Seeks

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE THE BOEING COMPANY )

AIRCRAFT SECURITIES ) No. 19 CV 2394

LITIGATION )

) Magistrate Judge Young B. Kim

)

)

) February 17, 2026

)

MEMORANDUM OPINION and ORDER

Plaintiffs filed a putative class action on behalf of the shareholders of Boeing

Company (“Boeing”) for securities fraud under Section 10(b) of the Securities

Exchange Act. Before the court is Plaintiffs’ motion to compel Defendants to produce

an amended privilege log with more detailed document descriptions and certain

categories of documents Defendants improperly withheld. (R. 443, Pls.’ Mot. Compel

(“Motion” or “Mot.”).) Defendants oppose the Motion. (R. 454, Defs.’ Opp’n

(“Opposition” or “Opp.”).) For the following reasons, the Motion is granted only to the

extent that Defendants are ordered to further amend their most recent privilege log

in accordance with the following rulings:

Background

Plaintiffs argue that Defendants’ privilege log is deficient and Defendants

improperly withheld documents based on spurious privilege claims. This matter

involves securities fraud claims against Boeing, its former President and CEO Dennis

Muilenburg, and former CFO Gregory Smith. Plaintiffs allege that during the first

part of 2019, Defendants knowingly misstated and concealed information about

safety problems with Boeing’s 737 MAX after the Lion Air Flight 610 crash in October

2018 and the Ethiopian Airlines Flight 302 crash in March 2019, artificially inflating

Boeing’s financial prospects and stock price.

During written discovery, the court ordered Defendants to complete their

document production and serve their privilege log by May 1, 2025. (See R. 400,

March 6, 2025 Order.) Defendants timely produced their first privilege log, which

spanned over 14,000 entries and 420 pages. (Mot. at 3.) Plaintiffs complain about

the number of documents withheld, (id.), but Defendants point out that they produced

over 500,000 documents, (Opp. at 1-2).

On June 11, 2025, Defendants served on Plaintiffs an amended privilege log

that reduced the total number of entries to 11,663 and produced more than 2,800

documents they previously redacted or withheld as privileged. (Mot. at 3.) Less than

two weeks later, on June 24, 2025, Defendants produced a second amended privilege

log (the “Log”) that includes 11,765 entries—102 more entries than the amended log.

(Id.). Three days later, Plaintiffs filed the instant motion.

After Plaintiffs filed the motion but one day before Defendants filed the

Opposition, Defendants served on Plaintiffs a third amended log on July 15, 2025.

(Opp. at 9 n.2, 13 n.3, 14 n.4.) This most recent log has the same number of entries

as the Log but includes updated descriptions for at least seven entries and additional

information, including senders, recipients, and privilege codes for about 400 entries

that Defendants say was “inadvertently omitted” from the Log. However, because

Plaintiffs relied on the Log and cited to it when filing their motion, this court focuses

on the Log and not the most recent version. Defendants may further amend or keep

the entries as they are in the more recent version based on the rulings included

herein.

Preliminary Issues

For the sake of clarification and transparency, the court addresses confidential

designations and exhibits submitted for in camera review at the outset.

A. Confidential Designation

The court first addresses Defendants’ confidentiality designation for the Log.

When moving to compel, Plaintiffs initially filed a redacted version of the Motion,

(R. 441), attaching Exhibits C, I, and J, which consist of publicly available documents,

along with an unredacted version of the Motion, (R. 443), and Exhibits B, E, and G,

under seal. Exhibits B, E, and G include emails the attorneys of record exchanged

regarding issues surrounding Defendants’ privilege logs. Plaintiffs filed the

unredacted version of the Motion and Exhibits B, E, and G under seal because

Defendants designated their privilege logs as “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY.” (R. 441, Exs. D, F, H (submitted for in camera review);

see also R. 444, Pls.’ Mot. to File Under Seal.) Consistent with their practice, the Log

is also marked as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

(R. 454, Ex. 2 (submitted for in camera review).)

This court finds this designation at odds with Rule 26(b)(5) and the Agreed

Confidentiality Order it entered in January 2023. (R. 240.) Given the strong

preference for transparency and public access to court records, especially in a putative

class action case that may concern members of the public not yet involved in the

litigation, this court avoids sealing documents on the public docket or concealing

information it considers when ruling on disputes whenever possible.

Rule 26(b)(5) provides that “[w]hen a party withholds information otherwise

discoverable by claiming that the information is privileged or subject to protection as

trial-preparation material, the party must . . . expressly make the claim[] and

. . . 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.” The

objective of preparing and producing a privilege log is to share information that is not

confidential or privileged—certainly not information that only attorneys can access.

Furthermore, under Paragraphs 2 and 3 of the Agreed Confidentiality Order,

“Highly Confidential Information” is “Confidential Material . . . that is of such a

private, sensitive, competitive, or proprietary nature that disclosure of such material

is likely to cause serious economic harm or competitive disadvantage to the producing

party such that protecting the information cannot be avoided by less restrictive

means than by designation as Highly Confidential.” (R. 240, Agreed Confidentiality

Order at 2.) While the underlying communications themselves may be confidential,

the Log’s descriptions of these communications are not. It is not a secret that

Defendants have been sued for their statements regarding “issues related to MCAS”

and Boeing 737 MAX planes. As such, disclosing that Defendants sent and responded

to, for example, “email[s] requesting legal advice regarding draft Board report

concerning RTS status” in the wake of Lion Air and Ethiopian Airlines 737 MAX

crashes killing all passengers and crew members is not likely to cause serious

economic harm or competitive disadvantage to Defendants.

Also, to the extent that the public disclosure of brief email descriptions harms

Defendants, like where Boeing’s in-house counsel received and sent requests for legal

advice about company statements regarding the 737 MAX crashes, that ship has

sailed. Indeed, those statements are the subject of this public litigation, and it should

surprise no one that a sophisticated aircraft manufacturer would consult its attorneys

before making public statements about its planes crashing, killing hundreds of

people. Moreover, those crashes and corresponding statements about them have been

the subject of such overwhelming global interest and scrutiny that a Google search

reveals troves of Wikipedia pages, business school case studies, and thousands of

news articles about the same information Defendants suggest is “Highly

Confidential” here. While the court is not requiring Defendants to file the Log on the

docket, they cannot treat it as something it is not.

B. In Camera Review

The court next comments on the parties’ submission of some of their exhibits

for in camera review. Generally, litigants should not submit exhibits they rely on for

in camera review when seeking or opposing relief because they should be accessible

on the public docket. If in camera submission is necessary because of the sensitive

nature of the information, litigants should seek the court’s permission and explain

why in camera submission is needed. Here, Plaintiffs emailed various privilege logs

and challenges thereto for this court’s review without filing them on the docket. In

light of the court’s ruling requiring Defendants to further amend the Log, Plaintiffs

are not required to file these exhibits on the docket, but the parties must be mindful

of the court’s obligation to maintain transparency.

As for reviewing the documents underlying the Log, this court declines to do

so. Plaintiffs note that the court may be “inclined to review a sampling of the

purportedly privileged documents in camera,” and express their willingness to work

with Defendants to create a sampling of such documents. (Mot. at 15.) It is true that

in camera review of withheld documents is “a highly appropriate and useful means

of dealing with” privilege issues, Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S.

394, 406 (1976), and such procedure is within the court’s discretion,

St. Paul Guardian Ins. Co. v. Walsh Constr. Co., No. 15 CV 10324, 2021 WL 4745385,

at *5 (N.D. Ill. Oct. 12, 2021), objections overruled, 2022 WL 1642311 (N.D. Ill. March

30, 2022). But courts may also order revisions to a privilege log without reviewing

each disputed document. See United States ex rel. McGee v. IBM Corp., No. 11 CV

3482, 2017 WL 1232616, at *3-4 (N.D. Ill. April 4, 2017).

Because the party withholding responsive discovery bears the burden of

establishing that a privilege protects it on a document-by-document basis, Urb. 8 Fox

Lake Corp. v. Nationwide Affordable Hous. Fund 4, LLC, 334 F.R.D. 149, 156 (N.D.

Ill. 2020), this court prefers to assess each disputed document in camera where the

documents withheld are of a “manageable quantity,” see Am. Nat’l Bank & Tr. Co. of

Chi. v. Equitable Life Assur. Soc’y of U.S., 406 F.3d 867, 880 (7th Cir. 2005). Doing

so better ensures the “parties’ competing interest[s]” are balanced efficiently. Id.; see

also In re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 644 (8th Cir. 2001) (“[D]istrict

courts should be highly reluctant to order disclosure without conducting an in camera

review of allegedly privileged materials.”).

However, the court lacks the resources to review the nearly 10,000 disputed

documents in this case. The solution Plaintiffs propose—a sampling of documents—

can be used where the sampling procedure is not so arbitrary that it risks inaccuracy

or unfairness. See Am. Nat’l, 406 F.3d at 878-80. Courts, including this one, have

used samplings to assess disputes. See, e.g., Nucap Indus. Inc. v. Robert Bosch LLC,

No. 15 CV 2207, 2017 WL 3624084, at *1-2 (N.D. Ill. Aug. 23, 2017). But the court

declines to do so here because ordering the production of thousands of documents

after reviewing only a sample may lead to unfairness.

Instead, the court orders Defendants to produce an amended privilege log. The

court provides several examples of Log entries that are sufficiently descriptive and

those that are not. For the entries that are sufficient, Defendants need not amend

the Log. Where Defendants maintain their privilege claims over documents, they

must produce an amended privilege log that complies with and addresses the types

of concerns raised in this opinion. Where Defendants determine upon further review

that documents are not privileged, Defendants must produce those documents or

redact them. Defendants must recognize that the inadequacies identified are

examples and not necessarily exhaustive. After Defendants amend the Log and/or

produce additional documents, Plaintiffs may file a second motion to compel if they

remain concerned about the sufficiency of the privilege log, identifying the disputed

line numbers for this court’s review. The court will then review those entries and

order production of documents for which descriptions are indeed inadequate.1

Analysis

Turning to the merits of the Motion, the court agrees with Plaintiffs that

Defendants need to amend the Log but disagrees that Defendants must produce

certain categories of withheld documents at this time. The Log spans 360 pages and

includes 11,765 entries—with about 7,700 of the documents identified being withheld

in their entirety, and the rest having been produced to Plaintiffs with redactions.

(Mot., Ex. D (submitted for in camera review).) Plaintiffs argue that Defendants’

“vague and generic descriptions” in more than 9.000 entries are insufficient to

establish any privilege or immunity under Rule 26(b)(5). (Mot. at 5.) Plaintiffs also

object to six categories of documents they believe are being impermissibly withheld

or redacted under the work-product doctrine or the attorney-client privilege.

The work-product doctrine protects from discovery “documents and tangible

things that are prepared in anticipation of litigation or for trial by or for [a] party or

its representative.” Fed. R. Civ. P. 26(b)(3)(A). This protection applies to documents

that “can fairly be said to have been prepared or obtained because of the prospect of

litigation,” Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109, 1119 (7th Cir.

1 If Defendants insist on designating the amended privilege log this court orders here

as “Confidential” or “Highly Confidential,” and Plaintiffs remain concerned about the

adequacy of the log entries, Plaintiffs are urged to file a motion to de-designate the

privilege log at the same time they file their second motion to compel so that the court

may timely address the designation issue.

1983), not to documents developed in the ordinary course of business where there is

a remote prospect of litigation, see Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d

612, 622 (7th Cir. 2010); Binks, 709 F.2d at 1119 (“While litigation need not be

imminent, the primary motivating purpose behind the creation of a document or

investigative report must be to aid in possible future litigation.”). Moreover, a

document prepared for non-litigation purposes receives no work-product protection,

even if it reflects legal thinking. See Towne Place Condo. Ass’n v. Phila. Indem. Ins.

Co., 284 F. Supp. 3d 889, 899 (N.D. Ill. 2018).

The attorney-client privilege prohibits the compelled disclosure of “confidential

communications between a client and an attorney for the purpose of obtaining legal

advice.” Denius v. Dunlap, 209 F. 3d 944, 952 (7th Cir. 2000). This privilege applies:

(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. White, 950 F.2d 426, 430 (7th Cir. 1991) (citing United States v.

Lawless, 709 F.2d 485, 487 (7th Cir. 1983)). As such, only where the communications

“constitute legal advice, or tend directly or indirectly to reveal the substance of a

client confidence” does the privilege attach. RBS Citizens, N.A. v. Husain, 291 F.R.D.

209, 216 (N.D. Ill. 2013) (quoting United States v. Defazio, 899 F.2d 626, 635 (7th Cir.

1990)).

When a party withholds otherwise discoverable information as privileged, it

must “describe the nature of the documents, communications, or tangible things not

produced . . . in a manner that, without revealing information itself privileged or

protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5);

see also Sandra T.E., 600 F.3d at 623. This is typically done using a privilege log. An

adequate privilege log “identif[ies] for each separate document . . . the date, the

author and all recipients, along with their capacities, the subject matter of the

document, the purpose for its production and a specific explanation of why the

document is privileged.” RBS Citizens, 291 F.R.D. at 218 (emphasis in original)

(internal quotation marks and citations omitted); see also Fed. R. Civ. P.

26(b)(5)(A)(ii). Failure to produce an adequate privilege log can result in a waiver of

the privilege. United States ex rel. McGee, No. 11 CV 3482, 2017 WL 1232616, at *4

(N.D. Ill. April 4, 2017).

Finding that a party failed to comply with Rule 26 can be simple. For example,

a privilege log is inadequate where the entries do not include basic information like

the names of the authors or recipients of the documents, see Motorola Sols., Inc. v.

Hytera Commc’ns Corp, No. 17 CV 1973, 2018 WL 1281393, at *1 (N.D. Ill. Jan. 10,

2018), or the dates of correspondence, see Urb. 8 Fox Lake Corp., 334 F.R.D. at 156.

Here, several entries in the Log are missing this basic information, as Defendants

appear to have withheld parent-level non-draft communications, but omit the names

of authors or recipients in subsequent communications included in the Log.

Defendants must identify this information in their amended log.2

2 These entries include at least Line Nos. 9, 11, 217, 648, 2,457, 2,470, 2,476, 2,477,

2,479, 2,480, 2,485, 5,415, 5,492, 5,496, 5,540, 5,541, 5,572, 5,573, 5,594, 5,602, 5,672,

5,724, 5,749, 5,750, 5,864, 5,868, 6,202, 6,242, 7,388, 7,389, 7,451, 7,598, 7,602, 7,605,

In other cases, such as when an entry’s description suggests the withheld

document reflects both business and legal communications, assessing compliance

with Rule 26 is more difficult. That said, as the party withholding documents,

Defendants bear the burden of establishing privilege on a document-by-document

basis. Id. (citing Shaffer v. Am. Med. Ass’n, 662 F.3d 439, 446 (7th Cir. 2011)).

Further, the court must construe Defendants’ assertions of evidentiary privileges

narrowly because they operate in “derogation of the search for the truth and run

counter to the public’s right to every person’s evidence.” Id. (citing Swidler & Berlin

v. United States, 524 U.S. 399, 411 (1998)). As such, Defendants are reminded that

the legal weight is balanced in favor of production.

A. Boilerplate Descriptions

Defendants’ use of boilerplate descriptions renders the Log deficient. There is

nothing inherently wrong with using repetitive descriptions because the same

descriptions may apply to many privileged documents. While Rule 26(b)(5) does not

require each description to be unique, the descriptions Defendants use must be

sufficiently detailed for Plaintiffs and the court to assess the nature of the privilege

being asserted and whether it applies. Indeed, to satisfy the requirements of Rule

26(b)(5)(A), a privilege log must “at least describe the subject matter to which the

legal advice was directed.” Washtenaw Cnty. Emps.’ Ret. Sys. v. Walgreen Co., No. 15

CV 3187, 2020 WL 3977944, at *3 (N.D. Ill. July 14, 2020). Because specificity allows

8,705, 8,821, 8,832, 9,042, 9,045, 9,047, 9,048, 9,049, 9,051, 9,053, 9,062, 9,209,

10,698, 11,112, 11,114, 11,119, 11,120, 11,121, 11,122, 11,123, 11,124, 11,126, and

11,127.

other parties and the court to evaluate whether the proponents of a privilege have

met their burden of establishing its applicability, conclusory language is neither

useful nor adequate. Log entries that simply restate the author and recipients and

include only buzzwords like “confidential communication,” “legal advice and

strategy,” or other conclusory language are insufficient. See Motorola Sols., 2018 WL

1281393, at *1 (noting that describing documents only as “reflecting legal advice or

opinions from in-house counsel” is “impermissibly vague”). The entries instead must

describe the specific subject matter of the legal advice. Washtenaw Cnty., 2020 WL

3977944, at *3 (“[D]escriptions that at least describe the subject matter to which the

legal advice was directed come closer to being sufficient, and in many cases will be

sufficient.”). This approach balances the interests of both parties—the withholding

party maintains its privilege, while the requesting party receives sufficient

information to verify that the assertion of privilege is well-grounded.

Fashioning privilege log descriptions with enough detail to support an

assertion while not revealing the underlying advice or work product can be tricky.

Id. (“Distinguishing business communications from legal communications may in fact

be difficult, but so is the task of describing the basis for the privilege with sufficient

detail yet without disclosing what the legal advice actually was.”). But that is what

Rule 26(b)(5)(A) requires. Compare two entries from another case. One entry that

describes a withheld document as a “[d]raft pleading relative to pending lawsuit from

outside counsel re: the purpose of conveying legal advice and strategy,” was

sufficiently detailed because it described the form (draft pleading), the substantive

purpose (conveying legal advice and strategy), and the basis for privilege (attorney-

client). See St. Paul Guardian Ins. Co., 2021 WL 4745385, at *6. By contrast, another

entry that described an “[e]mail re: Confidential communication involving in-house

counsel for the purpose of rendering legal advice regarding coverage,” was not.

Id. at *8. And an entry describing an “[e]mail re: discussion of legal advice and

strategy” was likewise insufficient because it gave the reader almost no information

to explain why the privilege attached. Id.

Plaintiffs point to descriptions where the topic included was repeated hundreds

of times in the Log, suggesting that repetition renders those descriptions inadequate

because they are impermissibly vague or demonstrate a failure to review each

document for privilege. (Mot. at 6.) Defendants counter that each description, even

if repeated many times, adequately describes the individual document at issue and

that repetition is inevitable given the issues and number of documents in question.

(Opp. at 3-4.) The court does not doubt there are voluminous emails between

Defendants and their lawyers on a handful of topics. As noted, it is not inherently

problematic for parts of descriptions—so long as they are accurate—to be repeated in

the privilege log. For the 11,765 entries in the Log, there are about 728 unique

descriptions. Plaintiffs point to relatively short, recurring phrases and complain that

they “improperly place most of the documents” into these “boilerplate categories.”

(Mot. at 6.)

For example, Plaintiffs point to the phrase “[i]ssues related to the Maneuvering

Characteristics Augmentation System” or “MCAS,” which is repeated over 1,450

times in the Log. (Id.) Although there are dozens of unique descriptions including

MCAS as the main subject (e.g., Entry Nos. 2,912 (“Email requesting legal advice

regarding issues related to [MCAS].”), 11,682 (“Draft memorandum providing

information to assist in rendering legal advice regarding issues related to [MCAS].”),

11,710 (“Draft presentation containing legal advice regarding issues related to

[MCAS].”)), the entries remain too general because they fail to describe the “issues”

relating to MCAS or establish that the withheld documents reflect confidential legal

advice, not business matters. Including even a small amount of detail would allow

Plaintiffs and the court to better assess the privilege assertions. To be clear, the court

does not doubt that the topic of MCAS generated thousands of privileged documents,

but Rule 26(b)(5) simply requires more specificity.

Plaintiffs also complain that the description “[d]raft update on RTS progress”

was used for more than 1,000 entries. (Mot. at 6.) As with the MCAS entries, this

description must be more detailed. There are hundreds of entries described as

“[e]mail providing [or requesting] legal advice regarding draft update on RTS

progress,” but this description fails to offer any level of comfort that the documents

are indeed privileged. (Id.) Likewise, the use of the description “[l]egal advice

regarding Lion Air Flight 610” and “Ethiopian Airline Flight 302” in more than 425

Log entries does not shed light on the legal advice implicated. (Id.) Again, Rule

26(b)(5) seeks specificity so that the requesting party may be assured that the

privilege protects the identified document from production. Additional details on

aspects of the RTS progress implicated and issues related to the crashes must be

included in the amended log.

That said, the court does not agree with Plaintiffs’ other challenges. For

example, they complain that more than 325 documents are described as providing or

requesting legal advice on “[d]raft company statement[s] concerning Lion Air Flight

610” and “Ethiopian Airline Flight 302” crashes. (Id.) But this small detail—that the

documents reveal legal advice sought or provided about the company’s statements

regarding the crashes—pushes them just over the line of sufficiency.

Plaintiffs also complain about descriptions used to identify documents

concerning the FAA, which cover about 2,100 entries. (Id.) But a review of these

descriptions reveals they are more individualized than Plaintiffs suggest and,

therefore, sufficient. For example, Entry Nos. 656 (“Email requesting legal advice

regarding communications with FAA concerning MCAS”), 680 (“Email providing

information to assist in rendering legal advice regarding communications with FAA

concerning AOA”), and 4,448 (“Email providing legal advice regarding

communications with FAA concerning training requirements”), all indicate that the

documents include the provision of legal advice, requests for legal advice, or

information to assist the rendering of legal advice related to Defendants’

communications with the FAA on specific topics like MCAS, AOA, or training

requirements.

That these withheld documents relate to communications with the FAA does

not diminish the adequacy of Defendants’ descriptions. There is no dispute that

Defendants had ongoing discussions with the FAA about the 737 MAX crashes. Given

the potential for liability and other legal consequences following the crashes, it is

unsurprising that Defendants consulted their attorneys about communications with

the FAA. The same is true for the 650 entries describing internal communications

Defendants had with attorneys regarding their discussions with the European Union

Aviation Safety Agency concerning “MCAS,” “RTS status,” “AOA,” or “stabilizer trim

functions.” (Mot. at 6.)

So too are the 1,200 entries describing legal advice and work product related

to “draft company statement[s]” regarding “MCAS,” “RTS status,” “AOA,” or

“stabilizer trim functions” Defendants’ attorneys generated. (Id.) Plaintiffs group

broad swaths of entries together, but the individual entries include sufficient

information for the court to assess the privilege claims (e.g., Entry No. 536 (“Email

containing legal advice regarding draft company statement concerning stabilizer trim

functions.”), 706 (“Email providing information to assist in rendering legal advice

regarding draft company statement concerning AOA.”), 4,137 (“Email containing

legal advice regarding draft company statement concerning MCAS.”).

The remaining phrases Plaintiffs challenge are also sufficiently descriptive.

When reviewed on an individualized basis, the 325 entries described as “[r]esponses

to inquiries from media regarding 737 MAX” and the 325 entries described as “AOA

guidance for various flight conditions,” (Mot. at 6), provide enough details to be

adequate (e.g., Entry No. 730 (“Draft meeting minutes providing information to assist

in rendering legal advice regarding AOA guidance for various flight conditions.”),

1,213 (“Memorandum providing information to assist in rendering legal advice

regarding AOA guidance for various flight conditions.”), 1,259 (“Email requesting

legal advice regarding AOA guidance for various flight conditions.”), 2,271 (“Email

containing legal advice regarding response to inquiries from media regarding 737

MAX.”), 5,758 (“Draft memorandum providing information to assist in rendering

legal advice regarding response to inquiries from media regarding 737 MAX.”), 5,802

(“Email containing a request for legal advice regarding response to inquiries from

media regarding 737 MAX.”).)

The adequacy of these descriptions also plays a role when assessing

subcategories of documents at issue in the Motion. For example, Plaintiffs raise two

issues with Entry No. 906, which describes a withheld communication as an “[e]mail

requesting information to assist in rendering legal advice regarding communications

with FAA concerning MCAS.” Plaintiffs challenge the sufficiency of the description

and the fact that no lawyers were included in the communication. The court finds

the description to be adequate because it offers the basis for the privilege, the form of

the communication, and the privileged information reflected therein.

However, even ostensibly adequate descriptions may need to be amended

based on other factors discussed herein. For example, Plaintiffs challenge

Entry No. 9,285, an “[e]mail prepared in anticipation of litigation regarding draft

company statement concerning RTS status,” as insufficiently descriptive and because

the presence of a third-party on the communication breaks privilege. While the court

finds this entry’s description, by itself, to be adequate, this entry still must be

amended for the reasons described herein.

B. Business Records

The court turns next to the specific categories of withheld documents about

which Plaintiffs object. Plaintiffs first complain that Defendants withheld in full—

instead of producing redacted versions—scores of communications and attachments

to emails. (Mot. at 9-10.) At its core, Plaintiffs’ argument is that the withheld

documents are, at best, business records reflecting some legal advice. (Id.) First,

Plaintiffs point to the number of documents withheld—about 3,600 communications

and 3,900 attachments. (Id.) Defendants counter that their “document-by-document”

approach to withholding was targeted and appropriate, and their production of 2,163

attachments to privileged emails and redacted versions of 295 attachments

demonstrates their measured approach. (Id. at 11.)

But the absolute number or percentage of documents withheld has little

bearing on the privilege issue. If a litigant demanded communications between the

opposing party and its attorneys regarding the subject matter of the litigation, it

would not be surprising for the opposing side to withhold 100% of the responsive

documents. On the other hand, if the request pertained to communications between

the opposing side and its outside vendors, withholding even a single responsive

document may raise reasonable suspicion. This is why individualized assessment of

documents is critical.

Plaintiffs also argue the Log descriptions for this category of documents

suggest they include non-privileged information. For example, they point to a

withheld attachment Defendants described as a “draft presentation containing a

request for legal advice regarding communications with FAA concerning MCAS”

prepared by an engineer, (id. at 10), and a withheld email between three non-

attorneys described as concerning “legal advice regarding draft Board report

concerning RTS Status,” (id. at 9-10). Both entries, Plaintiffs say, showcase

Defendants’ “indiscriminate approach” to withholding documents. (Id. at 8-11.)

Plaintiffs further contend that attachments to privileged communications

must have an independent basis for privilege to be withheld. There are diverging

opinions in this district on this issue. But the prevailing view—and the one shared

by this court—is described at length in Linet Americas, Inc. v. Hill-Rom Holdings,

Inc., 740 F. Supp. 3d 685, 702-711 (N.D. Ill. 2024). The Linet court finds that

attachments do not require an independent basis to be withheld as privileged because

the act of transmitting or communicating facts to counsel for the purpose of seeking

legal advice can be privileged even where the underlying facts are not. Id. at 707-08

(“A large set of lower courts have interpreted [Upjohn Co. v. United States, 449 U.S.

383 (1981)] to mean that even though the underlying content of the independently-

discoverable attachments is not privileged, the act of sending the attachments is

privileged . . . .” (quoting Willis Elec. Co. v. Polygroup Trading Ltd., No. 15 CV 3443,

2021 WL 568454, at *7 (D. Minn. Feb. 16, 2021))). For example, in a case in which

the same document was sent to counsel and a non-lawyer union representative, “[t]he

attachment provided to [the union representative was deemed] not privileged because

it was produced independently to [the union representative] for purposes of non-legal

advice,” and therefore the plaintiff only had to produce “the version sent to [the] union

representative.” Belcastro v. United Airlines, Inc., No. 17 CV 1682, 2021 WL 1531601,

at *6 n.2 (N.D. Ill. April 19, 2021).

As Defendants point out, Plaintiffs’ reliance on Muro v. Target Corp., No. 04

CV 6267, 2006 WL 3422181, at *5 (N.D. Ill. Nov. 28, 2006) (“Muro I”), is misplaced.

(Mot. at 10.) The court in Muro I found that “[a]ttachments containing business, not

legal information, cannot be privileged.” (Id.) But that decision was later overturned,

and the ultimate outcome is more consistent with Defendants’ position here. See

Muro v. Target Corp., 250 F.R.D. 350, 363 n.21 (N.D. Ill. 2007) (“Muro II”)

(“[C]ommunications of facts are privileged even if the original facts are not.”). In

short, “when [communications] to counsel include[ ] certain attachments, the fact that

those documents were attached may be privileged, even if the originals are not.”

Linet, 740 F. Supp. 3d at 705 (citing Muro II, 250 F.R.D. at 363 n.21 (internal citations

omitted)); see also Rainey v. Plainfield Cnty. Consol. Sch. Dist. No. 202, No. 07 CV

3566, 2009 WL 1033654, at *2 (N.D. Ill. April 16, 2009) (“If legal advice is requested

regarding the attachments, the communication, including any attachments, sent to

the attorney are privileged.”).

The inquiry then turns on whether the Log descriptions for these categories of

documents are sufficient to determine whether Defendants are properly withholding

the attachments—and this court finds several examples of entries that qualify as

such. For instance, Entry Nos. 5,082 (“Email requesting legal advice regarding draft

Board report concerning RTS status.”), 6,352 (“Email requesting legal advice

regarding communications with DOT IG concerning MCAS.”), 11,620 (“Email

providing legal advice regarding communications with FAA concerning RTS status.”),

and 11,597 (“Email requesting legal advice regarding interpretation of employment

policy.”), each provide the type of communication withheld, the reason it is privileged,

and the subject matter of the information that is privileged. The court also finds

certain descriptions for “spreadsheets” (e.g., Entry Nos. 10,501, 10,507, 8,629) and

“presentations” (e.g., Entry Nos. 8,475, 9,239)—that is, “providing,” “requesting,”

“containing,” or “providing information to assist in rendering” legal advice regarding

communications with the FAA—to be adequate.

C. Board Materials

Plaintiffs next complain that Defendants have improperly withheld more than

500 documents related to board meetings and materials the board considered.

(Mot. at 11.) Plaintiffs argue that these documents are business records that are not

privileged. (Id.) Defendants respond that they withheld a limited number of board-

related materials because they consist of drafts “on which lawyers were providing

legal advice or for which legal advice was being sought.” (Opp. at 11.) At the same

time, they say they produced all other board materials and minutes. (Id.)

Plaintiffs are correct that “the minutes of the directors and committee

meetings are taken in the ordinary course of business” and do not fall under the ambit

of the attorney-client privilege. United States v. S. Chi. Bank, No. 97 CR 849-1, 1998

WL 774001, at *8 (N.D. Ill. Oct. 30, 1998). It is equally clear that draft materials—

including board materials—where the “attorney is acting as a legal advisor” may be

withheld. See RBS Citizens, 291 F.R.D. at 217 (citing Burden-Meeks v. Welch, 319

F.3d 897, 899 (7th Cir. 2003)). While Plaintiffs express concerns that it is “highly

unlikely that every piece of information on every page of these documents constitutes

privileged information,” (Mot. at 12), draft materials reflecting consultation with

“attorneys about what to include in such drafts, what to remove from them, and

ultimately what ought to be the contents of the final document” qualify for protection

under the attorney-client privilege, Washtenaw Cnty., 2020 WL 3977944, at *6.

Defendants rely on Washtenaw County for their position, and while the draft

documents at issue there were “‘draft’ press releases, public disclosures, or

shareholder communications,” rather than draft board materials, the same principle

adopted in that case applies here. See id. Like this suit, Washtenaw County was

brought under Section 10(b), and the withheld documents related to a corporate

defendant’s request for legal advice regarding company performance

communications, which ultimately would enter the public record. Id. (“[D]isclosures

to investors are critically important for corporations in view of the securities laws

that Plaintiffs here assert were violated by [Defendants], so it is no surprise that

[Defendants] would seek legal advice about them.”). The court finds this reasoning

persuasive here. The critical issue thus hinges on whether the Log descriptions are

sufficient to permit Plaintiffs and the court to assess the privilege assertion.

The court finds that the descriptions, while “terse” as Plaintiffs point out, are

largely sufficient to assess the privilege claim. For example, 73 entries are described

as “[d]raft letter[s] providing information to assist in rendering legal advice regarding

draft Board report concerning RTS status.” (E.g., Entry Nos. 4,545, 5,527.) As such,

they “describe the nature of the documents” as Rule 26 requires, while giving an

“indication that [the withheld document] was created by or for an attorney” to provide

information to assist in seeking legal advice. RBS Citizens, 291 F.R.D. at 218-19.

D. Non-Lawyers

Plaintiffs next argue that based on their review of senders, recipients, and

document descriptions in the Log, Defendants improperly withheld around 250

documents that appear to be communications between non-lawyers, which Plaintiffs

assert cannot be privileged. (Mot. at 12-13.) Defendants respond that despite the

communications being between non-lawyers, these documents reflect the substance

of confidential attorney-client communications. (Opp. at 12-13.) As discussed, the

attorney-client privilege “extends only to communications between a client and a

professional legal advisor.” United States v. Evans, 113 F.3d 1457, 1463 (7th Cir.

1997). As such, communications between non-lawyers typically are not privileged.

But such communications may be properly withheld if they include the substance of

privileged legal advice received. In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407,

433 (N.D. Ill. 2006), supplemented, 432 F. Supp. 2d 794 (N.D. Ill. 2006) (citing Rehling

v. City of Chi., 207 F.3d 1009, 1019 (7th Cir.2000)). As the Washtenaw County court

observed, it “is not implausible to believe that employees might receive legal advice

from in-house counsel and then disseminate it among themselves.” Washtenaw Cnty.,

2020 WL 3977944, at *4. The court could easily imagine that was the case here,

resulting in extended discussions between non-attorneys being privileged because

they detail how those non-attorneys “understand [legal advice] in order to follow [it]

and ensure the corporation’s compliance with the law.” Id.

Defendants’ assertion of work-product protection for several documents is also

not inherently improper. A document created by a non-lawyer may be properly

withheld if it was prepared for a party’s attorney and “can fairly be said to have been

prepared or obtained because of the prospect of litigation.” Logan v. Com. Union Ins.

Co., 96 F.3d 971, 976-77 (7th Cir. 1996) (internal citation and quotation omitted). In

support of the uncontested notion that documents prepared for non-litigation

purposes receive no work-product protection, Plaintiffs cite to Livingston v. City of

Chicago, No. 16 CV 10156, 2021 WL 3487347 (N.D. Ill. Aug. 9, 2021). (Mot. at 13.)

There, the documents at issue were communications between the city and an outside

consultant related to operational changes to physical abilities tests used by the city’s

paramedic academy. Livingston, 2021 WL 3487347 at *4. An in camera review

showed that the withheld documents “focus[ed] solely on operational concerns”

regarding the tests “as well as the potential need to modify” them and suggested that

litigation may eventually arise. Id. In other words, the documents did not reflect

legal work product generated in anticipation of litigation.

Unlike in Livingston, Defendants here reasonably anticipated dozens of

lawsuits following two plane crashes that killed all passengers and crew members.

That non-lawyers “prepared or obtained [documents] because of the prospect of

litigation” is of no significance. See Logan, 96 F.3d at 976-77. That said, the court

appreciates Plaintiffs’ concerns that Defendants may have either over-withheld or

offered descriptions that are not detailed enough to allow Plaintiffs or the court to

assess the privilege claim. For example, Defendants withheld around 126 documents

described as “[e]mail[s] requesting legal advice” or emails “containing a request for

legal advice” on several issues, including MCAS, draft board reports, and RTS status.

Defendants should clarify the nature of these requests because it is unusual for a

party to request legal advice from non-lawyers. Although the court can imagine

scenarios where this may occur, Rule 26 demands specificity and places the burden

on the withholding party. Based on the limited information available in the

descriptions, these requests appear to be “emails between non-attorneys in which the

sender mentions that he plans to seek, or has sought, legal input,” Nucap Indus. Inc.,

2017 WL 3624084, at *2, or mostly non-privileged emails that may include privileged

information. If that is the case, the court expects Defendants to produce these

communications in redacted form.

For about 134 other entries, withheld communications are described as

“[e]mail[s] containing legal advice” regarding numerous issues, including a draft

board report. While the court suspects these documents reflect discussions between

non-lawyers about how to comply with legal advice, it is not clear from the

descriptions themselves. To the extent these communications include business

information in addition to legal advice, they should be redacted to conceal only the

legal advice rendered and not entirely withheld. Defendants are ordered to reassess

these documents and redact and produce any that are not entirely privileged, along

with an amended privilege log reflecting updates.

E. Attorney Copied

Plaintiffs next claim Defendants wrongly withheld around 475

communications where their attorneys were merely copied. (Mot. at 13.) They argue

that Defendants “simply cop[ied] a lawyer on an otherwise nonprivileged

communication,” which does “not transform the non-privileged document into a

privileged one.” (Id. at 13 (quoting McCullough v. Fraternal Ord. of Police, Chi.

Lodge 7, 304 F.R.D. 232, 237 (N.D. Ill. 2014)).) They also complain that Defendants’

log descriptions “provide no indication of counsel’s actual legal advice or the

solicitation of such advice.” (Id. at 14.) The parties agree that simply copying a

lawyer on “something other than legal advice” does not mean the communication

“suddenly become[s] cloaked with the privilege.” Washtenaw Cnty., 2020 WL

3977944, at *5 (citing Urban 8 Fox Lake Corp., 334 F.R.D. at 160-61). But it is unclear

whether that happened here.

Defendants respond that Plaintiffs mischaracterize these withheld

communications and that they “applied a doctrinally rigorous approach to

communications involving attorneys,” rather than withholding communications

simply because an attorney was copied on them. (Opp. at 13-14.) Indeed, they point

to about 1,500 non-privileged communications they produced to Plaintiffs even

though counsel was copied on them to support their assertion that their approach was

not indiscriminate. (Id.) The court agrees with Defendants that withholding

communications where counsel is only copied is not inherently problematic if the

primary purpose of the communication relates to the rendering or discussion of legal

advice. Washtenaw Cnty., 2020 WL 3977944, at *5 (citing BankDirect Cap. Fin., LLC

v. Cap. Premium Fin., Inc., 326 F.R.D. 176, 181 (N.D. Ill. 2018)). It is easy to imagine

a scenario in which one employee emails another, copying counsel, for purposes of

sharing legal advice the sending employee received from copied counsel. This type of

communication can be privileged.

Several entries provide sufficient information for the court to assess the

privilege assertion. For example, Entry Nos. 2,892 (“Email containing legal advice

regarding communications with EASA concerning Lion Air Flight 610 accident.”),

7,699 (“Email containing legal advice regarding draft company statement concerning

Lion Air Flight 610 accident.”), and 9,166 (“Email containing legal advice regarding

communications with NTSB concerning Lion Air Flight 610 accident.”), each provide

sufficient information regarding the form, content, and basis for the asserted

privilege, even if the attorney is merely copied on the communications.

F. Third-Party Disclosure

Finally, Plaintiffs complain that Defendants improperly withheld 25

documents because they waived their privilege over them when the documents were

disclosed to third parties.3 (Mot. at 14-15.) For support, Plaintiffs point to several

3 The court notes that the Log describes at least seven disputed entries in this

category as falling under the attorney-client privilege, but the amended log produced

after Plaintiffs filed the Motion suggests these documents are protected by the work

examples of “draft” documents concerning company statements that a public relations

firm prepared. (Id.) Defendants respond that Plaintiffs misstate the law of waiver

here because they withheld these documents under the work-product doctrine, rather

than the attorney-client privilege. (Opp. at 14.)

As detailed above, work-product protection applies to documents that, “in light

of the nature of the document and the factual situation in the particular case . . . can

fairly be said to have been prepared or obtained because of the prospect of litigation.”

Binks, 709 F.2d at 1118-19 (emphasis in original) (internal citations omitted); see also

Logan, 96 F.3d at 977. Defendants bear the burden of establishing that work-product

protection applies to each document. See Urb. 8 Fox Lake Corp., 334 F.R.D. at 156.

And as Defendants point out, third-party disclosure is treated differently depending

on the privilege. Whereas “voluntary disclosure to a third party can constitute a

waiver of the attorney-client privilege, this will not suffice to waive the work product

doctrine.” Jumper v. Yellow Corp., 176 F.R.D. 282, 287 n.5 (N.D. Ill. 1997).

This contrasting treatment stems from the “very different goals the privileges

are designed to effectuate.” Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711,

736 (N.D. Ill. 2014). As the name suggests, the attorney-client privilege promotes the

attorney-client relationship by protecting the confidentiality of communications

product doctrine instead. (Compare, Mot., Ex. Q, Entry No. 5,825 (“[d]raft document

containing legal advice regarding draft company statement concerning RTS status”),

with (Opp., Ex. 2, Entry No. 5,825 (“[d]raft document prepared at the direction of

counsel in anticipation of litigation regarding draft company statement concerning

RTS status,”); see also Entry Nos. 2,059, 2,061, 2,213, 2,228, 4,585, 5,827.) Because

Defendants are ordered to review each entry in this category for other reasons, the

court need not address them separately.

between clients and their attorneys. Id. (citing Upjohn, 449 U.S. at 389). In the case

of third-party involvement, “the attorney-client privilege should be limited to

instances where [the] third party . . . assists a lawyer in giving legal advice, and where

the third party’s participation was required to enable the attorney to render legal

advice.” Heriot v. Byrne, 257 F.R.D. 645, 666 (N.D. Ill. 2009). Thus, disclosure of

attorney-client information to anyone who is not “necessary to the obtaining or giving

of legal advice” results in waiver of the privilege. See Motorola Sols., 2018 WL

1804350, at *4. In contrast, the work-product doctrine promotes the adversarial

system by protecting the confidentiality of documents prepared by a party’s attorney

in anticipation of litigation. Miller UK Ltd., 17 F. Supp. 3d at 736 (citing Appleton

Papers, Inc. v. E.P.A., 702 F.3d 1018, 1022 (7th Cir. 2012)). Because the work-product

doctrine aims “to protect an attorney’s work product from falling into an adversary’s

hands, disclosure to a third party does not automatically waive the protection.”

Towne Place Condo. Ass’n, 284 F. Supp. 3d at 898; see also Union Pac. Res. Co. v. Nat.

Gas Pipeline Co. of Am., No. 90 CV 5378, 1993 WL 278526, at *2 (N.D. Ill. July 20,

1993) (“It is clear that mere disclosure to a third party is not necessarily sufficient to

constitute a waiver of the [work-product] privilege.”)).

Instead, waiver occurs when protected work product is “disclosed in a manner

that substantially increase[s] the opportunity for potential adversaries to obtain the

information.” Miller UK Ltd., 17 F. Supp. 3d at 736 (quoting Appleton Papers, 702

F.3d at 1025) (internal quotation marks omitted). For example, if while valuing a

claim, a litigant shares work product regarding a case with a data analytics firm

under a non-disclosure agreement, the protection over the disclosed work product

would not be waived. However, if that same litigant filed the work product on a public

docket—even in an unrelated case—the opportunity for adversaries to obtain that

information substantially increases, and the protection would be waived.

Here, it is unclear from the descriptions whether the challenged documents

reflect work product. Defendants say that “Plaintiffs do not challenge that the 28

documents at issue contain attorney work product.” (Opp. at 14.) But Plaintiffs argue

the opposite, maintaining that “Defendants do not have a valid privilege claim for

these documents.” (Mot. at 15.) Indeed, many of the descriptions for documents in

this category are deficient and could describe either protected work product or

documents arising in the ordinary course of business. The log includes a terse

description for all the documents in this category that includes an iteration of the

conclusory phrase “prepared in anticipation of litigation.” Courts frown on the use of

such conclusory language in privilege logs. See, e.g., RBS Citizens, 291 F.R.D. at 218.

For example, Entry No. 7,526 is described as an “[e]mail prepared in anticipation of

litigation regarding pilot questions,” and Entry No. 11,063 is an “[e]mail prepared in

anticipation of litigation regarding response to inquiries from customer(s) regarding

737 MAX.” There is little else in the descriptions that would allow Plaintiffs or the

court to assess the work-product claim. While Defendants need not disclose the

subject pilot questions or customer inquiries, they must provide more information in

the Log.

Conclusion

For the foregoing reasons, Plaintiffs’ motion is granted in part and denied in

part. While the court finds that Defendants engaged in good-faith effort to comply

with Rule 26(b)(5), the Log requires more details to be in full compliance.

ENTER:

foy ng B. Ki} m

Miited States Magistrate Judge

31