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Commissioner, supra. Petitioner does not question the
categorization of the CRL as attorney work product in the context
of the criminal case. He argues that the CRL was prepared for
the criminal case, and therefore respondent should not be allowed
to assert the work product privilege in this subsequent civil
proceeding. Petitioner also argues that he has shown substantial
need for the CRL that would be sufficient to overcome
respondent’s assertion of the work product privilege. We address
each of petitioner’s arguments separately.
A. Does the Privilege Extend to Subsequent Litigation?
Generally, the protective cloak of the work product doctrine
covers material prepared by an attorney in anticipation of
litigation. See Hartz Mountain Indus., Inc. v. Commissioner, 93
T.C. 521 (1989). Petitioner argues that the privilege should
extend only to the anticipated litigation for which the document
was prepared and not to subsequent litigation. In determining
whether the privilege extends to concurrent or successive
proceedings, some courts consider the degree and type of
relationship between the first and second proceeding.4 See In re
4 Some Courts of Appeals have extended the privilege to
unrelated litigation. See, e.g., Duplan Corp. v. Moulinage et
Retorderie de Chavanoz, 487 F.2d 480 (4th Cir. 1973); see also
FTC v. Grolier, 462 U.S. 19, 25-27 (1983) (and cases cited
therein).
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