On June 29, 2010, the U.S. Court of Appeals for the District of Columbia affirmed a lower court opinion upholding Dow Chemical’s assertion of work product protection regarding three documents that were in the files of its outside auditor, Deloitte LLP. The circuit court also remanded for further consideration of one of the documents in light of its decision.

This is an important decision in three respects: (1) it is the first federal circuit decision on the question of work product protection in the context of financial audits after the First Circuit’s decision in Textron,1 (2) it is the first federal circuit decision on the question of waiver of work product in the context of public company financial audits,2 and (3) it affects the rules of evidence for Tax Court cases.3

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