IN RE DOMESTIC AIRLINE TRAVEL ANTITRUST LITIGATION This Document Relates to: ALL CASES MDL Docket No. 2656 | Misc. No. 15-1404 (CKK) United States District Court, District of Columbia Filed February 25, 2020 Levie, Richard A., Special Master Special Master’s Report and Recommendation No. 10 Regarding Plaintiffs’ Motion to Compel United Airlines, Inc. to Produce or Un-redact Certain Documents from Its Core Production Privilege Log Table of Contents *1 I. Introduction 1 II. Applicable Law 5 A. Burden 5 B. Attorney-Client Privilege 9 C. Work Product 13 D. Joint-Defense or Common Interest 15 III. Issues with United’s Invocation of Attorney-client Privilege and Work Product Protection 16 A. Evidentiary Issues 16 B. Factual Issues 18 C. Questionable Claims of Privilege 20 D. Communications Sent to or from Counsel 23 E. Conclusory Statements, Generalized Assertions, and Unsupported Averments in the Privilege Log 27 F. Confidentiality 29 G. Claims Based on Footers or Banners Declaring a File or Email Is Privileged 31 IV. Conclusion 32 I. Introduction Pending before the Special Master is Plaintiffs’ Motion to Compel United Airlines, Inc. (“United”) to Produce or Un-redact Certain Documents from Its Core Production Privilege Log and Incorporated Memorandum of Law (“Plaintiffs’ Motion”). In support of the Motion, Plaintiffs submitted a brief, two declarations with exhibits attached, an Appendix B and Revised Appendix B (“Appendix B”) identifying certain third parties referenced in the Privilege Log and a reply brief. In addition, Plaintiffs attached documents that had been produced to them, such as contracts relating to third parties. In addition to the Privilege Log,[1] referred to by the parties as Appendix A, United submitted: (1) an opposition brief; (2) a “Names List,” (and a supplement thereto) which purports to identify the position and affiliation of 3,352 individuals named in the Privilege Log;[2] (3) a four-page Joint Declaration from Crowell & Moring LLP (“Crowell”) attorneys Britton D. Davis and Brendan Sepulveda, dated December 17, 2018, explaining in general terms the history of the parties’ dispute regarding the documents. Attached were four exhibits; (4) a six-page declaration from Javaria Neagle, Assistant General Counsel – Litigation and Intellectual Property at United, dated December 17, 2018 (“Neagle Decl.”), noting in general terms: (a) the role of counsel in “United’s Legal Department,” identifying by name four such attorneys, and (b) United’s retention of certain third parties and naming the common legal interests shared with other third parties at particular periods of time;[3] (5) a two-page declaration from Hon. Katherine B. Forrest (Ret.), dated December 14, 2018 (“Forrest Decl.”), relating to (a) work done by attorneys at Cravath, Swaine & Moore LLP (“Cravath”) on potential mergers in 2008 and 2010, and (b) identifying third parties APCO Worldwide, Joele Frank, and Compass Lexecon as having played some role at certain time periods or “from time to time” (¶¶ 5-6); (6) a three-page declaration from Paul L. Yde of the law firm of Freshfields Bruckhaus Deringer US LLP (“Freshfields”), relating to (a) work done on behalf Continental Airlines, Inc. (“Continental”) in 2010; (b) work done on behalf of United in 2012, 2014, 2015, and 2016, and (c) the role of the following third parties on specific projects: The Success Group, Compass Lexecon, Lazard Freres & Co., Morgan Stanley, Sard Verbinnen & Co., and Sheehan Associates. *2 While United’s declarations did not address any specific disputed document, they purported to explain the role of: (1) in-house counsel; (2) two of the outside legal firms that represented United and Continental on discrete legal projects; (3) over 20 third-party consulting firms and (4) numerous entities with whom United claimed a common legal interest. In the course of reviewing the parties’ submissions and the documents listed on the Privilege Log, the Special Master requested that United provide the cover emails for the more than 911 non-email documents (831 attachments, 14 hard copies, 66 E-docs) withheld. United’s response did not provide cover emails for “E-docs” or “Hard Copy” documents because such documents are not attachments to emails.[4] The Special Master also requested that United indicate for each non-email document, whether that document was a draft or a final document. Again, without submitting a declaration or contextual documents providing information about the material at issue, United submitted only an Excel Spreadsheet indicating whether the document was a “Draft Document” or “Final Document.” United’s initial “Core Production Privilege Log” included 41,259 entries. Following a meet-and-confer process, Plaintiffs moved for production of 2,328 documents. After the Motion was filed, United and Plaintiffs again conferred with the result that Plaintiffs agreed to withdraw 151 challenges and United agreed to produce 99 of the documents originally withheld. As a result of the work undertaken by counsel, the Special Master was presented with 2078 disputed documents to review. As to these documents, United advanced claims of: attorney-client privilege, work-product protection and/or joint-defense privilege. The documents withheld consist of emails (most often email chains or threads), attachments to emails, “E-docs,” and hardcopy documents, dated between 2008 and 2016. The Special Master has considered all of the parties’ submissions in support of and in opposition to the Motion, along with the submitted declarations and exhibits. The Special Master also has examined, reviewed and made findings on each of the 2078 disputed documents. The Report and Recommendation is accompanied by an Analysis Chart (Exh. 1) and a Summary Chart (Exh. 2). The Analysis Chart contains the Privilege Log ID number for the document; the privilege claim(s); the date of the document; an analysis of the privilege claim and the recommended outcome – PRIV (privileged in its entirety); NP (no privileged content) or Redact (some of the content should be withheld due to a valid claim of privilege or work product protection).[5] The Analysis Chart is organized in chronological order beginning with undated documents. The Summary Chart is organized by the Privilege Log ID number for each document and shows the privilege claim(s) and the recommended outcome. United structured its privilege log on the basis of the ID numbers assigned each document in ascending numerical order. The log was not presented in chronological order based on document dates and did not have the documents grouped by subject matter. To effectively evaluate United’s claims the Special Master determined that it was necessary to consider the documents in chronological order and by examining documents related to specific subject matters. The Special Master’s review also examined numerous drafts and final versions of a single document as a unit. The Special Master encountered, by way of example, the following difficulties: a need to reorganize the documents, the presence of undated documents, the presence of incorrect dates on the Privilege Log versus on the documents, incorrect email subjects, omitting “RE:” and “FWD:” prefixes, inaccurately recording sender and recipient information, including omitting the presence of third parties, adding attorneys as recipients, and designating individuals as attorneys without indication that the person was acting in a legal capacity.[6] *3 This Report and Recommendation sets out the Special Master’s reasons for recommending rejection and upholding certain claims of privilege or work product protection. While the Report and Recommendation isolates some of the more prevalent issue with some examples, the Analysis Chart sets out the bases for the Special Master’s recommendations on a document by document basis. In this Report and Recommendation, the Special Master ultimately found that United failed to meet its burden with respect to more than half of the disputed documents. Of the documents found to be privileged, less than a quarter of those were determined to be fully protected, meaning that the entirety of the document fell within the scope of the privilege asserted. The remainder of the “privileged” documents were found to have some limited, specific content that warranted redaction. II. Applicable Law A. Burden The most significant question with respect to every document sought to be withheld is whether or not United has met its burden to uphold its claim of privilege or work product protection. The proponent of a privilege claim has the burden of demonstrating that the asserted privilege applies. See FTC v. TRW, Inc., 628 F.2d 207, 213 (D.C. Cir. 1980); Elkins v. D.C., 250 F.R.D. 20, 24 (D.D.C. 2008) (Collyer, J.) (citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)). To meet its burden, “the proponent must adduce competent evidence in support of each of the essential elements necessary to support a claim of privilege.” Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F. Supp. 2d 142, 153 (D.D.C. 2012) (Kollar-Kotelly, J.).[7] “Consistent with these strictures, the proponent must offer more than just conclusory statements, generalized assertions, and unsworn averments of its counsel.” Judicial Watch, Inc., 841 F. Supp. 2d at 153. Furthermore, “[b]lanket or categorical claims of privilege” will not suffice – “the law ‘requires a showing that the privilege applies to each communication for which it is asserted.’ ” In re Veiga, 746 F. Supp. 2d at 33 ( [citing United States v. Legal Servs. for N.Y.C., 249 F.3d 1077, 1082 (D.C. Cir. 2001)]. One example of competent evidence would be declarations addressing specific documents and explaining why a particular privilege applies to that document(s). In Alexander v. FBI, 192 F.R.D. 42, 45-46 (D.D.C. 2000), Judge Lamberth noted that the declarations submitted there were general and “fail[ed] to provide any specific information, ... such as when the documents were created, what attorneys actually received them and when, and the names of other persons, if any, who were given the documents,” and concluded that “[s]uch general and conclusory declarations fail to satisfy McLarty’s burden of demonstrating the applicability of the privilege to the documents withheld.” An example of non-competent evidence are assertions by counsel. See Judicial Watch, Inc., 841 F. Supp. 2d at 154 n.6 (“The Court does not credit the unsworn averments of DHS’s counsel.”). The absence of declarations based on personal knowledge attesting to details of the preparation of, use of and detail about how recipients fit into the document creation/distribution process prevented the Special Master from crediting fully the claims of privilege. *4 Another problem was the absence of the submission of other documents to explain or put into context documents at issue and to support invocations of the privilege. See, e.g., Baylor v. Mitchell Rubenstein & Assocs., P.C., 130 F. Supp. 3d 326, 331 (D.D.C. 2015) (Amy Berman Jackson, J.), aff’d, 857 F.3d 939 (D.C. Cir. 2017) (indicating that the Magistrate Judge’s finding with regard to the retention of counsel was “based on the record evidence offered by defendant, including two authorizations by Arrowood for Sunrise to retain counsel”); Duran v. Andrew, 2010 WL 1418344, at *2 (D.D.C. April 5, 2010) (Kay, M.J.) (describing the record as including certain contextual documents produced in camera).[8] United had the burden to demonstrate its entitlement to attorney-client privilege or work product protection by one or more of the following: submission of declarations or other competent evidence addressing or relating to specific documents which, together with the content of the documents and the other information supplied, were sufficient to demonstrate that the privilege or protection is applicable, or submission of a document which, clearly on its face, establishes all the requirements for attorney-client privilege or work product. See Mischler v. Novagraaf Grp. BV, 2019 WL 6135447, at *2 (D.D.C. Nov. 19, 2019) (Harvey, MJ.) (“Although failure to establish a privilege or other protection with competent evidence is a sufficient reason to grant a motion to compel [citation omitted], a court may instead allow the proponent of the privilege or protection to submit evidence in the form of the documents themselves for in camera review) (citing In re Veiga, 746 F. Supp. 2d at 38, 41-42 and Alexander, 192 F.R.D. at 45-46); Alexander, 192 F.R.D. at 46 (“Given that McLarty failed to sustain his burden with his privilege log and declarations, the court reviewed the documents in camera in order to determine whether the privilege was properly invoked. Upon this review, the court finds that some of the relevant documents ... indicate on their face that they were given to attorneys for the purpose of securing advice and list the attorneys to whom the document was sent.”). With respect to over half of the disputed documents, the Special Master examined each disputed document and found that United did not carry its burden. As will be noted below and in the Analysis Chart, where United’s showing, at best, left the question of privilege applicability in equipoise, the Special Master found that United failed to carry its burden on the basis of the record submitted for review. B. Attorney-Client Privilege *5 In applying the attorney-client privilege the Special Master was mindful that “Courts tolerate the privilege only to the extent necessary to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” FTC v. Boehringer Ingelheim Pharm., Inc., 180 F. Supp. 3d 1, 17 (D.D.C. 2016) (Harvey, M.J.), aff’d, 892 F.3d 1264 (D.C. Cir. 2018) (internal quotation marks omitted). The proponent of the attorney-client privilege must establish that: the asserted holder of the privilege is or sought to be a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting in his or her capacity as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of stranger (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, ... and (4) the privilege has been (a) claimed and (b) not waived by the client. In re Sealed Case, 737 F.2d at 98-99 [quoting United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-359 (D. Mass. 1950)]. Additionally, a “fundamental prerequisite to the assertion of the privilege” is “confidentiality both at the time of the communication and maintained since.” Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 863 (D.C. Cir.1980); accord FTC v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002); Judicial Watch, Inc., 841 F. Supp. 2d at 153-54. The attorney-client privilege applies to confidential communications between a client and his or her attorney — but not all such communications. “Rather, it applies only to confidential disclosures by a client to an attorney made in order to obtain legal assistance.” New York Times Co. v. U.S. Dep’t of Justice, 282 F. Supp. 3d 234, 237 (D.D.C. 2017) (Cooper, J.) (internal quotation marks and brackets omitted). “[T]he privilege applies to a confidential communication between attorney and client if that communication was made for the purpose of obtaining or providing legal advice to the client.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757 (D.C. Cir. 2014). Facts conveyed in confidence to an attorney by a client seeking legal advice are protected from disclosure. Attorney-to-client communications “are privileged only if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence.” Alexander v. FBI, 186 F.R.D. 102, 110-11 (D.D.C. 1998) (Lamberth, J.) (internal quotation marks omitted); see also Smith v. Ergo Sols., LLC, No. CV 14-382, 2017 WL 2656096, at *3 (D.D.C. June 20, 2017) (Bates, J.) (“Legal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct.”) (internal quotation marks omitted). To be protected, the communication must be based on confidential client information. United States v. Anthem, Inc., 2016 WL 8461264, at *3 (D.D.C. Oct. 6, 2016), report and recommendation adopted, 2016 WL 11164028 (D.D.C. Oct. 14, 2016) (ABJ); accord Bloche v. Dep’t of Def., 279 F. Supp. 3d 68, 86 (D.D.C. 2017) (Scullin, J.) (“Since these slides are a communication from an attorney to his client, they are privileged only insofar as they rest on confidential information obtained from the client. Defendant, in its declaration, offers no explanation as to what confidential client communication underlies these slides.”). *6 Although the privilege applies to communications that serve both a business and a legal purpose, “the client must be seeking and receiving legal advice rather than solely business advice.” Ergo Sols., LLC, 2017 WL 2656096, at *2; see Kellogg Brown & Root, Inc., 756 F.3d at 758-59 (“So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation[.]”); Judicial Watch, Inc. v. U.S. Dep’t of State, 2019 WL 2452325, at *1 (D.D.C. June 12, 2019) (Lamberth, J.) (“[T]he communication must somehow engage the attorney in resolving a legal issue.”). As Magistrate Judge Maas stated: Despite [the] efforts [of the party asserting the privilege] to characterize the redacted portions of these documents as privileged, my in camera review confirms that they either reflect business advice or state the obvious. It is not enough that a document was created by attorneys if the information that it contains was not “made for the purpose of facilitating the rendition of legal advice or services.” [citation omitted]. Here, the redacted portions evaluate the status of the scrubber project, comment on costs, cash flows, contingency reserves, and schedule, and provide insights on project management. Even if an outside law firm was the source of this information, it is not the sort of “advice that can be rendered only by consulting the legal authorities.” [citation omitted]. GenOn Mid-Atl., LLC v. Stone & Webster, Inc., 2011 WL 5439046, at *9 (S.D.N.Y. Nov. 10, 2011). Here, many claims of attorney-client privilege involve a situation where a communication was sent to or from an attorney and/or the document was marked as confidential/privileged or attorney-client privileged. As the law makes clear, however, such designations are not dispositive as to whether or not the attorney-client privilege applies. The fact that an email is copied to in-house or outside counsel does not sufficiently demonstrate that the attorney was operating in a legal capacity for the specific matter or that a significant purpose of the document was to provide or seek legal advice. As the Second Circuit noted: In the government context, one court considered relevant the fact that the attorney seeking to invoke the privilege held two formal positions: Assistant to the President (ostensibly non-legal) and Deputy White House Counsel (ostensibly legal). In re Lindsey, 148 F.3d 1100, 1103, 1106–07 (D.C. Cir. 1998)(per curiam). The same is true in the private sector where “in-house attorneys are more likely to mix legal and business functions.” Bank Brussels Lambert v. Credit Lyonnais (Suisse), 220 F.Supp.2d 283, 286 (S.D.N.Y 2002); accord Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 147 (D.Del.1977). In short, an attorney’s dual legal and non-legal responsibilities may bear on whether a particular communication was generated for the purpose of soliciting or rendering legal advice. In re County of Erie, 473 F.3d 413, 421 (2d Cir. 2007). For example, United claimed that certain files or emails were privileged because an attorney (in-house or outside counsel) sent or received such file or email. In making this claim, United relied on: (1) what it considered to be a legal presumption that in-house counsel provide legal advice[9] and (2) declarations it submitted to show that its in-house counsel “predominantly” offered legal advice. *7 As for the legal presumption, it is well settled that the mere presence of counsel on a communication does not render that communication or a document attached to that communication privileged. See Jordan v. U.S. Dep’t of Labor, 308 F. Supp. 3d 24, 43-44 (D.D.C. 2018) (Contreras, J.), aff’d sub nom. Jordan v. United States Dep’t of Labor, 2018 WL 5819393 (D.C. Cir. Oct. 19, 2018) (“simply copying an attorney on a communication does not make that communication privileged”); United States ex rel. Barko v. Halliburton Co., 74 F. Supp. 3d 183, 188–89 (D.D.C. 2014) (Gwin, J.) (“Parties, including corporations, may not shield otherwise discoverable documents from disclosure by including an attorney on a distribution list. Thus, the fact that an attorney either is copied on or is one of multiple recipients of an email does not on its own support a claim of attorney-client privilege.”). The reasons for this legal maxim are particularly apt in the case of the various privilege claims United has made with respect to documents reviewed by the Special Master. As a threshold matter, the evidentiary support offered for the claim, that its counsel “predominately” offered legal advice, is not definitive as to the legal role counsel played with respect to any particular document. See Neagle Decl. ¶¶ 6-9 (stating that attorneys Brett Hart, Thomas Bolling, Jennifer Kraft, and Lydia Mathas, “like other attorneys in United’s Legal Department, predominantly offered legal advice to United’s business units in the course of [their] work for United”); Davis and Sepulveda Decl. ¶ 9 (“an attorney’s title, such as ‘Vice President and Deputy General Counsel,’ is not necessarily indicative of a dual business role for that attorney”). Neither these, nor any other declaration, address the role played by in-house counsel in a specific situation – such as with respect to press releases or business presentations – or with respect to any specific document. Indeed, the conclusory assertions by the declarants are neither sufficient nor persuasive to justify the use of the presumption. C. Work Product The work-product doctrine and the attorney-client privilege serve different purposes.[10] The attorney-client privilege protects “confidential communications from the client,” whereas the work-product protection “provides a working attorney with a ‘zone of privacy’ within which to think, plan, weigh facts and evidence, candidly evaluate a client’s case, and prepare legal theories.” Coastal States, 617 F.2d at 864; see In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (“By ensuring that lawyers can prepare for litigation without fear that opponents may obtain their private notes, memoranda, correspondence, and other written materials, the privilege protects the adversary process.”). To that end, work-product protection “protects written materials lawyers prepare in ‘anticipation of litigation.’ ” In re Sealed Case, 146 F.3d at 884 (quoting Fed. R. Civ. P. 26(b)(3)(A)). As explained by this Court in Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 926 F. Supp. 2d 121, 137-38 (D.D.C. 2013): In assessing whether the proponent has carried its burden, the relevant inquiry is “whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” [Citation omitted]. This inquiry encompasses two related but distinct concepts—one a question of timing and the other a question of intent. [Citation omitted]. The former, the temporal element, asks whether there was “a subjective belief that litigation was a real possibility” at the time the document was prepared and whether that belief was “objectively reasonable.” [Citation omitted]. The latter, the motivational element, demands that the document be prepared or obtained because of the prospect of litigation. In this respect, the proponent bears the burden of “showing that the documents were prepared for the purpose of assisting an attorney in preparing for litigation, and not some other reason.” [Citation omitted]. “[T]he documents must at least have been prepared with a specific claim supported by concrete facts which would likely lead to litigation in mind.” [Citation omitted]. *8 As with attorney-client privilege, the burden is on the proponent invoking the work product protection to establish entitlement to the protection. D. Joint-Defense or Common Interest “The joint defense privilege, often referred to as the common interest rule, is an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement.” Anthem, Inc., 2016 WL 8461264, at *2. Parties who share a common legal interest may “exchange privileged information in a confidential manner for the purpose of obtaining legal advice without waiving the attorney-client or work product privilege.” (Id.). (internal quotation marks and brackets omitted). The proponent of a joint defense claim must first establish that either the attorney-client privilege or work-product protection applies to the communication or material at issue. “Once these requirements are satisfied, shared or jointly created material must pass an additional test: It must be disclosed pursuant to a common legal interest and pursuant to an agreement to pursue a joint defense.” Minebea Co. v. Papst, 228 F.R.D. 13, 16 (D.D.C. 2005) (Friedman, J.). A writing is not required to establish such an agreement inasmuch as “an oral agreement whose existence, terms and scope are proved by the party asserting it, may be enforceable as well.” Minebea, 228 F.R.D. at 16. Significantly, the party asserting the privilege must further show that “the specific communications at issue were designed to facilitate a common legal interest; a business or commercial interest will not suffice.” Id. at 17. III. Issues with United’s Invocation of Attorney-client Privilege and Work Product Protection A. Evidentiary Issues United submitted a total of four declarations, totaling 15 pages, in order to support its privilege claims with respect to 2,328 disputed documents, and to explain the role of over 20 third-party consulting firms, and numerous entities with whom United claimed a common legal interest. The declarations submitted by United, however, failed to discuss or identify any of the specific, disputed documents; rather, United left it to the Special Master to make desired connections without benefit of a declarant connecting and explaining the various documents. Although the declarations addressed by name certain legal projects, and named the projects that certain third-party consultants worked on, United did so in the broadest possible terms.[11] Absent from the declarations was any clarity or specificity as to whether the third parties worked only on litigation/regulatory matters or also provided more general business advice. Indeed, United did not provide information about the type of work particular third parties performed – economic analysis, public relations advice, etc. *9 United supplied an impressive Names List denoting the affiliations of 3,352 individuals whose names appear on the Privilege Log; there are, however, certain limitations in the document as reflected in the Privilege Log itself. As this Court noted in another matter, “[o]verall, the Court is left to guess as to the role and relationship of various individuals, including several non-lawyer, third parties.” In re Veiga, 746 F. Supp. 2d at 40. First, the Names List did not identify whether an individual’s position or affiliation changed over time and, if so, when that change occurred. For example, some employees at United were formerly employees of Continental, but this status was not reflected in the Names List or in the Privilege Log entries for these individuals. More significantly, the Names List identified certain individuals as having been affiliated with third parties, but did not indicate that the individual’s third-party affiliation changed over time. Second, the Names List designated individuals having a law degree with an “ESQ” following their name, but made no effort to explain whether such person operated in the capacity of an attorney while at United. (As noted, the Neagle Declaration only identifies four attorneys at United.) For example, “Steve Morrissey” was listed in the Names List as “VP, Regulatory and Policy” and “Stephen Morrissey” (the same person) was listed on the Names List as both “Managing Director, International and Regulatory Affairs” and “VP, Regulatory & Policy; Attorney.” Consistent with the ambiguity of his role, while Morrissey was always identified with an “ESQ” on the Privilege Log, United only intermittently made a claim of privilege based on his presence. See, e.g., PL 13636 (where United did not base its claim for privilege on the presence of Morrissey); PL 13892 (same); PL 26804 (same); PL 9192 (same). Third, the Names List identified counsel at various outside law firms, but did not provide information that explained the role of outside counsel with respect to United, Continental, and/or purported common interest parties. This was not only a failure in the Names List. As noted, with the exception of Cravath and Freshfields, for which United submitted the Forrest and Yde declarations, the role of outside legal counsel was not explained in a declaration. B. Factual Issues The information in the Privilege Log raised issues. In some instances, there were incorrect email subjects, dates, sender, and recipient information. Sender and recipient errors were problematic. For instance, there were situations where the Privilege Log (1) aggregated recipient information – counting earlier recipients of an email with later recipients (see, e.g., PL 38908); (2) failed to identify the presence of third parties who Plaintiffs had objected to when identified or who were not identified in any declaration;[12] and (3) indicated that a document was attached to an email sent to or from an attorney, or otherwise involved counsel, when, in fact, based on the documents provided, it did not.[13] *10 By way of an additional example, the Privilege Log entry for PL 24907, a standalone email dated 8/25/2010, identified an email from Mark Nelsen to Darin Lee. Lee was identified on the Names List as being associated with third-party Compass Lexecon. This prompted Plaintiffs to object to “disclosure to Lee, Darin (Compass Lexecon).” In response to this objection, United argued, without citation to a declaration or other evidence, that United retained CompassLexecon in connection with advising its in-house and outside counsel in securing regulatory approval of the United-Continental merger. Therefore, presence of CompassLexecon on communication does not defeat privilege under GlaxoSmithKline. Context of document makes clear the communication was the result of a request from counsel to prepare for advocacy before DOJ in connection with merger approval. In fact, at that time Lee was not affiliated with Compass Lexecon. Rather, as is evident from the email address on the face of the document, Lee was at a firm known as LECG LLC — and none of the declarations submitted by United addressed LECG. As another example, PL 13394 is a document which United seeks to withhold in its entirety on grounds of the attorney-client privilege. The document is a presentation with a cover slide that reads “Strategies for Optimizing and Improving Network Connectivity.” The Privilege Log stated that this document was attached to an email from non-attorney Martin Kammerman to in-house counsel Sucheta Misra, with copies to two non-attorneys, Gregory Kaldahl and Alison Espley. According to the Privilege Log, it is a “Confidential presentation reflecting legal advice from Misra, Sucheta ESQ regarding a conference presentation on improving network connectivity.” In opposition to Plaintiffs’ Motion, United argued that “this draft presentation was sent to United’s in-house counsel, Sucheta Misra, for review and reflects advice she provided in response”. When United provided the Special Master with the cover email for this document, it showed that the document was not – as claimed in the Privilege Log and argued by United in response to Plaintiffs’ objection – attached to an email from Kammerman to Misra. Rather, it was attached to an email from Kammerman to non-attorneys Kaldahl and Espley. Furthermore, Kammerman explained in the cover email that the presentation (1) had already been reviewed “by legal” and as a result one of the slides was now removed and (2) was now final (which is also reflected in the Attachment filename “Asia Pacific Summit – Final.ppt”). While the cover email indicated that the version was “final,” United proffered that it was a draft. C. Questionable Claims of Privilege The Special Master recognizes that the volume of documents in dispute is not insignificant. Nevertheless, the Privilege Log seeks protection of the privilege for documents which, on the face of the documents, does not support upholding a claim of privilege or protection. *11 To reference one instance, the document at PL 39418 is identified as an email from then-CEO Glen Tilton. The Log asserts that this document is protected by the attorney-client privilege as a “Confidential communication prepared at the direction of legal counsel regarding a government inquiry related to DOJ rulemaking.” Plaintiffs objected that “[t]he entry facially fails to establish that legal advice is provided or sought in the document or communication.” In response, United argued that This communications reflects information gathering at the request of United’s DOT counsel regarding the issue discussed therein. The communication reflects both the factual information counsel will use to render legal advice, as well as discussion regarding the guidance already provided by United’s DOT counsel. One of the primary and significant purposes of the communication is to request legal advice, therefore the Kellogg test is met and the attorney-client privilege is appropriate. Here, Ms. Mikells’s communication and Mr. Tilton’s response to same reflects that request for legal advice and production of the communication here would reveal the protected request for legal advice. While Mr. Tilton’s response is one of several emails in this chain, the totality of his response was “Got it. Thanks ...” This response seeks no legal advice and revelation of these three words will not reveal any confidential client communications. Admittedly, this single email was one of many thousands at issue here where many “documents” consisted of email chains. This was not the only problematic one and volume alone cannot justify such a requested invocation of privilege.[14] *12 As this Court stated in In re Veiga, “[t]he Court does not want to minimize the matter; Respondent’s [ ] privilege claims with respect to these particular documents—each of which were logged and withheld as separate communications—cast[ ] doubt upon Respondent’s claims as a whole.” In re Veiga, 746 F. Supp. 2d at 43-44. Relatedly, based on a search of the Privilege Log, of 2078 disputed documents on the Privilege Log, United sought redaction with respect to only 33 documents. The Special Master found over 580 documents where redactions were recommended because the entirety of the document did not support a claim of privilege. It is the obligation of the proponent of the privilege or protection carefully to review disputed documents and seek redaction, rather than wholesale non-disclosure, where only part of a document properly is subject to a claim of privilege or protection. Cf. In re Veiga, 746 F. Supp. 2d at 44 n.19 (“Respondent should, at the bare minimum, be aware of his obligation to redact and produce non-privileged portions of responsive documents.”). It was United’s obligation to review all documents and differentiate those which justify protection in its entirety from those where protection is warranted only for part. As to the latter, United should have proposed redactions rather than seek to have the entire document treated as privileged. D. Communications Sent to or from Counsel Plaintiffs objected to 1201 entries on the basis that “[t]he entry suggests that the advice sought or provided and/or the document or communication was primarily business in nature.” As a general matter, this applied to emails concerning and documents consisting of press releases,[15] earnings releases and investor call scripts,[16] business presentations and spreadsheets.[17] Although United did not have a single set response for each of those documents, United largely relies on the legal presumption and declarations. As discussed above (pp. 11-13), the Special Master does not find United’s arguments persuasive. *13 Indeed, there are several examples based on the review of the disputed documents that show attorneys sending or receiving documents for reasons other than providing legal advice.[18] It is United’s burden to show that a document was sent to counsel so that counsel could provide legal advice or otherwise seeking input from counsel in order for counsel to perform a legal function on behalf of United. While United did not submit appropriate evidence about any course of business at United with respect to the use of in-house or outside counsel, review of the documents suggests that United appeared to have a process in place where business personnel sent documents, such as investor presentations, press releases, board presentations, earnings scripts, and other documents, to in-house counsel as a matter of course, whether or not business personnel had legal concerns, the document at issue raised legal issues, or legal advice was ultimately provided. This process seemed to be an automatic, internal vetting process. If the Special Master’s understanding based on review of the documents is incorrect, it was United’s burden to have submitted proof to that effect and it was not done. It would be inconsistent with the policies underlying the attorney-client privilege and its narrow application to shield all documents involved in that process from disclosure under the attorney-client privilege. The problem is that, in the 2078 documents and accompanying covering emails reviewed by the Special Master, business personnel infrequently raised legal questions or concerns, and this internal review process infrequently resulted in counsel providing legal advice or engaging in discussions that tended to reveal the substance of a client confidence. Instead, this review process tended to result in in-house counsel providing stylistic, editorial, and other non-legal feedback.[19] *14 As the above examples illustrate, the concept of legal review or legal work at United was, in fact, broad enough to encompass a wide range of tasks, including administrative tasks and editorial changes. United must, of course, do more than show that a document was sent to in-house counsel in order to meet its burden. When the purpose of sending a document to in-house counsel is not evident, “ ‘[a] court must examine the circumstances to determine whether the lawyer was acting as a lawyer rather than as business advisor or management decision-maker’ ” because “ ‘[o]nly communications that seek ‘legal advice’ from a professional legal advisor in his [or her] capacity as such are protected.’ ” United States v. Anthem, Inc., 2016 WL 8461264, at *7 n.4 (quoting, respectively, Boca Investerings P’ship, 31 F. Supp. 2d at 12 and Minebea Co., 228 F.R.D. at 21). Despite the presumption that outside counsel are retained for legal purposes, that presumption does not mean, without more of a showing, that every communication from outside counsel is privileged. By way of example, for PL 32465 United claimed that a draft investor call script was protected under the attorney-client privilege. The covering email shows that Robin Weinberg of Sard Verbinnen requested the document from Jenner attorney Katherine Ciliberti. Ciliberti then forwarded the document to Weinberg; and Weinberg then sent the document to Jonathan Ireland (Managing Director - Investor Relations). The Privilege Log claimed the draft was a “Confidential document reflecting the legal advice and mental impressions and thoughts of Ciliberti, Katharine ESQ regarding the legal sufficiency of a draft investor call script.” In reading the document, however, it is not apparent that this document reflects any legal advice from Ciliberti. The only information revealed by the covering emails is that Ciliberti forwarded the document to Weinberg after Weinberg requested it. The document itself is an Investor Call Script, which appears to be in draft form. It is not clear from reading the script how it reveals Ciliberti’s legal advice and mental impressions. By failing to provide a declaration or other support, and relying instead on boilerplate description, United failed to meet its burden to show there was a basis for its privilege claim. E. Conclusory Statements, Generalized Assertions, and Unsupported Averments in the Privilege Log The Privilege Log contains “conclusory statements, generalized assertions, and unsworn averments of its counsel” in support of its privilege claims. In re Veiga, 746 F. Supp. 2d at 34. This is problematic. In describing issues which are present in the instant matter, this Court took issue in the situation where the proponent: “fail[ed] to correlate his declaration’s wholly conclusory assertions of privilege—which are nothing more than empty recitations of the applicable legal standard devoid of factual context—with any specific communication or communications.” [In re Veiga, 746 F. Supp. 2d at 40 (quoting Alexander, 192 F.R.D. at 45]. Use of conclusory statements, generalized assertions and unsupported assertions are not sufficient. For example, presented for review was a set of documents[20] consisting of two slides related to possible slot reductions at Newark in 2009. The slides were attached to emails between non-legal, business personnel. The Privilege Log asserted: “Confidential presentation reflecting further information necessary to render legal advice regarding EWR Slots, as provided by the Legal Department.” When Plaintiffs objected that the documents appeared to be business-related, United responded, As the log entry clearly indicates, this communication reflects legal advice being sought from United’s Legal Department. The legal advice sought is regarding the matter described therein and the primary purpose of the communication is to receive legal advice on that issue. Additionally, the document is labeled with an ‘Attorney-Client Privileged Communication’ header. *15 None of the declarations submitted discussed these documents. Review of the documents showed that they appeared to be quintessential business documents having only a business purpose. The documents reflected the result of a request of “Scheduling” to look at further reductions “to improve operating performance.” None of the communications involved an attorney. None referred to or reflected any request for legal advice or legal advice itself. As another example, PL 6912 is an email chain with three emails. United provides the sender and recipient information of the topmost email, but omits the “Re” in the subject line. The email is from in-house attorney Thomas Bolling to Continental employees, including attorneys, with copies to outside counsel at Freshfields. The content of this email is “My comments are attached. Tom”. The initial email in the chain is from non-attorney Nancy Van Duyne (Vice President Congressional Affairs), who recounts the efforts being made to respond to “Questions for the Record” submitted to Continental and United following a Senate Judiciary hearing. The next email is from non-attorney Hershel Kamen, who responds “My comments attached.” According to the Privilege Log, this is a “Confidential communication prepared by legal counsel regarding a government inquiry.” United responds that [t]his communication reflects legal advice of United’s legal counsel regarding a government inquiry. The email also includes a “privileged and confidential” banner in its subject line. The legal advice relates to the legal sufficiency of language used in a proposed response to the United States House of Representatives and the primary purpose of the communication is to provide legal advice. “The fact of an attorney writing an email, alone, is not a sufficient basis for upholding a claim of attorney-client privilege. Here, the only communication that was prepared by legal counsel, Bolling’s email with the content “My comments are attached. Tom”, is clearly not the type of communication that is a candidate for protection under the attorney-client privilege.” F. Confidentiality In its motion, Plaintiffs challenged 840 documents on the basis that United had disclosed the purportedly privileged communications to third parties, principally to over 20 consulting firms. Of those firms, the majority of Plaintiffs’ objections related to Compass Lexecon. Indeed, Plaintiffs objected to over 500 entries on the basis that documents were shared with Compass Lexecon. (See United Opp. at 5). Plaintiffs argue that the evidence and information provided by United about these consulting firms is insufficient to meet United’s burden to show that these consultants “were ‘integral’ or ‘completely intertwined with ... litigation and legal strategies.’ ” (Reply at 2 [quoting GlaxoSmithKline, 294 F.3d at 148] ). United disagrees with Plaintiffs’ reading of GlaxoSmithKline and asserts that its “[Privilege Log] entries and meet-and-confer representations fully explained the basis for the privilege asserted for documents shared with third parties reflected on the Log. The accompanying declarations of Javaria Neagle, Paul Yde, and Katherine Forrest provide additional factual support of these third-party relationships.” (United Opp. at 5-6). The Special Master does not agree with United. In GlaxoSmithKline the Court stated that the “applicable standard” was “whether the ‘documents were distributed on a ‘need to know’ basis or to employees that were ‘authorized to speak or act’ for the company.” GlaxoSmithKline, 294 F.3d at 147 [quoting FTC v. GlaxoSmithKline, 203 F.R.D. 14, 19 (D.D.C. 2001) (Lamberth, J.) ]. There the Circuit Court had before it a privilege log and an affidavit that “establish[ed] that GSK circulated the documents in question only to specifically named employees and contractors, most of whom were attorneys or managers and all of whom ‘needed to provide input to the legal department and/or receive the legal advice and strategies formulated by counsel.’ ” Id. *16 Here, much of the supporting information significant in GlaxoSmithKline is not present. United’s unsworn representations do not constitute evidence in support of its burden of showing that sharing privileged information with third parties is consistent with GlaxoSmithKline. The Neagle, Yde, and Forrest Declarations, at most, provide very general “factual support”. Nevertheless, based on review of the disputed documents, aided in some measure by consideration of the declarations, United established that, for example and significantly, in connection with its efforts to obtain regulatory approval from DOJ in 2015, United and its counsel, together with third-party agent Compass Lexecon, were working together to present materials to DOJ. On the other hand, where the documents, together with the declarations, did not show that the third party was retained to work on a legal project or there was ambiguity as to the role played, such as with respect to the role of APCO Worldwide and Joele Frank in 2008 through 2010, the Special Master found that United had not met its burden to show that such communications were not “disseminated beyond those persons who ... need[ed] to know [their] contents.” GlaxoSmithKline, 294 F.3d at 147 (internal quotation marks omitted). G. Claims Based on Footers or Banners Declaring a File or Email Is Privileged United frequently relies on the presence of footers/banners that state a document is privileged to justify its claim. The use of a phrase that a document is privileged and/or confidential may provide some reason to regard a document as having a legal purpose, but the phrase alone is not sufficient to determine that a document is privileged. See Neuder v. Battelle Pac. Nw. Nat. Lab., 194 F.R.D. 289, 295 (D.D.C. 2000) (Urbina, J.) (“The recitation of the phrase ‘confidential and privileged attorney-client communication’ is not dispositive in determining whether a document is privileged.”). The presence of the phrase is a starting point preceding an examination of the document, together with any supporting evidence, to determine if a document is privileged. Here, examination of the documents indicates that United regularly used such footers/banners, whether or not a document was privileged.[21] IV. Conclusion For the reasons set forth in the Analysis Chart, the Special Master recommends that the Court adopt the Special Master’s recommendations to grant in part and deny in part Plaintiffs’ Motion to Compel United Airlines, Inc. to Produce or Un-Redact Certain Documents from its Core Document Production Privilege Log in accordance with the Special Master’s Recommendations in the Analysis Chart [Exhibt 1]. [PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL UNITED AIRLINES, INC. to PRODUCE OR Un-REDACT CERTAIN DOCUMENTS from ITS CORE PRODUCTION PRIVILEGE LOG (MARCH , 2020) *17 The Special Master has filed Report and Recommendation No. 10. The Court, having considered the Special Master’s Report and Recommendation No. 10, and noting the absence of objection from any party, adopts Report and Recommendation No. 10 and orders that Plaintiffs’ Motion to Compel United Airlines, Inc. to Produce or Un-Redact Certain Documents from its Core Document Production Privilege Log is granted in part and denied in part in accordance with the Special Master’s Recommendations in the Analysis Chart [Exhibt 1] [ECF]. IT IS SO ORDERED. ________________________________ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE Special Master’s Report and Recommendation No. 10 Regarding Plaintiffs’ Motion to Compel United Airlines, Inc. to Produce or Un-redact Certain Documents from Its Core Production Privilege Log EXHIBIT 1 Tabular or graphical material not displayable at this time. EXHIBIT 2 Tabular or graphical material not displayable at this time. Footnotes [1] The Privilege Log relied on by the Special Master is the native Excel version of Appendix A as submitted with United’s opposition to Plaintiffs’ Motion. This version of Appendix A has Plaintiffs’ objections (or challenges) and United’s responses to those objections inserted into United’s fourth and final privilege log. The Privilege Log is in the form of an Excel spreadsheet containing the following columns: “Custodian,” “File Name,” “Email Subject,” “Author,” “From/Sender,” “To,” “CC,” “BCC,” “Date,” “Privilege Claim,” “Description,” “Redaction,” “Family Designation,” “Family Relations,” Plaintiffs’ Challenge(s), and United’s Response(s). [2] In this Report and Recommendation, position descriptions found in parenthesis after an individual’s name – such as Kurt Van Meir (Managing Director, Domestic Pricing & Revenue Management) – were taken from the Names List. Such information was not provided in the Privilege Log itself. Because the Special Master found that the Names List provided useful information, but contained some errors, the Special Master relied on it but cannot ensure that the descriptions are completely accurate. In appropriate instances, the Special Master used the positions listed in an individual’s email signature block or in a presentation attributed to that individual to identify the person and the person’s position. [3] Ms. Neagle declared that United in-house attorneys “advise United’s business units on company legal matters, and generally do not comment on non-law related company operations.” (¶ 5). She also declared that the United General Counsel and 3 named in-house attorneys “predominately act[ ] .... [or] predominately offer legal advice to United’s business units....” (¶¶ 6-9). [4] As is noted below, United did not provide other forms of contextual documents relating to E-docs or hard copy documents. [5] If part of an email in a single numbered document containing numerous emails was found to be privileged, then the entire document is listed in the Analysis Chart as “redact” even though only a limited portion of one email properly qualifies for redaction. [6] See, e.g., PL 25643; PL 9434; PL 24422; PL 32616; PL 39291; PL 23818. [7] This Court observed in the context of a privilege log that the “Privilege Log [was] of little assistance, as ‘the descriptions of the documents are so brief and of such a general nature that they fail to give the court any basis for determining whether the privilege was properly invoked” and, referring to the presentation of evidence in support of the privilege claims, the proponent “fail[ed] to correlate his declaration’s wholly conclusory assertions of privilege—which are nothing more than empty recitations of the applicable legal standard devoid of factual context—with any specific communication or communications.” [In re Veiga, 746 F. Supp. 2d 27, 40 (D.D.C. 2010) (quoting Alexander v. F.B.I., 192 F.R.D. 42, 45 (D.D.C. 2000) (Lamberth, J.) ]. Here, putting aside any issues with the Privilege Log, a major issue, as discussed below, was the absence of “competent evidence” to support the privilege claims. [8] See also Judicial Watch, Inc., 841 F. Supp. 2d at 154 (explaining in connection with the required showing to prove confidentiality, that “[t]he Court shall not prejudge what form that showing must take, other than to say that [the proponent of a privilege claim] must adduce competent evidence establishing” confidentiality); In re Veiga, 746 F. Supp. 2d at 44 (“After scouring the Privilege Log, Respondent’s declaration, the Cover Letter, and other materials, the Court finds no competent evidence indicating, one way or the other, what Respondent’s role was with respect to particular communications. Therefore, the invocation of the privilege fails for the same reasons it did above: absent competent evidence establishing some context as to Respondent’s role and the relationship among the parties, the Court cannot say whether the communication was made for the purposes of legal advice, and in confidence and outside the presence of strangers.”). [9] Based on the Special Master’s search of Appendix A, United’s response to Plaintiffs’ objections includes roughly 500 citations to Boca Investerings Partnership v. United States, 31 F. Supp. 2d 9 (D.D.C. 1998), 200 to FTC v. Boehringer Ingelheim Pharm., Inc., 892 F.3d 1264 (D.C. Cir. 2018), and 80 to Western Trails, Inc. v. Camp Coast to Coast, Inc., 139 F.R.D. 4 (D.D.C. 1991). These citations were mainly in support of the premise that, if information was communicated to or by an attorney, there is a presumption that it was done for a legal purpose. [10] See In re Kellogg Brown & Root, Inc., 796 F.3d 137, 149 (D.C. Cir. 2015) (citing and quoting 1 EDNA SELAN EPSTEIN, THE ATTORNEY–CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE 132 (5th ed. 2007). [11] See, e.g., Yde Decl. ¶ 5 (“Continental retained CompassLexecon, Lazard Freres & Co., Morgan Stanley, Sard Verbinnen & Co., and Sheehan Associates to work with Continental’s in-house and outside counsel in assessing the United-Continental merger, obtaining necessary regulatory approvals for the United-Continental merger, and/or responding to inquiries of members of the U.S. Congress.”); Forrest Decl. ¶ 6 (“Other consultants, specifically APCO Worldwide and Joele Frank, did from time to time perform work at the direction of United’s counsel, or as United’s agent sought legal advice from United’s counsel, in connection with evaluating the contemplated US Airways and Continental mergers and securing regulatory approval for the Continental merger.”). [12] See, e.g., PL 7621 (Privilege Log fails to identify third-party recipients, in situation where third-party is not identified in United’s declarations as having been retained by United or having a common interest with United); PL 3305 (Privilege Log fails to identify third-party sender and recipients, where, again, United’s declarations does not identify such third-party). [13] See, e.g., PL 4642 (Privilege Log states that document is attached to an email to multiple in-house counsel, but covering email provided for context shows that document had been sent from one non-attorney to another so that it could be sent to the printer); PL 3287 (Privilege Log states that document is attached to an email to in-house counsel Thomas Bolling and General Counsel Brett Hart, but covering email provided for context shows that the document had been attached to an email from one non-attorney to another); PL 17510 (Privilege Log claims email thread is an exchange between Brian Znotins and in-house attorney Bolling, but thread does not contain any such email, and does not involve any attorneys); PL 10897 (Privilege Log states that outside counsel is a recipient of email when email is between non-attorneys); PL 5973 (Privilege Log states that document is sent by client to an in-house attorney, but covering email provided by United for context does not have in-house counsel as a recipient); PL 21900 (Privilege Log states that document (material for publication on website) is sent to attorney Jessica Kimbrough, but covering email provided for context shows communication was between non-attorneys and Kimbrough had earlier signed off on the document; Privilege Log also claims outside counsel involvement, when covering email does not show such involvement); PL 4478-4479 (Privilege Log states that document was attached to an email to in-house attorneys Sucheta Misra, Lori Gobillot, and Jennifer Kraft, but covering email provided by United for context shows that those attorneys were not recipients); PL 5818-5819 (Privilege Log incorrectly states that document is attached to an email that has General Counsel Hart as the recipient, when, in fact, covering email provided for context shows that document was sent by non-attorney to other non-attorneys); PL 17932 (Privilege Log misidentifies the sender and recipients of an email); PL 25644 (Privilege Log identifies an individual as the sender of an email, but party identified is not associated with the email in any respect). [14] See, e.g., PL 17514 (asserting attorney-client (“AC”) privilege for email with the content “?”); PL 11760 (claiming AC privilege for email with content “thx”); PL 17516 (asserting AC privilege for email with content “Ah, OK!”); PL 23823 (identifying as privileged email with the content “I hate you.”); PL 34740 (asserting AC privilege for email with the content “I think Mark Nelsen should be included ... dave”); PL 29128 (claiming AC privilege for email with the content “Wow, that was quick. Thanks a bunch.”); PL 6977 and 11765 (identifying as AC email with the content “Thank you. I copy him and Luke.”); PL 19162 (asserting AC privilege for email with the content “Sounds good – thanks Richard.”); PL 8192 (identifying as AC email with the content “After 10:30 Monday and 11:30 Wednesday”); PL 18638 (asserting attorney-client privilege for an email from client to attorney with the content “Comments redlined on attached”); PL 26716 (asserting AC privilege for an advance copy of a press release sent to United’s board for their information); PL 39434 (asserting that email with the content “All: Here is the draft of the Ohio commitments letter as just now sent to Ohio.” reflects “mental impressions, conclusions, and/or theories of outside legal counsel regarding a governmental investigation related to the UA/CO merger”); PL 37248 (asserting that a Form 8-K being sent to RR Donnelley on a Friday so that it could be filed pre-market on Monday was a draft that reflects legal advice; and, in response to Plaintiffs’ objection, claiming that the document was sent to an attorney for review, when, in fact, the attorney was distributing the document); PL 18264 (claiming email with the content “Thanks, I’ll go through these and have them forwarded to [in-house counsel] Richa [Himani]” reflects information gathered at the request of legal counsel); PL 24914 (identifying as privileged an email with the content “Thanks, I’ll follow up with him. Have a good weekend, Mark.”); PL 11335 (identifying as privileged email with content “Thanks Toby. Good information. Nene and Dave, FYI. Holden.”); PL 17934 (describing email from in-house attorney, which, without comment, forwards an email from third party RR Donnelley indicating that RR Donnelley had new proofs of a Form 8-K ready for review, as a “Confidential communication prepared at the direction of legal counsel regarding SEC filings.”); PL 19659 (claiming AC privilege for email lacking substance); PL 18860 (Privilege Log claims that email from Faden to Znotins “reflects legal advice” where content of email consists of Faden asking Znotins whether he or his secretary should distribute a presentation); PL 25708 (where Privilege Log claims that email containing the contact information for Skywest’s attorney constitutes legal advice). [15] See, e.g., PL 7530, 13372, 13368, 6796, 6788, 6790, 6791, 6792, 6793, 6794, 6795, 34149, 7312, 19082, 38032, 38034, 36208, 36209, 6948, 9474, 9473, 4236, 4237, 32858, 32859, 6681, 6682, 6683, 6684, 40790, 6703, 6701, 6699, 7453, 39131, 39136, 6339, 11259, 6343, 6344, 10027, 7206, 4475, 2703, 20129, 11715, 36071, 8936, 2834, 21930, 21928, 21929, 22026, 22028, 22029, 21933, 21931, 21932, 21933, 21934, 22030, 22031, 22032, 26716, 4540, 25725, 25723, 25724, 32056, 15029, 15025, 15026, 15027, 15028, 15030, 15031, 15032, 15033, 15034, 5722, 5724, 5804, 14349, 21766, 21767, 23783, 23784, 23818, 23819, 23823, 23824, 23839, 23840, 23890, 23891, 23892, 23996, 23997, 475, 5336, 21991, 19434, 21989, 21990, 24711, 18552, 18533, 18554, 18562, 24706, 24707, 24708, 24709, 24710, 11572, 6964, 6965, 28144, 28145, 28146, 22209, 21825; 24024; 24025; 24033; 24131, 22381, 23525, 23760, 23920, 1973, 40385, 662, 818, 1991, 37120, 37122, 1975, 5148, 5146, 5147, 28090, 28058, 37301, 21900, 35067, 13620, 5235, 5236, 4885, 4886, 10492, 25121, 9496, 9497, 9498, 9499, 9500, 34699, 6625, 6626, 31, 30, 8097, 12270, 31730, 31731, 32067, 13636, 13634, 13892, 14343, 14344, 13892, 13634, 13641, 13891, 1541, 473, 474, 1536, 1537, 1538, 1539, 1540, 1541, 1542, 1543, 1544, 1545, 2569, 476, 477, 478, 2568, 2573, 2570, 2571, 2572, 2581, 2574, 2575, 2576, 2677, 2678, 2679, 2580, 1694, 4447, 4445, 4446, 5681, 3732, 2098, 19229. [16] See, e.g., PL 12993, 34149, 7312, 26230, 7453, 4266, 4267, 4469, 6389, 19471, 4475, 2703, 4478, 4479, 11274, 17357, 17359, 17361, 17362, 17363, 8949, 4626, 4627, 4628, 31855, 6052, 21371, 21378, 13783, 13784, 13787, 13793, 24578, 5160, 5636, 24579, 13795, 13796, 4969, 5642, 31887, 31889, 31891, 31892, 31893, 31894, 31895, 31917, 31918, 31919, 31920, 31921, 31923, 9577, 10987, 10989, 10990, 4122, 19470, 19471, 4979, 5187, 21912, 21913, 31413, 31357, 31849, 38312, 9778, 5166, 32465. [17] See, e.g., PL 40887, 40888-40893, 40895-40916, and 40917-40918, 26214, 12418, 12410, 12412, 12414, 12416, 10516, 39251, 33037, 13038, 13028, 13030, 13034, 13035, 13036, 13037, 26222, 26426, 26224, 26427, 13043, 39073, 7006, 7007, 7008, 7009, 39079, 39080, 39081, 39085, 39086, 6088, 6089, 6090, 6095, 6096, 6107, 6108, 13061, 11591, 11098, 6087, 6091, 38164, 38165, 38166, 38167, 38168, 38169, 38170, 38171, 6099, 6101, 6105, 6833, 13103, 7022, 7019, 7021, 7605, 11811, 39124, 13111, 38908, 6165, 6168, 36342, 6175, 6176, 6177, 6178, 11611, 35477, 24846, 13394, 4249, 4253, 4254, 4255, 13869, 7445, 13438, 24907, 24908, 5650, 5651, 4294, 4295, 19195, 38617, 342, 18696, 14746, 15972, 15973, 901, 903, 3305, 26304, 5328, 35785, 5091, 35522, 35543, 18860, 6654, 5097, 6659, 9135, 1027, 3143, 3144, 3145, 3146, 5413, 5416, 3149, 9136, 31492, 31552, 35644, 35645, 5103, 11813, 35665, 35666, 389, 4815, 5658, 6705, 8112, 8113, 8410, 8224, 8411, 11943, 6707, 24742, 3159, 3330, 3331, 3165, 3166, 3167, 3168, 3332, 3333, 39233, 400, 401, 1199, 399, 1203, 400, 17505, 402, 35705, 8225, 18403, 17812, 18412, 32794, 32795, 6960, 6961, 32796, 8231, 32797, 32799, 5459, 4642, 10971, 10972, 25133, 24189, 8233, 24779, 15345, 18896, 18429, 8124, 15130, 15162, 14769, 15163, 15164, 15165, 15263, 426, 422, 425, 8465, 8466, 22312, 18336, 17653, 17654, 18337, 2615, 472, 2633, 535, 536, 537, 538, 13263, 26804, 26805 26810, 3340, 6052, 12699, 7789, 12729, 3287, 9160, 35210, 5138, 20889, 20884, 20887, 38291, 5629, 13580, 31279, 31261, 31273, 31282, 31284, 3204, 3205, 3206, 18916, 3415, 3050, 5001, 10851, 8030, 4137, 4138, 4117, 4208, 11890, 11885, 11886, 11887, 11889, 4201, 8054, 32652, 34139, 4131, 4132, 4133, 4134, 4135, 4136, 5178, 5179, 2148, 2146, 3824, 3825, 3826, 3827, 3828, 3829, 3830, 3831, 3832, 3833; 3834; 3835; 3836; 3837; 3838; 3839, 3459, 3460, 3461, 3462, 3463, 3464, 3465, 3466, 3467, 3468, 3469, 3471, 3472, 3473, 3474, 3475, 3476, 3477, 3478, 3479, 3480, 3481, 3482, 3890, 3892, 3893, 3894, 3895, 3896, 3897, 3898, 3900, 3901, 3902, 3903, 3904, 3905, 3906, 3907, 3908, 3909, 3910, 3911. [18] See, e.g., PL 471 (email indicating that in-house attorney Jennifer Kraft, who also played the role of “Corporate Secretary,” maintained and distributed board materials); PL 17932 and PL 17934 (emails showing in-house attorney Sucheta Misra receiving Form 8-K proofs from RR Donnelley, and then sending the documents back to RR Donnelley for filing); PL 38914 (email where Kraft distributes to United’s board and other recipients a business update from then-CEO Jeff Smisek); PL 26716 (after distribution to the board, General Counsel Brett Hart forwards advance copy of press release to United employee); PL 18696 (Karine Faden forwards slides previously presented to third party because business person wanted to use it for an internal update); PL 37248 (in-house attorney Jerry Clanton informs client he will be sending Form 8-K to RR Donnelley); PL 17340 (business person asks in-house counsel to send document to RR Donnelley). [19] See, e.g., PL 9136 (Sucheta Misra suggesting, as her only edit, that the drafter spell out an acronym); PL 13249 (Misra advising that the author of the deck indicate upfront that the footnotes are in the back, “so p[eople] won’t go through entire deck in confusion” among other edits); PL 31855 (Misra asking “Should this be plural?” in the course of providing similar comments and edits,); PL 31931 (Misra changing “amount to” to “total,” among other edits); PL 32652 (Misra suggesting, among other edits, that the author “delete’s at the end of Seattle’s”; add dollar signs before dollar amounts; and spell out certain acronyms); PL 8936 (Misra suggesting, among other things, that “last paragraph needs an apostrophe in UALs executive vice president” and that “you can cut the (FAA) from the first full para since we don’t use the acronym again”); PL 31849 (Misra filling in missing words, correcting pluralization and construction, changing the placement of a clause, making word choice changes, such as replacing “good” with “solid”); PL 5091 (each edit, none of which is legal, is described in the analysis of that entry); PL 36024 (“Legal” provides the following input “is there a way to combine the last two bullets and last sub-bullet and speak to anything else that can’t be included?”); PL 4979 (Mika Clark’s comments consist of changing a name and correcting the spelling of a word); PL 12733 (Abby Bried provides track-changes edits consisting of eliminating extra spaces between words and deleting an extra period); PL 15130 (Ted Davidson suggesting an edit that cannot be construed as legal advice but which merely states the obvious); PL 1185 (Thomas Bolling’s edit consist of deleting “ensure we could” before “meet that demand”); PL 40131 (Bolling making stylistic revisions to a press statement in 2012); PL 4487 (Bolling making stylistic revisions to a press statement in 2011); PL 4969 (Bried transmitting “legal comments” consisting of pointing out a missing word, changing the tense of verbs, and asking whether a different term had been used previously); PL 22209 (Bried makes cosmetic changes to a press release); PL 13368 (Matthew Wexley makes cosmetic changes to a press release); PL 14943 (Lydia Mathas’s only response to a draft language is to ask whether she can insert “the attached” so readers know there is an attachment; she then plays a role in distributing the content); see also PL 27993 (where United claims that memo, it attributes to an attorney, reflects legal advice, but such memo does no more than identify personnel on IATA committees and working groups and set forth the membership fees that both Continental and United expect to pay in 2011). [20] See PL 12418, 12410, 12412, 12414, and 12416. [21] See, e.g., PL 6654 (business presentation regarding industry synergies that had been used for an internal management update, stamped “Confidential – Draft – Attorney client privileged – Prepared at the request of counsel”); PL 535 (presentation titled “Aircraft Sources / Uses” has footer “Draft – Privileged and Confidential”); PL 13061 (CEO’s presentation to JP Morgan stamped “Privileged & Confidential / Prepared at the Request of Legal Counsel”); PL 26222 (corporate strategy update for the board stamped “Attorney Client Privileged”); PL 5819 (79-page “Industry Agenda Reputation Theme” pre-read materials stamped “Attorney Client Privilege”); PL 3287 (“Network Analysis Update” stamped “Privileged and Confidential” and “Prepared at the Request of Counsel”); PL 32794 (“Core Messaging” document marked “Privileged and confidential”); PL 3305 (document about tax policy attached to an email from third-party McKinsey & Company labeled “Attorney Client Privilege”); PL 4137 (document about “Fleet strategy” stamped “Attorney-Client Privileged Communication – Prepared at the Request of Counsel”); PL 12418 (two slides examining possible reductions to improve operating performance, attached to emails between non-attorneys, labeled “ATTORNEY-CLIENT PRIVILEGED COMMUNICATION”).