Kern v. Gandhi
Cody Raymond Kern v. Shireen Gandhi, in her capacity as the Commissioner of the Minnesota Department of Human Services, and the State of Minnesota
- Katherine Menendez
- 0:24-cv-00348
- U.S. District Court · District of Minnesota
- 18
Counsel of record per CourtListener. Firm names are approximate and have been consolidated across spelling variants.
In Kern v. Gandhi, Judge Menendez ruled that emails between plaintiff's parents and his attorney are protected work product and cannot be turned over to the defense.
Individuals with cognitive or mental disabilities who rely on family members to assist them in litigation, and their attorneys; the ruling confirms that communications between an attorney and a client's parent or family member acting as the client's agent may be protected from disclosure to opposing parties as attorney work product.
What happened
In Kern v. Gandhi, No. 0:24-cv-00348, Cody Raymond Kern — a civilly committed resident at the Minnesota Security Hospital — sued the Commissioner of the Minnesota Department of Human Services and the State of Minnesota, alleging they failed to accommodate his autism spectrum disorder and punished him for behaviors related to it. Because Kern has diminished mental capacity and limited access to his attorney, his parents, Cynthia and Rodman Kern, played an active role in the litigation — communicating regularly with his lawyer, helping gather documents, and assisting with discovery responses. The defendants sought to force disclosure of the email exchanges between the Kerns and Kern's attorney, but a magistrate judge denied that request, and the defendants objected.
The central legal question was whether those emails were shielded from disclosure under the "work product doctrine" — a rule that protects documents and communications an attorney creates or gathers in preparation for litigation. The defendants argued the Kerns were outside third parties whose involvement stripped away that protection, or that the attorney waived it by sharing materials with them. The district court disagreed, finding that the Kerns were acting as Kern's legal agents because he had effectively authorized them to assist his attorney on his behalf, given his limited ability to independently direct his own case.
Judge Katherine M. Menendez overruled the defendants' objections, affirmed the magistrate judge's order, and denied the Motion to Compel. The court found that the Kerns had apparent authority to act as Kern's agents, that their communications with his attorney fell within the scope of work product protection, that the defendants failed to show the substantial need required to overcome that protection, and that no waiver occurred simply because the Kerns also communicated with facility staff about related matters.
The detailed version
- Kern v. Gandhi · No. 0:24-cv-00348
- Katherine Menendez
- Oct. 24, 2025
Background
Plaintiff Cody Raymond Kern is a civilly committed resident at the Minnesota Security Hospital ("MSH") in Saint Peter, Minnesota. He filed suit on February 6, 2024 (with an amended complaint filed February 2, 2025) against Shireen Gandhi, in her capacity as Commissioner of the Minnesota Department of Human Services, and the State of Minnesota. Kern alleges violations of the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Minnesota Human Rights Act, claiming that MSH staff failed to accommodate his autism spectrum disorder (ASD) and punished him for behaviors stemming from it.
In addition to ASD, Kern has been diagnosed with schizoaffective disorder (bipolar type), major depressive disorder, and generalized anxiety disorder. He was civilly committed in 2019. Although he operates with what testimony characterized as "diminished" mental capacity, he is a legal adult not subject to guardianship or conservatorship.
Kern's parents, Cynthia and Rodman Kern ("the Kerns"), have been actively involved in his treatment and in supporting this litigation. They facilitated his retention of lead attorney Jason Schellack (of the Autism Advocacy & Law Center), signed the fee agreement on Kern's behalf, helped gather documents, assisted in drafting interrogatory responses, and served as a communication bridge between attorney and client given Kern's limited email access and cognitive challenges. The Kerns had weekly in-person visits with Kern and also communicated regularly with MSH/DHS staff about matters related to his care and this litigation.
The Discovery Dispute
Defendants moved to compel production of emails between the Kerns and Mr. Schellack, and also sought to reopen the depositions of the Kerns and amend the scheduling order. U.S. Magistrate Judge Shannon G. Elkins denied the Motion to Compel in July 2025, concluding the emails were protected by both the work product doctrine and attorney-client privilege. Defendants filed timely objections on August 14, 2025.
Standard of Review
The district court reviews a magistrate judge's ruling on a nondispositive motion (such as a discovery motion) only for clear error or conclusions contrary to law. Fed. R. Civ. P. 72(a). This standard is described in the opinion as "extremely deferential."
The Work Product Doctrine
The work product doctrine, codified at Fed. R. Civ. P. 26(b)(3), protects documents and tangible things prepared in anticipation of litigation by or for a party or its representative. Protected materials include interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs. The doctrine shields an attorney's litigation preparation from disclosure to opposing parties, and extends to materials gathered by agents or representatives, not just the attorney alone. A party seeking discovery of protected work product despite its protected status must show (1) substantial need for the materials and (2) that it cannot obtain the substantial equivalent by other means without undue hardship.
The Court's Analysis
Objection 1: Choice of Law
Defendants argued Judge Elkins improperly relied on the Minnesota Rules of Professional Conduct (MRPC) instead of federal law. The district court found no error, noting that although Judge Elkins referenced Minnesota ethical rules in discussing attorney-client privilege, she correctly applied federal law — including Rule 26(b)(3) — in her work product analysis.
Objection 2: Whether the Kerns Were Third Parties or Agents
Defendants argued the Kerns' emails to counsel were unprotected because the Kerns are neither parties to the case nor counsel or agents of counsel. The court rejected this as a misreading of Rule 26, which extends protection to work product prepared by any representative of the party, including agents.
Applying federal common law of agency (and the Restatement (Third) of Agency), the court analyzed whether the Kerns had apparent authority to act as Kern's agents. Apparent authority exists when a principal's conduct reasonably leads a third party to believe that another person is acting as the principal's agent. The court found the Kerns had apparent authority based on:
- Kern's diminished mental capacity and inability to independently direct litigation strategy, recall witnesses, understand complex legal topics, or draft discovery responses; - Logistical obstacles to direct attorney-client communication (Kern lacked email access, and the facility was nearly two hours from counsel's office); - The Kerns' facilitation of Mr. Schellack's retention, signing of the fee agreement, assistance with interrogatory responses, and document gathering; - Kern's own testimony that he could not have litigated without his parents' help, that he looked to them for guidance, and that he understood they were helping him with the lawsuit; - Kern's ratification of the Kerns' acts by signing discovery responses they helped prepare.
The court also noted that this arrangement was consistent with the purpose of the work product doctrine: protecting an attorney's ability to represent clients without fear of disclosure, particularly where the attorney faces significant obstacles in communicating with a civilly committed client with diminished capacity.
The court further agreed with Judge Elkins's unchallenged finding that defendants failed to demonstrate the substantial need and undue hardship required to compel production of protected work product under Rule 26(b)(3)(A)(ii).
Objection 3: Waiver
Work product protection can be waived by disclosing materials either (1) with actual intent that an opposing party see them, or (2) in a way that substantially increases the likelihood that an adversary will obtain them.
The court rejected both waiver arguments:
As to the Kerns being third parties
Because the Kerns were Kern's agents, disclosure to them was not disclosure to a third party at all. The court also noted that even if the Kerns were third parties, sharing work product with someone who shares a common interest with the client does not waive protection, and no one disputed that the Kerns shared such an interest.
As to the Kerns' communications with DHS/MSH staff
Defendants argued that the Kerns' separate discussions with MSH staff about related matters substantially increased the risk of disclosure. The court found this argument flawed: the emails at issue were neither included in nor forwarded to DHS staff. The fact that the Kerns communicated with both the attorney and facility staff about overlapping subject matter is insufficient to constitute waiver. The court distinguished cases where waiver was found — such as disclosure to law enforcement for potential prosecution, disclosure to a known adversary's former employee, or a "mass email" to an unknown professional membership list — from the facts here, where there was no allegation the Kerns sent these emails to any third party.
Disposition
Judge Menendez:
- Overruled Defendants' objections to Judge Elkins's Order;
- Affirmed Judge Elkins's Order denying the Motion to Compel; and
- Denied Defendants' Motion to Compel.
The court expressly declined to address the attorney-client privilege issue, because the work product ruling was sufficient to protect all the emails from disclosure.
Read the full 18-page opinion on CourtListener, the free public archive maintained by the Free Law Project.