Alan Schorr’s Case of The Week ending February 8, 2013

Fik-Rymarkiewicz v. University of Medicine and Dentistry of New Jersey, 2013 WL 451889 (App. Div. February 7, 2013) (unpublished)

The Appellate Division continued its punishment of contumacious plaintiffs represented by less than fully competent counsel in its decision in Fik-Rymarkiewicz v. University of Medicine and Dentistry of New Jersey. In this case, the Trial Court has dismissed the plaintiff’s case with prejudice following the plaintiff’s refusal to cooperate with discovery and to comply with the Court’s orders. What we are left with is a classic case of bad facts making bad law. It is frustrating to see these kinds of decisions, especially because it appears from the facts and procedures set forth in this decision that this incredibly bad result was completely avoidable.

Ewa Fik-Rymarkiewicz was a post-doctorate fellow with UMDNJ from 2000 through her termination in 2006. Ms. Rymarkiewicz filed suit after her termination under the NJ Law Against Discrimination, alleging that the termination was the result of pregnancy discrimination and retaliation for filing an internal discrimination. During the litigation, Ms. Rymarkiewicz repeatedly refused to produce her tax returns or to answer deposition questions regarding her tax returns. The Court ordered the plaintiff to produce the tax returns for emotional distress purposes. One of the reasons given by Ms. Rymarkiewicz was that her husband’s income should have no relevance to lawsuit, but she also testified that her husband did not work and had no income, so there was an argument that the tax returns, therefore, were solely her own income.

Her attorney claimed that he had no control over the plaintiff, and that he explained to his client the potential dangers of not producing the tax returns. Nevertheless, the Court continued to order her to produce the records, and she refused. Then she said that she shredded all tax returns from the time she was working and refused to produce the later tax returns from after her employment, claiming them to be irrelevant. She further refused to sign authorizations permitting the Defendants to get the tax returns from the IRS. The case was dismissed with prejudice pursuant to R.4:23-5(a)(2), and the Appellate Division upheld.

The sad part about this case is that with proper advocacy the plaintiff should not have been required to produce her tax returns at all, and, at the very worst, an application could have and should have been made for an in camera review, especially if the purpose for the returns was to check the plaintiff’s credibility regarding her husband’s lack of work. The disclosure of a litigant’s tax returns should only be ordered for good cause. See Campione v. Soden,150 N.J. 163, 189-90 (1997); Ullmann v. Hartford Fire Ins. Co., 87 N.J.Super. 409, 415 (App. Div. 1965); Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 343 (1993) (recognizing that normal rule favoring extensive discovery is tempered by litigants’ interest in maintaining confidentiality of financial status). “If disclosure will not serve a substantial purpose it should not be ordered at all.” Ullmann. at 415-16, 209 A.2d 651; see also Pressler, Current N.J. Court Rules, comment 2 on R. 4:18-1 (1996) (noting that discovery of income tax returns continues to be governed by Ullmann).

Neither the Trial Court nor the Appellate Division addressed any of these well-established legal principles, presumably because the parties never raised nor argued these principles. For that reason, this unpublished opinion should not be read to be changing the law on discovery of tax returns, but it is another example of the Appellate Division taking no pity on parties and their counsel that is less than diligent.

Plaintiff/Appellant’s counsel: George M. Szymanski.

Defendant Respondents’ counsel: Noreen P. Kemether, DAG; (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Kemether,
on the brief) for UMDNJ.

William P. Flahive for Defendant Sharma.

Michael A. Armstrong for Defendant Duda.

Appellate Judges: Parrillo, Fasciale and Maven.