Matter of Mary Glyde Barbey Irrevocable Trust fbo Grant Barbey

Case Number

21PR00053

Case Type

Hearing Date / Time

Thu, 01/11/2024 - 09:00

Nature of Proceedings

Motion Allowing Additional Time to Conduct Deposition; Motion: Compel; Status Hearing

Tentative Ruling

HEARINGS: (1) Trustees’ motion to compel further responses to requests for production and for production of responsive documents.

(2) Trustees’ motion for order allowing additional time to conduct deposition of Angelique Barbey

---

ATTORNEYS:

Stephen N. Yungling / Jana S. Johnston / Allegra Geller-Kudrow of Mullen & Henzell LLP for petitioner and beneficiary Angelique Barbey

Howard M. Privette of Snell & Wilmer LLP for respondent trustees PNC Bank, N.A., Juliana Chugg and Clarence Otis

Scott Rahn / Sean D. Muntz / Mathew M. Wrenshall of RMO LLP for Petitioner, contingent beneficiary, and trustee advisor Thomas Barbey

Michael D. Hellman / Claire K. Mitchell of Rimôn, P.C. for respondents Sharon Kennedy Estate Management and Judith Wing

---

TENTATIVE RULINGS: The Trustees’ motion to compel further responses to requests is granted in part, and denied in part, for the reasons and in the manner articulated below. To the extent that Angelique is being ordered to provide further responses, such supplemental responses shall be served no later than February 1, 2024, or such other date as this Court shall specify at the hearing.

The Trustees’ motion to compel additional time to conduct the deposition of Angelique Barbey, is granted, for the reasons and in the manner articulated below.

Background: Angelique Barbey (Angelique) is the daughter of Mary Glyde Barbey (Mary), and the beneficiary of a trust created by the exercise of a power of appointment in Mary’s Will, executed on August 4, 1994 (Trust). (NOTE: Because multiple parties and persons relevant to these proceedings share the surname, the Court will use the first names of such persons in order to avoid confusion. No disrespect is intended.) While the Court will not belabor the history, some recitation of the events provides the necessary backdrop for the Court’s resolution of the issues presented by these motions.

The Trust was intended to support Angelique, who is alleged to suffer from psychological issues that affect her capacity to understand what is happening to her. It allows for discretionary payments to Angelique of “[a]s much of the net income from [her] share . . . as the Trustee considers to be reasonable and appropriate, in the discretion of the Trustee, up to and including all of such net income.” The Trust also allows for the payment of principal “as the Trustee or Trustees may from time to time decide to be necessary to meet any emergency affecting the health . . . or maintenance of [Angelique] Barbey.”

PNC Bank, N.A. is the successor corporate co-trustee of the Trust, and Juliana Chugg, and Clarence Otis are individual successor co-trustees of the Trust (Trustees). Angelique’s siblings are contingent beneficiaries of the Trust, which directs that upon her death, any remaining principal shall be divided, per stirpes, among Mary’s then-living issue other than Angelique and any of Angelique’s issue. Angelique’s brother, Thomas Barbey (Thomas) and sister, Katrina Burrus (Katrina) were named in the Trust to act as advisors to the Trustees (trust advisors) regarding any distributions to Angelique. In doing so, Mary stated “I have complete confidence in their judgment regarding the best interests of my [daughter Angelique].”

The Trust gave rise to two separate petitions, including one filed by Thomas against Sharon Kennedy Estate Management (SKEM) and Judith Wing (Wing), who have provided Angelique with money and estate management services since 2006, including coordinating with the Trustees for receipt of Trust disbursements and payment of Angelique’s bills and invoices. Thomas’s petition contended that SKEM and Wing have been using Angelique’s funds from the Trust for their own purposes and seeks an order compelling the return of Trust property.

Angelique has also filed a petition in this action, the operative version of which is her Second Amended Petition (SAP). The SAP seeks a series of orders, including, among other requests, orders removing the co-Trustees based upon their breach of trust and failure to act; an order appointing an independent corporate fiduciary as successor Trustee; removal of the trustee advisors for breach of duty in attempting to preserve the Trust for their own interests as remainder beneficiaries; certain retroactive and future distributions from the Trust; and orders requiring the Trustees to exercise independent discretion and carry out their fiduciary obligations to Angelique; not conditioning trust distributions upon disclosure of private/confidential information; and an order surcharging the co-trustees for damages Angelique and the Trust sustained as a result of wrongfully withheld distributions.

In 2021, Angelique moved for protective orders with respect to discovery which Thomas had served upon SKEM and Wing. The Court issued the protective orders in part. In doing so, it analyzed various privileges and privacy rights held by Angelique related to the medical, financial, legal, and estate planning information and records sought by the discovery and resolved the motions in the context of the allegations of the petition which Thomas had filed. The order on the motions adopted an incremental approach to discovery, permitting disclosure of limited information at that time, with the proviso that Thomas could subsequently move for a modification of the protective order based upon information revealed in the responses to the discovery that were provided by SKEM and Wing.

At the December 23, 2021 hearing on the protective order motions, the Court stated:

I think the Court has provided a very reasonable roadmap for going forward. I’m hoping that that will resolve the discovery-related issues because I think I made very clear the limitations that I -- significant limitations I believe that are on discovery in this area without a subsequent showing. If a response is deemed to be inadequate or if there’s a particular reason why particular protected information would be needed, the case for that has to be made to the Court.

This Court held a hearing and status conference in this case on June 2, 2022, at which the Court was informed that Angelique’s deposition would be taken on July 18 and 19, 2022. As of the date of that hearing, Angelique had produced thousands of pages of documents in response to discovery propounded by Thomas relative to his petition against SKEM and Wing. After the hearing, Angelique’s counsel arranged for all such document (AB_00001—AB_00956; and JOINT_00001—JOINT_02854) to be produced electronically to counsel for the Trustees and encouraged him to request document previously produced by SKEM and Wing (SKEM000001—SKEM002233) if he had not already done so.

On June 10, 2022, the Trustees served a Request for Production of Documents (Set 1—seeking 150 categories of documents), Form Interrogatories, and Special Interrogatories upon Angelique. On July 11, 2022, Angelique served responses to the written discovery.

In late June 2022, the parties entered into a Stipulated Confidentiality Agreement and Protective Order (Protective Order), which was approved and executed by the Court on July 5, 2022, and filed with the Court on July 6, 2022. The Protective Order set forth the procedures by which parties could designate documents and information as “Confidential,” as well as the procedures for objecting to designations made by other parties, restricted the persons to whom access to and/or disclosure of materials deemed “Confidential” could be provided, and limited the purposes for which any such Confidential Materials could be used “only for the purposes of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or defending the Proceedings, and not for any business or other purpose whatsoever.” The Protective Order created a single level of confidentiality.

On July 18, 2022, Angelique’s counsel arranged for the electronic production of documents in response to the Trustee’s production demand, noting in an email that she believed that virtually all of the documents were already in the possession of the Trustees. The Trustees’ counsel noted that Angelique produced 2,177 pages of documents in response to the request for production, through sending a link to access them at 8:30 pm on July 18, 2022, and that her email noted that the range for production was AB_00957-3134.

Prior to Angelique’s deposition, the parties had agreed that the deposition would be scheduled over a two-day period. Her counsel represents that it was Angelique’s position that she would be deposed only once relative to the two petitions, and there was no need or grounds for extending the deposition beyond the statutory time limit set forth in Code of Civil Procedure section 2025.280. Counsel for Thomas spent approximately four hours of testimony time over two days deposing Angelique, and counsel for the Trustees spent approximately another four hours on the second day.

Counsel have differing opinions and perspectives with respect to the nature of the deposition. Angelique’s counsel represents that counsel for Thomas and counsel for the Trustees spent much of their examination time pursuing lines of inquiry with no probative value, which sought personal and irrelevant information (including Angelique’s commentary on transgender issues in online forums, legal rather than factual questions, asking Angelique to explain other parties’ pleadings, repeating questions which had been answered, asking about confidential health information and personal beliefs, asking about confidential settlement communications and asking Angelique for feedback on particular settlement terms, asking about Angelique’s reasons for working with personal care attendants, seeking confidential attorney-client communications, asking Angelique to summarize and interpret documents written by others, questioning her regarding her reasons for working with a computer professional for computer training, etc.

Counsel for the Trustees represents that Angelique’s counsel gave numerous instructions to Angelique not to answer his questions, in whole or in part, including not to include any information in her responses that she “learned from counsel.” He further contends that Angelique’s counsel coached the witness on numerous instances, making clear that Angelique had been coached that a “foundation” objection meant she should answer “I don’t know.” He contends that his examination was impeded by sometimes lengthy colloquies instigated by counsel for Angelique and/or counsel for SKEM. He acknowledged that Angelique appeared to be trying to give her best testimony, but on numerous occasions slipped into a foreign language, which sometimes required additional time for spelling or translation. She sometimes failed to respond directly to his questions, requiring time to understand her responses and get back on track. Counsel for the Trustees also contends that the examination by Thomas’s counsel was similarly impeded by extensive interruptions, colloquies, speaking objections, and coaching by counsel.

Angelique’s counsel disputes the Trustee’s counsel’s allegations of coaching, lengthy colloquies, and speaking objections which he attributed to her, contending that she stated her objections as succinctly as possible, and only instructed Angelique when necessary to protect confidential attorney-client communications or information which she believed to be protected from disclosure pursuant to the court’s prior orders. She asserts that she only engaged with Trustee’s counsel on those matters when he sought to do so, i.e., when he engaged in argument about the objections or made statements mischaracterizing her conduct.

The Trustees commenced meet and confer efforts with respect to the production demand in a letter dated August 8, 2022. Angelique responded on October 11, simultaneously providing supplemental responses to the demand. On January 18, 2023, Angelique’s counsel emailed a link to further documents being produced as a result of the meet and confer efforts, and document recently discovered from both Angelique and Wing/SKEM. Further meet and confer efforts proceeded, and the parties agreed that a motion to compel would be timely if filed on or before July 10, 2023.

On July 10, 2023, the Trustees filed the current motions, including (1) a motion to compel Angelique to provide further responses to requests for production and for production of responsive documents (regarding Request Nos. 11, 24-25, 34-35, 110, 112-114, and 128); and (2) a motion for an order allowing an additional four hours to conduct the deposition of Angelique. The motions were set for hearing on October 19, 2023, and the hearings were continued to November 2, 2023, by stipulation of the parties. The hearing date on both motions was further continued by the Court and ultimately set for hearing on January 11, 2024, due to caseload and workload considerations.

Angelique has opposed both motions.

ANALYSIS: The Trustees’ motion to compel further responses to requests is granted in part, and denied in part, for the reasons and in the manner articulated below. To the extent that Angelique is being ordered to provide further responses, such supplemental responses shall be served no later than February 1, 2024, or such other date as this Court shall specify at the hearing.

The Trustees’ motion to compel additional time to conduct the deposition of Angelique Barbey, is granted, for the reasons and in the manner articulated below.

Trustees’ motion to compel further responses to requests for production

The Trustees have moved to compel further responses to ten of the production demands (Nos. 11, 24-25, 34-35, 110, 112-114, and 128), which span five general topics, contending that the objections which Angelique interposed are without merit.

1. Statutory authority.

Pursuant to Code of Civil Procedure section 2031.310(a), upon receipt of a response to a demand for production, the demanding party may move for an order compelling further response to the demand if the demanding party deems that an objection to the response is without merit or too general. The motion must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the moving party must show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case), and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) That there is no alternative source for the information sought can be an important factor in establishing good cause but is not necessary in every case. (Associated Brewers Distribution Co., Inc. v. Superior Court (1967) 65 Cal.2d 585, 588.)

Good cause to compel further response to the discovery is generally shown through declarations containing specific facts; conclusions are insufficient. (Fireman’s Fund Ins. Co. v. Superior Court (1991) 233 Cal.app.3d 1138, 1141.)

2. Issues involving Angelique’s estate planning.

A. Requests and party arguments

Trustees propounded the following requests related to Angelique’s alleged estate planning: 

11: All DOCUMENTS, including all drafts and COMMUNICATIONS, RELATING TO any trust that was created for YOUR benefit during the RELEVANT PERIOD.

24: All DOCUMENTS RELATING TO YOUR estate planning including, but not limited to, copies of any will or trust instrument prepared for or in relation to YOUR estate planning.

25: DOCUMENTS sufficient to identify all PERSONS to whom you plan to leave any of YOUR financial assets or other property upon your death.

For purposes of No. 11, “RELEVANT PERIOD” was defined to mean the time from January 1, 2002 to the date of production.

Angelique objected to the requests, asserting that that the information sought is not relevant to the claims raised in the action and is not reasonably calculated to the discovery of admissible evidence; is vague, overly broad, unduly burdensome, and oppressive; vague as to time; seeks information protected by rights of privacy, or that is confidential in nature; is improperly compound, conjunctive, or disjunctive; seeks documents equally available to or already in the possession of the propounding party; and objects on the basis of attorney-client privilege and attorney work-product doctrine to the extent it seeks information protected by that privilege. She objects that the expansive definitions of “YOU” and “YOUR” render the request overbroad, burdensome, and oppressive. She objects that the use of the phrase “RELATING TO any trust that was created for YOUR benefit during the RELEVANT PERIOD” is vague and ambiguous. Finally, she objects that the request seeks information that, under the court’s ruling on her prior motions for protective order, is irrelevant, protected by her right to privacy and confidentiality, outside of the scope of allowable discovery, or absolutely privileged.

With respect to No. 11 only, Angelique added that without waiving those objections, and assuming that the request was not intended to seek Angelique’s own estate planning documents and instead only seeks information regarding trusts set up by others for her own benefit, other than the subject Trust, she will produce copies of all non-privileged and responsive documents in her possession, custody, or control that have not already been produced.

The Trustees have moved to compel further responses to these three requests, making the same argument with respect to all three, with respect to why further responses should be ordered. The Trustees contend the Court’s prior minute order on Angelique’s motions for protective orders do not govern. The Court previously found Thomas’s petition to be a separate legal proceeding from Angelique’s petition, and they are not parties to the Thomas petition. They argue that the issues in this petition are much broader than in the Thomas petition, and the scope of discovery is also therefore more expansive. Based upon a history from the establishment of the trust in 1951, with an emphasis on events occurring over a 20-year time frame since Mary passed, Angelique accuses the Trustees of breaching their fiduciary duties and seeks to have them removed as trustees and surcharged for fees and expenses she has incurred, and for damages arising from liquidation of her personal assets. Trustees contend she seeks to rewrite the trust by eliminating the role of the trust advisors, automating distributions, and eliminating the discretionary standard for determining distributions.

Trustees contend the court’s reasoning in finding Angelique’s estate planning irrelevant to the issues raised by Thomas’s petition (that once disbursements are made to Angelique from the trust, they belong to Angelique and are no longer a part of the trust principal, which is the only portion to which Thomas has an interest through his status as remainder beneficiary, and she may do with them as she wishes), leads to the opposite conclusion with respect to the Trustees petition. Here, Angelique puts at issue the reasonableness of the discretionary distributions from the trust, and the manner in which the Trustees exercise their discretion. However, the terms of the trust require the Trustees to keep certain objectives in mind at all times, including to promote the current financial welfare of income beneficiaries, preservation of adequate principal to ensure that welfare through the lives of those beneficiaries, and to preserve the principal for the benefit of the ultimate principal beneficiaries. Mary expressly decided to give her other four children a special power of appointment to direct the assets upon their deaths, and that upon Angelique’s death, any remaining principal of her share be divided, per stirpes, among there then-living issue other than Angelique and any of her issue. At her deposition, Angelique expressed unhappiness at these provisions, testifying she would like to direct her inheritance from the trust to go somewhere after she passes.

Trustees contend they are entitled to explore whether Angelique’s estate planning would circumvent the terms of the appointed trust. If the court were to grant Angelique’s request that principal be distributed to her on a going-forward basis to meet a minimum annual distribution, she would have successfully subverted the purpose and terms of the Appointed Trust, because principal remaining at her death would be distributed in a manner other than being divided, per stirpes, among Mary’s other then-living issue. Angelique’s efforts to circumvent the provisions of the trust are therefore relevant to the question of what “reasonable and appropriate” distributions might be made to her from the trust. If Angelique provides an inflated budget to request substantial distributions, using unspent distributions to fund goals different from those of the appointed trust would inform the discretionary distributions that the trustees would make from the trust. An ability to compare Angelique’s estate planning to the terms of the trust is therefore relevant to the issues raised in the SAP and would also address concerns about potential conflicts of interest among Angelique’s financial advisors.

Angelique opposes the motion, asserting that her estate planning materials are protected by her right to privacy—a fact the Court recognized when it found Thomas could only obtain further information regarding Angelique’s private information by making a specific factual and evidentiary showing of how and why the specific information is relevant to the claims, and why the need for the specifically requested discovery outweighs Angelique’s right to privacy in the information. The Court’s reasoning applies here because it analyzed general rules applying to the discovery of private matters, not because of the particular allegations of Thomas’s petition.

Angelique argues that Trustee’s explanation of the relevancy of her estate planning documents is based upon versions of the Trust and of Angelique’s petition which do not exist. Regardless of her displeasure of the terms of the Trust that pass the remainder to Angelique’s siblings, the SAP does not attempt to change that. There is also nothing in the trust that prohibits Angelique from using any unspent distributions to fund objectives and goals different from those of the Trust— this is not a supplemental needs trust, and Angelique is not required to be assetless to receive distributions. Trustees provide no specificity or foundational evidence supporting a vague worry about “potential conflicts of interest” among her financial advisors.

Angelique argues further that Trustees have not shown that any legitimate need they have for information cannot be satisfied by less intrusive means than discovery of her estate planning materials. They argue they need to see whether her estate plan disposes of her estate to someone other than the remainder beneficiaries of the trust, because doing do would violate the Trust purpose. That is not relevant to the case, but even if it were, their purpose could be satisfied by asking whether or not her estate plan disposes of assets to someone other than the remainder beneficiaries. The details of her estate plan are irrelevant to the rationalization offered by the Trustees. If Trustees are concerned about allegedly inflated budgets, they can seek (and have sought and received) discovery of the budgets and their supporting documentation. Angelique is not arguing the request violates the protective order, but rather that the analytical framework used by the court in that order should apply here, and Trustees have not met that burden.

In reply, Trustees contend Angelique has improperly relied on the protective order as a basis for arguing that her estate planning documents are outside the scope of proper discovery, but failed to address the significant differences between Thomas’s petition and Angelique’s SAP, given that Thomas’s petition sought the return of trust property, and distributions already made to Angelique are not trust property, and Angelique’s SAP puts at issue the reasonableness of discretionary distributions and how the Trustees exercise their discretion. The Trust requires them to at all times keep objectives in mind, including preserving principal for the benefit of the ultimate principal beneficiaries. Mary directed that, unlike with her other children’s trusts, upon Angelique’s death, the then-remaining principal would be divided, per stirpes, among her other then-living issue. Angelique noted at her deposition hat she would like to be able to direct her inheritance to go somewhere after her passing. While the opposition asserts Angelique is not seeking to change this provision, it does not address the point that in seeking to impose minimum annual distributions that might erode principal, in an amount beyond what Angelique has spent in the past, that would provide an indirect path to subvert the terms of the trust. Given the directive to preserve principal for the benefit of the principal beneficiaries, it is critical to understand and consider how excess distributions might be treated by Angelique’s estate planning.

B. Analysis.

The focus of the Trustees’ requests to obtain information regarding Angelique’s estate planning efforts does not appear to the Court to be related to the allegations of Angelique’s SAP, or any necessity they may have for information or evidence with which to defend against such allegations. Rather, the arguments appear to focus more upon their simply obtaining information which they find of interest, to be used to justify future actions as Trustees.

The Trustees contend that they need to know whether Angelique is seeking to circumvent the Trust by designating that someone other than her siblings (per stirpes) will receive her money and property after her death. However, once the distributions are made to her, they are no longer Trust principal subject to the restriction on its devise.

The Trustees have repeatedly emphasized that they are tasked with keeping in mind certain objectives at all times, including the preservation of principal for the benefit of the ultimate principal beneficiaries. Indeed, the terms of the original J. E. Barbey trust for the benefit of Mary Barbey Hooker set forth a series of objectives to be considered by the Trustees in administering the Trust. However, he also made the preservation of principal for the benefit of the ultimate principal beneficiaries the very last objective stated, and instructed further that the trustees were to attach importance to the objectives in the order in which they were stated—something the Trustees’ argument failed to acknowledge.

The Trustees contend further that if Angelique seeks excessive distributions, and then leaves the money to someone other than her siblings (per stirpes), she will have circumvented the trust objective that the Trustees seek to preserve the principal for the ultimate “principal beneficiaries” (i.e., residual beneficiaries). First, this hypothetical future event has nothing to do with the Trustees ability to defend the claims which Angelique is asserting against them in the SAP. Second, as noted above, preservation of the principal for its ultimate distribution to the residual beneficiaries of the trust for Angelique’s benefit is a lesser objective of the Trust, to which the Trustees were instructed to provide a lower priority. Third, as the direct beneficiary of the trust, the Trustees owe Angelique a fiduciary duty. That duty should not be overshadowed or outweighed by an overbearing desire to preserve at all costs the principal of her trust for distribution to her siblings upon her death, whether per stirpes or otherwise. Further, the question must be considered with respect to what point at which a distribution made to one who has lived a life of relative privilege begins to qualify as excessive? It is not unreasonable to conclude that Angelique has friends or confidants to whom she may wish to leave her worldly possessions upon her death. None of that has any bearing on the claims asserted against the Trustees by the SAP.

The Trustees contend further that if the Court were to grant Angelique’s request that the principal be distributed to her on a going-forward basis to meet a minimum annual distribution, that Angelique will have subverted the purpose and terms of the trust, because at her death any “principal” remaining would be distributed in a manner other than as directed by Mary. However, Angelique’s SAP reflects her belief that the minimum distributions she was seeking would not require payment of principal, given the current amount of the trust principal, and the amount she believes it is making with each passing year. If the Court were to grant Angelique’s request, such an order would result from its finding made after trial on the merits that the request was warranted and justified, based upon the Trustees conduct and/or misconduct toward her. Finally, once again, this future event does not relate in any respect to the SAP’s claims against the Trustees and provides no basis for a claim of good cause for disclosure of Angelique’s estate planning materials.

In the end, the Court struggles to see what possible relevance Angelique’s estate plans could truly have to her claims against the Trustees, as alleged in her SAP, such that they would need such information in order to defend the claims she has asserted against them. It seems much more to be the case that the Trustees are seeking the information, not because they need the information to be able to defend the claims made against them, but rather to be able to use whatever information they have to exercise control over Angelique and her life, in making future distributions contingent upon her acting in ways that the Trust did not require her to act, and upon her waiver of privileges and protections the Trust did not require her to waive.

The scope of discovery is ordinarily relatively broad. However, as this Court noted above, when production of documents is sought, the Legislature added a requirement that the party seeking to compel further production of documents establish good cause for their production, including an explanation of how the information in the documents would tend to prove or disprove some issue in the case, and specific facts justifying the discovery, with respect to why the information is necessary for trial preparation or to prevent surprise at trial. (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Further, this is usually done through the submission of declarations containing specific facts. (Fireman’s Fund Ins. Co. v. Superior Court (1991) 233 Cal.app.3d 1138, 1141.)

The declaration submitted in support of the motion does nothing other than authenticate documents and does not set forth specific facts justifying the discovery, as contemplated by the Glenfed Development Corp. and Fireman’s Fund cases. Certainly, this omission is not necessarily a fatal error where elements of good cause for production of the information are explained in the motion and are readily apparent from specified allegations in the relevant pleading or pleadings. However, the explanation provided by the Trustees for why they seek this information does not connect the dots in any manner that would permit the Court to discern the relevance of the requested documents to the tendency to prove or disprove an issue in the case. Consequently, the Court finds that the Trustees’ motion fails to meet the burden of establishing good cause for production of Angelique’s estate planning materials, and will therefore deny the motion as to Request Nos. 11, 24, and 25.

3. Angelique’s retention of and representation by attorneys.

A. Requests and party arguments.

The Trustees propounded the following requests:

34: All DOCUMENTS RELATING TO the retention of Mullen & Henzell LLP to provide services for YOU.

35: All DOCUMENTS RELATION TO the retention of lawyers or law firms other than Mullen & Henzell LLP to provide services for YOU.

Angelique objected to both requests, asserting that that the information sought is not relevant to the claims raised in the action and is not reasonably calculated to the discovery of admissible evidence; is vague, overly broad, unduly burdensome, and oppressive; vague as to time; seeks information protected by rights of privacy, or that is confidential in nature; is improperly compound, conjunctive, or disjunctive; seeks documents equally available to or already in the possession of the propounding party; and objects on the basis of attorney-client privilege and attorney work-product doctrine to the extent it seeks information protected by that privilege. She objects that the expansive definitions of “YOU” and “YOUR” render the request overbroad, burdensome, and oppressive. Finally, she objects that the requests seek information that, under the court’s ruling on her prior motions for protective order, is irrelevant, protected by her right to privacy and confidentiality, outside of the scope of allowable discovery, or absolutely privileged.

In seeking to compel further responses to these requests, the Trustees reiterated many of the same arguments in support of their motion as were asserted with respect to Nos. 11, 24, and 25, related to the events covered by Angelique’s SAP and Trustees’ contention that the SAP seeks to rewrite the trust. Trustees note that these requests stem from allegations in the SAP concerning the “Power of Attorney Incident,” wherein Angelique alleged that her siblings Katrina and Thomas persuaded her to meet with an attorney to have her execute an immediately effective power of attorney in their favor, without being afforded the ability to consult with her own counsel prior to signing. Once she consulted with her attorney, she immediately communicated her desire to revoke the power of attorney. Angelique emphasized that Wing had clearly advised Katrina that Angelique was in the process of preparing her estate plan and was represented by counsel.

Trustees contend that they should, at the least, be entitled to discovery to test the veracity of these allegations, particularly considering Angelique testified at deposition that she did not know she was represented by counsel at the time of the power of attorney incident, does not know when she retained counsel, and did not remember meeting her Mullin & Henzell counsel until after the meeting with Thomas and Katrina. During meet and confer, the Trustees contend they clarified that Angelique may exclude documents reflecting direct communications between Angelique and the law firm or firms but want production of any documents relating to the referral or retention of the firms, including communications involving Wing or other persons. They also reserve the right to seek direct production of attorney-client communications should they discovery facts supporting a waiver of the privilege. They further contend a privilege log should be provided.

Angelique opposes the motion, contending the Court has repeatedly held that information relating to legal services provided by Mullen & Henzell is absolutely protected by the attorneyclient privilege, and nothing about that ruling is dependent upon the facts or procedural posture of Thomas’s petition, but arises from the Court’s analysis of the law and its finding that the privilege is absolute, even with respect to information arguably relevant to a dispute. The Court also held that, under the circumstances that are present, the involvement of SKEM and Wing, as Angelique’s agents, in retaining and/or paying invoices of attorneys hired to provide confidential legal advice to Angelique does not waive or destroy her privilege with respect to the nature or content of any legal advice or services provided to Angelique, and that the privilege trumps both relevance and necessity in order to prove adverse claims.

Angelique asserts that the Trustees seek all documents relating to the retention of Mullen & Henzell LLP to provide services for her, and for all documents relating to the retention of any lawyers or firms other than Mullen & Henzell LLP to provide services for her, clearly seeking “information relating to legal services,” which the Court found to be absolutely privileged. The Court already found that any communications between Angelique and SKEM relating to Mullen & Henzell and legal services Angelique received from Mullen & Henzell are absolutely privileged, except to the extent documents were either redacted invoices or related to something other than legal services. The Trustees’ requests also seek absolutely privileged information.

Whether or not the information is relevant to the Trustee’s case does not matter. Documents communicating the retention of counsel and redacted invoices have already been produced, and there is no need to discovery privileged information about further details of the retention. Finally, Angelique contends that, for the same reason a privilege log was not required for Thomas’s discovery, one should not be required for Trustees’ discovery.

In reply, the Trustees contend that the opposition took the position that no document that has anything to do with her counsel can be subject to discovery under any circumstances. However, the requests don’t seek attorney-client privileged information, and only seek documents relating to Mullen & Henzell or other attorneys to provide services for Angelique. The requests arise from the SAP’s allegations regarding her retention of Mullen & Henzell, and Wing’s involvement in connecting Angelique with the firm, which are not matters subject to privilege. The matters are particularly important since Angelique testified at deposition that she did not know she was represented at the time the SAP alleges she was represented and was not aware when Wing introduced Mullen & Henzell that the firm has represented SKEM in other matters. This is troubling, since Angelique’s relationship with SKEM lies at the heart of her allegations that the Trustee advisors’ strategy to obtain control over her focused on destroying her supportive and reliable relationship with Wing and SKEM, and that the Trustees were seeking to terminate SKEM’s services to Angelique at her siblings’ request, to her detriment.

The Trustees argue that the opposition ignores that communications involving counsel may not be privileged due to participation of third parties such as SKEM and Hooker. The Trustees received documents from Hooker during the litigation that they would not have otherwise seen, because Angelique has hidden them behind the court’s protective order. This is why documents subject to a claim of privilege should be included on a privilege log.

B. Analysis

This is another circumstance where seeking “all documents relating to” results in a grossly overbroad request, particularly given that it necessarily sweeps into the request documents and matters clearly protected by the attorney-client privilege. The Trustees representation that they have agreed to permit Angelique to exclude documents reflecting direct communications between Angelique and any attorneys, and instead want documents relating to referral or retention of the firms, does not entirely save the requests from this defect.

The first problem is that the requests do not seek documents related to a “referral” to an attorney, such that the Trustees’ qualification that they only seek documents relating to referral or retention of law firms has meaning here. Rather, the requests instead expressly seek documents relating to “the retention of” Mullen & Henzell (No. 34) and/or “the retention of” other law firms (No. 35). While documents related to referrals to firms ultimately retained might fall within the scope of the request, documents that could potentially constitute “referrals” to firms not ultimately retained do not.

Second, the requests are not limited in time in any respect and seek documents regarding Angelique’s retention of attorneys at any point in her life, for any purpose at all. As drafted, the request(s) are therefore grossly over-broad, since they potentially seek documents having no relevance whatsoever to the time period covered by the SAP, and even potentially seek documents irrelevant to the time period during which the trust was in existence.

Certainly, the Court and the parties are aware of Angelique’s retention of Mullen & Henzell, given that they currently represent her in this litigation, and may have provided other services to Angelique within the time period covered by the SAP. This Court has already found that any information regarding the nature of the services they have provided to her is protected by the attorney-client privilege, and the differing procedural posture of the current petition from that of Thomas’s petition would not alter that conclusion.

The Trustees contend they should be permitted to test the veracity of Angelique’s allegations that Wing had advised Katrina that, at the time of the “Power of Attorney Incident,” Angelique was in the process of preparing her estate plan and was represented by counsel. The Court is unclear how the fact that Angelique may or may not have been represented by counsel at the time of the incident relates in any way to Angelique’s allegations against the Trustees. The Court is further unclear how such information would be necessary for trial preparation, to prevent surprise, or to in any way tend to prove or disprove an issue in the case. The Trustees’ motion has not made clear even the potential relevance of Angelique’s possible retention of attorneys at unspecified times.

The Trustees contend that they want to obtain communications involving Wing or other persons, but they have provided no evidence to show that Wing or SKEM at any time acted as anything other than Angelique’s trusted advisors, such that there would be any reason to assert that the involvement of SKEM or Wing acted to waive Angelique’s attorney-client privilege in any way. They contend further that at least the production of a privilege log is necessary to the evaluation of whether or not there might have been a waiver of the attorney-client privilege.

Certainly, Angelique has made the incident a part of the background of her petition as a whole, and the involvement of Wing and SKEM in her affairs, and her claims that the Trustees have participated in an attempt to interrupt her relationship with Wing and SKEM, are areas of valid inquiry by the Trustees, and have potential relevance to Wing’s or SKEM’s reference of Angelique to attorneys to provide services for Angelique’s benefit. The Court currently has no information with respect to whether the Trustees have attempted to obtain written discovery from, or have taken the deposition, of Wing, to seek information regarding her involvement in referring Angelique to attorneys who might ultimately have been retained by Angelique. However, it believes that the Trustees have made a fair point, in asserting that they are entitled to ascertain whether a waiver of the privilege has occurred.

Angelique represents that she has already produced to the Trustees the documents she was required to produce to Thomas after her motions for protective order, i.e., documents showing amounts invoiced by Mullen & Henzell, with information redacted about the nature and scope of legal services actually provided to her.

The Court will order a further response to request Nos. 34 and 35, to include production of any documents in Angelique’s possession, custody, or control, which reflect her retention of attorneys within the last 10 years, and/or the reference to her of attorneys who she ultimately retained within the last 10 years. Any such documents produced may be redacted to remove any reference to the nature of the legal services to be provided to Angelique. To the extent that any documents are withheld, Angelique shall provide a privilege log (which may also exclude reference to the legal services to be provided or contemplated to be provided).

4. Power of attorney designation issues.

A. Request and party arguments

110: All DOCUMENTS, including all drafts and COMMUNICATIONS, RELATING TO any power of attorney for YOU to sign or that YOU did sign during the RELEVANT PERIOD, other than the power of attorney referenced in paragraph 34 of the PETITION.

“RELEVANT PERIOD” was defined to include January 1, 2002 through the date of production.

Paragraph 34 of the Petition, referenced in Request No. 110, alleges:

34. These ever-evolving standards and requirements for increasingly detailed private information are not the only overstep that has been directed by the Trustee advisors. On or about November 8, 2018, the Trustee advisors visited Beneficiary in Santa Barbara, California. During that meeting, they persuaded Beneficiary to meet with an attorney they had engaged and had Beneficiary execute an immediately effective power of attorney in favor of Trustee advisors (Thomas and Burrus). Beneficiary did not have an understanding of what she had signed, though Thomas and Burrus had convinced her that it was a document necessary for Trust administration. Beneficiary had not been afforded the benefit of consultation with her own counsel—the engagement of whom Trustee advisors were aware—prior to signing the power of attorney. Following consultation with her own attorney shortly after the incident, Beneficiary immediately communicated her desire to revoke the power of attorney and a revocation was executed on November 12, 2018. Beneficiary’s revocation was communicated to Thomas, Burrus, and the attorney they had engaged, by letter dated November 19, 2018. A true and complete copy of this November 19, 2018 correspondence to the Trustee advisors is attached hereto as Exhibit G.

Angelique objected to the request, asserting that that the information sought is not relevant to the claims raised in the action and is not reasonably calculated to the discovery of admissible evidence; is vague, overly broad, unduly burdensome, and oppressive; vague as to time; seeks information protected by rights of privacy, or that is confidential in nature; is improperly compound, conjunctive, or disjunctive; seeks documents equally available to or already in the possession of the propounding party; and objects on the basis of attorney-client privilege and attorney work-product doctrine to the extent it seeks information protected by that privilege. She objects that the expansive definitions of “YOU” and “YOUR” render the request overbroad, burdensome, and oppressive. Finally, she objects that the request seeks information that, under the court’s ruling on her prior motions for protective order, is irrelevant, protected by her right to privacy and confidentiality, outside of the scope of allowable discovery, or absolutely privileged. 

In seeking to compel a further response to this request, the Trustees reiterated many of the same arguments in support of their motion as were asserted with respect to the prior requests related to the events covered by Angelique’s SAP and Trustees’ contention that the SAP seeks to rewrite the trust. They contend further that issues related to a power of attorney for Angelique arise from one of the central allegations of her SAP, where she discusses the incident involving Thomas and Katrina obtaining her signature on a power of attorney, their attempt to use it obtain her private and confidential information, and her revocation of it days later. In that context, Wing advised Burris that Angelique had unfettered discretion to designate whomever she wises to such a role, and at that time she had designated another sibling, John Hooker (Hooker), as her agent and fiduciary.

Trustees contend these issues relate directly to their defense against Angelique’s claims of breach of fiduciary duty. In an email string between Angelique, Hooker, Wing, and attorney Stephen Yungling in 6/19, six months after that incident, there was a discussion of whether Angelique might provide Hooker with her power of attorney. The discussion assumes use of the power of attorney to assist with Trustees in relation to making distributions from the Appointed Trust. Angelique was dissuaded from granting Hooker a formal power or attorney, but Angelique was told by Yungling that he would advise the Trustees that she had authorized them to communicate with Hooker directly on the subjects of distributions and budgeting. When they attempted to question Angelique on the email chain at her deposition, she was instructed not to answer based upon the court’s prior ruling regarding estate planning. Trustees contend they are entitled to discovery of all relevant document related to Angelique’s consideration of whether to provide Hooker or any other siblings with a power of attorney, when it was considered, and in what context. Given the allegation that Angelique did not understand what she had signed with respect to the power of attorney incident, Trustees contend they are entitled to explore any similar documents Angelique may have signed and whether she understood any such documents.

Angelique has opposed the motion to compel further response to this request, noting that Trustees’ request for documents relating to any power of attorney that she has signed in the last 20 years seeks information about her estate planning, that is protected by her right to privacy, and under the framework she described with respect to her privacy rights in her estate plan, Trustees have not demonstrated how their need for the information outweighs her privacy interest.

Angelique contends there is little need for Trustees to obtain documents relating to Angelique’s powers of attorney. Trustees point to the 2018 incident when Thomas and Katrina coerced Angelique into executing a power of attorney in their favor, and Angelique’s contemplation of granting Hooker the same in 2019, but do not explain how those events make Angelique’s powers of attorney relevant, with “under the circumstances” being the only analysis they offer, rather than any showing of relevance. The mere existence of power of attorney events does not make wholesale disclosure of any powers of attorney over 20 years relevant. Trustees also have not demonstrated that there is no less intrusive means to obtain whatever specific information is relevant. They had the opportunity to question her about whether she understood the 2018 document, and there is no need for broad discovery of private documents to answer that question. She has already produced non-privileged documents related to her informal designation of Hooker as her spokesperson with the Trustees, and there is no need for further discovery of her contemplation of a different designation that was never enacted.

In reply, Trustees note that despite repeated references to power of attorney relationships in the SAP, including that Angelique did not understand what she had signed, the opposition falls back on “estate planning” as a reason to withhold discovery. There is no blanket prohibition on discovery of estate planning, and estate planning and powers of attorney are not necessarily coextensive. Angelique’s counsel misused the “estate planning” objection in instructing her not to answer when she was asked about the email in which attorney Yungling told her he would advise the Trustees that she had authorized them to communicate directly with Hooker on distribution and budgeting issues, since she would be providing him with an informal power of attorney limited to trust distributions. There is no reasonable basis for denying the Trustees discovery about anything related to trust distributions in the case.

Trustees further note that there is a potential factual inconsistency between the SAP and the opposition, which is properly explored in discovery. In the SAP, she alleged that Thomas and Katrina had been told in November 2018 that Hooker had already been designated as her agent and fiduciary, so she did not need them to have a power of attorney. The opposition then refers to Angelique’s 2019 contemplation of granting Hooker a power of attorney. Was it 2018 or 2019? Are these different events? Did anyone have a power of attorney before or after these times? Given Angelique’s allegation that she did not know what she was signing in November 2018, and her reliance on that incident to accuse her siblings of malfeasance, her power of attorney history is important for establishing an accurate timeline of events and to provide reference points to test her claim that she was hoodwinked by Thomas and Katrina in 2018.

B. Analysis.

As noted above, Request No. 110 seeks all documents, including drafts of and communications relating to any Power of Attorney “for” Angelique to sign, or that Angelique did sign, other than the one Thomas and Katrina took her to an attorney to obtain in 2018, at any time from January 1, 2002 to the present. While some Powers of Attorney are limited in scope (e.g., Powers of Attorney for health care, etc.), the request is not limited to any particular type of Power of Attorney and seeks disclosure of documents relating to any Power of Attorney which Angelique signed, or which was “for” Angelique to sign. Of course, the reference to any power of attorney for Angelique to sign is vague and ambiguous.

The Trustees’ arguments with respect to why any Powers of Attorney might be relevant, are limited to a discussion of Hooker’s involvement with Angelique (as opposed to a power of attorney involving any other person), and a post-Power-of-Attorney-Incident (involving Thomas and Katrina) email string discussions between Angelique, Hooker, Wing, and attorney Stephen Yungling, with respect to whether Angelique might provide Hooker with a power of attorney, which the Trustees contend assumes the use of that power of attorney to assist with the Trustees in relation to making distributions. Their arguments do not make clear how Angelique’s execution or contemplated execution of any power of attorney for Hooker would tend to prove or disprove any issue in the case and/or the allegations made against the Trustees in Angelique’s SAP. Their arguments also do not make clear why the events which took place in the 2018-2019 time frame justify compelled discovery of any or all powers of attorney which Angelique may have contemplated for a more than 22 year period, much of which substantially predates the events upon which the Trustees rely in seeking to compel production of powers of attorney for Hooker.

Angelique contends that she has already produced non-privileged documents related to her informal designation of Hooker as her spokesperson with the Trustees and argues that there is no justification for any further discovery of her contemplation of some other designation that was never enacted.

The Trustees’ reply contends that there is no blanket prohibition on discovery of estate planning, and that estate planning and powers of attorney are not necessarily co-extensive. They also point to a purported conflict between the SAP (in alleging that Wing told Katrina in November 2018 that Hooker had been designated as Angelique’s agent and fiduciary so she did not need to give them a power of attorney) and the opposition (in referring to Angelique’s 2019 contemplation of granting Hooker a power of attorney). What they do not do is explain why any of this is relevant to the claims made against the Trustees in the SAP. More specifically, they do not explain why her allegations that she was “hoodwinked” (the Trustees’ term) by Thomas and Katrina and did not know what she was signing when Thomas and Katrina took her to an attorney to obtain a power of attorney, have relevance to the claims made against the Trustees in the SAP.

Certainly, once again, the events related to the so-called power of attorney incident are part of Angelique’s story, which gives context to her SAP and its claims against the Trustees. Further, the existence of any power of attorney over Angelique’s financial affairs may be tangentially (albeit remotely) relevant, with respect to the manner in which the Trustees’ actions with respect to Angelique reflected a concern with respect to her being subject to influence over her financial affairs.

The Court will therefore order Angelique to provide a further response to No. 110, limited to the time period from 2018 to the present (to reflect the time period of the concerns raised by the Trustees), to make clear whether she executed any power of attorney in favor of Hooker to provide him with any authority over her financial affairs. The Court finds that the Trustees have not established good cause for production of documents related to any other powers of attorney executed or contemplated during any broader time period, have not established good cause for production of documents related to any powers of attorney limited to matters unrelated to Angelique’s financial affairs.

Certainly, it appears from the nature of Angelique’s opposition arguments that no such documents exist. If that is true, she may so respond in a verified supplemental response. To the extent that any responsive powers of attorney exist which reflect Angelique’s estate planning, in terms of providing information with respect to her directions for the distribution of her assets after her death, they may be objected to on the basis of Angelique’s constitutional right to privacy, and a log provided to reflect the withholding of the document(s). (The Court notes that its discussion of Request Nos. 11, 24, and 25, supra, found that the Trustees had failed to establish good cause for production of documents related to Angelique’s estate planning.) To the extent that any such responsive documents do not reflect Angelique’s directions regarding the distribution of her assets after her death, or can be reasonably redacted to remove such information, they should be produced.

5. Relationship with brother John Hooker as Angelique’s agent and fiduciary.

A. Requests and party arguments.

112: All DOCUMENTS RELATING TO YOUR designation of John Hooker as YOUR “agent and fiduciary,” as referenced in paragraph 35 of the PETITION, including all DOCUMENTS RELATING TO the reasons for and/or nature of his role.

113: All COMMUNICATIONS with John Hooker RELATING TO his potential and/or actual role as YOUR “agent and fiduciary” at any time.

114: All COMMUNICATIONS with SKEM RELATING TO John Hooker’s potential and/or actual role as YOUR “agent and fiduciary” at any time.

Paragraph 35 of the SAP, referenced in Request No. 112, alleges:

35. Prior to the November 8, 2018 meeting, Burrus had contacted Ms. Wing of SKEM and had reiterated her previously communicated position that Beneficiary should designate her (Burrus) and Thomas as agents on her financial power of attorney, her advance health care directive, and as her fiduciaries in her estate planning documents. Ms. Wing explained that Beneficiary has unfettered discretion to designate whomever she wishes to these roles and that Beneficiary had at that time designated her other sibling, John Hooker10, as her agent and fiduciary. During that conversation, Ms. Wing also clearly advised Burrus that Beneficiary was in the process of preparing her estate plan and that she was represented by counsel. (Exhibit G, p. 1.) Despite having been so advised, Thomas and Burrus carried on in their efforts to gain control of Beneficiary’s personal, medical, and economic affairs, by truly reprehensible means—misrepresenting the power of attorney that they had her sign, taking Beneficiary to an attorney of their choosing, and excluding Beneficiary’s own counsel from the process. Astonishingly, the Co-Trustees paid for the legal fees incurred in preparing the wrongfully obtained power of attorney—an expense paid in furtherance of Burrus’s and Thomas’s plan to obtain complete dominion and control over Beneficiary’s financial and personal affairs, and an expense that was neither for the benefit of Beneficiary nor the Trust.

Footnote 10, which occurs within ¶ 35, provides:

Beneficiary had not yet become aware of John Hooker’s duplicity in his interactions and communications with her, i.e., acting contrary to her interests and without disclosure to her by sharing information with Thomas and Burrus and actively assisting in their efforts to take control of Beneficiary’s affairs and to obtain Beneficiary’s confidential information. The discovery completed to date in this action revealed the true actions and words of John Hooker, not previously known to Beneficiary.

Angelique objected each of the requests, asserting that that the information sought is not relevant to the claims raised in the action and is not reasonably calculated to the discovery of admissible evidence; is vague, overly broad, unduly burdensome, and oppressive; vague as to time; seeks information protected by rights of privacy, or that is confidential in nature; is improperly compound, conjunctive, or disjunctive; seeks documents equally available to or already in the possession of the propounding party; and objects on the basis of attorney-client privilege and attorney work-product doctrine to the extent it seeks information protected by that privilege. She objects that the expansive definitions of “YOU” and “YOUR” render the request overbroad, burdensome, and oppressive. Finally, she objects that the requests seek information that, under the court’s ruling on her prior motions for protective order, is irrelevant, protected by her right to privacy and confidentiality, outside of the scope of allowable discovery, or absolutely privileged.

In seeking to compel further responses to these requests, the Trustees reiterated many of the same arguments in support of their motion as were asserted with respect to the prior requests related to the events covered by Angelique’s SAP and Trustees’ contention that the SAP seeks to rewrite the trust. Trustees note that Angelique has four siblings, one of whom is Hooker, and that Hooker plays a significant role in Angelique’s allegations in the SAP, including ¶ 19, related to the Trustees having inappropriately taken advice from John from 2010 onward, although he had no authority as either a trustee or a trustee advisor, in violation of their fiduciary duties, and alleges that he remains intimately involved in trustee and family discussions concerning Angelique and has been involved in their effort to obtain her confidential information and secure total control over all facets of her life. She alleges that trustees have delegated discretion and deferred distribution decision-making to the trustee advisors and even to Hooker and have therefore failed to administer the trust pursuant to its terms.

Even so, the Trustees contend that Angelique distinguishes her relationship with Hooker from that with Thomas and Katrina, alleging that she had designated him as her agent and fiduciary in late 2018, and telling her counsel that she wanted him to be her co-trustee for her revocable trust because he would safeguard her happiness. Attorney Yungling, in a 6/25/19 letter to Trustees’ counsel, noted Angelique’s authorization for the Trustees to discuss with Hooker the administration of her trust and the decision to resume distributions. Trustees therefore contend they are entitled to thorough discovery concerning Angelique’s relationship with Hooker, his appointment and role as her agent and fiduciary, and his involvements in discussions concerning Angelique and the trust.

Trustees assert that, during the meet and confer process, Angelique had asserted that all nonprivileged, responsive documents regarding Hooker’s informal designation as her spokesperson with the Trustees have been produced, but that she objects to the production of estate planning materials. Trustees note that Angelique failed to supplement her responses to reflect her contention that a subset of responsive documents had been produced, even when she was asked to do so. She is using “estate planning materials” to misuse the protective order to restrict Trustees’ right to discovery. When asked at deposition about the email in which she expressed her desire to make Hooker co-trustee of her revocable trust, her counsel instructed her not to answer, even though the questions went to the nature of the allegations of ¶ 35 of the SAP that contrasted Hooker’s role as “agent and fiduciary” with Thomas and Katrina as “trust advisors.” Trustees conclude there is no basis to deny their discovery into Hooker’s role as Angelique’s agent and fiduciary, which is within the issues raised by her SAP and needed to assist the Trustees in refuting her allegations that they breached their fiduciary duties.

Angelique opposes the motion, asserting that her remaining objections to Trustees’ requests for documents related to Hooker are based upon her right to privacy in her estate planning affairs. She contends that Trustees have conceded that she has produced all non-privileged documents regarding her informal designation of Hooker as a spokesperson for her with the Trustees and argues that any documents beyond that (relating to her estate plan and her designation of fiduciaries in connection with her estate plan) are protected by her right to privacy. While Trustees point to evidence that she authorized him to have informal discussions with the Trustees in 2019 in an effort to resolve the disputes regarding their failure to make any distributions, and that she contemplated naming him as a trustee in estate planning documents in 2018, none of that is relevant to the allegations of her SAP that the Trustees breached their fiduciary duty by improperly engaging with Hooker rather than Thomas as a trust advisor beginning in 2010. Angelique asserts she has produced all non-privileged documents on the 2019 authorization.

In reply, Trustees contend that Angelique’s relationship with Hooker plays a significant role in her allegations against the Trustees, and his involvement in the story in the SAP goes back to at least 2010. The opposition attempts to limit the relevance of Hooker’s role as an intermediary to her ¶ 35 reference to her 2018 designation of him as her agent and fiduciary, but she cannot pick and choose which of her allegations she will allow to be subject to discovery. Trustees contend they are entitled to discovery about her relationship with him throughout the entire time frame encompassed by the SAP—2010 to 2018.

Trustees contend Angelique’s refusal to provide documents reflects on how broadly she has used the protective order to avoid relevant discovery, in contending that the request must be shielded from discovery because it calls for the production of estate planning materials. Trustees are entitled to the discovery into Hookers’ relationship with Angelique, because she put it at issue in her allegations against the Trustees. She cannot accuse the Trustees of breaching their fiduciary duties by talking to Hooker and then refuse to allow discovery into why and how she trusted him as an intermediary, both formally and informally. 

B. Analysis.

Resolution of the motion with respect to Nos. 112-114 is largely similar to resolution of the motion with respect to No. 110.

As noted, Angelique asserted in meet and confer efforts, and argued in opposition to the motion, that she has produced all non-privileged documents regarding her informal designation of Hooker as a spokes person with the Trustees, but has objected to the production of any further documents, contending that they relate to her estate plan and her designation of fiduciaries in connection with her estate plan, and are therefore protected by her right to privacy.

The Trustees note that Angelique declined to provide an amended response, when requested to do so, in order to reflect that she had produced all non-privileged responsive documents regarding Hooker’s informal designation with the Trustees. Angelique’s opposition does not dispute the contention. Angelique should provide such a verified amended response, including confirming that any other existing responsive documents relate to her estate plan and her designation of fiduciaries in connection with her estate plan. To the extent that any such responsive documents actually reflect the manner in which she has elected to distribute her assets after her death, such documents do not need to be disclosed, given the Court’s findings with respect to Nos. 11, 24, and 25, that the Trustees had failed to establish good cause for production of documents related to Angelique’s estate planning. However, she should provide a log which reflects all documents withheld from production. To the extent that any such responsive documents do not reflect Angelique’s directions regarding the distribution of her assets after her death, or can be reasonably redacted to remove such information, they should be produced.

Trustees’ additional arguments with respect to their request to compel production of these documents seem to misapprehend the scope of what they have sought. All documents sought relate to the designation of Hooker as Angelique’s “agent and fiduciary” as alleged in ¶ 35 of her SAP and the reasons for or nature of such role, or to her communications with either Hooker or SKEM with respect to her potential or actual designation of Hooker as her “agent and fiduciary. Yes, certainly, Angelique’s relationship with hooker plays a significant role in her allegations against the Trustees, and she cannot pick and choose which of her allegations she will allow to be subject to discovery, as Trustees argue in their reply papers. However, the requests do not seek documents regarding the greater relationship between Hooker and Angelique, or their relationship as a whole, as the Trustees’ arguments intimate. They are limited in their scope to relate solely to the actual or potential designation of Hooker as her agent and fiduciary. The Court notes that other requests within the Demand for Production which the Trustees served upon Angelique related to other aspects of her relationship with Hooker but are not the subject of this motion to compel. Angelique’s responses and/or supplemental responses need only cover the subject matter actually sought by nos. 112-114.

Further, the reply also contends that the Trustees are entitled to discovery about Angelique’s relationship with Hooker throughout the time frame encompassed by the SAP, which is 2010 to 2018. The Court will deem that argument as an acknowledgement that the “at any time” timeframe applicable to Nos. 113 and 114 is overbroad and should be limited to the 2010 to 2018 time frame—which is the only time frame justified by Trustees in their motion papers.

6. Angelique’s mental health issues.

A. Request and party arguments.

The Trustees propounded the following request:

128: All DOCUMENTS from any time RELATING TO YOUR history of institutionalization or treatment for reasons RELATED TO YOUR mental health and/or competency.

Angelique objected to the request, asserting that that the information sought is not relevant to the claims raised in the action and is not reasonably calculated to the discovery of admissible evidence; is vague, overly broad, unduly burdensome, and oppressive; vague as to time; seeks information protected by rights of privacy, or that is confidential in nature; is improperly compound, conjunctive, or disjunctive; seeks documents equally available to or already in the possession of the propounding party; and objects on the basis of attorney-client privilege and attorney work-product doctrine to the extent it seeks information protected by that privilege. She objects that the expansive definitions of “YOU” and “YOUR” render the request overbroad, burdensome, and oppressive. Finally, she objects that the request seeks information that, under the court’s ruling on her prior motions for protective order, is irrelevant, protected by her right to privacy and confidentiality, outside of the scope of allowable discovery, or absolutely privileged.

In seeking to compel a further response to the request, the Trustees assert that Angelique has a long history of mental health issues, including 11.5 years of institutionalization, and that her mental health history is directly relevant to issues central to the case, including the reasons why she was treated differently by her mother in the terms of the trust, in reducing the amount placed in trust for her benefit, in providing for payments in the discretion of the Trustees, and in providing for siblings Katrina and Thomas, in whom she expressed her “complete confidence,” to act as advisors to the Trustees regarding distributions to Angelique. When asked about the differences, Angelique explained at her deposition that her mother did not trust her. The terms of the trust, however, reflect Mary’s concern for Angelique’s welfare. The designation of Katrina and Thomas as trustee advisors provides context for how Mary intended the Trustees to exercise their discretion in deciding whether and how much income to distribute to Angelique. Distributions were not intended to be determined on a formulaic basis, but holistically, to provide a level of funding the Trustees—in their discretion—determined to be reasonable and appropriate to serve Angelique’s best interests at any given time, as informed by advice from her family.

Trustees contend Angelique’s siblings are concerned that the funds sent aside for Angelique benefit only her and be distributed according to Mary’s rules. If Angelique’s challenges include susceptibility to influence, particularly in relation to money made available to her, they are relevant to Mary’s intention in establishing the trust, to the trustee’s administration of the terms of the trust, and to the role of Thomas and Katrina as trust advisors. Trustees contend they cannot administer the trust responsibly without understanding those challenges, and it is Angelique who has placed adherence to the terms of the trust at issue.

Angelique responds that the request for documents regarding her mental health should be denied, because the information is incredibly invasive to her privacy, and lacks any relevance to the action. She notes this Court’s comments on privacy rights in its December 2021 order on her motions for protective orders, including the ruling that Thomas could discover her private medical information only upon a specific factual and evidentiary showing of how and why such specific information regarding her care and treatment is directly relevant to the claims (explaining the relevance thereto), is necessary to prove those claims, and why the need for the specifically-requested discovery outweighs her right to privacy in her personal medical information. She asserts that the same reasoning should be applied here, and that the Trustees have not made that sort of showing.

The degree of intrusion is tremendous. Trustees characterize their request as one for “background” on Angelique’s mental health history, but the request is very broad, unlimited in time or scope, and encompassing her entire life. She argues that the intrusiveness of the request is an “obvious invasion of an interest fundamental to personal autonomy” that requires a compelling interest to overcome.

She argues further that in spite of the request’s invasiveness, Trustees offer “only the thinnest whisps of purported relevance,” saying they need it only for background, and not a specific purpose. They never explain why disclosure of intimate details of Angelique’s entire mental health history is necessary for them to determine that Trust distributions are reasonable and appropriate for her best interests. While they mention a concern about whether Angelique’s challenges make her susceptible to influence, they offer no foundational proof that such susceptibility exists, and do not explain how the level of distributions that are reasonable and appropriate to Angelique would be impacted by any such susceptibility. Trustees’ arguments demonstrate why Angelique’s petition is vital to protect her interests, since Trustees continue to operate from an apparent assumption that they discretionary provisions of the Trust impose an effective conservatorship over Angelique, giving them control over all details of her affairs under threat of cutting off distributions if she makes decisions with which they disagree and therefore conclude resulted from influence. They have failed to describe any particular information being sought, the particular relevance of the information, that less intrusive discovery methods could not address their claimed need and have therefore not met their burden of showing an entitlement to the information.

In reply, Trustees contend the information is not mere background, but is crucial to what may be the most important issue the Court will confront, i.e., understanding and enforcing Mary’s intent in instructing that the trust be administered differently for Angelique than for her siblings. The touchstone in construing a trust is the settlor’s intent. Angelique’s opposition minimizes Mary’s directions by arguing the trust is not a conservatorship, but the obvious reason why Mary constructed the trust in the manner she did is because Mary knew Angelique was susceptible to influence, could not manage her financial affairs, and needed people to look out for her best interests. The terms of the trust are for Angelique’s protection, and without access to the evidence that will allow the Court to know what Mary knew and view the terms of the trust through Mary’s eyes, the Court cannot do justice. The SAP seeks to undo the protections Mary constructed for Angelique’s benefit, including eliminating the Trustees’ discretion, removing her siblings as trust advisors, and seeking to circumvent Mary’s intent that any remaining principal be distributed to Angelique’s siblings upon her death. The discovery is necessary to permit the court to properly evaluate Angelique’s demands.

B. Analysis

Whatever relevance evidence of Angelique’s past mental health and competency may have, the request at issue is grossly overbroad. Trustee’s contentions of its relevance focus more on their administration of the trust going forward, than they do in meeting any allegations made against them by Angelique’s SAP, which does not constitute good cause for their production in this action. Further, the Trustees’ arguments that their discovery of Angelique’s mental health records is necessary in order to allow the Court to understand Mary’s intent does not justify the incredible invasion of Angelique’s privacy rights that such production would entail.

The Court is well aware that Mary treated Angelique differently from her other children, in establishing the respective trusts, for the reason that certain of Angelique’s mental and/or emotional characteristics purportedly rendered her unable to properly handle her own (at least financial) affairs—although apparently not to the extent that a conservatorship was deemed necessary, nor to the extent that it was believed to be appropriate to structure the trust as a spendthrift trust. It is not necessary for the Court to understand the clinical aspects of Angelique’s challenges, in order for it to properly evaluate her challenges in the context of the proper resolution of the parties’ disputes in this action. Its necessary understanding of Angelique and her challenges can largely be discerned from its observations of Angelique’s own testimony, and the testimony of those persons who have had contact and dealings (either personal or business) with Angelique through the relevant period of the events alleged in her SAP.

The Court is also highly sensitive to the private and confidential nature of Angelique’s mental health records and history. The request at issue, No. 128, seeks all documents, from any time in Angelique’s entire life, related to her history of either institutionalization or treatment for reasons “related to” her mental health or competency. Even were the Court to determine that Angelique’s mental health history were relevant and discoverable to some extent, the required production of any and all documents from any time in her life related to any aspect of her mental health history, would be grossly overbroad, and violative of her constitutional right to privacy. It could potentially include mental health consultations so removed in time as to make them legally irrelevant to any issue in this case. It could potentially include counseling and/or treatment that Angelique obtained prior to her legal name and gender change, which is relevant to this action only as an alleged motivating factor for the alteration in the support and treatment Angelique received from her family members, who did not support that change and undoubtedly would love to have access to that information for their own purposes.

Further, while the stipulated Protective Order would—at least arguably—limit the Trustees’ use of the information to the current litigation, the Court cannot help but note that, once disclosed, that bell cannot be un-rung, and it is practically inevitable that the Trustees and Angelique’s siblings would consider what they learned for purposes other than merely this litigation. Because the Protective Order, by its own nature, cannot in this manner be effective, Angelique’s privacy interest in her mental health history is heightened in this Court’s conduct of the privacy analysis.

As it is drafted, No. 128 seeks documents of a scope that is so unnecessarily and incredibly broad, that the Court cannot help but conclude that such production is unwarranted and absolutely will not be permitted. That is not to say that this Court could not ultimately determine that some amount of disclosure of Angelique’s mental health history would be relevant and discoverable in this action. However, that certainly would not occur unless the information sought was considerably more limited in both time and scope.

The Court has struggled with how it could possibly limit the scope of the enormously overexpansive request, and still both protect Angelique’s clear privacy interests to the extent possible and articulate the boundaries of relevant and discoverable evidence. In doing so, the Court has considered various options, including (a) attempting to determine a properly limited scope of discoverable information, (b) making more limited information discoverable for “attorneys’ eyes only” (along with mental health experts) to be used in the litigation and/or more broadly disseminated only upon order of the court made upon a specific factual showing of how or why that is necessary to prove or disprove a material issue in the case, and/or (c) disclosing more limited information to a neutral third party expert, who would evaluate the information and provide recommendations to the Court on whether the information is relevant, and/or whether its production is necessary for a party to be able to prove or disprove a material issue in the case.

In the end, the Court has determined that the best course of action is to deny the motion to compel production of documents responsive to No. 128, without prejudice to the Trustees’ promulgation of a request which meaningfully limits the time and scope of the request. Upon any subsequent motion to compel further responses with respect to such an amended request, the Trustees would be expected to make a specific showing of good cause to support both the time frame of the request, and the scope of the documents sought pursuant to the request, in the form of declaration testimony containing specific facts to support the conclusion that the documents sought would tend to prove or disprove a specified issue or issues in the case, and/or is necessary for trail preparation or to prevent surprise at trial. (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117; Fireman’s Fund Ins. Co. v. Superior Court (1991) 233 Cal.app.3d 1138, 1141.) Without such a showing, the Court will not further consider the motion to compel.

Trustees’ motion for additional time for deposition of Angelique

1. Statutory authority.

Code of Civil Procedure section 2025.290 provides, in relevant part:

(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

2. Party contentions.

Pursuant to this authority, the Trustees seek an order permitting them to depose Angelique for an additional four hours, contending that the additional time is needed to fairly examine Angelique. First, they assert that the seven-hour limit applies to a single proceeding, and there are two separate legal proceedings under the same case number, involving the petition filed by Thomas, and the petition filed by Angelique. The Trustees are not parties to Thomas’s petition. Even though subsequently consolidated for discovery, the Trustees argue they should not be deprived of additional time, even without a court order, but Angelique has not permitted it.

Trustees contend they received documents pursuant to Angelique’s production the evening of July 18, after Angelique’s deposition had commenced, and they were unable to fairly review the documents for use at deposition. Further, Angelique produced an additional 200 pages of materials six months after her deposition, and the Trustees contend they need to question her with respect to those documents.

The Trustees contend further they6 are entitled to depose Angelique regarding all matters encompassed by the allegations of her SAP, but that they were unable to do so in the time allotted. They set forth a list of appropriate topics for the deposition, taken from the SAP, which cover a lot of ground, and they have only been able to cover a few of the topics at a superficial level. They further seek additional time to allow for a more detailed examination of the budgets and expenses that have supported Angelique’s distribution requests over the years, since the trustees of a discretionary trust need such information to exercise their discretion in making distributions—particularly given that Angelique is challenging their exercise of discretion and ascribes improper motives to information requests made by the Trustees.

Finally, the Trustees contend they are entitled to follow up on fundamental matters that were the subject of substantial changes in Angelique’s testimony, made upon her review of the deposition transcript.

Angelique opposes the motion, first noting that the court ordered that discovery be conducted jointly for the two petitions prior to the deposition, including that only one deposition of Angelique take place, prior to the deposition, even though it was not formally consolidated until late 2022. She focuses upon the Trustees taking more than a year to respond to her written discovery propounded upon them, and their failure to propound any discovery until June 10, 2022, to which she timely responded. Even before that, she provided access to documents previously produced with respect to Thomas’s petition, many of which were responsive to Trustees’ discovery. Her July 18 production was predominantly of documents already in their possession. She contends Trustees’ counsel has a large staff at his disposal who could have reviewed the production and directed him to specific documents for presentation at the deposition.

Even though the Trustees want more deposition time for Angelique, they contend they will only agree to appear for one day of deposition to cover all matters pending in this action, as well as in the matters pending in Pennsylvania.

Angelique argues the Trustees cannot meet their burden to show that additional time is needed to fairly examine her, given that they did not use their time efficiently or effectively, or because they did not timely seek discovery in order to prepare for the deposition. They do not explain why they were unable to pose questions related to the categories set forth during the 8 hour deposition that was taken. They knew it would be the sole deposition for Angelique and should have coordinated with Thomas to use their time effectively. Angelique contends that counsel for Thomas and counsel for the Trustees both pursued lines of inquiry with no probative value, and that sought personal and irrelevant information. Her counsel had to repeatedly warn both of them about their use of the deposition process to annoy and embarrass Angelique. The deposition was permitted to exceed 7 hours.

Finally, Angelique argues that her transcript corrections do not entitle the Trustees to more time. Her corrections were not substantive, most were corrections where she had forgotten or misstated specifics, made largely to be consistent with the facts confirmed in the produced documents. She is authorized by statute to change the form or substance of the answer to any question, and doing so does not open the door to further deposition and can only subject her to attacks on her credibility.

In reply, Trustees contend they are presumptively entitled to at least seven hours of time to depose Angelique with respect to the issues raised by the two petitions, which were not formally consolidated for discovery purposes until after the deposition. The Trustees have taken the position that depositions may be coordinated to the greatest extent possible, but the Court never limited the amount of time available to them for Angelique’s deposition, even acknowledging that the deposition may take more than one session. Given the length and scope of the SAP, and the accusations Angelique makes against the Trustees, a limitation of her deposition to 3 hours, 35 minutes is unreasonable and prejudicial.

Trustees confirm they reasonably need more time for the deposition. They contend they used their deposition time to address key case issues, coving a lot of ground in the time they had. Because of time constraints, however, they did not get to cover the issues in much depth. They did not pursue lines of inquiry with no probative value or seek personal or irrelevant information. One of the examples given by Angelique’s counsel was their questions regarding her reasons for working with a computer professional for computer training. That arose from a series of budgets she had provided to the Trustees over the years to support distributions, and Angelique contends in her SAP that she provided all information requested of her in the form of the budgets, but that it was unreasonable and evidenced the bad faith of the Trustees for them to seek all underlying documentation. Thomas’s counsel introduced a compilation of budgets, they are an appropriate subject of inquiry, and Trustees contend that it is a legitimate topic of inquiry to ask why an unemployed senior would pay almost $1,000/month on “computer training,” and what she was receiving in return, which turned out to be companionship, advice, and assistance with other type of matters. Trustees contend that the budgets are a potentially significant topic of further inquiry, and even if they only take 5 minutes per budget, that is an additional 30 minutes of deposition time.

Trustees dispute Angelique’s claim that they had ample time to review her documents to prepare for the deposition. Most were produced the night before counsel questioned her, and she produced almost 200 more pages six months later. Trustees did not earlier propound their discovery because Angelique’s counsel had informed the court months earlier of her intent to file a second amended petition, and it made no sense to serve discovery in relation to a petition they had not yet seen. After receiving the SAP, they promptly served the discovery. Trustees are not ascribing any improper motive to the tardy production; merely contending they should not be prejudiced by it.

Finally, Trustees again contend that Angelique’s deposition corrections were anything but “not substantive,” and some go to critical issues in the case. As such, they should be able to further question her about them.

3. Analysis. 

The Court is not inclined to indulge counsel in their quibbling finger-pointing with respect to which attorney is most at fault for the inability of the Trustees to complete Angelique’s deposition. Given its familiarity with counsel and with the case, the Court certainly has its own impressions of the true story.

The Court has required the parties to conduct discovery jointly relative to both Thomas’s petition and Angelique’s petition, but in doing so did not limit the time within which the parties would be required to do so. What the Court’s resolution of this motion comes down to is the fact that while the two petitions both relate to the general circumstance of Mary’s trust for Angelique’s benefit, their allegations and claims are quite different. Angelique’s SAP is a lengthy and complex pleading, which asserts a number of serious claims against the Trustees. Fundamental fairness and due process require that they be allowed adequate opportunity to explore Angelique’s claims against them, and simply based upon the nature of the allegations, a less than four hour period examining Angelique does not appear to the Court to have constituted an adequate opportunity to do so.

For that reason, the Court will grant the motion, and will permit the Trustees to conduct a further deposition of Angelique, at a time and place convenient to her, for a period not to exceed three hours.

The Court notes Angelique’s assertion that the Trustees have contended that they will only agree to appear for one day of deposition to cover all matters pending in this action, as well as the matters pending in Pennsylvania. Those issues are not currently before the Court. The parties should all rest assured that they will be provided ample opportunity to depose all material witnesses in this case, including the Trustees. To the extent any party seeks to deny another the ability to do so, the Court will gladly entertain an appropriate motion, and will not hesitate to impose any appropriate sanctions for a failure to comply with a legitimate demand and/or court order.