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particular communications or documents rests with the party
asserting the privilege. Clarke v. Am. Commerce Natl. Bank,
supra at 129; Bernardo v. Commissioner, supra at 682.
As previously indicated, one of the grounds on which
respondent alleges that Mr. O’Keefe’s notes are not protected
here is that petitioners waived the privilege by claiming
reliance on advice of counsel. This contention invokes the
doctrine of what is referred to as implied waiver. Ideal Elec.
Sec. Co. v. Intl. Fid. Ins. Co., 129 F.3d 143, 151 (D.C. Cir.
1997); Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d
1322, 1326 (9th Cir. 1995). While the precise reach of the
theory can be a subject of some controversy, courts typically
employ some version of one of several general approaches. See,
e.g., Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699-
700 (10th Cir. 1998) (cataloging various standards); Zenith Radio
Corp. v. United States, 764 F.2d 1577, 1579 (Fed. Cir. 1985)
(same). These include the so-called automatic waiver rule, under
which a party automatically waives the privilege by asserting a
claim or defense to which otherwise privileged matter is
relevant, see Indep. Prods. Corp. v. Loew’s Inc., 22 F.R.D. 266,
276-277 (S.D.N.Y. 1958); a balancing test that weighs the need
for discovery against the need to protect the secrecy of the
communication, see Greater Newburyport Clamshell Alliance v. Pub.
Serv. Co., 838 F.2d 13, 20-22 (1st Cir. 1988); the three-pronged
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