Monthly Archives: July 2015

July 21, 2015

Opposition to the Uniform Fiduciary Access to Digital Assets Act

by Morgan Wiener

Despite the final version being passed by the Uniform Law Commission two years ago, the Uniform Fiduciary Access to Digital Assets Act (“UFADAA”) has not yet enjoyed widespread passage by state legislatures.  According to the Uniform Law Commission, to date, UFADAA has only been enacted in one state – Delaware.  An additional 26 states introduced legislation to enact a version of UFADAA during the first half of this year, but none of those measures have been passed.  As tempting as it may be to lay the blame on the sluggish pace of the legislative process, it’s important to note that UFADAA also faces substantive resistance.

Although much of the commentary surrounding UFADAA, both on this blog and in the estate planning community at large, has been positive, industry and consumer groups have both opposed the act on privacy grounds.  For example, letters published by both Yahoo! and a coalition of civil liberties groups have raised concerns that the relatively unfettered access to digital assets allowed by UFADAA goes too far and does not do enough to protect the privacy interests of not only a decedent, but also those who communicated with a decedent during his lifetime.  These letters can be found here and here.  The Internet Coalition, a group that represents the interests of major e-commerce and social media companies, the State Privacy and Security Coalition, Inc., and NetChoice, a group whose goal is to promote e-commerce, have all also opposed UFADAA’s enactment in various states.

NetChoice has gone further than simply opposing UFADAA and has proposed its own alternative to UFADAA – the Privacy Expectation Afterlife and Choices Act (“PEAC”).  Rather than providing automatic access to a decedent’s digital assets, PEAC contemplates that the probate court will grant access only upon making certain findings and contains a number of provisions that appear designed to protect the holders of digital assets.  You can read the full text of PEAC here.

It will be interesting to see whether UFADAA gains more traction during the next legislative session or whether the opposition holds firm.  Watch this space for updates.

July 6, 2015

New Rules

by Rebecca Klock Schroer

There are several changes to the Colorado Rules of Civil Procedure that are applicable to any cases filed on or after July 1, 2015.  Overall, the changes to the rules seem to try to eliminate the tactics, delays and costs of discovery. 

It is important for trust and estate litigation attorneys to be aware of all of the changes, as certain civil rules are applied to probate court cases through C.R.P.P. 37 and more (or all) can be applied by stipulation of the parties or order of the court. 

One area of changes that will have a large impact in probate litigation is the revisions to the rules regarding expert witnesses. 

First, the revisions distinguish between and include specific requirements for the disclosure of a “retained expert” or “non-retained expert.”  C.R.C.P. 26(a)(2)(B)(I) and (II).  Second, the expert’s direct testimony is limited to the matters disclosed in the expert’s report.  C.R.C.P. 26(a)(2)(B)(I)(h) and 26(a)(2)(B)(II)(c). Third, draft reports and correspondence between counsel and an expert witness are protected from discovery.  However, if the correspondence between the expert and counsel relates to compensation, underlying facts or underlying assumptions considered by the expert in forming opinions, it is subject to disclosure.  C.R.C.P. 26(b)(4)(D).

A link to a redline version of the changes to Rule 26 can be found here.

Another topic that will have an impact in probate litigation is the revisions to the rules regarding interrogatories and requests for production. 

Boiler-plate objections are no longer allowed.  Objections must be specific and it must be noted whether any information is being withheld pursuant to the specific objection.  In addition, any objections can be resolved by the court without having to file motions for protective orders or motions to compel.  The court may handle these disputes orally or in writing. 

A link to redline versions of the changes to Rules 33 and 34 can be found here.

There are also changes regarding sanctions in discovery disputes, case management conferences and orders, more robust initial disclosures and proportionality.  In total, the following rules include changes: 1, 12, 16, 16.1, 26, 30, 31, 33, 34, 37, 54, and 121 §1-22.