The test for waiver of legal professional privilege by pleading is not whether the pleadings make express or implied assertions about the content of privileged communications. Rather, it is whether the privilege holder, by its conduct in pleading, has acted in a way inconsistent with maintaining confidentiality in the privileged communications. Where a privilege holder pleads a tort of inducing breach of contract that puts in issue the state of mind of the defendant, and that state of mind was derived from knowledge of privileged legal advice communicated to former employees, the privilege holder cannot maintain privilege over those communications while relying on the same employees' knowledge to establish the defendant's state of mind.
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