NEIL LANGENBACH et al. v. ALUM-A-POLE CORPORATION et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4206-05T3

NEIL LANGENBACH and

CAROL LaBIANCA, his wife,

Plaintiffs-Appellants,

v.

ALUM-A-POLE CORPORATION and NATIONAL

BUILDING SUPPLY CORPORATION,

Defendants-Respondents.

______________________________________

 

Submitted September 27, 2006 - Decided October 27, 2006

Before Judges Wefing and C.S. Fisher.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

No. ESX-L-7414-04.

Gill & Chamas, attorneys for appellants

(Peter Chamas, of counsel; Erroll J. Haythorn,

on the brief).

Murphy & O'Connor, attorneys for respondents

(Kevin P. McCarty, of counsel and on the

brief).

PER CURIAM

Plaintiffs appeal pursuant to leave granted from a trial court's discovery order entered March 7, 2006. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Plaintiffs filed suit on September 14, 2004, seeking damages for injuries plaintiff Neil Langenbach suffered on October 30, 2003. Langenbach was in the business of installing siding and windows. He was injured when he fell fifteen to twenty feet from a scaffold while installing vinyl siding on a residence. He alleged he fell when the rubber strap on the pump jack he was operating broke. The pump jack was manufactured by defendant Alum-A-Pole Corporation; Langenbach purchased it at defendant National Building Supply Corp. Langenbach was hospitalized for three weeks following his fall and spent nine weeks in a rehabilitation facility. He underwent several surgeries and can no longer move his left ankle.

Langenbach conducted his business as Langenbach Siding Company. He was the company's sole employee. Although Langenbach obtained some of his jobs through his own efforts, more than ninety percent of his work came through another contractor, Leddy Siding.

At the time of his fall, Langenbach was working on one of his own contracts, and he was paid a total of $7,250 for the work he performed. Prior to his deposition in September 2005, Langenbach supplied copies of his tax returns for the years 1999 to 2004. During his deposition in September 2005 Langenbach was asked whether he ever received any income without reporting it to the Internal Revenue Service, and he responded he had not. An examination of the 2003 tax return, however, revealed that plaintiffs had not reported the $7,250 paid for Langenbach's last job.

After Langenbach's deposition was concluded, defendants served a second supplemental notice to produce documents in which they requested, among other items, copies of plaintiffs' tax returns for the years 1993 through 1998, together with copies of any W-2's and 1099's received. Defendants also served a subpoena seeking copies of plaintiffs' banking records for the past ten years.

Plaintiffs notified defendants that they were withdrawing any claim for lost income and thus declined to provide this requested financial information. Plaintiffs filed a motion to quash the subpoena, and defendants filed a cross-motion to compel their compliance. Plaintiffs have appealed from the order granting defendants' motion.

Defendants repeat to us the argument they presented to the trial court: they wish to examine these financial records in connection with challenging Langenbach's credibility. They dispute the circumstances of the accident and contend that their expert has concluded that the strap plaintiffs point to as defective was cut with a knife after the accident occurred. They assert that plaintiffs' failure to include reportable income on their tax returns, combined with Langenbach's assertion at his deposition that he reported all of his income on his tax returns, support their contention that he has misstated how this accident occurred.

Having examined this record, we are satisfied that defendants are not entitled to the sweeping discovery they seek. Although New Jersey is committed to broad pretrial discovery as an aid to ascertaining the truth, Harmon v. Great Atlantic & Pacific Tea Co., 273 N.J. Super. 552, 556 (App. Div. 1994), New Jersey also recognizes that special considerations come into play when the discovery sought relates to parties' tax returns and allied financial information. More than forty years ago, this court set down basic parameters governing such discovery.

"[T]he production of tax returns should not be ordered unless it clearly appears they are relevant to the subject matter of the action or to the issues raised thereunder, and further, that there is a compelling need therefor because the information contained therein is not otherwise readily obtainable."

The average taxpayer is sensitive about his return and wishes to keep it from publication. He is entitled to that privacy unless there is a strong need to invade it. If disclosure will not serve a substantial purpose it should not be ordered at all.

[Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409, 415-16 (App. Div. 1965) (quoting Cooper v. Hallgarten & Co., 34 F.R.D. 482, 483-84 (D.C.S.D. N.Y. 1964).]

Similar respect is accorded general financial records such as defendants sought to acquire through a subpoena to plaintiff's bank. Harmon, supra, is illustrative. Plaintiffs in that case were former employees of defendant who, following their termination, filed suit alleging age discrimination under the Law Against Discrimination, N.J.S.A. 10:5-1 to -42. 273 N.J. Super. at 553. Plaintiffs contended that following their termination, they suffered such emotional distress they were unable to engage in their normal activities. Id. at 555. Defendant sought production of their check registers and bank statements to test the credibility of these assertions. We reversed the trial court's order granting such discovery, noting that if plaintiffs were "compelled to hand over the records of their banking and credit card transactions, their entire personal lives [would be] open to scrutiny." Id. at 558. We held that such "intrusions . . . into the personal records and documents of the plaintiffs are, on balance, unwarranted." Id. at 557.

In our judgment, ordering that plaintiffs make available to defendants ten years of tax returns does not serve a "substantial purpose" in the context of this litigation. That is particularly so when defendants already have those tax returns for the last five years and Langenbach's testimony at his deposition. When plaintiffs waived any claim to damages for lost income, further discovery into plaintiffs' tax returns and financial records lost its relevancy. Campione v. Soden, 150 N.J. 163, 190 (1997); Morgan v. Union County, 268 N.J. Super. 337, 368-69 (App. Div. 1993).

The order under review is reversed, and the matter is remanded to the trial court for further proceedings. We do not retain jurisdiction.

 

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A-4206-05T3

October 27, 2006