United States v. Textron, Inc : The First Circuit En Banc Eviscerates the Work Product Doctrine and Creates a New 'Prepared for' Test

On August 13, 2009, the Court of Appeals for the First Circuit on rehearing en banc held, in a 3-2 decision, that tax accrual workpapers prepared by Textron, Inc. are not protected by the work product privilege. This decision reverses the district court's decision finding the workpapers were privileged because they were prepared in anticipation of litigation. As a result of this decision, “the majority has thrown the law of work product protection into disarray.” This article analyzes the case and concludes that this decision has undermined the financial statement disclosure process, the corporate counsel/client relationship and the policies behind the work product doctrine itself