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.