Protecting Legal Privilege: Matters to consider when briefing an expert

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This article was prepared by Anuja Ng.

Legal professional privilege balances the need to encourage full and frank disclosure by clients to their lawyers with the interest of obtaining the fullest access to the facts relevant to a case.[i] Perhaps because it is itself a balancing exercise, it can be difficult to ascertain when privilege is lost.

What is legal privilege?

Legal professional privilege is a right to keep communications and documents between parties confidential and not disclose that material.  Relevantly to expert witnesses, it applies to confidential communications (oral or written) between the client, his or her lawyer and the expert, made for the “dominant purpose” (i.e., the prevailing purpose) of obtaining or receiving advice for existing or anticipated legal proceedings.[ii]

How is it waived?

Privilege can be waived or lost due to conduct inconsistent with its maintenance (e.g., if a party who is sued for negligence claims that they have privileged material that explains why their conduct was not negligent). In determining whether conduct is “inconsistent” [iii], considerations of fairness, relating to the maintenance of confidentiality, will be relevant.[iv] For example, it may be unfair to maintain privilege if the privilege-holder uses it to create an inaccurate perception of the privileged material.[v]

Privilege will also be waived with respect to any expert evidence that a client proposes to rely on and must be filed and served before the trial (e.g., an expert report). Privilege will be waived in any information that a client “knowingly and voluntarily” discloses the substance of, unless the disclosure occurs when making a confidential communication or preparing a confidential document or under legal compulsion.[vi]  Material is confidential when there is an express or implied obligation (under law or otherwise) not to disclose its contents.[vii]

When lawyers obtain expert evidence for their clients, attention must be turned towards the following:

Does privilege attach to a letter of instruction/brief from a lawyer to the expert?

Yes, in ordinary circumstances.[viii]

However, privilege may be waived if, in the expert’s report, it is stated that the letter is one of the sources of information upon which the expert has compiled his or her report.[ix] The Federal Court has waived privilege in these circumstances because the letter may have confined the expert to preparing the report in a certain way.[x] This is not the only circumstance in which privilege over instructions may be waived.[xi]

Does privilege attach to documents (e.g., witness statements) provided to the expert and communications between experts and legal advisers?

Yes.[xii]  Documents given to an expert that form part of the confidential communications between a lawyer and an expert attracts privilege.

However, that privilege may be waived if the expert’s opinion is stated to be based on those documents or those documents are stated to be possible sources of information upon which the expert relied.[xiii] Privilege will not ordinarily be lost if the expert does not refer to the documents. Further, mere reference to a document in an expert’s opinion does not waive privilege in the document – there must at least be a reference to the contents of the document and to reliance upon the document.[xiv]

Does privilege attach to working notes/field notes made by an expert in the course of forming an opinion?

It is unlikely that working products of an expert, made in the course of compiling his opinion would attract privilege. However, as noted above, privilege may be claimed in relation to communications between the expert and a lawyer (both ways) when the communication is made for the purpose of confidential use in litigation.[xv]

Does privilege attach to draft expert reports?

In general, privilege is unlikely to attach to draft expert reports.[xvi] However, as noted above, privilege may be claimed in relation to communications about the draft report, between the expert and the solicitor when it is made for the purpose of confidential use in the litigation.[xvii]

Further, a distinction may exist between draft reports created to note the evidence that the expert relies upon in producing his or her final report and draft reports created to communicate the expert’s opinion to the lawyer and be considered and commented upon by the lawyer. The former is unlikely to attract privilege but the latter may do so.[xviii]

Can an expert that a lawyer initially engages but then proves unsuitable, including because the expert’s view is unfavourable, be compelled by the opponent to give evidence?

There is no property in a witness’s evidence of fact, so a court can compel an expert witness to attend to give evidence on behalf of a party other than the party that first commissioned him or her. A witness may be compelled to give evidence and produce all documents made in the course of reaching the opinion. Instructions from the lawyer to the expert which attract privilege will not be required to be disclosed (but the expert will be required to state the assumptions upon which the opinion is based). Also, the opposing party cannot have access to the expert’s unused, but nevertheless privileged, report even if it chooses to call that expert in its case.[xix]

Practical implications

A number of practical implications arise out of the above.

  • Experts should be briefed with written instructions, to be appended to the report, setting out the matters upon which the expert is required to base his or her opinion. If material is provided to the expert, lawyers should be certain that either no claim for privilege exists with respect to those materials or that any claims may be waived without undue prejudice to the client’s case.
  • All documents provided to the expert should be provided on the lawyer’s instructions. The expert’s contact with the client should be limited.
  • Consult with the expert before any draft report or written material is prepared to avoid misunderstandings and to minimise the creation of unnecessary drafts and written material that could be required to be produced. Written communications between the lawyer and the expert should not suggest changes to the content (as opposed to the form) of the report.
  • Lawyers should arrange with the expert to have a discussion over the phone before the expert sends any draft report to the lawyer.
  • Enter into an appropriate contract of engagement with the expert prior to any significant communications with him or her to maximise the protection of confidentiality and of preventing the use of information provided on behalf of your client to the expert.
  • Avoid stating anything to the expert that you would not be prepared to state in open court. If the expert’s opinion is based on such statements you may be called to give evidence in that regard. [xx]

[i] Waterford v Cth (1987) 163 CLR 54 at 64-65.

[ii] Esso Australia; Evidence Act (Cth) ss17-

[iii] Uniform Evidence Acts, s 122(2).

[iv] Mann v Carnell (1999) 74 ALJR 378.

[v] A-G (NT) v Maurice (1986) 161 CLR 475.

[vi] Uniform Evidence Acts, s 122.

[vii] Uniform Evidence Acts, s 117.

[viii] Tirango Nominees v Dairy Vale Foods Ltd [No 2] (1998) 83 FCR 397; Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 at [21]

[ix] Instant Colour Pty Ltd v Canon Australia Pty Ltd, Unreported, Federal Court of Australia, 30 October 1995 (R D Nicholson J)

[x] Instant Colour Pty Ltd v Canon Australia Pty Ltd, Unreported, Federal Court of Australia, 30 October 1995 (R D Nicholson J)

[xi] Tirango Nominees at 401 (Mansfield J)

[xii] sections 118 and 119 of the Evidence Act 1995 (NSW) and Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 at [21]

[xiii] Jessup v Gorjup, Unreported, Supreme Court, Tas, 20 November 1997

[xiv] Bourns Inc v Raychem Corp [1999] 3 All ER 154; Dingwall v Commonwealth (1992) 39 FCR 521.

[xv] Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd [1991] 1 Qd R 141 (Thomas J).

[xvi] Bourns Inc v Raychem Corp [1999] 3 All ER 154; Dingwall v Commonwealth (1992) 39 FCR 521

[xvii] See also, Pomerenke, “Expert Witness and Legal Professional Privilege” (1998) 19 Qld Lawyer 18.

[xviii] New Cap Reinsurance Corporation Ltd (in Liq) v Renaissance Reinsurance [2007] NSWSC 258 at [30]

[xix] Interchase Corporation Ltd v Grosvenor Hill (Qld) Pty Ltd [1991] 1 Qd R

[xx] Expert Evidence: Legal Professional Privilge and Experts’ Reports (2001) 75 ALJ 258.

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