Federal Court. Can it be said that, "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents … at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents"?
Question 2: Was it extravagant for the Applicant's solicitors to threaten indemnity costs orders against the First Respondent's solicitors personally without any proper basis, especially as they threatening the former for seeking production of documents that it was unreasonable for the applicant to withhold?
The FCA answered those questions as follows: