Academic journal article The Review of Litigation

Prophetic or Misguided?: The Fifth Circuit's (Increasingly) Unpopular Approach to the Work Product Doctrine

Academic journal article The Review of Litigation

Prophetic or Misguided?: The Fifth Circuit's (Increasingly) Unpopular Approach to the Work Product Doctrine

Article excerpt


Codified in Federal Rule of Civil Procedure 26(b)(3), the federal work product doctrine's "anticipation of litigation" requirement has been the source of a long-standing circuit split. For almost three decades, the Fifth Circuit has applied a narrow "primary purpose" test in interpreting the requirement. No other federal circuit court has ever adopted that standard. Instead, most have applied a more permissive "because of" test. The circuit split results in an abbreviated scope of work product doctrine protection for federal court litigants in Texas, Louisiana, and Mississippi. As evidenced by the case law, the impact has been greatest on taxpayers litigating federal tax issues. However, corporate litigants have also been widely affected even when tax is not implicated.

Although the Supreme Court has not been inclined to resolve the circuit split in the past, the visibility of this issue has been raised recently by the high profile case, United States v. Textron, Inc. in which the "because of" test was applied to determine whether the work product doctrine protected a taxpayer's sensitive tax pool analysis documents from an I.R.S. summons. The First Circuit's original panel opinion determined that the "because of" test did protect such documents. By contrast, prior Fifth Circuit precedent had already applied the narrow "primary purpose" test to deny work product protection to the same type of documents. Nonetheless, the First Circuit eventually vacated its original panel opinion and recently issued an en banc opinion that applied a novel and much more restrictive version of the "because of" test to deny protection to the tax pool analysis documents. As a result, there is now uncertainty as to the basic requirements of the federal work product doctrine. Textron is currently appealing the case and there is speculation that the Supreme Court will grant certiorari to resolve the uncertainty.

In an effort to assess the propriety of the Fifth Circuit's "primary purpose" test, this article traces the history of the federal work product doctrine, analyzes the text of Rule 26(b)(3), and reflects on the underlying policy goals the doctrine is intended to serve. This article concludes that the "primary purpose" test is at odds with the plain meaning of Rule 26(b)(3) and severely undercuts the policy aims of the work product doctrine. By contrast, the traditional formulation of the "because of" test is both doctrinally correct and appropriate from a policy perspective. It is suggested that the Supreme Court should explicitly reject the "primary purpose" test if the high court grants certiorari in the Textron case. In the alternative, the Fifth Circuit is urged to abandon its misguided work product precedent and follow the approach of the majority of its sister circuits.


As currently codified in Federal Rule of Civil Procedure 26(b)(3), the federal work product doctrine1 provides a limited immunity from discovery for materials that are "prepared in anticipation of litigation."2 For decades, the courts and practitioners have grappled with issues associated with the task of identifying when items are prepared in a manner such that the doctrine's immunity is available. One of the most difficult issues arises when a document is prepared because of two or more motivations, hi such instances, it can be unclear whether the requirement is met.

Since the early 1980s, the Fifth Circuit has taken a narrow approach to this issue; the court has opined that the "anticipation of litigation" requirement is satisfied only when the "primary motivating purpose" of a document is to "aid in possible future litigation."3 The Fifth Circuit is the only federal circuit that has adopted this approach. Indeed, the majority of the other circuits have adopted a much less restrictive standard-the "because of" test,4 which protects documents that are prepared because of existing or expected litigation. …

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