What if Mrs. Cosby’s Deposition was in Nevada?

I once wrote I pay more attention to the weather on Jupiter than celebrity gossip. It is still true. But the anticipated deposition of Camille Cosby set for January 6 generated so many headlines it even made my radar. Those who pay far more attention to such things asked “what do you think?” So, in the spirit of legal fun if there is such a thing, what would happen if Mrs. Cosby’s deposition was governed by Nevada law?[1]

I previously wrote about Nevada’s spousal privilege. Nevada’s version of the privilege has not changed since then, making this hypothetical easier to write.

First, NRS 49.305(a) forbids a spouse from being a witness for or against the other spouse, unless the first spouse agrees to it. Applied to Mrs. Cosby, she could not be a witness for or against Mr. Cosby unless she first agreed to be a witness. NRS 49.305(b) also prohibits examining Mrs. Cosby “as to any communication made by one [spouse] to the other during marriage,” unless Mr. Cosby first consents to it. Together, these statutes mean that both spouses must waive the privilege to permit Mrs. Cosby to be deposed about spousal communications. “A spouse has a statutory privilege to refuse to take the stand when called to testify against his or her spouse. … [T]he testifying spouse privilege is only waived by taking the stand at trial and testifying….”[2] Initially, the statute and this language interpreting it seem strong enough to conclude Mrs. Cosby would not be deposed in Nevada.

Except she would be deposed but the deposition would probably be a nightmare. Why? The privilege in Nevada only covers certain communications. For instance, Constancio v. State allowed the accused’s ex-wife to testify “that during their marriage appellant had often had difficulty achieving an erection.”[3] This was outside the privilege that the husband could assert because this testimony concerned the wife’s personal observations, not a communication between spouses. “[T]he privilege should be limited to expressions intended by one spouse to convey a meaning or message to the other.”[4]

The privilege also does not automatically apply to any information learned during a marriage. “The mere fact that transactions testified to by plaintiff took place during the marriage is insufficient to show that his knowledge concerning them was derived, in whole or in part, from communications made to him by his wife.”[5] “All of the testimony at issue described actions and observations rather than marital communications.”[6] It is also important to remember the privilege is waived if the privileged communication was made in the presence of others.[7]

Applying this, in Nevada Mr. and Mrs. Cosby could each object to her being deposed concerning martial communications. However, she could be deposed over their objections as to her own personal observations of certain facts. She could also be deposed about information that would normally qualify for the privilege if it that communication occurred in the presence of others. In all, the deposition would proceed forward but I would be hugely surprised if it could be completed in 1 day of 7 hours given how contentious the litigation seems to be.

[1] To be absolutely clear, I have no opinion of any kind concerning the Cosbys, their legal matters, or basically anything to do with them.
[2] Franco v. State, 109 Nev. 1229, 1243-44, 866 P.2d 247, 256 (1993); Peck v. State, 116 Nev. 840, 847, 7 P.3d 470, 474 (2000).
[3] 98 Nev. 22, 24, 639 P.2d 547, 549 (1982).
[4] Id. at 25, 639 P.2d at 549 (emphasis in original) (quotation omitted).
[5] Petition of Fuller, 63 Nev. 26, 36-37, 159 P.2d 579, 584 (1945).
[6] Collins v. State, 113 Nev. 1177, 1184-85, 946 P.2d 1055, 1061 (1997).
[7] Foss v. State, 92 Nev. 163, 167-68, 547 P.2d 688 (1976).