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U.S. Supreme Court

ABA and Reed Smith File Briefs Urging Supreme Court to Hear Privilege Case

Posted Jan 28, 2010 11:13 AM CDT
By Debra Cassens Weiss

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The American Bar Association and the law firm Reed Smith are urging the U.S. Supreme Court to grant cert in a case involving the scope of work product protections for lawyer materials.

Reed Smith wrote a brief on its own behalf and for two of its clients—a sign of the importance of the dispute in Textron v. United States, the National Law Journal reports. It is rare for a law firm to submit a brief on its own behalf before the Supreme Court.

In Textron, the en banc 1st U.S. Circuit Court of Appeals based in Boston allowed the Internal Revenue Service to access documents analyzing possible tax liabilities. Lawyers had prepared the documents for auditors and others. Often such documents include a lawyer’s calculation of how likely a company is to win or lose a future tax dispute with the IRS.

The ABA filed its brief (PDF) yesterday, according to a press release. The document notes a split in the circuits on whether the work-product privilege applies to documents that are prepared both in the ordinary course of business and in anticipation of litigation. The ABA supports protection for such dual-purpose documents, even if a claim is never filed or threatened.

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