Sharing Documents with Litigation Funders under the New York Work Product Doctrine

If your case is at a point where you need to entertain the idea of getting alternative litigation financing, remember to execute a Non-Disclosure Agreement (“NDA”) with the funder prior to any document exchange.  This will serve as a sign of your intent to protect the confidential nature of the exchanged documents under the Work Product Doctrine.  Depending on where you file your case, the Work Product Doctrine varies at the federal level as well as from state to state.

In New York, Civil Practice Law and Rules (“CPLR”) section 3101 is very liberal when it comes to material that is discoverable by your opponent.  Discoverable material consists of those documents that will be turned over to your opponent, and vice versa, to aid in the preparation of the case for trial.  But the CPLR does not freely allow the exchange of all documents and closely mirrors the Federal rule when it comes to which documents are protected under the Work Product Doctrine.

CPLR section 3101(c) focuses on the Work Product Doctrine and essentially protects all work produced by your attorney in preparing your case.  The more your attorney had a hand in preparing the document (i.e., thoughts, beliefs, strategy, analysis), the more likely that particular document is entirely protected from disclosure to your opponent. 

As to those documents that fall outside of the absolute protection of the Work Product Doctrine, CPLR section 3101(d) provides limited protection to documents prepared in anticipation of litigation.  Meaning, to get limited protection, the document itself must have been made under the threat of a lawsuit.  The only way your opponents can get their hands on documents under this limited protection is if they prove to the court there is a “substantial need and undue hardship” in preparing their case for trial if they do not obtain those documents.  Keep in mind if there was a purpose for the creation of the document other than for an anticipated lawsuit, the document will NOT be protected in the New York courts and your opponents will be able to access that document if they convince the court their case will suffer and they will be at an unfair advantage without that document.