Expert witness notes: when legal professional privilege does not attach

By Hilary Lee and Anastasia Wall

The NSW Supreme Court has confirmed that handwritten notes used by an expert when providing a preliminary verbal opinion to solicitors may not be protected by legal professional privilege, or, alternatively, any attaching privilege may be waived as a result of a subsequent written report being served.

Ghorbanzadeh v Western Sydney Local Health District [2023] NSWSC 1330

Facts

The plaintiff brought NSW Supreme Court proceedings against the defendant in relation to injuries allegedly sustained during the delivery of her child at Westmead Hospital on 16 September 2018.

In September 2022, the defendant’s solicitors issued a letter of instruction to obstetrician and gynaecologist medico-legal expert Dr Vijay Roach, in which he was provided various documents for review and requested to ‘discuss his verbal opinion’.

In early October 2022, the defendant’s solicitors and Dr Roach participated in a telephone conference to discuss his verbal opinion. Prior to the conference, Dr Roach reviewed the material provided to him and prepared two pages of handwritten notes in anticipation of speaking with the defendant’s solicitors.

After the teleconference, the defendant’s solicitors sent a further letter to Dr Roach, enclosing the same documents and requesting a written report in which six specific questions were to be addressed. Dr Roach then prepared a report, dated 26 November 2022, which was served on the plaintiff’s solicitors on 14 December 2022.

After receiving the report, the plaintiff issued a subpoena to produce on Dr Roach seeking copies of various documents relating to the preparation of his report. The defendant subsequently made a claim for legal professional privilege over a document produced by Dr Roach, being the handwritten notes he used to prepare for, and during, the teleconference.

The plaintiff filed a Notice of Motion seeking access to the documents over which privilege was claimed. The plaintiff submitted the subject document did not attract legal professional privilege and, if it did, privilege had been waived by the defendant.

Legal professional privilege

His Honour noted that in normal circumstances, when one party serves an expert report, the documents behind that report (in particular those used in its preparation) could not be the subject of a privilege claim.

Whether or not the subject handwritten notes should be considered a ‘document’ or ‘a communication’ was the central issue for determination as to whether legal professional privilege applied. The plaintiff submitted it was ‘no more than a piece of paper’, while the defendant submitted its use ‘for expressing a verbal opinion’ by Dr Roach rendered it as being converted from a document to a communication.

The Court noted that at common law a ‘document’ that is not a ‘communication’ cannot be the subject of a claim for privilege (Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3). However, his Honour considered the defendant had introduced a subtlety to distinguish this document from the rest of Dr Roach’s documents, arising from an affidavit filed by Dr Roach in which he states:

‘.. In the course of this discussion [with the Defendant’s solicitor] I referred to the 2 pages of handwritten notes I had prepared. I used them as the basis for expressing my verbal opinion to [the Defendant’s solicitor]’

(our emphasis)

His Honour noted this phrase was important in circumstances where the defendant argued the document was privileged as it had been converted into a communication with Dr Roach.  

Ultimately, noting Dr Roach did not give evidence that he communicated (or intended to communicate) the contents of his notes to the defendant’s solicitor, his Honour did not consider the document could be classified as a communication.

The decision

The Court held the handwritten notes of Dr Roach were not a communication but rather a working note on which Dr Roach’s opinion was based. Accordingly, it was held the document did not attract legal professional privilege and the plaintiff was granted access to inspect it.

His Honour went on to say that if privilege did attach, he would have concluded that privilege was waived under the principles in Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 804. It was effectively suggested the handwritten notes of Dr Roach formed part of the briefing documents that influenced the contents of his report, and noting the report had been served, privilege over those documents was waived.

Implications

This decision raises important considerations when engaging an expert, including:

• any written material prepared by an expert or solicitor while procuring an expert opinion (verbal or written) will not be afforded the protection of legal professional privilege unless it can clearly be established as a ‘communication’ between the expert and the solicitor. Alternatively, even if privilege does attach, that privilege may be waived once the report is served and the briefing materials become discoverable; and
• initially requesting a verbal opinion only does not necessarily protect documents prepared by the expert during their investigation from becoming discoverable if a written report on the issue is subsequently prepared and served.