Work Product Doctrine Vindicated In "Textron"

On January 21, the Court of Appeals for the First Circuit, in a 2-1 decision, affirmed in part and remanded in part the decision of the trial court in United States v. Textron, 507 F. Supp. 2d 138 (D.R.I. 2007).  In a vigorous and thorough decision, the First Circuit resoundingly decided in favor of the taxpayer on the critical issue of whether tax accrual workpapers can constitute protected work product.¹  The court remanded the case for further consideration of the issue of waiver.  The key to the court's decision was its holding that documents that serve both a litigation purpose and business purpose, commonly referred to as dual purpose documents, can constitute work product.