Note: Tax Accrual Work Papers & Textron: Is Litigation Strategy No Longer Protected?

36 Pages Posted: 26 Aug 2010 Last revised: 15 Oct 2010

Date Written: August 25, 2010

Abstract

This Note argues that the Textron court allowed policy considerations to affect the outcome without directly analyzing the competing objectives of enforcement and privilege. The work product doctrine, like all privileges, attempts to strike a balance between enforcement and privacy, and the Textron decision was guided by the court’s desire to balance effective tax law enforcement by the IRS against the need for privacy to conduct detailed legal analysis of tax filings by corporate entities. Regardless of which objective one finds more important, the majority properly brought the policy discussion into the opinion. The majority, failed, however, to explicitly balance these two objectives and set out a framework for lower courts to follow.

Part I takes a detailed look at tax accrual work papers and explains the difficulty in applying the work product doctrine to these documents. Part II discusses the history, background, and theoretical underpinning of the work product doctrine, highlighting the circuit split related to the phrase “in anticipation of litigation.” Part III discusses the Textron holding in depth and, using the language and theories from the preceding sections, explains the Textron court’s error. Finally, Part IV argues that, while the doctrine was applied incorrectly, the eventual outcome in Textron may have been correct in light of the policy considerations and practical concerns underlying the doctrine.

The Note concludes by arguing that, despite the alarm it has raised, Textron did not drastically change the work product doctrine. Courts and litigants will be able to limit Textron’s impact by recognizing that the work product doctrine requires an explicit balancing between enforcement and privacy.

Keywords: Textron, work product doctrine, tax accrual work papers

Suggested Citation

Sullivan, Lindsey L., Note: Tax Accrual Work Papers & Textron: Is Litigation Strategy No Longer Protected? (August 25, 2010). Northwestern University Law Review, Vol. 105, 2011, Available at SSRN: https://ssrn.com/abstract=1665983 or http://dx.doi.org/10.2139/ssrn.1665983

Lindsey L. Sullivan (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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