Lawyers were taken aback by the January 2014 decision at trial in Moore v. Getahun.  The trial judge held that it was improper for counsel to assist an expert witness in the preparation of the expert’s report.  The extent to which this ruling was of concern is demonstrated by the number of intervenors (six) who participated in the appeal from the trial judge’s ruling.  The intervenors included five advocates’ groups and one organization of professionals frequently engaged as expert witnesses (Chartered Business Valuators).  On the appeal from the decision of the trial judge, the appellants, respondents, and all intervenors took the position that the ruling of the trial judge on this particular issue is erroneous.

Court of Appeal Decision
In a decision released in January 2015, the Ontario Court of Appeal has, to the significant relief of lawyers and experts, restored reason.  Rather than be critical (as was the trial judge) of the practice of counsel consulting with expert witnesses to review draft reports, the Court of Appeal emphasized the problems that would arise if the practice were prohibited.  Those problems include:

• An increase in the costs and delays incurred in a legal system which already struggles to deliver justice in a timely and efficient manner.
• Counsel may be required to retain a second, ‘shadow’, expert (i.e. an expert with whom counsel would discuss the case but from whom no report would be obtained).
• Unsatisfactory or bad reports would have to be “jettisoned”¹  resulting in additional costs and delay while a replacement (and hopefully satisfactory) expert’s report is obtained.

Of great concern to the trial judge was that consultation between counsel and expert witnesses results in expert witnesses becoming ‘hired guns’ for the party on whose behalf they are retained.  The Court of Appeal approached the issue from a broad, practical perspective and, somewhat ironically, concluded that banning the practice of counsel consulting with witnesses would encourage retaining expert witnesses who:

• Testify so frequently as expert witnesses that they appear to have made or are making a career of doing so;
• Specifically because of their experience as expert witnesses, require less guidance in the preparation of a report; and
• End up being viewed by the courts before whom they appear as hired guns because of the frequency with which they testify.

The Court of Appeal identified the checks and balances in place which support the “long-standing practice of counsel reviewing draft reports”.  The existing Rules of Civil Procedure and the professional and ethical standards of counsel and of the bodies which govern the experts are intended to foster unbiased expert evidence.

The leading expert in a particular field may never have been involved in litigation.  That expert may be able to express themselves extremely well in their field, but lack understanding of evidentiary requirements and the burden of proof in a civil case.  Does the client, who is ultimately responsible to pay for the expert’s services, want:

1. A leading expert in the particular field, who may require some assistance in the preparation of a report; or
2. An expert in the field:

a) Whose qualifications are such that their opinion may not be given full weight;
b) Who may not be permitted to testify on all aspects of their opinion because they lack the requisite qualifications or expertise;
c) But, who is able to write an excellent report for litigation without the assistance of counsel?

Clients know that good counsel do not, when consulting with an expert, interfere with the independence and objectivity of the expert witness.  Clients and counsel understand that professional bodies require their members to be independent and impartial when giving expert evidence.  Over and above the individual ethical and professional standards which govern the relationship between counsel and an expert witness, there is the protection afforded through the adversarial process.  Cross-examination is an effective tool for testing the extent, if any at all, to which an expert witness has been improperly influenced by counsel.

The benefits – to experts, litigants, and the legal system – which flow from consultation between counsel and experts were summarized by the Court of Appeal as follows:

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 …

Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court.  It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.²

Drafts, notes, and documentary disclosure
With consultation between counsel and experts not only permitted, but expected, how are draft reports and consultations to be treated in the context of a party’s documentary disclosure obligations?

Consultations fall within the scope of protection afforded by ‘litigation privilege’ – the dominant purpose of the communication between counsel and the expert is preparation for litigation.  As noted by the Court of Appeal, “The careful and thorough preparation of a case for trial requires an umbrella of protection that allows counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports.” ³

Draft reports are afforded the same protection.  There is no obligation to produce draft expert reports.  The Court of Appeal recognized that to permit an open-ended inquiry into the difference between draft reports and the final report would:  a) interfere with or delay preparation of a party’s case; and b) potentially lead to a proceeding being needlessly prolonged.

The Court of Appeal did not go so far as to eliminate the possibility that draft reports and/or consultation notes may be the subject of a production order during the litigation process.  It acknowledged that there may be situations in which disclosure of draft reports and/or consultations is required.

The Rules of Civil Procedure require that, for all experts whom the party intends to call at trial, the expert’s final report and foundational information upon which the expert’s opinion is based be produced prior to trial.  Consultations between counsel and an expert are not typically part of that foundational information.  However, litigation privilege for consultations may be lost if counsel communicated with the expert in a way which was “likely to interfere with the expert’s duties of independence and objectivity”.⁴   Under those circumstances, consultations may fall within the scope of foundational information and therefore be subject to a production order.

The Court of Appeal stated that for draft reports and/or consultation notes to be subject to a production order there must be “a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert”.⁵

In Moore v. Getahun, the consultation between counsel and the expert was limited a 1.5 hour telephone call.  The Court of Appeal determined that the call did not satisfy the criteria of the factual foundation required to support an allegation of improper influence having been exerted by counsel.  The decision illustrates only that which does not amount to the requisite factual foundation.

What types of changes to a report are required to demonstrate that counsel has exerted an improper influence over the expert witness?  In Moore v. Getahun, the expert’s draft reports, notes of consultation, and changes from draft to final report were ordered produced by the trial judge and therefore available for review by the Court of Appeal.  The changes made from draft to final report were described by the Court of Appeal as “relatively minor editorial and stylistic modifications intended to improve the clarity of the report”.⁶   The expert’s report was described as reflecting the expert’s genuine and unbiased opinion.

The Court of Appeal has provided a framework for dealing with the issue of potential improper influence by counsel over an expert witness.  The framework will be developed with additional decisions on the subject over time.  From those additional decisions, some of the following questions may be answered:

• Will it be possible prior to the trial of an action to develop the factual foundation to support an allegation of improper influence?  Or, will it only be possible to address that issue on cross-examination of an expert at trial?
• The Court of Appeal had the benefit of the productions made at trial even though it found that the basis for the trial judge’s production order did not exist.  Will judges or masters hearing motions for a production order require production to the court (sealed and without the requirement for production to the opposing party), of draft reports and/or consultation notes in order to determine the motion?
• Counsel whose conduct is in question may be required to swear an affidavit or otherwise give evidence on the issue.  Whether prior to or during trial, who will represent the party when their counsel is giving evidence?  Will it be another lawyer from the same firm or will it be necessary for the party (or perhaps counsel) to retain ‘outside’ counsel to deal with that discreet issue?

Summary
The decision of the Ontario Court of Appeal in Moore v. Getahun clarifies for litigants, counsel, and expert witnesses the manner in which an expert may be assisted by counsel in preparing a report and, ultimately, to give evidence at trial.  The Court’s decision is premised in large part upon the existence of and adherence to professional and ethical standards.  The practical implications of one or both of counsel and the expert witness falling short of those standards remain to be seen.

In an era in which proportionality and cost-effectiveness dominate the litigation landscape, a party will want to be on extremely solid ground to advance such a motion.  This author anticipates that at least in the short-term, the decision of the Court of Appeal will have a chilling effect on the number of motions made for an order requiring production of the draft reports and/or consultation notes.

1 – 2015 ONCA 55, at para. 65.
2 – Supra, footnote 1, at paras. 62 and 64.
3 – Supra, footnote 1, at para. 69.
4 – Supra, footnote 1, at para. 77.
5 – Supra, footnote 1, at para. 78.
6 – Supra, footnote 1, at para. 50.