Thomas J. and Bonnie F. Ratke - Page 10




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               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.                                     






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