Academic journal article Suffolk University Law Review

Dueling Approaches to Dual Purpose Documents: The Reaches of the Work Product Doctrine after Textron

Academic journal article Suffolk University Law Review

Dueling Approaches to Dual Purpose Documents: The Reaches of the Work Product Doctrine after Textron

Article excerpt

"[Work product protection] is less clear ... as to documents which, although prepared because of expected litigation, are intended to inform a business decision influenced by the prospects of the litigation." (1)


In a highly anticipated decision, the United States Court of Appeals for the First Circuit held that a company's tax accrual work papers are not protected under the work product doctrine. (2) In United States v. Textron Inc., the First Circuit applied the unprecedented test that materials must be prepared "for use in litigation" to be protected. (3) The Textron decision provoked controversy because its interpretation of the work product doctrine significantly limits the types of documents afforded protection. (4)

In reaching its decision, the First Circuit stressed that Textron's tax accrual work papers were dual purpose documents, i.e., prepared for both a business purpose and a possible business litigation purpose. (5) Prior to Textron, courts commonly applied two different approaches to the work product doctrine: a broad test that protected dual purpose documents and a narrow test that did not protect dual purpose documents. (6) The test established in Textron departed from the First Circuit's previous broad interpretation of the work product doctrine, under which the tax accrual work papers would likely have been protected. (7)

Following Textron, the scope of protection for dual purpose documents under the work product doctrine is unclear. (8) While Textron put in-house tax professionals on edge, its effects will likely extend to areas beyond tax law because the First Circuit focused on the dual purpose nature of the tax accrual work papers in reaching its decision. (9) Many other areas of law rely on similar dual purpose documents, which could potentially be damaging if an opponent were able to gain access to these documents during the course of litigation. (10)

This Note will begin by looking at the public policy rationale underlying the Supreme Court's establishment, and Congress's codification, of the work product doctrine. (11) It will then look at the state of the work product doctrine before the First Circuit's Textron decision. (12) The Note will then discuss the Textron decision and how the First Circuit developed its new "for use in litigation" test. (13) The Note will then examine the protection currently afforded to dual purpose documents in the areas of environmental law and insurance law. (14) The analysis will argue that the Textron test will have broad ramifications beyond the context of tax accrual work papers, and it will discuss the negative consequences on environmental law and insurance law if dual purpose documents are no longer shielded from discovery by the work product doctrine. (15)


A. Work Product Doctrine Pre-Textron

1. Public Policy Justifications

The 1947 Supreme Court opinion in Hickman v. Taylor (16) first established the work product doctrine. (17) In Hickman, the Court rejected the plaintiff's attempts to discover notes taken by the defendant's attorney while interviewing prospective witnesses for trial. (18) In protecting the notes of the defendant's attorney, the Court recognized the importance of providing a sphere of privacy that permits a lawyer to analyze a client's case and prepare for trial without the threat of intrusion by opposing counsel. (19) The Court attempted to preserve the quality of legal representation through the sphere of privacy. (20) Under the Court's rationale, documents revealing an attorney's mental processes, known as "opinion work product," merit special protection. (21) Since the Hickman decision over sixty years ago, the Supreme Court has repeatedly recognized the public policy grounds underlying the work product doctrine. (22)

Rule 26(b)(3) of the Federal Rules of Civil Procedure later codified the work product doctrine by protecting documents "prepared in anticipation of litigation or for trial" from discovery by the opposing party. …

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