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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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