A New York court allows a discovery motion authorizing the search of an estate planning attorney's computer in a case alleging the attorney's client exerted undue influence on his sister to get her to transfer property to him. In the Matters of Tilimbo v. Posimato (N.Y. Surr. Ct., No. 329/M-2007, Aug. 22, 2012).
Attorney Patrick Wynne represented Salvatore Tilimbo in a variety of estate matters, including drafting his will. Mr. Wynne also was present when Mr. Tilimbo's sister Rose deeded her property to Mr. Tilimbo. After Mr. Tilimbo died, Ms. Tilimbo filed a claim, arguing that Ms. Tilimbo deeded her property to Mr. Tilimbo as a result of undue influence by him.
During the proceedings, Mr. Wynne was deposed. He claimed he represented Ms. Tilimbo in the deed transaction and that Mr. Tilimbo was unrepresented. He also claimed he lost his paper files regarding Ms. Tilimbo and he could not recall who paid him for the deed transfer. Ms. Tilimbo argued Mr. Wynne represented both Mr. and Ms. Tilimbo, which was a conflict of interest. Ms. Tilimbo moved for discovery of Mr. Wynne's computer to learn his role in the transaction. They sought to "clone" his computer hard drive so that documents related to Ms. Tilimbo could be examined.
The New York Surrogates Court grants the motion for discovery, ruling that Mr. Wynne's computer may be searched. Because Mr. Wynne was unable to produce documents relating to the deed transfer and such documents are material to the case, the court allows the search to go ahead. The court notes that the cloning of the hard drive must take place at time that would not interfere with Mr. Wynne's solo practice and must be limited to documents that have to do with Ms. Tilimbo. Mr. Wynne is also required to produce account books or similar records.
For the full text of this decision, go to: https://attorney.elderlawanswers.com/in-the-matters-of-tilimbo-v-posimato-ny-surr-ct-no-329m-2007-aug-22-2012-9995
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