Wellin v. Wellin
Wellin v. Wellin
2016 WL 7634673 (D.S.C. 2016)
January 20, 2016
Howard, William L., Special Master
Summary
The court ordered the plaintiff to produce all documents evidencing a communication between the decedent, Keith Wellin, and any of the attorneys in the law firm Evans, Carter, Kunes and Bennett, P.A. pertaining to the creation or modification of any will, trust, or other estate planning document for Keith Wellin. This includes any ESI, such as emails, memos, and notes created in furtherance of Bennett's estate planning work for Mr. Wellin, which must be identified by category and time period.
Additional Decisions
Wendy WELLIN, as the Special Administrator of the Estate of Keith S. Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, Plaintiff,
v.
Peter J. WELLIN, et al., Defendants,
Larry S. McDevitt, as Trustee of the Wellin Family 2009 Irrevocable Trust, Plaintiff,
v.
Peter J. Wellin, et al., Defendants,
Peter J. Wellin, et al., Plaintiff,
v.
Wendy Wellin, individually and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, Defendant
v.
Peter J. WELLIN, et al., Defendants,
Larry S. McDevitt, as Trustee of the Wellin Family 2009 Irrevocable Trust, Plaintiff,
v.
Peter J. Wellin, et al., Defendants,
Peter J. Wellin, et al., Plaintiff,
v.
Wendy Wellin, individually and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, Defendant
C.A. NO. 2:13-CV-1831-DCN, C.A. NO. 2:13-CV-3595-DCN, C.A. NO. 2:14-CV-4067-DCN
United States District Court, D. South Carolina, Charleston Division
Signed
January 19, 2016
Filed January 20, 2016
Counsel
Harry Cooper Wilson, III, McLeod Law Group LLC, James B. Hood, Molly Hood Craig, Robert H. Hood, Virginia Ann Rogers, Hood Law Firm, Charleston, SC, John T. Lay, Gallivan White and Boyd, Columbia, SC, William G. DesChamps, IV, LeClercq Law Firm, Mt. Pleasant, SC, James Andrew Bradshaw, Gallivan White and Boyd, Greenville, SC, for Plaintiff.James B. Hood, Hood Law Firm, Merritt G. Abney, Patrick Coleman Wooten, Robert H. Brunson, Lindsay S. Van Slambrook, Bryson M. Geer, Nelson Mullins Riley and Scarborough, Charleston, SC, for Defendants.
Howard, William L., Special Master
SPECIAL MASTER'S REPORT AND RECOMMENDATION RE: THE WELLIN CHILDREN'S MOTION TO COMPEL DOCUMENTS FROM THE FILES OF EDWARD BENNET, ECF NO. 318 IN 2:13-CV-1831-DCN
*1 The within matter is before the undersigned, sitting as Special Master, pursuant to the February 17, 2015 Order of the United States District Court for the District of South Carolina, Charleston Division, Hon. David C. Norton presiding. See ECF Nos. 270, 258, and 35.[1]
These lawsuits involve multiple issues surrounding the handling and disposition of the assets, trusts, and estate of Keith S. Wellin (Keith). The factual allegations and procedural histories of these cases are extensively outlined in the Order of Judge Norton issued in Wellin I, Case No. 2:13-cv-1831-DCN, ECF No. 158, filed on June 28, 2014, and in the Amended Report and Recommendation of the Special Master, ECF No. 320, filed on July 31, 2015.
The Wellin Children move, pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, for an Order compelling disclosure of documents related to the estate planning of Keith Wellin contained in the files of Edward Bennett. Mr. Bennett was Keith Wellin's estate planning attorney from June 2013 until his death on September 14, 2014. Wendy C.H. Wellin, as Special Administrator of the Estate of Keith Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, objects to production on the grounds that the documents sought are protected by the attorney-client privilege and are subject to work product protection as well.
FACTS/PROCEDURAL HISTORY PERTINENT TO THE MOTION TO COMPEL
On February 14, 2014, the Wellin Children served their First Set of Requests for Production on the Plaintiff. These requests included demands for any and all documents which evidence, reference, or relate to the modifications made by Keith Wellin to his Last Will and Testament, the Wellin Family 2009 Irrevocable Trust, the Keith S. Wellin Florida Revocable Living Trust, and his various powers of attorney. (See First Requests for Productions Nos. 17, 18, 19, 22, and 23). The Wellin Children correctly note that these requests would encompass certain documents contained in the file of Edward Bennett, the attorney who prepared Keith Wellin's modifications to his estate plan in 2013 and 2014.
Plaintiff Wendy Wellin asserts that the requested documents are protected by the attorney-client and work product privilege and that no valid exception or waiver exists under the circumstances presented to the Court. Wendy Wellin also notes that, in November of 2014, the Wellin Children were provided with over 241 pages of “estate planning documents” in addition to the Revocable Trust as amended on June 27, 2014. It also appears that an initial privilege log pertaining to the Bennett files was provided at that time, and subsequently, in April of 2015, an additional 1,791 pages of supplemental production was provided on behalf of Mr. Bennett's office in response to these requests. This April 2015 production was accompanied by an Amended Bennett Privilege Log which identified 10 categories of documents being withheld on the assertion of privilege.[2]
*2 In addition, Ms. Wellin asserts that drafts or final estate planning documents and internal memoranda, emails, and notes were not placed on a privilege log pursuant to the Wellin Children's own request. Rather, these documents were merely identified by category as being withheld on the basis of privilege pursuant to the parties' understandings and agreement.
The Wellin Children filed this Motion to Compel, seeking not only certain documents identified on the Bennett Privilege Log, but also all non-privileged documents possessed by Attorney Bennett which pertain to Keith Wellin's estate planning modifications. Although the Court has reviewed in camera the documents set forth on the Bennett Privilege Log, the remaining documents contained in the Bennett files have not been provided or reviewed.
DISCUSSION
I. Attorney-Client Privilege
The Wellin Children argue the requested Bennett files are not protected from disclosure because the testamentary exception to the attorney client privilege applies.
The attorney/client privilege protects against disclosure of confidential communications by a client to his attorney. State v. Owens, 309 S.C. 402, 424 S.E.2d 473, 476 (1992)(citing State v. Love, 275 S.C. 55, 271 S.E.2d 110 (1991)). The privilege is to be construed strictly, State v. Doster, 276 S.C. 647, 284 S.E.2d 218, 219 (1981), and balanced against the public interest in the proper administration of justice. Id. at 220 (citing NLRB v. Harvey, 349 F.2d 900 (4th Cir. 1965)); Sepler v. State, 191 So.2d 588 (Fla. Dist. Ct. App. 1966). To be privileged, the communication must relate to a fact of which the attorney was informed by her client, outside the presence of strangers, for the purpose of securing primarily an opinion on law, legal services, or assistance in some legal proceeding. Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44, 47 (Ct. App. 1984).
“The attorney-client privilege is based upon a public policy that the best interest of society is served by promoting a relationship between the attorney and his client whereby utmost confidence in the continuing secrecy of all confidential disclosures made by the client within the relationship is maintained.” State v. Doster, 276 S.C. at 651, 284 S.E.2d at 219. “The privilege belongs to the client and, unless waived by him, survives even his death.” Id.; South Carolina State Highway Dept. v. Booker, 260 S.C. 245, 254, 195 S.E.2d 615, 620 (1973). “However, the privilege is not absolute: ... ‘[t]he public policy protecting confidential communications must be balanced against the public interest in the proper administration of justice.’ ” Ross v. Med. Univ. of S. Carolina, 317 S.C. 377, 384, 453 S.E.2d 880, 884 (1994)(quoting Doster, 276 S.C. at 651, 284 S.E.2d at 220 (internal citations omitted)).
As explained by the Supreme Court of the United States:
[S]ince the privilege has the effect of withholding relevant information from the fact-finder, it applies only where necessary to achieve its purpose. Accordingly, it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.
One exception to the attorney-client privilege which has been recognized as a part of the federal common law and adopted in a vast majority of the states is the “testamentary exception.” The testamentary exception to the attorney-client privilege is grounded upon the recognition that statements made by the deceased to counsel respecting the execution of his or her will or other similar document “are not within the reason of the rule requiring their exclusion, when the contest is between the heirs or next of kin.” Glover v. Patten, 165 U.S. 394, 406-407, 17 S. Ct. 411, 416, 41 L.Ed. 760. As stated in Blackburn v. Crawfords, 3 Wall. 175, 194, and quoted in Glover.
*3 The client may waive the protection of the rule. The waiver may be expressed or implied. We think it as effectual here by implication as the most explicit language could have made it. It could have been no clearer if the client had expressly enjoined it upon the attorney to give this testimony whenever the truth of his testamentary declaration should be challenged by any of those to whom it related. A different result would involve a perversion of the rule, inconsistent with its objects, and in direct conflict with the reason upon which it is founded.
Glover, 165 U.S. at 408.
South Carolina has not directly addressed the testamentary exception, either legislatively or through the courts. Rule 501 of the South Carolina Rules of Evidence provides:
Except as required by the Constitution of South Carolina, by the Constitution of the United States or by South Carolina statute, the privilege of a witness, person or government shall be governed by the principles of the common law as they may be interpreted by the courts in the light of reason and experience.
Neither the parties nor the undersigned have found any South Carolina statute or case law in which the testamentary exception has been adopted or rejected. It does appear, however, that it has been universally accepted by nearly all states which have considered it, and has been codified in a majority of jurisdictions as the only posthumous exception to the attorney-client privilege. See Paul A. Gordon, Evidence/Professional Responsibility-Life After Death: The Attorney-Client Privilege-Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998), 72 Temp. L. Rev. 493, 506 (1999); See also, e.g., In Re Kemp's Will, 236 N.C. 680, 73 S.E. 2d 906 (1953); Yarbrough v. Yarbrough, 202 Ga. 391, 43 S.E. 2d 329 (1947); Estate of Hamilton v. Morris, 67 S.W.3d 786 (Tenn. Ct. App. 2001); Green v. McClintock, 218 Md. App. 336, 97 A.3d 198 (2014); Estate of Shapter, 35 Colo. 578, 85 P. 688 (1905); Fletcher v. Superior Court, 44 Cal. App. 4th 773, 52 Cal. Rptr. 2d 65 (1996). It is also recognized as an exception to the attorney-client privilege under federal common law. Glover v. Patten, 165 U.S. 394 (1897). In fact, neither party has identified any state which has considered and rejected the testamentary exception.[3]
In light of its near universal acceptance, I conclude it is appropriate for the Court to predict how the South Carolina Supreme Court would rule if confronted with this issue. See Episcopal Church in S. Carolina v. Church Ins. Co. of Vermont, 2014 WL 5302955 at 3 (D.S.C. Sept. 22, 2014)(“If the South Carolina Supreme Court has not addressed a particular legal issue raised in this case, this Court must predict how that court would rule if presented with the issue.”).
To aid in this analysis, “this court is authorized to consider all available legal sources, including restatements of the law, treatises, law review commentaries, decisions from other jurisdictions whose doctrinal approach is substantially the same, and the ‘majority rule.’ ” TCX, Inc. v. Commonwealth Land Title Ins. Co., 928 F. Supp. 618, 623 (D.S.C. 1995)(internal citations omitted); see also Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005)(“In making that prediction, the Court ‘will consider lower court opinions in South Carolina, the teachings, treatises, and the practices of other states.’ ”; Rash v. Stryker Corp., 589 F. Supp.2d 733, 735 (W.D. Va. 2008)(holding that the federal court may consider “[t]he general trend among other states” when predicting how the state's highest court would rule); Atl. Mach. & Equip., Inc. v. Tigercat Indus., Inc., 419 F. Supp.2d 856, 859 E.D. Va. 2006)( holding that “[t]he Court must also employ common sense and guided logic.”).
*4 South Carolina case law recognizes that the attorney-client privilege is to be strictly construed. State v. Doster, 276 S.C. at 284 S.E.2d at 219. Furthermore, as noted previously, the privilege is not absolute, and “[t]he public policy protecting confidential communications must be balanced against the public interest in the proper administration of justice.” Ross v. Med. Univ. of S. Carolina, 317 S.C. at 384, 453 S.E.2d at 884 (quoting Doster, 276 S.C. at 651, 284 S.E.2d at 220 (internal citations omitted)).
Although the undersigned has found no cases in South Carolina directly addressing the testamentary exception, the testimony of a deceased testator's attorney in support of the testator's intended disposition of his estate and mental capacity to make the disposition has been historically allowed into evidence in will contests between heirs, legatees and devisees in the courts of South Carolina. See, e.g., Wilson v. Gordon, 73 S.C. 155, 53 S.E. 79 (1905); Smith v. Whetstone, 209 S.C. 78, 39 S.E.2d 127 (1946); Mock v. Dowling, 266 S.C. 274, 222 S.E.2d 773 (1976); Hellams v. Ross, 268 S.C. 284, 233 S.E.2d 98 (1977); Byrd v. Byrd, 279 S.C. 425, 308 S.E.2d 788 (1983)(Harwell, J., dissenting); Calhoun v. Calhoun, 277 S.C. 527, 290 S.E.2d 415 (1982); Russell v. Wachovia Bank, N.A., 370 S.C. 5, 633 S.E.2d 722 (2008); Hairston v. McMillan, 387 S.C. 439, 692 S.E.2d 549 (Ct. App. 2010).
In Wilson, the South Carolina Supreme Court held that “as between [two deceased testators] or those claiming under them, the communications made by them to [their attorney] were not privileged, especially as these communications related to instructions for drawing their wills. Wilson, 73 S.C. at 155, 53 S.E. at 81. In support of this holding, the Court cited the Georgia case of O'Brien v. Spalding, 66 Am. St. Rep. 202 (1897). In O'Brien, the Georgia Supreme Court first recognized what has become known as the testamentary exception. In that case, the plaintiff in error asserted it was improper to allow the attorney for the deceased testator to testify in the trial as to his communications with the decedent. On appeal, the plaintiff in error conceded that the common law recognized the testamentary exception, stipulating to the following in their appellate brief:
By weight of authority under the common law, it was held that the reason of the general rule does not apply to communications made to an attorney by a testator while giving instructions for drafting a will; that the protection which the rule gives, and is intended to give, is the protection of the client; and that it cannot be said to be for the interests of a testator, in a controversy between other parties, to have those declarations excluded which are relevant, and which were necessary to the proper execution of his will ... In other words, we concede the proposition that under the common law the courts have held that an attorney can testify as to what occurred between him and the testator, and that it does not violate the policy of the law which gave birth to the rule.
O'Brien, 31 S.E. at 101, 66 Am.St.Rep. 202.
Notwithstanding this concession, plaintiff in error argued the recent Georgia codification of the common law rule of attorney-client privilege had modified the privilege so as to exclude this exception. Rejecting this argument, the court found nothing in the statute intimating that it was designed to protect persons other than the client. Having so concluded, the court applied the reasoning of the testamentary exception to allow the testimony, ruling as follows:
*5 To the present controversy, Mrs. Flynn [the deceased testatrix], “the client,' is neither a party plaintiff nor a party defendant.... Nor can it be said that, in a controversy of this nature, the attorney drafting the will is called upon to testify “for or against” the interests of his client's estate. On the contrary, the proceeding is simply one in which certain persons claiming under, and not adversely to, the “client,” seek to have an investigation made into the circumstances attending the execution of the instrument offered for probate, in order that their rights in the premises may, as against the persons represented by the propounder, be finally adjudicated. It is a proceeding provided for and sanctioned by law, in which it is necessarily contemplated that the whole truth shall be elicited from every reliable source, to the end that full and complete justice may be done, not only to the living, but to the dead.
O'Brien, 31 S.E. at 101, 66 Am.St.Rep. 202.
It would seem inescapable that the South Carolina Supreme Court has historically looked favorably upon the reasoning that supports the application of testamentary exception. However, the testamentary exception is not specifically identified as an issue, nor is it discussed or ruled upon, in the above cited South Carolina cases. Thus, it cannot be fairly said that the South Carolina Supreme Court has adopted the testamentary exception to the attorney-client privilege, even though the Court has considered the testimony of the testator's attorney in its discussions and in support of its decisions. However, it is fair to infer that the Court considers the testimony to be material to the factual issues surrounding a testator's intent, the assertion of undue influence, and as bearing on the testator's mental capacity at the time of making of the will.
The testamentary exception to the attorney-client privilege is often premised on the idea that the testator has impliedly waived the privilege at the time of his death because he or she would undoubtedly want their lawyer to disclose otherwise privileged information which would elucidate their desires and intentions if a legal action among heirs (or the like) arose. See e.g., Glover v. Patten 165 U.S. 394 (1897). Courts applying the testamentary exception reason that applying the attorney-client privilege to prevent disclosure of these relevant communications between the testator and his counsel under these circumstances is not in furtherance of the interests of the decedent client. As stated in Blackburn:
“[Waiver of the attorney-client privilege] could have been no clearer if the client had expressly enjoined it upon the attorney to give his testimony whenever the truth of his testamentary declaration should be challenged by any of those to whom it related. A different result would involve a perversion of the rule, inconsistent with its objects, and in direct conflict with the reason upon which it is founded.”
Blackburn, 70 U.S. at 194.
This rationale has not been extended to all legal actions arising from or against an estate. It is well-established that the testamentary exception is only applicable where the testator's intent is in dispute amongst beneficiaries and/or heirs, and does not extend to third parties claiming against the estate. Glover, 165 U.S. at 406, 17 S.Ct. at 416; Russell v. Jackson, 9 Hare 387; Duggan v. Keto 554 A.2d 1126, 1141 (Ct. App. D.C. 1989); De Loach v. Myers, 215 Ga. 255, 259-61, 109 S.E.2d 777, 780-781 (1959); Runnels v. Allen's Adm'r, 169 S.W.2d 73, 76 (Mo. Ct. App. 1943); In re Smith's Estate, 263 Wis. 441, 447-449, 57 N.W.2d 727, 730 (1953).
Thus, recognizing the testamentary exception is consistent with South Carolina common law by strictly construing the attorney-client privilege and by recognizing the scales tip in favor of the public interest in the proper administration of justice by providing evidence regarding the testator's donative intent otherwise unavailable to the fact finder. See Ross, 317 S.C. at 384, 453 S.E.2d at 884 (ruling “[t]he public policy protecting confidential communications must be balanced against the public interest in the proper administration of justice.”). Conversely, the undersigned can find no statutory law or judicial opinion in South Carolina which provides any basis to reject the testamentary exception.
*6 In summary, the overwhelming weight of authority from other jurisdictions supports the application of the testamentary exception to the attorney-client privilege. There are no states that the undersigned has found rejecting the exception. It appears in all respects to be consistent with South Carolina public policy to protect the attorney-client privilege when to do so will serve the purpose of the rule, yet to yield the privilege to the interest of justice when it does not. Finally, I conclude it comports with common sense and sound reasoning. Therefore, I conclude, if faced with this question, the South Carolina Supreme Court would adopt the testamentary exception to the attorney-client privilege.
Plaintiff Wendy Wellin, as Special Administrator of the Estate of Keith Wellin, argues that these proceedings are distinctly different from the litigation in which application of the testamentary exception is appropriate. As Plaintiff notes, prior to his death, the testator initiated suit against the Wellin Children to set aside the Wellin Family 2009 Irrevocable Trust and the then existing estate plan. Plaintiff asserts there could be no clearer expression of the testator's intent than the filing of this action, and application of the exception would serve to undermine the purpose of the attorney-client privilege by divulging attorney-client communications that occurred in the litigation during his lifetime. I find this argument unpersuasive.
The Defendant Wellin Children maintain that the 2013 and 2014 will and trust documents were procured by Wendy Wellin with undue influence at times when Keith Wellin was mentally incapacitated. To allow the attorney-client privilege to shield the communications of Keith Wellin with attorney Bennett during this time period would essentially be to cede control of the privilege to Wendy Wellin in her role as the Special Administrator of Keith Wellin's estate.
But the purpose of the testamentary exception is to allow those communications between the testator and counsel necessary to protect the Estate, and to aid in a proper disposition of it. As between the heirs and those related, the privilege belongs to each, and not to the Administrator. As noted in In re Will of Downing, 118 Wis. 581, 592, 95 N.W. 876, 880 (1903):
“[T]he reasons for the rule which protects from disclosure communications made in professional confidence apply in cases of conflict between the client or those claiming under him, and third persons, but do not apply in cases of testamentary disposition by the client as between different parties, all of whom claim under him. The privilege does not belong to the executors as against the next of kin, but following the legal interest, is subject to the trust, and incident to which the legal interest is subject.”
Id.,(quoting Russell v. Jackson, 9 Hare 378, 68 Eng.Reprint 558 (1851)).
Furthermore, although Keith Wellin may have expressed his position with regard to the disposition of his estate in the final will and estate related documents prepared by attorney Bennett, and sought to revoke his prior estate plan through the litigation he initiated, the fact remains that his mental capacity to make those decisions, as well as the influences that caused him to take those actions, are still factually disputed. See In re Layman's Will, 40 Minn. 371, 42 N.W. 286 (S. Ct. Minn. 1889)(applying the testamentary exception where the issue in the case was as to the mental soundness of the person under whom each litigant claimed). As the Layman court reasoned:
[T]he privilege is for the protection of the client and not the attorney, and it would not be to the interest of the testator that his property be disposed of in a manner that did not reflect his true intention, as would be the case if the execution of his purported last will had been induced as the result of the undue influence exerted upon him by some third person.
*7 Id., 263 Wis. at 449, 57 N.W.2d at730.
To rule that the testamentary exception does not apply because of Keith Wellin's expressed intent in the litigation initiated prior to his death or in his deposition would be to decide the issue of his intent as a matter of law, which would be legally improper at this stage of the proceeding.
However, this does not mean the entire file of attorney Bennett and his office is subject to production under this Motion to Compel. Keith Wellin died on September 14, 2014. Thereafter, his widow, Wendy C.H. Wellin, as Special Administrator of the Estate of Keith S. Wellin, and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2001, was substituted as the named Plaintiff in the litigation. The testamentary exception to the attorney-client privilege is limited to the communications between the deceased testator and his attorney. It is those communications that are relevant to a determination of the testator's true intent, and serve the testator's purpose by aiding in the process by which his estate will be distributed in accordance with that true intent. But that same reasoning does not apply to the communications of the Special Administrator of the estate after the death of the testator. Consequently, the reason for the exception does not apply in that instance, and the testamentary exception provides no basis for undermining the attorney-client privilege for the communications between Wendy C.H. Wellin and attorney Bennett or his Firm in the litigation. Though the decedent's attorney-client privilege “does not belong to the executors as against the next of kin,” Russell v. Jackson, 9 Hare 378, 68 Eng.Reprint 558, this does not implicate the attorney-client privilege of the representative.
II. The Work Product Privilege
Plaintiff next asserts the documents Defendants seek are protected by the work product privilege. Federal law applies to determine whether or not the summaries and notes are protected by the work-product privilege. This is so because the privilege is a creature of Federal Rule of Civil Procedure 26(b)(3), which codified the privilege as first recognized by the Supreme Court in Hickman v. Taylor, 329 U.S. 496 (1947). See, Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 983-984 (4th Cir. 1992); Doe v. United States (In re Doe), 662 F.2d 1073, 1078 (4th Cir. 1981) cert. denied, 455 U.S.1000, 102 S. Ct. 1632, 71 L.Ed.2d 867 (1982); First S. Bank v. Fifth Third Bank, N.A., Civ. No. 10-2097, 2013 WL 1840089 at 4 (D.S.C. May 1, 2013); United Coal Cos. V. Powell Constr. Co., 839 F.2d 958, 966 (3d Cir. 1988); PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002). The party asserting the privilege bears the burden of establishing the documents the party seeks to protect were prepared in anticipation of litigation. In re Grand Jury Proceedings, Thursday Special Grand Jury, Sept. Term, 1991, 33 F.3d 342, 352 (4th Cir. 1994); see also, Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 697 (N.D. Ga. 2007); United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006). “Thus, in resolving the question of whether matters are immune from discovery because of a work product rule, attention must be turned first to whether the documents or tangible things were prepared in anticipation of litigation or for trial....” National Union Fire Ins. Co., 967 F.2d at 984.
*8 The Defendants argue these documents are not protected by the work-product privilege because they were not prepared in anticipation of litigation.
In determining the applicability of the privilege, most courts look to whether or not the document was prepared because of the prospect of litigation. Tobbaccoville USA, Inc., 387 S.C. at 294 (citing Nat'l Union Fire Ins. Co., 967 F.2d at 984). As the Fourth Circuit noted in National Union Fire Ins. Co., “[t]he document must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation.” Id., 967 F.2d at 984.
To highlight the distinction between a document created because of the prospect of litigation and one prepared with the general possibility of litigation in mind, the Court further explained:
We take notice of the fact that members of society tend to document transactions and occurrences to avoid the foibles of memory and to perpetuate evidence for the resolution of future disputes. And because litigation is an ever-present possibility in American life, it is more often the case than not that events are documented with the general possibility of litigation in mind. “Yet [t]he mere fact that litigation does eventually ensue does not, by itself, cloak materials” with work product immunity.
Under the testamentary exception to the attorney-client privilege, the communications and documents subject to the exception are limited to those which might bear upon the testator's true intent, which would include his capacity and his communications regarding the underlying motives or purposes for his estate plan. These same communications cannot be said to relate primarily to the litigation attacking the previous estate plan because the driving force behind the preparation of the documents fitting within the parameters of the exception is the creation of a new will and estate plan. Consequently, I conclude the work product privilege does not apply to prevent disclosure.
III. Rule 26(f) Controversy
The document production provided by Attorney Bennett excluded communications between Keith Wellin or Wendy Wellin and Mr. Bennett and his firm on the grounds that they were protected by the attorney-client privilege and by the agreement of the parties, contained in their joint Rule 26(f) Report, no privilege log was needed to identify them. As a result, no privilege log was created with regard to these documents.
The Joint Rule 26(f) Report reads, in pertinent part, as follows:
If any privileged or otherwise protected documents are identified as responsive to discovery, the parties agree that the producing party will provide to the requesting party a privilege log that identifies each separate document for which a privilege is being asserted, the sender, recipients, including persons carbon copied, date, description of the document sufficient to allow the receiving party to assess the applicability of the privilege, and the nature of the privilege being asserted. However, the parties agree that the communications between the parties and their respective legal counsel (made to or from the counsel in his or her capacity as legal counsel) do not need to be disclosed on a privilege log. (emphasis added)
*9 Unfortunately, the italicized portion of the agreed upon procedure does not specify whether it is intended to apply to communications between the parties and all of their respective counsel, or only their litigation counsel. Clearly, it does not differentiate between the two, so the Plaintiff has acted within the stipulation as written in not producing a privilege log regarding the remaining documents withheld on the basis of privilege. Conversely, it is reasonable to assume what was within the contemplation of the parties at the time of the stipulation was the relationship between the parties and their respective counsel involved in handling the litigation, for it is these communications that are typically recognized as privileged unless disclosed in a manner that waives the privilege. Because I conclude the testamentary exception does apply to allow discovery of those communications between Keith Wellin and his estate planning counsel, Evans, Carter, Kunes and Bennett, P.A., pertaining to his donative intent, it becomes necessary for Plaintiff to prepare a privilege log for each electronic communication or document which Plaintiff believes is not within the parameters of the testamentary exception, in order to allow Defendants to further contest the decision to withhold them on the basis of privilege. However, in view of the ambiguity in the parties' Rule 26(f) stipulation, I conclude this mandate should apply only to those documents currently within the Plaintiff's possession, custody or control.[4]
For the foregoing reasons, I make the following Recommendations to this Honorable Court:
1) That the testamentary exception to the attorney-client privilege be applied to compel disclosure of all documents containing communications between Keith Wellin and Edward Bennett and his law firm, Evans, Carter, Kunes and Bennett, P.A., pertaining to the donative intent of Keith Wellin, to include any evidence regarding his mental state, any transactions, circumstances or instructions given by Keith Wellin in connection with any trust, will or other estate planning document;
2) That the Defendant Wellin Children's Motion to Compel Production be granted in part, requiring the Plaintiff to produce all documents evidencing a communication between the decedent, Keith Wellin, and any of the attorneys in the law firm Evans, Carter, Kunes and Bennett, P.A. pertaining to the creation or modification of any will, trust, or other estate planning document for Keith Wellin, to include any communication between Keith Wellin and the said attorneys relating to Keith Wellin's donative intent, his mental state, and any transactions, circumstances or instructions given by Keith Wellin in connection with any trust, will or other estate planning document;
3) That the Order compelling production specifically include production of the documents listed in categories 2, 3, 4, and 5 on the current Bennett Privilege log;
4) That the Plaintiff be required to prepare a privilege log for any documents contained in the files of the said law firm as of the date of this Report and Recommendation which are withheld from production on the basis of privilege;
Respectfully Recommended, this 19th day of January, 2016.
Footnotes
The electronic case filing numbers refer to entries submitted in Case Nos. 2:13-cv-1831-DCN, 2:13-cv-3595-DCN, and 2:14-cv-4067-DCN respectively. These cases have been consolidated for pre-trial purposes. Hereinafter, unless otherwise indicated, all references to electronic filing numbers will be directed to filings in Case No. 2:13-cv-1831-DCN only.
Only 4 categories of the documents listed on the privilege log and provided to the undersigned for in camera review are still sought by Defendants. The Wellin Children have acknowledged that they are not moving to compel the “final five entries” of the documents contained on the Bennett Privilege log. See ECF No. 312 at pg. 3 fn. 2. Additionally, the Court has previously ordered that the documents identified in the first category be produced. As a result, only Categories 2, 3, 4 and 5 remain unresolved with regard to the Bennett Privilege Log.
It appears that at least Washington, like South Carolina, has not formally adopted the testamentary exception. However, it does not appear that it has rejected the exception.
The Defendants have indicated they are only seeking a description, by category and time period, of draft or final estate planning documents and internal memoranda, emails, and notes “created in furtherance of Bennett's estate planning work for Mr. Wellin.” As Defendants explained in their December 29, 2014 letter to opposing counsel, Defendants are not seeking a document-by-document list of such documents withheld-Defendants simply want to understand the categories of such documents withheld.” Consequently, documents not subject to the testamentary exception, but fitting within this description, need only be identified by category.