The Defendant sought the production of documents underlying Experts’ Reports that were previously provided by the Plaintiffs. The Defendant argued that, because the Experts’ Reports were produced, litigation privilege was waived and the underlying documents must be produced.

The Plaintiffs argued that there was an express reservation of privilege when the reports were provided and, relying on Chernetz v Eagle Copters Ltd, 2005 ABQB 712 (“Chernetz”), that litigation privilege continues to apply until the report is introduced into evidence at Trial.

The Court held that Rule 5.37 was applicable and consistent with Chernetz. Rule 5.37 allows the Court to direct that an expert be Questioned (and consequently documents underlying the report be disclosed) prior to Trial, in exceptional circumstances. The Court held there were no exceptional circumstances, and the Application was dismissed.