This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








Lyle D. Thomason,





Sappi-Cloquet, LLC,




Filed July 18, 2006


Toussaint, Chief Judge


Carlton County District Court

File No. 09-C7-03-000878


Thomas F. Andrew, Brown, Andrew & Signorelli, P.A., 306 West Superior Street, Suite 300, Duluth, MN 55802 (for appellant)


Frank B. Yetka, William T. Helwig, Rudy Gassert, Yetka & Pritchett, P.A., 123 Avenue C, Cloquet, MN 55720 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            In an appeal from a judgment and denial of posttrial motions, appellant Lyle D. Thomason challenges the district court’s evidentiary rulings regarding the admissibility of privileged documents and prior workers’ compensation judges’ decisions in his trial for retaliatory discharge.  He argues that the district court abused its discretion by excluding, on the grounds of attorney-client privilege and work product, privileged documents that were inadvertently disclosed and by excluding two prior workers’ compensation judges’ decisions.  Because the documents are privileged and work product and because the workers’ compensation judges’ decisions are not relevant, we affirm.


When reviewing evidentiary rulings, “our duty is to look to the record as a whole to determine whether, in light of the evidence therein, the district court acted arbitrarily, capriciously, or contrary to legal usage.”  State v. Profit, 591 N.W.2d 451, 464 n.3 (Minn. 1999) (quotation omitted).  Absent an erroneous interpretation of the law, the question of whether to admit evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins., Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Id. at 46 (quotation omitted).



Respondent inadvertently disclosed to appellant a letter and memorandum that appellant asserts should have been admitted into evidence during trial because they were helpful to his case.  Neither party contests the fact that these documents are privileged.  Appellant challenges the district court’s ruling excluding these documents both as attorney-client privilege and work product.[1]

Protecting the attorney-client privilege

promotes the administration of our adversary system of justice by insuring that a client with claims that may lead to litigation can best pursue them by employing an attorney.  The attorney can only effectively fulfill his roles as counselor, intermediary, and advocate if the client, assured of confidentiality, is wholly free to completely and candidly disclose all the facts, favorable or unfavorable, to him.


Kahl v. Minn. Wood Specialty, Inc., 277 N.W.2d 395, 398 (Minn. 1979).  Although the documents do not contain statements made by respondent, they represent the thoughts and impressions of respondent’s workers’ compensation attorneys.  As such, the documents are protected by the attorney-client privilege.

But the attorney-client privilege is not absolute, for if the communication is in furtherance of a crime or fraud it is not protected.  Levin v. C.O.M.B. Co., 469 N.W.2d 512, 514 (Minn. App. 1991), review denied (Minn. July 24, 1991).  In order to succeed on a claim of crime-fraud, one must “establish a prima facie showing that the communication was (1) made in furtherance of a crime or fraud and (2) was closely related to the fraud.” 515.  The analysis should be flexible, focusing on “whether the detriment to justice from foreclosing inquiry into pertinent facts is outweighed by the benefits to justice from a franker disclosure in the lawyer’s office.”  Id. (quotation omitted).

            The district court found that appellant did not meet his burden of showing that these communications were “made in furtherance of a crime or fraud and w[ere] closely related to the fraud.”  Appellant contends that the documents evince respondent’s intent to violate Minn. Stat. § 176.82, subd. 1 (2004), by terminating his employment as a result of his petition for workers’ compensation benefits.  Because the statements contained in the documents were made after respondent’s discharge by attorneys who were not directly involved in the decision to terminate respondent’s employment, the documents do not rise to the level of crime-fraud and the district court did not abuse its discretion by excluding the documents. 

Minn. R. Civ. P. 26.02 (c) provides the limits of discovery for work product:

[A] party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial . . . 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.


“An attorney’s thoughts are inviolate and courts should proceed cautiously when requested to adopt a rule that would have an inhibitive effect on an attorney’s freedom to express and record his mental impressions and opinions without fear of having these impressions and opinions used against the client.”  Murphy v. Pfizer, Inc., 560 F.2d 326, 336 (8th Cir. 1977) (citing Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 393-94 (1947)).  Thus, a work product that involves an attorney’s thoughts or impressions is subject to more protection than other forms of work product.  Id.  “[O]pinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.”  Id.

Our unwillingness to recognize an absolute immunity for opinion work product stems from the concern that there may be rare situations, yet unencountered by this court, where weighty considerations of public policy and a proper administration of justice would militate against the non-discovery of an attorney’s mental impressions.  Absent such a compelling showing, the attorney’s opinion work product should remain immune from discovery.




Appellant argues that he should be allowed to use these documents to help prove his case because he has no other way to obtain such evidence.  That is not a valid reason to pierce the nearly absolute immunity of opinion work product.  Appellant has not shown any reasons why this case is unique and would satisfy the rigorous test applied to opinion work product.  These documents contain the attorneys’ impressions and opinions of this case and deserve protection; therefore, it was not an abuse of discretion to exclude the documents.



Appellant sought to admit two workers’ compensation judges’ decisions because they helped prove the ultimate issue in the case—whether respondent terminated appellant’s employment on the basis of misconduct.  Respondent sought to suppress the two decisions on the basis of relevancy.

The decisions have no precedential value:  workers’ compensation judge’s decisions are not binding on a court of general jurisdiction.  The decisions are not the law-of-the-case, and this is not an issue of stare decisis.

Moreover, the workers’ compensation court was presented with a different issue, i.e., whether appellant was entitled to workers’ compensation benefits, not whether his termination was retaliation for seeking workers’ compensation benefits.  Additionally, the workers’ compensation court operates under different burdens and standards from the district court in a civil litigation.  See Kahl, 277 N.W.2d at 398 (stating that rules of evidence need not be rigidly adhered to in workers’ compensation cases).  Thus, the decisions are not relevant to the issue of retaliatory discharge and it was not error to exclude them.


[1] The district court used the inadvertent disclosure analysis to find that the documents were privileged and inadmissible.  We do not use that analysis because this issue can be determined on the basis of attorney-client privilege.