In this probate proceeding, the attorney for the objectant issued a subpoena duces tecum to the attorney draftsman commanding that his firm produce for discovery and inspection written and electronic documents or e-mails with respect to the following: (1) all communications between counsel and the proponent or members of her immediate family; (2) the template document used to create the propounded instrument; (3) the originals of the propounded instrument, a durable power of attorney, a health care proxy and a living will, including any prior drafts; and, (4) original billing statements for legal services rendered. The attorney draftsman moves for: (1) an order pursuant to CPLR 2304 quashing the subpoena duces tecum; (2) a protective order pursuant to CPLR 3103 (a) with respect to the information sought by the subpoena; and, (3) an order pursuant to 22 NYCRR 130-1.1 (a), granting sanctions and costs against the objectant and her counsel.

The objectant's former attorney previously made an application for, inter alia, the production by the proponent and attorney draftsman of items requested in various discovery demands. Based upon the deposition testimony of the attorney draftsman, the objectant demanded that the attorney draftsman produce:

"All meta data will templates and will preparation software involved in the production of the subject will, together with electronic calendar meta data for alleged appointments and preparation of the subject will, including but not limited to May 19, 2006 and August 25, 2006."

A decision and order on that motion was rendered on the record in open court granting certain relief against the proponent, but denying the relief sought against the drafting attorney (see Matter of Schwartz, NYLJ, Jan. 14, 2010, at 36, col 2). In support of the instant motion to quash, the movant alleges procedural defects in the subpoena and its service. The movant further contends that the information sought in the subpoena was either already provided at his deposition or is identical [*2]or similar to information sought by the objectant's former counsel and previously denied by the court.

In opposing the motion, the objectant asserts that the procedural defects are de minimis, the subpoena and its service substantially conform to the requirements of law and any defect may be cured. The objectant also contends that the prior discovery motion made by her former counsel is not dispositive of the issues raised herein. Despite the reference in the prior motion to meta data, which the objectant defines herein as the computer code integrated into the computer-generated document, or the electronic originals on the movant's computer, the objectant argues that the issue of meta data or electronic original discovery was not properly presented at that time as her former counsel did not appropriately explain the terminology in her papers. The objectant now alleges that the attorney draftsman's firm would not be inconvenienced by the requested discovery because the objectant would pay technicians to clone the information from the firm's computers. Moreover, the objectant asserts that since former counsel referred to the movant's deposition testimony about his inability to produce written copies of all e-mails relating to the will's preparation, the court considered only the production of written documents and e-mails, and did not focus on the production of the electronic information itself.

A change in counsel is not a valid ground to obtain a "second bite of the apple." From all of the papers submitted herein, it appears that although present counsel to the objectant might very well have supported the objectant's arguments for the subpoenaed information with authority and definitions of technical terms not presented in the prior application, the subject subpoena duces tecum seeks the production of the same or similar material or information that former counsel requested in the prior application. Consequently, the subject subpoena seeking such discovery, served about one year after the courts decision and order denying the objectant's prior application for the same or similar relief is, in effect, a belated attempt to reargue or renew the determination on the prior application. The objectant failed to establish that any matters of fact or law that were presented on the prior application were overlooked or misapprehended by the court in determining the prior application (see CPLR 2221 [d] [2]; Ping Lee v Consolidated Edison Co. of NY, 40 AD3d 481, 482 [2007]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv denied in part, appeal dismissed in part 80 NY2d 1005 [1992], lv denied 81 NY2d 782 [1993]). Moreover, the objectant failed to present any reasonable justification for her failure to present on the prior application any new facts that she now states for the first time (see CPLR 2221 [e]; Utility Audit Group v Apple Mac & R. Corp., 59 AD3d 709 [2009]; William P. Pahl Equip. Corp., 182 AD2d at 27).

Accordingly, the motion to quash the subpoena duces tecum dated December 23, 2010 is granted. In view of this disposition, the branch of the motion seeking a protective order pursuant to CPLR 3103 (a) is academic. Finally, under the circumstances presented, including that the movant has not been able to locate or retrieve certain requested documents, the imposition of sanctions or costs pursuant to 22 NYCRR 130-1.1 (a) is unwarranted, and that branch of the motion is denied.

This decision constitutes the order of the court.

____________________________

SURROGATE