City of Petaluma v. Super. Ct.

Filed 6/8/16; pub. order 6/30/16 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CITY OF PETALUMA,

Petitioner, v.

THE SUPERIOR COURT OF SONOMA A145437

COUNTY,

(Sonoma County Respondent; Super. Ct. No. SCV 256309)

ANDREA WATERS,

Real Party in Interest.

This writ proceeding requires us to resolve two questions related to whether an employer’s prelitigation investigation of an employee’s harassment and discrimination claims is protected from disclosure in discovery. As an initial matter, we consider whether the employer’s prelitigation factual investigation is protected by the attorney- client privilege or work product doctrine when the investigation is undertaken by outside counsel who is specifically directed not to provide legal advice as to which course of action to take. If we conclude the investigation is privileged, we must next consider whether the employer’s assertion of an “avoidable consequences” defense waives any applicable claim of privilege when the investigation was initiated after the employee had already left his or her job with the…