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investigator would not be permitted to testify. United States v.
Nobles, 422 U.S. 225, 229 (1975). The Supreme Court held that
the trial “court’s preclusion sanction was an entirely proper
method of assuring compliance with its [disclosure] order.” Id.
at 241.
In Hartz Mountain Industries v. Commissioner, 93 T.C. at
528, we ruled as follows:
Finally, petitioner has waived the work product
doctrine by making a “testimonial use” of work product
materials. See In re Sealed Case, supra at 817-818;
Coleco Industries, Inc. v. Universal City Studios,
supra at 691. Petitioner submitted affidavits from its
in-house counsel to support its internal position with
respect to the antitrust litigation. By offering this
selective disclosure of work product to establish its
intent, petitioner has waived all work product
protection relevant to the same issue, and fairness
requires discovery of all work product that pertains to
petitioner’s antitrust settlement intentions. Coleco
Industries, Inc. v. Universal City Studios, supra.
Thus, although partial disclosure is not necessarily fatal to a
claim of work product doctrine privilege, a “testimonial use” of
the disclosed material may result in a conclusion that in
fairness the related material must be disclosed even though it
would otherwise be protected from disclosure.9
9 This has some similarity to Fed. R. Evid. 106, under which
a party may interrupt another party’s presentation in order to
require “the introduction at that time” of certain evidence
“which ought in fairness to be considered contemporaneously with”
the other party’s evidence.
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