The Ontario Court of Appeal has put to rest any notion that the practice of consultation between counsel and expert witnesses to review draft reports is improper. In its decision in Moore v. Getahun, 2015 ONCA 55 rendered on January 29, 2015, the Court explained that “banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority”.
The Court observed that consultations between counsel and expert witnesses are essential to ensure that reports comply with the Rules of Civil Procedure and the rules of evidence, address relevant legal issues and are written in an accessible manner. Without engaging in communications with the expert, lawyers would be prevented from fulfilling their mediating role of explaining legal issues to witnesses and presenting complex evidence to the court.
Although the underlying dispute dealt with medical malpractice, the court noted that in technical areas such as patent law experts may require substantial instruction by lawyers. As such, preparation of an expert’s report may necessitate a high degree of consultation and involve an iterative process of numerous draft reports.
The Court further held that documentation regarding draft reports and consultations need not be disclosed to opposing parties. Mandating such disclosure would be contrary to the doctrine of litigation privilege and would compromise careful preparation of reports. However, the Court noted that the privilege extending to draft reports is not absolute. For example, disclosure of draft reports or discussions may be ordered where there are reasonable grounds to suspect that counsel communicated in a manner likely to interfere with an expert’s independence.
While the Court acknowledged that a process of consultations risks a loss of objectivity on the part of the expert, it observed that the ethical and professional standards in the legal profession serve to diminish such risk. Likewise, the ethical standards of other professional bodies place an obligation on their members to be independent and impartial when giving expert evidence. Finally, the Court noted that the ability of counsel to cross-examine experts on their reports serves as an effective tool to expose any improper conduct or influence.