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estate sale.” Given these circumstances, petitioners, by raising
the affirmative defense of reliance, must be said to have placed
at issue in the present proceeding all tax advice received with
respect to the 1989 transactions in dispute, including
communications with Mr. O’Keefe.
Finally, the third inquiry is directed toward whether
allowing the privilege would deny the opposing party access to
information vital to its defense. The Courts of Appeals have
cautioned that privileged communications do not become
discoverable where they simply are relevant to issues raised in
the litigation or where they are only one of several forms of
indirect evidence about an issue. United States v. Amlani, 169
F.3d at 1195; Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d at
701-702; Zenith Radio Corp. v. United States, 764 F.2d at 1580-
1581. Rather, the information must be “vital”, Hearn v. Rhay, 68
F.R.D. at 581, such that it would be “manifestly unfair” to deny
access due to consequent prejudice to the opposing party’s
defense, Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d at
1326-1327. Stated otherwise, the attorney-client privilege “may
not be used both as a sword and a shield.” Chevron Corp. v.
Pennzoil Co., supra at 1162.
In connection with the affirmative defense posture presented
in Hearn v. Rhay, supra at 581, the court explained that “one
result of asserting the privilege has been to deprive plaintiff
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