Pillow Talk At Fox Privileged

The New York Appellate Division for the First Judicial Department sustained a claim of marital privilege in the Smartmatic v. Fox Corporation & Giuliani litigation

This appeal concerns defendants’ inadvertent production of certain text messages between Fox television host Jesse Watters and his wife, Emma Watters, who are not named defendants in this action. Defendants contend that while engaging in discovery, they inadvertently produced eight documents that were subject to New York’s marital privilege under CPLR 4502(b), including the text messages. Defendants demanded that plaintiff destroy these documents. Plaintiffs agreed to destroy two of the eight documents, but maintained that the text messages were not protected by the spousal privilege because they were nonconfidential, business-related communications that had been relayed on a device issued by defendants Fox Corporation and Fox News Network LLC, and that Mr. Watters could not have reasonably expected that they would remain private.

Supreme Court did not abuse its discretion in determining that the text messages were protected by the spousal privilege (see e.g. Abe v New York Univ., 139 AD3d 416, 416 [1st Dept 2016]). “A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage” (CPLR 4502[b]; see also Matter of Vanderbilt [Rosner-Hickey], 57 NY2d 66, 73 [1982]). While not all spousal communications are privileged, “confidential” communications “induced by the marital relation and prompted by the affection, confidence and loyalty engendered” by the relationship clearly are (see Matter of Vanderbilt, 57 NY2d at 73; see also Poppe v Poppe, 3 NY2d 312, 315 [1957]). In making this determination, spousal communications are “presumed to have been conducted under the mantle of confidentiality,” and the burden is on the party seeking to overcome the privilege to demonstrate that the communications were not made in confidence (People v Fields, 38 AD2d 231, 233 [1st Dept 1972], affd 31 NY2d 713 [1972]).

Supreme Court providently found that plaintiffs did not meet this burden. A review of the text messages reveals that they were confidential communications between spouses, induced by the marital relationship, that would not have been relayed to outsiders voluntarily. Nor is there a legal or practical basis for finding that one spouse’s discussion of what was happening at work would automatically destroy the spousal privilege. Indeed, many “conversations about business matters [are] only had because of the husband-wife relationship” (Atlantic Richfield C0. v Triad Petroleum, Inc., 113 FRD 686, 687-688 [SD NY 1987])