Each year, the New York State Surrogate’s Courts handle thousands of probate matters, guardianship proceedings, and, in many instances, high-profile, hotly contested litigation concerning the estates of very wealthy individuals. Determinations concerning the authenticity of testamentary instruments, and the intent of decedents, often turn on documentary evidence or records prepared by professionals involved in their drafting. That evidence often is created and stored electronically. In the past decade, while federal and state courts in New York have had the occasion to address many emergent technology and e-discovery issues, such decisions from the Surrogate’s Courts have been rare.
‘In Re Maura’
The most seemingly influential case to date remains a 2009 decision, In the Matter of the Estate of John B. Maura (In re Maura), which showed both the Surrogate’s Court’s willingness to look to developed federal e-discovery law and a keen understanding of the issues surrounding the field.1 More recently a decision in In the Matter of the Probate Proceeding in the Estate of Salvatore Tilimbo (In re Tilimbo) invoked the First Department’s express adoption of federal e-discovery jurisprudence.2 Notably, both In re Maura and In re Tilimbo addressed production and data collection requests directed to the nonparty attorneys who had previously represented the decedents. These opinions, together with the First Department’s recent guidance, suggest that transactional attorneys in the trusts and estates field increasingly may be faced with disruptive requests for electronically stored information (ESI) concerning a deceased client, and that attorneys handling discovery in Surrogate’s Court proceedings may be expected to be knowledgeable about e-discovery doctrine and process.
