- 10 - 329 U.S. 495 (1947).[5] In that case the Supreme Court held that materials prepared in anticipation of litigation, including witness’ statements, were not subject to discovery as a matter of right because such discovery would be harmful to the orderly prosecution and defense of legal claims in adversary proceedings. “Work product,” as a term of art, is used to describe such protected materials. See Hickman v. Taylor, supra at 510. The holding in Hickman v. Taylor, supra, has been specifically incorporated in the Federal Rules of Civil Procedure as rule 26(b)(3). Further, the work product doctrine is given negative recognition in the Tax Court Rules of Practice and Procedure in that, even though it is not mentioned in the body of the Rules, it is dealt with in the notes of our Rules Committee to Rule 70(b). These notes state, in pertinent part, as follows: The other areas, i.e., the “work product” of counsel and material prepared in anticipation of litigation or for trial, are generally intended to be outside the scope of allowable discovery under these Rules, and therefore the specific provisions for disclosure of such materials in FRCP 26(b)(3) have not been adopted. Cf. Hickman v. Taylor, 329 U.S. 495 (1947). [60 T.C. 1098.] 2. Are the Memoranda Work Product? The Welhaf memorandum describes Welhaf’s intended arguments in defending the instant case and asks for concurrences or opinions regarding these intended arguments. The Hyman memorandum responds to the elements of the Welhaf memorandum. The Welhaf memorandum was sent about the time respondent filed 5 For a summary of the discovery evolution that led to Hickman v. Taylor, 329 U.S. 495 (1947), and interpretations of the law since 1947, see 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d secs. 2021-2028; that treatise and its most recent pocket part are hereinafter sometimes referred to as Wright, Miller & Marcus.Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 NextLast modified: November 10, 2007