Alexis Kyriakopoulos v. Robert Z. Maigetter, Individually

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 23-2276
_______________
ALEXIS KYRIAKOPOULOS
v.
ROBERT Z. MAIGETTER, INDIVIDUALLY AND AS
EXECUTOR OF THE ESTATE OF BARBARA J. BEROT,
DECEASED; SARAH A. EASTBURN, ESQUIRE;
EASTBURN & GRAY, P.C.
Robert Z. Maigetter,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:21-cv-03887)
District Judge: Honorable Anita B. Brody
_______________
Argued: September 5, 2024
Before: JORDAN, HARDIMAN, and PORTER, Circuit
Judges.
(Filed: November 20, 2024 )

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Madeline Hamilton
O FFIT K URMAN
401 Plymouth Road
Suite 100
Plymouth Meeting, PA 19462
C. Lawrence Holmes [Argued]
O FFIT K URMAN
1801 Market Street
Ten Penn Center
Suite 2300
Philadelphia, PA 19103
Counsel for Appellant Robert Z. Maigetter
Glen H. Ridenour, II [Argued]
K LENK L AW
101 Greenwood Avenue
Suite 360
Jenkintown, PA 19046
Counsel for Appellee Alexis Kyriakopoulos
_______________
OPINION OF THE COURT
_______________
PORTER, Circuit Judge.
Robert Z. Maigetter appeals the District Court’s order
holding that certain communications between Maigetter and

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his attorney Sarah A. Eastburn were not covered by the
attorney-client privilege and ordering their production. The
District Court found that the communications were probative
of the intentions of Barbara J. Berot, Maigetter’s deceased
wife, and therefore subject to the testamentary exception to the
attorney-client privilege. Recognizing that its application of
the doctrine was novel, the District Court certified for appeal a
narrow question on the scope of the testamentary exception.
Because the District Court’s approach would expand the tradi-
tional bounds of the exception, we will vacate its ruling and
remand for further proceedings.
I. F ACTS AND PROCEDURAL BACKGROUND
Maigetter and Berot jointly owned a co-op apartment in
southwest Washington, D.C. The couple allowed Berot’s son,
Alexis Kyriakopoulos, to use the apartment. In 2019, Berot
was diagnosed with terminal pancreatic cancer, touching off a
flurry of estate planning. Eastburn, acting as joint counsel for
Maigetter and Berot, drafted parallel wills which the couple
executed. Berot made plain during this period that she wished
for ownership of the co-op to pass to Kyriakopoulos, though
the terms of her will did not clearly allow such an outcome if
Berot predeceased Maigetter.
Berot passed away in May 2020. Following Berot’s
death, Maigetter contacted Eastburn seeking advice about the
estate. The two exchanged several emails on the subject.
This case arose when Kyriakopoulos sued Maigetter,
not to contest Berot’s will, but to enforce an alleged contract to
will. Kyriakopoulos maintains that Maigetter, sometime before
Berot’s death, entered into an agreement with Berot under
which the Washington co-op would pass to Kyriakopoulos. In

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his efforts to prove that claim, Kyriakopoulos obtained copies
of communications between Berot, Maigetter, and Eastburn
prior to Berot’s death.
Kyriakopoulos wanted more. He requested that
Maigetter produce his communications with Eastburn follow-
ing Berot’s death. Maigetter objected, asserting that the com-
munications were protected by the attorney-client privilege.
Kyriakopoulos moved to overrule those objections and compel
production. The District Court, following in camera review,
granted the motion as to twelve of the disputed emails. The
District Court found that those communications included dis-
cussions of Berot’s intentions in relation to her will. Accord-
ingly, the District Court held that the testamentary exception
applied to overcome Maigetter’s assertion of privilege.
Maigetter moved to certify the District Court’s order for
interlocutory review. The District Court granted the motion,
because, pursuant to 28 U.S.C. § 1292(b): (1) its order
involved a controlling question of law; (2) there was substan-
tial ground for difference of opinion on that question of law;
and (3) an immediate appeal from the order may materially
advance the resolution of the litigation. The District Court
accordingly certified its order for our review, presenting a nar-
row question: “whether the testamentary exception applies
only to communications made by the deceased; or, addition-
ally, to communications made by others which discuss state-
ments made by the deceased and are probative of the
deceased’s intent.” J.A. 0047.

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II. J URISDICTION AND STANDARD OF R EVIEW
The District Court has jurisdiction under 28 U.S.C.
§ 1332. We have jurisdiction for this interlocutory appeal
under 28 U.S.C. § 1292(b).
Appellate review of motions to compel and similar dis-
covery disputes is generally for abuse of discretion. In re
Cendant Corp. Sec. Litig., 343 F.3d 658, 661 (3d Cir. 2003).
But “review is plenary where the decision was based upon the
interpretation of a legal precept.” Id. As required by 28 U.S.C.
§ 1292(b), and as confirmed by the District Court’s certifica-
tion order, the decision on appeal “involves a controlling ques-
tion of law.” J.A. 0047. Our review is therefore plenary.
III. D ISCUSSION
A. History of the testamentary exception.
The attorney-client privilege, “one of the oldest recog-
nized privileges for confidential communications,” needs little
introduction. Swidler & Berlin v. United States, 524 U.S. 399,
403 (1998); see also Haines v. Ligget Grp. Inc., 975 F.2d 81,
89–90 (3d Cir. 1992). “The privilege is intended to encourage
‘full and frank communication between attorneys and their cli-
ents and thereby promote broader public interests in the
observance of law and the administration of justice.’ ” Swidler,
524 U.S. at 403 (quoting Upjohn Co. v. United States, 449 U.S.
383, 389 (1981)). The privilege is subject to a few narrow
exceptions including, at issue here, the testamentary exception.
The Supreme Court applied the testamentary exception
in the early case of Blackburn v. Crawford’s, 70 U.S. (3 Wall.)
175, 192–94 (1865), and further explored the history and scope

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of the exception in Glover v. Patten, 165 U.S. 394, 406–08
(1897). The Glover Court began with a general statement of
the scope of the exception: “[I]n a suit between devisees under
a will, statements made by the deceased to counsel respecting
the execution of the will, or other similar document, are not
privileged.” Glover, 165 U.S. at 406. The Court then surveyed
English common-law precedent, discussing the underlying jus-
tifications for the attorney-client privilege and why those justi-
fications might apply with less force in the testamentary con-
text. Id. at 406–07.
Citing to Blackburn, the Court described the exception
as effecting an implied waiver of privilege by the deceased cli-
ent. Id. at 407–08. The logic goes something like this: Take as
axiomatic that a testator wants his wishes executed accurately.
Further assume that he discussed those wishes with his attorney
while preparing his will. Now imagine that after the testator’s
death “the truth of his testamentary declaration should be chal-
lenged by any of those to whom it related.” Blackburn, 70 U.S.
at 194. As scrivener of the will, the testator’s attorney could
have information that would resolve the dispute, but he would
ordinarily be bound by the attorney-client privilege to keep
mum.
Who wins in a conflict between the deceased client’s
interest in confidential communications and his desire that his
testamentary intentions be fulfilled? The deceased’s intentions,
in a rout. Indeed, “[i]t could [be] no clearer if the client had
expressly enjoined it upon the attorney to give this testimony.”
Id. Enforcing the attorney-client privilege in such a circum-
stance “would involve a perversion of the rule, inconsistent
with its object, and in direct conflict with the reasons upon
which it is founded.” Id. The testamentary exception thus steps
in to waive the privilege, permit the attorney to testify about

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the earlier communications, and thereby “further[] the client’s
intent.” Swidler, 524 U.S. at 405.
The Glover Court noted that the testamentary exception
had been recognized and applied in several state cases. Glover,
165 U.S. at 408 (citing cases in Minnesota, Illinois, Missouri,
and Connecticut). Today, many states have formally adopted
aspects of the exception by statute or rule. See, e.g., Ala. R.
Evid. 502; Cal. Evid. Code § 957; Neb. Rev. Stat. § 27-503.
Many others have long recognized and applied it in their state
courts. See, e.g., Wesp v. Everson, 33 P.3d 191, 200–02 (Colo.
2001) (en banc); Zook v. Pesce, 91 A.3d 1114, 1120 (Md.
2014); Eizenga v. Unity Christian Sch. of Fulton, 54 N.E.3d
907, 913–14 (Ill. App. Ct. 2016). A few have had little or noth-
ing to say on the subject. See, e.g., In re Est. of Covington, 450
F.3d 917, 925–26 (9th Cir. 2006) (noting that Washington state
has not formally recognized the exception).
Pennsylvania is in the latter category.1 One
Pennsylvania court, looking to federal precedents, has applied
the testamentary exception, finding it proper “in any case
where a deceased holder of the attorney-client privilege is sus-
pected of having been unduly influenced to change the planned
disposition of his estate after his death.” In re Thevaos Estate,
10 Pa. D. & C.5th 481, 487–88 (Pa. Ct. Com. Pl. 2010).
Whether Pennsylvania will embrace the testamentary excep-
tion more fully we need not say, because the parties here are
content to assume that the exception, as traditionally under-
stood, applies in Pennsylvania, and therefore to this dispute.
1 Berot’s will was probated in the Pennsylvania Court of
Common Pleas; Kyriakopoulos initiated this suit in the Eastern
District of Pennsylvania.

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B. Application of the exception to this case.
The District Court, following in camera review, found
that twelve of the sought-after emails fit within the testamen-
tary exception as described in Glover. The Court found that the
emails “discuss[ed] ‘statements made by the deceased,’
Barbara J. Berot, ‘to counsel,’ Sarah Eastburn, ‘respecting the
execution of the will.’ ” J.A. 0042–43 (quoting Glover, 165
U.S. at 406). Disclosure of the emails would “further[] the cli-
ent’s intent,” in accordance with the rationale behind the testa-
mentary exception, “weigh[ing] heavily in favor of its applica-
tion in this instance.” J.A. 0043 (citing Swidler, 524 U.S. at
406).
As noted above, the District Court certified the narrow
question of “whether the testamentary exception applies only
to communications made by the deceased; or, additionally, to
communications made by others which discuss statements
made by the deceased and are probative of the deceased’s
intent.” J.A. 0047. In its certification order, the Court stated
that it had “not located any authority, controlling or otherwise,
that addresses whether the testamentary exception may apply
to communications made by someone other than the deceased
herself.” Id.
We conclude that the District Court’s application of the
testamentary exception exceeds the traditional bounds of the
doctrine and will vacate the order. In particular, we find that
the facts here are a poor fit for the “what,” “why,” and “who”
of the testamentary exception.

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Start with the “what”—to what kind of dispute is the
testamentary exception applied? As discussed in Glover, and
in the English common-law cases described there, the heart-
land of the testamentary exception is “a suit between devisees
under a will.” Glover, 165 U.S. at 406; see also United States
v. Osborn, 561 F.2d 1334, 1340 (9th Cir. 1977) (testamentary
exception applies “in litigation between the testator’s heirs,
legatees, devisees, or other parties, all of whom claim under
the deceased client”). Some courts have applied the exception
to “similar types of cases” implicating the same rationale for
disclosure. Restatement (Third) of the Law Governing
Lawyers § 81 cmt. b (2000). For example, in Eizenga v. Unity
Christian School of Fulton, an Illinois appellate court applied
the testamentary exception to settle a dispute between putative
beneficiaries of a trust. 54 N.E.3d at 914–15. By contrast, the
exception rarely reaches claims arising in contract outside the
bounds of an estate dispute. See Clark v. Second Jud. Dist. Ct.,
692 P.2d 512, 515–16 (Nev. 1985) (collecting cases from
Connecticut, Wisconsin, Georgia, Indiana, Kentucky, and
Missouri).
Kyriakopoulos did not contest Berot’s will when it was
probated in the Pennsylvania Court of Common Pleas. Nor
does this case directly concern the contents or meaning of
Berot’s will. Rather, Kyriakopoulos seeks to enforce an alleged
“contract to will”—that is, an extrinsic, unwritten agreement
allegedly reached between Berot and Maigetter during their
joint estate planning. Kyriakopoulos argues that his claim is
like those in cases within the bounds of the testamentary excep-
tion. We disagree. Even assuming that the Pennsylvania
Supreme Court were to adopt the testamentary exception,
Kyriakopoulos’s case falls outside the traditional heartland of
will contests between devisees.

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Next consider the “why”—for what purpose is the tes-
tamentary exception applied? In the heartland scenario, two
claimants under a will each assert that the deceased intended to
especially favor them. The deceased being unavailable to clar-
ify her true intentions, the testamentary exception steps in to
allow the deceased’s attorney to do the job. See Swidler, 524
U.S. at 405.
Here, the intentions of the deceased client, Berot, are
not in dispute. Maigetter freely concedes that Berot wanted the
co-op apartment to pass to Kyriakopoulos, and that she
expressed that wish to him several times. Eastburn testified
similarly. Kyriakopoulos seeks to prove that Maigetter at some
point entered an agreement with Berot to transfer ownership of
the co-op apartment to Kyriakopoulos—an alleged agreement
in line with Berot’s undisputed wishes. Kyriakopoulos’s
claims thus rest not on proving Berot’s intentions but on prov-
ing Maigetter’s. We do not doubt the District Court’s conclu-
sion that the disputed emails in some sense discuss and further
Berot’s intent. But application of the testamentary exception
when the decedent’s intentions are not in dispute again pushes
the traditional boundaries of the exception.
Finally, we come to the question certified for our
review: the “who”—to whose privilege does the testamentary
exception apply?
Our answer is that any testamentary exception adopted
by the Pennsylvania Supreme Court would apply only to com-
munications between the deceased client and his or her attor-
ney. That answer accords with historical practice. The parties,
like the District Court, have uncovered no precedent applying
the exception to third-party communications made after the cli-
ent’s death. That answer also pays heed to a foundational prin-

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ciple of the exception itself. As discussed above, the testamen-
tary exception is grounded in part on a theory of implied
waiver. Glover, 165 U.S. at 407–08; Blackburn, 70 U.S. at 194.
The client enjoys the privilege over his communications with
his attorney, and the client has the power to waive that protec-
tion. The attorney-client privilege survives the death of the cli-
ent; so too does the power of waiver. The testamentary excep-
tion impliedly effects that waiver to further the deceased cli-
ent’s intentions. Swidler, 524 U.S. at 404–05.
But whatever those intentions, and however vital they
may be to resolving a legal dispute, they do not grant the
deceased client the power to waive a privilege held by others.
“The attorney-client privilege belongs to the client, who alone
may waive it.” In re Seagate Tech., LLC, 497 F.3d 1360, 1372
(Fed. Cir. 2007), overruled on other grounds by Halo Elecs.,
Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 110 (2016); see also
Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851,
863 (3d Cir. 1994) (“[I]n leaving to the client the decision
whether or not to waive the privilege . . . we provide certainty
that the client’s confidential communications will not be dis-
closed unless the client takes an affirmative step to waive the
privilege.”); Burkert v. Equitable Life Assurance Soc’y of Am.,
287 F.3d 293, 295–96 (3d Cir. 2002) (surveying Pennsylvania
practice and finding that only the client has standing to invoke
the attorney-client privilege); 42 Pa. Cons. Stat. § 5928 (“In a
civil matter counsel shall not be competent or permitted to tes-
tify to confidential communications made to him by his client,
nor shall the client be compelled to disclose the same, unless
in either case this privilege is waived upon the trial by the cli-
ent.” (emphasis added)).
The emails at issue, occurring after Berot’s death, were
between Maigetter and Eastburn. The privilege is thus

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Maigetter’s to assert and Maigetter’s to waive. Maigetter has
asserted the privilege, and neither Berot nor Kyriakopoulos
may impliedly or explicitly waive it for him. “The question of
who has the right to enforce or waive the [attorney-client] priv-
ilege . . . is [not] answered simply by determining who has an
interest in carrying out the intention of the Decedent.” Burkert,
287 F.3d at 295. Rather, the implied waiver principle underly-
ing the testamentary exception limits its application to commu-
nications between a deceased client and his or her attorney.
Kyriakopoulos offers little in response. He acknowl-
edges the implied waiver aspect of the testamentary exception,
but argues that the exclusive focus of the exception is the dece-
dent’s intentions—all “why,” no “who.” That understanding of
the exception would, if not swallow the rule, at least take a
hearty bite out of it.2
The legal system depends on frank, open communica-
tion between clients and attorneys; the protective shield of the
attorney-client privilege is the guarantor of those communica-
tions. Permitting that privilege to be waived by another party
2 Kyriakopoulos argues in the alternative that the emails are
discoverable under a joint representation theory: that Eastburn
was in some sense still representing both Berot and Maigetter
at the time that Maigetter contacted Eastburn following Berot’s
death. That same premise shades many of Kyriakopoulos’s
arguments related to the testamentary exception. We reject that
theory. The joint-client exception to the attorney-client
privilege applies only to communications made during the joint
representation. Pittsburgh Hist. & Landmarks Found. v.
Ziegler, 200 A.3d 58, 61 n.2 (Pa. 2019). But the emails at issue
were sent after Berot’s death, and therefore after Eastburn’s
joint representation ended.

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would undermine it, perhaps fatally. As Chief Justice
Rehnquist said in Swidler, “[a] ‘no harm in one more excep-
tion’ rationale could contribute to the general erosion of the
privilege, without reference to common-law principles or ‘rea-
son and experience.’ ” Swidler, 524 U.S. at 410 (quoting Fed.
R. Evid. 501). Applying the testamentary exception in any cir-
cumstance where a decedent’s intentions are at issue, regard-
less of whether the decedent was a party to the disputed com-
munications, would represent a significant expansion of the
exception’s traditional, narrow bounds. That step is fraught
with peril, and we decline to take it.
* * *
For these reasons, we will vacate the District Court’s
order compelling production of the twelve Maigetter-Eastburn
emails and remand for further proceedings.

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