Piercing Spousal Privilege

Can a Minnesota district court judge pierce spousal privilege by ordering production of a private communication between a husband and wife?

In our case, the answer – at least at the district court level – was yes. Judge Kevin Miller tried to force it.

And I was outraged.

What the Defendants Demanded

During discovery, the Defendants demanded a home-security recording from May 27, 2019 – a video that captured one of my panic attacks and a private, previously undisclosed conversation between Craig and me.

Here is what mattered – and what still matters:

• The video predated the Defendants’ later conduct tied to my estranged father.
• Judge Miller acknowledged there was no allegation that this particular panic attack was caused by any actionable conduct.
• We identified the recording as containing marital communications protected by spousal privilege.

We refused to produce it voluntarily because spousal privilege is not a convenience. It is a well-defined boundary.

The Law Exists For a Reason

Spousal privilege exists because the State recognizes something simple: once you force open a private marital communication, you don’t get to “put it back.” The boundary is gone.

That is why this felt violating. Not because of what the video would “reveal,” and not because we were trying to hide anything – but because a court was attempting to make marital privacy negotiable once the other side claimed it might be useful.

We Had Produced Other Recordings – Just Not This One

We were not hiding the ball. We produced other home-security recordings and transcripts – materials that did not contain privileged marital communications.

But the Defendants wanted the one recording that crossed the line.

They also accused us – disingenuously – that we had shown the video, or “a very similar one,” to our daughters. We had never shown this particular video to our daughters – nor had we discussed it with them.

Judge Miller’s Order: Three Claims That Still Make Me Angry

Judge Miller’s order did not merely disagree with us. It built a three-step argument to justify violating spousal privilege.

Claim 1: “Waiver extends to all ‘[]related communications’”

Judge Miller wrote:

“That waiver extends to all ‘[]related communications.’”

That single bracketed substitution is the heart of the problem. It is not “wordsmithing.” It is reversal.

Here is the flip in one glance:

That is not a neutral edit. It changes the rule from a limitation into an expansion.

So I have to ask the question we asked then:

Did Judge Miller misunderstand the law he was citing, or did he understand it and reshape it anyway because it was convenient?

If you want to read Gore directly, it’s here:
https://law.justia.com/cases/minnesota/supreme-court/1990/c4-89-353-2.html

Claim 2: If a claim “puts spousal observations at issue,” privilege is “automatically” waived

Judge Miller also wrote:

“If a party’s claim necessarily puts spousal observations at issue, the prosecution of the claim will automatically waive the spousal privilege…”

But that reasoning collapses a critical distinction.

Spousal observations are not the same thing as confidential marital communications. A court can’t treat them as interchangeable – and it can’t use non-privileged “observations” as a back door to pry open privileged marital communications.

The Court of Appeals rejected that category error.

Claim 3: “Fundamental fairness” justifies compelled production “even if” confidential marital statements are included

Finally, Judge Miller wrote what may be the most revealing (and outrageous) line in the entire order – because it openly admits the recording could contain privileged marital communications and then orders production anyway:

“Fundamental fairness” compels the conclusion that Defendants are entitled to obtain that recording… even if Marie made confidential statements to Craig.

It is worth noting that in the same order, Judge Miller denied us access to any unprivileged communications between the Defendants that occurred following the start of litigation, because even though they were unprivileged, he claimed they were not “within the bounds of proportional discovery.”  This was despite the fact that relevant texts had admittedly been deleted by one or more of the Defendants following the start of litigation.

If that is “fundamental fairness,” then what, exactly, is unfairness?

Because this didn’t feel fair. It felt like the word “fairness” was being used as a lever – an excuse to force what the law is designed to protect.

And here is the part I want to be absolutely clear about:

Even if the practical impact of disclosing this particular video might have been small, the principle would not have been small. The moment a court declares it can compel privileged marital communications because they might be “probative,” the privilege stops being a privilege at all.

We Went to the Court of Appeals Because the Boundary Mattered

After Judge Miller’s order, Craig and I had a decision to make: comply, or fight.

We chose to fight – not because we feared what the video showed, but because we refused to accept an order that turns marital privacy into something you “automatically waive” by filing a claim.

So we filed a petition for a writ of prohibition – extraordinary relief used when a court is about to exceed its authority in a way that cannot be fixed later.

The Court of Appeals Stopped It—And Explained Why

The Court of Appeals granted relief and prohibited enforcement of the portion of Judge Miller’s order compelling production of the May 27 recording.

And they didn’t do it by vague hand-waving. They identified specific failures that matter in any case involving privilege:

• The district court did not determine whether the recording contained privileged communications – an inquiry that typically requires careful review, often including in camera review.
• The district court’s “waiver” theory relied on spousal observations, but observations are not privileged communications – and non-privileged disclosure cannot waive privileged marital communications.
• Even under Gore, waiver is limited to the scope of an actual disclosure. The district court did not identify any privileged communications we voluntarily disclosed, did not analyze scope, and did not review the recording to see what was actually on it.

The Court of Appeals was not deciding every privilege question for all purposes going forward. But it did decide something crucial: the district court exceeded its authority by ordering production based on an incorrect waiver analysis.

Why I’m Writing This

I’m writing this because this isn’t just about my rights, or Craig’s rights, or “one recording” in one case.

It’s about the spousal privilege rights of every married couple in Minnesota.

Because once judges start “adjusting” the law – changing unrelated to related, calling waiver “automatic,” and invoking “fundamental fairness” to justify forcing private marital communications into the open – those rights don’t disappear overnight.

They erode.

Quietly at first. Case by case. Order by order.

And if ordinary people don’t stand up and insist that courts follow the law as written, then the protections we assume we have will slowly – but surely – become protections we used to have.

That is why we fought. Not because we were hiding something.

Because we were refusing to normalize the idea that a judge can pierce spousal privilege simply by calling it “fair.”

And I will never stop being outraged that we had to go to the Court of Appeals – an extraordinary step – to make a district court respect a boundary the law already draws. Not just for us, but for every married couple in Minnesota who deserves to know that “privilege” still means something when it matters.

What to Read Next

If this issue concerns you, it should. Because spousal privilege is only one example of a larger pattern: when basic guardrails become optional, ordinary people pay the price.

• When Truth Is Moot – how courts can consider conflicting testimony in one case, but not ours
• A Judicial Blind Eye – how courts can willfully ignore what’s right in front of them
• I Can Limit Discovery – what it looks like when a court conducts judicial triage
• When the Message Doesn’t Match the Reality – why public trust erodes when systems protect themselves