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FDCC Pillars
We Need to Ask
About TPLF
by Scott Kreamer
Undisclosed third-
party litigation
funding (TPLF)
is increasingly
complicating the
ability of defense
Scott Kreamer
lawyers to manage
their clients’ cases and the ability
of courts to administer their
courtrooms. When TPLF contracts
remain undisclosed, courts
and parties do not know who
is controlling the litigation and
settlement decisions, or who stands
to benefit from any judgment or
settlement of the case.
Unfortunately, courts are
experimenting with a patchwork
of practices in response to this
growing trend. Some courts are
ignoring TPLF and its potential
impact on their cases. Some are
ruling that TPLF is not discoverable
under the “relevance” test of
FRCP 26(b)(1). Still others are
considering only the plaintiffs’
lawyers views via ex parte
conversations. And a few courts are
doing the only sensible thing, which
is ordering disclosure of TPLF
agreements.
One thing is certain: no one is
obtaining TPLF disclosure without
asking for it.
It is critical that defense lawyers
request TPLF disclosure in
discovery and move to compel
production of TPLF contracts.
This is the only way to find out
who is controlling decisions in
the courtroom, avoid conflicts of
interest and disruptions to the legal
process, and ensure compliance
with basic procedural rules.
Our allies at Lawyers for Civil
Justice (LCJ) have launched the
“Ask About TPLF” initiative with the
goal of making disclosure of TPLF
in federal court as routine as the
disclosure of insurance policies.
You can learn more about TPLF
disclosure, find examples of TPLF
discovery requests and motions,
and sign up for updates on the Ask
About TPLF website.
In addition to supporting your
efforts to obtain TPLF disclosure in
your litigation, LCJ is asking you to
www.thefederation.org
share your experience requesting
TPLF, regardless of the outcome.
LCJ is building the case for a new
TPLF disclosure rule by compiling
the experiences of lawyers who
have sought disclosure or who have
had to navigate TPLF-caused issues
in their litigation, arbitration, or
settlement negotiations.
LCJ’s efforts are focused on the
federal Advisory Committee
on Civil Rules, which is now
examining whether to adopt a
new federal disclosure rule. The
Advisory Committee recently took
a significant step toward a new
disclosure rule when it formed
a subcommittee to examine the
issue. At LCJ’s upcoming meeting,
members of the Civil Rules Advisory
Committee will participate in
an “open mic” session, allowing
lawyers to share their experiences
with undisclosed TPLF and their
views about the need for a rule
that would avoid the difficulty and
expense in securing disclosure of
concealed funding agreements.
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