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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1988-11-07] British Columbia. Supreme Court Nov 7, 1988

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 9246  Submissions by Ms. Mandell  1 November 7, 1988  2 Vancouver, B.C.  3  4 (PROCEEDINGS RECONVENED AT 10:00 a.m.)  5  6 THE REGISTRAR:  Order in court.  In the Supreme Court of British  7 Columbia this Monday, November 7, 1988, in the  8 matter of Delgamuukw versus Her Majesty the Queen at  9 bar, my lord.  10 THE COURT:  Ms. Mandell.  11 MS. MANDELL:  My lord, this morning we are going to argue the  12 motion involving expert documents and privilege.  I  13 have advised my friends that the witnesses that are  14 to be called for the remainder of the week are  15 available beginning tomorrow, and with your  16 lordship's permission -- I don't know how long the  17 argument will take regarding documents.  I don't  18 anticipate it will take the whole of the day,  19 probably a portion of it, at least, and we then  20 adjourn until tomorrow for the calling of the  21 witnesses.  22 MR. WILLMS:  That's fine, my lord.  23 THE COURT:  All right.  Thank you.  24 MS. MANDELL:  I might also advise your lordship that I will be  25 referring in the course of my argument to an  26 argument which is -- which was written.  Hopefully  27 before I'm finished I'll have the opportunity of  28 presenting it to your lordship.  It was still on the  29 way from our offices, and I am going to begin  30 without it, but your lordship should have the  31 benefit of it before you have to consider the  32 matter.  33 THE COURT:  Thank you.  Before you start, Ms. Mandell, could I  34 just inquire, and I don't need to know now, about  35 the proceedings in Smithers starting, I guess, three  36 weeks from today, is it not?  37 MS. MANDELL:  Yes.  38 THE COURT:  Is it intended that there will be cross-examination  39 on affidavit of a number of witnesses in the  40 courtroom?  41 MS. MANDELL:  That's how I understood it.  42 THE COURT:  And at the same time there will be, at some other  43 location, cross-examination by other counsel of  44 other witnesses?  45 MS. MANDELL:  That's how I understood it.  46 THE COURT:  Is it intended or expected that from time to time  47 the proceedings in the court will be adjourned and I 9247  Submissions by Ms. Mandell  1  2  3  4  MS.  MANDELL  5  THE  COURT:  6  MS.  MANDELL  7  8  9  10  THE  COURT:  11  MS.  MANDELL  12  MR.  WILLMS:  13  14  15  16  THE  COURT:  17  MS.  KOENIGS:  18  19  20  THE  COURT:  21  22  23  24  25  MS.  MANDELL  26  THE  COURT:  27  28  29  MS.  MANDELL  30  THE  COURT:  31  32  33  MS.  MANDELL  34  THE  COURT:  35  MS.  MANDELL  36  MR.  WILLMS:  37  THE  COURT:  38  39  MS.  MANDELL  40  THE  COURT:  41  MS.  MANDELL  42  THE  COURT:  43  44  MS.  MANDELL  45  46  47  will move to the other proceedings to make rulings  on objections, or is it thought that those matters  can be resolved by counsel without --  :  Without the benefit of having you come in?  Yes.  :  I had understood that it would be the forum that  you would be sitting in court and the other  proceedings would be proceeding on their own steam  as if you weren't there.  And I won't be jumping back and forth?  :  That certainly has been my understanding.  I didn't understand, my lord, that you would be  moving back and forth, but from time to time if an  objection arose that objection could be brought  before you.  Yes.  BERG:  It was my understanding that should the need  arise in the out-of-court proceedings that counsel  would come before you in the courtroom.  Yes, that's perfectly satisfactory.  The other thing  that I thought I should raise with counsel and that  is if this is cross-examination of a witness, it's  part of the trial and counsel and the court would be  suitably dressed for trial proceedings?  :  I had understood that, too.  Well, I think that's the right procedure to follow,  but I thought we should understand each other in  that regard.  :  Yes.  And the cross-examination in court will take two  weeks?  Will the cross-examinations in court take  two weeks?  :  Yes.  All right.  :  If my friends have any --  I have nothing further.  All right.  Is Mrs. Brower going to be available for  those proceedings.  :  Who?  Mrs. Brower?  :  I think she'll be happy to go up north.  I will make an order accordingly.  What is this I've  been handed?  :  There is two volumes.  The first is an indexed  115.  My lord, those contain the correspondence  which has been delivered and where portions of them  have been blacked out for claim of privilege. 924?  Submissions by Ms. Mandell  1 THE COURT:  I see.  2 MS. MANDELL:  And we will probably make reference to four or  3 five of the items and not the whole list, although  4 my friend may wish to make reference to more.  5 THE COURT:  So these are the documents upon which the argument  6 will be?  7 MS. MANDELL:  Yes, that's right.  8 THE COURT:  All right.  9 MS. MANDELL:  The second is just a volume of authorities.  My  10 lord, I propose to, for the purposes of this  11 argument, argue before your lordship some general  12 principles and at the end of the day we can get  13 inside the documents and see how the principles  14 apply.  15 THE COURT:  Yes.  16 MS. MANDELL:  My lord, if you will turn to tab 1 of the volume  17 of authorities, you'll see there a letter from Mr.  18 Willms to myself of September 14th.  At page 2 the  19 request which is set out for the production of Mr.  20 Mathewes document is stated.  He says:  21  22 "We request that Mr. Mathewes produce to us  23 all documents in his possession or power  24 relating to the matters in question in this  25 proceeding including communications with  26 counsel, which fall within the category of  27 those documents to be produced as determined  2 8 by Finch, J. in Vancouver Community  29 College v. Phillips, Barratt et al (1987) 20  30 B.C.L.R. (2d) 289 (S.C.), communications with  31 other experts, communications with witnesses  32 in the proceeding, drafts of his reports and  33 documents to which he has been referred, or  34 any documents which he has created, relating  35 in any way to the preparation of his report."  36  37 That's the request that my friend asked of us with  38 respect to production of documents.  This was  39 repeated in his letter of October 14th, and then in  40 my letter of October 17th, the second full paragraph  41 from the bottom of the page we replied in this way.  42 THE COURT:  Yes.  43 MS. MANDELL:      "I wish to advise you that in examining the  44 correspondence and documents pertaining to  45 this, and other experts, we have taken the  46 view that you are entitled to all facts to  47 which the expert had or made access during the 9249  Submissions by Ms. Mandell  1 preparation of the report including facts  2 relied upon and facts considered, whether  3 relied upon or not, whether such facts were  4 provided by the Plaintiffs, their counsel or  5 otherwise."  6  7 And this, in our view, sets up the difference  8 between two counsel regarding the decision in the  9 Vancouver Community College case.  It's our  10 submission that on the basis of the position that  11 has been taken by ourselves and the letter of  12 October 17th, there are three classes of documents  13 which we've identified that the defendants would  14 demand for their production, but which we say are  15 privileged.  These documents divide themselves into  16 these categories.  The first is documents which --  17 or parts of them which we say have no probative  18 value and are irrelevant to the litigation.  And in  19 this respect, we include documents involving  20 discussions of financial matters arising between the  21 witness and the Tribal Council, arrangements for  22 scheduling of meetings, scheduling witness  23 preparation and attendance at trial, and what we  24 call housekeeping matters.  25 The second category is documents which may be  26 relevant to the proceedings but are unrelated to the  27 subject matter of the evidence of the witness and  2 8 over which we claim a privilege.  And such examples  29 would include communications with counsel, other  30 witnesses and clients the subject matter of which  31 does not fall within the scope of the expert report.  32 THE COURT:  I'm sorry, your example was such as correspondence  33 with --  34 MS. MANDELL:  Counsel or witnesses or clients, the subject  35 matter of which does not fall within the scope of  36 the expert report.  37 THE COURT:  Well, let's take an example of a -- a statement, for  38 example, taken of Mary Johnson about the Seely  39 Lake —  4 0    MS. MANDELL:  Adaawk.  41 THE COURT:  -- grizzly bear.  Let's assume that Mrs. Johnson was  42 interviewed and she made a statement in writing or  43 notes were taken by counsel of her statement and  44 then she later gave evidence that that statement  45 didn't emerge.  Now, whether or not that statement  46 was furnished to Dr. Gottesfeld or Dr. Mathewes, you  47 would contend that that statement still remain 9250  Submissions by Ms. Mandell  1  2  MS.  MANDELL  3  4  5  6  THE  COURT:  7  8  9  10  11  MS.  MANDELL  12  13  14  THE  COURT:  15  16  17  MS.  MANDELL  18  19  20  THE  COURT:  21  MS.  MANDELL  22  THE  COURT:  23  MS.  MANDELL  24  25  26  27  28  THE  COURT:  29  MS.  MANDELL  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  COURT:  privileged, would you?  :  That one is a little bit close because they do in  their reports seek to reflect off of the adaawk, and  I would probably disclose that.  But such other  statements as counsel has --  Well, all right, let's take an extreme case where  you had an opinion from another morphologist who  said:  I've looked at the Chicago Creek slides and I  think they are all of very recent origin within the  last 200 years.  :  That will be relevant.  That, I think, would be  disclosed.  I think an example I could draw your  lordship to --  It is highly relevant, why would it remain  privileged if it has gone to Dr. Mathewes and  Gottesfeld?  :  If they had no opportunity to see it then we  wouldn't disclose it.  But if they had seen it and  rely on it, then we would disclose it.  They didn't rely on it.  :  That's right.  Okay.  :  The example that I could draw your lordship to is  found at tab 6, I believe.  If I can just make sure  that that's -- tab 8.  Not of the volume of  authorities, my lord, but the index of documents  here.  Tab 8?  :  Yes.  If you'll look at that tab there is a letter  from Richard Overstall who is counsel's agent to Dr.  Mathewes in a letter of January the 9th.  And your  lordship will see that the first full sentence in  paragraph 2 has been blacked out and we claim  privilege with respect to it.  Now, we have  disclosed this only for the purposes of getting on  with it, so I think I can make reference to the  point.  We say in this letter -- sorry, Mr.  Overstall says:  "Since you submitted your report last April we  have done further work on describing the  biogeoclimatic zones of the region as well as  some detailed examinations of the Gitksan and  Wet'suwet'en oral history which we can  date..."  "Partially date". 9251  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS. MANDELL:  Sorry.  THE COURT:  "...partially date using archaeological  methods as well as the geological methods that  you contributed to.  As a result of this work,  some more precise questions can be asked of  you with respect to the palaeoenvironmental  data.  If you have time to respond to them in  the next two or three weeks, it would help  strenghten the evidence in a number of areas."  And then the questions are asked.  Now, we would see  that the fact that counsel in the preparation of the  case has done further work in describing  biogeoclimatic zones and the fact that there has  been further work with respect to the history and  that this has been partially dated, all of this is  information which is part of the brief of counsel.  It is part of how we are going about the case.  The  fact that we have done it, we have told Dr. Mathewes  in order to allow him to know why it is that we  asked him further questions.  But what is relevant  to him and his report and to the disclosure are the  questions that we are subsequently able to ask him  and not the fact that we have probed in other areas  to prepare for the case.  So we would say that, yes, it's true that it  is relevant to the litigation the fact that we have  spent time and probed in various areas.  As of  January 9, 1987, these were the areas counsel were  considering to develop evidence and so be it did.  But that fact is irrelevant to Dr. Mathewes, and to  his report, and we would claim privilege with  respect to that fact.  That would be an example of  this kind of privilege that I'm introducing your  lordship to as the second category.  I have trouble with that, Ms. Mandell.  It is  hardly -- I may not yet understand partly because I  may not have a full grasp of the reach of this  problem.  I don't see what difference it makes to  block out the first sentence on the paragraph 2 when  you disclose that the work has been done in the next  paragraph.  And you are saying, give us -- consider  it and give us your response.  Surely that has to be  part of the facts upon which you relied.  Why  wouldn't it be admissible?  Why wouldn't it be  produced on that basis?  That is a matter of -- 9252  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  well, that is a matter of privilege that's gone  because of the other authorities that have already  been discussed.  MS. MANDELL:  Well, I would say this to your lordship, I think  that the fact that there has been more work done in  describing the biogeoclimatic zones is part of how  counsel is thinking about the case at that time is  not relevant to Dr. Mathewes.  That's not his area  of expertise, and it's not something which he has to  know that we know in order to answer the questions  which are then asked of him.  It's something which  counsel for the defendants, though, may make use of  the fact in understanding that the thinking of  counsel at that time was that the biogeoclimatic  zones were relevant to the litigation and there has  been work in developing that.  Now, if that were Dr.  Mathewes' area of expertise that would be, of  course, different, but it's not.  Similarly with the  oral histories.  I don't see what difference it makes.  I have  difficulty finding a legal basis for an argument.  :  Is your problem, my lord, that you don't see why  we would care whether or not the defendants would  know that?  Yes, partly.  :  Well —  You're giving the material to Dr. Mathewes. He's  going to look at it. The material is going to be  producible anyway.  :  That's correct.  That's right.  And what you are seeking to retain as privileged is  that first sentence which says:  You've done this  work?  :  We've done this work, not you.  We, the lawyers.  What would you say if your sentence said:  We have  done this work and while we don't have any  confidence in it, we are sending it along to you.  And then you say that as a result of this work some  more precise questions can be asked.  Do you say  that you should be able to keep that privilege?  MS. MANDELL:  Well, first of all if we were sending the work  along to him --  COURT:  Yes.  MANDELL:  -- I don't think so because he would have  considered it or at least perhaps he considered it  in the course of answering the questions.  But if we  don't send the work along to him at all, and if we  THE  MS.  THE  MS.  THE  MS.  THE  MS.  THE  COURT:  MANDELL  COURT:  MANDELL  COURT:  MANDELL  COURT:  MANDELL  COURT:  THE  MS. 9253  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS.  THE  MS.  THE  MANDELL  COURT:  MANDELL  COURT:  MS. MANDELL  THE COURT:  MS. MANDELL  say counsel has spent the last ten months  concentrating on the oral history of the Gitksan and  the Wet'suwet'en and as a result of that there is  certain questions which arise which may affect your  area of expertise and these are the questions,  whether we have any confidence in our work or not, I  say for the same reason as with respect to the first  point raised to you that that's not something which  we should disclose for Dr. Mathewes.  Now, it may be that if we do rely upon the  work that we develop with respect to the oral  histories, that will get disclosed in the context of  that expert.  But we haven't chosen to call that  expert to the stand yet, and we say that that area  of expertise is not one which should be probed with  Dr. Mathewes.  The fact that we've chosen to explore  certain areas and make it part of our brief that, we  say, is not a factor which the other side should at  this stage be entitled to.  But everything that Dr.  Mathewes then considers with respect to any  questions we can generate or any answers he gives,  all of that is disclosable.  All right.  Well, I understand, I think, the extent  of the problem.  But may I just ask this, I take it  that for Dr. Mathewes' evidence, at least, your  learned friends have seen this document in its  unabridged form?  :  That's right.  In it's original form?  :  That's right.  Is that the case for all the documents or is it just  for those?  :  Just for Dr. Mathewes and Dr. Gottesfeld.  For the  experts to come, and there is a few examples of that  because they reveal a point that we want to raise.  But if your lordship should rule in one way or  another, it would influence the documents that they  would see prior to the giving of that expert's  report.  All right.  And the point in that is really -- is  the point really in that passage that the work has  been done by the Tribal Council and not that it was  done by somebody else?  :  The point in that passage is that the work was  done in order to inform counsel's brief, and it  wasn't done because it related to this expert's area  of expertise which we then put into the work. 9254  Submissions by Ms. Mandell  1 THE COURT:  Yes, all right.  2 MS. MANDELL:  The third classification of documents which we say  3 should be excluded are documents which reflect the  4 direct work product of counsel including  5 communications regarding trial strategy,  6 communications regarding potential witnesses for  7 both the defense and the plaintiffs and their  8 evidence, counsel's evaluation of the strengths and  9 weaknesses of the case, and --  10 THE COURT:  You mean as disclosed to the expert?  11 MS. MANDELL:  To the expert, that's right.  12 THE COURT:  Yes.  13 MS. MANDELL:  Evidence to be presented, trial strategy and the  14 report of the expert and other communications, all  15 notes and memoranda which would -- and this is what  16 we say the test is -- directly disclose counsel's  17 thought processes to the defendants.  18 THE COURT:  Well, let me ask you this.  If, using the example as  19 a moment ago, you said in some material:  We are  20 sending this along to you.  We don't think there is  21 much in it, but you might consider it and make such  22 use of it as you think appropriate.  Would that  23 not -- using Judge Finch's terminology, would that  24 not be something that would bear on the credibility  25 of the witness if we -- he may have a very good  26 reason.  Let's say he adopts it knowing that counsel  27 don't think there is anything in it.  Now, he may  28 have a very good reason for adopting it, good  29 scientific reason.  He may just plain disagree, but  30 does it not fall within that categorization of  31 material that might bear on his credibility?  32 MS. MANDELL:  I think that that example probably, according to  33 the test that we are setting up, should be  34 disclosed.  If we're saying:  Here is a fact, we  35 don't think it's worth much but you tell us what you  36 think, I think that goes to credibility.  But if the  37 comment were more to this effect:  We've read your  38 report.  These facts that you've identified we don't  39 think advance the case at all or, we think that they  40 are essential to the case, if you couple them with  41 the expert opinion of this person and this person  42 and you couple it with the evidence which will be  43 presented by this person.  And together we think if  44 we put all of that together we think we are going to  45 be able to make our case on this point.  In that  46 example, it doesn't advance the case unless we  47 couple it with other bits of evidence which we 9255  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MS.  THE  MS.  THE  COURT:  MANDELL  COURT:  MANDELL  COURT:  MS.  THE  MS.  THE  MANDELL  COURT:  MANDELL  COURT:  MS. MANDELL  THE COURT:  MS. MANDELL  intend to do.  I say at that point we are really  getting into the direct work product of counsel's  thinking, and that would be an example of where  privilege would be claimed.  But our evaluation of  whether or not we think a fact is strong or weak of  itself which is a fact upon which the expert  considers, that I would probably disclose.  This "direct work product" is an American  expression, is it not?  :  Well, as I will lead you to the authorities, my  lord, it has been adopted in cases in Canada.  But  the phrase comes out of an American authority.  Yes.  :  And is then picked up from there.  All right.  Well, what you are saying is that --  well, let me give you an example and see if I  understand your point.  If you said:  We are sending  you some material.  We are not sure if it has  anything to do with what you are going to do, but we  are thinking of using it in another connection, and  for that reason if you use it don't disclose it in  your report.  :  Oh, I see what you are saying.  That's strategy.  :  That would be strategy.  And you say that should be -- should continue to be  privileged?  :  Yes.  Yes, I do.  I think that should continue to  be privileged.  The example I was advancing to you  is:  We've read your draft report and we like this  passage that you've done.  Of itself, it doesn't  take us as far as we want to go.  We are letting you  know that we intend to call these following  witnesses to finish -- to drive the point, and these  are the witnesses that we are going to call.  There  is an example of that in the material which I can  show your lordship.  We would say that those  comments of counsel to the expert in response to his  report would be privileged.  Well, take it a step further.  If, in that example  you've just posed, the witness forms his report  to -- because of the information you have given him,  not then a fact upon which he is relying or is it  material which he is relying?  :  He may rely -- well, of course he is going to say  it in his report.  So his report is done and he is  going to give that piece of evidence knowing how we 9256  Submissions by Ms. Mandell  1 are going to use it, yes, that's true.  But we say  2 that it is more, that that piece of information is  3 more probative of counsel's thinking of the case and  4 that those thought processes are -- once available  5 to the defendant, are more overall harm in the sense  6 that it intrudes upon the counsel's brief that we  7 say that for that reason those comments should be  8 concluded and the privilege claimed.  9 Now, you know in some ways it's almost an  10 example of the second category too where the  11 information does fall outside of the expert's area  12 as well.  I mean it can be seen with respect to both  13 categories.  14 THE COURT:  All right.  15 MS. MANDELL:  Before I move into the argument, my lord, perhaps  16 I could illustrate two other kinds of examples that  17 bear directly from the material.  One is where  18 before the reports are actually commissioned there  19 is strategy sessions between counsel and the experts  20 where the theory of the expert's case as it fits  21 into the evidence is formulated.  We would say that  22 that is part of the brief and is privileged, and  23 there is an example of that that will appear in the  24 course of the material.  25 THE COURT:  One of the problems I'm having with the whole area  26 is that this whole -- this question arose because of  27 certain experts being proven to be unreliable and to  28 protect itself the court has gone as far as it  29 went -- Judge Finch went as far as he went because  30 we felt we could no longer rely on independent  31 reports of expert witnesses who in earlier times  32 were something we could rely on.  They were  33 professionals who would not give evidence that they  34 could not themselves believe in.  But experts have  35 become hard guns that -- one theory is that they say  36 whatever counsel --  37 MS. MANDELL:  Pays them to say.  38 THE COURT:  -- persuades them to say, and that you can buy an  39 expert for any proposition that could be imagined.  40 Now, if you're right in this part of your  41 submission, is it not possible to arrange your  42 affairs in such a way that everything would fall  43 within that part of the exception, just categorize  44 everything as strategy?  45 MS. MANDELL:  Well, I don't think that's possible to do, in  46 fact.  If I can just comment on it from both sides,  47 I don't want to be governed by cynicism. 9257  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS. MANDELL  THE COURT:  Well, we have become very cynical of experts and we  think with good reason.  I don't say that in  connection with this case.  :  No, I understand that.  I only say that with  respect to the proposition of Phillips, Barratt  which raises several points of practice that counsel  with a larger budget may find themselves in a  position where they can hire two sets of experts:  one to advise with respect to the case who will  never then be called to the stand, and a second who  will be called to the stand, but will be shielded  from the major interaction with the litigation team  or where the communications with the experts are  sanitized by counsel, having in mind the fact that  there will be some disclosure of all of these  written communications at some later point down the  road.  I think that the better point of caution is to  arrive at a formula which allows counsel to do their  job in a way that permits communication between the  counsel and the experts in an open fashion where  drafts can be critiqued and communication can be  honest, and that there will be some clear rules set  as to what in the end is disclosable.  And that's  the effort that we are seeking to ask of your  lordship today.  I don't think that the court should be led  into a rule which asks for less disclosure or even  the same disclosure as a lay witness.  I think that  the expert taking the stand is in a different  position and that the rules of disclosure with  respect to their material which they have had access  to must be high.  And for that reason if there is an  error, I think it should be more on the side of  disclosure.  But I do still think there is an area  to be protected called counsel's brief, and that we  should try to define what that is and get on with  reasonable preparation of these cases.  Well, I don't think any of us who have thought of it  are happy with the result of Judge Finch's decision,  although in that case it was clearly a necessary  step for him to take. The expert in that case was a  fellow within the category of what I just described,  and it turned out that the kind of investigation  that was conducted there was necessary.  Now, how do you -- I'm anxiously awaiting your  further -- the further development of the argument 925?  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS. MANDELL  THE COURT:  MS. MANDELL  THE COURT  A VOICE:  MS. MANDELL  THE COURT:  MS. MANDELL  THE COURT:  MS. MANDELL  because I would be anxious to know how you say we  can arrive at such a formula which would permit  both —  I do think I have led you there and at the end of  the day I will have -- at the end of the morning  then I will have something.  All right.  I say that the issue is, is the solicitor's brief  privilege in its entirety over materials in the  possession or control of an expert witness whenever  that witness is called to give evidence within his  expertise by the party which retained him.  Now, I've mentioned and I restate that the  plaintiffs recognize that disclosure of materials in  the possession of a witness which are relevant to  the substance of his report or to his credibility is  required when the witness is tendered to give an  expert opinion.  Without such disclosure  cross-examination would be unreasonably hampered and  there would be no value of the expert opinion which  can't be tested.  On the other hand, materials which come into  the possession of a consultant while assisting  counsel with the development of the case that have  little or no relationship to the subject matter of  his evidence, would be of no assistance in testing  the value of his opinion, and the disclosure of  which could gravely prejudice the ability of counsel  to prepare and conduct a case with the degree of  privacy to protect the integrity of the litigation  process.  Ms. Mandell, do you think this is for you?  This is for Louise Mandell.  My lord, we have just obviated the necessity of  you taking notes.  Thank you.  My lord, I am reading at page 4.  I'm reading from  the third paragraph on page 4.  Yes.  It is our position that the defendants place an  unwarranted reliance on the Vancouver Community  College case.  This case is not an authority for the  proposition that all materials relevant to matters  in question in a proceeding are compellable.  To the  extent that certain obiter comments of the judge in  that case permit such an impression, those comments  are not a correct statement of the law and were 9259  Submissions by Ms. Mandell  1 unnecessary to the decision actually arrived at.  2 If I can just stop there.  My lord, we are not  3 saying yet that the Vancouver Community College case  4 is wrong.  I think that it can be properly read to  5 include the principles that we're discussing.  Our  6 submissions are summarized at the bottom of page 4.  7 An expert retained by counsel during the preparation  8 of the case for trial may act in the capacity of a  9 consultant and a participant on the litigation team.  10 When this occurs, the material assembled by or in  11 the possession of the expert are protected from  12 disclosure by the solicitor's brief privilege.  13 THE COURT:  Do you say that even if he relies upon that material  14 in his report?  15 MS. MANDELL:  Where the material is -- where the facts are used  16 in the report, any of the facts which may be  17 generated from his participation as a member of the  18 litigation team, where any facts are relevant to his  19 report and are used, those facts are disclosable.  20 But the -- but the material assembled which are  21 assembled reflecting his capacity as a consultant to  22 the litigation team, we don't bear directly on the  23 facts of his report, but more on the theory of the  24 case, this we say are protected.  25 THE COURT:  All right.  26 MS. MANDELL:  And I might mention this goes to identifying of  27 documents in our possession, too.  If we have in the  28 conduct of our preparation of the case assembled a  29 fact, although not directly related to this expert  30 but which the expert has seen, we say it is  31 disclosable even though it is part of our brief.  We  32 say that's the test.  When the opinion of an expert  33 is tendered as evidence in court, the solicitor's  34 brief privilege is not waived except to the extent  35 necessary to permit full and complete  36 cross-examination as to the contents of the report  37 and the credibility of the expert.  Notes and  38 memoranda of counsel, not constituting instructions  39 to the witness or conveying facts upon which an  40 opinion is based remain privileged.  In the  41 alternative, as a matter of public policy, the court  42 ought to accord special protection to the materials  43 within the solicitor's brief which directly  44 represent the applied thought processes of counsel  45 to the case.  46 THE COURT:  Even if the lawyer says:  Well, as a result of this  47 discussion I don't think we've got a case at all 9260  Submissions by Ms. Mandell  1  2  3  MS.  MANDELL  4  5  6  7  THE  COURT:  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  MS.  MANDELL  26  27  28  29  30  31  THE  COURT:  32  MS.  MANDELL  33  34  THE  COURT:  35  MS.  MANDELL  36  37  THE  COURT:  38  MS.  MANDELL  39  40  THE  COURT:  41  MS.  MANDELL  42  43  44  45  46  47  THE  COURT:  unless you're prepared to say this.  So the expert  says:  Oh, well, I'll say that.  So --  :  I think that's relevant.  I think that has to be  disclosed.  If the expert is being directed as to  what to say that, to me, is not part of counsel's  thought process.  Well, to say:  I don't think we have a case unless  you can -- unless you can provide a way through  these difficulties for us, and the expert says:  Let  me think of it and go away and then come back and  there is a report.  Now, he has reached this knowing  that counsel don't think they've got a case.  Now, I have to say that I have been in those  situations before and I didn't think I was doing  anything wrong by doing that.  I frankly said:  I  don't think we have a case.  We need an expert on  this one, without an expert we don't have a case.  I  never thought that would be producable.  What do you  say about it?  Sometimes I surprise myself when I  start out with a case and it isn't going anywhere  and it turns out to be a pretty good one and  sometimes even win one.  Counsel can't win all their  cases.  You would say that's within counsel's  thought process and part of his protected brief?  :  It's -- you know, it's so close to the line  because it actually almost goes into the category of  the agreement between counsel and the expert as to  what the frame of reference of the report is, and  this we would say is disclosable if counsel directs  the witness to investigate certain areas.  Yes.  :  We say that has to be disclosable as part of  the —  Instructions.  :  -- instructions to the expert's report.  It is  part of the instructions.  Yes.  :  So I would probably black out:  We don't think  we've got a case at all --  Yes.  :  -- unless you look at the following areas.  I  would probably start:  You look at the following  areas and then put in the areas that need to get  examined.  But I don't think I would say that they  are entitled to my reaction that we don't have a  case at all unless --  Yes, all right. 9261  Submissions by Ms. Mandell  1 MS. MANDELL:  Submission one, I'm reading on page 5.  An expert  2 retained by counsel during the preparation of a case  3 for trial may act in the capacity of a consultant  4 and participant on the litigation team.  When this  5 occurs, the materials assembled by or in the  6 possession of the expert are protected from  7 disclosure by the solicitor's brief privilege.  8 The courts have often noted the confidential  9 nature of communications between counsel and an  10 expert retained to assist in the preparation of a  11 case.  Particularly in complex or technical  12 litigation, the assistance of one or more experts  13 may be indispensable to counsel in understanding the  14 facts in issue, in framing, even from the earliest  15 stages, the shape of the prosecution or the defense  16 of a claim, identifying the available relevant  17 evidence and selecting witnesses, including  18 additional experts.  19 And I won't turn your lordship to the Pasco  20 v. Bouchard case because I know you are familiar  21 with it.  But it does highlight the fact that  22 experts are often times, and before they are  23 identified as witnesses of a case, brought into the  24 litigation strategy at the early stages and often  25 onwards to assist in the preparation of the case.  26 The courts have recognized that work done by  27 an expert in his capacity as an advisor to counsel  28 as described above, as well as materials which come  29 into the possession of the expert are privileged  30 from disclosure until the privilege is waived,  31 either expressly or by implication.  This protection  32 is variously referred to as solicitor's brief  33 privilege, solicitor-professional privilege or the  34 attorney work product doctrine.  Protection over the  35 contents of the solicitor's brief has long been  36 recognized at law as an essential element of  37 fairness in the adversary system.  38 If I could ask your lordship to turn to the  39 Lyell v. Kennedy case which is found at tab 5, at  40 page 26 of the judgment.  The concept of the  41 solicitor's brief being an essential element to be  42 protected as an element of fairness was, I think,  43 well set out.  I'm reading from the middle of the  44 first full paragraph on page 26 which begins:  45  46 "In my opinion, it is contrary to the  47 principle on which the Court acts with regard 9262  Submissions by Ms. Mandell  1 to protection on the ground of professional  2 privilege that we should make an order for  3 their production.  They were obtained for  4 the --"  5  6 And I should just refer your lordship to the bottom  7 of page 24.  The documents in issue here are the  8 fact that inside the brief of counsel were certain  9 photographs of tombstones and houses.  The mere  10 presence of those documents inside the solicitor's  11 brief was a clue to the other side as to the case to  12 be made.  And the court says in Lyell v. Kennedy,  13 and I'll read on:  14  15 "In my opinion, it is contrary to the  16 principles on which the Court acts with regard  17 to protection on the ground of professional  18 privilege that we should make an order for  19 their production; they were obtained for the  20 purpose of his defense, and it would be to  21 deprive a solicitor of the means afforded for  22 enabling him to fully investigate a case for  23 the purpose of instructing counsel if we  24 required documents, altough perhaps publici  25 juris in themselves, to be produced, because  26 the very fact of the solicitor having got  27 copies of certain burial certificates and  28 other records, and having make copies of the  29 inscriptions on certain tomb, and obtained  30 photographs of certain houses, might show what  31 his view was as to the case of his client as  32 regards the claim made against him."  33  34 And then the two cases are cited, and he is  35 referring to the case of Wood.  36  37 "...he protected the records and extracts from  38 books which had been made by an accountant for  39 the defendants who had collected together a  40 number of entries, because the extracts, when  41 put together, showed the view which he and the  42 solicitor of the defendants took of the  43 particular fraud which they were there  44 investigating, and the Judge considered that  45 to order the defendants to produce them  46 would be not only giving production to the  47 parties who were asking for production, but 9263  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS.  THE  MS.  THE  MS.  THE  MS.  MANDELL  COURT:  MANDELL  COURT:  MANDELL  COURT:  MANDELL  giving them a clue to the advice which had  been given by the solicitor, and giving them  the benefit of the professional opinion which  had been formed by the solicitor and those who  had acted in a professional capacity for the  defendant."  And then the Susan Hosiery case which is found in  the next --  What did Justice Cotton do in that case?  Did he say  that they didn't have to produce these photographs?  :  That's right.  But they had been -- they had been identified in  some way and claimed privilege?  :  In the interrogatories.  This arose in the  interrogatories.  But they were described as -- claimed privilege as  being photographs and certificates?  :  Yes.  All right.  :  In the Susan Hosiery case at page 33, this is --  the facts are -- none of these facts are absolutely  on point.  It all has to do with what constitutes  the solicitor's brief.  I thought, though, that your  lordship should be awake to the passages at page 33  where he begins:  "As it seems to me...".  This is  the first full paragraph on page 33.  "As it seems to me, there are really two  quite different principles usually referred to  as solicitor and client privilege."  And then:  "(a)  all communications, verbal or written,  of a confidential character, between a client  and a legal adviser directly related to the  seeking, formulating or giving of legal advice  or legal assistance..."  and so on.  And (b) which is what we stress:  "(b)  all papers and materials created or  obtained specifically for the lawyer's "brief"  for litigation, whether existing or  contemplated, are privileged." 9264  Submissions by Ms. Mandell  1 And then the last paragraph:  2  3 "Turning to the "lawyer's brief" rule, the  4 reason for the rule is, obviously, that, under  5 our adversary system of litigation, a lawyer's  6 preparation of his client's case must not be  7 inhibited by the possibility that the  8 materials that he prepares can be taken out of  9 his file and presented to the court in a  10 manner other than that contemplated when they  11 were prepared.  What would aid in determining  12 the truth when presented in the matter  13 contemplated by the solicitor who directed its  14 preparation might well be used to create a  15 distortion of the truth to the prejudice of  16 the client when presented by someone adverse  17 in interest who did not understand what gave  18 rise to its preparation.  If lawyers were  19 entitled to dip into each other's briefs by  20 means of the discovery process, the  21 straightforward preparation of cases for trial  22 would develop into a most unsatisfactory  23 travesty of our present system."  24  25 Now, the rationale behind the protection accorded  26 the solicitor's brief in both England and the United  27 States is a recognition that privacy and  28 confidentiality are essential elements of the  29 adversary system of adjudication and that counsel  30 would be unable to properly prepare a case if they  31 did not have protection against disclosure of their  32 work.  I have read to you the leading cases of both  33 jurisdictions that have been relied upon by Canadian  34 courts.  35 I would like to refer you to the Hickman v.  36 Taylor case which is where the rule or that concept  37 of solicitor's brief, in our view, first came into  38 the light and was later picked up in the Canadian  39 authorities.  The Hickman v. Taylor case is found at  40 tab 7.  It was in that case concerning oral  41 depositions of a party or witness taken by counsel,  42 and the question was whether or not they were  43 properly covered by privilege.  And if I could ask  44 your lordship to turn to page 462, the facts of the  45 oral depositions are set out at 462.  And at 463 in  46 answering the question whether or not those  47 documents should be clothed with privilege, the 9265  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  THE  COURT:  10  11  MS.  MANDELL  12  13  THE  COURT:  14  MS.  MANDELL  15  THE  COURT:  16  MS.  MANDELL  17  18  19  20  21  22  23  24  25  26  27  28  29  30  THE  COURT:  31  32  33  MS.  MANDELL  34  35  36  THE  COURT:  37  MS.  MANDELL  38  THE  COURT:  39  MS.  MANDELL  40  THE  COURT:  41  MS.  MANDELL  42  THE  COURT:  43  MS.  MANDELL  44  THE  COURT:  45  MS.  MANDELL  46  47  court said at the top of the page:  "Here is simply an attempt, without  purported necessity or justification, to  secure written statements, private memoranda  and personal recollections prepared or formed  by an adverse party's counsel..."  I haven't found that.  Page 463 is the bottom  corner.  :  This is the first paragraph beginning at the --  it's actually page 462.  Okay.  :  Do you see that?  Oh, yes.  I have it, thank you.  "Here is simply an attempt, without purported  necessity or justification, to secure written  statements, private memoranda and personal  recollections prepared or formed by an adverse  party's counsel in the course of his legal  duties.  As such, it falls outside the arena  of discovery and contravenes the public policy  underlying the orderly prosecution and defense  of legal claims.  Not even the most liberal of  discovery theories can justify unwarranted  inquiries into the files and mental  impressions of an attorney."  But that has got nothing to do with the situation  with an expert witness who is called as a witness,  does it?  :  Not really.  This has to do with whether or not  the oral depositions taken by counsel of a  witness --  Yes.  :  -- are themselves compellable.  Whether that witness is called or not?  :  That's right.  This is at the discovery stage?  :  That's right.  Yes.  :  That's right.  You won't have any difficulty with that proposition.  :  We are trying, although, to suggest that this is  the rationale which governs the protection that we  are asserting to your lordship. 9266  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  Yes,  MS. MANDELL:  THE COURT:  MS. MANDELL  THE COURT:  MS. MANDELL  all right.  "Historically, a lawyer is an officer of the  court and is bound to work for the advancement  of justice while faithfully protecting the  rightful interests of his clients.  In  performing his various duties, however, it is  essential that a lawyer work with a certain  degree of privacy, free from unnecessary  intrusion by opposing parties and their  counsel.  Proper preparation of a client's case  demands that he assemble information, sift  what he considers to be the relevant from the  irrelevant facts, prepare legal theories and  plan a strategy without undue and needless  interference.  This work is reflected, of course, in  interviews, statements, memoranda,  correspondence, briefs, mental impressions,  personal beliefs, and countless other tangible  and intangible ways.  Were such materials open to opposing  counsel on mere demand, much of what is now  put down in writing would remain unwritten.  An attorney's thoughts, heretofore inviolate,  would not be his own.  Inefficiency,  unfairness and sharp practices would  inevitably and in the giving of legal advice  and in the preparation of cases for trial.  The effect on the legal profession would be  demoralizing.  And the interests of the  clients and the cause of justice would be  poorly served."  That's pretty dramatic.  We all fall apart.  I'm sure none of the lawyers I know.  The protection accorded the solicitor's brief is  broader than the solicitor-client privilege.  It  covers not only communications, but all matters,  otherwise not privileged, which come into the  possession of a solicitor or his agent in the course  of preparing a case.  It is not the material itself  that is necessarily privileged, but the fact of its  presence in the solicitor's brief.  It is settled law that the protection extends 9267  Submissions by Ms. Mandell  1 not only to the materials collected by or in the  2 possession of counsel, but as well to materials  3 assembled by and in the possession of third parties  4 where such possession is under the direction of  5 counsel and for the purposes of litigation.  And it  6 is actually the passage of this material into the  7 hands of the experts which are we are asking your  8 lordship to help create a bridge to determine which  9 of those materials is disclosable.  And we say that  10 the rationale behind the solicitor's brief  11 protection is one which effectively should be  12 carried into an analysis of the documents which the  13 expert then has available at their disposal, and  14 which we hope won't pass into the hands of the  15 defendants without some proper consideration.  16 The second submission is outlined in the  17 bottom of page 6.  When the opinion of the expert is  18 tendered as evidence in court, the solicitor's brief  19 privilege is not waived except to the extent  20 necessary to permit full and complete  21 cross-examination as to the contents of the report  22 and the credibility of the expert.  The first point  23 on page 7, I don't believe, is a contested point.  24 That is that privilege is retained except when and  25 to the extent waived.  26 We've drawn your lordship to the authorities  27 that we say say that and the point of mentioning it  28 is the law now already appears to have recognized  29 that the privilege is one which is important, and  30 the onus in determining when it's waived is  31 definitely in favour of the containing of the  32 privilege rather than the waiving of it.  So the  33 court has already, in our view, as a matter of  34 common law, protected the privilege with just this  35 kind of doctrine, and we draw that to your  36 lordship's attention.  37 And paragraph B is similarly along the same  38 lines that the tendering of the evidence at trial is  39 not a complete waiver of the privilege.  It is  40 conceded that the disclosure required of an expert  41 witness at trial may be substantially greater than  42 the disclosure required under the Evidence Act.  It  43 is submitted that the disclosure under the Act has  44 for its purposes notifying adverse parties of the  45 case which will be made, while disclosure at trial  46 is intended to permit a thorough cross-examination  47 of the expert with respect to both the content of 926?  Submissions by Ms. Mandell  1 his report and to his credibility.  2 No authority requires, however, that where  3 disclosure cannot be justified by reference to  4 either of those objectives, it can be compelled,  5 whether the expert tenders his report in evidence or  6 appears on the witness stand.  7 Now, in the Vancouver Community College case,  8 the learned trial judge makes certain statements  9 which, if unqualified, would appear to compel an  10 expert witness giving evidence at trial to disclose  11 all material in his possession related to the  12 litigation, whether or not such material is relevant  13 to the subject matter of his report or a  14 determination of his credibility.  15 And if I could turn your lordship now to the  16 Vancouver Community College case, it's found at  17 tab --  18 THE COURT:  Tab 4.  19 MS. MANDELL:  Tab 4.  And the passage which I think really is  20 the one which my friend would be relying upon as  21 stating the sweeping proposition is found at the  22 bottom of page 296:  23  24 "So long as the expert remains in the role of  25 a confidential advisor, there are sound  26 reasons for maintaining privilege over  27 documents in his possession."  28  29 And that, my lord, I just stress does reaffirm the  30 first point that we make in the submission.  31  32 "Once he becomes a witness, however, his role  33 is substantially changed.  His opinions and  34 their foundation are no longer private advice  35 for the party who retained him.  He offers his  36 professional opinion for the assistance of the  37 court in its search for the truth.  The  38 witness is no longer in the camp of a  39 partisan.  He testifies in an objective way to  40 assist the court in understanding scientific,  41 technical or complex matters within the scope  42 of his professional expertise."  43  44 While this, in our submission, may be an accurate  45 description in many cases, to say that it's  46 authority for the fact that all material in his  47 possession must be disclosed we say is an 9269  Submissions by Ms. Mandell  1 overstatement of the law.  An expert, particularily  2 one retained at an early stage of complex  3 litigation, may have access to a great deal of  4 confidential material dealing with elements of the  5 case, including the evidence of other witnesses,  6 both expert and non-expert, the development of trial  7 strategy, and other confidential matters that have  8 no bearing upon the subject matter of his own expert  9 report, cannot be used to impeach his own opinion,  10 and are irrelevant to the issue of his own  11 credibility.  12 And we say that Mr. Justice Finch has made  13 ample allowances in his judgment, despite the  14 above-quoted language, for just such a situation.  15 At page 296, in the paragraph that I have read, he  16 states that the opinions of the expert and their  17 foundations, he says, "...are no longer private  18 advice for the party who retained him".  We say here  19 when he uses the word "opinions", he is referring to  20 the opinions tendered in evidence by the expert and  21 not his opinions and his knowledge of other aspects  22 of the case of the party who retained him.  It is  23 submitted that those matters still remain "private  24 advice for the party who retained him" and no  25 rationale can be advanced for their disclosure.  26 Now, at page 297, Mr. Justice Finch refers to  27 the waiver of privileges, and this we say also  28 qualifies that broad statement.  He says, beginning  29 at the third paragraph of the page:  30  31 "It is fair that expert witnesses should be  32 thoroughly cross-examined on all matters  33 touching the weight of the evidence they  34 offer.  In our system, that is the accepted  35 method of getting at the truth.  It would not,  36 however, be fair to require the witness to  37 deliver up papers that are wholly irrelevant,  38 either to the substance of his opinion or to  39 his credibility.  For example, papers  40 concerning his personal affairs remain his own  41 and are no one else's business.  Similarly,  42 the expert may be doing work for other persons  43 not party to the litigation.  He should not be  44 required to disclose their secrets.  As well,  45 in the litigation in which the witness is  46 called to testify, he may remain a  47 confidential advisor to the party who retained 9270  Submissions by Ms. Mandell  1 him in, at least, one respect.  He may be  2 asked or may have been asked to give advice on  3 how to cross-examination the other side's  4 witnesses.  In putting forward his own  5 opinion, he need not necessarily attack the  6 opinions of experts opposite.  Counsel may  7 wish to save that kind of ammunition until  8 after the adverse expert has been called.  It  9 would not be fair to require the witness to  10 disclose documents relating only to the  11 cross-examination of such adverse experts  12 because it would give the other side an  13 advantage not available for the party calling  14 evidence in the subject matter first.  15 There are, no doubt, other examples of what  16 may or may not be fair in other circumstances,  17 but I believe those I have given will  18 suffice for present purposes."  19  20 As a practical matter, counsel does not prepare a  21 complex case for trial with knowledge from the  22 outset of what experts will be required and what  23 will be the subject matter of the opinions required  24 from each.  Requiring disclosure of all materials in  25 the possession of a witness relating to the matters  26 in question in the proceedings, such as is sought by  27 the defendants could seriously impair the ability of  28 counsel to prepare a case.  2 9 As was noted in the Bouchard and Kennedy  30 decisions, such experts are often privy not only to  31 the facts which they will eventually rely on the  32 production of an opinion, but the detailed thoughts  33 of counsel as to the nature, development, weaknesses  34 and the case, the witnesses and the evidence.  This  35 is a point your lordship has already asked of us.  36 Requiring disclosure of the range of materials  37 sought by the defendants would have a chilling  38 effect on the ability of counsel to prepare a case  39 for trial.  Counsel will be reluctant to confide in  40 experts until the precise nature of their eventual  41 opinion is determined.  Or counsel will be required  42 to retain two sets of experts, one of which will  43 assist counsel in analysing the case and preparing  44 the evidence, the other of which will be given  45 carefully selected facts and a precisely worded  46 question on which an opinion is sought.  Counsel  47 will not exchange correspondence or memoranda with 9271  Submissions by Ms. Mandell  1 advisors, but will limit themselves to oral  2 communication.  Counsel will be preoccupied, in any  3 discussion with a potential witness, not to reveal  4 any matter concerning his own view of the case,  5 where the evidence of the witness fits into the  6 larger picture, or other matters of disclosure  7 which, prior to or at trial, he would prefer to  8 avoid.  9 I might stop here, my lord, and say from my  10 best understanding, and I stand to be corrected, the  11 reports of the plaintiffs were all delivered before  12 September, 1987, that is before Mr. Justice Finch  13 rendered his decision.  And to my knowledge, the  14 reports of the defendants were all delivered  15 subsequent to that.  And we say that without casting  16 any suggestions of sanitization.  I don't mean to  17 infer it at all.  Had we been guided by Mr. Justice  18 Finch's decision prior to the delivery of our  19 reports, our relationship to the material which our  20 experts were exposed to may or may not have been  21 different.  And, similarly, the amount of disclosure  22 that we are subsequently able to achieve from the  23 defendants too may have been influenced by this  24 decision coming, as it were, in mid-flight.  25 It is submitted that this situation does not  26 advance the interests of the profession, clients  27 seeking legal assistance, or the judicial process  28 itself.  In the end, it would hinder rather than  29 assist the fact-finding process which is at the core  30 of the litigation process.  The public policy  31 arguments protecting the solicitor's briefs, as set  32 out in Canadian, American and English authorities  33 have been referred to earlier.  34 It has been stated that the privilege which  35 attaches to the solicitor's brief in the pre-trial  36 stage no longer has application at trial.  American  37 authorities to this effect are set out in the  38 Vancouver College judgment at page 296 and are cited  39 with approval by Mr. Justice Finch.  With respect,  40 it is submitted that the statements referred to are  41 not an accurate statement of the law of the United  42 States and the principles cited therein, while often  43 appropriate, are not universally applicable.  44 If I could draw your lordship back to the  45 judgment of the Vancouver Community College case at  46 page 296, you'll see that this broad principle is  47 referred to and justified by Mr. Justice Finch at 9272  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS. MANDELL  THE COURT:  page 296.  He cites and relies upon the Wisconsin  decision of Shaw v. Wuttke.  This case was cited in  Wigmore, and it is the only case cited in support of  the proposition that privilege over solicitor's  briefs ends at trial.  Now, this case was referred to in the judgment  of Mr. Justice White in the Nobles case.  And you'll  see, my lord, that this was referred to by Mr.  Justice Finch in the paragraph which follows.  And  in the Nobles case, Mr. Justice White was dissenting  on this point and was concurred by Mr. Justice  Rehnquist, as he then was.  Mr. Justice Powell, who was writing for the  majority of six justices, said on this point:  "Disclosure of an attorney's efforts at trial,  as surely as disclosure during pretrial  discovery, could disrupt the orderly  development and presentation of his case."  And I won't read to you the passage in the Nobles  case which I put into the argument, but it's found  at tab 11.  The law in Canada is to the same effect.  In  the Susan Hosiery case, Mr. Justice Jackett said at  page 33:  "Turning to the 'lawyer's brief rule, the  reason for the rule is, obviously, that, under  our adversary system of litigation, a lawyer's  preparation of his client's case must not be  inhibited by the possibility that the  materials that he prepares can be taken out of  his file and presented to the court in a  manner other than that contemplated when they  were prepared."  But that surely is not at risk, is it?  The only  thing that is at risk is what the lawyer conveys to  the expert or the witness who is later called to  give evidence.  :  That's right.  He can disclose -- well, I suppose if the witness is  called by the other side, it might be possible to  ask what the lawyer said because it was a statement  by lawyers.  It would probably be privileged at that  point.  I doubt you could get the lawyer's thoughts 9273  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS. MANDELL  THE COURT:  MS. MANDELL  THE COURT:  MS. MANDELL  THE COURT:  MS. MANDELL  from somebody to whom he made a statement, but this  area doesn't really attack the foundations of the  solicitor's privilege.  It is confined to those  cases where there have been disclosures by the  solicitors to a witness.  :  That's right.  Which I think that it really does  boil down to those disclosures which may, in and  out, be sanitized.  We will be more careful in  talking to the experts about -- or I think the  situation which is more to the point where the  witness carries on two functions, one is as counsel  to the -- as advisor to counsel where counsel is  developing their thinking alongside of the advice  given by the expert with respect to the overall  trial strategy or the theory of the case on one  hand.  And is also, at the same time, preparing a  report for which he will be called as an expert.  I think that if I could just say that there is  certain kinds of experts which, in my view, appear  to be more prone to this kind of problem arising.  They are not the trustees or the actuarial people  who have their own area of expertise which is  objectively out there in the sense that it is  developed and they are called in to appreciate the  fact of the case and then make their opinion.  It is  more the social scientists which there -- in cases  such as this where the social scientists work within  the community, live in the communities, interact  regularly with the clients and the lawyers and  together, over a long period of time, there is  finally a theory of the nature of the organized  society which evolves where the particular witnesses  will have a much more intense pipeline, if you will,  into the lawyer's brief than with respect to other  kinds of experts.  Well, there is no doubt that the material that the  expert relies upon, from whomsoever he obtains it,  must be disclosed. It can be original research or  it can be given by the lawyer.  :  That's right.  Or he can get it from X, Y and Z.  :  That's right.  There is no problem with that.  The evidence covers  that.  The interface arises in connection with the  credibility.  The cross-examination of credibility,  I suppose.  :  That's right.  That's right. 9274  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS. MANDELL  THE COURT:  MS. MANDELL  THE COURT:  If it wasn't for the cross-examination of  credibility, we wouldn't have this problem I don't  think.  :  I don't think we would.  But there, my lord, you  are balancing -- in our submission, and we will  finish the argument and you will see how the courts  have addressed it, you are really balancing in the  adversarial position of protecting the lawyer's  brief on one hand with the necessity that there be  as much information available for the purposes of  cross-examination for the court, as well as the  other side to appreciate the reliability of the  expert on the other.  And I think that without there  being a balancing, with all the scales tipped inside  of the full disclosure, other problems arise which  in our submission aren't warranted.  Well, how can you cross-examine fully on  credibility, and I stress the word "fully" because  that's what the cases seem to suggest, if the lawyer  says:  We don't have a case but let's put one  together?  Now, surely if that happens, and that is  an extreme case, that goes right to the credibility  of the expert, doesn't it?  He's been told there is  no case.  :  Well, he may not agree with the lawyer.  Well, he can say that.  As I say, we all deplore  this direction that the law has taken.  It's  unfortunate, but it is long overdue.  The increased  use of experts in just about every case has lead us  to be terrribly, terrribly cynical, and with good  reason in many, many cases.  There are doctors who appear in cases on a  regular basis to give evidence that no one would  believe.  I mean it's not just on the side of  plaintiffs, it is on the side of the defendants as  well.  There are some doctors that appear in 40, 50,  60 cases a year.  Out of 400 motor vehicle accident  cases, I suspect there are some doctors that appear  in 25 per cent of them or maybe less than that, but  case, after case, after case and saying:  There is  nothing wrong with this plaintiff.  And other  experts called in case, after case, after case  saying:  This poor plaintiff will never work again.  The cynicism has a very, very substantial factual  basis.  Now, how do you draw the line as to where that  cross-examination of credibility will be limited? 9275  Submissions by Ms. Mandell  1 While you think about that, Ms. Mandell, we will  2 take the morning adjournment.  3 THE REGISTRAR:  Order in court.  Court will recess.  4 (PROCEEDINGS ADJOURNED AT 11:15 a.m.)  5  6 I hereby certify the foregoing to  7 be a true and accurate transcript  8 of the proceedings herein to the  9 best of my skill and ability.  10  11    12 LISA FRANKO, OFFICIAL REPORTER  13 UNITED REPORTING SERVICE LTD.  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47     xh2 Submissions by Ms. Mandell 9276  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  THE  MS.  THE  MS.  (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  REGISTRAR:  Order in court.  COURT:  MANDELL  COURT:  MANDELL  THE  MS.  COURT:  MANDELL  Ms. Mandell?  :  Thank you.  My lord, as always your questions  require me to synthesize my answer.  Yes.  :  I think that the distinction on which you're  asking for clarification is in balancing the facts  necessary to establish and test credibility against  the attorney's brief protection, where is the line  to be drawn.  And I think that the -- a short answer  is that all the facts are -- the facts which are  given to the expert by counsel are discloseable,  whereas counsel's opinions with respect to those  facts are not, providing those opinions fall within  the -- the test which we're aided by in its  development, in a case, which I'm going to refer to  your lordship, where certain documents are called  the opinion work product of counsel, and I think  that this is really the nub of it.  Opinion work product?  :  The opinion work product.  If I can take your  lordship to Tab 14, it's a case called the Bogosian  v.  Gulf Oil Case.  Here in that case the issue of  the compellability of materials produced by counsel  and placed in the hands of an expert witness was at  issue where those witnesses were called to give what  the parties agree are to be treated as trial  depositions.  I don't think we have exactly the same  process here.  And that was the consideration in  this case.  And the Court referred to documents prepared by  attorneys containing solely their mental impressions  and thought processes relating to the legal theories  of a complex case.  And that was the issue which was  there placed before the Court.  And at page 593 the  Court said this.  They made a distinction between  what amount's to be work product and core work  product.  And they said -- I'm reading, just to  identify the section, at page 593 in the first  column:  "The particular protection to be accorded  such work product, denominated 'opinion  work product'..  And they showed the case, the Upjohn Case, and others 9277  Submissions by Ms. Mandell  1 which dealt with it.  And then at page 593 at the  2 second column.  I'm beginning from the top of the  3 page:  4 "It is significant for the case before us  5 that the work product that the Court held  6 required 'a far stronger showing of  7 necessity and unavailability', was an  8 attorney's interview notes.  The work  9 product in this case merits even greater  10 protection.  Petitioners contend that the  11 material here relates to the legal  12 theories of their attorneys.  In their  13 Petition for a Writ of Mandamus, they  14 describe the material as 'documents  15 prepared by attorneys containing solely  16 their mental impressions and thought  17 processes relating to the legal theories  18 of a complex case'.  Since respondents are  19 willing to accept this description for  20 purposes of the Petition, we also assume  21 that the documents at issue may reflect  22 the legal theories of petitioner's  23 attorneys.  The documents thus described  24 represent core work product, entitled to  25 even more heightened protection than  26 witness interview notes.  If attorneys are  27 to feel free to commit to writing the  28 mental processes by which they sift and  29 evaluate various possible theories on  30 which they will base their cases, they  31 must feel confident that such material  32 will be protected from disclosure.  33 Otherwise, the freedom of thought  34 essential to carefully reasoned trial  35 preparation would be inhibited."  36  37 And I think that in thinking about your question over  38 the break, I really did finally land on that; that  39 there's certain opinions which we as counsel give  40 which are really either there to reflect our theory  41 or to sift through our theories, and that these are  42 passed on to the expert, or they may in consultation  43 with us help us to arrive at that, and it's really  44 that which requires protection.  45 I feel less strongly, although I don't abandon the  46 position, that my opinion as to the strengths and  47 weaknesses as to the expert's report in the context 927?  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  of the case is a core work product, and in some  situations it may very well be.  And I think really  as a general rule, any of our opinions about facts  are not discloseable, although where it does go to a  fact upon which the expert relied, I say, yes, it is  discloseable.  But the place where in the Bogosian  Case they talked about opinion work product, or as  they talked about a core work product relating to  the legal theories in a complex case, that I say is  the line which really requires protection.  I think  that that whole case actually is instructive,  because it does deal with, in part, the issue which  is before your lordship today.  The Court goes on to say -- and actually I should  draw your lordship to the passage.  THE COURT:  In the same case?  MS. MANDELL:  In the same case.  THE COURT:  Yes.  MS. MANDELL:  At page 595.  THE COURT:  Well, at the bottom of page 593 it says:  "The district court concluded that showing  the material to the witnesses did not  waive the protection for attorney work  product, a view we accept as supported by  persuasive authority."  MS. MANDELL:  That's right.  THE COURT:  So you would adopt that?  MS. MANDELL:  That's right.  At page 595 they deal with this problem that you  raise about cross-examination, beginning the first  full -- well, actually I should start at the  beginning of the first column at page 595, the  fourth line down.  "The district court reasoned that since the  opposing party is entitled to the  substance of the facts and opinions as to  which the expert is expected to testify  and a summary of the grounds for each  opinion, and since 'the attorney's  thoughts and opinions given to an expert  witness can constitute part of the grounds  for the expert witness' opinion',  discovery of counsel's opinion work  product utilized by an expert witness 'is 9279  Submissions by Ms. Mandell  1 a necessary corollary of the right to  2 examine into an expert's basis for forming  3 his opinion.  We do not agree with the  4 conclusion.  5 The thrust of Rule 26(b)(4) is to permit  6 discovery of facts known or opinions held  7 by the expert."  8  9 And I rely upon the next passage particularly:  10  11 "Examination and cross-examination of the  12 expert can be comprehensive and effective  13 on the relevant issue of the basis for an  14 expert's opinion without an inquiry into  15 the lawyer's role in assisting with the  16 formulation of the theory."  17  18 And I underline theory.  19  20 "Even if examination into the lawyer's role  21 is permissible, an issue not before us,  22 the marginal value in the revelation on  23 cross-examination that the expert's view  24 may have originated with an attorney's  25 opinion or theory does not warrant  26 overriding the strong policy against  27 disclosure of documents consisting of core  28 attorney's work product."  29  30 And at the -- at page 595 in the second column, the  31 paragraph that I wish to rely upon is found under  32 "Procedure to Protect Core Product".  And I just  33 draw your lordship's attention to about 12 lines  34 down:  35  36 "Of course, where the same document contains  37 both facts and legal theories of the  38 attorney, the adversary party is entitled  39 to discovery of the facts."  40  41 And then later in the paragraph:  42  43 "Where such combinations exist, it will be  44 necessary to redact the document so that  45 full disclosure is made of" --  46  47    THE COURT:  What does that word mean? 9280  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MS. MANDELL:  I took it to mean black out, to read out of the  document or cover up.  "... so that full disclosure is made of  facts presented to the expert and  considered in formulating his or her  opinion, while protection is accorded the  legal theories and the attorney-expert  dialectic."  And this is what we've done, is just parsed the  document of those passages which we think reflect  the core work product opinion of the lawyers.  I think, my lord, if I could just refer you on  page 13 of the -- we -- I discussed the Bogosian  Case on pages 12 and 13 of the argument.  And at the  bottom of page 13 it's an analytic point which I  wish to draw to your lordship's attention.  I'm  reading from the second paragraph at the bottom of  the page.  If the privilege over counsel work  product does not survive the tendering of evidence  by the witness it is submitted, in the alternative,  that the Court ought to exercise its discretion not  to require production of such materials.  There does not appear to be a Canadian case  directly on point, that is whether or not the case  really is an exercise of discretion or whether it  folds into whether or not the work product is  subject to privilege.  We say either one is a method  of analysis appropriate for this occasion.  It is submitted that an analogous principle was  stated in the Noor Mohamed Case, which is found at  Tab 15.  And I've taken the passage of that case  which I wish to draw to your lordship's attention at  the top of page 14.  It's branded in every defence lawyer's heart.  It's the first time I came across it.  I now have  it for next time.  Except that I'm not so sure that -- that the  principle wasn't seriously curtailed in Wray, which  you mention in the next paragraph.  Wray said that  the only discretion we had is if the evidence had --  Wray said if admissibility was tenuous.  I don't  know what that means.  Things are admissible but  they're not.  And they had only trifling  consequence.  That Noor Mohamed discretion I think  was seriously curtailed by Wray.  THE COURT:  MS. MANDELL  THE COURT: 9281  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS. MANDELL  MS. MANDELL:  You know, it's funny.  When you look for  something, you look for what you want to read in it.  When I read the combination of Wray in this case  recently, I took it to mean that at the very back of  everything, if there's no other way of doing it, you  could always evoke the doctrine which is being  discussed in Noor Mohamed.  Well, most of the criminal defence lawyers would  tell you that Wray is the worst decision ever made;  Noor Mohamed is the better one.  So the two don't  sit together very well.  :  You have to be very diplomatic.  Well, I think  really then at page 15 I cite my conclusions.  And,  my lord, if your lordship is -- is wishing it, I can  either now or at the point of reply go through the  examples from the correspondence which may be in  issue between my friend and I and seek to apply the  principles here that we've argued before.  THE COURT:  I think you should do that, Ms. Mandell, because  it's really in the examples where we find the  difficulty.  Of course, the other problem I have  with your submission is the fact that I'm sitting  here really as a -- well not really.  I'm sitting  here as a trial judge of the Supreme Court, and I'm  expected to follow the judgment of Mr. Justice Finch  in the Vancouver Community College Case.  Do you  have a theory of -- of escape for me from following  that decision?  MS. MANDELL:  Well, I have — I've posited one theory in the  course of the argument, and that is if you read his  decision properly, in our submission you can read  into it what we argue is the theory, that is  opinions or opinions as he's developed them and not  reflective of the opinions of counsel.  If your  lordship feels that -- that that reading is  inconsistent with the wording of his judgment, which  we don't agree upon, we've included in the volume of  authorities at Tabs 15 to 19 the -- the authorities  which permit your lordship to overturn a decision of  the -- of the Supreme Court in this case.  And the only case there that I would draw to your  lordship's attention is at Tab 18.  I think the  Mitrunen Case does set out the principles upon which  your lordship may see as proper to overturn or  qualify a judgment of -- of the Court.  And I would  draw your lordship's attention there to the passage.  I don't have my volume handy.  Just excuse me for a 9282  Submissions by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  minute.  THE COURT:  Well, isn't Hansard, Spruce, Mills the locus  classicus on that problem, on that question?  MS. MANDELL:  Yes.  And he cites it and goes on, at the same  time includes the fourth test that was developed in  Cairney.  It may not be that there is much of a  difference between the three tests of -- but it's  the usual -- usual ways.  We say there that the two points which might be  relevant to your lordship is, in our submission, we  do think that Mr. Justice Finch misread the Nobles  Case.  And I've drawn your lordship to the arguments  with respect to that.  And we also -- with respect  to his second judgment, that is the one that deals  with the disclosure of drafts, which isn't part of  this judgment before your lordship, that appears to  be a decision from the bench and he may not have  considered the authorities which -- which are  available for him to consider.  And particularly I  think the American authorities and the Bogosian Case  are important cases for him to consider in bearing  in mind the strong reliance in this jurisdiction of  the American doctrine or the doctrine which is  reflective in the American law as well as our law.  THE COURT:  Is it your submission that I would not be offending  against the rule of stare decisis if I were to say  that opinions expressed by lawyers to experts who  are called as to the strength or weakness of their  case do not bear insufficient credibility, that they  must be disclosed?  MS. MANDELL:  I don't think that Mr. Justice Finch goes the  distance.  Put it quite that plainly?  :  No.  I don't think you'd be offending the rule of  stare decisis.  I think you'd be elaborating on a  point that is vague in the decision of Mr. Justice  Finch.  All right.  Show me your examples, please.  :  In Tab 1 you'll see that the full text of the  letter is -- is contained.  The first paragraph  which is blacked out, the -- we say that it's within  the context of the -- of the brief of the lawyer as  to who the expert met with from among counsel's team  if that person is not part of the area of expertise  of the expert.  THE COURT:  Of course the expert in cross-examination could be  asked who -- who he met with and when, could he not?  THE  MS.  THE  MS.  COURT:  MANDELL  COURT:  MANDELL 9283  Submissions by Ms. Mandell  1  MS.  MANDELL  2  THE  COURT:  3  4  5  MS.  MANDELL  6  7  8  9  10  11  12  13  B.  14  15  THE  COURT:  16  MS.  MANDELL  17  18  19  THE  COURT:  20  21  22  23  MS.  MANDELL  24  THE  COURT:  25  MS.  MANDELL  26  27  28  THE  COURT:  29  30  31  MS.  MANDELL  32  33  THE  COURT:  34  MS.  MANDELL  35  36  37  THE  COURT:  38  MS.  MANDELL  39  40  41  42  43  44  45  46  47  Yes.  But we say that it's --  You don't have to tell him.  You don't have to  furnish the information so he can point out the  question.  And we also say if it's somebody in his area which  helped to formulate his report, that's one thing,  but in this case Miss Marsden is a specialist in  Adaawk.  She doesn't have any knowledge of  geophysical biological evidence, and we say that  it's up to us to select who we put in touch with the  expert and helped to formulate the questions of the  report.  Bearing in mind this is before the actual field work  was designed.  Yes.  All right.  The last two paragraphs we excised because we say  that it's part of the housekeeping matters and  aren't something which the defendant needs to know.  Well, instead of saying $1,000, which seems little  enough, if it is to say $100,000, would that not  reflect on credibility, being paid a huge amount for  a relatively straightforward scientific opinion?  I would --  Why the bonus?  Yes.  I concede that.  I think that's right.  I  think they should be entitled to no financial  affairs if that is an issue for credibility.  Well, 15 years ago I would have been appalled at the  thought of such a matter ever being ventilated at  trial, but I must say I've changed my view.  I can see, as your lordship puts it, that it may  arise in credibility, so it could be disclosed.  Yes.  Tab 2, again the major excising was with respect  to what we called housekeeping matters, and again I  don't now have problems with revealing the amounts.  Yes.  Tab 3, my lord, this is a memorandum of Stuart  Rush to various persons who are named as those to  whom the memo will be sent.  And our first point --  and it's responding to a draft of a report which Dr.  Gottesfeld presented to Richard Overstall, who is  counsel's agent in this matter.  And we say, first  off, that the -- those people who received copies of  the report or are part of the committee, counsel's  committee to advise with respect to the litigation,  that information is privileged and ought not to be 9284  Submissions by Ms. Mandell  1 disclosed, and so I excised the names of everybody  2 who received the memorandum, except for Richard  3 Overstall, because it was through Mr. Overstall that  4 the witness then received a copy of the report.  And  5 I say this because I think that there is privacy to  6 be maintained regarding who counsel's advisors are  7 in the preparation of the case.  8 Now, in paragraph two, this is again counsel  9 speaking to his agent agreeing that another person,  10 John Clague, should review the report and give his  11 informal critique.  And we say that if and when Mr.  12 Clague passes on any information which he then makes  13 of the report to the expert, this is discloseable.  14 And you'll see at Tab 4 in fact Mr. Clague did  15 develop an opinion, and this was brought to the  16 attention of the witness.  And we say that certainly  17 Mr. Clague's opinion, if it gets developed, is  18 discloseable.  But the fact that we might choose to  19 consult with other potential witnesses or other  20 potential experts and if that information doesn't  21 then find its way back by way of critique to the  22 expert, we say the fact that we consulted with  23 others is not part of what the defendant should know  24 about our case.  25 Now, the third paragraph, this is Stuart  26 critiquing the -- Stuart Rush critiquing the  27 strengths and weaknesses of the actual draft report  28 itself.  And in my view I -- I've excised it because  29 I think that the opinion of counsel regarding  30 whether or not according to his opinion the report  31 is good and does what it's meant to do or doesn't do  32 what it's meant to do is not a fact, or it's not --  33 it's not an assumption which -- which, in our  34 submission, is probative enough that it should be  35 revealed.  And I say this because here is counsel  36 commenting upon his view of the evidence having the  37 advantage of the overview of the case.  And I say  38 that it shouldn't be to the benefit of the  39 defendants how Mr. Rush views the evidence which is  40 coming in.  Now, should he then generate any further  41 facts, that's different.  But his own private  42 opinion about the -- the strength of the evidence,  43 in my view, isn't discloseable.  44 THE COURT:  How does this report get into this area for  45 discussion at all if a copy wasn't sent to Dr.  46 Gottesfeld?  47 MS. MANDELL:  Well, it was in fact by Richard Overstall. 9285  Submissions by Ms. Mandell  1 THE COURT:  I gather Mr. Overstall —  2 MS. MANDELL:  Sent it on to Dr. Gottesfeld.  So it's part of his  3 file and he went through it.  4 I draw to your lordship's attention the same point  5 on the third paragraph.  I've excised the statement  6 "The conclusions drawn about dating on page 14 are  7 fantastic", and I've excised that.  "But we should  8 explain either on page 14 who's Beta Analytic", the  9 reason I say again that that should be excised is  10 that it's emphasis which is available for the  11 defendants to appreciate that counsel in their  12 wisdom in looking at the evidence highlights certain  13 points of significance to their argument.  And this,  14 I say, is the benefit of opposing counsel's views  15 which they shouldn't have.  16 And, finally, the last paragraph, the -- on page 2  17 we've excised.  And I say that this is another  18 example, only perhaps a clearer one, of why we say  19 that counsel's opinions regarding this should be  20 excised.  In this case he's -- Mr. Rush is  21 explaining that the report is helpful in  22 corroborating the authenticity of the adaawk.  Maybe  23 that wasn't completely apparent in the evidence  24 provided by Dr. Gottesfeld for its purpose, and that  25 that's certainly something which will be left to  2 6 legal argument and which may or may not at the end  27 of the day be accepted by your lordship, but we say  28 that it's not proper that the defendant get at this  29 early stage how it is that this evidence will be  30 used in the legal argument.  Now, this witness --  31 perhaps it's more obvious than others to come, but I  32 say that the principle is there and that the  33 comments are appropriate.  34 Now, Tab 4 was put in to demonstrate the fact that  35 Mr. Clague's letter in its entirety was disclosed,  36 because we say that is the fact that my friend is  37 entitled to.  38 Tab 5 —  39 THE COURT:  I'm sorry.  Disclosed because Mr. —  40 MS. MANDELL:  Dr. Gottesfeld.  41 THE COURT:  — Dr. Gottesfeld relied on it?  42 MS. MANDELL:  Well, he saw it before he completed his report.  43 He saw the opinion generated by counsel of another  44 expert as to his work and he could consider it and  45 reject it or accept it or do what he pleases with  46 it, but that's certainly facts that he has that he  47 then considered. 9286  Submissions by Ms. Mandell  1  THE  COURT:  2  MS.  MANDELL  3  4  5  6  7  8  9  THE  COURT:  10  MS.  MANDELL  11  THE  COURT:  12  MS.  MANDELL  13  14  15  16  17  18  19  20  21  22  23  24  THE  COURT:  25  26  MS.  MANDELL  27  THE  COURT:  28  29  30  31  MS.  MANDELL  32  THE  COURT:  33  34  35  36  37  38  MS.  MANDELL  39  40  41  42  THE  COURT:  43  44  45  46  THE  COURT:  47  MS.  MANDELL  Yes.  :  But had he not, my lord, generated that opinion,  the fact that we had asked Dr. Clague to do that, in  our submission, is what's protected.  Tab 5, it's another housekeeping problem.  You'll  see at the bottom of the last page, this is an  invoice enclosure.  Tab 6 —  I gather that the invoice wasn't disclosed.  :  We didn't have it, no.  Yes.  All right.  :  Tab 6 is a problem of a similar order as that  raised by Mr. Rush's memo.  This is a memorandum  from Richard Overstall, who's our agent, to Dr.  Gottesfeld.  And the first strike is, as I  indicated, when we spoke last, I don't, in our  submission, feel that it's proper that the defendant  has indication of every time when we speak to our  experts.  And then later in the paragraph:  "I can only echo  Stuart's remark that the report and the field work  is excellent to produce exactly the evidence we  hoped to find when we initiated the research".  But how is this restricted by solicitor's privilege  when it's not written by a solicitor?  :  Well, Mr. Overstall was our agent in this case.  Well, I want to hear your friends on that.  I'm a  little troubled by the thought that the privilege  could be extended merely by constituting your  clients as agent.  :  He's not a client.  All right.  Clients -- client's agents as lawyer's  agents for the purposes of extending privilege.  You  may be quite right, and there's a logical reality to  what you say, but that -- historically it is a  solicitor's privilege to bear the solicitor-client's  privilege not limited to what the lawyer does.  :  I should look up -- I looked up this point many --  many months ago and it was my impression -- and I  can find cases for your lordship and perhaps we can  set it aside.  Yes.  I'd like to have some help on that.  It seemed  to me there was a mention made in Lord Justice  Cotton's judgment.  That was Tab 5, Lyell and -- was  it the Kennedy Case?  Oh, it was Lyell and Kennedy, yes.  :  This had to do with the accountant.  That's right. 9287  Submissions by Ms. Mandell  1    THE COURT:  On page 26, I think.  2  3 "... for the purpose of his defence, and it  4 would be to deprive a solicitor of the  5 means afforded for enabling him to fully  6 investigate a case for the purpose of  7 instructing counsel if we required  8 documents."  9  10 Further down page 26 he says:  11  12 "... when that case came before  13 Vice-chancellor Wood, he protected the  14 records and extracts from books which had  15 made by an accountant for the defendants,  16 who had collected together a number of  17 entries, because the extracts, when put  18 together, shewed the view which he and the  19 solicitor of the defendants took of the  20 particular fraud which they were there  21 investigating."  22  23 So it does seem to me that he is saying that the  24 privilege extends beyond just what the lawyer has  25 done.  He refers to an accountant.  All right.  26 Well, that would seem to answer my question subject  27 to what your friends say.  28 MS. MANDELL:  All right.  The point at the bottom of the memo of  29 June 11th, this is -- we've excised that whole  30 discussion with the exception of the facts which we  31 say were relevant to -- the facts or assumptions  32 which we say are relevant to the witness.  There on  33 the basis that the description by Mr. Overstall is  34 really more on the -- more pointing to the trial  35 strategy of the plaintiffs in going one way or  36 another in choosing to lead specific evidence for  37 the purposes which are being set out.  And we say  38 this is all trial strategy and goes into the brief  39 and has nothing to do with the facts upon which the  40 expert would rely.  41 THE COURT:  Yes.  42 MS. MANDELL:  And then the last point, which is the same as a  43 point already raised at page 4, where we say that  44 the enclosures, that is who's part of the litigation  45 team with respect to these issues, are not a subject  46 for disclosure.  4 7    THE COURT:  Yes. 92?  Submissions by Ms. Mandell  1 MS. MANDELL:  At Tab 7 I don't think there's anything other than  2 housekeeping here, except for the statement at the  3 last paragraph:  "I discussed this with you and  4 Susan recently.  It's the same point as to whether  5 or not we're forced to reveal the names of those  6 that are part of the litigation team with respect to  7 this expert".  8 Tab 8 the first deletion is housekeeping, but the  9 second one I believe we've already argued about.  It  10 has to do with whether or not the material which  11 counsel is in the process of generating but which  12 doesn't touch particularly on the expert's report is  13 discloseable, or, as we've chosen, the material only  14 which pertains to the expert's facts or assumptions,  15 and that's on the first full paragraph of the  16 January 9th letter.  17 And the last -- we deleted the first paragraph of  18 the -- the first sentence of the last paragraph.  I  19 think it should be included.  I don't justify having  20 deleted it.  This is where we indicated that we gave  21 a copy of the letter to Jim Pojar.  The reason we  22 deleted it at that time is for the same reason --  23 actually I remember now.  It's the same reason as we  24 deleted "We've given a copy of your letter to Mr.  25 Clague".  And that is that we don't think that who  26 we consult about the report, unless there's some  27 feedback back, should be disclosed.  So that's the  28 reason why that was excluded.  And again with the  29 copy to Jim Pojar, we don't -- we don't say that --  30 it's the same point about not disclosing the  31 litigation team.  32 On page -- on Tab 9, I believe this is all  33 housekeeping with the exception of the financial  34 aspects which now we agree should be included.  35 THE COURT:  Yes.  36 MS. MANDELL:  Tab 10, my lord.  I'm going to pass up to you the  37 full text of this memo.  We haven't disclosed it to  38 my friends, only the edited one.  And if I can  39 explain here that this was the by-product of a  40 meeting among the experts and counsel at an early  41 stage of the litigation where Mr. Pojar was being  42 asked as an expert to interact with a number of the  43 biophysical experts and assist in analysing whether  44 the theory of the case which we were advancing and  45 which we would ultimately be arguing for to him as  46 an objective observer appeared to be supportable on  47 the basis of the material which was disclosed to 9289  Submissions by Ms. Mandell  1 him.  And so the passages which are blacked out, in  2 our submission, are all his views as to whether or  3 not our theory could be supported by the evidence  4 which we exposed him to, and we say all of that has  5 to do with the developing of the lawyer's core  6 opinions.  7 THE COURT:  This was disclosed, given to Dr. Gottesfeld, was it?  8 MS. MANDELL:  No.  This was given to Sybille Haeussler, who  9 wasn't come up yet.  10 THE COURT:  All right.  11 MS. MANDELL:  And if I could also pass up to your lordship -- at  12 Tab 10 it's also a memorandum where the full text of  13 which hasn't been disclosed to my friends but where  14 privilege has also been claimed with respect to the  15 blacked out passages.  And this also has to do with  16 a witness to come, Miss Haeussler.  And I don't  17 believe that there's any point raised in this  18 memoranda which hasn't already been discussed by us  19 and as objections to earlier memoranda.  It's --  20 it's really -- all of the points have already been  21 dealt with and these are more examples of the same.  22 THE COURT:  I wonder if for the purposes of this argument I  23 should keep these documents.  Your friend hasn't  24 seen them and it's very difficult -- I think I'd  25 rather give them back to you.  I think I would try  26 and reach a decision on principle without regard to  27 matters which I've seen to which your friends  28 haven't seen.  I think the point -- the points  29 you're making emerge out of the examples you have,  30 and you've -- I'll take what you've told me as a  31 submission or an argument that could be made as a  32 hypothetical; that, for example, you might have had  33 a meeting, a team meeting in the early stages and  34 discussed the theory of the case and there might be  35 minutes or notes, and I might deal with it as a  36 hypothetical.  Your friends haven't seen the  37 documents.  38 MS. MANDELL:  And, my lord, to advise my friends, we've  39 explained that a letter of December 20th, 1985 for  40 Richard Overstall to Sybille Haeussler hasn't been  41 disclosed on the basis of privilege, and it's with  42 respect to the same meeting that the Pojar memo is  43 designed to cover.  44 The only last item is -- again it's one where my  45 friend doesn't have the disclosure.  It's at Tab 15.  46 And I'll just advise you what the nature of that is.  47 Oh, this is financial problems.  We've covered that 9290  Submissions by Ms. Mandell  1 already.  2 MS. MANDELL:  Thank you.  3 THE COURT:  You say your friends don't have Tab 15?  4 MS. MANDELL:  Not the full letter.  But the point that's been  5 marked off there has to do with the discussion.  6 THE COURT:  I don't have the full —  7 MS. MANDELL:  No.  You don't either.  These are disclosures with  8 respect to Sybille Haeussler, and that has -- the  9 blacked out portion, I can advise, has to do with  10 financial matters.  11 THE COURT:  Yes.  All right.  All right.  Mr. Willms?  Thank  12 you, Ms. Mandell.  13 MR. WILLMS:  My lord, I've got an outline of the argument which  14 I'll supplement with oral argument.  And I think  15 I've anticipated most of what my friend has said.  I  16 also have a brief of documents.  Some duplicate,  17 some don't.  I apologize for the ones that do,  18 but —  19 THE COURT:  Thank you.  20 MR. WILLMS:  And the one final thing -- and this is something  21 which I'd ask that your lordship keep with you because  22 it will be relevant in the witnesses to come.  I'm  23 not going to refer to all of these cases, but it  24 will -- it's a binder of cases that my friends have  25 dealing with expert evidence generally.  26 Now, the starting point, my lord, even before I  27 get to Vancouver Community College, which I've set  28 out in paragraph 1, is really what your lordship  29 said in Sengbusch and Priest, which is at Tab 6 of  30 the book of authorities.  And it's in particular  31 at -- starting at pages 39 and over to page 40, your  32 lordship really set out in quotations from Kelliher  33 and Smith on page 39 and then Turner from 39 over to  34 40 and then finally Abbey what an expert is.  And I  35 think that the distinction's important here because  36 it bears on some of the discussions that have been  37 taking place between the witnesses as evidenced by  38 the documents.  And an expert is -- and this is  39 Abbey on page 40:  His function is:  40  41 "... to provide the judge and jury with a  42 ready-made inference which the judge and  43 jury, due to the technical nature of the  44 facts, are unable to formulate.  'An  45 expert's opinion is admissible to furnish  46 the Court with scientific information  47 which is likely to be outside the 9291  Submissions by Mr. Willms  1 experience and knowledge of a judge or  2 jury.  If on the proven facts a judge or  3 jury can form their own conclusions  4 without help, then the opinion of the  5 expert is unnecessary."  6  7 And your lordship went on at the bottom of the  8 page to distinguish between argument disguised as  9 opinion and true opinion evidence.  And I'll come  10 back to this later, my lord, but really at the heart  11 of a lot of these meetings and the correspondence is  12 an assessment of how much of the report is truly  13 scientific and how much of it is part of the  14 plaintiff's argument fitted in case by case, expert  15 by expert.  And I think the first two experts are an  16 illustration of why it's important for the  17 defendants to know why extracts are in a report, why  18 they're out of a report, who spoke to the expert and  19 why.  20 And these are all matters which are covered, in my  21 submission, by the essence of what Mr. Justice Finch  22 covered in Phillips, Barratt.  And I've set out, my  23 lord, on the first page of the typewritten argument  24 what Mr. Justice Finch said and what we say the law  25 is.  And that is -- and Phillips, Barratt was a case  26 where the expert was served with a subpoena.  It was  27 really treated as a Subpoena duces tecum, a subpoena  28 for documents, because the witness was being offered  29 to give evidence on behalf of the party calling the  30 witness, and it was the opposing party that served  31 the subpoena.  But the language of the subpoena is  32 the normal language of a subpoena, all documents  33 related to any matter in issue in the proceedings.  34 And your lordship is aware of the tests of relevance  35 related with that kind of language.  It's the same  36 language in discovery under Rule 26.  And it was in  37 that context that Mr. Justice Finch said that:  38  39 "When an expert witness who is not a party  40 is called to testify, or when his report  41 is placed in evidence, he may be required  42 to produce to counsel cross-examining all  43 documents in his possession which are or  44 may be relevant to matters of substance in  45 his evidence or to his credibility, unless  46 it would be unfair or inconsistent to  47 require such production." 9292  Submissions by Mr. Willms  1  2 In my submission Mr. Justice Finch in that case held  3 that when the witness was tendered, all documents --  4 privilege over all documents in his possession were  5 waived subject to what he said about fairness and  6 consistency.  And that is what I have set out in  7 paragraph 2.  And, my lord, this is consistent with  8 the U.S. position.  9 And I'd just like to turn to two of the cases that  10 my friend read to you from her authorities.  The  11 first one is the Nobles Case, which is at Tab 10.  12 Sorry.  Tab 11, my lord, is the Nobles -- the  13 Nobles Case.  And my friend read to you from page  14 1 -- didn't read from the case, but it's page 154  15 that the quote in her argument is taken from.  And  16 the quote, my lord, if you look down under  17 paragraph -- this is on page 154 at Tab 11.  18 THE COURT:  Yes.  19 MR. WILLMS:  What my friend read to you, if you come midway down  20 the left-hand column down to the "Disclosure of an  21 attorney's efforts at trial, as surely as disclosure  22 during pretrial discovery, could disrupt the orderly  23 development and presentation of his case", that's  24 the portion that my friend quoted in her argument.  25 The Court then carried on to say this:  26 "We need not, however, undertake here to  27 delineate the scope of the doctrine at  28 trial, for in this instance it is clear  29 that the defence waived such right as may  30 have existed to invoke its protections.  31 The privilege derived from the work  32 product doctrine is not absolute.  Like  33 other qualified privileges, it may be  34 waived.  Here respondent sought to adduce  35 the testimony of the investigator and  36 contrast his recollection of the contested  37 statements with that of the prosecution's  38 witnesses.  Respondent, by electing to  39 present the investigator as a witness,  40 waived the privilege with respect to  41 matters covered in his testimony.  42 Respondent can no more advance the work  43 product doctrine to sustain a unilateral  44 testimonial use of work product materials  45 than he could elect to testify in his own  46 behalf and thereafter assert his Fifth  47 Amendment privilege to resist 9293  Submissions by Mr. Willms  1 cross-examination on matters reasonably  2 related to those brought out in direct  3 examination."  4  5 Now, my lord, that, in my submission, is entirely  6 consistent with what Mr. Justice Finch said in  7 Phillips, Barratt subject to the fairness, which  8 I'll get on to in a minute.  But the work product  9 doctrine just -- it's not a doctrine where you can  10 pick and choose which parts of the work product are  11 discloseable later on.  12 My friend, in effect, seeks to say where the work  13 product changed the expert's opinion, that's  14 discloseable.  I agree with that.  But where the  15 work product was merely something that the expert  16 considered but you can't tell whether he changed his  17 opinion from it, then for some reason that core work  18 product or whatever it is isn't discloseable.  19 Now, my lord, that's a test that is going to shift  20 from witness to witness, document to document.  And  21 what Mr. Justice Finch said in -- and which I submit  22 he said in Phillips, Barratt provides a test that  23 has at least some metes and bounds.  And that, my  24 lord, is set out in paragraph 2 where Mr. Justice  25 Finch -- and this is in my argument -- gave an  26 example of something that fairness would not  27 require, would require protection of, and that is  28 advice on how to cross-examine the other side's  29 witnesses.  So that when he's putting forward his  30 opinion on the stand, he may not be putting forward  31 his opinion.  It may not involve his opinion at all  32 when he's given advice on how to cross-examine.  And  33 I would add to that.  And I've added that, my lord,  34 at the bottom of the first page, giving advice on  35 how to rebut affirmative allegations made by another  36 party where that advice is not related to the report  37 or to the evidence so that you may retain an expert  38 in a particular field.  You may have a  39 multi-disciplinary expert.  He may be an  40 archaeologist.  He may be an ethnographer.  You may  41 only want the archaeology in the evidence, but you  42 may want to meet an affirmative allegation made by  43 the defence when the defence is called, either in  44 cross-examining or after the defence is called to  45 rebut it, and it may not involve calling the witness  46 to give evidence about that at all.  Now, those are  47 the kinds of things that I think Mr. Justice Finch 9294  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. WILLMS:  THE COURT:  MS. MANDELL  was alluding to in Phillips, Barratt when he  mentioned the retention of the confidential advisor  capacity in some circumstances.  Now, just before I turn to the second decision of  Mr. Justice Finch, I do want to deal with the  Bogosian Case that my friend cited.  And that case  is at --  Tab 14, isn't it?  Thank you, my lord.  Tab 14.  The important thing  to note in that case, my lord, or the two important  things, in my submission, are, first of all, the  Court in Bogosian acknowledged the waiver by calling  the witness.  And if you turn to the page that my  friend read to you, that's page 593 of Tab 14 --  Yes.  :  -- you'll see -- and this is in accordance with  the usual American method of dealing with points.  There's a footnote.  And if you -- at the bottom of  page 593 on the right-hand corner:  "The district court concluded that showing  the material to the witnesses did not  waive the protection."  And then you can see the footnote:  "This situation is distinguishable from that  before the Court in United States v.  Nobles   where the Court held that a  defence investigator waived protection  over his own reports of witness statements  when he testified that those statements  contradicted testimony introduced at  trial."  So the first point, my lord, is that there's --  this Bogosian is not strictly speaking inconsistent  with Nobles.  It recognizes Nobles.  It's a pretrial  matter, and it's a case on a clash between two  federal rules in the United States.  The dissent  sets out clearly that there is a -- a difference of  opinion even with the majority, and I'm not going to  read this to your lordship, but the dissent deals  with judgments in different jurisdictions, which on  the whole I think it must be said that if there is a  difference between the two cases, between Bogosian  and Nobles, that Mr. Justice Finch has adopted the 9295  Submissions by Mr. Willms  1 Nobles proposition, and that that's the law in  2 British Columbia, and that he has not adopted the  3 principles if they are different and I say they  4 aren't, set out by the majority in Bogosian.  5 THE COURT:  What do you say is different about those two cases?  6 MR. WILLMS:  Well, I thought my friend was suggesting that the  7 Bogosian Case said that there was some protection  8 over work product at trial, core work product.  9 Well, what I'm suggesting is Bogosian is another one  10 of the pretrial cases of which there are legion in  11 the United States.  You can't dip into opposing  12 counsel's brief pretrial.  That's to be  13 distinguished from the Nobles Case where the matter  14 came up when the witness got in the stand and a  15 waiver of privilege was the result.  16 Now, the types of documents that Mr. Justice Finch  17 sets out in his -- in a later ruling -- and, my  18 lord, the later ruling is at Tab 12 of the black  19 binder that I handed up.  And in this judgment Mr.  20 Justice Finch says:  21  22 "On September 4, 1987, during the evidence  23 of an expert witness called by the  24 plaintiff, I held that the expert could be  25 compelled to produce drafts of his  26 reports, working papers, written  27 communications passing between him and  28 counsel who retained him, and other  29 documents pursuant to a subpoena which had  30 been served on the witness by counsel for  31 the defence.  I said that the calling of  32 the witness to testify, or the adducing of  33 his report in evidence constituted waiver  34 over those papers in the possession of the  35 expert which would otherwise have been  36 protected from disclosure by the privilege  37 protecting papers in the 'lawyer's  38 brief."  39  40 I think, in my submission, my lord, that makes it  41 clear that at the first stage Mr. Justice Finch was  42 saying that the privilege is waived completely, but  43 he does talk about fairness and consistency.  44 THE COURT:  But only as to the documents in the file of the  45 witness.  46 MR. WILLMS:  Only — this refers only to the file of the  47 witness. 9296  Submissions by Mr. Willms  1 Now, in this particular judgment, and I don't  2 think anything turns on it in this case, Mr. Justice  3 Finch also directed that documents that were once in  4 the possession of the witness but were no longer,  5 that if there were drafts in the possession of other  6 people, they could be produced.  This would have  7 not -- this would not have arisen had the expert  8 still had his drafts.  But you don't think that  9 arises here.  But I think what Mr. Justice Finch has  10 done here is clarified the intent of the initial  11 ruling.  And in my suggestion -- in my submission,  12 my lord, it is a two-step process, and the first  13 step of the process is a complete waiver.  14 But to deal with the relevance issue that my  15 friend has brought up, it's just the same as looking  16 at the document and deciding whether or not it  17 should go on a list of documents.  It's the same  18 test.  If it's so far field from an issue --  19 something that's an issue in the case, then it's not  20 relevant and it doesn't need to be produced, because  21 it's the same as the response to the subpoena, the  22 response to the demands for discovery of documents.  23 With the privilege gone, it just falls into the  24 general category of documents.  And if the document  25 isn't relevant under the Peruvian Guano Case, it  26 doesn't need to be disclosed.  But if it is  27 relevant, then the next stage arises, and that is  28 fairness and consistency.  2 9    THE COURT:  All right.  Then I think we'll adjourn then, Mr.  30 Willms.  Before we do, after lunch could counsel  31 direct my attention -- I don't have a copy of the  32 rules -- to what is -- what the legislative  33 provision that is in the rules giving the Court the  34 authority to look at documents which privilege is  35 claimed in order to determine such a question?  I'm  36 quite sure there's -- there is such a provision in  37 the rules.  I'd like to be reminded of what it is,  38 please.  All right.  Thank you.  Two o'clock.  39 THE REGISTRAR:  Order in court.  Court will resume at two.  40  41 (PROCEEDINGS ADJOURNED)  42  43 I hereby certify the foregoing to be  44 a true and accurate transcript of the  45 proceedings transcribed to the best  46 of my skill and ability.  47 9297  Submissions by Mr. Willms  Kathie Tanaka, Official Reporter  UNITED REPORTING SERVICE LTD.  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  THE REGISTRAR:  Order in court.  THE COURT:  Mr. Willms.  MR. WILLMS:  My lord, I was on page 2 of the outline of argument  that I handed up.  THE COURT:  Thank you.  MR. WILLMS:  And I had just read to your lordship from the  description in the second -- in the unreported  Vancouver Community College case.  I do want to draw  the distinction, and I have drawn the distinction in  page 2 between working papers and the facts upon  which the opinion is based because those are already  the subject of an earlier ruling of your lordship.  THE COURT:  Yes.  MR. WILLMS:  So it's clear, working papers here are not  something which the witness has relied on in  preparing his report that is the subject of the  argument today.  Now, I think my friend's argument 929?  Submissions by Mr. Willms  1 has tracked her letter to me, but at the -- in the  2 black binder which says "Defendants Documents on  3 Privilege", the first document is the letter from my  4 friend setting out the points on privilege.  And  5 it's that that I have responded to in the written  6 outline here.  I think it picks up all of the points  7 that my friend made in the brief that she handed up  8 to your lordship this morning.  9 The first point that I want to make is that it  10 is it the direct work product privilege that has  11 been impliedly waived according to the reasons in  12 Phillips, Barratt.  So it's not a question of  13 whether it's been waived or not, it's waived by  14 offering the witness.  The question is which  15 portions -- which documents should be protected from  16 disclosure by reason of fairness or consistency.  17 That's the point that I have made at the bottom of  18 page 2 and over to the top of page 3.  So that the  19 focus, in my submission, of the inquiry here is once  20 they're waived, which ones would fairness dictate  21 protection for.  22 And as I said earlier before lunch, Mr.  23 Justice Finch said:  "Preparing the  24 cross-examination or assisting in the preparation of  25 the cross-examination of an opposing witness",  26 that's as a confidential advisor.  It would be  27 unfair to let the other side know what your  28 cross-examination was going to be before the witness  29 took the stand rebutting -- where it doesn't form  30 part of the report or is in any way related to the  31 witnesses' report, rebutting an affirmative  32 allegation of the other party.  And the reason why I  33 say that, my lord, is that where the expert witness'  34 report fits into a strategy of proving your case,  35 that should be distinguished between rebutting the  36 opposing party's case and cross-examining the  37 opposing party's witnesses.  That is where the  38 expert may still remain a confidential advisor and  39 where it would be unfair to, if you may, tip the  4 0 hand in advance.  41 There is no fairness or unfairness in tipping  42 the hand when you are putting your case in.  There  43 is no secrets when you are putting your case in.  44 There shouldn't be a surprise when putting your case  45 in.  It's all part of your case and your strategy,  46 and I don't think, with all due respect to my  47 friend, that trial strategy is something that's a 9299  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. WILLMS:  secret until final argument.  I think most trial  strategy becomes obvious as the evidence goes in and  as the witnesses are led.  If it doesn't, then it is  very hard to mount any kind of a defense to it.  Now, here my friend set out in the November  1st letter, and she has repeated it in her argument  today, in the fourth paragraph down items in which  privilege or she says privilege is maintained.  I  have broken them down into (a), (b) and (c) on page  6.  But in each case, I have suggested that there  should be a distinction drawn between correspondence  or documents that are related only, and that's the  word Mr. Justice Finch used, only to  cross-examination of opposing parties witnesses or  only to rebutting affirmative allegations of the  opposing party, and unrelated in any way to the  substance of the report or the substance of the  evidence of the witness.  Those are very difficult things to categorize, are  they not?  Surely there is no overlapping.  Well, there is overlapping, and my suggestion is on  the issue of overlapping it is my friend's onus --  and I am going to get to it in a minute, it is her  onus to show where it would be unfair.  I can't say  that it is unfair to disclose something when I  haven't seen it, but my friend can make submissions  that it would be unfair to disclose something  because it would relate solely to a matter which has  nothing to do with the witness' evidence whatsoever.  Now, I have on page 4, my lord, gone through  letter by letter, at least to the extent that my  friend set out in her November 1st letter, and if I  can just relate those to the tabs.  The first one  paragraph (a) is tab 1.  And as I understand what my  friend said in her argument, she wasn't really  maintaining her objection in respect of the  financial aspects anymore which is on page 2, but  that she still suggested that the meeting, the fact  that there was a meeting with another witness, was  something that reflected trial strategy and was  unrelated to the report.  Now, in respect of meetings with other expert  witnesses, and I'm going to come to this in a little  more detail when I conclude, my lord.  But, in my  submission, when one or two or three experts sit  down, with or without anyone else, to discuss the  substance of their report, to discuss what their 9300  Submissions by Mr. Willms  1 report might contain, to discuss what they might  2 report on, that is not -- that is a classic area  3 where the privilege is waived under what Mr. Justice  4 Finch said, and there is no fairness in protecting  5 that.  There is no fairness in protecting the fact  6 that Dr. Gottesfeld met with Susan Marsden, that Dr.  7 Mathewes met with Susan Marsden to discuss where  8 their expert reports would intermesh.  9 THE COURT:  Even if they decided upon a plan that was later  10 totally abandoned as unworkable?  11 MR. WILLMS:  My lord, that is where I draw the distinction  12 between something that is part of advancing the  13 case.  And I think a perfect example is Dr.  14 Gottesfeld's record.  Dr. Gottesfeld was initially  15 asked to look for two old landslides.  One wasn't  16 old enough and that's not in his report.  The other  17 one is old enough and it is.  And on that version,  18 in my submission, we wouldn't have known about the  19 other part and why the other part wasn't in anymore.  20 Now, I think the reason why something is out  21 is just as important as the reason why something is  22 in, in my submission.  Especially when you have a  23 bunch of experts in a room doing whatever they're  24 doing.  I don't know.  I haven't seen any minutes of  25 any meetings with Ms. Marsden.  But the fact that we  26 can all think of various things that could have  27 happened, maybe they didn't, but that doesn't go to  28 whether or not the documents should be disclosed.  29 It goes to whether or not the document is any use in  30 testing the credibility of a particular witness.  31 But that decision, my lord, in my submission is for  32 opposing counsel on whether it's useful in testing  33 credibility.  That's not for the party presenting  34 the witness and the party who is waiving the  35 privilege.  36 The second document that my -- that I've  37 referred to on page 4, my lord, is tab 3.  That's  38 the memorandum from Mr.  Rush to Mr. Overstall.  39 It's the memorandum that was ultimately forwarded to  40 Dr. Gottesfeld.  Each of the extracts that have been  41 blacked out are related directly to the substance of  42 the report.  Now, certainly they say:  This is a  43 good report.  We like the report.  But in my  44 submission, my lord, the fact that it may not be  45 very useful in cross-examination isn't the test.  46 What the test is is:  Is it unfair to disclose the  47 document in all the circumstances of the case.  Now, 9301  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. WILLMS:  this document was sent on to the expert.  Who knows  what part the document played in the formulation of  the expert's opinion?  But the ability to test what  part the document played in the formulation of the  opinion is the reason why fairness, in my  submission, would not protect this from disclosure.  It would require disclosure if it's been passed  along to the witness.  I'm jumping around a bit, my lord, because I  want to keep with the written outline as closely as  I can before I get back to the other documents that  my friend referred to.  Tab 6 is the next one under  paragraph C.  All of the blacked out portions of tab  6, my lord, relate to the evidence or the proposed  evidence of the witness.  And, in fact, the blacked  out portions starting at the bottom of page 1 of the  letter and over to page 2 are really a discussion on  whether or not Dr. Gottesfeld is the appropriate  person to give certain evidence about how the adaawk  is linked or the adaawks may be linked to the  landslide which he was told to investigate.  Now,  that is the category that I described earlier of  what is not part of -- which has been part of a  draft which explains why part of a draft is changed.  This letter came after the first draft, and it  explains why certain aspects of the first draft have  been changed.  Now, in my submission, that goes right to the  report.  There is no doctrine of fairness that would  require this remain protected.  It doesn't tip  anyone's hand as to who they are going  cross-examine.  It doesn't tip anyone's hand as to  rebutting the other party's case.  It doesn't give  anything away in terms of my friend's case.  The  opening remark she made when Dr. Gottesfeld was led  is:  These are going to corroborate the adaawk.  So  there is no secrets they are being protected.  Tab 10, my lord, which is the memorandum from  Dr. Pojar to Mr. Overstall is a little different.  And the reason it's a little different, and I've  advised my friend of this by letter, is set out in  the three ring brief that I handed up to your  lordship starting at tab 2.  And at tab 2 Mr.  Pojar --  Tab 2 is blank in my book.  Yes.  Tab 2 is a letter asking Mr. Pojar about  communications he has had with Mr. Overstall.  It is 9302  Submissions by Mr. Willms  1 a letter from counsel for the defendant to Mr. Pojar  2 inquiring as to the communications that he's had  3 with the defendant -- sorry, with the plaintiff.  4 THE COURT:  Yes.  5 MR. WILLMS:  Now, the reply is at tab 3, my lord.  And the  6 important part of the reply is on page 2, and I'll  7 wait if your lordship.  8 THE COURT:  Well, unfortunately my tab 3 is what you just gave  9 me, so now I don't have tab 3.  Maybe it's at 4.  10 Tab 4 should be at -- yes, it is.  11 MR. WILLMS:  This is the reply from Mr. Pojar, and in his  12 reply --  13 THE COURT:  What's a "drop point"?  14 MR. WILLMS:  I suppose maybe that's out of Gorky Park or  15 something.  John Laquaray (sic).  It's that  16 paragraph on the second page, my lord.  17 THE COURT:  Yes.  Yes.  18 MR. WILLMS:  In my submission, my lord, based on that Mr. Pojar  19 can by no stretch be termed part of the work product  20 of the plaintiff's confidential advisor as something  21 privileged when the witness has taken the stand.  22 Dr. Pojar has made it crystal clear that all that he  23 is doing is dispensing information as available and  24 as requested.  There is nothing privileged about  25 that at all.  26 And, in fact, there is a serious question  27 whether or not any information or any correspondence  28 to Mr. Pojar which is also copied to an expert is  29 privileged as well.  And if the document is shared  30 outside the work product privilege area, the  31 privilege is waived.  But, in my submission, based  32 on Dr. Pojar's only description of his  33 communications with Mr. Overstall, there can be no  34 claim to privilege over portions of Dr. Pojar's  35 communications which are passed along to any  36 witness.  He is simply dispensing public  37 information.  In fact, it may well be the facts on  38 which the opinions are based.  I don't know.  I  39 haven't seen it.  40 Now, the December 20th letter which I referred  41 to on page 4, my lord, I haven't seen that.  All I  42 can do is assert the general argument that I've made  43 on the previous page.  This is a letter from Mr.  44 Overstall to Ms. Haeussler of December 20th.  4 5 THE COURT:  Yes.  46 MR. WILLMS:  I don't know what the contents of that are, but I  47 suggest that if it relates to cross-examination 9303  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. WILLMS:  THE COURT:  MR. WILLMS:  THE COURT:  MR. WILLMS:  THE COURT:  MR. WILLMS:  THE COURT:  MR. WILLMS:  only, if it relates only to rebutting the opposing  party's case --  The problem is these things seldom relate to things  like that.  They may relate to all sorts of things.  That may be.  They may relate to all sorts of  things.  It may be that whole paragraphs relate to  something else, and the communication that my friend  has suggested where that is the relevant part of the  communication can be blacked out.  Thank you for  your comments on the report of Doctor X, we will use  those in cross-examination or something like that.  That would be -- fairness requires that that  wouldn't be disclosed, and it may require blacking  out portions of correspondence which is related to a  number of different things.  But the principle, my lord, in my submission,  is not a complicated principle.  And that is that if  it's related only to cross-examination of another  witness or only to rebutting the allegations made by  the other party, and is unrelated in any way to the  report, then fairness requires that it not be  disclosed.  But in all other cases, the error should  be on the side of providing, since the witness is  brought to court as being truthful, honest,  independent, unmoved by irrelevant aspects, unswayed  by counsel's views, standing firm on his or her  opinions, --  But that's not the way the world works, Mr. Willms.  That's what Mr. Justice Finch said in his judgment.  Well, he is a very nice young man and hasn't lived  long enough to appreciate that that's not the way  the world works.  Well, my lord --  That's not the proper categorization -- I'm sorry,  that's not an accurate characterization of expert  witnesses today.  My lord, I suppose the difficulty with the  characterization of what an expert witness is today  is unfortunately too much an advocate.  Way too much.  That's what is all the trouble.  And that gets back to the point that I made at the  very opening in referring to your lordship in  Sengbusch, and that is  that experts are scientific  or technical people, or at least they are supposed  to be.  And as long as they are confined to their  area of scientific and technical expertise, as long  as counsel doesn't share strategy with the witness, 9304  Submissions by Mr. Willms  1 as long as counsel doesn't sit down and have these  2 sessions, then the witness will be a true expert  3 witness.  4 THE COURT:  Long ago Mr. Justice Coady gave us a lecture and  5 told us that it was our responsibility to thoroughly  6 familiarize ourselves with the experts and their  7 reports.  We were expected to sit down with experts  8 and become a master of that particular issue.  Now,  9 how do you reconcile that -- if that's a good way  10 for counsel to practice, how do you reconcile that  11 with what you are now saying?  12 MR. WILLMS:  My lord, the reconciliation of that is first of all  13 there is nothing in the importing of the discipline  14 to counsel, in my submission, that when the expert  15 takes the stand is going to be privileged.  In other  16 words, as a general topic of information.  It's  17 going the other way.  It's the communications.  It's  18 the response to communications.  It's coming from  19 counsel that is the difficulty and that has proven  20 to be it the difficulty.  And that's the difficulty  21 that, in my submission, Mr. Justice Finch sought to  22 remedy in Phillips, Barratt.  23 Now, I am mindful, my lord, and there are  24 difficulties that that decision creates.  It does  25 change the way and it probably changes the way that  26 90 per cent of expert evidence is led or more.  But  27 as your lordship pointed out, it's a reaction to a  28 problem of experts.  And in the recent decisions in  29 Emil Anderson, a problem of experts coming in and  30 giving argument dressed up as opinion rather than  31 true scientific or technical expertise.  It's just  32 another method to allow counsel to get at that in  33 the true adversarial spirit.  Because if it weren't  34 for that, my lord, there would be no way to touch  35 it.  There is no way to effectively deal with  36 argument disguised as opinion unless you can get  37 into how it was disguised.  38 THE COURT:  Well, I don't have any difficulty with the — with  39 going into how an expert's report came to be  40 prepared or how he came to reach his opinion, that  41 is to know who he talked to about the subject matter  42 and what the course of his opinion development was.  43 That seems to me to be a legitimate subject for  44 cross-examination.  What troubles me is when you  45 start involving counsel because you're driving  46 lawyers into depriving clients who can't affored to  47 retain a separate set of experts or for the lawyer 9305  Submissions by Mr. Willms  1 to retain another lawyer, that's what the English  2 did because counsel didn't talk to the experts, the  3 solicitor did.  Now, certainly we don't want to  4 drive our public to a second layer of expenses?  5 MR. WILLMS:  My lord, on the point of second layer of expense,  6 where the distinction is drawn between the expert as  7 a true confidential advisor, and I don't mean to be  8 exhaustive in the two-point list that I gave to your  9 lordship, one comes from what Mr. Justice Finch  10 says, Land one comes from what I'm suggesting today.  11 But even with a single expert under Mr. Justice  12 Finch's judgment in Phillips, Barratt, it is  13 possible to ensure that the confidential advisor  14 aspect of the witness is as little blurred as  15 possible with the opinion-giving aspect of the  16 expert.  And to the extent that it is blurred, then  17 it's counsel that have to assume the responsibility  18 for doing that.  19 But that, in my submission, my lord, is not an  20 insurmountable problem for counsel.  It's a  21 difficult, but it's not insurmountable.  It maybe  22 changes the way counsel have been retaining experts  23 in the past and dealing with them, but it's an  24 answer to a situation which had gone too far.  And,  25 in my submission, it is possible to do it.  It is  26 harder on the lawyer, but that's a burden that the  27 lawyer should assume.  28 My lord, any of the lines that my friend  29 suggests, each of them are so fraught, and the one  30 that -- I think the first one that my friend pointed  31 out to you was at tab 8 of her documents.  And on  32 this one, and in particular the second paragraph,  33 describing the further work on describing the  34 biogeoclimatic zones that I think my friend said  35 something about the overall trial plan, you know,  36 thought processes of witnesses.  37 THE COURT:  Yes.  38 MR. WILLMS:  Well, the fact is that on the very next page the  39 report that is being referred to in that paragraph  40 on biogeoclimatic zones is sent to the witness,  41 that's the Haeussler report.  It's the one in the  42 last paragraph where Mr. Overstall says:  I've sent  43 the report along, that too may be helpful.  44 Now, on the suggestion that I made, my lord,  45 there is no difficulty drawing any dividing line  46 between what Mr. Overstall says on the last page and  47 what he says on the first page.  It's all disclosed. 9306  Submissions by Mr. Willms  1 THE COURT:  But there is nothing to tell me with any certainty  2 that the first sentence of paragraph 2 is --  3 constitutes the Haeussler report that was provided  4 in the last paragraph and nothing else.  5 MR. WILLMS:  Well, it may well be the communication with Mr.  6 Pojar as well.  7 THE COURT:  Well, maybe a number of other things.  There may  8 have been a huge amount of matters on that area.  9 Why shouldn't that be confidential until a report is  10 furnished and then go through the same process  11 again?  12 MR. WILLMS:  My lord, if there were no biogeoclimatic zone  13 reports forwarded to the witness and simply the  14 reference here to that, then that's one thing.  Then  15 maybe fairness requires that since this is going to  16 be perhaps the cornerstone of a response of the  17 plaintiffs to some allegation of the defense that it  18 would be unfair to disclose it.  But we all know  19 that biogeoclimatic evidence is going to be led in  20 this case.  The reports have all been forwarded.  21 How they link together is what these documents tell  22 opposing counsel.  And how experts have either  23 discussed points with each other, changed their  24 reports or not changed their reports in response to  25 that.  26 And that really gets me, my lord, to the last  27 point which I think is what my friend described as  28 the reluctance to disclose the legal team, who the  29 legal team was.  In my submission, where the legal  30 team is made up of experts, and they all sit around  31 at a meeting and discuss how they're going to divvy  32 up proving parts of the case, for example, and whose  33 going to do what and discuss each other's drafts, in  34 my submission, that's waived when the witness takes  35 the stands.  There is no fairness in protecting that  36 because that comes the closest, in my submission, to  37 putting together the final argument in advance when  38 you have the advantage of being there with the  39 witnesses who are going to say the evidence that  40 will fit right into the final argument.  There is no  41 obligation, in my submission, to disclose to an  42 expert witness where that witness' evidence fits in  43 with the overall game plan.  And if counsel does  44 that, and if counsel let's the witness know where  45 his evidence fits in, who knows what influence that  46 will have on an expert's evidence.  You are the only  47 witness that can give us this evidence, and if you 9307  Submissions by Mr. Willms  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MR. WILLMS:  THE COURT:  MR. WILLMS:  don't give us this evidence our case is doomed to  failure.  Now, under Mr. Justice Finch's ruling, and in  my submission re Hansard Spruce Mills, there is no  escape hatch, my lord, from that case.  The case is  binding.  Mr. Justice Finch explained what he meant  in the second Reasons for Judgment.  The privilege  is waived.  And it is fairness and consistency that  is the test of whether or not other documents which  are unrelated to the report and the evidence need  not be disclosed.  But, in my submission, that's the  dividing line.  And as I said, I've given you two  examples.  If I may have a moment.  My lord, it is rule  26(12) :  "Where, on an application for production of a  document, production is objected to, the court  may inspect the document for the purpose of  deciding the validity of the objection."  Yes.  It is very difficult, my lord, to make submissions  generally.  In all of the submissions in respect to  the documents that my friend has blacked out, it is  my submission that nothing that has been blacked out  would be protected by fairness from disclosure.  There may be other documents that my friend has and  different reasons advanced for protecting them, but  the fact that it is part of work product is exactly  the privilege that is pierced and waived under  Phillips, Barratt.  Now, the last point, my lord, you asked about  agent.  Yes.  There is a case in my friend's book of authorities  called Steeves v. Rapanos which is at tab 8. And on  the point that I'm going to refer your lordship to,  there are two holdings in the case. One was  reversed on appeal, but one wasn't. The holding in  the case that was not reversed on appeal is set out  at the bottom of page 63 under "Law".  "That principle protects from inspection  information obtained from a person by his  solicitor or his agent or by the agent of  the solicitor where litigation is  anticipated or has commenced." 930?  Submissions by Mr. Willms  1  2 Now, that extends the work product protection to an  3 agent.  But there is an important caveat for how far  4 the protection goes, and this refers directly to Mr.  5 Overstall, any communications with Mr. Overstall.  6 And that is set out -- the conclusion is at the last  7 page.  It's a test that your lordship may have heard  8 before, the dominant purpose test.  But on the very  9 last page, on page 75 there are two conclusions that  10 Mr. Justice Bouck comes too.  Conclusion A was the  11 conclusion that was reversed by the Court of Appeal.  12 Conclusion B was confirmed.  There is Voth Brothers  13 and a number of other cases that come to the same  14 result.  And that is the burden is on the party  15 claiming privilege over an agent's communications to  16 show that the dominant purpose for acquiring the  17 information was for use in litigation.  18 Now, insofar as the first two witnesses that  19 have taken the stand, the evidence shows, for  20 example, with Dr. Gottesfeld -- and this is the  21 letter, if I can find this.  Yes, it's the July 8th  22 letter at tab 1 of my friend's book.  This is the  23 letter that sets out that Mr. Overstall wants a  24 report from Dr. Gottesfeld.  And he says this in the  25 second paragraph.  Yes, it's in both letters blacked  2 6 out.  27  28 "The purpose of this work would be to  29 corroborate certain events recorded in the  30 Gitksan oral history and which may have left  31 some trace in the recent geological deposits  32 of the area.  The information may be used by  33 the Gitksan and Wet'suwet'en chiefs in their  34 aboriginal title action..."  35  36 Now, in Steeves v. Rapanos the adjustor swore an  37 affidavit saying that the -- he believed that the  38 matter would likely lead to litigation and the  39 statements would aid in the conduct of litigation.  40 That was held by Mr. Justice Bouck and the Court of  41 Appeal to not be enough, to not be the dominant  42 purpose.  Your lordship has seen both of the  43 contracts of Dr. Gottesfeld and Dr. Mathewes with  44 the Tribal Council.  Both contracts speak of advice  45 to legal counsel as other support.  Secondary, not  46 the primary purpose of the reports that are being  47 sought by the Tribal Council.  So that from the 9309  Submissions by Ms. Koenigsberg  1 documents themselves, at least for the first two  2 witnesses, it appears that the dominant purpose of  3 the creation of the document was not litigation, but  4 to provide information on the history in one  5 instance in respect of the adaawk, and that it was  6 only a secondary purpose for the contemplated  7 litigation.  8 So that, I think, that answers your lordship's  9 question on how far the protection goes, and that is  10 how far it goes.  It's my friend's burden, she has  11 got to show that anything that Dr. Overstall or Mr.  12 Overstall wrote to anybody or requested from anybody  13 or got from anybody was for the dominant purpose of  14 anticipated litigation.  15 Now, unless your lordship has any questions,  16 those are all my submissions.  17 THE COURT:  Thank you, Mr. Willms.  Ms. Koenigsberg.  18 MS. KOENIGSBERG:  My lord, I come at this problem slightly  19 differently from my friend.  But before I get to  20 what I'm going to say, I'll tell you where I'm  21 going.  In my submission in balancing -- and that is  22 the act that we are doing here, balancing the  23 protection of counsel's brief from proper disclosure  24 of documents in relation to an expert where I would  25 submit the court should come down when it gets to  26 the line of having to decide and exercising it's  27 discretion, it is to protect counsel's brief.  28 Having said that that's where I'm going, in my  29 submission where one starts is to look at the  30 context for making that decision.  The context here,  31 of course, is in relation to admissibility of expert  32 reports and expert evidence.  That, in itself, is  33 admissible only usually as an exception to the  34 hearsay rule.  Not for every aspect of an expert's  35 evidence, but usually it is as an exception.  I  36 think that Wigmore in an excerpt which I believe my  37 friend Mr. Willms included in the book that he  38 handed up to you in the first tab.  He handed to you  39 a book called "Authorities Respecting Opinion  40 Evidence".  41 THE COURT:  Yes.  42 MS. KOENIGSBERG:  It's a black binder.  And at tab 1 he has  43 excerpted out Wigmore's statements on the admission  44 of learned treatises.  It really has to do, in my  45 submission, with the problems and the admissibility  46 of expert evidence.  And it is at page 6 that I  47 would ask you to have record.  He is dealing with -- 9310  Submissions by Ms. Koenigsberg  1 now this is in the context, he is dealing here with  2 texts, but in my submission the principles are the  3 same.  Under 1692, and then (a), he is dealing with  4 the issue of Trustworthiness, and he says:  5  6 "There is no need of assuming a higher degree  7 of sincerity for learned writers as a class  8 than for other persons; but we may at least  9 say that in the usual instance their state of  10 mind fulfils the ordinary requirement for the  11 hearsay exceptions, namely, that the declarant  12 should have 'no motive to misrepresent'.  They  13 may have a bias in favor of a theory, but it  14 is a bias in favor of the truth as they see  15 it; it is not a bias in favor of a lawsuit or  16 of an individual.  Their statement is made  17 with no view to litigation or to the interests  18 of a litigable affair."  19  20 THE COURT:  But that's simply not true, is it?  21 MS. KOENIGSBERG:  Well, in my submission, not only is it true as  22 a test for trustworthiness, it should be true.  23 THE COURT:  Well, we all know it should be true.  24 MS. KOENIGSBERG:  Well, in my submission, what we are dealing  25 with here is what evidence is a court going to  26 admit?  And, secondarily, what evidence is a court  27 going to accept and give weight to?  And then what  28 considerations should the court have in addressing  29 that issue of weight because ultimately that's what  30 the disclosure of the documents that we're talking  31 about comes down to.  It comes down to full  32 opportunity for cross-examination on credibility of  33 expert evidence.  And the independence of an expert  34 witness is the essential aspect of the evidence to  35 give it full weight.  36 That's not to say, my lord, that you couldn't  37 have an expert who has been a full advocate on  38 behalf of a party and not -- and that you would find  39 that you could not accept their scientific work.  I  40 think that your lordship, after having heard a test  41 of how that work was arrived at, might very well  42 accept it.  It may be good science.  43 But, in my submission, the very reason why you  44 should allow that expert to testify, and Mr. Willms  45 has alluded to this, we should only be hearing in a  46 courtroom, in my submission, the opinions of experts  47 if their opinions are arrived at through a process 9311  Submissions by Ms. Koenigsberg  1 which is not easily understood by your lordship.  If  2 that's the case, and if that is the basis for the  3 admissibility of an expert's report or an expert's  4 evidence, then surely your lordship is also robbed  5 of your ability to fully assess the credibility of  6 that expert's evidence because you don't have the  7 same tools for testing it that you do when a witness  8 is testifying to something which may be within your  9 experience.  10 Therefore, their independence is relevant to  11 testing the methodology used and the things that are  12 included and not included.  Having tested it, it may  13 be good science and, in my submission, then as to  14 how helpful it is in deciding the issues in a case.  15 The fact that that person may be strongly affiliated  16 with one party or another becomes irrelevant to the  17 actual usefulness of that evidence.  18 THE COURT:  Well, the converse is true as well, is it not?  19 MS. KOENIGSBERG:  Yes, it is.  20 THE COURT:  The witness may not be independent, yet his evidence  21 is good science.  22 MS. KOENIGSBERG:  Oh, I'm sorry, I meant — I misspoke myself if  23 I said the opposite.  That's exactly what I was  24 trying to say.  In my submission, ultimately your  25 lordship has to either accept the science or reject  26 it.  You don't have available to you all of the  27 arsenal usually available to a judge to determine  28 whether that is good science or bad science because  29 one of the very reasons that you're allowing that  30 evidence in is because it's outside your common  31 experience.  Therefore, you have to have some basis,  32 and a very full basis, for testing it outside the  33 essence of its expertise, and it is credibility of  34 the science.  And in my submission, that's exactly  35 what Wigmore is talking about in this section.  If  36 there is detectable and persuasively a bias in  37 favour of a lawsuit or of an individual, that's very  38 relevant to the assessment of the validity of the  39 opinion.  40 If we go down to even (b) under that section  41 of General Principles, Trustworthiness:  42  43 "The writer of a learned treatise publishes  44 primarily for his profession.  He knows that  45 every conclusion will be subjected to careful  46 professional criticism, and is open ultimately  47 to certain refutation if not well founded; 9312  Submissions by Ms. Koenigsberg  1 that his reputation depends on the correctness  2 of his data and the validity of his  3 conclusions; and that he might better not have  4 written than put forth statements in which may  5 be detected a lack of sincerity of method and  6 of accuracy of results."  7  8 If we just take that out of the context of a learned  9 treatise because we are talking here about published  10 material where the whole spectrum of professionals  11 will be testing the methodology, and we are back  12 into a courtroom where evidence is being given, at  13 that point in time, from unpublished work and  14 perhaps unpublishable work, and we are going to  15 accept it as good or bad science, we are going to  16 try and test it.  The only way we have of testing it  17 is to go at:  Is there a motive to misrepresent?  If  18 there is not, it's either good or bad science for  19 another reason, but that is our primary tool.  The  20 independence of the expert in the way he applies his  21 science is crucial, in my submission, to be tested.  22 Having said that as the context in which, in  23 my submission, we have to look at disclosure of  24 counsel's brief because it is part of counsel's  25 brief being disclosed that we are really talking  26 about.  It has been posed that that throws up the  27 problem of:  Will you then have two sets of experts  28 or intercede a solicitor between the barrister and  29 the witness.  And, in my submission, that gets you  30 past the problem, but that's not the only solution.  31 All of us, I am certain, in preparation for a  32 case of this magnitude have had available to us  33 individuals of varying numbers with expertise in a  34 variety of areas.  In some cases, for all of us,  35 they may be have become what we could call members  36 of our litigation team.  They may be experts.  They  37 may have put in reports.  Until the time that we  38 decide to put them forward as experts for the court  39 to accept their opinions, everything that they say  40 to us is privileged.  We then make a decision to put  41 them forward.  It surely is part of counsel's  42 responsibility and part of counsel's judgment as to  43 how persuasive the independence of that expert will  44 be given that they have participated as part of a  45 litigation team.  Their science, their expertise,  46 stands or falls, but it is a hurdle we put in front  47 of us as counsel that we have to get over that we 9313  Submissions by Ms. Koenigsberg  1 have subjected that individual to persuasion of our  2 point of view.  When we ask the court to accept an  3 expert as independent and trustworthy, we're saying  4 to the court:  Accept this independent person.  5 Accept this person as an expert because their  6 independence of our point of view.  7 THE COURT:  Well, surely the test for admissibility is not  8 independence?  9 MS. KOENIGSBERG:  No, I don't say —  10 THE COURT:  The test for admissibility is relevance.  All the  11 independence question does is go to the matter of  12 credibility.  13 MS. KOENIGSBERG:  I agree.  It goes to the weight.  I don't say  14 that you can't accept an expert because they are  15 part of the team.  And in this case, of course, your  16 lordship hasn't done that and couldn't do that.  We  17 had Mr. Sterritt, not only a plaintiff, a very  18 intense part of the plaintiff's case, put forward as  19 an expert in a particular area.  In my submission,  20 it was relevant and important to examine his role in  21 the totality of the plaintiff's case in evaluating  22 him as an expert.  But it didn't mean, in my  23 submission, that he couldn't be put forward as an  24 expert.  25 THE COURT:  How have we along for hundreds of years until now  2 6 when we suddenly have this whole new approach?  27 MS. KOENIGSBERG:  Well, in my submission, my lord, there are two  28 things.  Number one, I don't think we can accept the  29 proposition that we have gotten along for hundreds  30 of years.  If we go along -- if we read Wigmore, he  31 goes onto say -- it caught my eye because of the  32 discussion we were having -- C on page 7:  33  34 "Finally, the probabilities of accuracy, such  35 as they are, at least are greater than those  36 which accompany the testimony of many expert  37 witnesses on the stand.  The abuses of expert  38 testimony, arising from the fact that such  39 witnesses are too often in effect paid to take  40 a partisan view and are practically  41 untrustworthy, are too well know to repeat." .  42  43 THE COURT:  Can that not be exposed without going into the  44 lawyer's brief?  45 MS. KOENIGSBERG:  Yes, my lord, and without going holus-bolus,  46 in my submission, into the lawyer's brief.  Yes, my  47 lord, and that's where I fall perhaps -- well, I 9314  Submissions by Ms. Koenigsberg  1 know that in relation to some of this material I  2 fall on a different side of the line from my friend,  3 Mr. Willms.  I think that we still have to protect  4 the concept of counsel's brief.  5 THE COURT:  What was the name -- what was the name of the great  6 pathologist who so often clashed with Marshall Hall,  7 Spillsbury was it?  I think it was Spillsbury.  He  8 was a man who was in the employment of the general  9 secretary.  They were all jury trials.  Mr. Hall was  10 able to show that this learned man had given  11 evidence which led to X number of accused being  12 executed and that he was paid and worked full time  13 for the general secretary.  You don't have to get  14 into the lawyer's brief to establish --  15 MS. KOENIGSBERG:  I agree, my lord.  16 THE COURT:  — bias in some cases.  17 MS. KOENIGSBERG:  I agree, my lord.  I think when you come down  18 to the line -- first you have to get to the line, in  19 my submission, before you start leaning over it, but  20 it's where is that line.  And, in my submission,  21 that line is first of all one has to be clearly  22 inside the lawyer's brief before one says, yes, in  23 favour of protection of the counsel's brief.  24 And secondly, the thing that is distressing is  25 that, of course, there are areas in which there is  26 not only clear overlap, but in which counsel's  27 opinions are proffered and are given to an expert.  28 And, in my submission, at least technically, I agree  29 with Ms. Mandell.  I do not believe that it is  30 necessary for the reasonably fair conduct of  31 cross-examination to disclose what counsel's  32 opinions are, unless counsel's opinions are taken  33 into account, obviously, in a report.  The mere  34 advancement of counsel's opinions to an expert, in  35 my submission, does not make -- does not make it  36 necessary to disclose them, and it is highly  37 prejudicial to the administration of justice and our  38 system to disclose it.  And it's because, in my  39 submission, when thinking about how one would go  40 about exposing an area of bias, if I can put it that  41 way, that I can usually think of two or three ways  42 that it is going to come out without having to go  43 that far into counsel's brief that I say it's  44 unnecessary to so disclose it and the public policy  45 ought to prevent the exercise of discretion on the  46 part of the court to disclose it.  47 THE COURT:  Well, what about in the Vancouver Community College 9315  Submissions by Ms. Koenigsberg  1 case?  Surely it was necessary in that case to get  2 inside the brief?  3 MS. KOENIGSBERG:  Well, it depends, in my submission, how far  4 one goes.  And in looking at the Phillips, Barratt  5 case, in the first place I start at page 296 and I  6 agree with Ms. Mandell, where his lordship said:  7  8 "His opinions and their foundation are no  9 longer private advice for the party who  10 retained him."  11  12 That waives the privilege.  And let me just find it.  13 That's at tab —  14 THE COURT:  It's tab 4.  15 MS. KOENIGSBERG:  Here, I have it.  I was just looking at the  16 wrong part of it.  It is on page 296 at the bottom.  17  18 "So long as the expert remains in the role of  19 a confidential advisor, there are sound  20 reasons for maintaining privilege over  21 documents in his possession.  Once he becomes  22 a witness, however, his role is substantially  23 changed.  His opinions and their foundation  24 are no longer private advice for the party who  25 retained him."  26  27 And if we just stop there and say just starting  28 there as the beginning of disclosure, what's  29 included in his opinions, well, I have to agree with  30 Ms. Mandell.  I don't think that that imports  31 opinions at that point in time other than that  32 expert's opinion.  So I don't think we can take that  33 line out of its context.  34 And I further, in my submission, think that  35 Mr. Justice Finch sufficiently qualified the area of  36 disclosure, that we are dealing with relevancy as a  37 test, fairness and consistency as a test.  And he  38 talks about testing his -- the experts -- his  39 consistency, reliability and qualifications and  40 other matters touching on his credibility.  41 In my submission, he takes us no further than  42 the very discussion that we're having right now.  43 That is if counsel has written to or discussed with  44 an expert whose opinions are going to be advanced in  45 the courtroom and provided that expert with  46 information, call it facts or opinions, upon which  47 the expert relies or utilizes or is influenced by, 9316  Submissions by Ms. Koenigsberg  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  then that is disclosable.  It's not relevant to the inquiry, in my  submission, that it was counsel who said it instead  of getting somebody else to say it to the expert  because it is the expert's report and his evidence  that we are testing.  And in putting the expert  forward, we waive the privilege that would otherwise  attach to what counsel says.  But, in my submission,  that waiver goes no further than those facts or that  information given to the expert which clearly  becomes part of the opinions.  THE COURT:  You mean if it's adopted or used in any way?  MS. KOENIGSBERG:  I think if it is used in any way, simply  because what is omitted can be as important as  what's in.  But I look -- if we were to take an  example --  THE COURT:  I think if you don't mind, Ms. Mandell or Ms.  Koenigsberg, I will take a short adjournment.  I  will hear your example when we resume in a few  minutes.  THE REGISTRAR:  Order in court.  Court will recess.  (PROCEEDINGS ADJOURNED AT 3:05 p.m.)  I hereby certify the foregoing  transcript to be a true and  accurate transcript of the  proceedings herein to the best of  my skill and ability. 9317  Submissions by Ms. Koenigsberg  1 LISA FRANKO, OFFICIAL REPORTER  2 UNITED REPORTING SERVICE LTD.  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  2 8 (PROCEEDINGS RESUMED PURSUANT TO A SHORT ADJOURNMENT)  29 THE REGISTRAR:  Order in court.  30 THE COURT:  Ms. Koenigsberg.  31 MS. KOENIGSBERG:  I think, my lord, we left off when I was going  32 to get to a specific example to illustrate the  33 problem.  34 If we look at Tab 3 in the documents book which  35 Ms. Mandell handed up, and it is Stuart Rush's memo,  36 and dealing with the three blacked out parts, which  37 are the second, third and fourth full paragraphs,  38 Ms. Mandell advanced that in her submission all of  39 these would not be discloseable, and in my  40 submission I agree.  41 I start from the proposition, first of all, that  42 this is a memorandum of counsel and therefore it's  43 almost, in my submission, a prima facie case that  44 should not be disclosed.  So then we come to on what  45 basis and for what reason should it be disclosed.  I  46 have to agree with Ms. Mandell that if we look at  47 the first paragraph and its contents, at that point 931?  Submissions by Ms. Koenigsberg  1 it is not abundantly clear to me that Mr. John  2 Clague's review of that report until it is given to  3 Mr. -- or Dr. Gottesfeld is relevant, because it can  4 be given to counsel, who, in my submission, can  5 review it and determine its relevance and importance  6 to them.  7 This little paragraph, however, highlights some of  8 the difficulty that we get into when we're this  9 close to the line of we are in counsel's brief.  10 There may be areas that should be disclosed.  And I  11 don't know as there's much debate that it's  12 discloseable if in fact it is used by the witness,  13 the expert witness.  I took Ms. Mandell to be saying  14 it's not discloseable because at this point in time  15 it's not -- it's not indicated that it has been used  16 by the witness and therefore it doesn't directly  17 relate to his report.  Our difficulty is that it  18 points up that it's just at this point in time that  19 we know that this particular paragraph is not in, my  20 submission, admissible.  And it's sometimes a  21 difficult judgment call to make, although in this  22 case it doesn't seem to be, as to whether it would  23 be directly relevant to the actual report.  In other  24 words, was Mr. Clague's informal critique  25 communicated to Mr. Gottesfeld in some other way.  26 But if we're just dealing with this document in  27 front of us, in my submission there's nothing in  28 that paragraph which demonstrates that it's directly  29 utilized or indirectly utilized for all that matter.  30 I would say the same thing with regard to the  31 second paragraph in question.  I think this is a  32 very good example of counsel's comment of counsel's  33 reaction to the report, and I think it's irrelevant  34 as far as the cross-examination or the testing of  35 the credibility, the independence in the value of  36 the expert witness.  I won't comment on whether it  37 goes to the credibility of counsel's evaluation.  38 And thirdly, in the last full paragraph, the part  39 that's taken out, again it is the reaction or  40 opinion of counsel and, in my submission, while it  41 may be that a witness is particularly susceptible to  42 flattery, I don't think that we can take much from  43 it.  However, I think that the part that's not  44 blacked out and thus it is agreed that it should be  45 disclosed -- and I think here we have to pause and  46 say this is counsel's brief.  It is being  47 disclosed -- "As a minor point some of the terms 9319  Submissions by Ms. Koenigsberg  1 should be explained when first used."  And then the  2 last part:  ".. but we should explain either on page  3 14 or in the references who Beta Analytic Inc. is."  4 Well, in my submission, of course that should be  5 disclosed.  It's a direct instruction, if you will,  6 to the witness to do something in regard to their  7 report.  It explains something about that report.  8 And the fact that that instruction was given by  9 counsel or counsel's agent is -- does not make it  10 privileged and does not take it out of the category  11 of things that should be disclosed.  12 THE COURT:  How did this document come to light?  13 MS. KOENIGSBERG:  I believe that Ms. Mandell disclosed this  14 along --  15 THE COURT:  It was just volunteered, was it?  16 MS. KOENIGSBERG:  — with all other documents which were in the  17 witness' file.  18 THE COURT:  It wasn't given.  19 MS. KOENIGSBERG:  It was not given ahead of time and it wasn't  20 given --  21 THE COURT:  It wasn't given.  I suppose at some stage it must  22 have got to Dr. Gottesfeld.  23 MS. KOENIGSBERG:  Yes.  I understand that Mr. Overstall sent it  24 to Dr. Gottesfeld.  If it hadn't ever got to Dr.  25 Gottesfeld, then, in my submission, it wouldn't have  26 been disclosed at this point in time.  If it got to  27 Susan Marsden's file --  28 THE COURT:  According to Justice Finch it should have been  29 disclosed whether it went to Dr. Gottesfeld or not,  30 anything in possession of the party that might  31 relate to the credibility of the witness.  32 MS. KOENIGSBERG:  I don't read that.  I believe that he's  33 confining his remarks to the witness, to the expert.  34 At least I read him that way.  I read him in the  35 context of the opening paragraph on page 296, the  36 opening paragraph, to that part where he says the  37 determining factor is when a witness becomes a  38 witness.  Before he's a witness, it's privileged and  39 so we're --  40 THE COURT:  What if he becomes a witness?  Does Mr. Justice  41 Finch confine it to -- confine the source of  42 disclosure to that of the witness?  43 MS. KOENIGSBERG:  It says that constitutes an implied waiver  44 over papers in a witness' possession.  Page 298 Mr.  45 Willms is pointing out to me.  46 THE COURT:  298 of —  47 MS. KOENIGSBERG:  Phillips, Barratt.  It's at Tab 4 of Ms. 9320  Submissions by Ms. Koenigsberg  1 Mandell's brief of authorities.  It has a clear --  2 Tab 11 of the black binder.  3 THE COURT:  Oh, I'm sorry.  What tab?  4 MS. KOENIGSBERG:  Tab 4, page 298.  Yes.  I believe again  5 he's -- if we look down at the third full paragraph,  6 he says:  7  8 "I will attempt to summarize my view of the  9 law.  When an expert witness who is not a  10 party is called to testify, or when his  11 report is placed in evidence, he may be  12 required to produce to counsel  13 cross-examining all documents in his  14 possession which are or may be relevant to  15 matters of substance in his evidence or to  16 his credibility."  17  18 And again I take that to be documents in the  19 possession of the witness.  2 0 THE COURT:  All right.  What about what Madam Justice McLachlin,  21 as she then was, sitting on S & K and Mr. Justice  22 Wallace in the Thunderbird Case?  Do they confine it  23 to the --  24 MS. KOENIGSBERG:  I believe they're in here.  Tab 9.  And was  25 there a particular -- I hadn't thought that we had  26 in the law got beyond -- I hadn't -- I mean I can  27 certainly be pointed to something I've missed, but I  28 hadn't read it.  29 THE COURT:  I hadn't read it for some time, but I thought that  30 somewhere he said it's quite a different thing when  31 the witness goes in the box.  32 MS. KOENIGSBERG:  Yes.  If I can just as a last point — I —  33 I'm afraid I perhaps got a little confused in the  34 course of the argument, my lord, but in my  35 submission there is a difference in the law on  36 what's producible pretrial and trial.  37 THE COURT:  Oh, yes.  38 MS. KOENIGSBERG:  And that all documents that were referred to  39 in the American cases are the privilege stays, in my  40 submission, until it's waived and to the extent that  41 it's waived, and it is when counsel makes the  42 decision to call a witness and tenders the evidence,  43 either by notice or by delivery of a report, that  44 the waiver occurs, and it's at that point that  45 documents are produced.  46 THE COURT:  I'm looking -- what I was thinking about was the  47 last sentence in the penultimate paragraph in the 9321  Submissions by Ms. Koenigsberg  1 judgment on page 222 where she says:  2  3 "In the event that the expert takes the  4 stand at trial, the situation respecting  5 waiver may well be different."  6  7 And I think Mr. justice Wallace says something to the  8 same effect in the Thunderbird Case.  What's the  9 difference in principle between waiver of privilege  10 for those documents that happen to be in the file of  11 the expert and similar documents or documents in the  12 same category that happen to be in the file of the  13 solicitor?  14 MS. KOENIGSBERG:  Well, I think that it's not just — it's not  15 just where the documents are.  It's what the  16 documents are about.  And if the object of the  17 exercise -- if we're waiving privilege in order to  18 fairly test the independence and credibility of the  19 witness, we start first, of course, with those  20 documents which are in the possession of the  21 witness, because we assume constructively, if not  22 otherwise, that he has taken cognizance of them.  If  23 a document is not in the witness' -- is not in the  24 witness' possession, is in counsel's brief or in  25 somebody else's brief that was once in the witness'  26 possession, then, in my submission, it's producible.  27 The test isn't is it today in the witness'  28 possession.  It is did the witness have knowledge of  29 it.  30 THE COURT:  What if there is in the lawyer's file a memo that  31 says I read Dr. Gottesfeld's report, which is  32 fantastic; it's sure a good thing he didn't know  33 about X and what he doesn't know won't hurt us?  I  34 use that language because that's exactly the  35 language that I had to contend with one time in a  36 case as counsel.  Now, doesn't that bear on the  37 credibility of -- or the reliability or credibility  38 of the expert?  39 MS. KOENIGSBERG:  No, my lord.  It bears on the credibility of  40 counsel.  41 THE COURT:  I don't know why you should say that if he has some  42 information that no one else knows about.  You're  43 saying that counsel shouldn't put the expert forward  44 on that basis?  45 MS. KOENIGSBERG:  I say that if there is a piece of evidence  46 which is beyond peradventure relevant, then counsel  47 should tell the witness.  Frankly I think it's less 9322  Submissions by Ms. Koenigsberg  1 on the credibility and much more on the judgment of  2 counsel to not tell a witness something which the  3 witness needs to know.  It probably is very much a  4 comment on the counsel's lap, inability to estimate  5 the opposition as well.  6 THE COURT:  See, I have difficulty seeing a distinction in  7 principle because of what's in the file of the  8 expert and what's in the lawyer's file if you're  9 talking about getting at the truth on the  10 independence and reliability and credibility of an  11 expert.  12 MS. KOENIGSBERG:  Well, my lord, if there's some central fact —  13 I don't know at least if I'm straining too far into  14 the abstract, but if there's some central fact  15 that's in the knowledge of counsel and doesn't tell  16 the witness and nobody else knows, then it's true  17 that the Court and everybody else will have accepted  18 something which they might not have accepted  19 otherwise.  That's in the nature of our system, in  20 my submission.  And I think counsel is, of course,  21 taking an incredible risk to -- to hide a highly  22 relevant fact.  It would be a most unusual  23 circumstance when counsel -- and we're assuming, of  24 course, that counsel has no obligation to the Court  25 as an officer of the Court to tell the Court.  We're  26 not dealing with a criminal situation or something  27 like that.  28 THE COURT:  You say there's a different rule in criminal law  29 then?  30 MS. KOENIGSBERG:  Well, I think there is.  I think, for  31 instance, if it goes to whether you're going to be  32 having somebody say something that's a lie and you  33 know it is --  34 THE COURT:  Who knows it's a lie?  35 MS. KOENIGSBERG:  Well, only counsel.  36 THE COURT:  Counsel doesn't know.  Counsel just has information.  37 MS. KOENIGSBERG:  Then I don't think you have the problem.  I  38 don't think that there is that problem.  That's the  39 escape hatch, I suppose.  But yeah.  I think that we  40 protect counsel's brief, and I think that we rely on  41 counsel's honour, integrity and judgment in our  42 system.  And, in my submission, we don't go into  43 counsel's brief without very good reason to do so.  44 And, yes, it may be that a number of facts never  45 come to light that would have changed the outcome,  46 but I -- I believe that more often than not, those  47 facts come out and that most of us who probably 9323  Submissions by Ms. Koenigsberg  1 either witnessed or had the experience of having  2 facts that we thought maybe we didn't know about put  3 to witnesses that the witness didn't know about, and  4 we take the consequences.  But I do not believe that  5 in that situation we should open counsel's brief to  6 protect ourselves from that one problem.  7 THE COURT:  All right.  So your proposition is that Mr. Justice  8 Finch's judgment is limited to the documents which  9 are in his file?  10 MS. KOENIGSBERG:  Or were in his file.  11 THE COURT:  Or were in his file.  12 MS. KOENIGSBERG:  Yes.  13 THE COURT:  What about the things that counsel had told him?  14 MS. KOENIGSBERG:  That has to be — I don't think that whether  15 it's written or oral makes any difference.  16 THE COURT:  So counsel cross-examining can effectively ask the  17 witness, well, what did my learned friend tell you  18 about this case and have counsel take off his gown  19 and put him in the witness box to refute it?  20 MS. KOENIGSBERG:  In my submission no more than it's perfectly  21 permissible, of course, to inquire into the  22 instructions given to a witness even when they're  23 given by counsel as to what your terms of reference  24 are.  And if you don't write them down, it doesn't  25 mean that counsel can ask what they are.  We're into  26 again that judgment area.  Yes.  A witness can be  27 asked -- for instance, we have, say, three drafts of  28 a report with changes in it, with changes in them.  29 Naturally counsel, opposing counsel, with due  30 preparation will inquire into the reason for the  31 changes.  The reason for the changes may very well  32 be counsel told the witness something.  Surely we  33 don't say, well, you can't ask that question because  34 it was counsel that told them.  When counsel becomes  35 the fount of facts, then there's no privilege.  36 There's a real distinction, in my submission,  37 between --  38 THE COURT:  Even if counsel got it under -- got the information  39 on a privileged basis?  40 MS. KOENIGSBERG:  Well, absolutely.  It's coming out of the  41 witness in a different guise.  The privilege is  42 waived, in my submission.  The witness is giving  43 that evidence.  He may not be saying I say X because  44 counsel told me and counsel got it from a privileged  45 source, but he's giving --  4 6 THE COURT:  You may not have to go that far.  And it's never  47 that simple.  It may be that counsel told me 9324  Submissions by Ms. Koenigsberg  1 something, yes.  He told me some things.  What did  2 he tell you?  He told me this.  Did you use up your  3 report?  No, I didn't.  4 MS. KOENIGSBERG:  In my submission you wouldn't be able to get  5 at it that way.  The only way you can get at it is  6 to inquire the reason for a change, and then if the  7 witness volunteers that the reason for the change is  8 because counsel told him something, we need to know  9 what it is that counsel told him in order to find  10 out about the change.  We don't need to know  11 everything else counsel told him, but we do need to  12 know the things that counsel said which had a direct  13 bearing on what is in the report on the witness'  14 opinion.  15 It's no different, in my submission, than the  16 problem we actually have with -- which has been  17 partly canvassed in the codification project and Mr.  18 Grant.  Mr. Grant is counsel in this case, and Mr.  19 Grant has participated in researching and has come  20 up with a product, we're told.  If there are  21 interviews which Mr. Grant conducted with a witness,  22 which there is now an interview, in my submission  23 the fact that Mr. Grant is counsel is irrelevant to  24 the producibility of that interview.  But if Mr.  25 Grant gives an opinion to his clients about what it  26 means, that's privileged.  And it goes without  27 saying that these are difficult questions, because  28 they're on -- they're in the grey area.  They're on  29 the borderline.  30 But in my submission we -- we have to protect  31 prima facie counsel's brief, but we have to protect  32 the process as well and put all of the facts and  33 the -- and provide the Court with the full ability  34 to judge those facts and weigh them as well.  And if  35 that walks us into counsel's brief to the extent  36 that it's a fact or information which a witness has  37 used, then that privilege is waived when we put the  38 witness  39 forward to give the opinion.  40 THE COURT:  Is there anything different what you said as you  41 read Mr. Justice Finch's judgment from what he said?  42 MS. KOENIGSBERG:  I'm sorry.  Mr. —  43 THE COURT:  Mr. Justice Finch's judgment.  Are you saying  44 anything different from what he said?  45 MS. KOENIGSBERG:  No.  In my submission I'm not.  I might.  I  46 might come to a different conclusion faced with a  47 particular document or a part of that document. 9325  Reply by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  It's possible.  But with the principles that he set  out, no.  THE COURT:  All right.  Thank you.  Ms. Mandell?  MS. MANDELL:  My lord, I'll be brief.  It's hard to believe  there's yet more to be said about this having gone  on all day.  In answer to first Mr. Willms, who suggested that  the case law has settled that the lawyer's work  product is waived when the witness takes the stand  and that this has been decided in Phillips, Barratt,  I ask your lordship to read pages 154 and 155 of the  Nobles Case where, in our submission, the -- the  rule there cited is that the material disclosed in  that case did not fall within the core work product  rule, and the waiver was held to apply only to  matters covered in his testimony.  And I say that  the broad statement made by my friend is not what  can be taken from the Nobles Case or which could  have been taken by Mr. Justice Finch in Phillips,  Barratt.  You're saying page 154?  154 and 155.  It's at Tab 11.  Yes.  I have it.  THE COURT:  MS. MANDELL  THE COURT:  MS. MANDELL:  Q   And  I say that this is  this is the quote I read:  "Disclosure of an attorney's efforts at  trial, as surely as disclosure during  pretrial discovery, could disrupt the  orderly development and presentation of  his case. "  This is with respect to the documents.  Then at the top of the next full paragraph:  "The privilege derived from the work product  doctrine is not absolute.  Like other  qualified privileges, it may be waived.  Here respondent sought to adduce the  testimony of the investigator and contrast  his recollection of the contested  statements with that of the prosecution's  witnesses.  Respondent, by electing to  present the investigator as a witness,  waived the privilege with respect to  matters covered in his testimony." 9326  Reply by Ms. Mandell  1 And I say that's really the rule of the case.  It  2 doesn't say with respect to the work -- the product  3 of the -- of the work, and I don't think then that  4 Mr. Justice Finch's rule could have gone further  5 than Nobles, upon which he relied.  6 Now, your lordship asked my friend, Ms.  7 Koenigsberg, regarding the extension of the rule  8 into solicitor's files.  And if I could turn your  9 lordship to Mr. Justice Finch's oral judgment, which  10 is presented in Mr. Willms' material at Tab 12,  11 the -- and if I could turn you first to page 4, a  12 second category of documents which were being  13 discussed were draft reports which were prepared by  14 Mr. Walker, who's the expert.  And I'm now in the  15 second paragraph:  16  17 "... upon which Mr. Hankinson"...  18  19 which was counsel for the defendant.  20  21 "... has made handwritten notations of his  22 own."  23  24 And this was the question:  25  2 6 "Although the document or a copy of the  27 document bearing Mr. Hankinson's  28 handwritten notations were not transmitted  29 to Mr. Walker"...  30  31 And I'm going to ask you to rely upon these same  32 passages that I've emphasized.  33  34 "... he told me that he made some changes to  35 his report at Mr. Hankinson's suggestion.  36 It is a fair prima facie inference,  37 subject to rebuttal, that Mr. Hankinson's  38 notations on the draft were made for the  39 purposes of discussing the report and  40 revisions to it with Mr. Walker."  41  42 In other words, in that case there was possibly a  43 casting of the document question outside of the file  44 of the expert alone and there the test, as set out  45 by Mr. Justice Finch, was to link in some way  46 through either evidence or submissions or both the  47 connection between those notations and what may have 9327  Reply by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS. MANDELL  been put finally to the witness.  And again at page 6 --  There Mr. Justice Finch did go right into the --  into the solicitor's brief.  :  He did.  And if I can finish this, I think that it  can only be explained with reference to the evidence  or submissions where Mr. Walker had told him, or  perhaps Mr. Hankinson, that there was some  connection between these notations and the witness'  evidence, and it was on that basis that he set up a  prima facie inference, which was subject to  rebuttal, that this could possibly be material  capable of being disclosed.  And he said that also  on page 6 with respect to their drafts of reports  where there was notes.  This is with respect to the  third category of -- which is a draft of Mr.  Walker's report bearing the handwriting of one of  the defendants.  And there he said at page 6:  "I have read these notes, and I have in mind  Mr. Walker's evidence that some changes to  his report may have been suggested by Mr.  McCoy."  So on that basis he finds a connection sufficient to  the witness to compel the discovery through those  notes or the cross-examination.  And I say that in general terms it is the lawyer's  job to canvass for these connections if they exist  and that I think that in this case that Mr. Justice  Finch probably was doing nothing more than applying  the rule, which we've cited on page 11 of our  argument, that the burden of showing that the  privilege is waived or doesn't apply falls to the  party seeking production, and it appears as if he's  applied that test where he's found a connection and  therefore sought the production.  But I think in  general terms only counsel can say whether or not  there is a connection which ought to be there for  disclosure.  I'd like to next address my -- both my friend's  points, and I hope I haven't made myself not -- I  hope I haven't been unclear about this. It's not  our position that the material in the solicitor's  brief is discloseable if it's used by the witness.  It's not such a wobbly test as that. We're saying  that where the strategy or the theory of the case is 932?  Reply by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS. MANDELL  THE COURT:  MS. MANDELL  THE COURT:  MS. MANDELL  expressed, the mental impressions, the thought  processes relating to the theories of the litigation  are part of the document; that whether they're used  by the witness or not, we say that should be  protected.  We're not saying, well, if it's used --  if the thought processes of counsel are somehow  considered by the witness, that that should make  them disclosed.  It would be a rare occasion, in our  submission, where lawyer's opinions in that context  could be disclosed and if our submission is  accepted -- and we're not suggesting that the lawyer  consult the expert and say did you make use of my  thought processes in forming your opinion and on  that basis disclose or not to the other side.  What about if the lawyer says this is the crucial  point in the case; without your evidence we're not  going to succeed?  Do you say the witness can't be  asked that?  :  This is a crucial point in the case?  Especially if you add on that the fact that the  witness says that he did revise his report after  that discussion.  You don't -- if you don't bolster  up that part of your report, we're not going to win  this case.  :  I think if he says if you don't bolster up that  part of the report we won't win the case, if --  first of all, the fact that he says if you don't  bolster up that part of your report, I think feeds  into something which must be disclosed, which is the  terms of reference for the expert.  But if the -- if  counsel were to say that point is great; it's my  opinion that that's the crux of the case; without  that point we won't succeed; with it we're going to  win, if that's counsel's view, if that's his  reflection on the evidence, I don't think that's  discloseable.  But if anything flows from that, like  bolster your point, say it this way or make sure you  say it that way, whatever goes into instructing the  witness, I say that's all discloseable.  But, you see, the problem with that test is it opens  it up for cross-examination with every witness to  find out precisely what did counsel say, because you  have to know that before you can decide whether it's  relevant or not.  :  Well, I think that that's the point you raised  earlier with Ms. Koenigsberg.  If I have read the  case right -- I won't take you to it in its 9329  Reply by Ms. Mandell  1  2  3  4  5  THE  COURT:  6  MS.  MANDELL  7  8  9  10  11  THE  COURT:  12  MS.  MANDELL  13  THE  COURT:  14  MS.  MANDELL  15  16  17  18  19  20  21  THE  COURT:  22  23  MS.  MANDELL  24  25  THE  COURT:  26  MR.  WILLMS:  27  MS.  MANDELL  28  29  30  31  32  33  THE  COURT:  34  MS.  MANDELL  35  36  37  38  39  40  41  THE  COURT:  42  43  44  45  46  MS.  MANDELL  47  entirety, but I believe that the case which is cited  in our authorities at Tab 9, the S & K Processors  Limited Case, a decision of Madam Justice  McLachlin —  Yes.  :  -- deals with that point to this extent.  And, my  lord, I won't take you into it now, but I believe  that if the matter is the subject of privilege, the  privilege isn't waived by the expert having taken  the stand and --  No.  The privilege is waived by the statute.  :  That's right.  The privilege that she was talking about.  :  That's right.  That's right.  So I'd say that if  the expert could be -- if the material is  discloseable, then the expert could be questioned  upon it.  But if the material is not -- if there's a  privilege with respect to that material, then that  privilege arguably would be the subject of an  objection when the question is raised to the expert.  Does anyone have the citation for the Thunderbird  Case?  :  I thought it was contained in the Phillips,  Barratt Case.  Is it?  It's in Phillips, Barratt.  :  You can see the citation at page 290.  It's the  second-to-the-last case cited.  And in that case if  I can -- if I can advance it, I don't think that  Madam Justice McLachlin really did get into the  problems that you're being asked to face now about  the witness taking the stand.  She just said that --  She was entirely talking about pretrial disclosure.  :  And she did say, as you mentioned, that if the  witness takes the stand, the case may very well be  different.  And I think it is, because I think at  that point documents relevant for the purposes of  cross-examining on credibility become the issue and  not simply the facts upon which the opinions are  based.  I think the thing I am most troubled about, and I  just touch on it, if it's open for investigation to  determine what was said, well then every -- every  witness can be cross-examined about his  conversations with counsel.  :  See, but I think the only way to really get at the  truth of it, which is the unfortunate part of it, is 9330  Reply by Ms. Mandell  1 to put counsel on the stand and say what did you say  2 and what did you mean.  You're not going to do that.  3 THE COURT:  We don't want that.  4 MS. MANDELL:  So, in my submission, the extension of that is to  5 say, look, there's certain areas which the Court is  6 not going to be privy to.  We're not going to be  7 able to cross-examine this witness on what counsel  8 said to him or her regarding that counsel's mental  9 impressions or thought processes relating to the  10 theory of the case.  That's not going to be  11 something which the Court has access to.  And I say  12 that with respect to the examples provided by my  13 friend, I don't see how a reasonably skilled lawyer  14 with all that's available to them can't get at the  15 kinds of things which Ms. Koenigsberg raised, that  16 is the motive of the witness or the -- what promoted  17 changes in the drafts of the report or what  18 influenced different conclusions.  All that, in my  19 submission, can be had without reference to those  20 questions regarding what counsel's impression of all  21 of this was.  22 And, you know, my friend made reference to Dr.  23 Gottesfeld, who was asked to look at two landslides  24 and reported in his evidence primarily with respect  25 to one.  Well, my friend knows that there was  26 reference to two landslides, because it was  27 disclosed in his contract.  And so he knows that.  28 And he reads the report and he's -- it's open to him  29 to cross-examine Dr. Gottesfeld as to why the report  30 went one way or another.  And certainly he didn't  31 need to know what Mr. Rush or myself or Mr. Grant  32 said to Dr. Gottesfeld about the landslides in order  33 to get at that point.  34 And I say that this is also true with respect to  35 the Dr. Mathewes and Mr. Overstall correspondence,  36 where a report was sent to Dr. Mathewes, which is  37 reflected in the correspondence, regarding Miss  38 Haeussler's work.  Now, it would certainly be open  39 to my friend knowing that to cross-examine Dr.  4 0 Mathewes about that.  Dr. Mathewes or my friend  41 don't have to join issue with what was told to Dr.  42 Mathewes about what the plaintiffs have done in  43 learning about the archaeological testing of certain  44 Adaawk, which is the part of the report which was  45 excluded, to get to his credibility.  And I say that  46 all of what he raises can be had through normal  47 cross-examination techniques which were available 9331  Reply by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT:  MS. MANDELL  THE COURT:  before Phillips, Barratt was decided.  If I can just lastly comment with respect to Mr.  Pojar.  Yes.  It's true that Mr. Pojar has said to  my friend that he sees himself generally available  to answer anybody's questions, but in this case he  was being asked to evaluate the evidence of the  plaintiff, and he does say in his letter if it's not  confidential, he sees it as open.  We weren't asking  him about what maps were available or dispensing  information in the public domain.  We were exposing  him to the litigation and to the evidence and asking  him for his evaluation of our theory.  And I'd say  that in that instance it's not a public domain  question and that it falls into Mr. Pojar's  explanation of material which he would regard as  confidential.  Certainly we do.  As for Mr. Overstall, being primarily in his  purpose concerned with the litigation, I don't know  that I can say anything further.  I think my friend  said the test, and I really think the only -- if  your lordship has dispute or doubt about it, the  only way that I can see resolving it is with respect  to evidence, some form of affidavit which attests to  what the situation of Mr. Overstall is if that  becomes a point of dispute.  Is he going to be a witness?  :  Mr. Overstall.  No.  I can't -- I would be doing  what my friend was, which is giving you evidence.  I  don't think I can really do that.  Right.  All right.  Thank you.  Well, I think that I  would like to -- I'm certainly going to reserve on  this because it's a matter of great importance, not  just to this case but to much other litigation, and  it is a matter of considerable distress to the bar.  And I will deal with it as quickly as I can.  I wonder if it's convenient to ask counsel for  their views on a ruling that says that the witness  must produce upon entering the witness box and  before, if counsel are being civilized to each  other, all the documents on his file which relate in  any way to the preparation of his opinion, and that  he may be asked in cross-examination about any  conversations he had with any persons that caused  him to include or to change any of his opinion, but  that with respect to counsel -- I'll put it another  way -- but that with respect to documents which are  in the file and which 9332  Proceedings  1 convey what I will generically call strategic  2 information, it may be blacked out and the original  3 given -- if pressed, the original given to the trial  4 judge for him to decide whether in the context of  5 the case that information should be disclosed as  6 bearing upon the independence and therefore their  7 credibility and/or the reliability of the witness.  8 And further, that as to conversations with  9 counsel, which is in the same general category but  10 very different from correspondence with counsel, the  11 witness may be asked whether there were such  12 conversations and that before the contents of the  13 conversation need to be disclosed, the trial judge  14 will have to exercise his common sense, jurisdiction  15 and decide whether in the context of the case it is  16 one where discussions with counsel should be  17 disclosed, should be required and disclosed.  18 Now, that's a large and completely unconsidered  19 reaction to all that I have heard today and I don't  20 know if it's fair for counsel to respond now or  21 whether they would like to do so first thing  22 tomorrow morning.  23 MS. KOENIGSBERG:  My lord, I don't — I certainly don't mean to  24 be presumptuous, but with regard to the last matter  25 which you referred to where you said and witness  26 could be asked the contents --  27 THE COURT:  Before he's asked the contents.  28 MS. KOENIGSBERG:  Before he's asked the contents.  And before  29 he's asked the contents.  I wonder if there's one  30 matter that could be put there:  And if the witness  31 altered or changed his report in any way as a result  32 of those conversations, then your lordship could  33 consider that.  It seems to me that there is a -- a  34 nexus there that might be --  35 THE COURT:  Well, I wouldn't have any problem with that except  36 that sometimes his conversation takes place before  37 the first report's prepared.  38 MS. KOENIGSBERG:  Yes.  39 THE COURT:  Therefore an inquiry as to alteration wouldn't carry  4 0 the day.  41 MS. KOENIGSBERG:  Or his opinion.  Yes.  I hadn't considered  42 that particular one.  Perhaps you're right.  4 3 THE COURT:  Mr. Willms?  44 MR. WILLMS:  My lord, the only part of that that — that I'm  45 wondering about is the definition of strategic  46 information.  47 THE COURT:  Well, I use that generic term. 9333  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. WILLMS:  Because, as I hope is clear from my submission, my  submissions on what is strategic information are  different than what the plaintiff considers to be  strategic information, and so I don't know what else  I can --  THE COURT:  Well, I'm only exposing counsel to some very, very  preliminary reactions I'm having.  And I haven't had  a chance to consider whether I'm saying anything  that's in contrast with what Mr. Justice Finch is  saying.  I don't think I have, but --  MS. KOENIGSBERG:  I certainly would appreciate overnight to  consider your lordship's remarks and we can perhaps  have brief submissions in the morning.  THE COURT:  I'd appreciate that very much.  In the meantime,  other things permitting, I may have a chance to do  some more work.  I may be in a position to define  that more precisely, but I am not sure about that.  Can I hear from counsel anything they want to say  about that at the commencement of proceedings  tomorrow?  MS. KOENIGSBERG:  My lord, I — I rise to bring up a problem  that we may have tomorrow.  I understand Mr. Chilton  is going to be called tomorrow morning, and I will  be doing, I guess, what we refer to it as the lead  cross-examination on Mr. Chilton.  THE COURT:  What's his discipline, please?  MS. KOENIGSBERG:  He's a climatologist.  And it's — he's  provided a food drying index.  And we have -- I  understand Mr. Grant is going to be leading that  witness.  And on -- on Friday afternoon we received  a list of documents from Rod Chilton's file, and  it's lengthy.  And in among that list are documents  which -- for which not only is no privilege claimed,  but they would appear to be the documents that we've  been asking for for some time.  And they are -- I'll  just give you a for instance -- computer printouts,  recalculations of evapotransporation.  I won't  bother you at this time with what evapotransporation  has to to with anything, but that, for instance,  along with some other documents which relate to the  data, I assume, upon which Mr. Chilton relied in  coming to some of his conclusions, and we've been  asking for them.  Mr. Grant has said in his letter,  which we just received this afternoon, that he would  have this material in the courtroom tomorrow  morning.  That's going to make it a little short.  Since I -- 9334  Proceedings  1 THE COURT:  How long will he be in chief?  Does anybody know?  2 MS. KOENIGSBERG:  An hour to an hour and a half.  It isn't a  3 lengthy report.  However, there are some -- it's  4 definitely in the area of alcoholic technical  5 scientific data.  And we have -- we had, of course,  6 provided a report which is responsive to that last  7 year and which certainly let my friends know what  8 problems we had with the methodology.  And among --  9 on that topic was we're having trouble evaluating  10 this because we don't have the data; can we have the  11 data.  But I'm getting to the fact that in Mr.  12 Grant's letter of today, he says -- this is to Mr.  13 Willms with a copy to us -- "As with the Chilton  14 file, the map overlay is in Vancouver".  And I'm  15 just wondering if -- if that file is here and if  16 the -- aside from the privileged or arguable, the  17 data could be provided to us today or tonight, very  18 soon.  That might prevent --  19 THE COURT:  Are these the overlays he's talking about?  2 0 MS. KOENIGSBERG:  — an adjournment.  21 THE COURT:  Is this what he's talking about?  22 MS. MANDELL:  I don't know.  23 MS. KOENIGSBERG:  No.  24 THE COURT:  Somebody put it on my desk, so I thought it might be  25 we have the maps.  26 MS. KOENIGSBERG:  And he certainly refers to the maps, but there  27 are, for instance, notes on potential  28 evapotransporation based on a particular formula.  29 These notes are central to one of the difficulties  30 that we thought there might be with that report.  31 THE COURT:  Well, I don't know that I can do anymore for you  32 than ask Ms. Mandell to convey your compliments to  33 Mr. Grant and -- and to tell you that it may be that  34 you're going to be in a position where you will have  35 to seek an adjournment for your cross-examination if  36 circumstances indicate that fairness would require  37 you to have such an adjournment.  I don't know if  38 there's anything more I can do.  Is Mr. Grant in  39 town, Ms. Mandell?  40 MS. MANDELL:  I wish I could be of more assistance.  He's flying  41 down today.  I don't know whether he caught the  42 early flight or the evening flight.  43 THE COURT:  Well, if the documents for which apparently no  44 privilege is claimed are here, I'm sure Ms.  45 Koenigsberg and Mr. Willms would be happy to have  46 them tonight, this afternoon or this evening if at  47 all possible.  I'll leave it to them to tell you 9335  Proceedings  1 where they might usefully be delivered.  Other than  2 that, we'll have to deal with the matter as it  3 arises tomorrow.  Thank you.  4 THE REGISTRAR:  Order in court.  Court will adjourn until 10:00  5 a.m.  6 (PROCEEDINGS ADJOURNED UNTIL NOVEMBER 8, 1988 at 10:00 A.M.)  7  8 I hereby certify the foregoing to be  9 a true and accurate transcript of the  10 proceedings transcribed to the best  11 of my skill and ability.  12  13  14  15 Kathie Tanaka, Official Reporter  16 UNITED REPORTING SERVICE LTD.  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 9336  Proceedings  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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