Lawyers considering using legal finance are understandably interested in the interaction of litigation finance and the protection of attorney work product. Although we have always believed that law and policy protect work product that is shared with litigation finance providers under a confidentiality agreement, over the past three years, the law has even more strongly reinforced the protection under the work product doctrine of documents created in connection with litigation finance, or produced to litigation finance providers over the course of diligence and investment.
The work product doctrine, generally speaking, protects from disclosure any materials prepared in anticipation of litigation. As a policy matter, it makes perfect sense: To allow a litigation opponent to obtain an adversary’s work product is inimical to the adversarial system as a whole. The protection is so fundamental that, in comparison to the attorney-client privilege, which is typically waived upon disclosure to any third party, the work product protection survives disclosure to third parties, provided that the disclosure does not substantially increase the opportunity for an adverse party to obtain the protected materials.
