PRIVILEGE IN EXPERTS' WORKING PAPERS
AbstractExpert reports and affidavits are important in assisting lawyers in litigation and in non-litigious contexts. In preparation, the expert creates working papers including communications with lawyers and others, preliminary test results and drafts. The lawyer and client expect the expert to examine all sides of the problem in a full, frank and objective manner. The client expects that the expert's report and working papers will be absolutely protected from disclosure by "solicitor client privilege", unless the privilege is waived. However, under the law as currently interpreted in Canada, working papers created for legal advice not related to litigation are not privileged. When related to litigation, some courts have held these documents are protected by a "litigation privilege" which is not absolute and can be displaced by other interests in the adversary system, for example, it is waived when the expert is called as a witness. As a result, recommendations are made in the paper as to the destruction of non-essential working papers and reports. However, this practical precaution defeats the purpose of privilege, to promote full and frank communications with lawyers, and is destructive to the adversary system. The law in many jurisdictions is in error as it does not give full effect to solicitor-client privilege. Litigation privilege should just be a branch of solicitor-client privilege in the litigation context. This paper traces the problems in the current law back to 1881 and outlines subsequent errors leading to the current confused state of the law. The Supreme Court of Canada made strong statements in 1980 and 1982 that solicitor-client privilege is to be treated as a broad fundamental civil and legal right. Since the courts and commentators have in many cases failed to use this guide to deal with the accumulated errors over the last century, it may fall to the Supreme Court to set them straight.
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