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Hi, this is Stewart Albertson with Albertson & Davidson and I want to talk to you just briefly about three important sets of documents that we need to get quickly in any type of trust or will contest.  So this happens when a client has already shown up and hired a lawyer.  They’ve already filed their trust contest or their will contest and now the question is what documents do we need to begin the case?  To begin our discovery, to begin strategizing how we’re going to overturn the trust or the will that is a product of undue influence or lack of capacity.

And these come down to three subpoenas and they should go out quickly.  You want to get these documents quickly, to make sure you get the full set of documents, and then you want to have the right people review them once you have them so they can help shape your case going forward, help shape your discovery and, hopefully, shape a successful outcome in invalidating a trust or a will that is the product of undue influence or lack of capacity.

The first set of documents that we want to subpoena right away are from the estate planning attorney.  So the estate planning attorney who drafted the trust or the will or both, we want to get a letter to them immediately telling them to safeguard their file and they can be accept – expecting a subpoena.  Once they receive that subpoena, they have a short time to respond and most estate planning attorneys will send us their files so that we can review them to see what were the circumstances around the creation of the trust or the will.

Sometimes, these attorneys though, they decide they don’t want to send the file and that’s not a problem.  Because then we can file a motion to compel, is what we call it, file that in court and we’ll get a judge to order them to give us the documents.  In many cases, once we file this motion to compel, the estate planning attorney will agree and send over the files.  So that’s the first set of documents you must get in a trust and will contest – and the sooner, the better!

The second set of documents will be the medical records and these are rich – especially if the decedent had multiple providers.  So you want to subpoena out to every single medical provider that you are aware of.  Once you have the first set of medical records, there’ll be other doctors, other hospitals, other medical providers that you’ll in those medical records.  In many cases, neurologists and those are really good medical records to get – so you’ll want to send out subsequent subpoenas for those documents as well.  Most big medical providers are very good at responding to subpoenas and in short order, if you give them a subpoena that’s well drafted and it details exactly what you’re looking for, you will have medical records that you can review to look for things such as dementia, Alzheimer’s and other mental/cognitive deficits that may have impacted the decedent at the time that the will or trust was created that you’re alleging was the product of undue influence of lack of capacity.

Finally, the last set of records are the financial records, and they’re also rich.  Especially if there’s a wrongdoer who did exercise undue influence over your mom or dad before they passed away.  This person generally can’t wait to get their hands on the money until the person dies, so they get their hands on the money during lifetime and they start taking a lot of cash withdrawals from the ATM, they’ll write checks to themselves calling them cash.  They may even sign them for the decedent, your mom or your father, and take this money and start spending it, using it for whatever it is they want to use it for.

So once you file the trust or will contest, you want to jump quickly on these three sets of documents.  Once you have them, they’re going to go a long way in getting you to a good settlement, or you’re going to be able to prove at the time of trial that, in fact, undue influence or lack of capacity did take  place in the creation of the will and the trust.

Part 3: What to do and when to do it.  (See part one and part two.)

So your private information is being sought, what are you going to do to protect it?  That depends on the manner in which information is being requested by the opposing party.  Private information will either be (1) requested directly from you through the use of interrogatories (a fancy word for “questions”) or document demands—both of which are forms of written discovery—or (2) requested from a third-party (such as a bank or medical provider) using a subpoena.

1.  Information Requests sent directly to you. 

     A.        State your Objections.  If you receive written discovery, such as interrogatories or document demands directly from the opposing party, you must state your objection based on the Right to Privacy within the deadline provided—that’s usually 30 days after being served with the discovery.  If you fail to state your objection, you waive it!  Let me say that again: if you fail to state your objection to producing private information based on your Right to Privacy, then you are waiving that right.  Therefore, you must ensure that your objection is timely made in writing by responding to the discovery requests with the stated objection.

A Right to Privacy objection goes something like this “The information sought violates the responding party’s Constitutional Right to Privacy and no further information will be provided on that basis.”  You can say it however you like, just be sure it clearly is expressing your Right to Privacy objection.

After you object, the opposing party has the right to bring a Motion to Compel, asking the Court to force you to answer the questions or produce the documents regardless of your Right to Privacy.  You then must respond to the Motion and explain to the Court why your rights should be respected in your case.  The Court then uses the balancing test (discussed in Part One of this series) and decides who is right and who is wrong.

     B.        Move for Protective Order.  As an alternative to serving objections and waiting for a Motion to Compel, you can be proactive and bring a Motion for Protective Order asking the Court to rule that your Right to Privacy should prevail over whatever information is requested.  Typically, a party does not bring a Motion for Protective Order because it’s much easier to simply object and then see if the opposing party wishes to force the issue by filing a Motion to Compel. 

If, however, you want to be the first one to bring the issue to the Court’s attention, you can file your Motion seeking a protective order—which would protect your private information from being disclosed.

2.  Information Requests made to a Third-Party (such as a bank or medical provider)

At times, an opposing party will seek your private information from third-parties by serving subpoenas on entities that record your private information, like banks and medical providers.  When a third-party is subpoenaed for your private information you, as a party to the lawsuit, are required to file a Motion to Quash the subpoena.  You do not have the luxury of simply serving written objections as you would with written discovery sent directly to you.  You must take action in Court by way of a Motion.  If you fail to file the Motion, then the information can be produced even though it is otherwise private information. 

As soon as you file your Motion to Quash, there is an automatic stay of the subpoena until the Court hears and rules on the underlying Motion.  So once your Motion is filed, you’ll want to serve a copy of it on the third-party entity so that they know the subpoena should be put on hold until the Court rules.

By the way, if you are NOT a party to a lawsuit, but you receive notice that someone is going to subpoena your bank, medical, or other private records, you can object to that by simply serving your written objections using the form that is required to be given to you along with the notice of the subpoena.  Non-parties can protect their rights by simply objecting—they do NOT need to file a Motion in Court.  Once written objections are made by a non-party, the party seeking the information would have to bring a Motion to Compel in Court in order to overcome the objection.

The bottom line: you must take action to protect your Right to Privacy.  When the time comes to protect your rights, make sure you act promptly!

Part Two: When do you fight, and when should you not fight, for your Right to Privacy? (See Part One here.)

In the words of Kenny Rogers, “you have to know when to hold ‘em, and know when to fold ‘em….”  Same is true for the Right to Privacy.  Just because the right exists and can be enforced doesn’t mean it should be enforced in every situation.

There is a strategy at work here that should be considered to determine whether disclosing private information is better for your case then trying to protect it.

First, let me acknowledge the fact that most parties to a lawsuit want to do everything possible to keep private information from the other side just out of principle.  I understand that.  Opposing parties tend not to like each other. 

But consider this: what if your private information tells a good story?  What if that information tells such a compelling story that any Judge or Jury seeing that information would side with you in your lawsuit?  That just might change your mind about disclosing private information. 

For example, so many times cases revolve around a joint account—money goes into the account and money comes out prior to the decedent’s death.  Was the money used for the benefit of the decedent or did the other joint account holder withdraw the money for his own benefit?  Allegations fly in each direction and the Court must decide who is right and who is wrong.

A joint account holder may be able to assert a right to privacy over the financial information contained in the joint account and could potentially hide that information from other parties.  But what if the bank information can establish that the money in the account was used exclusively for the decedent’s care?  Maybe the bank statements show payments to a care facility or nursing home, hospital bills and doctor bills being paid, prescriptions being filled, etc.  If this is the case, then the bank information tells a compelling story that even though money went into a joint account, it ultimately benefitted the decedent.

Keep in mind that if you refuse to disclose information under the right to privacy, and if that information is protected from disclosure by the Court, then you cannot use that same information at trial.  The law does not allow you to use your rights as both a shield and a sword.  If you refuse to disclose it, you can’t use it…period.

Under this example, waiving the right to privacy may be better for the case overall then trying to hide behind it.  Keeping good and valuable information under wraps can hurt your case because you then won’t be able to use that evidence at trial. 

This is just one example, there are hundreds of other scenarios where the information sought could be either helpful or hurtful to your case.  The point is to consider waiving the right to privacy at times.  Don’t just assert the right because it’s there.  Assert it when needed and let it go when its advantageous to you.

When you do decide to fight for your right to privacy, however, then fight as hard as you can.  So many times the right is waived unintentionally or because people think it won’t be upheld.  While you can’t guarantee that the Court will uphold your right to privacy, most Judges will give the right fair consideration, and will even protect the right to privacy in many cases.

What do you need to do to assert and protect your right to privacy?  That’s the subject of part three of this three part post.

Part 1: What is the right to privacy?

Do you have a right to privacy anymore?  in this age of ubiquitous information and password breaches, its hard to imagine that anything is confidential.  

In California, an individual’s right to privacy is contained in our State’s Constitution–so it is a Constitutional right.  And the Court will uphold that right, even in litigation where parties typically are allowed to request information and documents on any topic that is “reasonably calculated” to lead to admissible evidence (referred to as “discovery”).  That’s an important standard to understand because the information requested in discovery does not, in itself, have to be seeking admissible evidence.  Rather, the discovery standard allows an opposing party to obtain any information that is reasonably thought to lead to evidence.  In short, it’s a pretty wide open standard.

The right to privacy, however, cuts that standard short where the information requested falls into the definition of “private” information.  This post is the first in a three-part series to discuss the right to privacy in California Trust and Will litigation.  As a party to litigation you need to know (1) what the right to privacy is, (2) when you should assert it, and (3) when you should consider not asserting it even where the right exists.  But so often the right to privacy is trampled without any thought as to whether it should be asserted and defended, where necessary.

What is private information?  The right to privacy is contained in Article I, § 1 of the California Constitution.  Private information includes things like medical records, bank accounts, financial information, and other personal, non-public information. 

In Trust and Will litigation the right to privacy is often involved in a party’s attempt to gain access to bank information and tax records.  At times, such information can be accessed and must be disclosed to other parties.  But that’s not to say it must be disclosed in every instance.  There are times and circumstances where the right to privacy will prevail (or at least should prevail) to keep private information private.

For example, a case that we see time and again is the use of joint accounts between a decedent and his children.  Legally speaking, once the account is titled as joint tenants each named account holder is presumed to be a part-owner in that account and therefore has a right to privacy in that account information.  Even though the right may not be upheld by the Court, there is a right that needs to be discussed. 

Who does the right protect?  The right to privacy protects everyone—including parties to a lawsuit and nonparties whose information would be affected by the disclosure.  However, the right only applies to actual people, meaning natural persons, not to corporations.

When is the Right to Privacy upheld?  While the right to privacy is Constitutionally protected, its protection is not absolute.  The protection afforded by the right to privacy is qualified, and can be set aside after the court “carefully” weighs the right to privacy against the need for discovery in a given case.

The court must limit discovery of private information unless the Petitioner can meet the burden of showing that:

(1)  the private financial information is directly relevant to issues before the Court;

(2) The need for discovering the private information outweighs the individual’s fundamental right of privacy; and 

(3)  the scope of the discovery is drawn with narrow specificity.

(See Board of Trustees v. Superior Court (1981) 119 Cal. App. 3d 516, 525)

In other words, the private information must be something directly related to the case, which the parties cannot have a fair trial without, and the request must be limited so as not to expose all private information of a party—only so much information as is relevant.

What does this all mean?  It means you do have a right to keep private information private, but it’s not an absolute right.  There will be times when private information will have to be disclosed and so much depends on how a particular judge sees these issues and chooses to enforce, or not enforce, the right to privacy. 

That begs the question: should you fight for your right to privacy?  I have fought to maintain privacy for clients, and have even won that fight at times, but there are times when waiving the right to privacy may be your best option from a strategic point of view. 

In part two we will discuss some of the practical concerns that you should consider in deciding whether to fight for your right to privacy or not. 

And then in part three we will discuss what actions you need to take, and when you need to take them, if you choose to fight for your right to privacy.

During this Christmas season of peace and good will towards men (and women), it never hurts to talk about the settlement process for California Trust and Will cases.  In the past, we have written various handouts letting our clients know what to expect at various points throughout the Court process.  And we have shared these handouts on our blog and firm website.  

We now have an addition to the series, titled “What to Expect at Your Mediation or Mandatory Settlement Conference.”  A brief guide to some of the points every party should know about the mediation and mandatory settlement process.  If you have never been to mediation before, or even if you have, it can be a bit of a foreign experience.  There are things that occur during mediation, and more importatly things that do NOT occur, that are important for you to know.

Of course, our guides are just highlights and not meant to be an exhaustive explanation of each subject.  But for a quick primer on the litigation process, and the settlement process, they should help to give you a quick update on how things work.   

We have created various handouts for our clients to explain certain aspects of a lawsuit.  In an earlier blog post I shared our handout describing the overall process of a lawsuit.  We also have created handouts on what to expect at a deposition and what to expect in written discovery.  We have decided to make these forms available to you as well by posting them on our website.

Again, these are not meant to provide an exhaustive listing of everything that occurs during the litigation process, but it does provide some basic information so that people who are not familiar with the legal system will have some idea of what they can expect. 

My law partner is fond of saying that “A lawsuit is a marathon not a sprint.”  I like his quote because it sets the expections of what a client can expect to incur during the course of a lawsuit.  It does not matter what type of suit it is, be it Trust, Will, Estate, Probate or Civil litigation, the general overview of what to expect is the same.

To give our clients a snapshot of the litigation process, we have prepared a memorandum of what  clients can expect during the course of their lawsuit (What to Expect In Your Lawsuit.pdf).    It does not answer every litigation question, but it provides a basic primer on the litigation process.  We’ve decided to share that same memorandum here on our blog so everyone can see our basic primer on what to expect in your lawsuit.