The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTION TO QUASH AND ASSERT SPOUSAL PRIVILEGE
By Order dated February 2, 2011 (ECF No. 50), this Court denied Defendant Student Transportation of America, Inc.'s Motion to Quash a Subpoena and Assert a Privilege (ECF No. 35), relating to the deposition of Jennifer Haines-Poust. In the following memorandum of law, the Court analyzes the issue of marital privilege raised by Defendant's motion. The Court concludes that Ms. Haines-Poust, wife of Frederick Poust, III, an employee of Defendant who was the driver of the bus in the accident that forms the basis for this action, may not assert her marital privilege to avoid deposition where Plaintiffs intend to question her about her interaction with a third party; however, the Court will preclude any questions concerning spousal communications.
Defendant's Motion to Quash comes before the Court in an action for damages arising from a motor vehicle accident that occurred on February 17, 2010 between a school bus driven by Frederick Poust, III and a car driven by Plaintiff Freddie Carroll. On March 15, 2010, the Montgomery County DA instituted criminal charges against Mr. Poust. On March 31, 2010, Carroll and his wife, Patricia, filed this action for damages against Student Transportation of America, Inc. ("Defendant"), Mr. Poust's employer.*fn1
In the course of discovery in the civil action, Plaintiffs noticed a deposition via certified mail of Mr. Poust's wife, Jennifer Haines-Poust, to be held on January 17, 2011. Mot. Quash Ex.
B. On January 13, 2011, Defendant filed the instant motion to quash the subpoena and to assert a spousal privilege on behalf of Ms. Haines-Poust (ECF No. 34). Plaintiffs filed their response in opposition to the motion on January 27, 2011 (ECF No. 42). Defendant replied on January 28, 2011 (ECF No. 44). The Court held a hearing on several pending motions, including the Motion to Quash, on February 1, 2011.
II. The Parties' Contentions
Defendant contends that the Court should quash the subpoena to Ms. Haines-Poust because her deposition would necessarily be testimony against her husband, in violation of a Pennsylvania law that provides for an absolute privilege not to testify against one's spouse.*fn2
Def.'s Br. in Support 3-5.
Plaintiffs contend that the subject matter of Ms. Haines-Poust's deposition will be her own conduct related to a play date invitation from her daughter to the son of Michele Thomas, an eyewitness to the accident, shortly after Ms. Thomas testified against Mr. Poust at his preliminary hearing following his arrest. Pls.' Mem. Law Opp. 2. Plaintiffs contend that this limited inquiry into Ms. Haines-Poust's post-accident conduct does not offend any spousal privilege. Id. at 3.
Plaintiffs further contend that to the extent that Ms. Haines-Poust is asked to testify about private communications with her husband, those questions would be limited to communications regarding the potential intimidation of Ms. Thomas, which is a fraud and thus exempt from the privilege. Id. at 4.
Federal courts analyze evidentiary privileges pursuant to Federal Rule of Evidence 501. In a civil action, with respect to elements of a claim or defense where state law governs, privilege "shall be determined in accordance with State law." Fed. R. Evid. 501; Samuelson v. Susen, 576 F.2d 546, 549 (3d Cir. 1978) ("Rule 501 requires a district court exercising diversity jurisdiction to apply the law of privilege which would be applied by the courts of the state in which it sits"). Pennsylvania law governs the cause of action in this case, in which the district court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.
There are two spousal privileges under Pennsylvania law that may apply in a civil action: the privilege not to testify against one's spouse, 42 Pa. Cons. Stat. § 5924, and the privilege not to testify about confidential communications between spouses, 42 Pa. Cons. Stat. § 5923. Brown v. Scafidi, 839 F. Supp. 342, 344 (E.D. Pa. 1993). Although Defendant only asserts a privilege under Section 5924 in its Motion to Quash, the ...