Textron Loses Work Product Case In 3-2 En Banc Decision

In a 3-2 en banc decision issued August 13, the First Circuit rejected Textron Inc.'s argument that its internal tax accrual workpapers were protected by the work product doctrine. The decision is unremarkable on one level, given the relative simplicity of the majority analysis, and quite remarkable in other ways, given (i) the majority's avoidance of any discussion of leading circuit court opinions and its embrace of what is known as the dual purpose doctrine and (ii) the extensive 26-page dissent which describes the majority decision as misleading and corruptive of proper appellate jurisprudence. The dissent's forceful critique considered together with a continuing circuit split on the correct interpretation of the work product rule could provide a sufficient basis for review by the Supreme Court.