The Court of Appeal for Ontario confirmed today that:
counsel can and should discuss draft expert reports with their
expert witnesses, and
draft reports and other communications between counsel and
expert witnesses are presumptively privileged and need not be
disclosed "absent a factual foundation to support a reasonable
suspicion that counsel improperly influenced the expert".
The decision is Moore v
Getahun, 2015 ONCA 55. In the court below, the trial
judge had ruled, among other things, that counsel should not have
any undocumented discussions with expert witnesses and, in
particular, should not review and comment on draft reports.
The decision set off a mini-firestorm in the legal and expert
witness community. The appeal involved no fewer than six
intervening legal and expert witness associations, some of whom had
struck committees to consider the issues raised by the lower court
decision. Even the victorious plaintiff acknowledged that the trial
judge had gone too far.
The Court of Appeal agreed and helpfully clarified the law on
communications between counsel and experts and the disclosure of
expert reports. Prior to this decision, some lower courts had
required production of draft expert reports, the risk of which led
counsel and experts to behave as though drafts could be produced in
almost every case.
The Court of Appeal confirmed that production is the exception,
not the rule. Draft reports and other communication between counsel
and experts are presumptively litigation privileged and shielded
from production unless the party requesting disclosure can
demonstrate a "factual foundation to support a reasonable
suspicion that counsel improperly influenced the expert". This
will be a heavy burden in most cases.
Following this decision, we can expect many fewer instances in
which draft expert reports are disclosed. Hopefully, this will
reduce the time and cost parties spend avoiding creating drafts or
fighting about the meaning of slight changes between drafts so that
everyone can focus on the merits of the opinions themselves.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).