Saba Partnership, Brunswick Corporation, Tax Matters Partnership - Page 124




                                       - 90 -                                         
         1993)(quoting In re Sealed Case, 676 F.2d 793, 807 n.44 (D.C.                
         Cir. 1982)); see Mead Data Cent. Inc. v. U.S. Dept. of Air Force,            
         566 F.2d 242 (D.C. Cir. 1977).                                               
              The attorney-client privilege is "the oldest of the                     
         privileges for confidential communications known to the common               
         law."  Upjohn Co. v. United States, 449 U.S. 383, 389 (1981);                
         Hartz Mountain Indus. v. Commissioner, 93 T.C. 521, 524-525                  
         (1989).  The attorney-client privilege "applies to communications            
         made in confidence by a client to an attorney for the purpose of             
         obtaining legal advice, and also to confidential communications              
         made by the attorney to the client if such communications contain            
         legal advice or reveal confidential information on which the                 
         client seeks advice."  Hartz Mountain Indus. v. Commissioner,                
         supra at 525, (citing Upjohn Co. v. United States, supra).                   
         However, "the privilege only protects disclosure of                          
         communications; it does not protect disclosure of the underlying             
         facts by those who communicated with the attorney."  Upjohn Co.              
         v. United States, supra at 395.                                              
              Except for the matters that were redacted, the Zelisko                  
         memorandum, set forth in its redacted form supra pp. 15-18, does             
         not contain privileged communications.  The memorandum is self-              
         described as "a bullet point summary of a transaction proposed by            
         Merrill Lynch to Brunswick Corporation (BC) on December 8, 1989              
         to generate sufficient capital losses to offset the capital gain             






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