Thomas J. and Bonnie F. Ratke - Page 17




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          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.                                                                  







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