T&E Litigation Newsletter - 5/13/13

May 2013Advisories

Last week, the Appeals Court issued a much-anticipated decision in Ajemian v. Yahoo!, Inc., No. 12-P-178 (May 7, 2013), which concerns the question of whether the decedent’s e-mails in his Yahoo! account are property of his estate.

Without ruling on this question, the Probate Court had dismissed the administrators’ complaint, holding that their suit to gain access to the e-mails must be brought in California pursuant to the forum selection clause in the Terms of Service and Privacy Policy (“TOS”) for the Yahoo! account. The Probate Court had also held that res judicata barred the administrators’ suit in Massachusetts, where they had already obtained an unopposed order against Yahoo! permitting them to obtain the headers to the e-mails, but not the contents of the e-mails themselves. 

The Appeals Court reversed and remanded, holding that res judicata did not bar the present suit in Massachusetts, and that neither the forum selection clause nor the one-year limitations period stated in the TOS barred the present suit in Massachusetts.  The Appeals Court explained that the TOS, which was in the form of a “browsewrap” agreement (where terms and conditions are posted as a hyperlink on the website), had not been reasonably communicated to the decedent or accepted by him. The Appeals Court also explained that it would be unreasonable to enforce the TOS against the administrators, who were not parties to the agreement, and that Massachusetts is the proper jurisdiction to hear the dispute because the decedent was domiciled in Massachusetts and the administrators are residents of Massachusetts.

The Appeals Court declined to address the question of whether the decedent’s e-mails in his Yahoo! account are property of his estate, and thus whether the administrators can access those e-mails. “In these circumstances, the question is best addressed on remand after full briefing and such further proceedings as the probate judge deems appropriate.” So, for the answer to this question, it would seem that we must stay tuned.

This update was authored by Mark Swirbalus, a Director in the firm's Probate & Fiduciary Litigation group. For questions or additional information on this topic, please contact Mark at [email protected].com or contact any member of the Probate & Fiduciary Litigation group.

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