Introduction

In a closely watched discovery dispute arising from litigation over the Dakota Access Pipeline protests, the Minnesota Supreme Court clarified two core features of the Minnesota Free Flow of Information Act (MFFIA), Minn. Stat. §§ 595.021–.025:

• First, the MFFIA’s shield applies to newsgatherers even when their conduct is alleged to be unlawful or tortious, unless one of the statute’s two express exceptions (§§ 595.024, .025) is met. The court emphatically declined to read an implied “lawful conduct” limitation into the statute.
• Second, while the MFFIA forbids compelled disclosure of unpublished newsgathering information—including via in camera review—district courts may, in appropriate circumstances, require a privilege log under Minn. R. Civ. P. 45.04(b)(1), so long as preparing the log does not itself compel disclosure of privileged information and does not impose an undue burden.

The case stems from Energy Transfer’s subpoenas to Unicorn Riot, a Minnesota-based nonprofit news organization whose journalists embedded with the Standing Rock/DAPL protests and later published extensive coverage. Energy Transfer argued that Unicorn Riot’s alleged participation in unlawful protest activity stripped it of MFFIA protection and sought broad production of unpublished materials. Unicorn Riot invoked the MFFIA and the First Amendment to resist disclosure.

The district court denied Energy Transfer’s motion to compel but required a privilege log; the court of appeals affirmed the denial but barred any privilege log. The Minnesota Supreme Court affirmed in part, reversed in part, and remanded—cementing robust statutory protection for newsgathering while restoring district courts’ discretion to require privilege logs in limited, carefully tailored ways.

Summary of the Opinion

• No implied “unlawful conduct” exception. The MFFIA’s plain text does not limit its protections to “lawful” newsgathering. Courts may not add that word to Minn. Stat. § 595.023. Apart from the statute’s two enumerated exceptions (criminal-proceeding exception in § 595.024; defamation/actual malice exception in § 595.025), the MFFIA bars compelled disclosure of confidential sources, means of obtaining information, and unpublished newsgathering materials.
• Privilege logs are not categorically prohibited. The MFFIA does not bar courts from ever requiring a privilege log under Minn. R. Civ. P. 45.04(b)(1). But courts must ensure that log preparation does not require disclosure of privileged content, and must guard against undue burden, especially for non-party news organizations.
• In camera review remains off limits. Because § 595.023 forbids “any court” from ordering disclosure of “any unpublished information” “in any proceeding,” compelled in camera review of protected materials is prohibited.
• Disposition. The court affirmed the denial of Energy Transfer’s motion to compel, reversed the court of appeals’ categorical ban on privilege logs, and remanded for the district court to determine whether and to what extent a privilege log is appropriate, considering undue burden and the breadth and obvious privileged nature of the requests.
• Mootness. Although Energy Transfer later prevailed at trial in the underlying North Dakota action, the controversy was not moot because post-trial motions were pending and an appeal was anticipated; a retrial remained possible.

Analysis

Precedents and Authorities Cited

• Branzburg v. Hayes, 408 U.S. 665 (1972): The U.S. Supreme Court declined to recognize a First Amendment reporter’s testimonial privilege before a grand jury. Minnesota’s Legislature enacted the MFFIA in Branzburg’s wake to codify robust statutory protections for newsgatherers.
• State v. Turner, 550 N.W.2d 622 (Minn. 1996): Recognized that the MFFIA was a legislative response to Branzburg to provide added protection against subpoenas to reporters and their employers; also confirms Minnesota treats state and federal press protections coextensively.
• State v. Expose, 872 N.W.2d 252 (Minn. 2015): Applicability of an evidentiary privilege is reviewed de novo; frames the court’s standard of review here.
• Citizens State Bank v. Brown, 849 N.W.2d 55 (Minn. 2014), and Minn. Stat. § 645.19: Exceptions in a statute are construed to exclude all others (expressio unius). The court uses this canon to refuse creation of an “unlawful conduct” exception not written into the MFFIA.
• State v. Conrad (In re Hope Coalition), 977 N.W.2d 651 (Minn. 2022): Addressed a different statutory privilege (sexual assault counselor records). The court of appeals relied too heavily on Hope Coalition to hold that privilege logs are categorically unavailable under the MFFIA; the Supreme Court here clarifies that Hope Coalition does not control the MFFIA context and does not preclude carefully tailored privilege logs.
• Energy Policy Advocates v. Ellison, 980 N.W.2d 146 (Minn. 2022): Discusses the shape and function of privilege logs (categorization and justifications) in Minnesota practice.
• Lawrence v. Rihm Family Cos., Inc. (In re Lawrence), 954 N.W.2d 597 (Minn. App. 2020): An example of the breadth and detail sometimes seen in privilege logs (nearly 800 entries), underscoring district court discretion to calibrate the burden and specificity.
• Underdahl v. Comm’r of Pub. Safety (In re Comm’r of Pub. Safety), 735 N.W.2d 706 (Minn. 2007): Discovery orders are generally reviewed for abuse of discretion; but questions about the scope of a privilege are legal and reviewed de novo.
• State v. Zais, 805 N.W.2d 32 (Minn. 2011): Reinforces de novo review for statutory privilege interpretation.
• Stecklein & Rapp Chartered v. Experian Info. Sols., Inc., 113 F.4th 858 (8th Cir. 2024): Affirms quashing unduly burdensome subpoenas—a cautionary note for sweeping demands to non-party news entities.
• In re Application of Chevron Corp., 736 F. Supp. 2d 773 (S.D.N.Y. 2010); Mosley v. City of Chicago, 252 F.R.D. 445 (N.D. Ill. 2008); Las Vegas Sun, Inc. v. Adelson, 2021 WL 6621290 (D. Conn. Sept. 2, 2021): Federal cases recognizing that journalists claiming a privilege can be required to produce privilege logs, reinforcing the court’s conclusion that privilege logs are compatible with press protections when crafted carefully.
• Cohen v. Cowles Media Co., 479 N.W.2d 387 (Minn. 1992): Minnesota interprets Article I, § 3 coextensively with the First Amendment; no separate constitutional reporter’s privilege has been recognized.
• In re Application of Minnegasco, 565 N.W.2d 706 (Minn. 1997): Guiding principle for mootness; applied here to keep the controversy alive despite a post-argument jury verdict in related litigation.

Legal Reasoning

1) The MFFIA’s Text Controls—and It Contains No “Lawful” Limitation

The court begins with the statutory text. Section 595.023 prohibits “any court” from requiring “any person” engaged in gathering or publishing information “to disclose in any proceeding” the “person or means” of obtaining information or “any unpublished information,” including “notes, memoranda, recording tapes, film or other reportorial data.”

Energy Transfer’s theory—that alleged unlawful or tortious conduct by a journalist strips away the privilege—requires reading the word “lawful” into § 595.023. The court declines to add words to a statute, citing Energy Policy Advocates. It also observes the core distinction between discovery and liability: the MFFIA regulates compelled disclosure, not whether a journalist may be held civilly or criminally liable for protest-related conduct. If Energy Transfer believes Unicorn Riot caused harm, it may sue for torts; but it may not pierce the MFFIA shield simply by alleging unlawful acts, absent a statutory exception.

2) Express Exceptions Mean No Others

Sections 595.024 and 595.025 delineate narrow exceptions:

• Criminal exception (§ 595.024): Requires probable cause that specifically sought information is clearly relevant to a felony/gross misdemeanor (or a misdemeanor without revealing sources or means), no alternative source less destructive of First Amendment rights, and a compelling, overriding interest where disclosure is necessary to prevent injustice.
• Defamation exception (§ 595.025): In defamation actions, disclosure may be compelled only if the source’s identity will lead to relevant evidence of actual malice, no alternative sources exist, and balancing factors are met.

Applying expressio unius and § 645.19, the court holds that the Legislature’s inclusion of these two exceptions precludes judicial creation of an additional “unlawful conduct” exception. If such a carve-out is desirable policy, the Legislature—not the courts—must enact it.

3) Privilege Logs Are Compatible with the MFFIA—With Safeguards

Rule 45.04(b)(1) requires a subpoena recipient claiming privilege to expressly assert the claim and support it with a description “sufficient to enable the demanding party to contest the claim.” The district court has discretion to calibrate the detail and burden of a log.

The court rejects the court of appeals’ categorical ban on privilege logs in MFFIA cases. The MFFIA bars compelled disclosure of unpublished information “in any proceeding,” which includes in camera review. But a properly tailored privilege log need not—and must not—disclose privileged “unpublished information,” sources, or means of obtaining information. Courts must take special care: where requests target vast troves of obviously privileged materials (e.g., years of unpublished footage, notes, and communications from embedded reporting), preparing detailed, document-by-document logs may itself be unduly burdensome. District courts retain authority to:

• Assess undue burden under Rule 45.03 and 45.04(a)(4), with special solicitude for non-party news entities;
• Limit or forgo logging where it would necessarily reveal privileged content or be disproportionately burdensome;
• Permit categorical descriptions (e.g., date ranges, high-level topics, counts) that enable contesting the privilege without disclosing protected substance.

Importantly, although the district court had signaled it might use a log to decide whether to order in camera review, the Supreme Court makes clear that in camera review of MFFIA-protected unpublished information is itself prohibited by § 595.023.

4) First Amendment and Minnesota Constitution Do Not Forbid Privilege Logs

Unicorn Riot argued that, even if the MFFIA allows privilege logs, the First Amendment (and Article I, § 3) prohibit requiring journalists to create them. The court finds no authority for that proposition and notes federal cases in which courts require privilege logs from journalists asserting a constitutional privilege. Minnesota has not recognized a freestanding constitutional “reporter’s privilege” separate from the MFFIA; in any event, a suitably crafted log does not compel disclosure of privileged content.

Impact and Practical Consequences

A fortified, text-first shield for newsgathering—even amid protest and alleged illegality

The decision cements a robust, textual approach to the MFFIA: alleged unlawful or tortious conduct during reporting does not pierce the statutory shield unless the Legislature’s enumerated exceptions are satisfied. This has concrete implications:

• Embedded and on-the-ground reporting: Journalists who cover protests, civil disobedience, or volatile events retain MFFIA protection for unpublished materials even if arrested or accused of crossing legal lines—unless the specific statutory predicates for an exception are met.
• Strategic recalibration by subpoenaing parties: Litigants seeking journalists’ materials must either (a) tailor requests to non-privileged information, (b) satisfy the exacting standards of §§ 595.024 or .025, and (c) exhaust alternative sources, or (d) rethink whether to subpoena at all given likely burdens and low yield.
• No backdoor via “in camera” inspection: Courts may not compel submission of protected materials for private judicial review. Disputes will be resolved via logs, affidavits, and argument—not by judicial rummaging through unpublished files.

Renewed discretion (and responsibility) for trial courts handling logs

By restoring district courts’ authority to require privilege logs, the Supreme Court promotes procedural regularity across privileges. But it also imposes a duty to carefully balance:

• Whether a log can be crafted to avoid disclosure of protected details like source identity or “means” of obtaining information;
• Whether categorical or high-level descriptions suffice in place of granular, document-by-document entries;
• Whether the demands on a non-party newsroom to sift through years of unpublished content themselves constitute an undue burden warranting limitation or quashing of the subpoena.

Legislative channel left open

If policymakers believe the MFFIA should include a “crime/fraud”-type exception akin to other privileges, they must amend the statute. The court’s interpretive approach—rooted in plain text and expressio unius—forecloses judicial creation of new exceptions.

Clarifications vis‑à‑vis Hope Coalition

While acknowledging similarities in structure (strong privilege plus narrow statutory exceptions), the court disclaims reliance on Hope Coalition and leaves that decision undisturbed. The MFFIA context is distinct: it protects a wider array of materials (all unpublished newsgathering information, sources, and means), making categorical bans on logs unwarranted even as courts must guard against compelled revelation through the logging process itself.

Guidance for practitioners

• For subpoenaing parties: Narrowly target demonstrably non-privileged materials; articulate how any request touching protected areas meets a statutory exception; show diligent pursuit of alternative sources; and propose categorical logs to minimize burden.
• For news organizations: Promptly assert MFFIA; be prepared to explain burdens under Rule 45.03; propose category-level logs (e.g., date ranges, counts, broad subject labels) that do not reveal sources or means; and offer declarations explaining why greater specificity would disclose privileged content.
• For courts: Sequence rulings to first resolve facially privileged categories and relevance; require logs only where they can meaningfully assist privilege adjudication without prying into protected substance; and be attentive to non-party burdens and the statute’s prohibition on in camera review.

Complex Concepts, Simplified

• MFFIA: Minnesota’s “shield law” for the press. It prevents courts and government bodies from forcing journalists to reveal sources, the ways they obtained information, or any unpublished notes, recordings, or materials—except in two narrow scenarios (serious criminal cases and defamation actual-malice inquiries).
• Unpublished information: Everything gathered in reporting that hasn’t been made public—notes, raw video/audio, drafts, messages, photos, and other “reportorial data.”
• Privilege log: A list describing withheld items sufficiently to allow the other side to challenge the claim of privilege—without disclosing the privileged substance. In the MFFIA context, this often means high-level, categorical descriptions rather than document-by-document specifics.
• In camera review: A judge’s private inspection of materials. Under § 595.023, courts cannot compel journalists to submit unpublished information for in camera inspection.
• Actual malice: In defamation law involving public figures or matters of public concern, the plaintiff must show the defendant knew the statement was false or acted with reckless disregard for the truth. The MFFIA allows limited discovery into source identity only if that identity will lead to evidence on actual malice and other strict criteria are met.
• Expressio unius est exclusio alterius: When a statute lists exceptions, courts presume others are excluded. Here, because the Legislature listed two MFFIA exceptions, courts cannot add a third for “unlawful conduct.”
• Undue burden (Rule 45.03): Lawyers must avoid imposing undue burden on subpoenaed non-parties. Courts can quash or limit subpoenas—or curtail privilege logs—when responding would be overly onerous or intrusive.

Conclusion

The Minnesota Supreme Court’s decision delivers two significant clarifications to the state’s press shield law. First, the MFFIA’s protection for sources, methods, and unpublished newsgathering materials does not evaporate when a journalist is accused of unlawful or tortious conduct; only the statute’s two explicit exceptions permit compelled disclosure. Second, while the MFFIA forecloses compelled in camera review and protects privileged content absolutely, it does not categorically bar courts from requiring privilege logs. Trial courts retain discretion to order tailored logs that do not reveal privileged content and to limit or forego logs where they would impose undue burdens—especially on non-party news organizations—or would necessarily disclose protected information.

In an era of intensive on-the-ground reporting at protests and other high-friction events, this opinion reinforces the Legislature’s design: safeguarding the free flow of information to the public without opening journalists’ unpublished files to routine discovery. At the same time, it reaffirms core discovery principles by permitting carefully managed privilege logging. The result is a durable, text-centered framework that channels any further adjustments to the Legislature and provides pragmatic guidance to courts and litigants navigating subpoenas to the press.