Work Product Doctrine

The work product doctrine protects materials prepared by or for an attorney in anticipation of litigation from disclosure to adverse parties. Like attorney-client privilege, work product protection is at risk if materials are shared with third parties who do not share a common interest with the attorney's client. In litigation finance, the question of whether sharing an attorney's case assessment or litigation strategy memorandum with a funder waives work product protection is frequently litigated. The common interest doctrine and the theory that funders share a legal interest in the claim's success are the primary arguments for non-waiver, but courts are not uniform in their treatment, and funders and counsel should use explicit confidentiality and common interest agreements when sharing work product during due diligence.

Because the question of whether sharing an attorney's litigation strategy memorandum with a funder waives work product protection is frequently litigated and jurisdiction-dependent, funders and counsel use explicit common-interest agreements before any diligence materials are shared, treating this as a structural precondition to the deal rather than a formality. Funders that skip this step risk creating discoverable materials for the opposing party — an outcome that can damage the underlying case far more than it helps the funder's diligence process.