Elliston v. Wing Enterprises, Inc. et al

Filing 128

Magistrate Judge Donald L. Cabell: ORDER entered denying 123 Motion to Compel (DLC, law2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ROBERT ELLISTON,
Plaintiff,
No. 15-CV-11739-FDS
v.
WING ENTERPRISES, INC.,
Defendant.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO COMPEL THE
PRODUCTION OF THE PLAINTIFF’S INCOME TAX RETURNS (Dkt. No. 123)
CABELL, U.S.M.J.:
The defendant, Wing Enterprises, Inc., has moved to compel
the production

of the plaintiff

Robert Elliston’s income tax

returns. (Dkt. No. 123). For the reasons discussed briefly below,
the motion to compel is denied.
Relevant Background
The plaintiff has brought suit against the

defendant

in

connection with injuries he suffered in April 2012 when he fell
from a ladder the defendant manufactured.

The plaintiff contends

among other things that he sustained approximately $55,000 in lost
earnings and loss of earning capacity as a result of the incident.
During

discovery,

the

defendant

requested

copies

of

all

documentation of earned income by the plaintiff for the five years

preceding the incident at issue.

The plaintiff responded in June

and July of 2016 that he would not produce any documents responsive
to the request.

In particular, the plaintiff asserted that he

would not submit joint tax returns (with his spouse) because they
were not relevant. Subsequently, though, the plaintiff did produce
some

tax

documents

at

his

deposition,

including

his

federal

corporate tax returns from 2007 to 2015 for each of the three
enterprises he owns and operates, as well as invoices to clients
for services rendered by his construction company.
did not thereafter take

any

steps

to

The defendant

compel the plaintiff’s

personal income tax returns before the close of discovery on
October 31, 2016.
Several

months

later,

and

following

the

defendant’s

unsuccessful motion for summary judgement, the court on September
8, 2017, scheduled the case for trial in May 2018. Following these
developments, the defendant asked the plaintiff whether he was
still

unwilling

to

produce

his

tax

returns.

The

plaintiff

responded that he still would not produce his own tax records but
he did subsequently disclose additional invoices and profit loss
statements for one of his businesses, Roaring Brook Construction.
On October 3, 2017, the defendant filed the instant motion to
compel.

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Discussion
There is no absolute privilege protecting tax returns and
related documents from discovery, although, “due to the sensitive
information contained therein and the public interest to encourage
the filing by taxpayers of complete and accurate returns, their
production should not be routinely required.” Mitsui & Co. v.
Puerto Rico Water Resources Authority, 79 F.R.D. 72, 80 (D.P.R.
1978).

A court may order the production of tax returns where they

are relevant and the information contained in the returns is not
readily available from another source.

See Buntzman v. Springfield

Redevelopment Authority, 146 F.R.D. 30, 32 (D. Mass. 1993).
In this case, there is at least a basis to argue that the
court should not deign to apply these considerations and should
instead summarily deny the motion on the ground that it is patently
untimely.
defendant
plaintiff

Indeed,
has

discovery

known

declined

since
to

ended

before

produce

a

full

then,
his

year

July

personal

ago

2016,
tax

and

the

that

the

records.

Regardless, the court finds that the defendant has not demonstrated
that the tax returns it seeks are relevant, or that it cannot
obtain the information from another source (assuming it has not
already

obtained

the

information

from

defendant

asserts

the

materials

it

has

income

the

received).
Specifically,

the

that

any

plaintiff has earned in connection with his various enterprises,
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which has allegedly been negatively impacted as a result of the
underlying incident, would be documented in the plaintiff’s tax
returns.

Thus, the defendant argues, the plaintiff’s personal tax

records are necessary in order to assess the credibility of his
claim regarding his alleged loss of earning capacity.

I do not

find this argument compelling.
As

the

plaintiff

explains,

he

filed

joint

rather

than

individual tax returns during the relevant period, meaning that
the records themselves would necessarily contain both irrelevant
but nonetheless sensitive records relating to the plaintiff’s
spouse.

Moreover, it appears that the sort of information th at

would be relevant to assess the plaintiff’s reported loss of
earning capacity has already been provided to the defendant.

The

plaintiff avers in his opposition that he previously provided the
defendant with federal corporate tax returns for each of his three
companies from 2007 to 2015, Roaring Brook Construction invoices
for services rendered from 2013 to the present, and copies of
Roaring

Brook

Construction

profit/loss

statements

supporting forms and other federal worksheets.

with

the

At no point does

the defendant challenge the proposition that these materials are
adequate and sufficient to allow it to assess the plaintiff’s
claimed loss of earning capacity.
In short, then, the defendant has filed a grossly untimely
motion which seeks to compel the production of sensitive tax
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records

of

questionable

relevance,

in

an

effort

to

collect

information which the defendant has not demonstrated it cannot
obtain (or has not already obtained) from other sources.

It

follows that the defendant has not met the weighty burden required
to obtain such personal information.
Conclusion
For the foregoing reasons, the defendant’s motion to compel
the plaintiff’s income tax returns is DENIED.

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

October 30, 2017

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