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The chill on communications between lawyers and experts about draft opinions is over. The highly anticipated decision of the Ontario Court of Appeal in Moore v. Getahun was released on January 29, 2015.

In a medical malpractice case, Justice Janet Wilson of the Ontario Superior Court of Justice had lambasted defence counsel for spending 90 minutes discussing a draft expert report with the expert before the report was finalized. She ruled that “counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft report are no longer acceptable.” Moore v. Getahun, 2014 ONSC 237, at paras. 50-52. This decision received almost universal condemnation from the litigation bar, and has now been overturned.

The trial judge based her rulings, in part, on 2010 amendments to the Ontario Rules of Civil Procedure, which codify the expert’s duty to the court (rule 4.1.01), and which require the execution of an expert’s certificate acknowledging this duty (rule 53.03). She said the amendments were made to counter what has been perceived to be a problem with litigants coming to court with “hired gun” experts of questionable independence or objectivity.

Lawyers can and should review draft reports

The Court of Appeal has now confirmed that lawyers must work with experts, such as environmental consultants, to focus and clearly express their opinion testimony. This is essential to efficient litigation. The lawyer cannot tell the expert what to say, but must ensure that the export report addresses the relevant questions in a clear and comprehensible way that will assist the judge to decide the lawsuit.

Justice Sharpe, writing for the Court of Appeal, wrote that “banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported and contrary to existing authority” (para. 55):

[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.

Draft reports are privileged

The court also re-established that litigation privilege protects draft reports, the expert’s file and communications between expert and counsel, unless there is independent evidence of wrongdoing:

[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.

[77] … 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.

The appeal had many interveners, including the Advocates’ Society, the Holland Group for medical malpractice lawyers, the Canadian Defence Lawyers Association, the Ontario Trial Lawyers’ Association, and the Criminal Lawyers’ Association.

In its decision, the Court referred to the factum of the Advocates’ Society and, in particular, its Principles Governing Communications with Testifying Experts. The Court indicated that the Principles provide “a thorough and thoughtful statement of the professional standards pertaining to the preparation of expert witnesses” (para. 57), and it attached those Principles as an appendix to its decision.

Those Principles can be found here.

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