A Practical Resource for a Growing Discovery Battleground
As litigation finance becomes mainstream, discovery battles over funding arrangements have intensified. Certum Group has released a free Model Brief Opposing Discovery of Litigation Funding—a practitioner-ready document designed to give litigators immediate access to the strongest arguments, cases, and frameworks for resisting what the firm characterizes as improper discovery requests.
At Lawtechnology.ai, we track resources that help legal professionals navigate the evolving intersection of finance and litigation strategy. This publication addresses a pain point many practitioners face: building arguments from scratch each time opposing counsel seeks funding information.
The Discovery Problem
Across federal and state courts, parties increasingly seek discovery into litigation funding sources and materials. Certum identifies several concerns with these requests:
Privilege and work-product concerns: Communications between funded parties and funders often involve attorney analysis, case strategy, and legal theories—information traditionally protected from disclosure.
Chilling effects on access to justice: If funding arrangements become discoverable, potential claimants may be deterred from seeking the capital necessary to pursue legitimate claims against well-resourced defendants.
Merit-shifting tactics: Discovery requests targeting funding arrangements can divert attention from the substantive issues in a case—focusing litigation on who is paying rather than what happened.
Increased costs and delays: Fighting over funding disclosure adds expense and time to litigation, potentially advantaging parties with deeper pockets.
What the Model Brief Provides
The publication offers a structured, research-backed framework that practitioners can adapt to specific cases. Rather than reinventing arguments each time a funding-related discovery request arrives, litigators can draw on pre-assembled legal authority and persuasive frameworks.
The model brief joins Certum’s broader library of litigation finance resources, including their Guide to Litigation Funding and annual surveys of in-house counsel on litigation risk.
Industry Context
The release comes amid ongoing policy debates about litigation funding transparency. In recent Bloomberg coverage, Certum’s William Marra argued that mandatory disclosure requirements could systematically disadvantage plaintiffs who lack independent resources—revealing not only which parties have funding, but critically, which parties do not.
Marra has also pushed back against claims that litigation funders encourage frivolous litigation, arguing that funders actually serve as an effective screening mechanism, backing only the most meritorious cases.
These policy arguments inform the practical advocacy tool the model brief represents.
Related Developments: Protecting Confidentiality from the Start
Certum has also published guidance on the role of non-disclosure agreements in litigation funding relationships. The firm emphasizes that NDAs establish the foundation for protecting confidentiality before any substantive information is exchanged, reducing the risk that defendants will later argue confidentiality has been waived.
Key NDA components identified include precise definitions of confidential information, information-sharing protocols for diligence, and provisions tailored to the litigation context—such as acknowledgments of common legal interest.
Strategic Implications
For practitioners on either side of funding disclosure disputes, the model brief’s availability signals continued resistance to broad disclosure requirements. Defense counsel should expect more sophisticated opposition to funding-related discovery requests. Plaintiff-side attorneys gain a practical tool for protecting funding arrangements without building arguments from scratch.
For in-house counsel evaluating whether to pursue or oppose disclosure, the model brief provides a preview of the arguments they’ll face—useful intelligence regardless of which side they’re on.
Access
The Model Brief Opposing Discovery of Litigation Funding is available for free download from Certum Group.
Access the complete announcement and related resources from Certum Group, including links to download the model brief.