Kern v. Gandhi

Case

Kern v. Gandhi, Case No. 24-cv-0348 (KMM/SGE)

Judge

Magistrate Judge Shannon G. Elkins

Date

July 31, 2025 **Ruling:** Defendants' Motion to Compel Discovery (Dkt. 65) DENIED

In January 2025, defendants served discovery on Kern and subpoenaed his parents, Cynthia and Rodman Kern, seeking all communications between the Kerns and any individual — including Kern's attorneys Jason Schellack and Christopher E. Morris — about the case. The Kerns produced some documents but withheld 104 emails, identified in a privilege log, asserting attorney-client privilege and work product doctrine protection. Mr. Morris had been appointed to represent Kern in his separate civil commitment proceeding; Mr. Schellack represents Kern in this federal lawsuit and separately represents the Kerns in responding to the subpoenas.

After depositions raised concerns about whether the Kerns had conducted reasonable document searches and whether productions were complete, the parties resolved several issues but could not resolve the privilege dispute. The court held oral argument on June 17, 2025.

Legal Framework

Attorney-Client Privilege: Under federal common law (applicable here because the case arises under federal statutes), the attorney-client privilege protects confidential communications between attorneys and clients made for the purpose of obtaining or providing legal advice. The party asserting the privilege bears the burden of establishing its applicability. The privilege can extend to third parties — including agents of a client — where their communications with counsel are made in confidence for the purpose of obtaining legal advice.

Work Product Doctrine: Under Federal Rule of Civil Procedure 26(b)(3), documents and tangible things prepared in anticipation of litigation by or for a party or its representative are ordinarily protected from discovery. The test is whether the document was prepared or obtained because of the prospect of litigation. The party asserting protection bears the burden of establishing applicability; once established, the burden shifts to the requesting party to show substantial need and inability to obtain the substantial equivalent by other means without undue hardship. The doctrine is not absolute and can be waived, including by intentional disclosure to third parties that substantially increases opportunities for adversaries to obtain the information.

Ruling on Privilege

Section II — Kerns' own attorney-client communications: The court first noted that it is undisputed Mr. Schellack represents the Kerns themselves regarding their responses to the subpoenas. Accordingly, confidential communications between the Kerns and their counsel related to that representation are straightforwardly privileged. The court identified specific Bates numbers (Nos. 1077–1234 and 1377–82) as clearly covered by this privilege and denied the motion to compel as to those documents.

Section III.A — Kern's attorney-client privilege covering Kerns' other communications with Kern's attorneys: The court applied Minnesota Rule of Professional Conduct 1.14, which governs representation of clients with diminished capacity and permits attorneys who reasonably believe a client has diminished capacity to consult third parties to protect the client's interests. Importantly, the rule does not require a formal legal finding of incapacity — only a reasonable belief by the attorney. Rule 1.14(c) further provides that information relating to such representation remains confidential under Rule 1.6. Comment 3 to Rule 1.14 explicitly contemplates family member participation in attorney-client discussions and states that such presence generally does not affect the attorney-client privilege.

The court found that the record — including Kern's civil commitment, his diagnoses of schizoaffective disorder and autism spectrum disorder, his inability to answer interrogatories, prepare for depositions, or understand complex legal theories — supported the conclusion that Kern's counsel could reasonably believe Kern has diminished capacity. The court further found that the Kerns were acting as Kern's agents to facilitate communication with counsel, that there is no evidence of conflicting interests between Kern and his parents, and that the Kerns' participation was necessary to ensure Kern received adequate legal representation. The court applied a broader scope of privilege than found in some analogous cases (e.g., Stevens v. Brigham Young Univ.-Idaho, which limited privilege to communications where both client and family member were present), reasoning that Kern's civil commitment and documented psychological challenges justified broader protection.

Section III.B — Work Product Doctrine: The court independently found that the work product doctrine also protects the identified communications. Reviewing the 37-page Second Revised Privilege Log, which described emails related to topics such as clinic reports, revisions to the complaint, and case timelines, the court determined that these communications would reveal counsel's mental impressions, conclusions, opinions, and legal theories. The court further held that sharing these materials with co-counsel Morris and with the Kerns did not waive work product protection: Morris is bound by the Rules of Professional Conduct as Kern's other counsel, and the Kerns' communications are themselves privileged, so disclosure to them did not substantially increase the defendants' opportunity to access the information. The court also noted that defendants failed to demonstrate substantial need for the materials or inability to obtain their substantial equivalent by other means, as required to overcome work product protection under Rule 26(b)(3)(A)(ii).