Energy Transfer v. Greenpeace International

Court: Minnesota Court of Appeals

Date Filed: Nov. 3, 2023

Background: In 2021, the pipeline company Energy Transfer issued subpoenas to Unicorn Riot, a Minnesota-based nonprofit news organization, and one of its journalists seeking unpublished work materials related to the outlet’s coverage of the 2016 Dakota Access Pipeline protests. The subpoenas, filed with a Minnesota state court as part of ongoing litigation stemming from pipeline protests at the Standing Rock Sioux reservation, demanded that non-party Unicorn Riot and reporter Niko Georgiades hand over emails, audio and video recordings, financial documents, and other records.

The Minnesota district court affirmed that the Minnesota Shield Law applied to non-traditional news organizations such as Unicorn Riot and denied Energy Transfer’s motion to compel the disclosure. However, it ordered Unicorn Riot to create what’s known as a “privilege log,” a detailed list of all materials that could fall under the subpoena and explain why each piece should be privileged under the Minnesota Shield Law. Both sides appealed to the Minnesota Court of Appeals.

Our Position: The appeals court should affirm the district court’s application of the state shield law to Unicorn Riot and vacate the portion of the district court’s order requiring the news outlet to produce a privilege log.

• The Minnesota Shield Law was enacted to broadly protect newsgathering and the reporting process, and provides absolute protection in subpoena and other civil matters excepting those cases for defamation.
• The Minnesota Shield Law applies to non-traditional news organizations and protects Unicorn Riot’s unpublished work product from compelled disclosure.
• The qualified reporter’s privilege under the First Amendment also applies.
• Unicorn Riot should not have been ordered to produce a privilege log.

Quote: “Attempts by civil litigants to rifle through the notebooks and newsrooms of third-party journalists and news organizations can, among other things, result in costly and time-consuming legal battles that divert journalists’ attention and resources away from reporting, and foster distrust of the news media among potential sources — who may be less willing to speak to journalists.”

Update: On May 6, 2024, a three-judge panel of the Minnesota Court of Appeals issued a decision in favor of Unicorn Riot. The panel affirmed the district court’s ruling that the Minnesota Shield Law applies to Unicorn Riot’s newsgathering materials from the 2016 Dakota Access pipeline protests. It also rejected Energy Transfer’s argument that Unicorn Riot journalists forfeited their privileges under the shield law when they were detained or arrested in connection with covering the protests. Finally, the panel held that the shield law protects a nonparty media organization from being required to disclose newsgathering information on a privilege log or submit unpublished information for in camera review. With respect to information collected in the course of reporting, the panel saw no “conceivable method of preparing a privilege log that would not result in the disclosure of privileged information.” It instructed that, on remand, only information unrelated to newsgathering and outside of the privilege could be required on any log.