In United States v. Textron, Inc., 577 F.3d 21 (1st Cir. 2009), the First Circuit adopted a third test for the application of work product protection where there are dual purposes for creating the documents. Reversing the district court, three of the five First Circuit judges followed the court’s Maine v. U.S. Dept. of the Interior, 298 F.3d 60 (1st Cir. 2002) precedent, while holding that the Textron lawyers’ work papers could only be work-product protected if they had been specifically prepared for use in litigation. The dissent urged the Supreme Court to resolve the apparent conflict among the First Circuit’s new rule, the Second Circuit’s United States v. Adlman, 134 F.3d 1194 (2nd Cir. 1998) rule and the Fifth Circuit’s “primary purpose” rule announced in U.S. v. El Paso, 682 F.2d 530 (5th Cir. 1982). On May 24, 2010, the Supreme Court denied certiorari. See Textron Inc. and Subsidiaries v. U.S, No. 09-750.