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test of Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975); and
a purportedly more restrictive test where waiver is effected only
if a litigant directly injects an attorney’s advice into issue,
see Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., supra at 863-
864.
On the facts of the instant cases, it would appear that the
same result would obtain under any of the foregoing approaches.
We observe, however, that the approach of Hearn v. Rhay, supra,
has been both discussed with approval by the United States
District Court for the District of Columbia, whose rules of
evidence are applicable under section 7453, see United States v.
Exxon Corp., 94 F.R.D. 246, 248-249 (D.D.C. 1981), and explicitly
adopted by the Court of Appeals for the Ninth Circuit, the venue
for appeal in these cases, see United States v. Amlani, 169 F.3d
1189, 1195 (9th Cir. 1999). This Court, too, has previously
quoted Hearn v. Rhay, supra, with positive implication. Karme v.
Commissioner, supra at 1184.
Hearn v. Rhay, supra at 581, sets forth the following three
factors which must be extant for a finding of implied waiver:
(1) assertion of the privilege was a result of some
affirmative act, such as filing suit, by the asserting
party; (2) through this affirmative act, the asserting
party put the protected information at issue by making
it relevant to the case; and (3) application of the
privilege would have denied the opposing party access
to information vital to his defense. * * *
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