Michelle Paknad, a former employee of Intuitive Surgical, Inc., filed suit against the company and two former supervisors after she was fired, alleging sexual harassment, gender discrimination, and unlawful retaliation. While still employed, Paknad had lodged two formal internal complaints, which Intuitive responded to by retaining outside attorney Andrea Kelly Smethurst to conduct independent investigations. Smethurst interviewed witnesses, reviewed documents, and produced two detailed reports — each organized into five parts covering Paknad’s allegations, witnesses and documents reviewed, summaries of witness interviews, factual findings, and legal conclusions with recommendations to management. Intuitive shared only a summary of findings with Paknad and withheld the underlying reports entirely.
In defending against Paknad’s lawsuit, Intuitive asserted an “avoidable consequences” affirmative defense, touting the investigations as thorough and independent. Intuitive’s interrogatory responses stated that it had “thoroughly investigated every allegation that plaintiff presented by hiring an independent, outside investigator to conduct two investigations, interview numerous witnesses, and reviewed a large volume of documentary evidence.”
When Paknad moved to compel production of the Smethurst reports and investigative materials, the trial court initially denied the motion, finding the materials shielded by attorney-client privilege and attorney work product protection.
That ruling led to the first round of appellate review (Paknad v. Superior Court, May 20, 2024, H050711 (Paknad I)), in which the Court of Appeal found that Intuitive had waived both privileges by placing the scope and adequacy of the investigations at issue, and directed the trial court to grant Paknad’s motion — subject to in camera review to determine whether any narrow protection survived.
On remand, the trial court reviewed Intuitive’s proposed redactions in camera and accepted them. Intuitive had redacted all of Part IV (Smethurst’s factual findings) and substantial portions of Part V (Smethurst’s conclusions and legal recommendations), reasoning that every redacted passage reflected attorney mental impressions, conclusions, or legal theories, rendering them absolutely protected core work product under California Code of Civil Procedure section 2018.030, subdivision (a). The court granted the motion to compel only as to the unredacted remainder — effectively stripping out all of Smethurst’s factual determinations before turning over the reports.
The Court of Appeal denied Paknad’s second petition for writ of mandate, however ruled upon it after remand from the Supreme Court. In the published case of Paknad v. Superior Court (Paknad II) -H052652 (April 2026), the Court of Appeal directed the trial court to vacate its August 27, 2024 order, conduct a further in camera review, and order disclosure of all materials within the scope of Intuitive’s waiver.
The Court of Appeal held that the trial court had asked the wrong question. Rather than asking whether the redacted materials constituted core work product, the court was required to ask whether those materials fell within the scope of Intuitive’s waiver — a distinct inquiry that the trial court never performed.
The appellate court clarified that Paknad I had found waiver of both the attorney-client privilege and core attorney work product protection, following two controlling authorities. In Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, the court held that an employer who defends an employment lawsuit by relying on the thoroughness and propriety of its internal investigation waives both the attorney-client privilege and the work product doctrine as to that investigation. In People v. Superior Court (Jones) (2021) 12 Cal.5th 348, the California Supreme Court confirmed that even core work product is subject to waiver when the holder voluntarily places the protected material at issue — there, a prosecutor who relied on an undisclosed juror rating system to justify peremptory challenges waived work product protection as to that system.
Applying those principles, the court held that Intuitive’s waiver extended to: (1) all of Smethurst’s factual findings about Paknad’s allegations of discrimination, harassment, or retaliation; and (2) any information in the reports or investigative materials bearing on the scope or adequacy of Smethurst’s investigations. The factual findings were directly relevant to both prongs — they revealed how Smethurst weighed evidence and assessed witness credibility, and they were essential for Paknad to evaluate Intuitive’s repeated claim that the investigations were independent and objective. Because Intuitive put Smethurst’s independence at issue, Paknad was entitled to access the findings to assess whether bias infected the process.
The court rejected Intuitive’s argument that the redacted findings were shielded because they reflected legal judgment and experience, reasoning that having voluntarily commissioned and then weaponized those findings in its defense, Intuitive could not simultaneously disclaim their investigative character to preserve them from disclosure.
On remand, the court directed that further in camera review focus not on whether materials constitute core work product, but solely on whether they fall within the scope of what Intuitive placed at issue — and any such material must be disclosed to Paknad regardless of its work product character.