Service of Expert’s Report Waives Litigation Privilege on File Material

A Superior Court judge today dealt with a question that arises frequently in civil litigation: to what extent must “the findings, opinions and conclusions of an expert” be disclosed to an opposing party prior to trial? In Lecocq Logging Inc. v. Hood Logging Equipment Canada Inc., the plaintiff obtained several reports from an expert named (believe it or not), “Leier”. The reports dealt with the cause of a fire in a piece of logging equipment. One report pre-dated the issuance of the statement of claim, while three others were dated later. The first two reports were addressed to an insurance adjuster; the last two were addressed to counsel for the plaintiff.When the plaintiff was examined for discovery, counsel for a third party asked for information about the underpinnings of the opinion of the plaintiff’s expert, Leier. Counsel for the plaintiff objected, on the basis that even though Mr. Leier’s reports had been produced, the file information sought was still protected by “litigation privilege” and did not have to be disclosed.

The third party moved for an order, compelling the plaintiff to answer the questions to which its counsel had objected. Madam Justice Helen M. Pierce heard the motion. For the most part, she ruled in favour of the third party.

She referred to “[t]he seminal case dealing with litigation privilege”, being the Court of Appeal’s 1999 decision in General Accident Assurance Co. v. Chrusz. She concluded that the Chrusz decision and the cases which have followed it have narrowed the scope of litigation privilege. Justice Pierce also looked at some conflicting caselaw on the question of whether litigation privilege on an expert’s file material continues after a report from that expert has been produced. Her key ruling was that, once a report from an expert has been served, litigation privilege is waived. The expert’s notes and file material thereby become subject to discovery. (While such documents have been ordered to be produced on the facts of other individual cases, we are not aware of a prior decision in which this principle has been stated as one of general application.)Here, the plaintiff was ordered to answer numerous questions (set out in the decision) which related to the process by which Mr. Leier had come to his conclusions.Her Honour stopped short of ordering that all of the questions be answered. She reasoned that, while a party is entitled to explore fully the “findings, opinions and conclusions” of an expert, and the relevant documents, that party is not entitled to conduct a pre-trial cross-examination of the expert through the discovery process.

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