Protective Order, Request For Admissions & Depositions Upon Oral Examination

Protective Order

Under the a, the Circuit Court has the authority to enter an Order guarding the confidentiality of records and documents requested or provided in discovery.

A diligent Plaintiff’s counsel should request a Protective Order, protecting the use of their client’s medical records. Lawyers in the Plaintiff’s bar cite incidents where insurance companies have downloaded or created a database of medical records from a civil case for use in future claims. Imagine, the Plaintiff in a lawsuit provides a medical release or medical records and these are kept to be used against them, without their permission, in case they suffer a future injury.

Plaintiff’s Motion for Protective Order Guarding Medical Records and Information Requested in Discovery by Defendants
Protective Order Guarding the Confidentiality of Medical Records and Information of Plaintiff

Recently, the West Virginia Supreme Court of Appeals in the Case of State Farm Mutual Automobile Insurance Company v. Thomas A. Bedell, 2010 WV. 2488176(WVa. 2010) ruled concerning the language of this type of Protective Order:

(1) trial court exceeded its legitimate powers in issuing order requiring insurer to destroy or return medical records of passenger upon conclusion of litigation, and

(2) order precluding insurer from electronically scanning or storing medical records of passenger was not justified.

Request For Admissions

In order to save the cost of discovery or bringing certain witnesses to trial, a party may serve a Request for Admissions pursuant to West Virginia Rules of Civil Procedure Rule 36. This should be utilized by Plaintiff’s counsel regarding the medical bills and records relating to an injury.

The opposing party has thirty (30) days to answer these requests. If the request is not answered or objected too within this time period, the matter shall be deemed admitted and can be introduced into the trial.

Plaintiff Request for Admission to Defendant

In our roof fall case, the attorney above has sent this Request for Admissions to save the injured Plaintiff the cost and expense of bringing to trial the medical providers, billing department or treating medical providers to testify that the medical records and bills are true, accurate and authentic copies of the original records and that they are admissible into the trial.

The defense counsel in this case has agreed that these copies were true, accurate and authentic, but did not agree to the admissibility of these documents during the trial. This is because the defense attorney for the insurance company does not want the jury to see the full amount of the bills that were incurred from this accident.

Depositions Upon Oral Examination

The taking of depositions is an essential part of any case. Defense lawyers hired by the insurance industry to defend cases look forward to taking depositions. A deposition is a process where the parties or witnesses are questioned under oath before a court reporter who records and later transcribes the testimony. In a civil case, depositions are often taken of the following:

  1. Plaintiff(s)
  2. Defendant(s)
  3. Treating Doctors
  4. Governmental agencies who investigated the incident
  5. Witnesses to the incident
  6. Doctors hired by the defense to examine the Plaintiff
  7. Expert witnesses retained by the parties

Depositions are controlled under Rule 30 of the West Virginia Rules of Civil Procedure once they agree to a date and time when the depositions will take place.

Notice of Deposition of Plaintiff
Notice of Deposition of Defendant

Once the deposition is completed, the court reporter will type up all of the questions and answers that were given and provide copies to the parties. The following depositions were taken in our roof fall case of the injured worker and the employer:

Deposition of the Injured Worker Plaintiff
Deposition of the Defendant

Please note that in our roof fall case above, the defense lawyer for the insurance company tried to establish that the Plaintiff was an independent contractor and not an employee, and therefore, the Defendant was not responsible.

The counsel for the Plaintiff wants to establish that the Defendant was an employer, had control of the work site, was able to hire and fire the Plaintiff and was aware of requirements for safety equipment that he failed to provide.