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

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;