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...