Work Product in Minnesota Is Narrower Than You Think, and the Gaps Are Where Cases Are Won

Say the words “that’s work product” in a Minnesota deposition and you have probably claimed less than you meant to. The Minnesota Supreme Court has defined the term since 1986 as “an attorney’s mental impressions, trial strategy, and legal theories in preparing a case for trial,” and it has said in the same breath that “materials prepared in anticipation of litigation that do not contain opinions, conclusions, legal theories, or mental impressions of counsel are not work product and are discoverable . . . .” Dennie v. Metropolitan Medical Center, 387 N.W.2d 401, 406 (Minn. 1986). The federal vocabulary — ordinary work product and opinion work product, two grades of the same thing — is not Minnesota’s vocabulary. Here the phrase names the inner tier only, and the outer tier goes by the rule’s own label: trial preparation materials.

That is not a semantic quibble. It changes what you have to prove, and it changes what a privilege log entry has to say. And it sits next to a second divergence that is worth more to a litigant than any of it: Minnesota’s rule lets a party take the statements an opponent’s investigator collected from nonparty witnesses with no showing of need at all. That was a deliberate choice by the 1975 advisory committee, the supreme court said so, and it is still the rule. Leer v. Chicago, Milwaukee, St. Paul & Pac. Ry. Co., 308 N.W.2d 305, 307 (Minn. 1981), cert. denied, 455 U.S. 939 (1982).

This is the companion piece to my article on the crime-fraud exception to the attorney-client privilege. That one deals with communications. This one deals with the file the lawyer built, and it closes with the question the other article flags and leaves open: whether crime-fraud reaches work product in Minnesota at all.

Rule or common law? Both, and the numbering has moved twice

Minnesota’s work-product protection lives in Minn. R. Civ. P. 26.02(d), but the rule was written against a common-law backdrop the supreme court had already installed, and it has been renumbered twice since the leading cases were decided. That renumbering is why practitioners misread the older opinions.

The original 1952 rule went further than the federal one. In Brown v. St. Paul City Railway Co., the court explained that when Minnesota adopted its rules, “largely because of the apprehension of members of the bar, the last sentence of Rule 26.02 was added to allay the fears of the bar that the privacy of the lawyer’s file could be invaded,” and that “[t]he immunity of the so-called ‘work product of the lawyer,’ which it was held could not be reached except where the court found good cause therefor in Hickman v. Taylor . . . was made absolute in our rule. To that extent our rules differ from the federal rules.” 241 Minn. 15, 35, 62 N.W.2d 688, 701 (1954). Minnesota started with an absolute bar where the federal courts had a good-cause standard.

In 1975 an advisory committee rewrote the provision. Leer records the change and identifies where Minnesota kept its own path, 308 N.W.2d at 307, and Wiggin cites the 1975 committee note in construing the result, 459 N.W.2d at 920. What emerged is the structure you read today — substantial need, undue hardship, and a hard floor for mental impressions — which mirrors Fed. R. Civ. P. 26(b)(3)(A)–(B) almost word for word, with one deliberate departure that I take up below. The renumbering came later: what Dennie and Ossenfort call Rule 26.02(3) is what Wiggin, Philip Morris, and City Pages call Rule 26.02(c), and is what you cite today as Rule 26.02(d). The expert provision moved the same way, from 26.02(4) to 26.02(e).

The rules of evidence supply a definition, added in 2019 and quoted almost nowhere: “work-product protection” means “the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.” Minn. R. Evid. 502(e)(2). Hold onto the parenthetical. It is the textual reason the protection is not confined to paper, and the Court of Appeals has since used the doctrine to shut down an oral deposition question.

What “work product” actually means here

Two tiers, two showings, and only the inner tier gets the name.

Rule 26.02(d) sets out the outer tier:

Subject to the provisions of Rule 26.02(e) a party may obtain discovery of documents and tangible things otherwise discoverable pursuant to Rule 26.02(b) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

And the inner tier in the next sentence: “In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Minn. R. Civ. P. 26.02(d).

The supreme court’s own gloss is blunter than the rule. In National Texture Corp. v. Hymes, after ordering wide-open discovery of a law firm’s patent files, the court added one sentence of limit: “Of course, the attorney’s trial strategy, mental impressions, and legal theories in preparing for trial shall not be discoverable.” 282 N.W.2d 890, 896 (Minn. 1979). Not discoverable — no balancing, no showing. Dennie took that sentence as the definition of the term and drew the line I opened with. 387 N.W.2d at 406. The court restated the whole thing in 2022 in language every current brief should use: “The work-product doctrine . . . protects from disclosure an attorney’s opinions, conclusions, mental impressions, trial strategy, and legal theories in materials prepared in anticipation of litigation.” Energy Policy Advocates v. Ellison, 980 N.W.2d 146, 152 (Minn. 2022).

So the analysis has two independent questions, and you must answer both in your log entry. Was the material prepared in anticipation of litigation? If not, it is ordinary discoverable material and nothing protects it. If yes, does it carry counsel’s opinions, conclusions, legal theories, or mental impressions? If yes, it is work product and it does not come out. If no, it is trial preparation material, and it comes out when your opponent shows substantial need and undue hardship. City Pages v. State put both conditions in one sentence: “to be protected by the doctrine, material must contain opinions, conclusions, legal theories, or mental impressions of counsel, and it must have been prepared in anticipation of litigation.” 655 N.W.2d 839, 846 (Minn. Ct. App. 2003).

It is not a privilege, and the difference is not cosmetic. “While the term ‘privilege’ is sometimes applied to the work-product doctrine, documents within the ambit of this doctrine are not actually ‘privileged,’ but instead are generally ‘immune’ from discovery.” State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 689–90 (Minn. Ct. App.), review denied (Minn. Apr. 25, 2000) (citing Brown). An immunity yields to a sufficient showing. A privilege does not. Argue them in the alternative and argue them separately.

It is not confined to documents. Rule 26.02(d) speaks of “documents and tangible things,” and a careless reader concludes that an oral question is fair game. In In re Cragg the Court of Appeals held otherwise. Counsel for a defamation defendant was asked at deposition whether he believed a particular fact was important to his client’s claim. He objected. The court held the objection good: “Because the question sought the disclosure of work product and the objection specified that a response to the question would require the disclosure of counsel’s opinions, conclusions, or mental impressions, counsel met the burden to establish the applicability of the protection.” No. A23-0309, slip op. at 13 (Minn. Ct. App. Nov. 6, 2023). Rule 502(e)(2)’s “intangible equivalent” is the textual home for that result.

And it is not a shelter for facts. The supreme court disciplined a lawyer for using it as one. In In re Disciplinary Action Against Dedefo, an attorney representing himself refused at deposition to identify the witnesses and documents supporting his own claims, calling the answers work product. The court held that “the defendants sought not information protected by the work product doctrine — that is, Dedefo’s mental impressions or trial preparation materials — but rather the factual basis for Dedefo’s claims,” and that the objection “prevented the defendants in the lawsuit from obtaining the discovery necessary to investigate Dedefo’s claims and to prepare a defense to those claims.” 752 N.W.2d 523, 529 (Minn. 2008). That was incompetence and obstruction under Rules 1.1, 3.4(a), and 8.4(d). A work-product objection to “what facts support paragraph 14” is not aggressive lawyering. It is a referral waiting to happen.

When is a document “prepared in anticipation of litigation,” and who decides?

The judge decides, on evidence, and the burden is on the party withholding.

City Pages states the test and the answer to both halves of the question. “Whether documents were prepared in anticipation of litigation is a factual determination.” And the standard, borrowed from the federal district court in Minnesota: “The test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.” 655 N.W.2d at 846 (quoting Bieter Co. v. Blomquist, 156 F.R.D. 173, 180 (D. Minn. 1994)). The court then applied the converse and held that a law firm’s billing records — generated during and about litigation — were not protected wholesale, because “[g]enerally, billing records do not fall into this category,” and only the narrative work descriptions carrying counsel’s opinions and theories could be. Id.

The burden is the ordinary one and it does not move. “The party objecting to the production of information has the burden of establishing that the sought-after information is immune from discovery.” In re Comm’r of Pub. Safety, 735 N.W.2d 706, 712 (Minn. 2007) (citing Brown, 241 Minn. at 35–36, 62 N.W.2d at 701–02); accord Energy Policy Advocates, 980 N.W.2d 146, slip op. at 10; In re Cragg, slip op. at 12.

Brown shows what carrying that burden requires, and what happens when you skip it. A streetcar conductor filed a report about an accident. The railway resisted production and lost, and it lost on the record: it “submitted no counter-affidavit or other proof to show that the report was privileged or otherwise immune from discovery,” 241 Minn. at 32, and “[n]o showing was made in this case which would justify the court in finding that the document was privileged,” id. at 35, 62 N.W.2d at 701. The court then explained why routine incident reports are hard to protect at all: “for all that appears from the record, the report was prepared pursuant to an established routine, and it may well be that it was used for many purposes other than that of preparing for litigation. . . . It may have gone to several of defendant’s departments so as to completely destroy its confidential nature. If so, it would not be privileged, nor would it be immune from discovery under Rule 26.02.” 241 Minn. at 36.

Two working rules come out of that. First, an affidavit beats an argument. If you want a form protected, put a declarant in front of the judge who can say when the form is generated, who reads it, what it is used for, and what changed when counsel got involved. Second, a document generated the same way whether or not anyone sues is a business record wearing a litigation label, and a judge who reads it in camera will say so.

Substantial need, on the other side, is not satisfied by hope. Ossenfort rejected the argument that the size and stakes of a $3.5 million case established it, noting that “[f]ederal courts applying identical Rule 26(b) have held that ‘mere surmise’ that a statement might include impeachment material does not constitute substantial need,” and that the movant had equal access to the declarant, had deposed him, and never claimed he was hostile or forgetful. 254 N.W.2d at 681–82. Substantial need is an argument about a specific document and a specific unavailability.

The court reviews the discovery ruling for abuse of discretion: “The trial court has considerable discretion in granting or denying discovery requests. . . . Absent a clear abuse of discretion, a trial court’s decision regarding discovery will not be disturbed.” Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987). The legal standard governing the protection is reviewed de novo. Energy Policy Advocates, 980 N.W.2d at 152. That split is why these fights are won in the district court and framed as legal error on review.

The insurer’s claim file

This is where the doctrine does its real work in Minnesota, and where most of the assumptions I hear are wrong.

Start with the rule’s own words. Rule 26.02(d) extends the outer tier to material prepared “by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” An insurer is a listed representative. Nothing in the rule requires that a lawyer have touched the document, and nothing requires that suit have been filed. So the claim file is eligible for protection.

Eligible is not the same as protected, and a line of Minnesota decisions carves most of a routine file back out.

Nonparty witness statements are discoverable as of right. This is the big one and almost nobody uses it. Rule 26.02(d)’s second paragraph provides: “A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a party or other person may obtain without the required showing a statement concerning the action or its subject matter previously made by that person who is not a party.” The supreme court has read that sentence twice, and both times the same way. Ossenfort, construing the 1975 wording: “statements of non-party witnesses are discoverable as of right, without a showing of need or inability to obtain their substantial equivalent.” Ossenfort ex rel. Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 681 (Minn. 1977). Wiggin, thirteen years later, quoting the paragraph in the form it still carries: “This rule permits, without a showing of need and hardship, (1) a party or nonparty to obtain a copy of his or her own previous statement and (2) a party to obtain previous statements made by non-parties.” Wiggin v. Apple Valley Medical Clinic, Ltd., 459 N.W.2d 918, 920 (Minn. 1990).

Compare the federal text, which is not capable of that reading: “Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter.” Fed. R. Civ. P. 26(b)(3)(C). Minnesota’s departure was deliberate. Leer credited the interpretation of a district judge who “served as a member of the 1975 Advisory Committee that recommended this rule change, which deviated from the federal rule,” and noted that the committee note “makes clear ‘that a party, without the necessity of seeking a routine motion, has the right to obtain statements made by non-party witnesses.’” 308 N.W.2d at 307.

And “nonparty” is a bright line, not a functional test. In Leer, the railroad’s own investigator took statements from the switching crew whose alleged negligence was the whole of the plaintiff’s case. The railroad argued the crew were effectively parties. The court refused: “corporate employees who are not named parties in the litigation are not ‘parties’ within the meaning of Minn.R.Civ.P. 26.02(3).” Id. In Wiggin the defendant clinic made the same argument about the emergency-room physician whose alleged negligence in treating and discharging the decedent was among the claims against it, and lost again — “this court feels compelled to retain a bright line rule restricting the meaning of ‘party’ to parties named in an action as outlined in Leer.” 459 N.W.2d at 921. Justice Coyne dissented. The majority’s answer to the clinic was that a party who wants a different rule “should take the normal steps to amend the rule.” Id. Nobody has.

Practically: when an adjuster’s file contains recorded statements from the other driver, the responding officer, a bystander, or an employee you did not sue, ask for them by name under Rule 26.02(d) and do not brief substantial need. Note the rule’s own definition of what counts — a signed or adopted written statement, or “a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.” An adjuster’s paraphrase in a claim note is not a statement. A recorded interview is.

Leer also killed the old shortcut. Before 1981, Schmitt v. Emery, 211 Minn. 547, 2 N.W.2d 413 (1942), had held that employee statements taken by an employer’s claims agent were protected by the attorney-client privilege. Leer held that “when an employee is merely a witness to an accident and not a party to a subsequent action, communications made with him in a general investigation do not create an attorney-client relationship,” and added, “In so holding, we necessarily overrule Schmitt v. Emery.” 308 N.W.2d at 309. A claims agent is not a lawyer and a general investigation is not a legal consultation.

Routine claim handling is regular-course business. Brown’s analysis of the conductor’s report is the template, and City Pages supplies the doctrinal sentence: no immunity “for documents prepared in the regular course of business rather than for purposes of litigation,” even where litigation is already in prospect. 655 N.W.2d at 846. Every insurer investigates. Investigation is what an insurer is for. The coverage investigation, the reserve entry, the field adjuster’s report, the initial liability assessment — these exist because a claim came in, not because a summons did. If an insurer wants a genuine anticipation date, it should be able to name the event that changed the file’s purpose and produce a record showing what changed on that date.

And you cannot withhold a consultant and then call him. In Galaxy Wireless, LLC v. Western National Mutual Insurance Co., the insurer retained a fire inspector, directed a deponent not to answer questions about his conclusions on work-product grounds, never disclosed him as an expert, and then tried to put him on the stand at trial as a fact witness. The district court’s order was categorical: “Western National may not present undisclosed expert testimony at trial, nor may Western withhold evidence during discovery based upon a claim of attorney work product, and then present such evidence at trial.” Slip op. at 4–5. The witness was allowed to testify in a narrow lay capacity, drifted into expert territory, and had his testimony stricken. The Court of Appeals affirmed. No. A23-1460, slip op. at 14–15 (Minn. Ct. App. June 24, 2024). Work product is a shield. Minnesota courts will not let it be picked up as a sword at trial.

One more thing about the claim file, and it explains why insurers fight so hard for it. Minnesota’s first-party bad-faith remedy is proved out of the file. In Peterson v. Western National Mutual Insurance Co., the supreme court affirmed a $100,000 costs award and $97,940.50 in fees under Minn. Stat. § 604.18, and the findings it upheld were findings about the file: the adjuster “repeatedly asked for medical records that Peterson had already supplied and failed for months to use medical release forms Peterson had signed,” so that “the analysis of the claims file dragged on for well over a year without resolution,” and the adjuster’s presentation to the claims board “was imbalanced and misstated certain important facts.” No. A18-1081, slip op. at 7, 21 (Minn. July 29, 2020), aff’g 930 N.W.2d 443 (Minn. Ct. App. 2019). And § 604.18 sets a trap on timing: the complaint “must not seek a recovery under this section,” and only after filing may a party “make a motion to amend the pleadings to claim recovery of taxable costs,” which succeeds only “if the court finds prima facie evidence in support of the motion.” Minn. Stat. § 604.18, subd. 4(a). You need the file to make the showing, and the claim that would justify reaching the file is not yet pleaded. Build the motion out of the material the work-product doctrine never covered — the nonparty statements, the regular-course claim notes, the policy and the correspondence — and take up the protected remainder afterward. I walk through the rest of that statute in Minnesota’s bad-faith formula.

Consultants and the expert you never intend to call

Rule 26.02(e) takes experts out of the general work-product provision and gives them their own regime — Rule 26.02(d) applies only “[s]ubject to the provisions of Rule 26.02(e).”

A retained expert you do not intend to call is close to untouchable. A party may discover the facts known or opinions held by an expert “who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35.02 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Minn. R. Civ. P. 26.02(e)(2). Rule 35.02 is the report-of-findings provision for a court-ordered physical, mental, or blood examination — a narrow carve-out, not a general one. And if a party does get through, Rule 26.02(e)(3) requires the court to make the requesting party pay the expert a reasonable fee and a fair portion of the other side’s costs of obtaining the opinions.

I have found no published Minnesota appellate decision applying that “exceptional circumstances” standard. I searched the doctrinal phrase, the rule’s own statutory language, and the description a court would actually write, and none of them turns up a precedential opinion construing Rule 26.02(e)(2). Practically, that means the federal cases are what a district judge will be reading, and that the standard has done its work by deterrence rather than by litigation. The classic scenario where it is met — a consultant who examined a thing that no longer exists, so that the opposing party cannot replicate the observation — is also the scenario where a good spoliation motion is available, and I would generally rather bring that one. See discovery sanctions and spoliation.

But note the gap on the testifying side, because it is a real one. Rule 26.01(b)(2) now requires a written report from a retained testifying expert, and the report must state “the facts or data considered by the witness in forming” the opinions. Minn. R. Civ. P. 26.01(b)(2)(B). Federal Rule 26 was amended in 2010 to pair that disclosure duty with two express protections: Fed. R. Civ. P. 26(b)(4)(B) protects drafts of any required report, and 26(b)(4)(C) protects communications between a party’s attorney and a witness required to report, subject to three exceptions for compensation, attorney-supplied facts or data, and attorney-supplied assumptions. Minnesota’s Rule 26 contains no counterpart to either. There is no Minnesota rule shielding a draft expert report, and none shielding your letters to your testifying expert. Whether the work-product doctrine does that job on its own is unresolved here.

Do not resolve it optimistically. Dennie is a warning about exactly this territory: the supreme court said of an expert’s report to counsel that “[t]echnically speaking, the report is not work product,” and analyzed it under the expert rule instead. 387 N.W.2d at 407. Until a Minnesota appellate court says otherwise, I write to testifying experts as though the letter will be an exhibit, and I keep the analytical direction of a case in the file of a consultant who will never take the stand. And if you have withheld a consultant’s opinions, Galaxy Wireless is the price of changing your mind at trial.

Does the protection survive the case it was made for?

Minnesota has not decided it. That is the honest answer, and it is worth knowing before you rely on the assumption in a second lawsuit.

The question was squarely presented in Philip Morris. The tobacco companies argued that work-product immunity survives the termination of the litigation for which the material was prepared, citing Federal Trade Commission v. Grolier Inc., 462 U.S. 19 (1983). The Court of Appeals did not reach it. It answered on two other grounds: the portions ordered released were the objective portions, which are not work product under Dennie at all, and in any event “the question here is whether the protective orders should be modified, not whether to permit discovery.” 606 N.W.2d at 690. So there is a squarely framed argument in the Minnesota reports with no ruling attached to it.

There is a hint on the other side. City Pages applied full work-product analysis to billing records generated in tobacco litigation that had already settled, and never suggested the doctrine had lapsed with the case. 655 N.W.2d at 846. The rule’s text points the same way — it protects material “prepared in anticipation of litigation or for trial,” not material prepared for this litigation. My read is that Minnesota would follow Grolier and hold the protection durable, and I would brief it that way. I would also not stake a client’s confidences on it. If material from a closed case matters, get a Rule 502(c) order in the new one before it moves.

Waiver, and the doctrine the supreme court adopted in 2022

Waiver ends more work-product claims than any showing of substantial need ever will.

The baseline. “Ordinarily, parties waive the protection of the attorney-client privilege and the work-product doctrine when they disclose protected information to third parties.” Energy Policy Advocates, 980 N.W.2d at 152 (citing State v. Rhodes, 627 N.W.2d 74, 85 (Minn. 2001)).

The 2022 change. In Energy Policy Advocates v. Ellison the supreme court formally adopted the common-interest doctrine and held it applies to work product as well as to the privilege. The formulation is six elements: “(1) two or more parties, (2) represented by separate lawyers, (3) have a common legal interest (4) in a litigated or non-litigated matter, (5) the parties agree to exchange information concerning the matter, and (6) they make an otherwise privileged communication in furtherance of formulating a joint legal strategy.” Slip op. at 9–10. The interest must be a legal one — “a purely commercial, political, or policy interest is insufficient.” Slip op. at 10. The court then said plainly that “the doctrine should extend to encompass attorney work product,” and held it. Slip op. at 10, 13. The burden of proving the doctrine applies rests on the party invoking it. Slip op. at 10. Element five is the one people fail. Paper the agreement before the exchange, not after the motion.

Disclosing something unprotected waives nothing. In re Cragg is the cleanest recent statement, and it arose from a fact pattern that recurs. A lawyer gave a newspaper reporter the final complaint in a personal-injury case before it was served or filed; when the lawyer was later sued for defamation, the plaintiff argued the disclosure waived privilege and work product across the file. The Court of Appeals held: “although the process of preparing a complaint may very well involve confidences or generate work product, the final complaint that is served or filed in district court to commence an action is not privileged or work product,” and “[i]t necessarily follows that the disclosure of information that is not protected cannot form the basis for the waiver of a privilege or protection.” Slip op. at 8, 9. The holding: “disclosure of the final civil complaint before it is served or filed in district court does not result in a waiver of the attorney-client privilege or work-product protection.” Slip op. at 9.

Cragg also refused to find an at-issue waiver from the mere assertion of a claim or an affirmative defense, and it disposed of a substantial-need argument on a ground worth remembering: the district court had invoked “substantial need” without analyzing either half of the test, and the Court of Appeals declined to supply the analysis. Slip op. at 10 n.6. If the other side’s brief says “substantial need” without addressing undue hardship and the availability of the substantial equivalent, say so in one sentence and stop.

Inadvertent production. Minn. R. Evid. 502, effective January 1, 2019, covers work product on the same terms as the privilege — the definition in 502(e)(2) is written to reach both. Subject-matter waiver requires that the waiver be intentional, that the disclosed and undisclosed material concern the same subject, and that they ought in fairness to be considered together. Minn. R. Evid. 502(a). Inadvertent disclosure is not a waiver if the holder took reasonable steps to prevent it and promptly took reasonable steps to rectify it, including following the clawback procedure. Minn. R. Evid. 502(b). A court order under 502(c) binds every other state proceeding; a bare party agreement under 502(d) binds only the parties. Get the order.

Clawback. Rule 26.02(f)(2) covers material “subject to a claim of privilege or of protection as trial-preparation material.” Notify, and the recipient “must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.”

Does the crime-fraud exception reach work product in Minnesota?

No Minnesota court has held that it does. One court of appeals opinion has assumed it, in a single sentence, resting on two federal circuit decisions, in a section of the opinion that was deciding a takings question. That is the entire Minnesota record, and anyone briefing this should say so rather than pretend the point is settled.

The sentence is in Philip Morris: “Because the Category 3 documents and the other categorized documents either are not privileged or are tainted by crime-fraud, neither the work-product doctrine nor the attorney-client privilege protects those documents.” 606 N.W.2d at 696. The support cited is In re Grand Jury Subpoenas, 144 F.3d 653, 659–60 (10th Cir. 1998), noted in Philip Morris’s own parenthetical as holding that the exception “applies to both the attorney-client privilege and the work-product doctrine,” and In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995). No Minnesota authority appears in the string, because there is none. And the passage is not a discovery ruling — it appears in the court’s analysis of whether the tobacco companies held a constitutionally protectable property interest in documents already ordered produced.

Three things follow, and each of them matters to a motion.

One: the supreme court has never touched it. The crime-fraud statements in Kahl and Kobluk speak only of communications and only of the attorney-client privilege — Kahl’s dictum is that “the privilege is not permitted to prevent disclosure of communications relating to commission of future crime or fraud,” Kahl v. Minnesota Wood Specialty, Inc., 277 N.W.2d 395, 399 (Minn. 1979), and Kobluk restates it as a rule that “the privilege may not be used to shield communications regarding a future crime or fraud,” Kobluk v. University of Minnesota, 574 N.W.2d 436, 440 (Minn. 1998). The phrase “work product” does not appear anywhere in Kobluk. So does Levin v. C.O.M.B. Co., which supplies the two-element prima facie test, and Philip Morris itself recites that test as a test for “the crime-fraud exception to the attorney-client privilege.” 606 N.W.2d at 691 (quoting Levin, 469 N.W.2d 512, 515 (Minn. Ct. App.), review denied (Minn. July 24, 1991)). The most recent supreme court treatment kept the two doctrines on separate tracks in the same sentence. Setting out how the State may overcome the presumption that documents seized from a suspect lawyer’s office are protected, State v. McNeilly listed three routes: that the documents “fail to meet the elements of those protections”; that “the attorney-client privilege has been waived by the client or that the work-product protection has been waived pursuant to existing law”; or “that an exception to the privilege (e.g., crime-fraud) applies.” No. A22-0468, slip op. at 52–53 (Minn. May 8, 2024) (emphasis added). Waiver was written to cover both. The exception clause was written to cover the privilege. Read that as drafting care rather than accident, because the court was writing prospective procedures under its supervisory power and had every reason to be exact.

Two: what Philip Morris actually reached was fact material. The special master’s findings, as the opinion describes them, were that the category 3 documents were “not privileged or . . . discoverable under the crime-fraud exception or the fact work-product doctrine.” Id. at 683. And the 4A indices were released only in their objective portions, with everything subjective protected — a limitation the court called “completely consistent with the admonition in rule 26.02(c) to guard against disclosure of counsel’s opinions and strategy.” Id. at 690. So even at its widest, the Minnesota holding touches the outer tier. Nothing in the case strips a lawyer’s mental impressions from a client accused of fraud. The federal courts are themselves split on whether crime-fraud reaches opinion work product, and Minnesota’s appellate courts have never entered the argument.

Three: it is a separate showing, and the second showing is the easier one. If you are trying to reach an opponent’s trial-preparation materials on a crime-fraud theory in Minnesota state court, brief two things and keep them apart. First, the Levin prima facie showing on both elements, which the crime-fraud article works through, including the point that Minnesota has never adopted a lower threshold for in camera inspection. Second, and independently, the Rule 26.02(d) showing of substantial need and undue hardship. For most of a claim file or an investigative file, the Rule 26.02(d) route is the one that wins, because it does not require you to prove a fraud before discovery and because the material you actually want — the interview, the inspection report, the contemporaneous note — is almost never opinion work product. And for whatever is opinion work product, understand that you are asking a Minnesota court to do something no Minnesota court has yet done.

My own position, stated as a prediction rather than as law: Minnesota will hold that the crime-fraud exception reaches fact work product and will not extend it to an attorney’s mental impressions absent a showing that the lawyer participated in the wrong. That is where the weight of federal authority sits and it is consistent with the way National Texture and Dennie treat the inner tier as categorical. But it is a prediction. Do not cite it as a holding, and do not let an opponent cite Philip Morris as one either.

Four procedural points nobody briefs

Rule 26.02(d) is a district-court rule, and nobody has said where else it goes. In Kahl the insurer withheld part of its workers’ compensation file on claims of privilege and “attorney’s work product,” and the supreme court refused to decide the work-product half: those rules “govern only procedures in the district courts of this state, and the extent to which they are followed in workers’ compensation proceedings is neither revealed by the record nor adequately presented.” 277 N.W.2d at 397 n.1. Forty-seven years later, counting from the March 1979 decision, that question is still open. Before you assert work product in an administrative or compensation proceeding, find the provision that carries the rule there.

A nonparty’s privilege log comes from Rule 45.04, not Rule 26.02. The supreme court said so in 2025 while correcting a district court that had cited the wrong rule: “Rule 26.02(f) governs when a party to a proceeding withholds information that is otherwise discoverable based on a claim of privilege, whereas Rule 45.04(b) controls when a non-party who is subject to a subpoena claims that the information sought is privileged.” Energy Transfer LP v. Greenpeace International, No. A23-1284, slip op. at 8 n.7 (Minn. July 16, 2025). If you are subpoenaing an adjuster’s outside vendor, an accountant, or a records custodian, cite Rule 45.04(b).

Work-product protection reaches the attorney general’s pre-suit investigative demands. Section 8.31 lets the attorney general obtain discovery “without commencement of a civil action and without leave of court,” and then provides: “The applicable protective provisions of rules 26.02, 26.03, and 30.04 of the Rules of Civil Procedure for the district courts shall apply to any discovery procedures instituted pursuant to this section.” Minn. Stat. § 8.31, subd. 2. The supreme court leaned on that sentence in January 2026, describing it as imposing “court oversight of demands for information by authorizing those who are subject to civil investigative demands to seek protective orders in response to such demands.” State of Minnesota Office of the Attorney General v. Madison Equities, Inc., No. A24-0107, slip op. at 41 (Minn. Jan. 7, 2026). A civil investigative demand is not a warrant, and Rule 26.02(d) travels with it.

The remedy for an erroneous order is a writ of prohibition, and you take it now. Brown explained seventy-two years ago, in January 1954, why a later appeal is worthless here: “Once the confidential information in the document is divulged by permitting an adversary to inspect, there is nothing we could do to erase from the minds of the adversary the information so obtained.” 241 Minn. at 31. The Court of Appeals granted the writ in Cragg; the supreme court reached the merits by writ in Wiggin’s posture and by discretionary review in Leer. If a district court orders your trial-preparation materials produced, move for a stay and petition. Do not comply and appeal.

Madgett Law, LLC

I litigate discovery fights in Minnesota state and federal court — motions to compel and for protective orders, privilege and work-product logs, clawback motions under Rule 26.02(f)(2) and Minn. R. Evid. 502, expert-disclosure disputes, and petitions for a writ of prohibition when a district court orders production of material that should never leave the file. On the plaintiff’s side I pursue insurer claim files, investigative files, and internal reports, and I do it by asking first for the categories the doctrine was never written to cover. If you are on either side of a fight about what has to come out of the file, call 612-470-6529 or send us a message.

Sources: Minn. R. Civ. P. 26.01(b)(1)–(2) (expert disclosure; required written report; “the facts or data considered by the witness in forming them”), 26.02(b) (scope), 26.02(d) (trial preparation materials; anticipation of litigation; listed representatives including the insurer; substantial need and undue hardship; mandatory protection of mental impressions; own-statement and nonparty-statement paragraph; definition of “statement previously made”), 26.02(e)(1)–(3) (experts; non-testifying retained experts and “exceptional circumstances”; fee shifting), 26.02(f)(1)–(2) (privilege and trial-preparation logs; clawback), 26.03 (protective orders), and 35.02–35.04 (report of findings; waiver of medical privilege; medical disclosures), verified by direct retrieval of revisor.mn.gov/court_rules/cp/id/26/ and /35/. Minn. R. Evid. 502(a)–(e), including the 502(e)(2) definition of “work-product protection” and the “(Added effective January 1, 2019.)” line, verified by direct retrieval of revisor.mn.gov/court_rules/ev/id/502/. Fed. R. Civ. P. 26(b)(3)(A)–(C) (federal trial-preparation structure; “the person’s own previous statement”) and 26(b)(4)(B)–(D) (protections for draft reports and attorney–expert communications; expert employed only for trial preparation), retrieved from law.cornell.edu/rules/frcp/rule_26 and used to contrast what the federal rule says with what Minnesota’s says. Minn. Stat. § 8.31, subd. 2 (2025) (attorney general discovery without commencement of a civil action; applicable protective provisions of Rules 26.02, 26.03, and 30.04), and § 604.18, subd. 4(a) (2025) (complaint must not seek recovery; motion to amend; prima facie evidence), both pulled from revisor.mn.gov and checked for a 2026 amendment banner. Brown v. St. Paul City Ry. Co., 241 Minn. 15, 31, 32, 35, 36, 62 N.W.2d 688, 701 (1954) (futility of post-judgment review of a disclosure order, at 31; no counter-affidavit or other proof offered, at 32; work-product immunity “made absolute in our rule,” and Minnesota’s departure from the federal rule, at 35; routine reports serving many purposes, at 36), retrieved from static.case.law/minn/241/html/0015-01.html; the N.W.2d pin for page 35 is taken from State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d at 689–90, and the pins for pages 35–36 from In re Comm’r of Pub. Safety, 735 N.W.2d at 712. Ossenfort ex rel. Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 681–82 (Minn. 1977) (nonparty witness statements discoverable as of right; “mere surmise” of impeachment value is not substantial need; equal access to the declarant defeats the showing), static.case.law/nw2d/254/html/0672-01.html. National Texture Corp. v. Hymes, 282 N.W.2d 890, 896 (Minn. 1979) (attorney’s trial strategy, mental impressions, and legal theories not discoverable), static.case.law/nw2d/282/html/0890-01.html. Leer v. Chicago, Milwaukee, St. Paul & Pac. Ry. Co., 308 N.W.2d 305, 307, 309 (Minn. 1981) (nonparty corporate employees are not “parties”; 1975 advisory committee change deviating from the federal rule; overruling Schmitt v. Emery), cert. denied, 455 U.S. 939 (1982) (subsequent history as reported in Wiggin, 459 N.W.2d at 921 (Coyne, J., dissenting)), static.case.law/nw2d/308/html/0305-01.html. Dennie v. Metropolitan Medical Center, 387 N.W.2d 401, 406, 407 (Minn. 1986) (definition of work product; materials prepared in anticipation of litigation without counsel’s mental impressions “are not work product”; substantial need and inability to obtain by other means, all at 406; expert report “technically” not work product, at 407), static.case.law/nw2d/387/html/0401-01.html. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987) (considerable discretion over discovery requests; no reversal absent a clear abuse of discretion), static.case.law/nw2d/414/html/0406-01.html. Wiggin v. Apple Valley Medical Clinic, Ltd., 459 N.W.2d 918, 920–21 (Minn. 1990) (rule text quoted; two categories obtainable without a showing; bright-line meaning of “party”), static.case.law/nw2d/459/html/0918-01.html. State ex rel. Humphrey v. Philip Morris Inc., 606 N.W.2d 676, 683, 689–91, 696 (Minn. Ct. App.), Review Denied April 25, 2000 (per the archive’s head matter) (special master’s “fact work-product” findings, at 683; work product “immune” rather than “privileged,” at 689–90; objective portions not work product and the unaddressed Grolier argument, at 690; Levin test recited as a test for the attorney-client privilege, at 691; the single sentence applying crime-fraud to the work-product doctrine on Tenth and Second Circuit authority, at 696), static.case.law/nw2d/606/html/0676-01.html. City Pages v. State, 655 N.W.2d 839, 846 (Minn. Ct. App. 2003) (anticipation of litigation is a factual determination; the “because of the prospect of litigation” test and the regular-course-of-business converse, quoting Bieter Co. v. Blomquist, 156 F.R.D. 173, 180 (D. Minn. 1994); both conditions required; billing records generally not work product), static.case.law/nw2d/655/html/0839-01.html. In re Comm’r of Pub. Safety, 735 N.W.2d 706, 712 (Minn. 2007) (party objecting to production bears the burden of establishing immunity), static.case.law/nw2d/735/html/0706-01.html. In re Disciplinary Action Against Dedefo, 752 N.W.2d 523, 529 (Minn. 2008) (work-product objection to the factual basis of one’s own claims violated Minn. R. Prof. Conduct 1.1, 3.4(a), and 8.4(d)), static.case.law/nw2d/752/html/0523-01.html. Peterson v. W. Nat’l Mut. Ins. Co., No. A18-1081 (Minn. July 29, 2020), slip op. at 7, 21 (award of $100,000 in taxable costs and $97,940.50 in attorney fees; district court findings about the claims adjuster’s handling of the file, affirmed as not clearly erroneous), verified at mn.gov/law-library-stat/archive/supct/2020/OPA181081-072920.pdf; aff’g Peterson v. W. Nat’l Mut. Ins. Co., 930 N.W.2d 443 (Minn. Ct. App. 2019), retrieved at static.case.law/nw2d/930/html/0443-01.html. No reporter citation for the supreme court opinion was verifiable from a primary source, so it is cited by name, docket, court, and date; the same is true of McNeilly, Galaxy Wireless, Energy Transfer, Madison Equities, and Cragg, each of which is therefore cited by docket, court, date, and slip page rather than by a reporter volume. Energy Policy Advocates v. Ellison, 980 N.W.2d 146, 152 (Minn. 2022) (definition of the work-product doctrine; waiver by disclosure to third parties, citing State v. Rhodes, 627 N.W.2d 74, 85 (Minn. 2001); de novo review of the legal standard), and slip op. at 9, 10, 13 (six-element common-interest doctrine; legal interest required; burden on the party invoking; extension to attorney work product), verified at mn.gov/law-library-stat/archive/supct/2022/OPA201344-092822.pdf. In re Cragg, No. A23-0309 (Minn. Ct. App. Nov. 6, 2023), slip op. at 8, 9, 10 n.6, 12, 13 (work-product definition and third-party waiver as restated from Energy Policy Advocates; disclosure of unprotected information cannot waive; holding on the pre-filing complaint; unanalyzed “substantial need”; burden on the objecting party; deposition question seeking counsel’s evaluation of the importance of facts was work product), verified at mn.gov/law-library-stat/archive/ctappub/2023/OPa230309-110623.pdf. State v. McNeilly, No. A22-0468 (Minn. May 8, 2024), slip op. at 52–53 (presumption that documents seized from a suspect lawyer’s office are privileged or work product; the three routes by which the State may carry its initial burden), verified at mn.gov/law-library-stat/archive/supct/2024/OPA220468-05082024.pdf. Galaxy Wireless, LLC v. Western National Mutual Insurance Co., No. A23-1460 (Minn. Ct. App. June 24, 2024), slip op. at 4–5, 14–15 (order barring an insurer from withholding evidence as work product and then presenting it at trial; testimony of the undisclosed retained fire inspector stricken), verified at mn.gov/law-library-stat/archive/ctappub/2024/OPa231460-062424.pdf. Energy Transfer LP v. Greenpeace International, No. A23-1284 (Minn. July 16, 2025), slip op. at 8 n.7 (Rule 26.02(f) for parties, Rule 45.04(b) for nonparties), verified at mn.gov/law-library-stat/archive/supct/2025/OPA231284-071625.pdf. State of Minnesota Office of the Attorney General v. Madison Equities, Inc., No. A24-0107 (Minn. Jan. 7, 2026), slip op. at 41 (§ 8.31 imposes court oversight through protective orders), verified at mn.gov/law-library-stat/archive/supct/2026/OPA240107-010726.pdf. Kahl v. Minnesota Wood Specialty, Inc., 277 N.W.2d 395, 397 n.1, 399 (Minn. 1979) (insurer’s workers’ compensation file withheld on claims of privilege and “attorney’s work product,” and the court’s express refusal to decide whether Rule 26.02(3) reaches such proceedings — footnote 1’s reference mark is called at 397 and its body prints at 400; the article pins the call; and the future-crime-or-fraud dictum at 399), static.case.law/nw2d/277/html/0395-01.html. Kobluk v. University of Minnesota, 574 N.W.2d 436, 440 (Minn. 1998) (privilege may not shield communications regarding a future crime or fraud; the phrase “work product” appears nowhere in the opinion, confirmed by full-text search of the retrieved opinion), static.case.law/nw2d/574/html/0436-01.html. Levin v. C.O.M.B. Co., 469 N.W.2d 512, 515 (Minn. Ct. App.), review denied (Minn. July 24, 1991); Federal Trade Commission v. Grolier Inc., 462 U.S. 19 (1983); In re Grand Jury Subpoenas, 144 F.3d 653, 659–60 (10th Cir. 1998); In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995); and Bieter Co. v. Blomquist, 156 F.R.D. 173, 180 (D. Minn. 1994) are cited only as they are described, quoted, or characterized within Philip Morris and City Pages; none of those five opinions was independently retrieved for this article. Schmitt v. Emery, 211 Minn. 547, 2 N.W.2d 413 (1942), and State v. Rhodes, 627 N.W.2d 74, 85 (Minn. 2001), are cited as reported in Leer and Energy Policy Advocates respectively; Rhodes was retrieved at static.case.law/nw2d/627/html/0074-01.html and page 85 confirmed to address waiver of the attorney-client privilege by disclosure in the presence of third parties.

This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and no outcome is promised or implied. Your situation turns on its own facts; consult a lawyer about them.