I’ve been on a calendar, but never on time.

-Marilyn Monroe

While the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) has now been enacted in a majority of states – 17 states have adopted a version of the act so far this year – there has been very little litigation about the act to date. As a result, there is little guidance from the courts about the interpretation of key terms and how disputes will be resolved. A recent decision from the New York Surrogate’s Court helps fill in some of the gaps. In In re Estate of Serrano, 54 N.Y.S.3d 564 (2017), the court interpreted the definition of “communication” in Article 13-A of the Estate’s Powers and Trusts Law (“EPTL”), a New York statute modeled after RUFADAA.

The issue in Serrano involved a personal representative’s request for access to the decedent’s Google email account, contacts, and calendar. In response to the request, Google asked for a court order stating that “disclosure of the content [of the requested electronic information] would not violate any applicable laws, including but not limited to the Electronic Communications Privacy Act and any state equivalent.” Id. at 565.

The court considered the issue in light of Article 13-A of the EPTL. The law requires Google, as the custodian of the electronic records, to disclose to the personal representative, upon request, a catalogue of the decedent’s electronic communications, as well as certain other digital assets, but does not require Google to disclose the contents of the decedent’s electronic communications. Id.

In reviewing the personal representative’s requests for information from Google, the court determined that the decedent’s Google calendar was not an electronic communication. The court reasoned that “[i]nasmuch as there is no transfer of information between two or more parties when a calendar entry is made, a user’s calendar is not a ‘communication.’” Id. The court considered the definition of “communication” found in both the Stored Communications Act, 18 U.S.C. § 2701 et seq. and Article 13-A of the EPTL in reaching this conclusion. The EPTL defines “electronic communication” as including “email, text messages, instant messages, and any other electronic communication between private parties.” Because the court found that a decedent’s “calendar kept electronically is…a digital asset that does not include ‘content of electronic communications,’” it must be disclosed upon the personal representative’s request. Id. at 566. The court applied this same reasoning to determine that the entries in the decedent’s contacts were not communications and were required to be disclosed upon request. Id. at 565 n.1.

Under the EPTL, as under RUFADAA, disclosure of the contents of the decedent’s electronic communications would be required under certain circumstances, for example, if the personal representative “establish[ed] that disclosure of that electronic information is reasonably necessary for the administration of the estate.” Id. at 566.

Although this New York decision is not binding on litigation here in Colorado, it is nonetheless helpful to be aware of how courts in other jurisdictions are interpreting this relatively new legislation and how litigation in the area of digital assets is evolving.