Our article on Europe's push to regulate covers the continental fight over disclosure, centered on the Voss Report and a proposed fee cap. The domestic version of the same argument has its own academic anchor. In her 2019 U.C. Davis Law Review article "Follow the Money? A Proposed Approach for Disclosure of Litigation Finance Agreements," Maya Steinitz argued that the search for one bright-line disclosure rule, always require it or never require it, is the wrong project, because funding scenarios vary too widely in stakes, sophistication of the parties, and risk of genuine conflict for a single rule to fit all of them well. Her proposal instead is a balancing test, applied case by case, weighing the reasons a party might legitimately want disclosure against the reasons a claimant might legitimately want to keep the arrangement confidential.
That framework maps onto a real and currently unsettled legal landscape. Some states, including a handful that have passed specific litigation-funding disclosure statutes, now require funding agreements to be disclosed to the opposing party or the court in certain circumstances. Federal courts remain split on whether a funding agreement is automatically discoverable or protected as attorney work product, and proposed federal legislation addressing disclosure has been introduced in Congress without yet becoming law. Steinitz's September 2023 written testimony before the U.S. House Committee on Oversight and Accountability, given during a hearing specifically on third-party litigation funding transparency, is a compact and freely available statement of where federal attention is currently pointed.
The practical implication for anyone entering a funding agreement today is to assume the document could become discoverable in your specific jurisdiction, even if current law suggests otherwise, because that law is actively being litigated and legislated. That argues for keeping privileged litigation strategy discussions out of the funding agreement itself and in genuinely separate, properly protected communications with counsel, regardless of how the disclosure debate ultimately resolves.