121 F.4th 1017
3d Cir.2024Background
- Robert Maigetter and his late wife, Barbara Berot, jointly owned a co-op; Berot's will did not clearly provide for its transfer to her son, Alexis Kyriakopoulos, upon her death, though she expressed that intent.
- After Berot died, Kyriakopoulos sued Maigetter (not to contest the will directly) but to enforce an alleged agreement that the co-op would go to him.
- During discovery, Kyriakopoulos requested emails between Maigetter and their attorney, Sarah Eastburn, which were sent after Berot's death and discussed Berot's intentions.
- Maigetter claimed attorney-client privilege over these communications; the District Court ordered some emails produced under the "testamentary exception," reasoning they were probative of Berot’s intentions.
- On interlocutory appeal, the appellate court considered whether the testamentary exception covered not just the decedent's own communications, but also later communications by others discussing the decedent’s intent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of Testamentary Exception | Exception should apply to communications about decedent’s intent, even if by third parties after death | Exception only applies to communications between decedent and attorney before death | Exception applies only to direct communications between deceased client and their attorney |
| Type of Dispute Covered | Suit to enforce alleged contract to will is similar to traditional will contest | This is not a will contest; contract claims are outside the traditional scope | Exception not available in contract claims over estate assets, only will disputes |
| Purpose Behind Exception | Focus should be on ascertaining decedent’s intent, regardless of source | Exception is justified to clarify disputed intentions between parties claiming under the will | Exception only justified to clarify testator’s intentions when in genuine dispute between devisees |
| Waiver of Privilege | Implied waiver should be extended to third party communications that reveal intent | Privilege belongs to client, only client (or estate) can waive; cannot extend to others’ privilege | Only decedent's privilege subject to implied waiver for testamentary disputes |
Key Cases Cited
- Swidler & Berlin v. United States, 524 U.S. 399 (U.S. 1998) (attorney-client privilege survives death, subject to narrow exceptions)
- Glover v. Patten, 165 U.S. 394 (U.S. 1897) (explains the scope and rationale of the testamentary exception to attorney-client privilege)
- Blackburn v. Crawford, 70 U.S. 175 (U.S. 1865) (first Supreme Court articulation of the testamentary exception to privilege)
- Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994) (only the client may waive attorney-client privilege)