ASK ABOUT THE EXPERTS DURING DISCOVERY NOT AFTER
The case of Conceicao Farms Inc. v. Zeneca Corp., recently decided by the Court of Appeal for Ontario, is a good reminder of the care and focus required during the discovery process when seeking disclosure of findings, opinions and conclusions of another party’s expert.
In this case, the respondents had provided an expert report 8 months prior to trial. The expert was then called as a witness at trial. The appellants’ action was dismissed with costs at trial with the trial judge relying, in part, on the respondents’ expert evidence.
When the respondents provided material to the appellants in support of their costs claim, the existence of a memorandum came to light. The memorandum, prepared several years before the trial, contained foundational information for the opinion of the respondents’ expert. The appellants then moved before the trial judge to request production of that memorandum. The trial judge dismissed the motion.
The appellants appealed the trial judge’s decision. They relied on Rule 31.06(3) of the Rules of Civil Procedure hoping to tender the memorandum as fresh evidence on an appeal in order to argue that a decision based in part on the expert could not stand since the memorandum was wrongly withheld.
The respondents’ Affidavit of Documents asserted privilege over all documents and memorandum prepared for the purposes of litigation. The memorandum was not produced to the appellants.
However, the C.A. found that as the appellants knew of the expert’s final opinion months before the trial, they were entitled, at that time, to seek discovery of the foundational information for that opinion pursuant to Rule 31.06. The appellants apparently did not choose to do so. The C.A. found that there was no basis for the appellants to do so following the trial. The ability to seek discovery of foundational information for an expert opinion applies to the discovery stage of litigation which was closed. Moreover, the appellants were not entitled to disclosure at this later stage to cure their own failure to properly exercise their right to obtain this foundational information on discovery.
Seeking the disclosure of expert evidence should be considered earlier rather than later.
Thanks for reading.