The Expert’s File – What must be disclosed and when?
Since it’s introduction on August 30, 1993 Rule 40A has provided a complete code governing the procedural aspects of the provision of expert opinion evidence. Rule 40A’s provisions, specific to civil proceedings, govern over section 10 and 11 of the Evidence Act, R.S.B.C. 1996 c.124. Rule 40A states (in part):
Rule 40A – Evidence of Experts
[en. B.C. Reg. 55/93, s. 14, eff. Aug. 30, 1993]
(1) This rule does not apply to summary trials under Rule 18A, except as provided in that rule.
Admissibility of written statements of expert opinion
(2) A written statement setting out the opinion of an expert is admissible at trial, without proof of the expert’s signature, if a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.
Admissibility of oral testimony of expert opinion
(3) An expert may give oral opinion evidence if a written statement of the opinion has been delivered to every party of record at least 60 days before the expert testifies.
(4) The statement also may be tendered in evidence.
Form of statement
(5) The statement shall set out or be accompanied by a supplementary statement setting out the following:
(a) the qualifications of the expert;
(b) the facts and assumptions on which the opinion is based;
(c) the name of the person primarily responsible for the content of the statement.
(The English Court also has specific rules relating the provision of expert evidence. For comparative purposes, the English rules are reproduced as an appendix to this paper.)
The expert’s report, commissioned by counsel for the purpose of litigation is protected from involuntary disclosure by the doctrine of solicitor client privilege. That privilege is a fundamental principle of Canadian justice which has evolved into a substantive rule and must be protected, albeit not at all costs. (Smith v. Jones,  1 S.C.R. 445 (S.C.C.) )
The leading British Columbia judgments respecting the privilege attaching to an expert’s file were rendered (in two parts) by Mr. Justice Finch, as he then was, in Vancouver Community College v. Phillips Baratt (1987) (2d) B.C.L.R. 289, B.C.J. No. 3149 (S.C.) and  B.C.J. No. 980 (S.C.). These judgments which summarize the principles of evidence respecting admissibility of expert opinions and the disclosure of the contents of experts files have been cited with authority in the B.C. Supreme Court on numerous occasions and at the Court of Appeal (Discovery Enterprises Inc. v. Ebco Industries Ltd.,  B.C.J. No. 1364).
The Vancouver Community College, supra suit, related to a construction dispute between the college and its architects. The defendants sought to compel the production of the documents in possession of the plaintiff’s expert, a quantity surveyor. Mr. Justice Finch would not allow any pre-trial production or disclosure as the expert’s evidence might not have been led at trial. Upon renewal of the application during trial, Mr. Justice Finch rendered his decision and summarized the role of expert at trial as follows: (at p296 – 297)
“So long as the expert remains in the role of a confidential advisor, there are sound reasons for maintaining privilege over documents in his possession. Once he becomes a witness, however, his role is substantially changed. His opinions and their foundation are no longer private advice for the party who retained him. He offers his professional opinion for the assistance of the court in its search for the truth. The witness is no longer in the camp of a partisan. He testifies in an objective way to assist the court in understanding scientific, technical or complex matters within the scope of his professional expertise. He is presented to the court as truthful, reliable, knowledgeable and qualified. It is as though the party calling him says: “Here is Mr. X, an expert in an area where the court needs assistance. You can rely on his opinion. It is sound. He is prepared to stand by it. My friend can cross-examine him as he will. He won’t get anywhere. The witness has nothing to hide.”
It seems to me that in holding out the witness’s opinion as trustworthy, the party calling him impliedly waives any privilege that previously protected the expert’s papers from production. He presents his evidence to the court and represents, at least at the outset, that the evidence will withstand even the most rigorous cross-examination. That constitutes an implied waiver over papers in a witness’s possession which are relevant to the preparation or formulation of the opinions offered, as well as to his consistency, reliability, qualifications and other matters touching on his credibility.”
Mr. Justice Finch’s second judgment was rendered later in the trial when the Defendant’s expert was called to testify. This expert had prepared drafts of his reports, copies of which he had then discarded. The expert’s solicitor had copies of the draft reports, some of which had the solicitor’s notes written on the drafts and one of which had the defendant’s notes on the draft report. All draft reports were ordered disclosed.
The following is brief discussion of aspects of litigation where an expert might be involved and a discussion of the concomitant requirements for disclosure of the expert’s work. In other words, what must be disclosed and when.
1 Prior to service of an Expert’s report.
Before the report of an expert retained directly by counsel for the party is produced in the litigation, that expert’s communications are protected as if they are communications between solicitor and client and that expert’s work product is protected as if it were the solicitor’s work product.
If the expert remains a confidential advisor the work of the expert remains entirely confidential. This is useful when counsel has need of advice and information pertaining to a particular subject area.
In Vancouver Community College, supra, Mr. Justice Finch, as he then was, noted the theoretical possibility that an expert may serve in a confidential advisory capacity and also provide an expert opinion, as long as steps are taken to separate the expert’s roles.
Despite being a confidential advisor, any original investigative information obtained by an investigating expert is subject to disclosure and could be subject to a Rule 26(11) or 28 application where he or she has original facts not available elsewhere. Examples may include measurements of an investigating engineer (Bestway Lath & Plastering Co. Ltd. v. McDonald Construction Co. Ltd (1972), 31 D.L.R. (3d) 47 (S.C.) or direct observations of medical practitioner following an IME (Stainer v. Plaza,  B.C.J. No. 421 (CA) ). Of course, the non-opinion evidence of a witness may be compellable, though this issue will not likely arise until the other party becomes aware of the originally obtained facts.
2 Pre-trial disclosure requirements
According to Mr. Justice McEachern’s decision in Discovery Enterprises v. Ebco Industries Ltd., supra, the waiver of privilege over an expert’s file that occurs at trial does not apply at the discovery stage or where an expert has become involved in pre-trial applications and motions. The expert’s provision of affidavit evidence is not sufficient to require that his or her entire file be disclosed.
(see Discovery Enterprises v. Ebco Industries,  Civ. L.D. 669 (B.C.C.A.) and Krusel v. Firth (1991) 56 B.C.L.R. (2d) 96 (B.C.S.C.).
3 Service of an Opinion report or production of opinion (40A (5) or (3))
At the time of service of a report in accordance with Rule 40A, the opinion of the expert and the facts and assumptions upon which the report were based must be disclosed. The decision of Ms. Justice McLachlin, as she then was, in S.& K. Processors Ltd et al. v. Herring Producers Ltd et al. (1983), 45 B.C.L.R. 218 (S.C.) held that since disclosure required by the Evidence Act, RSBC 1979, c.116 (as it was), is not voluntary the privilege which previously protected the expert’s work and file was not waived, except as required by the Evidence Act and in particular with respect to the opinion and the facts and assumptions on which the opinion is based.
What constitutes the facts and assumptions upon which an opinion is based will vary depending upon the situation and circumstances.
- The original information gathered by an engineer must be reported (see Bestway Lath & Plastering v McDonald Construction 31 D.L.R. (3d) 47.
- The video tapes of motor vehicle collisions referred to by an expert in a report, but not relied did not have to be provided. (see Bouthot v. Cao (1994), 96 B.C.L.R. (2d) 333 (S.C)).
- The notes and file of a physician whose report complied with Rule 40A did not have to be produced (Hatherley v. Williams,  B.C.J. No. 1770 (S.C.))
- Whether “test data” obtained by a neuropsychologist is a “fact or assumption” upon which his or her report was based has been litigated, but, in the opinion of this author, has not yet been finally decided. In the Court of Appeal’s decision in Traynor v. Degroot ( B.C.J. No.1935 CA) raw test data was ordered produced; however, the court specifically stated that in the circumstances the doctrine of stare decisis should not apply. It is an open question of whether such production may be ordered.
Where a party fails to provide the facts and assumptions relied upon in forming an opinion it has been held that an application may be made for the production of that specific information. Often this application is brought pursuant to Rule 26(11), for the production of documents held by a “non-party”. However, this may not be the proper procedure for obtaining privileged documents in the possession of an expert retained by a party (see Nguyen v. Donovan  B.C.J. No. 604 B.C.S.C. @ para 49. It remains an open question as to whether it is proper to order production of the “facts & assumptions” or deal with the issue at trial.
An alternative approach is to argue that a report served without provision of the facts and assumptions upon which it is based does not comply with Rule 40A (5) and must be ruled inadmissible. It is submitted that if Rule 40A erodes privilege, then presumably it must be construed to do so at a minimum (R v. Mohan,  2 S.C.R. 9 (S.C.C.)) and therefore the remedies contained within the Rules should be applied rather than presuming a loss of solicitor-client privilege requiring an order for disclosure of facts as discerned by a Judge or Master on an interlocutory basis. Within Rule 40A, notice of the objection to the report must provided in accordance with Rule 40A (13), and if the omissions are not remedied, the opinion of the expert may then prove to be inadmissible. (Goerzen v. Sjolie  B.C.J. No. 44) There have been a number of decisions ordering production of the “facts” prior to trial; however, this may not be the only remedy available to deal with incomplete expert opinion reports.
The tension in the law with respect to disclosure of the experts work appears to relate to the balancing the value of solicitor-client privilege accorded to the work of experts retained by a party against the rights to full disclosure of otherwise unobtainable information. Discussion of these principles occurs in the judgments of Madame Justice McLachlin, as she then was in S&K Processors, supra and Chief Justice McEachern in Delgamuukw v. B.C (1988), (32 B.C.L.R. (2d) 152 (S.C.) (Delgamuukw #1) and Delgamuukw v. B.C (1988), (32 B.C.L.R. (2d) 156 (S.C.) (Delgamuukw #2) It is worth noting that most decisions which have resulted in Orders for disclosure have relied upon the first Delgamuukw decision and do not appear to consider the second Delgamuukw decision. Delgamuukw #2 appears to significantly restrict the application of the ratio of Delgamuukw #1 and is consistent with the protection of privilege until trial.
4 Production of the Expert’s file – At trial
When the expert takes the stand at trial, privilege is implicitly and presumably waived over all documents in an expert’s file relevant to the expert’s opinion. This rebuttable presumption occurs when the expert steps into the witness box. (Vancouver Community College, supra; Delgamuukw #1, supra)
This waiver can apply to all matters pertaining to the experts work including:
- the substance of the opinion
- the development of the opinion
- the expert’s credibility
This would include draft reports, the solicitor’s retaining and continuing instructions and the expert’s time logs, all of which relate to the expert’s opinion respecting the matter at issue. As well, the expert can even be compelled to testify about verbal communications that the expert has had with counsel and parties respecting the development of the opinion (Vancouver Community College, supra; Martin v. Eichel,  B.C.J. No. 1824 (S.C.).
In Delgamuukw #1, supra Chief Justice McEachern, as he then was, found that in this unusual case, the “original research” of an anthropologist, who prepared a voluminous report for use in marathon litigation, and whose work could not be repeated elsewhere was ordered disclosed. However, a few days later, the extent of disclosure required was further discussed and limited in Delgamuukw #2. It is submitted that these decisions relate to the wide discretion granted to the trial judge not to the issue of pre-trial disclosure.
An exception to the disclosure requirement pertains to the portion of the experts file which relates to confidential advice to counsel, i.e., to prepare for the cross-examination of opposing parties experts. The court recognizes that experts may be called upon to serve in both an advisory and an impartial capacities. It appears likely that a Judge or Master ruling upon the merits of disclosure of a portion of an expert’s file who has been serving in a dual capacity would err on the side of disclosure. It appears theoretically advisable for counsel to retain two experts where possible if the need for an opinion and extensive consultation are necessary. If not, precautions should be taken, including possible separate filing. In practice this appears to be rare.
The traditional practice appears to be for production of the testifying expert’s file at trial during cross-examination as referred to in VCC. However, the decision in Delgamuukw does appear to grant authority for the proposition that disclosure can occur at an earlier point in the procedure. In longer trials, the presiding Judge exercising his or her inherent jurisdiction may, and often does require advance production on some material and equitable basis. Counsel should not assume that the entire file is producible and should examine the experts file before opposing counsel reviews the same.
6 Failing to provide the Expert’s file
If an expert fails to bring his or her file or materials to the court, the obvious solution may require an adjournment. According to Mr. Thomas Woods (Impartial Expert or “Hired Gun”? Recent Developments at Home and Abroad, The Advocate, Vol 60, Part 2, March 2002, p205) the prospect of direct costs censure to the expert may occur in British Columbia at some point in the future.
If an expert maintains a practice of destroying or disposing of notes or drafts either on his own, or upon advice of instructing counsel the opposing counsel could and probably should ask the court to find the expert’s credibility to be lacking and attach little or no weight to the expert’s report.
The issue of the expert’s file and what should be produced is an incremental process with increased disclosure requirements at each stage of the process. It is undecided as to whether a neuro-psychologists raw test data must be disclosed upon service of an opinion report.
Brenner, D., Samuels, B., and Woods T.; Expert Evidence in British Columbia Civil Proceedings, (CLE, Vancouver, 2000)
Matthews, K, The Expert, (Carswell, Scarborough, 1995)
British Columbia Cases
Bestway Lath & Plastering Co. Ltd. v. McDonald Construction Co. Ltd (1972), 31 D.L.R. (3d) 47 (S.C.)
Bouthot v. Cao (1994), 96 B.C.L.R. (2d) 333 (S.C.)
Can-Dive Services Ltd. v. Pacific Coast Energy Corp.,  B.C.J. No.2455 (S.C.)
Co. Ce. Fin srl (Receiver of) v. Yorkton Securities Inc.,  B.C.J. No. 2978,  B.C.C.A. 774 (C.A.)
Chiacig v. Chiacig,  B.C.J. No. 2599 (S.C.)
Davies v. Milne (1999), 10 C.C.L.I. (3d) 44 (B.C.S.C.)
Delgamuukw v. B.C. (1988), 32 B.C.L.R. (2d) 152 (S.C.) (“Delgamuukw #1”)
Delgamuukw v. B.C. (1988), 32 B.C.L.R. (2d) 156 (S.C.) (“Delgamuukw #2”)
Descoteaux v. Mierzwinski,  1 S.C.R. 860 (S.C.C.)
Discovery Enterprises Inc. v. Ebco Industries Ltd.,  B.C.J. No. 1364 (C.A.)
Goerzen v. Sjolie,  B.C.J. No. 44; (1997), 86 B.C.A.C. 44 (B.C.C.A.)
Hatherley v. Williams,  B.C.J. No. 1770 (S.C.)
Henderson v. Lodge,  B.C.J. No. 610 (S.C.)
Krusel v. Firth (1991), 56 B.C.L.R. (2d) 96 (S.C.)
Lueck v. Enax,  B.C.J. No. 586 (S.C.)
Martin v. Eichel,  B.C.J. No. 1824 (S.C.)
Milne v. Dorais et al (25 March 1999), Vernon Registry 17971 (B.C.S.C.)
Mitchell v. Sobagio,  B.C.J. No. 3162 (S.C.)
Nguyen v. Donovan,  B.C.J. No. 604 (S.C.)
Regina v. Perron (1990), 54 C.C.C. (3d) 108 (Que. C.A.)
S. & K. Processors et al v. Campbell Ave. Herring Producers Ltd. et al (1983), 45 B.C.L.R. 218 (S.C.)
Smith v. Jones,  S.C.J. No. 15; 1 S.C.R. 445 (S.C.C.)
Stainer v. Plaza,  B.C.J. No. 421 (C.A.)
Traynor v. Degroot,  B.C.J. No.1935 (C.A.)
Vancouver Community College v. Phillips Barratt,  B.C.J. No. 980 (S.C.)
Vancouver Community College v. Phillips Barratt (1987), 20 B.C.L.R. (2d) 289 (S.C.)
Wong v. Henderson,  B.C.J. No. 2757 (M.- S.C.)