N.D. Ala. Notes Split Re Test For Determining Whether Matter was Prepared in Anticipation of Litigaiton

Per Regions Financial Corp. v. U.S., Slip Copy, 2008 WL 2139008 (N.D. Ala. May 08, 2008):

Courts have wrestled with the articulation of a clear test for interpreting what constitutes “prepared in anticipation of litigation” in the context of an IRS summons. The Supreme Court has not provided a controlling standard, and a split has developed between the various courts of appeal. The Fifth Circuit has articulated the “primary motivating purpose” test. United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982) (“ ‘Litigation need not be imminent ... as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation’ ”) (quoting United States v. Davis, 636 F.2d 1028, 1040 (5th Cir.1981)). This test contrasts with the “because of litigation” test articulated by the Second Circuit in U.S. v. Aldman, 134 F.3d 1194 (2nd Cir.1998). The Second Circuit test affords broader protection than the “primary motivating purpose” test. Quoting from Wright & Miller, the Aldman opinion stated the test this way: “ ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” Aldman, 134 F.3d at 1202 (quoting Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, 8 Federal Practice & Procedure § 2024 (1994)).