In this patent infringement action, the defendant sought the production of documents that the plaintif, IOENGINGE, had provided to potential companies that could fund litigation. IOENGINGED claimed that the documents were protected by the work product doctrine. The defendant sought production of the withheld documents.

IOENGINE explained that the approximately 70 documents listed on the privilege log were prepared by its counsel and by the inventor of the patent-in-suit, Mr. McNulty, for litigation funders in anticipation of and during litigation.

The district court began its analysis by nothing that "[i]n recent cases, other courts have found that documents prepared for litigation-funders are protected, reasoning that 'Mitigation strategy, matters concerning merits of claims and defenses and damages would be revealed if the documents were produced.' Devon It, Inc. v. IBM Corp., No. CIV.A. 10-2899, 2012 WL 4748160, at *1 (E.D. Pa. Sept. 27, 2012). See also Mondis Tech., Ltd. v. LG Elecs., Inc., No. 2:07-CV-565-TJW-CE, 2011 WL 1714304 at *3 (E.D. Tex. May 4, 2011) (holding that documents 'created for potential investors contain information and work product that were prepared in assistance with [1 counsel for the purpose of aiding future litigation.') Id. ('Although the documents may not have been prepared in connection with ongoing litigation, the documents were at a minimum created for possible future litigation.')

Based on these cases, the district court concluded that the documents should be protected by the work-production doctrine: "the court finds that the documents IOENGINGE seeks are protected by the work-product doctrine. Having found that these documents are protected, the court need not reach the question of whether the production of these documents would also intrude upon the attorney-client privilege under the 'common-interest' doctrine."

Accordingly, the district court denied the request for the production of documents shown to potential litigation funding entities.

IOENGINE v. Interactive Media Corp., Case No. 14-1571-GMS (D. Del. Aug. 1, 2016)