Litigation » Sharing Protected Information With Potential Litigation Funders

Sharing Protected Information With Potential Litigation Funders

May 25, 2018

Cross_Final

Third-party funding of litigation projects, increasingly popular with plaintiffs, can raise serious questions about protected information. Defendants in some of these cases are doing their best to raise them, and in this Today’s General Counsel article, Todd Presnell looks at some precedents and trends. “The central issue,” he writes, “is whether disclosure of privileged communications or work-product to a third-party litigation financing firm waives these protections.” Courts have largely although not entirely ruled that disclosure to a funder does waive privilege, but they have been less inclined to abandon the work-product doctrine. Questions also arise about the so-called common interest doctrine. Here courts have found that a party and a potential financier have no common interest before entering into a contract, but post-contract there may be protection.

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