Attorney-client privilege does not protect communications made for valuation services rather than legal advice, and the work-product doctrine does not apply to documents prepared for tax compliance.
The IRS issued a summons to an appraiser for a work file related to a conservation easement valuation. The district court quashed the summons, finding it was issued in bad faith and that the file was protected by the attorney-client privilege and work-product doctrine. The Ninth Circuit held that the summons was issued in good faith because the taxpayers' liability had not been finally determined. The court further held that the attorney-client privilege does not protect the appraisal work file because the communications were made for valuation services rather than legal advice. Additionally, the work-product doctrine does not apply because the documents were prepared for tax return compliance rather than in anticipation of litigation. The court reversed and remanded for an in camera examination to identify any specific privileged communications.
At page 566 Protecting confidential communications under attorney-client privilege74 citing cases“the attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.”
- Littlejohn, No. 3:23-cv-06194 (W.D. Wash. Dec. 23, 2025).(The attorney-client 6 privilege protects confidential communications between attorneys and clients, which are made 7 for the purpose of giving legal advice.)
- J.M. v. Major, No. 6:18-cv-00739 (D. Or. Apr. 26, 2022).(The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.)
- Ward v. Commscope, Inc., No. 3:21-cv-00370 (S.D. Cal. Apr. 6, 2021). (The party asserting the attorney-client 4 privilege has the burden of establishing the relationship and privileged nature of the 5 communication.)
- Briggs v. Adel, No. 2:18-cv-02684 (D. Ariz. Mar. 30, 2021). (Voluntary disclosure of privileged communications constitutes 4 waiver of the privilege for all other communications on the same subject.)
- Schmuckley v. Rite Aid Corp., No. 2:12-cv-01699 (E.D. Cal. Mar. 30, 2021).(The attorney-client privilege may extend to 24 communications with third parties who have been engaged to assist the attorney in providing 25 legal advice. If the advice sought is not legal advice, but, for example, ac…)
- Kleiman v. Wright, No. 2:20-cv-00593 (W.D. Wash. May 13, 2020). ([t]he attorney-client privilege may extend to communications with third 6 parties who have been engaged to assist the attorney in providing legal advice)
- In re Hotels Nevada, LLC, 458 B.R. 560 (Bankr. D. Nev. 2011).published (The attorney-=elient privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.)
- Hi, Inc. v. Zeetogroup, LLC, No. 3:22-cv-01440 (S.D. Cal. Nov. 29, 2022).“the party asserting the attorney-client privilege has the 14 burden of establishing the relationship and privileged nature of the 15 communication.”
- Signorelli, No. 2:26-cv-00358 (D. Ariz. Sept. 15, 2026).Id.; United States v. Richey, 9 632 F.3d 559, 566 (9th Cir. 2011).
- May, No. 4:26-cv-00042 (D. Idaho Aug. 24, 2026).“The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice.” U.S. v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (emphasis added).
Show 64 more citing cases
- Gamon, No. 3:23-cv-00216 (D. Or. Mar. 3, 2026).In general, “‘[t]he attorney-client privilege may extend to communications with third parties who have been engaged to assist the attorney in providing legal advice,’ as well as to communications with third parties ‘acting as agent’ of the…
- Trauscht v. Villa Lafayette Assocs. Inc., No. 2:24-cv-01430 (D. Ariz. Oct. 2, 2025).Cal. 2002). 4 Attorney-client privilege “protects confidential communications between attorneys 5 and clients, which are made for the purpose of giving legal advice.” United States v. 6 Richey, 632 F.3d 559, 566 (9th Cir. 2011).
- Pessano v. Blue Cross of California, No. 1:24-cv-01189 (E.D. Cal. May 8, 2025).Id. 12 United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). 13 Upon review of the communications at issue, the Court concludes that they fall within the 14 attorney-client privilege, and thus it will permit unredacted copies of the…
- Hipschman v. Cnty. of San Diego, No. 3:22-cv-00903 (S.D. Cal. Apr. 28, 2025).The Magistrate 21 Judge cited and applied the correct standards for analyzing each claim of privilege and 22 relied on appropriate evidence and case law to support its denial of Plaintiffs’ motions. 23 1) Attorney-Client Privilege 24 “The…
- In re California Bail Bond Antitrust Litig., 778 F. Supp. 3d 1051 (N.D. Cal. 2025).publishedR. 9 Evid. 501, Advisory Committee Notes (“In nondiversity jurisdiction civil cases, federal privilege 10 law will generally apply.”). 11 The attorney-client privilege protects from discovery “confidential communications 12 between attorne…
- In re California Bail Bond Antitrust Litig., No. 4:19-cv-00717 (N.D. Cal. Mar. 11, 2025).R. 7 Evid. 501, Advisory Committee Notes (“In nondiversity jurisdiction civil cases, federal privilege 8 law will generally apply.”). 9 The attorney-client privilege protects from discovery “confidential communications 10 between attorneys…
- Meyer v. Cnty. of San Diego, No. 3:21-cv-00341 (S.D. Cal. Mar. 11, 2025). “To qualify for work- 13 product protection, documents must: (1) be ‘prepared in anticipation of litigation or trial’ and 14 (2) be prepared ‘by or for another party or by or for that other party's representative.’ ” Richey, 15 632 F.3d at…
- Hatfield v. Bonneville Cnty., No. 4:23-cv-00213 (D. Idaho Jan. 31, 2025).While this privilege “may extend to communications with third parties who have been engaged to assist the attorney in providing legal advice[, i]f the advice sought is not legal advice…then the privilege does not exist.” United States v. R…
- Hipschman v. Cnty. of San Diego, No. 3:22-cv-00903 (S.D. Cal. Dec. 11, 2024). “To qualify for work-product protection, 20 documents must: (1) be ‘prepared in anticipation of litigation or trial’ and (2) be prepared ‘by or 21 for another party or by or for that other party’s representative.’” Richey, 632 F.3d at 567…
- Hathaway v. Jefferson Cnty., No. 4:23-cv-00254 (D. Idaho Dec. 2, 2024).While this privilege “may extend to communications with third parties who have been engaged to assist the attorney in providing legal advice[, i]f the advice sought is not legal advice . . . then the privilege does not exist.” United State…
- Garner v. Amazon.com Inc, No. 2:21-cv-00750 (W.D. Wash. Sept. 23, 2024).Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); United States v. 26 Richey, 632 F.3d 559, 566 (9th Cir. 2011).
- Hiatt v. Sun City Festival Cmty. Ass'n, No. 2:23-cv-00552 (D. Ariz. July 1, 2024). (quotations and citations 19 omitted)
- Walker v. AIU Ins. Co., No. 2:23-cv-01641 (D. Ariz. June 5, 2024).Id.; United States v. Richey, 26 632 F.3d 559, 566 (9th Cir. 2011).
- Roblox Corp. v. WowWee Grp. Ltd., No. 3:22-cv-04476 (N.D. Cal. Apr. 5, 2024). “Ms. Arellano was responsible for creating early iterations of 15 the My Avastars fashion dolls, which necessarily included both creating design material relating to 16 those iterations for legal review and implementing legal feedback on t…
- Roblox Corp. v. WowWee Grp. Ltd., No. 3:22-cv-04476 (N.D. Cal. Feb. 27, 2024).No. 185 at 2. 20 WowWee indicates that it “conducted a reasonable investigation and determined that Mr. Wong and 21 Mr. Ng were acting as agents of Francis Choi, who is part owner [of] WowWee Hong Kong, at the 22 relevant time and received…
- Odom v. Microsoft Corp., 429 F. App'x 967 (Fed. Cir. 2011).unpublished
- United States v. Michael Chen, 564 F. App'x 898 (9th Cir. 2014).unpublished
- Larry Brown v. Bank of Am., 660 F. App'x 506 (9th Cir. 2016).unpublished
- United States v. Sanmina Corp., 968 F.3d 1107 (9th Cir. 2020).published
- CP Salmon Corp. v. Pritzker, 238 F. Supp. 3d 1165 (D. Alaska 2017).published
- Freedom of the Press Found. v. United States Dep't of Just., 241 F. Supp. 3d 986 (N.D. Cal. 2017).published
- Larmanger v. Kaiser Found. Health Plan, 805 F. Supp. 2d 1050 (D. Or. 2011).published
- United States v. Salyer, 853 F. Supp. 2d 1014 (E.D. Cal. 2012).published
- Rogers v. Giurbino, 288 F.R.D. 469 (S.D. Cal. 2012).published
- Phillips v. C.R. Bard, Inc., 290 F.R.D. 615 (D. Nev. 2013).published
- Anderson v. Marsh, 312 F.R.D. 584 (E.D. Cal. 2015).published
- Jones v. Hernandez, 322 F.R.D. 411 (S.D. Cal. 2017).published
- Samson Tug & Barge Co. v. Int'l Longshore & Warehouse Union, No. 3:20-cv-00108 (D. Alaska June 29, 2023).
- Jett v. Maricopa, Cnty. of, No. 2:19-cv-02735 (D. Ariz. Nov. 25, 2019).
- Discovery Land Co. v. Berkley Ins. Co., No. 2:20-cv-01541 (D. Ariz. Jan. 21, 2022).
- Sweet v. Mesa, City of, No. 2:17-cv-00152 (D. Ariz. Feb. 3, 2022).
- Laurino v. United States Postal Serv., No. 1:18-cv-00636 (E.D. Cal. Dec. 2, 2019).
- Chaudhry v. Smith, No. 1:16-cv-01243 (E.D. Cal. Dec. 7, 2020).
- Sanchez v. Cnty. of Sacramento, No. 2:19-cv-01545 (E.D. Cal. June 4, 2021).
- Labbe' v. Dometic Corp., No. 2:20-cv-01975 (E.D. Cal. Sept. 1, 2023).
- Labbe' v. Dometic Corp., No. 2:20-cv-01975 (E.D. Cal. Jan. 29, 2024).
- Uniloc USA, Inc. v. Apple Inc., No. 3:18-cv-00358 (N.D. Cal. Oct. 9, 2020).
- Eugene Scalia v. Int'l Longshore & Warehouse Union, No. 4:19-cv-02103 (N.D. Cal. Nov. 18, 2020).
- Ecological Rights Found. v. United States Env't Prot. Agency, No. 4:18-cv-00394 (N.D. Cal. June 3, 2021).
- Wisk Aero LLC v. Archer Aviation Inc., No. 3:21-cv-02450 (N.D. Cal. June 14, 2023).
- Boston Ret. Sys. v. Uber Tech., Inc., No. 3:19-cv-06361 (N.D. Cal. Jan. 11, 2024).
- Roblox Corp. v. WowWee Grp. Ltd., No. 3:22-cv-04476 (N.D. Cal. Jan. 16, 2024).
- EpicentRx, Inc. v. Carter, No. 3:20-cv-01058 (S.D. Cal. Oct. 20, 2020).
- Advantus, Corp. v. Sandpiper of California, Inc., No. 3:19-cv-01892 (S.D. Cal. Oct. 26, 2020).
- Al Otro Lado, Inc. v. McAleenan, No. 3:17-cv-02366 (S.D. Cal. Nov. 2, 2020).
- Taction Tech., Inc. v. Apple Inc., No. 3:21-cv-00812 (S.D. Cal. July 20, 2023).
- Aroeste v. United States, 687 F. Supp. 3d 1011 (S.D. Cal. 2023).published
- Vena v. Moore, Schulman & Moore, APC, No. 3:22-cv-00437 (S.D. Cal. Oct. 12, 2023).
- Meyer v. Cnty. of San Diego, No. 3:21-cv-00341, 2024 WL 86603 (S.D. Cal. Jan. 8, 2024).
- Pollock v. Nationwide Mut. Ins. Co., 549 F. Supp. 3d 1202 (D. Idaho 2021).published
- Mark R. Kiesel Living Trust v. Hyde, No. 9:22-cv-00109 (D. Mont. May 16, 2023).
- Ozgur v. Daimler Trucks North Am. LLC, No. 3:19-cv-00432 (D. Or. May 18, 2020).
- Berryhill v. Bonneville Power Admin., 509 F. Supp. 3d 1288 (D. Or. 2020).published
- K.F v. Baker Sch. Dist. 5J, No. 2:20-cv-00693 (D. Or. Mar. 8, 2021).
- Vashisht-Rota v. Harrisburg Univ., No. 3:20-cv-00967 (S.D. Cal. Sept. 10, 2024).
- Shreves v. Frontier Rail Corp., No. 1:19-cv-03012 (E.D. Wash. Mar. 23, 2021).
- Pickett v. Liberty Mut. Ins. Co., No. 2:20-cv-00426 (E.D. Wash. Aug. 11, 2021).
- Dodge v. Evergreen Sch. Dist., No. 3:20-cv-05224 (W.D. Wash. Nov. 23, 2020).
- Allstate Indem. Co. v. Lindquist, No. 2:20-cv-01508 (W.D. Wash. Jan. 31, 2022).
- Allstate Indem. Co. v. Lindquist, No. 2:20-cv-01508 (W.D. Wash. Feb. 9, 2022).
- Arestad v. Liberty Mut. Fire Ins. Co., No. 2:22-cv-00175 (W.D. Wash. Dec. 21, 2022).
- United States v. Yakima Prods. Inc, No. 2:21-cv-00524 (W.D. Wash. Jan. 30, 2024).
- Justino Rupard v. Cnty. of San Diego, No. 3:23-cv-01357 (S.D. Cal. Feb. 5, 2025).
- Ryan Six v. Iq Data Int'l, Inc., No. 23-15887 (9th Cir. Feb. 24, 2025).unpublished
At page 567 Determining work-product protection for IRS appraisal documentation65 citing casesThe work-product doctrine's protections are waivable.
- Anstead v. Virginia Mason Med. Ctr., No. 2:21-cv-00447 (W.D. Wash. Mar. 16, 2023).(The work-product doctrine’s privileges are 19 waivable.)
- Dentists Ins. Co. v. Yousefian, No. 2:20-cv-01076 (W.D. Wash. Dec. 21, 2022).(The work-product doctrine's protections are waivable.)
- McKenzie Law Firm, P.A. v. Ruby Receptionists, Inc., No. 3:18-cv-01921 (D. Or. Dec. 16, 2019). (The work-product doctrine’s protections are waivable.)
- Pheiffer, No. 1:22-cv-01412 (E.D. Cal. June 4, 2026).Civ. P. 26(b)(3)(A). 22 “To qualify for work product protection, documents must: (1) be ‘prepared in anticipation of 23 litigation or for trial’ and (2) be prepared ‘by or for another party or for that other party's representative.’” Unite…
- Champine, No. 1:23-cv-00338 (D. Idaho Feb. 11, 2026).Legal Standard The work product doctrine protects “from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” U.S. v. Richey, 632 F.3d 559, 567 (9th Cir. 2011).
- Wilmuth, No. 2:23-cv-01774 (W.D. Wash. Oct. 31, 2025).Cal. 2014) (quoting United States v. Richey, 632 F.3d 559, 567 (9th Cir. 23 2011)).
- Howington v. Taiwan Semiconductor Mfg. Co., No. 5:24-cv-05684 (N.D. Cal. Sept. 8, 2025).United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2 2011).
- (PS) Schmitz v. Asman, No. 2:20-cv-00195 (E.D. Cal. May 14, 2025). “To qualify for work-product protection, documents must: 8 (1) be prepared in anticipation of litigation or for trial and (2) be prepared by or for another party 9 or by or for that other party’s representative.” United States v. Richey, 6…
- AbCellera Biologics Inc. v. Bruker Cellular Analysis, Inc., No. 4:20-cv-08624 (N.D. Cal. May 8, 2025).P. 19 26(b)(3); United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020) (citation omitted). 20 “To qualify for work-product protection, documents must: (1) be prepared in anticipation of 21 litigation or for trial and (2) be pr…
- Gross v. Scottsdale Ins. Co., No. 5:24-cv-02069 (N.D. Cal. Apr. 15, 2025).“To qualify for work-product protection, documents must: (1) be prepared in 4 anticipation of litigation or for trial and (2) be prepared by or for another party or by or for that 5 other party’s representative.” United States v. Richey, 6…
Show 55 more citing cases
- Entangled Media, LLC v. Dropbox, Inc., No. 5:23-cv-03264 (N.D. Cal. Apr. 8, 2025).Civ. P. 4 26(b)(3); United States v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020) (citation omitted). 5 “To qualify for work-product protection, documents must: (1) be prepared in anticipation of 6 litigation or for trial and (2) be…
- Epidemic Sound, AB v. Meta Platforms, Inc., No. 3:22-cv-04223 (N.D. Cal. Mar. 27, 2025).(quotation 3 marks omitted)
- Meyer v. Cnty. of San Diego, No. 3:21-cv-00341 (S.D. Cal. Mar. 11, 2025). “To qualify for work- 13 product protection, documents must: (1) be ‘prepared in anticipation of litigation or trial’ and 14 (2) be prepared ‘by or for another party or by or for that other party's representative”
- Hipschman v. Cnty. of San Diego, No. 3:22-cv-00903 (S.D. Cal. Dec. 11, 2024). (citation 22 omitted)
- Abhyanker v. United States Pat. & Trademark Off., No. 3:23-cv-00746 (N.D. Cal. Aug. 19, 2024).Work Product 13 “To qualify for work-product protection, documents must: (1) be ‘prepared in anticipation 14 of litigation or for trial’ and (2) be prepared ‘by or for another party or by or for that other party’s 15 representative.’” Unit…
- Hiatt v. Sun City Festival Cmty. Ass'n, No. 2:23-cv-00552 (D. Ariz. July 1, 2024). United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (quotations and citations 19 omitted).
- Misuraca v. Washington Cnty. Det. Ctr./Jail, No. 3:21-cv-00846 (D. Or. June 28, 2024).(explaining the work-product doctrine)
- Resh, Inc v. Skimlite Mfg. Inc, No. 5:22-cv-01427 (N.D. Cal. Mar. 4, 2024).Cir. 2017) (citing 16 United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011)); see also Fed.
- B&G Foods North Am., Inc. v. Embry, No. 2:20-cv-00526 (E.D. Cal. Mar. 4, 2024).In applying the “because of” standard, courts must consider the totality of the 23 circumstances and determine whether the “‘document was created because of anticipated litigation, and would not have been created in 24 substantially simila…
- Garrett Zelen v. United States, 661 F. App'x 499 (9th Cir. 2016).unpublished
- Phillips v. C.R. Bard, Inc., 290 F.R.D. 615 (D. Nev. 2013).published
- Chaudhry v. Smith, No. 1:16-cv-01243 (E.D. Cal. Dec. 7, 2020).
- Eugene Scalia v. Int'l Longshore & Warehouse Union, No. 4:19-cv-02103 (N.D. Cal. Nov. 18, 2020).
- Wisk Aero LLC v. Archer Aviation Inc., No. 3:21-cv-02450 (N.D. Cal. June 14, 2023).
- Meyer v. Cnty. of San Diego, No. 3:21-cv-00341, 2024 WL 86603 (S.D. Cal. Jan. 8, 2024).
- Mark R. Kiesel Living Trust v. Hyde, No. 9:22-cv-00109 (D. Mont. May 16, 2023).
- Anastasi v. Fid. Nat'l Title Ins. Co.., 366 P.3d 160 (Haw. 2016).published
- Waymo LLC v. Uber Tech., Inc., 870 F.3d 1350 (Fed. Cir. 2017).published
- Anastasi v. Fid. Nat'l Title Ins. Co., 341 P.3d 1200 (Haw. App. 2014).published
- Schoenmann ex rel. Est. of UCBH Holdings, Inc. v. Fed. Deposit Ins., 7 F. Supp. 3d 1009 (N.D. Cal. 2014).published
- Riverkeeper v. U.S. Army Corps of Engineers, 38 F. Supp. 3d 1207 (D. Or. 2014).published
- Phoenix Tech. Ltd. v. VMware, Inc., 195 F. Supp. 3d 1096 (N.D. Cal. 2016).published
- LightGuard Sys., Inc. v. Spot Devices, Inc., 281 F.R.D. 593 (D. Nev. 2012).published
- Schreib v. Am. Fam. Mut. Ins., 304 F.R.D. 282 (W.D. Wash. 2014).published
- Skyline Wesleyan Church v. California Dep't of Managed Health Care, 322 F.R.D. 571 (S.D. Cal. 2017).published
- Lois O Brien v. Ray Exley, No. 2:22-cv-02256 (C.D. Cal. June 21, 2022).
- Roberts v. City of Fairbanks, No. 4:17-cv-00034, 2022 WL 889401 (D. Alaska Mar. 25, 2022).
- United Specialty Ins. Co. v. Dorn Homes Inc., No. 3:18-cv-08092 (D. Ariz. Jan. 28, 2020).
- Evanston Ins. Co. v. Murphy, No. 2:19-cv-04954 (D. Ariz. Oct. 13, 2020).
- Evanston Ins. Co. v. Murphy, No. 2:19-cv-04954 (D. Ariz. Nov. 23, 2020).
- Sweidy v. Spring Ridge Academy, No. 3:21-cv-08013 (D. Ariz. Jan. 10, 2023).
- Ahmer Bilal, Inc. v. Nationwide Ins. Co. of Am., No. 2:20-cv-00788 (E.D. Cal. Dec. 30, 2022).
- (PS) Schmitz v. Asman, No. 2:20-cv-00195 (E.D. Cal. Apr. 8, 2024).
- ESC-Toy Ltd. v. Sony Interactive Ent. LLC, No. 3:21-cv-00778 (N.D. Cal. Jan. 30, 2023).
- Boston Ret. Sys. v. Uber Tech., Inc., No. 3:19-cv-06361 (N.D. Cal. Feb. 16, 2024).
- Resh, Inc v. Skimlite Mfg. Inc, No. 5:22-cv-01427 (N.D. Cal. Feb. 23, 2024).
- Dennis v. Good Deal Charlie, Inc., No. 3:21-cv-01760 (S.D. Cal. Jan. 6, 2022).
- Orthopaedic Hosp. v. DJO Global, Inc., No. 3:19-cv-00970 (S.D. Cal. Jan. 27, 2022).
- Taction Tech., Inc. v. Apple Inc., No. 3:21-cv-00812 (S.D. Cal. July 18, 2023).
- Woirhaye v. Vitamin Cottage Nat. Foods Markets, Inc., No. 9:22-cv-00200 (D. Mont. Apr. 6, 2023).
- Pfeifle v. Portland Terminal R.R. Co., No. 3:19-cv-01436 (D. Or. Jan. 18, 2022).
- Andrade-Tafolla v. United States, No. 3:20-cv-01361 (D. Or. Mar. 17, 2022).
- Schwartzer v. Pisanelli Bice, PLLC, No. 22-01049 (Bankr. D. Nev. Oct. 20, 2023).
- Sec. Nat'l Ins. Co. v. Constr. Assocs. of Spokane Inc, No. 2:20-cv-00167 (E.D. Wash. May 6, 2021).
- Yohannes v. Olympic Collection Inc (OCI), No. 2:17-cv-00509 (W.D. Wash. Aug. 22, 2019).
- United States v. Microsoft Corp., No. 2:15-cv-00102 (W.D. Wash. Jan. 17, 2020).
- Olson v. First Nat'l Ins. Co. of Am., No. 2:19-cv-00322 (W.D. Wash. Feb. 3, 2020).
- Kleinsasser v. Progressive Direct Ins. Co., No. 3:17-cv-05499 (W.D. Wash. Jan. 14, 2021).
- Allstate Indem. Co. v. Lindquist, No. 2:20-cv-01508 (W.D. Wash. July 15, 2021).
- Swinerton Builders v. Lexington Ins. Co., No. 2:21-cv-00259 (W.D. Wash. May 26, 2022).
- Ocean Beauty Seafoods LLC v. Captain Alaska, No. 3:19-cv-06173 (W.D. Wash. Oct. 28, 2022).
- Valley Forge Ins. Co. v. Washington Square Hotel Holdings, LLC, No. 2:21-cv-00847 (W.D. Wash. Dec. 1, 2022).
- Valley Forge Ins. Co. v. Washington Square Hotel Holdings, LLC, No. 2:21-cv-00847 (W.D. Wash. Dec. 15, 2022).
- Sec. & Exch. Comm'n v. Prakash, No. 5:23-cv-03300 (N.D. Cal. Mar. 7, 2025).
- Ford v. Jurgens, 2021 NCBC 64 (N.C. Bus. Ct. 2021).published
At page 568 Determining work-product protection for dual purpose documents28 citing cases“dual purpose documents are deemed prepared because of litigation if 'in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.”
- 4web, Inc v. Nuvasive, Inc., No. 3:24-cv-01021 (S.D. Cal. Nov. 14, 2025).“what is vital to the 9 privilege is that the communication be made in confidence for the purpose of obtaining 10 legal advice from the lawyer.”
- (PS) Schmitz v. Asman, No. 2:20-cv-00195 (E.D. Cal. May 14, 2025). “To qualify for work-product protection, documents must: 8 (1) be prepared in anticipation of litigation or for trial and (2) be prepared by or for another party 9 or by or for that other party’s representative.” United States v. Richey, 6…
- Morrill v. Lakeview Loan Servicing, LLC, No. 1:22-cv-20955 (S.D. Fla. Mar. 27, 2025).In applying that test in a case analogous to this one, the Ninth Circuit held in United States v. Richey that the dual purpose test did not protect a tax appraiser’s work file that was generated, at the direction of counsel, to provide val…
- Frame-Wilson v. Amazon.com Inc, No. 2:20-cv-00424 (W.D. Wash. Mar. 25, 2025).“the document can 11 be fairly said to have been prepared or obtained because of the prospect of litigation”
- Anderson v. Marsh, 312 F.R.D. 584 (E.D. Cal. 2015).published
- Eugene Scalia v. Int'l Longshore & Warehouse Union, No. 4:19-cv-02103 (N.D. Cal. Nov. 18, 2020).
- Taction Tech., Inc. v. Apple Inc., No. 3:21-cv-00812 (S.D. Cal. July 20, 2023).
- Waymo LLC v. Uber Tech., Inc., 870 F.3d 1350 (Fed. Cir. 2017).published
- Anastasi v. Fid. Nat'l Title Ins. Co., 341 P.3d 1200 (Haw. App. 2014).published
- Phoenix Tech. Ltd. v. VMware, Inc., 195 F. Supp. 3d 1096 (N.D. Cal. 2016).published
Show 18 more citing cases
- Schreib v. Am. Fam. Mut. Ins., 304 F.R.D. 282 (W.D. Wash. 2014).published
- ESC-Toy Ltd. v. Sony Interactive Ent. LLC, No. 3:21-cv-00778 (N.D. Cal. Jan. 30, 2023).
- Boston Ret. Sys. v. Uber Tech., Inc., No. 3:19-cv-06361 (N.D. Cal. Feb. 16, 2024).
- Andrade-Tafolla v. United States, No. 3:20-cv-01361 (D. Or. Mar. 17, 2022).
- United States v. Sanmina Corp., 707 F. App'x 865 (9th Cir. 2017).unpublished
- Pearson v. Arizona, State of, No. 2:20-cv-00237 (D. Ariz. Sept. 16, 2020).
- Gawel v. Radius Health, Inc., No. 3:20-cv-01744 (S.D. Cal. Aug. 26, 2021).
- Gamble v. State Farm Mut. Auto. Ins. Co., No. 3:19-cv-05956, 2020 WL 4193217 (W.D. Wash. July 21, 2020).
- Kesler v. Puget Sound & Pac. R.R., No. 3:20-cv-06075 (W.D. Wash. Aug. 4, 2021).
- Grayless v. Allstate Ins. Co, No. 3:21-cv-05492 (W.D. Wash. Dec. 16, 2021).
- Becker v. Tig Ins. Co., No. 3:21-cv-05185 (W.D. Wash. Aug. 17, 2022).
- Leyva v. Allstate Fire & Cas. Ins. Co., No. 2:21-cv-00987 (W.D. Wash. Oct. 11, 2022).
- Contreraz v. City of Tacoma, No. 3:22-cv-05106 (W.D. Wash. June 26, 2023).
- Fetchero v. Amica Mut. Ins. Co., No. 2:22-cv-00400 (W.D. Wash. Sept. 20, 2023).
- Leonard v. McMenamins Inc, No. 2:22-cv-00094 (W.D. Wash. Dec. 6, 2023).
- In re Premera Blue Cross Customer Data Sec. Breach Litig., 296 F. Supp. 3d 1230 (D. Or. 2017).published
- Roy v. Gov't Employees Ins. Co., 524 P.3d 1249 (Haw. App. 2023).published
- Elad Gross v. Eric Schmitt, 709 S.W.3d 347 (Mo. Ct. App. 2025).published
At page 563 Reviewing privilege claims in IRS summons enforcement17 citing casesWe review de novo the district court's rulings on the scope of the attorney-client privilege.
- Las Vegas Sands v. Eighth Jud. Dist. Ct., 2014 NV 69 (Nev. 2014).published (We review de novo the district court's rulings on the scope of the attorney-client privilege.)
- Steeves v. United States, No. 24-7086 (9th Cir. Jan. 23, 2026).unpublished App. P. 34(a)(2). jurisdiction under Federal Rule of Civil Procedure 12(b)(1), Viewtech, Inc. v. United States, 653 F.3d 1102, 1103-04 (9th Cir. 2011), abrogated on other grounds by Polselli v. IRS, 598 U.S. 432 (2023), and for clear error…
- Frankie Greer v. Cnty. of San Diego, 127 F.4th 1216 (9th Cir. 2025).published In In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021), we wrote that the question whether the attorney-client privilege applies to specific documents represents “a mixed question of law and fact which this court reviews independently and with…
- In re Grand Jury Subpoena, Dated July 21, 2023, 127 F.4th 139 (9th Cir. 2025).publishedWe review de novo the “application of the Fifth Amendment privilege against self-incrimination,” United States v. Bright, 596 F.3d 683, 690 (9th Cir. 2010), as well as “rulings on the scope of the attorney-client privilege,” United States…
- United States v. Gonzalez, 669 F.3d 974 (9th Cir. 2012).published
- Meritage Homes of Nevada, Inc. v. Fed. Deposit Ins., 753 F.3d 819 (9th Cir. 2014).published
- United States v. Michael Quiel, 595 F. App'x 692 (9th Cir. 2014).unpublished
- Federico Murillo v. Servicios Agricolas Mex, 592 F. App'x 613 (9th Cir. 2015).unpublished
- John Ramirez v. United States, 604 F. App'x 556 (9th Cir. 2015).unpublished
- Garrett Zelen v. United States, 661 F. App'x 499 (9th Cir. 2016).unpublished
Show 7 more citing cases
- United States v. James Witt, 678 F. App'x 587 (9th Cir. 2017).unpublished
- Mustafa Ozgur v. Dtna, No. 20-35920 (9th Cir. Oct. 13, 2021).unpublished
- In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021).published
- In re Grand Jury, No. 21-55085 (9th Cir. Jan. 27, 2022).published
- Ramirez v. United States, 604 F. App'x 567 (9th Cir. 2015).unpublished
- United States v. Frank Agrama, No. 22-55447 (9th Cir. July 12, 2023).unpublished
- Mollica v. Cnty. of Sacramento, No. 2:19-cv-02017 (E.D. Cal. Feb. 2, 2022).
At page 564 Establishing prima facie case for IRS summons enforcement9 citing casesa taxpayer has a heavy burden to show an abuse of process or lack of good faith once the IRS makes a prima facie showing that a summons was issued for a legitimate . purpose
- Steeves v. United States, No. 24-7086 (9th Cir. Jan. 23, 2026).unpublished App. P. 34(a)(2). jurisdiction under Federal Rule of Civil Procedure 12(b)(1), Viewtech, Inc. v. United States, 653 F.3d 1102, 1103-04 (9th Cir. 2011), abrogated on other grounds by Polselli v. IRS, 598 U.S. 432 (2023), and for clear error…
- Meritage Homes of Nevada, Inc. v. Fed. Deposit Ins., 753 F.3d 819 (9th Cir. 2014).published
- John Ramirez v. United States, 604 F. App'x 556 (9th Cir. 2015).unpublished
- Ramirez v. United States, 604 F. App'x 567 (9th Cir. 2015).unpublished
- United States v. Wen-Bing Soong, 650 F. App'x 425 (9th Cir. 2016).unpublished
- Keith Ngo v. United States, 699 F. App'x 617 (9th Cir. 2017).unpublished
- In re Grand Jury Investigation, No. 18-50119 (9th Cir. Dec. 20, 2018).unpublished
- Gangi v. United States, 2 F. Supp. 3d 12 (D. Mass. 2014).published
- United States v. Vaught, No. 1:18-cv-00452, 2021 WL 3639414 (D. Idaho Aug. 16, 2021).
At page 565 Substantial compliance with service requirements and good faith3 citing casescourt found, Richey had actual notice of the summons, there was no prejudice to the Taxpayers who timely intervened, and the Government acted in good faith…
- Beaver, No. 2:25-cv-00454 (W.D. Wash. Nov. 25, 2025).And while the United States argues that 12 the Court should still find that it substantially complied with the title 26 service requirements, Dkt. 13 No. 20 at 12, the Court can only do so where “the IRS acted in good faith and there is no…
- Jewell v. United States, 749 F.3d 1295 (10th Cir. 2014).published
At page 562 cited at this page1 citing case
- Morrill v. Lakeview Loan Servicing, LLC, No. 1:22-cv-20955 (S.D. Fla. Mar. 27, 2025).In applying that test in a case analogous to this one, the Ninth Circuit held in United States v. Richey that the dual purpose test did not protect a tax appraiser’s work file that was generated, at the direction of counsel, to provide val…
v.
Mark RICHEY, Defendant-Appellee, Alan D. Pesky; Wendy Pesky; FAWPEAS L.P., Defendant-Intervenors-Appellees
OPINION
M. SMITH, Circuit Judge:The Internal Revenue Service (IRS or Government) challenges the district court’s ruling denying its motion to enforce a summons against Defendant-Appellant, Mark Richey, seeking production of an appraisal work file. The IRS contends that the district court erred when it found that the summons was not issued in good faith, and that the appraisal work file was protected by the attorney-client privilege and work-product doctrine.
We hold that the IRS summons was issued in good faith, and that the district court erred in finding that Richey’s entire appraisal work file was protected by both the attorney-client privilege and the work-product doctrine. We therefore reverse and remand to the district court.
FACTUAL AND PROCEDURAL BACKGROUND
Intervenors-Appellees Alan and Wendy Pesky (the Peskys or Taxpayers) owned general and limited partnership interests in FAWPEAS, an Idaho limited partnership. FAWPEAS, in turn, was the 50% owner of certain real property located in Ketchum, Idaho (the Property). In January 2002, the Peskys retained the law firm of Thornton Byron LLP (Thornton) to provide legal advice to them concerning the granting by FAWPEAS of a conservation easement on the Property (the Easement). On March 7, 2002, the Peskys caused FAWPEAS to execute a conservation deed for the Property in favor of the Nature Conservancy. On May 7, 2002, Thornton retained Mark Richey, an MAI-certified appraiser, to provide “valuation services and advice with respect to the conservation easement.” In response, Richey prepared an appraisal report to be filed with the Taxpayers’ 2002 federal income tax return, and a work file concerning the value of the Easement.
Given their partnership interest in FAWPEAS, the Peskys claimed an approximately $200,000 charitable contribu[*563] tion deduction on their 2002 federal income tax return, stemming from their proportionate share of the alleged value of the Easement. The approximately $1.3 million bulk of the deduction was carried over on the Peskys’ 2003 and 2004 federal income tax returns. Richey’s appraisal report was attached to the Peskys’ 2002 federal income tax return, as required by Treasury Regulation section 1.170A-13(c)(l). The appraisal report noted: “[T]his report may not include full discussion of the data, reasoning, and analyses that were used in the appraisal process to develop the appraiser’s opinion of value. Supporting documentation concerning the data, reasoning, and analyses is retained in the appraiser’s file.”
On July 28, 2008, the IRS mailed a summons to Richey instructing him to appear before IRS Agent Shane Cole, and to provide testimony, documents, books, records, and information related to the services Richey provided to the Peskys. Asserting the protections of the attorney-client and work-product privileges, Thornton directed Richey not to comply with the summons and Richey followed Thornton’s instructions. In October 2008, the Government filed a petition to enforce the summons. Agent Cole attached a declaration to the petition, stating that he was conducting an investigation of the Peskys’ 2003 and 2004 federal income tax returns, had summoned Richey to inquire about the valuation of the Easement, and did not have the documents needed to determine the Peskys’ correct tax liability.
In December 2008, the IRS issued a Notice of Deficiency to the Peskys, which disallowed any charitable deduction stemming from the Easement for the 2003 and 2004 federal income tax returns. The Peskys responded to the Notice of Deficiency by paying the assessment, interest, and penalties claimed by the IRS. On February 11, 2009, the district court granted the Peskys’ motion to intervene in the Government’s summons enforcement action against Richey. The district court also ordered Richey to show cause why he should not be compelled to comply with the summons. At the show cause hearing, the district court ordered the parties to provide supplemental briefing addressing whether the IRS investigation had closed as the result of the Peskys’ agreement to pay the assessment, interest, and penalties claimed by the IRS in the Notice of Deficiency. On March 6, 2009, the district court issued a memorandum order quashing the summons. The IRS appeals the decision of the district court.
STANDARD OF REVIEW AND JURISDICTION
We review the district court’s summons-enforcement decisions for clear error. David H. Tedder & Assocs., Inc. v. United States, 77 F.3d 1166, 1168 (9th Cir.1996). The district court’s conclusion concerning whether “statements are protected by an individual attorney-client privilege is ‘a mixed question of law and fact which this court reviews independently and without deference to the district court.’ ” United States v. Graf, 610 F.3d 1148, 1158 (9th Cir.2010) (quoting United States v. Ruehle, 583 F.3d 600, 606 (9th Cir.2009)). We review de novo the district court’s rulings on the scope of the attorney-client privilege. Id. The district court’s factual findings are reviewed for clear error. Id. “A finding is clearly erroneous if it is illogical, implausible, or without support in the record.” Id. (citing United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir.2009)) (en banc).
We apply the same standard of review for the work-product doctrine as for attorney-client privilege. See, e.g., Hernandez v. Tanninen, 604 F.3d 1095,[*564] 1100 (9th Cir.2010). As such, whether documents are protected by the work-product doctrine is a mixed question of law and fact, reviewed independently and without deference to the district court. See, e.g., Graf, 610 F.3d at 1158. We review de novo the district court’s rulings on the scope of the work-product doctrine. See id. The district court’s factual findings for work-produet privilege are reviewed for clear error. Hernandez, 604 F.3d at 1100.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 26 U.S.C. § 7609(h)(1).
DISCUSSION
A. Good Faith and the Summons
The IRS is authorized by statute to inquire into tax liabilities. 26 U.S.C. § 7601. In order to ascertain “the correctness of any return,” the IRS may issue a summons for records and documents from third parties in connection with a tax liability investigation. 26 U.S.C. § 7602(a). Summonses issued under Section 7602 must be served personally or left at the person’s last and usual place of abode. 26 U.S.C. § 7603(a).
To obtain enforcement of a summons, the Government has the initial burden of establishing a prima facie case showing that: (1) the investigation will be conducted for a legitimate purpose, (2) the inquiry is relevant to the purpose, (3) the information sought is not already within the IRS’s possession, and (4) the administrative steps required by the IRS Code have been followed. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964); Ponsford v. United States, 771 F.2d 1305, 1307 (9th Cir.1985). “The government’s burden is a slight one, and may be satisfied by a declaration from the investigating agent that the Powell requirements have been met.” United States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir.1993).
Once the government establishes a prima facie case, a party challenging the summons must show that the government is not entitled to use the court’s process to enforce the summons. Powell, 379 U.S. at 58, 85 S.Ct. 248. A court will not enforce a summons if “an abuse would take place if the summons [was] issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation.” Id. It is a “heavy” burden to show an abuse of process or lack of good faith. Fortney v. United States, 59 F.3d 117, 120 (9th Cir.1995).
The validity of a summons is normally tested as of the date of its issuance. United States v. Cromer, 483 F.2d 99, 101 (9th Cir.1973). However, the court may inquire as to the reasons for the summons and may not permit its process to be abused in enforcing the summons. Powell, 379 U.S. at 58, 85 S.Ct. 248.
1. The Government’s Prima Facie Case
Generally, submitting “a declaration from the investigating agent that the Powell requirements have been met” is sufficient to establish a prima facie case. Dynavac, 6 F.3d at 1414. Here, IRS Agent Cole submitted a declaration that he was investigating the Peskys’ tax liabilities, that he did not have the relevant appraisal work file, and that the administrative process was followed.
Agent Cole’s declaration was not wholly accurate. The administrative process was not completely followed because Richey was served by certified mail rather than by personal service. See 26 U.S.C. § 7603(a). Nonetheless, as the district[*565] court found, Richey had actual notice of the summons, there was no prejudice to the Taxpayers who timely intervened, and the Government acted in good faith when it tried to effect service by certified mail. We agree with the reasoning of the Eighth and Fifth Circuits that substantial compliance with 26 U.S.C. § 7603(a)’s service requirements is sufficient if the IRS acted in good faith and there is no prejudice to the taxpayer. [1]
In this case, the IRS’s service error was clearly harmless. The minor service error was properly excused by the district court, and the Government satisfied its initial burden to establish a prima facie case in October 2008, with Agent Cole’s declaration. Thereafter, the burden shifted to Richey and the Peskys to show that the Government acted in bad faith.
2. Further Enforcement Actions
The parties do not dispute that the summons was issued in good faith in October 2008. What changed, according to Richey and the Peskys, is that the Peskys agreed to the Notice of Deficiency in December 2008, and paid the required assessment, interest, and penalties. They buttress their claim on section 4.8.9 of an internal IRS manual, which provides that when a taxpayer agrees to an assessment and collection of the entire deficiency, “[u]pon receipt of a signed waiver or agreement, the following actions must be taken: .... Close the case agreed to Centralized Case Processing for assessment of the deficiency.” Internal Revenue Manual § 4.8.9.19.3.2, available at http://www.irs. gov/irm/part4/irm_04-008-009-cont02.html (last accessed Nov. 22, 2010). Thus, they reason, since the audit was closed, the Government’s continued efforts to enforce the summons were necessarily in bad faith.
The district court sided with Richey and the Peskys, explaining:
[I]t seems any discovery to clarify the appraisal at this stage is no longer in good faith since the notice of deficiency has issued and the taxpayers have paid the taxes and penalties assessed. While the prima facie case for enforcement of the summons under United States v. Powell et al[.], 379 U.S. 48 [85 S.Ct. 248, 13 L.Ed.2d 112] (1964)[J is minimal, the IRS still has to provide some explanation of why the final appraisal report alone is insufficient to explain the appraiser’s conclusion and why the IRS has an interest after the taxpayers have consented to the assessment which disallows the deduction calculated by the appraisal.
We have not previously ruled whether an IRS summons initially issued in good faith can transmogrify into one issued in bad faith upon the taxpayer’s consenting to a deficiency assessment. However, other circuits considering the issue have held in similar circumstances that there can be no showing of bad faith by the IRS in such circumstances unless there has been a predicate “final, irrevocable determination of the taxpayer’s liability.” [2] We are per[*566] suaded by the reasoning of the Second and Seventh Circuits, and we hold that under the facts of this case, continued enforcement of an IRS summons is proper where the Taxpayers’ liability has not been finally determined and there is no other evidence in the record that the summons was issued for an improper purpose, such as to harass the Taxpayers. See, e.g., Powell, 379 U.S. at 58, 85 S.Ct. 248. Here, the Peskys’ tax liabilities had not been finally determined. The time period for the Peskys to file a petition with the Tax Court had not expired when the IRS sought enforcement of the summons. The Peskys further indicated that they would likely challenge the Notice of Deficiency and seek a refund. Moreover, even though the Peskys consented to the assessment, the IRS still had the ability to adjust the tax liability later, as noted on the assessment form the Peskys signed.
Because the Peskys’ tax liability could still change, even though the IRS’s investigation had ostensibly concluded, the IRS had a legitimate reason to seek documentation essential to establishing the Peskys’ tax liabilities. Thus, as long as the amount the Peskys allegedly owed to the IRS was subject to change, the IRS had a good-faith interest in obtaining the appraisal work file pursuant to the summons. We therefore conclude that Richey and the Peskys have not met their “heavy” burden of showing bad faith by the IRS, Fortney, 59 F.3d at 120, and that the summons is enforceable in accordance with its terms, which includes Richey’s appearance before the IRS, unless other defenses are available to Richey and the Taxpayers.
B. Attorney-Client Privilege
The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The party asserting the attorney-client privilege has the burden of establishing the relationship and privileged nature of the communication. United States v. Bauer, 132 F.3d 504, 507 (9th Cir.1997). The attorney-client privilege exists where: “(1) [] legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.” Graf, 610 F.3d at 1156. Voluntary disclosure of privileged communications constitutes waiver of the privilege for all other communications on the same subject. Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir.1981). The attorney-client privilege may extend to communications with third parties who have been engaged to assist the attorney in providing legal advice. [3] If the advice sought is not legal advice, but, for example, accounting advice from an accountant, then the privilege does not exist. Id.
Here, Thornton hired Richey, at least in part, “to provide valuation services” in the[*567] form of an appraisal for the Easement. The IRS regulations require that the taxpayer provide a qualified appraisal for charitable deductions. 26 C.F.R. § 1.170A-13(c)(2)(A). The appraisal must include the method of valuation used to determine fair market value of the property and the “specific basis for the valuation, such as specific comparable sales transactions or statistical sampling....” Id. at § 1.170A-13(c)(3)(ii)(I)-(K). Additionally, the appraisal must state that it was prepared for income tax purposes. Id. at § 1.170A-13(c)(3)(ii)(G).
Richey prepared the appraisal as required by Treasury Regulation section 1.170A-13(c)(1), so that the Peskys could claim the charitable deduction sought for the value of the Easement. Id. § 1.170A-13. The appraisal was attached to the Peskys’ 2002 federal income tax return. The appraisal states that it is in compliance “with the substantiation requirements” under section 1.170A-13(c)(2). Appraisals conforming to IRS regulations are required to be based on the objective use of valuation information, such as the fair market value of other properties. See id. at § 1.170A-13(c)(3)(ii)(I)-(K). Richey certified that the appraisal he prepared was “impartial” and “unbiased.” Importantly, as part of the explanation for the methods and specific bases for the appraiser’s opinion of value, the work file contained “supporting documentation concerning the data, reasoning, and analyses” for the appraisal report.
Based on this record, any communication related to the preparation and drafting of the appraisal for submission to the IRS was not made for the purpose of providing legal advice, but, instead, for the purpose of determining the value of the Easement. Further, to the extent the files contain documents that were not communications, they are not protected by the attorney-client privilege. Graf, 610 F.3d at 1156. It is also significant that Richey and the Peskys did not make a specific proffer of what communications, if any, exist in the appraisal work file, that are allegedly the proper subject of the attorney-client privilege. See, e.g., United States v. Martin, 278 F.3d 988, 1000 (9th Cir.2002) (“A party claiming the privilege must identify specific communications and the grounds supporting the privilege as to each piece of evidence over which privilege is asserted.” (citing United States v. Osborn, 561 F.2d 1334, 1339 (9th Cir.1977))). It was therefore clear error for the district court to conclude that the entire appraisal work file is protected by the attorney-client privilege. In addition, Richey remains obligated to appear before the IRS to testify about the non-privileged documents contained in the work file, as commanded by the summons.
C. Work-Product Doctrine
The work-product doctrine protects “from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1494 (9th Cir.1989) (citing Fed. R.Civ.P. 26(b)(3)). The work-product doctrine covers documents or the compilation of materials prepared by agents of the attorney in preparation for litigation. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). The work-product doctrine’s protections are waivable. Hernandez, 604 F.3d at 1100.
To qualify for work-product protection, documents must: (1) be “prepared in anticipation of litigation or for trial” and (2) be prepared “by or for another party or by or for that other party’s representative.” In re Grand Jury Subpoena, Mark Torf/Torf Envtl. Mgmt. (Torf), 357 F.3d 900, 907 (2004). In cir[*568] cumstances where a document serves a dual purpose, that is, where it was not prepared exclusively for litigation, then the “because of’ test is used. Id. Dual purpose documents are deemed prepared because of litigation if “in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” Id. In applying the “because of’ standard, courts must consider the totality of the circumstances and determine whether the “ ‘document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of litigation.’ ” Id. at 908 (quoting United States v. Adlman, 134 F.3d 1194 (2d Cir.1998)).
Here, the district court erred by concluding that the entire work file was prepared in anticipation of litigation. Richey was hired to provide valuation services, and he prepared the appraisal report that the Peskys attached to their 2002 federal income tax return, as required by law. Had no appraisal report been attached to the Peskys’ 2002 federal income tax return, the Taxpayers would have been ipso facto -ineligible for any charitable deduction as a result of the contribution of the Easement. Had the IRS never sought to examine the Taxpayers’ 2003 and 2004 federal income tax returns, the Taxpayers would still have been required to attach the appraisal to their 2002 federal income tax return. Nor is there evidence in the record that Richey would have prepared the appraisal work file differently in the absence of prospective litigation.
Considering the totality of the circumstances, we cannot properly conclude that the appraisal work file “can be fairly said to have been prepared or obtained because of the prospect of litigation.” Torf 357 F.3d at 907-08. Thus, neither Richey nor the Taxpayers may properly invoke the work-product doctrine in protecting the contents of the appraisal work file.
CONCLUSION
In light of the above, we reverse and remand to the district court so the court can conduct an in camera examination of the materials summoned by the IRS in order to determine which data and materials, if any, are protected from disclosure by the attorney-client privilege, after applying the principles and conclusions discussed supra. Any materials not so protected should be ordered delivered to the IRS forthwith, in accordance with the terms of the summons. Additionally, Richey is required to appear personally before the IRS to give testimony in accordance with the summons.
REVERSED AND REMANDED.
. See Mimick v. United States, 952 F.2d 230, 232 (8th Cir. 1991) (requiring courts "to evaluate the seriousness of the violation under all the circumstances including the government’s good faith and the degree of harm imposed by the unlawful conduct”); United States v. Payne, 648 F.2d 361, 363 (5th Cir. 1981) (holding that summons was valid even though there was a technical service violation because summons was not personally served); sea also Sylvestre v. United States, 978 F.2d 25, 27-28 (1st Cir.1992) (declining to bar enforcement of summons issued two days late).
. PAA Mgmt., Ltd. v. United States, 962 F.2d 212, 217-18 (2d Cir.1992) (adopting the reasoning in Gimbel in the context of partnership tax liability and holding that IRS still had investigative powers until final determination of tax liability); United States v. Gimbel, 782[*566] F.2d 89, 93 (7th Cir.1986) (enforcing summons where IRS issued notice of deficiency and taxpayer filed petition in Tax Court).
. See Smith v. McCormick, 914 F.2d 1153, 1159-60 (9th Cir.1990) (concluding that defendant's communication with her psychiatrist was protected up to the point of testimonial use of that communication). " What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.' ” United States v. Gurtner, 474 F.2d 297, 299 (9th Cir.1973) (emphasis in original) (quoting United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961)).