Litigation funding documents are non-discoverable work-product

J. Bibas of the Third Circuit, sitting by designation in the District of Delaware, recently denied a motion to compel litigation funding documents, concisely summarizing the relevant scope of the work-product doctrine:

[W]hatever work product’s precise scope, it includes [litigation funding documents].  They are confidential documents created by lawyers to evaluate the strengths, weaknesses, and strategy of an impending lawsuit. While those documents informed an investment decision, they did so by evaluating whether a lawsuit had merit and what damages it might recover. That is legal analysis done for a legal purpose.

See Design with Friends, Inc. v. Target Corp., No. 1:21-cv-01376-SB, 2024 WL 4333114 (D. Del. Sept. 27, 2024).

The court held that the the litigation funder—both before and after diligencing the matter—was the plaintiff’s representative for work-product purposes, and further underscored the flexibility of the work-product doctrine:

The final question is whether Validity created these documents as Design’s repre- sentative. The records cover two periods: before and after Validity agreed to fund the suit. In both periods, this element is met. . . . Work-product doctrine is “intensely practical ..., grounded in the realities of litigation in our adversary system.” Nobles, 422 U.S. at 238. In litigation finance, one of those realities is that financiers need to evaluate the strength of a case before agreeing to fund it.

Id.