Our legal system has long recognized that candid communication between client and counsel is essential to the fair administration of justice. The U.S. Supreme Court has recognized that the attorney-client privilege has a noble purpose—“to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.” The same is true of the work product doctrine: the Supreme Court has recognized that it protects against “unwarranted inquiries into the files and the mental impressions of an attorney,” and that “the interests of the clients and the cause of justice would be poorly served” if the work-product doctrine were violated. These doctrines exist for a simple reason. Clients must be able to share complete and unvarnished information with their legal representatives in order to receive sound advice and effective representation. Attorney–client privilege and work-product protection are the legal mechanisms that make that possible. Extending Confidentiality to Litigation Funding As litigation finance has become a more established feature of the civil justice system, courts have increasingly recognized that communications between litigants and litigation funders warrant similar protection from disclosure. Courts have generally rejected attempts to obtain discovery into communications between funded parties and their capital providers, recognizing that confidentiality is essential to securing the resources necessary to retain top-tier counsel and prosecute complex claims. In this way, confidentiality in the funding process serves the same systemic function as privilege itself: it preserves access to justice. The Critical First Step: Non-Disclosure Agreements The foundation for protecting confidentiality in the funding process is laid at the very beginning of the relationship. Before any substantive information is exchanged, claimholders and prospective funders should enter into a non-disclosure agreement (NDA). An NDA establishes clear ground rules for how sensitive information will be treated and helps ensure that communications made during diligence do not later become targets of discovery. NDAs promote precisely the “full and frank communication” the Supreme Court has deemed essential to effective legal representation. They allow parties to speak openly while reducing the risk that defendants will later argue—often opportunistically—that confidentiality has been waived. Key Components of an Effective NDA: 1. A Precise Definition of “Confidential Information” At the core of any NDA is a clear definition of what constitutes confidential information. Most litigation finance NDAs are mutual, protecting information shared by both the claimholder and the funder. They may be limited to a single matter or drafted broadly to cover multiple cases under evaluation. Information shared under NDAs typically include: • Case theory and legal analysis • Evidence and documentation • Financial models and damage calculations • Settlement discussions and valuation • Funding terms and negotiations NDAs also typically exclude information that is already public or independently known to the receiving party. 2. Information Sharing Protocols. Effective NDAs address how confidential information may be shared in the ordinary course of diligence. They usually permit disclosure to affiliated entities, outside diligence counsel, and potential investors—provided those recipients are bound by confidentiality obligations at least as protective as those in the NDA itself. This allows funders to conduct thorough diligence without compromising the claimant’s confidentiality interests. 3. Provisions Tailored to the Litigation Context. Litigation finance NDAs often include provisions that would be unusual in a generic commercial NDA. For example, they may acknowledge that the parties share a common legal interest in the litigation, reinforcing arguments against waiver. They also typically allow disclosure if required by court order or law. Because of these litigation-specific considerations, experienced funders generally rely on bespoke NDAs rather than off-the-shelf templates. Moving Forward with Confidence NDAs rarely require extensive negotiation. In most cases, they reflect a shared understanding that confidentiality is a prerequisite to meaningful engagement—not a point of contention. When thoughtfully drafted and properly used, NDAs serve as the essential first step in a collaborative process aimed at evaluating risk, allocating capital, and pursuing a fair resolution on the merits. At Certum, we treat client information with the same seriousness we bring to legal and financial risk. Our approach to litigation finance is grounded in both capital discipline and information security—making us trusted partners throughout the litigation journey.
Litigation finance has become an essential tool for modern litigation strategy — but with its growth has come a wave of discovery requests seeking information about funding arrangements. These requests are improper, burdensome, and legally unsupported. To help lawyers and litigants push back with confidence, Certum has released a new Model Brief Opposing Discovery of Litigation Funding—a comprehensive, practitioner-oriented document designed to equip litigators with the strongest arguments, cases, and frameworks available. This publication is now available for free download . The Model Brief is part of Certum’s growing library of thought leadership and practical guidance on litigation finance and insurance. That library includes Certum’s Guide to Litigation Funding and its annual survey of in-house counsel . Across federal and state courts, parties continue to seek discovery into litigation funding sources and materials, often as a tactic rather than a legitimate inquiry into claims or defenses. These efforts raise serious issues: Privilege and work-product concerns Chilling effects on access to justice Attempts to shift focus away from the merits Increased litigation costs and delays Yet for many lawyers, responding to these requests requires reinventing the wheel. Certum’s model brief solves that problem. It provides a structured, persuasive, and research-backed response that can be adapted swiftly to any case. Click here to download the brief.
Bloomberg recently interviewed Certum Group’s William Marra as part of its coverage of efforts by commercial liability insurers to require the disclosure of third-party litigation funding agreements. Marra explained to Bloomberg that “[t]he disclosure of litigation funding risks putting impecunious litigants at a systematic disadvantage in our legal system,” adding mandatory disclosure “can disclose to defendants very valuable information, including who has funding, and critically, who does not have funding.” Marra further responded to the argument that litigation funders might fuel frivolous litigation. “To the contrary, the evidence shows that funders serve as a very effective screen, only backing the most meritorious cases, and if anything, likely resulting in fewer weak cases getting filed,” Marra said. This statements builds on arguments Marra previously advantaged in a Vanderbilt Law Review article about litigation funding. The Bloomberg article is available here .