Q: Two questions: First, I am accused of wrongdoing in a civil case. The other party has requested the deposition of my wife to try to get her to disclose our discussions and communications. Can they force her to testify?
A: There are two basic marital privileges that can be asserted in California: A spouse may refuse to testify against his or her spouse (Evidence Code Section 970), and the spouse may refuse to be called as a witness by an adverse party (Evidence Code Section 971). A distinction is that Section 970 may be asserted in “any proceeding,” whereas Section 971 is applicable only when the non-witness spouse is a party to the action. Note, the privilege is to be invoked by your spouse. Thus, consultation with an attorney is called for, and it may well be prudent to include your spouse in the consultation, if feasible.
Q: My other question: How do we object to my wife testifying?
A: There are a number of ways to invoke the spousal privilege. If there is a jury trial, you want the privilege asserted outside the presence of the jurors, so a motion in limine to the court could be filed (in other words, a motion to limit the testimony).
Other options include redacting privileged information from writings, filing a motion for protective order or to quash, or simply objecting each time privileged information is requested.
In the situation you describe, involving a deposition, your lawyer (or the lawyer for your wife, if she has separate representation), probably will “meet and confer” with counsel for the other party. He or she could make clear your wife is not going to provide testimony, and will assert the spousal privilege. This might be sufficient to get the other party to back off, but if not, your wife (herself or through an attorney) may object to the questions when asked.
Q: We have been divorced for several years. I am in a heated litigation, where both sides accuse the other of causing damages. My ex-wife has been served with a subpoena to testify. Is the spousal privilege available?
A: Research indicates the spousal privilege applies to couples who are actually married. This signifies that the privilege is unavailable in your situation, since your marriage has been terminated by divorce. Still, consult your lawyer to determine if there are any options.
Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
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