NACDL

Textron and Work Product Immunity: The First Circuit Makes Bad Law

The best cases are often those in which the client engages counsel to remedy past business practices before the government has begun an investigation. The client’s issues might call for an internal investigation or a review of financial records by a forensic expert. The client might even be a potential whistleblower. There will, in many of these instances, be no hint of litigation on the horizon. And there may never be litigation — resolving the client’s challenges quietly may be the goal. Most criminal defense lawyers would go about handling these matters without even a second thought as to whether the notes and other documents created by counsel fall within the protection of work product immunity.

In its recent en banc decision in United States v. Textron,¹ the U.S. Court of Appeals for the First Circuit stated: “Every lawyer who tries cases knows the touch and feel of materials prepared for a current or possible (i.e.,