While this case was decided in 2015, we find that some clients are confused about privilege issues as the impact of the lower court decision was so significant and the appeal decision did not receive as much attention. In this significant case, a decision was overturned that had caused counsel to refrain from communicating with their experts during the imperative drafting stage of preparing opinions.
Previously, case law had suggested that lawyers should be producing all their draft reports and communications with their chosen expert prior to the service of the polished final report.
This notable case clarified that lawyers are entitled to meet with their experts and assist them during the draft stage, as long as it is for the purposes set out by the court below:
“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.”
Additionally, the court went on to clarify that the privilege of any communication between lawyers and experts was to be respected unless the opposing party had reason to believe that counsel improperly influenced the expert, as indicated here:
“Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence.”
The article in this update provides general information and should not be relied on as legal advice or opinion.
The decision referenced above is cited as Moore v Getahun, 2015 ONCA 55 (CanLII).