Haynes Boone Counsel Elizabeth Wirmani authored an article for The Texas Lawbook examining whether Texas should extend spousal privilege protections to business communications between married partners. She argues that while genuine marital confidences deserve protection, business discussions involving company operations, finances and strategy should remain transparent and subject to discovery.
Read an excerpt below.
Texas law has always been fond of a good boundary line, and few are trickier than the one between the bedroom and the boardroom. Under Texas law, there are two flavors of spousal privilege: One keeps a spouse from being forced to testify in a criminal case, and the other, the so-called confidential communications privilege, lets spouses keep private things said to each other under wraps in both civil and criminal matters. The idea is noble: protect marital harmony, guard the sanctity of pillow talk, keep “I can’t believe I said that” moments out of the record.
But here’s where things get messy. What happens when the pillow talk turns into payroll talk? When “How was your day, honey?” becomes “Did the lender approve the bridge loan?” Texas’ economy is bursting with family-run companies, spousal co-ownerships and mom-and-pop empires, and the line between marriage and management can get blurry. The law, however, needs that line to stay crystal clear.
This article argues for exactly that: Texas courts should not extend spousal privilege to business communications between spouses. When a husband and wife are talking Q4 market trends instead of emotions, those words shouldn’t be protected under Rule 504. Business chatter isn’t “confidential” in the sense the rule requires and shielding it from discovery twists a protection meant for marital intimacy into a loophole for commercial secrecy.
A sensible “business communications” limitation would keep the privilege true to its roots:
- It would align with Rule 504’s actual text, which demands intent to keep things private within the marriage;
- It would follow Texas precedent, which rejects privilege when there’s no genuine expectation of confidentiality; and
- It would advance core legal values — transparency, fairness and the integrity of the courts — instead of giving spousal business partners a litigation advantage their single or non-spousal counterparts could never enjoy.
In short, Texas should draw a bright line between marital confidences and business confidences. The former deserve protection; the latter deserve daylight.
Read the full article on The Texas Lawbook here.
