By Catherine Snowdon
|
The Supreme Court could release decision before October |
Textron, an aerospace and defence company, has filed a petition with the US Supreme Court for a writ of certiorari to review a decision on work product privilege.
The petition is against the majority decision of the Court of Appeals for the First Circuit against the company concerning whether the Internal Revenue Service (IRS) should be allowed to see tax accrual work papers prepared by Textron to back up calculations made for its audited financial statements.
Dissenting judge Juan Torruella said that the decision by the en banc (whole) court "has thrown the law of work product protection into disarray".
One senior tax adviser expects the court will hear the case.
"I feel confident that the supreme court will take the case," said Douglas Stransky of Sullivan & Worcester in Boston. "This is an important issue that has a lot of people up in arms."
In the petition the company's counsel, John Tarantino, Patricia Rocha and Nicole Dulude of Adler Pollock & Sheehan, attacked the decision, noting that the "first circuit adopted an unprecedentedly narrow interpretation of the work-product privilege... holding that the privilege is limited to documents that are prepared for use in litigation".
The decision deepens a pre-existing and longstanding conflict on this issue within the first circuit; nine other courts of appeals have adopted inconsistent, though broader, views of the privilege's scope.
This difference in opinion is the first reason that Textron gives for requesting a review of the decision. The petition goes on to suggest that this case would be a good arena in which to settle once and for all how the privilege should be applied.
The filing also makes the serious accusation that the decision is flawed. The document states that the "first circuit erred in holding that the work-product privilege in federal rule of civil procedure 26(b)(3) is limited to documents that are prepared for use in litigation".
Citing that "the first circuit's novel "for use" standard cannot be reconciled with the plain language of rule 26(b)(3). By its terms, that provision reaches not only documents prepared "for trial," but also documents prepared "in anticipation of litigation."
The final angle of attack in the petition highlights the importance of the case.
The company suggests that the question presented in this case is an exceptionally important one because it concerns the scope of the work-product privilege, an issue which Torruella said is "essential to the daily practice of litigators across the country".
"If the first circuit's unprecedented interpretation of the work product privilege is allowed to stand, it will have profound consequences for civil litigants in a variety of different contexts," states the company in its petition.
As the Supreme Court has not ruled directly on the issue of work product privilege since the Hickman v Taylor case, Stransky believes now is the time for the court to reassess the topic.
"The world has changed and this issue is ripe for review," said Stransky.
The Supreme Court is in session now and may make a decision on whether to hear the case before the session ends. The court may also decide to take a bit longer to reach a conclusion; either way, a decision is expected before the court's next session in October.
