Southcentral Foundation v. Alaska Native Tribal Health Consortium

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SOUTHCENTRAL FOUNDATION,
Plaintiff,
v.
ALASKA NATIVE TRIBAL HEALTH
CONSORTIUM,
Defendant.
Case No. 3:17-cv-00018-TMB
ORDER ON SOUTHCENTRAL
FOUNDATION’S MOTION FOR
SUMMARY JUDGMENT
(DKT. 316)
This matter comes before the Court on Plaintiff Southcentral Foundation’s (“SCF”) Motion
for Summary Judgment (the “Motion”).1 SCF seeks a court order that provides the following
declaratory relief:
1. 	Defendant Alaska Native Tribal Health Consortium (“ANTHC”) violated
Section 	325 	of 	the 	Department 	of 	the 	Interior 	and 	Related 	Agencies
Appropriation Act of 1998, Pub. L. No. 105-83, 111 Stat. 1543 (“Section 325”)
when it denied SCF all documents and information that SCF, through its
Designated Director, deemed necessary for SCF to exercise effectively its
governance and participation rights in ANTHC. Section 325 entitles SCF to all
documents and information that it, through its Designated Director, deems
necessary to exercise these rights. Any ANTHC policy to the contrary violates
Section 325 and shall be amended. No ANTHC policy may abridge SCF’s right
to all documents and information that SCF, through its Designated Director,
deems necessary to exercise its governance and participation rights in ANTHC.
2. 	SCF’s entitlement to documents and information under Section 325 includes
documents and information and communications subject to the attorney-client
privilege, 	attorney 	work 	product 	doctrine, 	and 	other 	similar 	doctrines
(“Privilege”), pursuant to the common interest doctrine. Any ANTHC policy to
the contrary violates Section 325 and shall be amended. ANTHC shall enter
into a common interest agreement with SCF which shall permit SCF to obtain
documents and information ANTHC deems subject to Privilege. No ANTHC
1 Dkt. 316 (Motion); Dkt. 322 (Reply).
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policy may abridge SCF’s right to documents and information, including
documents and information subject to Privilege.
3. 	For SCF’s governance and participation rights to be meaningful, SCF’s
Designated Director must be able to share documents and information with
SCF’s Board of Directors, Officers, and legal counsel, subject to their
agreement to keep ANTHC documents and information confidential. Any
ANTHC policy to the contrary violates Section 325 and shall be amended. No
ANTHC policy may reduce the universe of [] SCF persons who may view
ANTHC documents and information to a universe that does not include SCF’s
Board, Officers, and legal counsel.2
ANTHC opposes the Motion both on the merits and on procedural grounds.3 Oral argument was
held on June 2, 2022.4 For the following reasons, the Motion at Docket 316 is GRANTED IN
PART and DENIED IN PART.
I. 	BACKGROUND
This case is a dispute over what information SCF is entitled to receive from ANTHC in
order to “exercise effectively the governance and participation rights” created by section 325 of
the Department of the Interior and Related Agencies Appropriation Act of 1998, Pub. L.
No. 105-83, 111 Stat. 1543 (“Section 325”).5
A. 	History of ANTHC
ANTHC was created precisely to avoid impasses, such as the one now before this Court.
In the 1990s, Congress intervened after years of negotiations during which over 200 recognized
tribes, regional tribal entities, and various other organizations failed to arrive at a consensus for
2 Dkt. 316-1 (Proposed Order).
3 Dkt. 317 (Opposition); Dkt. 326-1 (Sur-Response).
4 Dkt. 346 (Minute Entry).
5 Southcentral Found. v. Alaska Native Tribal Health Consortium, 983 F.3d 411, 417, 419 (9th
Cir. 2020); see also Dkt. 2 (Complaint); Dkt. 21 (Amended Answer and Counterclaim).
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how to manage the Alaska Native Medical Center (“ANMC”).6 As a solution to the gridlock,
Senator Ted Stevens proposed the creation of a consortium.7 So Congress enacted Section 325,
and ANTHC was created “to ensure efficient, experienced Alaska Native management and
control” of the new ANMC in Anchorage.8 By creating ANTHC, Senator Stevens sought to
“ensure[] that scarce federal funds will be effectively and efficiently spent on providing high
quality health care to Native Alaskans.”9
ANTHC is “governed by a 15-member Board of Directors” (“Board”).10 Thirteen of the
Board’s directors represent specific regional health entities (“RHEs”),11 and two Directors
represent the “Indian tribes, as defined in 25 U.S.C. 450b(e), and sub-regional tribal organizations
which operate health programs not affiliated with the [RHEs] listed above and Indian tribes not
receiving health services from any tribal, regional or sub-regional health provider.”12 Each of the
directors on the Board (“Designated Directors” or “Directors”) are “leaders in the Tribes and Tribal
healthcare organizations that have designated them to serve on ANTHC’s Board.”13 SCF, as one
6 Dkt. 316-12 at 2 (Senator Stevens Letter).
7 Id.
8 Id. at 2.
9 Id. at 3.
10 Department of the Interior and Related Agencies Appropriation Act of 1998, Pub. L. No. 105-83,
§ 325, 111 Stat. 1543, 1597–98 (1997).
11 Pub. L. No. 105-83, § 325, 111 Stat. 1543, 1597.
12 Id. at 1597–98.
13 Dkt. 319 (Lynch Affidavit); Dkt. 319-1 (Board Member Biographies).
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of the thirteen RHEs and as a Designating Entity,14 selects one of the fifteen Designated
Directors.15
Section 325 outlines the participation and governance of ANTHC in the following key
terms:
(a) Notwithstanding any other provision of law, and except as provided in this
section, [thirteen regional tribal health organizations, including Southcentral
Foundation] 	. . . 	are 	authorized 	to 	form 	a 	consortium 	(hereinafter 	“the
Consortium”) to enter into contracts, compacts, or funding agreements . . . to
provide all statewide health services provided by the [IHS] of the [DHHS] through
the [ANMC] and the Alaska Area Office. Each specified “regional health entity”
shall maintain that status for purposes of participating in the Consortium only so
long as it operates a regional health program for the [IHS] under Public Law 93-
638 ( 25 U.S.C. 450 et seq.), as amended.
(b) The Consortium shall be governed by a 15-member Board of Directors, which
shall be composed of one representative of each regional health entity listed in
subsection (a) above, and two additional persons who shall represent Indian tribes,
as defined in 25 U.S.C. 450b(e), and sub-regional tribal organizations which
operate health programs not affiliated with the regional health entities listed above
and Indian tribes not receiving health services from any tribal, regional or sub-
regional health provider. Each member of the Board of Directors shall be entitled
to cast one vote. Decisions of the Board of Directors shall be made by consensus
14 See Dkt. 340-1 at 3 (ANTHC Bylaws) (“The term ‘Designating Entity’ (or ‘Designating
Entities’) means (i) the Regional Health Organizations described in Section 325(a), and (ii) the
Unaffiliated Alaska Native Tribal Health Committee.”).
15 Pub. L. No. 105-83, § 325, 111 Stat. 1543, 1597 (Section 325 provides that each of the following
tribes may designate a representative to sit on the Board: Aleutian/Pribilof Islands Association,
Inc., Bristol Bay Area Health Corporation, Chugachmiut, Copper River Native Association,
Kodiak Area Native Area Association, Maniilaq Association, Metlakatla Indian Community,
Arctic Slope Native Association, Ltd., Norton Sound Health Corporation, SCF, Southeast Alaska
Regional Health Consortium, Tanana Chiefs Conference, Inc., and Yukon-Kuskokwim Health
Corporation.).
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whenever possible, and by majority vote in the event that no consensus can be
reached.16
Accordingly, by its plain language, Section 325 confers to SCF and the other RHEs governance
and participation rights in ANTHC.17 In addition, the Ninth Circuit has determined that
Section 325 also “necessarily includes an entitlement to information necessary to effectively
exercise those rights.”18
B. 	The Complaints
In January 2017, SCF filed a Complaint seeking declaratory relief.19 According to SCF and
as relevant here,20 ANTHC allegedly violated Section 325 in various ways, including when it took
the following actions:
1. Withheld information from the Designating Entities.21
2. Restricted “Designated Directors [from] broadly shar[ing] information with their
Designating 	Entities 	unless 	specific 	permission 	is 	sought 	from 	and 	provided 	by
ANTHC.”22
3. Created a Disclosure Policy that “restricts the Designating Entities’ ability to access
information and materials that are presented to the ANTHC Board of Directors and its
16 Southcentral Found., 983 F.3d at 414–15 (emphasis in original) (quoting Pub. L. No. 105-83, §
325, 111 Stat. 1543, 1597–98).
17 See id. at 420.
18 Id.
19 Dkt. 2 at 2 (asserting that the Court “is authorized to issue the declaratory relief sought under
the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202”).
20 SCF also alleged that the creation of the Executive Committee violated Section 325. See Dkt. 2
at 15.
21 Id.
22 Id. at 15–16.
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committees in executive session and also restricts the Designated Directors’ ability to
access confidential and privileged ANTHC information.”23
In the Complaint, SCF requested the following specific relief:
1. An order declaring the ANTHC Executive Committee as currently constituted to
be contrary to federal law, void and without effect, to the extent any action of the
Executive Committee is deemed valid before it is ratified by the full 15-member
ANTHC Board, as required by Section 325;
2. An order declaring SCF and the other Designating Entities specified in
Section 325 to be participants in the ANTHC consortium under the federal law
creating it, entitled to all documents and information necessary to participate in the
governance of the consortium, including confidential and/or privileged documents
and information, provided SCF and the other Designating Entities agree to maintain
the confidentiality of such documents and information;
3. An order declaring that SCF’s Designated Directors have an absolute right to
documents 	and 	information 	as 	directors 	of 	ANTHC, 	without 	limitation 	or
reservation, and a right and duty to convey such documents and information to their
Designating Entity, SCF, provided that SCF agrees to maintain the confidentiality
of such documents and information;
4. An order declaring that certain Bylaws of ANTHC conflict with federal law and
must be amended;
5. An order declaring that the ANTHC Board of Directors Code of Conduct as
currently drafted conflicts with federal law and must be amended;
6. An order declaring that the ANTHC Disclosure Policy as currently drafted
conflicts with federal law and must be rescinded;
7. An award for the costs of this suit, including attorneys’ fees; and
8. Any other relief which this Court deems just and proper.24
After filing an initial Answer, ANTHC sought leave from the Court to amend its Answer
and file a counterclaim for declaratory relief.25 ANTHC’s Complaint asks the Court to dismiss
23 Id. at 16.
24 Id. at 17–18.
25 Dkt. 11 (Answer); Dkt. 21(Amended Answer & Counterclaim).
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SCF’s Complaint, and to declare that “ANTHC [D]irectors have an undivided duty of loyalty to
ANTHC” and that “the duty of loyalty requires [D]irectors to identify any potential conflict of
interest they may have and, if they cannot share details regarding the potential conflict, to recuse
themselves from discussions and votes that involve the potential conflict of interest.”26 ANTHC
also asks the Court to declare “that, among other restrictions and consistent with the duty of loyalty,
ANTHC may restrict the flow of information from directors to their [RHEs] when directors face
conflicts of interest, directors have competing duties between ANTHC and the [RHE] that they
represent, or such information may be used for the benefit of [RHEs] in competition with ANTHC”
and that “that directors are not entitled to ANTHC documents and information if those materials
will be used in a way that is inconsistent with directors’ undivided duty of loyalty to ANTHC.”27
Lastly, ANTHC asks the Court to declare that ANTHC’s Articles of Incorporation, Bylaws, Code
of Conduct, and Disclosure Policy comply with federal and state law.28
C. Appeal to the Ninth Circuit
ANTHC also initially challenged whether SCF, as a Designated Entity, had standing to
bring suit under Rule 12(b)(1).29 This Court granted ANTHC’s Motion to Dismiss, finding SCF
failed to allege an injury in fact sufficient to confer Article III standing to challenge alleged
26 Dkt. 21 at 30–31.
27 Id. at 30.
28 Id.
29 Dkt. 33 (Sealed Motion to Dismiss); Dkt. 34 (Motion to Dismiss).
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violations of Section 325.30 SCF appealed.31 The Ninth Circuit reversed this Court’s Order
dismissing the case.
The Ninth Circuit found that “SCF has alleged an injury in fact sufficient to confer Article
III standing to bring its claim.”32 In finding so, the Ninth Circuit began its analysis with “the plain
language of Section 325.”33 According to the plain language, “Section 325 conferred governance
and participation rights to SCF, which necessarily includes an entitlement to information necessary
to effectively exercise those rights.”34 While Section 325 states no express entitlement to
information, the Ninth Circuit concluded “the right to govern would be a hollow promise absent
the information necessary to exercise that right intelligently.”35 The Ninth Circuit also rejected
ANTHC’s argument “that Section 325 grants rights of governance only to Directors.”36 Instead,
the Ninth Circuit concluded “[h]ad Congress meant, for instance, that [RHEs] were merely
‘advisory,’ it could have used this alternate language. Instead, Congress endowed each specified
[RHE] with the right to have a ‘representative’ on the Board that stands in the shoes of the
designating entity by acting on its behalf.”37
30 Dkt. 149 (Order re: Motion to Dismiss); see also Southcentral Found., 983 F.3d at 413.
31 Southcentral Found., 983 F.3d at 413.
32 Id. at 419.
33 Id. at 417.
34 Id. at 420; see also id. at 419 (“Section 325 granted SCF governance and participation rights in
the management of ANTHC to be exercised through SCF's representative on the Board.”).
35 Id. at 419.
36 Id. at 418 (emphasis in original).
37 Id.
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D. ANTHC’s Rule 19 Motion
Once the Ninth Circuit established that SCF had standing to bring this suit, ANTHC moved
for Judgment on the Pleadings for failure to join parties pursuant to Federal Rule of Civil Procedure
(“Rule”) 19.38 ANTHC argued that SCF’s claims should be dismissed “[b]ecause ANTHC’s
[other] Tribal participants are necessary and indispensable parties to the resolution of SCF’s claims
concerning those shared rights and because it is not feasible to join them.”39 The Court denied the
Motion and found the case could proceed.40
E. 	Partial Judgment
At the parties’ request, the Court then entered their Partial Settlement Agreement as a
Stipulated Partial Judgment in this case (“Partial Judgment”).41 The Partial Judgment resolved
some of the issues before this Court as the parties came to agreement on eight general principles.
Included in those principles are:
(1) “SCF, as a Designating Entity, is entitled to all documents and information it needs to
effectively exercise its governance and participation rights”;42
(2) “the version of [ANTHC’s Bylaws, Disclosure of Records and Information Policy
(‘Disclosure Policy’), and Code of Conduct] referenced in this Judgment conform to Section 325,
Paragraphs 1–6 of this Judgment, and the principles enumerated in Paragraphs 1–6”;43 and
38 Dkt. 296 (Rule 19 Motion).
39 Id. at 40.
40 Dkt. 334 (Order re: Rule 19 Motion).
41 See generally Dkt. 313.
42 Dkt. 340 at 3.
43 Id. at 4.
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(3) “ANTHC’s Board of Directors shall retain the discretion to amend ANTHC’s
governance documents . . . but may not amend any governance document in a way inconsistent
with this Judgment, Section 325 or other applicable law, or any order of the Court.”44
Despite negotiating an agreement on some of the issues before the Court,45 SCF expressly
reserved the right to make arguments regarding three “Reserved Issues”:
(1) whether ANTHC can share information subject to the attorney-client privilege,
attorney work product doctrine or other similar protection with SCF under the
common interest doctrine, joint defense doctrine, or other applicable doctrine
without waiving the privilege[;]
(2) the persons at SCF with whom SCF’s Designated Director may share
information; and
(3) the documents and information that SCF’s Designated Director may share with
SCF, as a Designating Entity, and whether the ANTHC Board can amend
ANTHC’s governance documents in a way that reduces the documents and
information that SCF, as a Designating Entity, can receive, consistent with
Section 325 and other applicable law (collectively, the “Reserved Issues”).46
The parties also added the caveat to the Partial Judgment that “[n]otwithstanding this paragraph or
any other statement in this Judgment, SCF expressly reserves the right to make arguments
regarding the Reserved Issues, including that ANTHC’s interpretation and application of its
current governance documents is not in compliance with Section 325 with regard to the Reserved
Issues.”47
44 Id. at 4–5.
45 See Dkt. 350 at 26–27 (Hearing Transcript).
46 Dkt. 313 at 6; Dkt. 340 at 4, n.8.
47 Dkt. 340 at 4.
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F. 	ANTHC’s Policies
At the heart of the present dispute are three of ANTHC’s written policies: the Board’s
Bylaws, Code of Conduct, and Disclosure Policy. The Bylaws provide that absent a conflict of
interest or improper motive, Directors are “entitled at any reasonable time to inspect and copy the
books, records, and documents of ANTHC to the extent reasonably related to the performance of
the Director’s duties as a Director.”48 But the Bylaws do not extend the same “nearly ‘absolute’
right” to documents and information that the Directors enjoy to the Designating Entities.49 The
Board’s Code of Conduct and its Disclosure Policy restrict how Directors may share documents
and information with their respective Designating Entity.50
The ANTHC Code of Conduct provides that each Director owes certain duties to ANTHC,
including a duty of confidentiality.51 Designating Entities are not subject to these same duties.52
The Code of Conduct creates only two exceptions to a Director’s Duty of Confidentiality: the first
for 	sharing 	information 	with 	a 	Director’s 	Designating 	Entity, 	and 	a 	second 	for 	certain
compensation information.53 The exception for Designating Entities provides:
48 Dkt. 340-1 at 8.
49 Id.
50 Id. at 3.
51 See generally Dkt. 340-2 (ANTHC Code of Conduct) (The Code of Conduct provides each
Director has the following duties to ANTHC: Duty of Loyalty, Good Faith, and Fair Dealing; Duty
of Confidentiality; Duty of Care; Duty to be Informed; Duty of Effective Representation; Duty to
Act as a Deliberative Body; Duty of Corporate Oversight; Duty of Respect.); see also Dkt. 350
at 40 (“The designated directors are subject to all of the duties and obligations set forth in
ANTHC’s governance documents.”).
52 Dkt. 350 at 41.
53 Dkt. 340-2 at 5.
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Designating Entities are entitled to all documents and information they need to
effectively exercise their governance and participation rights. Directors may share
such documents and information with their 	Designating Entities under the
procedures and limitations set out in ANTHC’s Bylaws, [the] Code of Conduct,
and the [Disclosure Policy], which are drafted to ensure the Designating Entities’
governance rights.54
Meanwhile, the Disclosure Policy sets forth limitations on the procedures for sharing
documents and information with Designating Entities. As a general rule, the Disclosure Policy
provides that “Directors may share with Permitted Recipients of their Designating Entities all
documents and information they receive as a Director, subject to the limitations and protections
set out in section 5.4.”55 Section 5.4 designates certain categories of information and documents
as “Highly Sensitive Confidential Information.”56 Those categories include information and
documents subject to attorney-client privilege, attorney work product, or similar legal protections;
medical and personal financial information about an individual and personnel information
regarding ANTHC employees; sensitive compliance, accreditation, and clinical risk information
and other sensitive information about other tribal health entities; sensitive epidemiology and
population health information about populations served by other regions; information subject to
specific contractual or legal restrictions, including the Privacy Act, HIPAA, and 42 C.F.R. Part 2
and peer review or medical quality assurance information; and information about what individual
Directors said, supported, or opposed in executive session.57 For the purposes of this lawsuit, the
54 Id.
55 Dkt. 340-3 at 2.
56 Id.at 3.
57 Id. at 3–4.
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parties are concerned with documents and information subject to attorney-client privilege, attorney
work product, or similar legal protections (“Legal Protections”) only.
Pursuant to the Disclosure Policy, there are two processes by which a Director may seek
permission to share information and documents subject to Legal Protections with its Designating
Entity. First, the Disclosure Policy provides that information and documents subject to Legal
Protections “may only be shared with a Designating Entity if ANTHC and the Designating Entity
have an agreement (or agreements) that would preserve the legal protection.”58 The Disclosure
Policy provides that “[w]hen a new matter that is subject to a legal protection arises, counsel for
ANTHC and the Designating Entity will confer and present amendments to the applicable model
agreement, if needed, so that the matter may be shared with the Designating Entity if it is at all
possible to do so without waiving the legal protection.”59 But where it is not possible to share
attorney-client privileged information without waiving privilege, a majority of the ANTHC Board
of Directors may nevertheless vote to share the information with the Designating Entity and waive
privilege.60
SCF has tried to obtain legally protected documents from ANTHC only through entry of a
common-interest agreement.61 SCF’s Designated Director “has repeatedly asked ANTHC to enter
a common interest agreement so that [she] can share information [she] obtained from ANTHC’s
counsel” that is otherwise privileged.62 SCF’s Director asserts that she “need[s] to be able to share
58 Id. at 3.
59 Id. (emphasis added).
60 Id.
61 Dkt. 319 at 3; See Dkt. 350 at 30, 45–50.
62 Dkt. 316-2 at 2.
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all documents and information about ANTHC’s governance with SCF’s Board, Officers and legal
counsel in order to obtain guidance and input from them.”63 ANTHC has refused to enter a
common-interest agreement with SCF—either a general agreement or one that is tailored for the
investigative reports of ANTHC’s former Chair/President.64 “SCF has not asked the ANTHC
Board to authorize the disclosure of the investigative reports at issue in its Motion,” or in other
words, SCF has not asked the ANTHC Board to vote on whether to waive privilege related to the
investigative reports of ANTHC’s prior Chair/President.65
G. Motion for Summary Judgment
Now, through this Motion, SCF argues it is entitled the following three forms of declaratory
relief:
(1) SCF’s Designated Director rather than ANTHC should determine what documents and
information are necessary for SCF to exercise its governance and participation rights on the
Board;66
(2) SCF is entitled to documents and information and communications subject to Legal
Protections, pursuant to the common-interest doctrine,67 and
63 Id.
64 See Dkt. 317 at 36. In February 2021, ANTHC’s Chair/President “abruptly resigned.”
Dkt. 316-14 at 2; see also Dkt. 316-2 at 2 (Kyle Affidavit). Shortly after, allegations surfaced that
an employee had accused him of “a pattern of abusive behavior, harassment and coerced sexual
encounters.” Dkt. 316-14 at 2; see also Dkt. 316-2 at 2. In response to the allegations, ANTHC
“conduct[ed] an ‘independent outside’ investigation.” Dkt. 316-14 at 4; see also Dkt. 316-2 at 2.
65 Dkt. 319 at 3; see also Dkt. 350 at 30, 45–50.
66 See Dkt. 316 at 22–25.
67 See id. at 25–33.
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(3) SCF’s Designated Director must be able to share documents and information with
SCF’s Board of Directors, officers, and legal counsel.68
ANTHC opposes the Motion and argues “[t]he rulings SCF seeks also should be denied for
multiple jurisdictional and procedural reasons, and because they fail on the merits.”69 ANTHC
first reasserts that this lawsuit should be dismissed pursuant to Rule 19 because the lawsuit
implicates the interests of absent indispensable parties.70 ANTHC next raises a series of procedural
defenses it believes preclude summary judgment, including that (1) “none of SCF’s present
requests for declaratory relief are included in its complaint” and therefore its requests are not
properly before the Court; (2) much of the relief SCF seeks is already addressed by the Partial
Judgment in this case and is therefore “foreclosed by the Agreement and judicial estoppel”; and
(3) the Court does not have jurisdiction to “strip ANTHC’s Board of authority to lawfully change
existing policies” by issuing advisory opinions.71 Finally, ANTHC argues that the relief SCF seeks
is itself contrary to Section 325 and that the common-interest doctrine will not shield ANTHC’s
attorney-client privileged information should it be shared with SCF.72
Despite ANTHC’s objections, the Court finds that SCF is, in fact, entitled to relief and
therefore GRANTS in part and DENIES in part the Motion.
68 See id. at 33–25.
69 Dkt. 317 at 11.
70 Id. at 19.
71 Dkt. 317 at 21–35.
72 Id. at 36.
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II. 	LEGAL STANDARD
Summary judgment is proper when a “movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”73 “The evidence is
viewed ‘in the light most favorable to the non-moving party.’”74
Declaratory relief is available “[i]n a case of actual controversy” where “upon the filing of
an appropriate pleading,” a court “may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or could be sought.”75 When
declaratory relief is sought, the party seeking such relief must prove that there is a case of actual
controversy before the court and that all of the elements of the claim are satisfied as a matter of
law.76 “If the suit passes constitutional and statutory muster, the district court must also be satisfied
that entertaining the action is appropriate.”77 “The exercise of jurisdiction under the Declaratory
Judgment Act is at the discretion of the district court.”78
73 Fed. R. Civ. P. 56(a).
74 Frlekin v. Apple, Inc., 979 F.3d 639, 643 (9th Cir. 2020) (quoting Albino v. Baca, 747 F.3d 1162,
1168 (9th Cir. 2014) (en banc)).
75 28 U.S.C. § 2201(a).
76 Watts v. United States, 703 F.2d 346, 347 (9th Cir. 1983) (“To obtain a summary judgment in
favor of a claim, ‘the moving party must offer evidence sufficient to support a finding upon every
element of his [or her] claim . . . , except those elements admitted . . .’ by the adversary.”)
(alterations in original) (quoting United States v. Dibble, 429 F.2d 598, 601 (9th Cir. 1970));
Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 604 (D. Nev. 2011) (explaining that a party seeking
declaratory relief is required “to establish ‘a case of actual controversy’ within the court’s
jurisdiction”) (citation omitted)).
77 Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1223 (9th Cir. 1998) (Public Serv. Comm’n of
Utah v. Wycoff Co., 344 U.S. 237, 250 (1952)).
78 Pinnacle Architecture, Inc. v. Hiscox, Inc., 543 F. Supp. 3d 997, 1003 (D. Or. 2021) (citing
Gov’t Emp. Ins. Co. v. Dizol, 133 F.3d 1220, 1223 (9th Cir. 1998)).
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III. 	DISCUSSION
There is no dispute between the parties that at the time SCF filed suit “[s]ome provisions
in ANTHC’s Bylaws, Disclosure [] Policy, and Code of Conduct . . . were contrary to
Section 325.”79 The ANTHC Board has since revised its policies,80 and the parties entered a Partial
Settlement Agreement.81 In the Partial Settlement Agreement, the parties agreed that the latest
version of ANTHC’s policies “conform with Section 325,” but even so, SCF “reserve[d] the right
to make arguments regarding the Reserved Issues, including that ANTHC’s interpretation and
application of its current governance documents is not in compliance with Section 325 with regard
to the Reserved Issues.”82
The parties now dispute whether SCF is entitled to additional declaratory relief. ANTHC
does not present material issues of fact that would preclude summary judgment but instead argues
that SCF is not entitled to judgment as a matter of law. The Court disagrees and finds that SCF has
demonstrated that it is entitled to some of the relief it seeks and that ANTHC has failed to show
that summary judgment would be improper for procedural reasons.
A. 	ANTHC Failed to Show that SCF is not entitled to Summary Judgment
1. 	Rule 19 Motion Already Denied
First, ANTHC reasserts that this lawsuit should have been dismissed pursuant to Rule 19
because the interests of absent sovereign ANTHC participants will be affected by the relief sought
by SCF, and therefore this case must be dismissed and SCF should not receive the relief it
79 Dkt. 340 at 4.
80 Dkt. 317 at 12; see Dkt. 319.
81 See Dkt. 340.
82 Id. at 4.
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requests.83 The Court, however, has already rejected this argument at Docket 334, and ANTHC
has neither raised additional argument here nor moved for reconsideration of the Court’s earlier
order.
2. 	ANTHC Received Sufficient Notice of the Claims Against It
Second, ANTHC argues that “[b]ecause none of SCF’s present requests for declaratory
relief are included in its complaint, they are not properly before the Court” and SCF is not entitled
to relief.84 “[Rule] 8(a)(2) requires that the allegations in the complaint ‘give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon which it rests.’”85 According to
ANTHC, the Complaint does not provide notice that SCF would now seek the following specific
forms of declaratory relief, including the factual bases for such relief: (1) that SCF’s Designated
Director rather than ANTHC should determine what documents SCF can access; (2) that ANTHC
cannot amend its current information sharing policies in the future; and (3) that the common-
interest doctrine would preserve ANTHC’s privilege and ANTHC should be ordered to enter a
common-interest agreement with SCF.86 SCF responds that the only facts that have changed since
it filed this lawsuit are that ANTHC revised its policies in response to the Ninth Circuit opinion.87
83 Dkt. 317 at 19.
84 Id. at 21.
85 Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (quoting Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 512 (2002)).
86 Dkt. 317 at 22–23.
87 Dkt. 322 at 19–20. While SCF has alleged that there are additional documents and information
that ANTHC has refused to provide since SCF filed the Complaint in this case, SCF does not seek
an order from this Court stating that ANTHC is required to provide specific recent documents and
information. See Dkt. 316-1.
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According to SCF, ANTHC cannot “moot this case” by amending its policies and points to the
fact that ANTHC both has agreed to the Reserved Issues in the parties’ Partial Settlement
Agreement and has relied on its amended policies to defend itself now.88 But SCF also argues that
the Complaint sufficiently pleads the remaining legal issues for the Court,89 so ANTHC will not
be prejudiced if the Court decides the remaining issues.90
The Court finds that the Complaint affords ANTHC fair notice of the factual bases of the
allegations against it and the relief SCF now seeks.91 Unlike Pickern v. Pier 1 Imports (U.S.),
Inc.,92 where the complaint provided a list of exemplar barriers but failed to identify the actual
barrier in question, SCF’s Complaint makes specific factual allegations and requests for relief
consistent with the relief it presently seeks.93 In addition, the parties recently mutually agreed on
the Reserved Issues that SCF might raise in summary judgment.94 With the exception of who
88 Dkt. 322 at 20.
89 Id. at 19.
90 Id. at 21.
91 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)) (“[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.”).
92 457 F.3d 963, 968 (9th Cir. 2006).
93 See Dkt. 2 at 9–14 (ANTHC’s policies codified “ANTHC’s position that the Designating Entities
are not legally entitled to information and materials that are presented to the ANTHC Board of
Directors and its committees in executive session”).
94 See Dkt. 340 at 4, n.8; see also Dkt. 313 at 2, 6.
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determines whether information or documents are necessary to exercise SCF’s governance and
participation rights, the relief sought falls squarely within the Reserved Issues.95
ANTHC’s reliance on the notion that “summary judgment is not a procedural second
chance to flesh out inadequate pleadings” is not applicable here. Unlike the cases ANTHC cites,
SCF is not trying to “flesh out inadequate pleadings.” Rather, the parties have narrowed the scope
of the relief available in response to policy changes implemented by ANTHC and after the
resolution of several claims by the Partial Settlement Agreement. By entering that agreement, the
parties expressly reserved the issues SCF now raises for resolution through summary judgment.96
This Partial Settlement Agreement clearly shows that ANTHC was on notice of the remaining
claims.
Specifically, the Court first finds that the Complaint provides notice that SFC may seek
relief that its Director, rather than ANTHC, should decide what information is necessary to
effectively exercise its Section 325 governance rights. Even though the specific requested relief
was amended following the Ninth Circuit’s opinion and for purposes of summary judgment, the
requested relief is consistent with the factual allegations and relief sought in the Complaint. From
95 See Dkt. 313 at 6 (The Reserved Issues identified by the parties, which ANTHC agreed could
be “raise[d] and oppose[d] on any grounds,” include: (1) “whether ANTHC can share information
. . . with SCF under the common interest doctrine,” (2) “the persons at SCF with whom SCF’s
Designated Director may share information,” and (3) “the documents and information that SCF’s
Designated Director may share with SCF, as a Designating Entity, and whether the ANTHC Board
can amend ANTHC’s governance documents in a way that reduces the documents and information
that SCF, as a Designating Entity, can receive, consistent with Section 325 and other applicable
law.”).
96 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (quoting Wasco Prods.,
Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006)). Nothing in the Partial Settlement
Agreement leads the Court to conclude that ANTHC disputes whether the Reserved Issues are
properly before the Court.
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the beginning, SCF has taken issue with the fact that its Designated Directors were restricted on
what information they can share with SCF.97 SCF has asserted “the [RHEs], Indian tribes, and
tribal organizations represented on the [Board] . . . are entitled to all information provided to the
ANTHC Directors who are designated by these entities to represent them on the ANTHC Board.”98
In addition, the Complaint asserts that the requirement for Designated Directors to obtain “specific
permission” to share certain information violates Section 325 and that the Code of Conduct should
be clarified to state “the Designated Directors have the legal right to access confidential
information and documents relating to ANTHC’s business and operations and that they do not
breach any fiduciary duties to ANTHC by sharing such ANTHC information and documents with
the governing bodies of the Designating Entities they represent.”99 While the specific language of
the relief sought may have been revised over the course of litigating this case, the Court finds that
ANTHC had notice that SCF sought to shift who determines what information SCF can access.
Second, the Court finds that while the Complaint does not request specific relief to prevent
ANTHC from amending its current policies, such relief is an anticipated reaction to the revisions
ANTHC made to its policies during the course of litigating this case and is consistent with the
agreed upon Reserved Issues. The present relief sought is not limitless but instead SCF seeks to
prevent ANTHC from implementing policies that would “abridge” or “reduce” documents or
information available to it. While this relief, when considered in the context of this case, appears
consistent with the remedy SCF seeks in the Complaint, to the extent SCF seeks relief to “prevent[]
97 Dkt. 2 at 9.
98 Id. at 15.
99 Id. at 15–16; see also id. at 12–13.
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the ANTHC Board from amending the current information sharing policies”100 whatsoever, the
Court will not entertain such a request. The Court cannot anticipate changes to laws that may result
in a reduction of what information can be shared. Furthermore, ANTHC has already agreed that
“ANTHC’s Board of Directors . . . “may not amend any governance document in a way
inconsistent with this Judgment, Section 325 or other applicable law, or any order of the Court.”101
Third, the Court finds that the Complaint affords ANTHC sufficient notice that SCF may
argue that the common-interest doctrine would preserve ANTHC’s attorney-client privilege.
ANTHC asserts that the “complaint alleges no facts to support applying the common-interest
doctrine, 	no 	claim 	regarding 	the 	legal 	consequences 	of 	disclosing 	ANTHC’s 	privileged
information, and no prayer for any relief relating to the common-interest doctrine, much less an
injunction to enter into a common-interest agreement.”102 Yet, the Complaint expressly seeks “[a]n
order declaring SCF and the other Designating Entities specified in Section 325 to be participants
in the ANTHC consortium under the federal law creating it, entitled to all documents and
information necessary to participate in the governance of the consortium, including confidential
and/or privileged documents and information.”103 While SCF did not invoke the common-interest
doctrine in the Complaint, it in no uncertain terms stated under its interpretation of Section 325, it
is entitled to confidential and privileged documents. Further, ANTHC agreed in the Partial
Settlement Agreement that one of the three Reserved Issues is “whether ANTHC can share
information subject to the attorney-client privilege, attorney work product doctrine or other similar
100 Dkt. 317 at 23.
101 Dkt. 340 at 4–5.
102 Dkt. 317 at 23.
103 Dkt. 2 at 17.
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protection with SCF under the common interest doctrine, joint defense doctrine, or other applicable
doctrine without waiving the privilege.”104 It is clear to the Court that ANTHC is on notice that
that SCF is seeking privileged documents. Integral to any request for privileged documents is
whether such disclosure would result in the waiver of privilege. Thus, it is foreseeable, and even
likely, that issues related to the application of the common-interest doctrine may arise.
For these reasons, the Court finds that ANTHC was “on notice of the evidence it need[ed]
to adduce in order to defend against [SCF’s] allegations.”105 The Court, therefore, concludes the
relief SCF now seeks was sufficiently pled to meet the liberal Rule 8 pleading requirements.
3. 	Neither Contract Law nor Judicial Estoppel Preclude the Court from Reaching
the Merits
ANTHC next argues SCF is not entitled to an order stating that its Designated Director
may determine which documents and information SCF is permitted to view because “SCF [has]
renege[d] on its settlement agreement concession that ANTHC’s current policies conform to
Section 325.”106 According to ANTHC, because such relief is foreclosed by the Agreement, “SCF
is [also] precluded from prevailing [] now by contract law and judicial estoppel.”107 Further,
ANTHC argues that such relief is contrary to Section 325. SCF responds that it did not violate the
Partial Settlement Agreement because “SCF was not agreeing that all of ANTHC’s revised policies
complied with Section 325.”108 Specifically, SCF claims that it “expressly reserved the argument
104 Dkt. 340 at 4, n.8.
105 Updike v. Multnomah Cnty., 870 F.3d 939, 953 (9th Cir. 2017) (quoting Coleman v. Quaker
Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000)).
106 Dkt. 317 at 23–24.
107 Id. at 24.
108 Dkt. 322 at 12 (“Notwithstanding this paragraph or any other statement in this Agreement, SCF
expressly reserves the right to make arguments regarding the Reserved Issues, including that
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that even as to those policies that conform with Section 325 on their face, ANTHC’s application
of those policies violates Section 325.”109 The Court does not agree with ANTHC that SCF has
reneged on its agreement.
The Court finds that there is an inherent tension in the parties’ settlement agreement that
the Court adopted as Partial Judgment in this case. The parties both agreed that the current versions
of ANTHC’s Bylaws, Disclosure of Records and Information Policy, and Code of Conduct both
conformed with Section 325 while reserving the right to make arguments that policies underlying
the Reserved Issues were not in compliance with Section 325.110 To resolve the tension, the Court
interprets the relief SCF seeks, including that SCF’s Designated Director should determine what
documents and information it can share with SCF, as within the scope of the Reserved Issues.
Unlike Alleva v. Municipality of Anchorage,111 the Agreement does not bar the relief SCF seeks
because it was not covered in its entirety by the Agreement.112 Thus, SCF has reserved the right to
challenge ANTHC’s policies as they relate to the application of the attorney-client privilege,
ANTHC’s interpretation and application of its current governance documents is not in compliance
with Section 325 with regard to the Reserved Issues in the preamble.”).
109 Dkt. 325 at 12.
110 See Dkt. 340 at 4 (“Some provisions in ANTHC’s Bylaws, Disclosure of Records and
Information Policy, and Code of Conduct as they existed at the time SCF filed the Lawsuit were
contrary to Section 325, but the version of those documents referenced in this Judgment conform
to Section 325, Paragraphs 1–6 of this Judgment, and the principles enumerated in Paragraphs 1–
6. Notwithstanding this paragraph or any other statement in this Judgment, SCF expressly reserves
the right to make arguments regarding the Reserved Issues, including that ANTHC’s interpretation
and application of its current governance documents is not in compliance with Section 325 with
regard to the Reserved Issues.”).
111 467 P.3d 1083 (Alaska 2020).
112 Id. at 1089.
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including the common-interest doctrine, who at SCF can receive information regarding ANTHC,
and the scope of the documents and information Designated Directors may share. For this reason,
the Court determines that SCF has neither breached its Agreement nor should be judicially
estopped from challenging ANTHC’s policies as it has.
Further, the Court finds that SCF’s challenge to the ANTHC policies does not inherently
violate Section 325. While Section 325 sets forth a framework for how Board decisions should be
made, the statute also grants “governance and participation rights to SCF, which necessarily
includes an entitlement to information necessary to effectively exercise those rights.”113 Nothing
in Section 325 or the Ninth Circuit’s opinion would lead the Court to conclude that the Board can
limit or curtail a Designating Entity’s Section 325 rights by consensus or majority vote, even where
the policies appear reasonable and consistent with data governance best practices.
4. 	The Court does not Issue an Advisory Opinion, But Find there is a Live Case
or Controversy
ANTHC next argues that SCF is not entitled to declaratory relief that would “limit
ANTHC’s Board’s authority to change its information sharing policies in the future” on the basis
that such relief would amount to an impermissible advisory opinion.114 ANTHC argues that any
restriction related to ANTHC’s future policies would be “hypothetical, speculative, and not ripe
for resolution,” especially in light of the fact that the parties previously agreed that ANTHC’s
existing policies comport with Section 325 and ANTHC is not currently considering any changes
to “either the scope of information that may be shared with SCF or the scope of SCF’s Permitted
113 Southcentral Found., 983 F.3d at 420.
114 Dkt. 317 at 31.
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Recipients.”115 ANTHC specifically argues that a court order would amount to an advisory opinion
if the Board is precluded from making lawful changes to its information sharing policies that might
either (1) “in some way limit the information available to SCF” or (2) “limit[] the individuals at
SCF . . . who are entitled to see ANTHC’s confidential information.”116 ANTHC also argues that
such relief would be “in the nature of a mandatory injunction,” which would “prospectively
prohibit ANTHC’s Board from ever making lawful changes to its information governance policies
that SCF believes might be less favorable to it than ANTHC’s current policies.”117
SCF objects to this argument and accuses ANTHC of “repackage[ing] the mootness
argument that the Ninth Circuit rejected.”118 According to SCF, even though ANTHC represents
that its policies “currently allow for most of the relief that SCF seeks and [ANTHC] has no plans
to change them,” there remains a case or controversy. SCF asserts that ANTHC’s revised policies
do not meet the requirements of voluntary cessation and that because ANTHC is unwilling to
stipulate to the complete relief which it seeks, the case is not moot.119 For this reason, SCF seeks
an order from this court that ANTHC cannot “reduce the amount of information SCF could obtain
or reduce the universe of Permitted Recipients” in the future.120
To the extent that SCF’s Motion seeks to outright prohibit ANTHC from revising its
policies in any manner that would effectively reduce the amount of information SCF can obtain or
115 Id. at 32.
116 Id. at 30–31.
117 Id. at 35 (emphasis in original).
118 Dkt. 322 at 14.
119 Id.
120 Id. at 17.
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restrict who is considered Permitted Recipients under ANTHC’s policies, the Court declines to do
so for four reasons. First, there are no specific proposed changes before the Court at this time, so
it would be speculative for the Court to consider granting such relief. Second and related to the
first point, it is conceivable that future revisions to ANTHC’s policies may be necessary as a result
of changes to the law but may also have the effect of reducing the amount of information that is
available to SCF. The Court also finds that it is conceivable that the ANTHC Board may still be
able to revise its policies in a manner that does not impair SCF’s governance rights. Finally, the
Court believes that the relief SCF seeks has already been granted in the Partial Judgment. The
Partial Judgment states that “ANTHC’s Board of Directors . . . may not amend any governance
document in a way inconsistent with this Judgment, Section 325 or other applicable law, or any
order of the Court.”121 Any specific future changes to the ANTHC Board’s policies and procedures
that fail to comport with Section 325 can be challenged in a later proceeding. For these reasons,
the Court does not intend to provide declaratory relief that would restrict the ANTHC Board’s
authority to revise its policies in the future, provided such changes are consistent with Section 325.
5. 	Common-Interest Doctrine
Finally, ANTHC argues that SCF is not entitled to declaratory relief related to the common-
interest doctrine. SCF seeks an order stating “SCF’s entitlement to documents and information
under Section 325 includes documents and information and communications subject to the
attorney-client privilege, attorney work product doctrine, and other similar doctrines, [] pursuant
to the common interest doctrine.”122 ANTHC points out that the Court cannot find categorically
121 Dkt. 340 at 4.
122 Dkt. 316-1 at 2. For purposes of the Court’s analysis, the Court does not understand SCF’s
Motion to seek declaratory relief pertaining to any particular document or information, instead
SCF has sought general declaratory relief. To the extent that the parties refer to investigative
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that the common-interest doctrine applies to every disclosure of privileged information between
ANTHC and the RHEs because privilege is analyzed on a case-by-case basis.123 ANTHC also
specifically argues that the common-interest doctrine would not apply under state or federal law
to the investigative reports that SFC now seeks.124 Finally, ANTHC asserts that the parties cannot
prevent the waiver of privilege by asking the Court to order the parties to sign a common-interest
agreement.125
As a general matter, the Court agrees with ANTHC that it cannot categorically find that
any ANTHC’s attorney-client privileged information disclosed to SCF is protected by the
common-interest doctrine. But the Court does see an argument that certain attorney-client
privileged information related to the governance of ANTHC may be protected pursuant to the
common-interest doctrine. Even so, as explained below, the Court finds that Section 325 entitles
SCF, as an RHE, to all information it needs to effectively exercise its governance and participation
rights, even if that information is protected by the attorney-client privilege and even if the
common-interest doctrine would not apply to prevent waiver.
B. 	Relief
SCF has asserted that Section 325 provides that it and the other Designated Entities are
entitled to documents and information regardless of whether attorney-client privilege can be
reports, the Court understands the investigative reports to be offered as an example of the nature
of documents and information that the parties dispute whether they can be disclosed without
waiving attorney-client privilege pursuant to the common-interest doctrine.
123 Dkt. 317 at 46.F
124 Id. at 39–45.
125 Dkt. 350 at 20.
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preserved.126 In light of the plain language of Section 325 and the Ninth Circuit’s opinion in this
case, the Court agrees with SCF.
Without question, Section 325 expressly confers governance and participation rights in the
management of ANTHC to the RHEs, including SCF.127 The Ninth Circuit rejected the notion that
RHEs are merely intended to be advisory under Section 325 but instead concluded that “Congress
endowed each specified [RHE] with the right to have a ‘representative’ on the Board that stands
in the shoes of the designating entity by acting on its behalf.”128 The Ninth Circuit found that those
governance and participation rights “necessarily include[] an entitlement to information necessary
to effectively exercise those rights.”129 An entitlement is “[a]n absolute right to a [] benefit, . . .
granted immediately upon meeting a legal requirement.”130 Here, the Court understands that by
virtue of being a designated RHE on ANTHC’s Board, SCF has an absolute right to any
information that is necessary for SCF to effectively exercise its governance and participation
rights. Therefore, the Court concludes that where information is necessary to effectively exercise
an RHE’s governance rights, ANTHC may not withhold attorney-client privileged information
from RHEs. If information could be withheld from RHEs on the mere basis that it is privileged,
126 See Dkt. 2; see also Dkt. 350 at 48–49; but see Dkt. 322 at 24, n.66 (“As previously discussed,
the Ninth Circuit’s discussion of the relationship between a Designating Entity and its Designated
Director renders a common interest agreement unnecessary under the circumstances. [] However,
on this motion, SCF seeks only to hold ANTHC to the commitment enshrined in its governance
documents to share information under a common interest agreement.”).
127 Southcentral Found., 983 F.3d at 420; see also Dkt. 340 at 1.
128 Id. at 418 (emphasis added).
129 Id. at 420.
130 Entitlement, Black’s Law Dictionary (11th ed. 2019).
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“the right to govern would be a hollow promise absent the information necessary to exercise that
right intelligently.”131
Even so, SCF is clear that it asks the Court to declare not only that it is entitled to
information necessary to effectively exercise its governance and participation rights but also that
it is entitled to this information “pursuant to the common interest doctrine”132 and that “ANTHC
shall enter into a common interest agreement with SCF which shall permit SCF to obtain
documents and information ANTHC deems subject to Privilege.”133 The Court cannot provide
such sweeping relief.
To begin, the Court disagrees with SCF that ANTHC is required by its current written
policies to enter into a common-interest agreement. ANTHC’s Disclosure Policy provides that
“unless otherwise permitted under this section (5.4.1) or by a majority vote of the ANTHC Board
of Directors,” a Director may not share attorney-client privileged information with its Designating
Entity. The Disclosure Policy permits disclosure where the parties can enter a valid common-
interest agreement. The policy further provides that ANTHC assesses each “new matter that is
subject to a legal protection” when the issue arises. The Court therefore interprets the Disclosure
Policy to read that ANTHC will enter a common-interest agreement with a Designating Entity
only “if it is at all possible to do so without waiving the legal protection.”134 This is consistent with
131 Southcentral Found., 983 F.3d at 419.
132 Dkt. 316-1.
133 Id.
134 Dkt. 340-3 at 3 (“When a new matter that is subject to a legal protection arises, counsel for
ANTHC and the Designating Entity will confer and present amendments to the applicable model
agreement, if needed, so that the matter may be shared with the Designating Entity if it is at all
possible to do so without waiving the legal protection.”).
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the general rule that parties cannot contract around the waiver of privilege. Here ANTHC asserts
that it is not possible to enter a general or matter-specific common-interest agreement with SCF
that would ensure in the protection of the investigative reports SCF now seeks.
The Court cannot find the common-interest doctrine categorically applies to all attorney-
client privileged information exchanged between ANTHC and SCF. “[A]pplication of the
common-interest doctrine requires a case-by-case determination.”135 At the same time, the Court
cannot find as a general matter that information shared between the parties always falls outside the
scope of the common-interest doctrine. As ANTHC concedes, at times ANTHC and SCF share a
common-interest such that the common-interest doctrine would apply so that disclosure of
privileged information would not result in a waiver of privilege. This is evidenced by the fact the
parties entered a separate joint-defense agreement related to the management of ANMC;
ANTHC’s Disclosure Policy states that it has created a model common-interest agreement that it
can use to memorialize instances where it believes the common-interest doctrine would preserve
attorney-client privilege; and ANTHC has repeatedly represented that it would enter a common-
interest agreement with SCF if it believed merely entering the agreement would preserve the
privilege.
Likewise, the Court cannot simply require the parties to enter a common-interest agreement
that would have the effect of preserving attorney-client privileged documents and information, as
SCF asks. One apparent misconception by SCF is that by entering a written common-interest
agreement, the exchange of any attorney-client information will remain privileged. But the law
does not permit parties to contract or negotiate the reach of attorney-client privilege, including the
135 Dkt. 317 at 36; see Upjohn Co. v. United States, 449 U.S. 383, 396–97 (1981).
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application of the common-interest doctrine.136 Accordingly, the existence of an agreement alone
does not preserve the privilege, and the Court cannot ensure such an agreement would be
enforceable.
SCF is not without a remedy. When SCF’s Designated Director believes particular
privileged information is necessary for SCF to effectively exercise its governance and participation
rights, they may seek permission to disclose the information pursuant to ANTHC’s policies that
the parties agree were passed consistent with Section 325. Where disputes arise regarding the
applicability of the common-interest doctrine or where the Board denies a request to waive
privilege, SCF may challenge the decision in the courts. Here, SCF does not seek specific relief
for a specific denial for purposes of this cause of action. Likewise, where a dispute arises as to
whether certain information is necessary to exercise SCF’s Section 325 rights, SCF can challenge
the Board’s decision in the courts. The Court will not delegate exclusive power to SCF’s
Designated Director to determine with finality whether information is necessary as defined by
Section 325 and the Ninth Circuit. Such approach would contradict the intent and purpose of
Section 325, which created a Consortium that Congress intended to operate by consensus, resorting
only the majority rule where consensus was not possible.
IV. 	CONCLUSION
For the foregoing reasons, Southcentral Foundation’s Motion for Summary Judgment at
Docket 316 is GRANTED in part and DENIED in part as follows:
1. 	Defendant Alaska Native Tribal Health Consortium violated Section 325 of the Department
of the Interior and Related Agencies Appropriation Act of 1998, Pub. L. No. 105-83, 111
136 See OXY Res. California LLC v. Superior Ct., 115 Cal. App. 4th 874, 892 (2004), as modified
(Mar. 4, 2004) (explaining that “[a] common interest agreement, such as the Joint Defense
Agreement, strengthens the case against waiver, but such an agreement is neither a requirement
nor a guarantee”).
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Stat. 1543 when it denied SCF documents and information that were necessary for SCF to
effectively exercise its governance and participation rights in ANTHC. Section 325 entitles
SCF to all documents and information that are necessary to exercise these rights. Any
ANTHC policy to the contrary violates Section 325 and shall be amended.
2. 	SCF’s entitlement to information under Section 325 includes documents, information, and
communications subject to the attorney-client privilege, attorney work product doctrine,
and other similar doctrines.
3. 	For SCF’s governance and participation rights to be meaningful, SCF’s Designated
Director must be able to share documents and information necessary to exercise these rights
with SCF. Depending on the circumstance, this may include SCF’s Board of Directors,
Officers, and legal counsel, subject to their agreement to keep ANTHC documents and
information confidential.
In light of the Court’s entry of Partial Judgment for Southcentral Foundation at Docket 340
and the resolution of the Reserved Issues by this Order, the case is dismissed with prejudice.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 20th day of July, 2022.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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