Amicus Curiae Brief — Textron Inc. v. United States

Suprame Court, U.S.

FILEO

JAN 27 2310

OFFICE OF THE CLERK

Docket No, 09-750

Jn the Supreme Court of the United States

TEXTRON INC. AND SUBSIDIARIES, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF OF AMICUS CURIAE

THE AMERICAN BAR ASSOCIATION

SUPPORTING PETITIONERS

Of Counsel CAROLYN B. LAMM

R. WILLIAM IDE Counsel of Record

STANLEY KELLER PRESIDENT

JAMES A. WASHBURN AMERICAN BAR ASSOCIATION

MICHELLE F.SWIREN 312 NORTH CLARK STREET

CHICAGO, IL 60654-7598

(312) 988-5000

A LL ATR A AA SA LE EET RS

WILSON-EPES PRINTING CO , INC. = (202) 789-0096 — WASHINGTON, D.C 20002

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TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE...................00006 1

SUMMARY OF ARGUMENT ..............cccccccssssssceeees 4

REASON FOR GRANTING THE WRIT ................ 6

A. THE CIRCUIT CONFLICT HAS

CREATED UNCERTAINTY

OVER THE APPLICABILITY OF

THE ATTORNEY WORK

PRODUCT PRIVILEGE TO

DUAL PURPOSE

TINE ciidsenescisescosssetenssescessende 7

1. Often there is no clear

distinction between

documents prepared in

anticipation of litigation

and in the ordinary course

ag e L 7

2. There is a circuit split on how

Rule 26(b)(3) should be

applied to dual purpose

I caiesssniaciintesracstedsecsess 9

B. THE UNCERTAINTY REGARDING

THE SCOPE OF THE

ATTORNEY WORK PRODUCT

PRIVILEGE UNDERMINES

THE ABILITY OF ATTORNEYS

TO COUNSEL THEIR CLIENTS

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TABLE OF CONTENTS

(continued)

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TABLE OF AUTHORITIES

Page(s)

CASES

Delaney, Migdail & Young, Chartered v. LRS,

ee eee BO CLIC. Cit, 1967) voccccscccesscversccvcseees LO

Hickman v. Taylor,

EEE UET ) csccccssscvscccssoesecvecevsseocese passim

Swidler & Berlin v. United States,

524 U.S. 399 (1998)............... Te sdehsieeebersseeeveses 2,3

U.S. v. Adlman,

134 F.3d 1194 (2d Cir. 1998).......... ioduyesuresversoeseos 9g

United States v. Chen,

99 F.3d 1495 (9th Cir. 1996)............000000.... 12

United States v._Textron,

Petition for Writ of Certiorari at Appendix

A, United States v. Textron, No. 09-750

| 5,6,9, 10,11, 13

Upjohn v. United States,

EE 6,12

RULES

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Supreme Court Rule 37.3..............0.. secseenecsasene dl

STATUTES

EE) re

Sarbanes-Oxley Act of 2002 ..............::c00000005, 7, 11

-iv-

TABLE OF AUTHORITIES

(continued)

Page

OTHER AUTHORITIES

ABA 2005 Report with Recommendation #111

(Policy adopted Aug. 2005) available at

www.abanet.org/leadership/2005/annual/d

Ser IIE bavenscecsientincdustetinentimnsisannss 3

ABA Amicus Curiae Brief in Hickman, 1946

Weis icdecssecsidtakessaiveninchiasusenedanmeed 2

ABA Amicus Curiae Brief in Swidler & Berlin,

BOE WU ths MID osc vcesccsececcnicncbatesccaceosdesoassecenes 2.3

ABA General Information, available at

http://www.abanet.org/leadership/delegates

Mea sssvisssneinvvnsosebucbsapimeuinmnanianadaeaaaeesamans 4

ABA SECTION ON ANTITRUST LAW, COMMENTS

OF THE ABA’S SECTION OF ANTITRUST LAW

ON THE PROPOSED AMENDMENTS TO THE

SENTENCING GUIDELINES FOR

ORGANIZATIONS 5-7 (2005), available at

http://www.abanet.org/antitrust/at-

comments/2005/03-05/ussg-com-05. pdf ............ 12

Amir Efrati, Rule in Tax-Auditing Case Puts

Corporations on Edge, WALL ST. J., Aug.

ey Pe iicvscansuasachatinsmveietclinetisnitniaseiamamieniandes 11

Andrew Golodny, Lawyers Versus Auditors:

Disclosure to Auditors and Potential

Waiver of Work-Product Privilege in United

States v. Textron, 61 TAX LAW. 621, 631

GID vscecescacccuzoanebedtonsvabaacsenskanhaaaneiaieaiandedai Y

-V-

TABLE OF AUTHORITIES

(continued)

Page

FASB, FASB Interpretation No. 48,

Accounting for Uncertainty in Income

Taxes (June 2006) available at

http://www .fasb.org/cs/BlobServer?blobcol=

urldata&blobtable=MungoBlobs&blobkey=

id&blobwhere=1175818746949&blobheade

Feapplication WZF Pal............cccccocccssseesssesseveceseeees 8

Fred Lane, LANE GOLDSTEIN TRIAL TECHNIQUE

pe F Pit fe) ere.

Memorandum from Corporate Counsel

Consortium, The Auditor’s Need For Its

Client’s Detailed Information vs. The

Clients’ Need to Preserve the Attorney-

Client Privilege and Work Product

Protection: The Debate, The Problems, and

Proposed Solutions 5 (2004), available at

http://www.acc.com/vl/public/PolicyStateme

nt/loader.cfm?csModule=security/getfile&a

MP; PAMSIGTIGZZ ......ccsccossecvevevecees i hasthvereassscaess 8

Michelle M. Henkel, Textron: /ts Impact on

the Viability of the Work Product Privilege,

2009 TAX MGMT. MEMORANDUM 515, 516

n.18

Nancy T. Bowen, William S. Lee & Robert C.

Morris, Newly Minted ‘For Use In Possible

Litigation’ Test of ‘Textron’ May Have Far

Reaching Implications for Companies, 78

U.S. L. Wk. 2199 (Oct. 13, 2009)............0.0000...11

Vi

TABLE OF AUTHORITIES

(continued)

Thomas Wilson, The Work Product Doctrine

Why Have an Ordinary Course of Business

Exception’ COLUM. BUS. REV. 587, 587.

Page

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.3, the

American Bar Association (“ABA”), as amicus curiae,

respectfully submits this brief in support of

Petitioners.! The ABA requests that the petition be

granted so that attorneys can have the guidance of

the Court on the scope of the work product privilege

in light of legal and practical issues that have arisen

since the Court last delineated this doctrine.

The ABA is the largest voluntary professional

membership organization and _ the leading

organization of legal professionals in the United

States. The ABA’s membership of nearly 400,000

spans all 50 states and other jurisdictions and

includes attorneys in private law firms, corporations,

non-profit organizations, government agencies, and

prosecutorial and public defender offices, as well as

judges, legislators, law professors, and law

students.?

1 Pursuant to Rule 37.6, amicus curiue certifies that this brief

was not written in whole or in part by counsel for any party,

and that no person or entity other than amicus, its members,

and its counsel has made a monetary contribution to the

preparation and submission of this brief. Letters from the

parties consenting to the filing of this brief are on file with the

Clerk pursuant to Rule 37.3.

2 Neither this brief nor the decision to file it should be

interpreted to reflect the view of any judicial member of the

ABA. No member of the Judicial Division Council participated

in the adoption or endorsement of the positions in this brief,

nor was it circulated to any member of the Judicial Division

Council before filing.

Throughout its history, the ABA has taken a

leading role in developing standards governing the

preservation of client confidences. In 1908, the ABA

adopted its CANONS OF PROFESSIONAL ETHICS,

providing in Canon 37 that “[ijt is the duty of a

lawyer to preserve his client’s confidences,” which

duty “outlasts the lawyer’s employment.” CANONS OF

PROF’L ETHICS Canon 37 (1908, last am. 1963). The

ABA further encouraged recognition of the attorney

work product privilege in its amicus brief filed in

Hickman v. Taylor, 329 U.S. 495 (1947).3 In

Hickman, the Court recognized the privilege,

concluding that “it is essential that a lawyer work

with a certain degree of privacy, free from

unnecessary intrusion by opposing parties and their

counsel.” Jd. at 510.

The ABA also advocated in favor of the work

product privilege in its amicus brief in Swidler &

Berlin v. United States, 524 U.S. 399 (1998).4 In

Swidler, one of the questions presented was

whether, even after a client’s death, an attorney’s

notes of an initial client consultation were work

product protected as the attorneys “mental

impressions.” Jd. at 403. In its brief, the ABA

submitted that the privilege should apply even at

this early stage, to enable counsel to elicit and

protect pertinent client information that would

shape the goals and strategies to be pursued in the

3 The Brief of the American Bar Association as Amicus Curiae

in Hickman may be found at 1946 WL 62839.

4 Brief of the American Bar Association as Amicus Curiae in

Swidler & Berlin may be found at 1998 WL 208818.

3

matter. ABA Amicus Curiae Brief in Swidler &

Berlin, 1998 WL 208818 at *27 (citing Fred Lane,

LANE GOLDSTEIN TRIAL TECHNIQUE § 1.03 at 3 (3d ed.

1997)). The Court, however, held that the

documents were protected by the attorney-client

privilege and did not reach the work product issue.

Swidler, 524 U.S. at 403 n.1.

More recently, to further the common goals of

the attorney-client and work product privileges, the

ABA established a task force to study and educate

others on the role of both the attorney-client and the

work product privileges. In 2005, after consideration

of a report from this task force, the ABA House of

Delegates adopted as ABA policy the task force’s

findings that, inter alia, the preservation of the

attorney-client and work product doctrines are

essential to maintaining the confidential

relationship between client and attorney that is

required to encourage clients “to discuss their legal

matters fully and candidly with their counsel so as to

(1) promote compliance with the law through

effective counseling, (2) ensure effective advocacy for

the client, (3) ensure access to justice, and (4)

promote the proper and efficient functioning of the

American adversary system of justice.” ABA 2005

Report with Recommendation #111 (Policy adopted

Aug. 2005) available at

www.abanet.org/leadership/2005/annual/dailyjourna

1/111.doc.5

5 The ABA’s House of Delegates (“HOD”), with more than 500

delegates, is the ABA’s policymaking body. Recommendations

may be submitted to the HOD by ABA delegates representing

states and territories, state and local bar associations, affiliated

(footnote continued on next page)

4

The ABA recognizes that the distinction between

attorney work product and discoverable materials

generated in the ordinary course of business remains

— to use the words of the Hickman Court — “one of

the most hazy frontiers of the discovery process.”

Hickman, 329 U.S. at 513-14. The legal and

practical issues that have arisen since Hickman was

decided have rendered this distinction even more

hazy, particularly with respect to dual purpose

documents prepared by attorneys in connection with

regulatory requirements and evolving business

practices. Adding to this uncertainty is the

emergence of the split among the circuits on the

standards for applying the work product privilege.

This uncertain environment adversely affects the

ability of attorneys to provide their clients with

responsible legal counsel. The ABA, therefore,

supports the present petition for writ of certiorari

because of the interest of its members in having a

uniform and effective rule for determining the work

product privilege.

SUMMARY OF ARGUMENT

The petition for writ of certiorari should be

granted to resolve the conflict in the lower courts on

the scope of the attorney work product privilege to

documents that are prepared both in the ordinary

course of business and in anticipation of litigation.

organizations, sections and divisions, ABA members, and the

Attorney General of the United States, among others.

Recommendations that are adopted by the HOD become ABA

policy. See ABA General Information, available at

http://www.abanet.org/leadership/delegates.html.

5

The ABA asserts that the privilege should not be

limited to materials prepared solely “for use in

litigation,” Petition for Writ of Certiorari at 21a,

United States v. Textron, No. 09-750 (Dec. 24, 2009),

but should also encompass those that are prepared

to serve both a business and a litigation purpose,

whether or not a claim is ever threatened or filed.

Dual purpose work product documents have

resulted from a number of legal and practical

considerations that have not been considered by the

Court in its previous work product rulings. These

include the investigations and assessments required

by the Sarbanes-Oxley Act of 2002 and “FIN 48,” a

financial accounting standard adopted in 2006.

Further, today’s businesses, and even the IRS, rely

increasingly on counsel to evaluate proposed

activities or practices and assess legal ramifications,

including litigation risks, before making business

decisions. Clients also rely on their counsel to

conduct investigations of occurrences, recognizing

that litigation may arise but often having the goal of

avoiding litigation while ensuring compliance with

laws and corporate policies. Although clients’ needs

for attorney investigation and counsel is greater

than ever, the current circuit split has created an

uncertain environment for attorneys practicing in a

variety of contexts.

The scope of the attorney work product privilege

now depends on the jurisdiction in which a dispute

arises or discovery is sought. To protect confidential

information, clients who conduct multi-jurisdictional

activities are motivated to adopt procedures

consistent with the narrowest interpretation of the

privilege, with the result that an overly restrictive

6

approach to dual purpose documents may threaten

the free flow of confidentia] information from client

to attorney necessary for the attorney to provide

effective counseling and advocacy. Moreover, the

circuit split has placed attorneys in the untenable

position of deciding whether to create work product

when it may be privileged in one jurisdiction but not

in another.

Accordingly, the ABA supports the present

petition for a writ of certiorari because the

uncertainties resulting from the circuit split are

undermining the goals of the work product privilege

and, indeed, the ability of many attorneys to do their

jobs effectively.

REASON FOR GRANTING THE WRIT

The different standards adopted by the circuit

courts for determining whether materials are

protected leave attorneys and their clients uncertain

as to the scope of the work product privilege. As this

Court has observed, however, “[a]n uncertain

privilege, or one which purports to be certain but

results in widely varying applications by the courts,

is little better than no privilege at all.” Upjohn v.

United States, 449 U.S. 383, 393 (1981).

The ABA submits, therefore, that the Court

should grant the petition to clarify that the scope of

the attorney work p-zoduct privilege is not limited to

materials prepared solely “for use in litigation,” Pet.

App. at 21a, but also encompasses materials that are

prepared to serve both a litigation and a business

purpose, whether or not a claim is ever threatened or

filed.

7

A. THE CIRCUIT CONFLICT HAS CREATED

UNCERTAINTY OVER THE

APPLICABILITY OF THE ATTORNEY

WORK PRODUCT PRIVILEGE TO DUAL

PURPOSE DOCUMENTS.

1. Often there is no clear distinction

between documents’ prepared in

anticipation of litigation and in the

ordinary course of business.

Fed. R. Civ. P. 26(b)(3) protects from discovery

materials prepared “in anticipation of litigation.” As

the Hickman Court’ observed, however, the

distinction between discoverable business documents

and privileged attorney work product can be hazy.

329 U.S. at 513-14. Today, there is more uncertainty

than ever due to the increasing number of dual

purpose documents that are created both in

anticipation of litigation and in the ordinary course

of business.

For example, in today’s business climate, clients

often rely on their attorneys to evaluate proposed

activities and assess litigation risks before they

make business decisions. Clients also rely on their

counsel to conduct confidential investigations of

occurrences and incidents, including employee

allegations of discrimination or harassment,

recognizing that litigation may arise but often with

the aim of avoiding litigation while ensuring

compliance with employment and other laws and

corporation policies.

Today's business environment also includes the

requirements of the Sarbanes-Oxley Act of 2002,

under which audit committees of public companies

8

must establish procedures for receiving and handling

complaints “regarding accounting, internal controls

or auditing matters” and confidential submissions by

employees. 15 U.S.C. § 78j-1 (2009). These audit

committees are frequently also charged with

investigating whistleblower complaints. In

performing these responsibilities, they typically rely

on their attorneys to conduct internal investigations,

and their attorneys create work product outlining

the scope of potential claims and possible legal

strategies before litigation is threatened or filed. See

Memorandum from Corporate Counsel Consortium,

The Auditor’s Need For Its Client’s Detailed

Information vs. The Clients’ Need to Preserve the

Attorney-Client Privilege and Work Product

Protection: The Debate, The Problems, and Proposed

Solutions 5 (2004), available at

http://www.acc.com/vl/public/PolicyStatement/loader.

cfm?csModule=security/getfile&pageid=16222.

In addition, the assessment of litigation

prospects has become commonplace in the context of

audits and. in particular, possible tax liability, as the

present case has shown. Under FASB Interpretation

No. 48 (“FIN 48”), as adopted by the Financial

Accounting Standards Board in 2006, public

companies must determine whether it is more likely

than not that a tax position will be sustained upon

examination by or litigation with the IRS. FASB,

FASB Interpretation No. 48, Accounting for

Uncertainty in Income Taxes (June 2006) available

at

http://www.fasb.org/cs/BlobServer?blobcol=urldata&

blobtable=MungoBlobs&blobkey=id&blobwhere=117

5818746949&blobheader=application%2Fpdf. This

determination entails an assessment of the strength

9

of the company’s position in possible litigation. See

Andrew Golodny, Lawyers Versus Auditors:

Disclosure to Auditors and Potential Waiver of Work-

Product Privilege in United States v. Textron, 61

TAx LAW. 621, 631 (2008); Michelle M. Henkel,

Textron: Jts Impact on the Viability of the Work

Product Privilege, 2009 Tax MGMT. MEMORANDUM

515, 516 n.18.

The overlapping functions of these documents

has created uncertainty as to whether they fall

outside the scope of the plain language of Rule

23(b\(3) simply because they were prepared not only

in anticipation of litigation but also to serve a

business purpose.

2. There is a circuit split on how Rule

26(b)(3) should be applied to dual

purpose documents.

In contrast to the outcome in the First Circuit’s

Textron decision, a study created by an attorney that

assesses the likely results of an expected litigation is

eligible for work product protection in the Second

Circuit, even where the primary or ultimate purpose

for making the study is to assess the desirability of a

business transaction. U.S. v. Adlman, 134 F.3d

1194, 1195 (2d Cir. 1998). As noted by the Second

Circuit, id. at 1200:

If the company declines to make such

analysis or scrimps on candor and completeness

to avoid prejudicing its litigation prospects, it

subjects itself and its co-venturers to ill-informed

decisionmaking. On the other hand, a study

reflecting the company’s litigation strategy and

its assessment of its strengths and weaknesses

10

cannot be turned over to litigation adversaries

without serious prejudice to the company’s

prospects in the litigation.

Moreover, in Delaney, Migdail & Young,

Chartered v. IRS, 826 F.2d 124, 126 (D.C. Cir. 1987),

the IRS relied on its counsel to analyze the litigation

potential of a proposed system of statistical sampling

for its corporate audit program for lerge accounts.

After the IRS attorneys analyzed possible legal

challenges, defenses and likely outcomes, the IRS

concluded that the legal risks were reasonable and

instituted the program. When litigation ensued, the

D.C. Circuit concluded, “[Plaintiff] is seeking the

agency’s attorneys’ assessment of the program’s legal

vulnerabilities in order to make sure it does not miss

anything in crafting its legal case against the

program. This is exactly the type of discovery the

Court refused to permit in Hickman([].” Id. at 127.

In a footnote, the D.C. Circuit noted, “The hardship

the Court was concerned about in Hickman was an

attorney’s inability to obtain otherwise unavailable

factual information, and not the inability to obtain

an adversary’s legal assessment of what the case

might turn on.” Jd. at 128 n.4.

In the First Circuit, however, a lawyer’s

assessment of litigation is not protected by the work

product privilege if it also satisfies a business

objective. As a result, in the First Circuit and in

other courts that follow its rule, a client that

prudently relies upon counsel before making a

business decision may be penalized by being forced

to give its adversaries a roadmap of the strengths

and weaknesses of its case if litigation does in fact

occur. See Pet. App. at 2la. This circuit split has

11

exacerbated the uncertainty surrounding’ the

application of the work product privilege to dual

purpose documents. And, as shown below, this

uncertainty also undermines the ability of lawyers to

do their jobs effectively.

B. THE UNCERTAINTY REGARDING THE

SCOPE OF THE ATTORNEY WORK

PRODUCT PRIVILEGE UNDERMINES

THE ABILITY OF ATTORNEYS TO

COUNSEL THEIR CLIENTS

EFFECTIVELY.

With the advent of Sarbanes-Oxley and

enhanced auditing standards, clients’ needs for

attorney counsel, investigation, and analysis is

greater than ever before. Yet both in-house counsel

and attorneys in private practice have expressed

wariness “of providing complete assessments of

future legal trouble in a variety of areas, from

product-liability litigation to patent disputes.” Amir

Efrati, Rule in Tax-Auditing Case Puts Corporations

on Edge, WALL ST. J., Aug. 20, 2009. Other

commentators have noted concern that adversaries

“in any sort of litigation may seek to discover the

opposing party’s analysis of the business risks of the

litigation, including the amount set aside in a

litigation reserve fund.” Nancy T. Bowen, William S.

Lee & Robert C. Morris, Newly Minted ‘For Use In

Possible Litigation’ Test of ‘Textron’ May Have Far-

Reaching Implications for Companies, 78 U.S. L. Wk.

2199 (Oct. 13, 2009).

If clients are penalized by having to disclose

their attorneys’ assessments of litigation risks on the

ground that this work product was created for a

business purpose as well as “in anticipation of

12

litigation,” they will become guarded in deciding how

they will rely upon their lawyers. This result

inevitably would “threaten to limit the valuable

efforts of corporate counsel to ensure their client’s

compliance with the law.” Upjohn, 449 U.S. at 392

(concerning the attorney-client privilege). See also

United States v. Chen, 99 F.3d 1495, 1500 (9th Cir.

1996) (the “valuable service of counseling clients and

bringing them into compliance with the law cannot

be performed effectively if clients are scared to tell

their lawyers what they are doing, for fear that their

lawyers will be turned into ... informants”).®

Clearly, the current circuit conflict has created

an uncertain environment for attorneys practicing in

a variety of business contexts. Further, because the

scope of the attorney work product privilege depends

on the jurisdiction in which a dispute arises or

discovery is sought, attorneys with clients who

conduct multi-jurisdictional activities may need to

advise those clients to adopt the narrowest

interpretation of the privilege that has been

established in any jurisdiction in which they may be

6 See also ABA SECTION ON ANTITRUST LAW, COMMENTS OF THE

ABA’s SECTION OF ANTITRUST LAW ON THE PROPOSED

AMENDMENTS TO THE SENTENCING GUIDELINES FOR

ORGANIZATIONS 5-7 (2005), available at

http://www. abanet.org/antitrust/at-comments/2005/03-05/ussg-

com-05.pdf (need to preserve work product privilege to allow

lawyers to assist clients in complying with the law); Thomas

Wilson, The Work Product Doctrine: Why Have an Ordinary

Course of Business Exception?, 1988 COLUM. BUS. REV. 587, 587

(narrow construction of work product privilege “penalizes

businesses that prudently investigate after incidents which

may cause future Liability”).

13

subject to discovery or haled into court. Meanwhile,

the attorneys themselves may be in the untenable

position of deciding whether to create work product

when it may be privileged in one jurisdiction but not

in another.

This and other consequences of the circuit split

significantly affect the ability of attorneys to provide

their clients with full, effective legal counsel and the

informed guidance that may be necessary to enable

them to comply with their legal responsibilities in

today’s business environment. As Justice Jackson

stated in his concurrence in Hickman:

The primary effect of the practice advocated

here {of permitting discovery of attorney work

product] would be on the legal profession itself.

But it too often is overlooked that the lawyer and

the law office are indispensible parts of our

administration of justice. Law-abiding people

can go nowhere else to learn the ever changing

and constantly multiplying rules by which they

must behave and to obtain redress for their

wrongs. The welfare and tone of the legal

profession is therefore of prime consequence to

society, which would feel the consequences of

such a practice ... secondarily but certainly.

329 U.S. at 514-15 (Jackson, J., concurring).

CONCLUSION

For the foregoing reasons, amicus curiae

American Bar Association requests that the petition

for writ of certiorari to the Court of Appeals for the

First Circuit in Textron v. United States be granted.

14

Respectfully submitted,

Of Counsel

R. WILLIAM IDE CAROLYN B. LAMM

STANLEY KELLER Counsel of Record

JAMES A. WASHBURN PRESIDENT

MICHELLE F.SWIREN AMERICAN BAR ASSOCIATION

312 NORTH CLARK STREET

CHICAGO, IL 60654-7598

(312) 988-5000