Uber’s New Litigation Funding Terms Would Hinder Accountability
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More Stories (3)<br>Search by Topic<br>digital privacy<br>third-party practice<br>general work rules<br>reasonable expectation of privacy<br>corporate waiver of attorney-client privilege<br>artificial intelligence<br>sex offenses<br>mass actions<br>litigation finance<br>protectionism<br>More Topic (3)<br>Search by Company<br>Uber Technologies Inc
Uber Technologies Inc. faces mountains of lawsuits seeking to hold the company accountable, including suits from more than 3,000 alleged victims of sexual assault by Uber drivers and a high-profile case brought by California drivers recently kicked off the platform. Uber recently updated its terms of service in an apparent attempt to scare away the funders who make such lawsuits possible.<br>Uber’s new terms aim to require any Uber user who sues the company to disclose information regarding any litigation funders involved in their lawsuit. Litigation funders provide money to attorneys and plaintiffs, who typically owe nothing unless they win their case. Plaintiffs and attorneys in resource-intensive mass tort cases — such as Uber’s multidistrict sexual assault lawsuit — often rely on litigation funding.<br>If Uber’s new terms and conditions are enforced, users who sue the company will be forced, among other things, to disclose to the company any litigation funding agreements, and to “waive any attorney client privilege, work product privilege, common interest privilege,” and “any claim of confidentiality” over all communications with litigation funders.<br>Those documents could be extremely valuable to Uber. They might reveal, for instance, an attorney’s evaluation of a case’s strengths or weaknesses. Disclosure could be even more harmful to litigation funders themselves, as they might reveal sensitive business information.<br>Are Uber’s funding disclosure terms enforceable? Probably not. But they may still end up quashing meritorious lawsuits.<br>Uber’s Terms<br>Uber’s terms are dubious at best. Take its attempt to force users to waive work product protection. That doctrine protects from disclosure documents “prepared in anticipation of litigation or trial by or for another party or its representative.” The majority of courts to consider the issue have extended the protection to documents shared with litigation funders — particularly those reflecting attorneys’ mental impressions, conclusions, or opinions, which are afforded heightened protections.<br>Uber’s terms ignore the law on waiver. A litigant waives work product protection only where they voluntarily disclose privileged material to their adversary or disclose material in a manner “inconsistent with maintaining secrecy from possible adversaries.” Assuming Uber users don’t voluntarily hand over their funder communications to Uber or disclose them without regard for secrecy, there’s no doctrinal hook for Uber’s attempted waiver.<br>Then, take what may be Uber’s boldest move: its attempt to require litigants to disclaim confidentiality over communications with litigation funders. This broadly worded provision could seriously undermine typical protections against disclosure: Both the attorney-client privilege and the common interest doctrine hinge on “confidential” communications. Documents are confidential only if a party has a “reasonable expectation” that the document will, in fact, be confidential — a fact-intensive analysis that considers “the circumstances and context of the communications.”<br>Uber buried its unannounced revisions in a 14,000-word-long clickwrap agreement few users ever read. Neither logic nor law suggests those terms could eliminate users’ “reasonable expectation” of confidentiality over their communications with attorneys and litigation funders. Courts, for instance, have found that company policies permitting email monitoring didn’t destroy employees’ expectations of confidentiality over emails where the employee had no reason to know the policy existed.<br>Uber’s best support on this point may be the highly publicized ruling in United States v. Heppner earlier this year. There, Judge Jed Rakoff determined that a criminal defendant’s chats with Claude weren’t confidential since Claude’s privacy policy reserved the right to give those inputs to third parties. But even if Heppner is right (and it’s been criticized), it found Claude’s terms defeated confidentiality for...