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of information necessary to ‘defend’ against defendants’
affirmative defense, for the protected information is also
germane to plaintiff’s burden of proving malice or unreasonable
disregard of his clearly established constitutional rights.” The
analogous scenario in United States v. Exxon Corp., 94 F.R.D. at
249, led the court to observe as follows:
Exxon’s affirmative defenses necessarily revolve around
whether Exxon did, in fact, primarily or solely rely
upon a particular DOE regulation or communication when
the company made its pricing decisions. Thus, the only
way to assess the validity of Exxon’s affirmative
defenses, voluntarily injected into this dispute, is to
investigate attorney-client communications where
Exxon’s interpretation of various DOE policies and
directives was established and where Exxon expressed
its intentions regarding compliance with those policies
and directives. * * *
A parallel situation exists here.
Under section 7454(a) and Rule 142(b), respondent bears the
burden of establishing fraud by clear and convincing evidence.
Petitioners have asserted reliance on professionals as an
affirmative defense to the fraud allegations. To “defend”
against this defense, respondent must show that such reliance
either was unreasonable or did not in fact occur. Respondent can
do so only through knowledge of what tax advice Mr. Johnston
received, and such would include communications from Mr. O’Keefe.
Additionally, having invoked reliance on “experts”, petitioners
cannot now be entitled selectively to withhold communications
from particular experts, especially those who petitioners concede
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