Thomas J. and Bonnie F. Ratke - Page 7




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               Both the Welhaf memorandum and the Hyman memorandum were               
          prepared as part of respondent’s counsel’s efforts to prepare               
          legal theories and plan strategy for the instant case.                      
                                     Discussion                                       
          A.  Preliminary                                                             
               Petitioners want to discover the Welhaf memorandum and the             
          unredacted Hyman memorandum.  See Rules 70,4 72.  Respondent                
          objects to discovery of these memoranda on the ground that both             
          memoranda are privileged.  See Rule 70(b)(1).  A party opposing             
          discovery on such a ground has the burden of establishing that              
          the information sought is privileged.  Ames v. Commissioner, 112            
          T.C. 304, 309 (1999); Bernardo v. Commissioner, 104 T.C. 677, 691           
          (1995).  The privilege respondent claims is the one resulting               
          from the work product doctrine.  See Rules Committee Notes, 60              
          T.C. 1058, 1098.                                                            
               If the party opposing discovery establishes that the                   
          information sought is work product, then discovery will not be              
          required unless the Court determines that, in the situation                 
          before it, the information sought should nevertheless be                    
          disclosed.  Hickman v. Taylor, 329 U.S. 495, 512 (1947); Ames v.            
          Commissioner, 112 T.C. at 310-311.                                          




               4 Unless indicated otherwise, all Rule references are to the           
          Tax Court Rules of Practice and Procedure.                                  





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