The Blog of Legal Times, DOJ Continues Fight for Deloitte Records on Appeal in D.C.:

The Justice Department wants to convince a federal appeals court in Washington that the accounting firm Deloitte should be forced to give up tax documents stemming from auditing services provided to Dow Chemical Company.

Judge Richard Leon of the U.S. District Court for the District of Columbia ruled against Justice in June 2009, saying that the requested documents are confidential. The government is seeking the documents amid a civil tax refund case in federal district court in Louisiana that was brought by Dow's majority-owned partnership, the Chemtech Partnership.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit—Chief Judge David Sentelle and Judges Thomas Griffith and Janice Rogers Brown make up the panel—is scheduled to hear oral argument Feb. 26.

Justice attorneys want to review two categories of documents pursuant to a September 2007 subpoena—three documents that Deloitte (formerly Deloitte & Touche) is withholding based on privilege asserted by Dow, and documents maintained by a Deloitte affiliate in Zurich, Switzerland.

The three documents Justice wants include a 2005 tax opinion from McKnee Nelson (the firm later merged with Bingham McCutchen) and a 1998 memo written by a Dow in-house attorney and an in-house accountant.