The “common-interest” doctrine is an important legal principle that enables parties with common legal interests to share information without waiving the attorney-client privilege or work product protection. Until recently, Minnesota had not formally accepted the doctrine, even though almost every other state and nearly every federal court of appeals had done so. However, in its recent decision in Energy Policy Advocates v. Ellison (A20-1344, Sept. 28, 2022), the Minnesota Supreme Court for the first time formally adopted the doctrine. Going forward, Minnesota attorneys can rely with assurance on the common-interest doctrine when formulating joint legal strategies with co-counsel.
A legal advocacy group sues the Minnesota Attorney General under the MGDPA for documents about climate change litigation
Energy Policy Advocates v. Ellison arose out of a legal advocacy organization’s public records requests to the Minnesota Attorney General’s Office. The organization, which according to its website seeks to “bring[] transparency to energy policy,”[1] requested various documents from the Attorney General under the Minnesota Government Data Practices Act (“MGDPA”). Its MGDPA requests sought information about the Attorney General’s involvement in multistate climate change litigation, including potential communications with the Democratic Attorneys General Association and other state attorneys general.
In response, the Attorney General initially produced no documents, claiming the documents requested were “private data on individuals” under the MGDPA.[2] Energy Policy Advocates then sued the Attorney General in Ramsey County District Court for access to the documents.
The district court dismissed the plaintiff’s claims, relying on certain provisions in the MGDPA, the common-interest doctrine, and other privilege claims. The plaintiff appealed, and the Court of Appeals partially affirmed and partially reversed. Most significantly, the Court of Appeals ruled the district court erred by relying on the common-interest doctrine, which it said had not yet been recognized in Minnesota. The Attorney General then sought review at the Minnesota Supreme Court.
The common-interest doctrine enables parties to strategize with third parties whose legal interests are aligned with theirs
Adopted in most state and federal jurisdictions, the common-interest doctrine is a close relative of the attorney-client privilege. As a general rule, when a lawyer and her client include a third party in their communications, those communications are no longer confidential, and the attorney-client privilege is waived as a result.
This waiver rule has important exceptions that allow parties to strategize with other parties, as is often necessary in litigation or other legal matters. One exception, often referred to as the “joint client” doctrine, applies when two clients have common legal interests and are jointly represented by the same lawyer. In such cases, the joint client doctrine allows the two clients to communicate with their joint lawyer or each other without waiving privilege. The joint client doctrine has been adopted in Minnesota for several decades.[3]
As the Attorney General pointed out in its reply brief in Energy Policy Advocates v. Ellison, the common-interest doctrine is a sensible extension of the joint client doctrine. Like the joint client doctrine, the common-interest doctrine allows parties to craft legal strategy with other parties, but it applies where the parties are represented by different counsel, which is sometimes necessary for ethical reasons. Thus, “the common-interest doctrine avoids punishing parties for choosing (or needing) to retain their own counsel by allowing coordination among different attorneys with clients facing common interests.”[4]
The Minnesota Supreme Court formally adopts the common-interest doctrine
Despite the partisan political undertones of the litigation, the parties in Energy Policy Advocates v. Ellison did not seriously dispute the wisdom of the common-interest doctrine. The Attorney General asked the Supreme Court to recognize the doctrine. Energy Policy Advocates did not argue against its adoption, but only suggested that its application should be limited in this case. Unsurprisingly, the parties were joined by numerous amici curiae from various points of view who submitted briefs urging that the doctrine be formally adopted in Minnesota. Some amici even suggested that Minnesota had already adopted the doctrine in 1942 in Schmitt v. Emery, 2 N.W.2d 413 (Minn. 1942) and that the Court of Appeals erred in concluding otherwise.
In its opinion, the Minnesota Supreme Court recognized the common-interest doctrine, holding it applies when:
(1) two or more parties, (2) represented by separate lawyers, (3) have a common legal interest (4) in a litigated or non-litigated matter, (5) the parties agree to exchange information concerning the matter, and (6) they make an otherwise privileged communication in furtherance of formulating a joint legal strategy.[5]
When these circumstances are met, an exchange of information between two parties will not result in waiver of the attorney-client privilege. In adopting the doctrine, the Supreme Court officially brought Minnesota into step with various other states and nearly all of the U.S. Courts of Appeals, including the Eighth Circuit.
After adopting the common-interest doctrine, the Supreme Court clarified and limited the doctrine’s scope. First, the court held the doctrine prevents waiver only between parties that share common legal interests. A party cannot communicate with a third party with whom it only shares a “purely commercial, political, or policy interest” and then use the common-interest doctrine to keep those communications from adversaries. The doctrine only applies to communications made for the purpose of “formulating a joint legal strategy.”[6]
Second, the Court decided that the common-interest doctrine’s protections against waiver of the attorney-client privilege also extend to attorney work product. Following other state and federal courts, the Supreme Court determined that documents or communications containing “an attorney’s opinions, conclusions, mental impressions, trial strategy, and legal theories in materials prepared in anticipation of litigation” do not become discoverable if the doctrine’s six criteria are met.[7]
Finally, the court rejected Energy Policy Advocates’ argument that the common-interest doctrine should be weaker in the context of the MGDPA. While certain MGDPA provisions require government agencies to balance legal privileges against open-government interests, the court determined the provisions of the MGDPA at issue in this case did not require balancing.[8]
Going forward, Minnesota attorneys can rely on the common-interest doctrine when formulating joint legal strategies with third parties that have similar legal interests as their clients in litigation or in other legal matters.
The court also decided issues about the attorney-client privilege and the MDGPA related to the functioning of the Attorney General’s Office
In its opinion, the Supreme Court also issued two rulings that bear on the government’s—and specifically the Attorney General’s—ability to restrict public access to information about its activities. First, the court ruled that the attorney-client privilege can apply to inter-office communications between and among representatives of the Attorney General’s Office, even if no discrete “client” of the Attorney General’s Office is readily ascertainable.[9]
Second, in perhaps the most sharply-contested part of the case, the Supreme Court decided that under the MGDPA, the Attorney General may withhold certain requested records as “private data on individuals,” whether or not those records contain any information about “individuals.” The Attorney General had used an MGDPA provision containing this “private data on individuals” language to resist Energy Policy Advocates’ request, and the Supreme Court approved the Attorney General’s interpretation of the MGDPA. It should be noted that this part of the decision, which involved a knotty statutory interpretation issue of the MGDPA, drew a lengthy dissent signed by three justices. It will be worth watching the Minnesota legislature to see whether it will seek to amend the MGDPA for the purpose of clarifying the precise kinds of documents and records the Attorney General and other public law agencies can withhold.
If you have questions about the implications of this decision, FMJ’s Litigation Group is here to help. Please contact Patrick Rooney at patrick.rooney@fmjlaw.com or Brad Hutter at brad.hutter@fmjlaw.com with your questions.
[1] See http://epadvocates.org/ (accessed on October 3, 2022).
[2] See Minn. Stat. §13.65, subd. 1.
[3] Schmitt v. Emery, 2 N.W.2d 413 (Minn. 1942), overruled in part on other grounds by Leer v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 308 N.W.2d 305 (Minn. 1981).
[4] See Appellant’s Reply Brief at 13 (citing RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 76 cmt. b. (2000)).
[5] Opinion at 9-10.
[6] Id.
[7] Id. at 10-11.
[8] Id. at 11-12.
[9] However, the court did not delineate the precise circumstances in which internal communications within the Attorney General’s Office may be protected by the attorney-client privilege.
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