Plаintiff appeals as of right the dismissal with prejudice of his complaint for his failure to comply with a discovery order directing the production of plaintiffs joint tax returns. We affirm.
Plaintiff filed the underlying suit against defendants in April 1988, alleging wrongful discharge from his employment at J. Walter Thompson U.S.A., Inc. Because plaintiff claimed lost wages as part of his damages, defendants asserted that plaintiff’s actual efforts to mitigate those damages were crucial to their trial preрaration. In an attempt to learn the full extent of plaintiff’s earnings, defendants, on January 11, 1989, served plaintiff with a request for production of documents, including рlaintiff’s tax returns for the years 1983 through 1988. On April 26, 1989, plaintiff responded to the request by refusing to produce any tax returns, claiming that he and his wife filed joint returns and that his wife’s incоme was confidential. Plaintiff did, however, provide some documents which he asserted were a summarization of his income disclosed in his federal, state, аnd municipal tax returns. This summarized tax information was for some, but not all, of the years covered by defendants’ request.
Defendants offered plaintiff a protective order to eliminate any concerns plaintiff might have about the confidentiality of his wife’s income. Nevertheless, plaintiff still refused to produce the tax returns. As a result of plaintiff’s failure to comply with the request, defendants filed a motion to compel production pursuant to MCR 2.313(A). At the May 12, 1989, hearing on the motion, plaintiff reiterated his argument that his wife’s income was
Plaintiff did not seek rehearing of the trial judge’s May 12, 1989, order to produce the tax returns, nor did plaintiff seek leave to appeal to this Court. However, plaintiff still did not comply with the May 12, 1989, order to produce the tax returns. Therefore, defendants filed a motion for sanctions pursuant to MCR 2.313(B). At a June 2, 1989, hearing on defendants’ motion, plaintiff argued for the first time that his wife had possession of the tax returns and that he was unable to obtain them. At the conclusion of the hearing, the trial judge assessed plaintiff $1,000 in сosts for plaintiff’s failure to comply with the order of production and ruled that the case would be dismissed if plaintiff did not produce the tax returns within seven days.
By the expiration of the seven-day deadline, plaintiff had not complied with the court’s order. On June 14, 1989, plaintiff filed with this Court an application for leave tо appeal from the trial court’s June 2, 1989, order. Meanwhile, on June 19, 1989, seventeen days after the trial court threatened plaintiff with dismissal of his case, the trial judge entered a final order, dismissing plaintiff’s complaint with prejudice because of his failure to produce the tax returns by June 9, 1989. Plaintiff then appealеd as of right the final order to this Court.
On appeal, plaintiff argues that the trial court erred by imposing the drastic sanction of dismissal. Plaintiff maintains that the court neither considered the range of sanctions available nor tailored an appropriate sanction under the circum
Failure to comply with a discovery order is a ground for dismissal where the noncompliance is wilful. Edge v Ramos,
Upon review оf the present case, we find no abuse of discretion. In support of his argument that the tax returns should have been produced for an in camera hearing, plaintiff cites Fassihi v St Mary Hosp of Livonia,
Plaintiff’s bad faith is revealed by his eleventh-hour claim that he could not comply with the original order compelling production because the tax returns were in the possession of his wife, who refused to release them to him. Pursuant to 26 USC 6103(e)(1)(B), the income tax return of a person filing jointly shall, upon written request by that person, be open to inspection by or disclosure to him or any designated person. Courts have established that a party’s right to inspect and reproduce copies of his own tax records vitiates a claim that income tax records not under his immediate control need not be produced in civil litigation. Rhodes v Edwards, 178 Neb 757;
We also note that, contrary to plaintiff’s assertion, production of the tax returns would not be cumulative of material that plaintiff has already produced. Finally, we find that the trial court did in fact explore alternative sanctions, including the imposition of costs, which proved ineffective. The trial court gave plaintiff ample opportunity to producе the returns, which plaintiff failed to do.
We conclude that the trial court did not abuse its discretion in dismissing plaintiff’s case where defendants’ attempts to discover information vital to a proper defense of the case were frustrated, where the noncompliance was not inadvertent, and where the imposition of alternate sanctions would not have deterred plaintiff from continuing his dilatory course of conduct. Bellok v Koths,
Affirmed.