Most understand the spousal privilege—or marital-communications privilege—to shield, well, confidential communications between spouses. But courts are increasingly asking whether the privilege applies to all spousal communications or only certain spousal communications. For instance, in an earlier post, Honey, I Shrunk the Profits!, I discussed a federal district court’s adoption of a business-communications exception to the spousal privilege.
Now, the Delaware Chancery Court, without mentioning a privilege exception, limited Delaware’s spousal privilege to confidential marital communications that are “uniquely spousal” and exhibit a high “emotional valence.” The result was a holding that Delaware’s spousal privilege does not shelter from discovery “purely business communications.” Hodes v. Mostaque, No. 2024-0015-JTL, 2026 Del. Ch. LEXIS 253 (Del. Ch. June 15, 2026). You may read the opinion here.
The opinion may influence other states. Delaware modeled its evidence rules after the Uniform Evidence Rules and, indeed, Delaware Rule of Evidence 504(c), the spousal privilege, largely mimics Uniform Rule of Evidence 504(b). Several states have adopted the URE but have not interpreted the scope and reach of the spousal privilege, so the Hodes opinion could offer a starting point when the issue arises. So, let’s discuss the court’s ruling.
Spouses in the C-Suite
Mohammad Mostaque and Cyrus Hodes started an AI company with differing ownership interests. Mostaque served as the CEO and his wife, Zehra Qureshi, was the COO and served as a director. After Mostaque bought Hodes’s entire ownership interest, he raised significant capital at a $1B valuation, prompting Hodes to file suit claiming fraud and various business torts.
During discovery, Hodes sought text messages exchanged between the CEO husband and his COO wife, but they objected, citing Delaware’s spousal privilege found at Rule 504(c). Ultimately, five text-message strings remained in dispute, and it’s fair to say that each of these strings contained a mixture of business and personal topics.
What Does the Spousal Privilege Cover?
Delaware’s spousal-privilege rule, like the URE rule, states simply that “An individual has a privilege to refuse to testify and to prevent the individual’s spouse from testifying as to any confidential communication between the individual and the spouse during their marriage.” While some exceptions render the privilege nonapplicable in certain circumstances, there is no carve-out or limitation to “any confidential communication.”
Or so we thought.
Court’s Interpretation
The court initially lamented that Delaware’s rule—and by extension the Uniform Rule—“could be clearer in its application to spousal communications.” It noted that other relational privileges, such as attorney-client, doctor-patient, and clergy-communicant, embed three common elements: a (1) confidential communication (2) made in a protected capacity that (3) furthers a protected relationship. The spousal privilege, by contrast, contains the confidentiality and protected-capacity elements but says nothing expressly about the communication furthering the marriage.
Nonetheless, the court, citing a law review article, pronounced that the at-issue communication “must have been from one spouse to another ‘in furtherance of an in reliance on the marital relationship.’” And then the court said this—
Purely business communications do not warrant protection under the Spousal Communication Privilege.
How to Apply the New Rule?
Recognizing that there is “no easy proxy to determine” when spouses communicate as business executives instead of as spouses, and that it is impossible “to adopt a brightline rule to the effect that anything related to business falls outside” the privilege, the court offered two factors for trial courts to consider when assessing spousal communications.
First, courts should review the at-issue communications and decide whether they are “uniquely spousal”:
If non-married corporate spouses could just as easily have had the communication, then it likely reflects their work roles rather than their spousal roles.
Second, courts should evaluate the at-issue communication’s “emotional valence”:
If the emotional valence is low, then it is more likely to reflect work roles rather than spousal roles.
Ruling
Applying these two factors, the court found that the spousal privilege covered four of the CEO husband and COO wife’s text strings. But one failed the test. The court found that the spouses in the fifth text string “were communicating primarily in a business capacity” because the string discussed employees’ attendance at a conference.
In short, those text messages were “conversations that any two co-workers might have had.”
POP Analysis
One question to consider is whether the court’s two factors—uniquely spousal and emotional valence—are a complicated way of applying a primary-purpose test: is the communication primarily personal/spousal or primarily business? Indeed, the court ultimately ruled that the c-suite spouses “were communicating primarily in a business capacity.”
Perhaps trial judges can employ a primary-purpose test when reading spouses’ written communications, but how can the court rule when a lawyer asks spouses to reveal their verbal communications? Seems like the requesting lawyer would have to spend time laying a business-communications foundation, a tall task indeed.
Putting the application aside, we cannot lose sight of the fact that this court took a privilege that reads as an unqualified “any confidential communication” and imposed a qualification on it. Will other URE states follow suit?