IMO: The Estate of James Vincent Tigani, Jr., deceased, The J.. Vincent Tigani, Jr., aka James Vincent Tigani, Jr. Revocable Trust, U/A dtd April 10, 1995
Annotate this Case
Download PDF
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IMO:
)
THE ESTATE OF JAMES VINCENT
)
TIGANI, JR., deceased, THE J. VINCENT
)
TIGANI, JR., aka JAMES VINCENT TIGANI, )
JR. REVOCABLE TRUST, U/A
)
dtd. APRIL 10, 1995
)
C. A. No. 7339-ML
MASTER’S REPORT
(Motion to Compel)
Oral Draft Report: December 19, 2012
Exceptions Submitted After Briefing: February 18, 2013
Final Report: March 20, 2013
David J. Ferry, Jr., Esquire, Rick S. Miller, Esquire, and Thomas R. Riggs, Esquire, of
Ferry, Joseph and Pearce, P.A., Attorneys for Petitioner Bruce W. Tigani.
Neil R. Lapinksi, Esquire and Phillip A. Giordano, Esquire, of Gordon Fournaris &
Mammarella, P.A., Attorneys for Respondent Josephine C. Tigani.
LEGROW, Master
INTRODUCTION
This action involves a petition filed by Bruce W. Tigani (“Bruce”)1 to remove his
mother, Josephine C. Tigani (“Josephine”), as executrix of the estate of James Vincent
Tigani, Jr. and trustee of the James Vincent Tigani, Jr. Revocable Trust, Under
Agreement dated April 10, 1995. The parties presently are engaged in a period of limited
discovery directed toward the issue of whether Josephine had capacity to execute a series
of documents that she contends divested Bruce of standing to bring this action. On
September 11, 2012, Bruce filed a motion to compel (the “Motion”) that raised two
primary issues: (1) whether Bruce could take discovery of Josephine’s attorneys, and (2)
the temporal scope of the discovery to which Bruce was entitled. I issued a draft report
from the bench on December 19, 2012 granting in part and denying in part the Motion.
On December 20, 2012, Bruce filed his notice of exceptions to the draft report (the
“Notice of Exceptions”). He took exception to my ruling that Josephine had not waived
the attorney-client privilege, as well as to my ruling limiting discovery to Josephine’s
capacity to execute the particular documents that form the basis of the standing argument.
Bruce also took exception to several rulings on specific discovery requests. For the
reasons that follow, I modify my draft report on certain of these issues. This is my final
report on the Motion.
1
I use the parties’ first names for the sake of clarity. No disrespect is intended.
1
BACKGROUND
Josephine is the trustee of the James Vincent Tigani, Jr. Revocable Trust, Under
Agreement dated April 10, 1995 (the “Trust”) as well as the executrix of the estate of
James Vincent Tigani, Jr. (the “Estate”). The Trust is the residuary beneficiary of the
Estate. Immediately after the death of James Vincent Tigani, Jr. on October 23, 2011,
Josephine executed a series of documents that altered her own will and exercised her
limited testamentary power of appointment in the Trust in favor of her own revocable
living trust (the “October 2011 Documents”). On March 20, 2012, Bruce filed his
petition to remove Josephine as executrix and trustee and for an accounting (the “Verified
Petition”). About one week later, Josephine moved to dismiss the Verified Petition (the
“Motion to Dismiss”).
In April 2012, while the parties were briefing the Motion to Dismiss, Josephine
executed the First Amendment to the First Complete Amendment to her trust, with the
purpose of removing Bruce as a contingent beneficiary of the Trust (the “April 2012
Documents”). Following argument on the Motion to Dismiss, I ruled that Bruce could
conduct limited discovery to investigate whether Josephine had the requisite testamentary
capacity when she executed the April 2012 Documents. Bruce propounded discovery
requests on June 28, 2012. On July 31, 2012, the same day she responded to Bruce’s
discovery requests, Josephine executed a codicil to her will to irrevocably exercise her
testamentary power of appointment in the Trust (the “July 2012 document”). At some
2
time thereafter, Bruce’s counsel sent a letter to counsel for Josephine indicating that
Josephine’s responses to the discovery requests were deficient.2
On September 11, 2012, Bruce filed his Motion to compel responses to
Josephine’s purportedly deficient discovery responses.3 The Court held oral argument on
the Motion on December 19, 2012. At the conclusion of the argument, I made several
rulings from the bench. As to Josephine’s attorney-client privilege, I ruled that to the
extent that she intended to call any of her attorneys to testify with respect to her capacity,
she would waive the privilege with respect to that attorney. I also noted that work
product associated with any attorney testimony on which Josephine intends to rely at trial
may need to be produced, subject to the protections afforded by Rule 26(c)(3), which
guards an attorney’s mental impressions, conclusions, opinions, and legal theories.
Additionally, I ruled that although the permissible scope of discovery includes
investigation into Josephine’s mental state and health before April 2012, it does not allow
for inquiry into her capacity to execute the October 2011 Documents. I explained that
because Josephine’s mental state and thought processes at the time she executed the
October 2011 Documents do not bear on her capacity to execute the April and July 2012
Documents, discovery should be limited to those later documents. Finally, I ruled on the
specific interrogatories and document production requests made by Bruce, many of which
related to the two aforementioned issues.
The parties’ briefs do not agree on the date of that letter. In his opening brief in this matter, Bruce
asserts that the letter was sent on July 31, 2012. In her response brief, Josephine states that the letter was
sent on August 17, 2012.
3
On September 25, 2012, Bruce filed an amended motion to compel. This is the operative document for
purposes of my draft and final reports.
2
3
In his Notice of Exceptions, Bruce primarily requests a broader scope of discovery
than I initially permitted, arguing that he cannot measure the progression of what he
contends is Josephine’s delusionary behavior and conduct without exploring her mental
state even before she executed the April 2012 Documents. I agree, and I revise my draft
report in this final report to reflect a broader scope of permissible discovery. I will first
address the issue of discovery surrounding the October 2011 Documents. I will then
detail the boundaries of Josephine’s attorney-client privilege and the work product
doctrine as they apply to the Motion. Once I have clarified these two exceptions, I will
revise as necessary my rulings as to Bruce’s specific discovery requests.
ANALYSIS
I.
Discovery into the October 2011 Documents
In my draft report, I ruled that investigation into Josephine’s mental capacity
during the time before she executed the April 2012 Documents was within the
permissible scope of discovery, but that discovery into the execution of the October 2011
Documents was not permissible because Josephine was not relying on the October 2011
Documents to advance her standing argument and such investigation would not shed light
on Josephine’s capacity to execute the April and July 2012 Documents. Upon further
reflection, however, that limitation is both artificial and potentially unmanageable, and I
therefore revise my ruling.
Court of Chancery Rule 26(b) establishes a liberal standard of discovery,
permitting inquiry into any information that “appears reasonably calculated to lead to the
4
discovery of admissible evidence.”4 Josephine has engaged in a multistage process of
estate planning that began with the October 2011 Documents. As Bruce argues in his
opening brief in support of his exceptions, discovery into the execution of those
documents will provide him with a clearer picture of the circumstances leading up to the
April and July 2012 Documents, and that information is likely to bear upon Josephine’s
capacity to execute the later documents.
Indeed, an adequate investigation into
Josephine’s mental capacity during the period before she executed the April 2012
Documents will necessarily include an examination of her capacity to execute the
October 2011 Documents, which were executed only a few months earlier.
The interdependence of the October 2011 Documents and the April 2012
Documents further persuades me to expand the scope of discovery established in my draft
report. The changes Josephine made to her own estate, as well as to the Trust, work
together to remove Bruce as a beneficiary. These documents do not stand alone, nor do
the actions Josephine took in executing each of them.
Therefore, in the course of
discovery, it would be difficult for the parties to separate documents and communications
relating to the April 2012 Documents from those relating to the October 2011
Documents. For these reasons, I expand the scope of discovery to any non-privileged
information that is related to Josephine’s capacity to execute the October 2011
Documents.
4
See, e.g., Pfizer, Inc. v. Warner-Lambert Co., 1999 WL 33236240, at *1 (Del. Ch. Dec. 8, 1999).
5
II.
Josephine’s Waiver of the Attorney-Client Privilege
In the Motion, Bruce argued that Josephine had waived the attorney-client
privilege with respect to her capacity to execute the April and July 2012 Documents
because (1) Josephine’s interrogatory responses revealed that she intended to call several
attorneys as witnesses in this action, and (2) the case was the functional equivalent of a
will contest, and therefore fell within the exception to attorney-client privilege set forth
in Rule 502(b)(2) of the Delaware Uniform Rules of Evidence. In my draft report, I held
that Josephine had waived the attorney-client privilege to the extent she intended to call
any of her attorneys to testify as to her capacity, and that Bruce therefore was entitled to
seek discovery of those attorneys, both through written discovery and deposition. 5 I
further held that the exception set forth in Rule 502(b)(2) did not apply because Josephine
is not deceased.6
A party cannot use the attorney-client privilege as both a sword and shield by
“tak[ing] a position in litigation and then erect[ing] the attorney-client privilege in order
to shield itself from discovery by an adverse party who challenges that position.”7 But
Josephine is aiming to do just that by calling her attorneys to testify as to her mental
capacity to execute certain estate planning documents and then claiming privilege to
prevent Bruce from inquiring into the communications that may form the basis of the
5
I granted Josephine time to reconsider her decision to call her attorneys in light of that ruling, and
ordered her to submit revised discovery responses within two to three weeks. The revised discovery
responses were delayed by the exceptions process, but will be due within two weeks of the date of this
final report.
6
My ruling regarding the application of Rule 502(b)(2) remains unchanged in my final report.
7
Pfizer Inc, 1999 WL 33236240, at *1.
6
attorney’s testimony. In her response brief to Bruce’s exceptions, Josephine asserts that
Ms. Beste was the attorney of record for the April and July 2012 Documents, and as such,
she will be the attorney who testifies about Josephine’s capacity to execute those
documents. In line with my draft report, I maintain that if Josephine intends to call Ms.
Beste to testify at trial, then Josephine has waived the privilege as to Ms. Beste and Bruce
is entitled to depose her. I do not, however, intend to imply that the waiver of attorneyclient privilege necessarily applies to Ms. Beste alone. As I have expanded the scope of
discovery in this ruling to include the October 2011 Documents, Josephine may need to
revise the list of attorneys she will call to testify on her capacity to execute those earlier
documents. That decision, of course, constitutes a waiver of privilege as to that attorney.
In addition, attorney-client privilege does not attach to all information that could
be learned from Josephine’s attorneys simply by virtue of that person’s status as an
attorney.8 Bruce argues that Emmanuel Fournaris, one of Josephine’s attorneys, is a
necessary witness with knowledge of Josephine’s state of mind as it relates to her
execution of the documents at issue. In support of that position, he points to a March 19,
2011 e-mail that Mr. Fournaris sent to Bruce, in which Mr. Fournaris discussed
Josephine’s state of mind surrounding her estate-planning actions. 9 This e-mail is not
protected by attorney-client privilege, and information relating to its contents therefore is
8
For example, the privilege does not apply to communications between an attorney and his client where
the circumstances indicate that the client did not intend the communication to remain confidential. See
Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992). Further, it does not apply to a communication between
attorney and client when the attorney is acting in a non-attorney role. See Texaco, Inc. v. Phoenix Steel
Corp., 264 A.2d 523, 524 (Del. Ch. 1970) (explaining that the communication is protected by attorneyclient privilege only if the attorney is acting as a lawyer in connection with that communication”)
(emphasis added).
9
The email is reproduced in Bruce’s opening brief on page 7.
7
discoverable. In addition, as acknowledged by counsel for Josephine at oral argument,
Mr. Fournaris represented Josephine as her business advisor in the family business. Any
information regarding, or impressions of, Josephine’s mental state that Mr. Fournaris may
have gathered while serving in that role also is not protected by privilege.10 For these
reasons, Bruce is permitted to conduct discovery into the contents of the March 19, 2011
e-mail Mr. Fournaris sent him, as well as Mr. Fournaris’s knowledge of Josephine’s
mental capacity to the extent that such knowledge was obtained from Mr. Fournaris’s
work as a business advisor to Josephine.
An additional waiver of the attorney-client privilege occurred while the parties
were briefing the exceptions to the draft report. Josephine produced to Bruce’s counsel
an expert report by Dr. Robert L. Sadoff, M.D., who apparently will testify on
Josephine’s behalf regarding her capacity. Dr. Sadoff interviewed Peter Gordon, Esq., as
part of his examination of Josephine’s capacity, and in his report he relays Mr. Gordon’s
opinion of Josephine’s mental state, noting that Mr. Gordon felt that Josephine has “no
problem with her cognition” and that she “understands what he tells her” about her estate
planning.11 Dr. Sadoff relies on Mr. Gordon’s opinion to form part of the basis of his
expert opinion. Josephine cannot hope to pass off Mr. Gordon’s opinion as part of the
expert report while maintaining her attorney-client privilege as to him. To the contrary,
by including Mr. Gordon’s impressions of Josephine’s mental capacity in an expert
report, Josephine has waived the privilege as to Mr. Gordon’s knowledge of her mental
10
11
See Texaco, Inc., 264 A.2d at 524.
Petitioner’s Reply Br. Ex. A.
8
capacity, and therefore, Bruce may depose Mr. Gordon as to his knowledge of this
issue.12
In line with the expansion of the scope of discovery, I extend my ruling on related
work product to include work product that relates to the October 2011 Documents. I
caution, however, that Josephine will only waive attorney-client privilege by injecting an
attorney’s testimony into the trial. As such, the work product of those attorneys who
testify on her behalf will remain protected by Court of Chancery Rule 26(c)(3), which
protects mental impressions, conclusions, opinions, or legal theories of that attorney
concerning the litigation. This means that attorney work product is subject to the same
limitations as those I laid out in my draft report. Privileged work product created postlitigation must be added to Josephine’s privilege log due to the on-going nature of
Josephine’s estate planning.
III.
Bruce’s Specific Discovery Requests
In accordance with the above modifications to my draft report, I adjust my rulings
as to each of Bruce’s specific discovery requests as needed. As to Interrogatory No. 12,
and Josephine’s failure to hand over a complete privilege log, I expect that the added
clarity of this final report will allow Josephine to now produce a full privilege log that
12
See Marceau Investments v. Sonitrol Holding Co., C.A. 12065, 1991 WL 137146 at *2 (Del. Ch. July 2,
1991) (explaining that the substance of the facts and opinions to which the expert is expected to testify,
and the grounds for each opinion, become discoverable by virtue of Court of Chancery Rule
26(b)(4)(A)(i)). Even if the underlying facts and opinions would otherwise be privileged, the privilege
claim is waived to the extent that the party determines to call an expert witness to testify based upon those
facts and opinions. Stearrett v. Newcomb, 521 A.2d 636, 638 (Del. Super. 1986).
9
includes any privileged documents relating to the October 2011 Documents that
previously were excluded.
Documents and correspondence responsive to Bruce’s
Request for Production No. 11 may now fall within the scope of discovery to the extent
that such correspondence relates to the October 2011 Documents. Similarly, Bruce’s
Requests for Production No. 14-21 may be affected by this expansion of the scope of
discovery. Requested items that are responsive in that they relate to the October 2011
Documents, or to the testimony of any attorneys added to testify on Josephine’s capacity
surrounding the execution of the October 2011 Documents, must be produced. Finally, I
expect that if counsel for Josephine has any “counterindicating facts” regarding the
completeness of Josephine’s responses to Requests for Production Nos. 19 and 20, they
will dig deeper to make sure she has produced all responsive documents.13 Simply
asking a client if she has responsive documents does not satisfy an attorney’s discovery
obligations.
CONCLUSION
Other than the modifications set forth above, I affirm the rulings in my draft
report. Exceptions to this report are stayed pending a ruling on Josephine’s capacity to
execute the documents in question.
I also would like to use this opportunity to alert the parties to an issue that came to
my attention while the Notice of Exceptions was under submission.
Between
approximately 2008 and 2011, I was a patient at the dental practice owned by James
13
Preferred Investment Services, Inc. v. T&H Bail Bonds, Inc., C.A. No. 5886-VCP, TRANSCRIPT
16:14 (Del. Ch. Jan 5, 2013).
10
Tigani III. I ceased being a patient in that practice when my insurance changed after I
was appointed as a Master in this Court. I had not connected the names until recently,
when I was reviewing old records in my home office. I am not certain what role, if any,
James Tigani III will play in this case. After reviewing the Delaware Judge’s Code of
Judicial Conduct, I have no concerns about my ability to fairly or impartially judge this
matter, nor do I believe that there is a basis to recuse myself from this case. If either
party has concerns, however, or would like to discuss this issue, counsel jointly should
contact my chambers to arrange a teleconference.
Respectfully submitted,
/s/ Abigail M. LeGrow
Master in Chancery
11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.