order quashing the preliminary order in mandamus, and dismissing McConaha's petition for writ of mandamus, this appeal followed.

On appeal, McConaha claims that the circuit court erred in quashing the preliminary order in mandamus and permitting the ALJ's order (requiring the parties to produce only videotapes containing the employee's voice) to stand. McConaha claims that the circuit court erred by misapplying the law because: (1) he has a clear right to conduct discovery (pursuant to section 287.560, RSMo 1994 and Rule 57.09, V.A.M.R.) and no remedy other than mandamus is as convenient, beneficial or effective, and (2) although the videotape of McConaha is the product of the employer/insurer's trial preparation, it constitutes a party statement (pursuant to Rule 56.01, V.A.M.R.) and, therefore, is discoverable without a showing of substantial need and undue hardship.(FN3) With regard to a determination in mandamus, this court reviews a judgment of the trial court as it does other non- jury civil matters; the judgment of the trial court is sustained unless no substantial evidence exists to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. See State ex rel. Lupo v. City of Wentzville, 886 S.W.2d 727, 730 (Mo. App. 1994). "In general, mandamus is an extraordinary remedy effective to compel performance of a particular act by one who has an unequivocal duty to perform the act." State ex inf. Riederer ex rel. Pershing Square Redevelopment Corp. v. Collins, 799 S.W.2d 644, 646 (Mo. App. 1990). The function of a writ of mandamus is to enforce a claim or right, and "[t]he general rule is that a court will issue a writ of mandamus only where it is shown that one requesting the writ has a clear and unequivocal right to the relief requested and a corresponding present, imperative, unconditional duty imposed on the respondent which the respondent has breached." St. Louis Police Officers' Ass'n v. Sayad, 685 S.W.2d 913, 916 (Mo. App. 1984)(citations omitted). Mandamus is appropriate as long as there is not "another plain, speedy and adequate remedy at law." State ex rel. M.B. v. Brown, 532 S.W.2d 893, 895 (Mo. App. 1976)(citations omitted). However, "it is well settled that this other remedy must be equally as convenient, beneficial and effective as mandamus." Id. (citing State ex rel. Reis v. Nagle, 349 S.W.2d 508, 512 (Mo. App. 1961)). Whether a right to mandamus is clearly established and presently existing is assessed by examining the statute under which the right is claimed. See State ex rel. Missouri Pac. R.R. Co. v. Koehr, 853 S.W.2d 925, 926 (Mo. banc 1993)(citing State v. Ryan, 813 S.W.2d 898, 901 (Mo. App. 1991)). "In addition, the canons of construction are, for the most part, an expression of principles deduced from common sense and long experience." Koehr, 853 S.W.2d at 926. McConaha asserts that, pursuant to section 287.560 of the workers' compensation statute, he has a discovery right to the surveillance videotape. The statute provides that: Any party shall be entitled to process to compel the attendance of witnesses and the production of books and papers, and at his own cost to take and use depositions in like manner as in civil cases in the circuit

court. . . . (emphasis added). He further asserts that in civil cases in the circuit court, the Missouri Rules of Civil Procedure apply to depositions and, therefore, it naturally follows that the civil rules which pertain to depositions also would apply to depositions in the underlying workers' compensation claim. In support of this contention, McConaha relies on State ex rel. River Cement Co. v. Pepple, in which the Eastern District of this court found that the claimant had the right to inspect machinery because the right to inspect was "inherent" in the powers authorized by section 287.560. 585 S.W.2d at 125.(FN4) The Pepple court stated that "[f]or example, the section provides that the taking of deposition in workmen's compensation cases is to be governed by the rules of civil procedure." Pepple, 585 S.W.2d at 125. The court went on to indicate that: Rule 57.09 controls the issuance of subpoenas as they relate to depositions. Rule 57.09(b) states that a subpoena may request the person to whom it is directed to produce books, papers, documents or tangible items. We believe it chimerical to hold that the claimant can compel the relator to produce the machine in question at deposition hearing, but cannot inspect the machine with considerable less effort at relator's plant. Id. Although not all of the rules of civil procedure apply to workers' compensation cases, McConaha claims that the Pepple court has determined that Rule 57 does apply. As such, McConaha contends that the right to take a deposition is clearly authorized by section 287.560, and the corresponding right to issue a subpoena for the production of tangible things at deposition is governed by Rule 57.09. We agree. Rule 57.06 "Subpoena for taking deposition" provides: (b) For production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein. . . . Therefore, McConaha has the discovery right to books, papers, documents or tangible things via subpoena duces tecum directed to deposition witnesses. Finally, McConaha argues that the ALJ has defaulted in his duty by entering his order, which restricted McConaha's right to discovery, by only requiring the deponent witnesses to produce videotapes with audio tracks in response to the subpoena duces tecum. In support of this contention, McConaha cites State ex rel. Swyers v. Romines, which says that "a trial court has no discretion to deny discovery of matters . . . when the matters are neither work product nor privileged." 858 S.W.2d 862, 863 (Mo. App. 1993)(citing State ex rel. Southwestern Bell Publications v. Ryan, 754 S.W.2d 30, 32-3 (Mo. App. 1988)). McConaha contends that since a clear right existed to the discovery, the ALJ erred by not allowing the discovery and, therefore, McConaha is entitled to mandamus relief. In contrast, the employer/insurer argues that parties in workers' compensation proceedings have limited discovery rights and that section 287.560 does not authorize the production of documents.(FN5) The employer/insurer contends that

the scope of discovery available to each party in a workers' compensation case is set by statute, and that "[n]o additional common law rights to discovery exist in workers' compensation cases beyond those provided for in the workers' compensation statute." State ex rel. Lakeman v. Siedlik, 872 S.W.2d 503, 506 (Mo. App. 1994)(ruling that the ALJ lacks authority to order the claimant to undergo a vocational rehabilitation evaluation). We agree that the claimant is limited to those methods of discovery specifically authorized by legislative enactment. However, section 287.560 provides that the taking of depositions in workers' compensation cases is governed by the applicable rules of civil procedure by stating a party shall be entitled "to take and use depositions in like manner as in civil cases in the circuit court."(FN6) Following the Pepple court, we find that Rule 57.09(b), regarding the issuance of subpoenas as they relate to depositions, is applicable to workers' compensation claims. As such, McConaha has a right to request, via subpoena duces tecum and Rule 57.09(b), "books, papers, documents or tangible things designated therein." Furthermore, a trial court has no discretion to deny discovery of matters which are relevant, reasonably calculated to lead to the discovery of admissible evidence, and that are neither work product nor privileged. See State ex rel. Swyers, 858 S.W.2d at 863. The dispositive issue, however, as applied here to tangible items, is whether the surveillance videotape is protected because it is work product that enjoys a "qualified immunity" from disclosure in discovery. The work product doctrine provides that an opposing party may not discover documents and tangible things that are prepared "in anticipation of litigation or for trial by or for another party. . . ." Rule 56.01(b)(3). This is a qualified immunity, however, in that the information is discoverable "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable, without undue hardship to obtain the substantial equivalent of the materials by other means." Id. See also State ex rel. Atchison, Topeka & Santa Fe R.R. Co. v. O'Malley, 898 S.W.2d 550, 552 (Mo. banc 1995). The work product privilege is designed to prevent a party from "reaping the benefits of his opponent's labors." State ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 80 (Mo. banc 1984). It should be noted that the work product doctrine does not operate to conceal factual data which should be available to all parties; provable facts underlying the parties' contentions are not work product, and a party can pursue an inquiry in a deposition as to the knowledge of such facts. See State ex rel. Missouri Pub. Serv. Co. v. Elliott, 434 S.W.2d 532, 536 (Mo. banc 1968). The employer/insurer admits that McConaha has the right to depose Dr. Poppa and question him regarding his reliance upon such videotape, and what the doctor saw in the videotape. The Missouri Supreme Court recently held that surveillance photographs or motion pictures are "statements" of a party and are discoverable under Rule 56.01(b). See State ex rel. Missouri Pac. R.R. Co. v. Koehr, 853 S.W.2d 925, 927

(Mo. banc 1993)(citing Porter v. Gottschall,615 S.W.2d 63, 65 (Mo. banc 1981)). Although the Koehr court ruled that a videotape was a statement under Rule 56.01(b)(3), it distinguished other authorities which relied upon rules or statutes that did not have comparable language to the plain language provided in Rule 56.01(b)(3). Specifically, as an example, the Koehr court cited Erbschloe v. General Motors Corp., 823 S.W.2d 117 (Mo. App. 1992), a workers' compensation case which held that a surveillance videotape without an audio track was not a statement made or given by an employee and, therefore, was not discoverable pursuant to the language of section 287.215.(FN7) See Koehr, 853 S.W.2d at 927. Since section 287.215 does not provide an internal definition of "statement," the Koehr court found that the Erbschloe case was not applicable. Id. McConaha asserts that, like Rule 57.09 (which governs the production of documentary evidence) discussed, supra, Rule 56.01(b)(3) is applicable to the production of materials via subpoena for taking depositions. Since section 287.560 designates that the production of books and papers at a deposition is to be "in like manner as in civil cases in the circuit court," McConaha argues that Rule 56.01(b)(3) also applies here because it addresses the discovery of trial preparation materials. We do not agree that section 287.560 contemplates the inclusion of Rule 56.01. Although Rule 56.01(3)(b) permits discovery of a videotape prepared in anticipation of trial, under their definition of a party statement, we find that the legislative intent of section 287.560 does not extend this rule to the discovery of surveillance videotape in workers' compensation cases. The discovery rights in a workers' compensation case are restricted as they are limited only to "those provided for in the workers' compensation statute." State ex rel. Lakeman, 872 S.W.2d at 506. The purpose of the act is that substantive rights be protected at the expense of procedural mechanisms. See Wiele v. National Super Markets, Inc., 948 S.W.2d. 142, 146 (Mo. App. 1997); Mullen v. Chevrolet-Kansas City Div., G.M. Corp., 392 S.W.2d 27, 28 (Mo. App. 1965) (citing Ross v. Joplin Corp., 229 S.W.2d. 303, 309 (Mo. App. 1950)). The language of section 287.560, which states that any party can "take and use depositions in like manner as in civil cases in the circuit court" contemplates the use of the rules of civil procedure in workers' compensation cases that relate to depositions, such as Rule 57.09. However, we find that Rule 56.01(b)(3) is not applicable to workers' compensation claims under the authority of section 287.560 because the statute does not authorize the use of civil procedure rules as they pertain to the discovery of trial preparation materials. To rule otherwise would undermine the legislative intent to create a compensation system enacted to provide quick recovery without the expense and delay of litigation. See State ex rel. Lakeman, 872 S.W.2d at 505; McFarland v. Bollinger, 792 S.W.2d 903, 907 (Mo. App. 1990). The result is that McConaha has a right to request, via subpoena duces tecum and Rule 57.09(b), "books, papers,

documents or tangible things designated therein," but that a surveillance videotape that lacks an audio tract is protected work product which is not governed by Rule 56.01.(FN8) As such, the trial court did not err in quashing its preliminary writ of mandamus. Judgment affirmed. Footnotes: FN1.The doctor reported that his review of the videotape indicated that McConaha demonstrated full and uninhibited use of his right upper extremity, as well as normal strength, while "lifting groceries, carrying groceries, lifting motor parts, carrying motor parts, repairing a tire, working in a standing position under the hood of a truck repairing its motor, lying on the ground, . . . pushing a stroller and pushing a shopping cart full of groceries." FN2.Section 287.215 controls the admissibility of employee statements by requiring that a copy of the statement must be provided to the employee, by the employer, 15 days after written request, otherwise such statement becomes inadmissible. See section 287.215, RSMo 1994. FN3.Hereinafter, all references to Missouri Statutes are from Missouri Revised Statutes (RSMo) and all references to Missouri Supreme Court Rules are from Vernon's Annotated Missouri Rules (V.A.M.R.). FN4.See also Tillman v. Wedge Mobile Serv. Station, 565 S.W.2d 653, 656 (Mo. App. 1978)(ruling that Rule 57.07 regarding the use of depositions in court proceedings also applies to workers' compensation cases pursuant to section 287.560). FN5.The parties also disagree as to whether mandamus is the appropriate remedy in this matter. Since we find that mandamus does not lie, a determination of the appropriateness is not necessary. FN6.It should be noted that this right is found in section 287.560 (and not under section 287.215) which provides that a claimant's statement is not admissible if it was not provided to them, after a request, pre-trial. Therefore, Erbschloe v. General Motors Corp., 823 S.W.2d 117 (Mo. App. 1992), which ruled that a videotape, with no audio portion, constitutes a statement under section 287.215, is not applicable to this determination. FN7.Section 287.215 controls the admissibility of such statements by stating that: No statement in writing made or given by an injured employee . . . which is mechanically or electronically recorded . . . shall be admissible in evidence, used or referred to in any manner at any hearing or action to recover benefits under this law unless a copy thereof is given or furnished the employee . . . fifteen days after written request. FN8.Our review of the record indicates that McConaha has not served a subpoena on Dr. Poppa, whom we presume will be an expert witness for the employer/insurer in this matter. The parties have not argued here, nor apparently before the ALJ or the circuit court, that McConaha is entitled to view the videotape because Dr. Poppa relied on it in formulating some of his medical opinions. We are not addressing, therefore, the issue of whether work product protection is inapplicable in this matter, because the videotape may or may not be within the scope of facts known by an expert witness. See, e.g., Kawasaki Motors Corp., U.S.A. v. Ryan, 777 S.W.2d 247, 253 (Mo. App. 1989); State ex rel. Seitrich v. Franklin, 761 S.W.2d 756, 757 (Mo. App. 1988); State ex rel. Mo. Highway & Transp. Comm'n v. Anderson, 759 S.W.2d 102, 104-05 (Mo. App. 1988); State ex rel. Mo. Highway & Transp. Comm'n v. Pully, 737 S.W.2d 241, 243 (Mo. App. 1987). But see State ex rel. Mo. Highway & Transp. Comm'n v. Anderson, 735 S.W.2d 350, 356 (Mo. banc 1987). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.