In Banneker Ventures, LLC v. Graham, No. 13-391 (RMC) (D.D.C. May 16, 2017), the district court held that a company’s disclosure of a privileged investigation report and use of the report in litigation resulted in subject matter waiver with respect to the underlying, undisclosed interview memoranda.  In this case, defendant WMATA engaged outside counsel to undertake an investigation regarding the actions of WMATA’s Board in connection with a real estate development project that fell apart two years earlier, with a partner on the transaction suggesting it may seek legal remedies.  Over the course of five months, outside counsel interviewed 34 individuals, 19 of whom were current or former WMATA employees or Board members, resulting in 51 interview memoranda.  Counsel released an investigative report to WMATA, which referenced and cited to at least 23 witness interviews.  WMATA adopted a Board Resolution that recommended the public release of the report.  In this subsequent litigation, plaintiff sought discovery from both WMATA and its counsel of all of counsel’s interview memoranda.  The court rejected both the work product protection and the attorney-client privilege as bases for WMATA to withhold the interview memoranda.  As to work product, the court found that the two year gap between the threat of potential litigation and the investigation indicated that the investigation was not conducted because of anticipated litigation, but instead to conduct a business review of the Board’s conduct and determine whether WMATA’s policies and procedures should be changed.  The court then found that WMATA’s public disclosure of the report and WMATA’s affirmative use of the report in this subsequent litigation waived privilege not just with respect to the report itself, but with respect to the entire subject matter of the report, including each of the 51 interview memoranda.  The court applied the fairness review set forth in Federal Rule of Evidence 502, which limits subject matter waiver to those rare and unusual circumstances where fairness requires consideration of undisclosed privileged information with the disclosed privileged information.  The court found that WMATA had selectively used the report and facts disclosed in the report to gain a tactical advantage in the litigation.  Therefore, plaintiff was entitled to the remaining facts and information contained in the interview memoranda.  The court directed production of the memoranda, but also provided that counsel would be allowed to redact information that addressed subjects not covered by the report.