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.
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