Discovery: Protective Orders

Salazar v. Montana State Fund [03/15/11] 2011 MTWCC 10 Where a claimant does not dispute that his condition has changed since a previous IME, but contends without explanation that the insurer is not entitled to a “Rule 35” examination without addressing why he believes the Court should look to the Rules of Civil Procedure to the exclusion of § 39-71-605, MCA, the claimant’s motion for a protective order to prevent the insurer from obtaining the IME is denied.

Vandervalk v. Montana State Fund [07/23/09] 2009 MTWCC 24 Where the State sought a protective order to preclude a pro sé claimant from pursuing any discovery against it in a workers’ compensation proceeding, the Court denied the State’s request because it was overly broad. Although the Court had quashed subpoenas directed to the State from the claimant and the Court could not foresee that the claimant had relevant discovery to seek against the State, the Court could not rule out the possibility that some may exist.
Haman v. Wausau [11/30/07] 2007 MTWCC 49 Where the Court granted Respondent a second IME because Petitioner’s medical condition had changed, and Petitioner had a contentious first examination with the physician Respondent chose for the IME, the Court will allow Petitioner to have her attorney present and the second IME conducted on the record. However, the Court will not allow Petitioner’s husband to be present and to videotape the IME as his presence could influence the process.
State Fund v. In Re: Cox [9/30/03] 2003 MTWCC 60 Where paternity of natural child of deceased worker is not in dispute, discovery concerning paternity and the relationship between the deceased and the child is immaterial and is not reasonably calculated to lead to admissible evidence. Protective order barring the discovery is granted.
Haas v. State Fund [9/1/00] 2000 MTWCC 54Court granted protective order regarding contents of investigator's file and letter from attorney to State Fund to administrator of Tort Claims Unit of State of Montana. Contents of file contained work product and attorney/client communications; claimant had not shown relevance of those materials, much less justification to invade work product. Letter was privileged attorney/client communication.
Beaulieu v. UEF [3/2/98] 1998 MTWCC 17 Where the putative insurer has already paid TTD benefits, and the issue surrounding TTD is only unreasonable delay in payment, claimant need not produce information regarding income or subsequent injuries. Protective order granted, though other discovery ordered.
O'Brien v. State Fund [2/10/98] 1998 MTWCC 7 Claimant demanded sanctions under section 39-71-2914, MCA (1991), against the attorney filing a response on behalf of State Fund which asserted the insurer's claim for "equittable subrogation" in claimant's third-party recovery in a malpractice case. Claimant noticed the deposition of Carl Swanson, President of State Compensation Insurance Fund. Protective order granted prohibiting deposition. Sanctions under section 39-71-2914, MCA (1991) are available against an attorney signing a pleadings which is not "warranted by existing law or a good faith argument for extension, modification or reversal of existing law." The issue raised is whether State Fund's position, put forth by its counsel, was beyond the pale of legitimate advocacy. Mr. Swanson is not, to the Court's knowledge, an attorney, certainly did not sign the pleading in question, and is beyond the ambit of sanctions.
Fitch v. Liberty Mutual Fire Ins. Co. [12/30/97] 1997 MTWCC 70A-2 Claimant moved for a protective order based on allegations that respondent's counsel intimidated and frightened her friends, coworkers, and family through seeking information about her and through hiring private investigators to videotape her activities. Following a full-day hearing, and briefing by the parties, the Court concluded there was not a scintilla of evidence to support claimant's serious allegations. Evidence of questioning of one witness by respondent's counsel indicated his demeanor and questions were exemplary. The videotaping was conducted over a period of several weeks, but only in public settings, in which claimant had no reasonable expectation of privacy. Moreover, she can hardly claim emotional distress during the surveillance when she did not know about the surveillance as it occurred.

Guedesse v. Liberty Mutual Fire Insurance Co. [3/29/97] 1997 MTWCC 13 Where Court has already ruled that allegations do not raise issue regarding timeliness of claim denial, petitioner will not be permitted to question witnesses regarding that denial. Issue is perfected already for appeal.

Blancher v. Liberty Mutual [12/24/96] 1996 MTWCC 74 Insurer's motion to compel independent psychiatric examination is granted over claimant's objection based on opinions of her treating physicians that such evaluation is not necessary and could be harmful to claimant. The insurer produced counter-opinions indicating the need for further evaluation. A well-known and respected psychiatrist opined that further evaluation is warranted and outlined a non-demanding examination schedule in a neutral environment. An orthopedic surgeon opined that claimant's industrial injury was a muscle strain which has completely healed, suggesting her continued complaints may be due to psychological factors unrelated to the injury.