STATE OF MINNESOTA IN COURT OF APPEALS A23-1284
Energy Transfer LP (formerly known as Energy Transfer Equity, L.P.), et al., Appellants,
vs.
Greenpeace International (also known as Stichting Greenpeace Council), et al., Defendants,
Unicorn Riot, et al., Respondents.
Filed May 6, 2024 Affirmed in part, reversed in part, and remanded Segal, Chief Judge
Hennepin County District Court File No. 27-CV-22-9790
Richard D. Snyder, Fredrikson & Byron, P.A., Minneapolis, Minnesota; and
Lawrence Bender, Fredrikson & Byron, P.A., Bismarck, North Dakota (for appellants)
Christopher M. Proczko, Sapientia Law Group, PLLC, Minneapolis, Minnesota; and
Ryan R. Simatic, Biersdorf & Associates, P.A., Minneapolis, Minnesota (for respondents)
Cassandra B. Merrick, Madel, P.A., Minneapolis, Minnesota (for amicus curiae Tony Webster)
Mark R. Anfinson, Minneapolis, Minnesota (for amici curiae Reporters Committee for Freedom of the Press, et al.)
Mahesha P. Subbaraman, Subbaraman, PLLC, Minneapolis, Minnesota (for amicus curiae The Forum for Constitutional Rights) Considered and decided by Cochran, Presiding Judge; Segal, Chief Judge; and
Smith, John, Judge. ∗
SYLLABUS
1. The protections of the Minnesota Free Flow of Information Act (MFFIA),
Minn. Stat. §§ 595.021-.025 (2022), are not limited only to newsgathering information
obtained by means of lawful, nontortious conduct.
2. In a proceeding to enforce a third-party subpoena, a district court may not
require the third party to produce a privilege log or submit information for in camera
inspection that is privileged under the MFFIA and does not fall within a statutory
exception.
OPINION
SEGAL, Chief Judge
Appellants, who constructed and own the Dakota Access Pipeline (DAPL),
challenge a district court order that denied their motion to enforce a third-party subpoena
against respondents, a nonprofit media organization and one of its journalists, who were
embedded with and reported on DAPL protests. 1 Appellants assert that the district court
erred in determining that respondents are entitled to the protections of the MFFIA against
disclosure of newsgathering information because the protections do not extend to
information acquired through respondents’ allegedly unlawful and tortious conduct.
∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 1 This appeal was brought pursuant to Minn. Stat. § 595.024, subd. 3.
2 By notice of related appeal, respondents assert that the district court erred by
requiring them to produce a privilege log, and to make available for in camera review at
the request of the district court, information that is protected from disclosure by the
MFFIA. Respondents also assert that they are entitled to an award of attorney fees.
We affirm the district court’s determination that the information gathered by
respondents during their coverage of the DAPL protests is privileged under the MFFIA and
that neither exception provided in the MFFIA applies. But we conclude that the district
court erred by requiring respondents to produce a privilege log and to submit for in camera
review, if requested by the court, information that is privileged under the MFFIA. We
decline to consider respondents’ claim for attorney fees because the district court did not
rule on that request. We therefore affirm in part, reverse in part, and remand for further
proceedings.
FACTS
Appellants Energy Transfer LP, et al. (collectively Energy Transfer), sued
Greenpeace International and other entities and persons (collectively Greenpeace), in state
court in North Dakota in 2019. Respondents Unicorn Riot and Niko Georgiades were not
sued by Energy Transfer and are not otherwise parties to the North Dakota action. In the
North Dakota suit, Energy Transfer alleged that Greenpeace had engaged in a civil
conspiracy to stop construction of the DAPL, a 1,172-mile-long oil pipeline extending from
North Dakota to Illinois. In addition to the civil-conspiracy claim, Energy Transfer brought
numerous tort claims against Greenpeace, including claims for trespass, conversion,
nuisance, defamation, and tortious interference with business relations. The allegations
3 stemmed primarily from protests that took place between July 2016 and November 2016,
as the DAPL neared completion. According to Energy Transfer, thousands of protesters
gathered at the DAPL construction site near Lake Oahe in North Dakota and engaged in
demonstrations that included locking themselves to construction equipment, setting up
roadblocks, threatening law enforcement and DAPL personnel, and burning vehicles,
which shut down construction.
Unicorn Riot is a Minnesota-based entity that identifies itself as a “non-profit media
organization of journalists” that “engages and amplifies the stories of social and
environmental struggles from the ground up.” Georgiades has been a member-journalist
of Unicorn Riot since its founding in 2015. Members of Unicorn Riot, including
Georgiades, were present at and provided media coverage of the DAPL protests. The
coverage included written reports published on Unicorn Riot’s website, and updates,
interviews, and livestreams posted on Unicorn Riot’s social-media accounts. Several
members of Unicorn Riot were arrested during the protests, but any criminal charges
brought against them were eventually dismissed.
In March 2021, Energy Transfer served Unicorn Riot 2 with subpoenas duces tecum
that were captioned showing venue in Hennepin County District Court. The subpoenas
contained requests for 16 categories of documents, seeking:
2 From this point forward, we refer to Unicorn Riot and Georgiades collectively as “Unicorn Riot,” except where Georgiades is separately identified.
4 Documents and communications, including video and audio recordings, concerning actual or planned Direct Action[3] relating to Energy Transfer, Dakota Access, and/or DAPL, . . . concerning the use of, or trespass onto, any Dakota Access land or DAPL construction site for any actual or planned Direct Action[, and] . . . concerning any action by you or any other person, group, or entity to halt, impede, obstruct, block, delay, or interfere with DAPL construction and/or to damage or attempt to damage DAPL construction equipment.
The subpoenas also requested: “[c]ommunications, including video and audio recordings,
concerning Energy Transfer, Dakota Access, or DAPL, including concerning any actual or
possible Direct Action, between or involving [Unicorn Riot] and: (i) Greenpeace,” or 15
other named entities, including any joint plans for such action; information concerning
financial or other support to Unicorn Riot, Greenpeace, or any other person or entity in
support of the protest activity; information related to the payment of attorney’s fees, court
costs, fines, or bail related to any opposition to the pipeline; and other similar requests.
Finally, the subpoenas sought information sufficient to identify the organizational
structure of Unicorn Riot, “including but not limited to employees, supporters, participants,
agents, members, [and] volunteers,” among others; information identifying Unicorn Riot’s
social-media accounts; communications distributed via social media or email; and all other
published materials, including “any drafts, edits, or revisions, and all documents and
communications concerning the funding, development, research, drafting, editing, review,
revision, approval, publishing, or dissemination of such materials.”
3 The phrase “Direct Action” is defined in the subpoenas as “any action to halt, impede, harm, injure, obstruct, block, delay, or interfere with the activities of any company.”
5 Unicorn Riot responded to the subpoenas with a letter from its counsel, in which
Unicorn Riot asserted the MFFIA privilege, noting that the requests sought “documents
related to and arising out of Unicorn Riot’s newsgathering activities near the [DAPL].”
Unicorn Riot also asserted protections under the First Amendment of the U.S. Constitution
and objected to the requests claiming that they were vague, overly broad, and unduly
burdensome under Minn. R. Civ. P. 45.03 and 45.04.
In response to several of the subpoena requests, the letter advised that Unicorn Riot
had no responsive documents because it “did not engage in any Direct Action relating to
Energy Transfer, Dakota Access, or DAPL”; “is not aware of having received ‘any monies
or other financial support, supplies, items, equipment, food, lodging, transportation,
weapons, implements, things, or other tangible support’ from any of the named
Defendants”; and “had no ‘understandings, joint plans, or agreements’ with the Defendants
in the underlying action concerning the Plaintiffs in the underlying action.” The letter also
provided the website addresses and social-media pages where all of Unicorn Riot’s
published information could be found, including its published reports and a documentary
related to the protests.
Not satisfied with the response, Energy Transfer filed a motion in Hennepin County
District Court to compel Unicorn Riot to comply with the subpoenas. Energy Transfer
asserted, consistent with its argument on appeal, that the MFFIA and First Amendment
only protected “lawful news gathering,” and therefore did not apply because Unicorn Riot
and its members “engaged in unlawful conduct” that included trespassing on the DAPL
construction site during the protests. Energy Transfer argued, in the alternative, that
6 Unicorn Riot should be required to produce a privilege log for any information that it
claimed to be privileged.
Unicorn Riot opposed the motion, arguing that the requested documents were
“newsgathering materials” and therefore privileged under the MFFIA and the First
Amendment, and that the subpoenas were overly broad and unduly burdensome. Unicorn
Riot also requested an award of attorney fees. In an affidavit, Georgiades described the
role of Unicorn Riot and its journalists in reporting on the protests:
Unicorn Riot member journalists provided our own transportation and accommodations while reporting on the demonstrations and protesters. We carried press passes and identified ourselves as press. We conducted interviews, broadcast live videos through social media, and reported on the camp, the protestors, and the demonstrations. We did not share resources with the protestors, and we did not participate in any planning of protests, demonstrations, or any other actions made in protest of the construction and operation of the Dakota Access Pipeline.
The district court denied the motion to compel. The district court determined that,
“[u]nder a plain reading of the statute, Georgiades and Unicorn Riot [were] news media
whose sources and unpublished information should be protected”; the subpoenas were
“almost certain to request the disclosure of information and documents privileged by the
[MFFIA]”; and Energy Transfer failed to establish that the information requested fell under
a statutory exception. But the district court noted the possibility that not all of the requested
documents were privileged, and that “[a]s it stands, [Energy Transfer has] no notice of
whether any documents exist, much less the specific nature of the privilege claimed for
7 each one.” The district court therefore ordered Unicorn Riot to “produce a log of all
responsive documents and answers claimed as privileged.” The order further provided:
If called upon by the Court, Niko Georgiades and Unicorn Riot shall produce, for in camera inspection, any and all documents identified in their respective privilege logs. The Court, in its discretion, shall consider any requests for in camera review on[ce] the logs have been produced.
The district court did not address Unicorn Riot’s First Amendment argument because “the
documents that would be privileged by that legal theory are almost certainly . . . privileged
under the MFFIA.” The district court also declined to address the argument that the
subpoenas were overly broad and burdensome and did not rule on Unicorn Riot’s request
for attorney fees.
Unicorn Riot filed a motion for relief from the portion of the district court’s order
requiring Unicorn Riot to produce a privilege log and to submit documents for in camera
review if requested by the district court. Unicorn Riot contended the “bespoke procedure”
created by the district court required Unicorn Riot to include in the privilege log
“documents that are protected from compelled disclosure.” Unicorn Riot also argued that
it was improper for the district court to require a privilege log be produced “without first
requiring [Energy Transfer] to make a threshold showing of materiality, necessity, and
unavailability of the subpoenaed materials.” The district court denied Unicorn Riot’s
motion.
ISSUES
I. Did the district court err in determining that the MFFIA applies to information gathered by Unicorn Riot relating to the DAPL protests?
8 II. Did the district court err in ordering Unicorn Riot to produce a privilege log and, if requested by the district court, to produce materials identified in the log for in camera review?
III. Is Unicorn Riot entitled to an award of attorney fees?
ANALYSIS
I. The district court did not err in determining that the MFFIA applies to information gathered by Unicorn Riot relating to the DAPL protests.
Energy Transfer argues that the district court erred in determining that the
information sought from Unicorn Riot is privileged under the MFFIA. Whether an
evidentiary privilege applies is a question of law reviewed de novo. State v. Expose, 872
N.W.2d 252, 257 (Minn. 2015); see also Energy Pol’y Advocs. v. Ellison, 980 N.W.2d 146,
155 (Minn. 2022) (reviewing the scope of a privilege de novo). We also review de novo
questions of statutory interpretation involving the applicability of a statutory privilege.
State v. Conrad (In re Hope Coal.), 977 N.W.2d 651, 657 (Minn. 2022).
The MFFIA provides: “In order to protect the public interest and the free flow of
information, the news media should have the benefit of a substantial privilege not to reveal
sources of information or to disclose unpublished information.” Minn. Stat. § 595.022. To
that end, the MFFIA prohibits the disclosure of certain protected materials. Specifically,
Minn. Stat. § 595.023 provides:
Except as provided in section 595.024, no person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public shall be required by any court, grand jury, agency, department or branch of the state, or any of its political subdivisions or other public body, or by either house of the legislature or any committee, officer, member, or employee
9 thereof, to disclose in any proceeding the person or means from or through which information was obtained, or to disclose any unpublished information procured by the person in the course of work or any of the person’s notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained.
The MFFIA contains two exceptions to the prohibition on disclosure. The first, set
out in section 595.024, relates to information sought in connection with certain criminal
offenses. The exception applies if the district court determines that the person seeking the
disclosure has established “by clear and convincing evidence”:
(1) that there is probable cause to believe that the specific information sought (i) is clearly relevant to a gross misdemeanor or felony, or (ii) is clearly relevant to a misdemeanor so long as the information would not tend to identify the source of the information or the means through which it was obtained, (2) that the information cannot be obtained by alternative means or remedies less destructive of first amendment rights, and (3) that there is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice.
Minn. Stat. § 595.024, subd. 2.
The second exception, set out in section 595.025, applies to defamation actions
“where the person seeking disclosure can demonstrate that the identity of the source will
lead to relevant evidence on the issue of actual malice.” Minn. Stat. § 595.025, subd. 1.
This section, which is the only other statutory exception in the MFFIA, requires a
determination:
(a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation;
10 (b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.
Id., subd. 2.
Here, the record supports, and Energy Transfer does not challenge, at least for the
purposes of this appeal, the district court’s finding that Unicorn Riot was “directly engaged
in the gathering, procuring, compiling, editing, or publishing of information for the purpose
of transmission, dissemination or publication to the public” and therefore qualifies as a
news media organization. Minn. Stat. § 595.023. Unicorn Riot provided extensive media
coverage of the DAPL protests, which included livestreaming videos through social-media
platforms, interviewing protesters, and written coverage on Unicorn Riot’s website. The
coverage had a clear ideological bent, as one of Unicorn Riot’s stated goals is to “engage[]
and amplif[y] the stories of social and environmental struggles,” but the MFFIA does not
require that media coverage be politically neutral to qualify for the privilege against
disclosure of information, and Energy Transfer acknowledges as much.
Energy Transfer also does not assert that either statutory exception, sections 595.024
or 595.025, applies. Rather, Energy Transfer contends that the MFFIA “does not and
should not apply to protect information acquired during or related to a purported
newsgatherer’s unlawful conduct.” Energy Transfer argues that Unicorn Riot’s conduct at
the DAPL protests “went beyond legitimate newsgathering when it engaged in deliberate,
unlawful trespass onto [Energy Transfer’s] private construction sites” and in doing so
“Unicorn Riot stepped outside of the protection afforded by the MFFIA.”
11 We reject Energy Transfer’s argument for three reasons. First, it would require us
to add the word “lawful” into section 595.023 such that the privilege against disclosure of
information would extend only to “the [lawful] gathering, procuring, compiling, editing, or
publishing of information.” But in interpreting a statute, we may not “add words to the
plain language of a statute to fit with an identifiable policy.” Gen. Mills, Inc. v. Comm’r
of Revenue, 931 N.W.2d 791, 800 (Minn. 2019); see also Energy Pol’y Advocs., 980
N.W.2d at 158-59 (“[W]e may not add words to a statute that the Legislature has not
supplied.” (quotation omitted)). The legislature included two and only two exceptions to
the privilege against disclosure accorded under the MFFIA. “If the Legislature intended
other exceptions to apply, the Legislature could have” easily included them. Hope Coal.,
977 N.W.2d at 658.
Second, Energy Transfer’s argument conflicts with the provisions of the MFFIA
because it would judge the applicability of the privilege based on the means used for
newsgathering. The MFFIA does not allow for such a distinction. To the contrary, the
statute protects a news gatherer from being required “to disclose . . . [the] means from or
through which information was obtained.” Minn. Stat. § 595.023.
Third, the cases cited by Energy Transfer are easily distinguished. Five of the six
cases cited by Energy Transfer involve lawsuits brought against reporters for defamation,
trespass, or other torts, and address the scope of First Amendment protections from such
claims. For example, Energy Transfer cites Food Lion, Inc. v. Capital Cities/ABC, Inc.,
which involved two reporters who submitted resumes containing false information and
were hired by a grocery store. 194 F.3d 505, 510 (4th Cir. 1999). The reporters did so as
12 part of an investigation into a report alleging that the grocery store was “engaging in
unsanitary meat-handling practices.” Id. Once on the job, the reporters secretly videotaped
the meat-handling practices at the store. Some of the footage was broadcast as part of a
news segment critical of those practices. Id. at 510-11. The grocery store sued the
television station and reporters, asserting claims of fraud, breach of duty, trespass, and
unfair trade practices. Id. at 511.
The television station argued, as applicable here, that the First Amendment offered
protections from liability because the reporters “were engaged in newsgathering.” Id. at
520. The Fourth Circuit rejected this argument, concluding that the First Amendment
offers no general immunity to reporters from the tort claims asserted against them in the
suit. Other cases cited by Energy Transfer are in accord, including Galella v. Onassis, 487
F.2d 986, 995 (2d Cir. 1973) (“Crimes and torts committed in news gathering are not
protected.”); Desnick v. American Broadcasting Companies, 44 F.3d 1345, 1351 (7th Cir.
1995) (“[T]here is no journalists’ privilege to trespass.”); Nicholson v. McClatchy
Newspapers, 223 Cal. Rptr. 58, 63 (Cal. Ct. App. 1986) (stating “reporters are not
privileged to commit crimes and independent torts in gathering the news”); and Prahl v.
Brosamle, 295 N.W.2d 768, 781 (Wis. Ct. App. 1980) (concluding “the claimed
constitutional privilege to trespass does not exist”).
In addition to the fact that none of these cases are binding on Minnesota courts, the
issue for which Energy Transfer cites the cases is not apposite to the issue presented in this
appeal. All five cases involve claims brought against reporters or news organizations for
torts allegedly committed by the reporters while gathering news. The cases address
13 whether the First Amendment protects reporters and news organizations from liability for
the alleged tortious conduct. But Energy Transfer has not sued Unicorn Riot for damages
arising out of Unicorn Riot’s alleged conduct. The issue in this appeal is whether Unicorn
Riot can be compelled to disclose information under the MFFIA. The MFFIA does not
offer immunity from liability for tortious conduct. It offers protection against being
required to disclose unpublished newsgathering information and the sources and means
used for newsgathering.
The five cases are also distinguishable because they do not involve claims of
privilege under the MFFIA. The statutory protections offered under the MFFIA are
broader than those afforded by the First Amendment. Our supreme court has expressly
recognized that the MFFIA “was intended to provide additional protection [beyond those
provided by the First Amendment] to reporters and their employers against subpoenas from
litigating parties.” State v. Turner, 550 N.W.2d 622, 631 (Minn. 1996) (noting that the
MFFIA was enacted in reaction to Branzburg v. Hayes, 408 U.S. 665 (1972), in which the
Supreme Court declined to adopt a broad testimonial privilege for reporters under the First
Amendment).
The remaining case relied on by Energy Transfer, United States v. Sanusi, again is
not binding on Minnesota courts and is readily distinguished. 813 F. Supp. 149 (E.D.N.Y.
1992). In Sanusi, the defendant was charged with committing and conspiring to commit
credit-card fraud. Id. at 151. As part of the criminal investigation, federal agents executed
a search warrant at the defendant’s apartment. Id. A CBS camera crew was present for
the execution of the search warrant and videotaped the search, even though the United
14 States Attorney involved in the case instructed the agents not to permit CBS to join the
search. Id. at 151, 161. The defendant subpoenaed CBS, but CBS refused to produce the
videotape. Id. at 151.
The federal district court acknowledged that the First Amendment provided
journalists with some level of privilege but opined that the “privilege for newsgathering is
not absolute.” Id. at 154. The court ultimately determined that the privilege did not apply
and ordered CBS to produce the tape and, in doing so, noted that CBS had obtained the
videotape through trespass. Id. at 160-61. But CBS’s conduct was only one part of the
court’s analysis, which notably also included the determination that “[t]he in camera
review of the tape revealed that it contains potentially exculpatory evidence” and was “not
obtainable from any other source.” Id. at 159-60. And although the court ordered CBS to
produce the tape, it permitted CBS “to obscure the identity of a confidential source.” Id.
at 161.
Unlike Sanusi, this is not a criminal case. And, as noted above, the MFFIA contains
an exception for information relevant to crimes set out in section 595.024. That exception
would seemingly apply to the scenario presented in Sanusi, given that the information
sought—the videotape—was relevant to a felony, could not be obtained by any other
means, contained potentially exculpatory evidence, and was obtained through improper
conduct—trespass. Thus, none of the cases cited by Energy Transfer support the argument
it advances on this appeal.
In sum, we reject Energy Transfer’s contention that the MFFIA applies only when
a newsgatherer obtains information while engaged in lawful, nontortious conduct, and we
15 affirm the district court’s determination that the MFFIA privilege applies to Unicorn Riot’s
newsgathering information related to the DAPL protests.
II. The district court erred in requiring Unicorn Riot to produce a privilege log and to produce privileged records for in camera review when requested.
By notice of related appeal, Unicorn Riot argues that the district court erred in
requiring Unicorn Riot to produce a privilege log and ordering it to produce, at the court’s
discretion, information identified in the log for in camera review. Unicorn Riot maintains
that the order is in conflict with the MFFIA. District courts are generally accorded broad
discretion in discovery matters, and such orders will not be reversed absent an abuse of
discretion. Underdahl v. Comm’r of Pub. Safety (In re Comm’r of Pub. Safety), 735
N.W.2d 706, 711 (Minn. 2007). When a discovery order is based on statutory
interpretation, as is the case here, appellate courts review issues of statutory interpretation
de novo. 1300 Nicollet, LLC v. County of Hennepin, 990 N.W.2d 422, 431 (Minn. 2023).
Energy Transfer argues that the district court acted well within its discretion in
ordering Unicorn Riot to produce a privilege log. We agree with Energy Transfer that a
district court generally has the authority to order a nonparty to prepare a privilege log, but
we disagree that the district court has authority to order such a log for materials protected
from disclosure under the MFFIA in the absence of a statutory exception.
The disclosure prohibition in the MFFIA declares that no person engaged in news
gathering
shall be required by any court, grand jury, agency, . . . the state, . . . political subdivisions or other public body, or by either house of the legislature . . . , to disclose in any proceeding the person or means from or through which information was
16 obtained, or to disclose any unpublished information procured by the person in the course of work[, including] the person’s notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained.
Minn. Stat. § 595.023 (emphasis added). This prohibition on disclosure is broad and
comprehensive, subject only to two narrow exceptions. And neither the district court nor
Energy Transfer have offered any conceivable method of preparing a privilege log that
would not result in the disclosure of privileged information.
Our analysis is informed by the supreme court’s recent opinion in Hope Coalition,
which involved a challenge to a subpoena issued in a criminal-sexual-conduct case for in
camera review of the counseling records of an alleged sexual-assault victim. The statutory
privilege interpreted by the supreme court in Hope Coalition provides that “[s]exual assault
counselors may not be allowed to disclose any opinion or information received from or
about the victim without the consent of the victim.” 977 N.W.2d at 657 (emphasis added)
(quoting Minn. Stat. § 595.02, subd. 1(k) (2020)). The supreme court interpreted the
phrase “may not” in the statute as being “prohibitive,” and determined that the district court
was without authority to order disclosure of the records even for the limited purpose of
in camera review. Id. at 658-59.
The supreme court explained that the statutory privilege established “a broad grant
of protection” from disclosure of the privileged records and a very narrow exception
allowing disclosure “for investigations and proceedings in cases involving neglect or
termination of parental rights” if the district court finds “good cause” for ordering
disclosure. Id. at 658. The supreme court thus held that the privilege “does not permit
17 disclosure of privileged records in a criminal proceeding, even for in camera review,
without the consent of the victim.” Id. at 653; see also State v. Martinez Ramirez (In re
State), 985 N.W.2d 581, 583 (Minn. App. 2023) (citing Minn. Stat. § 595.02, subd. 1(d),
(g) (2022)) (applying the supreme court’s decision in Hope Coalition and determining that
the statutory privileges for medical and mental-health records similarly prohibit disclosure
of such records to a district court for in camera review in a criminal prosecution without
the patient’s consent or an applicable statutory exception), rev. granted (Minn. Mar. 14,
2023) and appeal dismissed (Minn. July 31, 2023).
The reasoning of the supreme court in Hope Coalition appears equally applicable
here. Although the MFFIA protects a different type of information—newsgathering
information rather than counseling records—it similarly creates a broad statutory grant of
protection with narrow enumerated exceptions. We thus conclude that a district court may
not order a privilege log or require the production for in camera review of information that
is privileged under the MFFIA. Accordingly, we reverse that portion of the district court’s
order.
Our reversal, however, does not necessarily end this matter. As the district court
noted, it is possible that not all the information requested by Energy Transfer is privileged. 4
4 Energy Transfer cites in its brief the following requests as seeking nonprivileged documents: “information about Unicorn Riot’s structure and members; its policies regarding direct action, financial support provided to it by other entities related to the pipeline protests; and reports, articles, press releases, statements, and internet postings prepared by Unicorn Riot related to Appellants and/or the pipeline.” We note that, while the district court characterized Unicorn Riot as asserting a “blanket claim of privilege” to all requests, Unicorn Riot did respond to a number of the requests. For example, in the letter from Unicorn Riot’s counsel, it provided the internet addresses where its published
18 The privilege extends not to Unicorn Riot as an entity, but only to the disclosure of
unpublished newsgathering information and information that may disclose the source and
means of newsgathering. We therefore remand this matter to the district court to determine
(1) whether there is any discoverable information requested in the subpoenas with respect
to which Unicorn Riot has not responded or asserted that the information is privileged, and
(2) whether the requests impose an undue burden or are otherwise objectionable under
Minn. R. Civ. P. 45.03 or 45.04(a).
III. We decline to address the issue of attorney fees for the first time on appeal.
Finally, Unicorn Riot argues that it is entitled to an award of attorney fees. Unicorn
Riot bases its request on Minn. R. Civ. P. 45.03(a), which provides:
A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney’s fee.
Unicorn Riot contends that Energy Transfer’s subpoenas imposed an undue burden and
that an award of fees is appropriate as a sanction.
As previously noted, Unicorn Riot requested an award of attorney fees from the
district court, but the district court did not rule on the request. “This court generally does
information can be found. It also advised that it did not engage in any “Direct Action,” “is not aware of having received ‘any monies or other financial support’” from the DAPL protesters named in the North Dakota suit, and “had no ‘understandings, joint plans, or agreements’ with th[os]e Defendants.”
19 not address issues presented in but not decided by the district court.” Singelman v.
St. Francis Med. Ctr., 777 N.W.2d 540, 543 (Minn. App. 2010) (quotation omitted). In
addition, attorney fees on appeal are not properly requested in a brief. See Minn. R. Civ.
App. 139.05 (“A party seeking attorneys’ fees on appeal shall submit such a request by
motion under Rule 127.”). We therefore decline to address this request for the first time
on appeal. On remand, the district court shall address Unicorn Riot’s request for attorney
fees.
DECISION
We affirm the district court’s determination that the privilege under the MFFIA
applies to Unicorn Riot’s newsgathering information related to the DAPL protests and that
the exceptions in the MFFIA do not apply. But we reverse the portion of the district court’s
order requiring Unicorn Riot to produce a privilege log for all information for which
Unicorn Riot is claiming the MFFIA privilege and to submit information to the district
court for in camera review at the court’s discretion. We remand this matter to the district
court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.