The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Barbara Stanfield ("Stanfield") filed suit alleging that she was continuously subjected to offensive, unwelcome, physically and sexually abusive behavior while employed as a correctional officer at the Cook County Sheriff's Department ("CCSD"), specifically under the supervision of Defendant Thomas Snooks ("Snooks"). She alleges sexually harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"); discrimination on the basis of her gender in violation of 42 U.S.C. § 1983 ("§ 1983"); assault and battery and intentional infliction of emotional distress in violation of Illinois state law; violation of the Gender Violence Act, 740 ILCS 82/1 et seq. ("GVA"); violation of the Illinois Civil Rights Act of 2003, 740 ILCS 23/1 et seq. ("ICRA"), and also alleges an indemnification claim against the County. Stanfield v. Dart, 2011 U.S. Dist. LEXIS 40668 (N.D. Ill. Apr. 14, 2011).
Stanfield seeks to depose Snooks's wife, asking that she testify as to Snooks's general health and sexual abilities, medications and medical treatment; her conversations with Snooks regarding his activities with the Cook County Sheriff's Department; Snooks's employment, assets and financial condition. Before the Court is Snooks's Motion to Quash the Subpoena and Motion for a Protective Order to prohibit such a deposition. Snooks invokes Fed. R. Civ. P. 45(c)(3) and 26 to support that Snooks's wife's testimony is subject to marital privilege under both federal and state law, and that the information sought can be otherwise gleaned in whole or in part from other witnesses who have been identified by the parties.
A court must quash or modify a subpoena that, in relevant part, "requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to undue burden." Fed. R. Civ. P. 45(c)(3). Federal common law-"as interpreted by United States courts in the light of reason and experience"-governs a claim of privilege. Fed. Rules Evid. R. 501. As a preliminary matter, because Cook County has reserved the right to refuse or oppose indemnification for any judgment against Snooks, his financial status is now a matter for discovery by Stanfield. For the following reasons, the Court finds that Snooks's sexual abilities as perceived by his wife are communicative acts and that his wife has not waived her marital communications privilege. The Court grants in part and denies in part Snooks's motion to quash the subpoena: granted as to Snooks's sexual abilities, medical treatment, and conversations regarding his activities with the Cook County Sheriff's Department; denied as to his general health and medications, as well as his employment, assets and financial condition. The Court grants Snooks's motion for a protective order accordingly.
I. The Federal Marital Communications Privilege
Communications between a husband and wife are presumptively confidential. Blau v. United States, 340 U.S. 332, 333, 95 L. Ed. 306, 71 S. Ct. 301 (1951). Two privileges exist under federal common law that prevent these communications from being introduced as evidence, and thereby preserve their confidentiality: the marital testimonial privilege and the marital communications privilege. United States v. Darif, 446 F.3d 701 (7th Cir. 2006); see also Benson v. United States, 146 U.S. 325, 337 (1892) (describing the importance of seeking witness testimony "unless some one of those peculiarly confidential relations, like that of husband and wife, forbids the breaking of silence."). The marital communications privilege may be raised by either the defendant-spouse or the witness-spouse to preclude the witness-spouse's testimony about their communications to "ensure that spouses generally . . . feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law." United States v. Guy Westmoreland, 312 F.3d 302, 306 (7th Cir. 2002). The marital testimonial privilege may be invoked by the witness-spouse to preclude the witness-spouse's testimony about any topic to "protect against the impact of the testimony on the marriage." Id. at 306. Because the marital testimonial privilege has historically been available to a witness-spouse only in a federal criminal proceeding, and not in a civil proceeding such as the present civil rights claim, Snooks's motion will be treated as an invocation of only the marital communications privilege. Ryan v. Commissioner, 568 F.2d 531, 544 (7th Cir. 1977), cert. denied, 439 U.S. 820 (1978) (declining to decide whether the privilege might ever be available in a civil case, and concluding that the privilege would at most be available in civil cases only where "a spouse who is neither a victim nor a participant observes evidence of the other spouse's crime"); see also Katherine O. Eldred, "Every Spouse's Evidence": Availability of the Adverse Spousal Testimonial Privilege in Federal Civil Trials, 69 U. Chi. L. Rev. 1319, 1326 (2002) ("District courts in the . . . Seventh Circuit deny the [marital testimonial] privilege in federal civil cases altogether.").*fn1
The marital communications privilege covers all confidential communications made during a valid marriage with three exceptions: 1) communications not made in absolute confidence; 2) statements made as part of a joint criminal enterprise; and 3) descriptions of observations. United States v. Short, 4 F.3d 475, 478 (7th Cir. 1993); see also United States v. Gray, 2010 U.S. Dist. LEXIS 29467, 11-12 (N.D. Ind. Mar. 26, 2010). Stanfield presents no evidence that the Snooks' marriage of twenty years is somehow invalid or that his wife had a role in the alleged acts of sexual harassment. Rather, Stanfield argues that Snooks's sexual relations with his wife do not constitute communications-that his wife's knowledge of his general health and sexual abilities can be categorized as mere observations and therefore fall outside of the privilege.
In admitting a defendant's ex-wife's testimony about his car theft conspiracy and her observations of his forging car titles, the Seventh Circuit found that a district court did not err because the marital communications privilege did not cover her observations during the marriage, and did not apply to his statements made in the presence of a third party or as part of her limited co-conspirator role. United States v. Short, 4 F.3d 475, 478 (7th Cir. 1993). The Seventh Circuit reasoned that "[b]ecause testimony about first-hand observations would not affect the decision to confide in one's spouse, the privilege does not extend to descriptions of observations." Short, 4 F.3d at 478. Such reasoning would appear to be line with Pereira v. United States, 347 U.S. 1, 6, 74 S. Ct. 358 (1954), in which the Supreme Court observed that the marital communications privilege "generally, extends only to utterances, and not to acts." Pursuing this line of reasoning, Stanfield narrows the privilege to cover speech, or at most nonverbal conduct that is clearly a substitute for oral communications.
However, some federal district courts have recognized that some acts are communicative and consequently are privileged. See United States v. Buhe, 128 F.3d 1440, 1444 (10th Cir. 1997) (listing federal district court decisions and concluding that the majority rule among federal courts holds that acts intended to convey a confidential message are privileged); see also State v. Pelletier, 149 N.H. 243, 247 (N.H. 2003) (holding as privileged any conversation or act performed by a spouse "attributable to the husband-wife relation, i.e., that which might not be spoken or done openly in public as tending to expose personal feelings and relationships or tending to bring embarrassment or discomfiture to the participants if done outside the privacy of the marital relation"). In denying a district court's admission of a defendant's wife testimony as to whether she had observed him perform certain sexual acts, the Tenth Circuit stated:
We believe the accepted norm in this country is that intimate sex acts between marriage partners are communication and an important expression of love. [ . . . ] If we limit the marital communications privilege as narrowly as the government seeks in the instant case, a spouse could testify to every aspect of the marital sexual relationship. There is something inherently offensive in that idea.
Buhe, 128 F.3d at 1444-1445 (declining to decide whether testimony about physical acts involving sex between marriage partners are within the marital communications privilege and instead finding an exception for child abuse to permit wife's testimony). In the present case, Stanfield similarly narrows the privilege but also frames the discovery question posed to Snooks's wife as simply whether Snooks is able to perform a sex act. Yet such an interpretation would vitiate the marital communications privilege. Compelling Snooks's wife to answer questions about her husband's sexual abilities contradicts the Seventh Circuit's explanation that the privilege exists to "ensure that spouses generally . . . feel free to communicate their deepest feelings to each other without fear of eventual exposure in a court of law." Westmoreland, 312 F.3d at 306. The Court finds that such intimate knowledge is not mere observations by a wife of her husband's conduct, but instead non-verbal communicative acts that merit the protection of the marital communications privilege.
II. The State Marital Privilege
Turning to the related state claims of intentional infliction of emotion distress, as well as violation of the Gender Violence Act, those are governed by Illinois statute § 735 ILCS 5/8-801. See Fed. Rules Evid. R. 501 ("But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision."). In Illinois, either spouse may testify for or against the other so long as neither testifies as to "any communication or admissions made" by either to the other, with a few exceptions that are inapplicable in the present case. People v. Muzard, 210 Ill. App. 3d 200, 212 (1st Dist. 1991). Stanfield cites Illinois cases in which a defendant's wife testified as to his criminal acts, which reasoned that "mere description by one spouse of general non-communicative conduct is not protected by the marital privilege." People v. Krankel, 105 Ill.App.3d 988, 991, 61 Ill.Dec. 565, 434 N.E.2d 1162, 1164 (1982). However, the Court's finding that a wife's knowledge of her husband's sexual abilities is premised on precisely the communicative nature of those acts. Cf. People v. Rettig, 88 Ill. App. 3d 888, 891 (Ill. App. Ct. 1980) (finding no marital privilege violation when a wife testified as to what was written on a package that her defendant-husband stole because she was providing a description, not relaying a communication between herself and her husband). This reasoning is in line with the Illinois Supreme Court precedent: "[w]hether the divorced wife's knowledge of her husband's [sexual] conduct in the respect here referred to came to her as the result of his admissions to her or of her ...