Client Alert
| August 14, 2009
United States v. Textron: First Circuit, Sitting En Banc, Denies Work Product Protection to Tax Accrual Workpapers
In a dramatic reversal from a January 21, 2009 panel opinion, the Court of Appeals for the First Circuit, in a 3-2 split, vacated the district court's decision in United States v. Textron Inc., 507 F. Supp. 2d 138 (D.R.I. 2007). United States v. Textron Inc., No. 07-2631 (1st Cir. Aug. 13, 2009) (en banc). The First Circuit sitting en banc held that work product protection does not apply to Textron's tax accrual workpapers because they were prepared in the ordinary course of business as required by statute, independent of pending litigation. The work product doctrine generally prevents discovery of documents that are "prepared in anticipation of litigation or for trial." This opinion potentially narrows the work product doctrine by requiring that documents be prepared for use in litigation rather than because of the possibility of litigation.
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