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, as well as the Government's brief opposing certiorari.  Textron has filed its reply brief:

In its brief in opposition, the government concedes that there is a longstanding circuit conflict concerning the scope of the work product privilege. And the government does not dispute that the scope of the privilege is an exceptionally important issue for civil litigants—nor could it, In light of the almost unprecedented number and diversity of amici who have urged this Court to resolve that issue. Instead, the government contends only that the Court should deny review because there is no circuit conflict concerning the applicability of the privilege to the specific type of documents at issue in this case. That is true, but irrelevant under the Court's familiar standards for certiorari. Instead, the salient questions are whether there is a circuit conflict concerning the legal standard for work-product protection and whether resolution of that conflict would be outcome-dispositive here. Because the answer to each question is plainly yes, this case is an ideal vehicle for resolution of the conflict.

The government devotes the remainder of its brief to a discursive analysis on the merits. Notably, however, the government does not explicitly defend the First Circuit's novel "for use" standard. Nor does the government explain how requiring disclosure of the documents at issue here would be consistent with the policies animating the work-product privilege—and, in particular, with the need to protect an attorney's opinions and thought processes, which lie at the core of work-product protection.

If left undisturbed, the decision below will enable the IRS more aggressively to seek workpapers embodying counsel's opinions from taxpayers, As it has already declared it intends to do. The decision below will also framatically curtail the availability of the work-product privilege in other contexts. And if the Court does not grant review here, it is far from clear when it will have the opportunity to consider the scope of the privilege in the future. Notwithstanding the government's all-out efforts to defend the outcome below, this case is an obvious candidate for further review. The petition for certiorari should therefore be granted.