Paknad v. Super. Ct.

── Paknad v. Super. Ct. ── Court: California Court of Appeal Date: April 17, 2026 Category: General Filed 3/24/26; Modified and Certified for Pub. 4/17/26 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT MICHELLE PAKNAD, H052652 (Santa Clara County Petitioner, Super. Ct. No. 19CV350641) v. THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA, Respondent; INTUITIVE SURGICAL, INC., et al., Real Parties in Interest. This is the second mandate proceeding occasioned by two reports and investigative materials prepared by an attorney commissioned by defendants and real parties in interest, Intuitive Surgical, Inc. and Intuitive Surgical Operations, Inc., to investigate plaintiff and petitioner Michelle Paknad’s claims of sexual harassment, gender discrimination, and unlawful retaliation as an Intuitive employee. In the first proceeding, we concluded that despite a “relationship . . . giving rise to the attorney-client privilege and work product protections,” Intuitive waived the privilege “by placing the scope and adequacy of the investigations at issue, . . . such that . . . disclosure of the material is ‘ “essential for a fair adjudication of the action.” ’ ” (Paknad v. Superior Court (May 20, 2024, H050711) [nonpub. opn.] (Paknad I), quoting Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128 (Wellpoint).) While we stopped short of holding that Intuitive had necessarily waived protection as to all the investigator’s materials or core work product under Code of Civil Procedure 2018.030, subdivision (a),1 we issued a peremptory writ directing the respondent court to “grant[] the motion [to compel production of the] . . . reports and related investigative materials,” subject to an in camera review “to determine ‘if some protection is warranted notwithstanding the waiver’ . . . .” (Paknad I, supra, H050711, quoting Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 740 (Costco Wholesale Corp.) and citing People v. Superior Court (Jones) (2021) 12 Cal.5th 348, 366 (Jones).) Before the respondent court, the parties disputed whether Intuitive’s waiver of attorney work product protection extended to core work product. The court ultimately ordered disclosure of the reports and investigative materials subject to Intuitive’s proposed redactions. Because the redactions excised all the investigator’s factual findings, Paknad petitioned again for mandamus relief. Having reviewed the proposed redactions of the records lodged with the respondent court, we will grant Paknad’s second petition for writ of mandate. I. BACKGROUND While still employed by Intuitive, Paknad made two formal complaints of discrimination, harassment, and retaliation—complaints that Intuitive retained attorney Andrea Kelly Smethurst to investigate. Smethurst interviewed witnesses, reviewed documents, and produced two reports containing her findings and conclusions. While a summary of the findings was conveyed to Paknad, Intuitive did not share with Paknad the underlying reports. 1 Undesignated statutory references are to the Code of Civil Procedure. 2  After she was fired, Paknad sued the company and her former supervisors.2 In asserting avoidable consequences as an affirmative defense to Paknad’s complaint, Intuitive cited the Smethurst investigations and touted their thoroughness and independence, stating “[d]efendant . . . thoroughly investigated every allegation that [p]laintiff presented by hiring an independent, outside investigator to conduct two investigations, interview numerous witnesses (some of which she interviewed several times), and review a large volume of documenta