Court of Appeals for the District of Columbia Circuit has held that notes taken by an auditor of a meeting with the taxpayer's lawyers may qualify as work product under the common law definition even though the notes would not satisfy the definition in the Federal Rules, because the notes reflected the mental impressions
of the lawyers.
In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions
, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
15) When the discovery of documents selected by a lawyer or his or her agent will reveal the selection process, this, by its very nature, discloses the lawyer's mental impressions
This may contain mental impressions
, thought processes and speculations on possible adverse IRS positions, the likelihood of success on the issues if challenged by the IRS, and various negotiation and settlement positions.
The risk manager's work product memoranda, which contained her mental impressions
of information from witnesses, were therefore found to be the work product of an attorney, as well as an attorney/client communication.
The court disagreed, explaining that the government incorrectly focused on who created the Deloitte Memorandum and that the correct inquiry should be on the document's content--the mental impressions
and conclusions of Dow's attorneys.
2d DCA 1999), it was held that a judge should have disqualified himself in a dissolution action based on his comment to the wife's counsel at the close of the evidence, but before final arguments were heard, that her client should attempt to negotiate for more visitation than she would otherwise receive if the trial court made the decision, since the comment could reasonably be interpreted to mean that the judge had "crossed that line" from forming mental impressions
Further, the work product doctrine protects documents, "interviews, statements, memoranda, correspondence, briefs, mental impressions
," and tangible things prepared by an attorney in anticipation of litigation or trial.
It provides that information prepared in anticipation of litigation is privileged and that courts are to be especially on guard against disclosure of any of the other party's mental impressions
and legal theories.
They are unquestionably suffused with the mental impressions
and opinions of the taxpayer's attorneys and should be protected from forced disclosure to the IRS.
Taylor, 329 US 495 (1947), protects documents, interviews, statements, memoranda, correspondence, briefs, mental impressions
and other tangible items prepared by an attorney in anticipation of litigation.