Reported / Citable
Background
Michelle Paknad was an employee of Intuitive Surgical, Inc. who made formal complaints of sex discrimination, harassment, and retaliation while still employed. Intuitive hired outside attorney Andrea Kelly Smethurst to conduct independent investigations of Paknad’s complaints. Smethurst interviewed witnesses, reviewed documents, and produced two reports. Paknad received only summaries of the findings, not the underlying reports.
After Paknad was terminated, she sued Intuitive and her former supervisors under the Fair Employment and Housing Act. Intuitive raised the avoidable consequences defense (sometimes called the Faragher/Ellerth defense), citing the Smethurst investigations and touting their thoroughness and independence. Paknad sought to compel production of the full Smethurst reports and underlying materials.
In an earlier proceeding (Paknad I), the Sixth District held that Intuitive had waived attorney-client privilege and work product protection over the investigation by placing the scope and adequacy of the investigations at issue. The trial court was ordered to grant the motion to compel subject to in camera review. On remand, the trial court allowed Intuitive to make extensive redactions that excised all of the investigator’s factual findings. Paknad petitioned for a second writ to challenge the redactions.
The Court’s Holding
The Sixth District Court of Appeal granted Paknad’s second petition for writ of mandate. The court held that Intuitive’s redactions exceeded the scope of any remaining work product protection because they excised the very factual findings that the investigation was designed to produce.
Under Wellpoint and related authority, an employer that asserts the adequacy of an internal investigation as a defense to a discrimination claim waives attorney-client privilege and work product protection over the investigation materials. The waiver extends to the factual findings of the investigation, not merely to a high-level summary or to materials the employer chooses to disclose. Allowing the employer to redact the investigator’s factual findings would let the employer cherry-pick favorable conclusions while shielding the underlying analysis from the plaintiff and the trier of fact.
The court rejected Intuitive’s argument that the investigator’s factual findings constituted core work product (which is generally absolutely protected under Code of Civil Procedure section 2018.030(a)). Even if some core work product analysis appears in the reports, the factual findings themselves are not protected once the employer has put the adequacy of the investigation directly at issue. The court ordered the trial court to compel disclosure of the reports and investigative materials with significantly narrower redactions limited to genuine attorney impressions, conclusions, opinions, or legal theories that go beyond the factual findings of the investigation.
Key Takeaways
- An employer that raises the avoidable consequences (Faragher/Ellerth) defense by relying on an internal investigation waives attorney-client privilege and work product protection over the investigation materials.
- The waiver extends to the investigator’s factual findings, not merely to a summary that the employer chooses to disclose.
- Excising all factual findings from disclosed investigation reports exceeds the scope of any remaining work product protection and constitutes reversible error.
- Core work product protection under Code of Civil Procedure section 2018.030(a) does not protect factual findings of an investigation when the employer has waived protection by placing the investigation at issue.
- Trial courts should narrowly tailor any redactions to genuinely opinion-based attorney work product, not to factual material that bears on the issues the employer has put in controversy.
Why It Matters
This decision is significant for employment discrimination litigation in California. Employers frequently rely on internal investigations as a key element of their defense to harassment and discrimination claims. This opinion makes clear that doing so comes at the cost of disclosure: the plaintiff is entitled to see the investigator’s factual findings, not just the conclusions the employer chose to share.
For employer counsel, the case is a reminder to think carefully before invoking the avoidable consequences defense and citing investigation thoroughness. If the employer wants to keep the investigator’s findings confidential, it must avoid placing the investigation at issue. For plaintiffs’ counsel, the opinion provides strong support for resisting overbroad redactions of investigation materials in cases where the employer has invoked the defense. For trial courts conducting in camera review of investigation materials, the opinion provides a clearer framework for distinguishing between protected attorney impressions and the factual findings that must be disclosed once the investigation is at issue.