Distorting the Law – Spousal Privilege
In her article titled Piercing Spousal Privilege, Marie described what it felt like to have a district court try to force open our marital privacy—what Minnesota law calls spousal privilege. The issue wasn’t abstract. The Defendants demanded a specific home-security recording from May 27, 2019: a video of one of Marie’s panic attacks that also captured an undisclosed private conversation between husband and wife. We refused to produce it voluntarily because spousal privilege is not a convenience. It is a boundary.
The Minnesota Court of Appeals stepped in and held that Judge Kevin M. Miller exceeded his authority by ordering production based on an incorrect waiver analysis.
After re-reading Judge Miller’s December 6, 2022 order, I noticed something that deserves its own spotlight: not just the conclusion, but the method. Specifically, the way the order quotes—and selectively edits—the law it relies on.
This post begins a new Justice-Denied series: Distorting the Law. The question is simple, but the implications are not:
This first installment focuses on spousal privilege because it offers unusually clear examples: a bracketed substitution that flips the meaning of a Supreme Court statement, omissions that remove limiting principles, and “fairness” reasoning that orders disclosure even if privileged marital statements are included.
A Minnesota Supreme Court warning the order never mentions
Before getting to the order’s waiver stack, there is one Minnesota Supreme Court decision that belongs at the center of any serious spousal-privilege analysis—because it shows just how strong Minnesota’s spousal privilege is supposed to be, even in the face of serious wrongdoing.
I ran a Westlaw search for “spousal privilege” in Minnesota. The #1 case returned by that search was State v. Gianakos, with 92 citing references:
Readers with a Westlaw subscription can duplicate my search by using [this link].
Yet Judge Miller’s order never cites Gianakos.
That omission matters because Gianakos is a direct, precedential warning against exactly the kind of “exception-by-fairness” reasoning Judge Miller used. In Gianakos, the Minnesota Supreme Court reversed a trial court for refusing to honor the privilege under Minn. Stat. § 595.02, subd. 1(a), and it made a point that is difficult to square with Judge Miller’s approach in our case:
“Facts indicating that a couple was engaged in joint criminal conduct is not a sufficient basis to deny either spouse the benefit of the marital privilege set forth in Minn. Stat. § 595.02, subd. 1(a).” State v. Gianakos, 644 N.W.2d 409, 410 (Minn. 2002).
That’s not a “privilege yields to fairness” statement. It’s the opposite: Gianakos underscores that § 595.02, subd. 1(a) is not something a court may “distort” into a discretionary doctrine whenever a ruling needs one more justification.
Against that backdrop, a civil order compelling disclosure because it might be “probative”—and doing so even if privileged marital statements are captured—doesn’t apply Minnesota’s spousal privilege. It treats it as optional.
And once you see that, the rest of the order reads differently—because Gianakos isn’t missing by accident. The order’s waiver analysis is built on a different premise: that “fundamental fairness” can be used as a lever to pry open what Minnesota law treats as a boundary.
The waiver paragraph that drives the order
In the spousal-privilege portion of the order, Judge Miller wrote the following (Doc. 366, at 37):
“The holder of an evidentiary privilege may waive it explicitly or by implication. State v. Walen, 563 N.W.2d 742, 752 (Minn. 1997). She may do so by waiving privilege as to a portion of the material. See State v. Madigan, 68 N.W. 179, 180 (Minn. 1896) (‘If the [privilege holder] does not wish a repulse, he should not attack [using the privilege].’). That waiver extends to all ‘[]related communications.’ State v. Gore, 451 N.W.2d 313, 319 (Minn. 1990). Waiver by implication also occurs where the privilege holder places the subject matter of the privileged communication at issue by asserting a claim or defense. Kern v. Janson, 800 N.W.2d 126, 132 n.3 (Minn. 2011).”
That paragraph sounds like standard doctrine. But when you line up the citations with what those cases actually say, a different picture emerges.
And that wasn’t the only route the order used to pierce spousal privilege. Later, Judge Miller stacked multiple additional waiver theories—federal “sword and shield,” federal “manifest unfairness” “at-issue” waiver, and out-of-state “automatic waiver” concepts—then treated the combined stack as if it were Minnesota spousal-privilege law.
What follows are the most glaring examples.
Example 1: Walen — the missing limitation
Judge Miller cited State v. Walen, 563 N.W.2d 742 (Minn. 1997), for the broad proposition that privilege “may [be] waive[d] explicitly or by implication.”
Walen does recognize implied waiver—but in a very specific context (ineffective assistance of counsel). And critically, it immediately turns to a constraint that matters in any privilege dispute: scope. In other words: waiver is not a blank check.
Visual comparison (stacked):
Judge Miller’s order (citing Walen):
“The holder of an evidentiary privilege may waive it explicitly or by implication.”
Walen (what the case immediately adds—scope limitation):
“The final question we must address is the scope of Walen’s waiver. We must identify and allow the waiver to reach only those communications that were relevant to the issue of ineffective assistance of counsel.”
That limiting principle matters because Judge Miller’s analysis treated waiver like a broad tool rather than a carefully bounded one—exactly the kind of move that turns privileges into paper shields.
Example 2: Madigan — the “repulse” quote without the rule it served
Judge Miller quoted State v. Madigan, 68 N.W. 179 (Minn. 1896), for the line:
“If the [privilege holder] does not wish a repulse, he should not attack [using the privilege].”
But Madigan’s context matters. It’s not a blank check to expand waiver whenever a court believes disclosure would be “fair.” It’s a narrow, common-sense principle: you can’t publicly accuse your lawyer of wrongdoing and then use privilege as a gag order to prevent your lawyer from responding to the accusation.
Visual comparison (stacked):
Judge Miller’s order (using Madigan as a waiver lever):
“If the [privilege holder] does not wish a repulse, he should not attack …”
Madigan (what the principle actually does—the narrow use case):
When a party attacks counsel’s conduct, privilege cannot be used to block the limited disclosure necessary for counsel to defend against that specific attack.
When a narrow doctrine gets imported into an unrelated context and treated like a general waiver engine, a privilege stops being a privilege and becomes a slogan.
Example 3: Gore — the bracket that flips the meaning
This is the one that should make any careful reader stop.
Judge Miller wrote:
“That waiver extends to all ‘[]related communications.’”
But the Minnesota Supreme Court’s actual language in State v. Gore, 451 N.W.2d 313 (Minn. 1990), says the opposite: waiver does not erase privilege for unrelated communications. Gore explains:
“That preclusion is, however, limited by the scope of the disclosure; … [it] did not cause loss of the privilege with respect to unrelated communications…”
And this wasn’t obscure or buried. We quoted Gore’s limiting rule directly in our briefing: waiver is “limited by the scope of the disclosure” and “did not cause loss of the privilege with respect to unrelated communications….” That makes the bracketed substitution even harder to shrug off as mere imprecision—because the limitation was put in front of the court in plain terms.
Visual comparison (stacked):
Judge Miller’s order (citing Gore):
“waiver extends to all ‘[]related communications.’”
Gore (what the Supreme Court actually said):
“…did not cause loss of the privilege with respect to unrelated communications…”
The Court of Appeals explicitly highlighted this mismatch when it reviewed the order:
Waiver “does not extend to ‘unrelated communications.’”
That’s not a harmless paraphrase. The bracketed substitution reverses the Supreme Court’s limiting principle into an expanding principle.
So the question becomes unavoidable:
Either answer is alarming. If it’s misunderstanding, it is misunderstanding that changed the outcome of a privilege ruling. If it’s rewrite, it is something worse.
Example 4: Kern — treating a declined-to-decide footnote like a settled Minnesota rule
Judge Miller wrote:
“Waiver by implication also occurs where the privilege holder places the subject matter of the privileged communication at issue by asserting a claim or defense. Kern v. Janson…”
But Kern v. Janson, 800 N.W.2d 126 (Minn. 2011), is not the Minnesota Supreme Court announcing a general “at-issue waiver” rule for all privileges. In fact, the Court of Appeals pointed out the problem directly.
Visual comparison (stacked):
Judge Miller’s order (citing Kern):
“Waiver by implication also occurs where the privilege holder places the subject matter of the privileged communication at issue by asserting a claim or defense. Kern v. Janson …”
Court of Appeals (what Kern actually did):
The supreme court in Kern “recited the federal rule … in declining to decide an issue. Thus, the Minnesota Supreme Court has not expressly recognized a generally applicable at-issue waiver.”
That matters because a court cannot fairly cite “Kern” as if it is a settled Minnesota doctrine when the writ court is telling everyone, plainly, that it isn’t.
Example 5: “fundamental fairness” as a waiver engine (and the order’s own “distorted picture” rationale)
This is where the order shows its hand.
Judge Miller didn’t just rely on one waiver theory. He relied on several—and then treated “fundamental fairness” as the glue that makes them all stick.
Here is the paragraph (Doc. 366, at 41) where the order ties everything together:
Plaintiffs have waived spousal privilege by bringing a claim attempting to recover for emotional distress and introducing spousal observations in order to prove that claim. Having put Marie’s emotional condition at issue, Plaintiffs cannot selectively disclose spousal observations that are advantageous to them, while denying Defendants the ability to obtain disadvantageous evidence of the same kind. To do so would be to use the privilege as a sword, rather than a shield, allowing Plaintiffs to present a distorted picture of the evidence due to a lack of necessary context. Fundamental fairness compels the conclusion that Plaintiffs have opened the door to letting Defendant obtain and use related spousal observations. Because a comparison between the recording of the May 27, 2019 panic attack and the recordings of the later panic attacks is likely to be probative of issues Plaintiffs have put into controversy, Defendants are entitled to obtain that recording, even if Marie made confidential statements to Craig.
Notice what’s happening in that single paragraph:
- Automatic waiver by filing a claim (emotional distress)
- Sword-and-shield framing (“distorted picture” / “necessary context”)
- Open-the-door logic (related observations)
- Probative justification (comparison of recordings)
- Disclosure compelled even if privileged statements exist (the last sentence)
That is not one careful application of Minnesota spousal-privilege law. It is a layered construction—multiple routes to the same destination.
And here is the core problem: several of the routes the order relies on were explicitly rejected or undermined by the Court of Appeals in this very dispute:
- The Court of Appeals held Judge Miller exceeded his authority by ordering production based on an incorrect waiver analysis.
- It reaffirmed that waiver does not extend to unrelated communications (the Gore point).
- It emphasized that Minnesota has not adopted a generally applicable “at-issue waiver” rule (the Kern point).
- And it drew the line that defeats the order’s “probative” reasoning: “By its very nature … spousal privilege protects probative information from disclosure.”
In other words: the order used “fairness” and “context” to justify disclosure, but the Court of Appeals pointed out that privilege exists precisely to block compelled disclosure—even when the information is relevant, probative, or might be helpful to an opponent.
“Fundamental fairness” is not a magic phrase that lets a court do what the law does not allow. It means a judge neutrally and impartially applies the governing Minnesota law—as written—to the facts in the record, consistent with the judge’s oath and the Minnesota Code of Judicial Conduct. When the phrase is invoked to justify compelled disclosure while controlling limits and controlling precedent are bypassed or edited away, it reads less like fairness and more like a rationale built to reach a destination.
That’s the collision. And it’s also why this matters beyond our case.
Example 6: importing federal “at-issue” waiver and calling it spousal-privilege law
Later in the order, Judge Miller leans heavily on federal cases—then makes a jump that matters:
He moves from (1) federal attorney-client “sword and shield” doctrine, to (2) “manifest unfairness” “at-issue” waiver, to (3) the conclusion that if a claim puts “spousal observations” at issue, the claim automatically waives spousal privilege.
Here is the key problem: most of the cases he cites are not Minnesota spousal-privilege decisions at all, and several of the cases are not the “automatic waiver” holdings the paragraph implies.
Example 6A: In re Sealed Case — accurate quote, wrong privilege
Judge Miller quotes the D.C. Circuit for a familiar “sword and shield” concept:
“[W]hen a party reveals part of a privileged communication in order to gain an advantage in litigation, it waives the privilege as to all other communications relating to the same subject matter because the privilege of secret consultation is intended only as an incidental means of defense and not as an independent means of attack, and to use it in the latter character is to abandon it in the former.” In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982).
That quotation may describe subject-matter waiver in the attorney-client context. But this is not Minnesota spousal privilege. It is federal attorney-client waiver doctrine, built for a different relationship, a different policy purpose, and a different body of law.
Visual comparison (stacked):
Judge Miller’s order (moving from federal doctrine to spousal privilege):
“When a party reveals part of a privileged communication … it waives the privilege as to all other communications relating to the same subject matter …” In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982).
What that citation actually is:
In re Sealed Case is federal attorney-client waiver doctrine—not Minnesota spousal-privilege law.
Using federal attorney-client waiver language as persuasive background is one thing. Treating it as a bridge to automatic spousal waiver is another.
Example 6B: Hearn, Medtronic, and Bieter — “manifest unfairness” at-issue waiver (again: not Minnesota spousal privilege)
Judge Miller then cites Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975), for the proposition that waiver can exist “even absent partial disclosure” if the party “placed” privileged information “in issue” and it would be “manifestly unfair” to allow the privilege to block discovery. He also cites Medtronic, Inc. v. Intermedics, Inc., 162 F.R.D. 133, 135 (D. Minn. 1995), and Bieter Co. v. Blomquist, 156 F.R.D. 173, 179 (D. Minn. 1994), for related propositions.
Now compare that to what the Court of Appeals already said in our case about Minnesota law: the Minnesota Supreme Court has not expressly recognized a generally applicable “at-issue waiver.” (That’s the Kern point, above.)
Visual comparison (stacked):
Judge Miller’s order (treating “manifest unfairness” as waiver doctrine):
“[A] privilege may be deemed waived, even absent a partial disclosure, where ‘the party asserting the privilege placed information protected by it in issue’ … and ‘to allow the privilege to protect against disclosure of such information would have been manifestly unfair to the opposing party.’” Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975).
What those citations actually are:
Hearn, Medtronic, and Bieter are federal “at-issue” waiver cases—primarily in attorney-client disputes—not Minnesota Supreme Court spousal-privilege law.
This is where the series theme sharpens: if Minnesota has not adopted a generally applicable “at-issue waiver,” a district court can’t manufacture it by stacking federal district court citations—then calling the result Minnesota privilege law.
Example 6C: the out-of-state “spousal observations” cites don’t do what the order claims
Then comes the leap:
Judge Miller asserts that if a party’s claim “necessarily puts spousal observations at issue,” “the prosecution of the claim will automatically waive the spousal privilege,” citing cases such as United States v. 281 Syosset Woodbury Rd., 71 F.3d 1067, 1073 (2d Cir. 1995), Prink v. Rockefeller Ctr., Inc., 398 N.E.2d 517 (N.Y. 1979), and Arredondo v. State, 411 P.3d 640, 647 (Alaska App. 2018).
Even putting aside whether those cases say what the order implies, they are not Minnesota spousal-privilege law. They come from different jurisdictions, different procedural postures, and different evidence rules.
Visual comparison (stacked):
Judge Miller’s order (the automatic-waiver claim):
“As such, if a party’s claim necessarily puts spousal observations at issue, the prosecution of the claim will automatically waive the spousal privilege …”
What the cited cases actually are:
They are out-of-state decisions applying other jurisdictions’ privilege doctrines—not Minnesota Supreme Court spousal-privilege law.
This matters because it’s not “persuasive reasoning” if the citations don’t support the rule being announced—or if the rule being announced is not one Minnesota has adopted.
The “fundamental fairness” sentence that says the quiet part out loud
Even if every waiver citation had been flawless, this sentence is still extraordinary:
“Defendants are entitled to obtain that recording, even if Marie made confidential statements to Craig.”
Read that again. The order acknowledges the recording could contain privileged marital communications and compels production anyway—because the recording might be “probative.”
The Court of Appeals answered that logic with a statement that should be framed and hung in every courtroom where privilege disputes arise:
“By its very nature, however, the spousal privilege protects probative information from disclosure.”
That’s the point of a privilege. It exists to block compelled intrusion, not to be overridden whenever disclosure would make litigation easier—or whenever pressure and escalation can be used to drive a party toward surrender.
A privilege double standard: “fairness” for one privilege, “proportionality” for the other
The privilege double standard in our case wasn’t subtle.
In the same period when Judge Miller pushed “fundamental fairness” hard enough to compel production of a home-security recording even if it contained privileged marital statements, he treated Defendants’ post-litigation communications among themselves with the opposite instinct: protection first.
In his December 6, 2022 order, the court revisited the privilege framework for post-litigation inter-defendant communications, but still refused to compel them—concluding that Plaintiffs had not shown that any unprivileged communications would fall within proportional discovery. He criticized our briefing as too general and treated the likely presence of privileged text messages (and the burden of sorting them) as a reason to deny the request.
Put simply: “fairness” was used as a lever to pry open spousal privilege, while “privilege” and “proportionality” were used as a shield to keep inter-defendant coordination out of view.
The question the public should be asking
At this point, an ordinary reader is entitled to ask a blunt question:
That question isn’t academic. It’s diagnostic. Because when a judge passes over the Minnesota Supreme Court’s clearest, most protective spousal-privilege precedent—and instead builds a “waiver” theory out of selective quotations, federal attorney-client doctrines, and out-of-state concepts—the choice of authorities becomes part of the story. And the answer to that “why” tells you a lot about what happens in Minnesota courtrooms today. And it also tells you how much faith and trust you should place in the Minnesota Judicial System.
What this means beyond our case
You don’t have to care about our lawsuit to care about what happened here.
If a judge can:
- ignore the most-cited Minnesota Supreme Court spousal privilege case,
- flip “unrelated” into “related” with a bracket,
- quote waiver doctrine without the limits that make it lawful,
- treat a declined-to-decide footnote as controlling Minnesota rule,
- import federal attorney-client waiver doctrines and relabel them “spousal privilege,”
- stack out-of-state concepts and call them Minnesota law,
- and then compel disclosure even if privileged marital statements are included,
then “privilege” becomes conditional—something you keep only until a court decides it would be more advantageous to take it away.
That is not how rights work. And it is not how public trust survives.
A system that depends on public trust should not also depend on public inattention.
This is why we fought. Not because we were hiding something, but because we refused to accept a world where the law is whatever the order says it is—after selective quotation and convenient edits.
This post is Part 1. More will follow, because spousal privilege is not the only place where this pattern shows up. But it is a clean place to start—because here, the receipts are on the page and the public gets to see behind the curtain.
More Information
See the following links for more information and AI analysis of these issues in the Stevenson case:
This article was prepared with the assistance of artificial intelligence.
More on Minnesota judicial ethics and court reform: justice-denied.org.
