TEXT MESSAGES WERE PROTECTED BY MARTIAL PRIVILEGE
In the context of a pending defamation lawsuit brought by Smartmatic USA against Fox Corporation, the latter mistakenly produced documents which contained text messages between one of its television hosts – Jesse Watters -- and his wife, Emma.
Claiming that those documents were protected by the “marital privilege,” Fox demanded that Smartmatic destroy those materials. And while two of the eight documents were eradicated, the plaintiff contended that the rest were “nonconfidential, business-related communications.” And since they were relayed on a device owned by Fox, the plaintiff contended that there could have been no reasonable expectation that the texts would remain private.
After a judicial hearing officer issued a report recommending that the remaining documents in dispute be destroyed, that report was confirmed by the New York County Supreme Court.
On appeal, the Appellate Division, First Department, agreed that the messages were protected – particularly since it’s “presumed” that messages between spouses are exchanged “under the mantle of confidentiality.” And, since the plaintiff failed to demonstrate that the messages were not made in confidence, the AD1 affirmed the underlying determination. It noted that a discussion about “what was happening at work” (or other exchanges about “business matters”) did not negate or waive the privilege.
Think Jesse texted his wife about that?
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DECISION