Jun 09, 2016 Timothy T. Coates
City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023

The Court of Appeal issued a peremptory writ of mandate in favor of GMSR’s client, the City of Petaluma, directing the trial court to vacate a discovery order. The trial court had granted plaintiff’s motion to compel discovery of materials relating to a prelitigation investigation by the City’s outside counsel of the factual basis of plaintiff’s FEHA claims, ruling that the investigator was not acting as an attorney. The Court of Appeal initially denied the petition summarily, but, on GMSR’s petition for review, the Supreme Court directed the Court of Appeal to consider the writ petition on its merits. The Court of Appeal found that the City had an attorney/client relationship with the investigator even though her role was limited to fact-finding and did not extend to providing advice, because she was bringing to bear on the investigation her expertise in employment law. The Court also found that the City had not waived the attorney/client privilege with respect to the investigation by asserting the avoidable consequences defense (which allows the employer to escape liability for damages the employee could have prevented with reasonable effort). Rejecting plaintiff’s argument that the City put the investigation at issue by asserting the defense, the Court agreed with GMSR’s position that the City did not and could not rely on the investigation as a defense under the circumstances of the case and hence there was no waiver of the privilege as to the investigation.

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