In a civil liability case, the Oklahoma Discovery Code allows discovery of information regarding liability insurance policies, including the amount of the coverage available to satisfy all or part of a judgment. 12 O.S. § 3226(B)(1)(b); and see Tuller v. Shallcross, 1994 OK 133, 886 P.2d 481, 484-485 (holding that the Oklahoma Discovery Code allows discovery of information concerning liability insurance policies), overruling Carman v. Fishel, 1966 OK 130, 418 P.2d 963, which had previously denied disclosure of insurance information to facilitate settlement. Part of the rationale for this rule is to facilitate settlement and apprise the plaintiff of the ability of the defendant to satisfy a judgment. (See Hodges dissent in Carman, supra, “In my opinion, complete disclosure of insurance information would facilitate, not hinder, the settlement of lawsuits prior to trial … If an injured party is to be adequately prepared for settlement discussions he must be apprised of the extent and ability of the defendant to satisfy a judgment.”(emphasis added)). Accordingly, a plaintiff in a civil liability lawsuit in Oklahoma should be entitled to seek and obtain pre-trial discovery disclosure of a defendants financial condition including insurance coverage and tax returns, particularly where the trial court has taken steps to protect privacy of the defendant by ordering production of such information pursuant to a protective order.

In Lin v Reisman, et al, CJ-2018-90 in the Oklahoma District Court of the State of Oklahoma, and see Case No. MA-117941 in the Supreme Court of the State of Oklahoma, Plaintiffs filed a civil lawsuit against Defendants out of an automobile accident, alleging negligence and negligent entrustment, seeking punitive and other damages. Plaintiffs submitted pre-litigation demands in excess of the liability coverage. During discovery, Plaintiffs requested production of the Defendants’ tax returns, in addition to the production of the subject liability policy and declaration pages of GEICO. Following a Motion to Compel, the trial court ordered the production of Defendants’ tax returns subject to a Protective Order, approved as to form by Defendants’ counsel. Defendants subsequently filed a Petition for Prohibition and Mandamus to the Oklahoma Supreme Court.

In briefing to the Oklahoma Supreme Court, and during a hearing, Plaintiffs argued that Defendants’ Petition should be denied, and the trial court’s Order affirmed, because the subject financial information relates to Defendants’ ability to satisfy a judgment, pursuant to the authorities above. Plaintiffs also argued that Oklahoma law authorizes production of tax returns during pre-trail discovery regarding punitive damages, citing YWCA of Oklahoma City v. Melson, 1997 OK 81, ¶¶18-22, 944 P.2d 304, 309-310, citing 12 O.S. §§ 3226, 23 O.S. § 9.1. “Pretrial discovery of a defendant’s financial condition serves to protect the uninterrupted continuity of the trial process and a smooth transition into the punitive-damages stage.” Id. ¶18, at 310. The Court has overruled the old practice of prohibiting discovery of financial information before the exemplary stage at trial. “The Discovery Code gives no support for setting apart the process of discovery for exemplary-damages proof as a separate disclosure rubric.” Id., ¶17, at 309, citing, 12 O.S. § 3226(C). Plaintiffs argued that the Court in YMCA effectively overruled Cox v. Theus, 569 P.2d 446 (Okla. 1977), with YMCA holding “Section 3226(B)(1) of the Code allows pretrial discovery of unprivileged material relevant to the issues in the case.” YMCA, ¶25, at 312.

The Court in YMCA further held at paragraph 24, page 311 (emphasis original):

A plaintiff’s pretrial quest for financial information from the defendant (to be used in a § 9.1 punitive-damages phase of the trial) should be decided in a § 3226(C) adversary hearing that is to consider the opposing litigant’s quest for protection. The plaintiff’s right to prepare for trial and to avoid delay in the evidentiary process should be balanced against the defendant’s legitimate claim to privacy. [Footnote omitted.] An in camera inspection of the documents sought to be withheld from discovery or from public disclosure is the preferred way to protect the interests of both parties. [Footnote regarding procedure for in camera inspection omitted]

The party opposing discovery has the burden to show “good cause” to support their objections, and they have the burden to request an in camera inspection. Id., at ¶22, 310-310, and ¶24, at 311, footnote 42. Placing documents under seal, not to be opened by litigants before trial, is not an absolute requirement, particularly when an in camera inspection was not requested. Id. ¶15, at 309, and ¶24, at 311, footnote 42.

In opposition to Defendants’ Petition, Plaintiffs also argued that the Defendants’ Petition was untimely, frivolous, and that Defendants failed to challenge the related Protective Order and accordingly waived their objections to the basis for the trial court’s order of production. Defendants argued, among other things, that Cox had not been overruled by YMCA.

After setting a briefing schedule, and oral presentation of arguments, on June 3, 2019, the Oklahoma Supreme Court denied Plaintiffs’ application to assume original jurisdiction. The Trial Court’s Order compelling the production of Defendants’ tax returns was thus enforced.

Plaintiffs represented by

Austin Reams of Reams Law

www.reams.law

Defendants represented by

Gerard F. Pignato

Steven D. Singer

Roberson, Kolker, Cooper & Goeres, P.C.,

formerly

Pignato, Cooper, Kolker & Roberson, P.C.

David Edmonds

For the Burns Defendants