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In the wake of the First Circuit's recent decision in United States v. Textron Inc., 577 F.3d 21 (1st Cir. Aug. 13, 2009) - holding that the work product doctrine does not protect "tax accrual workpapers" from disclosure - corporations and their attorneys may find themselves wondering how this surprising shift in work product jurisprudence will shape the way in which they do business.
The highly anticipated opinion from the en banc court appears to abandon the test previously adopted by the First Circuit - and other circuits - for determining what documents constitute work product, i.e., whether the documents were prepared "because of" litigation, and establishes a new test (albeit without expressly characterizing it as such) looking to see whether the documents were prepared "for use" in litigation. The implications of the Textron decision will no doubt reach far beyond the jurisdictional borders of the First Circuit and may cause the U.S. Supreme Court to weigh in on the extent to which counsel's candid assessment of litigation risk will be protected from discovery.
