- 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 toPage: 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