United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING CAMILLE COSBY’S OBJECTIONS TO MAGISTRATE JUDGE’S RULING ON HER MOTION TO QUASH DEPOSITION SUBPOEANA, OR, IN THE ALTERNATIVE, FOR A PROTECTIVE ORDER (DKT. NO. 175) 
MARK G. MASTROIANNI, UNITED STATES DISTRICT JUDGE.
I. Introduction In this action, Plaintiffs assert defamation, invasion of privacy (false light), and intentional infliction of emotional distress claims against Defendant. Plaintiffs’ claims stem from statements issued on behalf of Defendant in response to public allegations made by Plaintiffs in which they accused Defendant of sexual misconduct. Following this court’s denial of Defendant’s motion to dismiss, Plaintiffs sought to depose Defendant’s wife, Camille Cosby (“Deponent” or “Mrs. Cosby”), who is not a party to this action. In response, Deponent filed a motion to quash the deposition subpoena or, in the alternative, for a protective order limiting the scope of the testimony. Deponent argued that the Massachusetts marital disqualification rule, Mass. Gen. Laws ch. 233, § 20, First,  prohibits any relevant testimony she could offer, and, even if she could provide admissible testimony, its value is outweighed by the undue burden of forcing her to be deposed.
On December 31, 2015, Magistrate Judge David H. Hennessy denied Deponent’s motion. Green v. Cosby, 2015 WL 9594287 (D. Mass. Dec. 31, 2015). Judge Hennessy concluded that the marital disqualification rule applies only to trial testimony and not to deposition testimony. Id. at *3. He also found that Deponent failed to demonstrate an undue burden or that she was entitled to a protective order, even if the marital disqualification rule did apply in these circumstances. Id. at *3 n.7, *4-6. Thereafter, Judge Hennessy granted Deponent’s emergency motion to stay her deposition, which was scheduled for January 6, 2016, so that she could appeal the December 31, 2015 ruling to this court. Green v. Cosby, 2016 WL 64211 (D. Mass. Jan. 5, 2016). On January 14, 2016, Deponent filed a timely objection to Judge Hennessy’s ruling, to which Plaintiffs have responded; Deponent also filed a reply brief on February 1, 2016. (Dkt. Nos. 175, 182, 184.)
II. Standard of Review
A district judge may reconsider a non-dispositive pretrial ruling of a magistrate judge, on a timely objection, only “where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a) (“The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”). Under the “clearly erroneous” prong, the court will accept the magistrate judge’s “findings of fact and the conclusions drawn therefrom unless, after scrutinizing the entire record, [the court] ‘form[s] a strong, unyielding belief that a mistake has been made.’” Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)). Under the “contrary to law” prong, the court reviews pure questions of law de novo. PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010). “Mixed questions of law and fact ‘invoke a sliding standard of review, ’ with ‘more fact intensive . . . question[s]’ receiving ‘more deferential . . . review’ and ‘more law intensive . . . question[s]’ receiving less deference.” Neelon v. Krueger, 2015 WL 1037992, at *2 (D. Mass. Mar. 10, 2015) (quoting In re IDC Clambakes, Inc., 727 F.3d 58, 64 (1st Cir. 2013)). “A respect for this standard is important, given the pivotal role that magistrate judges play in overseeing the conduct of the sort of complex pretrial discovery typified by this case.” Gargiulo v. Baystate Health Inc., 279 F.R.D. 62, 64 (D. Mass. 2012).
The Massachusetts marital disqualification rule generally prohibits a spouse from testifying as to private conversations with the other spouse. See Mass. Gen. Laws ch. 233, § 20, First. The central issue in this appeal is the scope of this rule-specifically, whether it applies to deposition testimony. In a thoughtful decision, Judge Hennessy concluded that it did not. He reasoned that “the rule’s underlying character-i.e., competence, not privilege-concerns admissibility of evidence at trial, and not a privilege against discovery.” Green, 2015 WL 9594287, at *3. Therefore, Judge Hennessy concluded, “there is nothing precluding [Mrs. Cosby’s] deposition as a tool to discover information gleaned from conversations between Mrs. Cosby and the defendant.” Id. at * 5. This is a difficult issue, as there is very little authority directly on the subject. Still, because it presents a purely legal question, the court must utilize a de novo standard of review. In doing so, the court concludes that the marital disqualification rule does apply to deposition testimony. Therefore, the court will modify the December 31, 2015 order in the following manner: Deponent, when appropriate, may refuse to answer deposition questions which call for testimony prohibited by the rule and not falling within an exception. Nevertheless, applying the clearly erroneous standard to the remainder of Judge Hennessy’s order, the court will not modify it in any other respect. In particular, the court will not quash the deposition subpoena and will not issue a formal protective order.
A. Whether the Massachusetts Marital Disqualification Rule Applies to Depositions
Plaintiffs argue, and Judge Hennessy concluded, the marital disqualification rule does not apply to deposition testimony because it is a rule of competency and not a privilege. That reasoning is understandable, given certain language used by Massachusetts courts to describe the rule. See, e.g., Gallagher v. Goldstein, 524 N.E.2d 53, 55 (Mass. 1988) (“We have consistently ruled that the statute renders spouses incompetent to testify as to the contents of their private conversations with their marital partners.”). Generally, competency matters, such as age or mental health issues, do not provide grounds for resisting discovery, including a refusal to answer deposition questions but, rather, may be a bar to calling the person as a witness at an actual trial-type hearing. However, the court agrees with Deponent that Plaintiffs’ and Judge Hennessy’s rationale incorrectly conflates mental competency with absolute testimonial disqualification. The history and purpose of the marital disqualification rule demonstrate that, although it is sometimes termed an “incompetency, ” the rule has nothing to do with general competence issues.
As the Supreme Court has explained, the marital disqualification rule has “ancient” common law roots, surfacing as early as 1628. Trammel v. United States, 445 U.S. 40, 43-44 (1980). The common law rule barred not just testimony as to private conversations, but all testimony by a spouse either for or against the other spouse, even if both spouses desired the testimony. See Hawkins v. United States, 358 U.S. 74, 76 (1958). The rule’s original justifications were based on long-since abandoned concepts of “incompetence, ” also referred to as “disqualification” or “disability, ” due to personal interest: “first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one.” Trammel, 445 U.S. at 44. Additional justifications included “a desire to foster peace in the family and . . . a general unwillingness to use testimony of witnesses tempted by strong self-interest to testify falsely.” Hawkins, 358 U.S. at 75. The Supreme Judicial Court has noted similar justifications:
Wigmore lists five historical and policy reasons on which the rule rests: (1) the husband and wife were considered one entity at common law; (2) a marital couple has only one interest, and thus nothing could be gained by allowing a spouse to testify for or against the other; (3) a spouse has a ‘bias of affection’ and would not testify truthfully; (4) allowing testimony might disturb marital peace; and (5) if a wife is a witness for her husband, she ‘must be subjected to a cross-examination which might call for truths unfavorable to his cause’ and result in marital disharmony. . . . Another policy reason often stated is the desire to preserve the confidentiality of marital conversations.
Gallagher, 524 N.E.2d at 54-55 (quoting 2 J. Wigmore, Evidence § 601 (Chadbourn rev. ed. 1979)); see also Commonwealth v. Sugrue, 607 N.E.2d 1045, 1048 (Mass. App. Ct. 1993).
Over time, the old rules disqualifying witnesses based on personal interest were abolished “in accordance with the modern trend which permitted interested witnesses to testify and left if for the jury to assess their credibility.” Hawkins, 358 U.S. at 76. As a result, most states and the federal courts similarly abandoned the broad marital disqualification rules and permitted spouses to testify for the other spouse. See Funk v. United States, 290 U.S. 371, 380-81 (1933). Because the justification of “fostering the harmony and sanctity of the marriage relationship” remained, however, the common law rule largely transformed into one in which a “spouse could prevent the other from giving adverse testimony, ” or the witness-spouse could decline to testify against the other spouse. Trammel, 445 U.S. at 44, 53. “The rule thus evolved into one of privilege rather than one of absolute disqualification.” Id. at 44. Importantly, by statute, Massachusetts retained the absolute disqualification, but limited it to testimony regarding private marital conversations. See Gallagher, 524 N.E.2d at 54-55.
Accordingly, the fact that the Massachusetts statutory marital disqualification rule remains one of disqualification, or “incompetency, ” and not a privilege means that it is more restrictive, not less. See Commonwealth v. Gillis, 263 N.E.2d 437, 439 (Mass. 1970) (“Section 20 has been treated as creating a disqualification of both spouses to testify to private conversations and not merely a privilege which must be appropriately claimed and may be waived.” (emphasis added)). Moreover, in light of its historical derivation, this disqualification concept is not really comparable to mental competency, which involves questions of fact regarding a witness’s ability and capacity to observe, remember, comprehend, and communicate, see Demoulas v. Demoulas, 703 N.E.2d 1149, 1159 (Mass. 1998); rather, disqualification constitutes an absolute bar to testifying as a matter of law. See Gallagher, 524 N.E.2d at 55 (“In this historical context, the statutory disqualification as to evidence of private conversations between spouses may be viewed as a statutory preservation of a remnant of an outdated common law concept.”); cf. Editors’ Notes, Mass. G. Evid. § 601(a) (“A person otherwise competent to be a witness may still be disqualified from testifying.”). Judge Hennessy reasoned that “[t]he mere fact that a party may not be mentally competent to testify is not a sufficient reason to prohibit the other party from taking his deposition.” Green, 2015 WL 9594287, at *3 (quoting Dang ex rel. Dang v. Eslinger, 2014 WL 3611324, at *2 (M.D.Fla. July 22, 2014)). However, this issue highlights ...