As Doherty J.A. further observed at para. 51: the rule has nothing to do with the nature of the information is issue, but turns exclusively on how the party called upon to disclose the information came into possession of that information: Juman v. Doucette, at para. 25. If the party obtained the information in the course of the discovery process, it is subject to the deemed undertaking rule regardless of whether the information is confidential. If, however, the information was not obtained in the discovery process, the deemed undertaking rule has no application no matter how confidential the information might be. A litigant who wishes to resist production on the basis of the nature of the information sought must find shelter in some privilege or challenge the relevancy of the information.
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