Paul L. Caron

Saturday, March 31, 2007

The Qualified Privilege Against Discovery of Federal Income Tax Returns

SsrnCharles S. Stein (J.D. 2007, Pittsburgh) has posted The Qualified Privilege Against Discovery of Federal Income Tax Returns on SSRN.  Here is the abstract:

Federal courts have long struggled with the question of whether, and to what extent, they will grant the request of a litigant who is seeking the discovery of an opponent's income tax returns. A generation ago, William Edmunson traced the development of a “qualified privilege,” which provides some protection to taxpayers. Edmunson argued against this privilege, as the relation between taxpayer and IRS does not satisfy Wigmore's principle that Evidentiary Law should only recognize a privilege where the communications are intended to be confidential, as it is well-understood that the IRS may share tax information with other government agencies. Nevertheless, courts have continued to recognize and develop such a privilege, though a consensus for a precise test continues to elude the courts.

While an absolute privilege would violate Wigmore's principle, this Note suggests that a qualified privilege is not a new right so much as a combination of two rights the parties already had, as expressed in Federal Rules of Civil Procedure 26(b)(1) and 26(b)(2)(i): the policy of allowing broad discovery while protecting parties from abuse.

This Note provides a brief background of the development of the qualified privilege within Federal case law, analyzes several difficult cases, discusses whether there should be a mandate of uniformity among the judges of a given district court, and discusses whether any circuit court has established a standard. Of special value to litigators, the author reviews, tabulates, and summarizes the current practice of the 94 federal district and territorial courts.

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