IN THE MATTERS OF TILIMBO v. POSIMATO, 329/M-2007 (8-22-2012)
2012 NY Slip Op 51579(U)
IN THE MATTERS OF THE PROBATE PROCEEDING IN THE ESTATE OF Salvatore Tilimbo,
Deceased and ROSE TILIMBO, ANTHONY CASERTANO, JR. and NINA SANDERS,
Plaintiffs, v. John Posimato, as preliminary executor of the ESTATE OF
SALVATORE TILIMBO, Defendant.
329/M-2007
Surrogate's Court, Bronx County.
August 22, 2012
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
Kenneth T. Wasserman, Esq., for Rose Tilimbo, Nina Sanders, and Anthony Casertano, movants. Martin B. Epstein, Esq., PLLC, for Patrick Wynne, non-party respondent. LEE L. HOLZMAN, J. In this transferred RPAPL article 15 action the plaintiffs who are also the objectants in the underlying will contest move, pursuant to CPLR 3101, for an order: (1) permitting their computer forensic expert, Computer Forensics Associates, to examine the personal computer hard drive of the nonparty witness Patrick Wynne, Esq., limited to locating and examining documents referring to (a) Rose Tilimbo, (b) her alleged will dated September 25, 2000, and (c) the disputed deed transfer from Rose Tilimbo to Salvatore Tilimbo dated October 13, 2000; and, (2) requiring Wynne to submit for an in camera inspection by the court his account book for the period August 1, 2000 through April 30, 2001, so that the court can determine whether he received any payments from Salvatore Tilimbo, Marilyn Posimato, John Posimato or Rose Tilimbo. The respondent nonparty witness, Wynne, the drafting and supervising attorney for the will of Rose Tilimbo and the alleged attorney for Rose at the time she executed and delivered the deed at issue, opposes the motion. The factual and procedural background of the contested probate proceeding and transferred action is set forth in numerous prior decisions of the court (see e.g. Matter of Tilimbo, NYLJ, Dec 1, 2011, at 27, col 2; Matter of Tilimbo, NYLJ, Nov. 21, 2011, at 19, col 6; Matter of Tilimbo, NYLJ, Feb. 15, 2011, at 30, col 3;
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Matter of Tilimbo, NYLJ, July 9, 2009, at 38, col 1; Tilimbo v Posimato, 20 Misc 3d 1116[A], 2008 NY Slip Op 51366 [U] [2008]; Matter of Tilimbo, 13 Misc 3d 1222[A], 2006 NY Slip Op 51939 [U] [2006]). For purposes of the discovery motion at issue, the relevant facts are that the decedent Salvatore Tilimbo died on April 2, 2005 at the age of 82. His distributees are his sister Rose Tilimbo and a niece and a nephew, all of whom are the plaintiffs in the transferred action, the objectants in the contested probate proceeding relating to his estate, and the movants herein.The sole beneficiary under the propounded instrument, which was also drafted by Wynne, is the decedent's friend, Marilyn Posimato, whose son, John Posimato, is the preliminary executor. The movants commenced the transferred action during the decedent's lifetime and: "[i]n the transferred action, the movants seek, inter alia, to set aside a deed executed by Rose on October 13, 2000, conveying her 50% interest in real property located at Bruckner Boulevard in the Bronx to the decedent. The complaint alleges that Rose, who was 86 years old at the time, deeded her interest in the Bronx realty to the decedent as a result of undue influence exerted upon her by the decedent. The complaint also contains a cause of action alleging that the decedent converted funds held in a joint bank account with Rose. The moving niece and nephew allege that they own the remaining 50% interest in the realty which they claim to have inherited from deceased family members. During Wynne's deposition in these proceedings, he testified that he represented Rose at the time she signed the deed; however, it is the movants' contention that, in fact, he represented the decedent at that time. The movants further allege that Rose was introduced to Wynne by Marilyn, who drove Rose to Wynne's office on the day she signed the deed; Wynne previously represented Marilyn and her son and the representation continued after Rose signed the deed; and, as a result of his ongoing legal relationship with other interested parties in the deed transfer, if Wynne, in fact, represented Rose in this transaction, he had a conflict of interest and should have advised Rose to seek other counsel" (Matter of Tilimbo, NYLJ, Feb. 15, 2011, at 30, col 3).

Wynne was deposed by the movants and stated, inter alia, that his entire paper file for Rose Tilimbo had been lost other than a copy of the deed relating to the October 13, 2000 transfer, and although he might have computer files relating to Rose and the decedent, he was unsure of what documents he might possess regarding fees received for Rose's will or that deed transfer (see Matter of Tilimbo, NYLJ, Feb. 15, 2011, at 30, col 3; see also Matter of Tilimbo, NYLJ, July 9, 2009, at 38, col 1). Thereafter, Wynne was directed by this court to conduct a diligent search of his computer and other relevant files and provide any documents, computer or file copies responsive to the movants' prior discovery request; otherwise, he was to provide an affirmation that, after a diligent search, he did not find any additional documents or computer files responsive to that request (see Matter of Tilimbo, NYLJ, Feb. 15, 2011, at 30, col 3). Pursuant to the court's direction, Wynne provided an affirmation stating that he conducted the requisite diligent search of his "computer files and any other relevant files" and did not find responsive documents or computer files except for the following which he annexed: (1) the decedent's last will dated January 24, 2001; (2) the decedent's health care proxy dated January, 2001; (3) the decedent's living will dated January 24, 2001; (4) Rose's last will dated September 25, 2000; and, (5) Rose's health care proxy dated September 25, 2000.
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In support of their instant motion the movants urge, inter alia, that the discovery sought is relevant to Wynne's role in the alleged undue influence practiced on Rose in connection with the deed transfer, as he was the only attorney present at the transfer, he testified he represented Rose at that time and that the decedent was unrepresented, and he testified that his files relating to Rose were "lost" and he could not recall who paid him for the deed transfer. They assert that whether, in fact, Wynne represented Rose or the decedent at the time of the transfer is relevant to all issues, and the transfer was replete with potential conflict of interest issues, undue influence and coercion. Therefore, they seek to "clone" Wynne's hard drive for the limited purposes noted, urging that such electronic disclosure is sanctioned by the Uniform Rules for Trial Courts (22 NYCRR) § 202.12 (c) (3), and other surrogate's courts have granted such requests (citing Matter of O. Winston Link Revocable Trust, 24 Misc 3d 768 [2009]; Matter of Maura, 17 Misc 3d 237 [2007]). Finally, they contend an in camera inspection of the account books is needed and relevant as to whom Wynne represented during the deed transfer and who paid him for that transaction. Wynne opposes the motion, asserting that he has been fully deposed, he conducted a diligent search of computer and other files and he produced all files and relevant documents. Contending that the request borders on harassment and is not limited to relevant documents as was the case in Matter of Maura (17 Misc 3d at 237), Wynne asserts that a balancing of the sanctity of the attorney-client privilege against the scope of permissible discovery warrants the denial of the motion. He also contends that the demand for production of account books is premature, as there is no evidence that such account books exist or are in his possession. Generally, as between parties to an action or proceeding, the court has "broad discretion to regulate the use of any disclosure device" (see Dartnell Enter., Inc. v Hewlett Packard Co., 33 Misc 3d 1202[A], 2011 NY Slip Op 51758 [U] [2011], quoting Matter of O. Winston Link Revocable Trust, 24 Misc 3d at 768, citing CPLR 3103). As between parties, it is well settled that "[r]aw computer data or electronic documents are discoverable," and general principles such as the "material and necessary" requirement embodied in CPLR 3101 (a) applies to electronically stored information (ESI) on computers (see Dartnell Enter., Inc., 33 Misc 2d 1202[A], 2011 NY Slip Op 51758 [U], quoting Lipco Elec. Corp. v ASG Consulting Corp., 4 Misc 3d 1019[A], 2004 NY Slip Op 50967 [U] [2004]; see also 150 Nassau Assoc. LLC v RC Dolner, LLC, 30 Misc 3d 1224[A], 2011 NY Slip Op 50182 [U] [2011]; T.A. Ahern Contr. Corp. v Dormitory Auth., 24 Misc 3d 416 [2009]). Furthermore, ESI and the documents generated in that native language form may be discoverable even when a hard copy is provided (see Dartnell Enter., Inc., 33 Misc 2d 1202[A], 2011 NY Slip Op 51758 [U]; T.A. Ahern Contr. Corp., 24 Misc 3d at 416; Lipco Elec. Corp., 4 Misc 3d 1019[A], 2004 NY Slip Op 50967 [U]). Although ESI is discoverable, generally, New York law is developing on the issue of whether the requesting or producing party bears the cost of producing the ESI discovery (see New York State Supreme Court, Commercial Division, Nassau County, Guidelines for Discovery of Electronically Stored Information [ESI], effective June 1, 2009, Part V [A] (Nassau Guidelines), citing Waltzer v Tradescape & Co. LLC, 31 AD3d 302 [2006]; Finkelman v Klaus, 17 Misc 3d 1138[A], 2007 NY Slip Op 52331 [U] [2007]; Delta Fin. Corp. v Morrison, 13 Misc 3d 604 [2006]; Etzion v Etzion, 7 Misc 3d 940 [2005]; Weiller v New York Life Ins. Co., 6 Misc 3d 1038[A], 2005 NY Slip Op 50341 [U] [2005]; Lipco Elec. Corp., 4 Misc 3d 1019[A], 2004 NY Slip Op 50967 [U];
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see also U.S. Bank N.A. v Green Point Mortgage Funding, Inc., 94 AD3d 58, 63 [2012]; Silverman v Shaoul, 30 Misc 3d 491 [2010]). Where ESI discovery of a nonparty has been sought, courts have permitted the discovery. For example, a nonparty attorney draftsperson was directed to produce the electronic files of prior drafts of the will (see Matter of Stachiw, 25 Misc 3d 1236[A], 2009 NY Slip Op 52439 [U] [2009]), and one court allowed the cloning of the hard drive of a nonparty law firm in connection with a prenuptial agreement (see Matter of Maura, 17 Misc 3d at 237; see also Matter of O. Winston Link Revocable Trust, 24 Misc 3d at 768 [in an accounting proceeding, court permits the production of a CD-Rom and a DVD containing 6,000 documents accompanied by an index, and denies a cross motion to compel the production of paper documents]). Recently, the Appellate Division, First Department addressed nonparty ESI discovery in the case of Tener v Cremer (89 AD3d 75 [2011]), wherein it reviewed the "cost/benefit analysis" that must be conducted. After reviewing various court regulations, rules, guidelines and reports on ESI discovery, the First Department expressly adopted the "practical approach" found in the Nassau Guidelines (see id.). Generally, the Nassau Guidelines, which are available online at the Nassau County Supreme Court Commercial Division web page on the Office of Court Administration website (see www.nycourts.gov/courts/comdiv/PDFs/Nassau-E-Filing_Guidelines.pdf), address the definitions applicable to ESI discovery, matters that parties are to discuss prior to a preliminary conference on ESI discovery, the scope of the preliminary conference, the form of production, when ESI is reasonably accessible, and who should bear the costs of such discovery (see Nassau Guidelines). In contrast to the ESI discovery between parties, the Appellate Division, First Department specifically noted that where a nonparty is involved, CPLR 3111 and 3122 (d) require the requesting party to defray the "reasonable production expenses" of the nonparty and, where applicable, the court must consider in that allocation the cost of disruption to the business operations of the nonparty and any delay in making the ESI discovery demand (see Tener v Cremer, 89 AD3d at 75). Here, the plaintiffs identified the computer forensic expert they wish to use, indicated they wish to "examine" and "clone" the hard drive of Wynne's computer, and limited their ESI discovery to documents referring to Rose Tilimbo, her will dated September 25, 2000 and the disputed deed transfer. In response, Wynne asserts a broad attorney-client privilege which, presumably, refers to information relating to other clients. Although he also contends that he already produced hard copies of the information sought, the production of hard copies of information sought does not preclude the production of the ESI for the same documents (see Dartnell Enter., Inc., 33 Misc 3d 1202[A], 2011 NY Slip Op 51758 [U]). Other than producing the relevant deed, Wynne was unable to produce any other documents relating to the deed transfer by Rose Tilimbo whom Wynne allegedly represented at the time, and such documents are clearly material and relevant to the complaint in the transferred action commenced by Rose, his alleged former client, and the niece and nephew. As the movants have not requested that anyone other than themselves should pay for the cost of retrieving the requested information, there is no need to discuss who will pay for the cloning. Furthermore, although the movants have not set forth the details involved
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in the cloning, it appears that the process only involves access to Wynne's computer(s) for a limited period of time and should not cause any significant disruption to Wynne's law practice. Nevertheless, Wynne is a solo practitioner and it would place an unreasonable burden upon him if he does not have the use of any of his computers for more than a few hours during normal working hours or if his office is disrupted by the presence of employees of Computer Forensics Associates for any prolonged period on any day. Accordingly, counsel for the movants and Wynne, with his attorney present if he so desires, are directed to confer with Computer Forensics Associates within 20 days of the date of this decision so that Wynne shall be apprised of the approximate time each computer in his office will not be able to be used as a result of the cloning if the cloning process is to take place at Wynne's office. The court finds that the cloning would not place an unreasonable burden upon Wynne if all of the computers can be cloned at his office in four hours or less on a date and at a time that he selects, which may include in whole or in part a time after normal business hours. Alternatively, the cloning will be allowed outside of Wynne's office if it can be done by removing the computer(s) on a Saturday at any time selected by Wynne and returned to his office by Monday between 8:30 and 9:00 a.m. If Wynne prefers, the computer(s) may be removed from his office on any other day, provided the computer(s) are returned to his office within 24 hours. If the cloning is to be done outside of Wynne's office and more than one computer is to be cloned, then at Wynne's option, only one computer may be removed from his office at a time. In the event that the cloning can be accomplished within the time allocated herein either at Wynne's office or by removal of the computer(s), Wynne shall have the right to select whether or not he wants the cloning to be done at his office. In the event that the cloning requested by the movants cannot be performed within the time frame provided herein, the court finds that the disruption to Wynn's practice of law outweighs the benefits that the movants might obtain from the information provided by the cloning. Furthermore, should a computer be removed from Wynne's office and not returned within the time provided herein, the movants shall pay Wynne $200 for each hour or part thereof that the return is delayed. To protect Wynne's attorney-client privilege, Computer Forensic Associates is directed to review the computer only for documents that refer to Rose Tilimbo and it must not examine files which would not likely lead to the discovery of evidence related to Rose Tilimbo. In the event that Computer Forensic Associates inadvertently begins to examine any information that is not related to Rose it is directed to immediately cease the examination of that file. In the event that Computer Forensic Associates locates documents that refer directly to Rose Tilimbo or appear to be related to the purported will or the alleged deed transfer, those documents shall be mailed to Martin Epstein, Esq., the attorney for Wynne and to Peter Piergiovanni, Esq., the attorney for John and Marilyn Posimato. The aforesaid counsel will have 14 days from the receipt of documents to object to disclosure to the movants by notifying counsel for the movants that he is objecting and sending the documents to the court for an in camera inspection together with the reasons for the objection. In the event that no objections are made to the production of the documents or the court rules that the documents are to be disclosed, Computer Forensic Associates may thereafter submit the documents to movants' counsel. Wynne neither admits nor denies whether he possesses an account book or similar records for the period August 1, 2000 through April 30, 2001. If he does process such
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records and they reflect whether Rose Tilimbo, the decedent or Marilyn or John Posimato paid for the preparation of the deed at issue, the movants are entitled to that information. Accordingly, Wynne is directed to supply any such documents if they are in his possession for an in camera inspection, and if he has no such records, he is to so state in an affidavit or affirmation in which he also indicates what period of time, if any, that he possesses any such records. This decision constitutes the order of the court. The Chief Clerk shall mail a copy of this decision and order to all counsel. The movants shall serve a copy of this decision and order upon Computer Forensics Associates. Proceed accordingly.