Work Product Privilege and Litigation Finance

Work product doctrine protects materials prepared in anticipation of litigation, meaning they do not have to be given to opposing counsel during discovery.  But with the growth of litigation finance, there has been a question of if agreements between attorneys and funders are covered by attorney work product.

The facts support agreements between attorneys and funder as work product. At the most common sense level, usually litigation funders would only be contacted if there were an anticipated lawsuit to fund.  Therefore, any agreements or even emails back-and-forth are covered by the doctrine.

The court in Lambeth Magnetic Structures v. Seagate Technology (US) Holdings held that “communications [between plaintiff and a litigation funder] were primarily, if not exclusively, for the purpose of preparing for litigation.  Thus, they were protected under the work product doctrine.

It has been argued that funding agreements and related documents between a claimant and financier or between the plaintiff’s attorney and the financier constitute a business deal and therefore are not covered by the work product doctrine.

However, the court in Lambeth refuted this exact argument from the defendant, saying that the materials were covered by work-product immunity.  Ultimately, the main point of this decision was that the materials were still made in anticipation of litigation.  Thus, they are covered by work-product immunity.

It is important to note that work product immunity and waiver of attorney-client privilege is not the same.  Attorney-client privilege is meant to assure confidentiality for whatever a client tells their attorney.  However, that privilege is waived when a third-party is given information that would usually be protected by attorney-client privilege, this can and often does happen when reaching a litigation financing agreement.  But just because attorney-client privilege was waived does not mean that the information is not covered my work-product immunity.

Works Cited:  Eric M. Robinson, Protecting Privilege in Litigation Financing Negotiations, Law360 (March 1, 2018).