On December 18, 2015, Comedian Bill Cosby’s wife, Camille, filed a motion in Federal Court seeking to quash a subpoena, which served by the attorneys representing the women who sued Mr. Cosby.  The complaint against Mr. Cosby was initiated on December 10, 2014, by Tamara Green (see attachment here).  Six additional Plaintiffs were added to the lawsuit filed in the United States District Court for District of Massachusetts, Western Division through various amendments.  Recently, Mr. Cosby filed counterclaims against the Plaintiffs.

Although each of the seven Plaintiffs alleges that they were sexually assaulted by Mr. Cosby several decades ago, the present lawsuit only asserts claims against the comedian for defamation, invasion of privacy, and intentional infliction of emotional distress.   Plaintiffs likely did not include claims for the alleged sexual assaults because those claims are barred by the applicable statutes of limitations.  Plaintiffs alleged that when they publicly accused Mr. Cosby of sexually assaulting them in 2014, Mr. Cosby directed his representative to make six statements denying the allegations.  The complaint alleges that those comments in response to the allegations are the basis for their claims.

On December 9, 2015, Bill Cosby’s wife of over fifty years was served with a deposition subpoena seeking to take her deposition in January, 2016.   Although, Mrs. Cosby is not a party to the case, Plaintiff’s counsel contends that her deposition is proper because she served as her husband’s business manager and issued a public statement on her husband’s behalf.

The Federal Rules require counsel to “meet and confer” to discuss and hopefully resolve discovery disputes before filing a motion.  According to Mrs. Cosby’s motion, counsel discussed the subpoena and their disputes.  Unfortunately, those discussions did not resolve the dispute.  On December 18, 2015, Mrs. Cosby filed a motion to quash the subpoena.

Mrs. Cosby’s motion to quash makes two central arguments to stop her deposition: (1) pursuant to Massachusetts’ law, she is not permitted to testify about private communications with her husband; and (2) because she was not present when the alleged activities between her husband and his accusers took place, she does not have any information about the accuracy of the Plaintiffs’ underlying accusations of sexual assault, and any information she has about the denial of those claims would come from privileged communications with her husband.  The motion also seeks to limit questions, so as not to harass Mrs. Cosby.

In Mrs. Cosby’s motion to quash, Camille Cosby argues that she is disqualified from testifying about certain confidential communications with her husband, Bill because Massachusetts’ law protects and promotes martial communications in two ways:  spousal privilege, which is applicable in criminal actions only, and spousal disqualification, which is applicable in both criminal and civil actions.   The Federal Rules of Evidence incorporate the applicable State privilege laws.  Because the case was filed in the place where the Cosby allegedly reside the Court is likely to apply Massachusetts’ privilege law.

Based upon my experience handling complex civil litigation in both federal and state courts, I believe the Judge deciding the motion will not allow Mrs. Cosby to testify about confidential communications between the spouses.  Nevertheless, I believe that any communications which are not subject to the martial (or other) privilege will be “fair game” for the deposition.  For example, if the couple discussed the allegations with other people who are not within other categories of privileged communications (lawyers, martial counselors, etc.) then it is likely Mrs. Cosby would be required to answer those questions.  Assuming I am correct, counsel for Mr. and Mrs. Cosby will need to object to questions which seek disclosure of privileged information and instruct the witness not to answer those questions.