Sharing Documents with Litigation Funders under the Federal Work Product Doctrine
When seeking out alternative litigation financing, you will need to discuss your claim with the third party funder so that an accurate assessment can be made as to whether your claim will qualify for funding. Remember to sign a Non-Disclosure Agreement (“NDA”) with the funder before any confidential papers are transferred, to ensure that the protections of the work product doctrine are not compromised when you transmit documents to a third party funder.
Also, the court where your case is filed makes a difference in maintaining the confidentiality of your attorney’s work product.
If your case is being heard in federal court, the federal Work Product Doctrine protects only those materials that are “prepared in anticipation of litigation or for trial.” (Federal Rules of Civil Procedure (“FRCP”), Rule 26(b)(3).) Under the federal rule, all other work product not prepared in “anticipation of litigation” may be deemed ‘discoverable’ by an opponent if it can be shown there is a “substantial need where the party seeking discovery cannot obtain equivalent materials without undue hardship.” (FRCP 26(b)(3).)
This means that when your attorney conducts any work on your case which consists of the attorney’s thought process, opinions, or legal tactics as to how to manage your case from the moment it gets filed with the court to trial, the Federal Work Product Doctrine protects your attorney’s work from ‘discovery’ by the opposing side. Discovery is a tool used by both sides in a case to gather evidence from the other to assist them in preparing for trial. When a document is ‘protected’ under the Federal Work Product Doctrine, your opponents are unable to get their hands on it. However, if the documents being sought by your opponents were not prepared for the purpose of your lawsuit and a showing is made to the court as to its importance and necessity, the judge may very well order you to hand it over to your opponents.
The Federal Work Product Doctrine is not absolute and can be waived due to a loss in the confidential nature of the document. This happens when a document you deem to be ‘confidential’ is shown to someone other than yourself or your attorney. When a waiver occurs, your opponents can argue that it is now entitled to see the once-secret document. In the context of alternative litigation financing, remember to get an NDA before any papers are exchanged to help maintain the protection of the Federal Work Product Doctrine for your documents.
Keep in mind that while federal court allows protection of documents prepared in anticipation of litigation, if your action is pending in a state court, your attorney’s work product may be entitled to better protection under different legal standards