DECISION and ORDER In a contested probate proceeding, the objectants move for an order pursuant to CPLR 3124: (1) compelling the petitioner to produce relevant documents in response to their demand for the production of documents, and (2) compelling the petitioner and his associate, Sara Eliza Fraser, to appear for continued examinations pursuant to SCPA 1404. The petitioner opposes the motion. The decedent died on October 25, 2018, survived by a daughter, objectant Carole Anne Seidelman, and a grandson, objectant William Van Den Broeck. In December 2018, the petitioner filed this proceeding, requesting that the court admit an instrument, dated January 30, 2018 (“the propounded instrument”), to probate and to appoint him as executor of the estate. The propounded instrument provides for Carole Anne to receive the decedent’s tangible personal property and for the net residuary estate to be distributed to an inter vivos trust known as the Robert Seidelman Trust, dated November 9, 2009. It also nominates the petitioner as executor of the estate. The petitioner was the attorney-draftsman of the propounded instrument, and he and Sara Eliza Fraser, an attorney in his office, acted as witnesses to its execution. After the petitioner filed this proceeding to admit the Propounded Instrument to probate, Carole Anne and respondent William van den Broeck (collectively the objectants) appeared by counsel and requested pre-objection discovery. In or about February 2019, the objectants served the petitioner with a First Notice for Discovery and Inspection (D&I Demand), in which they requested that the petitioner provide them with certain documents. In or about April 2019, the petitioner served his Response to the objectants’ First D&I Demand (Objectants’ Motion, Exhib. A). Insofar as is relevant here, included among the documents turned over to the objectants was a document which the petitioner refers to as “electronic case status notes.” According to the petitioner, his office prepares such notes for each of his clients, and they “contain notes of meetings or other communications with [his] clients and emails concerning the clients” (Cohen Affidavit in Opposition to Motion, p 3, fn2). However, the petitioner failed to turn over separate copies of the actual emails which are contained in these electronic case status notes. Moreover, the “electronic case status notes” do not contain all of the emails in the petitioner’s possession. On or about September 23, 2019, the objectants’ prior counsel examined the petitioner and Ms. Fraser pursuant to SCPA 1404 (4). Sometime after those examinations, the objectants changed attorneys, retaining their present counsel By letter dated November 23, 2020, objectants’ counsel wrote to petitioner’s counsel, complaining that his Response to their First D&I Demand was “inadequate and incomplete,” outlining how and why he believed that to be so (Objectants’ Motion, Exhib. C). By letter dated the same date, petitioner’s counsel indicated that the Response was complete, “and absent a court order declines Objectants’ additional requests” (id.). By email dated March 9, 2021, the petitioner provided objectants with a supplemental response to their D&I Demand, consisting of Ms. Fraser’s handwritten notes from meetings with the decedent on January 18 and 30, 2018 (Objectants’ Motion, Exhibs. E, F&G). Thereafter, the petitioner and the objectants disagreed on the scope of a supplemental examination of Ms. Fraser, and whether the petitioner must submit to a supplemental examination at all (id., Exhib. H). Ultimately, the objectants filed the instant motion pursuant to CPLR 3124, requesting that the court compel the petitioner to produce the “Withheld Documents,” and directing the petitioner and Ms. Fraser to appear for continued depositions. According to the Objectants, the “Withheld Documents” consist of the following: 1. Any communications with the decedent, the decedent’s financial advisor, Thomas Cagganello, Jr., and/or the decedent’s accountant, Carmine Fillipone, including, but not limited to, emails and text messages, and any records of such communications, including landline and/or mobile telephone bills reflecting such communications. 2. Diaries and/or calendars referencing, regarding and/or relating to meetings, phone calls or other communications with the decedent, Cagganello and/or Fillipone. 3. Time records and/or entries recorded by, and any handwritten notes generated by, the Petitioner and/or any of his employees relating to any work performed on decedent’s behalf; and 4. The original notes, emails and/or other documents which the Petitioner refers to as the “electronic case status notes.” The Objectants also argue that the court should compel the Petitioner and Ms. Fraser to appear for a continued/supplemental examination pursuant to SCPA 1404. In his affidavit in opposition to the motion, the petitioner states that after receiving the motion papers, he personally searched his firm’s internal electronic record-keeping systems to determine whether they contained any emails between the petitioner (and/or anyone at his firm) and the decedent, Cagganello and/or Fillipone, concerning the decedent and his estate plan, during the period of January 30, 2015 through October 25, 2018 (i.e., the “three year/two year period” in 22 NYCRR’ 207.27). Other than documents produced in April 2019, no such documents exist (Cohen Affidavit, &2). He further states that he did not communicate with the decedent by text or email (id. at &4). Next, the petitioner states that the search “revealed a handful of entries confirmatory of my meetings with the Decedent concerning his will and revocable trust in January 2018;” a calendar entry for August 8, 2016, with the subject “Seidelman and Canganelo” (a misspelling of Cagganello’s name). According to the petitioner, however, he did not meet with them on that date because he did not meet Mr. Cagganello in person until a January 18, 2018 meeting with the decedent (id. at &5). The petitioner also reviewed and produced a call log which included the entries concerning the decedent, Carole Anne and Mr. Cagganello (id. at &6, Exhib. 4). He states that these entries are consistent with the electronic case status notes which he produced in April 2019. The petitioner concedes that he did not produce emails between himself and Carole Anne, but he asserts that the objectants were not prejudiced by this because Carole Anne possessed these emails herself, and therefore, her counsel could have examined the petitioner regarding them during his 1404 examination (id. at &8). Finally, he states that Ms. Fraser’s hand-written notes from the November 9, 2015 and December 2, 2015 meeting with the decedent, which the petitioner produced in April 2019, and her handwritten notes from the January 2018 meetings with the decedent, which the petitioner turned over to the objectants in March 2021, constitute the only handwritten notes of the petitioner’s firm’s meetings with the decedent (Cohen Affidavit &11). With respect to his failure to turn over Ms. Fraser’s January 2018 handwritten notes earlier, the petitioner explains his “omission of these notes was entirely inadvertent. Normally, Ms. Fraser would submit any handwritten notes…to [the petitioner's] administrative assistant for inclusion in an electronic client folder that [the firm] maintain[s] for each client.” However, that was not done in this case (Cohen Affidavit, &10). CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action.” The Court of Appeals has stated that this section should be interpreted liberally to require disclosure of “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Andon v. 302-304 Mott St. Assocs., 94 NY2d 740, 746 [2000]). In his affidavit in opposition to the motion, the petitioner indicates that he has turned over to the objectants all documents in his possession and control which are responsive to the First D&I Demand. He also states that no documents exist with respect to certain demands contained therein. It is well settled that a party served with a demand for production of documents pursuant to CPLR 3120 need only produce documents already in existence and within his/her possession and/or control (see Barber v. BPS Venture, Inc., 31 AD3d 897 [2006]; Corriel v. Volkswagen of Am., 127 AD2d 729, 731 [1987]). A party cannot be compelled to produce documents not in his/her possession (see Gatz v. Layburn, 9 AD3d 348 [2004]), and is not required to create documents in order to comply with a discovery demand (see General Elec. Co. v. Macejka, 252 AD2d 700 [1998]; Corriel, 127 AD2d at 731). In light of the petitioner’s statements in his affidavit in opposition to the motion, that branch of the objectants’ motion which is to compel the petitioner to produce the “Withheld Documents” is denied as moot. To the extent that the petitioner possesses additional relevant documents and fails to turn them over to the objectants, he will be precluded from offering them into evidence at trial (see Bivona v. Trump Mar. Casino Hotel Resort, 11 AD3d 574 [2004]; Corriel, 127 AD2d at 731), or the objectants may request some other appropriate remedy (see CPLR 3126). Next, the court addresses the objectants’ request that it compel the petitioner and Ms. Fraser submit to a continued or supplemental examination pursuant to 1404. In relevant part, SCPA 1404 (4) provides, in relevant part, that “[n]o person who has been examined as a witness under this section shall be examined in the same proceeding under any other provision of law except by direction of the court.” Generally, courts do not lightly give permission to re-examine the attorney-draftsperson and/or attesting witnesses (see Matter of Ettinger, 7 Misc3d 316 [Surr. Ct., Bronx County; 2005]; Matter of MacLeman, 9 Misc3d 1119[A] [Surr. Ct., Westchester County; July 14, 2005]). The court grants that branch of the objectants’ motion which is to compel the petitioner and Ms. Fraser to submit to a supplemental examination pursuant to SCPA 1404, to the extent that it directs the petitioner and Ms. Fraser to submit to a limited supplemental examination as set forth below. The court rejects the petitioner’s contention that such examination should be limited to examining Ms. Fraser regarding her January 2018 handwritten notes which were not turned over until 2021. The court also rejects his contention that objectants’ prior counsel could have examined the petitioner and/or Ms. Fraser about the petitioner’s firm’s “recordkeeping and note taking policies” when they were first examined. Objectants’ prior counsel was entitled to rely on the petitioner’s representations he had turned over all documents in his possession and control which were responsive to the First D&I Demand. He need not have anticipated that the petitioner had not turned over all such documents to him. Nevertheless, as stated above, the supplemental examinations shall be limited. Such examinations shall be limited to: (1) any documents which the petitioner failed to turn over to the objectants prior to the initial examinations; (2) any alleged inconsistencies between those documents and documents previously turned over to the objectants; and (3) the petitioner’s firm’s record keeping and note-taking policies in general and specific to this matter. Objectants counsel shall not be permitted to examine the petitioner and/or Ms. Fraser on the following topics: (1) those previously covered by prior counsel; or (2) those concerning any documents, emails, etc., contained within the electronic case notes or any other documents which the petitioner previously turned over to the objectants. The parties shall complete the supplemental examinations on or before Friday, December 3, 2021. The matter is adjourned to Wednesday, December 8, 2011 at 9:30 a.m. for control purposes. The parties are directed to contact the court following the completion of the supplemental examinations so that the court can schedule a status conference with counsel for the parties. This constitutes the Decision and Order of the Court. The following papers were considered on this motion: 1. The Notice of Motion, dated May 28, 2011, and all exhibits and papers submitted in support thereof; 2. The Affirmation in Opposition to Objectants’ Motion to Compel, by Gary B. Friedman, Esq., dated July 13, 2021, and all exhibits and papers submitted in support thereof; and 3. The Objectants’ Reply Memorandum of Law, filed July 30, 2021. Dated: October 26, 2021
