The scope of discovery of experts

Introduction
Shift towards broader disclosure
Broad interpretation of 'findings': Browne (Litigation Guardian of) v Lavery
Narrow interpretation of 'findings': Conceicao Farms Inc v Zeneca Corp
Today's approach: Bookman v Loeb
Comment

Introduction

Generally, an expert may testify at trial only after delivering, prior to trial, a report setting out the substance of his or her proposed testimony.(1) An inevitable by-product of this practice is an expert's file replete with an engagement letter, correspondence, notes, draft reports and other documents. While the party receiving an expert's report is entitled to some form of pre-trial discovery of the expert's file, there is debate over the extent to which the adverse party may examine the file.

In Ontario, Rule 31.06(3) of the Rules of Civil Procedure (RRO 1990, Reg 194) deals with the examination for discovery of an expert witness. Rule 31.06(3) provides as follows:

"Expert Opinions
31.06(3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in the action and of the expert's name and address, but the party being examined need not disclose the information or the name and address of the expert where,
(a) the findings, opinions and conclusions of the expert relevant to any matter in issue in the action were made or formed in preparation for contemplated or pending litigation and for no other purpose; and
(b) the party being examined undertakes not to call the expert as a witness at the trial." (emphasis added)

Historically, the scope of what entailed an expert's 'findings' - the factual underpinnings for his or her opinions and conclusions - was construed narrowly. In recent years, there has been a judicial shift narrowing the scope of litigation privilege in favour of broader pre-trial production. As the Supreme Court of Canada in Blank v Canada (Department of Justice) noted: "litigation privilege has had… to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process".(2)

How far this trend should continue is now the subject of some controversy. One approach, propounded by Justice Ferguson in Browne (Litigation Guardian of) v Lavery,(3) calls for disclosure of everything that passes between a solicitor and an expert, including all correspondence, during the preparation of the expert's report. The competing view, considered (but not decided) by the Ontario Court of Appeal in its decision in Conceicao Farms Inc v Zeneca Corp,(4) is that litigation privilege should continue to protect against compelled disclosure of the expert's entire file, and that only the "foundational information" that formed the basis for the expert opinion must be disclosed. This update looks at the differing approaches and how they might be resolved.

Shift towards broader disclosure

Historically, none of an expert's materials was subject to disclosure - even after the expert took the stand as a witness.(5)

The first step towards broader pre-trial disclosure was requiring the production of an expert's file when the expert was called as a witness. In Kaptsis v Macias Justice Moldaver noted that if a party chose to call its experts at trial, the adverse party was likely to be entitled to examine the experts' records. However, in the context of pre-trial disclosure, "to interpret the word 'findings' to include clinical notes and records would amount to an unwarranted broadening of the meaning of the word".(6) As long as an expert's report contained his or her findings (ie, the factual underpinnings supporting the opinions and conclusions), there was no need to produce any additional documents that the expert relied upon in preparing his or her report until trial.(7)

Following Kaptsis, the courts began to consider whether any otherwise privileged documents could be subject to pre-trial disclosure under the rubric of 'findings'. In Beausoleil v Canadian General Insurance Justice Howden drew a distinction between documents that an expert 'considered', and those 'relied upon' by that expert in forming his or her opinions. Documents relied upon needed to be disclosed as a matter of "full and fair disclosure before trial".(8) Soon thereafter, the distinction between documents considered and relied upon was dropped altogether.(9)

Broad interpretation of 'findings': Browne (Litigation Guardian of) v Lavery

The scope of pre-trial disclosure reached its high point in Justice Ferguson's decision in Browne (Litigation Guardian of) v Lavery.(10) In Browne the defendants had retained CR Eddie, an engineer, as an expert who provided defence counsel with a report. The defendants subsequently retained an engineering firm as a second expert, supplied it with a copy of Eddie's report and undertook not to call Eddie as an expert at trial. The plaintiff brought a motion to compel production of the Eddie report.

The court began by identifying several relevant common law principles gleaned from R v Stone,(11) a then-recent criminal law Supreme Court decision that dealt with a defence expert's report. These principles included the following:

• A report prepared by an expert at the request of counsel for litigation purposes is privileged under the category of litigation privilege; and
• Once an expert is called as a witness at trial, the opposing party is entitled to production of the 'foundation' of the expert's opinion.

While the court noted that Stone had not addressed the issue of disclosure of information in addition to the expert's report, it concluded that the reasoning in Stone had a much broader application and should guide what level of pre-trial disclosure was required by Rule 31.06(1).(12)

After canvassing recent case law interpreting the scope of the 'findings' of an expert - referred to in Stone as the "foundation" of his or her opinion - Ferguson concluded that "the weight of authority and the recent trend is to give a broad interpretation to the term 'findings'".(13) He specifically rejected the Beausoleil principle that the information included in an expert's findings was restricted to that which the expert actually relied upon, reasoning that "the fundamental difficulty with that principle is that there is no practical and fair way to determine what documents (either in whole or in part) have been influential or relied upon".(14) Ferguson concluded that unless the defendants undertook not to call the engineering firm as an expert, production of the Eddie report was required under Rule 31.06(1).

During the course of his reasoning - although not strictly necessary for his decision and therefore obiter dicta - Ferguson tentatively opined that:

"our system of civil litigation would function more fairly and effectively if parties were required to produce all communications which take place between counsel and an expert before the completion of a report of an expert whose opinion is going to be used at trial." (emphasis added)(15)

In other words, the notion of complete pre-trial disclosure of the expert's file was now squarely engaged.

Narrow interpretation of 'findings': Conceicao Farms Inc v Zeneca Corp

In 2006 an opportunity to consider Ferguson's view presented itself in the Ontario Court of Appeal's decision in Conceicao Farms Inc v Zeneca Corp.(16)

In Zeneca the document at issue - over which privilege had been asserted at trial - was a memorandum transcribing a telephone conversation that had taken place between the defendant's expert and then-counsel. The trial judge dismissed the action. On becoming aware of the memorandum (in the context of submissions on costs), the plaintiffs appealed the trial decision and brought a motion to compel production of the memorandum, arguing that they were unable to cross-examine properly the defendant's expert at trial without it. Initially, a single judge of the court of appeal granted the plaintiffs' motion, finding that the memorandum contained foundational information for the expert's opinions; the defendants sought a review of that order from a panel of the court of appeal.

That panel set aside the single judge's order, but based its decision on the reasoning that since Rule 31.06(1) applies to the discovery stage of litigation, the plaintiffs were not entitled to obtain disclosure after trial. While the court did address the uncertainty of the scope of disclosure required under the rule, it did so in obiter:

"There is an area of debate concerning the scope of information that may be obtained pursuant to [Rule 31.06(1)]. It clearly encompasses not only the expert's opinion but the facts on which the opinion is based, the instructions upon which the expert proceeded, and the expert's name and address. How far beyond this the right to obtain foundational information (as our colleague called it) extends, need not be determined here. Suffice it to say that we are of the view that it does not yet extend as far as is tentatively suggested in Browne (Litigation Guardian of) v. Lavery… We simply proceed on the basis that the rule entitles the appellant to obtain on discovery the foundational information for [the expert's] final opinion."(17)

In a more definitive statement, the court also discussed the type of disclosure required by Rule 31.06(1):

"the rule is about the information that a party may obtain on discovery concerning the findings, opinions and conclusions of another party's expert. It speaks to the right to obtain disclosure, whether the information to be disclosed is contained in a document or not. It does not speak to the production of documents."(18)

Today's approach: Bookman v Loeb

While Browne and Zeneca represent bookends delineating the potential scope of the information included in an expert's findings, no decision since Zeneca has ventured to refine that scope further. Instead, courts have approached each case on its own particular facts, it appears. Bookman v Loeb,(19) a recent family law decision, provides a good example of how a balance between Browne and Zeneca might be struck.

In Bookman the court dealt with a request to permit late filing of the plaintiff's expert report. As part of her order allowing the report to be filed, Justice Mesbur considered what, if any, additional information the plaintiff should be required to produce pursuant to Rule 31.06(1).

After briefly reviewing the authorities discussed in this update, Mesbur concluded that:

"the scope of what must be produced lies somewhere between the foundational information for the expert's opinion, and everything that has passed between the expert and the instructing solicitor, including the expert's entire file."(20)

She then went on to consider several different disclosure requests made by the defendants:

• Notes of meetings between counsel and expert prior to preparation of the report - while the solicitor's notes were protected by solicitor-client privilege, Mesbur ordered that any of the expert's notes of any meetings that reflected any information that the expert had obtained that formed part of his opinion - whether factual or by way of assumption - be produced.
• Letters of instruction - Mesbur held that copies of letters of instruction, whether from current counsel or past counsel, were clearly subject to disclosure. If no such letters existed, then the expert or counsel had to provide the particulars of the instructions provided, including any changes made to those instructions.
• Emails, letters or other correspondence passing between prior counsel and expert - these communications were subject to litigation privilege that had not yet been waived.
• Expert's file - Mesbur noted that both Blank and Conceicao suggested that the proper approach was to maintain privilege in an expert's file until trial. Accordingly, she declined to order production.
• Prior drafts of expert reports - Mesbur ordered that prior drafts of the expert's report be produced, although this was chiefly because the plaintiff agreed to produce them.
• Mesbur also ordered that the expert produce an outline of any assumptions that he was advised to make, together with particulars of any texts, articles or case law that he relied upon in coming to his opinion.(21)

Comment

It is clear from the jurisprudence that the law is evolving towards greater disclosure. While the scope of disclosable 'findings' has developed boundaries on each end, the tension between the desire for broad pre-trial disclosure and the need to maintain litigation privilege over experts' materials has yet to be resolved definitively.

When faced with the question of the appropriate level of disclosure of an expert's materials during pre-trial discovery, counsel would be wise to consider the extent of information that formed a part of the factual basis for their expert's opinion. It can be inferred from Bookman that this information should include engagement letters and any subsequent correspondence with counsel that clarified or changed the instructions given to the expert. It should also include any of the expert's notes from meetings in which the expert had gathered information, as well as a summary of any assumptions made by the expert in arriving at his or her opinion that are not outlined in the report. To the extent that they indicate any changes made to the factual basis of a final report during its formulation, draft reports may also form part of the expert's findings.

Counsel should also be sure to distinguish between information and documents. Rule 31.06(1) contemplates the disclosure of information, not the production of documents. Regardless of the scope of disclosure which counsel determines to be appropriate, they should be sure to tailor their method of disclosure to avoid producing otherwise privileged documents containing extraneous information that is not part of their expert's findings.