In the Matter of: Walmart Inc., Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1926

In the Matter of:
Walmart Inc.,
Relator,

vs.

Anoka County,
Respondent.

Filed September 14, 2020
Reversed and remanded
Ross, Judge

Office of Administrative Hearings
File No. 8-0305-36242

Mark R. Bradford, Edward F. Fox, Jeffrey R. Mulder, Maria P. Brekke, Bassford Remele,
Minneapolis, Minnesota; and

Samantha J. Ellingson, Aaron R. Thom, Thom Ellingson, PLLP, Minneapolis, Minnesota
(for relator)

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
amicus curiae USA Property Tax Associates)

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota (for amicus curiae
Alliance Property Consultants, Inc.)

Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Segal , Chief Judge; and
Bratvold, Judge.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
Anoka County prepared and presented continuing- legal-education materials
discussing strategies employed by county attorneys to defend property-tax appeals brought
by big-box retailers. Relator Walmart Inc. sought a copy of the presentation from the
county by submitting a request under the Minnesota Government Data Practices Act, but
the county refused, claiming the presentation was work product not subject to disclosure.
An administrative -law judge agreed with the county. We reverse because, even if the
presentation constitutes work product, by broadly presenting the material to third parties
without taking appropriate measures to maintain its confidentiality, the county waived any
work-product protection and the common-interest doctrine would not prevent disclosure.
We remand for the administrative-law judge to amend his order consistent with our
holding.
FACTS
This appeal centers on a presentation for continuing-legal -education (CLE) credit
offered by the Minnesota County Attorneys Association in February 2019. The
presentation, entitled “Litigation of a Big Box Property Tax Appeal,” discussed strategies
that county attorneys might employ to defend against property -tax appeals by businesses
with expansive retail facilities, including Walmart, Target, and Menards.
Assistant Anoka County A ttorneys Jason Stover and Chris tine Carney developed
the presentation materials. Stover contacted the county attorneys association, proposing a
program during which presenters would discuss how Anoka County had responded to
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big-box retailers’ property -tax appeals. The association’s education director, Stacy
Albrecht, responded with interest. The planners scheduled the CLE for online presentation
on February 27, 2019. They contemplated limiting attendance to current county attorneys,
retired county attorneys, employees of county attorney offices, and county assessors.
The online CLE presentation occurred on schedule, attended by 76 viewers live and
six others later by recording. It was available only to those who could access it through the
password-protected “members only” section of the county attorneys association’s website.
An attorney representing Walmart, which had been involved in tax litigation against
Anoka County and other Minnesota counties, cited the Minnesota Government Data
Practices Act in May 2019 and made the following request of Anoka County:
I am requesting copies of the following government data:
(1) the webinar, video, or presentation entitled: 2019
Litigation of a Big Box Property Tax Appeal (On-demand
Video);
(2) any webinar, presentation, or CLE presented or
created by Jason Stover or Christine Carney; and
(3) any communications discussing a webinar,
presentation, or CLE relating to big box property tax appeal(s).
Anoka County refused to disclose any documents, maintaining that they were “attorney
data” and therefore not subject to disclosure under the data practices act.
Walmart filed a complaint with the Office of Administrative Hearings in July 2019,
alleging that the county’s nondisclosure violated the data practices act. The county then
disclosed data responding to the third part of Walmart’s data request—communications
discussing the CLE presentation. The disclosed data consisted mainly of emails detailing
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the planning and logistics leading up to the CLE presentation, as well as some feedback
from viewers after the CLE. The county refused to disclose the presentation itself.
An administrative-law judge (ALJ) considered the complaint. Walmart moved for
summary ju dgment based on the county’s nondisclosure, and the county moved for
summary judgment, arguing that the CLE presentation was protected as attorney work
product.
The ALJ granted summary judgment for the county , treating the presentation as
attorney work product not subject to disclosure. The ALJ also determined that the county
did not waive work-product protection by sharing the presentation with other county
attorneys because it was shared only with attorneys who had a “common interest” and who
would protect the information from disclosure to the county’s adversaries. Although
Minnesota has not recognized the common-interest exception to work-product waiver, the
ALJ relied on caselaw from other jurisdictions in concluding that the exception applied
here. The ALJ therefore dismissed Walmart’s complaint.
Walmart appeals by certiorari.
D E C I S I O N
Walmart appeals from the ALJ’s decision granting summary judgment. We may
reverse an agency decision when it is made based on an error in law, unsupported by
substantial evidence in the record, or arbitrary or capricious. Minn. Stat. § 14.69 (2018);
Webster v. Hennepin County, 910 N.W.2d 420, 427–28 (Minn. 2018). On appeal from
summary judgment in which there are no genuine issues of material fact, we consider
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whether the ALJ erred in its application of the law, a task we undertake de novo. Prior
Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002).
The Minnesota Government Data Practices Act governs access to data held by
government entities. Minn. Stat. § 13.01, subds. 2–3 (2018). The act provides generally
that data created and collected by government entities may be accessed by the public unless
an exception applies. Minn. Stat. § 13.03, subd. 1 (2018). The act creates an exception for
attorney data, providing that “the use, collection, storage, and dissemination of data by an
attorney acting in a professional capacity for a government entity shall be governed by
statutes, rules, and professional standards concerning discovery, production of documents,
introduction of evidence, and professional responsibility.” Minn. Stat. § 13.393 (2018).
The county argues that the CLE presentation is not subject to disclosure because it is
attorney work product under section 13.393, which incorporates existing law regarding
privileges and protections found in other substantive areas of law without expanding or
narrowing their scope. Kobluk v. Univ. of Minn., 556 N.W.2d 573, 576 (Minn. App. 1996),
rev’d on other grounds, 574 N.W.2d 436 (Minn. 1998). The scope of a privilege or
protection under the data practices act presents a question of law that we review de novo.
See id.
Walmart challenges the ALJ’s determinations both that the CLE presentation was
work product and that the county did not waive work-product protection by sharing the
presentation with third parties. We can assume for the purposes of this opinion that the
CLE presentation constituted work product because, when the county shared the
presentation with third parties, it clearly waived any consequent protection.
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Documents are protected as work product only when the protection is properly
claimed and is not waived or lost. State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d
676, 693 (Minn. App. 2000). Work-product protection generally is waived if the attorney
discloses the protected material to third parties “in circumstances in which there is a
significant likelihood that an adversary or potential adversary in anticipated litigation will
obtain it.” Restatement (Third) of the Law Governing Lawyers § 91(4) (2000). The
common-interest doctrine is an exception to work-product waiver that has been adopted in
some jurisdictions, but not expressly in Minnesota, and that applies when the protected
material is disclosed to individuals who share a “common interest.” Id. cmt. b. The ALJ
applied the doctrine here and concluded that the county did not waive its work-product
protection. For the following reasons, we reach a different conclusion, holding that the
common-interest doctrine would not apply. In doing so, we do not decide whether
Minnesota would adopt the common-interest doctrine in the proper case, which this is not.
Other courts have defined the common-interest exception in various ways, but never
in a fashion so broad as to apply in the circumstances here. The Eighth Circuit explained
that the exception applies when “two or more clients with a common interest in a litigated
or non-litigated matter are represented by separate lawyers and they agree to exchange
information concerning the matter.” In re Grand Jury Subpoena Duces Tecum, 112 F.3d
910, 922 (8th Cir. 1997) (quotation omitted). The Seventh Circuit reasoned that the
exception applies only when “the parties undertake a joint effort with respect to a common
legal interest” and is limited “to those communications made to further an ongoing
enterprise.” United States v. BDO Seidman, LLP, 492 F.3d 806, 816 (7th Cir. 2007). The
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D.C. Circuit noted that work-product protection is waived when information is disclosed
“to an adversary or a conduit to an adversary” and explained that the existence of a common
interest could help determine “whether the disclosing party had a reasonable basis for
believing that the recipient would keep the disclosed material confidential.” United States
v. Deloitte LLP, 610 F.3d 129, 140–41 (D.C. Cir. 2010). And the Supreme Court of New
Jersey has concluded that the common-interest exception “applies to communications
between attorneys for different parties if the disclosure is made due to actual or anticipated
litigation for the purpose of furthering a common interest, and the disclosure is made in a
manner to preserve the confidentiality of the disclosed material and to prevent disclosure
to adverse parties.” O’Boyle v. Borough of Longport, 94 A.3d 299, 317 (N.J. 2014)
The county presents a plausible common interest in its strategy -sharing materials
because county attorneys are tasked with defending tax appeals. See Minn. Stat. § 278.05,
subd. 2 (2018). But under the facts derived from the summary -judgment evidence as
construed in the light most favorable to Walmart, no version of the common-interest
doctrine extends far enough to cover these circumstances for at least two reasons: first, the
county allowed the presentation to be accessed by individuals who did not share the
common interest of defending tax appeals , and second, adequate safeguards did not exist
to ensure that the presentation would not be disclosed to adverse parties.
Email exchanges among the planners indicate that the y did not intend to limit
viewership to those who shared a common interest with county attorneys. In an early email
discussing the logistics of the presentation, for example, Stover asked Albrecht if the
webinar would be limited to employees of county attorney offices, and Albrecht responded
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that a few retired county attorneys would also attend. Stover did not object. But a former
county attorney might represent private clients adverse to the counties’ shared interest
opposing big- box tax appeals. And in another email, S tover asked Albrecht “whether
county assessors and their staffs can attend this webinar” because much of the information
would “be applicable to them as well.” County assessors do not share the duties or serve
an advocacy role defending counties in litigation, but are instead tasked with providing a
neutral assessment of real-estate market value. See Minn. Stat. § 273.08 (2018). Albrecht
also indicated that “other county staff” could attend if a county attorney invited them, but
the record does not establish that the other staff would share the interests of county
attorneys. And according to Walmart’s statement of undisputed facts, most of the
individuals who attended had not been involved in tax litigation. It does not appear from
the record that the planners expected the CLE to be restricted to individuals sharing a
common interest, and the record does not establish that all attendees fit such a restriction.
The planners also did not sufficiently ensure that the CLE presentation would not
be disclosed to adverse parties. The county did make some effort, making the presentation
available only to members of the county attorneys association with access through a
password-protected section of the association’s website. But the record does not suggest
that the county asked viewers to keep the information confidential. See Deloitte, 610 F.3d
at 141 (recognizing that, in the absence of a common litigation interest, a reasonable
expectation of confidentiality may be based on a confidentiality agreement or other
arrangement between the disclosing party and the recipient). The CLE presentation was
later “uploaded for distribution on [the association’s] website,” and attendees could
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download the materials. This would enable viewers to share the materials with other,
potentially adverse, persons. The record does not demonstrate that the planners took steps
to keep the information confidential during the presentation or afterward.
We add that the disclosure here is far broader than the narrow disclosure in cases
that have applied the common-interest exception, typically involving only one or a small
handful of others. See Deloitte, 610 F.3d at 133, 142 (applying the exception to hold that
work-product protection was not waived when a party disclosed protected information to
one independent auditor); BDO Seidman, 492 F.3d at 817 (applying the exception when
in-house counsel for one party shared a memorandum with counsel for one other party
discussing legal issues); O’Boyle, 94 A.3d at 304, 317–18 ( applying the exception to
documents prepared by a private attorney and sent to a single municipal attorney discussing
strategy to defend against the same opposing party in separate lawsuits). This case
involving a well-attended CLE stands in obvious contrast to these limited-dissemination
cases. The county cites no common-interest-exception case involving anywhere near the
number or variety of outsiders with whom the presenters in this case shared their
information. And the county does not circumvent that omission by characterizing the CLE
presentation as a “training program” for county attorneys; t he planners did not
communicate about the CLE as a training program, and they did not advertise it in that
fashion. We therefore need not consider whether an actual training program of fered to a
limited group and offered with confidentiality protection would warrant the exception.
Again, we do not address whether the common-interest doctrine has been or should
be adopted in Minnesota. We hold only that the county waived its claim to work-product
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protection and that the common-interest exception would not apply here. The county offers
no other basis to support the ALJ’s dismissal of Walmart’s complaint. We therefore reverse
the ALJ’s dismissal and remand for further proceedings consistent with this opinion.
Reversed and remanded.