Experts and legal professional privilege

We've previously outlined what expert evidence is, who is an expert and the procedural requirements to be observed when engaging an expert. In this article, we look at what communications and materials will be protected by legal professional privilege under NSW law and how legal advisers should conduct themselves when working with experts.

What is legal professional privilege?

Legal professional privilege is a right to maintain confidences between parties. When a document is protected by privilege, it means that it does not need to be disclosed.

In the context of litigation and retaining expert witnesses, privilege will apply to confidential oral or written communications between the client and his or her legal advisers and the expert for the dominant purpose of obtaining or receiving advice for the purpose of existing or anticipated legal proceedings.

"Dominant" in this context means the ruling or prevailing purpose. The purpose or intended use for which a document is brought into existence will be a question of fact.

How is privilege waived?

Legal professional privilege may be waived or lost where there is conduct inconsistent with the maintenance of the privilege. Examples include not keeping the advice confidential, partially disclosing a privileged communication or using it to explain why a certain action was taken or not taken.

The general principle is that if it would be unfair for the person to maintain the privilege after a disclosure, then there may be a waiver of privilege (Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475; Goldberg v Ng (1995) 185 CLR 83; Mann v Carnell (1999) 201 CLR 1). Waiver of privilege with respect to expert witnesses will arise because the expert evidence on which a party proposes to rely must be filed and served before the trial.

Expert witnesses

When expert witnesses are retained to prepare a report to be filed and served in proceedings, the production of the final report will be based upon numerous documents including instructions, source materials, drafts, working documents and confidential communications with legal advisers.

In terms of privilege and expert witnesses, two types of documents are to be distinguished:

• communications between the expert and the legal advisers/client; and
• associated documents including drafts, memoranda and notes produced by the expert.

In general, the former category will attract legal professional privilege and the latter category may not.

The Evidence Act test

Under section 119(a) of the Evidence Act 1995 (NSW), when experts are engaged to advise clients and their lawyers and to prepare reports, confidential communications between those parties will be caught by litigation privilege, provided that:

• the content of the confidential communication has a dominant purpose connected with the litigation; and
• occurs at the time legal proceedings are genuinely contemplated.

Traditionally, common law privilege only applied to communications. Section 119(b) of the Evidence Act extended the common law position to attach legal professional privilege to the contents of a confidential document prepared with the dominant purpose of the client being provided with professional legal services relating to legal proceedings, whether or not the document was actually communicated to the client or legal adviser for whom they were intended. A communication or document is considered "confidential" when there is an express or implied obligation not to disclose its contents, whether or not that obligation arises under law (section 117).

However, privilege will only apply if the dominant purpose of creating the document was for the client to be provided with professional legal services with respect to actual or anticipated legal proceedings. It is not sufficient to say the document was brought into existence for the dominant purpose of use in the litigation.

Legal principles

Communication / material: Briefing and Instructions
Does privilege apply? Yes
Authority: Generally, privilege will apply to confidential briefing and instructions by a prospective litigant’s lawyers to an expert for the purpose of providing a report of his or her opinion for use in anticipated litigation (sections 118 and 119 of the Evidence Act 1995 (NSW) and Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 at [21]).

Communication / material: Communications between experts and legal advisers
Does privilege apply? Yes
Authority: Communications between an expert and legal advisers will attract privilege (sections 118 and 119 of the Evidence Act 1995 (NSW)).

Communication / material: Documents provided to experts
Does privilege apply? Yes
Authority: Where copies of documents are made for the purpose of forming part of confidential communications between a client's legal advisers and an expert witness, privilege will generally apply (sections 118 and 119 of the Evidence Act 1995 (NSW) and Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 at [21]).

Communication / material: Expert's working notes and field notes
Does privilege apply? No
Authority: Privilege will not apply to expert witness's own documents such as working notes and field notes (Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 at [21]).

Communication / material: Legal adviser's file notes
Does privilege apply? Yes
Authority: Privilege will apply to file notes made by legal advisers in the course of communications and meetings with experts and clients (sections 118 and 119 of the Evidence Act 1995 (NSW) and Gillies v Downer EDI Ltd [2010] NSWSC 1323 at [70]).

Communication / material: Other documents
Does privilege apply? No
Authority: There is no privilege over documents used by an expert to form an opinion or write a report regardless of how the expert came by those documents (Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 at [21].).

Communication / material: Draft Expert reports
Does privilege apply? Yes and No
Authority: There are two competing authorities on this issue.

In Southcorp, Justice Lindgren held that a witness’s own drafts of his or her report will not attract privilege because they are not in the nature of, and would not expose, communications (Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804 at [21]).

In New Cap Reinsurance, Justice White, by reference to section 119(b) of the Evidence Act, made a distinction between the intentions behind the creation of draft reports:

• those created to set out the evidence the expert expects to give in his or her final report to be provided to the court; and
• those created to communicate the report to the legal adviser to be considered and commented on by the legal adviser.

Justice White found that the former would not attract privilege but generally the latter would attract privilege (New Cap Reinsurance Corporation Ltd (in Liq) v Renaissance Reinsurance [2007] NSWSC 258 at [30] and sections 118 and 119 of the Evidence Act 1995 (NSW). See also D'Apice v Gutkovich (No. 1) [2010] NSWSC 1336).

Communication / material: Final Expert reports
Does privilege apply? Yes and No
Authority: As the dominant purpose of an expert's final report is to provide guidance to the Court on certain facts in issue, the expert's final report will not attract privilege (New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [29]).

Note that in Cadbury Schweppes, it was found that:

• service of the expert report alone does not waive privilege over earlier correspondence with legal representatives and drafts; and

the relevant test is whether the expert report can be completely or thoroughly understood without reference to the privileged documents (Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 7) [2008] FCA 323 at [4]-[6]).

Practical tips

Legal advisers must proceed with caution in their dealings with experts to ensure that waiver of privilege is prevented. Practical tips for legal advisers when dealing with experts include:

• engage the expert on the assumption that all communications between legal advisers and experts, documents provided to experts, draft reports, expert's notes and notes of oral communications with the expert have the potential to be disclosed to the opposing party;
• carefully consider the documentation that is to be provided to the expert and do not provide experts with privileged material – if the expert relies on it in giving their opinion, privilege may be lost;
• all documents provided to the expert for his or her consideration should be provided by the legal adviser or on the legal adviser's instructions;
• written communications between legal advisers and experts should not suggest changes to the content of the report, however suggested changes to the form of the report is acceptable;
• where possible, communications from the expert should come directly to the legal adviser. The expert's contact with the client should be limited;
• written communications between the expert and legal advisers should also be limited to the extent possible. Conference calls should be arranged to deal with general matters and a decision made as to whether it is necessary to follow up with a written communication; and
• advise the expert that draft reports or other documents should not be sent to the legal adviser or any other party unless it is agreed, over the phone, that the document is to be provided.