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  Lack of Privilege in Expert Files

Scope of Production from Expert's Files

CASE COMMENT: Conceicao Farms Inc. v. Zeneca Corp.

In July of 2006, the Ontario Court of Appeal released a decision in the case of Conceicao Farms Inc. v. Zeneca Corp. which will no doubt have a significant impact on how litigation counsel interact and instruct their experts. The following is a brief summary of this interesting and somewhat surprising decision.

The Facts:

The plaintiffs are farmers in Holland Marsh and they commenced an action against Zeneca Corp. ("Zeneca") which is a manufacturer of pesticides. The primary allegation was that the pesticides failed to protect the plaintiffs' crops.

Zeneca called an expert witness to testify at trial. The issue of production of the expert's notes and records was raised at trial and counsel for Zeneca advised that there were no such notes in existence. Judgment was rendered in favour of Zeneca and was largely based on the opinion of their expert. Several months after the decision was released, the plaintiffs learned that the information given at trial regarding the non-existence of notes was incorrect and that Zeneca's prior counsel (who had initially retained the expert) did have a lengthy memorandum in her file relating to a telephone conversation she had with the expert at the commencement of his retainer (the "Memorandum").

The plaintiffs sought production of the Memorandum and presumably planned on appealing the trial decision if its contents somehow undermined the expert's testimony. Counsel for Zeneca resisted production on the basis of litigation privilege.

The Decision:

On appeal, the Court confirmed that, pursuant to Rule 31.06(3) of the Rules of Civil Procedure, if an expert testifies at trial, there is no privilege in the expert's findings, opinions or conclusions. However, the Court went further to find that the opposing party is entitled to production of the foundation of such findings, opinions and conclusions, which may include oral discussions, letters of instruction from counsel, draft reports and any documents which were used by the expert in the formation of his conclusion.

The most surprising aspect of this decision, however, was that it extended the notion of what might be considered to be foundational evidence to the contents of the instructing lawyer's file. In the past, the most that an opposing party could expect to obtain from the lawyer's file was the letter of instruction. In this case, however, the Court of Appeal ordered production of the Memorandum.

Evidently, the rationale underlying this decision is that discoverability and transparency trumps litigation privilege when it comes to instructions and information given to experts. By requiring full production of the basis for an expert's opinion, the Court of Appeal appears to be attempting to deter inappropriate influence on experts in an effort to apparently restore confidence in the objectivity of the expert opinion process. Accordingly, the assertion of litigation privilege over the contents of a lawyer's file as it relates to dealings with an expert may no longer be a complete answer to the request for production.

Lastly, it is important to note that it doesn't seem to matter whether there is any correlation between the "foundational information" and the ultimate findings and conclusions of the expert. Any and all information must be disclosed even if it was not ultimately relied on in support of the final opinion.

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