The 2014 decision of Moore v. Getahun created quite a stir in Ontario's litigation bar when Justice Wilson held that it was improper for counsel to review and discuss draft reports with experts. The Court of Appeal released its appeal of the decision January 29, 2015. You can access the decision by clicking here.
The Court disagreed with the trial judge. There held there is nothing
improper about "this longstanding practice." Sharpe J.A. noted
that the trial judge's decision is contrary to existing cases which say
communication with the expert can actually help ensure an opinion is admissible,
coherent and comprehensive. There are safeguards built into the system: counsel cannot persuade an expert to change
an opinion and it still needs to be objective.
Draft reports and notes of meetings and other communications are litigation privileged and do not have
to be produced, absent a reasonable suspicion the expert was improperly influenced. The foundational information used in formulating the opinion must still be produced.
This common sense decision will be welcomed by many on both the plaintiff and the defence side.