X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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).

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 

Library of New York Plaintiffs' Personal Injury FormsBook

Use Library of New York Plaintiff's Personal Injury Forms to walk through various personal injury matters, including: motor vehicle, medical malpractice, premises liabili...

Get More Information
 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.