P, a citizen of New York, claims that he was defamed by statements printed by D, a citizen of New Jersey. D filed a petition for removal in the New Jersey federal district court alleging that she plans to assert a privilege based on the First Amendment to the U.S. Constitution in her answer. P hired A and B, man and wife, to manage his farm while he was out of the country. One day while A and B were alone at the farmhouse a fire started, severely damaging the home. A's explanation was that a woodburning stove in the house had malfunctioned and that he had put out the fire as soon as he discovered it.
P believes that A negligently started the fire by smoking in bed.
A has insurance coverage, which, if he is found to have been negligent, will cover the amount of any likely judgment against him. P wishes to sue A and to call as a witness B, A's wife, to testify as to what happened the day of the fire. Under the law of evidence of the state where this action is to be brought, one spouse cannot testify as to confidential communications occurring between the spouses during the course of their marriage. The state courts have interpreted this doctrine as preventing disclosure of actions as well as communications occurring during the course of the marriage. Federal law dealing with the communications between married couples limits protected subject matter to actual communications and excludes actions taking place during the course of the marriage.