Opinion
No. CV 054003332
March 25, 2008
MEMORANDUM OF DECISION RE MOTION TO REARGUE DISCOVERY DISPUTE AS TO THE PRODUCTION OF EXPERT WITNESSES' INCOME TAX DOCUMENTS
The plaintiff argues that the court's ruling on January 15, 2008, regarding the disclosure of certain expert witness tax documents, is contrary to Connecticut law. The plaintiff requests that the court vacate its previous order because there is law in Connecticut that is controlling on this subject.
The cases cited by the plaintiff are either Superior Court cases or Connecticut district court opinions. Although it is important to point out that these cases are only persuasive authority and are not binding on the court, it is even more crucial to note that these cases do not stand for the proposition that the court's prior ruling in this matter was incorrect or that there is "controlling" Connecticut law that the court missed. However, this court does find that there is a valid argument regarding whether notice was properly served on the experts, requiring them to produce their 1099s.
The legal standard for a motion for reconsideration and reargument is well settled. Practice Book § 11-12 states the procedures necessary for a party to file a motion to reargue. Practice Book § 11-12 states in relevant part that "(a) A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies . . . (c) The motion to reargue shall be considered by the judge who rendered the decision or order. Such judge shall decide, without a hearing, whether the motion to reargue should be granted. If the judge grants the motion, the judge shall schedule the matter for hearing on the relief requested." "[A] motion to reargue should be granted if the parties bring to the court's attention some important precedent that is contrary to the ruling of the court or if the court's ruling is based on erroneous facts," and should "not be used as an opportunity to have a `second bite of the apple' or to present additional cases or briefs which could have been presented at the time of the original argument." Dimitriou v. Department of Public Safety, Superior Court, judicial district of Hartford, Docket No. CV 357000 (August 20, 1993, Aurigemma, J.) [ 9 Conn. L. Rptr. 631]; see also Northwestern Mutual Life Ins. Co. v. Estate of Eileen Greathouse, Superior Court, judicial district of Stamford, Docket No. CV 164835 (June 27, 2000, D'Andrea, J.).
"The granting of a motion for reconsideration . . . is within the sound discretion of the court." (Internal quotation marks omitted.) Mangiante v. Niemiec, 98 Conn.App. 567, 575, 910 A.2d 235 (2006). "A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it . . . The trier has the power to undertake reconsideration that the trier believes to be warranted on equitable grounds . . . [A] reconsideration hearing involves consideration of the trial evidence in light of outside factors such as new law, a miscalculation or a misapplication of the law." (Citations omitted; internal quotation marks omitted.) Pedro v. Miller, Superior Court, judicial district of New London, Docket No. CV 07 0564838 (July 23, 2007, Hurley, J.T.R.) ( 43 Conn. L. Rptr. 805); see also Mangiante v. Niemiec, supra, 98 Conn.App. 567; Jaser v. Jaser, 37 Conn.App. 194, 203, 655 A.2d 790 (1995).
The plaintiff first argues that the court's prior ruling is "overkill" and will have a "chilling effect" on experts' participation in litigation. In support of this argument, the plaintiff cites to a few different cases. The first case is Opotzner v. Bass, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 96 025463 (December 30, 1998, Beach, J.) [ 23 Conn. L. Rptr. 565]. In Opotzner, the court ruled that the "[p]roduction of personal and corporate income tax returns and 1099 forms is not required. Although there arguably is some relevance to the information, there is also an expectation of confidentiality in tax returns which is not to be lightly ignored." The court's prior ruling in this case is not inconsistent with Opotzner, rather in the prior ruling the court noted that "[a]lthough the production of an expert's financial records is important in terms of bias, exposing an expert's financial background must be done with caution because of the evidentiary dangers of relevance and undue prejudice." Further, the court stated that "it is wise to inquire whether the requesting party has any reason to believe that the expert will not answer compensation questions on cross-examination, what exactly the requesting party is seeking, why the requesting party is seeking the information and if there is some necessity requiring the production of such documents."
The prior ruling in this case was not taken "lightly" and a great deal of thought and care was taken in the decision rendered. Further, it is important to note that Opotzner does not articulate that the court cannot order the production of certain expert witness documents, but that in that particular case it was not necessary and the court recognized the importance of confidentiality in such tax records.
The plaintiff also cites to Olah v. Brooklawn Country Club, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 4007312 (November 5, 2007, Ronan, J.T.R.) [ 44 Conn. L. Rptr. 413], arguing that Connecticut courts have been unwilling to allow discovery of private tax information even when directed to a party rather than to a non-party, as is the case here. In Olah, the defendants requested that the plaintiff produce all of her 2004 and 2005 tax returns and 2004 and 2005 cellular and telephone records, as well as her personal computer for inspection to retrieve relevant documents. Id. The plaintiff was willing to produce the first page of her tax return, but objected to having to produce the remaining materials because it was irrelevant, personal and confidential. Id. Further, the court states that "Connecticut courts have shown a reluctance to require production of tax returns even when the information is relevant." Id. The court then ordered that the plaintiff's objection be sustained, except with regard to the first page of the tax return. Id. The court decided that the information could be obtained by way of deposition or interrogatory. However, in the present matter, the court noted that if there is "reason to believe that the expert will not answer compensation questions on cross-examination," as long as the court balanced the possible prejudices with the importance of exposing bias, the expert's 1099s could be discoverable.
The plaintiff next cites to Karawoski v. Rappa, 25 Conn.Sup. 147, 148, 198 A.2d 226 (1964), which held that "[u]nless is appears that the required information cannot be obtained through other reasonably available sources, a litigant should not be required to produce copies of income tax returns, many of which contain information entirely irrelevant to the matter under inquiry." Although this opinion is not binding on other Superior Court judges, the opinion expressed in Karawoski is not inconsistent with the prior ruling in this case, as explained above
The plaintiff also cites to a few different Connecticut District Court opinions, in which it is contended that the courts determined that a request for tax information for impeachment purposes has a "chilling effect" or that such requests are "overkill." Again, however, these cases do not stand for the proposition that the court's prior decision was incorrect, or that based on the court's reasoning, the prior ruling was incorrect.
See plaintiff's motion for reconsideration and reargument for cases cited.
For instance, in Sullivan v. Metro North R.R., United States District Court, Docket No. 3:05cv665 (AHN) (D.Conn. December 3, 2007), to which the plaintiff cites, the court determined that based on the federal rules of practice, there is nothing that prevents a court from ordering the production of an expert's tax return; however, the court did not do so because it was determined that in that case, it would be overkill. The court did, however, note that the defense could pursue a line of questioning regarding the expert's financial information on cross-examination or at a deposition. Id. Further, the court stated that as long as the expert fully answered all of the questions concerning his finances with regard to testifying as an expert at his deposition, there was no need to produce tax returns. Id. This, again, is consistent with the court's prior ruling that tax returns are discoverable if there is reason to believe that the expert will not answer questions of compensation on cross-examination or at his or her deposition.
The plaintiff does make one last argument that needs to be addressed, specifically, that both the trial court and the plaintiff lack authority to compel the nonparty experts to disclose their 1099s because the defendant's discovery was not by way of a subpoena. In support of this argument, the plaintiff cites to Norrie v. The Bristol Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 97 0158146 (May 25, 2001, Sheldon, J.) ( 29 Conn. L. Rptr. 509), which holds that no "expert witnesses can lawfully be required to produce any documents or materials at his deposition unless he is served with a subpoena duces tecum . . . under Practice Book § 13-28(c). That is because . . . the less formal procedure of including production requests in a deposition notice is only applicable to the deposition of a party under Practice Book § 13-27(g)." Both Dr. Gary Drakes and Larry Foreman, the experts relevant to this matter, were each served with a notice of deposition, in which the plaintiff was requested to produce the expert's 1099s at the time of the deposition. According to the Practice Book and Norrie, a notice of deposition is not proper in this circumstance; rather, the experts should have been served with a subpoena duces tecum pursuant to § 13-28(c). This last reason supports the granting of the motion for recononsideration/reargument on this one issue.
Practice Book § 13-28(c) provides in relevant part that "[a] subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of the examination permitted by Sections § 13-2 through § 13-5."
Practice Book § 13-27(g) provides that "[t]he notice to a party deponent may be accompanied by a request made in compliance with Sections 13-9 through 13-11 for the production of documents and tangible things at the taking of the deposition. The procedure of Sections 13-9 and 13-11 shall apply to the request."
This is not a matter than can be determined without a hearing. Whether the motion for reconsideration is granted does not mean that the court automatically accepts the movant's arguments; rather, it gives the parties an opportunity to prepare for a hearing in which the judge will hear the issue in question and then make a determination.
CONCLUSION
The court finds that with the exception of Norrie v. Bristol Hospital, supra the cases cited by the plaintiff are not a sufficient basis upon which the court may grant the motion for reconsideration/reargument.
However, pursuant to the requirement of Practice Book Section 13-28(c) and the reasoning articulated in Norrie v. The Bristol Hospital, supra, the plaintiff's Motion for reargument and reconconsideration is granted. Reargument shall focus on the narrow issue of whether the notice calling the experts to produce their 1099s was properly served.
Accordingly, reargument is scheduled in this court at short calendar on Monday, March 31 at 9:30 a.m.