This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1767
In re Kathryn M. Truscott f/k/a Kathryn M. Ranheim, Petitioner
Stacey A. McNeely, et al., Respondents,
vs.
Kathryn M. Truscott f/k/a Kathryn M. Ranheim, Petitioner,
Heartland Information Services, Inc., d/b/a Heartland Investigative Group, et al., Respondents.
Filed May 23, 2016 Writ granted Smith, Tracy, Judge
Hennepin County District Court File No. 27-CV-14-13676
William M. Topka, Robert B. Bauer, Dougherty, Molenda, Solfest, Hills & Bauer, P.A., Apple Valley, Minnesota (for petitioner)
Ryan R. Dreyer, Stacy L. Kabele, Morrison Sund PLLC, Minnetonka, Minnesota (for respondents Stacy A. McKneely, Makenna Borg, Logan E. Borg, and P.B.)
Jessica J. Theisen, Cousineau McGuire Chartered, Minneapolis, Minnesota (for respondents Heartland Information Services, Inc. and Nicholas Foster)
Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith,
Tracy, Judge. UNPUBLISHED OPINION
SMITH, TRACY, Judge
Petitioner Kathryn Truscott seeks a writ of prohibition preventing the district court
from enforcing its order allowing discovery of privileged communications between
Truscott and her Arizona divorce attorney, Edina Strum. Because the district court
abused its discretion when it determined that Truscott waived the attorney-client privilege
and consequently exceeded its authority to order production of privileged information, we
grant Truscott’s petition for a writ of prohibition.
FACTS
In 2013, Truscott initiated divorce proceedings in Arizona. Truscott later retained
Heartland Investigative Group1 to locate her then-husband in Minnesota and investigate
his financial and living circumstances. Heartland eventually located Truscott’s husband
and determined that he was staying at respondent Stacey McNeely’s home in Eden
Prairie.
With Truscott’s authorization, Heartland searched the garbage at the McNeely
residence on several occasions and prepared a report based on its discoveries. The report
contained information about McNeely and her three children (collectively respondents),
including medical and financial records, as well as social security numbers. Heartland
sent the report to Truscott. Truscott reviewed the report and shared it with Strum. Strum
then disclosed it to Truscott’s husband’s divorce attorney.
1 Respondent Heartland Information Services, Inc. (d/b/a Heartland Investigative Group) did not participate in Truscott’s petition for a writ of prohibition.
2 Respondents learned of the Heartland report and brought suit against Truscott,
Heartland, and Nicholas Foster (a Heartland employee), alleging four claims:
(1) intrusion upon seclusion (invasion of privacy), (2) conversion or civil theft,
(3) trespass, and (4) intentional infliction of emotional distress.
In her answer, Truscott admitted that she hired and paid Heartland to investigate
her husband, but she denied all other allegations in the complaint. She also raised
affirmative defenses including failure to state a claim, statute of limitations, waiver,
estoppel, laches, ratification, justification, election of remedies, failure of conditions
precedent, payment, release, unclean hands, and “any or all of the affirmative defenses
contemplated by the Minnesota Rules of Civil Procedure.”
Respondents’ counsel deposed Truscott. Truscott testified that she hired
Heartland to locate her husband and provide further information about his financial
condition. She also testified that she wanted to know more about the environment her
children would potentially be visiting after the divorce. In response to questions,
Truscott claimed that she did not know if Strum planned to send the report to her
husband’s attorney or that Strum would produce it in the lawsuit.
Respondents’ counsel asked Truscott if she and Strum had discussed sending or
producing the Heartland report in the divorce proceedings, and Truscott answered, “Yes.”
Counsel asked Truscott about any specific discussions to which Truscott replied, “I don’t
really recall, other than, like, that they were coming. Like, letting her know that they
were on their way.” Counsel also inquired if Truscott had directed anybody not to
3 disseminate the Heartland report, and Truscott answered that she gave that instruction to
Strum.
At several points in the deposition, respondents’ counsel asked Truscott if she had
relied on Strum’s legal advice in determining whether the Heartland report should be
produced, and if so, to whom. Truscott gave one-word answers such as “[a]bsolutely” or
“[y]es.” During this line of questioning, Truscott’s attorney objected repeatedly,
asserting attorney-client privilege.
After the deposition, respondents served a subpoena duces tecum on Strum, asking
for documents and testimony regarding: (1) Heartland’s investigation, (2) advice given
to Truscott regarding the investigation, (3) decisions Strum made regarding the Heartland
investigation, and (4) advice Strum gave about dissemination of the Heartland report.
Respondents also moved to compel additional deposition testimony from Truscott.
Respondents maintained that Truscott waived her attorney-client privilege by putting
reliance on her attorney’s advice “at issue.” Truscott moved to quash or limit the
subpoena and opposed respondents’ motion to compel.
The district court issued an order on the motions. In relevant part, the district
court granted respondents’ motion to compel additional testimony from Truscott and
denied Truscott’s motion to quash. The district court limited the scope of Strum’s
deposition to decisions she made about the Heartland investigation and the advice she
gave about the report’s dissemination. The district court also limited Truscott’s
additional deposition to “those questions she was instructed not to answer and closely-
related follow-up questions.”
4 The district court determined that Truscott had waived her attorney-client privilege
by testimony and by putting privileged communications “at issue”:
Here, Truscott testified about her reliance on advice from attorney Strum. Minnesota has recognized that a client may waive attorney-client privilege by testimony. . . . .... In her deposition responses to questions about her intent and motives, Truscott volunteered that she relied on attorney Strum with regard to the disclosure and circulation of the Heartland report and its attachments. Thus, Truscott placed her protected communications with attorney Strum at issue, making their communications relevant. Truscott expressly stated that she relied upon the advice of attorney Strum regarding disclosure and manner of circulating the Heartland report—for disclosure to [Truscott’s husband’s divorce attorney] as well as marking documents confidential, redacting some information, and/or recalling the documents. Because Truscott put her communications with attorney Strum at issue in response to questions about her intent and motives in disclosing and circulating the Heartland report, she has waived the attorney-client privilege.
Truscott petitions for a writ of prohibition.
DECISION
I.
Truscott contends that she is entitled to a writ of prohibition because the district
court erroneously ordered the production of attorney-client privileged information.
Discovery orders are interlocutory and generally not appealable as a matter of right, but
“a writ of prohibition is the appropriate form of relief when a court has exceeded its
power to order discovery.” Loveland v. Kremer, 464 N.W.2d 306, 308 (Minn. App.
1990) (quotation omitted).
5 Prohibition is an extraordinary remedy that this court issues only when (1) the
district court is about to exercise judicial power that is (2) unauthorized by law and
(3) “will result in injury for which there is no other adequate remedy at law.” Wasmund
v. Nunamaker, 277 Minn. 52, 54, 151 N.W.2d 577, 579 (1967). A writ of prohibition
should be reserved for “extreme cases” to “secure order and regularity” in the district
courts. Weidel v. Plummer, 243 Minn. 476, 480, 68 N.W.2d 245, 247 (1955).
Respondents contend that, even assuming the district court’s discovery order
constitutes an abuse of discretion, Truscott is not entitled to a writ of prohibition because
she has an alternative remedy in a posttrial appeal. We disagree. Truscott currently has
the untenable choice between revealing attorney-client privileged communications or
facing contempt findings for refusing to comply with the district court’s discovery order.
See Thermorama, Inc. v. Shiller, 271 Minn. 79, 84, 135 N.W.2d 43, 46 (1965) (discussing
that, in appropriate cases, a writ of prohibition may be used to avoid “the harshness of the
rule which requires an attorney to subject himself to a finding of contempt and then
appeal from the contempt order before a pretrial order can be reviewed”). Postjudgment
appeal will not allow Truscott to undo the harm of the discovery order: the revelation of
privileged communications that she had with her divorce attorney. When a district court
exceeds its authority to order discovery, a writ of prohibition is an appropriate form of
relief. See Loveland, 464 N.W.2d at 308.
II.
Truscott argues that the district court abused its discretion when it compelled
discovery of privileged information. A district court has wide discretion to issue
6 discovery orders, and, absent a clear abuse of that discretion, a discovery order will not
be disturbed. In re Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007). “We
review a district court’s [discovery] order for an abuse of discretion by determining
whether the district court made findings unsupported by the evidence or by improperly
applying the law.” Id. The district court set out two bases for Truscott’s privilege
waiver: waiver by testimony and waiver by placing counsel’s advice “at issue.” We
address each in turn.
A. Waiver by Testimony
Minnesota has codified its attorney-client privilege:
An attorney cannot, without the consent of the attorney’s client, be examined as to any communication made by the client to the attorney or the attorney’s advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client’s consent.
Minn. Stat. § 595.02, subd. 1(b) (2014). A client may waive the privilege by “conduct or
affirmative consent.” State ex rel. Schuler v. Tahash, 278 Minn. 302, 308, 154 N.W.2d
200, 205 (1967). “[A] client impliedly waives the privilege where . . . he himself
discusses the contents of the professional communication . . . .” Id.
In their brief, respondents identify only one instance in which they assert Truscott
discussed the contents of an attorney-client communication:
Q: Did you ever tell anybody not to disclose these documents to anyone? And by “these documents,” I mean the Heartland reports and their attachments. A: Yes. Q: Who did you tell that to? A: Edina [Strum].
7 Respondents’ counsel then asked “When did you tell her that?” Truscott responded, “I
don’t know the date.” Truscott’s attorney then objected on the basis of attorney-client
privilege and said, “We’re not getting into that.”
Respondents’ counsel continued his questioning, asking for more details around
Truscott’s instruction to her lawyer not to disclose the Heartland report. He asked
Truscott about the time frame of her instruction, the number of communications with her
counsel, the subject of communications with counsel, and so on. Throughout this
questioning, Truscott’s lawyer objected on the basis of privilege, and respondents’
counsel insisted that his questions were permissible because they did not seek the
contents of privileged communications.
Our supreme court has described with specificity the types of communications that
are protected by the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
Kobluk v. Univ. of Minn., 574 N.W.2d 436, 440 (Minn. 1998) (quotation omitted). A
threshold matter in determining privilege is whether the communication is one “in which
legal advice is sought or rendered.” Id. at 444. “‘[A]s a barrier to testimonial disclosure,
the privilege tends to suppress relevant facts and must be strictly construed.’” Id. at 440
(quoting Kahl v. Minn. Wood Specialty, Inc., 277 N.W.2d 395, 399 (Minn. 1979)).
8 Truscott’s purported instruction to her lawyer not to disclose the Heartland report
was not given for the purpose of seeking legal advice and therefore is not protected by the
attorney-client privilege. See id. at 444. Consequently, Truscott’s testimony about the
contents of that instruction, or the fact that Truscott gave it, did not waive the attorney-
client privilege regarding other, privileged communications. And because the instruction
was not privileged, Truscott’s objection to testimony concerning it was not well-founded.
B. At-Issue Waiver
The district court also determined that Truscott waived the attorney-client
privilege by placing the privileged communications with her lawyer “at issue.” The
existence of an exception to a testimonial privilege is reviewed de novo. See State v.
Expose, 872 N.W.2d 252, 257 (Minn. 2015) (determining whether Minnesota’s therapist-
client privilege is subject to a “threats exception”).
As an initial matter, Truscott contends that we are constrained from adopting a
rule of at-issue waiver because of codification of the privilege in statute. See Minn. Stat.
§ 595.02, subd. 1(b). We disagree. It is true that we do not generally “read into the plain
language of a statute exceptions and limitations which do not appear.” State ex rel.
Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991). Accordingly, when a
privilege is a creature of statutory creation, Minnesota appellate courts have deferred to
the legislature’s ability to create exceptions. See, e.g., Expose, 872 N.W.2d at 258-59
(rejecting a “threats exception” to the statutory therapist-client privilege because the
existence of other statutorily-provided exceptions “demonstrate[s] that the Legislature
knows how to create an exception . . . when it wishes to do so”).
9 The attorney-client privilege, however, is not a creature of statute; the statute
codified the common-law privilege. State v. Walen, 563 N.W.2d 742, 752 (Minn. 1997).
The statute is silent on waivers to the attorney-client privilege. See Minn. Stat. § 595.02,
subd. 1(b). But waivers not listed in the statute exist in caselaw. See Walen, 563 N.W.2d
at 752 (recognizing that a client implicitly waives the attorney-client privilege when the
client “alleges a breach of duty to him by the attorney” (quotation omitted)); State ex rel.
Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 691 (Minn. App. 2000) (discussing the
crime-fraud exception to the attorney-client privilege), review denied (Minn. Apr. 25,
2000). When a new waiver to the attorney-client privilege warrants recognition,
Minnesota’s appellate courts may grant it. See Walen, 563 N.W.2d at 753 (holding that a
defendant who asserts an ineffective-assistance-of-counsel claim waives the attorney-
client privilege on all relevant communications).
We turn now to the question of at-issue waiver. While our supreme court has
recognized some implied waivers of the attorney-client privilege, see id. at 752, it has not
yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that
federal caselaw has recognized an at-issue waiver, but the court declined to address the
issue because it was not necessary in the case before it. See Kern v. Janson, 800 N.W.2d
126, 132-33 n.3 (Minn. 2011). Nor has this court recognized an at-issue waiver.
We therefore look at the treatment of the at-issue waiver in other jurisdictions.
Generally, a party makes an at-issue waiver when “through an affirmative act, the
asserting party has placed the protected information at issue by making it relevant.”
Shukh v. Seagate Tech., LLC, 872 F. Supp. 2d 851, 857 (D. Minn. 2012) (quotation
10 omitted); see also Baker v. Gen. Motors Corp., 209 F.3d 1051, 1055 (8th Cir. 2000) (“A
waiver of the attorney-client privilege may be found where the client places the subject
matter of the privileged communication at issue.”). The at-issue waiver prevents a party
from relying “on privileged communications to support its claim or defense and then
shield[ing] the underlying communications from scrutiny by the opposing party.” In re
Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000). A common example of an
at-issue waiver is when a client uses reliance on legal advice as a defense. See Baker,
209 F.3d at 1055; see also Grand Jury Proceedings, 219 F.3d at 182-83 (observing that a
party’s assertion of an advice-of-counsel defense is “[t]he quintessential example” of
putting privileged communications “at issue,” resulting in an implied waiver (quotation
omitted)).
After Truscott petitioned for a writ of prohibition, we asked the parties for formal
briefing on the at-issue waiver. Their briefing collectively establishes that, while other
jurisdictions have adopted the at-issue waiver, disagreement exists as to the appropriate
test for that waiver. Truscott identifies four predominant tests for the at-issue waiver:
(1) the automatic-waiver rule; (2) the Hearn test, (3) the balancing test, and (4) the
anticipatory-waiver test. Respondents disagree that the balancing test represents a
discrete test.
Automatic-waiver rule
Under the automatic-waiver rule, a party “automatically waives the privilege upon
assertion of a claim, counterclaim, or affirmative defense that raises as an issue a matter
to which otherwise privileged material is relevant.” Pub. Serv. Co. of N.M. v. Lyons, 10
11 P.3d 166, 171 (N.M. Ct. App. 2000) (quotation omitted). The automatic-waiver rule’s
application is reflected in Indep. Prods. Corp. v. Loew’s, Inc., 22 F.R.D. 266 (S.D.N.Y.
1958). In Loew’s, the defendants tried to depose one of the plaintiffs who invoked
constitutional privileges and refused to answer certain questions. 22 F.R.D. at 270. The
court concluded that the plaintiffs, by initiating a civil action and therefore subjecting
themselves to being called to testify, had waived their constitutional privileges. Id. at
277. Some courts have criticized the automatic-waiver rule’s disregard of the important
role played by the attorney-client privilege. See, e.g., Frontier Refining Inc. v. Gorman-
Rupp Co., 136 F.3d 695, 700 (10th Cir. 1998) (stating that the automatic-waiver rule
“does not adequately account for the importance of the attorney-client privilege”).
Hearn test
In the 1975 case of Hearn v. Rhay, the federal district court for the Eastern District
of Washington articulated three factors for an at-issue waiver:
(1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his [claim or] defense.
68 F.R.D. 574, 581 (E.D. Wash. 1975). In Hearn, the court concluded that prison
officials who were defendants in a civil rights lawsuit put the legal advice they received
at issue by asserting the affirmative defense of qualified immunity. Id. at 577, 581. The
Hearn test is often cited as the majority rule, but has received some criticism in caselaw.
See, e.g., Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994)
12 (criticizing the Hearn test’s emphasis on relevance and fairness); Smith v. Kavanaugh,
Pierson & Talley, 513 So. 2d 1138, 1145-46 (La. 1987) (stating that the Hearn test “is no
test at all because the assertion of almost any claim or defense can be called an
affirmative act, and privileged material will usually be relevant and vital to the opposing
party, or else he would not make the effort to obtain it” (quotation marks omitted));
Lyons, 10 P.3d at 172-73 (noting that the Hearn test “represents the majority view” but
declining to adopt the Hearn test because it would “undermine the full and frank
communications at the heart of the attorney-client privilege” (quotation marks omitted)).
Balancing test
Truscott identifies what she calls the “balancing test,” referring to a 1988 decision
from the United States Court of Appeals for the First Circuit. See Greater Newburyport
Clamshell All. v. Pub. Serv. Co. of N.H., 838 F.2d 13, 20 (1st Cir. 1988). Under this
balancing test, the analysis begins with a presumption in favor of maintaining the
privilege. Id. The court then weighs the parties’ competing interests:
In a civil damages action, however, fairness requires that the privilege holder surrender the privilege to the extent that it will weaken, in a meaningful way, the defendant’s ability to defend. That is, the privilege ends at the point where the defendant can show that the plaintiff’s civil claim, and the probable defenses thereto, are enmeshed in important evidence that will be unavailable to the defendant if the privilege prevails. The burden on the defendant is proportional to the importance of the privilege. The court should develop the parameters of its discovery order by carefully weighing the interests involved, balancing the importance of the privilege asserted against the defending party’s need for the information to construct its most effective defense.
13 Id. The court also articulated guidelines to assist district courts with requests for
privileged information:
First, [the party seeking discovery] should demonstrate that the material to be discovered is relevant to their case. . . . Secondly, [the party seeking discovery] should demonstrate why it would be unreasonably difficult for them to obtain the information elsewhere or that redundant evidence will be helpful to their case. They do not have to prove that it is absolutely unavailable from other sources. Of course, the more the requested discovery would intrude into the privilege, the greater should be the showing of need and lack of reasonable alternative sources.
Id. at 22. Applying these principles in Greater Newburyport, the First Circuit held that the
defendants in a civil-rights action could have only limited discovery into the plaintiffs’
privileged communications with their counsel. Id. at 15, 22.
Anticipatory-waiver test
Finally, under the anticipatory-waiver test, the attorney-client privilege is waived
when “a privilege-holder pleads a claim or a defense in such a way that he will be forced
inevitably to draw upon a privileged communication at trial in order to prevail.” Smith,
513 So. 2d at 1145; see Rhone-Poulenc Rorer Inc., 32 F.3d at 863 (“The advice of
counsel is placed in issue where the client asserts a claim or defense, and attempts to
prove that claim or defense by disclosing or describing an attorney client
communication.”). The anticipatory-waiver test takes the focus off of the privileged
information’s relevance to an adversary’s claim or defense and places it on the party
asserting the attorney-client privilege. See Smith, 513 So. 2d at 1146 (“A rule of waiver
that turns on the opponent’s need for information would subject the privilege to the
14 hazards of fortune: the continued existence of one’s privilege would depend not on how
one has used or abused the privilege, but rather on who one’s adversary happens to be.”).
In Smith, the plaintiff asserted at her deposition that she had no knowledge of a
legal malpractice claim until her new attorney told her of the previous lawyer’s
mishandling of her husband’s succession. Id. The court determined that the plaintiff’s
testimony may have constituted a partial waiver because she had indicated “an intention
to use the disclosed communication” to explain her failure to file suit before the statute of
limitations expired. Id. Ultimately, however, the court determined that the plaintiff
could avoid disclosure of her privileged communications “by stipulating that she will not
introduce . . . any communication on the same subject into evidence at trial.” Id. at 1146-
47.
Application to the District Court’s Discovery Order
Here, the district court determined that because Truscott’s “intent and motives”
regarding disclosure of the report are relevant to elements of respondents’ tort claims, and
because Truscott “volunteered that she relied on attorney Strum with regard to the
disclosure,” Truscott put Strum’s legal advice “at issue” regarding Truscott’s intent and
motives and thereby waived the attorney-client privilege. In reviewing that decision, we
find it unnecessary to determine which at-issue test, if any, Minnesota courts would
follow because Truscott has not placed privileged information “at issue” under any of the
proposed tests.
We begin with the test disputed by the parties: the balancing test. Under that test,
privileged communications are “at issue” when an adversary’s claim or defense is
15 “enmeshed in important evidence that will be unavailable to the [other party] if the
privilege prevails.” Greater Newburyport, 838 F.2d at 20. “Enmeshed” means more
than just that the communications are “relevant to the subject matter of the action”;
rather, it means that the “privileged information itself has independent relevance to the
claim or defense because of its privileged status.” Sorenson v. H&R Block, Inc., 197
F.R.D. 206, 208 (D. Mass. 2000). In Sorenson, the court reasoned that the privileged
conversations from Greater Newburyport were “enmeshed” because they gave rise to the
plaintiffs’ claim of deprivation of their Sixth Amendment rights. Id. at 207-08 In this
case, Truscott’s privileged communications are not “enmeshed” with respondents’ claims
because it is Truscott’s general state of mind, not the privileged status of her attorney-
client communications, that is relevant to respondents’ claims. See id. at 208. In
addition, respondents do not face the requisite undue hardship in obtaining evidence
relevant to Truscott’s state of mind. See Greater Newburyport, 838 F.2d at 22.
Respondents were able to inquire about why Truscott obtained the Heartland report and
ask her about disclosing the unredacted attachments, and they are able to ask Truscott
about any instructions she gave her lawyer regarding disclosure.
Nor did Truscott waive her attorney-client privilege under the remaining tests.
The Hearn test, automatic-waiver rule, and anticipatory-waiver test require an affirmative
act by the waiving party; it is not enough under any of the tests that a defendant’s state of
mind is relevant to an element of a plaintiff’s claim against the defendant. See Hearn, 68
F.R.D. at 581; Smith, 513 So. 2d at 1145; Lyons, 10 P.3d at 171. The district court
reasoned that Truscott waived the attorney-client privilege by testifying to her reliance on
16 counsel. In cases finding an implied waiver based on reliance on advice of counsel, a
client has “taken the affirmative step in the litigation to place the advice of the attorney in
issue.” Rhone-Poulenc Rorer Inc., 32 F.3d at 863.
Here, Truscott was deposed. During her deposition, the following exchanges
occurred:
Q: And were you relying on [Strum’s] legal advice to figure out who to send documents to? A: Absolutely. .... Q: And did you obtain legal advice from [Strum] specifically about disclosing these documents to [Truscott’s husband’s divorce attorney]? A: No. .... Q: But you were relying on Edina Strum’s legal advice to figure out who to— A: Right. Q: —give these documents to? A. I’m assuming she knows her role and the laws in Arizona. .... Q: Did you take any steps, after you found out they were sent, to try to get them back or to try to stop the disclosure of them? A: I wasn’t aware I could do that. [DEFENSE COUNSEL]: I’ll object to the extent that it requires attorney-client privilege. .... Q: Anything other than communications with your attorney? A: No, I wasn’t aware there was anything else I could do. Q: Again, you were relying on Edina Strum’s legal advice— A: Exactly. Q: —in what to do? A: Exactly. .... Q: Do you know why Edina Strum sent the documents over to [Truscott’s husband’s divorce attorney]? A: I have no idea why she sent them.
17 Q: And again, you’re just relying on her legal advice in order to do the appropriate thing? A: Right. .... Q: Did you discuss redacting the sensitive information from these documents before Edina Strum sent them to [Truscott’s husband’s divorce attorney]? [DEFENSE COUNSEL]: I’ll object to the extent that it calls for attorney-client privilege. . . . Don’t answer that question. Q: Again, you were just relying on Edina Strum’s legal advice to do the right [thing]; is that correct? A: Yes.
Truscott was compelled in a deposition—in a case in which she is a defendant—to
answer respondents’ questions as to whether she relied on the advice of her counsel. She
gave one-word responses to the questions. These compelled responses are not
affirmative steps taken by a client to place privileged communications “at issue.” See
Shukh, 872 F. Supp. 2d at 857. Respondents have cited no case where a defendant’s
answer to such a question in a deposition effects an implied waiver of the attorney-client
privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants
in depositions if they relied on the advice of their counsel in taking an action. Defendants
who wisely sought legal advice before terminating an employee, publishing a news
article, or taking any other number of actions later giving rise to a claim where their state
of mind is at issue would find their privileged communications subject to discovery
simply because they truthfully responded in a deposition that they relied on the advice of
counsel. Such an implied waiver could chill parties from being candid with their counsel
or even seeking legal advice. See Kahl, 277 N.W.2d at 398 (“The attorney can only
effectively fulfill his roles as counselor, intermediary, and advocate if the client, assured
18 of confidentiality, is wholly free to completely and candidly disclose all the facts,
favorable or unfavorable, to him.”); see also Rhone-Poulenc Rorer Inc., 32 F.3d at 862
(“The privilege forbidding the discovery and admission of evidence relating to
communications between attorney and client is intended to ensure that a client remains
free from apprehension that consultations with a legal adviser will be disclosed.”); Smith,
513 So. 2d at 1146 (“Once all the technical requirements of a privilege have been met,
courts should not impose their own sense of the equities . . . without adequately
considering the full, system-wide benefits of a privilege.”).
The requirement of an affirmative step by the client to put advice of counsel at
issue in the litigation is consistent with other Minnesota caselaw on the attorney-client
privilege. In cases finding waiver by testimony, the clients’ revelation of privileged
communications was voluntary. See State v. Thompson, 306 N.W.2d 841, 843 (Minn.
1981) (concluding that, even if communications were privileged, the privilege was fully
waived through the client’s pretrial disclosure of documents); Tahash, 278 Minn. at 306-
08, 154 N.W.2d at 204-05 (finding that a criminal defendant waived privilege by
voluntarily testifying to his attorney’s advice to plead guilty); Swanson v. Domning, 251
Minn. 110, 118, 86 N.W.2d 716, 722 (1957) (stating that waiver exists “[w]here the client
voluntarily testifies to [privileged] statements alleged to have been made to an attorney or
statements made by the attorney to the client”).
Truscott insists that she has no plans to assert a reliance-on-counsel defense in this
case. She made the same assertion to the district court in her memorandum of law
supporting her motion to quash. We agree with Truscott that she has not raised a
19 reliance-on-counsel defense through the generic statement in her answer that
respondents’ claims “may be barred . . . by any or all of the affirmative defenses
contemplated by the Minnesota Rules of Civil Procedure.” See Smith, 513 So. 2d at 1146
(stating that an implied waiver does not exist unless the party has “committed himself to
a course of action that will require the disclosure of a privileged communication”). If
Truscott attempts to raise the defense, respondents may seek appropriate relief and the
district court may consider whether such an affirmative step implies a waiver of the
attorney-client privilege. At present, however, Truscott has not affirmatively asserted the
reliance-on-counsel defense and has not by implication waived the attorney-client
privilege.
We take a final moment to note that this case is different than the typical case
involving waiver of the attorney-client privilege. Here, Truscott’s lawyer was not just an
advice-giver; rather, Strum actually disclosed the report and was part of the chain of
events that gave rise to respondents’ claims. Accordingly, respondents may inquire of
Truscott and Strum regarding nonprivileged information, including any instructions (or
the lack thereof) that Truscott gave her lawyer regarding disclosure. But Strum’s role in
the report’s disclosure does not open the door to discovery of privileged communications
for purposes of establishing Truscott’s intent as an element of respondents’ claims.
Unless Truscott, through her own actions, voluntarily waives her attorney-client
privilege, truly privileged communications remain protected. See Swanson, 251 Minn. at
118, 86 N.W.2d at 722.
20 Because Truscott did not waive her attorney-client privilege by voluntarily
testifying to the contents of privileged communications or by placing privileged
communications “at issue,” the district court abused its discretion by ordering discovery
of privileged information. Truscott is entitled to a writ of prohibition to prevent
enforcement of the portion of the district court’s discovery order allowing discovery of
privileged information.
Writ granted.