In United States v. Textron Inc., 2009 WL 2476475 (1st Cir. Aug. 13, 2009), the United States Court of Appeal for the First Circuit held that the attorney work product doctrine only protects documents “prepared for use in possible litigation.” This arguably marks a significant modification of the previous rule in that Circuit and elsewhere that documents that were prepared “because of” possible litigation were protected under the work product doctrine. The consequences of this decision may be far-reaching. At the very least, corporate and tax counsel assisting in the preparation of documents that have both a business purpose and a possible litigation purpose should be aware that, unless those documents were “prepared for use” in litigation, they may be subject to discovery.
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