Paknad v. Superior Court, 119 Cal. App. 5^th 1256 (2026)

While still employed by Intuitive Surgical, Michelle Paknad alleged sexual harassment, gender discrimination, and unlawful retaliation. In response, the employer retained outside counsel to investigate. During the investigations that followed, the attorney interviewed multiple witnesses, reviewed documents, and produced two reports containing her findings and conclusions. The employer relied upon the attorney’s investigations to support its defenses against Paknad’s subsequent lawsuit, specifically citing the thoroughness of the investigations in support of its avoidable‑consequences defense (i.e., its defense that it took reasonable steps to prevent and correct workplace harassment).

In an earlier (unpublished) appellate proceeding in this same case, the Court of Appeal concluded that by relying upon the investigations in support of its affirmative defenses, the employer had placed the independence and adequacy of those investigations squarely at issue and, therefore, had waived the attorney‑client privilege and the work‑product doctrine over relevant portions of the investigations – including the investigations’ factual findings and information related to the investigations’ scope and adequacy. However, the Court recognized that some of the investigator’s work product might “exceed the scope of what Intuitive had put at issue” and directed the lower court to review the materials to determine if “some protection is warranted notwithstanding the waiver.”

Not surprisingly, the parties disagreed about how much of the attorney’s work product was “at issue” – with the employee contending practically all of it was at issue, and the employer asserting the attorney’s “core work product” (i.e., her findings, mental impressions, and conclusions regarding the claims) had not been waived and should be redacted and withheld from production to the employee. The trial court reviewed 437 pages of unredacted materials (including the two reports, documents (mostly emails), and the investigator’s interview notes). The trial court found the employer’s redactions to be appropriate because they consisted of “an attorney’s impressions, conclusions, opinions, or legal research or theories” and, therefore, were “not discoverable under any circumstances.”

Paknad then filed a second petition for mandamus relief before the Court of Appeal, which the Court denied, but which the California Supreme Court granted, thus resulting in this second proceeding before the Court of Appeal. In this latest opinion, the Court noted that both parties had somewhat misconstrued its earlier opinion, but clarified (more in line with Paknad’s position) that “Wellpoint [Health Networks, Inc. v. Superior Court, 59 Cal. App. 4^th 110, 128 (1997)] makes clear that both the attorney‑client privilege and work product protection are waived when a party elects to defend itself by putting otherwise privileged information at issue.”

The Court concluded:

We clarify that Intuitive, by its voluntary conduct, has waived the attorney‑client privilege and attorney work‑product protection as to (1) all [the investigator’s] factual findings about Paknad’s allegations of discrimination, harassment, or retaliation, and (2) information – whether in [the investigator’s] reports or the underlying investigative materials – relevant to the scope or adequacy of [her] investigation of Paknad’s allegations.

With that, the Court granted Paknad’s second petition for writ of mandate and ordered the trial court to conduct further in camera review of the redacted portions of the investigator’s materials to determine the scope of the employer’s waiver.