In re Polaris, Inc., Petitioner,

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STATE OF MINNESOTA

IN SUPREME COURT

A20-0427

Court of Appeals McKeig, J.
Dissenting, Anderson, J., Gildea, C.J.

In re Polaris, Inc.,
Petitioner,

Colby Thompson,
Respondent, Filed: December 15, 2021

Office of Appellate Courts
vs.

Polaris, Inc.,
Appellant.

________________________

Aaron D. Van Oort, Jeffrey P. Justman, Faegre Drinker Biddle & Reath, LLP, Minneapolis,
Minnesota; and

Richard C. Godfrey, Catherine L. Fitzpatrick, Kirkland & Ellis LLP, Chicago, Illinois, for
appellant.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota;

Brian E. Wojtalewicz, Wojtalewicz Law Office, Ltd., Appleton, Minnesota; and

Jeffrey D. Eisenberg, Eric S. Olson, Christopher P. Higley, Eisenberg Cutt Kendell &
Olson, Salt Lake City, Utah, for respondent.

Benjamin W. Hulse, Emily A. Ambrose, Blackwell Burke, P.A., Minneapolis, Minnesota,
for amicus curiae Coalition of Minnesota Companies.

Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, Minneapolis, Minnesota; and

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Taylor B. Cunningham, Conlin Law Firm, LLC, Minneapolis, Minnesota, for amicus
curiae Minnesota Association for Justice.

Patrick Hedren, Manufacturers’ Center for Legal Action, Washington, D.C., for amicus
curiae National Association of Manufacturers.

Michael R. Carey, Dykema Gossett PLLC, Minneapolis, Minnesota, for amicus curiae The
Product Liability Advisory Council, Inc.

Adam W. Hansen, Apollo Law LLC, Minneapolis, Minnesota; and

Ellen Noble, Washington, D.C., for amicus curiae Public Justice.

________________________
S Y L L A B U S
1. Minnesota appellate courts have jurisdiction to consider a petition for a writ
of prohibition that challenges the district court’s denial of a claw-back request made under
Minn. R. Civ. P. 26.02(f)(2).
2. When deciding whether a document that contains both legal advice and
business advice is protected by the attorney-client privilege, the district court must apply
the predominant purpose test. Under the predominant purpose test, for the attorney-client
privilege to apply to the document in its entirety, the predominant purpose of the
communication must be legal advice.
3. The district court did not clearly err by finding that the predominant purpose
of the document at issue here is business advice. Therefore, the attorney-client privilege
protects only the portions of the document that contain legal advice.
Affirmed; motion to dismiss denied.
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O P I N I O N
MCKEIG, Justice.
The underlying litigation in this case involves a product-liability lawsuit brought by
respondent Colby Thompson against appellant Polaris Inc. Before this litigation began,
Polaris was subject to a government safety investigation and potential enforcement action
under federal consumer product safety laws. Polaris retained outside counsel to conduct
an audit into its safety processes and policies. After completing the audit, the lawyers
provided a 32-page report, which included recommendations to improve compliance
performance. Polaris inadvertently disclosed the audit report during discovery in the
product-liability litigation with Thompson. Polaris then sought to claw the document back,
asserting that the report is protected by the attorney-client privilege. Finding that the
predominant purpose of the report was business advice, not legal advice, the district court
denied the claw-back request while permitting redactions of the legal advice in the report.
Polaris then sought a writ of prohibition to prevent disclosure of the report. The court of
appeals denied the writ of prohibition, and Polaris sought further review.
At issue here is whether the report in its entirety is protected by the attorney-client
privilege. Because we conclude that the district court did not clearly err by finding that the
predominant purpose of the report is business advice, we affirm the denial of the writ of
prohibition. We also deny Thompson’s motion to dismiss the appeal for lack of
jurisdiction.
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FACTS
Appellant Polaris Inc. is a Minnesota company that produces on-road and off-road
vehicles. One model of Polaris’s off-road recreational vehicles is a four-wheel all-terrain
vehicle known as the RZR. In April 2016, Polaris announced a recall of 133,000 RZR 900
and RZR 1000 vehicles due to a fire hazard. The next month, the federal Consumer Product
Safety Commission notified Polaris that it was investigating whether Polaris had “complied
with the reporting requirements” of the Consumer Product Safety Act, 15 U.S.C. § 2064(b).
The Commission also advised Polaris that, “[u]ntil this matter is resolved, there will remain
the possibility of enforcement action, including reasonably anticipated litigation.”
In May 2016, Polaris retained the law firm of Crowell & Moring, LLP—specifically
attorney Cheryl Falvey, a former general counsel of the Commission and a partner at
Crowell—to conduct an audit into the safety processes and policies of Polaris. In August
2016, Crowell communicated the information gathered from the audit to Polaris in a
32-page report. Each page of the audit report is marked “ PRIVILEGED AND
CONFIDENTIAL: Protected by Attorney Client Privile ge and Attorney Work Product.”
At issue here is whether the report in its entirety is protected by the attorney-client
privilege.
The audit report, titled “Embracing Safety as a Business Priority,” states that
Crowell was “asked to interview key witnesses and review company records and emails to
determine what lessons can be learned from the process leading up ” to the recall. The
report clarified, however, that Crowell did “not represent the company” regarding the recall
or responding to questions from the Commission regarding Polaris’s execution of the
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recall. Rather, the report explains that Crowell was “hired for an entirely different
purpose”: “to make the company better when it comes to dealing with safety concerns.”
According to the report, Crowell agreed to provide a “privileg ed and confidential
assessment of the current state of the safety processes and procedures and provide
recommendations for process improvements. ” The report includes recommendations in
the areas of safety, engineering, design, and corporate practices. Additionally, portions of
the report address regulatory requirements as well as the interpretation of certain
Commission regulations. The report was distributed to senior management and the board
of directors.
In August 2017, respondent Colby Thompson filed a lawsuit against Polaris after he
suffered serious burns when the Polaris RZR vehicle he was driving started on fire. The
complaint included claims for negligence, strict liability, manufacturing flaw, failure to
warn, and breach of warranties. The district court assigned a special master to handle
pretrial discovery issues. During discovery, Polaris inadvertently produced a copy of the
audit report. Polaris did not learn of this disclosure until Thompson’s attorney attempted
to use the report during a deposition. Polaris objected to the use of the report and demanded
its return, asserting a privilege claim. Thompson challenged the privileged status of the
report.
The next day, Polaris, made a motion to “claw back” the audit report under Minn.
R. Civ. P. 26.02(f)(2). P olaris argued that the report is protected by the attorney-client
privilege and work-product doctrine. Polaris filed the report and other claimed confidential
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materials under seal in the district court. Thompson opposed the claw-back request,
asserting that the report contains business advice as opposed to legal advice.
The special master denied Polaris’s claw- back request. The special master
described the “threshold inquiry” in the privilege analysis as whether the audit report
“embodies a communication in which legal advice is sought or rendered,” Kobluk v. Univ.
of Minn., 574 N.W.2d 436, 444 (Minn. 1998). The special master acknowledged that
portions of the report “address the regulatory requirements related to recall reporting,” but
found that was “not the predominant purpose of the report.” Rather, the special master
found that the “majority” of the report was “giving business advice to management and the
Board of Directors about promoting safety and making company changes so Polaris can in
fact provide a safe product.” In essence, the special master found that the report was an
“operational audit,” which made recommendations for “operational changes” relating to
“safety, engineering, design, and corporate practices.” While denying the request to claw
back the report, the special master stated that “it is appropriate to redact th ose limited
sections” of the report that “contain legal opinions” regarding the interpretation of
Commission regulations.
Polaris appealed the special master’s decision to the district court. The district court
adopted the special master’s findings of fact and conclusions of law in total and affirmed
the special master’s order regarding the partially privileged nature of the audit report.
Polaris then sought a writ of prohibition in the court of appeals, asserting
“irreparable harm” from “having its attorney-client privileged communications and
attorney work product disclosed in litigation .” Polaris asserted that the audit report is
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“privileged in its entirety” and asked the court of appeals “to direct that the report not be
disclosed.” Polaris filed the report and other claimed confidential materials under seal in
the court of appeals.
The court of appeals denied the writ of prohibition. In re Polaris, Inc.,
No. A20-0427, Order at 4 (Minn. App. filed July 1, 2020). The court of appeals concluded
that “the advice provided” in the audit report was “primarily nonlegal in character.” Id. at
3. According to the court of appeals, the report “focused on corporate culture and safety
issues, not legal strategy.” Id. The court of appeals stressed that the district court had
specifically authorized the redaction of the sections of the report that contained legal
opinions “regarding the interpretation of federal regulatory requirements.” Id. Therefore,
the court of appeals concluded that Polaris “failed to establish that the district court ordered
production of information that is clearly not discoverable.” Id.
Polaris sought further review of the court of appeals’ order denying the writ of
prohibition. Polaris asked us to review whether the audit report is protected by the attorney-
client privilege. Polaris did not raise an issue regarding attorney work product. We granted
the petition for review. After the conclusion of briefing, Thompson filed a motion to
dismiss the appeal for lack of jurisdiction.
ANALYSIS
This appeal arises from Polaris’s petition for a writ of prohibition to protect the
confidentiality of the audit report prepared by the Crowell attorneys. “Prohibition is an
extraordinary remedy and should be used only in extraordinary cases.” Thermorama, Inc.
v. Shiller, 135 N.W.2d 43, 46 (Minn. 1965). In discovery disputes, a writ of prohibition
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limits a district court’s broad discretion and is appropriate only in limited circumstances:
where “it appears that the court is about to exceed its jurisdiction” or the issue is “decisive
of the case”; “where the court has ordered the production of information clearly not
discoverable and there is no adequate remedy at law”; or “in rare instances” where a
decision “will settle a rule of practice affecting all litigants.” Id.
I.
We begin with the threshold issue of jurisdiction. For the first time on appeal,
Thompson argues that Minnesota appellate courts lack jurisdiction to issue a writ of
prohibition to address Polaris’s claw-back request. A challenge to appellate jurisdiction
may be raised at any time and cannot be waived or forfeited. Speyer v. Savogran Co. ,
124 N.W.2d 827, 829 (Minn. 1963). Whether we have appellate jurisdiction is a question
of law that we review de novo. See City of Saint Paul v. Eldredge, 800 N.W.2d 643, 646
(Minn. 2011).
Thompson challenges the right of Polaris to seek a writ of prohibition for the district
court’s privilege ruling under Minn. R. Civ. P. 26.02(f)(2). Rule 26.02(f)(2) outlines a
process for how parties may proceed when a document for which a claim of privilege is
made is inadvertently produced in discovery. Rule 26.02(f)(2) provides:
[T]he party making the claim may notify any party that received the
information of the claim and the basis for it. After being notified, a party
must promptly return, sequester, or destroy the specified information and any
copies it has and may not use or disclose the information until the claim is
resolved. A receiving party may promptly present the information to the
court under seal for a determination of the claim.

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Following the process set forth in Rule 26.02(f)(2), Polaris notified Thompson of its claim
that the audit report is privileged. Polaris then sought to claw back the report in a hearing
before the special master, filing the document under seal. After conducting an in camera
review of the report, the special master rejected, in part, Polaris’s claim that the report is
protected by the attorney-client privilege. The district court affirmed.
Polaris filed a petition for a writ of prohibition in the court of appeals under Minn.
R. Civ. App. P. 120.01. Thompson acknowledges that we have long held that a writ of
prohibition is appropriate when a “court has ordered the production of information clearly
not discoverable and there is no adequate remedy at law.” Shiller, 135 N.W.2d at 46. He
argues, however, that a writ of prohibition is not appropriate in a claw-back dispute arising
under Rule 26.02(f)(2). Thompson points out that the district court did not order Polaris to
produce the audit report; rather, the district court simply determined, after Polaris had
already produced the report, that the report is not privileged. According to Thompson,
“Having let the horse out of the barn on its own, Polaris cannot seek interlocutory review
as if this disclosure never took place.” Thompson also contends that Rule 26.02(f)(2) does
not explicitly provide for interlocutory appeals, and a post-judgment appeal affords
sufficient review.
Polaris responds that Thompson seeks to draw an “illusory” line between privileged
documents that a party has inadvertently produced and privileged documents that a party
has withheld from production. Polaris also maintains that Thompson’s arguments go to
the merits of whether Polaris is entitled to a writ of prohibition here.
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We agree with Polaris. The parties throughout this appeal have preserved the
claimed privileged status of the audit report by filing the report and related materials under
seal. Interlocutory review is appropriate because an appeal is not an adequate remedy. It
would be too late on appeal from the final judgment in the product- liability litigation—
after the report is out in the open and used in litigation—to decide whether the report should
have been treated as privileged and copies of the report should have been returned ,
sequestered, or destroyed. See In re Kellogg Brown & Root, Inc., 796 F.3d 137, 150 (D.C.
Cir. 2015) (concluding that an “appeal after final judgment will come too late because the
privileged documents will have been disclosed”).
Accordingly, the court of appeals had appellate jurisdiction to resolve the dispute
over the privileged status of the audit report, and we have appellate jurisdiction to review
the court of appeals’ denial of the writ of prohibition, see Minn. R. Civ. App. P. 120.05.
We therefore deny Thompson’s motion to dismiss for lack of jurisdiction.
II.
We now turn to the issue raised in Polaris’s petition for review: whether the
attorney-client privilege protects the audit report in its entirety from disclosure, and thus,
whether it is appropriate to i ssue a writ of prohibition. “A district court has ‘broad
discretion’ under Minn. R. Civ. P. 26.03 ‘ to fashion protective orders and to order
discovery only on specified terms and conditions.’ ” In re Paul W. Abbott Co., 767 N.W.2d
14, 17–18 (Minn. 2009 ) (quoting Erickson v. MacArthur, 414 N.W.2d 406, 409 (Minn.
1987)). “On appeal, we review ‘a district court’s order for an abuse of discretion by
determining whether the district court made findings unsupported by the evidence or by
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improperly applying the law.’ ” Id. (quoting In re Comm’r of Pub. Safety, 735 N.W.2d
706, 711 (Minn. 2007)).
A.
Polaris argues that the court of appeals erred by creating a new privilege test that
“parses the content of attorney-client communications line-by-line to determine which
parts are ‘legal advice’ or ‘legal strategy.’ ” Determining the appropriate legal standard is
a question of law that we review de novo . King’s Cove Marina, LLC v. Lambert Com.
Constr. LLC, 958 N.W.2d 310, 320 (Minn. 2021).
At issue here is the privileged status of the audit report related to the safety processes
and policies of Polaris. “The purpose behind the attorney-client privilege is to promote
open and honest discussion between clients and their attorneys.” Leer v. Chi., Milwaukee,
St. Paul & Pac. Ry., 308 N.W.2d 305, 309 (Minn. 1981). The threshold inquiry in a
privilege analysis is determining “whether the contested document embodies a
communication in which legal advice is sought or rendered.” Kobluk v. Univ. of Minn.,
574 N.W.2d 436, 444 (Minn. 1998). A document is “not cloaked with the privilege merely
because it bears the label ‘privileged’ or ‘confidential.’ ” Id. at 441. Because “the attorney-
client privilege is a barrier to disclosure and tends to suppress relevant facts,” we strictly
construe the privilege. Leer, 308 N.W.2d at 309.
There is no dispute that the audit report contains both legal advice and business
advice. The attorney-client privilege protects legal advice. Kobluk, 574 N.W.2d at 444.
The privilege “ does not protect ordinary business advice.” Sedco Int'l, S.A. v. Cory,
683 F.2d 1201, 1205 (8th Cir. 1982); see also Bowne of New York City, Inc. v. AmBase
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Corp., 150 F.R.D. 465 , 471 (S.D.N.Y. 1993) (“If the communication concerns business
matters, the privilege does not apply.”). We have not previously determined whether a
corporate report that contains both legal advice and business advice is protected in its
entirety by the attorney-client privilege.
Polaris argues that the attorney-client privilege protects the entirety of the audit
report because the purpose of the report was to provide legal advice. According to Polaris,
“if the communication arises out of the attorney-client relationship and relates to the
purpose of providing legal advice, then the communication is protected by the privilege in
its entirety.” See State ex rel. Toledo Blade Co. v. Toledo- Lucas Cnty. Port Auth.,
905 N.E.2d 1221, 1229 (Ohio 2009) (holding that the attorney-client privilege protects an
investigative report prepared by outside counsel where the report was related to the
“rendition of legal services”). Polaris contends that “it is error to parse the communication
line-by-line in search of nuggets of a ‘nonlegal character’ and then apply the privilege
piecemeal.” Thompson, in contrast, asks us to adopt the majority rule that “legal advice
must predominate ” over business advice for the entirety of a communication from an
attorney to a client to be protected under the attorney-client privilege . Neuder v. Battelle
Pac. Nw. Nat’l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000).
There is “general agreement” among courts that the protection of the attorney-client
privilege “applies only if the primary or predominant purpose of the attorney- client
consultation is to seek legal advice or assistance.” 1 Paul R. Rice, Attorney-Client Privilege
in the United States § 7:6 (2020 ed.); see Harrington v. Freedom of Info. Comm’n,
144 A.3d 405, 416 (Conn. 2016) (noting the “broad consensus in other jurisdictions” that
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providing legal assistance must be the primary purpose of the communication); In re Grand
Jury, 13 F.4th 710, 716 (9th Cir. 2021) (observing that “most, if not all,” of the federal
circuit courts that “have addressed this issue have opted for some version of the ‘primary
purpose’ test”); . Under the predominant purpose test, the attorney-client privilege applies
to the entirety of a document only if the predominant purpose of the communication is to
render or solicit legal advice. Spectrum Sys. Int’l Corp. v. Chem. Bank, 581 N.E.2d 1055,
1060 (N.Y. 1991) ; see also, e.g., In re Appraisal of Dole Food Co., 114 A.3d 541, 561
(Del. Ch. 2014) (stating that a document containing both legal and business aspects will
only be considered privileged if the legal aspects predominate); Jackson v. Kennecott
Copper Corp., 495 P.2d 1254, 1257 (Utah 1972) (holding that to be privileged, a
communication must have the primary purpose of securing an opinion on the law or legal
services). But see In re Fairway Methanol LLC, 515 S.W.3d 480, 489 (Tex. App. 2017)
(holding that communications made to facilitate the rendition of legal services are
privileged, regardless of the primary purpose of the communication). “[W]hen the legal
advice is merely incidental to business advice, the privilege does not apply.” Neuder,
194 F.R.D. at 292 (citation omitted) (internal quotation marks omitted).
We formally adopt the predominant purpose test now. The predominant purpose
test aligns with our strict construction of the attorney-client privilege as a barrier to the
disclosure of relevant evidence. See Leer, 308 N.W.2d at 309. Because the purpose of the
attorney-client privilege is “ to promote the dissemination of sound legal advice,” the
privilege applies “only to advice which is legal in nature.” Wachtel v. Health Net, Inc.,
482 F.3d 225, 231 (3d Cir. 2007). The predominant purpose test therefore preserves “the
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integrity” of the attorney-client privilege by separating legal advice from business advice
in a document that serves primarily business purposes. Hercules Inc. v. Exxon Corp., 434 F. Supp. 136, 147 (D. Del. 1977); see also Jack Winter, Inc. v. Koratron Co., 54 F.R.D.
44, 47 (N.D. Cal. 1971) (determining that “it is important that the attorney-client privilege
not be downgraded in the interests of expedient results ”). Further, by applying the
predominant purpose test to a corporate report prepared by legal counsel, we ensure that
clients do not hide business and operational communications behind the veil of privilege,
while still protecting the portions of the report that contain legal advice.
For these reasons, we hold that, when a document contains both legal advice and
business advice, for the attorney -client privilege to apply to the document in its entirety,
the predominant purpose of the communication must be legal advice. The privilege does
not protect the entirety of the document if legal advice is merely one purpose and not the
primary purpose of the communication. See Harrington, 144 A.3d at 416 & n.7. 1 We
stress, however, that even when the predominant purpose of the communication is business
advice, the attorney-client privilege will protect any portions of the document that contain
legal advice. See, e.g., In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 798 (E.D. La.

1 The D.C. Circuit has held that the attorney -client privilege applies if “legal advice
was one of the significant purposes” of the communication, “even if there were also other
purposes.” In re Kellogg Brown & Root, Inc., 756 F.3 d 754, 758– 59 (D.C. Cir. 2014).
Because we apply the attorney-client privilege narrowly, we agree with the overwhelming
majority of state courts that have adopted the predominant purpose test and conclude that
legal advice must be the primary purpose of the communication. See, e.g., Univ. of
Kentucky v. Bunnell, 532 S.W.3 d 658, 693 (Ky. Ct. App. 2017); Gottwald v. Sebert,
63 N.Y.S.3d 818, 822 (N.Y. Sup. Ct. 2017); Vela v. Superior Ct., 255 Cal. Rptr. 921, 925
(Cal. Ct. App. 1989); see also Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 234 (Minn.
1998) (stating that we look to the common law of other states to develop our common law).
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2007) (explaining that when “non-legal services are mixed with legal services it does not
render the legal services any less protected by the privilege”).
B.
We turn next to the application of the predominant purpose test to the audit report.
But first we must resolve the parties’ disagreement about the standard of review. We have
long held that whether a document is privileged is “a question of fact.” Brown v. St. Paul
City Ry. , 62 N.W.2d 688, 701 ( Minn. 1954), quoted in In re Paul W. Abbott Co.,
767 N.W.2d at 18; accord Sprader v. Mueller, 121 N.W.2d 176, 180 (Minn. 1963) (“The
existence of the privilege is a question of fact which must be proved by the one asserting
it.”).
Polaris argues that determining whether the predominant purpose of the audit report
was legal advice or business advice is a question of law, relying on our decision in Kobluk
v. University of Minnesota, 574 N.W.2d 436 (Minn. 1998). Although we reviewed the
district court’s privilege rulings in Kobluk de novo, id. at 439, that case is not on point. In
Kobluk, an assistant professor at the University of Minnesota sought to obtain preliminary
drafts of a letter denying him tenure under the Minnesota Government Data Practices Act,
and the district court decided the privileged status of the draft letters on cross-motions for
summary judgment. 574 N.W.2d at 438– 39. We emphasized that the facts were “not
disputed.” Id. at 439. In contrast, the privilege issue here arises from a claw-back request
under Minn. R. Civ. P. 26.02(f)(2), not a summary judgment motion under Minn. R. Civ.
P. 56, and the facts are disputed.
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Specifically, the parties dispute whether the predominant purpose of the audit report
was to provide legal advice or business advice. We hold that determining the predominant
purpose of a document is a question of fact. Applying the predominant purpose test to a
document is “necessarily a fact-specific determination.” Spectrum Sys. Int’l Corp.,
581 N.E.2d at 1060. As we have previously explained: “When facts are presented upon
which the claimed privilege rests, it then becomes necessary for the court to determine
whether the privilege exists much the s ame as in the determination of other fact issues.”
Brown, 62 N.W.2d at 701.
Accordingly, we review the district court’s ruling on the predominant purpose of
the audit report as a finding of fact. When reviewing privilege rulings, we “give great
deference to the district court’s findings of fact and will not set them aside unless clearly
erroneous.” State v. Taylor, 869 N.W.2d 1, 21 (Minn. 2015) (citation omitted) (internal
quotation marks omitted). “Findings of fact are not clearly erroneous unless we are left
with the definite and firm conviction that a mistake has been made.” In re Pamela Andreas
Stisser Grantor Tr. , 818 N.W.2d 495, 507 (Minn. 2012) (citation omitted) (internal
quotation marks omitted). We do not “reweigh the evidence when reviewing for clear
error.” In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021). “When the
record reasonably supports the findings at issue on appeal, it is immaterial that the record
might also provide a reasonable basis for inferences and findings to the contrary.” Id. at
223 (citation omitted) (internal quotation marks omitted).

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C.
The party asserting the attorney-client privilege has the burden of proving it.
Sprader, 121 N.W.2d at 180. To establish that the entirety of the audit report is protected
by the attorney-client privilege, Polaris was required to prove that the predominant purpose
of the communication was legal advice and not business advice.2
Determining the predominant purpose of a document is “a highly fact-specific”
inquiry, which requires courts to consider “the ‘totality of the circumstances’ surrounding
each document.” In re Grand Jury Procs., 220 F.3d 568, 571–72 (7th Cir. 2000). Relevant
factors include (1) the purpose of the communication, (2) the content of the
communication, (3) the context of the communication, (4) the recipients of the
communication, and (5) whether legal advice permeates the document or whether any
privileged matters can be redacted. See generally 2 Andrew J. Levander & Hector
Gonzalez, Successful Partnering Between Inside and Outside Counsel § 33:8 (2021) (citing
cases). Although the line between legal advice and business advice in the corporate setting
is “not always clear,” as a general matter, attorneys provide legal advice when they draw

2 The dissent relies heavily on what it describes as “the Kobluk presumption”— our
quotation from Wigmore that “a matter committed to a professional legal adviser is prima
facie so committed for the sake of the legal advice.” 8 John Henry Wigmore, Evidence
§ 2296, at 567 (McNaughton rev. 1961), quoted in Kobluk, 574 N.W.2d at 442. We do not
agree with the dissent’s presumption that “a communication regarding a matter committed
to an attorney is privileged in its entirety.” Any presumption that arises from the
commitment of a matter to a lawyer has limited utility when determining the predominant
purpose of a dual-purpose document that contains both legal advice and business advice.
Moreover, it is only a presumption that can be overcome by contrary evidence that the
communication is not to provide legal advice. That is precisely the inquiry that the special
master undertook here.
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on their legal training and apply legal principles to the specific circumstances of their client.
Harrington, 144 A.3d at 415; see 1 Paul R. Rice, Attorney- Client Privilege in the United
States § 7:10 (2020 ed.).3 We acknowledge that determining the predominant purpose of
a document may not be a simple task, but this determination is the type of fact-finding and
analysis that “fall[s] within the district court’s expertise.” Valero Energy Corp. v. United
States, 569 F.3d 626, 630 (7th Cir. 2009) (explaining that “[f]indings regarding privilege
are fact-intensive, case-specific questions”).
Although we had not formally adopted the predominant purpose test when this
dispute over the audit report arose, both parties, as well as the special master, analyzed the
privilege issue in terms of the predominant purpose of the report. The special master found
that the predominant purpose of the report was business advice. Polaris challenges this
finding, asserting that the report focuses on legal compliance issues, which are
“inextricably intertwined” with business advice. Polaris further argues that “safety is the
subject of extensive federal regulation” and that failure to comply with safety regulations
subjects its business to legal penalties. See Upjohn Co. v. United States, 449 U.S. 383, 392
(1981) (observing that, “[i]n light of the vast and complicated array of regulatory

3 The dissent concludes that business advice is advice that makes “the client’s
enterprise more profitable.” We find this definition far too narrow. Not all business advice
is aimed at making a client’s enterprise more profitable; moreover, it is not clear how this
definition would apply in the context of a nonprofit corporation like a hospital or to another
type of entity like a university. In addition, lawyers often have dual roles and may provide
advice in other professional areas like accounting, real estate, and finance. Because of the
broad range of business settings in which lawyers operate, it is not feasible to offer a
specific, all-encompassing definition of business advice. Instead, courts should consider
the business purpose of a document on a case-by-case basis and focus on the distinction
between legal and nonlegal advice.
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legislation,” corporations “ ‘constantly go to lawyers to find out how to obey the law’ ”
(quoting Bryson P. Burnham, The Attorney–Client Privilege in the Corporate Arena, 24
Bus. Law. 901, 913 (1969))). Thompson responds that the primary purpose of the report
was business advice, claiming that the “[t]he audit relates to a series of facts about Polaris’s
‘corporate culture,’ ” and the report provided “business recommendations,” which Polaris
used to make business and operational improvements.
The special master found that the predominant purpose of the audit report was
“giving business advice,” reasoning that the report was distributed to Polaris management
and the board of directors to “implement operational changes.”4 The report addresses the
organizational culture of Polaris and discusses the areas of product design, engineering,
and manufacturing practices, with the express goal of “improv[ing] the process Polaris uses
to assess safety risks.”5 The special master essentially determined that the primary purpose
of the report was setting corporate policy. We conclude that the special master did not
clearly err in finding that these aspects of the report address business matters. See Marceau
v. IBEW Local 1269, 246 F.R.D. 610, 613 –14 (D. Ariz. 2007) (concluding that an audit

4 We re cognize that the communication of privileged information to a company’s
board of directors does not waive the privilege. See, e.g., Diversified Indus. Inc. v.
Meredith, 572 F.2d 596, 610 (8th Cir. 1977) (en banc).

5 Polaris has argued consistently throughout this dispute that the entirety of the audit
report is protected by the attorney-client privilege. After the district court rejected this
argument, Polaris immediately sought a writ of prohibition. Although the district court
ruled that it is “appropriate to redact” the sections of the report that contain legal advice,
Polaris has not yet had an opportunity to address which specific s ections of the report
contain legal advice. Therefore, we will not discuss the substance of the report in any
detail.
20
report prepared by outside attorneys was not privileged where “the general nature of the
audit” was a “tool for improving the business operations” of the company). See generally
Terrell E. Hunt & Timothy A. Wilkins, Environmental Audits and Enforcement Policy,
16 Harv. Envtl. L. Rev. 365, 381 (1992) (explaining that “management audits generally are
not entitled to the protections of the attorney-client privilege,” even when attorneys conduct
the audits, because the attorneys are not “predominantly” acting as attorneys).
It is true that portions of the audit report focus on compliance with federal
regulations; however, not all compliance advice is legal advice. See In re Nat’l
Prescription Opiate Litig., No. 1:17-MD-2804, 2020 WL 9211219, at *1 (N.D. Ohio Mar.
30, 2020). The attorney-client privilege “does not apply if the client seeks regulatory
advice for a business purpose.” Fed. Trade Comm’n v. Abbvie, Inc., No. 14-5151, 2015
WL 8623076, at *9 (E.D. Pa. Dec. 14, 2015). Tellingly, the title of the report here is
“Embracing Safety as a Business Priority.” (Emphasis added.) Polaris suggests that,
because safety is the focus of extensive regulation in the vehicle industry, any discussion
of safety matters should be classified as legal matters. But we apply the privilege narrowly;
“[t]he fact of extensive or pervasive regulation does not make the everyday business
activities legally privileged from discovery.” In re Seroquel Prods. Liab. Litig., No. 6:06-
md-1769-Orl-22DAB, 2008 WL 1995058, at *7 (M.D. Fla. May 7, 2008); see also Abbvie,
2015 WL 8623076, at *9 (observing that companies in highly regulated industries
“consider regulatory matters in making nearly all” of their business decisions).
Polaris also stresses the context of the recall and the investigation by the Consumer
Product Safety Commission, but the report makes clear that Crowell did not represent
21
Polaris regarding the recall or any investigation by government regulators. And Polaris
has not challenged the court of appeals’ conclusion that the report is not protected by the
work-product doctrine. In re Polaris, Inc., No. A20-0427, Order at 3 (concluding that the
report does not focus on “legal strategy”). In any event, the special master specifically
found that addressing “the regulatory requirements related to recall reporting” was “not the
predominant purpose of the report.”
Finally, the legal portions of the audit report are not “intimately intertwined” or
“difficult to distinguish” from the nonlegal portions. Sedco Int’l, S.A. v. Cory, 683 F.2d
1201, 1205 (8th Cir. 1982). The special master specifically found it possible “t o redact
those limited sections” of the report that “contain legal opinions” regarding the
interpretation of Commission regulations.
In sum, we are not left with a definite and firm conviction that the special master
erred in finding that Polaris did not establish that the predominant purpose of the audit
report was legal advice. U nder our deferential standard of review, we conclude that the
record reasonably supports the special master’s finding and that the district court did not
order “the production of information clearly not discoverable,” Thermorama, Inc. v.
Shiller, 135 N.W.2d 43, 46 (Minn. 1965). We therefore affirm the court of appeals’ denial
of a writ of prohibition. On remand, the district court must identify the portions of the
report that contain legal advice, which should be redacted.6

6 At oral argument, the parties clarified that there has not yet been a determination of
which portions of the report contain redactable legal advice and which portions contain
business advice. We have not been asked to make that determination. We direct the district
court to make that determination on remand with the input of the parties.
22
CONCLUSION

For the foregoing reasons, we deny Thompson’s motion to dismiss the appeal for lack
of jurisdiction and we affirm the decision of the court of appeals.
Affirmed; motion to dismiss denied.
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D I S S E N T
ANDERSON, J. (dissenting).
I agree with the court’s reasoning regarding our jurisdiction, the predominant
purpose test, and the standard of review. But I disagree with the court’s conclusion that
the report drafted by Crowell & Moring LLP (the Report) provides predominantly business
advice and therefore is not subject to the attorney-client privilege in its entirety.
Appellant Polaris, Inc. (Polaris) sought professional assistance after receiving notice
of an investigation from the Consumer Product Safety Commission (CPSC) regarding
alleged violations of the Consumer Product Safety Act (CPSA). Polaris specifically
desired legal advice regarding compliance weaknesses and how to successfully address
those weaknesses. To that end, Polaris did not hire a business consultant; nor did it retain
an engineer, a public relations expert, or an operations analyst. The company hired an
attorney; specifically, Polaris retained the former general counsel of the very government
agency investigating it—the CPSC. That attorney, Cheryl Falvey, along with her law firm,
Crowell & Moring, investigated Polaris for CPSA compliance issues and, in a 32-page
Report, provided recommendations on how to address those issues. Polaris did not ask
Falvey for her input on better engine design. And Polaris did not ask for—nor does the
Report provide—advice on how to run its business more profitably.
Despite Falvey’s expertise in CPSA compliance, the Report’s findings and
recommendations regarding the regulatory environment for CPSA compliance, and its
dearth of advice on how to increase the profitability of Polaris, the court concludes that the
predominant purpose of the Report is business advice and, therefore, the Report is not
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entirely privileged. Not only is the court’s conclusion wrong, but it will also frustrate
attorney-client relations, discourage businesses from seeking legal advice, and require
lawyers to pepper client communications with legalese and superfluous citations.
I respectfully dissent.
I.
I begin by discussing the importance of attorney-client privilege. A time-honored
doctrine, it is the oldest of common law privileges. See In re Bank of N.Y . Mellon Corp.
Forex Transactions Litig., 66 F. Supp. 3d 406, 409 (S.D.N.Y. 2014); Minn. Stat. § 595.02,
subd. 1(b) (2020) (statutorily codifying the privilege). At common law, the attorney-client
privilege was viewed as so important —so fundamental— that it arose contemporaneously
with the doctrine of testimonial compulsion. 8 John Henry Wigmore, Evidence § 2290, at
542–43 (McNaughton rev. 1961). From the very moment that courts began forcing
witnesses to testify, those courts also immediately recognized the dangers of compelling
disclosure of attorney-client communications. Id.1
The purpose of attorney-client privilege is well-founded. “In order to promote
freedom of consultation of legal advisers by clients, the apprehension of compelled
disclosure by the legal advisers must be removed; hence the law must prohibit such

1 Originally, the recognized purpose of the privilege was to defend the “oath and
honor of the attorney . . . .” Wigmore, supra, at 543; see also Berd v. Lovelace, 21 Eng.
Rep. 33 (1577); Dennis v. Codrington, 21 Eng. Rep. 53 (1580). When the persuasive value
of that justification diminished in the 1700s, courts continued to sustain the privilege out
of recognition of an equally important value: “the necessity of providing subjectively for
the client’s freedom of apprehension in consulting his legal adviser.” Wigmore, supra, at
543.
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disclosure except on the client’s consent.” Id. at 545. This protection is “essential to the
beneficent administration of justice,” Wade v. Ridley, 32 A. 975, 976 (Maine 1895),
because it “encourage[s] full and frank communication between attorneys and their clients
and thereby promote[s] broader public interests in the observance of law and administration
of justice,” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
The Supreme Court of the United States has cautioned that, “for the attorney-client
privilege to be effective, it must be predictable.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 183 (2011). When this privilege is applied in an unpredictable manner, it is
not just attorneys or clients who suffer, but also the public at large. If uncertainty clouds
application of the privilege, “every one would be thrown upon his own legal resources;
deprived of all professional assistance, a man would not venture to consult any skillful
person, or would only dare to tell his counselor half his case.” Greenough v. Gaskell, 39 Eng. Rep. 618, 620 (Ch. 1833). The purpose of attorney-client privilege is therefore
served when a client seeks legal advice to better understand and therefore follow the rule
of law.
To further this purpose, we have relied on Wigmore’s “classic explication” of the
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) (emphasis added) (quoting
Wigmore, supra, at 554).
D-4
At issue is the first prong—whether the Report “embodies a communication in
which legal advice is sought or rendered.” Id. at 444. Even when the other elements of
the attorney-client privilege are met, communications relating to “sundry nonlegal
purposes” are not protected. Wigmore, supra, at 566. Purely nonlegal business advice, for
instance, is not privileged. See United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996).
But in cases where a communication includes both legal and nonlegal advice, courts have
held that the communication remains privileged in its entirety when it is “predominately of
a legal character.” Spectrum Sys. Int’l Corp. v. Chem. Bank, 581 N.E.2d 1055, 1060 (N.Y.
1991) (emphasis added). Absent that predominant purpose, only those portions of the
communication containing legal advice are privileged. See F.C. Cycles Int’l, Inc. v. Fila
Sport, S.p.A., 184 F.R.D. 64, 71–72 (D. Md. 1998). I agree with the court that it is time for
us to adopt the predominant purpose test in Minnesota.
In applying the predominant purpose test, however, our precedent in Kobluk
requires us to start from the presumption that a matter “committed to a professional legal
adviser is prima facie so committed for the sake of the legal advice . . . .” 574 N.W.2d at
442 (quoting Wigmore, supra, at 567). This presum ption is consistent with federal
precedent. Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 610 (8th Cir. 1977) (en banc)
(“Here, the matter was committed to . . . a professional legal adviser. Thus, it was prima
facie committed for the sake of legal advice and was, therefore, within the privilege absent
a clear showing to the contrary.”); Chen, 99 F.3d at 1501 (acknowledging a rebuttable
presumption that a lawyer hired to give advice is hired to give legal advice, unless “the
facts show that the lawyer was ‘employed without reference to his knowledge or discretion
D-5
in the law’ ”); see also United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir.
2020) (quoting Chen, 99 F.3d at 1501). We therefore presume that a communication
regarding a matter committed to an attorney is privileged in its entirety “ ‘unless it clearly
appears to be lacking in aspects requiring legal advice.’ ” Kobluk , 574 N.W.2d at 442
(quoting Wigmore, supra, §2296, at 567).
In other words, once the proponent of privilege has established “t he other factual
elements of the privilege,” this presumption “shifts to the opponent [of the privilege] the
equally difficult, if not greater, burden of demonstrating that the services were not legal.”
1 Paul R. Rice, Attorney-Client Privilege in the United States, § 7.10 (2020 ed.) (emphasis
added). Because Polaris has carried its burden in meeting the other factual elements of the
privilege, and because Polaris submitted this issue to a legal advisor, Crowell & Morin g,
the only issue before us is whether respondent Colby Thompson has carried his “equally
difficult, if not greater burden” in rebutting the presumption of privilege. To do so,
Thompson must show that the Report is clearly lacking in aspects that require legal advice,
Kobluk, 574 N.W.2d at 442, because the Report predominately delivers “business advice.”
II.
With the question properly framed, the flaw in the court’s analysis becomes
obvious. It fails to meaningfully articulate what “business advice” and “legal advice”
mean. The court provides factors to look at but fails to provide guidance as to what a
district court should look for. The court proclaims that legal advice draws on legal training
and applies legal principles to specific circumstances. But everything a lawyer does will
be informed by the lawyer’s training in some fashion; the court fails to articulate the
D-6
difference between a lawyer acting as an educated professional and a lawyer acting as a
lawyer. See Chen, 99 F.3d at 1502 (“Calling the lawyer’s advice ‘legal’ or ‘business’
advice does not help in reaching a conclusion; it is the conclusion.”). Having failed to
meaningfully define its terms, the court then proceeds to conclude that the Report
constitutes business, rather than legal, advice. But the court’s conclusion is meaningless
and provides no clear guidance for Minnesota courts to follow.
Although the court is correct that the distinction between legal and business advice
can at times be murky, the court fails to acknowledge that this distinction has been applied
repeatedly in federal cases. See Rice, supra, at §§ 7.4–7.10 (collecting cases). With ample
guidance available, our court is more than capable of providing some contours to these
terms. For that reason, I attempt to distinguish between “legal advice” and “business
advice” for the benefit of Minnesota courts, clients, and attorneys.
A.

I begin with the definition of “legal advice.” Justice Holmes once explained that
“[t]he object of our study . . . is prediction, the prediction of the incidence of public force
through the instrumentalities of the courts.” Oliver Wendell Holmes, Path of the Law,
10 Harv. L. Rev. 457, 457 (Mar. 25, 1897). Describing legal advice as the “prediction” of
the likelihood of legal consequences is apt, but not all-encompassing. Very similarly, legal
advice has been described as that which “requires a lawyer to rely on legal education and
experience to inform judgment” and “involves the interpretation and application of legal
principles to guide future conduct or to assess past conduct.” In re County of Erie,
473 F.3d 413, 419 (2d Cir. 2007) (emphasis added).
D-7
Notably, legal advice need not include “legal research.” Legal advice includes
communications reflecting “the attorney’s professional skills and judgments. [It] may be
grounded in experience as well as research.” Spectrum Sys. Int’l Corp., 581 N.E.2d at
1061–62. “In giving advice to a client, the role of an attorney is certainly not restricted to
citing cases and espousing legal theories.” ABB Kent-Taylor, Inc. v. Stallings & Co.,
172 F.R.D. 53, 56 (W.D.N.Y. 1996). Legal advice is “an amalgamation of education,
knowledge, experience and legal wisdom which counsel may draw upon to give a frank
and unconstrained opinion. That is the essence of effective legal representation.” Id. at
57.
In defining legal advice, the focus must remain on the purpose for which the lawyer
is acting. John W. Gergacz, Attorney-Corporate Client Privilege § 3:30 (2021 ed.). A
lawyer acting in a purely investigative or fact-finding role is not covered by the privilege.
E.g., Wartell v. Purdue Univ., No. 1:13–cv–00099, 2014 WL 3687233, at *5 (N.D. Ind.
2014); Cont’l Cas. Co. v. Marsh, No. 01 C 0160, 2004 WL 42364, at *2 (N.D. Ill. Jan. 6,
2004); Metalsalts Corp. v. Weiss, 184 A.2d 435, 439 (N.J. Super. Ct. Ch. Div. 1962). But
when a lawyer’s investigation is “to provide information from which the attorney can
develop legal advice,” the privilege will still attach. Gergacz, supra, at § 3:35.
Consider some examples. Courts have concluded that legal advice includes: tax
advice and the preparation of tax returns by an attorney, see Colton v. U.S., 306 F.2d 633,
637 (2d Cir. 1962); advice on whether to file an amended return, see United States v. Cote,
456 F.2d 142, 144 (8th Cir. 1972); advice on tax implications and corporate-law
consequences of a corporate restructuring, see In re Grand Jury Subpoena Duces Tecum
D-8
Dated Sept. 15, 19 83 (1983 Subpoena), 731 F.2d 1032, 1037 (2d Cir. 1984); see also
United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1076 (N.D. Cal. 2002);
advice on whether a proposed transaction would be lawful, see 1983 Subpoena, 731 F.2d
at 1038; advice on how to deal with an alleged breach of contract, see Am. Nat’l Bank &
Tr. Co. of Chi. v. Equitable Life Assur. Soc. of U.S., 406 F.3d 867, 879 n.6 (7th Cir. 2005);
advice on whether to file financial disclosure statements and the “vulnerability generally
of the corporation and its personnel to criminal and civil sanctions,” In re Grand Jury
Subpoena, 599 F.2d 504, 511 (2d Cir. 1979) ; advice on whether a client qualifies for a
public defender and assistance in completing financial affidavits, see United States v.
Montgomery, 990 F.2d 1264, 1993 WL 74314, at *3 (9th Cir. 1993) (unpublished table
decision); assessment of a potential business partner’s perceived trustworthiness and a
subsequent recommendation on whether to close on a deal, see ABB Kent-Taylor, Inc.,
172 F.R.D. at 56–57; and advice on how to respond to a warning letter from the FDA, even
if the initial draft of the response letter was prepared by a nonlawyer, In re Vioxx Prods.
Liab. Litig., 501 F. Supp. 2d 789, 802–03 (E.D. La. 2007).
While the above examples demonstrate that legal advice reaches a broad swath of
practice areas, these decisions have one clear and obvious through-line: a requirement that
an attorney employ his or her legal training or experience by providing recommendations
for future conduct, or an analysis of past conduct, with an eye toward avoiding or obtaining
certain legal outcomes . That is the definition of “legal advice” that is consistent with
persuasive legal authority, see, e.g., Rice, supra, at § 7.10 (collecting cases); In re County
of Erie, 473 F.3d at 419, and is therefore the definition that Minnesota courts should apply.
D-9
B.
Now I turn to defining “business advice.” I begin by noting that the court’s
conclusion that the Report is primarily business-oriented appears to be influenced by the
fact that “safety, engineering, design, and corporate practices”2 are all activities associated
with a “business”—that is, a corporation. But it cannot be that everything associated with
a corporation is t herefore “business.” Defining business advice in that way would
transform virtually all legal advice to a corporate entity into unprotected business advice.
See Rice, supra, at § 7.2 (“[V]irtually all internal legal communications are, to some extent,
relevant to the business ends of the company.”). Rather than generically referring to
corporate operations, the word “business” refers to the “activity by which people try to earn
money.” Business, Garner’s Dictionary of Legal Usage 126 (3rd ed. 2011). It means “[a]
commercial enterprise carried on for profit.” Business, Black’s Law Dictionary (11th ed.
2019). The court believes that this definition is far too narrow. But the court offers nothing
in its place.
Decisions that distinguish privileged legal advice from nonprivileged advice are
consistent with a profit -focused definition of business. Thus, “business advice” has been
described as mechanical or “mathematical calculations,” Cote, 456 F.2d at 144; advice on
whether a corporate restructuring would be profitable, see 1983 Subpoena, 731 F.2d at
1037; “technical information,” Valente v. Pepsico, Inc., 68 F.R.D. 361, 367 (D. Del. 1975);

2 As the court notes, Polaris submitted the Report under seal pursuant to Minn. R.
Civ. App. P. 112.02. My quotations do not come directly from the Report, but instead
come from the court’s opinion.
D-10
a factual report conducted solely by company management in the regular course of
business, In re Grand Jury Subpoena, 599 F.2d at 510; advice on whether it makes good
business sense to continue a relationship with a certain p arty, In re Hum. Tissue Prod.
Liab. Litig. (Human Tissue), No. CIV. 06-135, 2009 WL 1097671, at *3 (D.N.J. Apr. 23,
2009); advice that is “purely financial,” ChevronTexaco Corp., 241 F. Supp. 2d at 1078;
advice on how “to get value for [the client’s] money,” U.S. Postal Serv. v. Phelps Dodge
Ref. Corp., 852 F. Supp. 156, 166 (E.D.N.Y. 1994); internal communications related to
“technical, scientific, promotional, management, regulatory or marketing matters,” Phillips
v. C.R. Bard, Inc., 290 F.R.D. 615, 630 (D. Nev. 2013); marketing advice, In re Feldberg,
862 F.2d 622, 626 (7th Cir. 1988); spreadsheets used to track tasks to be done in the course
of a project, “ranging from designing a way to route calls to setting up deadlines for print
production,” Acosta v. Target Corp., 281 F.R.D. 314, 324 (N.D. Ill. 2012); and investment
advice, Jacob v. Duane Reade, Inc., No. 11 Civ. 0160 (JMO)(THK), 2012 WL 651536, at
*1–3 (S.D.N.Y. Feb. 28, 2012).
Similar to the decisions that identify privileged legal advice, the various types of
advice that fall under the umbrella of “business” share one commonality. The advice at
issue in these decisions all relates to making the client’s enterprise more profitable. This
can include recommendations for improved efficiency of business processes, investment,
marketing, and technological advice, or purely factual investigations. But one other
characteristic is also worth mentioning. The increased profitability that is representative
of business advice is not analogous to increased profit resulting from mitigated legal
liability. See Exxon Mobil Corp. v. Hill, 751 F.3d 379, 382 (5th Cir. 2014) (holding that
D-11
the “manifest purpose” of an attorney memorandum was to deliver legal advice because it
addressed potential “legal liability” arising from a transaction); Restatement (Third) of the
Law Governing Lawyers § 72 cmt. c (2000) (“So long as the client consults to gain
advantage from the lawyer’s legal skills and training, the communication is [privileged],
even if the client may expect to gain other benefits as well.”). In other words, the
diminution of legal liability is solely attributable to good legal advice.
I have now provided at least some contours to the concepts of business and legal
advice. Legal advice is that which requires an attorney to employ her legal training or
experience to provide a recommendation for future conduct, or an analysis of past conduct,
with an eye toward avoiding or obtaining certain legal outcomes. Conversely, business
advice is that which is intended to make a client’s enterprise more profitable other than
through the mitigation of legal liability. With this distinction in mind, I now turn to the
question of whether the Report is predominately legal advice or business advice.
III.

The determination of whether a communication falls under legal or business advice
is “highly fact-specific.” Human Tissue, 2009 WL 1097671, at *2. To assess whether the
predominant purpose of the Report is legal or business advice, we must examine both
(1) the content and (2) the context in which it was written. Phillips, 290 F.R.D. at 629; see
also Exxon Mobil, 751 F.3d at 382 (“Context here is key . . . .”). We must look at all “the
facts surrounding the creation of the document and the nature of the document” itself.
Phillips, 290 F.R.D. at 629. Again, we presume that a matter “committed to a professional
legal adviser is prima facie so committed for the sake of the legal advice . . . unless it clearly
D-12
appears to be lacking in aspects requiring legal advice.” Kobluk, 574 N.W.2d at 442
(quoting Wigmore, supra, at 567).
In determining that the Report is predominantly business-oriented, the court errs in
at least two significant ways. First, it emphasizes mainly the content of the Report. The
court concludes that the Report must be predominantly business advice because it devotes
space to matters such as corporate “culture” as well as “corporate practices, safety,
engineering, and product design.” But in so concluding, the court glosses over the context
in which the Report was written. See Phillips, 290 F.R.D. at 629. Second, the court errs
by flatly failing to adhere to the presumption in favor of privilege. Kobluk, 574 N.W.2d at
440–443. Ultimately, the court’s flawed analysis creates a completely unpredictable
standard for, and therefore undermines the purpose of, the attorney-client privilege.
A.
Context is key in applying the predominant purpose test. Exxon Mobil, 751 F.3d at
382. Reading the Report in the context in which it was requested and written, it is obvious
that the predominant purpose here is legal advice.
Polaris requested the Report in response to a letter alerting it to an investigation by
the CPSC involving potential violations of the CPSA. See 15 U.S.C. §§ 2051–89.
Specifically, the letter explained that Polaris was subject to an investigation for alleged
violations of the timely reporting requirements of 15 U.S.C. §§ 2064(b), 2068. The CPSC
expressly warned Polaris of “the possibility of enforcement action,
including . . . litigation.” Crowell & Moring’s assignment from Polaris was to examine its
policies and explain how to avoid similar problems in the future. To understand what type
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of advice was solicited and received, then, we must look to the CPSA and some of the
CPSC’s regulations.
As a manufacturer of consumer goods, Polaris is subject to the strictures of the
CPSA. See 15 U.S.C. § 2052 (defining “consumer products”); see also CPSC Advisory
Opinion No. 213 (July 15, 1975) (“[S]now machines are ‘consumer products’ and therefore
within the jurisdiction of the Commission.”). 3 Under the CPSA, the CPSC has the
authority to investigate injuries or deaths allegedly resulting from consumer products. 15
U.S.C. § 2054. For businesses of any size, an investigation by the CPSA is no trivial
matter.
If, after investigation, the CPSA det ermines that a product presents an
“unreasonable risk of injury” and that “no feasible consumer product safety standard”
could “adequately protect the public,” the CPSC has the authority to impose an outright
ban on the sale of that product. 15 U.S.C. § 2057. In assessing that risk, the CPSC
considers “foreseeable misuse of a consumer product.” Southland Mower Co. v. Consumer
Prod. Safety Comm’ n, 619 F.2d 499, 513 (5th Cir. 1980) (citation omitted) (internal
quotation marks omitted).4

3 But see CPSC Advisory Opinion No. 258 (Jan. 26, 1978) (suggesting that
“competition snowmobiles . . . intended solely for use on special tracks” by “qualified
racing drivers” might not fall under the CPSC’s jurisdiction). The CPSA itself disclaims
jurisdiction over “motor vehicles” that are “manufactured primarily for use on public
streets, roads, and highways.” See 15 U.S.C. § 2052(a)(5)(C); see also 49 U.S.C.
§ 30102(a)(7).

4 Parts of the Report touch on this doctrine and explain why, in light of that doctrine,
past compliance practices by Polaris were potentially problematic.

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Additionally, the CPSC can impose steep civil penalties on the subject of an
investigation. In determining the amount of those penalties, the CPSC considers several
factors. Crucially:
The [CPSC] may consider . . . whether a person had at the time of the
violation a reasonable and effective program or system for collecting and
analyzing information related to safety issues. Examples of such information
would include incident reports, lawsuits, warranty claims, and safety-related
issues related to repairs or returns. The Commission may also consider
whether a person conducted adequate and relevant premarket and production
testing of the product at issue; had a program in place for continued
compliance with all relevant mandatory and voluntary safety standards; and
other factors as the Commission deems appropriate.

16 C.F.R. § 1119.4(b)(1) (emphasis added). Moreover, “[t]he [CPSC] may consider
whether a person benefitted economically from a failure to comply, including a delay in
complying, with the CPSA, FHSA, FFA, and other laws that the CPSC enforces, and the
regulations thereunder. ” Id. at § 1119.4(b)(3) (emphasis added).
5 CPS C investigations
therefore become a question of determining who knew what, and when. See 15 U.S.C.
§ 2064(b) (requiring manufacturers to “immediately inform” the CPSC of known defects).
When read in this context, the Report is positively dripping with legal advice. A
substantial portion of the Report addresses the question of who in Polaris knew what, and
when. In other words, it advises Polaris on its potential legal exposure under its current

5 By looking to just a few recent settlement agreements relating to defective engines,
it is obvious that the CPSC takes these factors seriously. It regularly examines: (1) the
dates of when the manufacturer gained knowledge of a defect, including the number and
severity of reports from consumers; (2) attempts to redesign the product in response to the
defect; and (3) the timeliness in which the defect was reported to the CPSC. See, e.g.,
Murray, Inc., 2003 WL 22333279, at *1–2 (C.P.S.C. June 3, 2003); Briggs & Stratton
Corp., 2002 WL 32178915, at *1– 2 (C.P.S.C. Aug. 7, 2002); Toro Company, 1988
WL 411067, at *1–2 (C.P.S.C. Jan. 12, 1989).
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compliance practices—the precise legal question at issue here. The first 19 pages of the
Report provide detailed fact-finding related precisely to those legal considerations. And
the rest of the Report includes recommendations on how to recognize compliance issues
more effectively and report those issues to the CPSC in the future. The Report’s discussion
of “corporate practices, safety, engineering, and product design” is therefore not an
explanation on how to increase profitability; rather, it is an analysis on how to better
understand how risk and safety issues relate to the CPSC regulatory environment to
minimize past and future legal liability. Because this analysis required Falvey to apply her
knowledge of the CPSA and CPSC regulations, her recommendations are purely the
“application of legal principles to guide future conduct” and to “assess pass conduct.” See
In re County of Erie, 473 F.3d at 419. I would thus conclude that the primary purpose of
the Report is to provide legal advice.
My conclusion is further bolstered by the recognition that we do not operate in a
vacuum; the court’s decision causes us to break from the practice of other courts. When a
corporation or business learns that it is under investigation by government regulators, they
frequently turn to lawyers for aid. Although these lawyers investigate the underlying facts
of the situation, their actions “are generally considered law-related and the attorneys
considered lawyers for purposes of the privilege.” Gergacz, supra, at § 3:35.
In reaching a different conclusion, the court is perhaps led astray by the Report’s
use of the term “safety audit” and its references to workplace culture. I address each point
in turn.
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1.
The court suggests that the factual nature of the audit renders the Report
predominately business advice because conceivably an audit could have been performed
by a non-attorney. In support, the court relies solely on one case: Marceau v. IBEW Local
12694, 246 F.R.D. 610, 614 (D. Ariz. 2007). The court’s suggestion is incorrect for several
reasons.
To begin with, the mere fact that a non-attorney may have been able to perform part
of an investigation leading to the writing of a client memorandum is not dispositive. See,
e.g., Rice, supra, at §§ 7.4 (“Interviews conducted by an attorney may fall within the ambit
of the attorney -client privilege even though . . . lay investigators could conduct these
interviews.”), 7.5 (“Whether the work could have been performed by a non-lawyer . . . is
not persuasive evidence that the privilege should not apply.”); Diversified Indus., 572 F.2d
at 610 (noting that the client could have hired accountants “to audit the books and records”
and used lay investigators to interview employees, “but neither would have had the
training, skills and background necessary to make the independent analysis and
recommendations which the Board felt essential to the future welfare of the corporation”);
In re County of Erie , 473 F.3d at 420–21 (stating that “[t]he predominant purpose” test
should be applied “dynamically and in light of the advice being sought,” including
consideration of whether it is “advice that can be given by a non-lawyer” (emphases
added)).
The court’s mistake is to overlook the purpose for which an attorney has been hired:
the focus is not on whether a non-attorney could have participated in the factual inquiry
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necessary to render the advice; rather, the focus is on whether the sought-after advice itself
could have been given by a non-attorney. Diversified Indus., 572 F.2d at 610; In re County
of Erie, 473 F.3d at 420–21; see also Alomari v. Ohio Dep’t of Pub. Safety, 626 F. App’x
558, 570 (6th Cir. 2015); Gergacz, supra, at § 3:30. Here, a non-attorney could not have
done so. This was not a situation in which “[n]o legal background would be necessary or
even particularly useful in completing the task.” Gergacz, supra, at § 3:35. As explained
above, Falvey clearly relied on her legal experience to determine what facts were relevant
to Polaris’s CPSA compliance program. A determination of those facts was necessary for
her to render legal advice on how to comply more closely with federal regulations.
For that reason, Marceau is distinguishable. The investigation in that case seems to
have dealt mainly with determining whether the corporation’s internal practices “were
subject to abuse” by its employees. Marceau , 246 F.R.D. at 613. It is not clear that the
attorneys needed to employ their legal training to determine what facts were relevant to
their report, and it is further unclear that their recommendations were even related to the
law.6 See id. at 614; see also In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d at 803– 04
(“Suffice it to say, the advice envisioned by the attorney-client privilege is advice about

6 The analysis in Marceau might be read to suggest that attorneys in that case did, in
fact, employ their legal education and experience to guide their work. But if that is the
case, then the federal district court would have clearly erred by holding that the report was
not privileged in its entirety. See ABB Kent- Taylor, Inc., 172 F.R.D. at 57 (stating that
legal advice is “an amalgamation of education, knowledge, experience and legal wisdom
which counsel may draw upon to give a frank and unconstrained opinion”); Spectrum Sys.
Int’l Corp., 581 N.E.2d at 1061–62 (stating that legal advice includes communications
reflecting “the attorney’s professional skills and judgments”).

D-18
the laws imposed on us by society, not the rules that we impose on ourselves through
guidelines, manuals, or otherwise.”). By contrast, this case involves an examination of
Polaris’s CPSA compliance practices and recommendations on how to adhere to those
statutes and regulations more closely. Because Marceau is nonbinding and
distinguishable,7 there is no principled reason for our court to rely on it.
Instead of Marceau, this case is more similar to an Eighth Circuit decision,
Diversified Industries, 572 F.2d 596. The plaintiff in that case sued the defendant for
allegedly using a secret “slush fund” to bribe the plaintiff’s purchasing agents. Id. at 607.
In response, the defendants hired a law firm “to conduct an investigation . . . for the
purposes of eliciting facts, making certain findings, and providing to the Board of Directors
of this Corporation a report possibly containing recommendations as to course of action.”
Id. The report drafted by the law firm was very similar to the Report at issue in this case.
It “summarized these interviews, analyzed the accounting data, evaluated the conduct of
certain employees, drew conclusions as to the propriety of their conduct and made
recommendations as to steps [the defendant] should take.” Id. at 608. Despite the fact that

7 Additionally, Marceau may have been abrogated by a recent Ninth Circuit case.
Marceau declined to apply the presumption that a matter submitted to legal professionals
is predominately a request for legal advice. See Diversified Indus., 572 F.2d at 610
(explaining and applying the presumption); Chen, 99 F.3d at 1501 (a Ninth Circuit case
doing the same); Sanmina Corp., 968 F.3d at 1116 (same). But see Marceau, 246 F.R.D.
at 613 (distinguishing Chen). Because it declined to apply Chen, Marceau may have been
abrogated by the Ninth Circuit’s more recent decision in Sanmina Corp., which explicitly
relied on the presumption as articulated in Chen. Samina Corp., 968 F.3d at 1116, 1118
n.2 (“While [the privilege proponent] does not explicitly describe the advice sought as
‘legal,’ such an inference would not be unreasonable given the undisputed fact that DLA
Piper is a law firm, which comes with a ‘rebuttable presumption’ that the firm was engaged
for its legal knowledge.” (citing Chen, 99 F.3d at 1502)).
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“[a]ccountants and lay investigators” could have conducted the investigation, the Eighth
Circuit held that the resulting report was clearly privileged. Id. at 610.
Notably, the court applied the presumption that the matter was legal in character
because it was committed to attorneys. Id. From there the court found it important that
the attorneys in Diversified Industries were “given the authority to analyze . . . data [and]
to evaluate and draw conclusions as to the propriety of past actions and to make
recommendations for possible future courses of action.” Id. The same is true here.
2.
The court is also led astray by the Report’s mention of workplace culture.
Specifically, the court states that the “report addresses the organizational culture of Polaris”
and therefore is merely “setting corporate policy.” In different circumstances, the court’s
conclusion might well have merit. For instance, advice on how to resolve a breach of
contract claim may be entirely unrelated to the workplace culture in which the breach
occurred. But the court is wrong to dismiss the legal relevance of that element in the work
done here.
The workplace culture of an organization is an important factor examined by
regulators, including the CPSC. See 16 C.F.R. § 1119.4(b)(1). For example, a company’s
workplace culture can factor into a regulator’s decision to pursue an enforcement action
against that company. See Halebian v. Berv, 869 F. Supp. 2d 420, 453 (S.D.N.Y. 2012)
(considering the compliance culture of a company in a securities case); see also Robert C.
Bird, Caremark Compliance for the Next Twenty-Five Years, 58 Am. Bus. L. J. 63, 109
(2021) (“A culture of integrity can foster improved relations with outside regulators. Front-
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line regulators who interact with firms may make the initial decision of whether certain
misconduct merits leveraging their agency’s limited enforcement resources against those
firms.”). And in the CPSA co ntext, a company’s compliance culture can inform the
severity of civil penalties. 16 C.F.R. §§ 1119.4(b)(1), (b)(3). References in the Report to
culture therefore are not a reflection of the “non-legal” aspects of Polaris’s business. Those
references are direct responses to the legal question posed by Polaris: Identifying corporate
compliance weaknesses and providing advice and recommendations on how to address
those issues going forward.8
Because the context reveals that the Report’s findings and reco mmendations
relating to Polaris are purely focused on CPSA compliance, a topic squarely within
Falvey’s legal training, expertise, and experience, I would conclude that the predominant
purpose of the Report is legal advice and therefore it is privileged in its entirety. 9

8 One part of the Report explicitly ties workplace culture to federal regulatory
standards.

9 The court’s conclusion also may have been influenced by the relatively few legal
citations present in the Report. If that is true, then unfortunately the court has followed a
red herring to the wrong conclusion. Legal advice need not include “legal research.”
Spectrum Sys. Int’l Corp., 581 N.E.2d at 1061–62. Attorneys do more than simply “cit[e]
cases and espous[e] legal theories.” ABB Kent-Taylor, Inc., 172 F.R.D. at 56. Moreover,
due to Falvey’s intimate understanding of the CPSA and CPSC regulations, she likely
found it unnecessary to resort to precise citations to bolster her already clearly authoritative
analysis. Simply put, the Report obviously reflects her “professional skills and judgments”
as well as her “experience” with the CPSC and CPSA. See Spectrum Sys. Int’l Corp.,
581 N.E.2d at 1061–62.

D-21
B.
This conclusion is mandated by our decision in Kobluk, 574 N.W.2d at 440–43. The
plaintiff in that case presented an argument nearly identical to the argument advanced by
Thompson. See id. at 441. Kobluk argued that two drafts of a letter “represented a request
for and provision of literary or personnel, rather than legal, advice.” Id. We rejected that
argument by explicitly relying on the presumption that a matter “committed to a
professional legal adviser is prima facie so commit ted for the sake of the legal
advice . . . unless it clearly appears to be lacking in aspects requiring legal advice.” Id. at
442 (quoting Wigmore, supra, at 567).
As I have explained, the reliance by Thompson and the court on the Report’s
discussion of workplace culture and process improvements aimed at CPSA compliance
fails as evidence of business advice. Rather, in the context of the regulatory environment
in which Polaris operates and its regulatory obligations for CPSA compliance, those
discussions are classic legal advice justifying the protection of the attorney-client privilege.
Because Thompson’s sole argument on this point fails, he essentially urges us to do
precisely what we rejected in Kobluk. He asks us to conclude that he has overcome the
presumption of legal advice because he makes a “mere assertion” that the Report is “of a
nonlegal character.” Id. That argument failed in Kobluk, and stare decisis requires that we
reject it here. What, then, does the court rely on to rebut Kobluk’s presumption in this
case?
Nothing. The court essentially overrules the Kobluk presumption— in a footnote.
The court attempts to distinguish Kobluk by declaring that the presumption has “limited
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utility” in the context of mixed legal and nonlegal advice. But that was precisely the
situation in Kobluk, and there we held that a “mere assertion” could not overcome the
presumption that a communication with counsel was for legal advice. 574 N.W.2d at 442–
43. The court simply declines to follow Kobluk.
As a matter of stare decisis, “we are ‘extremely reluctant’ to overturn our precedent
and ‘require a compelling reason to do so.’ ” County of Hennepin v. Laechelt, 949 N.W.2d
288, 292 n.1 (Minn. 2020) (quoting Warren v. Dinter , 926 N.W.2d 370, 377 n.7 (Minn.
2019)). This is doubly true for issues —such as attorney client privilege—that rely on
stability and uniformity. See Jicarilla Apache Nation, 564 U.S. at 183 (“[F]or the attorney-
client privilege to be effective, it must be predictable.”). The court offers no compelling
reason to depart from our precedent in Kobluk.
Nor could Thompson carry the “equally difficult, if not greater, burden of
demonstrating that the services were not legal.” Rice, supra, at § 7.10. The court
acknowledges that the Report discusses Polaris’s legal duties, litigation defenses, and the
role that lawyers play in responding to CPSC requests and investigations. But then the
court simply declares that the Report does not embody a communication in which legal
advice is sought or rendered. From there, the court concludes that the portions of the Report
containing legal advice are not “intimately intertwined with and difficult to distinguish
from” the parts of the Report that contain “business advice.” See Sedco Int’l, S. A. v. Cory,
683 F.2d 1201, 1205 (8th Cir. 1982). Thus, in a matter of paragraphs, the court concludes
that the Special Master reached the correct decision and all that remains is to redact portions
of the Report as the Special Master directed.
D-23
I cannot begin to fathom how the district court, or the parties, will implement this
command. The portions of the Report that come closest to business advice are its
recommendations that may have an incidental effect of improving the efficiency of
Polaris’s business operations. But for reasons explained above, those very same
recommendations also directly relate to legally relevant considerations of CPSA
compliance. Far more than being merely “intertwined,” id., the Report’s legal
recommendations and business recommendations are, in fact, the same
recommendations.10 The Report is simply not susceptible to a line -by-line redaction
process in which the district court could reveal to Thompson’s attorneys the Report’s
business-only advice and at the same time shield as privileged the Report’s legal-only
advice.
More importantly, requiring district courts to closely parse attorney-client
communications in this manner will inevitably lead to inconsistent results. This Report is
a prime example. By failing to adhere to the Kobluk presumption that the Report
predominately relates to legal advice, the court’s holding would allow some district courts
to conclude that certain portions of the Report are privileged and, at the same time, would
allow other district courts to reach contrary conclusions. The lack of predictability

10 The court does not identify any part of the Report that is solely intended to increase
the profitability of Polaris.
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stemming from the court’s holding undermines the effectiveness of the privilege, precisely
the risk the Supreme Court cautioned against in Jicarilla Apache Nation, 564 U.S. at 183.11
Similar to the approach rejected in Jicarilla Apache Nation, the court’s reasoning
creates a dilemma for businesses considering seeking legal advice. Although a client might
think a problem is entirely legal, that client “will not always be able to predict” what type
of advice an attorney would provide. Id. Lawyers should account for “moral, economic,
social, and political factors,” Minn. R. Prof. Conduct 2.1, and should consider more than
just “narrow legal terms,” id. cmt. 2. Indeed, there are times when “[p]urely technical legal
advice” would be “inadequate” to advance a client’s interests. Id. To obtain effective legal
advice, clients often must disclose to their attorneys all sorts of facts they would rather
keep private. See Upjohn Co., 449 U.S. at 389. Line-by-line redaction exposes those

11 In that case, the Supreme Court considered whether the “fiduciary exception”
applies to the attorney-client privilege that would otherwise protect confidential
communications between government officials and government attorneys. Jicarilla
Apache Nation, 564 U.S. at 165–70. That exception states that a “trustee cannot withhold
attorney-client communications from the beneficiary of the trust.” Id. at 165. In holding
that the exception does not apply, the Court distinguished true private trusts from statutory
trusts established for the benefit of Indian tribes. Id. at 173 –78. Crucially, the Court
rejected the Federal Circuit’s “case- by-case” approach in which the Government would
need to articulate a “specific competing interest” against the tribe to maintain privilege. Id.
at 182–83.
If the Government were required to identify the specific interests it
considered in each communication, its ability to receive confidential legal
advice would be substantially compromised. The Government will not
always be able to predict what considerations qualify as a “specific
competing interest,” especially in advance of receiving counsel’s advice.
Forcing the Government to monitor all the considerations contained in each
communication with counsel would render its attorney-client privilege “little
better than no privilege at all.”
Id. at 183.
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potentially unsavory and damaging facts to forcible disclosure through the discovery
process because those facts are not “legal advice.”
Rather than confront the risk that a variable and hard-to-define standard might yield
damaging disclosures, businesses will inevitably choose to forgo seeking legal advice
altogether. Or, to avoid the line-by-line redaction the court adopts, lawyers will be forced
to drape advice and recommendations in the fabric of legal citations and legal
research—formalities that thus far no court has insisted on and an expense that few clients
will want to incur. Thus, the court today has, perhaps inadvertently, undercut the prime
rationale for the attorney-client privilege, first advanced hundreds of years ago. See
Wigmore, supra, at 545. In short, the court has significantly limited the “freedom of
consultation of legal advisers by clients” by reinstating “the apprehension of compelled
disclosure by the legal advisers.” Id.
For these reasons, we should hold the entirety of the Report privileged. I would
conclude that the Report predominately delivers legal advice, grant the petition for a writ
of prohibition, and remand to the district court with instructions to grant the motion of
Polaris to claw back the Report.

GILDEA, Chief Justice (dissenting).
I join in the dissent of Justice Anderson.