Supreme Court Misses an Opportunity to Clarify Attorney Work Product Doctrine*

*Cross-posted at Forbes’ On the Docket

The Supreme Court declined on Monday to review an important case that many in-house counsel across America had been watching closely.   The Court’s denial of certiorari in Textron v. United States leaves in place a controversial en banc decision by the U.S. Court of Appeals for the First Circuit that drastically undermines the important work-product privilege on which corporate counsel have long relied when representing their clients.  Reversing both an earlier panel opinion and a district court order—both of which ruled that Textron’s tax accrual work papers were protected as attorney work product—the en banc First Circuit effectively eviscerated a venerable staple of American legal culture and practice for over 60 years. 

The case arose in connection with an IRS audit of Textron’s tax returns.  Although Textron produced several thousand pages of documents in response to the IRS’s demands, it withheld as privileged certain tax accrual work papers, which were prepared by its in-house lawyers and accountants.  These papers contained the legal opinions and conclusions of Textron’s counsel and tax advisers as to certain issues where the tax laws were vague and possibly subject to challenge by the IRS, as well as percentage estimates of Textron’s likelihood of prevailing on these issues in litigation, including the dollar amount of tax reserves needed for Textron’s potential tax liabilities if its legal positions were ultimately unsuccessful.  Such opinion work product, which consists of the mental impressions and legal theories of in-house attorneys, lies at the very heart of the work-product privilege first announced in 1947 by the Supreme Court in Hickman v. Taylor. Continue reading

High Court’s Request to Solicitor General Elevates Focus on Generics and Preemption

As discussed  yesterday by Kurt Karst on the FDA Law Blog, the U.S. Supreme Court has sought the views of the Solicitor General on whether federal law preempts state failure to warn lawsuits against generic drug companies.  The U.S. Court of Appeals for the Eighth Circuit had ruled against federal preemption in Mensing v. Wyeth, Inc.  The Solicitor General filed a strongly anti-preemption brief, the Drug and Device Law blog has noted, in a Motor Vehicle Safety Act case to which the Court granted review yesterday, Williams v. Mazda, which is certainly not a good sign for the petitioners in Mensing. 

Mensing  is among the numerous generic drug preemption cases discussed in a recent WLF Legal Backgrounder, Generic Drugs and Preemption in the Wake of Wyeth v. Levine, written by Kelly Day Savage and Michael F. Healy of Sedgwick, Detert, Moran & Arnold LLP.