Evidence
Exam 3
Fact pattern
A corporate executive and a real estate lawyer are married. One night in their bedroom, the executive told the lawyer that one of the executive’s employees, a financial analyst, had accused the executive of sexual harassment. The lawyer asked the executive if there was any basis for the company to believe the analyst’s allegations. The executive assured the lawyer that the allegations were entirely false. The executive then added, “But I really wish I hadn’t said anything to her about looking good. And I should be less touchy-feely.” The lawyer responded, “You really shouldn’t volunteer that information if you can help it. It doesn’t sound good.”
The next morning, while the executive was still sleeping, the lawyer went through the executive’s phone. The lawyer discovered several digital photos of a person who turned out to be the financial analyst making the harassment allegations. Based on the angles and lack of centering, the photos all appeared to have been taken surreptitiously and without the analyst’s consent.
A week later, the lawyer separated from the executive. The executive deleted all photos of the analyst from the phone and erased the pictures from the cloud.
The analyst later filed a civil sexual-harassment lawsuit against the executive in state court. That state followed the majority rules for evidentiary privileges. By the time the case went to trial, the lawyer and the executive had obtained a final divorce. The analyst intended to call the lawyer as a witness to testify about the bedroom conversation, as well as the since-deleted photographs on the phone. The analyst’s position was that the photos supported her allegations because they showed that the executive was secretly fascinated by or obsessed with her.
Questions
If the executive objects to the lawyer testifying about the bedroom conversation based on attorney-client, spousal-immunity, and spousal-communications privilege, how should the trial judge rule on each of those objections? Explain.
If S objects to L’s testifying about the digital photographs of the alleged harassment victim, how should the trial judge rule? Explain.