Richard L. Bennett - Page 18

                                                - 18 -                                                  

            formulating trial strategy, then it is possible that some part of                           
            the audit or examination process may be in anticipation of                                  
            litigation, and documents prepared may also be protected under                              
            the work product doctrine.                                                                  
                  In the case before us, neither party appears to have                                  
            anticipated litigation before the issuance of the notice of                                 
            deficiency.  In particular, respondent's first engineer, after                              
            inability to obtain information from petitioner's expert, reached                           
            a zero value.  Respondent, however, was not content with that                               
            result and obtained the expert report of an outside expert.  In                             
            that connection, the report of the first engineer came into                                 
            petitioner's possession, but there is no indication in the                                  
            information provided by the parties whether it was received by                              
            petitioner before or after the issuance of the notice of                                    
            deficiency.  The outside expert's report was not provided to                                
            petitioner and, for reasons which are not apparent, respondent                              
            obtained the assistance of the second engineer, whose report was                            
            provided to petitioner.                                                                     
                  Accordingly, there has been no adequate showing that                                  
            respondent and/or petitioner anticipated litigation at the time                             
            the independent expert's assistance was sought and used and his                             
            expert report issued to respondent.  In other words, no                                     
            controversy had been formulated between the parties until, at                               
            very least, the second engineer's report was provided to                                    





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011