S and L are married under the laws of a state following the majority rule of spousal privileges. S is a corporate executive, and L is a real estate lawyer.
One night in their bedroom, S told L that one of S’s employees, V, had accused S of sexual harassment. S assured L that the allegation was false. L asked S if there was going to be a lawsuit. S replied that the corporation’s human resources department was investigating the complaint. S also asked L, “What do you think I should do?” L said that the most important thing for S to do was to not lie.
“I really wish I hadn’t said anything about looking good,” S admitted to L. “And I should be less touchy-feely,” he added.
“Don’t volunteer that, either,” L said.
The next morning, while S was still sleeping, L decided to go through S’s smartphone. L discovered several digital photos of a person who turned out to be V, the employee complaining about having been sexually harassed by S. None of the pictures was risqué, but based on the angles and lack of centering, all appeared to have been taken surreptitiously and without the consent of V.
A week later, L separated from S. S deleted all photos of V from the smartphone and erased the pictures from the cloud.
V indeed filed a sexual harassment lawsuit against S. By the time the case went to trial, L had obtained a divorce from S.
Assume that the sexual harassment case against S proceeds to trial in federal court. V intends to call L as a witness to testify about the bedroom conversation, as well as the since-deleted photographs on the smartphone, with the photos supposedly showing that S was secretly fascinated or obsessed with V.
- If S objects to L’s testifying about the bedroom conversation, how should the trial judge rule? Explain.
- If S objects to L’s testifying about the digital photographs of the alleged harassment victim, how should the trial judge rule? Explain.