Opinion
Case No. 3:03CV7231.
January 14, 2005
ORDER
This is an FELA case in which the plaintiff has refused to provide some discovery sought by the defendant. Following a conference with the undersigned, which failed to resolve the dispute, the plaintiff filed a motion for a protective order, and the defendant filed a motion to compel.
Plaintiff claims he has sustained permanent neurological and neuropsychologicalinjuries and other physicalinjuries making himunable toperformhis usualactivities. He seeks damages for diminished earning capacity, lost future wages, and funds expended for care and treatment of his injuries.
The railroad seeks to discover records of plaintiff's bank and credit card transactions, investments, and ownership interests in business entities. This information, defendant claims, will provide probative evidence of plaintiff's ability to perform normal daily tasks.
Plaintiff states he has no interests in any business entities. This aspect of defendant's motion is, accordingly, moot.
Plaintiff claims the records are irrelevant. He contends that the railroad is merely trying to learnhis financial status, including his ability to withstand protracted litigation, for tactical reasons.
The requests in dispute are defendant's demand that plaintiff produce:
1. All documents pertaining to your savings, checking, or other bank accounts, whether held individually or jointly with any other person or on behalf ofany business entity, for the years 1998 through 2003, including but not limited to, bank statements, bank summaries, deposit slips and cancelled checks (or photocopies of the same).
2. All documents pertaining to any of your investments, whether held individually or jointly withany other person or on behalf of any business entity, for the years of 1998 through 2003, including but not limited to accounts of the investments.
3. All documents pertaining to any of your credit cards, whether held individuallyor jointly withany other person or on behalf of any business entity, for the years 1998 through 2003, including but not limited to statements and summaries.
4. Authorizations permitting the undersigned counsel to obtain all financial records referenced in paragraphs 1 through 4, supra, copies of which are provided with this request.
The defendant has already deposed the plaintiff with regard to his abilityto performdaily tasks. It claims, however, that the records:
will show precisely what activities Plaintiff has, in fact, participated in and the extent to which he is, in fact, able to perform usual daily activities. The records will show precisely what monies Plaintiff has, in fact, spent for the care and treatment of his injuries. The records are also probative on the issue of Plaintiff's cognitive abilities because they illustrate the type of activities Plaintiff performs on a daily basis.
(Doc. 82 at 5).
I agree with the plaintiff that the defendant has not shown that the records it seeks are relevant to its defense of the plaintiff's claim for damages resulting from his personal injuries. The defendant has not shown reason to believe that the plaintiff's testimony about the consequences of his injuries was false. Nor has the railroad shown, or even suggested, that the plaintiff is malingering, or otherwise exaggerating the extent and consequences of his injuries.
As the record now stands, therefore, the railroad has information about the plaintiff's injuries, medical treatment and prognosis, and restrictions on his daily and occupational activities. No doubt the railroad either already has its own expert assessments of plaintiff's prognosis and functional abilities, or is able to get such expert assessments.
This suffices, absent some reason to believe that plaintiff is testifying untruthfully, to enable the railroad to respond to the plaintiff's proof of damages.Pryinginto a plaintiff's private financialaffairs should require more thanthe simple assertionthat, ineffect, the defendant wants to find out whether there is some inconsistency between what plaintiff and his doctors are telling it and what his bank statements and credit card receipts might show.
I agree, in any event, with the plaintiff that the risk of tacticalimbalance is realand substantial. The defendant can assume that the plaintiff is in difficult financial straits. Precise knowledge of the severity of that difficulty could be used by the defendant to its advantage, either to seek to prolong the litigation or make an offer to settle that the railroad "knows he can't refuse."
I do not attribute such motives to defendant and its attorneys; but allowing them to get the information they seek in this case would create a useful, and potentially unfair, precedent for other defendants whose financial resources are vastly superior to those of individual plaintiffs.
The defendant has not shown that the records it seeks would be duly relevant to the issue of damages: i.e., whether plaintiff was injured as severely as he claims and what the effect of his injuries has been and will be onhis abilityto work and enjoylife. At most, the records at issue here might suggest that plaintiff was able to do and enjoy more than he claims. But any such suggestion would be oblique at best, and the records would not, in all likelihood, be direct proof of the extent of plaintiff's functional abilities.
On balance with such limited probative value, the risks to a plaintiff forced to reveal his personal financial information to the extent sought by the railroad do not justify granting the motion to compel.
It is, therefore,
ORDERED THAT plaintiff's motion for a protective order be, and the same hereby is granted; defendant's motion to compel be, and the same hereby is overruled.
So ordered.