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During the litigation of a personal injury claim, the issue of earnings/wage loss arises on a routine basis.  These types of losses can make up a substantial portion of a case, and it is an area that is thoroughly explored by attorneys on both sides.

The attorneys representing the defendants in these cases usually have only two main ways to get information about a plaintiff’s earnings losses: directly from the plaintiff by means of interrogatories and requests for production of documents; and directly from the plaintiff’s employer(s) by means of a subpoena.

A subpoena, formally known as a deposition subpoena for the production of business records, is a document that orders or requires a recipient to provide documents to the issuing party.  There are various technical requirements that must be followed in order for the subpoena to be valid.

Employment records can contain quite a bit of information that many would consider private and confidential, such as social security numbers, tax records, paystubs, insurance benefits, and even things like wage garnishments for unpaid debts or child support.  Many people are shocked when they find out that their employers have been served with subpoena.

Here at Heiting & Irwin, we have a reputation for aggressively protecting our clients’ rights to privacy and confidentiality. One of the ways we enforce these rights is by making legal challenges to the subpoenas that are issued to our clients’ employers.  In addition to ensuring the technical requirements for a subpoena have been met, we also make efforts to ensure that the employment records and information is disclosed only to the extent that it is necessary to the litigation.  Sometimes, we are able to arrive at an agreement with the defense attorneys about the specific documents that the subpoena requests.  Other times, we have no choice but to turn to the Courts for assistance in enacting those limitations.

One such restriction prohibits the disclosure of tax records such as W-2’s, 1099’s, and W-4’s.  Taxpayers are privileged to withhold disclosure of copies of both their federal and state tax returns and the information contained therein. The privilege is implied from the policy of confidentiality re: state income tax returns expressed in Rev. & Tax.C., Section 19542.  Webb v. Standard Oil Co. of Calif. (1957) 49 Cal. 2d 509, 513-514.  This privilege extends to other documents or information that are an “integral part” of the tax return – such as W-2 forms (withholding tax statements received by the taxpayer from employer, showing earnings).  Brown v. Sup.Ct. (Executive Car Leasing) (1977) 71 Cal. App. 3d 141, 142.

An experienced attorney understands that the burden is on the Plaintiff to substantiate any claim for losses with competent evidence.  However, at our firm, this does not mean simply allowing a defense firm to run roughshod over our clients’ privacy rights.  We routinely hear opposing attorneys remark that “no one ever objects to these” subpoenas, and we think that is a shame.  There are other ways to provide evidence of a plaintiff’s lost wages, and we don’t mind investing the extra time and attention needed to ensure that the claims are proven while at the same time balancing the privacy rights of the injured party.

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