- 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 Next
Last modified: November 10, 2007