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City of Petaluma v. Superior Court

Court of Appeal of California, First Appellate District, Division Three

June 8, 2016, Opinion Filed

A145437

Opinion

 [**200]  McGUINESS, P. J.—This writ proceeding requires us to resolve two questions related to whether an employer's prelitigation investigation [***2]  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 [*1028]  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 employer.

The trial court ruled in favor of the former employee on the privilege issue, concluding that outside counsel was acting as a fact finder and not an attorney who was providing legal advice. The court also concluded the employer waived any privilege that might be claimed by asserting an avoidable consequences defense and thereby placing the investigation at issue.

We conclude the trial court erred. The dominant purpose of outside counsel's factual investigation was to provide legal services to the [***3]  employer in anticipation of litigation. Outside counsel was not required to give legal advice as to what course of action to pursue in order for the attorney-client privilege to apply. Further, the privilege was not waived by the employer's assertion of an avoidable consequences defense under the circumstances presented here.

Factual and Procedural History

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248 Cal. App. 4th 1023 *; 204 Cal. Rptr. 3d 196 **; 2016 Cal. App. LEXIS 532 ***

CITY OF PETALUMA, Petitioner, v. THE SUPERIOR COURT OF SONOMA COUNTY, Respondent; ANDREA WATERS, Real Party in Interest.

Subsequent History:  [***1] The Publication Status of this Document has been Changed by the Court from Unpublished to Published June 30, 2016.

Review denied by City of Petaluma v. Superior Court, 2016 Cal. LEXIS 7811 (Cal., Sept. 14, 2016)

Prior History: Superior Court of Sonoma County County, No. SCV256309, Elliot Daum, Judge.

City of Petaluma v. Superior Court, 2016 Cal. App. Unpub. LEXIS 4259 (Cal. App. 1st Dist., June 8, 2016)

CORE TERMS

attorney-client, work product doctrine, legal advice, privileged, legal services, avoidable consequences, waived, communications, confidential, investigate, harassment, discovery, factual investigation, outside counsel, disclosure, claim of privilege, trial court, work product protection, sexual harassment, asserting, retention, dominant purpose, work product, postemployment, retaliation, documents, expertise, advice

Civil Procedure, Discovery & Disclosure, Discovery, Appeals, Appellate Jurisdiction, Interlocutory Orders, Remedies, Writs, Standards of Review, De Novo Review, Questions of Fact & Law, Substantial Evidence, Discovery, Privileged Communications, Attorney-Client Privilege, Evidence, Burdens of Proof, Allocation, Privileges, Attorney-Client Privilege, Scope, Legal Ethics, Client Relations, Duties to Client, Duty of Confidentiality, Elements, Representation, Work Product Doctrine, Scope of Protection, Waiver, Waiver of Protections, Client Relations, Privileged Communications, Labor & Employment Law, Sexual Harassment, Defenses, Antiharassment Policy, Employer Liability, Harassment by Supervisors, Harassment, Hostile Work Environment