Ross v. Santa Clara County Sheriff's Department (SCCSD) et al

Filing 51

ORDER by Magistrate Judge Howard R. Lloyd granting 37 defendants' Motion to Compel David Campagna's Deposition Testimony. 7/28/2015 hearing vacated. (hrllc2, COURT STAFF) (Filed on 7/22/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ALLISON M. ROSS,

Case No. 5:14-cv-01770-EJD (HRL)

Plaintiff,
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v.
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SANTA CLARA COUNTY SHERIFF'S
DEPARTMENT (SCCSD), et al.,

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ORDER GRANTING DEFENDANTS'
MOTION TO COMPEL DAVID
CAMPAGNA'S DEPOSITION
TESTIMONY

Defendants.

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Re: Dkt. No. 37

Plaintiff Allison Ross filed this civil rights action, claiming that she was subjected to an

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unlawful search and seizure and arrest. According to her complaint, late on the night of December

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31, 2009 she “facilitated” a call to the Santa Clara County Sheriff’s Department for help in a

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possible home invasion. Ross claims that deputies who arrived on the scene unlawfully detained

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her, illegally entered her home, and conducted an unlawful search of the premises. Ross further

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alleges that she was wrongfully arrested for being under the influence, and that defendants planted

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narcotics in her home, caused her to ingest water spiked with methamphetamines, and tampered

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with her blood sample in order to manufacture a false positive for narcotics. Ross asserts claims

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under 42 U.S.C. § 1983, as well as several pendent state law claims for relief.

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In deposition, Ross testified that she believes she is being targeted as part of a conspiracy

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by the Sheriff’s Department to retaliate against her husband, David Campagna, for filing a

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worker’s compensation claim. Campagna, a former County correctional officer, is not a party to

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this suit.
Defendants subpoenaed Campagna for deposition. Although he appeared on the

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designated date, Campagna refused to answer any questions, asserting “spousal privileges.” (Dkt.

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37-1, Harris Decl. Ex. D at 5:23).1
Defendants now move this court for an order compelling Campagna to appear and testify at

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a deposition. They contend that their examination will not implicate privileged communications

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he may have had with plaintiff. Campagna opposes the motion. The matter is deemed suitable for

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determination without oral argument, and the July 28, 2015 hearing is vacated.2 Civ. L.R. 7-1(b).

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Upon consideration of the moving and responding papers, this court grants defendants’ motion.
“Where there are federal question claims and pendent state law claims present, the federal

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United States District Court
Northern District of California

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law of privilege applies.” Agster v. Maricopa Cnty. 422 F.3d 836, 839 (9th Cir. 2005) (citing Fed.

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R. Evid. 501). Federal law recognizes two types of privileges arising from a marital relationship.

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One, called the “anti-marital facts” privilege, prohibits one spouse from testifying against another

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during the length of the marriage. United States v. Montgomery, 384 F.3d 1050, 1056 (9th Cir.
2004); United States v. Marashi, 913 F.2d 724, 729 (9th Cir. 1990). The other, known as the
“marital communications” privilege, bars testimony about statements privately communicated
between spouses. Montgomery, 384 F.3d at 1056; Marashi, 913 F.2d at 729.
The “Anti-Marital Facts” Privilege

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Defendants contend that the “anti-marital facts” privilege applies only in criminal

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proceedings, and not in civil matters. They cite several cases in which courts addressing the issue
have said as much. See, e.g., Jimenez v. Amgen Mfg. Ltd., 692 F. Supp.2d 219, 221 (D.P.R.
2010) (“The first of the two federal marital privileges, the privilege against adverse spousal
testimony, is only applicable in criminal actions and hence has no bearing on this case.”); United

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This court is told that, despite his unwillingness to testify and submit to discovery in this matter,
Campagna, plaintiff, and their attorneys contacted a local news station about running a story about
this case and provided interviews. According to defendants, the news station has not yet aired the
matter. (Dkt. 37-1, Harris Decl., ¶ 13).
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With respect to this particular discovery matter, this court previously granted defendants’ request
to be excused from compliance with the undersigned’s Standing Order re Civil Discovery
Disputes. Dkt. 34.
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States v. Premises Known as 281 Syosset Woodbury Road, 862 F. Supp. 847, 851-52 (E.D.N.Y.

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1994) (concluding that the magistrate judge’s “implicit determination that the privilege against

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adverse spousal testimony is only applicable in a criminal action is not clearly erroneous nor is it

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contrary to law.”); Ryan v. Comm’r of Internal Revenue, 568 F.2d 531, 542-45 (7th Cir. 1977)

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(concluding that the privilege should be limited to instances where a spouse who is neither a

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victim nor a participant observes evidence of the other spouse’s crime); United States v. Van

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Drunen, 501 F.2d 1393, 1397 (7th Cir. 1974) (same).

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United States District Court
Northern District of California

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Campagna correctly notes that none of these authorities are binding upon this court, but he
cites no authority to the contrary. Nor has he directed the court to any case in which the “antimarital facts” privilege has been applied in the civil context. Instead, he asks this court to apply,
as a matter of comity, state law privileges based on California Evidence Code § 970 and § 971,
which by their terms appear to apply to any proceeding. California Evidence Code § 970
provides: “Except as otherwise provided by statute, a married person has a privilege not to testify
against his spouse in any proceeding.” California Evidence Code § 971 provides: “Except as
otherwise provided by statute, a married person whose spouse is a party to a proceeding has a
privilege not to be called as a witness by an adverse party to that proceeding without the prior
express consent of the spouse having the privilege under this section unless the party calling the
spouse does so in good faith without knowledge of the marital relationship.”

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As discussed, state law privileges do not control in federal question cases. Fed. R. Evid.
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501; Agster, 422 F.3d at 839. In enacting Federal Rule of Evidence 501, however, Congress’

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purpose was to give courts flexibility to develop rules of privilege on a case-by-case basis.
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Trammel v. United States, 445 U.S. 40, 47 (1980). And, federal courts may apply state privileges
in federal question cases as a matter of comity. Leon v. Cnty. of San Diego, 202 F.R.D. 631, 635
(S.D. Cal. 2001); Burrows v. Redbud Community Hosp., 187 F.R.D. 606, 608 (N.D. Cal. 1998).
“‘A strong policy of comity between state and federal sovereignties impels federal courts to
recognize state privileges where this can be accomplished at no substantial costs to federal
substantive and procedural policy.’” Leon, 202 F.R.D. at 635 (quoting United States v. King, 73
F.R.D. 103, 105 (E.D.N.Y.1976)).

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Even so, the United States Supreme Court has cautioned that “[t]estimonial exclusionary

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rules and privileges contravene the fundamental principle that “‘the public . . . has a right to every

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man’s evidence.’” Trammel, 445 U.S. at 50 (quoting United States v. Bryan, 339 U.S. 323, 331,

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70 S.Ct. 724, 730, 94 L.Ed. 884 (1950)). “As such, they must be strictly construed and accepted

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only to the very limited extent that permitting a refusal to testify or excluding relevant evidence

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has a public good transcending the normally predominant principle of utilizing all rational means

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for ascertaining truth.” Id. (citation omitted); see also Holmes v. United States, No. C08-5619

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PJH (EMC), 2010 WL 760537 at *1 (N.D. Cal., Mar. 4, 2010) (“To resolve discovery disputes of

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this kind, a federal court must balance the [moving party’s] interests in disclosure against the

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United States District Court
Northern District of California

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state’s legitimate concern of protecting the [confidential information] from unnecessary
intrusions.”) (citation omitted). Campanga’s cited cases, in which the courts declined to recognize
new privileges, are not to the contrary. See Pearson v. Miller, 211 F.3d 57, 67 (3d Cir. 2000)
(observing that “with very limited exceptions, federal courts have generally declined to grant
requests for new privileges” and that “federal courts are to assess the appropriateness of new
privileges as they arise in particular cases, but they are to conduct that assessment with a
recognition that only the most compelling candidates will overcome the law’s weighty dependence
on the availability of relevant evidence.”); Grabow v. Cnty. of Macomb, No. C12-10105, 2013
WL 3354505 at *5 (E.D. Mich., July 3, 2013) (stating that “a new evidentiary privilege should not
be created unless it ‘promotes sufficiently important interests to outweigh the need for probative
evidence . . .”) (quoting Trammel, 445 U.S. at 51).

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Campagna argues that § 970 and § 971 serve an important public policy of protecting the
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marital relationship from unwarranted intrusion. To be sure, that is an important purpose. But,
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Campagna offers no explanation why that, in and of itself, justifies an absolute bar on his
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testimony in this case. Indeed, according to excerpts of plaintiff’s deposition testimony,

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Campagna was a percipient witness to the events in question, he owns the house that was
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searched, and plaintiff identified his worker’s compensation claim as the basis of her conspiracy

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claims. (Dkt. 37-1, Harris Decl., Ex. D). Applying an evidentiary privilege excusing Campagna
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from testifying at all runs counter to the liberal policy of discovery under the Federal Rules and
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would essentially permit plaintiff to provide her side of the story without giving defendants a fair

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opportunity to explore her assertions. Campagna has not cited, and this court has not found, any

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cases applying California Evidence Code § 970 and § 971 in a federal civil rights case. And, some

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courts have observed that “‘[i]t obviously would make no sense to permit state law to determine

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what evidence is discoverable in cases brought pursuant to federal statutes whose central purpose

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is to protect citizens from abuses of power by state or local authorities.’” Leon, 202 F.R.D. at 636

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(quoting Miller v. Pancucci, 141 F.R.D. 292, 297 (C.D.Cal.1992)). This court declines

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Campagna’s request to apply California Evidence Code § 970 and § 971 here.

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The “Marital Communications” Privilege
As discussed, the “marital communications” privilege “bars testimony concerning

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United States District Court
Northern District of California

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statements privately communicated between spouses.” Marashi, 913 F.2d at 729. This privilege

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(1) “extends only to words or acts intended as communication to the other spouse”; (2) “covers

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only those communications made during a valid marriage”; and (3) “applies only to those marital

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communications which are confidential.” Id. at 729-30. “[T]he privilege does not extend to

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statements which are made before, or likely to be overheard by, third parties.” Id. at 730.

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Defendants do not dispute that this privilege may apply here to the extent any deposition
questions call for such communications. Nevertheless, defendants contend that the privilege will
likely not be implicated because they intend to examine Campagna primarily about his interactions
with defendants on December 31, 2009. They also say that they may question Campagna about a
number of other topics, including plaintiff’s actions; his perceptions of her appearance and
demeanor; any non-confidential communications between Campagna and plaintiff; and his actions
and statements to third parties. The deposition has yet to take place; and, at this juncture, this
court declines to rule, in a vacuum, as to what questions Campagna should answer or to say
definitively what topics will be permitted. Nevertheless, the “marital communications” privilege
does not excuse Campagna from testifying, and any relevant non-privileged matters are legitimate
subjects for discovery.

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Based on the foregoing, defendant’s motion to compel Campagna’s deposition testimony is

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granted. Campagna shall appear for deposition on the earliest date and time available for
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everyone3 and to provide non-privileged testimony relevant to this matter.
SO ORDERED.

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Dated: July 22, 2015
________________________
HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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The court expects Campagna, the parties, and their counsel to cooperate in good faith and to
work reasonably with one another in scheduling the deposition, bearing in mind the case
management deadlines set by Judge Davila.
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5:14-cv-01770-EJD Notice has been electronically mailed to:
Aryn Paige Harris

[e-mail], [e-mail]

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B.J. Fadem

[e-mail]

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Gabrielle Jan Korte [e-mail], [e-mail], [e-mail], [e-mail]
Lori J. Costanzo

[e-mail], [e-mail]

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Meghan Feronie Loisel

[e-mail], [e-mail]

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Melissa R. Kiniyalocts [e-mail],
[e-mail]
Steven M. Fink

[e-mail], [e-mail], [e-mail]

United States District Court
Northern District of California

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