The United States Court of Appeals for the Third Circuit Court vacates and remands Alexis Kyriakopoulos v. Robert Z. Maigetter, Individually and as Executor of the Estate of Barbara J. Berot, deceased; Sarah A. Eastburn, Esquire; Eastburn & Gray, P.C. (No. 23-2276, November 20, 2024), determining that the appellant’s emails with his attorney are protected by attorney-client privilege.
Robert Maigetter and Barbara Berot jointly owned an apartment in Washington, D.C., which they allowed Ms. Berot’s son, Alexis Kyriakopoulos, to use. After Ms. Berot was diagnosed with terminal pancreatic cancer in 2019, she and Mr. Maigetter hired Sarah Eastburn as joint counsel to help them with their estate planning.
Ms. Eastburn executed parallel wills for Ms. Berot and Mr. Maigetter. Ms. Berot expressed her wish for the ownership of the apartment to pass to Mr. Kyriakopoulos, though her will did not clearly allow for such an outcome if she were to predecease Mr. Maigetter.
Following Ms. Berot’s death in 2020, Mr. Maigetter exchanged several emails with Ms. Eastburn regarding Ms. Berot’s estate.
This case began when Mr. Kyriakopoulos sued Mr. Maigetter not to contest Ms. Berot’s will, but to enforce an alleged agreement. Mr. Kyriakopoulos claims that before Ms. Berot’s death she and Mr. Maigetter entered into an agreement under which the apartment would pass to him. To attempt to prove that claim, Mr. Kyriakopoulos obtained copies of communications exchanged between Ms. Berot, Mr. Maigetter, and Ms. Eastburn before Ms. Berot’s death.
Mr. Kyriakopoulos also requested Mr. Maigetter provide him with the emails he had exchanged with Ms. Eastburn after Ms. Berot’s death. Mr. Maigetter objected and asserted that the emails were protected by attorney-client privilege. Mr. Kyriakopoulos moved to overrule Mr. Maigetter’s objections and compel production.
Following an in camera review of the disputed emails, the district court granted the motion for 12 of the emails that included discussions of Ms. Berot’s intentions relating to her will. It held that the testamentary exception applied to overcome Mr. Maigetter’s assertion of privilege.
The district court granted Mr. Maigetter’s motion to certify the district court’s order for interlocutory review and asked the circuit court if the testamentary exception applies only to communications made by the deceased, or also to communications made by others that discuss statements made by the deceased.
The circuit court finds that the district court’s application of the testamentary exception exceeds the traditional bounds of the doctrine and that the facts are a “poor fit” for the “what,” “why,” and “who” of the testamentary exception.
The circuit court first considered what kind of dispute the testamentary exception is being applied to. This dispute is not about Ms. Berot’s will, its contents, or its meaning. Rather, Mr. Kyriakopoulos is seeking to enforce an agreement allegedly reached between Ms. Berot and Mr. Maigetter during their joint estate planning process.
The circuit court next considered why the testamentary exception is applied. If two claimants each assert that the deceased favored one over the other, the testamentary exception can be used to shed more light on the deceased’s intent. However, this case concerns Mr. Maigetter’s intentions, not Ms. Berot’s intentions.
Finally, the circuit court considered to whose privilege the testamentary exception applies. The emails in question were between Mr. Maigetter and Ms. Eastburn and were exchanged after Ms. Berot’s death. Therefore, the attorney-client privilege applies to Mr. Maigetter, not to Ms. Berot.
The circuit court vacates the district court’s order compelling production of the 12 Maigetter-Eastburn emails and remands the case for further proceedings.
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