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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
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