Opposition to Motion to Compel Plaintiff to Produce Tax Returns

ABOUT THIS FORM

This is a response in opposition to a defendant’s motion seeking to compel the plaintiff in an auto accident case to produce copies of her tax returns and income documentation. Normally if an accident plaintiff is seeking damages for lost wages or lost income, the defendant can demand tax returns and income documentation. In this case, however, the plaintiff was NOT seeking damages for lost wages so her taxes were arguable not relevant.


IN THE CIRCUIT COURT OF MARYLAND FOR BALTIMORE CITY

SANDY RAKER – Plaintiff

v.                                                                     Case No.:  24-C-19-00390

DONALD DUCK – Defendant

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PLAINTIFF SANDY RAKER’S RESPONSE IN OPPOSITION TO DEFENDANT USAA’S MOTION TO COMPEL PRODUCTION OF INCOME TAX RETURNS

Plaintiff, Sandy Raker, by and through her attorneys, Rodney M. Gaston and Miller & Zois, LLC, and files her response to Defendant USAA’s Motion to Compel her to produce her income tax returns and all documents that relate to the income generated from her private photography business and states and as follows:

I. PLAINTIFF IS NOT MAKING ANY CLAIM FOR LOST WAGES OR LOST INCOME, ACCORDINGLY, THE DEFENDANT HAS NOT SHOWN GOOD CAUSE FOR THE  PRODUCTION OF THE PLAINTIFF’S INCOME TAX RECORDS AND BUSINESS RECORDS.

USAA is keenly aware that Sandra Raker is not making any claim for lost wages or lost income arising out of the automobile collision at bar. Nonetheless, USAA is seeking an Order from this Court to compel the Plaintiff  produce, among other things,: ” 5.  Copies of any and all documents detailing income earned by or fees paid to Sandy J. Photography since the date of the subject accident ”  and all business records that contain the identity of the Plaintiff’s business customers.

Unfortunately, USAA has not shown any relevance that the actual amount of income that the Plaintiff has earned in the past has on any aspect of her personal injury claim. In order for this Court to grant the Defendant’s Motion, the Defendant must demonstrate the probative value of the amount of the Plaintiff’s earnings. USAA has not cited a single Maryland case wherein the appellate courts have held that a Plaintiff in a personal injury case who has not claimed any lost wages or loss of earning capacity must nevertheless turn over all of her financial records to the Defendant. The Plaintiff’s Income Tax Records are not necessarily privileged, and perhaps discoverable, “…provided that they are relevant to the subject matter of the action….” See Ashton v. Cherne Contracting Corp., 102 Md. App. 87, 92 (1994). The Court must make a determination as to whether the tax records are relevant before their production can be ordered. The Ashton case was actually a worker’s compensation case wherein the injured worker claimed that he was entitled to be paid wages and receive vocational rehabilitation benefits due to a work related injury.  These benefits are available to an injured worker ” ‘ …when a covered employee is disabled from performing work for which previously qualified as the result of an accidental personal injury .’” Id. at 99. Accordingly, Mr. Ashton’s income tax records which would have disclosed income from any work that he performed was relevant to his request for vocational rehabilitation benefits and lost wages.  Plaintiff herein is not making any such claim. In the case at bar, it does not matter whether the Plaintiff is paid $5.00 or $5,000.00 for each photo shoot and the Defendant has failed to draw any nexus between the amount of income the Plaintiff has earned in the past and any claim for damages that she is making in this case. The failure of USAA to establish the relevance of the Plaintiff’s income tax and business records warrants a denial of its Motion to Compel.

The ostensible purpose for obtaining the identity of all of the Plaintiff’s business customers is to drag them into a deposition to provide testimony as to what they saw the Plaintiff doing during the photography sessions. Many of the photography sessions involved weddings. What possible relevant and admissible evidence can be obtained from the bride and groom other than –”Yes, Mrs. Raker took pictures of us on our wedding day.” The various brides and grooms cannot render any opinions whatsoever as to the Plaintiff’s physical condition. The real purpose for this invasion of privacy as to both the Plaintiff’s Income Tax records and business contacts is to force the Plaintiff to make a choice whether she wants to protect her private finances and business contacts or sacrifice same in order to continue with her claim for personal injuries and damages against her own insurance carrier.  This is abundantly clear in light of USAA’s failure to take any action whatsoever to depose the persons already identified by the Plaintiff who can provide testimony as to the Plaintiff’s duties as a photographer.

II. DEFENSE COUNSEL HAS FAILED TO INFORM THIS COURT THAT THE PLAINTIFF HAS ALREADY PROVIDED THE NAMES OF FOUR PERSONS WHO HAVE ASSISTED THE PLAINTIFF WITH HER PHOTOGRAPHY BUSINESS AND A LISY OF THE DATES AND TIMES OF HER PHOTO SHOOTS.  

The Plaintiff has already divulged the names and address of four persons whom she specifically hired to assist her with her duties as a photographer during her various photo shoots including weddings.  These persons were identified in a letter sent to opposing counsel on September 12, 2008. Exhibit 1. These persons have knowledge of the duties and tasks performed by the Plaintiff during her photo shoots – information the Defendant claims it desperately needs in order to defend the lawsuit at bar. USAA has not scheduled the depositions of any of these persons even though it now claims that it will be somehow prejudiced unless this Court orders the Plaintiff to divulge the identities of all of the Plaintiff’s  customers so that it can depose each and every customer.  Additionally, the Plaintiff has gone as far as to prepare a list of the dates and events wherein she preformed photographic services in the past and has provided that list to the Defendant.

When balancing the Defendant’s need to obtain the names and addresses of all of the Plaintiff’s personal business contacts against the Plaintiff’s right to privacy, the Court should consider whether the Defendant in this case can obtain the same information though less invasive means. These means are available to the Defendant because the Plaintiff has provided a list of her photo shoots and has identified four persons who assisted her at various times during these photo shoots. If the Defendant’s true intention is to obtain facts regarding the Plaintiff’s ability to carry out those duties associated with her employment as a photographer, then the Defendant has at its deposal the very means by which to accomplish this task. Actions speak louder than words and USAA’s failure to schedule or take the depositions of those persons identified by the Plaintiff to obtain the information that it claims it needs demonstrates the lack of good cause for this Court to order the Plaintiff to disclose her personal client list to the Defendant. Why would USAA not file a Motion to Compel the taking of the depositions of these four witnesses before moving that the Court order the Plaintiff to divulge the identify of all of her business clients?  The Motion to Compel the Plaintiff to produce her business records containing the names and addresses of all of her clients is premature and without good cause when the Defendant can obtain the same information via depositions of persons already identified by the Plaintiff.

Plaintiffs believe that the action at bar is stayed pending the Court of Special Appeals’ decision on the appeal noted by doctors Falik and Ammerman. To that end the Plaintiff’s have filed a Motion to Stay this case and respectfully request that this Honorable Court rule on that Motion first as the outcome of that Motion may render the Defendant’s Motion to Compel MOOT.

 

Respectfully submitted,
MILLER & ZOIS, LLC

                                                                       

 

 

 

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