Article 31 in Surrogate’s Court: The Road to Discovery

December 10, 2019

The past several months have seen significant decisions concerning Article 31 discovery in the Surrogate’s Court. Addressed to such issues as electronic discovery, the costs of document production, the costs of document production, and digital assets. These opinions are discussed below.

Discovery by Electronic Means Examined

The issue of discovery by electronic means is not frequently the subject of Surrogate’s Court practice. In Richmond County, however, the court was confronted with two applications seeking such relief. One such decision was rendered in In re Frizziola, N.Y.L.J., Sept. 16, 2019, at 22 (Sur. Ct. Richmond County), in which the petitioner moved to conduct the SCPA 1404 examinations of the attorney-draftsperson and the witness to the will electronically, pursuant to the provisions of CPLR 3113(d). See also In re Grunwald, N.Y.L.J., 2019 NY Misc. LEXIS 5348 (Sur. Ct. Richmond County).

It appeared that the attorney-draftsperson resided in Colorado, but maintained a practice in New York. Petitioner also confirmed that the witness to the will resided in Florida with no remaining business or personal connection to New York. Neither the attorney-draftsperson nor the witness consented to voluntarily appearing in New York for their examinations, but both were willing to be examined by electronic means. In her supporting affirmation, petitioner affirmed that the attorney-draftsperson had a busy practice in Colorado, and small children at home, and that therefore travel for a deposition in New York would be an undue hardship. The attorney-draftsperson also submitted an affirmation, indicating that a deposition in New York would be a tremendous burden and expense, and stating that his testimony would be no different from the information he had supplied therein, i.e. that he recalled drafting the will and the pour over trust of the decedent.

Ilene Sherwyn Cooper is a partner with Farrell Fritz, P.C. in Uniondale, where she concentrates in the area of trusts and estates. She is the past-chair of the New York State Bar Association’s Trusts and Estates Law Section.

Reprinted with permission from New York Law Journal, Monday, December 9, 2019, Vol 262 – No. 111

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