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Respondent adds that the L.L.C. memorandum does not claim
that the documents contain the mental impressions, conclusions,
opinions, or legal theories of an attorney or other
representative of a party concerning litigation. Respondent
argues that, even were petitioner and the L.L.C. to make that
claim, he has made a highly persuasive showing of a substantial
need for the documents.
Discussion
We recognize the work product doctrine. See Ratke v.
Commissioner, 129 T.C. __, __ (2007) (slip op. at 9-10).
If the party opposing discovery establishes that
the information sought is work product, then discovery
will not be required unless the Court determines that,
in the situation before it, the information sought
should nevertheless be disclosed. Hickman v. Taylor,
329 U.S. 495, 512 (1947); Ames v. Commissioner, 112
T.C. at 310-311.
Ratke v. Commissioner, supra at __ (slip op. at 7). In the Ratke
case, we addressed the extent of the privilege resulting from the
work product doctrine as follows:
The privilege resulting from the work product
doctrine is qualified; it may be overcome by an
appropriate showing. Ames v. Commissioner, 112 T.C. at
310; Hartz Mountain Industries v. Commissioner, 93 T.C.
at 527 (1989). Rule 26(b)(3) of the Federal Rules of
Civil Procedure requires a showing of “substantial
need” and an inability to otherwise obtain the
substantial equivalent “without undue hardship”; that
rule sets aside “disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney
or other representative of a party concerning the
litigation.” [Id. at __ (slip op. at 13); fn. ref.
omitted.]
The documents, as described in the L.L.C. memorandum, and as
shown by our in camera examination, contain notes taken by
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