Court Denies Motion To Compel Production Of Emails Based On Spousal Privilege

On June 10, 2024, Justice Melissa A. Crane denied defendant’s motion to compel production of emails plaintiff had inadvertently produced and then clawed back, asserting spousal privilege. In Gnann v. Morgan Stanley Smith Barney LLC, Index No. 650104/2023, plaintiff made a production that included the disputed emails between plaintiff and nonparty Robert Oldaker. At plaintiff’s EBT, spousal privilege was asserted as to these emails and plaintiff’s counsel then sought to claw back those emails. Defendant Mannato moved to compel. The Court denied the motion, explaining:

Defendant now argues that plaintiff has not produced evidence that he was married at the time these emails were exchanged, plaintiff’s counsel waived the privilege, and at least one email is subject to the crime-fraud exception. Plaintiff’s counsel opposes the motion and submits a copy of his Canadian marriage certificate indicating that he married Oldaker in October 2006 (Doc 189).

Plaintiff’s counsel also submits an affidavit explaining that plaintiff retained a discovery vendor to host documents for review (Doc 190 [Nacht aff. ]). Counsel states that he reviewed documents for responsiveness and for privilege through the vendor's platform, using keyword searches to identify privileged communications. Despite searching for "Rob," "Robert," and "Oldaker" during the review process, some of the communications with Oldaker were inadvertently produced (id.). Plaintiff’s counsel learned of the inadvertent production at plaintiffs EBT and immediately asserted spousal privilege and sought to claw back the documents.

The parties do not have an express claw-back provision in their confidentiality order (see Doc 120). Nonetheless, privileged documents may be clawed back where certain criteria are met (see e.g. New York Times Newspaper Div. of New York Times Co. v Lehrer McGovern Bovis, Inc., 300 AD2d 169, 172 [1st Dept 2002]).

"Disclosure of a privileged document generally operates as a waiver of the privilege unless it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer undue prejudice if a protective order against use of the document is issued"

(id.)

"Not protective of all communications, the [spousal] privilege attaches only to those statements made in confidence and 'that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.' Communication between spouses 'is presumed to have been conducted under the mantle of confidentiality.' This presumption is not rebutted by the fact that the parties are not living together at the time of the communication, or that their marriage has deteriorated, for even in a stormy separation[,] disclosures to a spouse may be induced by absolute confidence in the marital relationship"

[People v Fediuk, 66 NY2d 881, 883 [1985] [internal citations and quotation marks omitted]; see also CPLR 4502 [b ]).

Here, plaintiff has established that the documents are privileged, that he intended to maintain the confidentiality of the documents, and that reasonable steps were taken to prevent disclosure and to remedy the situation after discovering the inadvertent disclosure.

In reply, defendant contends that several communications do not qualify for spousal privilege protection. However, the court has reviewed the Oldaker communications in camera and finds that the privilege applies to the 5 emails between plaintiff and his husband. In addition, defendant has not established that he will suffer undue prejudice if a protective order against use of the documents is issued. Further, the court rejects defendant's argument that the crime-fraud exception applies to these communications.

The attorneys at Schlam Stone & Dolan frequently litigate motions to compel and privilege issues. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.