Another Court Holds That Sharing Legal Memorandum With Potential Litigation Funders Does Not Make Them Discoverable

There is a growing body of case law across multiple jurisdictions (including those that regularly see high stakes commercial litigation) holding that communications with litigation funders will not effect a waiver of work product protection, assuming the parties take common-sense precautions such as signing a non-disclosure agreement.  A recent case from the Eastern District of Texas adds to that jurisprudence, holding that attorney memos prepared for and shared with prospective litigation funders are protected attorney work product, even under the 5th Circuit’s comparatively narrower test for what qualifies as work product.