Energy Transfer LP (formerly known as Energy Transfer Equity, L.P.) v. Greenpeace International ...

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1284

Energy Transfer LP (formerly known as
Energy Transfer Equity, L.P.), et al.,
Appellants,

vs.

Greenpeace International (also known as
Stichting Greenpeace Council), et al.,
Defendants,

Unicorn Riot, et al.,
Respondents.

Filed May 6, 2024
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Hennepin County District Court
File No. 27-CV-22-9790

Richard D. Snyder, Fredrikson & Byron, P.A., Minneapolis, Minnesota; and

Lawrence Bender, Fredrikson & Byron, P.A., Bismarck, North Dakota (for appellants)

Christopher M. Proczko, Sapientia Law Group, PLLC, Minneapolis, Minnesota; and

Ryan R. Simatic, Biersdorf & Associates, P.A., Minneapolis, Minnesota (for respondents)

Cassandra B. Merrick, Madel, P.A., Minneapolis, Minnesota (for amicus curiae Tony
Webster)

Mark R. Anfinson, Minneapolis, Minnesota (for amici curiae Reporters Committee for
Freedom of the Press, et al.)

Mahesha P. Subbaraman, Subbaraman, PLLC, Minneapolis, Minnesota (for amicus curiae
The Forum for Constitutional Rights)
 Considered and decided by Cochran, Presiding Judge; Segal, Chief Judge; and

Smith, John, Judge. ∗

SYLLABUS

1. The protections of the Minnesota Free Flow of Information Act (MFFIA),

Minn. Stat. §§ 595.021-.025 (2022), are not limited only to newsgathering information

obtained by means of lawful, nontortious conduct.

2. In a proceeding to enforce a third-party subpoena, a district court may not

require the third party to produce a privilege log or submit information for in camera

inspection that is privileged under the MFFIA and does not fall within a statutory

exception.

OPINION

SEGAL, Chief Judge

Appellants, who constructed and own the Dakota Access Pipeline (DAPL),

challenge a district court order that denied their motion to enforce a third-party subpoena

against respondents, a nonprofit media organization and one of its journalists, who were

embedded with and reported on DAPL protests. 1 Appellants assert that the district court

erred in determining that respondents are entitled to the protections of the MFFIA against

disclosure of newsgathering information because the protections do not extend to

information acquired through respondents’ allegedly unlawful and tortious conduct.

∗
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
1
This appeal was brought pursuant to Minn. Stat. § 595.024, subd. 3.

2
 By notice of related appeal, respondents assert that the district court erred by

requiring them to produce a privilege log, and to make available for in camera review at

the request of the district court, information that is protected from disclosure by the

MFFIA. Respondents also assert that they are entitled to an award of attorney fees.

We affirm the district court’s determination that the information gathered by

respondents during their coverage of the DAPL protests is privileged under the MFFIA and

that neither exception provided in the MFFIA applies. But we conclude that the district

court erred by requiring respondents to produce a privilege log and to submit for in camera

review, if requested by the court, information that is privileged under the MFFIA. We

decline to consider respondents’ claim for attorney fees because the district court did not

rule on that request. We therefore affirm in part, reverse in part, and remand for further

proceedings.

FACTS

Appellants Energy Transfer LP, et al. (collectively Energy Transfer), sued

Greenpeace International and other entities and persons (collectively Greenpeace), in state

court in North Dakota in 2019. Respondents Unicorn Riot and Niko Georgiades were not

sued by Energy Transfer and are not otherwise parties to the North Dakota action. In the

North Dakota suit, Energy Transfer alleged that Greenpeace had engaged in a civil

conspiracy to stop construction of the DAPL, a 1,172-mile-long oil pipeline extending from

North Dakota to Illinois. In addition to the civil-conspiracy claim, Energy Transfer brought

numerous tort claims against Greenpeace, including claims for trespass, conversion,

nuisance, defamation, and tortious interference with business relations. The allegations

3
stemmed primarily from protests that took place between July 2016 and November 2016,

as the DAPL neared completion. According to Energy Transfer, thousands of protesters

gathered at the DAPL construction site near Lake Oahe in North Dakota and engaged in

demonstrations that included locking themselves to construction equipment, setting up

roadblocks, threatening law enforcement and DAPL personnel, and burning vehicles,

which shut down construction.

Unicorn Riot is a Minnesota-based entity that identifies itself as a “non-profit media

organization of journalists” that “engages and amplifies the stories of social and

environmental struggles from the ground up.” Georgiades has been a member-journalist

of Unicorn Riot since its founding in 2015. Members of Unicorn Riot, including

Georgiades, were present at and provided media coverage of the DAPL protests. The

coverage included written reports published on Unicorn Riot’s website, and updates,

interviews, and livestreams posted on Unicorn Riot’s social-media accounts. Several

members of Unicorn Riot were arrested during the protests, but any criminal charges

brought against them were eventually dismissed.

In March 2021, Energy Transfer served Unicorn Riot 2 with subpoenas duces tecum

that were captioned showing venue in Hennepin County District Court. The subpoenas

contained requests for 16 categories of documents, seeking:

2
From this point forward, we refer to Unicorn Riot and Georgiades collectively as
“Unicorn Riot,” except where Georgiades is separately identified.

4
 Documents and communications, including video and audio
recordings, concerning actual or planned Direct Action[3]
relating to Energy Transfer, Dakota Access, and/or DAPL, . . .
concerning the use of, or trespass onto, any Dakota Access land
or DAPL construction site for any actual or planned Direct
Action[, and] . . . concerning any action by you or any other
person, group, or entity to halt, impede, obstruct, block, delay,
or interfere with DAPL construction and/or to damage or
attempt to damage DAPL construction equipment.

The subpoenas also requested: “[c]ommunications, including video and audio recordings,

concerning Energy Transfer, Dakota Access, or DAPL, including concerning any actual or

possible Direct Action, between or involving [Unicorn Riot] and: (i) Greenpeace,” or 15

other named entities, including any joint plans for such action; information concerning

financial or other support to Unicorn Riot, Greenpeace, or any other person or entity in

support of the protest activity; information related to the payment of attorney’s fees, court

costs, fines, or bail related to any opposition to the pipeline; and other similar requests.

Finally, the subpoenas sought information sufficient to identify the organizational

structure of Unicorn Riot, “including but not limited to employees, supporters, participants,

agents, members, [and] volunteers,” among others; information identifying Unicorn Riot’s

social-media accounts; communications distributed via social media or email; and all other

published materials, including “any drafts, edits, or revisions, and all documents and

communications concerning the funding, development, research, drafting, editing, review,

revision, approval, publishing, or dissemination of such materials.”

3
The phrase “Direct Action” is defined in the subpoenas as “any action to halt, impede,
harm, injure, obstruct, block, delay, or interfere with the activities of any company.”

5
 Unicorn Riot responded to the subpoenas with a letter from its counsel, in which

Unicorn Riot asserted the MFFIA privilege, noting that the requests sought “documents

related to and arising out of Unicorn Riot’s newsgathering activities near the [DAPL].”

Unicorn Riot also asserted protections under the First Amendment of the U.S. Constitution

and objected to the requests claiming that they were vague, overly broad, and unduly

burdensome under Minn. R. Civ. P. 45.03 and 45.04.

In response to several of the subpoena requests, the letter advised that Unicorn Riot

had no responsive documents because it “did not engage in any Direct Action relating to

Energy Transfer, Dakota Access, or DAPL”; “is not aware of having received ‘any monies

or other financial support, supplies, items, equipment, food, lodging, transportation,

weapons, implements, things, or other tangible support’ from any of the named

Defendants”; and “had no ‘understandings, joint plans, or agreements’ with the Defendants

in the underlying action concerning the Plaintiffs in the underlying action.” The letter also

provided the website addresses and social-media pages where all of Unicorn Riot’s

published information could be found, including its published reports and a documentary

related to the protests.

Not satisfied with the response, Energy Transfer filed a motion in Hennepin County

District Court to compel Unicorn Riot to comply with the subpoenas. Energy Transfer

asserted, consistent with its argument on appeal, that the MFFIA and First Amendment

only protected “lawful news gathering,” and therefore did not apply because Unicorn Riot

and its members “engaged in unlawful conduct” that included trespassing on the DAPL

construction site during the protests. Energy Transfer argued, in the alternative, that

6
Unicorn Riot should be required to produce a privilege log for any information that it

claimed to be privileged.

Unicorn Riot opposed the motion, arguing that the requested documents were

“newsgathering materials” and therefore privileged under the MFFIA and the First

Amendment, and that the subpoenas were overly broad and unduly burdensome. Unicorn

Riot also requested an award of attorney fees. In an affidavit, Georgiades described the

role of Unicorn Riot and its journalists in reporting on the protests:

Unicorn Riot member journalists provided our own
transportation and accommodations while reporting on the
demonstrations and protesters. We carried press passes and
identified ourselves as press. We conducted interviews,
broadcast live videos through social media, and reported on the
camp, the protestors, and the demonstrations. We did not share
resources with the protestors, and we did not participate in any
planning of protests, demonstrations, or any other actions made
in protest of the construction and operation of the Dakota
Access Pipeline.

The district court denied the motion to compel. The district court determined that,

“[u]nder a plain reading of the statute, Georgiades and Unicorn Riot [were] news media

whose sources and unpublished information should be protected”; the subpoenas were

“almost certain to request the disclosure of information and documents privileged by the

[MFFIA]”; and Energy Transfer failed to establish that the information requested fell under

a statutory exception. But the district court noted the possibility that not all of the requested

documents were privileged, and that “[a]s it stands, [Energy Transfer has] no notice of

whether any documents exist, much less the specific nature of the privilege claimed for

7
each one.” The district court therefore ordered Unicorn Riot to “produce a log of all

responsive documents and answers claimed as privileged.” The order further provided:

If called upon by the Court, Niko Georgiades and Unicorn Riot
shall produce, for in camera inspection, any and all documents
identified in their respective privilege logs. The Court, in its
discretion, shall consider any requests for in camera review
on[ce] the logs have been produced.

The district court did not address Unicorn Riot’s First Amendment argument because “the

documents that would be privileged by that legal theory are almost certainly . . . privileged

under the MFFIA.” The district court also declined to address the argument that the

subpoenas were overly broad and burdensome and did not rule on Unicorn Riot’s request

for attorney fees.

Unicorn Riot filed a motion for relief from the portion of the district court’s order

requiring Unicorn Riot to produce a privilege log and to submit documents for in camera

review if requested by the district court. Unicorn Riot contended the “bespoke procedure”

created by the district court required Unicorn Riot to include in the privilege log

“documents that are protected from compelled disclosure.” Unicorn Riot also argued that

it was improper for the district court to require a privilege log be produced “without first

requiring [Energy Transfer] to make a threshold showing of materiality, necessity, and

unavailability of the subpoenaed materials.” The district court denied Unicorn Riot’s

motion.

ISSUES

I. Did the district court err in determining that the MFFIA applies to information
gathered by Unicorn Riot relating to the DAPL protests?

8
II. Did the district court err in ordering Unicorn Riot to produce a privilege log and, if
requested by the district court, to produce materials identified in the log for in
camera review?

III. Is Unicorn Riot entitled to an award of attorney fees?

ANALYSIS

I. The district court did not err in determining that the MFFIA applies to
information gathered by Unicorn Riot relating to the DAPL protests.

Energy Transfer argues that the district court erred in determining that the

information sought from Unicorn Riot is privileged under the MFFIA. Whether an

evidentiary privilege applies is a question of law reviewed de novo. State v. Expose, 872

N.W.2d 252, 257 (Minn. 2015); see also Energy Pol’y Advocs. v. Ellison, 980 N.W.2d 146,

155 (Minn. 2022) (reviewing the scope of a privilege de novo). We also review de novo

questions of statutory interpretation involving the applicability of a statutory privilege.

State v. Conrad (In re Hope Coal.), 977 N.W.2d 651, 657 (Minn. 2022).

The MFFIA provides: “In order to protect the public interest and the free flow of

information, the news media should have the benefit of a substantial privilege not to reveal

sources of information or to disclose unpublished information.” Minn. Stat. § 595.022. To

that end, the MFFIA prohibits the disclosure of certain protected materials. Specifically,

Minn. Stat. § 595.023 provides:

Except as provided in section 595.024, no person who
is or has been directly engaged in the gathering, procuring,
compiling, editing, or publishing of information for the
purpose of transmission, dissemination or publication to the
public shall be required by any court, grand jury, agency,
department or branch of the state, or any of its political
subdivisions or other public body, or by either house of the
legislature or any committee, officer, member, or employee

9
 thereof, to disclose in any proceeding the person or means from
or through which information was obtained, or to disclose any
unpublished information procured by the person in the course
of work or any of the person’s notes, memoranda, recording
tapes, film or other reportorial data whether or not it would tend
to identify the person or means through which the information
was obtained.

The MFFIA contains two exceptions to the prohibition on disclosure. The first, set

out in section 595.024, relates to information sought in connection with certain criminal

offenses. The exception applies if the district court determines that the person seeking the

disclosure has established “by clear and convincing evidence”:

(1) that there is probable cause to believe that the specific
information sought (i) is clearly relevant to a gross
misdemeanor or felony, or (ii) is clearly relevant to a
misdemeanor so long as the information would not tend to
identify the source of the information or the means through
which it was obtained,
(2) that the information cannot be obtained by alternative
means or remedies less destructive of first amendment rights,
and
(3) that there is a compelling and overriding interest
requiring the disclosure of the information where the
disclosure is necessary to prevent injustice.

Minn. Stat. § 595.024, subd. 2.

The second exception, set out in section 595.025, applies to defamation actions

“where the person seeking disclosure can demonstrate that the identity of the source will

lead to relevant evidence on the issue of actual malice.” Minn. Stat. § 595.025, subd. 1.

This section, which is the only other statutory exception in the MFFIA, requires a

determination:

(a) that there is probable cause to believe that the source
has information clearly relevant to the issue of defamation;

10
 (b) that the information cannot be obtained by any
alternative means or remedy less destructive of first
amendment rights.

Id., subd. 2.

Here, the record supports, and Energy Transfer does not challenge, at least for the

purposes of this appeal, the district court’s finding that Unicorn Riot was “directly engaged

in the gathering, procuring, compiling, editing, or publishing of information for the purpose

of transmission, dissemination or publication to the public” and therefore qualifies as a

news media organization. Minn. Stat. § 595.023. Unicorn Riot provided extensive media

coverage of the DAPL protests, which included livestreaming videos through social-media

platforms, interviewing protesters, and written coverage on Unicorn Riot’s website. The

coverage had a clear ideological bent, as one of Unicorn Riot’s stated goals is to “engage[]

and amplif[y] the stories of social and environmental struggles,” but the MFFIA does not

require that media coverage be politically neutral to qualify for the privilege against

disclosure of information, and Energy Transfer acknowledges as much.

Energy Transfer also does not assert that either statutory exception, sections 595.024

or 595.025, applies. Rather, Energy Transfer contends that the MFFIA “does not and

should not apply to protect information acquired during or related to a purported

newsgatherer’s unlawful conduct.” Energy Transfer argues that Unicorn Riot’s conduct at

the DAPL protests “went beyond legitimate newsgathering when it engaged in deliberate,

unlawful trespass onto [Energy Transfer’s] private construction sites” and in doing so

“Unicorn Riot stepped outside of the protection afforded by the MFFIA.”

11
 We reject Energy Transfer’s argument for three reasons. First, it would require us

to add the word “lawful” into section 595.023 such that the privilege against disclosure of

information would extend only to “the [lawful] gathering, procuring, compiling, editing, or

publishing of information.” But in interpreting a statute, we may not “add words to the

plain language of a statute to fit with an identifiable policy.” Gen. Mills, Inc. v. Comm’r

of Revenue, 931 N.W.2d 791, 800 (Minn. 2019); see also Energy Pol’y Advocs., 980

N.W.2d at 158-59 (“[W]e may not add words to a statute that the Legislature has not

supplied.” (quotation omitted)). The legislature included two and only two exceptions to

the privilege against disclosure accorded under the MFFIA. “If the Legislature intended

other exceptions to apply, the Legislature could have” easily included them. Hope Coal.,

977 N.W.2d at 658.

Second, Energy Transfer’s argument conflicts with the provisions of the MFFIA

because it would judge the applicability of the privilege based on the means used for

newsgathering. The MFFIA does not allow for such a distinction. To the contrary, the

statute protects a news gatherer from being required “to disclose . . . [the] means from or

through which information was obtained.” Minn. Stat. § 595.023.

Third, the cases cited by Energy Transfer are easily distinguished. Five of the six

cases cited by Energy Transfer involve lawsuits brought against reporters for defamation,

trespass, or other torts, and address the scope of First Amendment protections from such

claims. For example, Energy Transfer cites Food Lion, Inc. v. Capital Cities/ABC, Inc.,

which involved two reporters who submitted resumes containing false information and

were hired by a grocery store. 194 F.3d 505, 510 (4th Cir. 1999). The reporters did so as

12
part of an investigation into a report alleging that the grocery store was “engaging in

unsanitary meat-handling practices.” Id. Once on the job, the reporters secretly videotaped

the meat-handling practices at the store. Some of the footage was broadcast as part of a

news segment critical of those practices. Id. at 510-11. The grocery store sued the

television station and reporters, asserting claims of fraud, breach of duty, trespass, and

unfair trade practices. Id. at 511.

The television station argued, as applicable here, that the First Amendment offered

protections from liability because the reporters “were engaged in newsgathering.” Id. at

520. The Fourth Circuit rejected this argument, concluding that the First Amendment

offers no general immunity to reporters from the tort claims asserted against them in the

suit. Other cases cited by Energy Transfer are in accord, including Galella v. Onassis, 487

F.2d 986, 995 (2d Cir. 1973) (“Crimes and torts committed in news gathering are not

protected.”); Desnick v. American Broadcasting Companies, 44 F.3d 1345, 1351 (7th Cir.

1995) (“[T]here is no journalists’ privilege to trespass.”); Nicholson v. McClatchy

Newspapers, 223 Cal. Rptr. 58, 63 (Cal. Ct. App. 1986) (stating “reporters are not

privileged to commit crimes and independent torts in gathering the news”); and Prahl v.

Brosamle, 295 N.W.2d 768, 781 (Wis. Ct. App. 1980) (concluding “the claimed

constitutional privilege to trespass does not exist”).

In addition to the fact that none of these cases are binding on Minnesota courts, the

issue for which Energy Transfer cites the cases is not apposite to the issue presented in this

appeal. All five cases involve claims brought against reporters or news organizations for

torts allegedly committed by the reporters while gathering news. The cases address

13
whether the First Amendment protects reporters and news organizations from liability for

the alleged tortious conduct. But Energy Transfer has not sued Unicorn Riot for damages

arising out of Unicorn Riot’s alleged conduct. The issue in this appeal is whether Unicorn

Riot can be compelled to disclose information under the MFFIA. The MFFIA does not

offer immunity from liability for tortious conduct. It offers protection against being

required to disclose unpublished newsgathering information and the sources and means

used for newsgathering.

The five cases are also distinguishable because they do not involve claims of

privilege under the MFFIA. The statutory protections offered under the MFFIA are

broader than those afforded by the First Amendment. Our supreme court has expressly

recognized that the MFFIA “was intended to provide additional protection [beyond those

provided by the First Amendment] to reporters and their employers against subpoenas from

litigating parties.” State v. Turner, 550 N.W.2d 622, 631 (Minn. 1996) (noting that the

MFFIA was enacted in reaction to Branzburg v. Hayes, 408 U.S. 665 (1972), in which the

Supreme Court declined to adopt a broad testimonial privilege for reporters under the First

Amendment).

The remaining case relied on by Energy Transfer, United States v. Sanusi, again is

not binding on Minnesota courts and is readily distinguished. 813 F. Supp. 149 (E.D.N.Y.

1992). In Sanusi, the defendant was charged with committing and conspiring to commit

credit-card fraud. Id. at 151. As part of the criminal investigation, federal agents executed

a search warrant at the defendant’s apartment. Id. A CBS camera crew was present for

the execution of the search warrant and videotaped the search, even though the United

14
States Attorney involved in the case instructed the agents not to permit CBS to join the

search. Id. at 151, 161. The defendant subpoenaed CBS, but CBS refused to produce the

videotape. Id. at 151.

The federal district court acknowledged that the First Amendment provided

journalists with some level of privilege but opined that the “privilege for newsgathering is

not absolute.” Id. at 154. The court ultimately determined that the privilege did not apply

and ordered CBS to produce the tape and, in doing so, noted that CBS had obtained the

videotape through trespass. Id. at 160-61. But CBS’s conduct was only one part of the

court’s analysis, which notably also included the determination that “[t]he in camera

review of the tape revealed that it contains potentially exculpatory evidence” and was “not

obtainable from any other source.” Id. at 159-60. And although the court ordered CBS to

produce the tape, it permitted CBS “to obscure the identity of a confidential source.” Id.

at 161.

Unlike Sanusi, this is not a criminal case. And, as noted above, the MFFIA contains

an exception for information relevant to crimes set out in section 595.024. That exception

would seemingly apply to the scenario presented in Sanusi, given that the information

sought—the videotape—was relevant to a felony, could not be obtained by any other

means, contained potentially exculpatory evidence, and was obtained through improper

conduct—trespass. Thus, none of the cases cited by Energy Transfer support the argument

it advances on this appeal.

In sum, we reject Energy Transfer’s contention that the MFFIA applies only when

a newsgatherer obtains information while engaged in lawful, nontortious conduct, and we

15
affirm the district court’s determination that the MFFIA privilege applies to Unicorn Riot’s

newsgathering information related to the DAPL protests.

II. The district court erred in requiring Unicorn Riot to produce a privilege log
and to produce privileged records for in camera review when requested.

By notice of related appeal, Unicorn Riot argues that the district court erred in

requiring Unicorn Riot to produce a privilege log and ordering it to produce, at the court’s

discretion, information identified in the log for in camera review. Unicorn Riot maintains

that the order is in conflict with the MFFIA. District courts are generally accorded broad

discretion in discovery matters, and such orders will not be reversed absent an abuse of

discretion. Underdahl v. Comm’r of Pub. Safety (In re Comm’r of Pub. Safety), 735

N.W.2d 706, 711 (Minn. 2007). When a discovery order is based on statutory

interpretation, as is the case here, appellate courts review issues of statutory interpretation

de novo. 1300 Nicollet, LLC v. County of Hennepin, 990 N.W.2d 422, 431 (Minn. 2023).

Energy Transfer argues that the district court acted well within its discretion in

ordering Unicorn Riot to produce a privilege log. We agree with Energy Transfer that a

district court generally has the authority to order a nonparty to prepare a privilege log, but

we disagree that the district court has authority to order such a log for materials protected

from disclosure under the MFFIA in the absence of a statutory exception.

The disclosure prohibition in the MFFIA declares that no person engaged in news

gathering

shall be required by any court, grand jury, agency, . . . the state,
. . . political subdivisions or other public body, or by either
house of the legislature . . . , to disclose in any proceeding the
person or means from or through which information was

16
 obtained, or to disclose any unpublished information procured
by the person in the course of work[, including] the person’s
notes, memoranda, recording tapes, film or other reportorial
data whether or not it would tend to identify the person or
means through which the information was obtained.

Minn. Stat. § 595.023 (emphasis added). This prohibition on disclosure is broad and

comprehensive, subject only to two narrow exceptions. And neither the district court nor

Energy Transfer have offered any conceivable method of preparing a privilege log that

would not result in the disclosure of privileged information.

Our analysis is informed by the supreme court’s recent opinion in Hope Coalition,

which involved a challenge to a subpoena issued in a criminal-sexual-conduct case for in

camera review of the counseling records of an alleged sexual-assault victim. The statutory

privilege interpreted by the supreme court in Hope Coalition provides that “[s]exual assault

counselors may not be allowed to disclose any opinion or information received from or

about the victim without the consent of the victim.” 977 N.W.2d at 657 (emphasis added)

(quoting Minn. Stat. § 595.02, subd. 1(k) (2020)). The supreme court interpreted the

phrase “may not” in the statute as being “prohibitive,” and determined that the district court

was without authority to order disclosure of the records even for the limited purpose of

in camera review. Id. at 658-59.

The supreme court explained that the statutory privilege established “a broad grant

of protection” from disclosure of the privileged records and a very narrow exception

allowing disclosure “for investigations and proceedings in cases involving neglect or

termination of parental rights” if the district court finds “good cause” for ordering

disclosure. Id. at 658. The supreme court thus held that the privilege “does not permit

17
disclosure of privileged records in a criminal proceeding, even for in camera review,

without the consent of the victim.” Id. at 653; see also State v. Martinez Ramirez (In re

State), 985 N.W.2d 581, 583 (Minn. App. 2023) (citing Minn. Stat. § 595.02, subd. 1(d),

(g) (2022)) (applying the supreme court’s decision in Hope Coalition and determining that

the statutory privileges for medical and mental-health records similarly prohibit disclosure

of such records to a district court for in camera review in a criminal prosecution without

the patient’s consent or an applicable statutory exception), rev. granted (Minn. Mar. 14,

2023) and appeal dismissed (Minn. July 31, 2023).

The reasoning of the supreme court in Hope Coalition appears equally applicable

here. Although the MFFIA protects a different type of information—newsgathering

information rather than counseling records—it similarly creates a broad statutory grant of

protection with narrow enumerated exceptions. We thus conclude that a district court may

not order a privilege log or require the production for in camera review of information that

is privileged under the MFFIA. Accordingly, we reverse that portion of the district court’s

order.

Our reversal, however, does not necessarily end this matter. As the district court

noted, it is possible that not all the information requested by Energy Transfer is privileged. 4

4
Energy Transfer cites in its brief the following requests as seeking nonprivileged
documents: “information about Unicorn Riot’s structure and members; its policies
regarding direct action, financial support provided to it by other entities related to the
pipeline protests; and reports, articles, press releases, statements, and internet postings
prepared by Unicorn Riot related to Appellants and/or the pipeline.” We note that, while
the district court characterized Unicorn Riot as asserting a “blanket claim of privilege” to
all requests, Unicorn Riot did respond to a number of the requests. For example, in the
letter from Unicorn Riot’s counsel, it provided the internet addresses where its published

18
The privilege extends not to Unicorn Riot as an entity, but only to the disclosure of

unpublished newsgathering information and information that may disclose the source and

means of newsgathering. We therefore remand this matter to the district court to determine

(1) whether there is any discoverable information requested in the subpoenas with respect

to which Unicorn Riot has not responded or asserted that the information is privileged, and

(2) whether the requests impose an undue burden or are otherwise objectionable under

Minn. R. Civ. P. 45.03 or 45.04(a).

III. We decline to address the issue of attorney fees for the first time on appeal.

Finally, Unicorn Riot argues that it is entitled to an award of attorney fees. Unicorn

Riot bases its request on Minn. R. Civ. P. 45.03(a), which provides:

A party or an attorney responsible for the issuance and
service of a subpoena shall take reasonable steps to avoid
imposing undue burden or expense on a person subject to that
subpoena. The court on behalf of which the subpoena was
issued shall enforce this duty and impose upon the party or
attorney in breach of this duty an appropriate sanction, which
may include, but is not limited to, lost earnings and a
reasonable attorney’s fee.

Unicorn Riot contends that Energy Transfer’s subpoenas imposed an undue burden and

that an award of fees is appropriate as a sanction.

As previously noted, Unicorn Riot requested an award of attorney fees from the

district court, but the district court did not rule on the request. “This court generally does

information can be found. It also advised that it did not engage in any “Direct Action,” “is
not aware of having received ‘any monies or other financial support’” from the DAPL
protesters named in the North Dakota suit, and “had no ‘understandings, joint plans, or
agreements’ with th[os]e Defendants.”

19
not address issues presented in but not decided by the district court.” Singelman v.

St. Francis Med. Ctr., 777 N.W.2d 540, 543 (Minn. App. 2010) (quotation omitted). In

addition, attorney fees on appeal are not properly requested in a brief. See Minn. R. Civ.

App. 139.05 (“A party seeking attorneys’ fees on appeal shall submit such a request by

motion under Rule 127.”). We therefore decline to address this request for the first time

on appeal. On remand, the district court shall address Unicorn Riot’s request for attorney

fees.

DECISION

We affirm the district court’s determination that the privilege under the MFFIA

applies to Unicorn Riot’s newsgathering information related to the DAPL protests and that

the exceptions in the MFFIA do not apply. But we reverse the portion of the district court’s

order requiring Unicorn Riot to produce a privilege log for all information for which

Unicorn Riot is claiming the MFFIA privilege and to submit information to the district

court for in camera review at the court’s discretion. We remand this matter to the district

court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

20