Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, October 18, 2006

Case Law Development: Spousal Testimonial Privilege May Not Be Used After Divorce

The US District court for the Western District of Kentucky allowed a subpoena requesting an instant messaging record from Plaintiff's ex-wife, overruling plaintiff's claim that the record is privileged under spousal immunity law.  The claim arises in a reverse discrimination suit centered around plaintiff's dismissal as a manager from a restaurant.  The employer sought the instant messages to prove that it had an independent grounds for firing the plaintiff based on its fraternization policy. 

Regarding the various privileges asserted, the court concludes:

As to the federal claims, this Court determines that no privilege is applicable. The anti-marital immunity does not apply because (a) it can only be asserted by the witness spouse [here, the ex wife]... (b) it only applies in federal criminal cases, and (c) it may not be asserted in a proceeding after the marriage has dissolved. The confidential communications privilege also does not apply, because all evidence before the Court shows that the instant message conversation took place after the dissolution of the marriage, and the privilege only shields communications made while the couple were married.

As to the Kentucky statutory claims, the Court finds that the privilege still does not apply. The privilege under Kentucky Rule 504(a) is not applicable, as the parties will not be married at the time ex-wife is to present evidence to the Court. The privilege under Kentucky Rule 504(b) does not apply because the parties were not married at the time the instant messages were sent. Thus, the instant messages are privileged with respect to neither the Kentucky nor federal claims.

GOODEN v. RYAN'S RESTAURANT GROUP, 2006 U.S. Dist. LEXIS 74944  (October 12, 2006 bgf)

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