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Third-Party Litigation Investing and Attorney-Client Privilege

By David A. Prange

Civil litigation is potentially expensive, and achieving lucrative outcomes is not without risk. In recent years, companies with viable claims have looked to diversify their risk by partnering with third-party investors. Successful investment relationships require substantial due diligence and communication. This communication may include claim-holder materials that are subject to the attorney-client privilege or that are considered attorney work product.

A claim-holder's communications with its investors, or potential investors, introduces the risk of privilege waiver and the potential exposure of sensitive information to an adverse party in later litigation. An attractive discovery subject for any defendant may be the materials shared between the plaintiff and its investor. The plaintiff's evaluation of its claims would provide good information for cross-examination. Thus, the issues of privilege and work product protection arise when a plaintiff shares otherwise protected information.

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