Family wants access to woman’s iPhone and laptop
By Pat Murphy
BridgeTower Media Newswires
BOSTON, MA — The family of a Boston anesthesiologist found dead in her Jamaica Plain apartment believes tech giant Apple stands in the way of uncovering critical information that could shed light on the doctor’s “sudden and suspicious” death.
A state medical examiner concluded Dr. Natacha Zamor’s death on Oct. 27, 2016, was a result of “acute intoxication” from the combined effects of the synthetic opioid fentanyl and the sedative midazolam.
But Zamor’s mother, Marie Zamor, and brother, Vladimir Janvier, aren’t satisfied with the finding that Natacha’s death was an “accident,” and they want answers.
“The Zamor family is dealing with a serious issue and any further delay in getting answers to the death of Dr. Zamor prevents the family from getting any closure,” their Virginia attorney, Donald LaRoche, says in an email.
Apple comes into the picture because Dr. Zamor had an Apple iPhone and Apple laptop at the time of her death. Earlier this month, Marie and Vladimir, as representatives of Dr. Zamor’s estate, filed an action against Apple in U.S. District Court in Boston seeking an order for access to her email and iPhone account.
“The Family believes that there are important communications in her accounts that may assist in their investigation of Dr. Zamor’s death,” the complaint states.
In February, LaRoche contacted Apple for the passwords to Zamor’s email and cellphone communications prior to her death.
Unmoved by the fact that Marie and Vladimir had been appointed personal representatives of the estate in Suffolk Probate & Family Court, Apple responded that it would not provide the requested access without a court order. Hence the filing of Zamor v. Apple Inc.
“The action of Apple complained of herein has both the purpose and effect of denying the Family access to vital information necessary to investigate the sudden and suspicious death of Dr. Natacha Zamor,” the complaint alleges.
The plaintiffs, identified as residents of Brooklyn, New York, filed their action under 18 U.S.C. §2702(b). That section of the Stored Communications Act provides exceptions to the general prohibition on a service provider’s disclosure of electronic communications, including an exception for the “lawful” consent of the originator or recipient of the message, or the consent of the subscribers of a remote computing service.
Last year, the Supreme Judicial Court in Ajemian v. Yahoo!, Inc. found that the SCA does not prohibit an internet service provider from divulging the contents of a decedent’s email account to the personal representatives of the decedent’s estate. Instead, the court held that the federal statute permits service providers to divulge the contents of the email account when the personal representatives lawfully consent to disclosure on the decedent’s behalf.
Thomas E. Kenney of Pierce & Mandell in Boston represented the personal representatives in Ajemian. Kenney points out that digital assets are considered assets of the estate under Massachusetts law.
Kenney recognizes that Ajemian doesn’t answer the question of the extent to which service providers are obligated to respond to a personal representative’s request for passwords and the like. The terms of service in Apple’s customer agreement could bear on that issue in Zamor, he adds.
Kenney speculates that Apple might not actively contest the Zamor family’s claims in the end, believing that a court order requiring disclosure would give the company needed cover from any claims by third parties whose emails would be disclosed to the estate.
“However, some defendants — like Yahoo! in our case — will actually fight it on the merits,” he says. “Apple could fight the [Zamor] lawsuit on the ground there is no authorization under the Stored Communications Act.”
Kenney doesn’t think Apple would get traction arguing against disclosure on the ground that the representatives of Dr. Zamor’s estate sought access other than for a legitimate estate administration reason, namely the marshalling and distribution of estate assets.
“It could well be that [disclosed] information could lead the estate to certain actions that are part of the powers of the estate with respect to the decedent’s passing,” he says.
Worcester probate lawyer Nicholas W. Daviau says the plaintiffs in Zamor have a decent shot at success, unless Apple can show a good reason against disclosure.
“Ultimately, if the person was alive, they could request the information from Apple, so a duly appointed representative of either the person or the estate should have the same authority,” Daviau says, adding that he routinely includes language in powers-of-attorney and estate-planning documents giving representatives access to digital assets.
“That doesn’t necessarily mean [a personal representative] won’t have to take the extra step of getting a court order, but it certainly helps,” he says.
Apple did not respond to a request for comment prior to deadline.
