The Blog of Legal Times reports that the U.S. Department of Justice has asked a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit to overrule a ruling denying the DOJ access to certain tax-related documents from Dow Chemical to Deloitte Touche over which Dow has asserted privilege in a civil tax suit in federal district court in Louisiana. The DOJ maintains that the work product privilege doesn't apply because the documents in question were prepared during the ordinary course of business, not for litigation. Chief Judge David Sentelle, a member of the panel, asked "What you want here is the attorney's opinion. Isn't that precisely what the attorney work product privilege is designed to protect -- the attorney's opinion?" Both the DOJ and Dow stated that they were not opposed to having the case returned to the trial court to allow the trial judge to inspect the disputed records in camera.
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