- 17 - memorandum), we conclude that petitioners have neither a substantial need to discover the fact-based work product in the Welhaf memorandum nor an inability to obtain a substantial equivalent of this fact-based work product without incurring undue hardship. The Welhaf memorandum suggests and analyzes various positions respondent might take in the litigation in the instant case. There is no “smoking gun” in the Welhaf memorandum establishing that respondent’s position in the underlying litigation was not substantially justified and thereby possibly entitling petitioners to litigation costs under section 7430. Nor is there a “smoking gun” in the Welhaf memorandum that would prove respondent’s attorney unreasonably and vexatiously multiplied the proceedings, and thereby entitle petitioners to litigation costs under section 6673(a)(2). Because the Welhaf memorandum would not impact the outcome of petitioners’ motions under sections 7430 and 6673 in the instant case, we conclude there is no compelling need to discover the memorandum; petitioners’ desire to discover the Welhaf memorandum is outweighed by the protection afforded by the privacy privilege under the work product doctrine. Accordingly, we sustain respondent’s contention that the work product doctrine privilege protects both memoranda from discovery.Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: November 10, 2007