- 8 - 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 contendPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: November 10, 2007