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Help Yourself: Mass. Court Approves Employee’s Self-Help Discovery in Discrimination Case

The Massachusetts Supreme Court has ruled that an attorney’s search for confidential firm documents in an effort to prove a discrimination claim against her employer may constitute protected activity.  The Court, in Verdrager v. Mintz Levin Cohn Ferris Glovsky & Popeo PC et al. (case number SJC-11901, May 31, 2016), held that such actions are sometimes protected by the law, “but only if the employee's actions are reasonable in the totality of the circumstances.” It also found that lawyers are not automatically barred from collecting documents for a discrimination lawsuit merely because of attorney-client confidentiality and privilege. While the case involves an attorney and her former law firm, the ruling has general applicability to all employer-employee relationships.


Plaintiff alleged that members of her firm’s labor and employment practice retaliated against her by giving her bad performance reviews and assignments after she complained about sexual harassment from one of her superiors. After complaining about this treatment, she filed a gender discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) which she contends led to her February 2007 demotion.

After she was demoted, the plaintiff began searching the firm’s document management system for information that might support her discrimination claims. She ultimately located and forwarded dozens of documents and communications to her personal email account, as well as to her attorney. When the firm learned of this activity, it terminated plaintiff, contending that she unlawfully accessed and disclosed sensitive law firm documents.

Self-Help Discovery and the “Totality of the Circumstances” Test

The plaintiff ultimately filed a lawsuit alleging that she was subjected to gender discrimination and unlawful retaliation. While the trial court granted summary judgment for the Boston law firm, the Massachusetts Supreme Court held otherwise, finding that the plaintiff had presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation. Importantly, this ruling applies to a broad range of employment discrimination claims. The significance of this decision lies in the fact that it is one of the first to address whether an employee may, before commencing litigation, surreptitiously collect documents for a discrimination lawsuit against her employer while still employed.

Defendant argued that the plaintiff’s termination was not retaliatory but rather a consequence of her alleged ethical violations. Plaintiff countered that this justification was mere pretext, offering evidence (as the Court ultimately concluded) from which a jury could reasonably infer an unlawful motive. Notably, the plaintiff contended that even if her search for company documents was the “real” reason for her firing, this act of “self-help discovery” constitutes a protected activity, and thus the firing would still be unlawful.

The Court noted that while it was not required to address the issue of self-help discovery (because it had already found that defendant was not entitled to summary judgement on the retaliation claim), it would nonetheless squarely address  the issue at it is one of “important public policy.”

Self-help discovery was an issue of first impression for the Court, and as such it considered the views of other courts. Specifically, the Court based its reasoning on a decision from the New Jersey Supreme Court wherein the court held that it is best to take “a flexible, totality of the circumstances approach that rests on consideration of a wide variety of factors, all of which must be balanced in order to achieve the essential goals embodied in” our antidiscrimination laws.  See Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 269 (2010).

The Massachusetts high court noted that it its primary objective on this issue was to strike a careful “balance . . . between the employer’s recognized, legitimate need to maintain an orderly workplace and to protect confidential business and client information, and the equally compelling need of employees to be properly safeguarded against retaliatory actions.”  See Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 722 (6th Cir. 2008).

The Court relied heavily on the Quinlan decision, which provided a nuanced (and potentially murky) seven-step test to determine the circumstances under which an employee may take an employer’s documents for use in an employment suit.  Under that test, “in deciding whether an employee is privileged to take or to use documents belonging to the employer,” courts must evaluate the following factors:

  1. How the employee came to have possession of, or access to, the document.
  2. What the employee did with the document.
  3. The nature and content of the particular document.
  4. Whether there is a clearly identified company policy on privacy or confidentiality that the employee's disclosure has violated.
  5. The circumstances relating to the disclosure of the document.
  6. The strength of the employee's expressed reason for copying the document.
  7. The broad remedial purposes the Legislature has advanced through our laws against discrimination; AND the effect, if any, that either protecting the document by precluding its use or permitting it to be used will have upon the balance of legitimate rights of both employers and employees.

While the Court in the Verdrager case does not apply this test to the facts of plaintiff’s case (as that will be an issue of fact for the trial court), it clearly adopts the Quinlan test, and finds that an employee who searches for, copies, and shares with counsel the employer’s confidential business records to bolster a discrimination claim may be protected from discipline under Massachusetts law.

The Court notes that when evaluating the level of “disruption” caused to an employer’s business resulting from seized documents, “the focus must be on whether the use or disclosure of the document unduly disrupted the employer’s business, rather than on any effect it had on individual company representatives.” In other words, personal reputation and professional embarrassment alone will not necessarily mean that a court should find in favor of the employer. In addition, the Court notes that “while the status of a document under the confidentiality and privilege rules is, to be sure, an important factor to be considered in the over-all reasonableness analysis, it is not, by itself, dispositive.”

A Careful Balance

The implications of this decision, and of similar decisions in other jurisdictions, are far-reaching. Although the Court articulates a test for balancing the interests of employers and employees, the ruling at least partially endorses employee fishing expeditions through an employer’s confidential records.  Moreover, in situations where an employee has been discovered to have accessed and disclosed company documents in connection with a complaint of discrimination, the employer must take extraordinary care with respect to any disciplinary action, because such action could itself be deemed unlawful under the self-help discovery doctrine.

As a critical first step, companies should maintain comprehensive confidentiality policies, which are clearly conveyed to employees and rigorously enforced.  These policies would cover not just confidential business documents or proprietary information, but also personnel records and files maintained by both Human Resources personnel and individual managers and supervisors.

The decision should serve as a wake-up call to employers with regard to confidentiality, data security and employee access to sensitive information. Employers should review their security protocols and procedures and ensure that confidential documents are stored in such a way as to not be easily searchable and accessible by all employees. Additionally, employers should consider implementing and/or revising their confidentiality or acceptable use policies to ensure that clear limits are set on the use of the company’s confidential information and unauthorized disclosure of such information is prohibited.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.