Fond du Lac Band of Lake Superior Chippewa v. Cummins
- Patrick Schiltz
- 0:22-cv-00170
- U.S. District Court · District of Minnesota
- 10
In Fond du Lac Band of Lake Superior Chippewa v. Cummins, Chief Judge Patrick J. Schiltz upheld a magistrate judge's ruling that Northshore Mining Co., Cleveland-Cliffs Inc., and Cliffs Mining Services Co. must hand over documents they claimed were protected by attorney-client privilege, because they failed to prove the legal requirements for the joint-representation and common-interest exceptions to that privilege.
Mining companies Northshore Mining Co., Cleveland-Cliffs Inc., and Cliffs Mining Services Co., which must now produce documents they claimed were attorney-client privileged. Also relevant to the Fond du Lac Band of Lake Superior Chippewa's ongoing challenge to a federal land exchange. Attorneys and parties in other cases who invoke joint-representation or common-interest exceptions to attorney-client privilege may be affected by the court's reasoning about what evidence is required to establish those exceptions.
What happened
In Fond du Lac Band of Lake Superior Chippewa v. Cummins, the Fond du Lac Band of Lake Superior Chippewa sued the U.S. Forest Service and related federal agencies and officials, challenging a land exchange between the Forest Service and mining company PolyMet Mining, Inc. under a federal law called the Administrative Procedure Act, which allows courts to review certain government agency decisions. Northshore Mining Co. was later added as a defendant, and the Band sought documents from Northshore, its parent company Cleveland-Cliffs Inc., and a related company called Cliffs Mining Services Co. relating to PolyMet's transfer of some of the exchanged land to Northshore. Those three companies (collectively called the Cliffs parties) refused to hand over certain documents, claiming they were shielded by attorney-client privilege.
Magistrate Judge Leo I. Brisbois ordered the Cliffs parties to produce the disputed documents, finding that they had waived attorney-client privilege by sharing communications with each other as third parties. The Cliffs parties objected, arguing that two legal doctrines — the joint-representation exception and the common-interest exception — kept the documents protected. Judge Brisbois rejected both arguments: the joint-representation exception failed because the Cliffs parties did not clearly prove that they were all represented by the same attorneys at the same time, and the common-interest exception failed because they could not show a shared legal interest (as opposed to a purely business or commercial interest) in the communications at issue.
Chief Judge Schiltz affirmed Judge Brisbois's ruling in full, finding no clear error or legal mistake. On the joint-representation question, the court noted that the supporting declaration used ambiguous language — saying attorneys were engaged by 'Northshore, CMSC, or Cleveland Cliffs,' which does not prove all three were jointly represented — and that attorney statements in legal briefs do not count as evidence. On the common-interest question, Chief Judge Schiltz agreed that purely commercial interests are not enough to invoke the exception, and that the specific interests the Cliffs parties pointed to were either specific to one company alone or concerned a different agreement than the one covered by the privilege log. The objection was overruled, the magistrate judge's order was affirmed, and a prior stay of the discovery order was lifted.
The detailed version
- Fond du Lac Band of Lake Superior Chippewa v. Cummins, No. 22-CV-0170 (PJS/LIB)
- Chief Judge Patrick J. Schiltz
- August 7, 2025
Background
The Fond du Lac Band of Lake Superior Chippewa ('the Band') brought suit against the U.S. Forest Service, other federal agencies, and agency officials under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., challenging a land exchange between the Forest Service and PolyMet Mining, Inc. ('PolyMet'). Northshore Mining Co. ('Northshore') was subsequently joined as a defendant under Federal Rule of Civil Procedure 19, which governs required parties. As part of the litigation, the Band sought discovery relating to PolyMet's transfer of a portion of the exchanged land to Northshore, which is relevant to laches defenses raised by PolyMet and Northshore. (A laches defense is an argument that the opposing party waited too long to bring its claims.) Cleveland-Cliffs Inc. ('Cleveland-Cliffs') is the parent company of both Northshore and Cliffs Mining Services Co. ('CMSC'), which provides support services to Cleveland-Cliffs' subsidiaries including Northshore.
Discovery Dispute
Magistrate Judge Leo I. Brisbois issued a discovery order on October 28, 2024, directing Northshore, Cleveland-Cliffs, and CMSC (the 'Cliffs parties') to produce documents they claimed were protected by attorney-client privilege. Judge Brisbois found that the Cliffs parties had waived privilege by voluntarily sharing communications among themselves — i.e., with third parties — citing United States v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998). The Cliffs parties objected, arguing that either the joint-representation exception or the common-interest exception preserved the privilege.
Standard of Review
A magistrate judge's ruling on a nondispositive (non-case-ending) pretrial matter may be reversed only if it is 'clearly erroneous or contrary to law.' 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). This is a deferential standard.
Joint-Representation Exception
The joint-representation (or co-client) exception preserves privilege when multiple clients hire the same counsel to represent them on a matter of common interest. Judge Brisbois found this exception inapplicable because the Cliffs parties failed to establish that they were jointly represented by the attorneys listed on their privilege log. The supporting declaration by Gabriel Johnson stated that the attorneys were engaged by 'Northshore, CMSC, or Cleveland Cliffs' — the disjunctive 'or' leaving unclear which attorneys represented which entities. Chief Judge Schiltz agreed that this ambiguity was fatal to the Cliffs parties' burden of proof. The court also noted that a separate declaration from the DeWitt firm established only current representation of all three entities, not representation at the time of the logged communications, and said nothing about Jones Day (other outside counsel) or Cleveland-Cliffs' corporate counsel. Statements made by attorneys in legal briefs and memoranda — as opposed to sworn affidavits — were held not to constitute evidence, citing INS v. Phinpathya, 464 U.S. 183 (1984), and Kulhawik v. Holder, 571 F.3d 296 (2d Cir. 2009). The court found it would have been straightforward for counsel to submit a clear affidavit establishing joint representation at the relevant time, but none did.
Common-Interest Exception
The common-interest exception preserves privilege when two or more clients with a common interest, represented by separate lawyers, agree to exchange information. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997). Judge Brisbois held the exception inapplicable because the Cliffs parties demonstrated only a common business or commercial interest, not a common legal interest. The Cliffs parties argued that the Eighth Circuit allows the common interest to be 'either legal, factual, or strategic in character,' id., but Chief Judge Schiltz held that even under that formulation, the Eighth Circuit applied a narrow rule in practice and did not need to decide whether factual or strategic interests alone would suffice. More broadly, the court declined to extend the common-interest exception to purely commercial interests, noting that attorney-client privilege is narrowly construed and protects only disclosures necessary to obtain legal advice, not business advice, citing Fisher v. United States, 425 U.S. 391 (1976), and United States v. Spencer, 700 F.3d 317 (8th Cir. 2012). The specific legal interests the Cliffs parties pointed to — Cleveland-Cliffs' guaranty with the State of Minnesota and indemnification rights under the 'Framework Agreement' — were either interests specific to Cleveland-Cliffs alone (not shared) or concerned a different agreement (the Framework Agreement between PolyMet and Cliffs Erie L.L.C.) from the one the privilege log addressed (the Land Agreement and Northshore Conveyance).
Ruling
Chief Judge Schiltz overruled the Cliffs parties' objection and affirmed Magistrate Judge Brisbois's order in full (ECF No. 256). A previously entered stay of the discovery order (ECF No. 269) was also lifted.
Reviewer note from the AI+
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