July 2006

Experts' Notes, Drafts and Records
Clarification by the Ontario Court of Appeal

Conceicao Farms Inc. v. Zeneca Corp. (Ont. C.A.)

A contentious issue in litigation is the question of what portions of an expert's notes, drafts and records must be produced to an opposing party during discovery. According to the Ontario Rules of Civil Procedure, a party being examined for discovery can be questioned about the findings, opinions and conclusions of an expert that they have engaged if such findings relate to a matter in issue in the action. There is an exception for opinions that were prepared solely for litigation if the party being examined undertakes not to call the expert at trial. The issue then becomes: when do the notes, drafts and records of an expert become discoverable findings, opinions and conclusions that are not capable of being privileged?

In the recent Ontario case of Conceicao Farms Inc. v. Zeneca Corp (2006) Docket No. M33980 ("Conceicao"), counsel had produced a memorandum which contained her notes from her telephone conversation with an expert. The Court of Appeal was then called upon to determine whether the notes were covered by litigation privilege, having been prepared by counsel in preparation for trial, or if they were discoverable as an oral report of the expert who had testified at trial.

There is significant concern about having broad discoverability rules for the records of experts. Counsel is often concerned that these records can disclose litigation strategy to opposing parties. The very purpose of giving privileged status to documents prepared in the course of litigation is to further the adversarial trial process by allowing for a protected area to facilitate trial preparation and investigation. Conversely, by revealing the information and advice that counsel provides to experts, the court may be better able to judge whether the expert's opinion has been unduly influenced. Although advocates use expert's reports as tools to further the positions of their clients, ultimately, experts act as assistants to the court in deciphering complex issues.

In Conceicao, the Court held that as an expert witness, an individual is not offering advice to a party. Rather, experts are expected to assist the court. As such, the court found that the validity of the expert's opinion can only be adequately tested when the opposing party is given access to the foundation of the opinion.

The Court's ruling appeared to be influenced by a feeling of cynicism that it felt amongst the bar and bench about the reliability and objectivity of some expert opinions. There was a feeling that 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". This decision seems to follow a trend of increasing transparency and discoverability while limiting the scope of litigation privilege.

Although the rule does not apply to discussions intended to educate counsel, or preparation for cross examination, there is a potential that this rule will severely inhibit the ability of counsel to speak freely with their experts, or to take notes of conversations that take place during the investigatory stage. According to this decision all documents of a foundational nature should be disclosed. This would include preliminary findings, opinions and conclusions and draft reports that are sufficiently coherent for the use of counsel.

By holding that the notes of counsel were discoverable, the Court in Conceicao may have extended the rules of discoverability too far. Although the policy objective was perhaps commendable, the Court did not adequately consider the fact that while counsel are taking notes, they often include their own thoughts and strategies. In complicated cases, it may be very difficult to distinguish between the education of counsel and the opinion of the expert, as education, strategy and opinion will be intermingled as the lawyer advocates his or her client's position.

In a time where the reports of experts are increasingly important to the trial process, it is necessary to ensure their reliability. With the growth of technology and science, courts are often very reliant upon experts. The court must be able to determine the scope and bias in expert reports. However, this transparency must not take away from the ability of counsel to act as advocates for clients. The question of whether the Court in Conceicao has inhibited the ability of lawyers to act as advocates for clients or facilitated a more balanced trial process will have to be resolved by future appellate decisions. At present, the possibility that communications between counsel and experts and supporting material may ultimately be required to be disclosed is something lawyers, experts and their clients need to consider when planning their strategies.

Cynthia Verconich