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Wilkerson v. Newark Diner, Inc.

Superior Court of Delaware, New Castle County

August 24, 1961

Julian WILKERSON, Plaintiff,
NEWARK DINER, INC., a Delaware corporation, t/a Delaware White Sales & Service Co., and also t/a Delaware Truck Center, Defendant.

Abraham Hoffman, of Hoffman & Hoffman, Wilmington, for plaintiff.

Samuel R. Russell, of Morford, Young & Conaway, Wilmington, for defendant.

LYNCH, Judge.

Plaintiff alleges that he delivered a diesel truck to defendant on January 27, 1960 to be repaired; that defendant repaired and serviced the truck and returned it to plaintiff; and that when plaintiff operated it he found it had not been properly repaired. The complaint alleges that the motor 'was completely ruined by * * * faulty repairs', resulting in damage to the truck in the sum of $5,000. Plaintiff claimed additional damages for loss of use

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of the truck in the period from January 31, 1960 to July 15, 1960, at the rate of $190 per week, or a total of $4,560, basing his claim for these damages on a lease agreement of the truck made by plaintiff with Webb's Transfer, Inc.; plaintiff claimed he could not carry out the lease agreement because defendant had damaged the truck's engine. Defendant admitted in its answer that plaintiff delivered a truck to it for repairs, but otherwise it denied all the charges made in the complaint.

Defendant moved for an order 'requiring plaintiff to produce and permit defendant to inspect and copy the plaintiff's federal income tax returns for the years 1958, 1959 [53 Del. 580] and 1960.' An affidavit, submitted with the motion and made by defendant's attorney, stated that these returns 'will tend to support or contradict' the allegation in the complaint regarding loss of income, pursuant to the lease agreement. Defendant argues it was plaintiff's duty to minimize his damages and it contends that the income tax returns will show if plaintiff has fulfilled this duty.

Plaintiff, opposing defendant's motion to produce, states in his brief that plaintiff did not work for Webb's Transfer Service, Inc., during 1958; that plaintiff has furnished a photocopy of Webb's 1959 information returns, as filed by that company with the Internal Revenue Service, and proposes to make a photocopy of Webb's 1960 information return available to defendant. Defendant rejects plaintiff's offer of production of the information returns of Webb's Transfer, Inc., as 'essentially meaningless', insisting that the income tax returns will show whether he took trips for some other employer or whether he earned income from some totally different occupation during the period alleged. It is to be kept in mind that plaintiff's claim for these damages is limited to the period of January 31, 1960 to July 15 of the same year.

It would have been better practice for the plaintiff to have filed a verified response to defendant's motion to produce, describing the information he had tendered defendant and what it showed, rather than to have argued it as facts in his brief. Since defendant has conceded as true what plaintiff argues in his brief there is no reason to delay decision of the motion to produce.

'Good cause' must be shown, Empire Box Corp. v. Illinois Cereal Mills, 1952, 8 Terry 283, 90 A.2d 672, before a Court will order a party to submit his records to his adversary to be inspected and copied. 'Good cause' is not shown when it appears that movant can obtain the information sought through other available discovery means or methods[53 Del. 581] than by a motion to produce. Thompson v. Hoitsma (Olson Co., Inc.), D.C.N.J.1956, 19 F.R.D. 112, 114. In the cited case the Court noted----

'* * * deposition discovery [as is discovery through interrogatories] is obtainable even without the showing of good cause. Inspection discovery under F.R.C.P. 34 is obtainable only upon the 'showing good cause therefor'. In other words, the deposition method is the normal one, always available. The inspection method is the less usual one, only available on cause shown. * * *. When a party has another discovery method readily available, he ordinarily, and here, lacks 'good cause' for using another method, only available upon 'good cause' and ordinarily only usable to obtain matters evidential per se, * * *.'

Garrett v. Faust, D.C.E.D.Pa.1949, 8 F.R.D. 556, 557, involved a motion for production of income tax records. The motion for production was denied since it appeared that movant obtained the desired information by answers to interrogatories.

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I observe here, as did Judge Hartshorn, the author of the opinion in Thompson v. Hoitsma (Olson Co., Inc.), that income tax returns usually are not 'evidential per se'; if not 'evidential per se' production and inspection of income returns or records or a document should not ordinarily be ordered [1] ,--unless some other good reason is established showing that inspection of the return or the records or the document will lead to other relevant evidence.

[53 Del. 582] I seriously doubt that defendant has or can show the required factor of 'good cause' which is an essential requisite to a Court's granting a motion to produce all the income tax returns sought to be inspected by defendant. Since plaintiff states he was not doing business with the Webb firm in 1958, there appears no basis whatsoever for the Court to order plaintiff to produce his 1958 return.

Upon analysis of the fact situation presented there is no reasonable hypothesis shown demonstrating how and why the 1958 and/or 1959 returns would be relevant or lead to relevant testimony, since there is no claim ...

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