Thomas J. and Bonnie F. Ratke - Page 13




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          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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