Protecting Attorney Work Product in Litigation Financing
As noted in a previous post, when litigants and their lawyers communicate with litigation funders, they must be careful not to reveal confidential communications with their attorneys, lest they waive the attorney-client privilege. Those involved in a litigation finance transaction must also take care to avoid disclosing materials protected by the work-product doctrine. But the considerations relating to attorney work product differ from those relevant to privileged communications.
The work-product doctrine is designed to protect an attorney’s thoughts about strategic and legal analysis in connection with litigation that is pending or foreseeable. As the Supreme Court has explained, the legal work protected by the doctrine consists of “the interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways-aptly though roughly-termed . . . as the ‘work product of the lawyer.’” Hickman v. Taylor, 329 U.S. 495 (1946). Protecting this material from discovery by adversaries in litigation is necessary to assure that attorneys are able to give legal advice to their clients in the most effective way.
The work-product doctrine is codified in procedural rules, such as Fed. R. Civ. P. 26, which protects “documents and tangible things” that are “prepared in anticipation of litigation or trial.” Although there are some differences among courts in understanding what constitutes “anticipation of litigation or trial,” courts do agree something can be characterized as “work product” if preparation for litigation was, at least, a significant reason for its preparation.
Because the purpose of the work-product doctrine is to prevent disclosure to adversaries, the standard for determining waiver differs from the standard for determining waiver of the attorney-client privilege. As the First Circuit has explained, “work-product protection is provided against ‘adversaries,’ so only disclosing material in a way inconsistent with keeping it from an adversary waives work-product protection.” United States v. Massachusetts Institute of Technology, 129 F.3d 681 (1st Cir. 1997). Thus, disclosure of work product waives the work-product privilege if such disclosure is made directly to the adversary or in a manner that “substantially increase[s] the opportunities for potential adversaries to obtain the information.” Id.
The application of the work-product doctrine in the litigation finance context was also an issue in Mondis Tech., Ltd. v. LG Elecs., Inc., No. 2:07-CV-565-TJW-CE, 2011 U.S. Dist. LEXIS 47807 (E.D. Tex. May 4, 2011). There the court concluded that materials prepared for potential investors by the claim holder’s counsel were prepared “in anticipation of litigation” because the purpose of the solicitation was to obtain the financial resources for litigation. In addition, the court concluded that the disclosure of the materials to potential investors did not create a risk of disclosure to potential adversaries because the potential investors signed a non-disclosure agreement with the claim holder.
Topics: litigation finance, legal reform, third-party funding, work-product privilege
Works Cited: Mondis Tech., Ltd. v. LG Elecs., Inc., No. 2:07-CV-565-TJW-CE, 2011 U.S. Dist. LEXIS 47807 (E.D. Tex. May 4, 2011)
- Maria Glover, Alternative Litigation Financing and the Limits of the Work Product Doctrine, 12 N.Y.U. J.L. & Bus. 911 (2016)
United States v. Massachusetts Institute of Technology, 129 F.3d 681 (1st Cir. 1997)
Hickman v. Taylor, 329 U.S. 495 (1946)