Decision Elucidates Requirements for Production of Expert’s “Foundational Material”

Bookman v. Loeb was a family law case but the reasons of Madam Justice Ruth E. Mesbur shed light on a somewhat unsettled area of civil litigation: to what extent must a litigant produce “foundational material” for an expert opinion? Such material might include an instructing letter, the expert’s notes, correspondence exchanged by the expert and counsel retaining him or her or other documents, most of which would typically be privileged to begin with.

In this case, counsel for the plaintiff served several experts’ report. The lawyers for the two sets of defendants asked Justice Mesbur to order production of:

  1. prior drafts of the reports;
  2. notes of counsel and the experts;
  3. all correspondence passing between counsel and the experts;
  4. copies of accounts rendered by the experts, as well as particulars of the retainer arrangement;
  5. copies of the experts’ files.

Although this case was apparently governed by the Family Law Rules, Justice Mesbur found that there was a lacuna in those Rules on this issue and that recourse could be had to the provisions of the Rules of Civil Procedure.

Her Honour referred to R. 31.06(3) of the Rules. It provides that a party is entitled, during examinations for discovery,  to ask for the “findings, opinions and conclusions” of an expert, unless the party being examined undertakes not to call the expert as a witness at trial. Here, the examinations for discovery had already taken place by the time the reports of the experts had been served. No undertaking had been given, not to call the experts as witnesses at trial. So the question was, what information were the defendants entitled to obtain prior to trial in relation to the experts’ reports?

Counsel for the plaintiff agreed to produce some of the documents in issue. These included particulars of the instructions given to the experts, copies of draft reports and accounts rendered by one of the experts.

Justice Mesbur reviewed the jurisprudence and concluded that mere service of an expert’s report does not constitute waiver of privilege on the expert’s file. Rather, she felt that the weight of authority pointed to privilege continuing until the time of trial.

With respect to the notes of counsel and the experts, Her Honour held that counsel’s notes remained privileged but that notes made by the expert that reflect any information that formed part of the foundation of the expert’s opinion, whether factual, or by way of assumption, must be produced but that other notes remained privileged.

Justice Mesbur ruled that the defendants were “clearly entitled to” letters of instruction sent to the experts and, if no such letters existed, particulars of the instruction given. Other correspondence between counsel and expert remained subject to litigation privilege.

The accounts submitted by the experts were ordered to be produced, but Her Honour accepted the submission of counsel for the plaintiff, that to go further and require the plaintiff to disclose the retainer agreement and particulars of amounts outstanding was information that went to impeachment of the experts’ expertise and therefore, need not be produced at the pre-trial stage.

Finally, Her Honour refused to order the production of the experts’ files prior to trial, holding that they remained privileged.

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