Wednesday, June 16, 2010
Jacob A. Kling (J.D. 2010, Yale) has published Comment, Tax Cases Make Bad Work Product Law: The Discoverability of Litigation Risk Assessments After United States v. Textron
, 119 Yale L.J. 1715 (2010). Here is the Conclusion:
The decision in Textron denies work product protection to litigation risk analyses prepared for a business purpose rather than for “use in possible litigation.” The court’s holding will likely chill the socially valuable preparation of such analyses in connection with business transactions and may reduce the accuracy of public companies’ financial statements. At the same time, although some of the arguments against an expansive work product doctrine may apply in the narrow context of tax accrual work papers because of their utility to the IRS in combating tax evasion, they are mainly inapplicable to litigation risk assessments outside of the tax context. There is now effectively a three-way circuit split concerning the application of the work product doctrine to documents that quantify a company’s litigation exposure for a business purpose. In light of the negative effect that the discoverability of such litigation risk analyses can be expected to have on the capital markets and on the market for corporate control, it is time for the Supreme Court to step in and affirm their protected status. Until it does, the other circuits should decline to follow Textron’s lead.