Of course, process funders have to make decisions based on their investment strategies because they are involved in the litigation. As a result, complainants will generally share confidential and privileged information with funders. The question that often arises is whether the disclosure of confidential solicitor-client communications or work product with bipartisan litigation funders constitutes a breach of confidentiality and, therefore, a waiver of privileges, or whether the privilege of common interest protects the disclosure of those communications. Rashid also argued that he reasonably believed that the common interest privilege applied when he shared information, because he had received only an upjohn warning from Paul Weiss before making his own advice and never obtaining it again. The Tribunal rejected this argument and found that the administration of Upjohn`s warning actually reinforced Paul Weiss`s understanding that he had no common legal interest with Rashid, and that the fact that Paul Weiss managed the warning only once is not evidence that the parties have a common legal strategy. The court also rejected Mr. Raschid`s argument that Apollo`s decision to pay his legal fees was evidence that the parties agreed on a common legal strategy. The Delaware Department recently looked at Acceleration Bay Llc v. Activision Blizzard, No. 16-453-RGA, 2018 U.S.
Dist. LEXIS 21506 (D. Del. Feb. 9, 2018). There, the complainant negotiated a trial financing agreement with Hamilton Capital and provided emails and documents related to the diligence of the process`s funding. Id. at 4. The applicant attempted to exclude communication between himself and Hamilton Capital for three reasons: (1) labour product lawyer; (2) The privilege of the common interest; and (3) irrelevant. Id. Andrews J.A. found that each of these reasons was inescapable and made the Masters special title „which required the complainant to present what he had provided in writing to Hamilton Capital or his counsel at the time of Hamilton[sic] Capital`s due diligence.“ Id.
at 10. In sec v. Rashid, the SEC investigated the expenses of the accused Mohammed Rashid, while he was employed at Apollo Management, L.P. During the course of the investigation, Rashid was represented by a lawyer for Crowell -Moring LLP and Apollo by lawyers for Paul, Weiss, Rifkind, Wharton and Garrison LLP. During the course of the investigation, Rashid ended his relationship with Crowell and put new lawyers in place. During an inquest hearing against his former Crowell lawyer, Rashid and his new lawyers objected when the SEC attempted to ask questions about Crowell`s lawyer`s past communications with Paul Weiss, arguing that such communications were protected by the privilege of the common interest.