Opinion
No. 2353 Index No. 151136/21 Case No. 2023-06372
05-23-2024
Smartmatic USA Corp., et al., Plaintiffs-Appellants, v. Fox Corporation, et al., Defendants-Respondents, Rudolph Giuliani, et al., Defendants.
Benesch, Friedlander, Coplan & Aronoff LLP, New York (Michael Vatis of counsel), for appellants. Mintz & Gold LLP, New York (C. Harker Rhodes IV of counsel), for respondents.
Benesch, Friedlander, Coplan & Aronoff LLP, New York (Michael Vatis of counsel), for appellants.
Mintz & Gold LLP, New York (C. Harker Rhodes IV of counsel), for respondents.
Before: Webber, J.P., Gesmer, González, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about November 1, 2023, which denied plaintiffs' motion for an order vacating the report of a judicial hearing officer, dated October 20, 2023, insofar as the report directed plaintiffs to destroy a text message chain containing spousal communications, unanimously affirmed, with costs.
This appeal concerns defendants' inadvertent production of certain text messages between Fox television host Jesse Watters and his wife, Emma Watters, who are not named defendants in this action. Defendants contend that while engaging in discovery, they inadvertently produced eight documents that were subject to New York's marital privilege under CPLR 4502(b), including the text messages. Defendants demanded that plaintiff destroy these documents. Plaintiffs agreed to destroy two of the eight documents, but maintained that the text messages were not protected by the spousal privilege because they were nonconfidential, business-related communications that had been relayed on a device issued by defendants Fox Corporation and Fox News Network LLC, and that Mr. Watters could not have reasonably expected that they would remain private.
Supreme Court did not abuse its discretion in determining that the text messages were protected by the spousal privilege (see e.g. Abe v New York Univ., 139 A.D.3d 416, 416 [1st Dept 2016]). "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" (CPLR 4502[b]; see also Matter of Vanderbilt [Rosner-Hickey], 57 N.Y.2d 66, 73 [1982]). While not all spousal communications are privileged, "confidential" communications "induced by the marital relation and prompted by the affection, confidence and loyalty engendered" by the relationship clearly are (see Matter of Vanderbilt, 57 N.Y.2d at 73; see also Poppe v Poppe, 3 N.Y.2d 312, 315 [1957]). In making this determination, spousal communications are "presumed to have been conducted under the mantle of confidentiality," and the burden is on the party seeking to overcome the privilege to demonstrate that the communications were not made in confidence (People v Fields, 38 A.D.2d 231, 233 [1st Dept 1972], affd 31 N.Y.2d 713 [1972]).
Supreme Court providently found that plaintiffs did not meet this burden. A review of the text messages reveals that they were confidential communications between spouses, induced by the marital relationship, that would not have been relayed to outsiders voluntarily. Nor is there a legal or practical basis for finding that one spouse's discussion of what was happening at work would automatically destroy the spousal privilege. Indeed, many "conversations about business matters [are] only had because of the husband-wife relationship" (Atlantic Richfield C0. v Triad Petroleum, Inc., 113 FRD 686, 687-688 [SD NY 1987]).
We have considered plaintiffs' remaining arguments and find them unavailing.