U.S. Court of Appeals for the Second Circuit

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Second Circuit preserves work-product protection in tax case

November 10, 2015

The Second Circuit rejected the holding of a district court that tax advice regarding a corporate restructuring was not subject to work product protection.

The lower court had refused the protection by reasoning that, although the advice was prepared in anticipation of specific litigation with the IRS, it would have been prepared “in the ordinary course of business” given the complexity of tax compliance associated with the transaction. The Second Circuit rejected the district court’s approach noting that it “appears to . . . virtually swallow the work-product protection.”

U.S. Chamber files amicus brief

September 12, 2014

In its brief, the U.S. Chamber of Comerce argued that the Second Circuit should overturn the holding of the district court below and affirm it’s precedent of Work Product Protection. The decision of the district court is contrary to the goals of work product doctrine and runs afoul of prior decisions of the Second Circuit. Furthermore, if allowed to stand, the decision of the lower court would have an adverse effect on the quality of legal advice.

Robert A. Long, Reeves C. Westbrook, Marianna Jackson and Jason Yen of Covington & Burling LLP served as co-counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.

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