a lawsuit claiming that that adverse employment action was racially discriminatory against him in the course of defending the case the sheriff wants to depose mrs brown and ask her about the policies of the sheriff about her employment with the sheriff about what she told the police has nothing to do with that lawsuit it's just the way of driving a wedge between husband and wife and perhaps persuading the husband to drop the lawsuit rather than putting his wife through the trauma of testifying about what was an unpleasant event that they've worked their way through that happened four years ago that is no longer important to their marriage so you're making is actually if honest and you correctly not just a marital  testimonial privilege argument sounds to me like you're really making a relevance argument well i'm seeking a a qualified privilege which turns on the cost and benefits if for some reason that is because she's we know she's being called to testify against her husband white white i understand that the communications wouldn't be privileged but i understand you to be a privilege is the reason i thought you were asserting the testimonial privilege and i was just looking at footnote two in your brief in which mrs brown heads reserved the right to invoke the marital communications privilege so right i thought you didn't want to testify that anything including what she told the police or including you know how long she worked in the sheriff's department you know in the way we view the privilege in the privilege that we're advocating for it doesn't reach what she told the police or what what medical treatment if any she got after that incident with which seeking the privilege just for the question did your husband punch you in the nose that's the extent of what we believe is privileged well what how do you what's the difference between that and what she told police officers well you know what you told the police officer they're going to say that took she told the police services that nothing that i don't want to make a report ten thousand dollars on therapy might be relevant and if not covered by the privilege well to communicate and you know that's that's where i guess i'm a little confused with flecks was i i had understood we've got a communications privilege that's not in front of us right now that's correct ok and so i had understood this to be a much broader assertion of a privilege that simply you cannot call me as a witness against my will you know a case against my spouse but my testimony would be adverse to my spouse if my testimony if it's just money would be what's hard to get up in the morning or does he like to eat cheerios that's not a virus if the question is did he punch you in the nose that  but i'm trying to think about situations for example in which both think about the fifth amendment self incrimination privilege as opposed to spousal information where appropriate in this kind of case if we recognize this privilege well i have no interest in the individual trial which speaking hypothetically if at trial the district judge said it was relevant to find out what actually happened between mr and mrs brown and mrs brown does not testify as she will not testify here with the district judge would be in his or her discretion would you find to tell the jury mrs brown has not testified you infer from that that her testimony would not help her husband would harm her husband but i don't know why at the trial in this case it would never reach the question of didn't punch you in the know did you punch her in the nose sir that had nothing to do with the adverse employment action with the ever served any jury would want to really answer that question who's right while the jury's want to know a lot of questions they want to know if you ever been arrested before i'd be ever been to be jail before and we don't the court doesn't be controlling the outcome of the trial or the way it's conducted but if the district judge in his wisdom says it's important for the jury to know that because they're curious and mr brown says i did not punch her in the nose and the officer said well we saw her she was bleeding from the nose and her nose was deformed and she was crying and mrs brown does not testify it would be mandatory almost if i was the judge i would give that instructions federal magistrate judge opinion there's district judge opinion there's a war review article which cites several magistrate judge opinions but there's no principled reason we submit for why the privilege should be limited to criminal cases asking mrs brown what did your husband punch you in the nose four years ago is not going to help her marriage is going to harm her marriage but just richard said well there's little reason to believe that it would harm her marriage but when he wrote that he wasn't writing about the question to the punch you in the nose he was writing this is a page short appendix seven through eight little reason to believe that recounting what she told the police would not harm the marriage and that's not what the privileges for the privilege is for she doesn't have to say he punched me in the nose and he used to be a horrible person but we've all gotten much better and i don't want to talk about  anymore it's very sad to talk about how we had a bad marriage and we fixed it up some people like to talk about it and some people don't and mrs brown doesn't want to talk about it but your underlying pieces of a pretext seeing he was employment action would be not on something alarming maybe instead it was based on his read that that that's what his claim is and i don't see how the other looking at the underlying case how any of this has anything to do with that that action adverse employment action was allegedly taken against mr brown it was taken because of these reports which they received and the claim is not that it was  but that people of a different race i think he's black in the end he's comparing themselves to white officers who about whom domestic violence complaints are made aren't disciplined aired there are no adverse case saying that he was impermissibly you know a bunch of unfavorable employment actions happened because of his race the sheriff's department says no we got this police report we have an anti domestic violence policy or whatever they say about that  but it's not clear what this testimony is going to do they're going to say they took the action because they got the police reports not what mrs brown said no i agree that that would be a theory of our case however so why is mrs brown have to in this complaint that he may be pursuing in addition throughout the scot free there's been no indication that he's backing off of that position it would be a disservice to my clients and at the service  have believe that they're not able to the polls witnesses and ask witnesses questions based upon allegations that are made in the planet's complaint so you're anticipating that mr brown is going to get up there and stand in the trial and say nothing ever happened on march one into the police just made this whole thing up based upon what he's alleging is a complaint and what has taken place and discovered so far and i see the why aren't the police the people to to depose about fabricating a report assuming that this is going to come in as far as i can tell under six thirteen b right yes addiction evidence yes and it would it would be again in this isn't we wouldn't be raising this obviously and all but only with mr brown opened yes sure and i believe that he's open the door based on his complaint and based upon his deposition testimony that this is a theory he's going to set forth and discovery being broad so that's different from the theory everybody commits domestic or the plaintiff mr brown is going to relate a couple different theories one of which is i was treated differently than white employees in the sheriff's office who were either convicted of domestic violence or alleged to have committed t domestic violence but i also believe he's going to support the theory that this never happened the sheriff should have done this to me because it just didn't happen  and so if we have a trial if he gets up and testifies this didn't happen and we have the police officers testify well this is what was reported to us from mrs brown but we didn't actually witness the incidence  a jury may want to know will what is mrs brown have to say and you know so the big one of those who took the criminal side of your office could not seek this testimony really well that's a court's decision why it or the spring course decision why which only applied to man act cases however this court's decision and then drew and then it seemed to be reiterated and in ryan talked about how the privilege is best suited for to be raised by a testifying spouse who is neither the victim or an accomplice or had a role and look i mean you have to back up mean if there's an answer to why you would limit this privilege to criminal or people like to say closely tethered to cram yes whatever that means but to criminal cases essentially you have to say at a broader level  supreme court doesn't like evidentiary privileges that keep relevant evidence away from the trier of fact we really tried to get all of the relevant evidence and so you look carefully at the scope of privileges and then you would have to further say you know i think it's hampton that construing this privilege narrowly is enough and then for the most part the marital privileges are not going to make or break a marriage one way or the other have you know federal privilege laws five or five would have kept this out though the price it would of and i think if you look at the the evolution of the privilege throughout the years it's it's been narrowed by the supreme court it's gone from the common law where neither spouse could testify for or against each other shoe the spouse could testify in again if they were in agreement for each other and then has made especially hawkins it talks about life or liberty that the privileges important for the safety of american should where life or liberty is at stake and in a case such as this one where it's a property interest at stake it's not life or liberty and that's why we that's why we've argued in our brief that the privilege should not be extended to the civil cases if you do not have any