Thomas J. and Bonnie F. Ratke - Page 8




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          B.  Parties’ Contentions                                                    
               Respondent contends that both (1) the entire Welhaf                    
          memorandum and (2) the redacted portions of the Hyman memorandum            
          are protected from discovery pursuant to the work product                   
          doctrine.  Respondent maintains that (a) both memoranda are work            
          product, (b) to the extent the memoranda include “fact” work                
          product, petitioners cannot show a substantial need or undue                
          hardship because “they are well aware of all the facts in this              
          case”, and (c) to the extent the memoranda include “opinion” work           
          product the memoranda are “absolutely protected from disclosure”            
          or in any event are not disclosable because petitioners “have not           
          made a far stronger showing than the ‘substantial need’ and                 
          ‘without undue hardship’ standard”.                                         
               Petitioners assert that the work product doctrine is not               
          absolute, relying on rule 26(b)(3) of the Federal Rules of Civil            
          Procedure.  They contend that (1) they need to have access to the           
          Welhaf memorandum in order to determine whether “Welhaf ‘cherry             
          picked’ the facts favorable to her position, and did not include            
          facts unfavorable to her position”, (2) this information would be           
          relevant to (a) “substantial authority under I.R.C.                         
          §7430(c)(4)(B)” and (b) “sanctionable misconduct under I.R.C.               
          §6673(a)(2)”, and (3) Rule 91(a)(1) has the effect of requiring             
          disclosure so that the parties can stipulate to the matters                 
          relevant to the motions before the Court.  Petitioners contend              







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