A recent board panel overturned a trial judge’s denial of a defendant’s Petition to Compel the deposition of three non-party fact witnesses. In Labella v. Marathon Petroleum/Old Republic Insurance, 51 CWCR 102, the panel disagreed with a judge’s determination that the WCAB lacked jurisdiction to compel depositions of non-party fact witnesses other than defendant’s employees.

The applicant had claimed a work-related Covid-19 infection in December of 2021 with related injuries. As part of the defendant’s discovery, the defendants filed Petitions to Compel the attendance at depositions of three “fact witnesses,” asserting that the three lived at the applicant’s address and that the depositions were needed to inquire about possible home Covid-19 exposures.

The petitions were denied by the workers’ compensation judge who noted that the court was unaware of any basis or jurisdiction for compelling a non-party to appear for a deposition. The defendant filed for removal alleging that under Labor Code §5701, any party to a workers’ compensation proceeding may cause the deposition of a witness, whether that witness is a party or a non-party. The panel, applying Labor Code §5313, remanded the matter back to the workers’ compensation judge for further proceedings for an adequate and complete record so that the judge’s basis for the decision could be determined. The panel noted however that Labor Code §5710 provides the board with jurisdiction in any investigation or hearing before the Appeals Board to cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the superior courts for California. (It was also noted that CCP §2025.10 provides that any party may obtain discovery within the scope delimited by Chapter 2 by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization, a partnership etc.)

The court did cite Hardesty, 4 CWCR 57, 41 CCC 111, and noted that where specific provisions of the Labor Code are insufficient to address a dispute, the trial judge may exercise the authority confirmed on him by the rules to issue such interlocutory orders relating to discovery as he determines are necessary to ensure the full and fair adjudication of the matter before him, to expedite litigation and to safeguard against unfair surprise. The judge has authority to impose reasonable protective orders about the course and scope of the requested discovery as necessary.

Ultimately, the panel granted the defendant’s Petition for Removal, overturned the workers’ compensation judge’s determination that the defendant could not depose a non-party fact witness and remanded the case back to the trial level to address issues as to whether there was an independent basis to quash the Petitions to Compel.

Based on the above, it appears clear that, “discovery is permissible by the taking of depositions in California of any person, irrespective of whether the deponent is a party, or an employee of a party.” (Labella v. Marathon Petroleum/Old Republic Insurance, 51 CWCR 102.)

While not discussed in the case, it would be interesting to see whether the non-party witness, once compelled to attend the deposition, would or could refuse to answer questions regarding their medical history, including any exposures or diagnosis to Covid-19 citing a privacy right. I anticipate that issue will litigated soon.