In re Estate of Nunz

• Decision Date: 24 August 2015
• Citation: 2015 N.Y. Slip Op. 25462,53 Misc.3d 483,36 N.Y.S.3d 346
• Parties: In the Matter of the ESTATE OF William R. NUNZ, Sr., Deceased.
• Court: New York Surrogate Court

53 Misc.3d 483

36 N.Y.S.3d 346

2015 N.Y. Slip Op. 25462

In the Matter of the ESTATE OF William R. NUNZ, Sr., Deceased.

Surrogate's Court, Erie County, New York.

Aug. 24, 2015.

John Richard Streb, Esq., Attorney for Preliminary Executor Mary Jane Nunz.

Michael O. Morse, Esq., Attorney for Objectants William Nunz, Jr., Michael Nunz, Kathleen Danheiser, and Tambra Nunz.

Law Offices of Shelby, Bakshi & White, Attorneys for Objectant Wendy Fecher Justin S. White, Esq., of Counsel.

Deborah A. Benedict, Appearing Pro Se.

BARBARA HOWE, J.

Decedent died at age 79 on September 22, 2012, survived by his wife, Mary Jane Nunz [hereafter, Mary Jane], and six children from a prior marriage: William Nunz, Jr. [hereafter, William Jr.], Michael Nunz [hereafter, Michael], Kathleen Danheiser [hereafter, Kathleen], Tambra Nunz [hereafter, Tambra], Wendy Fecher [hereafter Wendy], and Deborah Benedict [hereafter, Deborah]. His Will, dated August 17, 2012, was offered for probate on October 18, 2012 by his nominated executrix, Mary Jane. After payment of debts and administration expenses, the Will leaves the entire residuary estate to Mary Jane.

Preliminary Letters Testamentary were issued to Mary Jane on November 7, 2012, and a citation was issued to all of decedent's children. Waivers consenting to probate of the Will and to the appointment of Mary Jane as fiduciary were executed and filed by Kathleen, Tambra, Michael, and William Jr., but, on the citation return date, Wendy and Deborah requested an SCPA 1404 hearing.

The witnesses to decedent's Will, Keith D. Perla, Esq. [hereafter, Perla]¹ and Mary Perla, were examined on January 30, 2013. Deborah² filed objections on March 28, 2013, and Wendy did so on April 4, 2013. Objections were also filed by Tambra, Michael, and Kathleen on April 15, 2013, notwithstanding that they had previously signed waivers and consents to probate of the Will and also that they have never moved for permission to withdraw those waivers and consents.

On March 28, 2013, William, Jr. filed an application to withdraw his waiver and consent. As an exhibit to his motion papers, he attached proposed objections to probate, one of which was that the Will in question “is not genuine”. The estate cross-moved for summary judgment dismissing all objections and admitting the Will to probate. By Order dated July 12, 2013, the estate's motion was denied in all respects, and William, Jr.'s motion to withdraw his waiver and consent was granted. A schedule was then set for discovery by the parties, and that has been on-going since.

During discovery, a subpoena duces tecum dated September 9, 2014 was served upon Perla by attorney Michael O. Morse, Esq. [hereafter, Morse],³ seeking production of documents and notes relating to the preparation of decedent's Will. Perla responded by producing his handwritten notes from a July 10, 2012 meeting with decedent.

On May 12, 2015, at Morse's request, Perla signed an affidavit stating that he had “prepared the will using a Microsoft Word for Mac word processing program on an Apple IMAC computer,” that he had “deleted the digital file [he] had created in preparing the will immediately after printing a copy of the will, ” and 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 ” (emphasis added). On May 19, 2015, Morse served an additional subpoena duces tecum upon Perla, seeking production of the Apple IMAC computer he used in preparing decedent's Will. In his cover letter to Perla, Morse wrote as follows:

“All I am looking for in this subpoena is the Apple IMAC computer you told me about in connection with preparing Bill Nunz' will. While you informed me that you deleted the file, I have a guy who thinks he can restore the hard drive and retrieve almost all of it.

I imagine that you have concerns over confidentiality for your other clients as their work is likely to be on that computer as well. I proposed that my computer tech guy can operate under a non-disclosure order.When he restores the hard drive, we can simply do a search for all files containing the word Nunz'. You should be able to identify any that deal exclusively with Mary Jane. The remaining files would then be relevant and ultimately, we may be able to locate the digital file used to create the will. We can do all of this at the courthouse or any other agreed upon location” (emphasis added).

Pending before me now is a motion by Mary Jane, seeking an order granting the following relief:

(1) Quashing the May 19, 2015 subpoena duces tecum to Perla, pursuant to CPLR 2304 ;

(2) Granting a protective order, pursuant to CPLR 3103, preluding the discovery sought by the subpoena for Perla's computer;

(3) Determining that discovery is now complete;

(4) Precluding Morse from any further contact with Perla, his wife, or his firm.⁴

Opposing papers have been submitted by Morse and by Deborah, to which Mary Jane has replied.

(A)

CPLR 3101(a) provides that “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof”. Discovery may be sought not only from the parties to a proceeding but also from “any other person, upon notice stating the circumstances or reasons such disclosure is sought or required” (CPLR 3101[a][4], emphasis added). Our Appellate Division has made clear the standard to be applied in assessing a contested discovery demand:

“The phrase material and necessary should be interpreted liberally to require disclosure, upon request, 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” ' (Matter of Wendy's Rests., LLC v. Assessor, Town of Henrietta, 74 A.D.3d 1916, 1917 [2010] ; see Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406–407 [288 N.Y.S.2d 449, 235 N.E.2d 430] [1968] ” (Rawlins v. St. Joseph's Hosp. Health Ctr., 108 A.D.3d 1191, 1192 [2013] ).

CPLR 3103(a) permits “any person from whom or about whom discovery is sought” to move for “a protective order denying, limiting, conditioning or regulating the use of any disclosure device ... to prevent unreasonable annoyance, expenses, embarrassment, disadvantage or other prejudice to any person or the courts.” Moreover, any party opposing the disclosure, not just the nonparty, may seek the protective order (see Velez v. Hunts Point Multi—Service Center, Inc., 29 A.D.3d 104, 111, 811 N.Y.S.2d 5 [2006] ).⁵

The information sought here by the Morse objectants is electronically stored information [ESI] which they believe should be retrievable from Perla's computer. In Tener v. Cremer, 89 A.D.3d 75, 78–79, 931 N.Y.S.2d 552 [2011], the Appellate Division, First Department, explained the legal principles involved when such information is at issue:

“In this day and age the discovery of ESI is commonplace. Although the CPLR is silent on the topic, the Uniform Rules of the Trial Courts, several courts, as well as bar associations, have addressed the discovery of ESI and have provided working guidelines that are useful to judges and practitioners. Indeed, in 2006, the Conference of Chief Justices approved a report entitled Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information'. New York's Uniform Rules for the Trial Courts specifically contemplate discovery of ESI. Rule 202.12(c)(3) allows a court, where appropriate, to establish the method and scope of electronic discovery (Uniform Rules for Trial Cts. [22 NYCRR] § 202.12 [c][3] ).

The Uniform Rules addressing the discovery of ESI are fairly recent. They took effect in 2009. However, the Rules of the Commercial Division of the Supreme Court have addressed discovery of ESI for some time. Rule 8(b) of the rules contains requirements similar to those in the Uniform Rules (22 NYCRR 202.70 [g] ). The Commercial Division for Supreme Court, Nassau County has built on Commercial Division rule 8(b) to develop the most sophisticated rules concerning discovery of ESI in the State of New York. That court also publishes in-depth guidelines for the discovery of ESI (the Nassau Guidelines). While aimed at parties, the Nassau Guidelines are appropriate in cases, such as this, where a nonparty's data is at issue ” (emphasis added).

The Tener Court also pointed out that “ESI is difficult to destroy permanently. Deletion usually only makes the data more difficult to access. Accordingly, discovery rules contemplate data recovery” (id., at 79, 931 N.Y.S.2d 552, emphasis added). Furthermore, as our Appellate Division, Fourth Department, has noted in Matter of Irwin v. Onondaga Cty. Resource Recovery Agency, 72 A.D.3d 314, 319–320, 895 N.Y.S.2d 262 [2010] :

“Nearly every electronic document contains metadata' (Simon, E–Discovery, Coming to Terms with Metadata, NYLJ, Oct. 27, 2008, at S2, col. 2). As earlier referenced, we now set forth a detailed definition of the term metadata for those lacking familiarity with the term. Metadata is secondary information' not apparent on the face of the document that describes an electronic document's characteristics, origins, and usage' (Spiro and Mogul, Expert Analysis, Southern District Civil Practice Roundup, The New Black': Meditations on Metadata, NYLJ, Feb. 5, 2009, at 3, col. 1).”

Justice Fahey's opinion in Irwin distinguished several possible types of metadata which might be sought in discovery: substantive metadata, system metadata, and embedded metadata (id., at pp. 320–321, 895 N.Y.S.2d 262 ). Irwin also noted that “whether metadata is subject to disclosure has been broached in a number of other jurisdictions” (id., at 319, 895 N.Y.S.2d 262 ), and the Irwin Court expressly “limited” its direction to disclose certain metadata “to the facts of this case in this evolving area of the law” (id., at 319, 895 N.Y.S.2d 262 ):

“The metadata at issue

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