Parties seeking financing to fund their litigation efforts must, of course, share information with the potential funder so that it can make an informed investment decision. The attorney-client privilege or the work-product doctrine protects some of this information, such as a lawyer’s analysis of potential claims.
Parties adverse to the funded party now routinely seek this shared information in discovery, arguing that the party waived any privilege or work-product protections by sharing protected information with the litigation-financing company. Many issues arise, such as the different waiver standards for the attorney-client privilege and the work-product doctrine, and whether the common-interest doctrine offers non-waiver protection.
In an article published in the Spring 2018 issue of Today’s General Counsel, I explore these issues. You may read the article here.