A party's inclusion of state of mind information as mere background narrative in an affidavit does not put state of mind in issue for the purposes of waiver of legal professional privilege. However, a positive assertion of the propriety of conduct by reference to the effect of legal advice does put state of mind in issue and waives privilege in respect of the specific advice referred to. Another party cannot force waiver by making assertions about or seeking to put in issue the privilege-holder's state of mind. Where waived documents contain privileged material on distinct and unrelated topics, that material may be excised before production.
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