*1 Introduction

Conclusion

Exhibit 1—Nexstar

Exhibit 2—Raycom

Exhibit 3—Scripps

Exhibit 4—Sinclair

Exhibit 5—TEGNA

Exhibit 6—Fox Affiliates Association

Before the Special Master are Plaintiffs’ Motions to Compel Defendants Nexstar Media Group, Inc., the E.W. Scripps Company, Raycom Media, Inc., Sinclair Broadcast Group, Inc., and TEGNA, Inc., to produce what the parties refer to as Defendants’ antitrust compliance documents.

The documents Plaintiffs seek here are policies, guidelines, training materials, and communications that concern compliance with the federal or state antitrust or competition laws. The materials they seek are ones routinely provided to sales directors, general managers, account executives and other employees to help them comply with antitrust laws. Plaintiffs specify they seek reference or instructional materials that do not contain client confidences or legal advice and are thus not privileged. Defendants do not dispute that antitrust compliance is the subject of the documents at issue; rather, they argue that the antitrust compliance documents they withheld convey legal advice protected by the attorney-client privilege and, thus, production should not be compelled. In some instances, Defendants also assert the work product doctrine and the common interest exception to waiver as grounds to withhold production.

The Special Master notes that, with respect to antitrust compliance documents, Plaintiffs challenge the merits of Defendants’ privilege claims; they do not challenge the sufficiency of Defendants’ privilege log entries.

The parties’ arguments concerning the antitrust compliance documents appear in 21 briefs. Although the procedural history below provides details of the motions, the following list provides an overview of the motions at issue at issue in this Report and Recommendation:

The Special Master's findings and recommendations are based on:

The Special Master finds the Defendants largely failed to carry their burdens to establish that the attorney-client privilege or the work product doctrine applied to the documents they claimed were privileged. The following table summarizes the Special Master's recommendations:

TABLE 1: PERCENTAGE OF DOCUMENTS REVIEWED IN CAMERA THAT SPECIAL MASTER RECOMMENDS BE PRODUCED BY DEFENDANT

I. Background

The facts of this case were set forth in detail in In re Local TV Advertising Antitrust Litig., No. 18-cv-6785, 2020 WL 6557665 (N.D. Ill. Nov. 6, 2020) and in In re Local TV Advertising Antitrust Litig., No. 18-cv-6785, 2022 WL 3716202 (N.D. Ill. Aug. 29, 2022).

Plaintiffs served their First Request for Production of Documents on December 11, 2020.[10] Request No. 19 (RFP No. 19) seeking from Defendants, inter alia, all “policies and practices regarding compliance with the federal or state antitrust or competition laws, including, without limitation, any employee or member handbooks, forms completed or signed by employees, guidance, memoranda, reference materials, [and] trainings ....”[11] Between August 2020 and January 2021, 14 million documents were produced.[12]

In February 2021, Judge Kendall issued a Stipulation and Order, which addressed assertions of privilege, among other discovery issues[13] and specified that privilege logs were to contain information drawn from two sources. One source was the metadata of the document. For emails, the metadata information included “Email Subject,” “From,” “To,” “CC,” and “BCC.”[14] For email attachments, the metadata information included “Title” and “Author.”[15] The other information source was litigation counsel, who were required to manually input information on (1) “the privilege asserted (e.g., attorney- client, work product)” and (2) “the basis for the assertion of the privilege that enables the other parties to assess the claim, regardless of whether such information is available from metadata.”[16] The Stipulation and Order specified a process in case the Receiving Party was “unable to ascertain whether or not a Document contained on the log is privileged or have reason to believe a particular entry on the log is responsive and does not reflect privileged information.”[17] That process called for the Receiving Party to request a meet and confer with the Producing Party and mandated that the “Producing Party shall provide additional information reasonably necessary for the Receiving Party to determine if the Document has been properly withheld or redacted.”[18] These specifications mirrored Federal Rule Civil Procedure 26(b)(5)(A).

*4 Sinclair served its initial privilege log on November 1, 2021.[19] By January 31, 2022, all Defendants had served their initial privilege logs to Plaintiffs. In the Spring of 2022, Plaintiffs sent letters to each defendant expressing concerns that they had “improperly withheld antitrust guidelines and policies.”[20] “While guidelines and procedures may have input from [the defendants’] legal department,” Plaintiffs stated, “that does not give license to withhold these documents as privileged, considering the likely situation that these documents are disseminated throughout the organization for business purposes.”[21] Plaintiffs directed defendants to In re Sulfuric Acid Antitrust Litg., 235 F.R.D. 407, 430-31 (N.D. Ill. 2006) (Sulfuric Acid I), supplemented by In re Sulfuric Acid Antitrust Litg., 432 F. Supp. 2d 794 (N.D. Ill. 2006) (Sulfuric Acid II) as support that the attorney-client privilege did not apply to antitrust compliance policies and guidelines.

Thereafter Plaintiffs and each Defendant exchanged multiple, detailed letters and emails concerning the antitrust compliance documents along with other issues regarding Defendants privilege claims. In these communications the parties continued to assert the reasons for their respective positions. Plaintiffs and each Defendant also discussed the issues either in person or via conference call. While the meet and confer process did not lead to any significant withdrawing of privilege claims, each Defendant amended their privilege log at least once.

The following table summarizes the meet-and-confer activities between Plaintiffs and the five defendants concerning “antitrust/business compliance” documents.

TABLE 2: MEET AND CONFER ACTIVITIES RE “ANTITRUST/BUSINESS COMPLIANCE MATERIALS” BY DEFENDANT AND BY ACTIVITY DATE

On August 10, 2022, Plaintiffs filed Discovery Motion No. 5 against Nexstar, Raycom, Scripps, and TEGNA, seeking production of antitrust compliance documents. (ECF 688).[22] Those four Defendants filed a joint opposition on August 22, 2022. (ECF 710). Judge Kendall heard oral argument on Plaintiffs’ motion on August 29, 2022.[23] The Judge issued no rulings during the oral argument, noting Plaintiffs’ Reply was due shortly after the hearing. Plaintiffs filed their reply on August 31, 2022. (ECF 723).

Plaintiffs’ Reply, however, was not the end of Plaintiffs’ claims that antitrust compliance documents were withheld on improper claims of privilege. On September 1, 2022, Plaintiffs filed five motions to compel with each motion directed at a single Defendant. Although these motions challenged the sufficiency of each Defendants’ privilege claims on multiple grounds, Plaintiffs also sought production of an additional 2,379 antitrust compliance documents beyond the 162 documents sought in their Motion to Compel No. 5 (ECF 688). The parties’ briefs concerning the September 1, 2022, motions to compel referred back to their briefs related to Motion to Compel No. 5 and provided additional, albeit cursory, arguments regarding the added antitrust compliance documents.[24]

*5 Although Plaintiffs’ Motion to Compel No. 5 (ECF 688) was not filed against Sinclair, Plaintiffs’ Motion to Compel No. 15, filed against Sinclair (ECF 741), sought production of 28 Sinclair antitrust compliance documents.[25]

On February 6, 2023, the Court by Minute Order, appointed The Honorable Richard A. Levie (Ret.) to serve as a Special Master in this case.[26] Thereafter, the Court entered “Stipulation and Order Pursuant to Fed. R. Civ. P. 53 Appointing Special Master,”[27] which outlined the scope of the Special Master's duties:

On February 15, 2023, the parties submitted documents addressing questions posed by the Special Master seeking an overview of the lawsuit, the procedural history of the suit, and the a history of the meet-and-confer process related to Defendants’ assertions of privilege.[28] The Special Master held Zoom conferences with all parties on February 16, March 1, and March 22, 2023. He also met on February 21 with Plaintiffs and TEGNA via Zoom. In preparation for the March 22, 2023, Zoom conference, the Parties submitted proposals on the protocol for the privilege review.[29] At the Special Master's request, the parties submitted hard and digital copies of their briefs and attachments related to Plaintiffs’ Mot. to Compel Nos. 5, 9, 11, 12, 14, and 15. They also submitted privilege logs for those documents in dispute, and they supplied the Special Master with copies of all cases cited in their briefs.

During the March 1, 2023, Zoom conference the parties agreed that the Special Master should first address Plaintiffs’ challenge to log entries for “Failure to Identify an Attorney.” Three weeks later, the parties proposed different priorities. In the Zoom conference on March 23, 2023, the parties asked the Special Master to prioritize Plaintiffs’ argument that Defendants improperly claimed antitrust compliance documents were privileged.[30]

*6 Defendants Nexstar, Raycom, Scripps, and TEGNA offered to produce the documents to the Court for in camera review if “the Court believes an independent examination of the disputed documents will aid the Court in resolving this Motion [Mot. to Compel No. 5].” On May 2, 2023, the Special Master accepted the offer of Nexstar, Raycom, Scripps, and TEGNA to produce their withheld documents for in camera review. Sinclair, although not party to Plaintiffs’ Motion to Compel No. 5 (ECF 688), was requested to and did agree to provide its antitrust compliance documents for in camera review. All documents at issue in Motion to Compel No. 5 were provided to the Special Master by May 5, 2023.

Upon realizing that additional antitrust compliance documents were challenged in other Plaintiffs’ Motions to Compel Nos. 9, 11, 12, 14, and 14-A (ECF 727, 737, 738, 732, and undocketed for 14-A, respectively), the Special Master requested all five Defendants to provide those additional documents. The Special Master asked Nexstar to remove all duplicates from the 2,300+ Plaintiffs challenged their Mot. to Compel No. 9 (ECF 727). After de-duplication, Nexstar reduced the universe of its disputed documents to 373 unique documents. The additional documents of all Defendants were provided in hard copy and electronically by June 2, 2023.[31]

Two documents submitted for in camera review were documents of a third party association of which one defendant was a member. The Special Master asked that the third party formally assert or waive privilege for its two documents. The third party submitted a declaration asserting its privilege on July 25, 2023.

II. Parties’ Arguments

Plaintiffs argue that Defendants improperly claim that their antitrust compliance policies, guidelines, and training materials are privileged. As legal support for their position, Plaintiffs cite In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407 (N.D. Ill. 2006) (Sulfuric Acid I) and In re Sulfuric Acid Antitrust Litig., 432 F. Supp. 2d 794 (N.D. Ill. 2006) (Sulfuric Acid II). That case considered the applicability of the attorney-client privilege to an antitrust compliance manual prepared by counsel and distributed to employees “whose duties involve marketing, sales, or production management responsibilities.”[32] Plaintiffs point out the manual at issue in Sulfuric Acid I addressed such categories as: “Agreements with Competitors, Pricing Policies, Supply/Distribution Policies, Advertising and Market Practices, and Abuse of Dominant Market Positions.”[33] That manual included a statement of the applicable law and hypotheticals illustrating “the application and ramifications of the law.”[34] In Sulfuric Acid II, the Court determined that the hypotheticals in the compliance manual were “instructional devices” that “ ‘were designed to make clear to sales and marketing personnel that [the corporation] operated under competition laws that could restrict their interactions with customers and others and sensitize them to the need for care and circumspection in potentially compromising situations.’ ”[35] Plaintiffs note that the Sulfuric Acid Court held that the fact that “ ‘the manual[ ] may have been authored by an attorney was not the test of the privilege's applicability.’ ”[36] Plaintiffs emphasize that the dispositive factor in the Sulfuric Acid I Court's determination that the manual was not privileged was because “it did not reveal client confidences, only articulated the company's policies and provided an overview of antitrust law in various jurisdictions.”[37] Plaintiffs argue that each of Defendants’ antitrust compliance documents they challenge “appear to have the same characteristics as those held to be non-privileged in the above cases.”[38]

*7 Plaintiffs adopt a two-step process in making their factual argument. In their opening brief, they seek to demonstrate that the withheld documents do not contain privileged legal advice, as Defendants claim, but are general instruction or guidance to employees on how to comply with antitrust laws. For factual support, Plaintiffs rely on Defendants’ privilege log entries, citing to the “Subject” lines of the emails, “File Names” of the email attachments, and the document “Descriptions” provided by litigation counsel. For example, Plaintiffs point to log entries that identify withheld documents noted as:[39]

Plaintiffs also point to emails on the log which establish that the antitrust compliance documents were widely disseminated to Defendants’ employees. Such wide-spread distribution of compliance documents to employees are, Plaintiffs argue, “a strong indicator that the documents are training and educational [materials], not specific advice on a narrow issue raised by a company executive.”[40]

As apparent additional evidence that the withheld documents are general antitrust compliance documents, Plaintiffs state that Nexstar, Raycom, and Scripps have not produced any general antitrust compliance policies or guidelines,[41] although Plaintiffs had requested these documents in their First Request for Documents.[42] Plaintiffs assert that “the notion that these sophisticated companies have no such policies to produce is not credible.”[43] The “logic” of this argument appears to be that, if Defendants have not produced these documents, the documents must be logged on their privilege logs.[44]

*8 In their Reply brief, Plaintiffs argue that Defendants bear the burden of submitting particularized information so the Court can determine whether the withheld documents are privileged. They quote the Seventh Circuit ruling in United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997), for the proposition that the “party seeking to invoke the privilege bears the burden of proving all of its essential elements.”[45] Plaintiffs point out that Defendants did not submit any declarations or other evidence to support their bare assertions of privilege. Under these circumstances and controlling law, Plaintiffs seek an order compelling Defendants to produce their antitrust compliance policies, guidelines and training materials, or, in the alternative, seek in camera review.[46]

Defendants collectively and individually oppose Plaintiffs’ Motions to Compel production of antitrust compliance documents on a number of grounds.[47] Believing that Plaintiffs argue that antitrust compliance policies and guidance are not per se privileged,[48] Defendants assert[49] that claims of privilege are “are sustained on a ... document-by-document basis.”[50] Indeed, Defendants note that some “[c]ourts have found documents related to antitrust compliance policies to be privileged,” citing In re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, 1996 WL 5180, at *2 (N.D. Ill. Jan. 3, 1996) and In re Blue Cross Blue Shield Antitrust Litigation, No. 2:13-CV-20000-RDP, 2017 WL 9807442, at *6 (N.D. Ala. Aug. 31, 2017).[51]

Defendants Nexstar, Raycom, Scripps, and TEGNA also argue that Plaintiffs are not entitled to the relief they seek in their Motion to Compel No. 5, i.e., production of the antitrust compliance documents, because Defendants’ “assertions of privilege are proper and adequately described in their privilege logs.”[52] Given the asserted sufficiency of their privilege logs, Defendants, excluding Sinclair, believe Plaintiffs bear the burden to show Defendants documents are not privileged.[53] Noting the references to the metadata descriptors in their logs,[54] Defendants argue that Plaintiffs’ arguments are speculative[55] and assure the Court that each withheld document is, in fact, privileged.[56]

*9 Contending that Plaintiffs did not satisfy “their” burden, Defendants Nexstar, Raycom, Scripps, and TEGNA[57] ask the Court to deny Plaintiffs’ Mot. to Compel No. 5 “because it fails to establish that any of Defendants’ antitrust compliance documents are not privileged or should be produced.”[58] These Defendants did, however, offer to “produce the documents to the Court for in camera review.”[59]

III. Legal Standards

Defendants withheld or redacted most of the antitrust compliance documents claiming that they are protected from production by the attorney-client privilege. They also claimed work product protection for about one third of their documents. In addition, Sinclair withheld roughly two dozen documents invoking the common interest exception to waiver as part of their claims of attorney-client privilege and work-product protection. In response to Plaintiffs’ argument that Defendants’ privilege claims are without merit, Defendants contend that their “assertions of privilege are proper and adequately described in their privilege logs,” in compliance with Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure.[60]

The primary purpose of the attorney-client privilege is to prevent the disclosure of confidences that clients impart to their attorney when seeking legal advice.[61] The privilege is rooted in the recognition that clients may be reluctant to disclose certain information to their attorneys.[62] Yet, for attorneys to provide sound advice, they need “to know all that relates to the client's reasons for seeking representation.”[63] The privilege shields from discovery client confidences of relevant yet “damaging information.”[64]

Candor between clients and attorneys, however, is not an end in itself. Rather, the privilege exists to advance the public interests in the observance of law and administration of justice. “Confidential legal advising promotes the public interest ‘by advising clients to conform their conduct to the law and by addressing legal concerns that may inhibit clients from engaging in otherwise lawful and socially beneficial activities.’ ”[65] Indeed, it has been said that the “attorney-client privilege is strongest when a client seeks legal advice to determine the legality of conduct before taking the action.”[66]

The attorney-client privilege comes at a cost. It permits the client to withhold relevant information from judicial proceedings and may operate to “insulate from disclosure compelling evidence of wrongdoing.”[67] Clearly, to withhold such information impedes the investigation of the truth. As a consequence, the attorney-client privilege must “be strictly construed within the narrowest possible limits.”[68] Indeed, the Supreme Court limits the privilege's application to “only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.”[69] Thus, the purpose of the privilege sets its limits.

*10 The Seventh Circuit adopted Wigmore's articulation of the essential elements of the attorney-client privilege:

Later the Circuit restated Wigmore: “The attorney-client privilege protects confidential communications made by a client to his lawyer [w]here legal advice of any kind is sought ... from a professional legal advisor in his capacity as such.”[71] As worded, the privilege only protects the one-way communication from client to attorney. The Seventh Circuit, however, recognized that, as a practical matter, the privilege should run two ways since attorneys’ responses may well reveal the substance of their clients’ confidences. Thus, the privilege provides “derivative protection”[72] to attorney communications to the client “where those communications rest on confidential information obtained from the client ..., or where those communications would reveal the substance of a confidential communication by the client[.]”[73]

Some courts in other jurisdictions and legal commentators have noted an expansion of the scope of the attorney-client privilege by ruling that legal advice alone, which does not reveal client confidences is held to be privileged.[74] Any expansion of the privilege untethered to a client confidence appears to lack acceptance under Supreme Court[75] and Seventh Circuit law,[76] as many courts in this district have so held.[77]

*11 The party claiming the privilege bears the burden of establishing the privilege applies.[78] It must establish all the essential elements of the privilege.[79] More is required than a blanket claim of privilege. Privilege claims “must be made and sustained on a question-by-question or document-by-document basis.”[80]

To carry their burden, parties claiming privilege must “demonstrate by competent evidence and with particularity that the attorney/client privilege or work-product applies to each document that is claimed to be privileged.”[81] The inquiry involved is highly fact specific.[82] Moreover, the attorney-client privilege ultimately is considered an evidentiary rule that concerns the admissibility of communications between clients and their counsel.[83]

Conclusory statements of law by counsel are not evidence - - “simply describing a lawyer's advice as ‘legal’, without more, is conclusory and insufficient to carry out the proponent's burden of establishing attorney-client privilege.”[84] In addition, unsupported statements of fact by counsel, whether in briefs or oral argument, are not evidence.[85]

What is required is factual support for each and every element of the claimed privilege.[86] Factual statements must be supported by competent evidence such as affidavits, deposition transcripts, documents, interrogatory answers, or other evidence.[87] These evidentiary devices also serve to fill in factual gaps and provide context for the specific claims of privilege.[88] Regardless of form, though, the party claiming a privilege must provide sufficient facts to establish the existence of that privilege. In a related context (work product), this Court noted that a court will look at “the factual context” surrounding a document claimed to be privileged.[89]

*12 It is well established that corporations are clients able to invoke the protection of the attorney-client privilege.[90] In so ruling in 1980, the Supreme Court observed corporations confront a “vast and complicated array of regulatory legislation” and constantly “go to lawyers to find out how to obey the law.”[91] Thus, absent the protection of the privilege would “not only make it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problems but also threaten to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law.”[92] In the four decades since the Supreme Court made those statements, the “thickets of complex government requirements” have become ever more thorny, increasing the need for legal guidance and advice.[93]

The party claiming privilege must also establish the client sought “legal advice ... from a professional legal adviser in his capacity as such.” Establishing this element is not straight forward when the communication at issue involves in-house attorneys. The analysis of privilege is more complicated today because in-house attorneys increasingly serve in multiple capacities, including business advisor, strategist, as well as legal advisor.[94] This evolution of the responsibilities of in-house counsel has led some courts hold that communications by in-house counsel are presumed to be business advice, not legal advice.[95] Whether or not a court expressly adopts such a presumption, the multiplicity of roles of corporate counsel increases “the burden that must be borne by the proponent of corporate privilege claims relative to in-house counsel.”[96] The frequent issue for the party claiming privilege is the so-called dual-purpose communication. That is when counsel is asked for or provides both business and legal advice. In this jurisdiction, dual-purpose communications are protected only if the primary purpose behind their creation is legal in nature.[97]

Other attorney communications with their clients also do not qualify as privileged. Saliant to the present motion, when attorneys communicate public information to their clients, those communications are not privileged.[98] In our democracy, legislation, regulations, and case law are public information. The mere transmittal of this legal information by attorneys to their clients does not create a privilege. In fact, even when attorneys summarize the law in an objective, neutral manner, such summaries are not privileged merely because an attorney was the author.[99] Similarly, information or facts an attorney acquires from non-public third-parties and communicates to their clients also do not transform into a privileged communication.[100]

*13 Parties claiming privilege bear a two-part burden regarding confidentiality. They must establish that the client (1) disclosed a confidence to the lawyer with an expectation of confidentiality at the time of disclosure and (2) did not compromise the confidentiality by disclosing the confidence to individuals outside the attorney-client relationship.[101]

In the corporate context, evaluation of the confidentiality element involves several issues. To begin with, the Supreme Court in Upjohn recognized the practical necessity of conveying “full and frank legal advice to the employees who will put [it] into effect[.]”[102] To this end, the dissemination of privileged legal advice to “employees directly concerned with such matters does not waive the attorney-client privilege.”[103] Conversely, where “the client is a corporation, the privilege is waived if the communications are disclosed to employees who did not need access to the communication.”[104] There also may be circumstances in which employees discuss legal advice from corporate counsel among themselves without breaching the confidentiality element.[105]

In asserting applicability of the attorney-client privilege, the party invoking the privilege must establish the necessary factual record; often such record will involve information extrinsic to the privilege log or document reviewed in camera. For instance, emails sent to group lists which do not identify the individual recipients precludes the party claiming privilege from establishing the confidentiality element absent additional evidence.[106] Merely identifying the names of individual recipients of emails is insufficient to establish the recipients are “employees directly concerned with such matters” or employees who needed “access to the communication.”[107] A large distribution group makes it more difficult to support a claim of confidentiality; thus, the necessity for the proponent to produce sufficient competent evidence for the claimed privilege.[108] While there is no fixed upper limit for the number of people who may be within the protection of the privilege,[109] as the number of people receiving the purportedly privileged legal advice increases, so too does the skepticism the communication was intended to be and was maintained as confidential.

*14 The work-product doctrine exists, in pertinent part, to “protect an attorney's thought processes and mental impressions against disclosure.”[110] As Justice Jackson famously observed in his concurring opinion in Hickman v. Taylor, 329 U.S. 495, 516 (1947): “Discovery was hardly intended to enable a learned profession to perform its functions ... on wits borrowed from the adversary.” In contrast to the attorney-client privilege, the work product doctrine protects the privacy interests of attorneys in their trial preparation; as such, attorneys may assert the work-product doctrine on their own behalf.[111]

The doctrine extends to documents prepared by non-attorney representatives of the client. The “person preparing the materials may be any representative of the client, regardless of whether the representative is acting for the lawyer.”[112]

The party claiming protection under this doctrine “must show that the materials sought to be protected were prepared ‘in anticipation of litigation.’ ”[113] More specifically, there must be a showing that the document was “prepared ... because of the prospect of litigation,” or, that “some articulable claim, likely to lead to litigation, [has] arisen.”[114] Indeed, this Court noted this standard in Webster Bank, N.A., 2018 WL 704693, at *3. In applying this standard, the court “looks to ... the factual context” in which the document was created. Id.

Documents created in the ordinary course of business are not privileged under the work product doctrine.[115] “To determine whether a document would have been created in the normal course of business ..., courts look to whether the documents would have been produced ‘regardless of whether litigation was anticipated or not’ in the matter at hand.”[116]

Although Rule 26(b)(3) does not specify what litigation should be anticipated, case law establishes that the “work-product doctrine protects parties from sharing their materials developed for the present case, but not necessarily for an earlier matter.”[117] This interpretation reflects the purpose of the doctrine, which is to “hide internal litigation preparations from adverse parties.”[118] At times, though, the work product doctrine may apply to litigation that is related to the present case.[119]

*15 The work-product protection is not automatically waived by disclosure to a third party, in contrast to the attorney-client privilege. Selective disclosure of work product is permitted to parties who are not adversarial to the holder of the work product in the current litigation.[120] Selective disclosure reflects the purpose of the work product doctrine to protect trial preparation materials from one's litigation adversary.[121]

Defendants bear the burden of showing the work-product doctrine applies.[122] As with the attorney-client privilege, Defendants must “demonstrate by competent evidence and with particularity that the attorney/client privilege or work-product applies to each document that is claimed to be privileged.”[123] Demonstrating the “factual context” by competent evidence is an obligation of the party asserting work product protection. Here, as with the attorney client privilege, “[b]lanket claims of privilege or conclusory assertions are insufficient to carry this burden.”[124]

Ordinarily, disclosure of a privileged document to a third party will waive the privilege; there is, however, an exception to this general-waiver rule.[125] The exception applies when “(1) parties undertake a joint effort (2) with respect to an identical legal interest, as opposed to a business or rooting interest, and (3) the withheld communications are made to further the foregoing ongoing legal enterprise.”[126] The doctrine encourages parties with shared legal interests to seek legal counsel “to meet legal requirements and to plan their conduct, accordingly.”[127] “Reason and experience demonstrate that joint venturers, no less than individuals, benefit from planning their activities based on sound legal advice predicated upon open communication.”[128]

*16 The doctrine thus allows attorneys representing different clients with the same legal interest to share information to advance that interest.[129] Notably, the common interest exception applies only to privileged communications shared among attorneys.[130] Sharing a privileged communication directly among clients may destroy the privilege.[131] The attorney to attorney sharing limitation “helps prevent abuse by ensuring that the common-interest [exception] only supplants the disclosure rule when attorneys, not clients, decide to share information in order to coordinate legal strategies.”[132]

In the Seventh Circuit, the common interest exception is strictly construed. It applies only to common legal interests.[133] Shared business, commercial and financial interests do not trigger this exception.[134] The Circuit also construes “common” narrowly. The parties shared interests must be identical, not similar.[135] That said, the parties’ interests need not be “compatible in all respects.”[136] It sufficient they have some interests in common.[137] Further, the parties must have “formed a common strategy” to advance that common interest.[138] Finally, this exception “is limited strictly to those communications made to further an ongoing enterprise.”[139]

*17 The common interest exception applies both to the attorney-client privilege and the work-product doctrine. The exception, however, does not create an independent ground for asserting a claim of privilege against discovery.[140] It merely extends the scope or coverage of the otherwise existing privilege. Because the attorney-client privilege is not limited to litigation, neither is the extension of it under the common interest. In contrast, because the work-product doctrine protects only documents created “in anticipation of litigation,”[141] the extension of the doctrine under the common interest is limited to anticipated litigation.[142] As with the privileges on which it rests, the common interest exception places the burden of establishing the exception on the party asserting the exception.

IV. Generally Applicable Analyses and Findings

Having set forth the applicable legal standards, the Special Master turns to assess whether Defendants have borne their burden to establish that the attorney-client privilege or the work product doctrine applies to their antitrust compliance documents. The Special Master begins with issues broadly applicable to all Defendants before turning to evaluate each Defendants’ individual documents.

Discoverability of antitrust compliance documents is not a question of first impression in this District as evidenced by the decisions in Sulfuric Acid I, as supplemented by Sulfuric Acid II and In re Brand Name Prescription Drugs Antitrust Litg, No. 94C 897, 1996 WL 5180 (N.D. Ill. Jan. 3, 1996).[143] Although these opinions are not binding, they are instructive and persuasive.

With respect to the applicable legal test, both decisions focus on the presence or absence of “client confidences.”[144] The Sulfuric Acid court emphasized that the test is not whether an attorney authored the compliance manual,[145] but “whether the communication rests on confidential information obtained from the client or would reveal the substance of a confidential communication by the client.”[146] The Brand Name Prescription Drug court commenced it's legal analysis with: “The attorney-client privilege protects from discovery documents which reflect communications made in confidence by the client.”[147] Applying this standard to an Antitrust Compliance Manual, the Sulfuric Acid court found, after in camera review, “[n]o advice is reflected, no confidential confidences are revealed[.]”[148] Similarly, the Brand Name Drugs court reviewed an antitrust presentation given by in-house counsel to seven corporate executives. The court found the presentation “reveals client confidences regarding certain of [the corporate client's] business practices.”[149] Read together, Sulfuric Acid and Brand Name Drugs make clear that the “client confidence” element is key to deciding whether antitrust compliance documents are privileged.

*18 Turning to the application of those legal principles to antitrust compliance documents, instructive are the detailed findings in Sulfuric Acid and In re Domestic Drywall Antitrust Litig., No. 13-MD-2437, 2014 WL 5090032, at *1 (E.D. Pa. Oct. 9, 2014). In each of those cases the documents at issue provided an overview of antitrust laws, identified practices to be avoided, provided guidance in situations that could lead to violations, and listed sanctions for antitrust violations.[150] In each case the courts conducted in camera review of the documents. Significantly, the party claiming privilege in Sulfuric Acid submitted an affidavit by an attorney involved in the preparation of the manual. The affidavit explained the genesis of the manual as well as the hypotheticals in the manual.

The manual in Sulfuric Acid addressed myriad and detailed activities of the sales and marketing staff, including: “Agreements with Competitors, Pricing Policies, Supply/Distribution Policies, Advertising and Market Practices, and Abuse of Dominant Market Positions.”[151]

In both Sulfuric Acid and In re Domestic Drywall the courts found the following communications were not privileged because they did not contain client confidences or legal advice that reflected client confidences:

The court in Sulfuric Acid characterized the manual before it as an “instructional device,” while in Domestic Drywall the court described the policy it reviewed as “primarily a business policy.” The Special Master realizes that those conclusions and findings reflected the specific contents of those antitrust compliance documents and that determinations of the applicability of any privilege depends on the specific document at issue.

Defendants’ primary argument against Plaintiffs’ motions to compel production of the antitrust documents is procedural. As set forth supra, Defendants Nexstar, Raycom, Scripps, and TEGNA state that Plaintiffs bear a burden to establish the withheld documents are not privileged and then argue Plaintiffs have failed to satisfy their burden. Defendants cite no case law to support this shift in burden[152]—in their opposition brief to Plaintiffs’ Motion to Compel No. 5 and or in their oppositions to Motions to Compel Nos. 9, 11, 12, 14, and 14-A. Defendants also do not cite any logical reason to depart from the long-established proposition that the burden to establish the privilege rests with the proponent.[153] In any event, Defendants do not support their burden-shifting assertion with case law or argument.

Defendants’ arguments are directed at establishing that antitrust compliance documents are not categorically excluded from the protection of the attorney-client privilege. As a result, they seek to undermine the conclusion in In re Sulfuric Acid that the antitrust compliance manual was not privileged by pointing out that other “[c]ourts have found documents related to antitrust compliance policies to be privileged.”[154] They cite In re Brand Name Prescription Drugs Antitrust Litig, No. 94 C 897, 1996 WL 5180 (N.D. Ill. Jan. 3, 1996)1 and In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-CV-20000-RDP, 2017 WL 9807442 (N.D. Ala. Aug. 31, 2017). By focusing on the conclusions of these courts, Defendants ignores that each court applied the elements of the attorney-client privilege to the documents in front of them to reach their conclusions. The different outcomes reflected different contents. The portion of Brand Name Prescription Defendants cite evaluated a presentation given by “a Schering attorney ... to seven Schering executives.” The court found the “presentation describ[ed] the application of the antitrust laws to specific aspects of Schering's business.” The court held the presentation was privileged because “it provides legal advice and reveals client confidences regarding certain of Schering's business practices.” Similarly, Blue Cross/Blue Shield concerned a document titled “Antitrust Compliance for the Blue Caucus,” which outside counsel had prepared at the request of her client, the Blue Caucus. The members of the Caucus were “not-for-profit Blue entities.” The court found the document contained “legal analysis and advice from a lawyer on how to run the Blue Caucus should run meetings consistent with antitrust laws, and advise[d] the group about topics the Blue Caucus may and may not discuss during their meetings.” The Blue Cross/Blue Shield court held “the Antitrust Compliance document is privileged because it reflects a ‘confidential communication[ ] between an attorney and his client relating to a legal matter for which the client sought professional advice.”[155] Common to all three cases was reasoning which focused on the importance of the “client confidence” element when evaluating antitrust compliance documents.

*19 Defendants treat “legal advice” as dispositive to the issue of privilege. Defendants’ privilege log entries and briefs are replete with references to “legal advice:”

Notably, neither these log entries nor the others on their privilege contain mention of “client confidences.” As noted above, legal advice untethered from client confidences is not within the scope of the attorney-client privilege. The purpose of the privilege sets its limits— it applies to “only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.”[157] Defendants, however, offer no legal argument for an extension or modification of the existing standards. Given that the attorney-client privilege exists to protect client confidences, Defendants’ failure to address client confidences, let alone establish them with competent evidence, seriously undermines their claims of privilege.[158]

Defendants also focus on “specific” as if it were an element in determining privilege. In discussing individual documents, Defendants repeatedly allege the documents contain “specific” information, including “specific case studies,” “specific business practices,” “specific legal instructions,” “specific aspect of Defendant's business,” etc. This emphasis on specificity seems to be based on the statement in In re Brand Name Prescription Drugs Antitrust Litig., No. 94 C 897, 1996 WL 5180, at *2 (N.D. Ill. Jan. 3, 1996) that “a presentation describing the application of antitrust laws to specific aspects of [the defendant]’s business” is privileged.” Defendants cite this holding multiple times.[159] This emphasis on specificity may represent an attempt to distinguish the documents here from “general guidance” materials sought by Plaintiffs. “Specificity,” however, is not an element of the attorney-client privilege. As the court in Brand Name Prescription Drugs held, the “presentation is privileged as it provides legal advice and reveals client confidences.”[160] That the client confidences concerned “certain aspects of Schering's business practices” was not the dispositive factor—the revelation of “client confidences” was.

*20 Defendants also argue that internal dissemination of allegedly privileged documents to multiple employees does not vitiate their privilege protection.[161] In the abstract, Defendants are correct; multiple people receiving a privileged communication does not strip it of its confidential nature. As observed above, “it is well settled that the dissemination of a communication between a corporation's lawyer and an employee of that corporation to those employees directly concerned with such matter does not waive the attorney-client privilege.”[162]

This statement of the law, standing alone, does not satisfy Defendants’ burden to provide evidentiary support for their assertion that the individuals receiving the documents had a need to know this communication. In the context of documents disseminated to group distribution lists with unidentified recipients, Defendants must show the recipients were employees and that each had a “need to know.” This they have failed to do, as is discussed below in detail. As a result they have not carried their burden regarding the confidentiality element for documents disseminated to multiple recipients.

As noted above, it is incumbent on the proponent of the privilege to demonstrate the existence of the privilege with competent evidence[163] such as declarations, affidavits or submission of contextual documents to establish that the attorney-client privilege or work product protection exist. This is not a novel proposition of law but, rather, a reference to long-standing and uniformly existing requirement to sustain claims of attorney-client privilege or work product protection.[164]

In the instant case, the Defendants uniformly elected not to proffer extrinsic evidence. Unless a document is crystal clear on its face that the attorney-client privilege or work product protection applies, only extrinsic evidence can possibly establish the validity of the proponent's claims. Throughout the meet and confer process, in the submission of privilege logs and in the briefing process here, Defendants did little more than offer assurances that the withheld documents are privileged.[165] While not questioning the integrity of any lawyer, such assurances without competent extrinsic evidence is not sufficient to discharge the burden on the proponent of the claim.[166]

*21 In this Report and Recommendation, the Special Master has reviewed the record as it was presented by the parties based upon the parties’ litigation decisions regarding efforts to establish the attorney-client privilege and work product protection.[167]

An integral element of any claim of attorney-privilege or attorney work product is the involvement of an attorney who is “acting in a professional capacity.” Yet Defendants here provided little information about their attorneys, and three did not even identify their attorneys for several months after producing their privilege logs.

Sinclair and TEGNA identified their attorneys in their privilege logs. Sinclair placed “Esq.” after the attorney's name, while TEGNA added “***” in front of attorney names. Neither, however, provided additional information about the attorneys listed on their privilege logs. Nexstar, Raycom, and Scripps each produced a list of their attorneys to Plaintiffs months after they produced their privilege logs.[168] Nexstar's list contains in-house counsel of three corporations: Media General, Tribune Media, and Nexstar, but no explanation was provided for the presence of Media General or Tribune Media. Nexstar provided Plaintiffs a three-page list of 120 attorneys, according to Plaintiffs’ count. The 120 attorneys are listed in alphabetical order by first name, but are not grouped by employer, e.g., Nexstar's in-house attorneys are scattered throughout the list. While the list includes counsel at various law firm, it does not link the firms to the corporation which retained them or identify what legal expertise the firms were retained to provide.

With respect to in-house counsel, none of the five Defendants provided job descriptions for these attorneys, and none, save Nexstar, provided job titles. Also left unaddressed and unsupported by evidence were explanations as to when in-house counsel provided legal, as opposed to business advice. Such information is necessary given that some courts presume in-house counsel is functioning in a business role, not a legal one.[169] In addition, none of the defendants provided information on the tenure of these attorneys, or identified any changes in employer, either due to movement from outside counsel to inside or due to corporate mergers. While not suggesting the foregoing are absolute requirements, the defendants bear the burden to establish, among other elements, that their client sought “legal advice” “from a professional advisor in his [or her] capacity as such.”

*22 Had Defendants provided some extrinsic evidence as to why a document was created or how it was being used, such evidence would have advanced the inquiry into whether the attorney-client privilege or work doctrine were applicable. Without Defendants providing needed information regarding counsel, the bare reference to someone being an attorney is insufficient to establish that the attorney's work was primarily legal.

The lack or sparseness of job descriptions of the individuals receiving communications concerning antitrust compliance is problematic. Absent are affidavits, declarations, or other competent evidence submitted with the privilege logs associating names with job descriptions. As discussed above, only dissemination to employees who need to know the legal advice will not waive the privilege.[170] The same issue arises for emails sent to groups such as “AllCorporateGVPs,” “WCPO Leadership Team” or “WTSP-Sales Managers.”[171]

Providing job descriptions is hardly a new criterion for privilege logs. Thirty years ago, Allendale identified the need for privilege logs to include the name and the capacities of all individuals appearing on the logs and, since then as noted supra, a number of courts in this district ordered documents be produced for failing to satisfy this criterion. The absence of such information undermines the assertions of privilege.

Other than Scripps, the Defendants claim the work product doctrine protects some of their antitrust compliance documents. Nexstar invokes that protection for 20 of its antitrust compliance documents,[172] while Raycom so claims for 1 document, Sinclair for 4, and TEGNA for 25.

None of the parties address work product claims in their briefs filed in connection with Plaintiffs’ Motion to Compel No. 5 (ECF 688). Plaintiffs, however, challenge log entries on the ground of “Insufficient Work Product Claim” in their later-filed motions to compel.[173] Because the parties’ arguments were general, applicable to multiple log entries, the Special Master assumes these arguments apply to Plaintiffs challenge the work product claims for 35 Nexstar antitrust compliance documents and for the one Raycom antitrust compliance document. Plaintiffs and Defendants make arguments generally applicable to all work product claims, not merely related to antitrust compliance documents.

*23 Plaintiffs argue that the privilege log entries claiming work product protection are inadequate because they (1) do not identify the attorney who created the document or give instructions to create the documents and/or (2) do not identify the particular litigation.[174]

Nexstar and Sinclair argue that the doctrine protects “the party not just the attorney,” and thus, that documents were prepared by a non-attorney “ ‘does not, in itself, remove the documents from the scope of the work product privilege.’ ”[175]

TEGNA makes three arguments. First, it argues there is no legal authority that requires identification of specific litigation when invoking the work product doctrine.[176] Next it argues many of its log entries identify “the DOJ or class action lawsuits as the subject of the communication.”[177] Finally, it asserts “litigation need not be imminent” for the doctrine to attach; rather “documents and investigative reports will be protected so long as the ‘primary motivating purpose’ behind their create was to ‘aid possible future litigation.’ ”[178]

Although Plaintiffs do not challenge every work product claim for the antitrust compliance documents, the Special Master evaluates all 50 of Defendants’ work product claims for these documents. The in camera review found only one of the documents qualified for this protection. Defendants’ log entries claiming work product protection did not provide competent factual evidence to support the claim or provide context to illuminate the document review.

Sinclair represents that there were 10 documents shared between Sinclair and Tribune during merger proceedings were protected under the common interest doctrine.[179] Plaintiffs challenge Sinclair for improperly withholding these 10 antitrust compliance documents from discovery, claiming they are privileged and that the common interest exception applies to preclude waiver.[180] Plaintiffs argue that Sinclair has not meet its burden to (1) identify the common legal interest Sinclair and Tribune shared; (2) establish that a joint legal enterprise existed; and (3) show the communications were shared among the attorneys to advance the joint legal enterprise.[181] While Plaintiffs concede that Sinclair and Tribune may have had a shared financial interest in the consummation of the their merger, Plaintiffs assert that Sinclair and Tribune did not have a common legal interest in the Department of Justice's investigation, based upon the fact that the merger eventually failed and that Tribune sued Sinclair asserting “Sinclair's conduct during the DOJ investigation was the impetus for Tribune launching its lawsuit against Sinclair.”[182]

*24 Sinclair responds that a common interest existed “during the period Sinclair and Tribune were working together, pursuant to a written common interest agreement, in the context of DOJ's review of the companies’ proposed merger.”[183] Sinclair's legal argument in support of its common interest claim reads:

Beyond citation to this case law, Sinclair fails to provide any supporting documentation in support of its claim or attempt to establish how the law arguably applies to each of its 10 documents. Although Sinclair references a written common interest agreement, Sinclair did not supply it to the Special Master. Sinclair also did not provide any contextual information about the failed merger of Sinclair and Tribune, even though almost half of the antitrust compliance documents it withheld relate to that merger. It further did not submit affidavits or other evidence to provide factual support for its privilege claims.

Sinclair produced the 10 documents, along with 16 other antitrust compliance documents for in camera review, and also submitted family members of the disputed document, which provided the Special Master some context.[185] On the record before the Special Master, Sinclair has failed to demonstrate that the attorney client privilege or work product protection apply. Without a finding that the attorney client privilege or the work product protection apply, there is no basis to consider whether the common interest exception to waiver applies.

Even if, arguendo, Sinclair had established the applicability of those privileges, Sinclair did not establish that it shared a common, identical legal interest with Tribune during the interim merger period. The Guidelines submitted by Sinclair indicate Sinclair offered to purchase Tribune in early May 2017, but the merger could not be completed unless and until after regulatory approval was given. A case can be made the parties shared a common business interest during this interim period of regulatory approval that would be granted, and the merger would close. That they shared a common legal interest was not established. The purpose of the Guidelines was to impress upon Tribune employees that Tribune remained an independent company during the interim period and must operate accordingly. Interactions with Sinclair were to remain at arm's length. Further, the common interest exception applies to information shared among attorneys, yet the Guidelines do not appear to be information attorneys representing the two corporations would share among themselves while undertaking a common legal strategy. In fact, the Guidelines contain very basic information of the sort non-lawyers would understand.

Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 613 (7th Cir. 2006).

The Special Master began his review of the privilege logs by re-ordering them in chronological order, oldest documents first.[186] This ordering allowed identification of groups of documents that were related and that provided some level of context for the documents. Chronological ordering also facilitated identification of duplicates or near duplicates. The Special Master reviewed each document to make findings and recommendations on groups of documents, whether grouped by common subject or grouped as duplicates or near duplicates.

Because Plaintiffs, in seeking an order to produce the documents, challenged the merits of the Defendants’ privilege claims, the Special Master addressed all of Defendants’ privilege claims, i.e., attorney-client privilege, work-product doctrine, and common interest exception to waiver. If the Special Master found a document on the merits not to be privileged, the Special Master did not address any challenges by Plaintiffs as to the sufficiency of the privilege log entry for that document.

In this Report and Recommendation, the Special Master generally does not address the sufficiency of Defendants’ privilege log entries.

V. Findings and Recommendations for Individual Documents

The Special Master's findings and recommendations as to each document appear on the accompanying Exhibits 1-5. The exhibits are four-column charts, which are a condensed version of Defendants’ privilege logs. The information in the first three columns is taken directly from those privilege logs. Thereafter, the Special Master made uniform the column headings and document type, i.e., email, attachment, etc. The last column—titled “Special Master's Findings and Recommendations”—contains the Special Master's description of the document, findings as to whether the Defendant has carried its burden to establish the applicability of the attorney-client and/or the work product doctrine, and recommendation regarding production.

*26 Based on the foregoing and the analysis in the attached Exhibits 1-5 which address the individual documents reviewed in camera, the Special Master recommends the Court grant in part and deny in part Plaintiffs’ Motion to Compel No. 5 (ECF 688) seeking production of antitrust compliance documents from Nexstar, Raycom, Scripps, and TEGNA as well as those portions of Plaintiffs’ Motions to Compel Nos. 9 (ECF 727), 11 (737), 12 (ECF 738), 14 (ECF 732), 14-A (submitted to the Special Master), and 15 (ECF 741) that seek production of antitrust compliance documents from the four just-named Defendants and Sinclair.

Dated: July 26, 2023