Are Lawyers’ File Notes of Conversations with Experts Disclosable?

Is a lawyer’s file note of a conversation with an expert witness on a legal matter protected by legal professional privilege? This question was examined by the Queensland Supreme Court in the recent decision of Enkelmann & Ors v Stewart & Anor [2023] QSC 111.

In this litigated matter, the parties sought a decision by the Court regarding disclosure obligations under the Uniform Civil Procedure Rules 1999 (“UCPR”).

Facts of the Claim

The defendants, the Enkelmanns and Preema Partnership were being sued by the plaintiffs, the Stewarts, in a claim of nuisance and negligence. The plaintiffs alleged that works or modifications to the defendants’ property caused flooding to the plaintiffs’ land.

The plaintiffs’ Statement of Claim pleaded particular results from modelling undertaken by Mr Giles, a hydrology expert engaged by the plaintiffs.

In the course of cross-examination in the trial, the plaintiffs’ expert witness, Mr Giles, indicated that he had been given a letter of instruction by the plaintiffs’ solicitor, and he had given oral advice (i.e. his opinion on other experts’ hydrology reports and their methodology, etc) to the plaintiffs’ solicitor over the phone.

The Dispute

As a result of Mr Giles’ evidence during cross-examination, the defendants called for production of the letters of instructions and documents evidencing the oral opinions provided by Mr Giles. The plaintiffs responded by claiming privilege over the documents and refused disclosure.

The defendants therefore brought an Application, seeking an order from the Court to compel disclosure.

Rule 212 of the UCPR and Relevant Authorities

Judge Williams pointed out that under rule 212(1) of the UCPR, the duty of disclosure is expressly stated to not apply to certain categories of documents, including a document in relation to which there is a valid claim to privilege from disclosure.

There was no dispute that an expert’s written report is disclosable according to rule 212(2) of the UCPR which states “A document consisting of a statement or report of an expert is not privileged from disclosure“. However, in the present case, Judge Williams had to consider whether a lawyer’s file note, concerning an expert’s opinion given orally, is also disclosable.

Her Honour considered the relevant case law concerning the duty of disclosure pursuant to rule 212 and concluded that, consistent with previous decisions in Interchange Corporation Limited v Grosvenor Hill (Queensland) Pty Ltd [1999] 1 Qd R 141 and Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2015] 1 Qd R 373, rule 212(2) applies to a “draft statement or report of an expert communicated to a party’s lawyer“. Her Honour also found that a file note of a statement or report of an expert communicated orally would be caught within the definition of “a statement or report” and pointed out that the key issue in the application of rule 212(2) is “whether a particular document or category of documents can be properly characterised as consisting of a statement of report of an expert“. Her Honour also acknowledged that not every file note prepared by a solicitor in respect of the engagement of an expert would be caught by rule 212(2).

In the end, having considered the factual circumstances of the case, Judge Williams agreed with the defendants’ request for disclosure of the solicitor’s file note(s) concerning the solicitor’s telephone conversation with Mr Giles and recognised that rule 212(2) is an inroad into the area of legal professional privilege.

The Takeaway

Considering the wide definition of “document” in the case law and legislation, and the confirmation from the present case that the UCPR requires disclosure of expert’s oral opinion, it appears communication between an expert witness and lawyers that could be reduced to writing or recording are potentially disclosable under UCPR even if the opinion is not helpful to the lawyer’s case. This also signifies the importance of knowing what questions to ask, how the questions should be asked, and whether they should be asked at all!
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