When Employers Rely on a Workplace Investigation, They May Have to Produce the Investigator’s Findings
Paknad v. Superior Court is a useful reminder for California employers that an internal workplace investigation cannot always be used as both a shield and a secret. When an employer defends a harassment, discrimination, or retaliation lawsuit by arguing it conducted a thorough and independent investigation, the employer may have to disclose the materials needed to test whether that investigation was actually thorough and independent. That may include the investigator’s factual findings, even when the investigator was an attorney.
The case does not mean every attorney-led investigation automatically loses privilege protection. It does mean employers should think carefully before placing the quality of a privileged investigation directly at issue in litigation.
The Workplace Complaints and the Attorney Investigation
Michelle Paknad worked for Intuitive Surgical. While still employed, she made two formal complaints alleging sexual harassment, gender discrimination, and retaliation. Intuitive retained attorney Andrea Kelly Smethurst to investigate those complaints.
Smethurst interviewed witnesses, reviewed documents, and prepared two written reports. According to the Court of Appeal, those reports included Paknad’s allegations, the witnesses interviewed and documents reviewed, detailed witness interview summaries, factual findings, and conclusions, including legal recommendations to Intuitive going forward.
Intuitive provided Paknad with a summary of the findings, but did not provide the underlying reports.
After Paknad was terminated, she sued Intuitive and former supervisors. Her lawsuit included claims for sex and gender discrimination, sexual harassment, retaliation, failure to prevent discrimination, harassment, and retaliation, wrongful discharge, Labor Code section 1102.5 retaliation, and negligent hiring, retention, and supervision.
Intuitive Used the Investigation as Part of Its Defense
In the lawsuit, Intuitive asserted an avoidable consequences defense. In plain English, that defense generally argues the employee could have avoided some or all claimed harm by using the employer’s complaint process, and the employer responded appropriately when concerns were raised.
To support that defense, Intuitive relied on the Smethurst investigations. It represented the company had “thoroughly investigated every allegation” Paknad presented by hiring an “independent, outside investigator” who conducted two investigations, interviewed numerous witnesses, and reviewed a large volume of documents.
That litigation choice became central to the case. Intuitive was not merely saying an investigation occurred. It was relying on the quality, independence, scope, and adequacy of the investigation as part of its defense.
The First Trip to the Court of Appeal
Paknad moved to compel production of the investigation reports and related materials. The trial court denied the motion. Paknad then sought writ relief.
In the first appellate proceeding, the Sixth District Court of Appeal relied on Wellpoint Health Networks, Inc. v. Superior Court and held Intuitive had put the scope and adequacy of the investigations at issue. Because Intuitive relied on the investigations to defend itself, the Court of Appeal concluded disclosure of the materials was necessary for a fair adjudication.
The court did not hold every word of every investigative document had to be produced. It directed the trial court to conduct an in camera review, meaning a private judicial review, to determine whether some protection remained despite the waiver.
The Fight Over Redactions
After the first writ, the parties fought over how much could still be redacted.
Intuitive argued attorney work product protection still shielded the investigator’s “findings, mental impressions, and conclusions.” It proposed redacting all of the factual findings from the reports, along with substantive portions of the conclusions and some other materials.
The trial court accepted Intuitive’s proposed redactions. The result was production of reports stripped of all the investigator’s factual findings.
Paknad sought writ relief again. The California Supreme Court directed the Court of Appeal to issue an order to show cause and consider the application of People v. Superior Court (Jones) and Wellpoint.
The Court of Appeal’s Decision
The Court of Appeal granted Paknad’s second petition.
The court clarified its earlier ruling. It did not hold Intuitive could withhold Smethurst’s factual findings. Nor did it hold the waiver extended to every piece of legal advice or every unrelated protected communication. Instead, the scope of waiver depended on what Intuitive placed at issue.
That point drove the decision. Because Intuitive voluntarily relied on the investigations as thorough and independent, it waived attorney-client privilege and attorney work product protection as to two categories: Smethurst’s factual findings about Paknad’s allegations of discrimination, harassment, and retaliation; and information in the reports or underlying investigative materials relevant to the scope or adequacy of Smethurst’s investigation.
The court emphasized even “core” attorney work product can be waived when the party holding the protection puts the protected matter at issue.
Why the Factual Findings Had to Be Produced
The most important part of the opinion for employers is the court’s treatment of the investigator’s factual findings.
Intuitive argued the findings reflected the attorney investigator’s judgment, credibility assessments, and legal experience, making them protected work product. The Court of Appeal accepted the premise those findings could reflect attorney work product, but that did not end the analysis.
Because Intuitive relied on the adequacy and independence of the investigation, the factual findings were directly relevant. They showed how the investigator interpreted the evidence, weighed witness credibility, and decided whether Paknad’s allegations were substantiated.
The court also reasoned the findings were relevant to Intuitive’s response. Smethurst had been retained not only to investigate, but also to make recommendations to management. If Intuitive followed the findings, the adequacy of its response was tied to the adequacy of the investigation. If Intuitive ignored the findings, that fact would also bear on whether the company responded appropriately.
The court further explained the findings were relevant to the disputed issue of independence. Intuitive described the investigator as independent. Paknad disputed that characterization. To test possible bias, Paknad needed access to the investigator’s factual findings and reasoning.
The Employer Lesson: Choose the Role of the Investigation Early
The practical lesson is straightforward. Employers often want an attorney-led investigation to serve multiple purposes. They want legal advice, privileged analysis, risk assessment, credibility findings, and a defensible workplace response. That may be appropriate, but the employer should understand the litigation tradeoff.
If the employer later relies on the investigation as proof it acted reasonably, thoroughly, and independently, privilege and work product protection may give way to fairness. The employer may not be able to praise the investigation in court while withholding the factual findings needed to test that claim.
This creates an important strategic decision at the outset. Some investigations are conducted primarily to obtain legal advice. Others are designed to support workplace corrective action and may later need to withstand scrutiny. Trying to use the same investigation for both purposes can create privilege problems.
A Narrow, But Important, Holding
The decision does not eliminate privilege for attorney workplace investigations. It does not require disclosure of pure legal advice unrelated to the issue placed in dispute. The court acknowledged the waiver is practical and circumstance-specific.
The court also allowed room for continued redaction of materials outside the waiver’s scope. For example, findings about a third-party complainant could remain redacted unless they bore on the scope and adequacy of the investigation into Paknad’s complaints.
But where the factual findings concern the employee’s allegations and the employer has put the investigation’s adequacy at issue, the findings are fair game.
Why Employers Should Pay Attention
For employers, Paknad is less about discovery procedure than litigation strategy. The decision asks a basic fairness question: if an employer wants credit for conducting a thorough and independent investigation, can the employee see the parts of the investigation needed to challenge that claim?
The Court of Appeal’s answer was yes.
Employers should therefore decide early whether they may later need to rely on an investigation as a defense. If so, the investigation should be conducted with the expectation the factual record, witness summaries, credibility determinations, and findings may someday be reviewed by the employee, the employee’s attorney, a judge, or a jury.
Paknad v. Superior Court was filed on March 24, 2026, modified and certified for publication on April 17, 2026, by the California Court of Appeal, Sixth Appellate District, Case No. H052652.