Day Pitney remains committed to providing quality legal counsel, while protecting our clients and employees, and transforming our communities into more just, equal and equitable spaces. For more information, please visit our COVID-19 Resource Center | Racial Justice and Equity Task Force.
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.
This website may use cookies, pixel tags and other passive tracking technologies, including Google Analytics, to improve functionality and performance. For more information, see our Privacy Policy. By using our website, you are consenting to our use of these tracking technologies. You can alter the configuration of your browser to refuse to accept cookies, but if you do so, it is possible that some areas of web sites that use cookies will not function properly when you view them. To learn more about how to delete and manage cookies, refer to the support instructions for each browser (e.g., see AllAboutCookies.org). You may locate Google Analytics' currently available opt-outs for the web here.
This website may use cookies, pixel tags and other passive tracking technologies, including Google Analytics, to improve functionality and performance. For more information, see our Privacy Policy. By using our website, you are consenting to our use of these tracking technologies. You can alter the configuration of your browser to refuse to accept cookies, but if you do so, it is possible that some areas of web sites that use cookies will not function properly when you view them. To learn more about how to delete and manage cookies, refer to the support instructions for each browser (e.g., see AllAboutCookies.org). You may locate Google Analytics' currently available opt-outs for the web here.