Employers can take many steps to help maximize the likelihood that attorney-client privileged information and work product will be protected in the context of employment-related investigations.

In the recent case of City of Petaluma v. Superior Court (Andrea Waters), the California Court of Appea held that the attorney-client privilege and work product doctrine protected outside legal counsel’s post-termination factual investigation from disclosure in litigation. The court further held that the employer did not waive the privilege by asserting the “avoidable consequences” defense—claiming that the plaintiff failed to take reasonable steps or use available opportunities to avoid harm—where the investigation occurred after the termination of the employment relationship.