Bluesbrother - thanks for the quotes. Interesting how they really used to highlight this lack of "clergy" but how that particular wording has sort of disappeared from their material. Probably because they want the flexibility to use penitent-clergy privilege.
Sir82 - I wasn't really thinking about the CO/DOs but you're right, they are paid. Local elders, obviously are strictly volunteer. Also, your point about the sheparding calls is dead on. Why on earth would he go alone?
If he went alone, wouldn't privilege hold? Or would the fact that the elder was speaking to both husband and wife negate privilege? If he followed the rules and went with another elder (which in a situation with obvious volitility you would think he naturally would want to do), then this judge has already ruled that privilege is thrown out.
Clearly, the WTS legal department is involved here and wants to avoid at all costs the elder having to testify to protect their own assets. If Sir82s senario is close to what happened, I could see the WTS having some liability for pastorial malpractice.