UPDATE: This decision was reversed by a 3-member panel of the Court of Appeal on September 20, 2006. See our post.
Justice Gillese of the Ontario Court of Appeal yesterday released a ruling that will be of importance to all civil litigation lawyers. The decision in Conceicao Farms Inc. et al. v. Zeneca Corp. et al. related to production of the “findings, opinions and conclusions” of expert witnesses. She ordered the defendants to produce a 24-page memorandum prepared by their previous lawyer following a telephone conversation with an expert whom she had retained.
At trial, the defendants’ expert testified at trial and counsel for the plaintiff asked the trial judge to order that the expert’s file be produced. Counsel for the defendants, who had inherited the file from another lawyer, said, according to the transcript, that there was “no” note from his predecessor, that she or someone from her office had spoken to the expert. (The defendants’ lawyer later said that the reporter had taken his comment down incorrectly and that he had actually said that there was “a” note.)
The plaintiffs’ action was dismissed at trial. Months later, counsel for the plaintiffs discovered that the defendants’ first lawyer had had a lengthy conversation with the expert prior to trial, which conversation had been reduced to a 24-page, single-space memorandum. That document had never been produced or disclosed.
The plaintiffs sought an order for production of the Memorandum after the trial. The trial judge refused the request. The plaintiffs appealed to the Court of Appeal both the dismissal of their action and the trial judge’s refusal to order production of the Memorandum.
Justice Gillese was sitting as a single judge of the Court of Appeal. Before her was a motion by the plaintiffs for an order requiring that the Memorandum be produced. (The plaintiffs contended that they needed access to the Memorandum in order to determine whether they should move for leave to introduce fresh evidence on the main appeal.)
The defendants opposed production of the Memorandum, on the basis that the document was privileged (even though no claim for privilege had previously been asserted) and that the plaintiffs had not requested production before trial. Justice Gillese ordered the defendants to produce the Memorandum. In so doing, she commented generally on the obligation to produce, prior to trial, documents relating to the opinion of an expert. She took a very expansive view of what must be produced pursuant to Rule 31.06(3) (which deals with a party’s right, on examination for discovery, to obtain the “findings, opinions and conclusions” of an expert engaged by an opposing party).
After reviewing the jurisprudence, Gillese J.A. said:
Rule 31.06(3) is to be interpreted bearing in mind the role of an expert and the recent jurisprudence of the Supreme Court of Canada and this court. As such, a broad approach is warranted, one that — in the words of the Supreme Court of Canada in Stone — would enable opposing counsel to have access to the “foundation” of the expert’s opinions. This approach would require disclosure of all foundational information for the expert’s report, whether or not the final findings, opinions or conclusions expressly reflect that information.
Justice Gillese said that the Memorandum should have been produced prior to trial. The defendants were ordered to produce it within ten days of yesterday’s decision. (The plaintiffs’ appeal is to be heard in September.)
Justice Gillese appeared to draw a distinction between “work product” of the former solicitor (which, she acknowledged, would not be producible) and this Memorandum which, she said, “appears to record information from [the expert]” and to be “part of the foundation for his final findings, opinions and conclusions”.
It is not clear how the court came to its conclusion regarding the content of the Memorandum. Justice Gillese made it clear that she had not seen the document and it seems that her views about its contents were largely a matter of inference:
As I have not seen the Memorandum, I cannot know whether it contains preliminary findings, opinions or conclusions. However, given its length, and the timeing and duration of the conversation that led to its creation, it is fair to assume that it contains foundational information for Dr. Grafius’s [the expert’s] final findings, opinions and conclusions. Production will enable the appellants [the plaintiffs] to determine whether they were improperly denied the right to test Dr. Grafius’s evidence at trial. Production will also ensure that confidence was properly reposed in Dr. Grafius’s opinions by the trial judge. As the Memorandum appears to record information from Dr. Grafius, I see it as part of the foundation for his final findings, opinions and conclusions, rather than the work product of Ms. Fox [the defendants’ first lawyer].
It appears to us that this decision blurs the distinction between a solicitor’s “work product”, for which privilege can properly be claimed, and an expert witness’s “findings, opinions or conclusions” which must be provided to the opposing party prior to trial (if requested on discovery), if the expert is going to testify. If this decision stands (and remember that a three judge panel of the Court of Appeal is scheduled to hear, in September, the actual appeal from the trial judge’s refusal to order production of the Memorandum), counsel will have to be very circumspect about what information to reduce to writing after a conversation with an expert.