A recent judgment from the Ontario Superior Court of Justice (Moore v Getahun, 2014 ONSC 237) has opined on the long-time practice whereby experts submit a draft report to counsel for review. The court referenced Rule 53.03 of the Rules of Civil Procedure, which is designed to ensure that the expert’s first duty is to the court. No matter who retained the expert, he/she must be objective and not take on an advocacy role thus ensuring the expert’s independence and integrity. The court noted: “In light of this change in the role of the expert witness,… counsel’s practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.” The court went on to suggest that subsequent to the submission of the report, any input from counsel should be put in writing and should be disclosed to opposing counsel.
Is this direction from the court going too far in maintaining the spirit of rule 53.03? Why not allow draft reports to be reviewed for accuracy of factual content only. This would not be for the purpose of “shaping” a report that would indeed be contrary to the spirit of rule 53.03. In my experience, draft reports submitted to counsel are available for review by all parties if requested. It seems that the best interests of the court are preserved by ensuring that the expert’s report is based on the most accurate set of facts and assumptions. Otherwise, experts may need to produce a second or even third report in light of factual errors, wrong assumptions or inadvertent omissions in responding to the specific requests of the retaining counsel. The consequence could be that unnecessary work is added if the court must review more than one “official” version or several addenda to the original report.
The spirit of the expert’s duty to the court has been an important and widely applauded development including from experts who are now formally protected from any pressure that may be brought to bear from retaining counsel. Can we not preserve that spirit without resorting to an excessive chill in communications between expert and counsel?