What happens if a potential claimant shares privileged information with a litigation funding company, before the claimant signs any agreement with the company?
Typically, the claimant waives the privilege.
But there may be no waiver if the parties first sign a litigation funding agreement – the key word being “may”.
Those are some of the points from an article, “Sharing Protected Information With Potential Litigation Funders“, in the Spring 2018 issue of Today’s General Counsel magazine. (A link to the magazine is here; the article is available at the end of the Spring 2018 issue on page 64.)
The article’s author, Todd Presnnell, writes that “Most courts have ruled that disclosing privileged communications to a litigation-funding firm prior to the firm’s engagement waives the privilege.” However, he added that “[s]haring lawyer-client communications pre-contract likely waives the privilege, but sharing them under a post-contract common interest agreement may afford greater protection.”