                        118 T.C. No. 35




                    UNITED STATES TAX COURT



     JEFFREY HAMBARIAN AND VIRGINIA M. HAMBARIAN, ET AL.,1
  Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent



    Docket Nos. 11856-99, 7973-00,    Filed June 13, 2002.
                 3042-01, 3101-01.


         P is a defendant in a criminal proceeding. The
    transactions and circumstances which gave rise to the
    criminal proceeding were also the predicate for R’s
    civil tax determination. P’s criminal defense attorney
    selected 100,000 pages of documents from a much larger
    universe of documents that were in the possession of
    the prosecuting attorney. The documents were converted
    by P’s defense attorney into computer searchable media.
    R seeks the production of copies of the documents and
    computer searchable media. P resists turning over the
    documents or media on the grounds that his defense




    1
       Cases of the following petitioners are consolidated
herewith: Jeffrey Hambarian and Virginia M. Hambarian, docket
No. 7973-00, Virginia M. Hambarian, docket No. 3042-01, and
Jeffrey A. Hambarian, docket No. 3101-01.
                               - 2 -

     attorney’s selection of the particular documents
     reflects his mental impressions and is therefore
     protected work product. The documents sought are
     otherwise discoverable.
          Held: The mere selection of particular documents
     by P’s defense attorney does not automatically
     transmute the documents into work product. Held,
     further, as P has failed to make the requisite showing
     of how the disclosure of the documents selected would
     reveal the defense attorney’s mental impressions of the
     case, the requested documents and computerized
     electronic media are not protected by the work product
     doctrine.


     Mark M. Hathaway and James D. McCarthy, Jr., for

petitioners.

     Louis B. Jack and Nicholas J. Richards, for respondent.


                              OPINION

     GERBER, Judge:   Respondent moved to compel the discovery of

documents and computer searchable electronic media from

petitioners.   The documents were obtained by Jeffrey Hambarian’s

(petitioner’s) defense attorneys in a criminal case.    Petitioners

refused to turn over the documents, asserting the protection of

the work product doctrine.   In particular, we consider whether

the selection of particular documents from a larger universe

causes otherwise discoverable documents to become protected work

product.

Background

     These consolidated cases involve determinations that

petitioners’ income was understated and that the understatement
                                 - 3 -

was fraudulent.2    Concerning the same circumstances that gave

rise to respondent’s determination, the State of California

indicted Mr. Hambarian on the following charges:    Grand theft,

presenting false claims, commercial bribery, breach of fiduciary

duty, receipt of corporate property, filing false State income

tax returns with intent to defraud, and money laundering.      The

criminal prosecution has been delayed for approximately 2 years

due to a formal conflict of interest inquiry.    The inquiry

involves the contention that the Orange County District

Attorney’s Office should be removed from the case because that

office was assisted by an accountant who was employed by the City

of Orange, the same entity that Mr. Hambarian allegedly

defrauded.

     Petitioners contend that respondent is on an overreaching

“fishing expedition” in an attempt to bolster an inadequate

determination.     Petitioners allege that respondent had based his

deficiency determination on newspaper articles and a summary of



     2
       Petitioners resided in Anaheim Hill, California, at the
times their petitions were filed in these consolidated cases.
Respondent determined that the fraud penalty applied to both
petitioners. Petitioner Virginia Hambarian has contended that
she was not involved in her husband’s (Jeffrey Hambarian)
criminal matter and that, in any event, she is not authorized to
require the turnover of document or materials in the possession
of her husband’s criminal defense attorney. This Court has not
addressed the merits of Virginia Hambarian’s claim that she is
not liable for the income tax deficiencies or penalties.
Accordingly, we are not able, at this time, to determine whether
the documents would be relevant as to her.
                                - 4 -

checks prepared by the accountant who is central to the conflict

of interest dispute.    Continuing in that vein, petitioners

contend that respondent is attempting to bolster his

determination by attempting to discover documents in petitioners’

possession.

     The documents sought by respondent were initially acquired

by the office of the Orange County District Attorney (prosecuting

attorney) in connection with the investigation/prosecution of

petitioner.   We surmise that the documents, in great part, were

acquired from Orange County and/or petitioner’s business which

performed contract services for the county.    As part of the

pretrial process in the criminal case, the prosecuting attorney

selected approximately 10,000 pages of documents from the

significantly larger universe of documents acquired and held by

the prosecuting attorney.    Those documents were selected based

upon the prosecuting attorney’s judgment that they were relevant

and/or discoverable in connection with the criminal proceeding

against petitioner.    Each page of the selected documents was

Bates stamped and turned over to petitioner’s defense attorneys,

who, in turn, converted the documents into searchable electronic

media (PDF format using Adobe Acrobat software).    The prosecuting

attorney also turned over two discs (CD-ROM) containing images of

the front and back of checks which had been scanned into

searchable electronic media.
                               - 5 -

     In addition to the documents turned over by the prosecuting

attorney, petitioner’s defense attorney was permitted to review

the evidence log and inspect the entire universe of documents in

the possession of the prosecuting attorney.   In that regard, the

evidence log is approximately 400 pages long.   The defense

attorney was permitted to access, review, and copy documents from

that universe.   The documents were stored in boxes, and the

prosecuting attorney made a record of the defense attorney’s

access to particular boxes of documents.   The defense attorney

selected specific documents and photocopied them using a

procedure that would ensure that the prosecuting attorney could

not readily determine which specific documents or pages were

being copied by the defense attorney.   The prosecuting attorney,

however, was aware of the overall contents of each box accessed

by the defense attorney.   The defense attorney copied

approximately 100,000 pages of the documents selected under the

above-described procedures.   The defense attorney converted the

documents into searchable electronic media.

     Respondent attempted to obtain access to the documents in

the possession of the prosecuting attorney.   The prosecuting

attorney refused to turn over any documents or information

without a subpoena.   Respondent points out that a Tax Court

subpoena is only returnable at the time of trial, so that he was
                                 - 6 -

forced to seek the documents and information by means of

discovery.

     Respondent’s discovery requests seek from petitioners the

documents that had been received from the prosecuting attorney,

along with copies of the electronic media data bases and/or the

CD ROM.   Respondent also seeks to obtain the documents selected

by petitioner’s defense attorney.    Petitioners refused to turn

over the requested documents.3    Petitioners contend that some of

the documents received from the prosecuting attorney have

annotations made by Mr. Hambarian’s defense counsel.    Petitioners

point out that their cost to convert the documents to electronic

media was approximately $70,000.    Respondent is seeking the

electronic data bases and the hard copy of the documents and has

offered to pay costs of reproduction.

Discussion

     The question we consider here is whether the compilation of

documents and/or the creation of electronic data bases are

protected under the attorney work product doctrine which

originated in Hickman v. Taylor, 329 U.S. 495, 511 (1947).      The


     3
       Petitioners are represented in these consolidated cases by
different attorneys from those who represent petitioner, Jeffrey
Hambarian in the defense of his criminal indictment. Petitioners
raised the point that the requested documents and materials are
in the possession of Jeffrey Hambarian’s criminal defense
attorney and that petitioners and their Tax Court attorneys are
not in possession of the requested matter. We fail to understand
why that distinction should make any difference in our
consideration of the present discovery requests.
                                   - 7 -

work product privilege is intended to protect documents that

reveal an attorney’s mental impressions and legal theories and

that were prepared in contemplation of litigation.       Id. at 509-

510.       The Supreme Court, in holding that certain documents were

privileged, explained:

       Proper preparation of a client’s case demands that * *
       * [an attorney] assemble information, sift what he
       considers to be the relevant from the irrelevant facts,
       prepare his legal theories and plan his strategy
       without undue and needless interference. * * * This
       work is reflected, of course, in interviews,
       statements, memoranda, correspondence, briefs, mental
       impressions, personal beliefs, and countless other
       tangible and intangible ways * * *

Id. at 511.

       There is no doubt that the documents compiled by the

prosecuting and defense attorneys were organized in contemplation

of litigation.       With respect to the 10,000 Bates numbered pages

received from the prosecuting attorney by petitioner’s defense

attorney, there is no need to protect them, even if they did

reflect the prosecuting attorney’s mental impressions.      Any

privilege that may have attached to the 10,000 pages when they

were compiled by the prosecuting attorney was abandoned when the

documents were turned over or disclosed to petitioner’s defense

attorney.4



       4
       If petitioner’s defense attorney had placed notations on
the documents that constitute work product, those notations may
be excised to the extent that petitioners can show that such
notations are privileged.
                               - 8 -

     Petitioners place heavy reliance on Sporck v. Peil, 759 F.2d

312 (3d Cir. 1985), a case in which the Court of Appeals for the

Third Circuit found that a selection and compilation of documents

was work product.   Respondent contends that the facts in

petitioner’s case are distinguishable from Sporck.   The question

in Sporck arose in connection with an attorney’s preparation for

a deposition of his client.   That preparation included the

attorney’s selection of documents that were placed in a folder

for preparing the witness and for transportation to the situs of

the deposition.

     The deposition documents in Sporck had been selected by the

attorney from a larger universe of more than 100,000 documents.

The 100,000 document universe had, in turn, been selected by the

attorney from a substantially larger universe of documents

(several hundred thousand documents) that had been produced in

response to discovery.   It was conceded that the contents of the

documents did not contain work product.   Further complicating the

circumstances in Sporck was the fact that the deponent stated

that he had examined documents in preparation for the deposition,

and the cross-examining attorney asked that the documents be

identified and produced.

     The issue in Sporck was described as “whether the selection

process of defense counsel in grouping certain documents together

out of the thousands produced in this litigation is work
                                 - 9 -

product”.   Id. at 315.   In reaching its decision, the Court of

Appeals for the Third Circuit concluded that “Because

identification of the documents as a group will reveal defense

counsel’s selection process, and thus his mental impressions,

* * * [we agree] that identification of the documents as a group

must be prevented to protect defense counsel’s work product.”

Id.

      The Court in Sporck did not hold that any selection of

otherwise discoverable documents by an attorney would convert the

documents into work product.   The protection of the work product

doctrine may be applied only to situations where the attorney’s

mental impressions would be disclosed by the discovery or handing

over of the selected materials.    Cases decided since Sporck have

emphasized this distinction.   Several courts have held that the

mere selection and/or organizing of otherwise discoverable

documents does not make them into work product.   See, e.g.,

Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., 164

F.R.D. 250, 252 (D. Kan. 1996); Wash. Bancorporation v. Said 145

F.R.D. 274, 277 (D.D.C. 1992).    In that same vein and germane to

our facts, an attorney’s conversion of paper documents into

electronic media, by itself, does not make otherwise discoverable

documents into work product.   See, e.g., Hines v. Windnall, 183

F.R.D. 596 (N.D. Fla. 1998); Fauteck v. Montgomery Ward & Co., 91

F.R.D. 393 (N.D. Ill. 1980).
                              - 10 -

     In particular it has been held that for the work product

privilege to apply to an attorney’s selection of documents, a

court should first determine that (1) disclosure of the documents

would create a “real, nonspeculative danger of revealing the

lawyer’s thoughts”, and (2) the lawyer had a justifiable

expectation that such mental impressions revealed by the

materials would remain private.   See In re San Juan Dupont Plaza

Hotel Fire Litig., 859 F.2d 1007, 1015-1016 (1st Cir. 1988).5

Similarly, other courts have refined and distinguished the Sporck

holding.   See, e.g., Resolution Trust Corp. v. Heiserman, 151

F.R.D. 367, 374-375 (D. Colo. 1993); Pepsi-Cola Bottling Co.

Pittsburgh, Inc. v. Pepsico, Inc., No. 01-2009-KHV, slip op. at 6

(D. Kan., Nov. 8, 2001).




     5
       In Sporck v. Peil, 759 F.2d 312, 319 (3d Cir. 1985), this
same point was raised, as follows, in a dissenting opinion:
          The problem with * * * [the majority’s] theory is
     that it assumes that one can extrapolate backwards from
     the results of a selection process to determine the
     reason a document was selected for review by the
     deponent. There are many reasons for showing a
     document or selected portions of a document to a
     witness. The most that can be said from the fact that
     the witness looked at a document is that someone
     thought that the document, or some portion of the
     document, might be useful for the preparation of the
     witness for his deposition. This is a far cry from the
     disclosure of the a [sic] lawyer’s opinion work
     product. Even assuming that the documents were
     selected by the petitioner’s attorney, the subject
     matter is so undifferentiated that its potential for
     invasion of work product is minuscule at best.
     [Citations omitted.]
                                - 11 -

     Accordingly, the Sporck holding has been interpreted to

require that the attorney’s mental impressions would be revealed

by the disclosure of the documents selected by an attorney in

contemplation of litigation.    For instance, the defense attorney

in Sporck selected a limited quantity of documents, which fit in

a folder.   Conceivably, such a discrete selection from a universe

consisting of more than 100,000 documents could have disclosed

the attorney’s mental impression regarding the defense of and

preparation for a deposition.    In stark contrast, petitioner’s

defense attorney selected 100,000 pages of documents from a

larger universe of documents.    Given the huge volume of otherwise

discoverable documents, we are constrained from concluding that

the mental impressions of petitioner’s defense attorney could be

gleaned or discerned if the documents were revealed to a third

person.

     In the case before us, the prosecuting attorney selected

10,000 pages and petitioner’s defense attorney selected 100,000

pages from a larger universe of documents maintained by the

prosecuting attorney.   Given the large volume of documents

(pages) involved, there is little or no likelihood that the

defense attorney’s mental impressions would be discernable.

     We are also cognizant that the case before this Court is a

civil proceeding and that the parties are urged and required to

exchange documents and to stipulate them in preparation for
                                - 12 -

trial.   See Rule 91, Tax Court Rules of Practice and Procedure;

Branerton Corp. v. Commissioner, 61 T.C. 691 (1974).     To the

extent that the subject documents are the predicate for the

factual development of this case, this Court has always

encouraged that such potential evidence be exchanged.    The

factual basis for the prosecution of petitioner and the merits of

this income tax case involve, to a substantial extent, the same

transactions and events.   It is highly likely that the selection

of the relevant documents by the prosecuting and defense

attorneys resulted in the selection of documents that are germane

and relevant to the merits of the controversy before this Court.

     We are far from persuaded, in the circumstances of this

case, that 100,000 pages of materials selected by petitioner’s

defense attorney reveal his mental impressions.   In addition, we

are concerned that a finding of protected work product with

respect to the selection of 100,000 pages of otherwise

discoverable materials would permit an excessively pervasive use

of the work product doctrine.    Such use could easily evolve into

abuse accomplished by the mere selection of documents from a

larger universe.   Petitioner has only generally alleged that the

defense attorney’s mental impressions would be compromised.

Petitioner has not described with any specificity the reason why

the selection would reveal the mental impressions of the defense

attorney.   This showing could have been made in camera, if its
                              - 13 -

disclosure would have been damaging to petitioner’s defense of

his criminal case.   Without some showing or assurance that the

mental impressions of petitioner’s attorneys would be revealed,

the work product doctrine is not applicable under the

circumstances of this case.

     To reflect the foregoing,

                                      An appropriate order will be

                                 issued granting respondent’s motion

                                 to compel.
