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U.S. Supreme Court

Supreme Court Won’t Hear Case on Work-Product Protections; ABA Had Urged Cert

Posted May 24, 2010 9:30 AM CDT
By Debra Cassens Weiss

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The U.S. Supreme Court has left intact a federal appeals court decision narrowing work product protections for lawyer materials.

The American Bar Association had urged the court to hear the case, Textron v. United States. The court denied cert today, SCOTUSblog reports.

The refusal lets stand a ruling that allows the Internal Revenue Service to access documents that considered how much money the defense contractor Textron Inc. should set aside for possible tax liabilities.

The ruling by the en banc 1st U.S. Circuit Court of Appeals based in Boston had said the documents weren’t protected by the work-product doctrine because they weren’t prepared specifically for use in litigation. The court also found the documents had lost their attorney-client privilege because they were shown to outside accountants.

Frederick Krebs, president of the Association of Corporate Counsel, had said at the time of the 1st Circuit ruling that it "eviscerates the work-product doctrine.” After the Supreme Court cert denial, he issued this statement: “This is an egregious blow to the well-established precedent on application of work product doctrine. The 1st Circuit’s 2009 ruling is not one that should stand as it dismisses the significance of the work-product doctrine. We are displeased by today’s U.S. Supreme Court decision."

The ABA brief (PDF) had noted 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.

Updated on May 25 to include new statement from Krebs.

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