In Re: Local TV Advertising Antitrust Litigation

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

)

) MDL No. 2867

IN RE: LOCAL TV ADVERTISING ) No. 18 C 6785

ANTITRUST LITIGATION )

) Judge Virginia M. Kendall

)

MEMORANDUM OPINION & ORDER

In March 2023, the Court appointed the Honorable Richard A. Levie (Ret.), to serve as

Special Master and rule upon pending motions relating to privilege log entries. (Dkt. 925).

Defendants object to the Special Master Report and Recommendation No. 1 that addresses their

privilege assertions as to guidelines, training materials, and other antitrust compliance materials.

(Dkts. 1030, 1052). For the following reasons, the Special Master Report and Recommendation

No. 1 [Dkts. 1030, 1033] is accepted in full.

BACKGROUND

The Court assumes familiarity with the Special Master Report and Recommendation No.

1 (“R&R”), (Dkt. 1030), and the facts of this case set forth in detail in prior rulings, see In re Local

TV Advertising Antitrust Litigation, No. 18 CV 6785, 2022 WL 3716202 (N.D. Ill. Aug. 29, 2022).

Plaintiffs seek Defendants’ “guidelines, training materials, and communications that concern

compliance with the federal or state antitrust or competition laws.” (Dkt. 1030 at 3). The R&R

delineates which of these materials are protected by attorney-client privilege, work product

doctrine, and the common interest exception. Defendants object. The parties’ fight over the

antitrust compliance documents has been thoroughly documented over the last two years, spanning

across 21 briefs. (Id.)

Plaintiffs challenge the merits of Defendants’ privilege claims, not the sufficiency of

Defendants’ privilege log entries. (Id.) Following Plaintiffs’ motions to compel in August 2022,

(Dkts. 677, 727, 728, 729, 730, 731, 732, 733), the Court appointed The Honorable Richard A.

Levie (Ret.) in March 2023 to serve as Special Master to “consider and rule upon . . . pending

motions relating to privilege log entries.” (Dkt. 1030 at 12; Dkt. 925 at 2). The Special Master

prioritized review of the challenged antitrust compliance materials and released his R&R in July

2023. (Dkt. 1060 at 4; Dkt. 1030).

The Special Master’s findings and recommendations were based on: (1) an in camera

review of the 304 contested documents; (2) lists identifying attorneys who appear in Defendants’

privilege logs; (3) examination of Defendants’ privilege logs; (4) briefs submitted by the parties;

and (5) declarations by litigation counsel authenticating emails and letters exchanged in the meet

and confer process. (See Dkt. 1060 at 5). The Special Master found that Defendants “largely failed

to carry their burdens to establish that the attorney-client privilege or work product doctrine

applied to the documents” and recommended that Defendants be ordered to produce 289 of the

304 withheld antitrust compliance materials. (Id. at 5–6; Dkt. 1030 at 5). The 175-page R&R and

accompanying exhibits lay out the applicable legal standard in depth, findings on each of the

contested documents, and responses to Defendants’ arguments for privilege, including their (1)

attempt to shift the burden of asserting privilege to Plaintiffs; (2) elements of attorney-client

privilege; (3) the impact of internal dissemination of possibly privileged documents; and (4) the

lack of Defendants’ factual support for assertions of privilege. (See Dkts. 1030, 1033).

Unsurprisingly, Defendants objected to the R&R. (Dkt. 1052). Their objections are

primarily concerned with (1) the Special Master’s review process as they seek to supplement their

privilege assertions with further extrinsic evidence; and (2) the legal standard the Special Master

applied in considering whether a document was privileged based on whether it contained client

confidences. The parties agreed that the Court would review the Special Master’s findings of fact

for clear error, rulings on procedural matters for abuse of discretion, and findings of law de novo.

(Dkt. 925 at 4).

DISCUSSION

a. Process and Extrinsic Evidence

First, Defendants argue that the Special Master’s process was unreasonable and arbitrary

as they were not given an opportunity to supplement their privilege assertions with additional

extrinsic evidence before or after the in camera review. (Dkt. 1052 at 4). Under the circumstances,

the Court finds the Special Master did not abuse his discretion in deciding to review the documents

in camera without additional supplemental extrinsic evidence from the Defendants.

The Court reviews objections to process for abuse of discretion. The abuse of discretion

standard is highly deferential; the Court will only disturb the Special Maser’s decision if he has

“acted unreasonably” or is “fundamentally wrong . . . clearly unreasonable, arbitrary, or fanciful.”

Miller v. Chi. Transit. Auth., 20 F.4th 1148, 1153 (7th Cir. 2020); Am. Nat. Bank & Tr. Co. of Chi.,

406 F.3d, 867 878 (7th Cir. 2005) (internal citations omitted).

After the Special Master was appointed in March 2023, the parties determined he should

prioritize his review of the antitrust compliance materials. (Dkt. 1060 at 4). Ultimately, the Special

Master undertook an in camera review of the documents. (Id.; Dkt. 1052 at 11). When he reviewed

in camera, the Special Master had available “more than 750 pages of briefing, more than 2,000

pages of supporting declarations, exhibits, and other materials, and more than 190 judicial opinions

concerning Defendants’ assertions of privilege.” (Dkt. 1060 at 5). Though Defendants argue they

should have been given a chance to supplement their privilege assertions in line with “typical

practice,” (Dkt. 1052 at 4), this step mainly occurs during privilege log objections, before resorting

to a time-consuming and costly in camera review. See, e.g., Wier v. United Airlines, Inc., No. 19

CV 7000, 2021 WL 1517975, at *17 (N.D. Ill. Apr. 16, 2021); Crabtree v. Experian Info. Sols.,

Inc., No. 16 CV 10706, 2017 WL 4740662, at *3 (N.D. Ill. Oct. 20, 2017). Here, the Plaintiffs

challenged the merits of the privilege claim itself. This dispute is well beyond the sufficiency of

the privilege log, and it is within the judicial officer’s discretion whether to allow additional factual

evidence after in camera review. See Sulfuric Acid Antitrust Litig., 432 F. Supp. 2d 794, 797 (N.D.

Ill. 2006) (Sulfuric Acid II). It was not “fundamentally wrong” or “clearly unreasonable” for the

Special Master to make his determinations based on the vast amount of information he had at his

disposal and to resolve the parties’ disputes with the best evidence of privilege, the documents

themselves.

In fact, “[o]nly when the district court has been exposed to the contested documents and

the specific facts which support a finding of privilege under the attorney-client relationship for

each document can it make a principled determination as to whether the attorney-client privilege

in fact applies.” Am. Nat. Bank., 406 F.3d at 880 n. 7 (citing In re Grand Jury Proceedings, 220

F.3d 568, 571 (7th Cir. 2000). This is precisely what the Special Master determined in his

discretion. Defendants appear to agree on this point. As Defendants lay out and support with

examples, “[e]xtrinsic evidence is not required to support a privilege claim—particularly, as here,

where the document itself is submitted for in camera review.” (Dkt. 1052 at 25); Wier, 2021 WL

1517975, at *17 (“The ultimate proof of privileged content is the disclosure of the content itself.”

(quoting Washtenaw Cty. Employees’ Ret. Sys. v. Walgreen Co., No. 15 CV 3187, 2020 WL

3977944, at *3 (N.D. Ill. July 14, 2020))); SEC v. Hollnagel, No. 07 CV 4538, 2010 WL 11586980,

at *9 (N.D. Ill. Jan. 22, 2010) (noting that the Special Master’s in camera review was done “in

conjunction” with the defendants’ declarations and privilege logs, so that “the privileged nature of

a communication may be established by the document itself and the circumstances relating to the

communication”). While Defendants now desire to offer more extrinsic evidence, it was not an

abuse of discretion for the Special Master to conduct the in camera review and make his

determinations with the evidence in front of him years into the process. The Defendants cannot

now complain that the Special Master actually delved into the substance and found many of their

assertions unsupported. Ultimately in the context of attorney-client privilege, “[l]abels do not

control; substance does.” Motorola Sols., Inc. v. Hytera Commc’ns Corp., No. 17 CV 1973, 2018

WL 1804350, at *4 (N.D. Ill. Apr. 17, 2018).

Relatedly, Defendants take issue with the Special Master’s proposition that, “[u]nless a

document is crystal clear on its face that the attorney-client privilege or work product protection

applies, only extrinsic evidence can possibly establish the validity of the proponent’s claims.”

(Dkt. 1030 at 45). The Special Master found that Defendants “largely failed to carry their burdens

to establish that the attorney-client privilege or work product doctrine” applied to their documents.

(Dkt. 1030 at 5–6); Shaffer v. Am. Med. Assoc., 662 F.3d 439, 446 (7th Cir. 2011) (“[T]he burden

is on the seeking to invoke the privilege.” (citing United States v. White, 950 F.2d 426, 430 (7th

Cir. 1991))). Yet, Defendants argue that the Special Master did not provide notice of “the

information he deemed necessary” to make privilege determination, (Dkt. 1052 at 22), and held

them to a stricter evidentiary standard than required under the law using that proposition.

The Defendants extrapolate one sentence out of a 55-page opinion. To be clear, the

sentence that Defendants take issue with is not a legal standard. Yet, Defendants incorrectly

conflate the Special Master’s language opining on the deficiencies of their submission with his

espousing a standard. The context of the R&R’s statement is important. The Special Master noted

that the Defendants “uniformly elected not to proffer extrinsic evidence,” only offered “assurances

that the withheld documents are privileged,” and did not provide job descriptions of positions or

complete attorney lists. (Dkt. 1030 at 45). Which left the situation where, “[u]nless a document is

crystal clear on its face that the attorney-client privilege or work product protection applies, only

extrinsic evidence [could] possibly establish the validity of the proponent’s claims.” (Id.) He

observed, “had Defendants provided some extrinsic evidence as to why a document was created

or how it was being used,” he could have considered such evidence. (Id. at 48). Instead, Defendants

provided the “bare reference to someone being an attorney” in their attorney lists and left out job

descriptions of the individuals receiving communications. (Id.) The Special Master was merely

opining on what he viewed as Defendants inadequate shouldering of their burden and any

argument that he created a new standard mischaracterizes the R&R and ignores the over fifteen

pages laying out the applicable legal standards.

Nor does the Court see any evidence in the Special Master’s review that this nonexistent

standard is one to which he held Defendants. The phrases “crystal clear” or “clear and convincing”

do not appear once in the Special Master’s findings on the documents. (See Dkt. 1033). In context,

the Court reads this statement as criticism of the Defendant’s submission and a reiteration of the

law that the burden is on the party asserting privilege to come forward with facts necessary to

establish privilege, as the Special Master outlined. (See Dkt. 1030 at 24–26).

In sum, the Special Master did not abuse his discretion by reviewing the records as

presented by the parties, such as lists of identifying attorneys, the documents themselves, briefs,

and the privilege logs. In any event, the Defendants failed to provide further extrinsic evidence,

period. There is no mystery 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.

b. Client Confidences and Legal Advice

The R&R sets forth the legal standard for attorney-client privilege, work product doctrine,

and common interest exception to waivers in this jurisdiction. (Dkt. 1030 at 21–37). Here,

Defendants’ primary issue is whether legal advice, standing alone and “untethered” to client

confidences, is privileged. (Id. at 24; Dkt. 1052 at 10). The Court declines to endorse the

Defendants’ expansion of attorney-client privilege to 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.

The Court will briefly take this opportunity to address confusion on when the privilege

applies to lawyer’s statements to clients. 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.” United States v. Evans, 113

F.3d 1457, 1461 (7th Cir. 1997); see United States v. Brown, 478 F.2d 1038, 1040 (7th Cir. 1985)

(“[W]hat is vital to the privilege is that the communication be made in confidence for the purpose

of obtaining legal advice from the lawyer.” (quoting United States v. Kovel, 296 F.2d 918, 922 (2d

Cir. 1961))) (emphasis in original).1 Though privilege is deemed generally to apply only to

communications by the client, statements made by the lawyer to the client will be protected in

1 The Seventh Circuit has articulated the following test for determining whether the attorney-client privilege

attaches to a communication:

(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.

United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (quoting 8 John Henry Wigmore, Evidence in

Trials at Common *217 Law § 2292 (1961)). The Court directs parties to Dkt. 1030 at 21–31 for a detailed

account of the elements of attorney-client privilege. As Defendants take issue with the distinctions

surrounding client confidences, the Court will not repeat this analysis.

circumstances where those communications rest on confidential information obtained from the

client, or where those communications would reveal the substance of a confidential

communication by the client. Rehling v. City of Chicago, 207 F.3d 1009, 1019 (7th Cir. 2000); see

In re Witnesses Before the Special March 1980 Grand Jury, 729 F.2d 489, 493 (7th Cir. 1984); In

re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407, 415 (N.D. Ill. 2006) (Sulfuric Acid I).

Defendants argue that “legal advice” that does not reveal client confidences is protected.

(Dkt. 1052 at 6). Defendants’ position purportedly rests on this circuit’s decisions that

communications from attorney to client are privileged only if they “constitute legal advice, or tend

directly or indirectly to reveal the substance of a client confidence.” United States v. Defazio, 899

F.2d 626, 635 (7th Cir. 1990); Carmody v. Bd. of Trs., 893 F.3d 397, 405 (7th Cir. 2018). The

disjointed “or” after “advice,” read out of context, lends to the conclusion that legal advice standing

alone is privileged. However, read together in the context of the law in this circuit—as the Special

Master thoroughly exhausted when examining the specific situation of antitrust compliance

manuals—it is clear that statements by lawyers to clients must be tethered to or rest on client

confidences in some way. (See Dkt. 1030 at 24). Moreover, public information such as legislation,

regulations, or summaries of the law made in “an objective, neutral manner,” are not privileged

legal advice solely because an attorney was the author. (Dkt. 1030 at 27–28); Sulfuric Acid I, 235

F.R.D. at 431.

One way of assessing privilege based on client confidences is viewing the document and

other evidence provided and determining whether a statement by a lawyer “rest[s] on confidential

information obtained from the client,” Rehling, 207 F.3d 1009, or “reveal[s], either directly or

implicitly,” the substance of a client confidence, Defazio, 899 F.2d at 625, 635 (allowing

defendant’s attorney to testify “only to what the IRS agent said to him, and that he later relayed

those statements to [the defendant],” which did not directly or indirectly reveal a client

confidence); see also United States v. Sadler, 24 F.4th 515, 558 (6th Cir.), cert. denied sub nom.

Tempo v. United States, 143 S. Ct. 169 (2022) (using Defazio’s reasoning to find that the attorney’s

testimony did “not disclose the contents of any meetings or conversations [with defendants]”).

The thrust is whether the lawyer’s statements reveal client confidences or reveal that legal

advice was sought and obtained. To be sure, on the whole, lawyer’s legal advice is not usually

offered in a vacuum without a corresponding request for legal advice or confidence given from the

client. This inference, however, is not presumed. To attribute 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 be to expand attorney client privilege beyond its narrowly construed scope.

(See Dkt. 1030 at 23–24) (finding no basis under the Supreme Court and Seventh Circuit law to

expand “the scope of attorney-client privilege . . . [to] legal advice alone, which does not reveal

client confidences”). Defendants’ reading of the law would assume all statements of “legal advice”

to indirectly reveal a client confidence or request for legal advice. But a privilege determination

cannot be so speculative or far reaching. That is precisely why the asserting party has the burden

to provide the facts and context to tether the privilege claim. No cases that Defendants cite provide

the basis to reverse the R&R’s conclusion.2

With antitrust compliance materials, they “tread[] in an area of privilege law that is

generally recognized to be ‘especially difficult,’ namely, distinguishing . . . legal advice from . . .

business advice.” Urb. 8 Fox Lake Corp. v. Nationwide Affordable Hous. Fund 4, LLC, 334 F.R.D.

149, 158 (N.D. Ill. 2020) (collecting cases and quoting Am. Nat. Bank, 406 F.3d at 879). When

2 At any rate, the Special Master found all but 13 documents to not contain legal advice. The thirteen

exceptions are TEGNA Privilege Log Nos. 212, 226, 227, 435, 464, 466, 508, 511, 512, 514, 615, 616, and

632. For these entries, the Special Master noted only that the documents did not contain client confidences

or “legal advice reflecting [or based on a] client confidence[].” (See, e.g., Dkt. 1033 at 165).

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. United States v. Frederick, 182 F.3d 496, 501 (7th Cir. 1999).

The Court recognizes that distinguishing between business and legal advice is difficult. But, in the

context of antitrust compliance documents, which are statements from a lawyer to a client, the

Court reads the R&R to properly find that “client confidences” is the key thrust. “Neutral objective

analyses” of the law or “articulation[s] of policy” are not privileged. Sulfuric Acid I, 235 F.R.D. at

431. Further, “ongoing requests . . . for legal advice regarding complex antitrust issues,” are “not

enough” to show client confidences were communicated or legal advice requested. Id. at 432.

Thus, the Special Master found that Defendants failed to meet their burden to tether these

documents to client confidences or responses to requests for legal advice. The R&R reviewed the

documents in camera and found for example, that the documents “contain[ed] no client

confidences, no legal advice, and no legal advice reflecting client confidences,” (Dkt. 1030 at 62,

107), or conversely “disclose[d] confidential client information and legal advice concerning that

confidence,” (Dkt. 1033). The Special Master noted that Defendants treatment of the term “legal

advice” on their privilege log as “dispositive to the issue of privilege” was insufficient to back

their assertions of privilege. (Dkt. 1030 at 42). “Unfortunately . . . saying so doesn’t make it so.”

United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010).

CONCLUSION

For the foregoing reasons, the Special Master Report and Recommendation No. 1 [Dkts.

1030, 1033] is accepted and Defendants’ Objections are overruled [1052].

cD la”

Apyeal Meader

APA CICS AME er

Vifothia M. Kbrfdall

Suited States District Judge

Date: January 16, 2024

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