Discoverability Of Third Party Funding Documents In Arbitration – Part II

In January, in Part I of this post, we discussed the "relevance" factor in determining the discoverability of litigation funding agreements and correspondence with funders. (For these purposes, the word "litigation" means adjudicated dispute resolution generally.) As we indicated there, efforts to obtain such discovery typically encounter strong objections based on their irrelevance to the parties' claims and defenses. In addition, funded parties have typically opposed such discovery by asserting attorney-client privilege and the work product doctrine. In this post, we discuss developing authority concerning whether a party's (or its counsel's) litigation-related communications with a third-party funder -- either prospective or contracted -- are privileged or whether they effect a waiver of the attorney-client privilege and/or work product protection.