C.A. Reverses Colleague, Holds that Counsel’s Memorandum of Discussion with Expert Not Producible

A three-member panel of the Court of Appeal today reversed a July decision of a single judge of that court. The earlier decision of Gillese J.A. was the subject of a previous posting in our blawg (“C.A. Takes Expansive View of Expert’s Producible ‘Findings, Opinions and Conclusions’“). Justice Gillese had ordered a defendant to produce, following the trial, a memorandum prepared by its former counsel. The memorandum summarized a lengthy telephone conversation between the lawyer and an expert witness. We commented, that the decision of Gillese J.A. had blurred the distinction between a solicitor’s “work product”, for which privilege can properly be claimed, and an expert witness’s “findings, opinions and conclusions”, which must be provided to the opposing party prior to trial, if the expert is going to testify (provided that the information is requested as part of an examination for discovery).

Today, Justices Stephen Goudge, Robert Blair and Russell Juriansz reversed their colleague’s ruling and held that the memorandum of the defendant’s counsel need not be produced. In Conceicao Farms Inc. et al. v. Zeneca Corp., the court drew a distinction between the information that a party is entitled to get on an examination for discovery, and the production of documents. The panel agreed that the plaintiff would have been entitled to question the defendants on discovery about the “foundational information” underlying their expert’s report. However, the judges also made it clear that they were not deciding “the precise extent of what is discoverable” as part of Rule 31.06(3)’s “findings, opinions and conclusions” of an expert.

Instead, the court rested its decision on the fact that the plaintiffs had not sought production of the defendant’s memorandum until after the trial. The following quotation from the reasons explains the court’s thinking:

We do not think it is an answer to say that the appellants did not know of the memorandum until after trial. The rule does not give them the right to production of the memorandum but rather to obtain discovery of the foundational information for the findings, opinions and conclusions of Dr. Grafius contained in the memorandum. That it is a right they had right up to trial. There is no basis in the rule or in fairness to give them the same right, by means of the production of the memorandum, now that the trial has been concluded. For the trial process to function fairly and properly, parties must exercise their right to obtain discovery at the discovery stage not seek to do so after trial.

The members of the panel went on to say that the litigation privilege that had attached to the memorandum had continued, because the litigation had continued.

A question that was not specifically addressed in today’s decision, is whether production of the memorandum of the defendant’s former lawyer could have been compelled at trial, by virtue of the expert having testified. This could only have happened if the court had found that privilege had been waived. But since the Court of Appeal was satisfied that the memorandum is still protected by litigation privilege, this presumably implies that the privilege was not waived by the expert having appeared as a witness at the trial.

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