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5. Waiver
Petitioners contend that, even if the memoranda were
privileged under the work product doctrine, respondent should be
treated as having waived the privilege, because:
To permit Respondent to withhold Ms. Welhaf’s factual
representation to the Chief Counsel’s Office from the
Ratkes would allow Respondent to use the work product
doctrine as both a “sword and shield litigation tactic”
in this post-decision proceeding for litigation costs
and sanctions. As opined by the Federal Circuit in
EchoStar [In re EchoStar Communications Corp., 448 F.3d
1294 (Fed. Cir. 2006)]:
We recognize that the line between “factual”
work product and “opinion” work product is
not always distinct, especially when, as
here, an attorney’s opinion may itself be
“factual” work product. When faced with the
distinction between where that line lies,
however, a...court should balance the
policies to prevent sword-and-shield
litigation tactics with the policy to protect
work product.
Id. at 1302.
* * * *
The overarching goal of waiver in such a case
is to prevent a party from using the advice
he received as both a sword, by waiving
privilege to favorable advice, and a shield,
by asserting privilege to unfavorable advice.
See Fort James Corp. [v. Solo Cup Co.], 412
F.3d [1340] at 1349 [Fed. Cir. 2005]; [In re]
Martin Marietta Corp., 856 F.2d [619] at 626
[4th Cir. 1988]; In re Sealed Case, 676 F.2d
793, 818 (D.C. Cir. 1982) (“[W]hen a party
seeks greater advantage from its control over
work product than the law must provide to
maintain a healthy adversary system[,] then
the balance of interests recognized in
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