INTERNET LAW - Electronic Discovery & Prenuptial Agreements in New York

Electronic discovery is still evolving with the aid of the 2006 federal rules regarding electronic discovery, which provide great protection for non-parties from onerous discovery. Indeed, cost is one of the major factors when it comes to electronic discovery; particularly when documents have already been destroyed. When documents have already been destroyed, computer savvy people can reconstruct those documents, and even determine if they have been altered. In the case of prenuptial agreements, electronic discovery becomes an interesting legal issue because, in many cases, documents were destroyed and the party against the discovery is ordered may not be a party to an actual legal dispute. This article provides an example of a New York case that involved electronic discovery related to a prenuptial agreement, when the documents had been destroyed and the order was issued against a law firm that was not a party to the current dispute.

In Matter of Maura, 842 N.Y.S.2d 851 (Surrg. Ct. NY 2007), the Surrogate's Court of New York, Nassau County, decided a case involving an electronic discovery request of destroyed documents, issued against a law firm that was not a party to the actual dispute. Matter of Maura presented the following facts: the petitioner filed an action claiming that the second wife of the decedent was not entitled to an elective share under N.Y law because, the petitioner claimed, the second wife had waived her right to an elective share by signing a prenuptial agreement. The second wife claimed that the prenuptial agreement was "null and void as it was the product of fraud, deception, and undue influence.” The second wife also claimed that the decedent had not disclosed his net worth and assets when they signed the prenuptial agreement and that she was not represented by an attorney. The attorney who prepared the prenuptial agreement was not a party to the actual proceedings, but the second wife asked the court to order this attorney to disclose certain documents. For instance, the attorney was asked to produce the estate planning file of the decedent, all documents related to transfer of property from the second wife, statements of income related to the couple"s properties, and all documents related to the couple’s prenuptial agreement found in the attorney’s computer. The court ordered the attorney to comply with this demand in 20 days, except that related to the search in the attorney’s computers. This order, however, could not be complied with in 20 days and the attorney opposed the extent of the order. The second wife filed a motion for contempt.

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Source: ibls.com
By: Martha L. Arias