Green v. Cosby
160 F. Supp. 3d 431
D. Mass.2016Background
- Plaintiffs sued Cosby for defamation, false light (invasion of privacy), and intentional infliction of emotional distress based on statements issued in response to their public allegations of sexual misconduct.
- Plaintiffs sought to depose Camille Cosby, a non-party and defendant's wife.
- Camille Cosby moved to quash the deposition subpoena or for a protective order, invoking Massachusetts marital disqualification (Mass. Gen. Laws ch. 233, § 20, First) and arguing undue burden.
- Magistrate Judge Hennessy denied the motion, concluding the marital disqualification applied only to trial testimony (not depositions) and that no undue burden justified quashing the subpoena.
- The district judge reviewed de novo whether the marital disqualification applies to depositions and applied clearly erroneous review to the magistrate’s other factual findings.
- The court held the marital disqualification does apply to depositional testimony (so counsel may instruct Mrs. Cosby not to answer questions calling for privileged/disqualified private marital communications), but declined to quash the subpoena or issue a protective order in full; deposition proceeds subject to the disqualification and its exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Massachusetts marital disqualification (G.L. c.233 §20, First) applies to deposition testimony | Rule is one of competency/disqualification and concerns admissibility at trial only; therefore it does not bar deposition testimony | The rule is an absolute statutory disqualification protecting confidential marital communications and should bar testimony at depositions too | Held: The disqualification applies to depositions; counsel may instruct deponent not to answer questions calling for private marital communications barred by §20 (First) |
| Whether deponent may refuse to appear for deposition or have subpoena quashed | Deposition should be quashed because marital disqualification and burden make deposition improper | Plaintiffs need discovery; disqualification only limits answers but does not excuse appearance | Held: Subpoena is not quashed; deponent must appear. Refusal to answer is limited to questions covered by the marital disqualification and not within exceptions |
| Whether Federal Rule 30(c)(2) bars instruction not to answer for non-privilege (competency) grounds | Because §20 is a competency/incompetency rule (not a privilege), Rule 30(c)(2) does not permit instructing deponent not to answer | §20 functions like a privilege in practice (absolute disqualification re: private marital communications), so Rule 30(c)(2) permits instructions not to answer | Held: The court treats §20 disqualification as fitting within Rule 30(c)(2) in effect; counsel may instruct deponent not to answer questions barred by §20 |
| Scope and exceptions to §20 at deposition (e.g., third-party presence, written communications, joint criminal activity, business capacity) | Plaintiffs stress need to explore non-protected topics and various exceptions | Deponent emphasizes potential broad coverage and burden | Held: §20 is narrow (private conversations) and contains exceptions (third-party present, written comms, joint criminal activity). Business-only conversations between spouses are NOT recognized as an exception under controlling MA precedent |
Key Cases Cited
- Trammel v. United States, 445 U.S. 40 (recognizing historical shift from absolute spousal incompetency to testimonial privilege and explaining origins and policy rationales)
- Hawkins v. United States, 358 U.S. 74 (discussing historical justifications for marital testimony rules and evolution)
- Gallagher v. Goldstein, 402 Mass. 457 (Mass. 1988) (describing §20 as creating disqualification re: private marital conversations)
- In re Grand Jury Subpoena, 447 Mass. 88 (Mass. 2006) (construing §20 and related provisions; interpreting meaning of "proceeding" in §20)
- Vazquez-Rijos v. Anhang, 654 F.3d 122 (1st Cir. 2011) (holding right to refuse to answer specific deposition questions does not allow blanket refusal to appear for deposition)