Friday, November 16, 2012
Section 90.504 of the Florida Statutes sets forth Florida's husband-wife privilege
(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.
(3) There is no privilege under this section:
(a) In a proceeding brought by or on behalf of one spouse against the other spouse.
(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.
(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.
If you're looking for a pretty good explanation of the ins and outs of this privilege, you need look no further than the recent opinion of the United States District Court for the Middle District of Florida in Tropical Marketing & Consulting, LLC. v. Glock, Inc., 2012 WL 5431002 (M.D.Fla. 2012).In Glock,
Glock allege[d] that from 2008 through 2010, OMB Guns was a distributor of firearms manufactured by Glock....Those firearms were intended for resale to the Law Enforcement market ("LE Market") and the Commercial Market....Glock sells firearms to the LE Market at lower prices than it sells firearms for the Commercial Market....To keep the LE Market sales channel distinct from the Commercial Market sales channel, Glock utilizes different distributor agreements which expressly prohibit its distributors from diverting firearms sold at lower LE Market prices to the higher priced Commercial Market....Glock allege[d]that OMB Guns breached its distributor agreements by diverting sales of firearms intended for the LE Market to the Commercial Market.
The husband-wife privilege issue arose in Glock because
Welcome "Bo" Wood...served as Glock's Eastern Regional Manager from approximately February, 1996 until January 3, 2011....Bo worked closely with OMB Guns. Before filing the Primary Case, Glock's attorney questioned Bo regarding whether he was accepting payments from OMB Guns for special treatment, whether directly to him or funneled through his wife, Paula Wood...Bo denied accepting payments from OMB Guns and denied any knowledge about whether Paula was receiving payments from OMB Guns. Glock's attorneys wrote to Paula, asking her to speak with them concerning these issues but she never responded. Glock terminated Bo's employment on January 3, 2011.
After Glock thereafter served a subpoena on Paula, she invoked Florida's husband-wife privilege, which the Middle District of Florida found applicable pursuant to Federal Rule of Evidence 501 because it was hearing the case based upon diversity jurisdiction. According to the court,
The Florida Supreme Court has explained that: "communications between husband and wife made in the course of their marriage relationship and while they are married and living together are privileged and may not be disclosed by one without the consent of the other party."...Strong public policy supports the privilege and "marital communications are presumed confidential absent evidence to the contrary."...For the privilege to apply, spouses must have a "reasonable expectation of privacy" in the communication in question....Among the factors the Court considers in determining whether spouses have a reasonable expectation of privacy are "the nature of the message and the circumstances under which it was delivered."...There is no exception to the husband-wife privilege in Florida for communications made in furtherance of a crime.
Interesting. So, there's no crime-fraud exception to Florida's husband-wife privilege. What Glock also makes clear is that even non-parties (and the spouses of non-parties) can invoke this privilege. This fact had relevance in Glock because Glock claimed that the husband-wife privilege was waived because Paula did not produce a privilege log. In response, the court concluded that
This argument fails because the obligation to supply a privilege log only applies to parties to the lawsuit.... Glock's argument also fails because the privilege belongs to both Paula and Bo and Paula cannot waive it without Bo's consent....The Court finds that the husband-wife privilege has not been waived and Paula may properly assert it when and where it is applicable.