Protecting The Privilege Attached To Expert Reports ' When Conduct Amounts To Waiver

• Published date: 21 February 2024
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Miller Thomson LLP
• Author: Ms Sandra Hawes and Arsham Gill

INTRODUCTION AND OVERVIEW

The Alberta Court of King's Bench decision in Alberta Drywall & Stucco Supply (Calgary) Inc v Alberta Drywall & Stucco Supply Inc, 2023 ABKB 696 [Alberta Drywall] provides clarity on whether the production of an expert report before trial immediately waives privilege of all documents referred to by the expert in the preparation of that report.

In this decision released December 7, 2023, Justice G.S. Dunlop decided an application where the Defendant sought an order:

1. Requiring the Plaintiff to provide the documents referred to and relied upon by the Plaintiff's expert in preparing a written report, which had not previously been disclosed in the documentary discovery process;
2. Directing the Plaintiff's expert to attend Questioning on their report in advance of trial; and
3. Directing the disclosure of documents received by the expert but not relied upon by the expert in forming the expert's opinion.

Background Facts

The Plaintiff retained an expert (the "Expert") who consulted several documents and engaged in discussions with the Plaintiff's principal ("Principal"), to ultimately produce a written report (the "Report"). The Report listed the information and documents relied upon by the Expert within the body of the Report under the heading "Procedures Performed and Documents Relied On".

The information relied on in preparation of the Report was as follows:

• The filed pleadings;
• Plaintiff Affidavit of Records sworn by the Principal;
• Defendant Affidavit of Records and the continuing production of Defendant;
• ADSSI-Calgary General Ledgers for the years ended January 31 2013 and 2014;
• Browne & Sons Plastering General Ledgers for the years ended January 31, 2013 and 2014;
• Additional records requested from Defendant from ACE Point of Sale system; and
• Discussions with Principal as well as additional documentary information provided by Principal, attached as an Appendix to the Report.¹

In addition to that comprehensive summary, the Report included pinpoint references to documents in footnotes to the "Detailed Findings" section of the Report and in the twelve schedules which form part of the Report. With one exception, all the information relied upon by the Expert was disclosed to the Defendant - the exception being those discussions between the Expert and Principal.

The Defendant sought disclosure of all materials which the Expert consulted in the creation of the Report, whether or not those materials were in fact relied upon for the...