Case Study: Editing Expert Witness Reports

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ACCC v Snowdale Holdings [2016] FCA 541

Background

This case involved an ACCC allegation of misleading or deceptive conduct in relation to the marketing of free range eggs.

This respondent in this case, Snowdale Holdings Pty Ltd (Snowdale), a Western Australian egg producer[1], labelled some of the eggs that it produced and sold as “free range eggs” and sold such eggs at a premium price.[2]

The ACCC contended that Snowdale engaged in misleading or deceptive conduct by marketing the eggs as “free range” when the housing conditions of the birds did not comply with the definition of a “free range system” provided for in the Code of Practice for Poultry in Western Australia (Department of Local Government and Regional Development, March 2003), namely that the relevant chickens did not have access to an outdoor range.[3]

In connection with this dispute, Mr Dennis Green, a former operations-livestock manager at the Hatchery from which Snowdale purchased its chicks, gave expert testimony and produced an export report for Snowdale.[4] Green had 20 years’ experience in managing broiler breeder farms (farms which raise stock to produce fertilised eggs) and also served on consultative committees for quality assurance for the Australian Egg Corporation Limited.[5] In his various roles, Green visited numerous egg production farms across Western Australia, including certain Snowdale farms.[6]

The Expert Report

During the cross examination of Green, versions of his first and second draft report which had been sent to Snowdale’s solicitors and which each constituted approximately 3 and a half pages, were produced.[7] Following this initial exchange of draft reports, Snowdale’s solicitors returned a revised version to Green of almost 9 pages.[8] This report was subject to seven further turns of amendments, with the final report being based on the 9-page version produced by Snowdale’s solicitors rather than the initial 3-page report prepared by Green.[9]

Arguments Made

The ACCC argued that no weight should be accorded to the expert report of Green because a review of the progress of the draft reports from the initial 3-page draft to the final report indicated that Green acquiesced to making variations which assisted Snowdale’s defence, thus undermining his claim of independence as an expert witness.[10]

Findings

The Court agreed with the ACCC’s contentions and placed no weight on the expert report provided by Green, treating his evidence with “considerable caution”.[11] The Court held that when the series of draft reports were examined they showed that “Mr Green made, or acquiesced in the making of, amendments to his report which excised material which could be perceived as adverse to, or imply criticism of, Snowdale’s case, or included material which could be perceived to assist Snowdale’s case.”[12]

Examples of variations made which assisted in Snowdale’s defence included:

*    Comments regarding the number of hens travelling outside to open ranges: in Green’s initial report he noted 40-80% of hens exiting barns at a Snowdale farm whereas in the final report this figure had been increased to between 70-90%.[13]

*    Comments regarding “pop holes” in the hen barns: pop holes were holes in the barns from which chickens exited the barn to outside fields. Green’s initial report noted that “ramps would be ideal” in relation to the process of hens exiting the barn. In the final report these words were deleted.[14]

*    Comments regarding the ease with which chickens could exit the barn: in Green’s initial report he noted that “[t]he use of the physical openings being only on one side of the shed would have slowed the ability for hens to exit the shed”.[15] In his final report, however, these words had been softened, with the final conclusion becoming: “[h]owever, the effect of having pop holes on only one side of the laying barn would, I believe, have slowed the ability for hens to exit it to a degree, which I am unable to quantify”.[16]

The Court found that Green was unable to provide persuasive reasons for the significant variations and deletions from his original draft and as such held that he was not acting as an independent expert.[17] Siopis J held that:

In my view, Mr Green did not approach his role as an expert witness from the position of a person who owed a paramount duty to the Court to express an independent opinion. Rather, I find that Mr Green was prepared to participate in a cooperative venture with Snowdale and its solicitors whereby he was prepared to mould his views, or acquiesce in the moulding of his views, into a form which would, to the best extent possible, assist the case of the party that had retained him.”[18]

 What threshold of editing to an expert report is acceptable?

 While the Court in Snowdale found the level of intervention in the expert witness report to be unjustifiable, prior decisions have indicated that some level of solicitor involvement is permitted. In

Harrington-Smith on behalf of the Wongatha People v State of Western Australia[19] Linden J held that:

Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed.”

 This approach was confirmed by the Supreme Court of the ACT in Re Doogan; Ex parte Lucas-Smith and Others[20] where it was held that:

the mere fact that some editing of the [expert] reports occurred does not demonstrate any impropriety on the part of the lawyers in question or provide any valid ground for concern… It has not been established that any of the lawyers assisting the first respondent sought to change passages in the reports conveying relevant opinions or information, so the prosecutors’ complaints seem to have been based upon the editing of passages that were, at best, of marginal relevance”.

 Conclusion

 The Snowdale case demonstrates the extreme consequences which flow from solicitor or external intervention in the drafting of an expert witness report. In Snowdale, Green’s failure to explain such changes to his initial report proved fatal to the value of his evidence. At ExpertsDirect, we never edit the content of an expert witness report. We review reports for grammar, spelling, and format to ensure that legal teams receive the most presentable report possible. We aim to provide lawyers with independent, polished, court-ready reports while maintaining the integrity, structure and content of the expert witness’s original report.

[1] ACCC v Snowdale Holdings [2016] FCA 541, 1

[2] Ibid 2

[3] Ibid 18

[4] Ibid 354

[5] Ibid

[6] Ibid 355-6

[7] Ibid 382

[8] Ibid 384

[9] Ibid

[10] Ibid 385

[11] Ibid 159, 386

[12] Ibid 387

[13] Ibid 389-90

[14] Ibid 394

[15] Ibid 395

[16] Ibid 396

[17] Ibid 412

[18] Ibid 412

[19] (No 7) [2003] FCA 893

[20]  (2005) 193 FLR 239

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