United States: Employee's Self-Help Discovery May Be Protected Activity Under Massachusetts

Last Updated: June 8 2016
Article by Michael L. Rosen and Christopher Feudo

On May 31, 2016, the Supreme Judicial Court of Massachusetts held in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. that an employee's accessing, copying and forwarding of an employer's confidential documents may constitute protected activity under the Massachusetts anti-retaliation statute, G.L. c. 151B, § 4, if the employee's actions are "reasonable in the totality of the circumstances." Accordingly, an employee who searches for, copies, and shares with her attorney her employer's confidential business records to bolster her discrimination claim against her employer may be protected from discipline under Massachusetts law.

The SJC's ruling stems from a lawsuit brought against a Boston law firm, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., by one of its former attorneys. After the firm "stepped back" the plaintiff's seniority by two years and reduced her salary, purportedly due to her mixed reviews, her low utilization by the firm's more senior attorneys, and her high billing rate, the plaintiff retained an attorney in contemplation of pursuing a discrimination complaint against the firm. Several months later, the plaintiff discovered on the firm's document management system an internal memorandum discussing issues of gender discrimination at the firm. Thereafter, the plaintiff, on instructions from her attorney, searched the firm's system on several occasions for documents related to her case or gender discrimination at the firm, forwarded dozens of documents to her personal e-mail address, and shared two such documents with her attorney. The plaintiff then filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) claiming that her step-back was a result of gender discrimination.

After filing her claim, she searched the firm's system again and discovered transcripts of voicemails left for the firm's chairman that she copied and forwarded to her attorney. Many of these messages were from clients or potential clients and concerned matters protected by attorney-client confidentiality and privilege. After the plaintiff showed one of the firm's members a transcript of the chairman's voicemail messages copied from the system, the firm investigated and discovered the plaintiff's searches of the system related to her discrimination claim. Upon learning of the searches, the firm terminated the plaintiff's employment. In response, the plaintiff filed a second MCAD complaint, claiming that her termination was the result of unlawful gender discrimination and retaliation.

The plaintiff sued the firm and certain of its members in Superior Court for, among other things, gender discrimination and retaliation in violation of Massachusetts law. Prior to trial, the parties both moved for summary judgment, and the court granted the defendants' motion, dismissing the plaintiff's claims. On appeal, the plaintiff argued, among other things, that the dismissal of her retaliation claim was improper because her acts of self-help discovery (i.e. accessing, copying, and forwarding confidential documents in pursuit of her discrimination claim) constituted protected activity under G.L. c. 151B. She argued, therefore, that her termination for having engaged in that conduct was unlawful retaliation.

The SJC overturned the dismissal of the plaintiff's discrimination and retaliation claims, finding that she had presented evidence from which a reasonable jury could infer that her step-back and termination were the result of unlawful discrimination and retaliation. Accordingly, the SJC did not need to address whether the plaintiff's self-help discovery constituted protected activity. Nevertheless, without passing judgment on the plaintiff's conduct, the SJC held that an employee's self-help discovery may constitute protected activity in certain circumstances, but only if the employee's actions are "reasonable in the totality of the circumstances."

The SJC explained that, in determining whether an employee's acts of self-help discovery are reasonable, the analysis should first focus on whether the material obtained would have been discoverable under the Massachusetts Rules of Civil Procedure, reasoning that selfhelp discovery should not allow an employee to obtain more than what he or she would be entitled to receive through the litigation process. Even if the material would have been discoverable, the SJC opined, the employee's methods must still be reasonable under the totality of the circumstances. To make that determination, the SJC adopted a seven-factor test for courts to apply. The factors to be considered include:

  1. How the employee came to have possession of, or access to, the document (i.e. did the employee rummage through files or snoop around offices to find the document?);
  2. The relevance of the document compared to the disruption caused to the employer's business by the employee's actions;
  3. The strength of the employee's expressed reason for copying the document;
  4. What the employee did with the document (i.e. did he or she disseminate it to individuals other than his or her attorney?);
  5. The employer's interest in keeping the document secret;
  6. Whether there was a clearly identified company policy on privacy or confidentiality that the employee's disclosure violated; and
  7. The broad remedial purposes of Massachusetts anti-discrimination law, which is to play a "decisive role" in close cases.

The SJC viewed its ruling as striking a balance between employers' interests in maintaining order in the workplace and protecting confidential business and client information, and employees' need to be protected from retaliation. The decision – one of several pro-employee decisions issued by the SJC in recent years – is significant for Massachusetts employers for two reasons in particular. First, it demonstrates how broadly Massachusetts courts interpret G.L. c. 151B's anti-retaliation provision. Even in an instance of what might be considered to be clear employee misconduct, a Massachusetts employer should assess whether the employee has a basis to claim that her conduct constitutes protected activity.

Second, the decision is a wake-up call to employers on matters of data security and protection of confidential information. The SJC's decision signals that documents stored on an employer's server or document management system that can be readily accessed by employees are fair game for self-help discovery. Thus, employers should ensure that confidential documents are stored with appropriate security measures that an employee would need to unreasonably subvert to access the documents. Moreover, Massachusetts employers should consider adopting and/or revising their acceptable use and confidentiality 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. Finally, employers should consider implementing measures that would allow them to flag the unauthorized accessing and/or forwarding of confidential company documents before widespread unauthorized disclosure of such documents occurs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
25 Oct 2017, Webinar, Boston, United States

Foley Hoag will present a 60-minute webinar on Wednesday, October 25 at 12:30 pm EDT, offering guidance for in-house counsel regarding the basics of trademark and design protection in the European Union. Attendees will learn about the opportunities and pitfalls to be on the lookout for when looking to secure, protect, and enforce an IP portfolio overseas.

1 Nov 2017, Webinar, Boston, United States

Please join Foley Hoag on Wednesday, November 1, 2017 for a webinar that covers the details of drafting an appropriate arbitration clause for your company’s commercial contracts.

9 Nov 2017, Conference, Waltham, United States

Please join us on Thursday, November 9 at the Westin Waltham Hotel for our quarterly New England M&A Forum, which brings the latest in market trends and recent legal developments to the New England M&A professionals' community.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.