In re Local TV Adver. Antitrust Litig.
In re Local TV Adver. Antitrust Litig.
2025 WL 681193 (N.D. Ill. 2025)
February 21, 2025
Levie, Richard A., Special Master
Summary
The court found that the defendants had not provided sufficient information to support their claims of privilege and work product protection for ESI. The court emphasized the importance of providing specific and factual information to support privilege claims and ordered the defendants to produce the requested documents in accordance with the Special Master's recommendations. The court also warned against abuse of the discovery process and the potential for sanctions to be imposed on parties who do not act responsibly.
Additional Decisions
IN RE: LOCAL TV ADVERTISING ANTITRUST LITIGATION
This document applies to all actions
This document applies to all actions
Master Docket No. 18-06785 | MDL No. 2867
United States District Court, N.D. Illinois, Eastern Division, ILLINOIS EASTERN DIVISION
Filed: February 21, 2025
Levie, Richard A., Special Master
Special Master Report and Recommendation No. 3 Challenges to Defendants’ Privilege Log Entries
Table of Contents
Introduction
Summary of the Special Master's Findings and Recommendations
Procedural History
A. Law of the Case
B. History of the Parties’ Meet-and-Confer Activities
C. Background of this Report and Recommendation
I. Legal Standard
A. Law of the Case
B. The Parties’ Arguments
C. The Special Master's Interpretation of Rule 26(b)(5)
II. Lack of Information in Log Entries as to Attorney Involvement
A. The Parties’ Arguments
1. No Attorney in the Log Entry
2. Non-Specific Attorneys in Log Entry Description
3. Attorney Named in Description But Not in To/From
4. Attempt to Shift Burden
B. The Special Master's Analysis of the Parties’ Arguments re Challenge Categories
1. Attorney Must Have Communicated with a Client
2. Insufficient Initial Privilege Log Entries re Attorney Involvement
3. Bare Reference to an Attorney in Log Entry
4. Ipse Dixit of Counsel
5. Generic Subject Matters
6. Privilege Claimant's Obligation to Investigate
7. No Burden Shifting to Plaintiffs
III. Defendants’ Assertions of Work Product Protection
A. The Parties’ Arguments
B. Law Regarding the Work Product Doctrine
C. Special Master's Analysis of Log Entries
D. Special Master's Recommendations
1. Log Entries Referring to Documents Dated Before July 27, 2018
2. Log Entries Referring to Documents Dated on or after July 27, 2018
IV. Exceptions to Waiver of Confidentiality
A. Common Interest Exception to Waiver
1. The Parties’ Arguments re Sinclair's Assertions of Common Interest With Other Corporations
2. The Special Master's Findings
B. Joint Attorney Exception to Waiver
V. Remedies for Insufficient Log Entries
A. The Parties’ Arguments
B. The Special Master's Recommendations For Relief
1. No Amendment of Deficient Log Entries
2. No In Camera Review
3. No Sanctions
VI. The Special Master's Recommendations Regarding Individual Log Entries 84
Conclusion
Introduction
Before the Special Master, for the third time, are privilege disputes between Plaintiffs and Defendants. Here Plaintiffs challenge log entries in the privilege logs of Meredith Corporation, Nexstar Media Group, Inc., Raycom Media, Inc., E.W. Scripps Company, Sinclair Broadcast Group, Inc., and TEGNA, Inc. The heart of the present disputes concern whether the attorney-client privilege protects 6,893 documents withheld from discovery.[1] The parties disagree on essentially two issues.
First, they disagree as to what information Federal Rule of Civil Procedure 26(b)(5) requires a privilege claimant to provide that “will enable the opposing parties to assess the claim” of privilege? Put more specifically, Defendants argue that the information they provide need not be tethered to the elements of the privilege claimed. This dispute is a question of law—Defendants mostly do not disagree with Plaintiffs’ descriptions of their log entries.
*2 Second, the parties disagree as to what the appropriate remedy is for deficient log entries. Plaintiffs seek production of documents, and they adamantly oppose amendment of Defendants’ privilege logs. Defendants, in contrast, seek permission to amend any deficient log entries.
Plaintiffs group their challenges related to attorney involvement into three categories:[2]
Summary of the Special Master's Findings and Recommendations
The Special Master, confronted here with 6,893 withheld documents in which Defendants assert attorney-client privilege but supply no information or insufficient information about attorney involvement, finds that Defendants, with almost no exceptions, have not supported their assertions of privilege. Accordingly, the Special Master recommends the Court order Defendants to produce virtually all of the documents corresponding to the deficient log entries asserting attorney-client privilege.[3]
For reasons set forth below, the Special Master further finds that no Defendant satisfied its assertion of work product protection and, in almost every instance, save 16 documents, has failed to support its assertions for an exception to waiver. The following table summarizes the Special Master's recommendations by Defendant.
Procedural History
A. Law of the Case
The law of the case is laid out in this Court's Memorandum Order and Opinion, which accepted in full the Special Master's Report and Recommendation No. 1. See In re Local TV Advert. Antitrust Litig., 2024 WL 165207, at *5 (N.D. Ill. Jan. 16, 2024), aff'ing Local TV Advert. (R&R No.1), 2023 WL 5956851 (N.D. Ill. July 28, 2023).[4] Report and Recommendation No. 1 included a detailed analysis of Seventh Circuit law on attorney-client privilege, the work product doctrine, and the common interest exception to waiver. It identified and discussed the elements of the privilege and the protection, and addressed the burden a privilege claimant bears in establishing a claim of privilege or protection. The Special Master eventually applied this law to over 700 documents Defendants withheld primarily claiming attorney-client privilege. The Special Master provided a written analysis of each of the 700 log entries and related documents. The Special Master provided this level of detail to give the parties a blueprint as to his understanding of the applicable law.
For the purposes of this Report and Recommendation No. 3, the Special Master incorporates and relies on the interpretations of law, findings of fact, and recommendations as stated in Report and Recommendation Nos. 1 and 2, which the Court accepted in full on Jan. 16, 2024 and Feb. 2, 2025.
B. History of the Parties’ Meet-and-Confer Activities
Defendants provided Plaintiffs with their privilege logs on January 31, 2022. Sinclair and TEGNA identified the attorneys in their individual log entries with notations, such as “ESQ” and “***.” Apparently contemporaneously with supplying Plaintiffs their original logs, Meredith, Raycom, Scripps each provided Plaintiffs with a separate document that listed their attorneys, which lists they apparently updated, while Nexstar first identified its attorneys for
Plaintiffs on April 13, 2022. (Hereinafter “Attorney Lists”).[5] These four Defendants did not identify the attorney in each log entry.
As the parties began to meet-and-confer, the Plaintiffs promptly asked Defendants to cure their log entries in which the attorney-client privilege was asserted but no attorney was named or insufficient information about the attorney's involvement in the communication was provided.
Defendants responded, not with the requested factual information, but with citations to case law to justify their opinions and responses that they need not provide additional information about attorney involvement.[6] Notably, each Defendant amended its privilege logs at least once and two Defendants did so more than once. The parties submitted “agreed upon” privilege logs for this Report and Recommendation to the Special Master on July 29, 2024, but those logs still contain the deficiencies that Plaintiffs challenge here.
The following table summarizes the most significant, but not all, aspects of those exchanges.
C. Background of this Report and Recommendation
Plaintiffs filed motions to compel production of documents against Meredith, Nexstar, Raycom, Scripps, Sinclair, and TEGNA on September 1, 2022,[7] and a supplemental motion to compel production of documents against TEGNA on March 17, 2023.[8] Plaintiffs’ motions challenged the privilege claims of the six Defendants on numerous grounds.[9] This Report and Recommendation focuses on the following grounds: “Failure to Identify an Attorney;” “Non-Specific Attorney Only in Description;” and “Attorney Only in Description, Not To/From.”[10]
Although all Defendants filed opposition briefs, none of them submitted factual information in any form addressing the issues raised by Plaintiffs during the meet-and-confer process or in Plaintiffs’ motions to compel. Plaintiffs filed a reply memorandum in support of their motions. The briefing on these motions cumulatively totaled 21 briefs. In addition, the parties filed three memoranda and sent a number of emails to the Special Master. In one of those memoranda, Defendants explained that “only if and when there is a judicial determination that Defendants’ log are deficient, that it would make sense to undertake additional burden of supplementing or amending their log entries beyond what they have already provided.”[11]
*5 The filing of Plaintiffs’ motions to compel did not terminate the parties’ negotiations about the privilege log entries here at issue. Plaintiffs continued to meet and confer with TEGNA from the filing of their Motion to Compel No. 14 on September 1, 2022, until March 2023, when Plaintiffs filed an additional motion to compel, numbered 14-A, against TEGNA. In addition, as discussed in detail below, the other Defendants resumed meeting and conferring with Plaintiffs in the Spring of 2024,[12] which negotiations they continued through the Summer of 2024. Indeed, Sinclair and Raycom continued negotiations with Plaintiffs through the Fall of 2024.
On August 8, 2024, the Special Master noted that Meredith's and Raycom's privilege logs appeared to assert privileges on behalf of a third party. These Defendants were requested to provide an affidavit from the third party as to whether the third party was asserting a privilege over the withheld documents.[13] At that time, the Special Master also requested all Defendants to review their log entries to determine whether they, too, asserted privilege claims that belonged to a third party.[14] Meredith submitted an affidavit to the Special Master on August 22, 2024, from the third party, Fox Affiliates Association, which addressed a number of Meredith's documents.[15] No other affidavits or declarations were submitted.
Then, in December 2024, the Special Master asked Meredith, Raycom, Scripps, and Sinclair, all of whom claimed an exception to waiver for sharing documents with a third party trade association, to submit the relevant documents for in camera review.[16] The Special Master was concerned about the possibility that these Defendants’ insufficient log entries could result in the disclosure of client confidences that other members of the trade association had not agreed to disclose. Accordingly, the Special Master directed Defendants to “highlight[ ] [ ] the portions for which protection is sought or a note indicating [why] the party believes that the entirety of a document should be protected.”[17] These Defendants provided the documents as requested.
The parties also conferred in June and July 2024 to reach an agreement as to the precise log entries in dispute for this Report and Recommendation. Once they reached their agreements, the parties submitted to the Special Master on July 29, 2024, “an excel document containing the parties’ agreed R&R No. 3 logs.” (Hereinafter “Agreed to Privilege Logs”).[18]
In preparing this Report and Recommendation, in addition to the briefs, which included voluminous exhibits of materials the parties exchanged during the meet-and-confer process, the Special Master also considered:
- *6 6,893 privilege log entries in the privilege logs of the six Defendants;[19]
- four Attorney Lists of Meredith, Nexstar, Raycom, and Scripps;
- transcript of Status Hearing/Motion Hearing on August 29, 2022 (ECF 751);
- Third Amended Complaint (ECF 556);
- Stipulation and Order Regarding the Production of Documents and Electronically Stored Information (“ESI Order”) (ECF 442) and
- annotated privilege logs that Plaintiffs provided to Defendants during the meet-and-confer process.[20]
I. Legal Standard
A. Law of the Case
As Chief Judge Kendall stated: “There is no mystery to what information is necessary to meet the burden of asserting [the attorney-client] privilege.”[21] Review of Defendants’ arguments in the instant motions suggests, however, that another review of applicable law seems to be in order. The Court's ruling can be summarized as requiring a privilege claimant to show that:
- the client requested legal advice;
- the client disclosed confidence(s) as part of seeking that advice; and
- the attorney's response reflects or reveals the client's confidences.
Of course, the foundational step to establishing an attorney-client privilege is to show a communication took place between an attorney and a client.
The Court's decision was based on sixty-year-old case law in which the Seventh Circuit en banc adopted Dean Wigmore's elements of the attorney-client privilege.[22] The Court pointed out the “attorney-client privilege protects ‘confidential communications’ made by a client to her lawyer ‘[w]here legal advice of any kind is sought ... from a professional legal advisor in his capacity as such.”[23] The Court also held that, although the “privilege is deemed generally to apply only to communications by the client, statements made by the lawyer to the client will be protected in circumstances where those communications would reveal the substance of a confidential communication by the client.”[24] “The thrust is whether the lawyer's statements reveal client confidence or reveal that legal advice was sought and obtained.”[25]
*7 The Court also made clear that the existence of one element of a privilege may not be inferred from the existence of another. Thus, the fact that an attorney communicated with a client does not permit an inference that the client had sought legal advice. The Court explained:
To attribute a lawyer's statements to clients without the requisite showing that it was either in response to a request for legal advice or reveals client confidences would expand attorney-client privilege beyond its narrowly construed scope. ... But a privilege determination cannot be so speculative and far reaching. That is precisely why the asserting party has the burden to provide facts and context to tether the privilege claim.[26]
Moreover, the Seventh Circuit has repeatedly noted that the inquiry into the applicability of the privilege is “highly fact specific.”[27] This Court noted, in the context of work product protection, that it would look at “the factual context of the document asserted to be privileged.[28] The party claiming privilege “must provide sufficient facts to establish the existence of the privilege.”[29] Factual support is required “for each and every element of the claimed privilege.”[30] As a practical matter, it is worthwhile noting that a privilege dispute is often a factual dispute regarding whether the claimant's description accurately characterizes the withheld document.[31]
Conclusory statements of law by counsel are not sufficient—“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.”[32] In Report and Recommendation No.1, the Special Master found Defendants’ repeated use of the phrase “legal advice” in their log entries was insufficient, standing alone, to support to the claimed privilege exists.[33] The Court, agreeing with that finding, remarked: “ ‘Unfortunately, ... saying so doesn't make it so.’ ”[34] Put differently, ipse dixit does not fulfill the burden of establishing existence of a privilege.
*8 The privilege analysis is more complicated when the client is a corporation. This is so “because in-house attorneys increasingly serve in multiple capacities, including business advisor, strategist as well as legal advisor.”[35] Some district courts hold that “communications by in-house counsel are presumed to be business advice, not legal advice.”[36] Of course, parties asserting privilege have the opportunity, indeed the burden, to show the presence of legal advice rendering it unnecessary to even consider whether a presumption exists.
Chief Judge Kendall also addressed the related issue of when a document contains a “mix of business and legal advice.”[37] The Court held that “the document is only protected if the primary purpose behind its creation is legal in nature.”[38] Recognizing the difficulty between distinguishing legal and business advice in attorney communications to corporate employees, the Court held that the key is whether the communication reveals “client confidences;”[39] if the communication contains no such information, it is not legal advice.
B. The Parties’ Arguments
The parties dispute whether privilege log entries that assert attorney-client privilege must contain information about the elements of that privilege. Their dispute centers on the text of Federal Rule of Civil Procedure 26(b)(5), which reads:
(5) Claiming Privilege or Protecting Trial-Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
More specifically, the parties disagree as to what Rule 26(b)(5) requires when directing the privilege claimant to “describe the nature of the documents ... not produced ... in a manner that ... will enable other parties to assess the claim.”
Plaintiffs argue that Rule 26(b)(5) must be read in conjunction with the elements of the privilege claimed, here the attorney-client privilege. They point out that not all communications between an attorney and client are privileged. In their motions against each Defendant, Plaintiffs recite the criteria the Seventh Circuit requires for the privilege to attach:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.[40]
They argue that Defendants bear the burden to establish each element of the privilege for each document Defendants withheld, in whole or in part.[41] Throughout Plaintiffs’ briefs, Plaintiffs insist that Defendants’ log entries must provide specific, factual information and that generalizations or conclusions are insufficient.[42]
*9 Defendants disagree. They argue that the text of Rule 26(b)(5) does not itemize any information to be included in log entries. Meredith and Raycom expressly argue that the information required to satisfy Rule 26(b)(5) is not tethered to the elements of the claimed privilege—“Plaintiffs’ focus on the undisputed standard for applying the attorney-client privilege” is misplaced—the relevant standard for the present dispute “is whether [the] privilege log complies with the Federal Rule of Civil Procedure 26(b)(5) and the ESI Order.”[43] The positions of the other Defendants appear to be in line with Meredith's and Raycom's argument, as all argue Rule 26(b)(5) is a stand-alone Rule.[44] No Defendant, however, cites case law in support of this reading of Rule 26(b)(5).[45]
Throughout their briefs, Defendants appear to contend that statements of litigation counsel in log-entry “Descriptions” satisfy their obligations under Rule 26(b)(5). Some make this argument expressly in their briefs. For example, in response to Plaintiffs’ argument that many of Raycom log entries appear to concern business matters, Raycom argues that Plaintiffs’ speculation “is insufficient to overcome Raycom's good-faith assessment that the documents are privileged.”[46] In another less explicit contention, Scripps argues, by way of example, that its “Description” for Doc. No. 68, which reads “Confidential presentation given by Dave Giles to Scripps employees providing Dave Gile's legal advice regarding regulatory compliance”—provides sufficient information for Plaintiffs to assess the Scripps’ privilege claim.[47] All six of the Defendants include in their log entry “Descriptions” statements by counsel presumably to satisfy Rule 26(b)(5).[48]
C. The Special Master's Interpretation of Rule 26(b)(5)
*10 The Special Master does not agree with Defendants’ interpretation of Rule 26(b)(5) for a number of reasons. As a practical matter, the Special Master is hard pressed to imagine how a party can assess a claim of attorney-client privilege without having information relating to the elements of the privilege. Absent that information, such an “assessment” of whether a privilege properly is asserted practically cannot be made. The gravity of the problem is magnified where, as here, the most basic elements of the attorney-client privilege—the requisite involvement of an attorney—is not supported in the privilege log entry. The problem is most evident in the 1,495 log entries that contain no mention of an attorney.
Nor does the Defendants’ interpretation of Rule 26(b)(5) accord with the law of this jurisdiction. Indeed, the Court in this case held that “the asserting party has the burden to provide the facts and context to tether the privilege claim” to client confidences or legal advice reflecting such confidences.[49] The Special Master notes that, for decades, the law in this jurisdiction has been that the privilege claimant bears the burden to establish each element of the claimed privilege for each document.[50] Courts in this jurisdiction have long provided guidance as to the information required to be provided by the party asserting privilege.[51] Recently, in a dispute involving privilege logs, Magistrate Judge Cole ruled that “the burden is always on the party seeking to invoke the privilege to establish that it applies,” which “means the party invoking privilege has to establish all the elements of the privilege on a document-by-document basis.”[52] The party claiming a privilege instead must “present the underlying facts demonstrating the existence of the privilege.”[53] The allegations should be specific, not generalized or conclusory.[54]
*11 It should be borne in mind, though, that a privilege log is an index.[55] An index may be sufficient to communicate such details as the names of the authors, the recipients, the date the document was created, and the title or subject of the document. It, however, may not be capable of capturing or communicating information such as context, purpose, or relationships among the communicants. To establish the necessary foundation for the claim of privilege, the proponent should provide “[o]ther required information, such as the relationship between ... individuals not normally within the privileged relationship, is then typically supplied by affidavit or deposition testimony.”[56] “Compliance with Rule 26(b)(5)(A) may be accomplished by providing a privilege log, although it may be necessary to supplement the privilege log with affidavits or declarations if the basis for the claim of privilege cannot be adequately assessed from the privilege log.”[57]
A privilege log may be the first, but not necessarily the last, step to support an assertion of a privilege. The choice to begin the process with a privilege log, does not preclude the privilege claimant from supplementing its privilege log with other information in other formats. For example, before or during the meet-and- confer process, the privilege claimant can provide lists identifying the names, job titles, tenure, etc., of the attorneys who appear in its log and additional information may be supplied during the meet-and-confer process. Indeed, Rule 26(b)(5)(ii) anticipates the exchange of additional information during this process.[58] If motions to compel are filed, they provide the privilege claimant with another opportunity to additional factual information to support the claimant's assertions of privilege.
The Special Master notes that Rule 26(b)(5) also imposes a dispute-resolution process on the parties, and this is one of the most important aspect of this Rule. Examining Rule 26(b)(5) in a historical context, one should start with 1983 when the Civil Rules Advisory Committee first reported that litigants “used discovery tools as tactical weapons,” which “impose[d] costs on an already overburdened system and impeded the fundamental goal of the ‘just, speedy, and inexpensive determination of every action.’ ”[59]
To curb these abuses, the Advisory Committee sought to shift the “primary responsibility for conducting discovery”[60] onto the litigants. Rule 26(g) was adopted in 1983,[61] to impose affirmative duties on litigants when responding to discovery requests. Pursuant to Rule 26(g)(1), attorneys were obligated to conduct a “reasonable inquiry” when responding or objecting to discovery requests.[62] As a result, litigation counsel specifically are obligated both to conduct such inquiry into the factual basis of its own responses or objections, and to make a “reasonable effort to assure that the client has provided all the information and documents available to [it] that are responsive to the discovery demand.”[63]
*12 Rule 26(g) required that “every discovery ... response, or objection should be grounded on a theory that is reasonable under the precedents or a good faith belief as to what should be the law.”[64] The mechanism to ensure compliance was the signature of litigation counsel to certify these affirmative duties had been fulfilled.[65]
In 1993, the Advisory Committee tackled for the first time the issue of abusive privilege claims, specifically blanket privilege claims. The changes to the Rule were part of a decades-long attempt to curtail abusive discovery practices by litigants, including the “evasion or resistance to reasonable discovery requests.”[66] The 1993 Advisory Committee Notes emphasized that the privilege claimant must “provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.”[67]
Rule 26(b)(5) creates a procedure for the parties to resolve their privilege disputes and sets a performance goal. The Rule was animated in significant part by concerns about judicial economy. To that end, the Rule required litigants to attempt to resolve privilege disputes among themselves before seeking judicial intervention.[68] The Advisory Committee notes the amended rule sought to “reduce the need for in camera examination of the documents” by the court.[69] Once the parties are at an impasse, however, they move beyond the boundaries of Rule 26(b)(5).
To be sure, Rule 26(b)(5) does not itemize the information a privilege claimant should provide the opposing parties, although this is not surprising given that the Rule applies all privileges, e.g., attorney-client, doctor-patient, spousal privilege, etc. The Rule also does not mention privilege logs, let alone require their use.
*13 For Defendants to interpret Rule 26(b)(5) as limiting the information they need to provide to Plaintiffs, they arguably resurrect the very discovery abuses the Rule sought to eliminate. For seven months, Defendants appear to have engaged in the meet-and-confer process, but they provided Plaintiffs with little or no additional information. The record shows that Defendants did not operate as if their privilege logs were the beginning of an iterative process designed to allow the parties to resolve their privilege disputes without judicial intervention. Rather, Defendants functioned as self-appointed gatekeepers assessing the merits of Plaintiffs’ complaints about the sufficiency of their log entries. For example, Defendants provided Plaintiffs with no additional information, such as the full job titles and roles of Defendants’ attorneys. Nor did any of the Defendants clarify which law firm represented which Defendants when and for what subject matter. Nor did they provide information such as the full job titles and roles of Defendants’ employees listed on the privilege logs. Rather, Defendants cited and argued case law. Defendants easily could have provided this information and, had they done so, so much time could have been saved by the parties, the Court, and parties waiting in line on the Court's calendar.
Defendants could have, but did not, supplement their privilege log entries with additional information through lists, narratives, affidavits, explanations of relationships, etc. It bears emphasizing that Defendants are in sole possession of the facts related to their withheld documents; neither the Plaintiffs nor the Special Master have access to any of this information. Defendants alone are able to supply the particularized facts to support their privilege assertions.
To this point, the Special Master has addressed the sharing of information during the meet-and-confer process. The instant motions to compel at issue here presented an additional opportunity for Defendants to have supplied information to support their privilege claims. Each of Plaintiffs’ motions here seeks production of documents. By filing these motions, Plaintiffs did not limit the issue solely to the privilege logs. Plaintiffs made clear that they sought production of the withheld documents. In opposing the pending motions, each Defendant had the opportunity to submit with their opposition briefs facts, not opinions of litigation counsel, demonstrating why the asserted privilege applied to the documents they withheld. For reasons known to Defendants, they elected not to do so.
II. Lack of Information in Log Entries as to Attorney Involvement
A. The Parties’ Arguments
Plaintiffs make three major challenges to the sufficiency of Defendants’ log entries. Although the parties briefed the three challenges individually, the Special Master finds that the sufficiency of the log entries as to attorney involvement depends on a common denominator. As a result, the Special Master summarizes the parties’ arguments as to each of the three challenges, then discusses why Defendants’ log entries are insufficient regarding attorney involvement.
1. No Attorney in the Log Entry
Plaintiffs challenge 1,493[70] privilege claims of Nexstar, Raycom, and Sinclair, and argue that, in these log entries, Defendants fail to identify any individual attorney involved in the communication for which they claim privilege.[71] Plaintiffs insist that “it is axiomatic that the attorney and her client must be involved in the receipt or transmission of legal advice.”[72] Plaintiffs cite case law for the proposition that “privilege log descriptions that do not specify the attorney from whom advice is sought or rendered are deficient.”[73] The Special Master notes that Defendants do not contest Plaintiffs’ assertion that these 1,493 log entries do not contain the name of an attorney.
*14 Nexstar and Raycom counter by stating the general principle that an attorney need not be party to a communication among employees for it to be privileged. They cite case law in support of this principle, but they do not identify to which privilege log entries the principle applies.[74] Moreover, that principle has no relevance here insofar as no attorney at all is listed. Sinclair's most on-point response to Plaintiffs’ challenge is to argue that the identity of the attorney “is readily discernable by reviewing [the log] entries.”[75]
Plaintiffs challenge two additional log entries in Category 1. At issue are two TEGNA log entries that Plaintiffs fault for failing to identify an attorney who was “acting in a professional capacity as a legal advisor.”[76] TEGNA and Plaintiffs agree that Ms. Elizabeth Kimmel held the titles of “President” and “General Counsel” of Midwest Television, Inc., at the time the two disputed emails were created and sent.[77] Plaintiffs assert that TEGNA needed to provide more information to support its assertion that Ms. Kimmel provided advice in her professional role as a legal advisor, not in her business role.[78] TEGNA countered that Plaintiffs bore the burden of providing support for their challenges, then faulted Plaintiffs for failing to do so. TEGNA cited Crabtree, 2017 WL 4740662 at *2, for the proposition that challenges to log entries are insufficient if they “present[ ] nothing beyond speculation to challenge Defendant's contention that the disputed entries as appropriately designated.”[79] Asserting that Plaintiffs did not provide support that Ms. Kimmel functioned in her business role in the documents, TEGNA urges Plaintiffs’ request for production be denied.
2. Non-Specific Attorneys in Log Entry Description
*15 Plaintiffs challenge 323 privilege claims by Meredith, Nexstar, Raycom, Scripps, and Sinclair, which rest on privilege log entries that refer to non-specific attorneys, such as “Meredith Legal Department” or “Covington & Burling LLP.”[80] These non-specific references appear in the “Description” field of the log entries. Plaintiffs argue that these “vague references” leave Plaintiffs “and the Court ... to guess as to the role and relationship of various individuals,” who appear in the log entry.[81] They argue that, to assess the privilege claim, they need to know the name and capacity of the individuals who gave the advice.[82] Plaintiffs argue that log entries are insufficient under Rule 26(b)(5) if they merely describe the document as, e.g., “Email attachment reflecting legal advice re contract negotiation.”[83] Plaintiffs also express concern that general references to the in-house legal department or an outside law firm may obfuscate that a non-attorney in those offices was the source of the allegedly privileged legal advice.[84]
Meredith, Nexstar, Raycom, Scripps, and Sinclair contend that their non-specific references in their “Descriptions” provide sufficient information to allow Plaintiffs to assess their privilege claims. They argue that not knowing the name of the individual attorney involved does not affect that “the substance of the communication is privileged.”[85] The logic of this argument appears to be that “Plaintiffs cannot dispute that materials referring to advice from a company's “legal department” can be privileged, even if an attorney is not named.”[86] Defendants cite cases in which courts have allowed for non-specific references to attorneys.[87] Several Defendants explain that they omitted attorney names from the log entries because the names were not contained on the face of the withheld document. Scripps states that, for most of its log entries challenged for not including the name of any attorney, “[n]o attorney is discernible from the metadata or the face or content of the documents.” Scripps asserts that the redacted portions of these documents indicate it “received legal advice from its ‘Washington Law firm,’ and briefly describes that advice.”[88] Similarly, Meredith and Sinclair candidly explain they sometimes used non-specific references when the attorney's identity was “unknown” to them; i.e., the attorney name may not appear in the metadata or on the face of the document.[89]
*16 Sinclair also states it uses general terms such as “Sinclair Legal Department” or the name of an outside law firm where the documents “discuss legal advice” and the documents indicate that advice came “from legal” or “per legal” or from a law firm.[90] Sinclair insists such documents do not lose their privilege status simply because the source of the advice is identified generally as the company's in-house legal department or outside law firm.”[91] No Defendant provides information as to whether they conducted additional research to identify these attorneys.
3. Attorney Named in Description But Not in To/From
Plaintiffs challenge log entries in Meredith, Raycom, Sinclair, and TEGNA logs where these Defendants supply an attorney's name in the “Descriptions.” Plaintiffs fault the log entries for providing no information as to how that attorney was involved in the communication. They point out that the metadata fields in these log entries establish that the named attorney was not the sender, author, or recipient of the allegedly privileged communication which prompted Plaintiffs to ask what was the attorney's role?[92] Plaintiffs argue these log entries offer little support that an attorney was substantively involved. They note that many of these log entries appear to concern matters within the regular course of Defendants’ business, such as licensing, mergers, and contract negotiations,[93] which, in turn, suggest that the communications concerned business, not legal, advice.
Plaintiffs also complain that some log “entries baldly state that a document contains ‘legal advice,’ ” but include little additional information about the nature of the advice.[94] Plaintiffs emphasize that courts in this jurisdiction recognize that the “increasing inclusion of attorneys in business discussions and decisions has ‘increased the burden that must be borne by the proponent of corporate privilege claims relative to in-house counsel.’ ”[95]
According to Meredith and Raycom, Plaintiffs’ challenge “necessarily fails” because they “identified the attorney or attorneys giving rise to the privilege claim in [their] ‘Description field,’ ”[96] i.e., their log entries are sufficient as currently written. Sinclair argues that the identity of the attorney involved and that person's role is “readily discernable” by reviewing the document's transmittal email or other documents on the family.[97] TEGNA argues that these challenged log entries are part of “email threads,” which are logged with only the sender and recipient information of the top email; TEGNA also asserts Plaintiffs can identify the role of the attorney if it reviews the redacted email thread it produced.[98] Nexstar does not address this challenge.[99]
4. Attempt to Shift Burden
*17 Meredith, Raycom, and TEGNA argue that Plaintiffs bear the burden to show the attorney involved in a given communication provided business advice.[100] They criticize Plaintiffs for merely speculating that certain communications concerned business advice. Meredith and Raycom posit that such speculation “is insufficient to overcome [their] good-faith assessment that the documents are privileged,”[101] while TEGNA argues Plaintiffs’ “unsupported assertions are simply not enough to get past go.”[102] Meredith and Raycom point out that for the disputed log entries, each contains a description that expressly “indicates that the document reflects legal, and not business, advice of an attorney[.]” (emphasis in original).[103] TEGNA asserts that Plaintiffs did not any provide support to show the attorney involved in the two disputed TEGNA documents functioned in her business role. All three Defendants cite Crabtree v. Experian Info. Sols. Inc., No. 1:16-cv-10706, 2017 WL 4740662 at *2 (N.D. Ill. Oct. 20, 2017) (Weisman, M.J.) for the proposition that the party seeking discovery must provide more than “mere speculation” as to whether the withheld documents contain legal advice as the privilege claimant asserts or business advice.[104]
B. The Special Master's Analysis of the Parties’ Arguments re Challenge Categories
1. Attorney Must Have Communicated with a Client
For each assertion of attorney-client privilege, Defendants, as the privilege claimants, must establish that a communication takes place between a client and its attorney. Usually this task is easily accomplished, because the attorney either is the author or sender of a document or is a recipient of the email.[105] But Plaintiffs challenge of 1,493 log entries for including “No Attorney in Log Entry,” which contain no mention of an attorney—either in the metadata fields, in the manually populated “Description” field, or any other manually populated field. These log entries, thus, provide no information from which the Special Master can find that the communication at issue was between an attorney and client.[106] The same point can be made as to Plaintiffs’ other two challenge categories.[107]
*18 Consider these two examples of log entries, neither of which name an attorney:
These two log entries do not contain any particular facts that an attorney communicated “legal advice” with a client. The Special Master checked Raycom's Attorney's list to verify that the names of Jay Hiett, Kim Spaetti, and Mallory Kiesler do not appear on the list—they did not. The File Names/ Email Subjects do not demonstrate the subject matter is legal in nature; indeed, both appear to concern usual topics of a broadcaster's business. The subject matters supplied by litigation counsel, to wit, Raycom's counsel, describes the subject as “FCC political regulations” while Sinclair's counsel characterizes the subject as “retransmission issues.” Both subjects appear to be matters within the usual business of a broadcasting corporation—neither appear without more information to be legal in nature or predominately legal.
Raycom's log entry notes the withheld document is a PowerPoint for a Webinar, which suggests that a larger, rather than a smaller audience, received the information. This in turn suggests the audience was not receiving information on a “need to know basis.”[108] Sinclair's log entry references a spreadsheet, which undermines that notion that an attorney and client were communicating, although it does not rule it out. The burden is on Raycom and Sinclair to supply factual information demonstrating the document concerned legal, not business advice, and if the advice were a mix, that legal predominated. All these log entries provide the Special Master are affirmations of litigation counsel that the withheld documents “provide” or “reflect a provision of” “legal advice.” These bald assertions are woefully inadequate from parties withholding documents from discovery based on attorney-client privilege.
Nexstar's and Raycom's attempt to counter Plaintiffs’ argument by citing a general principle of privilege, to wit, non-attorney employees may discuss legal advice outside of the presence of an attorney, is unavailing. They provide no information to show the principle applies to any of their log entries. To invoke this principle, they would need to provide factual information demonstrating that an attorney had some relationship to the communication on a legal matter between the non-attorney employees, such that revelation of their communication would “reveal, directly or indirectly, the substance of a confidential attorney-client communication.”[109] Yet neither these Defendants nor any others have made showings to support application of this principle.[110]
*19 The party asserting an attorney-client privilege must provide some factual information that an attorney and client communicated on a legal subject; the facts may appear in the log entry and/or in supplemental information the claimant provides to the “opposing parties.”
2. Insufficient Initial Privilege Log Entries re Attorney Involvement
In Report and Recommendation No. 1, the Special Master discussed what little information Defendants provided about the attorneys who appeared in their privilege logs.[111] In summary, two Defendants only identified the names of their attorneys in log entries, while four Defendants provided separate documents listing their attorneys. None of the six Defendants here provided job descriptions or job titles[112] for their in-house attorneys, whether in their log entries or their Attorney List. They also did not provide information as to when and why they hired the law firms named on their Attorney Lists. In the case of Nexstar, which included on its Attorney List three corporations—Media General, Tribune Media, and Nexstar—Nexstar did not cross reference the law firms listed to the corporation that hired the firm or identify the legal expertise the firm provided.[113] Finally, none of the Defendants supplied any information, whether in their privilege logs or in supplemental documents, explaining when their in-house and outside counsel gave legal as opposed to business advice.
It strikes the Special Master that gathering the information about in-house counsel from the very recent past, for the short Class Period,[114] in the absence of any showing of undue burden or inability from the privilege claimant, appears to be a relatively easy task, could have been easily done, at least as to titles, tenure, major projects worked on, general roles in those projects. Indeed, if there were some undue burden to gather such information, the obligation to so establish was on the party claiming the privilege. Those same factors also suggest that gathering information about outside counsel could have been fairly quickly accomplished. Because such information was not provided, the Special Master is unable to assess the impact of providing such information might have had on the instant motions.
3. Bare Reference to an Attorney in Log Entry
That Defendants supplemented the metadata fields in their log entries with references to “Legal Department,” the name of a law firm, or even a full name of an attorney, is insufficient to support their assertions of attorney-client privilege. As the Special Master observed in Report and Recommendation No. 1, “the bare reference to someone being an attorney is insufficient to establish the attorney's work was primarily legal.”[115]
*20 In using the Attorney Lists provided by Meredith, Nexstar, Raycom, and Scripps, the Special Master realized that the same law firms were listed by more than one Defendant. Although there is no categorical prohibition against a law firm representing multiple clients, either sequentially or simultaneously, Defendants provide no information to illuminate which law firm represented which Defendant, when and for what type of legal expertise. The Special Master found when reviewing the Attorney Lists provided by Meredith, Nexstar, Raycom, and Scripps that they all listed the following three law firms as representing them.
This is not a complete list of overlapping law firms that appear on the Attorney Lists of Meredith, Nexstar, Raycom, and Scripps. Of course, Sinclair and TEGNA did not provide Attorney Lists identifying their attorneys. Thus, the Special Master is unaware whether and to what extent all six Defendants were represented by the same law firms.
Defendants did not provide information as to when the law firms represented each of them. They also did not specify which departments in a given law firm represented them—was a Defendant claiming privilege for documents prepared by the firm's real estate department or tax department for tax purposes? They also did not clarify which predecessor corporation hired the law firm, and again when and for what legal subject? The Special Master is particularly troubled to discover that at least some Defendants claim to be in an attorney-client relationship with counsel hired by a trade association, yet they did not provide information in their log entries, in their Attorney Lists, or in any other material, as to the nature of the representation or make any attempt to establish that an attorney-client relationship existed with the trade associations’ counsel. The Special Master notes the log entries reference the following trade associations, although this is not a complete list: FOX Affiliates Association, National Association Broadcasters, Pearl TV, and Television Operators Caucus, Idaho State Broadcasters Association, Oklahoma Broadcasters Association, South Carolina Broadcasters Association. It appears Defendants claimed to be in an attorney-client relationship with these associations, or with other broadcasting members of the associations, and withheld documents exchanged with these associations or with members as attorney-client privileged.
It may be that the above-listed law firms represented trade or industry associations of which the Defendants are members. If that were true, the information should have been provided to the Plaintiffs and the Special Master. Further, as discussed in more detail below in Section IV. Exceptions to Waiver of Confidentiality, for a Defendant to claim that the in-house counsel at a trade association or a law firm hired by the association is that Defendant's attorney, the Defendant will need to establish that fact. Here, no Defendant has established such relationships.
As examples of the difficulty in assessing the applicability of the attorney-client privilege when the log entry merely conveys a non-specific “Legal Department” or even a named law firm, consider these two log entries in the logs of Meredith and Raycom:
Review of the two above examples makes clear that a mere reference to a legal department or a law firm alone is not sufficient to establish that a privileged client-attorney communication took place.
*21 Another set of examples are the following two log entries that Plaintiffs challenge for only including the name of an attorney in the “Description” but whose name does not appear to the metadata concerning the sender or author or in the fields identifying recipients:
The reference to a named attorney, e.g., Janet McHugh, ESQ., in Sinclair's log entry above, lacks meaning without other information. Did Ms. McHugh represent Sinclair, the local station WGRR-FM, or the lessor seeking a new lease for his or her property?
Crediting TEGNA for identifying Alyzia Ziarno (Nixon) as the attorney on whom it bases its attorney-client privilege claim, the log entry is confusing as to whether Ms. Ziarno is receiving in-house counsel advice in order to conduct a “legal review” of sales or something else. Does such a review involve legal issues? Has TEGNA requested legal advice of Ms. Ziarno? Does the “previously provided legal advice from TEGNA in-house counsel” reflect or reveal any client confidential information? These questions are unanswered in TEGNA's log entries asserting attorney-client privileges.
At bottom, it is the privilege claimant who, by due diligence or through reasonable inquiry, is in the position and has the obligation to ascertain details of its attorney's identity and role in a particular situation, not the party seeking to assess the assertion of privilege.
4. Ipse Dixit of Counsel
In Defendants’ log entries, litigation counsel manually inserted a “Description” of the document. These counsel-inserted “Descriptions” are conclusions, not facts. From looking at Defendants’ arguments, it appears that Defendants believe that statements of their litigation counsel in log-entry “Descriptions” satisfy their obligations under Rule 26(b)(5). This is not true. The Seventh Circuit states “it is universally known that statements of attorneys are not evidence.”[116] As far back as 1975, the Circuit specified that it is “not enough for an attorney to testify to his conclusions.”[117] Although not challenging the integrity of any lawyer, there is no basis to allow the ipse dixit statements of counsel, no matter the level of conviction, to substitute for objective, factual information.[118] Permitting statements of counsel to act as support for invocation of privilege would undermine the purpose and policies underlying Rule 26(b)(5) and decades of caselaw.
For example, see the following log entries of Nexstar, Raycom, and Sinclair, all of which claim attorney-client privilege yet none of which include the name of an attorney:
In these “Descriptions,” the Special Master notes the use of these conclusory phrases:
- “forwarding confidential legal advice re ...;
- “reflecting legal advice re ...;”
- “containing an attorney-client communication for the purpose of providing legal advice regarding...”
The phrase asserting the communication in dispute is an “attorney-client communication” is a conclusion about the ultimate issue in dispute. Phrases describing the document as containing “legal advice” are conclusions of litigation counsel as to the existence of the attorney-client privilege. In essence, Defendants contend that Plaintiffs should accept the conclusions drawn by Defendants’ litigation counsel, and then infer from those conclusions that: (1) an attorney was communicating with a client, (2) the attorney acted in a professional capacity as a legal advisor, and (3) the communication contained or revealed confidential information that the client disclosed to receive legal advice.
The ipse dixit of litigation counsel is insufficient to support the privilege claimed. Indeed, the Court made clear in this case that each element must be independently established; one element cannot be inferred from another.[119] The burden of establishing applicability of a privilege claim starts and finishes with the showing made by the party claiming the privilege.
5. Generic Subject Matters
To be clear, in the above exemplar log entries, Defendants rotate among a collection of generic subject matter phrases to describe the documents in their privilege log entries. The following phrases are listed in approximate order of those that appear most frequently in the log entries in dispute here:
- “contract negotiation;”
- “sale of advertising;”
- “FCC political regulations;” “regulation of political advertising;”
- “human resources” or “employment matters”
- “acquisition issues;” and
- “corporate issues.”
But none of the subjects are clearly and unambiguously legal matters—they may just as likely be business matters or a mix of both law and business. “When there is a mix of business and legal advice, the document is only protected if the primary purpose behind its creation is legal in nature.”[120]
The Special Master finds that none of the subject matter descriptions in these log entries establish that the primary purpose of the documents concerned legal matters, let alone predominantly legal matters.
6. Privilege Claimant's Obligation to Investigate
The Special Master does not accept the explanation that Scripps, Meredith, and Sinclair provide as to why their log entries do not include the name of an attorney—no attorney could be identified on the face of the documents they withheld. Although appreciating the candor, the Special Master finds this is not an acceptable reason for an insufficient log entry. There is a reasonable and legitimate expectation that a privilege claimant will conduct a thorough search before submitting a privilege log.[121]
*23 Beyond the service of the privilege log, once Plaintiffs challenged the log entries during the meet-and-confer process, and certainly once Plaintiffs filed the present Motions to Compel with the Court, Defendants should have searched beyond the four-corners of the documents to ensure the correctness of their privilege assertions and/or made a decision to withdraw their claims of privilege. Notably, none of these three Defendants argue such inquiry would have entailed undue burden or expense.
Thus, the Special Master finds their log entries lack information about attorney involvement and do not establish a sufficient basis for asserting attorney-client privilege.
7. No Burden Shifting to Plaintiffs
The Special Master rejects the arguments of Meredith, Raycom, and TEGNA that Plaintiffs bear the burden of showing that Defendants’ withheld documents contain business, not legal, advice.[122] The burden remains on the privilege claimant at all times to establish the applicability of all of the elements of the claimed privilege or protection, as noted above. This is a well-established law in this jurisdiction.
In fact, the Crabtree court expressly recognized this burden.[123] What distinguishes Crabtree from the present case, is that the court in Crabtree found that the privilege claimant “had met its burden” in that it had demonstrated the existence of privilege in its privilege log.[124] The issue before the Crabtree court was whether to grant the motion of the party seeking discovery for in camera review of the documents. The Crabtree court declined to exercise its discretion to undertake such a review given the sufficiency of the privilege log before the court. The issue before the Special Master, however, is whether Defendants’ privilege log entries are sufficient to satisfy Defendants’ burden. The burden remains constantly on Defendants. With respect to the documents here at issue, there is no basis in law or fact to shift the burden to Plaintiffs. It was Meredith's, Raycom's and TEGNA's burden. They could have easily discharged this duty during the meet-and-confer process or with their opposition briefs to Plaintiffs’ motions to compel production of their documents, but none did.
Further, with respect to TEGNA's argument that Plaintiffs, not TEGNA, bear the burden to show Ms. Kimmel acted in her business capacity as the President of Midwest Television as opposed to her role as General Counsel of the company, the Special Master rejects TEGNA's argument. The burden to establish Ms. Kimmel functioned in her legal capacity as a legal advisor rested on TEGNA alone.
*24 Accordingly, the Special Master finds TEGNA's log entries for Document Nos/140/103 and 141/104 are insufficient under Rule 26(b)(5).
III. Defendants’ Assertions of Work Product Protection
A. The Parties’ Arguments
Nexstar, Raycom, Sinclair, and TEGNA assert Work Product Protection in a number of their log entries that Plaintiffs challenge. These assertions are in addition to ones for the attorney-client privilege. In Report and Recommendation No. 1, the Special Master summarized the arguments of Nexstar, Sinclair, and TEGNA[125] concerning the applicability of the work product doctrine and made findings and recommendations as to those arguments.[126] The summary of the parties’ arguments here on work product protection in connection with the pending motions is set out below. 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 gave instructions to create the documents and/or (2) do not identify a particular existing or anticipated litigation.[127]
*25 Nexstar and Sinclair argue that the doctrine protects “the party not just the attorney,” and, thus, the fact that documents were prepared by a non-attorney “does not, in itself, remove the documents from the scope of the work product privilege.”[128]
TEGNA makes three arguments. First, it argues there is no legal authority that requires identification of specific litigation when invoking the work product doctrine.[129] Next it argues many of its log entries are sufficient in that they identify “the DOJ or class action lawsuits as the subject of the communication.”[130] Finally, it asserts that “litigation need not be imminent” for the doctrine to attach. TEGNA argues that “documents and investigative reports will be protected so long as the ‘primary motivating purpose’ behind their creation was to ‘aid possible future litigation.’ ”[131] TEGNA also argues in its supplemental brief that the work product doctrine “applies to attorney-led investigations when the document at issue can fairly be said to have been prepared or obtained because of the prospect of litigation.”[132] It then asserts a “Work Product Compilation Privilege” for two documents. Plaintiffs object that no such “privilege” exists.[133]
B. Law Regarding the Work Product Doctrine
Report and Recommendation No. 1 detailed the law of this jurisdiction regarding the work product doctrine.[134] The purpose of the work-product doctrine is to “protect[ ] parties from sharing their materials developed in the present case” and to “hide internal litigation preparations from adverse parties.”[135] Particularly relevant here is the determination in Report and Recommendation No. 1 that: “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.’... At times, though the work product doctrine may apply to litigation that is related to the present case.”[136]
*26 In support of its opposition, TEGNA cites Binks Mfg. Consent Order. v. Nat'l Presto Indus., Inc. 709 F.2d 1109, 1119 (7th Cir. 1983) and Sandra T.E. v. South Berwyn School District, 600 F.3d 612, 622 (7th Cir. 2010). Significantly, in Binks, 709 F.2d at 1118, the Court held that “[t]he mere fact that litigation does eventually ensue does not, by itself, cloak materials ... with the work product privilege; the privilege is not that broad.” As the Seventh Circuit, quoting Binks, later stated “we look to whether in light of the factual context ‘the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” (emphasis supplied).[137]
When citing Binks, the Seventh Circuit made clear in Logan v. Commercial Union Ins. Consent Order., 96 F.3d 971, 976-77 (7th Cir. 1996), that the important consideration is whether the “materials [were] prepared because ‘some articulable claim, likely to lead to litigation ... ha[s] arisen.’ ”[138] The Binks Court quoted Wright & Miller for the proposition that “the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.”[139]
As noted below, these necessary foundations for upholding claims of work product protection are almost completely lacking here in the presentations by the Defendants in both the privilege logs and in opposing the motions to compel production of the withheld documents. The case law must be read in conjunction with the ESI Order (ECF 442) in this case. The ESI Order specified in ¶ 9.8 that “work product created for or in anticipation of this litigation or the related DOJ investigation” are “presumptively excluded from the privilege logs.” The Consolidated Amended Complaint for the current class action was filed on April 3, 2019 (ECF 223).[140] The “related DOJ investigation” is the investigation the DOJ announced publicly on July 27, 2018.[141] It thus follows that work done (and dated) before July 27, 2018, presumptively is not created for or in anticipation of the current class action or the related DOJ investigation and therefore not subject to work product protection.[142]
*27 The Special Master finds no information in the privilege logs or in Defendants’ briefs showing that any Defendant even asserted, let alone established, an earlier date as to when the Defendant “anticipated this current class action” or the “related DOJ investigation.” Thus, the Special Master applies the date of July 27, 2018, as the cut off for finding documents are presumptively not protected by the work product doctrine.[143]
In sum, the Special Master here, as in Report and Recommendation No. 1, examines whether a Defendant seeking work product protection has established that:
The party asserting work product protection bears the burden of showing it applies and must do so on a document by document basis.[146] Although Rule 26(b)(3) does not specify the information to satisfy these elements, case law in this jurisdiction provides significant guidance:
- In applying this standard, the court ‘looks to ... the factual context’ in which the document was created.[147]
- Blanket claims of privilege or conclusory assertions are insufficient to carry this burden.[148]
- Documents created in the ordinary course of business are not privileged under the work product doctrine. “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.”[149]
The Special Master takes no issue generally with the proposition that work product protection “extends to documents prepared by non-attorney representatives of the client, ... regardless of whether the representative is acting for the lawyer.”[150] The applicability of the protection, however, “depends on the motivation behind its preparation, rather than the person who prepares it.”[151]
C. Special Master's Analysis of Log Entries
Nexstar argues there is no rule requiring it to identify the specific litigation in its log entries. Although that statement literally is correct, as a practical matter, the failure to identify the litigation impedes its ability to show the litigation was anticipated. Nexstar also argues that the work product doctrine applies to documents prepared by non-attorneys. Again, this statement as a general principle is correct. But this principle is the beginning, not the end, of the inquiry. It was Nexstar's obligation to provide the factual context to support that documents prepared by non-attorneys were prepared “in anticipation of this litigation” or the “related DOJ investigation.” Nexstar did not make any such showing in its log entries, nor did it provide additional information during the meet-and-confer process or with its opposition brief. The same can also be said of Raycom, Sinclair, and TEGNA.
Another issue concerns log entries that assert work product protection to documents described as “Legal Holds.”[154] Stating that there is a “Hold,” on its own, however, is not sufficient to discharge Defendants’ burden. Defendants must also provide factual information to show the documents were created “in anticipation” of the class action or the “related DOJ investigation,” and that they were created “because of” this lawsuit or “the related DOJ investigation.”
In sum, no Defendant has established the necessary support for their assertions of work product protection at issue here. Indeed, Sinclair's claim of work product protection for 763 documents dated prior to July 27, 2018, is dramatic and represents a troubling lack of attention to the law of work product protection in the Seventh Circuit and the ESI Order in this case.
D. Special Master's Recommendations
The Special Master makes the recommendations based on the date of the withheld document.
1. Log Entries Referring to Documents Dated Before July 27, 2018
The Special Master finds the log entries listed below are dated before the current class action or the related DOJ investigation announced on July 27, 2018, and are thus presumptively not documents created “in anticipation of litigation.”[155] Further, the Special Master finds that neither the log entries nor any supplemental information provided by contain factual information to support an assertion that the withheld documents were created “because of litigation” or because “some articulable claim, likely to lead to litigation, [has] arisen.” Rather, the log entries suggest documents created in the usual course of business. The burden was on Defendants to demonstrate “anticipation of litigation,” and they failed to do so. Accordingly, the Special Master finds that Defendants failed to provide sufficient information in the following log entries to support their assertions of work product protection and recommends production of the documents:
*29 Nexstar
Nexstar-Privilege-Log-008004 11/18/2015Nexstar-Privilege-Log-008003 11/18/2015Nexstar-Privilege-Log-000139 6/13/2017Nexstar-Privilege-Log-007257 6/14/2017Nexstar-Privilege-Log-005642 9/25/2017Nexstar-Privilege-Log-005640 9/26/2017Nexstar-Privilege-Log-005400 5/10/2018
Raycom
GMG_PL_000503 7/16/2014GMG_PL_000669 4/20/2016GMG_PL_000691 10/31/2017TEGNADoc. No 57 9/29/2017Doc. No. 504 3/19/2018
Sinclair
Sinclair asserted Work Product Protection in 764 log entries. Of those entries, only one entry concerned a document that post-dated July 27, 2018. The other 763 log entries refer to documents dating as far back as 2013, 2014, 2015, 2016, 2017, and 2018. All Sinclair log entries that predate July 27, 2018, presumptively do not support Sinclair's assertions of Work Product protection. The one log entry that concerns a document that post-dates July 27, 2018, is discussed infra Exhibit C, Chart 4, at 25.
2. Log Entries Referring to Documents Dated on or after July 27, 2018
As to those few log entries that pertain to a document dated on or after July 27, 2018, the Special Master reviewed the documents in camera. The documents reviewed were:
• Nexstar-Privilege-Log-005088
• Sinclair MDLSBGTV-036864
• TEGNA Document Nos. 642, 591, 592, 522, 314, and 719.
The Special Master, upon review of each of these documents, made findings of facts and recommendations as to each. These findings and recommendations may be found in Exhibit B, Chart 1 (Nexstar), at 1; Chart 2 (TEGNA), at 3. The Special Master's findings and recommendations for Sinclair's document, for which Sinclair asserted both Work Product Protection and an exception to waiver, can be found in Exhibit C, Chart 4, at 25.
In summary, the Special Master found the documents on their faces did not support Defendants’ assertions of work product protection. Accordingly, the Special Master recommends production of these documents.
IV. Exceptions to Waiver of Confidentiality
Plaintiffs challenge 87 log entries of Meredith, Raycom, and Sinclair arguing that, although the log entries assert the attorney-client privilege,[156] the entries reveal the documents were disclosed to third parties, which disclosure waives the asserted privilege.[157] Defendants responded that disclosure to these third parties did not waive the privilege because they and the third parties shared a common legal interest.[158]
*30 The parties’ arguments focus solely on the applicability of the “Common Interest” exception to waiver to these 87 log entries. The parties do not address what arguably is a second exception of waiver, referred to here as the “Joint Attorney” exception to waiver.[159] Yet review of the disputed log entries reveal two different fact patterns, one to which the Joint Attorney exception better applies than the Common Interest exception. In brief, the Common Interest exception applies when two parties are each represented by counsel and seek to advance a common legal interest. The Joint Attorney exception applies when one attorney represents multiple clients to advance a matter of common interest to all of them.[160] For reasons discussed below, the Special Master also considers the latter exception, although not raised as such by the parties.
A. Common Interest Exception to Waiver
In Report and Recommendation No. 1, the Special Master set forth the law of this jurisdiction applicable to the Common Interest Exception to Waiver.[161] In sum, the Common Interest exception allows attorneys who represent separate clients to share otherwise privileged information to coordinate their legal strategies without waiving privilege.[162] Application of this exception to waiver requires the party claiming the exception to establish that “(1) parties [undertook] a joint effort, (2) with respect to an identical legal interest, as opposed to a business or rooting interest, and (3) [that] the withheld communications [were] made to further the foregoing ongoing legal enterprise.”[163] As noted, this exception applies only to common legal interests.[164] Shared business, commercial and financial interests do not trigger this exception.[165] Further, the party claiming this exception to waiver must establish that the parties “formed a common strategy” to advance their common legal interest.[166] Importantly, communications directly between clients outside of the presence of the attorney generally will waive this exception and destroy the confidentiality.[167] Finally, the burden rests on the party asserting the exception to demonstrate it applies.[168]
*31 While “[t]he common interest exception applies both to the attorney-client privilege and the work product doctrine... [it] does not create an independent ground for asserting a claim of privilege against discovery.[169] It merely extends the scope or coverage of the otherwise existing privilege.”[170] Thus, if there is insufficient showing of attorney-client privilege or work product protection, then there is no need to consider the asserted common interest exception to waiver.
1. The Parties’ Arguments re Sinclair's Assertions of Common Interest With Other Corporations
Plaintiffs argue that, although a number of Sinclair log entries assert the common interest exception to waiver, Sinclair does not provide information sufficient to establish this exception applies.[171] Plaintiffs fault Sinclair's log entries for not identifying the specific attorneys involved, not identifying the entity each attorney represents, not specifying the common legal interest shared by the parties and not demonstrating an “ongoing common enterprise.[172] Plaintiffs particularly object that the log entries refer to routine business matters, e.g., “station management issues,” which do not qualify as “common legal interests.”
Sinclair responds that Plaintiffs have sufficient information under Rule 26(b)(5) to evaluate Sinclair's claims of the common interest exception, if only Plaintiffs would review “the full set of information available to them,” including the redacted document produced alongside of the log entry.[173]
2. The Special Master's Findings
a. Sinclair failed to demonstrate a shared identical legal interest.
*32 Sinclair states the legal conclusion that it and the other named corporation share a “common legal interest.” Sinclair also describes in the privilege logs the subject matter of each withheld document, relying on 10 generic terms: “licensing issues; “contract issues;” “joint venture issues;” “regulatory compliance issues;” “advertising issues;” “potential acquisition issues;” “government investigations;” “litigation management;” “corporate governance issues;” or “programming issues.” None of these generic subject matters provide sufficient information to identify the “common legal interest” Sinclair shared with the named corporation. Nor do they provide information sufficient for the Special Master to ascertain whether Sinclair and the other corporation were a joint enterprise, and if so, what that enterprise was. Indeed, these subject matter Descriptions describe business activities in which one would reasonably expect broadcasting companies to engage. Asserting “common legal interest” without more information or explanation is little more than a conclusory assertion by counsel and therefore insufficient to meet one of the necessary and fundamental requirements of the common interest exception. Accordingly, the Special Master finds that Sinclair failed to carry it burden to establish it shared a “common legal interest” with another corporation, which was advanced through a joint enterprise.
b. Sinclair failed to establish that communications occurred between counsel.
Direct communications of otherwise privileged information among clients negates the Common Interest exception to waiver. Eleven of the log entries identify the sender and recipients of emails, but none of the individuals are attorneys, as none have an “ESQ.” after their names or any other indicator in the privilege log that either sender or recipient was an attorney.[176] The six other log entries contain no information as to who was the author and who was the sender or recipients of the documents. Thus, the log entries do not establish that communications were shared only among attorneys. Rather they show they were shared with non-lawyers, which vitiates the application of this exception to waiver.
c. Sinclair failed to demonstrate that two or more attorneys represented separate clients.
This exception to waiver applies if the entities with a common legal interest are represented by their own counsel. Yet most of those Sinclair's log entries, which do identify attorneys, only identify only one attorney; such entries do not qualify to invoke this exception. A couple of Sinclair's log entries contain two attorneys’ names, but Sinclair fails to identify the clients those attorneys represent.
Given the foregoing findings, even had Sinclair demonstrated the applicability of a privilege or protection, the Special Master finds that Sinclair has failed to carry its burden to demonstrate the Common Interest exception to waiver applies to these 17 log entries.
B. Joint Attorney Exception to Waiver
Meredith, Raycom, and Sinclair[177] assert the Common Interest exception to waiver in the context of communications with counsel of trade associations, such as the National Association of Broadcasters (“NAB) and Fox Affiliates Association, etc. They each respond to Plaintiffs’ challenges by explaining the fact pattern at issue in these log entries, to wit, that counsel for a trade association provided legal advice to its members/clients.[178]
*33 Defendants’ allegations in their log entries, however, do not align with the elements necessary to demonstrate the Joint Attorney exception to waiver applies. This exception applies when two or more persons jointly consult an attorney about a situation in which the parties share a common interest,[179] and the parties agree to share the information relevant to their common interest with each other and the attorney. The Joint Attorney exception to waiver extends the privilege to cover this sharing of information among each other, while maintaining the privilege as to outsiders.[180] The interest in common must be a legal interest, and it must sufficiently overlap with the interests of the other parties so that the one attorney may ethically represent all parties with “candor, vigor, and loyalty.”[181] The mere agreement of parties to be jointly represented by an attorney is insufficient to establish the existence of a “common legal interest.”[182] Importantly for resolution of the present privilege disputes, one co-client cannot waive privilege for the other co-clients; “waiving the joint-client privilege requires the consent of all joint clients.”[183] However, one co-client may waive the privilege for its own communications with the attorney.[184]
The record Defendants place before the Special Master lacks sufficient information to make a factual finding that one attorney jointly represented Defendants and any other association members as co-clients.[185] For example, Defendants do not provide information establishing that:
- they were members of the identified trade associations;
- the dates of membership in the organizations;
- the role of in-house counsel for the trade association, as such counsel often serves as corporate counsel for the association, not as counsel to members;
- engagement letters with outside counsel were entered into by the trade association; and[186]
- agreements were entered into as to the scope of the joint representation of the co-clients.[187]
Initially, the Special Master requested those Defendants claiming an exception to waiver for communications with a third-party trade organization request the trade organization to submit an affidavit or declaration stating whether the organization wished to maintain a privilege and, if so, state the basis of it in line with the law of this case.[188] Meredith provided a declaration of Mike Vaughn, Chair of the FOX Affiliates Board of the FOX Affiliates Association, dated August 21, 2024. Mr. Vaughn reviewed and commented on documents that Meredith had withheld as privileged.[189] Other than this affidavit, no others were submitted to the Special Master.
The Special Master, in December 2024, requested that Meredith, Raycom, and Sinclair submit for in camera review the documents for which they asserted an exception to waiver with respect to trade associations.[190] The Special Master requested these Defendants to submit the documents with “highlights of the portions for which protection is sought or a note indicating that the party believes that the entirety of a document should be protected.”[191] All Defendants submitted highlighted versions of their documents for review.
*34 Some of the highlighted documents also had portions marked “redacted – attorney-client privilege” in brackets. In determining the applicability of Defendants’ claims, the Special Master reviewed both the highlighted and bracketed portions and made recommendations considering both portions of the documents.
The Special Master's findings and recommendations as to these claims of exceptions to waiver are based on in camera review of the documents and determinations whether the documents are privileged attorney-client communication or protected work-product. If the documents are not so privileged or protected, the Joint Attorney exception to waiver does not apply. See Exhibit C, Charts 2-4, at 5-25.
V. Remedies for Insufficient Log Entries
A. The Parties’ Arguments
Plaintiffs’ Motions to Compel seek production of Defendants’ documents, as is readily apparent in the titles and the text of the motions.[192] Anticipating that Defendants would seek permission to cure deficient log entries, Plaintiffs pre-emptively argue that Defendants waived their “right” to amend insufficient entries for two grounds. First, Plaintiffs contend that the privilege logs were deficient when served and have not been remedied over the many months Plaintiffs spent negotiating with Defendants over these deficiencies. Plaintiffs argue further that an “improperly asserted claim of privilege is not a claim at all. It's waived.”[193] Second, Plaintiffs emphasize that Defendants’ failure to cure the asserted deficiencies in the logs created the current situation where Plaintiffs had to move to compel. “Defendants explicitly teed up this fight on these privilege logs, and Plaintiffs briefed them in their current form.”[194] To allow Defendants a do-over on their logs at this late date, Plaintiffs argue, means there is no-downside to Defendants’ withholding information about their privilege claims. Plaintiffs assert that there should be consequences to Defendants beyond requiring them “to go back and do what [they] ... should have done in the first place.”[195] They emphasize that they oppose Defendants being permitted to amend insufficient log entries as Defendants already have caused them “to expend enormous time and resources repeatedly reviewing and challenging deficient logs and prejudiced Plaintiffs by improperly withholding documents with less than three months before the close of fact discovery.”[196]
*35 In opposing Plaintiffs’ motions to compel production, Defendants sought to re-characterize the relief requested by Plaintiffs, asserting that Plaintiffs sought sanctions and requested “blanket waivers” of all privilege claims.[197] Defendants then argued that discovery sanctions were not appropriate relief here, given their efforts to address Plaintiffs’ many requests for information.[198] In their opposition briefs, Meredith, Raycom, and TEGNA proposed alternate relief that an order be issued permitting them to cure any deficiencies in their privilege logs.[199] TEGNA added that, “at the most,” the Court could conduct an in camera review.[200] Nexstar, Scripps, and Sinclair, however, did not address the issue of appropriate relief. They merely argued that Plaintiffs’ requested “sanctions” should be denied.
Despite the parties’ arguments in the briefs filed in connection with Plaintiffs’ September 1, 2022, Motions to Compel, the parties shifted their requests for relief in March 2023, when the Special Master requested their input on sampling procedures for the 27,500 privilege claims then at issue. In March 2023 Plaintiffs proposed that the Special Master review the documents in camera along with the family members of the documents. Defendants argued the Special Master should give Defendants an opportunity to correct any deficiencies found in their log entries and, if the corrections did not remedy any deficiency, the Special Master might then undertake in camera review. Defendants insisted “only if and when there is a judicial determination that Defendants’ logs are deficient, that it would make sense for Defendants to undertake the additional burden of supplementing or amending their log entries beyond what they have already provided.”[201]
B. The Special Master's Recommendations For Relief
As the Court noted earlier in this case, the law is clear that “district courts enjoy extremely broad discretion in controlling discovery.”[202] Judicial control of discovery advances the goals of conserving courts’ limited resources and enabling litigants to proceed in a timely, organized and cost-efficient fashion. These goals are consistent with Federal Rule of Civil Procedure 1, Rule 26(b)(5), and the Seventh Circuit's concerns that Electronic Discovery imposes undue burdens and costs to the detriment of Rule 1.[203]
*36 In this case, an inordinate amount of time and resources have been and are being devoted to disputes over privilege claims. While parties have a right to raise privilege claims as to matters, they believe in good faith are protected from disclosure, the timing and manner of raising such claims is subject to judicial oversight. A party asserting a privilege should do so initially in a timely and proper manner, presenting sufficient information about the privilege asserted. Rule 26(b)(5) sets out the framework for asserting privilege claims and the exchange of information to allow opposing parties to assess a privilege assertion and to make a decision whether to undertake the time and expense of challenging a privilege assertion. Extensive caselaw within this jurisdiction provides guidance for the practical execution of the Rule 26(b)(5) framework. The manner and timing of compliance with Rule 1 and Rule 26(b)(5), however, begin with the party asserting a claim of privilege or work product protection.
As Magistrate Judge Cole noted, the privilege claimant should “wheel out all its artillery in the first go around, rather than waiting for a do-over that will likely never come.”[204] In this jurisdiction, Magistrate Judge Bobrick, just prior to the 1993 amendment to Rule 26(b)(5), delineated the line between the privilege claimant's role and the court's as follows:
While we regard neither the attorney-client privilege nor the work product doctrine lightly, we note that it is not the court's task to marshal the facts surrounding the production of a document, or to formulate legal arguments necessary to establish the applicability of a privilege to documents a discovery opponent claims are beyond discovery.[205]
In another context, the Seventh Circuit stated that “[i]t is the parties’ responsibility to allege facts and indicate their relevance under the correct legal standard.”[206] Here, this means that claimants opposing motions to compel production must allege facts sufficient to enable the opposing parties to assess the assertion of privilege and sufficient to enable the judicial officer to assess assertion. If the privilege claimant fails to satisfy its burden as to a given withheld document, it should expect an order to produce said document, as discussed below.
Adopting any approach of asking the court to ferret out from privilege logs descriptions arguable, factual basis(es) for an invocation of the attorney-client privilege would shift the responsibility of making the necessary factual showing(s) to support such privilege onto the court, when the law is clear that privilege proponents always have such responsibility. The Seventh Circuit has pointedly commented that “[j]udges are not like pigs, hunting for truffles buried in briefs.”[207]
As Edna Selan Epstein observed in the treatise, The Attorney-Client Privilege and the Work Product Doctrine, at 1154 (5th ed.), “[i]f a party does not sufficiently value the privilege to prove it, why should a court bother to sustain the assertion of privilege?” Put differently, “[i]f the privilege is worth protecting, a litigant must be prepared to expend some time to justify the assertion of the privilege.”[208]
*37 Yet here, although each Defendant asserted in its initial privilege log dating to January 2022 that the attorney-client privilege protects innumerable documents, none of the Defendants has since supplemented its initial privilege assertions to allege facts demonstrating an attorney communicated with a client and the attorney provided legal advice.
There is no basis to find that Defendants’ “Descriptions”—prepared by experienced litigation counsel—compensate for the lack of information in these log entries to show that an attorney had a communication with a client. In this case Defendants served privilege logs which contained thousands of privilege assertions. In the judgment of Defendants, their logs complied with Rule 26(b)(5). Not surprisingly, Plaintiffs were not prepared to accept Defendants’ conclusory assertions of privilege. Thus, there followed seven months of meet-and-confer activities, which included the exchange of over 80, multi-paged letters, numerous emails, and meetings. See Table 2 supra at 3, itemizing the many meet-and-confer activities between Plaintiffs and the six Defendants.
The obvious purpose of a meaningful meet-and-confer process is for the parties to discuss issues raised by the party against whom the privilege claims are asserted. Rule 26(b)(5) sets a goal that the party claiming privilege is to provide sufficient information to enable the other party to decide if it wishes to challenge the privilege claim. More than being aspirational, Rule 26(b)(5) creates a process whereby the party potentially challenging a privilege claim may realistically evaluate whether such a challenge is warranted. The success of the meet-and-confer process, at a minimum, can be determined by (1) whether it reduces the number of privilege claims asserted and/or (2) it reduces the number of privilege claims subject to motions to compel. If one looks at the number of privilege claims asserted and the number of such claims ultimately challenged by way of motion to compel, the clear conclusion is that the meet-and-confer process here was unsuccessful. Indeed, the history here beyond mere numbers, as reflected in more detail below, illustrates the failures.
Defendants almost exclusively asserted the attorney-client privilege.[209] This privilege is neither new nor novel. The elements of the attorney-client privilege were adopted 60 years ago by the Seventh Circuit.[210] Indeed, the Court's January 16, 2024, adoption of Report and Recommendation No. 1, and the Court's February 2, 2025, adoption of Report and Recommendation No. 2 gave Defendants more than ample notice of the law to be applied here.
The Special Master concludes that, given the entire history of the privilege disputes in this case, the appropriate remedy for the insufficient log entries challenged here is for the Court to exercise its discretion to order production of the documents corresponding to the insufficient log entries.
1. No Amendment of Deficient Log Entries
The Special Master recommends that the Court reject Defendants’ argument that they should be allowed to cure deficient log entries that lack specific, factual allegations to show the involvement of an attorney in the “privileged” communications. The Seventh Circuit repeatedly has stated that “it is not this court's responsibility to research and construct the parties’ arguments, and conclusory analysis will be construed as waiver.”[211] The clear demarcation between the court's duties and those of the litigants, reflects a concern about “waste of judicial time and resources.”[212] It also reflects a concern for litigants waiting for access to the courts.[213]
*38 It is unsurprising that numerous trial courts in this district have ordered production of documents when privilege logs are insufficient.[214] The Special Master is cognizant that some courts have permitted privilege logs to be amended or supplemented. While such relief, of course, is within the discretion of the court,[215] the Special Master's recommendations here are based upon all the circumstances of this case, including the history of the meet-and-confer process, the briefing on the motions to compel, and the failure of Defendants to provide basic, foundational provide facts to support their privilege claims.
*39 The most fundamental and most obvious prerequisite to assert the attorney-client privilege is to show the involvement of an attorney. As noted, supra, the Defendants provided Plaintiffs privilege logs in which 1,493 entries lacked any indication of any attorney involvement in the withheld document. The information that Defendants did not provide in their log entries concerning attorney involvement was foundational information that Defendants needed to assert to claim of privilege. Such information was necessary for Plaintiffs to assess Defendants’ claims of attorney-client privilege under Rule 26(b)(5) and determine if a motion to compel was necessary. The need to establish the involvement of an attorney with an assertion of attorney-client privilege is a requirement that, again, is neither novel nor new. Indeed, here, where the Defendants are represented by experienced litigation counsel at reputable law firms, supplying such information should not have been a disputed issue.
Defendants had ample opportunity to provide information about attorney involvement at three critical junctures, which occurred over seven months:
- with or in their privilege logs provided to Plaintiffs on Jan. 31, 2022;
- during the meet and confer process between Jan. 31 and Sept. 1, 2022; and
- in their oppositions to Plaintiffs’ motions to compel filed Sept. 22, 2022.
Here the privilege logs given to Plaintiffs were woefully deficient as to attorney information. As noted in Report and Recommendation No. 1, “[d]efendants here provided little information about their attorneys.”[216] For the logs at issue here, none of the Defendants provided job titles for their in-house counsel.[217] None of the Defendants provided job descriptions or provided explanations as to when in-house counsel provided legal as opposed to business advice. As Report and Recommendation No. 1 concluded, “the bare reference to someone being an attorney is insufficient to establish the attorney's work was primarily legal.”[218] Yet so much of this missing information Defendants easily could have supplied in or with the privilege logs or, significantly, during the meet-and-confer process.
The extensive history of the meet-and-confer exchanges between the parties represented a perfect opportunity to resolve the privilege issues in dispute. The activities of the parties over the seven months between January 31, 2022, when Defendants provided their privilege logs to Plaintiffs, and September 1, 2022, when Plaintiffs filed the motions to compel production of privilege documents here at issue are summarized infra in Table 3 at 6. During the meet- and-confer process, it seems that it would have been easy for Defendants to have provided Plaintiffs with a list of attorneys and their job titles. Additionally, the enormous numbers of emails included on the logs contained the names of a very large number of employees of the various Defendants. Defendants are the ones who could have identified these individuals. Defendants elected, however, not to provide such information. Defendants also had the opportunity to correct these deficiencies when they filed their briefs opposing Plaintiffs’ motions to compel production of documents on September 22, 2022. Yet they offered no supplemental information with their briefs.
In summary, the six Defendants each elected not to provide basic, necessary information about the identity[219] and role of their attorneys in the log entries challenged here at any of several possible junctures. In this Report and Recommendation, as in the first, the Special Master reviews the record as it is presented by the parties “based upon the parties’ litigation decisions regarding efforts to [assert] attorney-client privilege and work product protection.”[220] “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 were privileged.”[221] That was Defendants’ choice. As one court colorfully summed the situation up, “Discovery is not poker where the cards are turned up one at a time.”[222]
*40 In determining the recommendation to be made, the Special Master notes what the Court stated in ruling upon the objections to R&R No. 1:[223]
There is no mystery as to what information is necessary to meet the burden of asserting privilege. Defendants desire a second bite at the apple to supplement their assertions. The Court sees no compelling reason to allow blanket supplementation at this juncture.
So too, here, the Special Master finds no compelling reason to recommend allowing Defendants a do-over to include such basic information about attorney involvement. Defendants had ample notice of the law and ample opportunity to amend their privilege log entries. They elected not to do so over the course of many months, including during the motions’ briefing process. Granting do-overs here would thwart the purposes of Rule 26(b)(5) to require the parties to reduce their privilege disputes among themselves in order to reduce the burden on the court, reduce the use of judicial resources and, hopefully, expedite the litigation. A do-over would also run counter to the purpose of Rule 1 to secure a “speedy and inexpensive” determination of every proceeding. The fact that the Plaintiffs were seeking an order of production through their motions to compel was evident from the motions and replies and, therefore, no mystery to Defendants. Accordingly, the Special Master recommends the Court order Defendants produce all documents that correspond to log entries the Special Master found to be insufficient, which are all 6,893 with 16 exceptions.
2. No In Camera Review
At this juncture, the Special Master finds in camera review would be fruitless. If the identity of the attorney appeared on the four-corners of the withheld documents or in the document's family, Defendants’ litigation counsel and document reviewers should have found that information and provided it on the privilege log.[224]
Moreover, an in camera review will further delay the progress of this case and arguably reward Defendants for their conduct in this case. Also, the number of documents augers against such a review. While, in other circumstances, an in camera sampling review could be considered, the circumstances here do not justify consideration of sampling at this juncture.
3. No Sanctions
The Special Master makes no findings or recommendations concerning sanctions in this Report and Recommendation. The Special Master states this point explicitly, because all six Defendants incorrectly insist in their briefs that Plaintiffs seek sanctions against them. The Special Master does not find the word “sanction” in any of Plaintiffs’ 14 briefs, nor does he find any citation to Federal Rule of Civil Procedure 37, which addresses sanctions for discovery misconduct. Furthermore, the relief the Special Master recommends is not done to sanction Defendants; rather, the relief recommended is based upon the insufficiency of each privilege log entry challenged by Plaintiffs.
VI. The Special Master's Recommendations Regarding Individual Log Entries
*41 The Special Master identifies each privilege log entry or document number that the Special Master recommends the Court order Meredith, Nexstar, Raycom, Scripps, and TEGNA to produce. The numbers are listed in charts for each Defendant attached as Exhibit A. The charts also identify which documents should be produced in redacted form and direct the Court to the relevant chart, which contains the Special Master's findings as to which portions he recommends be produced and which redacted.
The Special Master, however, did not create an index for Sinclair's 6,326 log entries in dispute here. Rather, the Special Master attaches a document listing those Sinclair privilege log numbers that, upon review of the corresponding document in camera, the Special Master found to contain in whole or in part attorney-client privileged communications. Again, the Sinclair document directs the Court to the relevant charts that contain the Special Master's findings regarding which portions of a given document should be redacted before production. As to Sinclair's many thousand log entries that the Special Master found to provide insufficient factual support for Sinclair's assertions of attorney-client privilege and work product protection, the parties are directed to the Sinclair privilege log contained in the “agreed R&R No. 3 logs” that Mr. Giddings emailed to the Special Master, copying all parties, on July 29, 2024, at 12:01 pm.
The following table summarizes the Special Master's recommendations as to production of documents corresponding to the disputed log entries. To reiterate: the Special Master did not find a single log entry that provided sufficient support for any of Defendants’ assertions of attorney-client privilege or work-product doctrine. The Special Master, however, recommends 16 documents be withheld in whole or in part as he found they contained privileged attorney-client communications, after reviewing them in camera review to determine whether the Joint Attorney exception to waiver applies to communications with third party trade organizations.
Conclusion
Based upon the foregoing, the Special Master recommends that the Court:
- grant in part Plaintiffs’ motions to compel production of documents withheld as privileged, which motions are referred to as:
Plaintiffs’ Motion to Compel No. 13 (ECF 731);
Plaintiffs’ Discovery Motion No. 9 (ECF 727);Plaintiffs’ Discovery Motion No. 11 (ECF 737);Plaintiffs’ Discovery Motion No. 12 (ECF 738);Plaintiffs’ Discovery Motion No. 15 (ECF 741); andPlaintiffs’ Discovery Motion No. 14-A (filed with the Special Master).
- and order production of all documents on the “Agreed to Privilege Logs,” dated July 29, 2024, except the following documents:
- Meredith's MER-PRIV-00280 and MER-PRIV-0051 consistent with the Special Master's findings and recommendations in Ex. C, Chart 2, at 5.
- Raycom's GMG_PL_000288 consistent with the Special Master's findings and recommendations in Ex. C, Chart 3, at 23.
- Sinclair's MDLSBGTV-013576; MDLSBGTV-035804; MDLSBGTV-002691; and MDLSBGTV-019629; MDLSBGTV-027998; MDLSBGTV-035736; MDLSBGTV-036042; MDLSBGTV-022554; MDLSBGTV-019628; MDLSBGTV-019640; MDLSBGTV-019645; MDLSBGTV-019646; and MDLSBGTV-019931, consistent with the Special Master's findings and recommendations in Ex. C, Charts 4 and 5, at 25-31.
Exhibit A
Special Master's Recommendations
Production of Documents
Meredith, Nexstar, Raycom, Scripps, Sinclair, and TEGNA
Withheld as Privileged
Exhibit B
Special Master's Findings and Recommendations
Assertions of Work Product Protection of Documents by Nexstar, Sinclair, and TEGNA
dated on or after July 29, 2018
Exhibit C
Special Master's Findings and Recommendations
Meredith, Raycom, and Sinclair Assertions of Exceptions to Waiver of Confidentiality
Footnotes
For a de minimis number of documents, Defendants claim protection under the work product doctrine in addition to the attorney-client privilege. Given the predominance of the attorney-client privilege claims, the Special Master characterizes the present dispute as one concerning the attorney-client privilege.
The Special Master slightly modifies Plaintiffs’ titles for the three challenges to provide added clarity as to the nature of the challenges. The three challenges are collectively referred to here as concerning “attorney involvement.”
For reasons discussed below that pertain only to a few documents, the Special Master reviewed 70 documents in camera and found the attorney-client privilege applied in whole or in part to 16 documents. The Special Master recommends the Court deny Plaintiffs’ request for production as to 16 documents—in whole or in part.
Putting aside the magnitude and consistency of decades of Seventh Circuit law on the attorney-client privilege and the work product protection, Report and Recommendation No. 1 (and later Report and Recommendation No. 2) became “law of the case,” once accepted in full by Chief Judge Kendall. See Protect our Parks, Inc. v. Buttigieg, 97 F.4th 1077, 1090 (7th Cir. 2024); Cannon v. Armstrong Containers, Inc., 92 F.4th 688, 701 (7th Cir.); Fleury v. Gen. Motors LLC, No. 22 C 03862, 2023 WL 3792411, at *3 (N.D. Ill. June 2, 2023).
Meredith produced “Meredith Attorney List (June 17, 2022), Scripps produced its “Scripps Attorney Index” on July 28, 2022, while Raycom produced it's “Consolidated & Amended Priv Log Participants (Attorney) List” on July 1, 2022. Nexstar produced its “Nexstar Privileged Actors Key” on April 13, 2022.
See Omnibus Rankie Decl. ISO of Pls.’ MTC Nos. 9, 11, 12, 13, 14 and 14-A, and 15 (ECF 744), authenticating and attaching letters and emails exchanged between the parties during the privilege meet-and-confer process in 73 exhibits; Omnibus Decl. of Anjalee M. Behti ISO Pls.’ Replies to Motion Nos. 9-15 (ECF 828) (authenticating and attaching 9 exhibits); Suppl. Decl. Joshua T. Mathew ISO Pls.’ Reply re MTC No. 14-A (submitted to the Special Master) 2 exhibits; Decl. of Beatriz Mejia ISO Raycom's Opp. to MTC No. 11 (authenticating and attaching 11 exhibits) (ECF 783-1); Decl. E. Adelson ISO Nexstar Opp. MTC No. 9 (authenticating and attaching 8 exhibits) (ECF 792-1); and Decl. Fara Tabatabai ISO Sinclair's Opp. to MTC. No. 15 (ECF 781) attesting to Sinclair's participation in the meet-and-confer process with Plaintiffs.
See Plaintiffs’ Motion to Compel No. 13: Motion to Compel Meredith Corporation to Produce Documents Withheld as Privileged (“Pls.’ MTC No. 13”) (ECF 731); Plaintiffs’ Discovery Motion No. 9: Motion to Compel Nexstar Media Group to Produce Documents Withheld as Privileged (“Pls.’ Mot. to Compel No. 9”) (ECF 727); Plaintiffs’ Discovery Motion No. 11: Motion to Compel Defendant Gray Group F/K/A Raycom Media, Inc. to Produce Documents Withheld as Privileged (“Pls.’ Mot. to Compel No. 11”) (ECF 737); Plaintiffs’ Discovery Motion No. 12: Motion to Compel Defendants E.W. Scripps Company to Produce Documents Withheld as Privileged (“Pls.’ Mot. to Compel No. 12”) (ECF 738); Plaintiffs’ Discovery Motion No. 15: Motion to Compel Defendant Sinclair Broadcast Group, Inc. to Produce Documents Withheld as Privileged (“Pls.’ Mot. to Compel No. 15”) (ECF 741); and Plaintiffs’ Discovery Motion No. 14: Motion to Compel Defendant TEGNA to Produce Documents Withheld as Privileged (“Pls.’ Mot. to Compel No. 14”) (ECF 732).
Plaintiffs filed a supplemental Motion to Compel against TEGNA on March 17, 2023 (MTC No. 14-A) (filed with the Special Master).
Plaintiffs’ eleven categories are: Failure to Identify an Attorney; Non-Specific Attorney in Description; Attorney Only in Description, But Not To/From; Attorney Appears on Multiple Defendants’ Logs; Third Party Waiver/Improper Claim of Common Interest; Insufficient Work Product Claim; Vague Privilege Description; Non-Descript Titles; Missing/Contradictory Author/Recipient; Distribution List with Undisclosed Recipients; and Insufficient Document Date. A number of the categories overlap. For example, Plaintiffs’ challenges of “Non-Specific Attorney in Description” and “Attorney Only in Description” overlap with “Vague Privilege Description.”
Plaintiffs’ motions also challenged the merit of Defendants’ privilege claims for antitrust and business compliance documents. The Special Master addressed these documents in Report and Recommendation Nos. 1 and 2. See Local TV Advert. (R&R No.1), 2023 WL 5956851 (July 28, 2023), aff'd Local TV Advert., 2024 WL 165207 (Jan. 16, 2024); Local TV Advert. (R&R No. 2), aff'd Local TV Advert., No. 18 C 6785 (ECF 1171) (Feb. 2, 2025) (“adopts the Special Master's Report and Recommendation No. 2 [ECF 1114] in full.”).
Defendants’ Reply to Plaintiffs’ Proposed Protocol for Privilege Review, at 2 (March 20, 2023) (submitted to the Special Master).
The 2024 meetings were in response to requests of the Special Master for the parties, in light of Report and Recommendation Nos. 1 & 2 and Chief Judge Kendall's January 2024 opinion, to re-examine prior invocations of privilege and to withdraw duplicate documents.
Id. (“The Special Master asks that all Defendants review their log entries at issue in RR3 to determine whether they too assert privilege claims that belong to a third party.”)
See Declaration of Mike Vaughn, Chair of the FOX Affiliates Board (Aug. 21, 2024). Mr. Vaughn is not a lawyer. His Declaration opines on whether certain of the documents that Meredith withheld as privileged attorney-client communications between Meredith and FOX were, in fact, privileged.
The privilege logs before the Special Master are “hybrid” privilege logs, as they contain “metadata” and information manually inserted by litigation counsel primarily in the “Description” field of a log entry. “Metadata” is defined as “structured information about [Electronically Stored Information] that is created by the file system or application, embedded in the Document and sometimes modified through ordinary business use. Metadata of the ESI describes, inter alia, the characteristics, origins, usage and validity of the ESL.” Stipulation and Order Regarding the Production of Documents and Electronically Stored Information (“ESI Order”), at ¶2.16 (ECF 442).
Local TV Advert., 2024 WL 165207, at *3.
Local TV Advert., 2024 WL 165207, at *4, quoting U.S. v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997).
See, e.g., In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000). See also FTC v. Shaffner, 626 F.2d 32, 37 (7th Cir. 1980) (“The burden is on the party claiming the privilege to present the underlying facts demonstrating the existence of the privilege.”), paraphrasing United States v. Tratner, 511 F.2d 248, 251-52 (7th Cir. 1975) (“The obligation is on the person claiming the privilege to present the underlying facts demonstrating the existence of the privilege.”); Breuder v. Board of Trustees of Community College District No. 502, No. 15 CV 9323, 2021 WL 4283464,*2 (N.D. Ill. Sept. 9, 2021) (“Whether the privilege exists is a fact intensive inquiry[.]”) (Cummings, M.J.).
Local TV Advert. (R&R No.1), 2023 WL 5956851, at n. 89, citing Webster Bank, N.A. v. Pierce & Assocs., P.C., No. 16 C 2522, 2018 WL 704693, at *3 (N.D. Ill. Feb. 5, 2018). There is no reason to assume the same standard of “factual context” does not apply equally to analysis of a claim of attorney-client privilege.
Local TV Advert. (R&R 1), 2023 WL 5956851, at *11, citing Webster Bank N.A. v. Pierce & Assocs., P.C., No. 16 C 2522, 2018 WL 704693, at *3 (N.D. Ill. Feb. 5, 2018) (in the context of work product, the court will look at “the factual context” surrounding a document claimed to be privilege) (Kendall, J.).
Local TV Advert. (R&R 1), 2023 WL 5956851, at *11.
See, e.g., Vaughn v. Rosen, 484 F.2d 820, 824 (D.C. Cir. 1973) (“Here the Government contends that the documents contain information of a personal nature the disclosure of which would constitute an invasion of certain individuals’ privacy. This factual characterization may or may not be accurate. It is clear, however, that appellant cannot state that, as a matter of his knowledge, this characterization is untrue.”)
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *11, citing Smith v. Board of Education of City of Chicago, No. 17 C 7034, 2019 WL 2525890, at *2 (N.D. Ill. June 19, 2019), quoting Equal Emp. Opportunity Comm'n v. BDO USA L.L.P., 876 F.3d 690, 696 (5th Cir. 2017).
Local TV Advert. (R&R 1), 2023 WL 5956851, at *19.
Local TV Advert., 2024 WL 165207, at *5, quoting United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010).
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *12.
Local TV Advert., 2024 WL 165207, at *5.
Id., citing United States v. Frederick, 182 F.3d 496, 501 (7th Cir. 1999).
See Pls.’ MTC No. 13 (Meredith), at 2-3 (ECF 731); Pls.’ MTC No. 9 (Nexstar), at 3 (ECF 727); Pls.’ MTC No. 11 (Raycom), at 3 (ECF 737); and Pls.’ MTC No. 14-A (TEGNA), at 4 (submitted to the Special Master), all quoting Wigmore's definition of the Attorney-Client Privilege. See also Pls.’ MTC No. 12 (Scripps), at 2 (ECF 738) and Pls.’ MTC No. 15 (Sinclair), at 3 (ECF 741) both state: “Plaintiffs incorporate by reference the standard set forth in other privilege motions.”
See Pls.’ MTC No. 13 (Meredith), at 3 (ECF 731); Pls.’ MTC No. 9 (Nexstar), at 3 (ECF 727); Pls.’ MTC No. 11 (Raycom), at 3 (ECF 737); Pls.’ MTC No. 14-A (TEGNA), at 3 (submitted to the Special Master), all save Pls.’ MTC NO. 14-A cite Allendale Mut. Ins. Co. v. Bull Data Systems, Inc., 145 F.R.D. 84, 86 (N.D. Ill. 1992). N.B. Pls.’ MTC No. 12 (Scripps), at 2 (ECF 738) and Pls.’ MTC No. 15 (Sinclair), at 3 (ECF 741) both “incorporate by reference the standard set in other privilege motions.”
See, e.g., Pls’ Reply re MTC No. 9 (Nexstar), at 3 (ECF 827) (faults Nexstar for “fail[ing] to identify any individual attorney involved in the communication” and for “generally refer[ing] to a law firm of legal department, but does not specify a particular attorney.”); Pls.’ Reply re MTC No. 13, at 7 (ECF 823) (faults Meredith for “providing a conclusory description ... stating that the purpose of the communication was to obtain legal advice.”).
See Nexstar Opp. to MTC No. 9, at 2 (ECF 792) (“Each of Nexstar's privilege log entries satisfies Rule 26 and the ESI Order.”); Scripps Opp. to MTC No. 12, at 4 (ECF 790) (“Scripps’ Privilege Log complies with Rule 26 and the ESI Order.”); and Sinclair Opp. to MTC No. 15, at 2 (ECF 781) (“Under the ESI Order, Sinclair's only obligation with respect to privilege descriptions was to provide “a brief description of the nature and subject matter of the document to be populated by email subject, document title, or document filename to the extent available.”).
TEGNA does not make this argument in either of its opposition briefs, i.e., Opp. to MTC No. 14 (ECF 797) and Opp. to MTC No. 14-A (submitted to the Special Master).
Most Defendants also argue the ESI Order (ECF 442) limits the information they must provide to Plaintiffs. Plaintiffs reply that the ESI Order expressly require privilege claimants to identify the attorney involved in privileged communications and point to three paragraphs of the ESI Order:
- Paragraph 9.3.7 requires Defendants to extract from the metadata “the identity of the lawyer(s) involved in the claim of privilege.” See, e.g., Pls.’ MTC No. 9 (Nexstar), quoting ESI Order, ¶ 9.3.7 (ECF 442).
- If the metadata does not contain this information, ¶ 9.5 requires Defendants to provide “information on 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.” See, e.g., Pls.’ Reply re MTC No. 11 (Raycom), at 1-2 (ECF 821) (emphasis in original).
- Finally if Plaintiffs cannot ascertain that the logged document is privileged, ¶ 9.7 specifies that they may request meet-and-confers with Defendants and thereafter the Defendants “shall provide additional information reasonably necessary for the Receiving Party to determine if the Document has been properly withheld or redacted.” See, e.g., Pls.’ Reply re MTC No. 9 (Nexstar), at 2 n. 4 (ECF 827) (emphasis in original).
Perhaps most tellingly, ¶ 1.4 of the ESI Order specifies that, to “the extent additional obligations or rights not addressed in this Protocol arise under the Federal Rules of Civil Procedure, local rules, or applicable state and federal statutes, they shall be controlling.” Defendants cite no authority nor has the Special Master found any that the ESI Order in this case overrides the obligations of the parties under the Federal Rules of Civil Procedure. To accept Defendants’ position would be to undermine the intended process for orderly and efficient discovery set forth in these rules of procedure.
Raycom Opp. to MTC No. 11, at 9 (ECF 783).
Scripps Opp. to MTC. No. 12, at 7 (ECF 790).
Meredith and Raycom also take issue with Plaintiffs’ reliance on categories of challenges. They argue that “Plaintiffs bear the burden of identifying specific issues with [Defendants’] entries and explaining why Plaintiffs are unable to assess the privilege claims.” Meredith Opp. MTC No. 13, at 4-5 (ECF 786) and Raycom Opp. MTC No. 11, at 3-4 (ECF 783). They conclude that: “Blanket claims of insufficiency are insufficient, as claims of privilege ‘must be addressed on a document-by-document and question-by-question basis.” Although the “entry-specific explanations” that Meredith and Raycom champion may be reasonable—even desirable—when only a few privilege log entries/claims are in dispute, the Special Master finds such an approach is neither reasonable nor feasible when, as here, over 26,500 privilege claims are in dispute, including the 6,893 addressed here. See Defendants Proposed Protocol for Privilege Review, at 3 (March 14, 2023). In fact, Plaintiffs state they initially challenged 50,000 privilege entries, which statement Defendants do not contradict. See Pls.’ Submission to the Special Master, at 2 (March 23, 2023. The sheer volume of privilege disputes necessitates a streamlined method to identify the log entries Plaintiffs find to be problematic and to specify the reason(s) for Plaintiffs’ concern. The Special Master finds Plaintiffs’ use of categories streamlined his review of the thousands of log entries at issue here. See Breuder v. Board of Trustees of Community College District No. 502, No. 15 CV 9323, 2021 WL 4283464, at *10 (N.D. Ill. Sept. 21, 2021) (Cole, M.J.) (“Breuder's organizational approach [of identifying categories of privilege dispute]... ... streamlined the issues for the Court.”).
Local TV Advert., 2024 WL 165207, at *3-4.
See Local TV Advert. (R&R No. 1), 2023 WL 5956851, *11, citing United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997). See also U.S. v. White, 970 F.2d 328, 334 (1992); United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983); United States v. First State Bank, 691 F.2d 332, 335 (7th Cir.1982); United States v. Tratner, 511 F.2d 248, 251 (7th Cir. 1975) (“The obligation is on the person claiming the privilege to present the underlying facts demonstrating the existence of the privilege.”); United States v. CVS Health Corp., No. 18 C 6494, 2023 WL 2771166 at *3 (N.D. Ill. Apr. 4, 2023) (Cole, M.J.) (privilege claimant has “the burden of establishing all the required elements” of the privilege claimed in log entry); RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 218 (N.D. Ill. 2013) (Castillo, J.) (privilege log “information must be sufficiently detailed to allow the court to determine whether the party asserting the privilege has discharged its burden of establishing the applicability of the privilege.”).
See Acosta v. Target Corp., 281 F.R.D. 314, 321–322 (N.D. Ill. 2012) (Brown, M.J.) (Compliance with Rule 26(b)(5), has “[t]raditionally ... been done by serving a privilege log listing each separate document being withheld and identifying for each the date, author, all recipients along with their capacities, the document's subject matter, purpose for production, and specific explanation of why the document is immune from discovery.”), quoting Allendale Mut. Ins. Co. v. Bull Data Sys., 145 F.R.D. 84, 88 (N.D.Ill.1992) (Bobrick, M.J.); Jorling v. Anthem, Inc., No. 1:09-cv-0789, 2011 WL 3759189, at*4 (S.D. Ind. Aug. 25, 2011) (To satisfy Rule Fed. R. Civ. P. 26(b)(5), a privilege log must “establish all the essential elements of attorney-client privilege.”) (Baker, M.J.); SmithKline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 534 (N.D. Ill. 2000) (Bobrick, M.J.) (“the description of each document and its contents must be sufficiently detailed to allow the court to determine whether the elements of attorney-client privilege—or in other cases, work product doctrine—have been established. Failing this, the documents must be produced.”); In re Gen. Instrument Corp. Sec. Litig., 190 F.R.D. 527, 530 (N.D. Ill. 2000) (Bobrick, M.J.) (“We can select, almost at random, any entry in the log and be unable to determine how it meets the elements of attorney-client privilege.”); Culinary Foods, Inc. v. Raychem Corp., 150 F.R.D. 122, 126 (N.D. Ill. 1993) (Bobrick, M.J.) (“Frequently, the discovery opponent relies upon descriptions of documents at issue in a privilege log, but does not, as it should, make a colorable attempt to meet its burden of establishing the applicability of the privilege it asserts to each of the documents it hopes to withhold from discovery.”); United States v. Cty. Health Network, Inc., No. 114CV01215RLYMKK, 2023 WL 3151847, at *2 (S.D. Ind. Apr. 28, 2023), report and recommendation adopted sub nom. United States ex rel. Fischer v. Cty. Health Network, Inc., No. 1:14-cv-01215, 2023 WL 4577673 (S.D. Ind. June 27, 2023) (“Parties commonly comply with the requirements for asserting a privilege by providing a privilege log that contains: (1) the name and job title or capacity of the author/originators; (2) the names of all persons who received the document or a copy of it and their affiliation (if any) with the producing party; (3) a general description of the document by type (e.g., letter, memo, report); (4) the date of the document; and (5) a general description of the subject matter of the document.”). See also Edna S. Epstein, The Attorney-Client Privilege and the Work Product Doctrine, at 1210 (5th Ed.) (“The privilege log must be adequate to permit the court to determine whether all elements of the privilege are present in each document.”).
United States ex rel. Gill v. CVS Health Corp., No. 18 C 6494, 2024 WL 406510, at *8 (N.D. Ill. Feb. 2, 2024); see also The Surgery Center at 900 North Michigan Ave. LLC v. American Physicians Assurance Corp., Inc., 317 F.R.D. 620, 632 (N.D. Ill. 2016) (Cole, M.J.).
CVS Health Corp., 2024 WL 406510, at *1. See also Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993) (When a party relies on a privilege log to assert these privileges, the log must “as to each document ... set[ ] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.”).
Id. Some examples of deficient log entries are: no information about a recipient, entry noting a request for legal advice, but no attorney listed as author or recipient, name of attorney without identification as to who the attorney is, “reflecting legal advice,” “providing legal advice.” CVS Health Corp., 2024 WL 406510 at * 8-9, nn. 12, 14. Generic privilege claims are inadequate in part because of the fact-intensive nature of privilege claims. See In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000) (“The inquiry into whether documents are subject to a privilege is a highly fact-specific one.”).
See Vaughn v. Rosen, 484 F.2d 820, 826-29 (D.C. Cir. 1973), a seminal case in which the D.C. Circuit required an index of documents withheld by an agency claiming that FOIA exemptions precluded discovery of certain documents.
United States v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996), quoting Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y.1993).
RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 218 (N.D. Ill. 2013).
Similarly, the ESI Order (ECF 442) in this case contemplates an iterative process. See ¶ 9.7 (“Should a Receiving Party be 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, the Receiving Party may request a meet and confer, and the Requesting Party, Receiving Party, and/or Producing Party, as appropriate, shall, meet and confer about such deficiencies. The Producing Party shall provide additional information reasonably necessary for the Receiving Party to determine if the Document has been properly withheld or redacted.”).
Advisory Committee Notes to 1983 Amendment.
See id. (“If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse.”).
The enforcement mechanism in Rule 26(g) is a certification requirement that “obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.” Notes of Advisory Committee on Rules –1983 Amendment.
Notes of Advisory Committee on Rules—1983 Amendment.
“Rule 26(g) is based on the belief that discovery abuse can be reduced if sanctions are imposed on those responsible for it.” Charles Alan Wright, Arthur R. Miller, 8A Fed. Prac. & Proc. Civ. § 2052, Certification; Sanctions (3d ed.). As recently observed in Urb. 8 Fox Lake Corp. v. Nationwide Affordable Hous. Fund 4, LLC, 415 F. Supp. 3d 827, 829 (N.D. Ill. 2019), citing In re Grand Jury Proceedings, 220 F.3d 568 (7th Cir. 2000), the “law demands that a legitimate claim of privilege can only be made after a document by document examination. Consequently, by making the very large submission that the defendants initially made, they in effect were representing that such an examination had been conducted.”
The Advisory Committee observed that “it has been said that the [discovery] rules have ‘not infrequently [been] exploited to the disadvantage of justice.’ ” Fed. R. Civ. P. 26 Advisory Committee Notes –1983 Amendments, quoting Herbert v. Lando, 441 U.S. 153, 179 (1979) (Powell, J., concurring). The Committee concluded that these “practices impose costs on an already overburdened system and impede the fundamental goal of the “just, speedy, and inexpensive determination of every action.” Quoting Fed. R. Civ. P. 1.
Notes of Advisory Committee on Rules—1993 Amendment.
Fed. R. Civ. P. 26(b)(5) advisory committee's note to the 1993 amendment. See also Surgery Ctr. at 900 N. Michigan Ave., LLC v. Am. Physicians Assurance Corp., Inc., 317 F.R.D. 620 (N.D. Ill. 2016) (the goal of Fed. R. Civ. P. 26 is “that discovery should be so far as possible conducted by counsel without judicial intervention except when necessary.”).
Plaintiffs challenge a total of 1,495 log entries in Category #1, but they challenge two log entries in TEGNA's log for a slightly different reason, to wit, for failing to identify an attorney acting in her capacity as a legal advisor. Those two challenges are addressed below.
Plaintiffs do not challenge log entries of Meredith or Scripps for “Failure to Identify an Attorney in Log Entry.”
Pls.’ Reply re MTC No. 15 (Sinclair), at 3 (ECF 826), citing SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D. Pa. 2005) (finding waiver where the plaintiff failed to “identify any specific attorney with whom a confidential communication was made.”)
See, e.g., Pls.’ MTC. No. 9 (Nexstar), at 3-4 (ECF 727), citing Schaeffer v. City of Chicago, No. 19 C 7711, 2020 WL 7395216, at *2 (N.D. Ill. Aug. 12, 2020) (Gilbert, M.J.) (finding that a “privilege log clearly does not comply with the Federal Rules of Civil Procedure and applicable law” because “[f]or example, the privilege log does not identify any ... attorney by name or provide any creation dates for any of the documents listed on the purported ‘privilege log’ ”); Hepburn v. Workplace Benefits, LLC, No. 5:13-CV-00441-BO, 2014 WL 12623294, at *4 (E.D.N.C. Apr. 18, 2014) (finding inadequate, for documents not directly involving attorneys, privilege log descriptions that “merely indicate[d] that the underlying email in the thread ... requested or provided legal advice” but did “not provide any information about the communication between” the non-lawyers); SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D. Pa. 2005) (finding waiver where the plaintiff failed to “identify any specific attorney with whom a confidential communication was made”); New Jersey Manufacturers Ins. Co. v. Brady, No. 3:15-CV-02236, 2017 WL 264457, at *15 (M.D. Pa. Jan. 20, 2017) (“NJM must supplement its log to include the specific sender and recipient information for the emails listed in the [outside counsel's] file, and the names and titles of the specific person(s) who prepared the work product being withheld.”) (citing SmithKline Beecham Corp., 232 F.R.D. at 477).
See, e.g., Nexstar Opp. to MTC No. 9, at 9 (ECF 792), quoting Washtenaw Cty., 2020 WL 3977944 at *4, for the proposition that “employees might receive legal advice from in-house counsel and then disseminate it among themselves .... The idea that they may not communicate the legal advice to each other by email without exposing the advice to civil discovery is hardly in furtherance of the corporation's ability to have full and frank consultation with counsel.” See also Raycom Opp. to MTC. No. 11, at 7 (ECF 783) (“a lawyer need not even be a party to a communication for [ ] it to be privileged.”), citing In re Allergan plc Sec. Litig., 2021 WL 4121300, at *3 (S.D.N.Y Sept. 9, 2021). This quotation from Allergan is taken out of context. The Allergan court immediately qualified the above quotation stating, “Of course, the assumption behind these principles is that what is being shared is legal advice to begin with, not business advice, to which no privilege would attach.” When it applied the principle to communications between non-attorney employees the Allergan court found the privilege claimant “fails to identify any of the often dozens of individuals who received the e-mails at issue, explain what their roles were, or explain why they needed to know the privileged information. Defendants’ privilege logs do not provide any further clarity as the logs list only the employee names and do not provide any information on the non-attorney employee roles.” Thus, the court concluded the privilege claimant failed to prove that it did not waive attorney-client privilege and ordered the documents produced.
Sinclair Opp. to MTC No. 15, at 10 (ECF 781). Sinclair also responds that “many of the entries that Plaintiffs challenge” for lack of an attorney “are privileged as work product, regardless of whether an attorney created them.” Id. It is not clear whether Sinclair is withdrawing its claims of attorney-client privilege for log entries that assert work product protection.
See Pls.’ Reply re MTC 14-A (TEGNA), at 4 (submitted to the Special Master), quoting RBS Citizens, N.A., v. Husain, 291 F.R.D. 209, 217 (N.D. Ill. 2013)(Castillo, J.). See also Pls.’ MTC No. 14-A (TEGNA) at 4-5 (submitted to the Special Master), quoting BPI Energy, Inc. v. IEC (Montgomery) LLC, No. 07-cv-186, 2008 WL 4225843, at *4 (S.D. Ill. Sept. 12, 2008) (“[w]hen a corporate officer also acts as general counsel, wearing two hats, the nature of his communications must be closely scrutinized to separate business communications from legal communications, as the attorney-client privilege is narrow.”).
TEGNA's Opp. to MTC 14-A, at 4 (submitted to the Special Master).
See Pls.’ Reply MTC No. 13 (Meredith) at 2-3 (ECF 823); Pls.’ MTC No. 9 (Nexstar) at 4-5 (ECF 727).
Pls.’ Reply re MTC No. 15 (Sinclair), at 4 (ECF 826), quoting In re Veiga, 746 F. Supp. 2d 27, 40 (D.D.C. 2010).
See Meredith Opp. to MTC No. 13, at 6-7 (ECF 786); Nexstar Opp. to MTC No. 9, at 4 (ECF 792); Raycom Opp. MTC No. 11, at 5 and 8 (ECF 783); Scripps Opp. to MTC No. 12 at 5 (ECF 790); Sinclair Opp. to MTC No. 15 at 12 (ECF 781). See also Sinclair Opp. to MTC No. 15 at 1-2 (ECF 781) (“Plaintiffs do not explain how more detailed information, such as which government investigation or which potential acquisition, would affect the claim of privilege.”).
See Raycom Opp. to MTC No. 11, at 7 (ECF 783), citing Deffenbaugh Indus. Inc. v. Unified Gov't of Wyandotte County/Kansas City, Kansas, 2021 WL 1612099, at *8 (D. Kan. Aug. 26, 2021) (finding “no basis” for even “in camera review” of document logged as “reflecting strategy of [plaintiff's] legal department.”).
See Nexstar Opp. to MTC No. 9, at 4-5 (ECF 792), citing Coltec Inds., Inc. v. Am. Motorists Ins. Co., 197 F.R.D 368, 376 (N.D. Ill. 2000) (finding sufficient a privilege log description stating, “Zurich's evaluation of Coltec's claims based on analysis performed by outside legal counsel.”); In re Dealer Mgmt. Sys. Antitrust Litig., No. 18 C 864, 2020 WL 7865915 at *8 (N.D. Ill. Mar. 30, 2020) (“[T]he Court is not inclined to say on a blanket basis that a document is or is not privileged because a party's privilege log does not identify an attorney by name but rather refers to ‘in-house counsel’ or ‘legal department.’ The Court can conceive of scenarios when a document would be privileged even if a lawyer is not identified by name[.]”); Scripps Opp. to MTC No. 12, at 4-5 (ECF 790), citing In re Allergan plc Securities Litig., 18 Civ 12089 2021 WL 4121300 at *3 (S.D.N.Y. Sept. 9. 2021) (There is “no particular need for the attorney's name to be revealed in the communication, or for that matter the privilege log, in order for the privilege to be maintained.”).
See Meredith Opp. MTC No. 13, at 7 (ECF 786) (“There is no ... obligation to back-fill information regarding ... the name of the attorney providing legal advice, ... if (as it is here) it is unknown to Meredith.”); Sinclair Opp. to MTC No. 15, at 5 (ECF 781) (“For the small remainder (97 documents), author or recipient information does not exist in the metadata ... and may not otherwise be apparent from the face of the document.”).
See Pls. Reply re MTC No. 13, at 5-8 (Meredith) at (ECF 823); Pls.’ MTC No. 11 (Raycom), at 5-8 (ECF 737); Pls.’ MTC No. 15 (Sinclair), at 12-13 (ECF 741); and Pls.’ MTC No. 14-A (TEGNA), at 8-9 (submitted to the Special Master).
Pls.’ Reply re MTC No. 14-A at 4 (submitted to the Special Master), quoting RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 217 (N.D. Ill. 2013) (Castillo, J.). See also Pls.’ MTC No. 11 (Raycom), at 5-6 (ECF 737) and Pls.’ MTC No. 15 (Sinclair), at 5 (ECF 741), both citing Muro v. Target Corp., No. 04-cv-6267, 2006 WL 3422181, at *3 (N.D. Ill. Nov. 28, 2006) (Brown, M.J.)
Meredith Opp. to MTC No. 13, at 5 (ECF 786) and Raycom Opp. to MTC No. 11, at 5 (ECF 783).
Sinclair Opp. to MTC No. 15 at 10 (ECF 781). Sinclair does not address the fact that Sinclair, not Plaintiffs, have superior knowledge and access to such information. (confidential communications between attorney and client “about business or other non-legal matters” are not privileged). Further, each log entry should be complete on its own without the need to reference other log entries.
See Sinclair Opp. to MTC No. 15, at 10-12 (ECF 781) and Pls.’ Reply re MTC No. 15, at (ECF 826).
See Meredith Opp. to MTC No. 13, at 8-9 (ECF 786); Raycom Opp. to MTC No. 11, at 9 (ECF 783); TEGNA Opp. to MTC No. 14-A, at 2 and 4 (submitted to the Special Master).
Meredith Opp. MTC No. 13, at 8 (ECF 786); Raycom Opp. to MTC No. 11, at 9 (ECF 783).
Meredith Opp. MTC No. 13, at 8 (ECF 786); Raycom Opp. to MTC No. 11, at 9 (ECF 783).
Meredith Opp. MTC No. 13, at 8 (ECF 786); Raycom Opp. to MTC No. 11, at 9 (ECF 783), TEGNA Opp. MTC No. 14-A, at 2 and 4 (submitted to the Special Master), quoting Crabtree v. Experian Info. Sols., Inc., No. 1:16-cv-10706, 2017 WL 4740662, at *2 (N.D. Ill. Oct. 20, 2017). Meredith and Raycom also cite Procaps S.A. v. Patheon Inc., 2015 WL 11202476, at *2 (S.D. Fla. 2015) (rejecting challenge based on “only bare speculation that ... communications marked as privileged were in fact instances of attorneys offering nonlegal advice”); Rabushka ex rel. U.S. v. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997) (“Other than offering speculation ... Rabushka has offered no evidence to contradict Crane's evidence that the questioned documents were prepared by Crane's counsel while acting in a legal capacity.”).
See Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977) (“Whether the parties to a given communication are, respectively, attorney and client is a question which ordinarily presents no difficulty.”). Notably, Meredith, Raycom, Scripps argue that courts recognize that privilege log entries are generally sufficient if they include a “description of the document, the date, the sender, the recipient, and the privilege claimed, along with a brief explanation of why the document is privileged,” without recognizing courts so hold because an attorney is either the sender or recipient. See Meredith Opp. to MTC No. 13, at 4 (ECF 786) and Raycom Opp. to MTC No. 11, at 4 (ECF 783), Scripps at 4 (ECF 790).
See Pryor v. Target Corp., No. 20-CV-28, 2020 WL 6149569, at *4 (N.D. Ill. 2020)(Harjani, M.J.) (“Target has to show that there was a communication flowing to or from an attorney for the purposes of securing or providing legal advice or services.... yet “not one of the 45 entries in the Second Amended Privilege Log includes a lawyer in the author or recipient fields[.]”) (applying Ill. law); In re Fluidmaster Inc., Water Connector Components Products Liability Litig., 1:14-cv-05696, 2016 WL 6599947 (N.D. Ill. Nov. 8, 2016)(Gilbert, M.J.) (“Because neither individual listed in the ‘From’ and ‘To’ columns is an attorney, that means the Court cannot assess whether that document is a communication between an attorney and a client.”) (applying California law); RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 219 (N.D. Ill.2013)(Castillo, J.) (RBS fails to identify the author or recipient, if any, for a majority of the documents listed on its privilege log. This oversight significantly limits the Court's ability to find that documents are protected under the attorney-client privilege.”); see also United States v. Constr. Prod. Research, Inc., 73 F.3d 464, 473 (2d Cir.1996) (“In a number of its descriptions, however, Plaintiff does not identify any specific attorney with whom a confidential communication was made. Where such information is absent, we find Plaintiff has failed to “provide sufficient detail to demonstrate fulfillment of the legal requirements for application of the privilege.”); Hobbs v. USAA Gen. Indem. Co., No. 3:20-CV-00262, 2022 WL 2528239, at *6 (S.D. Ill. July 7, 2022) (“USAA has not met its burden with respect to the remaining entries because there is simply not enough information to determine whether the entries reflect communications between USAA and its counsel[.]”); SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D. Pa. 2005) (Where privilege log entries “make no mention of a specific attorney being involved at all—an attorney is not listed as an author or recipient of the document, nor is a specific attorney mentioned in the description,” the withheld documents must be produced.”); Hill v. McHenry, No. CIV.A. 99-2026-CM, 2002 WL 598331, at *2 (D. Kan. Apr. 10, 2002 (“A privilege log entry that does not identify the author and recipients of the withheld document precludes a determination on the facts that the document is in fact a communication between attorney and client.”).
See, e.g., In re Fluidmaster, Inc., 2016 WL 6599947, at *14 (Gilbert, M.J.) (“Because neither individual listed in the “From” and “To” columns is an attorney, that means the Court cannot assess whether that document is a communication between an attorney and a client.”).
See SmithKline Beecham Corp. v. Apotex Corp., 193 F.R.D. 530, 538 (N.D. Ill. 2000) (“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”).
Heriot v. Byrne, 257 F.R.D. 645, 666 (N.D. Ill. 2009) (Ashman, M.J.).
Although no Defendant expressly makes the following argument in response to Plaintiffs’ challenge to log entries lacking any attorney identification, Defendants may implicitly contend that their “Descriptions” in the challenged log entries provide information from which the Special Master may infer that an attorney and client communicated. For example, Sinclar Privilege Log number MDLSBGTV-000041, an attachment without an author or recipient, is described in the “Description” field as “Report reflecting a provision of legal advice regarding potential acquisition issues.” The Special Master will not infer from this “Description” that an attorney and client communication occurred—such an inference is simply too speculative. Moreover, as discussed below, such an inference is not permissible.
See generally Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *21-22.
Id. Although Nexstar provided the legal titles for its in-house counsel on its “Nexstar Privileged Actors Key,” it did not provide any business title.
As noted in Report and Recommendation No. 1, “Nexstar conditioned production of this attorney list on Plaintiffs’ agreement not to insist Nexstar revise its privilege log to identify attorneys: ‘Nexstar is willing to provide a key identifying counsel appearing in the log by full name and title, if Plaintiffs agree that Nexstar is not required to amend the privilege logs to identify the attorney(s) in each entry.’ ” Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *21 n. 168. It seems inappropriate for a privilege claimant to bargain to provide less information than it is required to do to satisfy its burden.
Third Amended Complaint at ¶ 302, Class Period began on Jan. 1, 2014.
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *22.
DR Distributors, LLC v. 21 Century Smoking, Inc., 616 F. Supp. 3d 769, 789 (N.D. Ill. 2022) (Johnston, J.), citing Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir. 2002).”
Tratner, 511 F.2d at 253.
Magistrate Judge Cole reminded litigants that “a lawyer's credibility is not judged differently than any other person” and the court is not “bound to take an attorney's word that something is privileged” or accept “an attorney's recitation of familiar boilerplate underlying a claim of privilege.” United States v. CVS Health Corp., 2023 WL 2771166 at *7, n.6.
See Local TV Advert., 2024 WL 165207, at *5 (A lawyer's legal advice is not usually offered in a vacuum without a corresponding request for legal advice or confidence given from the client. The inference ... is not presumed.”).
Local TV Advert., 2024 WL 1165207, at *5.
See Urb. 8 Fox Lake Corp. v. Nationwide Affordable Hous. Fund 4, LLC, 415 F. Supp. 3d 827, 829 (N.D. Ill. 2019) (Cole, M.J.) (“The law demands that a legitimate claim of privilege can only be made after a document by document examination.... Consequently, by making the very large submission that the defendants initially made, they in effect were representing that such an examination had been conducted.”). See also Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 265 (D. Md. 2008) (per Grimm, J.) (“Counsel should be wary of filing a response to a Rule 34 document production request that asserts privilege/protection as a basis for refusing to make requested production without having a factual basis to support each element of each privilege/protection claimed for each document withheld, because to do so is a sanctionable violation of Fed. R. Civ. P. 26(g).”).
The Special Master rejected a similar argument by Defendants to shift the burden to Plaintiffs in Report and Recommendation No. 1. See Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *18.
Crabtree, 2017 WL 4740662, at *1 (“The party asserting privilege has the burden to demonstrate its existence.”).
Id. As to the two other cases that Meredith and Raycom cite, the Special Master notes Rabushka, 122 F.3d at 565, is not on point; there, the privilege claimant provided a “detailed privilege log stating the basis of the claimed privilege for each document in question, together with an accompanying explanatory affidavit of its general counsel.” Although the party seeking discovery suggested the General Counsel prepared some of the withheld documents when he acted as Corporate Secretary, the district court held that speculation was insufficient “to contradict [the privilege claimant's] evidence that the questioned documents were prepared by [its] counsel while acting in a legal capacity.” As to Procaps, 2015 WL 11202476, at *2 (S.D. Fla. 2015), the result reached by that court was unusual and has not been cited by any subsequent court.
Although Raycom asserted the protection of the work product doctrine in three log entries, it did not brief the applicability of the doctrine to its withheld documents. Raycom's “Descriptions” do not mention “litigation” or otherwise suggest the withheld document was work product material. It may be the claim of work product was an error. Nonetheless, the Special Master will evaluate Raycom's three log entries as claims of work product protection.
In Report and Recommendation No.1, the Special Master reviewed the parties’ arguments in Plaintiffs’ Motions to Compel Nos. 9, 11, 14 and 14-A, and 15, because the parties had not addressed the doctrine in their briefs related to Plaintiffs’ Motion to Compel No. 5. See Local TV Advert. Litig., 2023 WL 5956851, at *22. The Special Master explained that “[b]ecause the parties’ arguments were general, applicable to multiple log entries, the Special Master assumes those arguments apply to Plaintiffs’ challenge to the work product claims” that Nexstar, Raycom, Sinclair and TEGNA made for various antitrust and business compliance documents at issue in Plaintiffs’ Motion to Compel No. 5. (Id. at *22-23). In R&R No. 1, the Special Master made findings and recommendations as to the applicability of the Work Product Doctrine to 59 privilege log entries of these Defendants after reviewing the log entries and the corresponding compliance documents in camera. See Id. at Exhibit 1—Nexstar (20 work product claims), Exhibit 2—Raycom (1 work product claim), Exhibit 4—Sinclair (11 work product claims), and Exhibit 5—TEGNA (24 work product claims). See also RR2 Nexstar (3 work product claims). Ultimately, the Special Master concluded that these “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,” with one exception. Id. at *23.
See Pls.’ Mot. to Compel No. 9 at 11 (ECF 727); Mot. to Compel No. 14 at 8 (ECF 732); Mot. to Compel No. 15 at 8 (ECF 741).
Pls.’ Mot. To Compel No. 14-A, at *13.
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *14-15.
(3) Trial Preparation; Materials.
A. Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
B. Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
Local TV Advert. Litig. (R&R No. 1), 2023 WL 5956851, at *14 (citations omitted).
Logan v. Commercial Union Ins. Consent Order., 96 F.3d 971, 976-77 (7th Cir. 1996).
Binks, 709 F.2d at 1118-19, quoting 8 Wright & Miller, Federal Practice and Procedure, Civil, § 2024.
See Court Order, at *1 (Mar. 20, 2019) (ECF 218) (denying Plaintiffs’ motion to compel Defendants to produce document produce to the Department of Justice because “the Federal Rules of Civil Procedure do no contemplate pre-complaint discovery.”) To the extent that Defendants had earlier “anticipated” this class action litigation due to earlier complaints, they have neither argued that nor provided information to the Special Master to support an earlier date.
The ESI Order ¶9.8.21 (ECF 442) also allowed for earlier cut-off dates if the privilege claimant had “received a Civil Investigative Demand from the U.S. Department of Justice related to an investigation concerning the subject matter of this litigation.” The Defendants, however, did not provide the Special Master any information that they received CIDs from the DOJ related to the investigations the DOJ announced on July 27, 2018.
See Pomerenke v. US Airways Grp., Inc., No. 08 CV 989, 2009 WL 10696341, at *2 (N.D. Ill. Apr. 6, 2009) (Nolan, M.J.) (“courts require a “substantial and significant threat of litigation ... before a discovery opponent's anticipation will be considered a reasonable and justifiable motive for production of a document.”) (citations omitted).
Id., quoting Sandra T.E., 600 F.3d at 622, quoting Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976-77 (7th Cir. 1996); see also Baxter Travenol Labs., 1987 WL 12919, at *10 (Bucklo, M.J.) (holding there must be “an identifiable prospect of litigation because of specific claims that have arisen”).
Id., quoting Webster Bank, N.A., 2018 WL 704693, at *3.
Id. at *15, quoting Towne Place Condominium, 284 F. Supp. 3d at 899. Cf. Allendale Mut. Ins. Co. v. Bull Data Systems, Inc., 145 F.R.D. 84, 87 (N.D. Ill. 1992) (“to establish work production protection for a document, a discovery opponent must show that “the primary motivating purpose behind the creation of a document ... must be to aid in possible future litigation,” under circumstance where the discovery opponent can show “objective facts establishing an identifiable resolve to litigate.”) (internal citations omitted).
Id., quoting Caremark, Inc. v. Affiliated Computer Services, Inc., 195 F.R.D. 610, 615 (N.D. Ill. 2000).
Defendants had the opportunity to overcome any such presumption with a factual showing in the log entries, during the meet-and-confer process or with their briefs filed in opposition to the motions to compel, but they presented nothing and offered no explanation as to whether, and how, those early dated documents relate to the present class action or the “related DOJ investigation.” Defendants also did not make arguments or supply case law as to why earlier-produced documents (pre-July 27, 2018) may have related to the instant action or any subsequent litigation.
See, e.g., TEGNA log entries numbered 57, 504, 522, 592, 591, and 719.
As noted above, Defendants did not produce facts to overcome or challenge this presumption.
Of these 87 documents, 10 Sinclair log entries also assert work product protection.
See Pls.’ MTC No. 13 (Meredith) at 6-7 (ECF 731); Pls. MTC No. 11 (Raycom) at 9-10 (Third Party Waiver) (ECF 737); and Pls.’ Reply at 8-9 (Common Interest) (ECF 821); Pls.’ MTC No. 12 (Scripps), 4-5 (ECF 738); Pls.’ MTC No. 15 (Sinclair), at 9-10 (ECF 741).
See Meredith Opp. to MTC No. 13, at 11-12 (ECF 786); Raycom Opp. to MTC No. 11, at 14-15 (ECF 821); Scripps Opp. to MTC No. 12, at 10-12 (ECF 738); Sinclair Opp. to MTC No. 15 at 7-8 (ECF 781).
While there is some overlap between the two exceptions, the exceptions are different. One basis for the overlap is the fact that the term ‘common interest’ is used to describe the “congruence of the parties’ interests” in both exceptions. McCollough v. Fraternal Order of Police, Chicago Lodge 7, 304 F.R.D. 232, 237 (N.D. Ill. 2012) (Cole, M.J.). To be clear, the exceptions are referred to by various names. The “Common Interest” exception sometimes is dubbed the “community-of-interest” or “joint defense” exception. See, e.g., Id. at 238; see also U.S. v. Evans, 113 F.3d 1457, 1467 (7th Cir. 1997). The “Joint Attorney” exception is denominated the “co-client” or “joint client” exception. See, e.g., In re Teleglobe Communications Corp., 493 F.3d 345, 359 (3d Cir. 2007). Some courts refer to these two exceptions as “privileges,” see, e.g., Teleglobe, 493 F.3d at 359, while others refer to them as “doctrines.” See, e.g., McCollough, 304 F.R.D. at 237-241. The Special Master, however, will refer to them as “exceptions” since they are not privileges in their own right, but are “extensions” of the privileges. See Id. 304 F.R.D. at 239 and Evans, 113 F.3d at 1467.
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *15-17, accepted, No. 18 C 6785, 2024 WL 165207 (N.D. Ill Jan. 16, 2024). The Special Master also applied that law to 10 Sinclair documents reviewed in camera. See id. Exhibit 4—Sinclair.
This exception encourages parties with shared legal interests to seek legal counsel “to meet legal requirements and to plan their conduct, accordingly.” See Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *15-16, quoting United States v. BDO Seidman, LLP, 492 F.3d 806, 816 (7th Cir. 2007) (citation omitted).
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *15.
Id., citing BDO Seidman, 492 F.2d at 816.
Id., citing BDO Seidman, 492 F.3d at 816.
Some courts in this jurisdiction hold that communications between clients will not fall outside the Common Interest exception to waiver where “the attorney has directed one party to gather confidential information from the parties or the attorney asks one party to relay confidential information to the other party. See McCullough, 304 F.R.D. at 240, citing Zitzka v. Village of Westmont, No. 07 C 0949, 2009 WL 1346256 at *2 (N.D. Ill. May 13, 2009) (Schenkier, M.J.).
Local TV Advert. (R&R No. 1), 2023 WL 5956851 at *17.
See Local TV Advert. (R&R No. 1), 2023 WL 5956851, at n.140.
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *17.
As of this Report and Recommendation, Plaintiffs dispute 17 Sinclair log entries that assert the Common Interest exception to waiver in the context of Sinclair and another corporation, each represented by counsel, seeking to advance what Sinclair asserts are “common legal interests.” See Exhibit C, Chart 1, at 1.
See generally Pls.’ MTC No. 15 (Sinclair), at 9-10 (ECF 741) and Pls. Reply, at 10-11 (ECF 826).
Of the 37 Sinclair log entries that assert an exception to waiver, 17 assert a common legal interest with other corporations, 10 assert a common legal interest with trade associations of broadcasters, and 11 assert a common legal interest with law firms. The Special Master addresses the claims of common interest with other corporations under the Common Interest exception to waiver, see Exhibit C, Chart 1, at 1, the claims of common interest related to broadcasting associations, see Exhibit C, Charts 2-4, at 5-25, under the Joint Attorney exception to waiver, and the separate claims of common legal interest” with the law firms of Loeb & Loeb, LLP or Cooley, LLP. See Exhibit C, Chart 5, at 31.
The Special Master evaluated above Sinclair's assertions of attorney-client privilege and work product protection in these 17 log entries and found them to be insufficient. Here, the Special Master only addresses the sufficiency of the log entries that assert the Common Interest exception to waiver.
Sinclair submitted no additional information to show that any of the individuals were attorneys.
The log entries arguably subject to the Joint Attorney exception to waiver number 70, which break down by defendants as: Meredith (57 log entries) (Ex. C, Chart 2, at 5), Raycom (2 entries) (Ex. C, Chart 3, at 23), and Sinclair (11 entries) (Ex. C, Chart 4, at 25).
Meredith explains its “common interest claims largely cover communications between members of various trade associations in the broadcasting industry, such as the National Association Broadcasters, Pearl TV, and Television Operators Caucus.” Meredith Opp. to Pls.’ MTC No. 13, at 12 (ECF 786). Raycom points out that the challenged log entries involve “counsel to the organization (Cooley LLP attorneys) and states the “supposed ‘third parties’ are instead, like Raycom, clients of the associational counsel.” Raycom Opp. to Pls.’ MTC No. 11, at 14 (ECF 783). Sinclair focuses on one log entry, which it explains shows “that an employee of the [South Carolina Broadcasters] Association forwards legal advice from Mr. Johnson to its Board of Directors” and further states that Mr. Johnson, a member of the law firm Fletcher, Heald & Hildreth PLC, is counsel to the Association. See Sinclair Opp. to Pls.’ MTC No. 15, at 8 (ECF 781).
See generally McCollough v. Fraternal Order of Police, Chicago Lodge 7, 304 F.R.D. 232, 238 (N.D. Ill. 2012) (Cole, M.J.), citing In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007) and F.D.I.C. v. Ogden Corp., 202 F.3d 454 (1st Cir. 2000).
See generally McCollough, 304 F.R.D. at 238.
Teleglobe, 493 F.3d at 363 and 379, citing Restatement (Third) of the Law Governing Lawyers δ75(2).
Teleglobe, 493 F.3d at 379.
See FDIC v. Ogden, 202 F.3d at 463 (1st Cir. 2000) (detailing Dickstein's engagement letter and requirements of co-clients to sign).
See, e.g., Teleglobe, 493 F.3d at 363.
See Email, Ms. Anderson to All Parties (Aug. 8. 2024) (“The Special Master asks that all Defendants review their log entries at issue in RR3 to determine whether they too assert privilege claims that belong to a third party.”)
Mr. Vaughn's declaration was as conclusory, as were Meredith's log entries, and the declaration provided no additional factual information to support Meredith's assertions of attorney-client privilege.
The Special Master inadvertently asked Scripps to submit documents that Plaintiffs ostensibly challenged for a Category #3 failing, to wit “Attorney Only in Description, Not in To/From.” Neither of the parties briefed this challenge, however, and thus the Special Master deemed it not to be in dispute. See supra.
See, e.g., Plaintiffs’ Discovery Motion No. 13: To Compel Defendant Meredith Corporation to Produce Documents Withheld as Privileged, at 8 (ECF 731), requesting “the Court [to] compel Meredith to produce all documents[.]”.
See, e.g., Pls.’ Reply re MTC No. 9 (Nexstar), at 2 (ECF 827), quoting Babych v. Psychiatric Sols., Inc., 271 F.R.D. 603, 608 (N.D. Ill. 2010).
Pls.’ Reply re MTC No. 11 (Raycom), at 1 (ECF 821). See also Pls.’ Reply re MTC No. 13 (Meredith) at 4 (ECF 823) (“Meredith made its bed and must now lie in it.”); Pls.’ Reply re MTC No. 12 (Scripps), at 14 (ECF 822) (“Scripps made its bed, and must now lie in it”).
See, e.g., Plaintiffs.’ Reply re MTC No. 11 (Raycom), at 12 (ECF 821) and Plaintiffs.’ Reply re MTC No. 15 (Sinclair), 14 14 (ECF 826), both quoting Klig v. Deloitte LLP, No. 4993, 2010 WL 3489735 at *4 (Del. Ch. Sept. 7, 2010).
See Meredith's Opp. to MTC No. 13, at 5 (ECF 786); Nexstar's Opp. to MTC No. 9, at 14-15 (ECF 792); Raycom's Opp. to MTC No. 11, at 4 (ECF 783); Scripps’ Opp. MTC No. 12 at 14-15 (ECF 790); Sinclair's Opp. to MTC No. 15, at 14-15 (ECF 781); and TEGNA's Opp. to MTC No. 14-A, at 4-5 (submitted to the Special Master).
See Meredith's Opp. to MTC No. 13 at 1-3 (ECF 786); Nexstar's Opp. to MTC No. 9 at 15 (ECF 792); Raycom's Opp. to MTC No. 11 at 1-4 (ECF 783); Scripps’ Opp. MTC No. 12 at 1-3 (ECF 790); Sinclair's Opp. to MTC No. 15 at 1, 14 (ECF 781); and TEGNA's Opp. to MTC No. 14 at 3-4 (ECF 797).
See Meredith Opp. to MTC No. 13 at 5 (ECF 786); Raycom Opp. to MTC No. 11 at 4 (ECF 783); TEGNA Opp. MTC No. 14 at 4 (ECF 797).
Defendants’ Reply to Plaintiffs’ Proposed Protocol for Privilege Review, at 2 (submitted to the Special Master, Mar. 20, 2023) (emphasis in original).
Local TV Advert. Litig., 2023 WL 5659926, *4 (N.D. Ill. Aug. 31, 2023), citing Jones v. City of Elkhart, 737 F.3d 1107, 1115 (7th Cir. 2013). See also Silets v. United States Dep't of Just., 945 F.2d 227, 232 (7th Cir. 1991); In re Walsh, 623 F.2d 489, 494 n.5 (7th Cir. 1980); St. Paul Guardian Ins. Co. v. Walsh Constr. Co., No.1:15-cv-10324, 2022 WL 1642311, at *1 (N.D. Ill. Mar. 30, 2022) (Norgle, J.).
The Seventh Circuit undertook an Electronic Discovery Pilot Program in 2009 “to consider what can be done to reduce the costs of electronic discovery[.]” See Seventh Circuit Electronic Discovery Pilot Program, Phase One, October 1, 2009 - May 1, 2010, Statement of Purpose and Preparation of Principles, 7 (Oct. 1, 2009). The Program began by articulating principles to assist the courts in the administration of Rule 1. The first substantive principle concerned cooperation among counsel and parties. It stated in pertinent part: “The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.” Id. at 11.
Gerba v. Nat'l Hellenic Museum, 351 F. Supp. 3d 1097, 1099–100 (N.D. Ill. 2018) (Cole, M.J.) (internal quotation marks omitted).
Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., No. 91 C 6103, 1993 WL 20164, at *1 (N.D. Ill. Jan. 27, 1993), citing Holzman v. Jaymar–Ruby, Inc., 916 F.2d 1298, 1303 (7th Cir.1990).
Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 720–21 (7th Cir. 2008). See also Bonds v. Coca-Cola Co., 806 F.2d 1324, 1328 (7th Cir. 1986) (Denounces a party “that left it to the court to plough the record to see what would turn up. This does not comply with our rules, and it is a disservice to other litigants, whose cases languish while the judges bore through dusky papers to find material that counsel should have highlighted.”).
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam).
Eureka Fin. Corp. v. The Hartford Accident & Indemn. Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991).
Although Nexstar, Raycom, Sinclair, and TEGNA asserted work product protection in numerous log entries, as noted above, they failed to provide factual information to support those assertions of work product protection.
Radiant Burners, 320 F.2d 314, 319 (7th Cir. 1963).
Gross v. Town of Cicero, Ill., 619 F.3d 697, 704 (7th Cir. 2010). See also; APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002) (“A plaintiff cannot rely on the entire UCC and leave it to the court to determine what code sections apply to her claim. It is not the court's responsibility to research the law and construct the parties’ arguments for them.”); Spath v. Hayes Wheels Int'l–Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000) (“It is not this court's responsibility to research and construct the parties’ arguments[.]”); Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir.1986) (“It is not the obligation of this court to research and construct the legal arguments open to parties.”).
See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (“our judges are busy people. If they are given plausible reasons for dismissing a complaint, they are not going to do the plaintiff's research and try to discover whether there might be something to say against the defendants’ reasoning.”); Towne Place Condo. Ass'n v. Philadelphia Indem. Ins. Co., 284 F. Supp. 3d 889, 901 (N.D. Ill. 2018) (Cole, M.J.) (“Improper and needless assertions of privilege needlessly sap the necessarily limited time of judges, forcing parties with substantial disputes to wait in a longer queue and condemning them to receive less judicial attention when their cases finally are heard. This is a significant problem on which the Seventh Circuit in other contexts has spoken.”) (citations omitted).
See, e.g., Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1380 (7th Cir. 1990).
See St. Paul Guardian Ins. Co. v. Walsh Construction Co.,1:15-cv-10324, 2022 WL 1642311 at *2 (N.D. Ill. March 30, 2022) (Norgle, J.) (Magistrate Judge did not abuse his discretion when he ordered production of hundreds of documents “because the privilege logs were inadequate under Rule 26(b)(5). Fed. R. Civ. P. 26(b)(5)(A)(ii)”); Acosta v. Target Corp., 281 F.R.D. 314, 323-25 (N.D. Ill. 2012) (Brown, J.) (ordered production of documents listed on privilege log where privilege claimant failed to provide supporting factual material showing the documents were created and maintained as confidential legal advice); Jorling v. Anthem, Inc., No. 1:09-CV-0798-TWP-TAB, 2011 WL 3759189, at *3 (S.D. Ind. Aug. 25, 2011) (“After reviewing Defendants’ privilege log, this Court determined that Defendants failed to establish that certain documents were related to legal advice” and ordered production of those documents); B.F.G. of Ill., Inc. v. Ameritech Corp., No. 99 C 4604, 2001 WL 1414468, at *2, 5-8 (N.D. Ill. Nov. 13, 2001) (Norgle, J.) (court ordered production of hundreds of documents and imposed sanctions where party failed to provide adequate privilege log and, based on in camera review, improperly asserted privilege); In re General Instrument Corp. Securities Litigation, 190 F.R.D. 527, 531-32 (N.D. Ill. 2000) (Bobrick, M.J.) (Court compelled production of 396 documents because privilege log contained “sketchy, cryptic, often mysterious descriptions of subject matter” that were insufficient to fulfill the defendant's burden of establishing the elements of the privilege for each document.); ConAgra, Inc. v. Arkwright Mut. Ins. Co., 32 F. Supp. 2d 1015, 1018 (N.D. Ill. 1999)(Levin, M.J.) (directing defendant to produce 54 documents withheld and 10 additional documents initially produced in redacted form because defendant failed to include sufficient descriptions of the documents in its privilege log to establish the privilege); In re Uranium Antitrust Litig., 552 F. Supp. 517, 518 (N.D. Ill. 1982)(Marshall, J.) (directing parties to produce approximately 40,000 documents and denying request for in camera inspection of those documents where parties made only blanket assertions of privilege and noted in their briefs to the court that individual inspection of the documents by their senior attorneys for purposes of determining whether they were privileged would be too time-consuming).
As noted by the Court in this case, “district courts enjoy extremely broad discretion in controlling discovery.” Local TV Advert. Litig., 2023 WL 5659926, *4 (N.D. Ill. Aug. 31, 2023), citing Jones v. City of Elkhart, 737 F.3d 1107, 1115 (7th Cir. 2013). See also Silets v. United States Dep't of Just., 945 F.2d 227, 232 (7th Cir. 1991); In re Walsh, 623 F.2d 489, 494 n.5 (7th Cir. 1980); St. Paul Guardian Ins. Co. v. Walsh Constr. Co., No.1:15-cv-10324, 2022 WL 1642311, at *1 (N.D. Ill. Mar. 30, 2022) (Norgle, J.). Indeed, it is “possible for two judges, confronted with the identical record, to come to opposite conclusions, and for the appellate court to affirm both.” See United States v. CVS Health Corp., 2023 WL 2771166, at *3 n.2 (N.D. Ill. Apr. 4, 2023) (Cole, M. J.), quoting Mejia v. Cook Cnty., Ill., 650 F.3d 631, 635 (7th Cir. 2011).
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *21.
To clarify a statement in Report and Recommendation No. 1, Nexstar provided legal titles but not business titles of its in-house counsel. See Local TV Advert. (R&R No.1), 2023 WL 5956851, at *21.
For some names on the emails, the fact that an individual was an attorney was apparent from the body of the email. The emails, while available to the Special Master during his in camera review, were not available to the Plaintiffs from reviewing the log entries. In other instances where there was no specific identifying information, the Special Master could have Googled the name to see if someone was an attorney, but that was the obligation of Defendants to have provided such information to Plaintiffs and to the Special Master.
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *21, n. 167, citing Horne v. Elec. Eel Mfg. Co., Inc., 987 F.3d 704, 728 (7th Cir. 2021) (“[A] company may decide for strategic business reasons not to pursue legal arguments that may be available to them”). See also Towne Place Condo. Ass'n v. Philadelphia Indem. Ins. Co., 284 F. Supp. 3d 889, 901–02 (N.D. Ill. 2018) (Cole, M.J.) (“A court does a disservice to the system, and to one party when it assists the other party in the presentation of its case. Indeed, the Seventh Circuit has cautioned courts not to go beyond the parties’ presentations.”).
Local TV Advert. (R&R No. 1), 2023 WL 5956851, at *20. The Special Master's review of the correspondence exchanged during the meet-and-confer process found no indication that any Defendant provided factual information to Plaintiffs but, instead, relied on assurances and representations of counsel. See Decl. ISO Pls.’ Mot. to Compel No. 5 (entered 8/10/2022) (ECF 688).
Massachusetts Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 914 F. Supp. 1172, 1178 (E.D. Pa. 1996).
Local TV Advert., 2024 WL 165207, at *3.
See Surgery Ctr. at 900 N. Michigan Ave., LLC v. Am. Physicians Assurance Corp., Inc., 317 F.R.D. 620 (N.D. Ill. 2016) (“[J]udges should be chary about accepting the responsibility for reviewing documents in camera and thereby substituting their limited knowledge of the case for that of counsel who is infinitely more familiar than the judge with what may be impeaching.”); United States ex rel. McGee v. IBM Corp., 2017 WL 1232616, at *3 (N.D. Ill. Apr. 4, 2017) (Cole, M.J.) (“I have no familiarity with the actors and actions that are discussed in the documents at issue and, without an adequate log to provide context, even an in camera inspection would be futile.”).