Emory Law Journal


Third-party litigation funding is an emerging industry that provides financial backing to plaintiffs. Typically, third-party litigation funders provide money in exchange for a percentage of damage returns. To decide whether a given plaintiff¿s claim is a good investment, the third-party litigation funder assesses the claim¿s merits by conducting due diligence over a large swath of documents. Often, these documents are protected by attorney¿client privilege. Under normal waiver rules for attorney¿client privilege, when privileged documents are disclosed to a third party, the privilege holder impliedly waives the privilege protection. Consequently, third-party litigation funders deserve the same protection (afforded to insurers and re-insurers) offered by the common interest doctrine. Recognizing the common interest doctrine to protect documents disclosed to insurers and third-party litigation funders effectuates the policy goal of attorney¿client privilege; it enables litigants to most effectively obtain legal counsel.