The following article was published in the Union Leader on November 7, 2021:
Know the Law: Emails, Texts and iPhones: Preserving Devices, Communication in Probate Litigation
Q: My mom passed away a few months ago, and my sister is challenging the estate plan. She is asking for my mom’s texts and emails. I tried to access my mom’s phone, but I did not know her passcode and now I’m locked out. Do I have to give my sister these communications?
A: The short answer: Yes, you have to turn over your mom’s electronic communications. But, there are steps you need to take before your sister has even asked for this information. In fact, once litigation is reasonably foreseeable, you have an obligation to preserve any electronic and paper records that may potentially relate to the dispute. This includes collecting and preserving emails and texts just as you would for hardcopy documents like cards and diaries.
We get asked about this a lot: how do we access a decedent’s phone to extract texts? Similarly, how do we collect a decedent’s emails? For preservation purposes, the first step is securing devices. Make sure to collect any devices (iPads, current and old cell phones, laptops, etc.) and identify all personal or business email addresses the decedent may have used or to which the decedent had access. Do not try to turn on devices or guess passwords. These actions could cause the device to lock you out completely. Instead, simply secure the devices. The “how” is better left for electronic discovery specialists, but it is important for you to understand the “when.”
Often, by the time a client comes to us, they are either already embroiled in a dispute with a sibling regarding their parents’ estate plan or the relationship has deteriorated to a point where litigation is anticipated. Under either scenario, preservation obligations have arisen.
When it comes to probate litigation, understanding the decedent’s relationship with the parties involved is often crucial to evaluating the merits of the case. Regardless of whether the lawsuit ultimately takes the form of a will or trust contest, inevitably the fiduciary will be asked to produce all electronic communications between the decedent and key players.
The requirement to preserve devices and documents exists not only in Probate Court where I practice, but it also applies in contested court matters generally. If litigation with someone else is reasonably foreseeable, you have to exercise care to preserve relevant documents and the devices containing them or risk potential negative consequences when you end up in court.