"Oh my gosh, what did I do?" It's a nightmare scenario: You click "send" and quickly realize the text message you intended to send to your spouse went to an unintended recipient. Even worse, the message is less than flattering, and is weaponized by its recipient in civil litigation. What do you do next? The law provides a safeguard—one that is so firmly rooted in our common law that most people don't even think of it: the marital privilege, grounded in the sanctity of the marital home. In this new age of digital transformation, this little-used privilege still has enduring applicability in the accidental transfer of electronic communications.

In New York, the martial communications privilege is codified at CPLR §4502(b), which states: "A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage." The privilege "protects private and confidential communications between spouses from disclosure. It provides that '[c]ommunications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged … .'" In re Reserve Fund Sec. & Derivative Litig., 275 F.R.D. 154, 157 (S.D.N.Y. 2011) (internal citations omitted). Importantly, the privilege applies regardless of the content of the message, even if defamatory. See, e.g., Medcalf v. Walsh, 938 F. Supp. 2d 478, 485-86 (S.D.N.Y. 2013).

To qualify for the marital communications privilege, and thus utilize its shield to the accidental disclosure of an otherwise confidential spousal communication, three prerequisites must be met:

(1) a valid marriage at the time of the communication; (2) the privilege "applies only to utterances or expressions intended by one spouse to convey a message to the other,"; and (3) the communication must have been made in confidence, which is presumed.

In re Reserve Fund Sec. & Derivative Litig., 275 F.R.D. 154, 157 (S.D.N.Y. 2011) (internal citations omitted); see also Atl. Richfield Co. v. Triad Petroleum, 113 F.R.D. 686, 687 (S.D.N.Y. 1987) ("It is well settled that not all communications between husband and wife are protected by the privilege but rather only those which would not have been made but for the absolute confidence in, and induced by, the marital relationship.") (internal citations and quotation marks omitted).

In the accidental text message scenario, the first two elements are met (i.e., you are married and the text message was intended for your spouse). The third element is where the law must meet the dynamic manner in which we now communicate. No longer do couples speak in confidence in the sanctity of their marital bedroom. Rather, communication happens through various legal mediums: text message, email and instant messaging. Thus, the core issue is whether there is a presumption of confidence with respect to electronic communications. The simple answer is yes; because there must be in this transformative age.

New York was one of the first states to explicitly adopt a statute providing for the application of the marital communications privilege to electronic communications. Specifically, CPLR §4548 provides, "[n]o communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication." The adoption of this safeguard reflected a legislative recognition of the dynamic changes in the way people communicate and a need to conform our bedrock common law privileges to the emerging scenarios in which they will be applied. While this was a step in the right direction, the statute has not been updated since 1999 despite the vast technological changes that have occurred over the last 20 years. As it stands, there are very few cases applying the marital communications privilege to text messages, social media, or other modern methods of communication between spouses—thus, it is ripe for future litigation.

Although a married couple benefits from the presumption that the communication was made in confidence, a prospective plaintiff will surely argue that the confidence has been broken—here by the accidental disclosure to third-parties. One of the key considerations here is that the privilege does not apply to communications made by and between spouses in the known presence of outsiders. See, e.g., People v. Ressler, 17 N.Y.2d 174, 179 (1966). Here, since the text was accidentally sent to a third party, it certainly was not made in the "known" presence of the accidental recipient. Does this disclosure pierce the confidential nature of the communication? At common law, it would not.

A simple vignette is helpful in explaining the analogue between the classical application of this privilege and its more modern usage. At common law, spouses could, with the expectation of privacy, communicate with one another in the confines of their marital home. If they spoke candidly in their marital home, with the expectation of privacy and confidentiality, their communications were presumptively privileged. Indeed, if an unintended passerby overheard a discussion through a keyhole in the door, the communication was nonetheless privileged. The reason: there was no intention to knowingly include the passerby in an otherwise confidential marital discussion; thus, there could be no abrogation of the privilege.

While the advent of electronic communication has revolutionized the way we communicate, the foundational underpinning of the privilege is nonetheless applicable. Unless a spouse knowingly includes a third-party in the electronic transfer of information, any accidental interception, like our paradigmatic text message recipient, does not displace the marital privilege.

In addition, it is important to consider that the privilege is personal to the spouse against whom the testimony will be offered in civil litigation. Therefore, one spouse cannot waive the privilege without the consent of the other. See, e.g., In re Candor Diamond, 42 B.R. 916, 921 (Bankr. S.D.N.Y. 1984). This is critical because there must be mutuality of consent to knowingly waive the privilege. In other words, in the absence of consent by both spouses (the parties to the communication), the privilege cannot be pierced and thus, the underlying communication enjoys protection from disclosure.

It is possible that as the case law develops in this area, new exceptions and frameworks will be developed that more appropriately address the kinds of issues posed by text messaging and social media. At present, however, our courts have not had many opportunities to modernize the applicability of this privilege in the digital age and conform it to the realities of communication in modern-day marriages. Nevertheless, this little-known privilege provides a potential shield to the accidental transmission of electronic communications between spouses and may make all the difference in litigation involving married couples.

Vincenzo Mogavero chairs the New York and New Jersey litigation groups of Becker & Poliakoff. He focuses his practice on business and construction litigation. Sarah Klein is an associate in the firm's litigation practice group, focusing her practice on business litigation and securities arbitrations.