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Miller UK Ltd. v. Caterpillar, Inc.

United States District Court for the Northern District of Illinois, Eastern Division

January 6, 2014, Decided; January 6, 2014, Filed

Case No. 10 C 3770

Opinion

 [*717]  MEMORANDUM OPINION

INTRODUCTION

Caterpillar and Miller had a decades-long, mutually beneficial business relationship, during which Miller shared confidential information and trade secrets with Caterpillar. In 2008, Caterpillar suddenly severed that relationship and began manufacturing a product that previously had utilized and allegedly depended on the confidential information supplied by Miller. Miller sued, claiming that Caterpillar misappropriated its trade secrets. Caterpillar has fiercely denied the charges, and the case  [**3] has been bitterly contested at every turn. The overwhelming majority of the disputes have been over discovery, "the bane of modern litigation." Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000).

 [*718]  Protracted discovery is expensive and is a drain on the parties' resources. Where a defendant enjoys substantial economic superiority, it can, if it chooses, embark on a scorched earth policy and overwhelm its opponent. See Liesa L. Richter, Making Horses Drink, 81 Fordham L. Rev. 1669, 1695 (2013); Matthew Jarvey, Boilerplate Discovery Objections: How They Are Used, Why They Are Wrong, And What We Can Do About Them, 61 Drake L. Rev. 913, 915-916 (2013); William Griesbach, The Joy Of Law, 92 Marq. L. Rev. 889, 907 (Summer 2009). That is what Miller insists has occurred here, (Miller Memorandum at 2) — a charge denied by Caterpillar. But even where a case is not conducted with an ulterior purpose, the costs inherent in major litigation can be crippling, and a plaintiff, lacking the resources to sustain a long fight, may be forced to abandon the case or settle on distinctly disadvantageous terms.

Creative businessmen, ever alert to new opportunities for profit, perceived in  [**4] this economic inequality a chance to make money and devised what has come to be known as third party litigation funding, where money is advanced to a plaintiff, and the funder takes an agreed upon cut of the winnings. If the plaintiff loses the case, the funder may get nothing. Third party litigation funding is a relatively new phenomenon in the United States. The business model has generated a good deal of commentary about and controversy over its intrinsic value to society (or lack thereof depending on one's perspective) and the discoverability of the actual funding contract and information turned over to prospective funders by a party's lawyer during negotiations to secure financing.1

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17 F. Supp. 3d 711 *; 2014 U.S. Dist. LEXIS 779 **; 2014 WL 67340

MILLER UK LTD. and MILLER INTERNATIONAL LTD., Plaintiffs, v. CATERPILLAR, INC., Defendant.

Prior History: Miller UK Ltd. v. Caterpillar Inc., 859 F. Supp. 2d 941, 2012 U.S. Dist. LEXIS 58187 (N.D. Ill., Apr. 26, 2012)

CORE TERMS

documents, funders, funding, third party, discovery, parties, funding agreement, attorney-client, common interest, privileged, champerty, cases, confidentiality, disclosure, financing, legal interest, work-product, estimate, waived, confidentiality agreement, Ethics, privilege log, real party in interest, communications, Third-Party, in camera, Declaration, defenses, purposes, entity