Whether plaintiffs waived privilege over communications from one expert where a conclusion reached by that expert was given to a second expert as an assumption upon which he was instructed to rely
Waiver not established in the circumstances
Quick Take
1Providing bald numerical conclusions from one expert's draft report to a second expert as assumptions to be accepted and applied, without disclosing the underlying analysis, is not inconsistent with maintaining legal professional privilege over the first expert's draft reports and associated communications.
2Where an expert is instructed to assume that certain figures are true and correct without being given any information about how those figures were derived, the source documents from which those figures originated are not 'associated documents reasonably necessary to an understanding' of the instructed expert's report within the meaning of the ML Ubase principle.
3The fact that an expert's letters of instruction — which contain assumptions sourced from another expert's privileged draft reports — are disclosed as annexures to the instructed expert's report does not, without more, constitute a deployment of the privileged material inconsistent with maintaining confidentiality.
