Independent Discovery

Parties are not legally obligated to rely on the opposing party for records. Parties may order independently from any service as needed, in order to diligently represent the client. -Cal. Const., art.XIV §4


Successful Discovery Support Includes the Following:

  • The United States Constitution, 14th and 15th amendments
  • The California Constitution, Article XIV, Section 4
  • California Code of Regulations, title 8, Section 10530
  • Code of Civil Procedures sections 2016-2036, 10626
  • Labor Code Sections 3762, 3208.3, 5307
  • California Discovery Act (1986)
  • Allison v. Workers' Comp. Appeals Bd. (1999) 72 Cal.App.4th 654
  • Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355
  • Darbee v. Superior Court (1962) 208 Cal.App.2d 680


California Code of Regulations, title 8, section 10626 provides, "Subject to Labor Code section 3762, and except as otherwise provided by law, all parties, their attorneys, agents and physicians shall be entitled to examine and make copies of all or any part of physician, hospital, or dispensary records that are relevant to claims made and the issues pending in a proceeding before the WCAB." All case law and applicable statutes support the applicant's rights to utilize a copy service of her or his own choice.

The Code of Civil Procedure section 2017.010: : "Unless otherwise limited by order of the court .... any part may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involving in the pending action or to the determination of any motion made in that action, if the matter is itself admission in evidence or appears reasonably calculated to lead to the discovery of admission evidence. Discovery may relate to the claim or the defense of the party seeking or of any other party to the action."

Admissibility is not the test for discovery. Under Davies v. Superior court (1984) 36 Cal.3d 291, any material that falls within the broad definition of "relevant to the subject matter" and is thus discoverable, "if it might reasonably assist a party in evaluation the case preparing for trial, or facilitation settlements." People v. Gonzalez (1995) 33 Cal.App.4th 1539.

Rules are to be applied liberally in favor of granting discovery even "fishing expeditions" are allowed, per Greyhound Corp v. Superior Court (1951) 56.2s 355.


Frequently Asked Questions:

Q. How should parties avoid and respond to objections?

Per the California Code of Regulations, title 8, section 10608, the ordering party may demand copies of records in the possession of the opposing party. Included in this demand, request a signed declaration stating that all records sent are complete. Necessary records not provided or accompanied by signed declaration should be requested independently to ensure the records in the file are complete.


Q. Declaration of Good Cause?

California Code of Regulations, title 8, section 9982(e)(1) explains that the claims administrator is not liable for payment of records previously obtained by the same party form the same source (location of records) unless accompanied by a declaration of good cause. Applicants should be prepared to submit a Declaration of Good Cause at any time. 

According to the new law this declaration need only be a brief and concise statement on how the records that applicant is subpoenaing are relevant to the injured worker's case. 

Example: "The law office of [applicant law firm] represents [injured worker] in [ADJ and/or Claim Number]. Applicant [injured worker] has been treating continuously since the last subpoena duces tecum, dated [insert date of last subpoena] and a complete set of the most current records from [medical location] is required. This office retains the right to independent discovery and to subpoena any and all non-privileged records, under Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355 and Allison v. Workers' Comp. Appeals Bd. (1999) 72 Cal.App.4th 654


Substitution of Attorney

Good cause includes when new counsel is seeking records. When there is a substitution of attorney - meaning, you take over a case from another attorney and records are necessary. Ordering records fro initial discovery or updated records is explicitly allowed and no declaration is needed (Cal. Code Reg., tit. 8 § 9982 (e)(1)(A)).


Q. What can a party do for difficult-to-obtain records?

  • The ordering party may obtain a court order for discovery and payment [to the copy service] for records sought independently.
  • Parties may subpoena the custodian of records to appear and bring the requested records to a deposition or court.
  • A motion to compel can be served on the custodian of records.


Q. What support is there to update records every 6 months?

The MTUS, specifically regarding UR and IMR best practices, reads on page 88 (1)(d) that doctors must (d) Document pain and functionla improvement and compare to baseline. Pain should be assessed at each visit, and functioning shuld be measured at 6-month intervals using a numerical scale or instrument. 

For California attorneys in wokers' compensation, relying on evidence-based medicine, the MTUS is a gudie that supprots the reordering of reocrds by an attorney who wants to most effectively and dilligently support the injured worker. 


For more about Gemini and other practical tips:

Phone: 877-739-7481