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Hickman...shifts.”). To the extent the work-
product immunity could have such an effect,
it is waived.
Id. at 1303.
In Hartz Mountain Industries v. Commissioner, 93 T.C. at
527, we summarized the waiver rules as follows:
Protection derived from the work product doctrine
is not absolute. United States v. Nobles, 422 U.S.
225, 239 (1975). Further, the work product doctrine,
like the attorney-client privilege, may be waived.
United States v. Nobles, supra. Protection afforded by
the work product doctrine to “opinion work product” may
also be waived. See In re Sealed Case, 676 F.2d 793,
811 (D.C. Cir. 1982); Coleco Industries, Inc. v.
Universal City Studios, 110 F.R.D. 688, 690-691
(S.D.N.Y. 1986).
In Hartz Mountain Industries and each of the three cited
cases therein, the relevant court (1) concluded that the
proponent of the privilege attempted to present a one-sided view
of a critical matter in dispute and (2) refused to sustain the
privilege in that setting.
In Nobles, a defendant in a criminal case was not permitted
to present testimony of an investigator unless the defendant
turned over to the prosecution those portions of the
investigator’s report that related to the investigator’s expected
testimony. When the defense called its investigator as a
witness, the trial court ruled that the investigator’s report
(after inspection and editing in camera) would have to be turned
over to the prosecutor. The defense stated that the report would
not be turned over. Whereupon the trial court ruled that the
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