Umbach, Application of

• Decision Date: 01 March 1960
• Docket Number: No. 38539,38539
• Citation: 350 P.2d 299
• Parties: , 60-1 USTC P 9321, 1960 OK 50 Application of Paul H. UMBACH to Enforce Subpoena Duces Tecum Against A. L. Solliday.
• Court: Oklahoma Supreme Court

Page 299

350 P.2d 299

5 A.F.T.R.2d 1109, 60-1 USTC P 9321,

1960 OK 50

Application of Paul H. UMBACH to Enforce Subpoena Duces

Tecum Against A. L. Solliday.

No. 38539.

Supreme Court of Oklahoma.

March 1, 1960.

Syllabus by the Court.

Where an Oklahoma district court, upon the application of a defendant in a Colorado action, refused to issue an order compelling a person, under a subpeona duces tecum, and in connection with the taking of his deposition, to turn over to said defendant copies of his federal income tax returns for certain years for said defendant's possible discovery of information to assist him in defending the Colorado action, and, on said applicant's appeal to this court, it was not demonstrated that said tax return copies constituted 'writing or other thing' which, under Title 12 O.S.1951 § 387, said prospective witness was 'bound by law to produce as evidence', no valid ground for reversing the order appealed from was established.

Appeal from the District Court of Tulsa County; Lewis C. Johnson, Judge.

After application of Paul H. Umbach for an order of the District Court compelling A. L. Solliday to produce copies of his federal income tax returns for certain years, said court denied said application. After the overruling of his motion for a new trial, Umbach appealed. Affirmed.

White & Steele, Denver, Colo., Joe Francis, Tulsa, for plaintiff in error.

Hudson, Hudson, Wheaton & Kyle, Tulsa, for defendant in error.

BLACKBIRD, Justice.

This appeal concerns certain court proceedings instituted in the District Court of Tulsa County, as an aid to the discovery of certain facts or information for ostensible use in an action pending in the District Court in and for the City and County of Denver, and State of Colorado. That action in which Paul H. Umbach, the plaintiff in error here, is being sued by Stanolind Oil and Gas Company, is described in Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000.

Solliday, the defendant in error here, is not a party to the Denver action, but Umbach wants to inspect, or perhaps use, copies of Solliday's Federal Income Tax Returns as a possible aid to his defense in that case. Accordingly, he caused a Tulsa, Oklahoma, court reporter to issue a subpeona or a subpeona duces tecum, for the taking of Solliday's deposition at the latter's Tulsa residence on a certain date; and the subpoena directed Solliday to bring with him copies of his federal income tax returns for certain years, when he appeared to give the deposition. Solliday obeyed the subpeona to appear for the deposition with the specified tax return copies, but refused to allow Umbach, or his attorney, to inspect them.

After an order issued by the above mentioned Colorado trial court, was nullified on jurisdictional grounds in Solliday v. District Court, supra, and Solliday v. Umbach, 135 Colo. 500, 313 P.2d 1005, Umbach, hereinafter referred to as applicant, applied to the District Court within and for Tulsa County, Oklahoma, for an order requiring Solliday, an executive of Stanolind Oil and Gas Company (now known as Pan American Petroleum Corporation) hereinafter referred to merely as 'Stanolind', to produce the tax return copies for inspection by said applicant's attorneys. Said Oklahoma Court sustained a motion, filed by Solliday, to dismiss said proceedings, and after it had overruled Umbach's motion for a new trial, said applicant perfected the present appeal. His adversary herein, Solliday, will hereinafter be referred to as 'respondent'.

In support of the District Court's order and/or judgment of dismissal, respondent contends that his income tax returns are privileged, and, for that reason he cannot be compelled to allow the applicant to inspect them for discovery of information, or evidence, he might be able to use in defending himself against Stanolind's above mentioned Colorado action. The applicant, on the other hand, contends, in substance, that it is probable that inspection of respondent's copies of the specified tax returns might disclose, or lead to the discovery of, facts that would be relevant to his defense in the Colorado action, and, for this reason, the privilege contended for by the respondent does not apply, or exist, here.

In the opening statement under his 'Proposition 2', the applicant says federal tax returns are 'either privileged or non-priveleged by virtue of federal statute', but in his next sentence he speaks of this statute as granting such returns a 'limited privilege.' He says that this privilege is derived from Title 26, section 6103, of the U.S.Code; and that our decision in this case must be governed by federal court decisions relevant thereto. He represents that there are two conflicting lines of such decisions, and cites Connecticut Importing Co. v. Continental Distilling Co., D.C., 1 F.R.D. 190, as the ...