An interesting article by Michele Slachetka and Christian Plummer from Jenner & Block LLP and Justin Maleson from Longford Capital Management LP looking at the extent to which documents provided to litigation funders are protected from discovery in the U.S. Courts.
Obviously not being a lawyer, I cannot comment on the legal arguments around this but there are some very sensible recommendations at the end of the document. From a discovery management perspective, it is important to take this into account to ensure that those documents and communications that meet this criteria are treated in an appropriate manner.
It is another example of where an intelligent approach needs to be taken to discovery exercises to ensure that issues such as these are properly thought through and dealt with appropriately. To do this, it is important to ensure that the discovery professionals are fully looped into the overall approach to ensure an efficient and effective process.
As litigation funding becomes increasingly popular, I am sure that this topic is going to come up on a more regular basis and it is much better to be prepared and build in the thinking, to deal with this sooner rather than later.
In light of these trends, attorneys and their clients should take the following steps when working with a litigation funder: • Enter into a nondisclosure agreement or confidentiality agreement before sharing any documents... • Do not share attorney-client-privileged materials with a funder. Courts are unlikely to protect attorney-client-privileged information disclosed to a funder...Bottom line, if there is any question about whether a document is subject to the attorney-client privilege, err on the side of caution and do not risk waiver by sharing it with a funder. • Share only (1) fact documents and (2) materials prepared in anticipation of litigation (i.e., documents subject to work-product protection). Relevant fact documents are discoverable irrespective of disclosure to a funder, and courts have taken a strong stance in protecting work product shared pursuant to an NDA... • Know your protective order. When exploring funding for a pending case, understand the scope of any case-specific protective order that could preclude or limit disclosure of certain nonpublic information to anyone other than counsel and the parties.