The trial court denied the plaintiff’s subsequent motion to compel production of the requested documents, and the plaintiff filed this writ petition. Under the facts of this case, consistent with Wellpoint Health Networks, Inc. v. Superior Court (Wellpoint)(1997) 59 Cal.App.4th 110 and Kaiser Foundation Hospitals v. Superior Court (Kaiser) (1998) 66 Cal.App.4th 1217, we conclude that the trial court erred. FACTUAL AND PROCEDURAL SYNOPSIS
Nexstar maintains that it is not obligated to disclose the communications, asserting its "defense counsel made those communications in anticipation of litigation." (Doc. 90 at 12) Nexstar observes that in Kaiser Foundation Hospitals v. Superior Court, 66 Cal. App. 4th 1217, 1226-27 (1998), the Court of Appeals held the privilege is not "waived by the employer's pleading of the adequacy of its prelitigation investigation as a defense to an action for employee discrimination or harassment." (Id.)
Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal.App.4th 110, 68 Cal.Rptr.2d 844 (2d Dist.1997) (investigation documents normally covered by attorney-client privilege or work-product doctrine discoverable because defendant waived protections in raising adequacy of investigation as defense to discrimination claim). But seeKaiser Foundation Hospitals v. Superior Court, 66 Cal.App.4th 1217, 78 Cal.Rptr.2d 543 (1st Dist.1998) (attorney-client privilege not waived by employer pleading adequate investigation of sex discrimination complaint if employer has produced substance of relevant in-house investigation by non-attorney personnel pursuant to stipulation that privileges were not waived and seeks to protect only specific communication between those personnel and employer's attorneys). In Harding v. Dana Transport, Inc., 914 F.Supp. 1084 (D.N.J.1996) the defendant had brought in an outside attorney to investigate sex discrimination and sexual harassment claims.
If the response and any privilege log provide sufficient information to permit the court to determine whether the asserted privilege protects specific documents from disclosure, the court may rule on the merits of the objection by either sustaining it or overruling it as to each document. (Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1228–1229, 78 Cal.Rptr.2d 543 (Kaiser Foundation ).) The Code of Civil Procedure authorizes two other types of motion to compel compliance with an inspection demand.
On these instances, those communications are protected. The Court finds Kaiser Foundation Hospitals v. Superior Court, 78 Cal.Rptr.2d 543 (Cal.Ct.App. 1998), instructive here. There, the plaintiff sought communications between Kaiser's in-house counsel and a Kaiser employee who had been tasked with investigating sexual harassment allegations.
In cases where counsel had an advisory, rather than a fact-gathering, role in the investigation, courts have come to differing conclusions as to whether the implied waiver extends to attorney-client communications. For example, in Kaiser Foundation Hospitals v. Superior Court of San Mateo County, 66 Cal. App. 4th 1217, 78 Cal. Rptr. 2d 543 (1998), the petitioners sought to protect thirty-eight pages of withheld or partially redacted communications between their human resources consultant and the in-house attorney who was "periodically consulted." Id. at 1220-21.
The expression is jargon, commonly used by courts and attorneys to express the requirements of subdivision (g)(3) of section 2031. (See e.g., Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1223 [ 78 Cal.Rptr.2d 543]; Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 269 [ 69 Cal.Rptr.2d 112].) All further statutory references are to the Code of Civil Procedure, unless otherwise stated.
See id. Distinguishable here, plaintiff's claims are for retaliation and wrongful termination, which do not require a showing of an employer's actual or constructive knowledge or the adequacy of the employer's investigation. See Cal. Lab. Code § 1102.5; Kaiser Found. Hosps. v. Superior Court, 66 Cal. App. 4th 1217, 1226-27 (1998) (clarifying that Wellpoint "did not make a blanket holding that the attorney-client privilege and the work product doctrine are waived in every case that an employer puts the adequacy of its prelitigation investigation at issue[,]" and holding that no waiver occurs where an employee is afforded the entirety of an investigation report with the exception of small redacted portions protected by the attorney-client privilege and the work product doctrine). Additionally, as defendant has shown, it has already provided plaintiff with discovery related to plaintiff's retaliation and wrongful termination claims.
However, each document must be independently assessed. Wellpoint, 59 Cal. App. 4th at 122; see also Kaiser Found. Hosps. v. Superior Court, 66 Cal. App. 4th 1217, 1223 (1998). C. Work Product Protection
Under the circumstances of Microsoft's assertion about how it will offer its defense, the court follows the middle ground in Kaiser Foundation Hospitals, Inc. v. Superior Court as the appropriate approach. See 66 Cal. App. 4th 1217, 1226, 228 (1998). There, the court held that if the employee is afforded the full discovery of the investigation (except for specified communications implicating privilege and work product), then there is no waiver.