Wiscons
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Not to be snippy, but asking because there’s already an example of one way to handle this (Louisiana, where one names an insurer as a party):
Is sauce for the goose sauce for the gander here? That is, should ALL third parties picking up the legal tab be fully disclosed? How about when, say, a trade association is picking up the tab for a member? And more to the point, what definition of “contingent” really applies here, since next year’s insurance premium is at least arguably contingent upon keeping this year’s legal costs (and claims payments!) under control?
There’s also an issue that should probably be considered, but is in all fairness outside the quoted language: The source of funds for institutional intervenors. One obvious — but far from exclusive — example is ideological repeat objectors to class-action settlements. It seems to me that this bears some consideration if the objective is to ensure disclosure that would assist all parties in evaluating settlement posture, etc. Of course, at this level it also runs into problems disturbingly parallel to the State of Alabama demanding the NAACP’s membership list…
Of course, we could well state that only one aspect is administratively workable so that’s the only one we’re going to concern ourselves with. Plausible deniability and all that.
Posted by: C.E. Petit | Apr 5, 2018 3:08:41 PM
How the claim may proceed, and particularly one or the other party’s willingness to settle, seems to me emphatically NOT to be relevant to the claims or defenses of the parties, as the federal courts seem to be reasonably construing those terms. The word “substantive” seems to me to be clearly implied here, and it would be a real stretch for a defendant to argue credibly that any information about third-party litigation funding could possibly lead to the discovery of admissible evidence regarding the substance of the plaintiff’s case (or a substantive defense other than bias of a witness, not the plaintiff’s bias to keep fighting). This, it seems to me, is precisely why Rule 26(a)(1) allows (indeed, requires) the disclosure of insurance information on the defense side, but note that it does NOT say that defense-cost insurance must be disclosed, only insurance that might be liable to satisfy a judgment. The former definitely relates to D’s willingness to settle, but I believe it remains out of bounds in terms of relevancy. Without this specific provision, I don’t believe even ultimate liability insurance was within the bounds of relevancy, and it seems to me that’s precisely why Wisconsin legislators added the provision you describe on P’s side. If you are aware of any case supporting the notion that any of this litigation-willingness discovery might be relevant under R.26(b), I’d really appreciate knowing about it. Interesting stuff!
Posted by: Jason Kilborn | Apr 5, 2018 1:47:17 PM
I could see an argument that it affects how the claim may proceed–wilingness of the other party to settle. It also could affect the bias of particular witnesses. Given that evidence need not be admissible to be discoverable (recall the old “reasonably calculated to lead” standard), there may be an argument there.
Posted by: Howard Wasserman | Apr 5, 2018 1:14:12 PM
Interesting indeed , just worth to read further , about the greater purposes it seems of such novel attitude , here I quote major one for example (Institute for legal reform ) :
The U.S. Chamber Institute for Legal Reform (ILR) has long warned that the practice leads to more lawsuits, unnecessarily prolongs litigation, and undercuts plaintiffs’ control of a case. Indeed, an executive at one of the world’s largest litigation funders recently admitted to the WSJ, “We make it harder and more expensive to settle cases.” Wisconsin’s new law brings litigation funding out of the shadows, so that funders in the state can’t anonymously “pull the strings” of a lawsuit without other parties’ knowledge.
One may read here :
Thanks
Posted by: El roam | Apr 5, 2018 12:58:02 PM
A real question, trying to move toward an answer to yours, not intended to be rhetorical or snippy: How would litigation funding be “relevant to any party’s claim or defense” [R.26(b)(1)]? Discovery on the defendant’s eventual wherewithal to pay a judgment is not “relevant” until post-judgment, so why would the eventual allocation of an award and/or the related funding of the plaintiff’s side be relevant for discovery? I understand, of course, why defendants might want to know this, but unless it can be linked to bias in a witness or something, it doesn’t appear to fall within the scope of relevancy in 26(b).
Posted by: Jason Kilborn | Apr 5, 2018 12:50:43 PM