A Primer on Discovery, Part Two


Last week, we summarized the rules for discovery in the early phases of a workers’ compensation claim through the mediation phase. This week, we’ll look at discovery once the mediator certifies a case to the Court of Workers’ Compensation Claims. As previously stated, the information below is meant to offer procedural guidance only. Our Appeals Board and Supreme Court will offer legal interpretations and refinements as the case law develops.
         Under the Reform Act of 2013, Tennessee Code Annotated section 50-6-239(c)(1) (2015) provides: “The Tennessee Rules of Evidence and Tennessee Rules of Civil Procedure shall govern proceedings at all hearings before a workers’ compensation judge unless an alternate procedural or evidentiary rule has been adopted by the administrator [of the Bureau of Workers’ Compensation].” The statute additionally provides that an alternate rule adopted by the administrator shall apply if it is in conflict with a provision of the Tennessee Rules of Evidence or Civil Procedure. As stated in last week’s post, the Appeals Board held in Syph v. Choice Food Group, Inc. that, for purposes of the application of the Tennessee Rules of Civil Procedure, a “hearing” occurs when a party or the Court requests or notices a proceeding for relief.
         Rules 26 to 37 of the Tennessee Rules of Civil Procedure establish various forms of discovery and how they are conducted. Generally, the parties may conduct discovery under these rules after the issuance of a Dispute Certification Notice and upon a party’s request for or the Court’s notice of a proceeding for relief.  However, parties and practitioners in the Court of Workers’ Compensation Claims should take heed of the following applicable Bureau rules:
  • The Bureau encourages the parties to complete necessary discovery on an informal, agreed basis. Tenn. Comp. R. and Regs. 0800-02-21-.16(1) (2015).
  • A party cannot propound more than 20 interrogatories, including subparts, unless authorized to do so by order of a workers’ compensation judge. Tenn. Comp. R. and Regs. 0800-02-21-.16(4)(c) (2015).
  • The parties can only conduct depositions within the timeframes set forth in an initial hearing order.  Tenn. Comp. R. and Regs. 0800-02-21-.16(5) (2015).
  • Depositions are limited to four hours excluding break time.  Tenn. Comp. R. and Regs. 0800-02-21-.16(5) (2015).
  • A party can bring a discovery dispute before the Court by motion at any time. Tenn. Comp. R. and Regs. 0800-02-21-.16(2). These motions should contain a statement certifying a good-faith effort to resolve the issues by agreement, but no agreement was achieved. Tenn. Comp. R. and Regs. 0800-02-21-.16(2)(c) (2015).
  • Unless they are the subject of a discovery dispute, discovery materials should not be filed with the Court. Tenn. Comp. R. and Regs. 0800-02-21-.16(3) (2015). (Along these lines, our Clerk of Court estimates receiving in excess of 100 filings per day lately, so file only materials that are critical to your case, copying the opposing counsel/party, and allowing up to two business days for file-stamping and processing anything where time is not of the essence. Please and thank you.)
      The purpose of an initial hearing is to schedule a final compensation hearing and attendant deadlines. Among the deadlines scheduled are those for written discovery and taking depositions. The Court is not likely to schedule a compensation hearing until a party has attained maximum medical improvement from the alleged work injury.
Although the practice varies among the judges and with the needs of any individual claim, the Court typically sets a discovery period sixty to ninety days following the date of filing the initial hearing order. Again, by this time, hopefully the parties have engaged in informal, agreed discovery, minimizing the need for extensive discovery. The Court will not continue a Compensation Hearing for a reason related to the failure to complete discovery prior to the hearing absent the showing of extraordinary circumstances.

As a final note, feel free to reach out to me or any of the Court’s staff attorneys whenever you have discovery or other procedural questions. In fact, next week, we’ll devote an entire post to court staff contact information.

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