The Discovery Dilemma:

As you know, we defend employers against OSHA citations. We also defend petitions at the Workers' Compensation Appeals Board (WCAB) for Labor Code section 132a discrimination and serious and willful misconduct (S&W). You can see our articles on these topics by clicking here: http://www.walterlaw.com/article_liability.html, and here http://www.walterlaw.com/article_123a.html.

The defense of these claims have many things in common, but one similarity is becoming increasingly important to our defense strategies: Neither workers' compensation applicant's attorneys nor Cal/OSHA seem to have the time or the interest to adequately investigate their claims.

Unlike personal injury actions where discovery can go on forever, little if anything is done by our opponents until it is nearly too late to halt the march to hearing. Too often citations and petitions are based upon an interview with a single individual, with no follow-up to confirm allegations. For reasons that are obvious, unverified allegations often result in faulty assumptions.

The result is that in most cases our investigation leaves us knowing much more about the claim than our opponent. You might not think so, but that's a problem.

This is the dilemma: Do we educate the other side in the hope of reaching an early end to the litigation? Or do we risk providing them, free of charge, with an opportunity to turn our knowledge against us? If our client wishes to convince the other side to settle or withdraw a claim before incurring the expense of preparing for and attending a hearing, we take on an unusual assignment for a litigator: Messenger of the facts to the opposition.

There are two ways to do this. One way is to simply call the opponent and tell him what we know. Having been nurtured in a professional culture that makes North Korea seem open, most attorneys are suspicious of these overtures. All of them immediately look for ways to neutralize that information or turn it to their advantage. With luck, the right facts and some persuasion, many come to see the case our way.

There is another, safer tool to use in this process: The deposition. A deposition is an interview of a witness under oath. The questions and responses are recorded by a stenographer and printed into a booklet for later use. Deposition testimony has the same force and effect as testimony given in court. It serves as a safeguard at hearing against witnesses who change their stories.

We frequently recommend taking employee and witness depositions for three reasons. First, depositions can be a part of our own investigation. We need to know what the employee or witness will say under oath and how well the witness presents in order to better inform our client about the claim. Second, we want to "nail down” a witness's testimony and obtain a tool (the deposition transcript) to help the witness remember and stick to the same story at hearing.

The third, and most important, reason to take a deposition is to educate the employee's attorney about the weaknesses of their claim. Few things are as satisfying (to an attorney) as seeing the grin fade from opposing counsel's face as a deposition progresses.

But whether the grin fades or grows, the effort of taking depositions to evaluate a case is never wasted. And, because the education of a claimant or the Division can move them toward an early and reasonable disposition of the claim, the deposition "investment” is likely to show a great return.

We Have A Winner!

Our last e-zine included the story of an Australian mason who detailed his progress up and down a building when he got entangled in a rope and pulley system. We have since learned that our instincts were correct: The story is bogus, but is was funny nonetheless. We offered a six-pack of Foster's for the best summary of what Title 8 regulations the Division might have cited if the incident happened here.

Jeff Melampy, Safety Technician at Blommer Chocolate in Union City is our winner! Here is Jeff's response:

• He said he was working alone; this could mean there was no one [else] in the area or on the job site. Under [T]itle 8 sec. 6973 ... (g) ..., [n]o employee shall be assigned, or allowed, or be required to perform work alone in any area where hazardous conditions exist that would endanger his safety unless he can communicate with others, can be heard, or can be seen.

• From his description of what happened there was no braking system or means to control the pulley (hoisting system). [Title 8 CCR sec.] 8497. Wire Rope and Sheaves. This may not apply directly to this situation [but] it may through an interpretation.

• There may be other violations regarding the use of hoisting systems that may also apply depending on the specifics (that were not given in the report) of the situation. [Title 8 CCR sec.] 8500. Hoisting Operations.

• There was no mention if he was using fall protection when he was on the 6th floor. It's not relevant to this accident but would be required. [Title 8 CCR sec. 1670, et seq.]