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?

On:

Bad-faith litigation between an insurer and its insured often sparks privilege disputes, typically over disclosure of the insurer’s claims file. Now a less-litigated insurer–insured privilege dispute has reached the Florida District Court of Appeals: whether an insurer’s affirmative defense—that the insured was unwilling to settle the underlying claim—waives the insured’s attorney-client privilege in the bad-faith suit. The appellate court said no, relying on traditional at-issue waiver principles. Kesler v. Progressive Select Ins. Co., No. 2D2025-1038, 2026 Fla. App. LEXIS 2465 (Dist. Ct. App. Apr. 1, 2026). You may read the opinion here.

Let’s examine the court’s ruling.

Woman in business attire rejecting stack of cash offered by businessman

Stolen Car, Bad-Faith Claim, and an Affirmative Defense

Bridgette Kesler suffered severe injuries when an underinsured driver—operating a stolen car—struck her vehicle. She later demanded the $200K policy limits from her UIM insurer. When the insurer responded with a $43K counteroffer, she filed a UIM action. Kesler then underwent accident-induced surgery, which increased her medical bills and prompted the insurer to tender its limits.

Kesler later amended her UIM lawsuit to assert a bad-faith claim, alleging that the insurer acted improperly by not settling the UIM claim more promptly.  To succeed on this claim, Kesler had to prove that the insurer failed to settle the claim when “it could and should have done so.”  Focusing on the “could have” element of proof, the insurer asserted the defense that Kesler was unwilling to settle.

Attorney Deposition and Privilege Assertion

To show Kesler’s alleged unwillingness to settle, the insurer deposed her attorney, who sent the initial demand letter. The company’s lawyer asked—and the attorney answered—questions about the basis for the opening $200K settlement demand. The lawyer then asked several questions about Kesler’s willingness to settle for less than policy limits, prompting attorney-client privilege objections.

The insurer moved to compel, arguing that Kesler’s willingness to settle is relevant and, even if privileged, Kesler waived that protection by filing the bad-faith lawsuit.

At-Issue Waiver

The appellate court recognized that “a litigant may waive a privilege by putting ‘at issue’ a claim or defense that required privileged material as evidence.”  Simply filing a lawsuit does not, by itself, put privileged material “at issue” resulting in waiver.  Instead, the court determined, “a party can waive the attorney-client privilege by injecting into the litigation an issue that can only be proved by the privileged material.”

But here, the court found that Kesler’s proof of her bad-faith claim did not necessarily require disclosure of privileged communications or “even identification of the topics” Kesler and her lawyer discussed. And the insurer could not use its affirmative defense to waive the privilege for her—

The insurer cannot waiver her privilege for her by raising her alleged unwillingness to settle as a defense. … The fact that the insurer may need the evidence to prove its defense does not give it the power to waiver Kesler’s privilege on her behalf.

About that Relevance Argument ….

After dispensing with the at-issue waiver argument, the court addressed whether the relevance of the withheld information could overcome the privilege. Perhaps somewhere, sometime, that argument has prevailed, but not here. The court easily ruled that “the attorney-client privilege is not overcome simply by the nature of the discovery sought or even the material’s relevance in a particular case.”

On:

The debate continues—when may you discuss substantive issues with your client–deponent during deposition breaks? Some federal district courts, such as the District of South Carolina (L.R. 30.09(E)), flat-out prohibit it by local rule.  Other courts apply common law and tend to follow either the strict prohibition announced in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), or the more practical approach the Nevada Supreme Court took in In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614 (D. Nev. 1998). I commend Brian R. Iverson’s excellent article on the subject for a good overview of the issue, analysis of the current state of the law, and a proposed new civil-procedure rule. See Give Me a Break: Regulating Communications Between Attorneys and Their Witness Clients During Deposition Recesses, 36 Geo. J. L. Ethics 497 (2023) (available here). You may also review my commentary at Todd Presnell & Kristi Arth, Privileges & Protections: TN & Sixth Circuit Law § 14.07[b][ii], The Privilege in Deposition Discovery (2026).

Secondary issues arise when a lawyer challenges opposing counsel’s client discussions during a deposition break, including whether and when sanctions may be warranted. One court thoughtfully addressed this issue—and an important threshold matter—and found the lawyer’s request for sanctions “nothing short of outlandish.” Strebel v. Scoular, No. 24 C 968, 2026 U.S. Dist. LEXIS 42519 (N.D. Ill. Mar. 2, 2026). You may read the opinion here. Let’s discuss it.

A Deposition Break and a Little Talk

In this Clean Air Act case, plaintiff’s counsel deposed defendant employees Reed and Zebrowski. In Reed’s deposition, the lawyers took a break and, upon Reed’s return to the witness chair, this colloquy ensued:

Q.  Mr. Reed, did you speak with counsel during this break about anything?

A.  No.

Q.  Have you spoken to counsel during any of the breaks we’ve taken about this deposition?

A.  I – we had a few words at some point. Like, I’m going upstairs to go to the bathroom because the downstairs bathrooms are occupied, and to get coffee.

Q.  Okay. But did you talk about any of the questions or topics that we’ve discussed in the deposition with defense counsel?

Defense Counsel: Counsel, I’ll object to attorney-client privilege. You’re not entitled to know my discussions with Scoular’s witness and I’ll instruct the witness not to answer.

Q.  Were there discussions about the substance of the deposition during any of the breaks that we’ve taken?

Defense Counsel: Counsel, same objection. I’ll instruct the witness not to answer.

Plaintiffs Counsel: Please certify that question.

Similarly, during Zebrowki’s deposition, this back-and-forth occurred:

Plaintiffs Counsel: Why don’t we take a five-minute break so I – I’ll load up some of the next exhibits.

            (A short break was had)

Q. Mr. Zebrowski, during any of our breaks, have you discussed the substance of this deposition with counsel?

Defense Counsel: Objection, attorney-client privilege and – well, attorney-client privileged communications. I’ll instruct the witness not to answer.

Are Those Discussions Privileged?

When the deposition-break talk issue arises, the threshold question is whether the attorney-client privilege protects the discussions from disclosure. Too often the focus centers on whether deposition-break conversations are proper, not whether the privilege protects them. It is as if some believe a rule of privilege non-application exists for discussions during deposition breaks.

Here, plaintiffs’ counsel argued that the privilege did not apply in the first instance because the lawsuit involved pendent Illinois state-law claims and employees Reed and Zebrowski were not within the privileged control group under Illinois law. The court quickly dispensed with that argument, correctly, because plaintiffs were in federal court under federal-question jurisdiction (Clean Air Act) and, therefore, Upjohn’s subject-matter test applied and both employees fell safely within this zone of privilege protection. For more information on the subject-matter test and the control-group test, see Todd Presnell & Kristi Arth, Privileges & Protections: TN & Sixth Circuit Law § 14.06, Attorney-Client Privilege for Organizations (2026). And for more information on the choice-of-law issue, see Privileges & Protections: TN & Sixth Circuit Law § 2.02, Conflicts of Law in Federal Courts (2026).

The court held that the deponents’ pre-deposition discussions with defense counsel “fit squarely within the Upjohn framework.”  And as for deposition-break discussions, the court said it “would analyze privilege protection for those communications under the Upjohn framework as well.”

So, while perhaps not directly holding that the privilege protects deposition-break discussions, the court certainly implied that the privilege shelters those discussions absent some type of improper deposition conduct.

Sanctions? Outlandish.

Even if the privilege applied, plaintiffs argued, lawyer–deponent conferences are improper because FRCP 30(c)(1) states that “the examination and cross-examination of a deponent proceed as they would at trial” and lawyers cannot stop trial proceedings to confer with their on-the-stand witnesses. But plaintiffs had no proof of improper conduct and essentially argued “for a categorical bar on attorney-deponent conferences during deposition recesses,” asking the court to presume improper witness coaching during those breaks. They asked the court to sanction the defendants by requiring the deponents, in re-depositions, to disclose all communications with lawyers and to produce all documents withheld on privilege grounds.

Analyzing the overall situation from a sanctions viewpoint—whether defense counsel engaged in improper conduct—the court found that defense counsel did not disrupt the proceedings to confer with his clients and declined to impose a categorical bar on attorney–client conferences during deposition breaks, “relying more on Stratosphere than Hall.” Indeed, the court noted that assessing the propriety of these conferences would require harmonizing “a deponent’s right to counsel during depositions, and with defending counsel’s ethical obligations to remonstrate with deponents who have given false testimony.”

The request for such an “extreme sanction,” therefore, annoyed the court:

The idea that the Court should sanction Scoular under these facts by ordering it to produce all of the documents it withheld or redacted under privilege assertion is nothing short of outlandish.

And the court found the request for lesser sanctions of reconvening the depositions—to essentially ask the deponents about the deposition-break discussions, which the privilege would protect—“equally unjustified.”

On:

Some may say that, when in depositions, defending lawyers generously voice “form” objections, “concisely in a nonargumentative and nonsuggestive manner,” of course, to preserve them under FRCP 30(c)(2) while the witness provides an answer.  This rule demands a more exacting approach, however, when lawyers assert an evidentiary privilege and instruct the witness not to answer a question.  And, as one lawyer recently learned, instructing the deponent not to answer based on a meritless privilege objection can result in sanctions, including paying the opponent’s attorneys’ fees, under FRCP 37(a).  You may review the opinions at Tallaksen v. Smith, No. 25-cv-1073-W-DDL, 2026 U.S. Dist. LEXIS 95726 (S.D. Cal. Apr. 30, 2026), available here, and Tallaksen v. Smith, No. 25-cv-1073-W-DDL, 2026 U.S. Dist. LEXIS 105005 (S.D. Cal. May 12, 2026), available here.

The Rules

FRCP 30(c) limits a lawyer instructing a witness not to answer a deposition question to three reasons: “to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”  The advisory committee’s comments explain that this strict limitation is necessary because “directions to a deponent not to answer a question can be even more disruptive than objections.”  To emphasize the desire to eliminate deposition disruption, FRCP 37(a) allows the deposing party to move to compel when the deponent refuses to answer and, if the court grants the motion, requires it to award reasonable attorneys’ fees as a sanction.

From a privilege-objection perspective, the objecting attorney may avoid a fee award if he proves that his instructing the witness not to answer on privilege grounds was substantially justified.  FRCP 37(a)(5)(A)(ii).  Courts employ a reasonable-person standard when determining whether the objecting lawyer was “substantially justified” in instructing the witness not to answer on privilege grounds. This is an objective standard of reasonableness—the objecting lawyer may not avoid a fee award by showing that he objected in subjective good faith.  For a thorough discussion of this standard, read Judge Seybert’s opinion in Jackson v. Nassau Cnty., 350 F.R.D. 227 (E.D.N.Y. 2025), available here.

A “reasonable lawyer” standard necessarily requires that the objecting lawyer understand which questions call for disclosure of privileged communications and which do not.  The attorney–client privilege protects from disclosure only confidential communications made for legal-advice purposes.  Presnell & Arth, Privileges & Protections: TN & Sixth Circuit Law § 14.03 (2026).  The attorney–client privilege does not protect questions foundational to whether the privilege applies.  For example, the privilege would not preclude a witness from answering the question “did you meet with your lawyer” but would shield answering the question “what did you tell your lawyer when you met with her.”

Privilege Objections

With these rules in mind, let’s turn to the Tallaksen case for an illustration.  In this excessive-force case against a law-enforcement officer, plaintiff’s counsel deposed the officer and received multiple privilege objections with instructions not to answer.  For example, the deposing lawyer showed the officer his response to a Rule 36 request for admission and asked how he defined the word “immediate” when answering it.

Q.  How did you define “immediate” when you answered these questions?

Lawyer: Objection. Attorney-client privilege.  I’m instructing my client not to answer.

Q.  Request for Admission four, five and six asks if Mr. Tallaksen posed an immediate threat to various people in the community. Do you see those questions generally?

A.  Yes.

Q.  Can you tell me how you defined “immediate,” in your mind, when you answered these questions?

Lawyer: Objection. Attorney-client privilege.

And that’s not all.  Later, the deposing lawyer asked the officer about his search for records responsive to discovery requests and received a privilege objection.

Q.  And I’m trying to understand how you found—how you found the documents. When you looked, you couldn’t find them, and then you found them. Can you tell me how that happened?

Lawyer: Objection. This line of inquiry violates the attorney-client privilege.

Q.  So in asking the witness about what he did to search for records responsive to the request previously violates the privilege?

Lawyer. Yes.

Can you sense the incredulity of the deposing lawyer when he received this privilege objection?  And these were only two examples.  If you are interested in reviewing more, the entire deposition is here.

Court’s Ruling

The defending lawyer argued that his privilege objections were substantially justified because his client participated in drafting discovery responses.  The court rejected this as an objectively unreasonable position, finding that this argument “is inconsistent with the longstanding rule that the attorney-client privilege protects communications, not underlying facts.” 

The court also found objectively unreasonable the defending lawyer’s instructing the officer not to answer an entire line of questions, ruling as follows:

But asking [the officer] about the documents he reviewed did not, on its face, require him to divulge privileged communications with his counsel.  And by asserting the privilege as to the entire line of questioning, defense counsel prevented Plaintiff from asking questions seeking non-privileged information.

The defending lawyer claimed that his objection to the officer answering whether he reviewed produced documents was reasonable because the officer and the lawyer worked together to identify responsive documents.  The court also deemed this argument objectively unreasonable because it “is inconsistent with the precept that the attorney-client privilege does not ‘create a broad zone of silence over the subject matter of the attorney-client communication.’”

In short, these types of objections created the deposition disruption that concerned the rules committee when inserting the objection limitation into FRCP 30(c).  The court therefore ordered the defending lawyer or his client to pay plaintiff’s counsel’s fees and the costs for filing and prosecuting the motion to compel–asserted to be over $29,000–plus the costs of the office sitting for a second deposition.

On:

Companies commonly maintain standing committees or groups to review information and decide on employee discipline and terminations.  This raises the question of whether the attorney–client privilege protects from compelled disclosure the information presented to those groups when a lawyer is a member.  One court has said no—because the employee information was not delivered to the group for the primary purpose of securing legal advice.  Oubre v. Dow Chem. Co., 2026 U.S. Dist. LEXIS 105329 (E.D. Tex. May 12, 2026).  Opinion available here.  Let’s discuss and learn.

Performance Issues or Age Discrimination?

Long-time Dow Chemical employee Ms. Oubre, age 57, allegedly had a sterling record of performance before her immediate supervisor (Njigha) sent her a “last chance letter” in late 2024 identifying alleged work-performance lapses.  Then, in early 2025, Njigha allegedly found another infraction and presented the issue at an Employee Review Meeting.  The meeting did not end well for Oubre—Dow terminated her employment and she then brought an age-discrimination lawsuit.

Employee Review Meeting

The ERM team on this occasion included Oubre’s supervisor (Njigha), a neutral leader, a human resources representative, and an in-house lawyer.  Njigha prepared a PowerPoint presentation to aid her report about Oubre’s purported misconduct.  Dow objected to producing the PPT, claiming the attorney–client privilege protected it, and Dow properly identified the document on a privilege log.  But Oubre did not buy Dow’s privilege assertion and filed a motion to compel.

Dow argued that Njigha prepared the PowerPoint deck for its legal counsel to provide advice on any action the company may take against Oubre.  But was Dow’s proof supporting this argument robust enough?

Privilege Standard—Primary Purpose

The court recognized the Upjohn adage that the attorney–client privilege protects communications between a company’s employees and its legal counsel when employees make those communications at the direction of corporate superiors concerning matters within the scope of their duties.  To implement this standard, and relying on United States v. Brown, 151 F.4th 647 (CA5 2025), the court required Dow to prove that the PowerPoint presentation was confidential and that Njigha created it “for the primary purpose of securing either a legal opinion or legal services.”

Ruling

The court focused on the primary purpose for creating the PowerPoint and, for several reasons, found that the primary purpose of the ERM—and thus the information supplied to the ERM—was business related.  Deposition testimony of Dow employees revealed that the ERM’s purpose is to ensure that the company makes fair and equitable employee-discipline decisions.  And Njigha gave the presentation to both a lawyer and non-lawyers.  These facts, in the court’s view, showed that the ERM primarily served a business, rather than a legal, function.

But Njigha sent the PowerPoint deck to an in-house lawyer, and an in-house lawyer participated in the ERM decision-making process, so why did that not tip the scales in favor of privilege protection?  Three reasons, according to the court.  First, the fact that Njigha sent the presentation to the legal department does not automatically cloak it with privilege protection; rather, courts consider that fact as one of several when making a “primary purpose” determination.  Second, and similarly, the lawyer’s presence in the ERM meeting does not necessarily invoke privilege protection; again, the court treats it as one piece of the primary-purpose puzzle for consideration.

Third, and finally, the court viewed the in-house lawyer’s participation in the decision whether to terminate Oubre as a privilege killer.  This participation further suggested that her presence in the ERM process “served a business, rather than purely legal, function.”

On: