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Rice, Attorney-Client Privilege in the United States, sec. 9:23,
at 58-59; see, e.g., Gomez v. Vernon, 255 F.3d 1118, 1131-1132
(9th Cir. 2001) (“[W]hen there has been an involuntary
disclosure, the privilege will be ‘preserved if the privilege
holder has made efforts “reasonably designed” to protect the
privilege. * * * Conversely * * * the privilege [will be
deemed] to be waived if the privilege holder fails to
pursue all reasonable means of preserving the confidentiality of
the privileged matter.’”).
Although we have found that the exhibits were confidential
communications, the confidentiality of the exhibits has been
breached. Respondent attached copies of the exhibits to his
motion to compel production of documents, reciting that, among
other documents, the exhibits were provided to respondent by
Moore (apparently during the discovery phase of this case).
Although petitioners have failed in their promise made at trial
to produce affidavits from Surgery Center’s accountants that they
(the accountants) had received copies of the exhibits from
Surgery Center for tax return preparation purposes, petitioners
have attached to the reply copies of Internal Revenue Forms 5701
and 886-A, both dated November 11, 2002. Those forms discuss
proposed adjustments with respect to Surgery Center’s Federal
income tax returns for 1999 and 2000. They state that the
“taxpayer’s representative” has stated that certain contemplated
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