This was an Application for an Order directing production of reports prepared by a private investigator that were later provided to the Defendants’ medical expert. The Defendants resisted the Application on the grounds that the investigator’s reports are subject to litigation privilege, submitting that litigation privilege attaching to material provided to an expert is not waived until the expert testifies at Trial. The Plaintiff argued that by providing the investigator’s reports to the expert and then subsequently disclosing the expert report in accordance with Rule 5.35, the Defendants had waived litigation privilege by implication.

The Court noted that Rule 5.34 provides that expert reports are to be served in the sequence required by Rule 5.35. Rule 5.35 provides that “if a party intends to use the evidence of an expert at trial” the evidence must be exchanged sequentially with the “party who bears the primary onus of proof” going first; however, no deadlines for the exchange of expert reports are specified by Rule 5.35.

The Court made a clear distinction between foundational information, records provided to an expert to review for the purpose of forming an opinion, and other materials that may comprise an expert’s file, such as correspondence with counsel and draft reports. The Court found the investigator’s reports in question fell into the former category, foundational information.

Relying on the right to question an expert found in Rule 5.37, the Court found an implied right to explore the foundations of the expert’s report. Additionally, the Court recognized it would be unfair to the Plaintiff to have their expert file a reply to the Defendants’ expert report without access to the same foundational information. Requiring Parties to provide foundational information concurrently with the delivery of an expert report so that the other side’s experts can effectively respond is fair, efficient, and furthers the purpose of the Rules, as reflected in Rule 1.2.

In conclusion, the Court held that waiver of privilege with respect to foundational information occurs when the expert report is exchanged because it is at that time when the Party delivering the expert report signals to the other side its intention to rely at Trial on the expert report, and by extension the foundational information underlying the expert report. As such, the Court directed the investigator’s reports be produced forthwith to the Plaintiff.