In DeAngelis v. Corzine, No. 11 Civ. 7866 (S.D.N.Y. Feb. 9, 2015), the district court held that investigation materials were protected by the attorney-client privilege and as work product even though the investigation report was intended to be made public from the outset of the investigation. In this case, the liquidating Trustee for MF Global, Inc. engaged Ernst & Young (“EY”) to perform forensic accounting to assist the Trustee in conducting his statutorily mandated investigation and search for assets pursuant to the Securities Investor Protection Act (“SIPA”). In accordance with the statutory directive, the investigation culminated in a report submitted to the bankruptcy court, which then became publicly available. Individual defendants sought discovery of EY’s investigation material relating to the reported investigation arguing: (1) the materials were not privileged where the report was intended to be made public; (2) the investigation was for a dual business and legal purpose and therefore not protected by the work product doctrine; and (3) the Trustee’s reliance on the facts in the report waived privilege. The court rejected all three arguments. First, the court held that undisclosed EY investigation materials were protected by the attorney-client privilege. Citing the U.S. Supreme Court’s decision in Upjohn-I, the court held that the communications with counsel underlying the report remained privileged even though the facts learned and reflected in the report were not. The fact that the information learned would ultimately be disclosed did not deprive the communications of protection. Second, the court held that the materials were protected work product. Applying the “because of” litigation test, the court stated that it was “flummoxed” by defendants’ argument that the investigation materials were not work product, as they were created only because of the SIPA proceeding, and in the absence of the proceeding would never have been created. Third, the court held that the Trustee’s use of the facts disclosed in the report did not waive privilege. The court noted that a complaint, which relied on facts developed from the investigation, did not selectively quote or identifiably paraphrase any privileged documents prepared by EY. Instead, it identified facts that EY had extracted from underlying non-privileged documents, to which defendants had access.