Key takeaway: When an employer relies on a workplace investigation to defend itself in a lawsuit, it may have to disclose the investigator’s factual findings, credibility assessments, and reasoning, even if an attorney conducted the investigation. In Paknad v. Superior Court, a California Court of Appeal held that an employer that pointed to the thoroughness and independence of its investigations could not use privilege to withhold the findings needed to test that claim. The practical lesson for employers and investigators is that the investigation record must be able to withstand scrutiny.
An employer may invest considerable time in responding to a workplace complaint. An investigator interviews witnesses, reviews documents, assesses conflicting accounts, and prepares findings. But if the employer later points to that investigation as proof that it responded appropriately, a question follows: Can someone else examine how the investigator reached those findings?
That question is at the center of Paknad v. Superior Court, a decision from California’s Sixth District Court of Appeal. The case addresses what an employer may have to disclose when it relies on an attorney-led workplace investigation in defending a lawsuit. For background on how these investigations are conducted, see the California employer guide to workplace investigations.
While employed by Intuitive Surgical, Michelle Paknad made complaints involving sexual harassment, gender discrimination, and retaliation. The company retained an outside attorney to investigate. The investigator conducted two investigations and prepared reports containing findings and conclusions.
After Paknad filed suit, Intuitive asserted an avoidable-consequences defense. Under California law, an employer may argue that an employee could have avoided some of the harm from supervisor sexual harassment by reasonably using the employer’s complaint procedures. The employer must show that its procedures were reasonable and that using them would have prevented some of the harm. This defense can limit damages; it does not erase the employer’s liability.
In support of its defense, Intuitive pointed to the investigations’ thoroughness and independence. Paknad sought the reports and investigative materials so she could evaluate those claims. The trial court ordered some disclosure but permitted redactions that removed the investigator’s factual findings.
The Court of Appeal concluded that Intuitive had put the investigations’ scope, adequacy, and independence at issue. As a result, the company could not rely on privilege and work-product protection to withhold the investigator’s factual findings concerning Paknad’s allegations or other investigative information relevant to evaluating those issues.
That included more than a list of witness statements. The investigator’s credibility assessments, weighing of evidence, and determinations about whether allegations were substantiated could all bear on the quality of the investigations. The court directed the trial court to review the remaining redactions under that standard.
The decision does not mean that every attorney-led workplace investigation automatically becomes public or that every investigative document must be produced. The disclosure question depends on how the employer uses the investigation and whether particular material falls within the scope of the resulting waiver.
Privilege is a legal question for counsel. For employers and investigators, Paknad also highlights a practical one: Does the investigation record show a careful and impartial process? That question applies whether the investigation was conducted by outside counsel, a licensed private investigator, or a human resources investigator within the organization.
If an organization later relies on an investigation, others may examine what the investigator was asked to investigate, whom they interviewed, which evidence they considered, and how they handled conflicting accounts. A report that states a conclusion without explaining the relevant evidence may leave important questions unanswered. Our article on California workplace investigation legal standards explains what California courts have required of that process.
Early in my career, I learned that handing over a report isn’t the end of the work. In one matter, opposing counsel spent hours questioning me about a single credibility finding. They wanted to know which witnesses I’d relied on, how I’d handled conflicting accounts, and whether I’d followed up on a detail one party had raised. I could answer because my notes showed the questions I’d asked and why I’d given one account more weight than the other. The finding held up. I owe a thank-you to the mentor who taught me to take copious notes, even when I wasn’t sure I’d need them. Ever since, I’ve written my reports with that kind of scrutiny in mind.
Preparing for scrutiny does not mean writing reports with a preferred litigation outcome in mind. It calls for sound fact-finding from the outset:
Paknad is a reminder that the value of a workplace investigation rests not only in reaching findings, but in the integrity of the process used to reach them. When an employer chooses to rely on an investigation as part of its defense, the factual work behind those findings may be open to closer examination.
For organizations facing a difficult complaint, that makes a careful, independent, and well-documented investigation important from the first interview onward. The same holds true for an HR investigator handling a complaint internally: the notes and the reasoning behind each finding may one day be read by someone outside the organization.
Related resources: See our workplace investigation services, or contact us for a confidential consultation.
This article provides general information about a California court decision, not legal advice. Employers should consult employment counsel about privilege, litigation strategy, and how the decision applies to a particular matter.
An employer that relies on a workplace investigation to support its defense may have to disclose factual findings and investigative materials needed to evaluate the investigation’s scope and adequacy. The employer cannot necessarily point to the investigation as evidence of a proper response while withholding the information needed to test that claim.
No. The ruling addresses a situation in which the employer put its investigations at issue. Whether particular materials must be disclosed depends on the claims, defenses, and scope of any waiver.
In a California claim involving sexual harassment by a supervisor, an employer may argue that an employee could have avoided some harm by reasonably using available complaint procedures. The employer must prove that it took reasonable steps to prevent and correct harassment, that the employee unreasonably failed to use available measures, and that using them would have prevented some or all of the harm. The defense can limit damages; it does not erase liability.
The findings reflected how the investigator weighed evidence, assessed credibility, and decided whether allegations were substantiated. Those matters could help evaluate the employer’s claim that its investigations were thorough and independent.
They can be. When accounts conflict, an investigator may need to assess credibility and explain how the available evidence supports a finding. In Paknad, the court treated those assessments as relevant to evaluating the investigations.
No. An attorney-led investigation may involve privilege and work-product protection, but those protections can be affected if the employer later puts the investigation at issue. Counsel should advise on privilege and litigation strategy for the particular matter.
Not necessarily. Paknad concerned attorney-client privilege and work-product protection in attorney-led investigations. Regardless of who conducts an investigation, an employer that relies on its quality may face questions about the investigator’s methods, evidence, and findings.
A clearly defined scope, careful interviews, an organized record of relevant evidence, and findings that explain the reasoning behind factual conclusions. These practices help others understand what the investigator did, even when a matter never reaches litigation.
No. A neutral investigator’s role is to make findings supported by the evidence, not to shape a report around a preferred outcome. If a finding is difficult, it is especially important to explain the relevant evidence and reasoning clearly.
Consult employment counsel about the proposed defense and the potential disclosure of investigative materials. Paknad shows why decisions about privilege and how an investigation will be used should not be treated as an afterthought.
These FAQs provide general information, not legal advice. Counsel can assess how the decision applies to a specific case.
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About Kathie Allen
Kathie Allen is a licensed California Private Investigator (PI 27033) with over 20 years of experience conducting workplace investigations throughout Orange County and California. She is an Association of Workplace Investigators (AWI) trained investigator and Certified Title IX Investigator specializing in harassment, discrimination, employee misconduct, and Title IX compliance investigations for businesses, schools, and organizations.
Contact Allen Morris Investigations:
Phone: 949-573-4624
Email: support@allenmorrispi.com
Schedule a consultation or learn more at Allen Morris Investigations.
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Guidance on California workplace investigations, FEHA compliance, retaliation claims, and Title IX obligations, written for HR leaders and employment counsel.
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