In Gruss v. Zwirn, No. 09 Civ. 6441 (S.D.N.Y. July 10, 2013), the Southern District of New York rejected the selective waiver doctrine, and held that disclosure of excerpts of privileged communications to the SEC resulted in waiver as to third party litigants not only to the disclosures made but also as to the factual portions of interview notes and summaries not disclosed to the SEC. In this case, defendant conducted internal investigations, after which defendant disclosed financial irregularities and the investigations to investors, blaming the former CFO but absolving the CEO. The CFO sued for defamation, and sought the notes and summaries of interviews conducted during the investigations. Prior to the instant litigation, defendant cooperated with the SEC in its investigation of the financial irregularities. Defendant entered into an agreement with the SEC, in which the defendant stated that it intended to disclose material protected by the attorney-client privilege and the work production doctrine, but that defendant did not intend to waive privilege as to third parties, and the SEC would maintain confidentiality of the materials and would not disclose them to any third party “except to the extent that the Staff determines that disclosure is required by law or would be in furtherance of the Commission’s discharge of its duties and responsibilities.” Defendant presented a PowerPoint briefing to the SEC that set forth summaries of 21 interviews. The court held that the disclosure waived privilege as to factual portions of the underlying attorney notes and summaries. The court rejected defendant’s attempt to rely on the selective waiver doctrine, noting that almost every Circuit to consider the issue had rejected it, and holding that the Second Circuit’s suggestion in In re Steinhardt Partners, L.P., 9 F. 3d 230 (2d Cir. 1993) that the selective waiver doctrine might apply where there was a confidentiality agreement in place did not save the defendant from waiver here. There was no question that the relationship with the SEC was adversarial, and the agreement provided no meaningful protection because it allowed the SEC to disclose the material whenever it chose to do so.