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texting cellphone“Oh my gosh, what did I do?” It’s a nightmare scenario: You click “send” and quickly realize the text message you intended to send to your spouse went to an unintended recipient. Even worse, the message is less than flattering, and is weaponized by its recipient in civil litigation. What do you do next? The law provides a safeguard—one that is so firmly rooted in our common law that most people don’t even think of it: the marital privilege, grounded in the sanctity of the marital home. In this new age of digital transformation, this little-used privilege still has enduring applicability in the accidental transfer of electronic communications.

In New York, the martial communications privilege is codified at CPLR §4502(b), which states: “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.” The privilege “protects private and confidential communications between spouses from disclosure. It provides that ‘[c]ommunications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged … .’” In re Reserve Fund Sec. & Derivative Litig., 275 F.R.D. 154, 157 (S.D.N.Y. 2011) (internal citations omitted). Importantly, the privilege applies regardless of the content of the message, even if defamatory. See, e.g., Medcalf v. Walsh, 938 F. Supp. 2d 478, 485-86 (S.D.N.Y. 2013).

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