Talk To An Expert: The Preparation And Use Of Expert Reports In Litigation

In the much-anticipated decision, Moore v. Getahun, 2015 ONCA 55, per Sharpe J.A., the Court has affirmed key principles regarding the preparation and use of expert reports under Rule 53.03 of the Rules of Civil Procedure. They can be summarized as follows:

1. the well-established practice of lawyers meeting with expert witnesses to review draft reports is acceptable, so long as the report reflects the expert's genuine and unbiased opinion;
2. preparatory discussions and drafts of expert reports are not subject to automatic disclosure in litigation; a party seeking draft reports or notes of the expert must show that there are reasonable grounds to suspect that counsel communicated with the expert in an improper way, likely to interfere with the expert's duties of independence and objectivity to the Court; and