In Williams & Connolly v. SEC, 662 F.3d 1240 (D.C. Cir. 2011) (No. 10-5330), the court held that the government’s disclosure of some SEC notes in prior litigation did not result in waiver as to undisclosed notes relating to the same subject matter. The plaintiff law firm represented criminal defendants in a series of criminal securities fraud trials. Prior to those trials, the SEC had investigated the criminal defendants, and had prepared 114 sets of notes. During the criminal trials, the DOJ disclosed 11 of those documents to defendants. In this action, the firm sought to obtain the remaining notes through a FOIA request, and the SEC refused to disclose them as protected work product under FOIA exemption 5. Plaintiff argued that the DOJ’s disclosure of the 11 documents resulted in subject matter waiver as to all of the documents. The appellate court rejected that argument. The court noted that the purpose of the work product doctrine is not inconsistent with selective disclosure, and disclosure of some documents does not necessarily destroy work product protection for other documents of the same character.