- 13 -
see also Bernardo v. Commissioner, 104 T.C. at 688 n.14. See
generally Wright, Miller & Marcus, sec. 2024 nn. 12-15.
We hold that both memoranda are work product for purposes of
the litigation as to petitioners’ motions under sections 7430 and
6673.
3. Extent of the Privilege
The privilege resulting from the work product doctrine7 is
qualified; it may be overcome by an appropriate showing. Ames v.
Commissioner, 112 T.C. at 310; Hartz Mountain Industries v.
Commissioner, 93 T.C. at 527 (1989). Rule 26(b)(3) of the
Federal Rules of Civil Procedure requires a showing of
“substantial need” and an inability to otherwise obtain the
substantial equivalent “without undue hardship”; that rule sets
aside “disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.”
As to such opinion work product, the Court of Appeals for
the Ninth Circuit, to which the instant case is appealable, has
summarized the standards in Holmgren v. State Farm Mut. Auto.
Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992), as follows:
A party seeking opinion work product must make a
showing beyond the substantial need/undue hardship test
required under Rule 26(b)(3) for non-opinion work
product. Upjohn Co. v. United States, 449 U.S. 383,
401-02, 101 S.Ct. 677, 688-89, 66 L.Ed.2d 584 (1981).
7 See Wright, Miller & Marcus, sec. 2025, nn. 3, 4, and 5.
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