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It would be prudent to clearly lay out in an NDA how confidential information will be protected and to abide by it. The article warns that care should be taken by an insured when disclosing privileged material to an insurer because they could inadvertently waive the privilege. In determining whether a waiver of privilege is valid, the court looks at whether the client’s acts were inconsistent with the maintenance of the confidentiality in the communication. The test is an objective one, so that an implied waiver may be found despite that it may not reflect the actual subjective intention of the privilege holder.

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Take away:

  • When undertaking a confidential transaction, one should respect the conventions set forth in the NDA. Actions which are inconsistent with the NDA could result in a party waiving their confidentiality.


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