In Gruss v. Zwirn, No. 09-6441 (S.D.N.Y. Nov. 20, 2013), the district court rejected a motion to clarify its July 2013 order, in which it had held that defendants waived the attorney-client privilege and work product protection as to attorney notes and summaries of interviews conducted during an internal investigation when defendants disclosed summaries of those interviews in PowerPoint presentations voluntarily provided to the S.E.C. following the internal investigation. Defendants argued that: (1) counsel had its own distinct privacy interest in “the firm’s preliminary, internal work product” that protected the notes from disclosure; and (2) the notes, in their entirety, constituted opinion work product. The court disagreed. First, the court rejected counsel’s assertion that counsel had a right to withhold the notes on the grounds that they were internal firm documents and, therefore, not within the custody and control of the defendant. The court held that the interview notes were not documents intended purely for internal law office review and use but, instead, were intended to assist the client relating to interviews for which the client had paid, and therefore were presumptively in the client’s custody and control and subject to discovery. The court also rejected counsel’s assertion, supported solely by an affidavit of one of counsel’s partners, that the notes in question in their entirety constituted opinion work product. The court concluded that the notes must contain at least some fact work product, and ordered an in camera review to allow the court, and not counsel, to determine what portions of the notes should be deemed opinion work product and redacted prior to production.