In this probate proceeding, respondents Mr. AX and Mrs. AXW move to compel the co-executors of the estate, Mrs. JA, the surviving spouse of decedent, and Mr. K, accountant of decedent, to reproduce: (1) the original and/or photocopies of prior wills of the decedent; (2) un-redacted photocopies of two letters between decedent and the attorney/draftsman, Mr. JM, Esq., and; (3) un-redacted photocopies of notes taken by Mr. JM during two separate in-person meetings with the decedent. For the reasons set forth below, an in camera review of said materials, in un-redacted form, is necessary.
In opposition to respondents’ motion, the executors allege they are unable to locate any prior wills and will provide such in the event that they are located. In response to the redactions, the executors contend that Mr. JM represented both decedent and decedent’s surviving spouse, Mrs. JA, in connection with their estate plan, and had confidential communications with decedent and Mrs. JA, jointly and individually, concerning Mrs. JA’s estate plan and assets, and that the contents of those communications concerning Mrs. JA’s estate plan and assets are the subject of the redacted material and are, therefore, privileged, pursuant to the attorney-client privilege afforded by CPLR 4503, and not discoverable by third parties.
In actions involving the probate, validity or construction of a will, an attorney or his employee is required to disclose information as to the preparation, execution or revocation of any will or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent. Respondents contend in their motion that these documents are not privileged as they contain information pertaining to the decedent and his will that the executors are required to disclose.
Ordinarily, if a party objects to a discovery demand, that party is to serve a response, which states with reasonable particularity the reasons for each objection. If an objection is made to part of an item or category, the part is to be specified. Here, the executors objected to certain disclosures, by use of redactions, but failed to state the reason for such; providing materials in redacted form with a brief mention that the documents attached are “redacted” does not constitute as a valid reason for an objection to the disclosure.
The executors’ opposition to respondents’ motion is supported by Mr. JM’s sworn statement, affirming that his correspondences and notes were redacted “in order to preserve the confidential communications between myself and my client, Mrs. JA, and between myself and decedent concerning Mrs. JA’s estate plan and assets.” Mr. JM’s affirmation substantiates the existence of facts upon which the motion is based, as it is his own writing that was redacted.
When a claim of privilege is presented, it may be advisable to conduct an in camera review of documents claimed to be privileged. The court may defer determination of a motion to compel discovery until after an in camera inspection of certain materials by the court since it does not affect substantial rights.
CPLR 3122(b) establishes the requirement under New York law for a privileged document log when a party seeks to claim an attorney-client privilege. Here, the executors failed to provide a privilege log to explain the redactions. Merely responding to boilerplate claims of privilege, without a privilege log as required by CPLR 3122(b), is insufficient as a matter of law. Although this court will not mandate that a privilege log is produced, it is unable to fully assess an attorney-client privilege claim without further explanation by the executors as to the redacted material, which may be accomplished through an in camera review of said materials.
Respondents argue that the attorney-client privilege does not apply because the correspondence is addressed solely to the decedent, regarding his estate plan, and the meetings between the decedent and Mr. JM took place in the presence of third parties. The executors allege that the redactions to each document were made in order to preserve the confidential communications between Mr. JM and Mrs. JA concerning Mrs. JA’s own estate plan and assets. Redactions were made to the following four documents:
(1) Correspondence dated December 19, 2006;
(2) Correspondence dated January 29, 2009;
(3) Attorney Notes dated December 5, 2008;
(4) Attorney Notes dated January 30, 2009.
The two pieces of correspondence consists of letters addressed solely to the decedent and signed by Mr. JM. The letters are marked “Personal/Confidential.” The first sentence of each letter states, “The following is a summary of your estate plan which has now been revised…” The contents of the letters seem to relate directly to decedent’s testamentary plan. This court cannot decipher the unknown, and an in camera review of these letters in un-redacted form is required to determine whether Mrs. JA’s estate plan and assets are discussed in either letter and if the attorney-client privilege attaches.
Attorney Notes dated December 5, 2008:
Mr. JM indicates on his notes that present at this meeting were decedent, Mr. H, and Mr. K. Respondents argue that the presence of Mr. H, a nominated co-trustee of the DEA Trust and Mr. K, accountant to the decedent, waives the attorney-client privilege. The attorney-client privilege attaches to confidential communications between an executor and an attorney, to the exclusion of third persons, including beneficiaries of the estate (CPLR 4503[a]). The presence of a third party during the communication between the attorney and the client indicates that the communication was not confidential. In such a case, the privilege does not attach.
However, when the court deems the third person to be an “agent” of the attorney or the client, the communications remain privileged. Here, there has been no claim by Mrs. JA that Mr. H or Mr. K were Mrs. JA’s agents. Un-redacted copies of the notes from this meeting are to be provided to respondents.
Attorney Notes dated January 30, 2009:
Mr. JM indicates that the decedent and Mrs. JA were present at this meeting. The executors contend that Mrs. JA is a client of Mr. JM’s and that any communication made during this meeting was confidential in respect to both clients present at the meeting. The attorney-client privilege seeks to insure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his or her confidences will not later be exposed to his or her legal detriment. The attorney-client privilege has been codified under CPLR 4503(a)(1), which bars disclosure of any confidential communications between a client and his/her attorney. Again, an in camera review is necessary to determine whether Mrs. JA’s estate plan or assets were the subject matter of Mr. JM’s notes.
Because a determination of whether documents are privileged is fact-specific, an in camera review of such documents may have to be undertaken before resolving the issue. The burden of proving that all the requisites of the privilege are present falls on the person asserting the privilege.
This court is aware that the attorney-client privilege is “of the oldest among common law evidentiary privileges, fostering the open dialogue between lawyer and client that is deemed essential to effective representation” and will remain mindful of this throughout an in camera review.
A final determination on the motion to compel un-redacted copies of particular disclosure is held in abeyance pending an in camera review of the documents in un-redacted form. Un-redacted copies of the documents shall be submitted to the court within 21 days of the date hereof.
Privilege communication must be used to protect the rights of a party, but on some occasions, it is a haven of a person to take advantage of a situation to the detriment of the other party. In order to make sure that your rights are fully protected, speak with Stephen Bilkis & Associates at 1800-NYNYLAW.