Legal professional privilege in draft expert reports: A new development

This post outlines a new development in legal professional privilege in draft expert reports in Australia.

Malone, Raymond McGregor v La Playa Nominees Pty Ltd (ACN 071 767 863) & The Registrar of Titles [2-21] VSC 271

On 19 May 2021, the Victorian Supreme Court (“VSC”) handed down a decision in Malone, Raymond McGregor v La Playa Nominees Pty Ltd (ACN 071767 863) & The Registrar of Titles [2021] VSC 271 (“La Playa”). The VSC’s decision differed from the conventional approach of some lawyers to avoid written communication with expert witnesses, in that the VSC demonstrated they would be more likely to consider reports privileged when they were unambiguously attached to written communications to lawyers.

In this blog, Legal Kitz discusses the La Playa decision. Specifically, this blog will look at the VSC’s rationale in determining what types of correspondence between an expert witness and lawyers are privileged, and how this decision may impact communications between expert witnesses and lawyers.

Key points to remember about legal professional privilege

• Documented communication between legal teams and experts may be crucial in being able to claim legal privilege and prevent the disclosure of documents.
• Up front conversations with experts should be undertaken to ensure they understand the potential risk for them having to disclose draft or supporting material if called upon.

Background

The plaintiff and defendant owned neighbouring properties on Shandford Avenue, Brighton. Between 2017 and 2018, the plaintiff had contracted a construction company to undertake renovations to the plaintiff’s property. This included work to a fence and wall dividing the properties. It was the construction and placement of this wall and fence that lead to a dispute between the parties. 

The plaintiff intended to call upon the construction company as an expert witness. They had produced an expert report outlining their observations on the wall and the history of the boundary’s current and previous construction.  

The defendants subpoenaed the construction company seeking documents relating to the case, specifically “all correspondence including emails and attachments to such emails between solicitors at the law firm Nicholson and you.” To prevent the documents being provided to the defendants, the plaintiffs sought to claim legal privilege over the subpoenaed documents. The VSC considered whether privilege was applicable in the scenario. 

The Victorian Supreme Court’s consideration of legal privilege

The Victorian Supreme Court (“VSC”) considered whether a common law or statutory approach should be used to determine whether legal privilege could be applied to documents and correspondence between the expert and legal practitioners in La Playa. The VSC reasoned that a statutory approach under the Evidence Act 2008 (Vic) did not apply in La Playa due to the person claiming the privilege (the plaintiff’s lawyers) was not the person that the subpoena was served upon (the expert). The approach adopted by the VSC relied on a common law approach to decide on the application of legal privilege in La Playa.  

The VSC employed the common law approach of the “dominant purpose test” that had been applied by the federal court in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796. This “dominant purpose test’ comprised of eight steps that each piece of material should be assessed against before they could be considered subject to legal privilege. The steps the VSC applied were:

1. the relevant issue is whether the documents or communications were created for the dominant purpose of the litigation;
2. the plaintiff bears the onus of claim to privilege regarding each factual element;
3. the relevant time for ascertaining privilege is at the time of original communication;
4. the relevant purpose depends on the context: it may be determined according to the will of the author or the initiator of the communication;
5. purpose is objective: can be determined from the content of the document;
6. the purpose must be the predominate one, rather than one of many;
7. all or parts of the documents may be privileged; and 
8. the content of a document may make the document privileged, even where the document itself does not satisfy the dominant purpose test.

In applying the above steps, the VSC broke all the applicable documents into four broad categories and made the following determinations:

1. Documents that included emails relating to the subpoena.
   1. Not considered privileged as the principles of the test do not extend to all communications as these types of documents did not cover the company’s expert evidence or potential evidence.
2. Stand-alone draft expert reports.
   1. There were two reports under this category. One was considered privileged as it had been communicated to the legal team, the other was not considered privileged as it had not been communicated to the legal team.
3. Emails regarding engagement of another expert.
   1. This was considered privileged, but the privilege was deemed waived due to it containing information on what the other expert was asked to do, which was relied upon the subpoenaed expert in generating their expert opinion report.
4. Email included as an attachment in expert report.
   1. This was considered privileged but waived, as privilege cannot be maintained in respect of documents used by an expert to assist in compilation of their own expert opinion.

The importance of La Playa for legal professional privilege

La Playa demonstrated the potential complexity of privilege rules in litigation. The VSC determination showed that attempting to avoid the creation of a document trail that could be used for cross examination, may increase the risk of documents being ruled to not be covered by legal privilege or to have the privilege waived. La Playa highlights the importance for legal teams to have detailed discussions with expert witnesses and to highlight with them the potential that they may be required to produce draft reports and materials for cross examination before the courts. 

Legal advice​

If you or your business need assistance with litigation matters, you should contact the Legal Kitz team today. Legal Kitz can assist with ensuring that all your legal obligations are met to assist in the timely and risk adverse manner to achieve your business objectives.  

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