EOP-Nicollet Mall, L.L.C. v. County of Hennepin

HANSON, Justice,

(concurring in part, dissenting in part).

I respectfully concur in part and dissent in part. I agree with the majority that the tax court did not abuse its discretion in denying EOP’s motion to compel production of nonpublic information provided to the county by other property owners (collectively referred to as “Other Taxpayers”). But I conclude that the tax court did abuse its discretion when it denied EOP’s motion in limine to preclude the county from using the same nonpublic information against EOP at trial. The tax court erred when it applied one legal standard to deny EOP’s request for the nonpublic information but a different, more relaxed, legal standard to grant the county’s request to disseminate the same nonpublic information by using it as evidence in the trial on EOP’s tax assessment. I further conclude that the tax court did not cure this error by later requiring the county to produce only those portions of the nonpublic information of Other Taxpayers that the county selected for use at trial because this denied EOP the opportunity to test, by discovery or cross-examination, whether other nonpublic information, available to but not selected for use by the county, was detrimental to the county’s appraisal, thus essentially allowing the county to become the gatekeeper of the release of the nonpublic information.

To properly analyze the tax court’s rulings, it is important to clarify that the county played two separate roles. On the one hand, the county was the custodian of nonpublic information provided by numerous taxpayers regarding their individual properties. As we noted in Montgomery Ward v. County of Hennepin, “other taxpayers provide information about their sales and/or rent to the county with the tacit understanding that this information is not going to be disclosed to competitors.” 450 N.W.2d 299, 306 (Minn.1990). And, as noted by the tax court here, the affidavits of several of the Other Taxpayers “stated that they provided the specific information to Hennepin County with the explicit understanding that the information would not be made public.” Thus, the county, as *286custodian, had the responsibility to protect the privacy of Other Taxpayers’ information, consistent with the Minnesota Government Data Practices Act (MGDPA). See Minn.Stat. § 13.51, subd. 2 (2004) (classifying certain vacancy, lease, income, expense and usable/rentable area data held by county assessors as “nonpublic data”). The county exercised that responsibility when it refused to produce Other Taxpayers’ information to EOP and opposed EOP’s motion to compel. On the other hand, the county was also a party defending against EOP’s property tax challenge. In that role, the county had a significant advantage over EOP because the county had access to the nonpublic information of all Other Taxpayers whose properties were arguably comparable to EOP’s.

The combination of these two roles placed the county in a conflict of interest. As custodian, the county’s responsibility was to keep the nonpublic information of Other Taxpayers private, but as a party, the county’s interest was to disseminate the nonpublic information of Other Taxpayers in the EOP trial to support the county’s valuation of EOP’s property. In my view, the MGDPA protects against that conflict of interest by reinforcing the county’s role as custodian and regulating the county’s role as a party. Because the county’s use at trial would necessarily disseminate the nonpublic information to persons who do not have the privacy interest, that use is regulated by the MGDPA in the same manner as the use by any other party. My concern with the tax court’s decision on EOP’s motion in limine is that it did not apply the balancing test to the county’s request to use the nonpublic information at trial.

My concern is not with the private, internal access to nonpublic information by the county, but with the public, external dissemination of such information by use of the information at trial. I agree that the Hennepin County Assessor had complete access to the nonpublic information provided by the Other Taxpayers, even though it was provided with a promise of confidentiality. And Minn.Stat. § 273.061, subd. 8a (2004), authorizes the Hennepin County Assessor to exchange that nonpublic information with other county or local assessors.1 But, that statute only authorizes such exchanges for internal use because it also provides that data “exchanged under this provision that is classified as nonpublic or private data shall retain its classification.” Id.

Thus, there is no issue about the internal access by assessors to the nonpublic data. The only issue is whether an assessor, who has full access to nonpublic information, may make the information public by using it in the trial of the tax assessment of another taxpayer. As to that issue, the more precise question is by what authority does a county assessor, who is charged with the responsibility of maintaining the privacy of nonpublic information, make it public by disseminating it in the course of a trial with parties other than the party who possesses the privacy interest.

On this question the majority suggests that my concerns are premised on a “faulty assumption that EOP’s motion in limine should be viewed as an objection by EOP ‘under the MGDPA to the public use by the county of any of that information.’ ” (emphasis in the majority opinion). The majority argues that the balancing test *287only applies to objections by the government entity. But if that were true, then the county would never be permitted to use nonpublic information of other taxpayers at the trial of the subject taxpayer. The balancing test of Minn.Stat. § 13.03, subd. 6 (2004), would not be available to authorize the public use and dissemination of nonpublic information by a county assessor, and I can find no other provision, in the MGDPA or elsewhere, that authorizes such use and dissemination.

The majority apparently suggests that such authority is provided by MinmStat. § 13.4965, subd. 4 (2004), which authorizes the disclosure of an “assessor’s real estate tax records for litigation purposes.” But that section does not address nonpublic information that comes into the possession of an assessor from another taxpayer. The disclosure of an assessor’s real estate tax records is governed by Minn.Stat. § 278.05, subd. 3 (2004), which clarifies that its provisions apply to the records generated by the assessor, including “certificates of real estate value, assessor’s field cards and property appraisal cards.” In fact, if section 278.05, subd. 3, applied to override the MGDPA with respect to nonpublic information held by assessors, this case would not be here because that section requires that the assessor’s records “be made available to the petitioner for inspection and copying” and the tax court would have had no basis to limit EOP’s request for the data by imposing a balancing test.

Thus, I conclude that, without access to the balancing test under the MGDPA, a county has no other mechanism to be judicially relieved of its responsibility to keep the nonpublic information private. I agree that the MGDPA does not expressly state that the balancing test applies to public use and dissemination by the government entity. The MGDPA does not define the word “party,” as it is used in section 13.03, subd. 6, to describe the person who is seeking access to nonpublic data, and subdivision 6 focuses more directly on issues of discovery. But I would interpret subdivision 6 to be applicable to the county’s public use at trial of nonpublic data. It is difficult to imagine any reason why the legislature would intend to authorize public use of nonpublic information by private persons who can meet the balancing test of subdivision 6, but not by a county that could likewise meet that test. I conclude that the word “releasable” in subdivision 6 provides a broader context than “discoverable” and encompasses the publication of nonpublic data by use at trial. Further, I conclude that the word “party” in subdivision 6 includes the county when it is acting as a party to the proceeding in which the data might be used.

A. Erroneous Application of the MGDPA.

EOP argues that its due process rights were violated when the tax court applied one legal standard to prevent EOP from accessing the nonpublic information of Other Taxpayers and a lesser legal standard to permit the county to use that information. As we noted in Montgomery Ward, “[i]n a property tax matter * * * relator’s constitutional right to due process is at stake.” 450 N.W.2d at 306. But, I conclude that it is not necessary to reach the due process issue because the tax court’s ruling, allowing the county to use the nonpublic information, resulted from an erroneous application of the MGDPA. This constituted an abuse of discretion and warrants reversal of the tax court’s decision.

1. The legal standard applied to EOP’s motion to compel production of the information of Other Taxpayers.

When EOP moved to compel the county to produce the nonpublic information of Other Taxpayers, the tax court performed *288the two-part balancing test required by section 13.03, subd. 6:

The presiding officer shall first decide whether the data are discoverable or releasable pursuant to the rules of evidence and of criminal, civil, or administrative procedure appropriate to the action.
If the data are discoverable the presiding officer shall decide whether the benefit to the party seeking access to the data outweighs any harm to the confidentiality interests of the agency maintaining the data, or of any person who has provided the data or who is the subject of the data, or to the privacy interest of an individual identified in the data.

a. Was the information “discoverable or releasable”?

The tax court easily decided that the nonpublic information of Other Taxpayers was relevant to the income approach to the valuation of EOP’s property and thus was discoverable. This was consistent with our observations in Montgomery Ward, that the value of a comparable property was relevant because the “assessor is obligated to consider similar property when making the assessment.” 450 N.W.2d at 306.

b. Did the benefit to EOP from using the information outweigh any harm to the county or Other Taxpayers?

The tax court weighed this question in favor of confidentiality. The court first minimized any benefit to EOP from use of the information based on the conclusion that EOP’s expert could prepare an appraisal without it.2

The tax court then considered the burden on the county and the Other Taxpayers if the information were made public. It found that the burden outweighed any benefit, emphasizing several harms that would result from the information becoming public:

Intervenors and Respondent argue that there is a great burden on the county and third party property owners. Intervenors argue that in the future they would not readily give this detailed information to the assessor because of the risk of it falling into the hands of a competitor. A county assessor would face greater difficulty in resolving tax disputes without this information. Further, litigation may increase as property owners/managers would contest taxes simply to undertake discovery. With the information, they could solicit tenants. Further, the property owners provided this information with the understanding that it would be kept confidential.
* * * If this information were to be turned over to Petitioner, even with prohibitions and/or protections about the *289release of the information, it could cause taxpayers to be less cooperative. Leases themselves could be used as a basis for a solicitation and luring away of tenants. Further, there is a legitimate concern that if this information were to be released, in the future, building owners would contest taxes in order to obtain competitor’s information. This would put an undue burden on the county’s property tax collection system. Further, the information is proprietary.

Although section 13.03, subd. 6, authorizes the court to “fashion and issue any protective orders necessary to assure proper handling of the data by the parties,” the tax court’s order denying EOP’s motion to compel recited the Intervenor’s concerns but did not state the court’s conclusions on a protective order. Implicitly, the court rejected a protective order when it denied the motion to compel, but it did not explain the rationale. Although I believe that a protective order would have been appropriate, I acknowledge that the denial of it was within the tax court’s discretion.

2. The legal standard applied to the county’s request to use the information of Other Taxpayers.

One would logically expect that the tax court’s analysis of the request of the county to use the information of Other Taxpayers at EOP’s trial would lead to the same conclusion under the balancing test: although the information was relevant, the county could not demonstrate that the benefit to the county would be any greater than to EOP and the harm would be the same — the Other Taxpayers would be discouraged from cooperating with the assessor; property owners would be encouraged to challenge their property taxes simply to gain access to the information of their competitors; the Other Taxpayers’ understanding that this information would remain confidential would be violated; property owners could use the information to lure tenants away from their competitors; and the county’s property tax collection system would be burdened. Presumably, that harm could not be avoided by a protective order, for the same reasons that the court rejected a protective order for EOP.

But the tax court did not reach the same conclusion, essentially because it misinterpreted the thrust of EOP’s motion in li-mine and restructured that motion to answer the wrong question, with the result that it applied the balancing test to the wrong interests.

First, the tax court mistakenly narrowed the legal issue to only whether the county’s withholding of the Other Taxpayers’ information from EOP had been “wrongful.” I acknowledge that the EOP may have contributed to this mistake by including, at the end of its argument, citation to cases where motions in limine were granted as sanctions for discovery violations.3 But those citations did not define EOP’s argument, which by this time had been fully developed.

When EOP initially made its motion to compel, it did so alternatively, seeking a motion in limine to preclude the county from using the Other Taxpayer information if the county was not compelled to produce it to EOP. The argument for this alternative relief was clear — if the MGDPA precluded the use of this information by EOP, it would likewise preclude *290the use of it by the county. The tax court denied EOP’s motion to compel but did not address EOP’s alternative request. EOP then brought a separate motion in limine, based squarely on the fact that the tax court had denied its motion to compel. EOP argued that the application of the balancing test to the county would lead to the same conclusion, that the information must be kept confidential. Further, EOP argued that its due process rights would be violated if the court applied a different legal standard to permit use by the county. EOP suggested that this would place the county in a position to act as “gatekeeper” and that the county may decide to not use relevant information because it is “contradictory or detrimental to [the county’s] position, without having to account for such action through discovery or during cross-examination at trial.”4 That argument reflects the precise issue before us but the tax court never addressed it.

Second, the tax court misinterpreted EOP’s motion in limine in another, perhaps more fundamental, way. For the reasons discussed above, the correct framework for the analysis of EOP’s motion in limine would have been this — the county, who previously objected to the use of Other Taxpayers’ information by EOP, now proposes to publicly disseminate selected parts of that same information and, with their roles reversed as a result of the tax court’s denial of EOP’s motion to compel, EOP now objects under the MGDPA to the public use by the county of any of that information. The appropriate application of the MGDPA’s balancing test, thus, would have been to ask whether the benefit to the county of the use of Other Taxpayers’ information outweighs the harm to the Other Taxpayers and the tax collection system. Unfortunately, the tax court did not address this dispositive question. If it had, the answer would surely have been that the county has no greater or different right to the public use of Other Taxpayers’ nonpublic information than EOP.

The tax court did not answer this critical question because it restructured EOP’s motion in limine to be a motion to compel the production of that part of the Other Taxpayers’ information that the county proposed to use at trial. But EOP did not make such a motion, and such a motion assumes away the critical issue — whether the county as a party could use the nonpublic information of Other Taxpayers without going through the balancing test of the MGDPA.

Having assumed away that critical issue, the application of the balancing test to the reformulated motion was too simple. If you assume that the county is permitted to *291use selected Other Taxpayers’ information at trial, then EOP’s need for access to that information necessarily increases. And, if you assume that the county is permitted to use the information at trial, the harm to Other Taxpayers is likewise assumed to be inevitable and the only question is whether it can be minimized by a protective order.

If the tax court had made the appropriate analysis under the MGDPA, it necessarily would have granted EOP’s motion in limine, based on these conclusions:

a. The information that the county proposed to use at trial is relevant and thus “releasable” under the MGDPA.
b. The benefit to the county in using the information is no greater than the benefit that would have accrued to EOP, and is therefore outweighed by the harm to the Other Taxpayers and the tax collection system.
c. Because that harm could not be sufficiently minimized by a protective order when EOP sought the information, it similarly could not be adequately minimized when the county seeks to use the information.

Because the failure of the tax court to perform this analysis and to grant EOP’s motion in limine resulted from a misapplication of the MGDPA, it was an abuse of discretion that warrants reversal.

B. The MGDPA operates as a shield, not a sword.

Even if we were to focus only on the issue as reformulated by the tax court, I would still conclude that the court abused its discretion by, in effect, delegating the analysis of the MGDPA to the county and allowing the county to use it as both a shield and a sword.

Although the tax court denied EOP’s motion in limine and allowed the county to use Other Taxpayers’ information at trial, it could have avoided the prejudice to EOP if it had ordered the county to produce to EOP, under an appropriate protective order, all of the relevant Other Taxpayers’ information that was available to the county’s expert, whether used or not. In other words, the tax court could have required the county to make a choice: if it wanted to use some Other Taxpayers’ information it would be deemed to have waived its objection to the production of all such information; or, if it continued to object to the production of all such information, it would be precluded from using some information.

Although the protections of the MGDPA are not necessarily equivalent to those applicable to an evidentiary privilege, the principle in privilege law, that a party may not selectively assert the privilege for some privileged information but affirmatively use other privileged information, reflects considerations of fundamental fairness that should also apply to the MGDPA. As applied here, the county was free to object to the production of any Other Taxpayers’ information to EOP, but by doing so, the county precluded itself from using any of that information. Or, conversely, if the county persisted in using some of the information, such use should result in a waiver of its objection to EOP’s motion to compel.5

*292This result follows from analogy to the privilege cases. In Swanson we quoted with approval the following ruling from Steen v. First Nat’l Bank, 298 F. 36, 41 (8th Cir.1924):

“The owner of the privilege of preventing the disclosure of confidential communications cannot, after testifying to or about them, or to or about any substantial part of them, without claiming his privilege, or objecting to testify on the ground of his privilege, invoke the privilege to prevent other parties to the communications from testifying to them. He cannot by his silence lay down the shield of his privilege, and assail another with the sword of his own testimony to the privileged communications, and, when his adversary essays to defend himself, or to attack him by his version of the testimony, or by the testimony of other parties or witnesses to such communications, again seize the shield of his privilege and shut out all testimony as to the confidential communications but his own. He has waived his privilege and such waiver is in no sense contrary to public policy; indeed, it is in the interest of truth and justice.”

251 Minn. at 118, 86 N.W.2d at 722-28. Similarly, most cases hold that “discovery is permissible of privileged matter to the extent it is contemplated that the privilege will be waived at trial.” 8 Charles Alan Wright, et al., Federal Practice and Procedure: Civil 2d § 2016.2, at 247 (1994). In the same vein, when the county made clear that it intended to use Other Taxpayer information at trial, the tax court should have determined either that the county’s previous objection under the MGDPA precluded such use or that the county’s proposed use waived the MGDPA objections and compelled the production of the relevant Other Taxpayers’ information to EOP.

The majority opinion suggests that the “third-party intervenors had conceded that the county could use the information at trial.” I do not read the Intervenor’s comments as providing that concession and, in any event, I do not agree that such a concession would authorize the county to selectively apply the MGDPA to some nonpublic information but not to other nonpublic information. The question of the proper application of the MGDPA is for the court and the only effect of such a concession by the Other Taxpayers is that it increases the likelihood that a protective order would minimize their harm.

I would reverse and remand the decision of the tax court for a new trial, after the tax court determines either that the county is precluded from using Other Taxpayers’ information at trial or the county is required to produce all relevant Other Taxpayers’ information to EOP before trial.

PAGE, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice Hanson.

. Minnesota Statutes § 273.061, subd. 8a, was apparently enacted in response to the tax court's decision in Homart Development Co. v. County of Hennepin, File No. TC-16946, 1994 WL 130010 (Minn. Tax Ct. Order, April 13, 1994), which held that an assessor in one jurisdiction could not exchange taxpayer information with an assessor from another jurisdiction.

. In my view, this conclusion was not well supported because the actual testimony of EOP's expert was that the information would be very useful to his analysis. R.S. emphasized that he did not have access to the relevant lease information for the 15 buildings that he had identified as comparable for an income approach to value and that, for two of the buildings that had been sold, he did not have adequate information to perform a market-derived capitalization rate analysis, which requires information on the rents of the leases that are in place at the time of sale. When pressed by the tax court as to whether he could form an opinion without the information, he first said he could "take a guesstimate” of the capitalization rates and, when pressed further, he said "I think I could.” He went on to explain that, without the information, he would have to remove the two recently sold buildings from his analysis. Ultimately, R.S. was unable to place any weight on his sales comparison analysis.

. See, e.g., State v. Schwartz, 447 N.W.2d 422, 427 (Minn.1989) (error to admit lab test where underlying data not disclosed); Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn.1990) (excluding evidence that had been requested and court-ordered, but not disclosed in discovery).

. EOP would have better supported that argument by citation to Swanson v. Domning, 251 Minn. 110, 117-18, 86 N.W.2d 716, 722-23 (1957) (stating that the holder of a privilege cannot invoke the privilege as to some information but testify to other privileged information); Doll v. Scandrett, 201 Minn. 316, 320-22, 276 N.W. 281, 283 (1937) (holding that, where the plaintiff was examined by two physicians as a unitary matter, he could not permit one to testify but retain the medical privilege as to the other); United States v. Workman, 138 F.3d 1261, 1263 (8th Cir.1998) ("Workman cannot selectively assert the privilege to block the introduction of information harmful to his case after introducing other [privileged information] for his own benefit.”); United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.1991) ("A defendant may not use the privilege to prejudice his opponent’s case or to disclose some selected communications for self-serving purposes.”); Sedillos v. Board of Education, 313 F.Supp.2d 1091, 1093 (D.Col.2004) (holding that a party cannot claim reliance on advice of counsel and then invoke the privilege to prevent the other party from exploring fully the advice); see also State v. Fontana, 277 Minn. 286, 290, 152 N.W.2d 503, 505-06 (1967) (summarizing the civil and criminal cases determining that evidentiary privileges can be used as a shield but not a sword).

. Of course, the County is not solely representing its own interests because it is responsible also to protect the interests of the Other Taxpayers. Thus, in this context, the appropriate conclusion is either that the County was foreclosed from the affirmative use of the Other Taxpayers' information or the County must produce to EOP all of the relevant Other Taxpayers’ information and seek to minimize the harm to the Other Taxpayers through a protective order.