Aldrich H. Ames - Page 9




                                        - 9 -                                         

          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).                                                                   




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