Sharing Documents with Litigation Funders under the California Work Product Doctrine
The first step in obtaining lawsuit funding for your case is to speak with a third party funder to determine whether your case meets the qualifications for funding. In speaking with someone other than your attorney and exchanging documents related to your case, there is a high risk that the confidentiality you hold with your attorney is waived. This means there is a potential that you will be unable to protect certain documents from your opponent under the Work Product Doctrine. Please remember to engage in a Non-Disclosure Agreement (“NDA”) with your funder before any documents are exchanged to maintain this shield on disclosure of your confidential papers.
In California, the protection given to the work an attorney produces is extensive and is categorized as either absolute or conditional. Absolute protection is given to “any writing that reflect(s) an attorney’s impressions, conclusions, opinions, or legal research or theories.” (Cal. Code Civ. Proc. § 2018.030(a); Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214.) Conditional protection is given to work that is discoverable if “the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Cal. Code Civ. Proc. § 2018.030(b).)
In plain terms, the California Work Product Doctrine automatically protects any documents that show the work your attorney has performed on your case from disclosure to your opponent. But documents not created out of your attorney’s own thought process (i.e., business records) may be open to your opponent if the court decides your opponent will be placed in an unfair position without it. The rule of thumb is if the document is a result of something that came from your attorney’s mind, it is absolutely protected under the California Work Product doctrine. All other ‘confidential’ documents that fall outside this category are subject to disclosure should the court decide they are necessary to place the parties on an even playing field at trial.
As noted above, it is important that you enter into an NDA when speaking with a third party funder to show your intent to maintain the California Work Product doctrine. Otherwise, you leave open some wiggle room for your opponent to argue that you waived confidentiality of your documents the moment you showed your attorney’s work product to an outside party.