Paknad v. Superior Court
The Sixth District holds that an employer which puts the scope and adequacy of its workplace investigation at issue waives attorney-client privilege and work product protection — including core work product — over the investigator’s factual findings and over any information bearing on the investigation’s scope and adequacy.
Paknad v. Superior Court (2026) 119 Cal.App.5th 1256
Civil Procedure
Work product
Investigation at issue
Writ granted
In brief. While employed at Intuitive Surgical, Michelle Paknad complained of sexual harassment, gender discrimination, and retaliation; Intuitive commissioned an attorney to investigate. In litigation, Intuitive defended by pointing to the adequacy of that investigation but withheld the investigator’s reports as privileged. In an earlier writ (Paknad I), the court held Intuitive waived protection by placing the investigation’s scope and adequacy at issue. On remand the trial court let Intuitive redact all of the investigator’s factual findings, prompting a second petition. The Court of Appeal again granted relief, holding the waiver reaches all of the investigator’s factual findings and all information relevant to the scope or adequacy of the investigation — “[e]ven core work product” under Code of Civil Procedure section 2018.030 — and that further in camera review is to police the scope of the waiver, not to re-protect core work product. (Paknad v. Superior Court (2026) 119 Cal.App.5th 1256, 1256–1257, 1263.)
By Jonathan J. Delshad
Draft for review · source-verification pending
Facts and procedural posture
While still employed by Intuitive Surgical, Michelle Paknad made two formal complaints of discrimination, harassment, and retaliation. (119 Cal.App.5th at pp. 1256–1257.) Intuitive commissioned an attorney — the investigator the court refers to as Smethurst — to prepare two reports and related investigative materials concerning Paknad’s allegations. (Id. at pp. 1256, 1262.) In the resulting litigation, Intuitive’s answer and interrogatory responses defended in part by invoking the adequacy of those investigations, while it sought to withhold the reports and materials as attorney-client privileged and protected work product. (Id. at pp. 1262–1263.)
This was the second mandate proceeding over the same materials. In the first, Paknad v. Superior Court (Apr. 29, 2024, H050711) (nonpub. opn.) (Paknad I), the court held that although an attorney-client relationship and work product protections existed, Intuitive “waived the privilege ‘by placing the scope and adequacy of the investigations at issue,’” such that disclosure was “‘“essential for a fair adjudication of the action.”’” (119 Cal.App.5th at p. 1256, quoting Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128.) Paknad I stopped short of holding all core work product waived and directed the trial court to grant the motion to compel subject to an in camera review “to determine ‘if some protection is warranted notwithstanding the waiver.’” (Id. at p. 1256, quoting Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 740, and citing People v. Superior Court (Jones) (2021) 12 Cal.5th 348, 366.)
Procedural history
On remand, the parties disputed whether the work product waiver extended to core work product. (119 Cal.App.5th at p. 1257.) The trial court ordered disclosure subject to Intuitive’s proposed redactions — redactions that “excised all the investigator’s factual findings.” (Ibid.) Paknad petitioned a second time for a writ of mandate, and the Court of Appeal, after reviewing the lodged materials and redactions, granted the petition and issued a peremptory writ. (Id. at pp. 1257, 1265.)
Issue
When an employer puts the adequacy of its attorney-conducted harassment investigation at issue as a litigation defense, does the resulting waiver of privilege and work product protection extend to the investigator’s factual findings and to core attorney work product bearing on the investigation’s scope and adequacy — or may the employer redact the investigator’s factual findings as protected? (119 Cal.App.5th at pp. 1256–1257.)
Holding
Writ granted. By its voluntary conduct, Intuitive waived attorney-client privilege and work product protection as to (1) “all the attorney’s factual findings about the employee’s allegations of discrimination, harassment, or retaliation,” and (2) “information—whether in the attorney’s reports or the underlying investigative materials—relevant to the scope or adequacy of the attorney’s investigation.” (119 Cal.App.5th at pp. 1256–1257.) That waiver reaches even core work product: “Even core work product is subject to waiver when the beneficiary of that protection puts it at issue.” (Id. at p. 1263.) On remand, the purpose of in camera review “would not be to determine whether any information … contain[s] core attorney work product, but whether the redacted materials were within the scope of the employer’s waiver,” and the court must “disclose to the employee any information relevant to the scope and adequacy of the … investigations—irrespective of whether such information would otherwise qualify for core attorney work [product] protection under Code Civ. Proc., § 2018.030.” (Id. at pp. 1256–1257.) The respondent court’s order accepting all of Intuitive’s redactions is vacated. (Id. at p. 1265.)
Reasoning
1. Waiver scope is defined by what the party put at issue. The court anchored its analysis in People v. Superior Court (Jones): the “scope of a waiver turns on what the party has placed ‘at issue,’” and the waiver inquiry is “an intensely practical one.” (119 Cal.App.5th at pp. 1262–1263, quoting Jones, supra, 12 Cal.5th at p. 353.) Jones does not stand for a blanket rule that any work product waiver is total; rather, the measure of the waiver is the matter the party itself injected into the case. (Id. at p. 1263.)
2. Intuitive put the investigation’s scope and adequacy in issue. Applying that test, the court found Intuitive’s “answer and interrogatory responses put at issue the scope and adequacy of Smethurst’s investigations,” so that the waiver “extends to those matters.” (119 Cal.App.5th at pp. 1262–1263.) Consistent with Wellpoint, an employer that defends by asserting it conducted an adequate investigation cannot simultaneously shield the investigation’s contents; disclosure becomes “essential for a fair adjudication.” (Id. at pp. 1256, 1263.)
3. The waiver reaches even core work product. The decisive advance over Paknad I was the holding that the waiver is not cabined by the “core” work product doctrine. Because the protected status of material yields when its beneficiary puts it at issue, “[e]ven core work product is subject to waiver when the beneficiary of that protection puts it at issue.” (119 Cal.App.5th at p. 1263.) The factual findings of the investigation — the very heart of whether the investigation was adequate — fall within the matters Intuitive placed in controversy, and so cannot be redacted as core work product. (Id. at pp. 1257, 1263.)
4. Recasting the in camera review. Finally, the court redefined the function of the remand review. The trial court had treated the question as whether the redacted material was core work product; the Court of Appeal held the proper question is “whether the redacted materials were within the scope of the … waiver.” (119 Cal.App.5th at pp. 1256–1257.) Information relevant to the scope and adequacy of the investigation must be disclosed “irrespective of whether such information would otherwise qualify” as core work product under section 2018.030. (Ibid.) The court therefore vacated the order accepting all redactions and directed further in camera review and a new disclosure order consistent with that standard. (Id. at p. 1265.)
Significance
Paknad is a powerful discovery tool for employees litigating discrimination, harassment, and retaliation claims. Employers routinely defend such cases — on avoidable-consequences, good-faith, or Faragher/Ellerth-style theories — by emphasizing that they investigated the complaint. Paknad holds that doing so places the investigation’s scope and adequacy at issue and waives privilege and work product over the investigator’s factual findings, and, importantly, over core work product as well. The decision usefully complements Guardian Storage Centers, LLC v. Simpson (2026) 119 Cal.App.5th 509, which held that a non-attorney internal investigation did not impliedly waive privilege: read together, the cases turn on whether the employer affirmatively relies on the investigation. Paknad also clarifies a point of work product law with reach beyond employment — that the “core” designation is not an absolute shield, but yields to the same at-issue waiver principles that govern other privileged material when the holder injects it into the case.
Key quotes
“Even core work product is subject to waiver when the beneficiary of that protection puts it at issue.” (Paknad, supra, 119 Cal.App.5th at p. 1263.)
“[The trial court must] disclose to the employee any information relevant to the scope and adequacy of the attorney’s investigations—irrespective of whether such information would otherwise qualify for core attorney work [product] protection under Code Civ. Proc., § 2018.030.” (Paknad, supra, 119 Cal.App.5th at pp. 1256–1257.)
Practice pointer
When the employer’s answer or discovery responses lean on the adequacy of its investigation, serve targeted requests for the investigator’s reports, notes, and underlying materials and be ready to cite Paknad: the at-issue waiver reaches the investigator’s factual findings and even core work product bearing on scope and adequacy, and the proper in camera inquiry is whether material falls within the waiver — not whether it is “core.” Pin the waiver to the employer’s own pleadings and interrogatory answers, as the court did with Intuitive’s. Defense counsel should recognize the trade-off before pleading an investigation-based defense: asserting the adequacy of an attorney-led investigation may open the investigator’s findings and mental impressions to discovery. Where the goal is to preserve privilege, consider keeping the investigation factual and non-attorney-led (compare Guardian Storage), and avoid affirmatively relying on it as a defense. (119 Cal.App.5th at pp. 1256–1257, 1262–1263.)
Open questions
The opinion defines the waiver by what Intuitive placed at issue but leaves the precise boundary for the trial court’s in camera review — which specific impressions, conclusions, or legal theories are “relevant to the scope and adequacy” of the investigation, as opposed to falling outside the waiver. (119 Cal.App.5th at pp. 1256–1257, 1263.) It does not address whether a narrower invocation of an investigation (for instance, merely acknowledging that one occurred, without defending its adequacy) would trigger the same broad waiver, leaving room to argue the scope of the at-issue principle in future cases. And while it harmonizes with Guardian Storage on the attorney/non-attorney distinction, it does not map every permutation between a purely factual HR inquiry and a privileged legal investigation. (Id. at p. 1263.)