In short, yes we can.
Recall that the original decision from the Ontario Superior Court of Justice states that "The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert's credibility and neutrality." The primary concern the court was addressing was the perception that experts can, on occasion, become malleable; in essence, "hired guns".
In the much anticipated appeal of the decision just released by the Ontario Court of Appeal, Justice Sharpe writes "...banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported...it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports."1
That is not to say that instances of perceived and actual bias are no longer a concern, but rather that tools are already in place to address this concern. Justice Sharpe notes "...the independence and objectivity of expert witnesses is fostered under existing law and practice in a number of ways"2 and then cites examples including professional and ethical standards governing lawyers and experts as well as the 2010 revisions to Rule 53.03 in the Ontario Rules of Civil Procedure.
Justice Sharpe notes that "The 2010 amendments to Rule 53.03 did not create new duties but rather codified and reinforced these basic common law principles [as listed in the revised Rules]."3 I came to the same conclusion (from my perspective as an expert witness) in a previous article I published in 2010.4
Justice Sharpe also states that compliance with the Rules is promoted through discussion between the expert and the lawyer, writing "Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert's duty."5
The Court of Appeal also addresses the extent to which consultations between lawyers and experts need to be documented and disclosed to the opposing litigant. The Court of Appeal frames this issue in the context of litigation privilege and concluded, with some exceptions noted in the decision, "Making preparatory discussions and drafts subject to automatic disclosure would...be contrary to existing doctrine and would inhibit careful preparation...Allowing an open-ended inquiry into the differences between a final report and an earlier draft would unduly interfere with the orderly preparation of a party's case and would run the risk of needlessly prolonging proceedings... the law currently imposes no routine obligation to produce draft expert reports..."6
However, "It is important to note that the litigation privilege attaching to expert reports is qualified, and disclosure may be required in certain situations."7 For example, disclosure obligations may arise from the rule regarding production of foundational information. Refer to the text beginning at paragraph 73 of the appeal decision for the Court's analysis of these exceptions.
The takeaway is "Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness."8
So yes, we can talk. But the conduct of the expert will remain front and center in the court's assessment of the expert's evidence.
1 Paragraphs 55 and 62.
2 Paragraph 56.
3 Paragraph 53.
4 See "Expert Evidence: New Rules Confirm Existing Responsibilities", Errol Soriano, Lawday (2010).
5 Paragraph 63.
6 Paragraphs 71 and 72.
7 Paragraph 73.
8 Paragraph 78
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