A Look Into Litigation Funding

As litigation funding has drawn national headlines in recent years in connection with cases such as the Gawker and Smartmatic defamation actions, it has also received additional scrutiny from courts and judges interested in knowing who is or may be influencing the litigation in their courtrooms. Party litigants may likewise want to know who is funding their litigation opponent.

This paper by BCLP Partner Jon Fetterly explores the emergence of local rules and court orders requiring disclosure of litigation funding arrangements, and the growing body of case law addressing when litigation funding is potentially relevant and discoverable. It also considers whether documents and communications shared with a non-party funder can be protected from discovery on the grounds that they are privileged and confidential. The authorities examined in this paper potentially apply to any case in which a party is funded by a non-party to the litigation, regardless of whether the funding supports the prosecution of a plaintiff’s claim or provides a defense to a person or group in need of counsel.