In New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (Nos. 13-422(L), 13-445 (CON)), the Second Circuit held that the government waived privilege over the legal analysis portion of a memorandum prepared by the Office of Legal Counsel (“OLC”) for the Department of Defense (“DOD”).  Plaintiff made a FOIA request for legal opinions or memoranda prepared by the OLC since 2001 that addressed the legal status of targeted killing of people suspected of ties to terrorist groups.  The government withheld many documents on grounds including secrecy, deliberative process, and attorney-client privilege.  Among the withheld documents was a memorandum prepared by OLC for DOD (the “OLC-DOD Memorandum”), which contained both tactics and strategies for conducting killings, as well as legal analysis regarding the legality of the killings.  The trial court sustained the government’s objections.  While on appeal, however, a classified “DOJ White Paper” addressing these issues was leaked, and the government officially disclosed the document four days later.  Government officials then testified in Congress and mounted a public relations campaign in which several officials, including the Attorney General of the United States, specifically stated that the boundaries of the program had been established by the OLC and the program was “entirely lawful” and complied with “four fundamental law of war principles.”  The appellate court held that the public disclosure of the DOJ White Paper and the public statements of government officials waived privilege with respect to the legal analysis portions of the OLC-DOD Memorandum.  The court explained that the OLC-DOD Memorandum’s legal analysis tracked the DOJ White Paper, and the Attorney General had testified in Congress the DOJ White Paper’s discussion would be “more clear if it is read in conjunction with the underlying OLC advice.”  The court held that, under these circumstances, the government waived privilege over the legal portions of the OLC-DOD Memorandum.  However, the court held that the government could withhold the other portions of the document.