Robert Elmer comments on major litigation ruling from federal appeals court

1st Circuit reshapes attorney work-product privilege

BOSTON (Aug. 21, 2009) – A highly anticipated ruling from the 1st Circuit could redefine the reach of the attorney work-product privilege in civil lawsuits, according to an article in the Aug. 24, 2009 issue of Massachusetts Lawyers Weekly.

The court in a 3-2 decision ruled that tax authorities can review tax-accrual work papers prepared by Textron, Inc. to assess how much money it should set aside in the event the government disputes the company’s tax returns.

The court said attorney work documents have to be prepared "for use in litigation" to enjoy the protection from disclosure. Textron’s tax-accrual documents were financial records not prepared specifically for litigation, the court found.

Partner Robert Elmer said the full impact of the ruling remains to be seen.

"You'll see lawyers use the 'for use in litigation’ language to suggest that we now have a more narrow test, but the counter-argument will be that Textron is really only about tax-accrual work papers," Elmer told Lawyers Weekly. “While lawyers will be wise to read this decision and know what it says, I, for one, don’t think the court was saying its decision was meant to have such widespread application, as the dissent suggests."

Elmer added that the case could go to the U.S. Supreme Court: “The dissent certainly seems to be inviting counsel for Textron to apply for certiorari. I know there will be a lot of people watching to see if that’s where it goes."

The case is United States v. Textron, Inc., 560 F.3d 513 (1st Cir. 2009). To read the opinion, click here.