# In Re: Local TV Advertising Antitrust Litigation

> District Court, N.D. Illinois · January 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10149960

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** January 16, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10149960. Public record. Not legal advice.