I previously blogged the eleven amicus briefs filed in January in the U.S. Supreme Court (No. 09-750), supporting Textron's certiorari petition seeking review of the First Circuit's 3-2 en banc decision in United States v. Textron, Inc., No. 07-2631 (1st Cir. Aug. 13, 2009), which reversed the 2-1 panel decision and held that Textron's tax accrual work papers were not protected under the work product doctrine and thus had to be turned over to the IRS in its tax shelter investigation.

The Government yesterday filed its brief in opposition:

The decision of the court of appeals is correct and does not conflict with any decision of this Court or another court of appeals. No court of appeals has held that tax-accrual workpapers are protected as work product. Indeed, every court of appeals that has considered the issue agrees with the decision below that, wherever the outer boundary of work-product protection may be drawn, it does not encompass documents that were, like the documents at issue here, generated in the ordinary course of business. This case therefore does not present a suitable occasion for this Court to address the nearly 30-year-old circuit conflict over how to phrase the generally applicable test for work-product protection. Further review is not warranted.