YOUR COMPUTER MAY BE EVIDENCE IN A WILL CONTEST CASE
by
Marc Soss on Nov. 27, 2017
Summary: On August 9, 2016, a New York Surrogate’s Court entered an order requiring an attorney, who had drafted a decedent’s Last Will & Testament which was now the subject of litigation, to produce his computer during discovery.
To a none techy probate litigation attorney this ruling may not come as a surprise, but to those familiar with electronic discovery it may come as a surprise. The right to discovery of the electronic data contained on a computer, since all legal practices today rely upon computers to prepare, file, transmit and store documents, is a hot topic. Most litigants take the position that wholesale access to an individual’s personal computer is nothing more than a fishing expedition that could expose confidential communications and information, personal information and matters entirely extraneous to the litigation.
Many Florida court’s take the position that while rule 1.350, Florida Rules of Civil Procedure, subject to Rule 1.280 limitations, encompass requests to examine a computer hard drive it does so only in limited and strictly controlled circumstances. Citing Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. 4th DCA 1996) unlimited access to anything on the computer would constitute irreparable harm, because it would expose confidential, privileged information to the opposing party. Similarly, a litigant may contend that, under rule 1.280(b)(5) before they are required to relinquish possession of a computer, they should be permitted to review the information beforehand and produce the response themselves. In Holland v. Barfield, 35 So.3d 953, 956 (Fla. 5th DCA 2010) the Fifth District Court of Appeals found that having to disclose a computer hard drive and a cellphone SIM card demonstrates irreparable harm.
In contrast, in Texas the courts are taking a hard line against obtaining direct and unfettered access to your adversary's computer systems (or images of those systems). In re Pinnacle Engineering, Inc., 01-12-01105-CV (Tex. App.-Houston [1st Dist.] 3-12-2013), the Court of Appeals for the First District of Texas held “that the trial court had abused its discretion in ordering access to forensic copies of the Defendants' computers and network server hard drives.” The Texas Supreme Court has gone so far as to state that "providing access to information by ordering examination of a party's electronic storage device is particularly intrusive and should be generally discouraged, just as permitting open access to a party's file cabinets for general perusal would be."
The State of Colorado takes the view (citing In Gates Rubber Co. v. Bando Chemical Industries, Ltd., 167 F.R.D. 90, 112 (D. Colo. 1996)), the court ruled that a party has “a duty to utilize the method which would yield the most complete and accurate results.” Additionally, there are cases requiring that the “computer file” must be produced in addition to a printout of the file(s).
In Matter of Nunz, 2012-4075/A, 2016 N.Y. Misc. LEXIS 2891, a New York Surrogate Court was faced with the following scenario. One month prior to his death, the decedent went to an estate planning attorney for preparation of his Last Will and Testament (the “Will”). The Will left the decedent’s entire estate to his surviving spouse and nothing to his six children from a prior marriage. Five of the decedent’s children contested the Will.
During discovery it was learned that "any computer files or other materials relating to the preparation of this will which were created and/or stored in electronic or digital format have been destroyed or no longer exist." The children sought production of the computer utilized to prepare the documents and to have a forensic expert reconstruct the drafting attorney’s lost files in order to support their position.
After an evidentiary hearing, the Surrogate Court found, citing to Tener v. Cremer, 89 AD3d 75, 78-79 [2011], that the type of electronically stored information which may be obtained by a forensic analysis of the drafting attorney’s computer was discoverable. However, before the forensic expert was allowed access to the computer an examination protocol had to be established (to protect non-relevant confidential information and information falling within the attorney-client privilege). The Court crafted the following protocal: (1) the drafting attorney’s computer shall be delivered to the forensic expert by either the drafting attorney or by the estate attorney on an agreed upon date, time and location; (2) the objecting children’s attorney shall not be involved in the process; (3) the computer shall be cloned and returned to the drafting attorney; (4) the forensic expert shall not communicate with any party during their examination and any and all reports, regarding the findings, shall be given only to the Court, by confidential correspondence; and (5) once the Court receives the forensic expert report and findings it will issue an Order regarding disclosure (or not) of all or any part of the contents.
CONCLUSION:
While the Court in Nunz, in the editor’s opinion, fashioned a fair solution to the discovery issue that addressed both privacy interests and the protection of confidential data, it established strict parameters for production of the forensic expert's confidential inspection data. What can be learned from this case is that all law firms should have in place a sound company policy regarding the deletion of computer-generated data. Attorney’s should also consult with a technology attorney to ensure the information being requested in discovery is not protected under Federal Law (the Electronic Communications Privacy Act (“ECPA”), 18 USC section 2701).
