Employer or Insurer Won’t Turn Over Records in Your Workers’ Comp Case? What a Judge Can Order

If your employer or its insurer won’t produce records in a California workers’ comp case, you can ask the workers’ comp judge to order production, and if the stalling was willful or in bad faith rather than merely slow, the judge can order the employer or insurer to pay your attorney fees caused by the delay plus a sanction of up to $2,500. The key limit: delay alone is not enough. The judge must find bad-faith conduct that is frivolous or meant only to cause unnecessary delay, after the other side has a chance to explain.

That rule comes from Labor Code section 5813 and WCAB Rule 10421. This guide covers a case already filed with the Workers’ Compensation Appeals Board, with an ADJ case number, where records were requested through a subpoena or a discovery order.

First, get an order that names the records

Fees and sanctions usually follow a clear obligation that was ignored. In a filed case, the formal request is usually a WCAB subpoena for records. Our guide to WCAB records subpoenas explains how to prepare and serve one.

If the response is late, partial or missing a custodian’s affidavit, the next step is generally a petition asking the judge to compel compliance. Under Rule 10510, that request is a verified petition served on all parties. A useful petition names each missing category, the date it was requested and what came back. An order that lists those categories gives the judge something definite to enforce later.

Rule 10421 treats two kinds of conduct as sanctionable that fit this problem directly: failing to timely serve documents within a party’s possession or control that Board or Administrative Director rules require it to serve, and failing to comply with a Board order, “including an order of discovery,” that is no longer open to reconsideration, removal or appellate review. Each has an exception for mistake, inadvertence or excusable neglect (and, for orders, surprise).

Slow is not the same as bad faith

Under Rule 10421, bad-faith tactics include those resulting from a “willful failure to comply with a statutory or regulatory obligation” or a “willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board,” and tactics done for an improper motive. The rule also bars a monetary sanction where the party “acted with reasonable justification or other circumstances make imposition of the sanction unjust.” In our reading, a genuinely unclear request, or a timely statement that a category of records does not exist, is the kind of explanation a judge weighs under that standard. In Nahvi, the judge faulted Lyft for never timely stating that categories did not exist.

In our reading, a pattern shown by documents carries more weight than the length of the delay alone. In Nahvi v. Lyft, Inc., the judge found willful delay where Lyft’s records custodian, trained by Lyft, decided which records were relevant, withheld categories without objecting or serving a privilege log, and supplied custodian affidavits more than two years after a 2021 subpoena and more than a year after a stipulated order to comply. The judge wrote that relevance was for the judge to decide, “not Lyft’s job.” On October 23, 2026, an Appeals Board panel denied reconsideration, adopting the trial judge’s reasons. The outcome rested on that record.

Attorney fees and sanctions go to different places

Section 5813 allows two separate payments. The first is “reasonable expenses, including attorney’s fees and costs, incurred by another party as a result of” the bad-faith conduct. The judge may order the party, its attorney or both to pay it. The second is a sanction of up to $2,500, which goes to the state’s General Fund, not to you.

The fee award is tied to the work the delay caused. In Nahvi, the judge awarded $64,735 based on the rates and hours in the applicant attorney’s amended fee petition, and separately imposed a $2,000 sanction, citing the extent of delay and the court resources needed to move the case toward trial.

The statute requires a “written application by the party seeking sanctions,” unless the Board acts on its own motion, and Rule 10421 requires notice and an opportunity to be heard before any order, so there is no automatic award.

Late records and late benefit payments are different problems

Workers often hear about “penalties” for delay. Labor Code section 5814 applies “when payment of compensation has been unreasonably delayed or refused,” increasing the delayed payment by up to 25 percent or $10,000, whichever is less. It addresses late or refused benefits, such as disability checks or treatment, not records.

If the insurer is also late paying benefits, that is a separate claim with its own limits. Section 5814 bars a penalty action brought more than two years after the payment was due, and presumes accrued penalty claims are resolved when a settlement or award is approved, or when the benefit issue is submitted at trial, unless the penalty is expressly excluded or also submitted. Raise any penalty claim before signing a settlement or submitting the benefit for decision.

What to bring when you ask for help

Bring the subpoena or discovery demand with its proof of service, any custodian affidavit, every discovery order, the records received, a list of what is still missing, and any objection or privilege log the other side served. If benefits are also late, bring the payment history. With those, a lawyer can tell whether the next step is a petition to compel, a petition for fees and sanctions, a penalty claim, or simply another request.