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
In Kern v. Gandhi, Judge Menendez upheld Magistrate Judge Elkins's ruling that emails between plaintiff Cody Raymond Kern's parents and his attorney are protected from disclosure as attorney work product, overruling the defendants' motion to compel those communications.
People with disabilities who rely on family members or other trusted third parties to help manage litigation, and the attorneys who represent them. The ruling clarifies that emails between a party's attorney and a family member acting as an informal agent—particularly where the client has diminished mental capacity—can be protected work product and need not be disclosed to opposing parties.
What happened
In Kern v. Gandhi, Cody Raymond Kern, a civilly committed resident at the Minnesota Security Hospital, sued Shireen Gandhi (in her capacity as 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 capacity and limited ability to assist in his own litigation, his parents—Cynthia and Rodman Kern—communicated frequently with his attorney, Jason Schellack, helping gather documents, draft discovery responses, and develop litigation strategy. The defendants sought to force disclosure of those emails by filing a motion to compel, which Magistrate Judge Shannon G. Elkins denied, finding the emails were protected by the work-product doctrine and attorney-client privilege.
The defendants objected on three grounds: (1) that the magistrate judge applied Minnesota professional conduct rules instead of federal law; (2) that Kern's parents are third parties whose emails cannot be protected work product; and (3) that any work-product protection was waived when the attorney shared materials with them. The district court rejected all three arguments. It found that the magistrate judge did in fact apply federal law. It also found that the parents were acting as Kern's agents—with apparent authority under federal agency law—because Kern expressly relied on them to help direct and participate in the litigation, knew of their actions, and ratified those actions by signing discovery responses they helped prepare. Because the parents were agents rather than outside third parties, their communications with counsel fell within the work-product doctrine's protection.
Judge Menendez overruled the defendants' objections, affirmed Magistrate Judge Elkins's order, and denied the defendants' motion to compel. The court also rejected the waiver argument, concluding that sharing materials with an agent (or even a party sharing a common interest) does not waive work-product protection, and that the parents' separate communications with hospital staff about overlapping topics did not meaningfully increase the risk that the protected emails would reach the defendants.
The detailed version
- Kern v. Gandhi, No. 0:24-cv-00348 (KMM/SGE) (D. Minn. Oct. 24, 2025)
- Katherine M. Menendez, United States District Judge (reviewing an order by Magistrate Judge Shannon G. Elkins)
Background
Plaintiff Cody Raymond Kern is civilly committed and resides at the Minnesota Security Hospital (now called the Forensic Mental Health Program) in Saint Peter, Minnesota. He filed suit against Shireen Gandhi, in her capacity as Commissioner of the Minnesota Department of Human Services, and the State of Minnesota, alleging violations of the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Minnesota Human Rights Act. He alleges that hospital staff failed to accommodate his autism spectrum disorder (ASD) and punished him for ASD-related behaviors. Kern also has diagnoses of schizoaffective disorder, major depressive disorder, and generalized anxiety disorder, which contribute to what witnesses described as a 'diminished' mental capacity. He is a legal adult not subject to guardianship or conservatorship.
Because of his conditions and civil commitment, Kern has difficulty directing his own litigation—he cannot independently recall witnesses, assist with strategy, draft discovery responses, or understand complex legal topics. His parents, Cynthia and Rodman Kern ('the Kerns'), stepped in: they retained attorney Jason Schellack (of the Autism Advocacy & Law Center) on their son's behalf, signed the fee agreement, helped draft interrogatory responses, facilitated document collection, and communicated regularly with counsel. Plaintiff testified he could not have brought the case without them and looked to them for guidance throughout.
Disputed discovery
Defendants moved to compel production of emails between the Kerns and Schellack, and to reopen the Kerns' depositions. Magistrate Judge Elkins denied the motion, finding the emails protected by the work-product doctrine (which shields materials prepared in anticipation of litigation from disclosure to opposing parties) and by attorney-client privilege. Defendants filed timely objections under Federal Rule of Civil Procedure 72(a), which permits a district judge to reverse a magistrate judge's ruling on a non-dispositive (procedural) motion only if it is 'clearly erroneous or contrary to law'—a highly deferential standard.
Ruling and Analysis
1. Choice of law: Defendants argued the magistrate judge improperly applied Minnesota professional conduct rules instead of federal law. The district court rejected this, noting that Judge Elkins explicitly applied federal law—including Rule 26(b)(3)—when analyzing work-product protection. The mention of Minnesota rules appeared only in the attorney-client privilege analysis, which the district court declined to reach because work-product protection alone was sufficient.
2. Whether the Kerns are third parties or agents: Defendants argued the Kerns were outside third parties whose emails cannot be protected work product under Rule 26(b)(3), which shields documents prepared 'by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).' The court found this argument misread the Rule, which covers any representative or agent of a party, not just attorneys. Applying federal common law of agency (including the Restatement (Third) of Agency), the court found the Kerns acted with apparent authority as Kern's agents. Apparent authority arises when a principal's words or conduct reasonably lead a third party—here, Schellack—to believe that another person is authorized to act on the principal's behalf. Evidence supporting this finding included: (a) Kern directed his parents to retain Schellack; (b) the Kerns signed the fee agreement; (c) the Kerns helped draft discovery responses that Kern then signed, thereby ratifying their actions; (d) Kern acknowledged looking to his parents for guidance; (e) Kern admitted he could not have litigated without them; and (f) Schellack, drawing on his experience representing clients with autism, reasonably concluded the Kerns were filling a client-like role to bridge the practical barriers created by Kern's conditions and confinement.
3. Waiver: Defendants argued that (a) communicating with the Kerns as third parties waived work-product protection, and (b) the Kerns' separate communications with Department of Human Services staff about litigation-related matters substantially increased the risk that defendants would obtain the protected emails. The court rejected both arguments. Because the Kerns were agents—not third parties—there was no waiver by disclosure to them. Even assuming they were third parties, sharing work product with someone who shares a 'common interest' with the attorney or client does not constitute waiver. The court also found no substantial risk of disclosure: unlike cases involving mass dissemination to unknown recipients or disclosure to parties known to be adverse, the Kerns' communications with hospital staff about overlapping topics did not create a meaningful risk that the protected emails themselves would reach defendants.
Disposition
Defendants' objections were overruled; Magistrate Judge Elkins's order was affirmed; the motion to compel was denied.
Reviewer note from the AI+
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