Peters v. Reede Construction, Inc., 120120 SDWC, 124, 2018/19

Case DateDecember 01, 2020
CourtSouth Dakota
Randy Peters
v.
Reede Construction, Inc. and Twin City Fire Insurance Company
HF No. 124, 2018/19
South Dakota Workers Compensation
South Dakota Department of Labor & Regulation Division of Labor and Management
December 1, 2020
          Brad J. Lee Beardsley, Jensen & Lee, Prof. LLC           Jennifer L. Wosje Woods, Fuller, Shultz & Smith, PC          LETTER DECISION ON MOTION FOR PROTECTIVE ORDER          Dear Mr. Lee and Ms. Wosje:          This letter decision will address Employer and Insurer’s Motion for Protective Order. All submissions and supporting documents have been considered.          On September 3, 2020, Peters served Claimant’s Second Request for Production of Documents. Claimant’s counsel requested to take the depositions of the construction manager, the concrete superintendent for Reede Construction, and the “safety person/director in charge.” Peters had not made prior requests to depose any of the representatives or employees of Employer who had been identified in discovery.          Employer and Insurer have moved the Department of Labor & Regulation (Department) for a protective order pursuant to SDCL 15-6-26(c) on the grounds that Claimant’s Second Request for Production of Documents and request for deposition of Employer representatives or employees are untimely under the Scheduling Order, which set the deadline of discovery for July 20, 2020. Pursuant to SDCL 15-6-26(c), the Department is permitted to grant a protective order upon a showing of good cause. “Good cause is established on a showing that disclosure will work a clearly defined and serious injury.” Bertelson v. Allstate Ins. Co., 2011 S.D. 13, ¶57, 796 N.W.2d 685, 794 (citation omitted).          Peters requests the Department deny the Motion for Protective Order and allow him to conduct the discovery necessary to address the willful misconduct defense related to the use of the haul road. Peters argues that Employer and Insurer’s sole basis for denying this claim was his positive drug screen. When Employer and Insurer answered Claimant’s first discovery requests, they provided the positive drug test as the reason for the...

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