Litigation privilege and disclosure of expert's file.

• Author: Chiasson, Basile
• Position: Canada

INTRODUCTION

Expert opinion at trial is an exception in the law of evidence. The unique role of the testimonial expert, together with the fact that the expert is permitted to give opinion evidence where normally opinions

are inadmissible, in part explain the steady expansion of disclosure over privilege in civil litigation.

The de facto incorporation of the expert into the fact-finding function of the court in areas where the court, unaided, is not capable of drawing the proper inferences from raw data or factual evidence, calls for caution in the judicial treatment of expert evidence. The willingness of judges to countenance an intrusion into otherwise privileged territory is more readily understandable considering that, in effect and to a significant degree, the court delegates a judicial function to experts. The court must, accordingly, be satisfied that the experts--whose opinions are to be adopted--are beyond reproach.

The expert witness offering his opinion to the court is expected to shed his partisan affiliations. The court expects of him to offer impartial and objective assessments of raw evidence that is not possible to understand without the unrefracted lense of the expert's special expertise. While, in an adversarial system--where experts are called and remunerated by parties to proceedings having an interest in the ultimate disposition of those proceedings--this objectivity may appear to be a legal fiction, it is nevertheless the main premise upon which experts are permitted to give their opinions and upon which expert evidence that is trusted is received. (2) Indeed, where the court perceives that the expert has adopted the role of an advocate, the expert's opinion will either be ruled inadmissible or accorded little or no weight. (3)

Judicial cynicism towards the objectivity and reliability of experts' opinions and reports is increasingly prevalent. (4) Although counsel must work closely with any necessary expert to present a coherent and carefully elaborated opinion, the close relationship that often develops between lawyer and expert raises concerns of bias and fairness. (5)

Canadian trial judges increasingly take a dim view of experts' "opinions" as being nothing more than the by-products of mercenary work. An apparently qualified expert will say one thing, while another similarly-qualified expert in the same field will say the opposite. "The impression that he who pays the piper calls the tune is sometimes inescapable." (6) Witnesses-for-sale or hired-guns are not welcome in court since experts are expected to be neutral. (7) Their testimony is meant to assist the court and the trier of fact, not to bolster the theory of the case presented by one of the two sides. (8)

Would our systems of civil litigation function more fairly and effectively if production of all written communications between counsel and expert were mandatory? (9) Would inefficiency and unfairness result if litigation privilege was not available? (10) Courts are at loggerheads on this issue, which includes whether production of instructing letters of counsel and expert preliminary reports should be protected by litigation privilege.

The law is in a state of flux on this narrow aspect of Canadian civil litigation and even the legal reasoning of the Supreme Court of Canada is still a work in progress. (11)

1. Clash of Titans: The Common Law in Motion

   Competing legal theories are at play both at discovery and trial. Issues of production come at the forefront of litigation initially at discovery or afterwards at trial. In either case, there is a clash of conflicting values between the contradictory policy objectives of encouraging broad disclosure in litigation and protecting litigation privilege. In all cases, the issues at stake are a function of the civil process of dispute adjudication.

   Adversarial proceedings are traditionally the hallmark of the system of adjudication of dispute in common law jurisdictions. Every jurisdiction throughout the Canadian federation has inherited this typical English system of civil justice with the notable exception of the Province of Quebec.

   One feature of modern Canadian systems of civil justice has been the perpetual dynamic tension between disclosure and privilege. Why?

   Under modem-day rules of discovery, it is accepted as an article of faith that generous disclosure of documents and information is the underpinning of fairness in the adjudicative process. The ever-expanding scope of disclosure has been tempered, however, by the assertion of privilege for both solicitor-client privilege and litigation privilege, which are at the forefront of the adversarial setting.

   Solicitor-client privilege has been given full status as a substantive legal right that can be exerted outside the scope of adversarial proceedings. (12) However, litigation privilege has been steadily eroded under the unrelenting pressure of modem-day rules of disclosure in Canadian civil proceedings. Nowhere has this been more obvious than in the area concerning access to expert work product. These privileges therefore provide unequal protection against mandatory compelled disclosure. (13)

   (A) Movements of the Tectonic Plates of Common Law: Top Courts on the Move

   Recently, the highest courts in Canada and England considered litigation privilege and solicitor-client or legal advice privilege. In 2004, the House of Lords in Three Rivers District Council v. Governor and Company of the Bank of England (14), significantly widened the scope of the solicitor-client privilege, but left critical issues to be resolved in the future. In Blank v. Canada (Minister of Justice) (15) the Supreme Court of Canada dealt with, for the first time, the issue of litigation privilege.

   A factual review of the circumstances of these cases is necessary, since at common law, legal principles are advanced incrementally on the facts of particular cases rather than in a factual vacuum. (16)

   In Three Rivers, the Chancellor of the Exchequer and the Bank of England ("Bank") had set up an inquiry into the collapse of a secondary bank ("BCCI"). It was clear from the outset that the inquiry might criticize the Bank's conduct and affairs with BCCI and would likely lead to legal proceedings against the Bank by creditors of BCCI and others who had lost money in consequence of BCCI's collapse.

   The Bank agreed to make submissions to the inquiry with respect to the collapse. A number of its employees and ex-employees agreed to give evidence to the inquiry. The Bank set up a small group of employees as an inquiry unit ("BIU") specifically for the purpose of liasing with external lawyers in relation to the inquiry. Freshfields, the Bank's solicitors, were instructed to assist the Bank with advice on both the preparation and presentation of the submissions and further on evidence to be given to the inquiry by employees and ex-employees of the Bank.

   Certain employees and ex-employees of the Bank, some who were members of the BIU, prepared documents with the intention of sending them to Freshfields to aid its task of advising on the submissions and the evidence. Subsequent to the creation of these documents, various external parties sued the Bank for misfeasance in public office with respect to the collapse of BCCI. In the course of that litigation, the appellants sought disclosure and inspection of all documents including the Freshfields documents.

   In the context of English law, the inquiry did not constitute adversarial litigation. Hence, the documents could not be subject to litigation privilege. However, the Bank contended that the documents were shielded from disclosure on account of legal advice privilege (i.e. solicitor-client privilege).

   The Bank decided to forego a claim to litigation privilege based on the fact that, although it contemplated litigation at the time of the inquiry, the dominant purpose for which documents were produced was not for possible future litigation, but for presentation of submissions and evidence to the inquiry itself. The inquiry did not constitute an adversarial proceeding and, in contrast to court proceedings, it was a fact-finding process. The Bank therefore sought to rely on legal advice privilege to shield the documents created both by members of the BIU and those documents prepared by other employees. The issue before the court was therefore the scope of the legal advice privilege.

   The House of Lords dealt only with this issue on appeal; although the Court of Appeal of England had also issued a restrictive definition of "who is the client" for the purpose of receiving that advice. The appeal before the House of Lords dealt strictly with the scope of legal advice and not with the issue of who is the lawyer's client in the context of a large organization. It follows that guidance from the House of Lords as to the issue of "who is the client" remains to be obtained.

   This factual background led to five different sets of concurring reasons issued by the panel of the House of Lords:

   (a) The Court noted the close proximity between legal advice privilege and litigation privilege, and then set out the broad scope of the legal advice privilege.

   (b) The Court held that legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context. Legal advice, which would attract privilege, was defined to include that which related to the rights, liabilities, obligations, or remedies of the client.

   (c) The modern lawyer does not simply give black and white advice on the construction of legal principles. Legal advice now extends to practical advice such as the protection of the client's reputation, provided such advice arises out of a given legal context.

   (d) However, the traditional business solicitor may find himself exceeding the boundaries of legal advice privilege if he advises a client on all business matters, including in relation to...