Most lawyers know that state statutes or common law doctrines often protect communications between spouses – although there is wide variation in such approaches. But there is a lurking danger that all of us should keep in mind.
In Pontes v. Rowan University, Civ. No. 18-17317 (RMB/MJS), 2024 U.S. Dist. LEXIS 129481 (D.N.J. July 23, 2024), plaintiff college professor filed an employment discrimination suit against his employer. During a discovery dispute, plaintiff inadvertently produced an email exchange between his lawyer and his wife. Plaintiff claimed that the privilege applied, because his wife was his “primary caretaker, and therefore his agent for the purposes of this litigation.” Applying federal common law, the court found that plaintiff’s wife was not acting as a “translator or interpreter” or otherwise “necessary to the lawyer’s provision of legal advice.” Id. at *9-10. Using an odd word, the court held that plaintiff had failed to establish “that all of the subpoenaed documents are blanketly protected by the attorney-client privilege.”
After ordering the plaintiff to assert any claimed protection on a document-by-document basis, the court’s last paragraph finally got around to the obvious – mentioning possible work product protection. That broader protection would seem to be a “gimme” in a case like this, and the robust work product protection survives disclosure to friendly third parties such as spouses. But lawyers representing clients in nonlitigation matters should warn them not to include their spouses in their email or other communications.