Legal copy services are a fact of life in the legal world. No attorney practicing today can live without them, unless we could dedicate our whole day to the minutiae of document preparation and dissemination. They are an essential service that we rely on. But let’s face it. They run a business and will always try to bolster their bottom line. Since there are strict rules as to which party pays for legal copy services and when, the ledgers get a little muddy. Lawmakers have stepped in to try and streamline the industry, but there are always ways to figure out how to sidestep regulations.
Following, I’ve prepared a list of the current tricks employed by copy services and how you can spot them, outmaneuver them, and prevent getting gouged.
But first, a little background.
A number of years ago, I drafted a two-part article series about the perils of copy services and their subpoena and billing practices and how to mount a successful defense against them. It resulted in one well-known provider in Northern California writing a “white paper” in response to my article, which was filled with some small counter arguments and not much more. In the years subsequent to those articles, a lot has changed in the world of copy services and their practices. The most notable change was the passage in 2012 of California SB 863.
SB 863 and its impact on subpoenas
SB 863 implemented a fee schedule for copy services. This ended, for the most part, the “wild west” of service fees. In my opinion, SB863 and the implementation of a copy service fee schedule was implemented at least in part, to prevent unnecessary copy service charges that typically occur throughout the life of the claim. Signed in August of 2012 and later codified in Labor Code §5307.9, SB 863 ultimately resulted in a fee schedule that went into effect on 7/1/15 (see also 8 CCR §9980-9983 for more information).
The fee schedule did a number of things:
- Placed a flat fee on copy costs for pages below 500
- Added a per page cost above 500 pages
- Cancelled other subpoena costs
- Created flat fees for records from certain agencies
Gone were the days of $300+ bills for a Certificate of No Records. Useless charges for “base rate”, phone calls, mileage, pagination, bates stamping were ghosts of billing abuses past. And the defense side rejoiced. But not me! I chose to operate on the assumption that like other billing phenomena in the Workers’ Compensation world such as positional MRI’s and re-packaged and compound medications, providers would simply find another way to recoup that lost income. I was right.
I’ve compiled a list of tricks I have noticed that copy services are pulling in light of SB 863, which in all seriousness really was a hit to their bottom line.
Read: Is the claim contested?
Trick #1- Subpoenas issued immediately upon representation
SB 863, codified by 8 CCR §9982(d)(1) established a waiting period of 30 days for the defendant to provide records upon request and also discusses “allowable services”. In the event the applicant’s attorney sends a letter of representation and makes a request for records from the defendant, the defendant is not liable for charges associated with records provided during this waiting period by the carrier, claims administrator, or party that is not a professional photocopier.
The first “trick” I wish to address is the subpoena immediately upon filing of an Application of Adjudication or simply when applicant’s attorney sends their boilerplate introduction letter and makes a general request for records. I have been told on more than one occasion that it is commonplace for most of the larger copy service companies to have a de facto “desk” at many applicant attorney’s offices, where they come by multiple times a week to inquire about new claims to be filed and immediately proceed with multiple subpoenas to parties such as employer, carrier, known physicians, private treating physicians and others.
I would argue that contrary to many copy service providers’ claim that a subpoena issued by them starts this 30 day clock, the Code does not specify this. Further, this would defeat the purpose of the fee schedule. If a subpoena is issued during this timeframe and the defendant provides the records to applicant’s attorney directly, can the copy service cancel their subpoena and hit you with a $75.00 charge?
I would argue no! By issuing immediate subpoenas, they anticipate that:
- The defendant will not comply with a 30-day requirement
- Parties served with their subpoenas will automatically comply, thus “justifying” their billing and
- They can establish a pattern of additional subpoenas, which we will discuss below.
Trick #2- Ongoing/updated subpoenas
Any defense attorney or claims examiner who has worked for longer than a week at an active desk has experienced this. New applicant’s attorney? Here’s your subpoena. New primary treating physician? Here’s your subpoena. The defendant issues a subpoena for a particular location? Here’s a subpoena for the same location. Ongoing medical care? Here’s your updated subpoena.
The most common arguments that I hear are four-fold.
The first argument I usually hear is that the original request for records in the boilerplate form sent by applicant’s attorney at the start of the claim creates an ongoing requirement for a file and serve. I concede that this argument may have some merit, yet we must jump into the weeds to dissect it. With an ongoing duty, I am not aware of a set “required time” to comply with ongoing file and serves. I recommend every 45 days the claims examiner provide updated reports and upon the receipt of a DOR. However, I always argue upon receipt of an updated subpoena for ANY location in which the defendant has records, that we treat that subpoena as a request for records from the applicant and comply with the request within 30 days.
I always make it a point to demonstrate to the WCAB that the defendant is diligent in their service of updated records to defeat this argument. I also point out other times during the claim in which records are voluntarily provided. Such as when a copy is sent to an AME/QME/IME. I always serve applicant’s attorney with any records that go to these providers. Or, when we serve records to a new PTP or secondary PTP. Claims examiners should make it a point to always include a second copy to the applicant’s attorney. Service on a disc is usually easiest and most cost-efficient. That way, we have a clear and established pattern of service of records to demonstrate that a subpoena is not necessary.
In the event records are requested that have already been sent, or in the event a subpoena is received after records are provided, the defendant should prepare a declaration for execution for the party receiving the subpoena which confirms that records have been sent and as such, the subpoena is improper.
The second argument is that the applicant has a “right” to discovery. I would agree with this. However, the larger question is if the discovery request would be duplicative. Per the Code of Civil Procedure §2019.030, it reads, in part:
(a) The court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010 if it determines either of the following:
(1) The discovery sought is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive.
(2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.
For reference, CCP §2019.010 addresses oral and written depositions and inspection of documents, whereas CCP §2020.210 addresses deposition subpoenas. I always make it a point to address the duplicative nature of many of the original and “follow-up” or repetitive subpoenas that frequently come across my desk. I also make it a point to note to any Judge who may disagree with my position that the defendant voluntarily serving records is always more cost-efficient and further, the argument that the defendant can simply try and prevail on a lien at a lien trial or hearing to address non-IBR Petition litigation subjects the defendant to unreasonable costs. How is that not a burden on the defendant and at what time do the rights of the defendant kick in?
The third argument is the claim that the defendant may not be providing all records to the applicant. This argument has no merit in my opinion. Unless applicant’s attorney can demonstrate prior bad behavior or sound evidence that this is occurring, I see no reason to do much other than give a cursory scoff at this argument and force the applicant’s attorney or the copy service to prove up their claim. The defendant is required to send all records within a set period of time when IMR Petitions are filed. They are required to send a complete file to the applicant, the treating physician, the medical-legal evaluator. They are required to send a complete medical file to the applicant’s attorney and have a duty to provide all updated reporting. In my 15+ years handling Workers Compensation matters, I have seen only a very few instances where records were withheld. It is a rarity and frankly, is a bit insulting as well.
The fourth argument that I see is that the applicant needs all records to submit for IMR disputes. This is briefly discussed above. Per the guidelines put forth by the DIR:
- For a regular review:
- The required medical records must be provided by the claims administrator to Maximus within 15 calendar days of the date designated on the mailed notification or within 12 calendar days of an electronic notification.
- For an expedited review:
- The required medical records must be provided to Maximus within 24 hours following receipt of the notification.
- The claims administrator must also send the employee or the employee’s representative a notification that lists all of the documents submitted to Maximus and a copy of all of the documents that were not previously provided to the employee or the employee’s representative.
While I see nothing wrong with applicant’s attorney providing documentation should they chose, it again goes back to the reasonableness of the subpoena itself. If the defendant has provided updated reporting during the claims process, and if they are providing the records to Maximus for the IMR process, then why is a subpoena, or multiple subpoenas for that matter, requesting the ENTIRE medical file from multiple providers necessary at this point? It simply makes no sense.
Further, I see subpoenas generated simply because an IMR request has been filed, and the subpoena seems to have no actual request from applicant’s attorney. TWO copy service firms I deal with on a regular basis freely admit they may receive an IMR application copy from applicant’s attorney, OR they may stop into the office and gather up multiple recent IMR requests and generate subpoenas directly due to those documents. Is this a formal request for records? Is applicant’s attorney even directing reasonable or limited discovery at this point? I would argue that no, it is not reasonable discovery, nor is it limited.
Trick #3- Proceeding with the subpoena, regardless of objection or Petition
I am convinced that many copy services rely upon the defendant becoming or remaining complacent. Which is exactly why they don’t care about objections or a Petition to Quash. Even in the event of a timely objection and a timely filing of a Petition to Quash pursuant to the Code of Civil Procedure, copy services will almost certainly proceed with the collection of records anyway. They then submit billing and attempt to argue that despite an objection and even a Petition to Quash, the timelines noted in the non-IBR Petition process still apply. I disagree, as the issue over the appropriateness of the subpoena itself trumps the non-IBR process.
The problem with this dispute process largely lies with the WCAB itself. I have had numerous occasions over the years (especially in Northern California) of being forced to either file for or attend a hearing if the WCAB sets the matter on calendar, due to the filing of my Petition to Quash. Many WCJ’s choose to suspend the Petition then set the matter on calendar, presumably in an attempt to get the parties to negotiate and resolve the discovery issue informally. Or, the WCAB does nothing at all. And if that occurs and the Petition is not followed up on, the copy service points to that as the defendant failing to do more with their objection, thus attempting to invalidate their other arguments.
While a hearing over the matter is ideal in theory, it is not always practical. Applicants’ attorneys have little incentive to resolve these issues informally since they are not bound by the costs and litigation of subpoenas. The defendant pays for the privilege of their subpoenas. And even if they do agree to withdraw the subpoena, or agree the records have been produced, the copy service frequently attempts to collect on a cancelled subpoena anyway. Plus, you have the cost of the DOR filing, the preparation, the appearance and possibly, further litigation of the matter.
Trick #4- The generic or overly-general affidavit/declaration of good cause
The Code of Civil Procedure §1985 states that a subpoena may be issued by “… an attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena.” Anyone else who wants to send out a subpoena must have it issued by the Clerk of the Superior Court. This section further states, (b) A copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.
If the defendant truly pays attention to the mass of paperwork that accompanies a subpoena, they will start to notice that the affidavit submitted is quite often generic with a limited statement. A few I have seen over the years include, “Any and all documents and records pertaining to the employment of said employee …,” “documents necessary to determine compensability of the claim and/or to prove injury,” or even “documentation to be provided to address IMR application.”
These generic descriptions fail to constitute good cause for a number of reasons: they do not identify a specific document, or any unique traits of any documents being sought.
They are inadequate in explaining to the reader or later, the trier of fact as to the need for these documents to be provided. One must remember that good cause is fact-based. It is not merely a conclusory statement. Documents must be more than simply a “need” for the applicant. There must be more to substantiate good cause than simply indicating that other means of discovery may not result in obtaining these records. The defense side is constantly told that there are other methods to obtain documentation. So why should the applicant not be subject to the same standard?
Per Harding Lawson & Assoc. v. Superior Court, 10 CA4th 7, 12 CR2d 538, the defendant failed to state why any evidence as to the stated issues of nature and extent of injury and loss of earnings could not have been obtained through normal discovery processes such as the deposition and medical evaluations of the applicant. The same argument applies for other discovery methods, such as subpoenas.
Trick #5- Multiple subpoenas at the request of new counsel
To review, per 8 CCR §9982(e)(1), the claims administrator is not liable for payment of records previously obtained by the same party from the same location unless the applicant also provides a Declaration of good cause. The “same party/location/source” also applies to a substitution of attorney and new counsel. 8 CCR §9982 (e)(1)(a) states that good cause includes new counsel seeking records. Discovery of this kind is permitted.
So why am I bringing this up if this discovery is permitted? Because I believe and argue that the same timeline for compliance of service of records still applies. A substitution of attorney document can potentially trigger the 30-day requirement. Therefore, I tell my clients to treat a substitution document as an introduction and demand letter.
The copy services I deal with regularly state that this code section and the Labor Code in general do not say anything about this event being subject to the 30-day requirement. The counter argument is that these subpoenas would create duplication in the process. They are inefficient. They are unnecessary unless the defendant does not provide the records. And they create unnecessary litigation. And let’s be honest. From a commonsense standpoint, does it really make sense?
Trick #6- JUST BECAUSE!
8 CCR §10626, states, “Subject to Labor Code section §3762, and except as otherwise provided by law, all parties, their attorneys, agents and physicians shall be entitled to examine and make copies of all or any part of physician, hospital, or dispensary records that are relevant to the claims made and the issues pending in a proceeding before the Workers’ Compensation Appeals Board.” Nothing in this section limits discovery only for the defendant. I am aware of three large copy service providers making this section as a primary argument right on their website. Again, this is more than a simple review and interpretation of a code or regulation.
This goes back to the intent of the legislature and why changes in SB863 and the development and implementation of a fee schedule were put into place in the first place. I again assert that the main reason for the changes was to avoid duplicative and unnecessary discovery. This basic argument with no other context defeats that purpose. Further, no one is asserting the applicant does not have this right. We simply ask for the correct rules and regulations to be followed in the discovery process.
So, what can we do to defend?
This article already contains some defenses and steps to take in mounting a successful defense. I wish to remind you, dear reader, that no one is perfect. We all have busy desks and improper subpoenas will come across your desk that are never dealt with. But that does not mean that we should not make diligent efforts to fight as many as possible. I contend that the only way these behaviors are changed is through diligent objections and litigation. However, this can be a difficult proposition as there is cost involved with litigation. And the copy service providers know it. That being said, an objection and Petition to Quash goes a long way.
The first step is the objection. It needs to be clear, concise, provide an accurate explanation of the objection, and be completed in a timely manner. A copy to applicant’s attorney and the location of the subpoena will also be helpful. Next, the Petition to Quash needs to be timely filed–before the production request date if at all possible. If not, an explanation needs to be provided as to why this did not occur. Again, make it a point to not only serve the copy service with your Petition, but the location to be subpoenaed as well.
Next, I believe filing for a hearing may be in order in addition to your Petition, to force applicant’s attorney to the WCAB to address their behavior. While this may not always be necessary, it is frequently a good idea in practice. For me, many of these conferences have resulted in at least a general understanding between the parties over the lack of a need for subpoenas and an agreement for more frequent service of records by the defendant, if needed. Many times, applicant attorneys are unaware of the number of subpoenas being generated, which takes us back to one of the “tricks” noted above regarding the IMR process. Many conferences I have attended also result in a withdrawal of the subpoena itself and even an agreement for a withdrawal of billing.
I recommend we go on the offensive against repeat offenders. A Petition for Costs and Sanctions from applicant attorneys who refuse to adhere to proper discovery should be held to account. While this is somewhat of a controversial position to take, we see Petitions filed against the defendant(s) all the time for a host of alleged bad behavior. Why should an attorney who is acting improperly not be held to the same standard? It costs time and money to object. To file Petitions. To deal with phone calls and eventual liens. Bad behavior must be held to account.
Along the same lines can be Petitions for Costs and Sanctions against the copy services, at the time they become a lien claimant or an official party to the action. While I would argue that they are a party from their first subpoena, they certainly are one when you implement the non-IBR dispute process and file your Petition and file for a hearing, or if they do. Or, if they file a lien. I also make it a point to seek out active discovery against them. I ask for copies of the original contract and wet signature with the applicant attorney’s firm to do business in the first place. See California Rules of Court Rule 2.257 for more information on the wet signature and inspection of the same.
Further discovery with copy services will get comprehensive and often drawn out, as they do not want to provide you with information. If you seek business records through a discovery order, they will argue that is not the proper method. If you seek out the records through personal service or a deposition-subpoena, they will argue that is not a proper method and the records are privileged and/or confidential. But are they really when the premise of the request is to address the reasonableness and scope of the discovery, and if there is liability to pay on the part of the defendant? I have had even the most liberal of WCJ’s at the most liberal WCAB’s state that this is an interesting argument and, on some occasions, have ordered this information to be provided for review in some form or another.
Make sure that you that you are aggressive in your approach to these subpoenas. I wish to close by reminding you, dear reader, that not all subpoenas are invalid. Not all are improper. And not all copy services are bad entities. I do not wish to paint with such broad strokes. Rather, I wish to bring to light many of the issues you may see on your daily adventure through the Workers’ Compensation system and provide some suggestions for objection and eventual litigation. Best of luck to you!
Contact Author Timothy W. Rose for more tips: 916-779-6246