Paknad v. Superior Court, 119 Cal. App. 5th 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In an earlier (unpublished) appellate proceeding in this same case, the Court of Appeal concluded that by relying upon the investigations in support of its affirmative defenses, the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...
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