Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the August 29, 2012 mailing of "Constructive Notice":

ESI Discovery In a Land Title Case

Sal and Rose are brother and sister. In October, 2000, Rose conveyed to Sal her interest in land she owned jointly with other family members. Sal died in 2005 and his last will and testament devised all of his property to his friend, Marilyn. Rose and the other family members then sued the preliminary executor of Sal’s estate seeking to overturn the 2000 conveyance on the ground that Sal “exerted undue influence” over his sister at the time.

When Rose made the conveyance, she was allegedly represented by an attorney, Patrick Wynne. Wynne also drafted Sal’s will, Rose’s will and had represented Marilyn and Marilyn’s son in unrelated matters, both before and after the conveyance to Sal. The plaintiffs alleged that Wynne was actually representing Sal, not Rose. They had sought discovery from him concerning the possible conflict of interest. He is not a party to the action.

At his deposition, Wynne stated that the entire paper file had been lost, other than a copy of the deed, but that he might have computer files. The Court then directed him 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 [or] to provide an affirmation that, after a diligent search, he did not find any additional documents or computer files responsive to that request.” Wynne complied with the Court’s direction and provided the required affirmation.

The plaintiffs now sought an order requiring Wynne to turn over his computer hard drive to a computer forensic expert for “cloning” and examination of its contents for relevant material not previously produced. The Court granted the motion. Matter of Tilimbo v Posimato, 2012 NY Slip Op 51579(U) (Surr. Ct., Bronx County, Aug. 22, 2012).


Typical ESI (electronically stored information) discovery dustups arise out of the need to comb through massive quantities of material across formats (e.g. email, text, voicemail) on archival as well as live servers.  And, they arise before the producing entity complies with the original request.

While the Tilimbo Court addressed the usual concerns attending ESI disclosure, i.e., cost allocation, scheduling, minimizing business disruption and protection of third-party confidential data, it did not address the threshold issue: why were Wynne’s deposition testimony and subsequent affirmation inadequate responses to the discovery directives? There is nothing in the Court’s opinion to indicate that the Court found Wynne’s responses incomplete or untruthful . Other than the plaintiffs’ “assertions” that “the transfer was replete with potential conflict of interest issues, undue influence and coercion” they provide no specific factual basis for the need for duplicative discovery.