In Spears v. First American eAppraiseIT, No. 13-mc-1167 (D.D.C. Dec. 2, 2014), the district court held that the Office of the Comptroller of Currency (“OCC”) (the successor to the Office of Thrift Supervision (“OTS”)) did not waive the attorney-client privilege, the work product protection, or the deliberative process privilege when it produced documents under seal in response to a subpoena served by a Senate subcommittee.  The Senate subcommittee cited the documents and summarized them in its 2011 report on the 2007-2008 financial crisis.  Plaintiff argued that OTS had waived privilege by voluntarily producing the documents to the Senate, a third party, which then disclosed the information to the public.  Plaintiff also argued that disclosure could not be deemed “involuntary” or “compelled” where OTS did not object to the subpoena on the basis of privilege.  The court held that OTS had not waived the attorney-client privilege.  OTS produced the documents to the Senate under seal pursuant to a subpoena.  The Senate, not OTS, disclosed the information to the public.  The court stated: “documents produced pursuant to subpoena are not voluntarily disclosed,” and the fact that they were produced under seal weakens the case for waiver.  The court also held that OTS did not waive work product protection.  Filing the documents under seal was not inconsistent with maintaining secrecy.  The court concluded that finding no waiver under these circumstances was appropriate because OTS took steps to maintain confidentiality, and the policy interests underlying the attorney-client privilege and the deliberative process privilege – encouraging candid and open discussion amongst agency counsel and members in future deliberations and decisions – would be furthered by upholding the assertions of privilege in this case.