Premier New England Trial Attorneys

MA Employees May be Permitted to Engage in “Self-Help Discovery”

The Supreme Judicial Court’s recent decision in Verdrager v. Mintz Levin addressed the issue of whether an employee can lawfully take and disclose documents from his or her employer prior to the discovery process. The SJC created a seven-factor test to balance the “legitimate rights of both employers and employees.” This totality of the circumstances test requires the analysis of the following factors:

1. How the employee came to have possession of, or access to, the document;
2. The balance of the relevance of the seized documents to the employee’s legal action against the disruption caused to the employer’s ordinary business;
3. The strength of the employee’s expressed reason for copying the document rather than identifying its existence to counsel so that it might be request in discovery;
4. What the employee did with the document;
5. The nature and content of the particular document in order to weigh the strength of the   employer’s interest in keeping the document confidential;
6. Whether there is a clearly identified company policy on privacy or confidentiality that the employee’s disclosure has violated; and 
7. The broad remedial purposes the Legislature has advanced through our laws against discrimination.

In Verdrager, the employer, Mintz Levin, encouraged its employees to save most of their documents to the firm’s shared Electronic Information System (EIS), Desksite. Mintz Levin’s EIS Acceptable Use Policy informed its employees that “any documents in the public section of the system were available to everyone in the firm who could access Desksite.”

Kamee Verdrager filed an internal complaint alleging gender discrimination and harassment in 2004 and 2007. She claimed that she was being treated differently because she was a female and because she took maternity leave. The firm investigated both complaints, but found no evidence to support her claims.

In May 2007, Verdrager found documents in Desksite that discussed her gender discrimination complaints, including confidential memos and talking points. Verdrager forwarded these documents to herself and to her attorney. She then filed a claim with the MCAD in December 2007 alleging that she was demoted based on her gender and retaliated against for taking maternity leave. Verdrager continued to work at the firm and continued to collect documents from Deskite to support her discrimination claim. In November 2008, Verdrager was terminated after Mintz Levin discovered that she had searched Desksite for documents relating to her claim. Verdrager then filed a second MCAD claim alleging that she was terminated in retaliation for her previous discrimination claims. 

The Superior Court granted summary judgment for Mintz Levin in 2013, however the Supreme Judicial Court (SJC) reversed the decision on May 31, 2016 and stated that the evidence supporting Verdrager’s claims were substantial enough to warrant a jury trial. The SJC held that employers are barred from retaliating against employees who search for, obtain, and share with their attorney, documents that may help prove their discrimination claims. The justices noted that the practice of self-help discovery may sometimes “constitute protected activity . . . but only if the employee’s actions are reasonable in the totality of the circumstances.” This case will return to the lower court for a jury trial. At this time, no date has been set.

The SJC’s rule encourages Massachusetts’ employers to assess their practices regarding the electronic filing of confidential documents. If you have any questions about how this decision may affect you or your business, please do not hesitate to contact us.