California employers who investigate workplace discrimination, harassment, or retaliation complaints face a choice: keep the investigation confidential, or use it to defend themselves in court. A newly published appellate decision makes clear they can’t have it both ways — and the ruling closes a gap in California law that employers had been quietly exploiting for years.
The Decision
On April 17, 2026, the California Sixth District Court of Appeal ordered publication of its decision in Paknad v. Superior Court (Intuitive Surgical, Inc., et al.), Case No. H052652. The published opinion confirms that when an employer raises an “avoidable consequences” defense and puts its own workplace investigation at issue, it waives not just attorney-client privilege but core work product protection too — including the investigator’s factual findings and witness interview notes.
That distinction matters. Employers have long understood that raising this kind of defense waives some privilege. What many didn’t expect is how far that waiver reaches once the California Supreme Court’s guidance in People v. Superior Court (Jones) (2021) 12 Cal.5th 348 is applied to it.
What Happened in the Case
The case arose from discrimination, harassment, and retaliation claims brought by Michelle Paknad against her employer, Intuitive Surgical, Inc. Intuitive Surgical answered the complaint by asserting an avoidable consequences defense — essentially arguing that its workplace investigation showed it took the complaint seriously and that any harm to Paknad could have been avoided. At the same time, the company withheld the investigation report and the investigator’s witness interview notes, claiming they were privileged.
This is the exact scenario the Wellpoint doctrine was designed to prevent. Under Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, an employer that puts its investigation at issue as a defense cannot simultaneously shield the underlying investigation materials from discovery. You don’t get to point to the investigation as proof you did the right thing while hiding what the investigation actually found.
The trial court initially sided with Intuitive Surgical, finding no waiver. It took two separate rounds of review by the California Supreme Court — each one sending the case back to the Sixth District with instructions to apply Wellpoint and Jones — before the Court of Appeal reached the correct result. Along the way, even after a waiver was found, the trial court allowed the company to redact the most substantive portions of the investigation report, reasoning that the core findings remained protected work product. The Sixth District’s April decision rejects that approach entirely.
Why the Published Ruling Fills a Real Gap
Wellpoint itself has been settled law for nearly three decades. What hadn’t been resolved — until now — was how the Supreme Court’s 2021 Jones decision affects the scope of a Wellpoint waiver. Jones had barely been cited in California case law, and no published decision had ever applied it to an employment discovery dispute. That left trial courts inconsistent, and it left room for employers to assert a waiver in name only, while still withholding the parts of an investigation file that mattered most: the witness statements and the investigator’s actual conclusions.
The Sixth District’s published opinion removes that ambiguity. It’s now binding, citable authority that a Wellpoint waiver reaches core work product, not just the fact that an investigation occurred.
Why This Matters for California Employees
Workplace investigations sit at the center of most discrimination, harassment, and retaliation cases. Employers routinely point to the fact that they investigated as evidence of good faith, while resisting turning over what the investigation actually uncovered. The Paknad decision gives employees — and their attorneys — clearer, stronger grounds to compel production of the full investigative record, including witness interview notes, when an employer puts that investigation at issue.
If you believe your employer investigated a complaint of discrimination, harassment, or retaliation and you’re concerned about how that investigation was handled — or how its findings are being used or withheld — the attorneys at ASM Lawyers are available to talk through your situation.
Contact us today to discuss your case.
The case is Paknad v. Superior Court (Intuitive Surgical, Inc., et al.), Case No. H052652, Court of Appeal, State of California, Sixth Appellate District, decided March 24, 2026, ordered published April 17, 2026.
