The Ontario Court of Appeal’s recent decision in Moore v Getahun, 2015 ONCA 55 did two key things: First, it confirmed that consultation between counsel and experts about draft reports is appropriate – leading many practitioners to breathe a sigh of relief.[1] Second, Moore considered whether and when consultations between counsel and experts must be produced,[2] taking a relatively restrictive approach to disclosure. It is this aspect of Moore, in particular, that may clash with the existing case law and the practice of more liberal disclosure in Nova Scotia.

Moore holds that consultation between lawyers and experts is appropriate

The expert in Moore was a retired orthopedic surgeon, who opined that the appellant/defendant surgeon had properly used a full circumferential cast to treat the respondent/plaintiff’s broken wrist and had therefore not breached the standard of care.[3] It came up on cross-examination that the expert had spoken with counsel before finalizing his report, in a 90-minute conference call.[4] The expert made no substantive changes in the report after conversing with counsel.[5]

Nevertheless, the trial judge was very critical of this consultation, and her comments caused no shortage of concern amongst civil litigators across Canada.[6]

The Court of Appeal’s unanimous decision should alleviate this concern. The trial judge’s criticism was misguided and wrong, according to Justice Sharpe. He remarked:

[62]         I agree with the submissions of the appellant and the interveners that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do 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.

In Ontario, communications about drafts are presumptively privileged and not subject to disclosure

The next issue for the Court in Moore was “the extent to which consultations between counsel and expert witnesses need to be documented and disclosed to an opposing party.”[7] Rule 53.01(2.1) of the Ontario Rules of Civil Procedure requires the expert to set out in her report the “instructions provided to the expert in relation to the proceeding”[8] and other “foundational information” for the opinion.[9]

But communications between counsel and experts during the drafting process can go beyond these areas. Assuming the expert is submitting a report and testifying at trial,[10] when do draft reports and communications with counsel have to be disclosed to the other side?

The answer is: Rarely. Consultations about draft reports are presumptively privileged, at least in Ontario.

As Justice Sharpe explained: “The starting point for analysis is that such consultations attract the protection of litigation privilege.”[11] These consultations fall within the “zone of privacy” that the Supreme Court discussed in Blank v Canada (Minister of Justice), 2006 SCC 39, [2006] 2 SCR 319:

[69]         In Blank, the court noted, at para. 34, that litigation privilege creates “a ‘zone of privacy’ in relation to pending or apprehended litigation.” The careful and thorough preparation of a case for trial requires an umbrella of protection that allows counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports.

The upshot is that draft notes and reports, and records of communications with counsel about those drafts, are prima facie protected from disclosure.[12] Justice Sharpe explained this conclusion, and the policy reasons behind it:

[70]         Pursuant to rule 31.06(3), the draft reports of experts the party does not intend to call are privileged and need not be disclosed. Under the protection of litigation privilege, the same holds for the draft reports, notes and records of any consultations between experts and counsel, even where the party intends to call the expert as a witness.

[71]         Making preparatory discussions and drafts subject to automatic disclosure would, in my view, be contrary to existing doctrine and would inhibit careful preparation. Such a rule would discourage the participants from reducing preliminary or tentative views to writing, a necessary step in the development of a sound and thorough opinion. Compelling 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. Allowing an open-ended inquiry into the differences between a final report and an earlier draft would unduly interfere with the orderly preparation of a party’s case and would run the risk of needlessly prolonging proceedings. [Emphasis added.]

On the facts of Moore, it was an error for the trial judge to order production of the expert’s notes and drafts, and wrong for her to suggest “that all changes in the reports of expert witnesses should be routinely documented and disclosed.”[13]

There are two qualifications to the scope of litigation privilege in this context. First, the Ontario Rules already permit discovery of “the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined’”[14] and require disclosure of “‘the foundational information’ for the opinion” through inclusion in the report itself.[15]

Second, the Court may order expert-lawyer communications to be disclosed if there is reasonable suspicion of improper interference with the expert’s work:

Where the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity, the court can order disclosure of such discussions.[16]

The Court had earlier pointed out the general safeguards in place for ensuring an expert’s independence: The ethical obligations on all counsel involved; the expert’s own professional obligations; and the protections of the adversarial process itself, notably cross-examination.[17]

Moore seems to conflict with the practice in Nova Scotia

The Court in Moore took an expansive view of the scope of litigation privilege when it comes to draft expert reports, and communications with counsel about those drafts. This of course limits the party’s disclosure obligations. However, in Nova Scotia, a more liberal disclosure regime has governed, even after the 2009 Nova Scotia Civil Procedure Rules imposed a tighter “trial relevance” standard in place of the former “semblance of relevancy” test.[18]

Another change in the 2009 Rules was to remove discovery of experts.[19] Instead, Rule 55.11(3) lets the opposing side question the expert in writing on non-privileged information about:

  1. the expert’s qualifications;
  2. a factual assumption made by the expert;
  3. the basis for an opinion expressed in the expert’s report.

Rule 55 also requires that expert reports be disclosed ahead of the hearing or trial.

Flinn v McFarland, 2002 NSSC 272 is Nova Scotia’s leading case on disclosure of draft expert reports.[20] The Court in Flinn, clearly concerned about expert independence, held that earlier drafts had to be disclosed if they were developed in consultation with counsel:

[9]               At issue is the independence of the expert’s report.  The expert apparently prepared a draft report which he forwarded to counsel for the plaintiff for comments and upon receipt of comments prepared a final report which has been disclosed to the defendants.  Clearly, the extent to which the final report of the expert may be the result of counsel’s comments, is both relevant and entitled to be examined by counsel for the defendants.  This, however, does not extend to any earlier drafts the expert may have prepared which he, himself, may have amended, altered or revised in the course of considering the issues and his opinions.  It is the fact the expert submitted a draft report to counsel for the plaintiff and then prepared a final report, that may or may not have been revised in accordance with suggestions by counsel for the plaintiff, that the defendants are entitled to pursue in examining the expert as to his opinions and the basis on which he reached his opinions, including to the extent the opinions offered are his or may be the consequence of suggestions by plaintiff’s counsel.

Related communications with counsel would have to be disclosed too:

[17]         Whatever information and materials were provided to the expert must be disclosed.  If this involves discussions with the party, counsel for a party or with a third party, it is, may be, or perhaps should have been, part of the informational basis used by the expert in reaching his conclusion, and must be disclosed. The comments by counsel, on the draft report of the accident re-constructionist, must be disclosed to the defendants.

Flinn was decided several years before Blank, but Justice MacAdam still recognized that some material related to lawyer-expert communication would be privileged, as forming part of “the solicitor’s brief” (a cross between solicitor-client privilege and litigation privilege).[21] However, Justice MacAdam limited the scope of the privilege to discussions of “tactics and strategy” as long as they “only relate to the views of the plaintiff’s expert on any report or opinion of defendant’s expert…”[22] (e.g. in preparation for cross-examining the other side’s expert).

Interestingly, the Court in Flinn relied quite heavily on the Ontario case of Browne (Litigation Guardian of) v Lavery, 2002 CanLII 49411 (Ont Sup Ct J),[23] where Justice Ferguson referred to the “narrowing of litigation privilege” and a “broader approach” to disclosure of materials related to the expert report.[24] Justice Ferguson stated in Browne:

[66] It is my tentative view 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.

Justice Ferguson made a point of saying that this issue “crie[d] out for appellate review.”[25]

But when appellate review came in the form of Moore, the Court of Appeal went the opposite way. Justice Sharpe acknowledged that “the wisdom of extending litigation privilege to the preparation of expert reports has been questioned by some judges,” including Justice Ferguson in Browne.[26] However, as Justice Sharpe put it, “the law currently imposes no routine obligation to produce draft reports.”[27]

This sets up a conflict with the Nova Scotia case law, where the “general rule” requires “that early drafts of an expert’s report that counsel has commented on will be subject to production.”[28]

In light of Moore, there may be room to argue that litigation privilege should be expanded to cover these draft expert reports and related records, even where they were written or updated following consultation with counsel. But as in Ontario, a revamped approach may not arrive without appellate direction.

Unless and until that happens, Nova Scotia lawyers should remain cautious about their own practices in discussing drafts with experts. Whether or not disclosure rules shift in this province after Moore, experts remain independent and their role is to assist the court – a common theme of Nova Scotia’s Rule 55.

The Advocates’ Society’s Principles Governing Communications with Testifying Experts[29] may also provide guidance in the meantime – Principle 9 in particular:

In appropriate cases, an advocate should consider an agreement with opposing counsel related to the non-disclosure of draft expert reports and communications with experts.

The Supreme Court of Canada might have something to say about this

The Supreme Court of Canada has a decision about expert independence on reserve in an appeal from Nova Scotia, White Burgess Langille Inman, carrying on business as WBLI Chartered Accountants v Abbott and Haliburton Company Limited.[30] This case relates to the admissibility of expert evidence and not the production of draft reports. However, the Court’s comments may provide insight on the latter issue as well – particularly for provinces without their own version of Moore.[31]