Unique Issues On the Road to Discovery

, New York Law Journal

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Ilene Sherwyn Cooper

While discovery in the Surrogate's Court is generally guided by the provisions of the CPLR, it brings with it many unique issues and controversies. For example, while CPLR §3101 directs that "there shall be full disclosure of all matters material and necessary in the prosecution or defense of an action," Uniform Court Rule 207.27 circumscribes discovery in probate proceedings, absent a showing of special circumstances, to the period three years prior to the date of the propounded instrument and two years thereafter, or to the date of the decedent's death, which is the shorter period. Moreover, CPLR 4503(b) creates an exception to the attorney-client privilege in actions involving the probate, validity or construction of a will. Within this context, this month's column will examine decisions addressed to matters affecting discovery in the Surrogate's Court, including the privilege respecting material prepared in anticipation of litigation, disclosure of tax returns, open commissions, and the production of business records.

In Anticipation of Litigation

In In re West, the Surrogate's Court, New York County (Sur. Anderson), explored the scope and definition of the qualified privilege that attaches to material prepared in anticipation of litigation.

Before the court was an application by the proponent of the decedent's will to compel discovery of the objectants' notes memorializing their communications with non-party witnesses after the decedent's death. Objectants opposed the application, contending that the notes constituted material prepared in anticipation of litigation and were privileged. Additionally, objectants maintained that the documents fell outside the scope of the three-year/two-year rule and, therefore, were not subject to discovery.

The record revealed that in the course of deposing objectants, the proponent learned that information contained in the subject notes formed the basis for the objections to probate. The information was derived from telephone calls and in person conversations with third parties pertaining to the decedent's estate plan and will. According to the deposition testimony, at the time of the conversations, the objectants were investigating whether they had grounds for opposing probate.

The court opined that while the provisions of CPLR 3101 generally require "full disclosure of all matter material and necessary in the prosecution or defense of an action," CPLR 3101(d)(2) provides a qualified privilege for materials prepared in anticipation of litigation or for trial. The court found that this privilege is limited to materials which are prepared exclusively for litigation, and imposes upon the party seeking to prevent disclosure the burden of proving that the privilege applies. To this extent, when the motive for preparing the materials is mixed, even if a predominant motive is for use in litigation, the privilege does not apply.

In considering whether materials fall within the scope of the privilege, courts have considered the time when the documents were created, the possible uses of the information, and the relationship between the informant and the person to whom the information was provided. Thus, by way of example, the court noted that materials prepared during the investigatory stage of what later becomes a litigation are generally not privileged, as "…reports prepared for the purpose of assisting a party in making the decision to litigate or not are considered to have a mixed purpose, and therefore must be disclosed…" Plimpton v. Massachusetts Mut. Life Ins., 50 A.D.3d 532, 533 (1st Dept. 2008).

Based upon the foregoing, the court concluded that when non-lawyers hold conversations to explore the facts that ultimately result in litigation, the notes derived from such conversations are not privileged.

Further, the court held that the subject documents were not shielded from discovery pursuant to the three-year/two-year rule. While the objectants argued that the subject notes were prepared after the decedent's death and therefore fell outside the scope of the rule, the court found that because the events described in the notes occurred within the time frame of the rule, they were subject to production.

In re West, NYLJ, Jan. 7, 2013, at 20 (Sur. Ct. New York County)(Sur. Anderson).

Subpoena to Prior Counsel

In In re Soluri, a contested probate proceeding pending in the Surrogate's Court, Nassau County, the named executor in the will moved to quash a subpoena duces tecum issued by the objectants to the decedent's prior counsel and for a protective order, on the grounds, inter alia, that the subpoena failed to comply with the notice requirements of CPLR 3101(a)(4), violated the attorney-client privilege, and sought information outside the scope of the three-year/two-rule set forth in Uniform Court Rule 207.27.

As to the issue of notice, the court opined that the provisions of CPLR 3101(a)(4) require that discovery sought from non-parties state the circumstances or reasons such disclosure is sought in order to afford the non-party with information regarding the dispute between the parties, and the opportunity to decide how to respond. The court held that although the decedent's prior attorney was aware of the reasons his testimony and records were sought, the subpoena failed to include the required notice, and was therefore, facially defective and unenforceable.

However, the court found that the information sought by the subpoena was not violative of the attorney-client privilege, and that special circumstances existed entitling the objectants to the testimony and documents sought. Specifically, the subpoena requested information related to powers of attorney and health care proxies prepared on behalf of the decedent, including whether counsel who prepared the documents represented the decedent or a third party; copies of billing records; the purpose of telephone calls made to counsel's office; and whether counsel had seen the decedent during the period in which the propounded will was executed.

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