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Respondent argues that the documents are not protected by
the work product doctrine because petitioner and the L.L.C. have
failed to show that litigation was anticipated by Mr. Franco or
Mr. Missry at the time they wrote the documents. Respondent also
argues that, assuming that the documents were written in
anticipation of litigation, he has substantial need for the
documents and is unable to obtain the substantial equivalent by
other means. Respondent claims his substantial need is to show
the purpose, structure, parties, and fees for the
transaction, all of which relate to respondent’s
position that the transaction was entered into for
purely tax avoidance purposes. Contrary to
respondent’s position, petitioner and the participating
partner have alleged that Sterling Trading
Opportunities and Topaz Trading were formed for an
investment purpose.
Respondent bases his claim that there is no substantial
equivalent for the documents on the following. He has deposed
Mr. Hananel, who does not recall details about the information
that was provided to Mr. Franco and Mr. Missry in September and
October of 1999. Mr. Hananel did not recall attending meetings
with Sentinel Advisors with respect to Mr. Franco. Respondent
has spoken informally to Mr. Robinson, who could not provide
details about the meetings. Respondent summarizes: “The lapse
in time has caused memories to fade about the details discussed
at these two meetings. There simply is no other way for the
respondent to obtain the critical information contained in the
contemporaneous notes of the meetings sought in the motion to
compel.”
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Last modified: March 27, 2008