Category Archives: Important Cases

TX Court Holds Drafts of Trust Are Discoverable

In In re Rittenmeyer, a Texas case, the mother of the decedent was the executor of his estate.  Among other claims, the decedent’s wife alleged that there was a new will that superseded the 2011 Will admitted to probate. The wife sought discovery of drafts of wills prepared after the 2011 Will, trust documents where the decedent was a beneficiary, and communications reflecting the decedent’s intentions regarding providing for the wife. The mother objected to the discovery requests and asserted that the documents were privileged. The wife maintained that the documents are exempt from privilege by Texas Rule Evidence 503(d)(2), which provides that the attorney-client privilege does not apply “if the communication is relevant to an issue between parties claiming through the same deceased client.” Id.The trial court granted the wife’s motion to compel, and the mother filed a petition for writ of mandamus.

The court of appeals discussed the law regarding Rule 503(d)(2):  Texas jurisprudence contains scant authority addressing the exception found in Rule 503(d)(2).  Texas courts have applied the exception to information such as the discovery at issue here wherein a party contends a decedent’s will does not reflect the decedent’s true intent. See, e.g., In re Paschall,2013 Tex. App. LEXIS 1254, 2013 WL 474368, at *7 (trust documents not privileged because the documents are relevant to parties’ claims that they are the decedent’s heirs at law and their assertion that the trust into which the estate was poured is invalid); see also In re Tex. A&M – Corpus Christi Foundation, 84 S.W.3d 358 (Tex. App.—Corpus Christi 2002, orig. proceeding) (permitting depositions of decedent’s counsel regarding decedent’s intentions and capacity where Foundation alleged decedent’s gift to the Foundation was planned and valid whereas estate contended the gift to the Foundation was procured through fraud).

Courts in other jurisdictions have also exempted similar discovery from the attorney-client privilege where, as here, the dispute is between the executor or representative of the estate and someone claiming rights under the decedent’s estate. See Remien v. Remien, No. 94 C 2407, 1996 U.S. Dist. LEXIS 10114, 1996 WL 411387 (N.D. Ill. July 19, 1996) (discovery not subject to the privilege because the dispute arose “between parties who claim through the same deceased client” where the daughter and the co-executors of the father’s estate both claimed property rights through father, and the documents at issue were relevant to that dispute which centered on the father’s intentions regarding the distribution of stock); see also Petition of Stompor, 165 N.H. 735, 740, 82 A.3d 1278, 1282-83 (2013) holding that attorney’s file was not privileged because it was relevant to determine whether the petitioner unduly influenced the parents at the time they executed their estate plan in 2004 and to ascertaining whether the 2004 estate plan documents reflected the parents’ true intent).  The court held that the case at issue was similar to the other Texas cases cited above in that it involved a dispute between a decedent’s estate and a party who claims to be a beneficiary under the estate either through a subsequent will or because the probated will does not reflect the decedent’s intentions.

The court concluded: “Under these facts, we conclude the trial court was within its discretion in applying Rule 503(d)(2) to the discovery, determining that the parties claim through the same deceased client, and compelling relator to produce that discovery.”Id.

Cell Phone Records Do Not Need A Warrant

Police don’t have to get a search warrant to obtain records about cellphone locations in criminal investigations, a federal appeals court ruled Tuesday in a case closely watched by privacy rights advocates.


The 12-3 decision by the full 4th U.S. Circuit Court of Appeals reversed a three-judge panel’s ruling last year that the constitutional protection against unreasonable search and seizure requires police to get a warrant for information obtained from cell towers.


The Richmond-based appeals court now agrees with the only other three federal appeals courts that have taken up the issue, making it less likely that the U.S. Supreme Court will consider the matter. Meghan Skelton, attorney for the two Maryland men who challenged the use of cell tower data, said she will ask for Supreme Court review anyway because there is disagreement among the circuits on some of the underlying issues.


The ACLU was one of several organizations that filed friend-of-the court briefs in the case involving two men convicted of a series of armed robberies in the Baltimore area. Police used cellphone tower records tracking the suspects’ movements to tie them to the crimes.


Judge Diana Gribbon Motz wrote in Tuesday’s majority opinion that the Supreme Court has long held that the Fourth Amendment does not protect information that a person voluntarily turns over to a third party — in this case, the defendants’ cellphone service providers.


“The government did not surreptitiously listen to, record, or in any other way engage in direct surveillance of defendants to obtain this information,” she wrote.

Sex Offenders Win Big

Registered U.S. sex offenders, banned from social networking, are fighting back in the courts by successfully challenging restrictions as infringements on free speech and their right to participate in common online discussions.

The legal battles pit those convicted of sex crimes against guarantees of individual freedom and the far-reaching communication changes brought by Facebook, Twitter and other websites.

Courts have long allowed U.S. states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many of them live and work and requiring them to register with police.  The bans being challenged forbid offenders from joining social networks or chat rooms. Civil liberties advocates equate participating in these with free speech.

After hearing challenges, federal judges in two states threw out laws or parts of laws that they deemed too stringent. In Nebraska, the decision allowed sex offenders to join social networks. In Louisiana, a new law lets offenders use the Internet for shopping, reading news and exchanging email. A case filed against Indiana’s law is under review. Authorities believe the bans address the need to protect children from pedophiles who prowl online sites visited by kids.

The American Civil Liberties Union of Indiana, which is challenging Indiana’s 2008 law, argues that it’s unconstitutional to bar sex offenders who are no longer in prison or on probation from using basic online services. But prosecutors argue that social networking sites aren’t the only forms of communication and other means are available to accommodate an offender’s free speech rights.

Fox News v. Children of Suspect

The question presented in the case of Angela Rodriguez v. Fox News Network was whether the First Amendment protects a broadcaster that aired a high-speed police chase of a carjacking suspect, which ended abruptly in the suicide of the suspect, from a claim for intentional infliction of emotional distress brought by the children of the suspect. In this case, decided on August 4, 2015 in the Arizona Court of Appeals, Division 1, an armed carjacking suspect led police on a high-speed chase that ended abruptly when he got out of the vehicle, put a handgun to his head and shot himself.

After Fox News Networks broadcast the chase and the suicide live, the two teenage sons of the suspect learned their father had killed himself when they saw a clip of the broadcast on the Internet a few hours later. Their mother sued Fox on their behalf, alleging negligent and intentional infliction of emotional distress. The superior court granted Fox’s motion to dismiss the case. Because the First Amendment bars the tort claims, the Arizona Court of Appeals affirmed.  So the winner is Fox News Network.  They can broadcast this kind of video without fear that immediate family members watching will be able to successfully bring a claim for infliction of emotional distress.


Arizona Revenge Porn Law Unconstitutional

U.S. District Judge Susan R. Bolton ordered Arizona state prosecutors last week to stop enforcing Arizona’s so-called “revenge porn” law. Her decree came as she approved the settlement in the case of Antigone Books v. Brnovich which challenged the law as unconstitutional.

The revenge porn law, called the “Unlawful Distribution of Images” statute, was signed by former Governor Jan Brewer last year and made it a felony “to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.”

Those who sponsored it were trying to prevent nonconsensual pornography—particularly nude images posted on the internet by an angry ex-lover, commonly called “revenge porn.” On websites like this type of content can be found but there is also plenty of legal consensual adult content on here and its important to differentiate. But a group of Arizona booksellers, publishing companies, newspapers, librarians, and photographers sued the state arguing that the language was “an unconstitutionally overbroad and viewpoint-based restriction on protected speech.”

Arizona’s revenge porn law would make it a felony to publish certain educational materials about breastfeeding, or newsworthy photographs like those taken at the Abu Ghraib prison. It “could have led to the conviction of someone posting a nude photo with no intent to harm the person depicted,” notes the ACLU, which served as co-counsel for the plaintiffs.

“More than half of the states have passed some form of revenge porn law, and certainly not all of them are unconstitutional” Lee Rowland, senior staff attorney for the ACLU, told the New Times magazine of Phoenix, Arizona. “But because they tend to regulate free speech, we at the ACLU look at them closely.” The law may be revised and resubmitted by its sponsors. It won’t be illegal though to upload homemade porn movies as long as all who participate give consent, you can see adult movies like these on websites like

USA Settles With Navajo Nation

The Obama administration has agreed to pay the Navajo Nation a record $554 million to settle longstanding claims by America’s largest Indian tribe that its funds and natural resources were mishandled for decades by the U.S. government. The accord, resolving claims that date back as far as 50 years, will be signed at a ceremony on Friday in Window Rock, Arizona, the capital of the sprawling Navajo nation.

The deal stems from litigation accusing the government of mismanaging Navajo trust accounts and resources on more than 14 million acres of land held in trust for the tribe and leased for such purposes as farming, energy development, logging and mining. In return for $554 million, the Navajo agreed to dismiss its lawsuit and forego further litigation over previous U.S. management of Navajo funds and resources held in trust by the federal government.

The settlement does not preclude the tribe from pursuing future trust claims, or any separate claims over water and uranium pollution on its reservation, Navajo Attorney General Harrison Tsosie said. Navajo Nation President Ben Shelly hailed the outcome as a “victory for tribal sovereignty” and promised to host town hall meetings to decide how to allocate settlement funds. The Navajo Nation is the most populous American Indian tribe, with more than 300,000 members, and the largest by land mass, occupying 27,000 square miles across Arizona, New Mexico and Utah.  

U.S. Attorney General Eric Holder called the agreement historic and said it showed the Justice Department’s commitment to “strengthening our partnership with tribal nations.” The deal comes over two years after the administration announced similar settlements with 41 tribes for about $1 billion collectively. Since then, the government has resolved breach of trust claims by nearly 40 additional tribes for more than $1.5 billion, a U.S. Justice Department official said.

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