I was involved in a slip and fall case, where I fell on a deep crack in the sidewalk and fractured my ankle in five places. I filed a lawsuit against the city without an attorney and now last night they served my wife with a subpoena to testify and produce medical records? Is this legal? Can I claim husband/wife privilege?
My wife and I are separated and do not have a good relationship, and I would prefer it if she didn't testify... my understanding is that under Evidence Code Section 930 I can block her from testifying? Is this correct? Thanks.
In most, if not all, states witnesses (including spouses) can be subpoenaed. What may be produced, what may be asked/answered, whether proper may be challenged in Court. If you filed suit because you could not find an attorney to represent you, that is understandable. If you filed suit because you did not want to hire an attorney, then this is a precursor of what to expect. Good luck.
It is normal and appropriate, particularly if your wife witnessed the slip and fall, or if she has knowledge of your condition after the accident. You could probably prevent her from answering any question which seeks communications you had with her based on the marital communication privilege. However, if you do that, she would probably be precluded from testifying about those issues at trial. If you want her to be able to testify at trial about your pain and suffering, and the way in which the accident affected your quality of life, you probably have to allow her to testify at her deposition.
Short answer: yes. She must comply with the subpoena. Only certain communications between husband and wife are privileged. This is a complicated issue and it sounds like your case involves complicated medical issues as well. You should seriously consider hiring a personal injury attorney. Most take cases on a contingency fee basis, which means that you do not have to pay them anything out of pocket up front and you do not have to pay any fee if you do not win your case. Trying to do this kind of case on your own is extremely difficult. Good luck!
If you fractured your ankle in five places you need an attorney. Even if the city acknowledges liability, which they won't. you need to know the value of your claim. The City will not offer you nearly what the case is worth if you are pro per. I normally tell people they do not need an attorney, but you need one.
As to the subpoena, my colleagues are correct, you can argue the marital privilege but then she would be precluded from testifying at the time of trial, and she should have a loss of consortium claim, which is likely statute barred now.
I do not recommend going to any depositions without counsel. Hopefully they didn't take your deposition already. a knowledgeable personal attorney will help you properly answer the questions. The city's attorney is going to use the information to twist your answers.
Robert Andrew Michael BurnsFamily Law AttorneySan Diego, CA ·
The subpena as far as I can tell from your sparse post is appropriate. There is a spousal privilege but I'd think that you'd want her to testify if she can assist in establishing your fall and/or your damages.
There is nothing unusual with family members receiving subpoenas related to a civil action of another family member, particularly if they have knowledge of the case, and can testify as to issues related to the case.
You should consult with an attorney. You will need to consider whether preventing your wife from testifying pursuant to the privilege, if available, would benefit your case. Good luck.
What the City is doing is legal and appropriate; your wife is a witness to your injuries and to your general damages. She should have been made a plaintiff as well.
Look: as others have said, you have a GREAT injury case. You are making a huge mistake by proceeding without counsel, especially if you have photos of the sidewalk, etc. That's still not necessarily enough to win, because cases against municipalities have their own complications.
You really should get an attorney. I promise you, any of those of us who do these cases will get you such a better result than you will on your own that it will be worth it. There are a million ways you can screw up your case, and this situation is just the tip of the iceberg.
Michael Elliott RubinsteinPersonal Injury LawyerBeverly Hills, CA ·
Sorry to hear about your slip and fall. My first question is why on earth you would attempt to sue the City and win without the assistance of an attorney (unless you're an attorney yourself). Besides for that, the spousal privilege applies to criminal matters. Thus, for example, if you were being prosecuted, your wife could exercise her spousal right not to testify against you. It does not apply to civil matters such as the one you mentioned. Good luck with your case.
