Rule 11-6(8) Interpreted to Limit Scope of Expert Witness File Disclosure
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope of expert witness file disclosure requirements under Rule 11-6(8). In short the court held documents created after the preparation of the expert opinion need not be disclosed.
In today’s case (First Majestic Silver Corp. v. Davila) the Plaintiff made a mid-trial application requesting “notes made by the Defendants’ experts during the course of the trial when the Plaintiffs experts were testifying“. The Defendant opposed arguing the new rules of court did not require production of such records. Mr. Justice Myers agreed and provided the following comments:
[8] While the plaintiffs referred to Rule 11-6(8) at the outset of their argument, the main thrust of their submission was based on the common law prior to the new rules. I will elaborate that after I summarise the defendants’ position.
[9] The defendants argued that the Rule replaced the common law. They submitted that the rule limits production to what was clearly stated in the rule, namely the “contents of the expert’s file relating to the preparation of the opinion” [emphasis added]. Since their experts had already delivered their reports and therefore formulated their opinions (beyond which they were not entitled to go when giving evidence) the notes made during trial could not relate to that.
[10] In reply, the plaintiffs argued that the only thing the rule does is to push back the time at which the expert’s file must be disclosed. Under the prior case law, this was when (and only if) the expert takes the stand, and then the whole file need be disclosed. They argue that the rule requires the same disclosure to be made, but in advance. Relying on Lax Kw’alaams, they submit that there is no distinction between the different capacities of an expert when generating the file materials. Rather, the whole file relates to an expert’s credibility once he or she takes the stand and must be produced.
[11] On the plain wording of the rule, I do not agree that it only modified the timing for the disclosure. The words “relating to the preparation of the opinion” must be given some meaning. In effect the rule settles the gray area dealt with in the decisions cited above. I therefore decline to order the notes made during the course of the trial.