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Privilege and Work Product Protection

Work Product & Privilege:

What does work product and privilege mean to the lawsuit funding client?  Work product means writings, notes, memorandum and reports on conversations with the client or witnesses. It involves research and materials that include an attorney’s impressions, conclusions, opinions, or theories. Work product materials are confidential. A typical third-party lawsuit funding request involves releasing work product to  the lender. The release of that information or work product is not necessarily a problem.

Is Lawsuit Funding a Problem:

When is there a work product problem? First information can be medical records or private information that a client would not want released to  the adverse party. However, this confidential information may be necessary to the lawsuit funding company.  Especially if it involves substantial sums of money.  Most noteworthy, such disclosures  involve a waiver of confidentiality  privilege. The client should be required to give consent for disclosure to the lawyer in writing.

The Court’s View:

Courts throughout the United States take a very strict approach when dealing with waivers of privilege. Further, any disclosure of a privileged communication with a non-privileged party will waive that privilege. Consequently, in several jurisdictions if that information is shared it can affect attorney-client privilege. For example, a client  fills out an application with a lawsuit funding company. When the funding company  receives the application it asks the lawyer for certain confidential information.  As a result, the attorney should get written consent from the client before disclosing that confidential information. The client must consider the protections he is giving up versus the need for legal funding.

Leader v. Facebook:

A recent case in federal court discussed just this issue. In  Leader Technologies Inc v. Facebook, is  from the Federal District of Delaware 2010.  In this case, Leader,  filed a lawsuit against Facebook for patent infringement. However, the plaintiff asked third-party litigation funding companies if they would invest in Leaders lawsuit for patent infringement. Before showing the funders any documents, Leader entered into a non-disclosure agreement with these companies. He then shared documents with them. Those documents were originally protected by attorney-client privilege.

Leader, continued:

When this  lawsuit began, the plaintiff withheld documents from Facebook during discovery citing work product and attorney-client privilege. However upon learning that these same documents were shared with a lawsuit funding company, Facebook filed a motion to compel. It asked the court to order these documents to be produced from the plaintiff. They argued that any potential privilege was waived by the release of these documents to various investors.

Leader, continued:

The Federal District Court judge affirmed that the privilege did not extend to document shared with the third party legal funding companies. Therefore, the plaintiff did waive the attorney-client privilege and work product protection.  The court said that this is an unsettled area of law due to the early status of lawsuit funding companies. It decided to follow earlier ethics opinions. Those opinions said that when a party’s interest in a litigation is commercial the common interest privilege does not attach. The court also pointed to various state ethics opinions that held against sharing information with third-party funders.

New Jersey & Pennsylvania Opinions:

Included in the Court’s opinion was a summary of a 2003 New Jersey Advisory ethics opinion number 691. That opinion stated that a that an attorney must ensure that a client fully understands the risk of information disclosure and attorney-client privilege. A Pennsylvania ethics opinion concurred in this finding. It concluded, that an attorney should  only share information which they would also disclosed to the adverse party.

Why Redwood Funding Group:

Consequently, it is clear that there are obstacles when trying to obtain lawsuit funding. Redwood Funding Group makes every effort to overcome these obstacles in many ways. First, we have the lowest rates around. Just use our guaranteed repayment schedule to compare the repayments with any funder in the country and you will see. You will not get a better deal and save more money that with Redwood Funding Group. Secondly, and here’s what applies to the article, Redwood Funding Group does not ask for many documents to begin with. Our experience as former personal injury attorneys allows us to know exactly what we are looking for.  Amazing, lawsuit funding as easy as it could be!. We avoid issues of work product and confidentiality and therefore streamline the paperwork process. Give us a call, Google us at or look us up on Facebook at

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