November 2006

Experts' Notes, Drafts and Records Revisited
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.

Cynthia Verconich