Seeking Reversal of an Erroneous Narrowing of the Work Product Doctrine
This petition for certiorari sought review of an en banc decision by the First Circuit, which held that a corporation's tax reserve litigation assessment documents were not protected work-product because the documents were not prepared for trial and had been disclosed to an auditor pursuant to independent legal requirements. The majority opinion, written by Judge Boudin, is accompanied by a vigorous dissent authored by Judge Torruella (speaking for himself and Judge Lipez). In holding that the work-product doctrine only protects documents prepared for use in litigation, the en banc decision appears to read out of Fed. R. Civ. P. 26(b)(3)(A) the protection afforded documents prepared "in anticipation of litigation." Not only does this appear to be a blatant misreading of the rule, it also promises to have an adverse effect for business on the application of the work-product doctrine in a range of contexts. With respect to the particular circumstances at issue in the Textron case itself, the new interpretation of work-product protection will, at the very least, chill issuer-auditor communications. Furthermore, the Textron holding deepens a circuit split on the application of work-product protection in circumstances like those in Textron. For example, the Second Circuit has found work-product protection in circumstances analogous to those in Textron (as has the Massachusetts Supreme Judicial Court in a decision that notes favorably the First Circuit’s initial decision in Textron, which the en banc decision reversed (see Commissioner of Revenue v. Comcast Corp., 901 N.E. 2d 1185 (Mass. 2009)). As a result, companies with operations in more than one New England state will have a different federal work-product rule apply depending on whether they are with the jurisdiction of the First or Second Circuit.
NELF filed an amicus brief in support of Textron urging the Supreme Court to review this en banc decision of the First Circuit. NELF argument supplemented Textron’s filing by asking the Supreme Court to consider: (1) the unworkable implications of the Circuit split especially for businesses in the New England states; and (2) the en banc opinion’s flawed application of Rule 26(b)(3)(A).
Despite the arguments made by Textron, NELF, and numerous other amici, the Supreme Court denied certiorari on May 24, 2010.
This petition for certiorari sought review of an en banc decision by the First Circuit, which held that a corporation's tax reserve litigation assessment documents were not protected work-product because the documents were not prepared for trial and had been disclosed to an auditor pursuant to independent legal requirements. The majority opinion, written by Judge Boudin, is accompanied by a vigorous dissent authored by Judge Torruella (speaking for himself and Judge Lipez). In holding that the work-product doctrine only protects documents prepared for use in litigation, the en banc decision appears to read out of Fed. R. Civ. P. 26(b)(3)(A) the protection afforded documents prepared "in anticipation of litigation." Not only does this appear to be a blatant misreading of the rule, it also promises to have an adverse effect for business on the application of the work-product doctrine in a range of contexts. With respect to the particular circumstances at issue in the Textron case itself, the new interpretation of work-product protection will, at the very least, chill issuer-auditor communications. Furthermore, the Textron holding deepens a circuit split on the application of work-product protection in circumstances like those in Textron. For example, the Second Circuit has found work-product protection in circumstances analogous to those in Textron (as has the Massachusetts Supreme Judicial Court in a decision that notes favorably the First Circuit’s initial decision in Textron, which the en banc decision reversed (see Commissioner of Revenue v. Comcast Corp., 901 N.E. 2d 1185 (Mass. 2009)). As a result, companies with operations in more than one New England state will have a different federal work-product rule apply depending on whether they are with the jurisdiction of the First or Second Circuit.
NELF filed an amicus brief in support of Textron urging the Supreme Court to review this en banc decision of the First Circuit. NELF argument supplemented Textron’s filing by asking the Supreme Court to consider: (1) the unworkable implications of the Circuit split especially for businesses in the New England states; and (2) the en banc opinion’s flawed application of Rule 26(b)(3)(A).
Despite the arguments made by Textron, NELF, and numerous other amici, the Supreme Court denied certiorari on May 24, 2010.
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