Court Held That Estate Representative Was Entitled To Discover Documents To Establish A Claim

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In In re Cokinos, Boisien & Young, a representative of an estate of a deceased attorney sought documents from a law firm related to an alleged agreement to share fees. No. 05-16-01331-CV, 2017 Tex. App. LEXIS 6911 (Tex. App.—Dallas July 25, 2017, original proceeding). The trial court ordered that the estate representative have access to correspondence documents to which the deceased lawyer was a party because they may be relevant to a fee-sharing dispute between the estate and the law firm. The law firm filed a petition for writ of mandamus, challenging the order and arguing that the trial court abused its discretion because the documents were privileged, attorney-client communications and/or subject to the work product doctrine. The court of appeals held that an executor stands in the decedent’s shoes, and that the estate is entitled to copies of the decedent’s e-mail correspondence just as the decedent would be entitled to the e-mails if he were alive. The court held: “Indeed, where it is reasonable to do so, the estate representative is to exercise ordinary diligence to collect all claims and debts due the estate. The Estate, thus, had a duty to seek out these communications to determine if fees were owed to the Estate and litigate if necessary to recover those fees.” Id. Regarding the claim of privilege, the court held that an attorney is permitted to retain a copy of his file and that a privilege would only protect discovery by third-parties, not discovery by a party to the communication. Id. The court denied the petition for writ of mandamus and allowed the discovery order to proceed.

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