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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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