Kern v. Gandhi

Background

Plaintiff Cody Raymond Kern has been civilly committed to the Minnesota Security Hospital in St. Peter, Minnesota, pursuant to a court order since August 2019. He has diagnoses of schizoaffective disorder and autism spectrum disorder requiring support, and the record reflects that he is unable to answer interrogatories, prepare for depositions, or understand and discuss complex legal theories. Kern brought suit against Shireen Gandhi, in her capacity as Commissioner of the Minnesota Department of Human Services, and the State of Minnesota, alleging violations of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and the Federal Rehabilitation Act (RA), 29 U.S.C. § 794.

In January 2025, defendants propounded discovery on plaintiff and served subpoenas on his parents, Cynthia and Rodman Kern, seeking all communications they had with anyone—including plaintiff's counsel Jason Schellack and Christopher E. Morris (who was appointed to represent Kern in the underlying civil commitment proceeding)—regarding this matter. The Kerns produced some documents and asserted attorney-client privilege over 104 emails identified in a privilege log. After supplemental production and a meet-and-confer process resolved issues of format, metadata, and search adequacy, the sole remaining dispute was whether the withheld documents were privileged. The defendants moved to compel production of all documents withheld on privilege grounds.

Legal Standards Applied

Attorney-Client Privilege

Because this case arises under federal law, the court applied federal common law on attorney-client privilege. The privilege protects confidential communications between attorneys and clients made for the purpose of rendering or obtaining legal advice. The burden of establishing the privilege rests on the party asserting it. The court also noted that the privilege can extend to third parties acting as agents of the client when their presence is necessary to facilitate effective legal advice.

Work Product Doctrine

Under Federal Rule of Civil Procedure 26(b)(3), documents prepared in anticipation of litigation or for trial by or for a party or its representative are generally shielded from discovery. The test is whether, in light of the nature of the document and the specific factual situation, the document can fairly be said to have been prepared because of the prospect of litigation. Once work product protection is established, the party seeking the documents must show substantial need and an inability to obtain the substantial equivalent without undue hardship. Work product protection can be waived if a party intentionally discloses documents in a way that substantially increases the opportunity for adversaries to obtain the information.

Analysis

Documents Covered by the Kerns' Own Attorney-Client Relationship

As a threshold matter, the court noted it is undisputed that plaintiff's counsel Mr. Schellack also represents the Kerns with respect to their responses to the defendants' subpoenas. The court determined that documents bearing Bates Nos. 1077–1234 and 1377–82 are plainly covered by the privilege between the Kerns and their counsel, and the motion to compel was denied as to those documents.

Attorney-Client Privilege Covering the Kerns' Other Communications with Plaintiff's Counsel

The more complex question was whether communications between the Kerns and plaintiff's attorneys—in their capacity as agents helping Kern pursue his claims—are protected by Kern's attorney-client privilege.

Minnesota Rule of Professional Conduct 1.14(b) provides that when a lawyer reasonably believes that a client has diminished capacity, is at risk of harm, and cannot adequately act in the client's own interest, the lawyer may take reasonably protective action, including consulting individuals who can protect the client. Rule 1.14(c) further provides that information relating to the representation of a client with diminished capacity remains confidential under Rule 1.6. Comment 3 to Rule 1.14 states that the participation of family members in discussions with the lawyer generally does not destroy the attorney-client privilege.

The court rejected defendants' argument that Rule 1.14 only applies when a client is legally incapacitated, finding that the Rule's standard is whether counsel could "reasonably believe" the client has diminished capacity—a lower threshold. The court found the record amply supported that conclusion given Kern's civil commitment, his diagnoses, and his documented inability to assist with interrogatories, depositions, or complex legal concepts.

The court surveyed case law on whether the presence of family members waives attorney-client privilege, emphasizing that the key inquiry is whether the family member's presence was reasonably necessary to protect the client's interests and whether the client and family member have conflicting interests. The court found no conflict of interest between Kern and his parents, and found their participation was necessary to allow counsel to responsibly represent a client with significant cognitive and psychiatric limitations. The Kerns acted as Kern's agents, providing background information, facts, and timelines that Kern's conditions would make difficult for him to convey directly.

The court held that counsel's communications with the Kerns made for the purpose of obtaining or providing legal advice regarding Kern's claims are protected by the attorney-client privilege. The court also applied a broader scope of privilege than in a cited Idaho case (Stevens v. Brigham Young University-Idaho) because Kern's circumstances—civil commitment and significant psychiatric diagnoses—were more severe than those in that case.

Work Product Doctrine

The court separately found that the work product doctrine also protects the communications in the privilege log. After reviewing the 37-page Second Revised Privilege Log, which described documents such as emails about a neuropsychological report, revisions to the complaint, and a timeline prepared by the Kerns, the court determined these communications would reveal counsel's mental impressions, conclusions, opinions, and legal theories.

The court then addressed whether sharing these materials with the Kerns and with Mr. Morris (Kern's separately appointed attorney in the civil commitment proceeding) waived work product protection. The court found no waiver because: (1) Mr. Morris is bound by confidentiality obligations under the Minnesota Rules of Professional Conduct; (2) the Kerns' communications with counsel are themselves protected by the attorney-client privilege; and (3) disclosure to these individuals did not substantially increase the opportunity for adversaries to obtain the information. The court contrasted this with situations where work product had been broadly disseminated—such as mass emails to a professional group—that courts have found to constitute waiver. The court also found that defendants failed to establish substantial need for the documents or an inability to obtain their substantial equivalent by other means, as required under Rule 26(b)(3)(A)(ii).

Disposition

Defendants' Motion to Compel Discovery (Dkt. 65) was denied in its entirety.