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that petitioners’ affirmative defense contemplated more than just
the cited accountant and is appropriately read to include Mr.
O’Keefe, who concededly provided tax advice in 1989.
The second requirement asks whether through this affirmative
act the asserting party puts the protected information at issue
by making it relevant to the case. This element, too, has been
satisfied here. As the Court of Appeals for the Ninth Circuit
explained in an analogous context: “to the extent that * * *
[the defendant] claims that its tax position is reasonable
because it was based on advice of counsel, * * * [the defendant]
puts at issue the tax advice it received.” Chevron Corp. v.
Pennzoil Co., 974 F.2d 1156, 1162-1163 (9th Cir. 1992).
Likewise, petitioners seek to defend against the fraud
allegations on grounds of reliance on experts. That defense
places at issue the tax advice Mr. Johnston received with respect
to his 1989 return. Petitioners have also admitted that Mr.
O’Keefe rendered tax advice to Mr. Johnston during 1989. In
addition, the California appellate court’s unpublished opinion in
Fitzsimon v. Good, Wildman, Hegness & Walley, No. G020125, slip
op. at 6 (Cal. Ct. App. Aug. 24, 1999), contains the following
statement: “Our review of the exhibits demonstrates there is
substantial evidence for the trial court to have concluded
defendants were hired by plaintiff’s partners and to obtain tax
advice and to research tax liability issues concerning a real
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