is waived where there is “deliberate, affirmative, and selective use of privileged work-product materials by a party.” Grand Jury Proceedings, 219 F.3d at 191; see also In re Steinhardt Partners, L.P., 9 F.3d 230, 234 (2d Cir.1993). Here, defendants argue that the SEC and the USAO waived any privilege they may have been able to assert when they shared their work product with Blankfein, a third-party witness in this ease. The Second Circuit has not yet specifically addressed whether disclosing work product to a third-party witness is a “deliberate, affirmative, and selective use” of work product that constitutes waiver. Both Grand Jury Proceedings and Steinhardt, however, cite with approval In re Sealed Case, an opinion of th 3(AGS), 2001 WL 546630, at *4 (S.D.N.Y. May 22, 2001) (<HOLDING>). The SEC argues that several other district
holding work product protection waived for disclosures to independent auditor who did not share common interests with corporation holding privilege waived where plaintiffs counsel shared legal strategy with a thirdparty witness against whom plaintiffs had tolled claims holding defendants waived work product protection over emails that defense counsel sent to independent thirdparty witness with whom defendants did not share common interest holding work product protection waived where company shared litigation strategy against plaintiff with nonparty independent contractor holding that the protection of the work product rule continues after litigation has terminated