Quick: What's champerty? It's helping another to maintain a lawsuit in return for a financial reward. And, in many states it violates well established ethical rules. But this ancient prohibition is now colliding with a very modern value: investment firms with lots of do-re-mi, looking to make even more by investing in big stakes litigation on behalf of a plaintiff.
Let's do a quick overview courtesy of a PowerPoint from Professor Anthony J. Sebok. He notes that much of the world is fine with third-party litigation funding, including England, Australia, the European Union, and Canada, all giving it a green light. How about the U.S.A.? Well, twenty-seven States say OK to such funding, and 15 say no way. There are all sorts of issues, including preservation of the attorney-client privilege. Are the statements and documents used in the "pitch" by the plaintiff to the funders protected or not? Only three cases have looked at the question and the count so far is two (including the 2011 Eastern District Texas case Mondis Technology Ltd v. LG Electronics, Inc.) saying protected, and one saying it is not. In 2010, a district court in Delaware, in Leader Technologies, Inc. v. Facebook, rejected the plaintiff's argument that communications were covered because the plaintiff and the funders had a "common interest" in the litigation. So sorry said the district court (affirming a magistrate's ruling) because the "common interest" applied to those seeking legal advice, not commercial gain. Not so fast said the court in Devon IT Inc v. IBM Corp., a 2012 case from the Eastern District of Pennsylvania, which took an expansive view of the common interest doctrine, holding that it included a common interest in the outcome of the litigation.
The court also stressed that the plaintiff made efforts for the information not to be disclosed to anyone other than the potential investor by requiring them to sign a non-disclosure agreement. Under such "controlled conditions," the court essentially asked: What's the harm in providing privileged information to the funder? Finding none, the court told the plaintiff it did not need to fork over the privileged information.
Finally, in the Texas Mondis case, the court denied the defendant's request for production of the information provided to the funder. Using a very Texas-like concept of "what makes sense," the court held that the provided information was protected under the work-product doctrine because it was created in anticipation of a lawsuit being filed and set out the litigation strategy that the plaintiff proposed to follow. And, like the court in Devon IT, the court stressed that a non-disclosure agreement was in place and thus there was little possibility that "an adversary would come into possession of the materials." In other words, as my mother taught me, if you say something is important (here, the privileged information) then treat it as important (use means to insure that it does not get spilled to anyone else).
Litigation: it's the real growth industry.