Common Interest Doctrine Does Not Protect Communications With Litigation Funder Prior to Written Agreement

The court overruled plaintiff's objection to the special master's order granting in part defendants' motion to compel the production of documents plaintiff provided to a third party as part of a litigation financing agreement that plaintiff withheld under the common interest doctrine. "Plaintiff argues that '⁠[l]itigation funders provide funds 'for the sake of securing, advancing, or supplying legal representation,' and thus have a common legal interest with the plaintiffs they fund.'. . . However . . . 'it [does not] appear that there was any written agreement at [the time of the communications] to have a legally 'common interest' in whatever was provided by Plaintiff.' Furthermore, the Special Master explained that the 'documents were provided before any agreement was reached between Plaintiff and [the litigation funder], and before any litigation was filed.' Thus, Plaintiff has not shown that Plaintiff and [the litigation funder] possessed identical legal interests in the patents-in suit or were otherwise 'allied in a common legal cause' at the time of the communications."

Acceleration Bay LLC v. Activision Blizzard, Inc., 1-16-cv-00453 (DED February 9, 2018, Order) (Andrews, USDJ)