UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

Plaintiff,

v. Civil Action No. 04-798 (PLF/GMH)

ALL ASSETS HELD AT BANK JULIUS

BAER & COMPANY, LTD., GUERNSEY

BRANCH, ACCOUNT NUMBER 121128, 

IN THE NAME OF PAVLO LAZARENKO

ET AL.

Defendants In Rem.

MEMORANDUM OPINION

This case was referred to the undersigned for the management of discovery. Currently 

ripe is Claimant Pavel Lazarenko’s motion for protective order relating to his request for a 

private letter ruling from the Internal Revenue Service. After reviewing the entire record,1 the 

Court will deny the motion.

BACKGROUND

The factual background concerning this in rem asset forfeiture action has been described 

in multiple opinions by Judge Friedman. See, e.g., United States v. All Assets Held at Bank 

Julius Baer & Co., Ltd., 772 F. Supp. 2d 191, 194 (D.D.C. 2011). This Court will not repeat that 

lengthy history here. The facts that are pertinent to adjudication of Claimant’s motion are 

summarized below.

 1 The relevant docket entries for purposes of this Memorandum Opinion are: (1) Claimant Pavel Lazarenko’s 

Motion for Protective Order (“Mot.”) [Dkt. 561]; (2) Plaintiff’s Opposition to Claimant’s Motion for Protective 

Order (“Opp.”) [Dkt. 586]; (3) Claimant’s Reply in Support of His Motion for Protective Order (“Reply”) [Dkt. 

624]; and (4) Claimant’s Request for Private Letter Ruling (“PLR Request”) [Dkt. 632].
2

In its First Amended Complaint, the United States seeks the forfeiture of more than $250 

million deposited in over twenty bank accounts located in Guernsey, Antigua and Barbuda, 

Switzerland, Lithuania, and Liechtenstein. First Amended Complaint [Dkt. 20] ¶¶ 1, 5. The

government alleges that the money in those accounts is traceable to a “variety of acts of fraud, 

extortion, bribery, misappropriation, and/or embezzlement” committed by Claimant, the former 

Prime Minister of Ukraine, or by his associates, between 1992 and 1998. Id. ¶¶ 6, 8, 10. The 

United States asserts its right to the funds pursuant to federal statutes that provide for the 

forfeiture to the government of funds traceable, or otherwise related to or involved in, criminal 

activity that occurred at least in part in the United States. Id. ¶ 1. 

On January 6, 2016, Claimant provided the government with a declaration stating that he 

had filed a request for private letter ruling (“PLR Request”) with the Internal Revenue Service. 

Mot. at 1. More specifically, he made the Request to the IRS Associate Chief Counsel 

(International). PLR Request at 1. A private letter ruling (“PLR”) is a written determination 

issued to a taxpayer by the IRS in response to a taxpayer inquiry regarding his status for tax 

purposes or the tax effects of certain transactions. Rev. Proc. 2016-1 § 2.01, 2016 WL 20933

(Jan. 4, 2016). In a PLR, the IRS interprets the tax code in reference to the taxpayer’s specific 

circumstances. Id. Certain information must be set forth in a PLR request, including a complete 

statement of all facts relating to the transactions at issue, legal analysis of those facts under the 

relevant law, and a statement of supporting and contrary authorities in relation to the taxpayer’s 

legal position. Id. § 7.01(1), (2)(c), (8), (9). The IRS will issue a PLR in response to a PLR 

request “when appropriate in the sound interest of tax administration.” Id. § 2.01. 

Claimant, asserting the work-product doctrine over his PLR Request, has not produced it

to the government. At a hearing on January 7, 2016, the Court set a briefing schedule for 
3

Claimant to seek a protective order prohibiting disclosure of the PLR Request, and any 

subsequent PLR, to Plaintiff. Jan. 11, 2016 Order [Dkt. 544]. At the Court’s request, see Mar. 

23, 2016 Minute Order, Claimant filed the PLR Request ex parte and under seal for the Court’s 

in camera review. See PLR Request.

Claimant asks the Court to shield both his PLR Request and any resulting PLR from 

disclosure to the government in this matter. Mot. at 4–7. Claimant contends that his PLR 

Request qualifies as opinion work product because it was prepared by his attorneys and analyzes 

the complex issues surrounding his potential tax liability. Id. at 5–6. In Claimant’s view, even 

the facts stated in the PLR Request “were included solely to facilitate the processing of this 

request for legal advice” and therefore should be protected as opinion work product as well. Id.

at 5. Further, Claimant argues that his disclosure of the PLR Request to the IRS does not waive 

any work-product protection the Request enjoys because the IRS is not his adversary. Id. at 6. 

Finally, Claimant posits that the government has not demonstrated a “substantial need” for the 

PLR Request because it “is free to conduct its own legal analysis to determine if [Claimant] was 

required to file tax returns.” Id. In passing, Claimant also argues that any PLR issued in 

response to the Request will not be relevant to this litigation because it would merely represent 

the views of a third party as to Claimant’s tax liabilities. Id.2

The government opposes Claimant’s motion. Opp. at 1. First, Plaintiff argues that any 

work-product claim as to the PLR Request or the PLR has been waived. Id. at 9–10. This is 

because Claimant disclosed his PLR Request to the IRS, which in turn must make his Request 

and any subsequent PLR “‘open to public inspection.’” Id. at 10 (quoting 26 U.S.C. § 6110(a)). 

 2 Claimant initially asserted other privileges as to the PLR Request, including the attorney-client privilege, 26 U.S.C. 

§ 6103, and unnamed privileges under “the common law,” see Opp., Ex. 5 ¶ 6, but he has abandoned those 

arguments in his motion.
4

According to Plaintiff, although the IRS does redact some identifying information in the PLR 

Request and PLR, the factual information proffered in the Request would be disclosed. Id. 

Additionally, disclosure of the PLR Request to the IRS waived any work-product protection the 

document might have enjoyed because the IRS is Claimant’s potential adversary in future 

proceedings relating to his alleged failure to file tax returns. Id. at 11–12. Moreover, Plaintiff 

contends that Claimant has waived work-product protection by previously offering to permit 

discovery of his PLR Request, although Claimant eventually reneged on that promise. Id. at 14–

15.

Second, Plaintiff claims that even if Claimant’s work-product protection has not been 

waived, the PLR Request should be disclosed because the work-product doctrine does not apply 

here. Id. at 15. In this vein, Plaintiff argues that Claimant did not prepare the PLR Request in 

anticipation of litigation but instead in an effort to determine the tax effects of certain 

transactions. Id. at 16. Because Claimant’s PLR Request concerns his tax liabilities since 1999, 

which are not at issue in this case, Plaintiff claims that there should be no work-product 

protection for this document. Id. at 16–17. Additionally, even if the work-product doctrine did 

encompass the PLR Request, Plaintiff posits that it has a compelling need for the document in 

order to probe Claimant’s relationship to the defendant in rem assets. Id. at 18–19. Information 

regarding Claimant’s relationship to the assets is scant, and, in Plaintiff’s view, it cannot readily 

obtain the information in Claimant’s PLR Request from other sources. Id.

In reply, Claimant contends that litigation over his tax liability is foreseeable and, as a 

result, his PLR Request was prepared in anticipation of litigation. Reply at 2. Claimant also 

challenges Plaintiff’s assertion that disclosure of the PLR Request to the IRS constitutes a waiver 

of work-production protection. Id. at 3. Claimant argues that any potential future adversaries of 
5

his at the IRS are auditors, not the IRS Office of Chief Counsel, to which the PLR Request was 

submitted. Id. His limited disclosure to that branch of the IRS does not mean that all IRS 

employees have access to it. Id. Thus, Claimant posits that he has not disclosed the PLR 

Request to a potential adversary. Id. at 3–4. Further, Claimant reiterates that the PLR Request 

will be made public only with redactions of personally identifying information, which would 

render it inadmissible against him in this case. Id. at 4–5. As a result, the mere fact that the PLR 

or PLR Request will be publicly disclosed would not rob them of work-product protection. Id. 

From Claimant’s perspective, Plaintiff’s request for his PLR Request is really an attempt to 

freeload on Claimant’s attorneys’ experience with and analysis of the intricate tax issues 

underlying this matter. Id. at 6. Finally, Claimant argues that his mere offer to produce the PLR 

Request to Plaintiff does not amount to waiver of his privilege claims. Id. at 8.

LEGAL STANDARDS

A. Motion for Protective Order

Federal Rule of Civil Procedure Rule 26(c) permits the court to issue protective orders to 

protect a party or person from annoyance, embarrassment, oppression, or undue burden or 

expense. Fed. R. Civ. P. 26(c). Determining whether to grant a protective order is a matter of 

discretion for the trial court. See E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1047 

(D.C. Cir. 1998). A protective order may be granted upon a showing of good cause. See

Alexander v. FBI, 186 F.R.D. 99, 100 (D.D.C. 1998). “Protective orders are not permanent or 

immutable and may be modified to serve important efficiency or fairness goals.” U.S. ex rel. 

Pogue v. Diabetes Treatment Ctrs. of Am., No. Civ.99-3298, 01-MS-50(MDL)(RCL), 2004 WL 

2009414, at *2 (D.D.C. May 17, 2004). Indeed, “Rule 26(c) is highly flexible, having been 

designed to accommodate all relevant interests as they arise.” United States v. Microsoft Corp., 
6

165 F.3d 952, 959 (D.C. Cir. 1999). The party seeking modification of an existing protective 

order bears the burden of showing that good cause exists for the modification. Pogue, 2004 WL 

2009414, at *2.

B. Public Disclosure of PLR Requests and PLRs

The text of a PLR request and any resulting PLR are usually made open to public 

inspection. Rev. Proc. 2016-1 § 7.01(11), 2016 WL 20933; 26 U.S.C. § 6110(a). If a taxpayer 

desires it, he or she may ask the IRS to keep certain contents of a PLR request or any resulting 

PLR confidential. See Rev. Proc. 2016-1 § 7.01(11), 2016 WL 20933 (“The text of letter rulings 

and determination letters is open to public inspection under § 6110. . . . To help the Service 

make the deletions required by § 6110(c), a request for a letter ruling or determination letter must 

be accompanied by a statement indicating the deletions desired[.]”). 26 U.S.C. § 6110 governs 

what parts of a PLR request or a resulting PLR may be redacted. See 26 U.S.C. § 6110.

Under section 6110, both the IRS’s advice to the taxpayer and the “background file 

documents,” i.e., the taxpayer’s PLR request, are generally treated as public documents except 

for specific categories of information that must be redacted. Id. § 6110(a), (c). The categories of 

information the IRS must redact include, among other things, “(1) names, addresses, and other 

identifying details of the person to whom the written determination pertains; . . . and (5) 

information the disclosure of which would constitute a clearly unwarranted invasion of personal 

privacy.” Id. § 6110(c)(1), (5). Further, IRS regulations implementing section 6110 provide that 

the IRS may not disclose: 

Any other information that would permit a person generally knowledgeable with 

respect to the appropriate community to identify any person. The determination 

of whether information would permit identification of a particular person will be 

made in view of information available to the public at the time the written 

determination or background file document is made open or subject to inspection 

and in view of information that will subsequently become available, provided the 
7

Internal Revenue Service is made aware of such information and the potential that

such information may identify any person. The “appropriate community” is that 

group of persons who would be able to associate a particular person with a 

category of transactions one of which is described in the written determination or 

background file document. The appropriate community may vary according to 

the nature of the transaction which is the subject of the written determination.

26 C.F.R. § 301.6110-3(a)(1)(ii).

C. Work-Product Protection

The work-product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3), which 

provides, in relevant part:

(A) Documents and Tangible Things. Ordinarily, a party may not discover 

documents and tangible things that are prepared in anticipation of litigation or for 

trial by or for another party or its representative (including the other party’s 

attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 

26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare 

its case and cannot, without undue hardship, obtain their substantial 

equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those 

materials, it must protect against disclosure of the mental impressions, 

conclusions, opinions, or legal theories of a party’s attorney or other 

representative concerning the litigation.

Fed. R. Civ. P. 26(b)(3)(A)-(B). The Supreme Court has observed that the work-product 

doctrine is “an intensely practical one, grounded in the realities of litigation in our adversary 

system.” United States v. Nobles, 422 U.S. 225, 238 (1975).

Under Rule 26, the party asserting work-product protection must first show that the 

document in question was prepared “in anticipation of litigation.” Fed. R. Civ. P. 26(b)(3). In 

this Circuit, we apply the “because of” test, which inquires “‘whether, in light of the nature of the 

document and the factual situation in the particular case, the document can fairly be said to have 
8

been prepared or obtained because of the prospect of litigation.’” FTC v. Boehringer Ingelheim 

Pharmaceuticals, Inc., 778 F.3d 142, 149 (D.C. Cir. 2015) (quoting United States v. Deloitte 

LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)). “For a document to meet this standard, the lawyer 

must at least have had a subjective belief that litigation was a real possibility, and that belief 

must have been objectively reasonable.” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). 

“While litigation need not be imminent or certain,” it must be “‘fairly foreseeable at the time’ the 

materials were prepared.” Hertzberg v. Veneman, 273 F. Supp. 2d 67, 75 (D.D.C. 2003) 

(quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980)). 

“Where a document would have been created ‘in substantially similar form’ regardless of the 

litigation, work product protection is not available.” Boehringer, 778 F.3d at 149 (quoting 

Deloitte, 610 F.3d at 138). 

If the document was created in anticipation of litigation, the burden then shifts to the 

opposing party to demonstrate that the document is within the general scope of discoverable 

information. Fed. R. Civ. P. 26(b)(3)(A)(i). That standard, which was amended in December 

2015, now provides that “parties may obtain discovery regarding any nonprivileged matter that is 

relevant to any party’s claim or defense and proportional to the needs of the case.” Id. 26(b)(1). 

As before, “[i]nformation within this scope of discovery need not be admissible in evidence to be 

discoverable.” Id.

Assuming the document is relevant, the Court must next examine whether it contains fact 

or opinion work product. See id. 26(b)(3); Boehringer, 778 F.3d at 151. Opinion work product 

is that which reveals “the mental impressions, conclusions, opinions, or legal theories of a 

party’s attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). 

Everything else is fact work product. Boehringer, 778 F.3d at 151. Where a document contains 
9

both opinion and fact work product, the court must examine whether the factual matter may be 

disclosed without revealing the attorney’s mental impressions. Id. at 152. Factual matter in a 

document only deserves protection as opinion work product when “the selection [of the facts] 

reflects the attorney’s focus in a meaningful way.” Id. at 151.

The distinction between fact and opinion work product is critical because “a party’s 

ability to discover work product often turns on whether the withheld materials are fact work 

product or opinion work product.” Id. at 152. Opinion work product is “virtually 

undiscoverable,” Dir., Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 

1307 (D.C. Cir. 1997), although courts have indicated that an “extraordinary showing of 

necessity” will compel disclosure. In re Sealed Case, 676 F.2d 793, 811 (D.C. Cir. 1982). Fact 

work product, on the other hand, can be obtained merely by showing “‘adequate reasons’” 

supporting why it should be disclosed. Boehringer, 778 F.3d at 153 (quoting In re Sealed Case, 

676 F.2d at 809). Under Rule 26, these “adequate reasons” are that the party seeking disclosure 

“has substantial need for the materials to prepare its case and cannot, without undue hardship, 

obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). 

Like other privileges, work-product protection can be waived by voluntary disclosure to a 

third party. Deloitte, 610 F.3d at 139. But it is well settled in this Circuit that waiving workproduct protection in this way requires a more robust showing than waiving attorney-client 

privilege. Id. The Court of Appeals has instructed that “[v]oluntary disclosure does not 

necessarily waive work-product protection . . . because it does not necessarily undercut the 

adversary process. Nevertheless, disclosing work product to a third party can waive protection if 

‘such disclosure, under the circumstances, is inconsistent with the maintenance of secrecy from 
10

the disclosing party’s adversary.’” Id. at 140 (quoting Rockwell Int’l Corp. v. Dep’t of Justice, 

235 F.3d 598, 605 (D.C. Cir. 2001)). This is a fact-intensive inquiry. Id. at 141. 

A party normally waives the privilege if he discloses the document to an adversary or a 

potential adversary. Id. at 140. To determine whether the receiving party is an adversary or 

potential adversary, a court must ask whether the recipient could be an adversary in the sort of 

litigation contemplated in the document for which work-product protection is sought. Id. The 

question is not simply whether the party could theoretically be an adversary “in any conceivable 

future litigation.” Id. Instead, the court should query whether the alleged work product would 

be relevant in a future dispute between the disclosing and receiving parties. Id. 

But even if the recipient is not an adversary or potential adversary, waiver may still 

occur. Waiver also occurs when one discloses one’s work product to a “conduit to an 

adversary.” Id. at 141. In other courts, this form of waiver is generally tested by asking whether

disclosure to the alleged “conduit” substantially increases the likelihood that an adversary will 

come into possession of the material. See Westinghouse Elec. Corp. v. Philippines, 951 F.2d 

1414, 1428 (3d Cir. 1991); Costabile v. Westchester, N.Y., 254 F.R.D. 160, 164 (S.D.N.Y. 

2008); Ferko v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 219 F.R.D. 396, 400–01 (E.D. Tex.

2003). To avoid waiver on this ground, the disclosing party must have had “a reasonable basis 

for believing that the recipient would keep the disclosed material confidential.” Deloitte, 610 

F.3d at 141. 

“A reasonable expectation of confidentiality may derive from common litigation interests 

between the disclosing party and the recipient.” Id.; see also United States v. AT&T Co., 642 

F.2d 1285, 1299–1300 (D.C. Cir. 1980) (“So long as transferor and transferee anticipate 

litigation against a common adversary on the same issue or issues, they have strong common 
11

interests in sharing the fruit of the trial preparation efforts.”). It might also arise from “a 

confidentiality agreement or similar arrangement between the disclosing party and the recipient,” 

although such an agreement “must be relatively strong and sufficiently unqualified to avoid 

waiver.” Deloitte, 610 F.3d at 141. Important here is the notion that “[a] mere promise to give 

the disclosing party notice before releasing documents does not support a reasonable expectation 

of confidentiality.” Id. Additionally, if the party “has engaged in self-interested selective 

disclosure by revealing work product to some adversaries but not others,” this militates in favor 

of finding waiver. Id. at 141 (citing United States v. Williams Cos., 562 F.3d 387, 396 (D.C. Cir.

2009)).

DISCUSSION

As explained in more detail below, the Court will deny Claimant’s motion for a 

protective order concerning his PLR Request and any resulting PLR. First, the Court finds that 

Claimant’s PLR Request is properly viewed as attorney work product because it was prepared 

with an eye toward future tax litigation. Any resulting PLR, by contrast, would be drafted by the 

IRS and express the IRS’s views, not those of Claimant’s counsel, as to his tax liability. Thus, 

any PLR drafted as a result of Claimant’s PLR Request cannot enjoy work-product protection. 

Second, the Court finds that Claimant’s PLR Request is relevant to this case consistent with its 

prior orders regarding the importance of Claimant’s tax records to the instant litigation. Finally, 

the Court finds that although Claimant’s PLR Request constitutes work product because it was 

drafted with an eye toward litigation with the IRS, he also waived work-product protection for 

that same reason. The parties did not cite, and the Court cannot find, any case directly on point, 

but application of the general principles of waiver in this context demonstrates that Claimant’s 
12

disclosure of his PLR Request to the IRS waived whatever protection it would otherwise have 

enjoyed.

A. Anticipation of Litigation

The threshold question in assessing a work-product claim is whether the documents at 

issue were prepared in anticipation of litigation. Boehringer, 778 F.3d at 149. The Court finds 

that Claimant’s PLR Request meets this standard. Any resulting PLR, however, does not.

Claimant’s PLR Request was drafted by his counsel for the purpose of seeking a legal 

opinion from the IRS Office of Chief Counsel concerning the potential tax implications of 

certain transactions. While Claimant is not currently laboring under an IRS audit or other taxrelated suit, his PLR Request can reasonably be viewed as an attempt to discern the likelihood 

and magnitude of his future tax liability. As a result, the PLR Request was created with an eye 

toward foreseeable future litigation with the IRS. See In re Sealed Case, 146 F.3d at 884. This 

satisfies the broad “because of” test employed in this Circuit. See Boehringer, 778 F.3d at 149.3

As the court reasoned in Union Pacific Resource Group, Inc. v. Pennzoil Co., Misc. No. 

97-64 JJF, 1997 U.S. Dist. LEXIS 24216, at *26 (D. Del. Sept. 2, 1997), a PLR request is 

different from an attorney’s routine preparation of tax returns. Courts are generally reluctant to 

find that the tax returns must always be considered work product merely because of the “everpresent specter of an IRS challenge or audit.” Id. Conversely, “[w]hen one is seeking to obtain a 

private letter ruling, one is aware that the IRS may not grant that ruling. Therefore, litigation is 

more likely a possibility than in the context of filing a tax return.” Id. In other words, the party 

 3 Plaintiff believes, erroneously, that work-product protection can only cover the PLR Request if it was prepared “in 

anticipation of litigation with Plaintiff in this case.” Opp. at 18. The Court of Appeals has very recently reiterated 

the longstanding principle that “[a] document prepared as work product for one lawsuit will retain its protected 

status even in subsequent, unrelated litigation.” Boehringer, 778 F.3d at 149. Thus, the question has never been 

whether the document was prepared in anticipation of the instant litigation, only whether it was prepared in 

anticipation of any litigation. See id. 
13

seeking the PLR “would be vulnerable to a lawsuit if the IRS ruled against it” and would 

therefore attempt to “prepar[e] documents in a more defensive mode.” Id. at *27. As a result, a 

party drafting a PLR request normally has both a subjectively and objectively reasonable 

apprehension of potential future litigation with the IRS. Id.; see also United States v. Veolia 

Env’t N.A. Operations, Inc., Civ. No. 13–mc–03–LPS, 2013 WL 5779653, at *5 (D. Del. Oct. 

25, 2013) (finding that a party’s request for a private letter ruling was one indication that it 

anticipated litigation). The undersigned finds the analysis in Union Pacific sound. Claimant’s 

PLR Request therefore falls within the protection of the work-product doctrine.

Plaintiff’s cited cases are inapposite. Plaintiff argues that Claimant cannot meet the 

standard articulated by the D.C. Circuit in Coastal States, 617 F.2d at 865, which held that for 

work product protection to attach, “at the very least some articulable claim, likely to lead to 

litigation, must have arisen,” such that litigation was “fairly foreseeable at the time” the PLR 

Request was drafted. In that case, the Department of Energy initiated an internal auditing 

program to ensure compliance with relevant regulations. Id. at 858. The audits were performed 

as part of a routine procedure in which suspected violations of law were not a prerequisite. Id.

Agency regional counsel assisted in an audit by drafting memoranda in response to requests for 

advice from the auditors regarding the interpretation of applicable regulations. Id. at 859. In 

response to a FOIA request, the agency refused to produce these memoranda, claiming, among 

other things, that it was attorney work product. Id. at 865. The D.C. Circuit disagreed, finding 

that 

there is no indication in the [Vaughn] index or affidavits that there was even the 

dimmest expectation of litigation when these documents were drafted. The mere 

fact that many of the memoranda deal with specific factual situations is not 

sufficient; if an agency were entitled to withhold any document prepared by any 

person in the Government with a law degree simply because litigation might 

someday occur, the policies of the FOIA would be largely defeated. To argue that 
14

every audit is potentially the subject of litigation is to go too far. While abstractly 

true, the mere possibility is hardly tangible enough to support so broad a claim of 

privilege. We need not decide here whether litigation need be consciously 

contemplated by the attorney; the documents must at least have been prepared 

with a specific claim supported by concrete facts which would likely lead to 

litigation in mind, and that has not been demonstrated here.

Id. 

This case is far removed from the situation presented in Coastal States. Here, Claimant’s 

PLR Request was not prepared as part of a routine procedure in which suspected regulatory 

violations not required. Instead, Claimant submitted the PLR Request based on a specific 

concern he had about potential tax liability. That concern grew, at least in part, from the 

significant litigation in this matter over the disclosure of Claimant’s tax records and the

subsequent discovery of gaps in those records. As such, Claimant’s fear of litigation over tax 

liability was certainly foreseeable at the time he made the PLR Request. See Hertzberg, 273 F. 

Supp. 2d at 79–80 (finding litigation foreseeable when Forest Service noticed indications in news 

media that they were being blamed for recent property damage). In other words, by the time 

Claimant made the PLR Request, litigation over these issues was not a “mere possibility” that 

“might someday” come to pass. Coastal States, 617 F.2d at 865. As the PLR Request makes 

clear, Claimant raises “specific claim[s] supported by concrete facts which [would] likely lead to 

litigation,” and this is enough to satisfy the Coastal States standard. Id.4

 4 In any event, the Court of Appeals has since loosened the strict “specific claim” requirement articulated in Coastal 

States. See In re Sealed Case, 146 F.3d at 885. In In re Sealed Case, the D.C. Circuit found that the absence of a 

“specific claim” that counsel can point to as underpinning his work is not dispositive. Id. The presence or absence 

of a specific claim at the time a document is created is “just one factor that courts should consider” in assessing 

whether the document was created in anticipation of litigation. Id. Accordingly, even if the Court found that there 

was no specific and articulable claim Claimant’s counsel had in mind when drafting the PLR Request, that finding 

would not undermine the Court’s ultimate conclusion that, considering all the circumstances surrounding the 

document’s creation, it was created because of the prospect of litigation.
15

Although the PLR Request was created in anticipation of litigation, the result is different 

for any PLR the IRS drafts in response to the Request. At its core, the work-product doctrine 

protects from disclosure an attorney’s efforts to prepare his client’s case:

[I]t is essential that a lawyer work with a certain degree of privacy, free from 

unnecessary intrusion by opposing parties and their counsel. Proper preparation 

of a client’s case demands that he 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.

Hickman v. Taylor, 329 U.S. 495, 510–11 (1947). This purpose would not be served if the Court 

sealed off from Plaintiff the opinion and reasoning of the IRS in its PLR. That document, if it is 

ever created, would not be drafted by Claimant’s counsel or his representative. It therefore falls 

outside the scope of work-product protection as codified in Rule 26(b)(3). See Fed. R. Civ. P. 

26(b)(3) (protecting documents prepared for litigation “by or for another party or its 

representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or 

agent)”); see also In re Sealed Case, 676 F.2d at 818 (“Courts need not allow a claim of privilege 

when the party claiming the privilege seeks to use it in a way that is not consistent with the 

purpose of the privilege.”). Similarly, the United States Tax Court itself has held that PLRs are 

not work product because they “do not appear to have been prepared in anticipation of litigation, 

but rather as responses to taxpayers’ requests for the views of the Service with respect to 

contemplated transactions.” Teichgraeber v. Comm’r, 64 T.C. 453, 455 (1975).

Disclosure would also not intrude upon Claimant’s counsel’s mental impressions of the 

case. To the extent the IRS might set forth Claimant’s proffered facts and arguments in its 

ruling, the Court does not find that this would impermissibly reveal his attorneys’ mental 

impressions. See Millennium Marketing Grp., LLC v. United States, 253 F.R.D. 407, 410 (S.D. 

Tex. 2008) (rejecting taxpayer’s attempt to prohibit disclosure of the portions of a PLR which 
16

“explai[n] the factual and legal bases” for the IRS’s decision). Indeed, the same logic might be 

applied to prohibit disclosure of a court’s opinion simply because it discusses a party’s factual or 

legal arguments. That position is untenable. Accordingly, the Court finds that any PLR issued 

in response to Claimant’s PLR Request would not be prepared in anticipation of litigation. 

B. Relevance

Having determined that the PLR Request was created in anticipation of litigation, the 

Court must next decide whether Plaintiff has met its burden to show that the Request is relevant 

to the issues before the Court. There is no need to dwell on this issue for long. On November 3, 

2015, the undersigned overruled in part Claimant’s objections to two of Plaintiff’s requests for 

production which sought his tax records, including financial disclosures, tax returns, and other 

statements of income made to the government. United States v. All Assets Held at Bank Julius 

Baer & Co., Ltd., Civil Action No. 04–798 (PLF/GMH), 2015 WL 6736888, at *1–2 (D.D.C. 

2015). Claimant objected to these requests on several grounds, including that the requests sought 

irrelevant information and that the information sought was privileged under the tax code. Id. at 

*2. 

The Court largely rejected these arguments. Id. at *3. The Court concluded that 

Claimant’s tax records from 1992–1999 are relevant. Id. at *4. Citing an earlier ruling, the 

Court reasoned that “records relating to the source of Claimant’s assets and income during [the 

1992–1999] period lie ‘at the very heart of the government’s case.’” Id. (quoting United States 

v. All Assets Held at Bank Julius Baer & Co., Ltd., 309 F.R.D. 1, 15 (D.D.C. 2015), aff’d, 2016 

WL 1064435 (D.D.C. 2016)). Such records are relevant to showing: “(1) whether Claimant’s 

income during the period matches the quantum of assets he claims here; (2) whether Claimant 

can prove that his income sources were legitimate; and (3) whether Claimant failed to file tax 
17

returns at all, a fact which may support forfeiture of the defendant assets.” Id. (internal citations 

omitted).

Further, Claimant’s tax records from 2000–present are also relevant, but only for the 

limited purpose of discovering information relating to Claimant’s standing in this case. Id. at 

*4–5. For the 2000–present records, the Court limited production to “only those tax records[] 

filed by or on Claimant’s behalf or on behalf of any legal entity in which Claimant has an 

interest, which evidence an interest in, reflect income from, reflect income traceable to, or 

mention the defendant in rem assets.” Id. at *5. Finally, the Court found that neither the tax 

code nor any common-law doctrine related to tax records shielded Claimant’s records from 

disclosure. Id. at *6–8.

The same logic applies to the instant dispute. Claimant’s PLR Request contains 

information that is probative of Claimant’s interest in and relationship to the defendant in rem

assets. This document will inform Plaintiff’s position on Claimant’s standing in this matter. The 

information in the Request will also shape how Plaintiff argues the merits of Claimant’s claims 

because it will shed light on the sources of Claimant’s income and whether he filed tax returns as 

required. Accordingly, the Court finds that the information contained in the PLR Request is 

relevant to this case.

C. Waiver

Normally, the next questions in the work-product analysis are whether and to what extent 

the work product at issue is factual or opinion work product and whether Plaintiff has established 

sufficient need for discovering the work product. Boehringer, 778 F.3d at 151–52. The Court 

need not reach these questions, however, because a straightforward application of waiver
18

principles demonstrates that Claimant has waived any work-product protection his PLR Request 

might have enjoyed. 

First, the IRS is Claimant’s potential future adversary. Claimant’s own arguments reveal 

that the IRS is not merely a theoretical future adversary – rather, the IRS could sue Claimant on 

the very issues raised in the PLR Request if it believes he has unpaid tax liability. Deloitte, 610 

F.3d at 140. In other words, the IRS could be an adversary in precisely the sort of litigation 

contemplated in Claimant’s work product. Id. As such, his disclosure to the IRS, “‘under the 

circumstances, is inconsistent with the maintenance of secrecy from [his] adversary’” – i.e., the 

IRS. Id. (quoting Rockwell, 235 F.3d at 605). Claimant’s cited cases of Tronitech, Inc. v. NCR 

Corp., 108 F.R.D. 655, 655 (S.D. Ind. 1985), and United States v. Willis, 565 F. Supp. 1186, 

1190–91 (D. Iowa 1983), are inapt here because they dealt with documents and tax advice 

exchanged between a party and its counsel, not between a party and the IRS itself. 

For the same reason, Claimant’s PLR Request is distinguishable from cases like Deloitte. 

There, the D.C. Circuit concluded that the disclosure of documents by a corporation to an 

independent auditor does not waive work-product protection for those documents. Deloitte, 610 

F.3d at 139–41. The Court of Appeals reasoned that in preparing the documents for its auditor, 

the company “anticipated a dispute with the IRS, not a dispute with [the auditor].” Id. at 140. 

The D.C. Circuit saw the company’s “disclosure to its independent auditor, which is not a 

potential adversary in tax litigation” concerning the subject of the documents, as “wholly 

different” from disclosure to the IRS. Id.; see also Wells Fargo & Co. v. United States, No. 10–

57 (JRT/JJG), 2013 WL 2444639, at *40 (D. Minn. June 4, 2013) (finding that an independent 

auditor was not a conduit to a potential adversary – the government – because there was only “a 

remote possibility of disclosure” of the work product to the government). Here, Claimant’s
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disclosure was made to the IRS, the very entity with whom he anticipated litigation. A clearer 

case for waiver can scarcely be made.5

Second, contrary to Claimant’s view, the fact that his disclosure was made to the IRS 

Office of Chief Counsel supports rather than undermines his waiver. Nothing in the Revenue 

Procedure regarding letter rulings or section 6110 prohibits the sharing of PLR requests between 

IRS subdivisions. Thus, the Court is not persuaded by Claimant’s suggestion, unsupported by

any citation to direct authority, that a PLR request may not be shared with other IRS employees 

as needed. Indeed, the relevant Revenue Procedure expressly contemplates IRS field offices 

using a taxpayer’s factual and legal representations made in a PLR request to determine the 

taxpayer’s liability: 

When determining a taxpayer’s liability, the Field office must ascertain 

whether—

(1) the conclusions stated in the letter ruling are properly reflected in the return;

(2) the representations upon which the letter ruling was based reflect an accurate 

statement of the controlling facts;

(3) the transaction was carried out substantially as proposed; and

(4) there has been any change in the law that applies to the period during which 

the transaction or continuing series of transactions were consummated.

Rev. Proc. 2016-1 § 11.03, 2016 WL 20933. Furthermore, section 11.05 of the Revenue 

Procedure allows the IRS to revoke or modify a letter ruling retroactively if it finds that the 

ruling was based on misstatements or omissions of “controlling facts” by the taxpayer. Id. § 

11.05. These provisions therefore contemplate the sharing of a PLR request between branches of 

 5 Although Union Pacific and Veolia hold that seeking a PLR evidences anticipation of litigation, see supra Section 

A, neither held that a PLR request itself was subject to work-product protection. Instead, the parties in those cases 

argued over documents exchanged between the corporation and a third party which merely related to a PLR request 

made by the same corporation. See Veolia, 2013 WL 5779653, at *5–6; Union Pacific, 1997 U.S. Dist. LEXIS 

24216, at *4–5. Thus, those courts had no occasion to consider the novel issue currently before this Court.
20

the IRS as needed to help administer and enforce revenue laws. At a minimum, Claimant’s

disclosure substantially increased the likelihood that his work product would be disseminated in 

the IRS generally, thus robbing it of protection. See Costabile, 254 F.R.D. at 164–66.

Likewise, Claimant’s argument that some other division of the IRS, but not the Office of 

Chief Counsel, might sue him is incorrect. The IRS Office of Chief Counsel performs many 

functions, including the “administration and enforcement of the Internal Revenue laws” and 

“represent[ing] the IRS in litigation.” Internal Revenue Manual 1.1.6.1.1 (June 18, 2015), 

accessed at https://www.irs.gov/irm/part1/irm_01-001-006.html. Indeed, the Code of Federal 

Regulations provides that in proceedings against a taxpayer before the Tax Court, “the

Commissioner shall be represented by the Chief Counsel for the Internal Revenue Service.” 26 

C.F.R. § 301.7452–1. Thus, disclosure to the Office of Chief Counsel is at least a disclosure to a 

“conduit to an adversary.” Deloitte, 610 F.3d at 141.

Third, Claimant has no reasonable expectation that the Office of Chief Counsel will keep 

his PLR Request confidential beyond the extent required by section 6110. It is important to 

appreciate the unique circumstances present in the case of a PLR request: a taxpayer voluntarily 

disclosing information to the federal agency that enforces tax laws in order to receive tax 

guidance from the most knowledgeable source for such advice. When doing so, the taxpayer 

knows that he or she is courting danger by revealing information to the IRS, which may disagree 

with the views regarding tax liability expressed in the PLR request. That is the price to be paid 

for such advice. Deloitte, 610 F.3d at 141 (observing that waiver occurs when the disclosing 

party “has engaged in self-interested selective disclosure by revealing work product to some 

adversaries but not others”). 
21

In a related instance, the D.C. Circuit has held that disclosure of documents to the 

Securities and Exchange Commission as part of a voluntary disclosure program militates in favor 

of finding a waiver of work-product protection. In re Subpoena Duces Tecum, 738 F.2d 1367, 

1372 (D.C. Cir. 1984). The SEC’s program “‘promises wrongdoers more lenient treatment and 

the chance to avoid formal investigation and litigation in return for thorough self-investigation 

and complete disclosure of the results to the SEC.’” Id. at 1369 (quoting In re Sealed Case, 676 

F.2d at 801). The Court of Appeals found that “‘[w]hen a corporation elects to participate in a 

voluntary disclosure program like the SEC’s, it necessarily decides that the benefits of 

participation outweigh the benefits of confidentiality for all files necessary to a full evaluation of 

its disclosures. It foregoes some of the traditional protections of the adversary system in order to 

avoid some of the traditional burdens that accompany adversary resolution of disputes, especially 

disputes with such formidable adversaries as the SEC.’” Id. (quoting In re Sealed Case, 676 F.2d 

at 822–23). So too, here, Claimant voluntarily disclosed information to the IRS, his potential 

adversary, to receive guidance in an attempt to head off the risk of tax litigation. In forgoing the 

traditional adversarial process of litigation, he necessarily surrendered some of the protections 

that attach thereto.

The other factors identified in Deloitte support this result, too. Claimant and the IRS 

have no common ligation interest in the PLR Request – in fact, their interests are likely adverse. 

Deloitte, 610 F.3d at 141. Additionally, Claimant points to no “relatively strong and sufficiently 

unqualified” confidentiality agreement or similar arrangement between himself and the IRS. Id. 

In Deloitte, the Court of Appeals found it sufficient that the independent auditor was under a 

professional ethical obligation not to disclose its client’s information without consent. Id. at 142. 

Here, by contrast, Claimant proffers only the highly qualified protections of section 6110. That 
22

statute is a slender reed on which to rest his argument because it actually mandates disclosure of 

PLR requests except as to certain categories of information identified in the statute. See 26 

U.S.C. § 6110(a). Moreover, although the IRS must redact certain information at a taxpayer’s 

request, it can refuse to make redactions not consistent with the statute. See id. § 6110(f). And 

the IRS’s mere promise in section 6110(f) to give Claimant notice before releasing his PLR 

Request “does not support a reasonable expectation of confidentiality.” Deloitte, 610 F.3d at 

141.

Because Claimant has not shown that his voluntary disclosure of the PLR Request to the 

IRS did not waive his work-product claim, the Court finds that he has waived any work-product 

protection the PLR Request might have enjoyed.6

CONCLUSION

Wherefore, for the foregoing reasons, Claimant’s Motion for Protective Order [Dkt. 561]

is DENIED.

7

 An Order consistent with this Memorandum Opinion will be filed 

contemporaneously herewith.

Date: June 3, 2016 ___________________________________

G. MICHAEL HARVEY

UNITED STATES MAGISTRATE JUDGE

 6 Because the matter can be disposed of on other grounds, the Court need not address Plaintiff’s separate argument 

that Claimant waived work-product protection by previously offering to disclose the PLR Request to Plaintiff. Opp. 

at 14–15.

7 Although the Court finds that Claimant’s PLR Request is not protected by the work-product doctrine, because it 

contains financial information he may produce it subject to the protective order in this case. Further, he may redact

his address and telephone number.