• 4 With respect to plaintiff's assertion that defendant suffered no actual prejudice, we note that "when the income of a litigant is an issue in the case, the opposite party has the right to ascertain, by discovery process, the relevant facts as they were disclosed to the government for tax purposes." ( Hawkins v. Potter (1963), 44 Ill. App.2d 314, 316, 194 N.E.2d 672. Also see Freehill v. DeWitt County Service Co. (1970), 125 Ill. App.2d 306, 321, 261 N.E.2d 52.) Plaintiff does not question this principle but states that the secondary evidence he presented in the form of a W-2 form for 1976 and a check stub for 1975 sufficed as substitutes for the requested forms.
It is indisputable that the defendants were entitled to Zuetlau's tax returns, as these documents would have provided additional financial details, such as net income, necessary to effectively cross-examine Zuetlau, and would have assisted the jury in calculating the appropriate amount of lost wages. See Hawkins v. Potter, 44 Ill. App. 2d 314, 316 (1963) (when a party's income is at issue, the opposite party has the right to ascertain the relevant facts as they were provided to the government for tax purposes). Moreover, the defendants' initial request for the tax returns was filed more than two years before trial, and the motion in limine to bar the wage loss claim was served on Zuetlau more than one month in advance of trial.
Where a plaintiff asserts a loss of earnings or a loss of earning capacity claim, the courts have concluded that discovery of the plaintiff's federal income tax returns is permitted only insofar as those returns are relevant and material to the issues of the case. See Hawkins v. Potter, 194 N.E.2d 672, 673 (Ill.App.Ct. 1963); Schlatter v. Eighth Judicial Dist. Court, 561 P.2d 1342, 1343-44 (Nev. 1977); Currier v. Allied N.H. Gas Co., 137 A.2d 405, 407 (N.H. 1957); Mandell v. Yellow Cab Co., 170 N.E.2d 296, 301 (Ohio Ct. Com. Pl. 1958); Matchen v. McGahey, 455 P.2d 52, 56 (Okla. 1969); Novogroski v. O'Brien, 261 A.2d 283, 285 (R.I. 1970); Martin v. Jenkins, 381 S.W.2d 115, 119 (Tex.Civ.App. 1964); Maresca v. Marks, 362 S.W.2d 299, 301 (Tex. 1962). If the tax returns contain information which is not relevant or material to the plaintiff's claims, the trial court has discretion to redact the irrelevant or immaterial portions. See Currier, 137 A.2d at 407; Bauer v. Huber, 487 N.Y.S.2d 303, 304 (N.Y.Sup.Ct. 1985); Matchen, 455 P.2d at 56; Martin, 381 S.W.2d at 119.
Where a litigant has put in issue his income, the privilege from discovery of his income tax returns is waived. Hawkins v. Potter, 44 Ill. App.2d 314, 194 N.E.2d 672 (4th Dist 1963); Wigington v. Faulkner, 51 Ill. App.2d 220, 201 N.E.2d 252 (4th Dist 1964) (abst). Since these returns were subject to discovery, they were available for impeachment or refreshment purposes.
We have reviewed the cases cited by defendant in which the penalty imposed was dismissal of the complaint, or striking the answer. In Hawkins v. Potter, 44 Ill. App.2d 314, 194 N.E.2d 672, the court dismissed the complaint when plaintiff refused to obey a court order to answer interrogatories. In Chavez v. Elgin, J. E. Ry. Co., 32 Ill. App.2d 68, 176 N.E.2d 664, plaintiff did not appear at a deposition, did not appear at a motion to dismiss and did not answer interrogatories for eight months, did not seek a modification of the dismissal in thirty days, although the order was printed in the Chicago Daily Law Bulletin and stated in the petition under section 72 that the dismissal was for want of prosecution instead of the above failures to respond to discovery procedures.