Key Takeaways
- The California Sixth District Court of Appeal has published its decision in Paknad v. Superior Court, confirming that when an employer asserts an avoidable consequences defense and places its workplace investigation at issue, the resulting Wellpoint waiver extends to core work product — including the investigator’s factual findings and witness interview notes.
- The published ruling fills a significant gap in California employment law: despite hundreds of cases raising Wellpoint issues every year, no published decision had previously applied the California Supreme Court’s clarifying guidance in People v. Superior Court (Jones) (2021) to the scope of discovery waivers in employment cases.
- Clarkson Law Firm’s Appeals & Writs Team — partner Glenn A. Danas and counsel Brent A. Robinson and Christen L. Chapman — secured the publication of this decision, which now stands as binding precedent for workers seeking access to withheld investigation materials in California employment litigation. Mr. Robinson was also counsel of record for Ms. Paknad in the case prior to joining Clarkson, and played a central role in the prior appellate and trial court proceedings that led to the decision.
A Long Road to Published Precedent
On April 17, 2026, the California Sixth District Court of Appeal ordered publication of its March 24 decision in Paknad v. Superior Court (Intuitive Surgical, Inc., et al.) (Case No. H052652). The ruling is the culmination of a years-long appellate battle that required two separate grants of review and transfer by the California Supreme Court before the Court of Appeal reached the right result — in published form.
The underlying case involves Michelle Paknad, a plaintiff who brought discrimination, harassment, and retaliation claims against her employer, Intuitive Surgical, Inc. What should have been a straightforward discovery dispute became an object lesson in how far employers will go to protect investigation materials from being used against them in court.
The Discovery Fight at the Heart of the Case
The Wellpoint doctrine — established in Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110 — holds that when an employer asserts an avoidable consequences defense and places its workplace investigation at issue, it cannot simultaneously invoke attorney-client privilege or work product protection to withhold the investigation materials from discovery. The rationale is straightforward: an employer cannot use a privilege as both a sword and a shield.
In Paknad, Intuitive Surgical answered the complaint with an avoidable consequences defense and stated in discovery that its proof at trial would concern the adequacy of its workplace investigation. Yet the company also withheld its investigation reports and its investigators’ witness interview notes, claiming privilege.
What followed was a remarkable appellate odyssey:
- The trial court denied Paknad’s motion to compel, finding no privilege waiver.
- The Sixth District summarily denied writ relief.
- The California Supreme Court granted review and transferred the case back to the Sixth District with instructions to issue an order to show cause in light of Wellpoint and Jones.
- The Sixth District reversed in an unpublished decision.
- On remand, the trial court granted the motion to compel — but then allowed Intuitive Surgical to redact large portions of the investigation report, concluding that work product doctrine had not been waived as to the core investigative findings.
- The Sixth District again summarily denied writ relief.
- The California Supreme Court again granted review and transfer under Wellpoint and Jones.
The April 17 published decision is the resolution of that second round. The decision leaves no room for the kind of selective disclosure Intuitive Surgical had attempted.
What the Published Decision Holds
The Sixth District’s now-published opinion addresses a question that had gone largely unanswered in California employment law: when a Wellpoint waiver occurs, exactly how far does it extend?
The answer, under People v. Superior Court (Jones) (2021) 12 Cal.5th 348, is further than many trial courts had recognized. The published decision confirms that a Wellpoint waiver reaches even core work product when that material touches on the scope and adequacy of the workplace investigation, including the investigator’s factual findings and conclusions from witness interviews.
That matters enormously in practice. Employers had been exploiting a gap in the published case law: while Wellpoint itself was well-established, Jones’s 2021 clarification of waiver scope had been cited in judicial decisions just 14 times, and only one published appellate decision had addressed it at all, in the unrelated context of a criminal Batson challenge. No published decision had ever applied Jones to the scope of Wellpoint waivers in an employment case.
The Paknad decision closes that gap. Courts and litigants now have binding, citable authority for the proposition that an employer who places its investigation at issue cannot hide behind work product protection for the very materials that bear on whether that investigation was adequate.
Clarkson’s Role: Advocacy for Publication
Clarkson Law Firm’s Appeals & Writs Team — partner Glenn A. Danas and counsels Brent A. Robinson and Christen L. Chapman — filed a timely request for publication under California Rule of Court 8.1120, urging the Sixth District to certify the opinion for the Official Reports. Brent Robinson also previously served as counsel for Ms. Paknad in the trial court, before the Sixth District, and before the California Supreme Court in the first round of this litigation.
The publication request advanced three grounds under Rule 8.1105(c): that the opinion “invokes a previously overlooked rule of law” (Jones’s clarification of Wellpoint waiver scope); that it “applies existing law to a set of facts” not yet addressed in published authority; and that it resolves a “legal issue of continuing public interest,” given the frequency with which Wellpoint questions arise in California employment litigation.
The Sixth District agreed and granted publication.
Why This Win Matters for California Workers
Wellpoint issues arise in virtually every California employment case where a defendant employer conducted a workplace investigation. Employers routinely deploy investigations as both a shield — claiming the investigation demonstrates reasonable care — and a sword — using the fact that they investigated to deflect liability at trial. The doctrine exists precisely to prevent that tactic. But without clear published guidance on how far the resulting waiver extends, trial courts had inconsistently applied the rule, and employers had successfully redacted core investigative findings even after waiver was established.
The Paknad decision, now published and citable across California, restores the doctrine’s teeth. Employees in discrimination, harassment, and retaliation cases now have stronger grounds to compel production of the full investigative record — including the witness interview notes and factual conclusions that often tell the most important parts of the story.
Congratulations are also due to Randall Aiman-Smith, Reed W.L. Marcy, and Hallie Von Rock of Aiman-Smith & Marcy PC, trial and appellate counsel for Ms. Paknad, whose tenacity over multiple rounds of Supreme Court review made this precedent possible.
Contact Clarkson Law Firm
If you are an employee in California who has experienced discrimination, harassment, or retaliation — or if you are an employment attorney navigating Wellpoint issues in pending litigation — Clarkson Law Firm’s Appeals & Writs Team is available to consult. Our team has litigated these issues at the trial court level, before the Courts of Appeal, and before the California Supreme Court.
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.
