In our blog posting dated February 2, 2014, we reported on a decision of the Ontario Superior Court of Justice which, if upheld on appeal, would have drastically changed how expert reports would be prepared for litigation purposes.  In a very welcoming decision, the Ontario Court of Appeal has overturned the decision (Moore v. Getahun).

In the lower court, it was held that the practice of discussing draft reports with counsel “is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.”

In reversing this decision, the Ontario Court of Appeal stated “…banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported….it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports.”

In support of its decision, the Court referenced the numerous safeguards which are already in place to ensure that expert reports are independently and fairly prepared.

The Court clarified the extent to which one party can access consultations between an opposing lawyer and his or her expert.

In summary, as a result of the Court’s decision, drafts of expert reports need not be produced except in specific circumstances as they are protected from disclosure under litigation privilege principles.

Under these principles, certain disclosure is still required in respect of the underlying facts and documents but inquiries cannot be made to compare draft and final reports.

However, if there is a demonstrable basis to suggest that counsel had made undue and improper contributions to the expert’s report such that the report was tainted by improper influence, there is still an opportunity for counsel to complain and prove the impropriety of the report from this perspective.

As stated clearly by the Court, “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.”

Although counsel by consent practice were largely ignoring the lower court’s decision in Moore in anticipation of this very decision of the Court of Appeal, the Court of Appeal’s decision in Moore will be the comprehensive guide for litigation counsel and experts going forward.