NCJ Number
79374
Journal
University of Florida Law Review Volume: 33 Issue: 1 Dated: (1980) Pages: 76-98
Date Published
1981
Length
23 pages
Annotation
After discussing the work product doctrine in general, this article examines the various discovery procedures and correlative work product exceptions available in tax fraud litigation, with particular attention to the work product doctrine as a viable defense to the enforcement of the administrative summons and grand jury subpoena.
Abstract
Various work product protections are available during the pretrial discovery phase of a pending civil or criminal tax fraud case. Courts have recognized two types of work product: statements or documents prepared by or for counsel, which contain factual information and mental impressions, and attorney legal opinions known as 'opinion work product.' Work product is considered a qualified protection, because disclosure is compelled upon the showing of necessity. A case-by-case approach is used by the courts in balancing countervailing policy considerations. Broad discovery methods are considered essential to the full development of relevant facts in Federal litigation. Adequate safeguards to ensure thorough preparation and presentation, however, require a certain degree of privacy for an attorney's litigation files. This second consideration is most compelling in criminal cases, where mental thought processes of an attorney are vigorously protected. A strong showing of need is required to overcome this concern for an attorney's privacy. The work product doctrine becomes more attenuated when applied during the investigation stages of a tax fraud case. The policy favoring broad pretrial discovery is displaced by the broad investigation powers granted to the Government by virtue of the administrative summons and the grand jury subpoena. At the minimum, a greater showing of need by the Government should be required. A total of 199 footnotes are listed. (Author summary modified)