Some of my beloved readers (and less-than-beloved readers) will likely recall a blog post on the Yera v. J.C. Penny matter, in which the WCAB ruled that simply claiming to be “intimidated” by a supervisor’s presence was insufficient grounds for not attending a deposition.  Applicant showed no reason for why she would be intimidated, and should have sought a protective order right away, rather than simply refuse to attend.

Well, now let me show you the flip side of the situation.  In the case of Foroughi v. County of San Bernardino, applicant claimed to have sustained an industrial injury to the psyche, allegedly caused by her treatment at the hands of her supervisor for the past five years out of a 25-year-tenure.  When that supervisor appeared at applicant’s deposition as the employer representative, applicant broke down crying and shaking, and the deposition was terminated.

Applicant sought a protective order, seeking not only applicant’s supervisor, but also applicant’s supervisor’s supervisor from appearing at the deposition, supported by the report of her treating physician, who opined that “having [applicant’s] employer present at her deposition would be extraordinarily detrimental to her mental health”.  The WCJ denied the petition for a protective order, but the WCAB granted applicant’s petition for removal, reasoning that the employer could still have another representative present, and thereby the “party” defendant could attend the deposition.

Defendant’s petition for a writ of review by the Court of Appeal was denied.

Now, your humble blogger can’t help but disagree with the findings of the WCAB.  I’ve had the benefit of having employers attend applicant depositions with me, and it is an exceeding useful resource to have someone who is personally familiar with all the facts in a case present to help guide follow-up questions.

The benefit to the employer in attending the deposition is not just to have a fun field trip or to get a live performance of the latest legal drama about lawyers who really care.  The benefit to the employer in attending the deposition is to be able to assist the attorney in asking questions on the spot, with follow-ups, specific dates, and the names of specific witnesses, things that could be explored prior to an applicant’s deposition, but not nearly as effectively: who knows what curve balls the applicant will send your way?

There are less restrictive protective orders that are available that could have afforded the defense the benefit of having the knowledgeable employer representative present, and still avoided a face-to-face between the injured worker and her alleged oppressors.

Your humble blogger, for example, takes his depositions on his laptop.  The entire deposition could have a phone conference for the employer to listen in, and use a chat function such as Google Chat or Skype to privately communicate questions to the defense attorney to ask.  Sure, this may take longer, but what applicant’s attorney would object to a bigger 5710 fee?

Don’t get me wrong, dear readers: I fully sympathize with a person who has had a 5-year stint of traumatic psychological treatment at the hands of a supervisor, especially after a twenty year incident-free tenure.  But we’re not dealing with that here – we’re only dealing with the allegations of that scenario, and the purpose of discovery is to guide us to what we’re REALLY dealing with.  Meanwhile, the defendant is still entitled to a legal defense.

In the alternative, perhaps your humble blogger will start seeking protective orders to exclude the applicant’s attorneys that give me particularly bad headaches from depositions…

Happy Hump Day, dear readers, keep up the good work!