The Court of Appeal for Ontario’s January 29, 2015 decision in Moore v. Getahun (Moore) has confirmed that there is nothing improper in counsel reviewing a draft report with an expert witness, and that draft expert reports and related material are protected from production unless there is a reasonable basis to suspect that counsel improperly influenced the expert.
The trial judge in Moore, a medical malpractice case, ordered the defendant’s testifying expert physician to produce copies of his draft expert reports and proceeded to question the expert at length about the changes he made to the reports after consulting with the defendant’s lawyer. The trial judge went on to hold that “counsel’s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications. . . .” The trial decision caused alarm and attracted criticism from counsel and expert witnesses in Canada and abroad.
The Court of Appeal firmly rejected the trial judge’s proposed approach to communications between lawyers and expert witnesses, but ultimately dismissed the appeal on the basis that the trial judge’s error did not affect the outcome.
COMMUNICATION WITH EXPERTS PERMISSIBLE
The Court of Appeal rejected the trial judge’s proclamation that consultation between counsel and expert witnesses to review draft reports must end. The court held that “expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.” The court observed that lawyers play a crucial role by explaining legal issues to the expert witness, ensuring that reports comply with the rules of evidence and the Rules of Civil Procedure, ensuring that experts address the relevant issues and making sure that reports are written in a style that is accessible and comprehensible.
The court noted that there are already protections in place to ensure that lawyers do not compromise the independence of expert witnesses. The court cited the ethical and professional standards of the legal profession, the ethical standards of professions to which expert witnesses belong and the entitlement of parties to cross-examine experts. The court cited The Advocates’ Society’s Principles Governing Communications with Testifying Experts, which emphasize that lawyers have a duty to preserve the objectivity of experts.
Leaving expert witnesses to prepare reports without input from counsel would, the court held, cause parties to dispose of poorly drafted reports rather than edit and improve them, thereby increasing costs and compromising access to justice. The court was also concerned that the trial judge’s approach would encourage the use of expert witnesses who frequently testify in court and are perceived to be “hired guns” likely to provide partisan opinions. The court concluded that the changes suggested by the trial judge “would not be in the interests of justice and would frustrate the timely and cost-effective adjudication of disputes.”
COMMUNICATION WITH EXPERTS REMAINS CONFIDENTIAL
The Court of Appeal went on to hold that a party should not be allowed to demand production of draft reports or notes of interactions between counsel and expert witnesses unless that party has a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert.
The court confirmed that litigation privilege protects communications with a third party, including an expert witness, where the dominant purpose of the communications is to prepare for litigation. The careful preparation of a case for trial requires such protection to enable lawyers to work with experts while they make inquiries, test hypotheses and prepare reports. The court held that “[c]ompelling production of all drafts, good and bad, would discourage parties from engaging experts to provide careful and dispassionate opinions and would instead encourage partisan and unbalanced reports.”
While upholding the zone of protection around communications with experts, the court recognized the requirement in the Rules of Civil Procedure that expert opinions and accompanying foundational information be produced before trial. The court also preserved the ability of a court to order disclosure of communications where a factual foundation has been established to support a reasonable suspicion that counsel improperly influenced the expert, to guard against counsel infringing on experts’ independence.
The Court of Appeal’s rejection of the trial judge’s positions on consultation with experts and disclosure of communications with experts preserves widely accepted and long-standing practices in Ontario. While not mentioned explicitly, the Court of Appeal’s decision is also consistent with Rule 26 of the Federal Rules of Civil Procedure in the United States, which codify the protection of communications with expert witnesses.
The decision serves as a reminder of the existing limits on communications between lawyers and expert witnesses to ensure that expert witnesses remain independent and impartial—particularly the requirements of the Rules of Civil Procedure respecting expert evidence, and the ethical and professional obligations of expert witnesses and counsel. Careful management of communications with expert witnesses, from first retainer through the end of trial, remains of paramount importance for all trial counsel and their clients.