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Litigation Privilege and Expert Consultations

In the course of a personal injury action, a party will sometimes obtain an expert report which it decides not to use in the lawsuit. In these situations the entire work product of the expert (including his or her report) remains subject to litigation privilege, which means that the other side does not get to look at it. Once the expert report is served on the other party and the report the privilege over the file of the expert is lost. In the recently published case of Lanteigne v. Brkopac, 2011 BCSC 1303, ICBC’s lawyer tried to compel the plaintiff to provide the defendant with the complete records of a neuropsychologist who had been retained by the plaintiff to assess whether or not the plaintiff had sustained a brain injury. The court held that those records remained privileged and would not be disclosed. In that regard Master Taylor said the following:


[21] In my view it is improper to categorize the non-treating doctor or any other third party consultant retained on behalf of the plaintiff as a witness in which there is no property. The very fact that the plaintiff consulted with that physician or other individual during the course of litigation removes that individual from the “witness” category until such time as the plaintiff and counsel make a determination about whether or not that physician will be used as a witness at the trial, and preserves the right of privilege. The fact that the consulted doctor or other consultant never gives evidence preserves the privilege for all time unless waived by the plaintiff.


[22] When the defendant and third party submit they could have the plaintiff examined by their own doctor or proceed with an examination of the doctor pursuant to Rule 7-5, they complain that those alternatives are costly and, accordingly, the court should assist them by ordering the records of Dr. Coen to be produced and thus save them the cost of proceeding with the other alternatives. The defendant also submits that Rule 1-3 provides the court with sufficient justification to order Dr. Coen to provide his notes of the plaintiff’s examination.


[23] In my view, the defendant…have not shown any meritorious reason for abrogating the plaintiff’s litigation privilege related to the information obtained by Dr. Coen from the plaintiff as a result of the referral to Dr. Coen by the plaintiff’s solicitor. Nor, in my opinion, does Rule 1-3 provide justification for abrogating the privilege. Accordingly, the plaintiff’s application fails with costs to the plaintiff in any event of the cause.

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