Experts' Notes, Drafts and Records
Conceicao Farms Inc. v. Zeneca Corp. (Ont. C.A.)
It was only in July that Justice Gillese of the Court
of Appeal released her decision regarding the discoverability of
the notes, drafts and records of experts. In her decision, Justice
Gillese ordered that a memorandum that counsel had prepared during
a conversation with an expert should be produced to the other party.
The issue of production had only arisen after the trial had concluded.
The decision extended the rules of discoverability to the point
where counsel would be inhibited in her role as an advocate.
Immediately after the judgment was released, the decision
was appealed to a panel of three judges of the Court of Appeal.
Their decision was released on September 20, 2006 (Conceicao
Farms Inc. v. Zeneca Corp. (2006) Docket No. M34061 C42088 ("Conceicao")).
Justice Gillese's decision was overturned on review.
The Court focused on the timing of the request for disclosure and
the wording of rule 31.06(3) of the Rules of Civil Procedure.
The rule states that a party can obtain, on discovery, "disclosure
of the findings, opinions and conclusions of an expert engaged",
if the findings, opinions and conclusions relate to a matter at
issue in the action.
The Court held that this rule does not speak to the
production of documents. Rather, counsel has a right to ask the
expert about his or her findings, opinions or conclusions, but they
do not have the right to demand production of the related documents.
By asking the appropriate questions, counsel can learn of the relevant
information without seeing the privileged document.
The Court held that the memorandum itself did not
need to be produced. Having said that, the Court did not need to
address when the notes, drafts and records of an expert become discoverable
findings, opinions and conclusions. The Court further held that
the rule is not so broad that every communication between counsel
and her expert must be disclosed, but did not elaborate further.
The Court noted that in Conceicao, counsel
only sought disclosure of the memo after the trial had concluded.
Counsel was at all times aware that an expert report had been prepared.
This entitled them to seek discovery of any foundational information
before trial. The Court held that Rule 31.06(3) only applies to
the discovery portion of an action, which is concluded at the point
of trial, and it would be unfair to allow further discovery after
trial had concluded.
This decision does not adequately deal with the issue
of disclosure. Although the Court of Appeal disposed of the issue,
it has left significant doubt as to what documents will need to
be disclosed to opposing counsel. Until the appellate courts come
to a definitive conclusion on the scope of discoverability, counsel
will have to be alert to the possibility that any communication
with an expert witness may ultimately be disclosed to the other
parties in an action.
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