Self-Help Discovery May Be Protected Activity

Self-Help Discovery May Be Protected Activity

As a matter of first impression, the Massachusetts Supreme Judicial Court recently held that self-help discovery may constitute “protected activity” under Massachusetts’ anti-retaliation statute. The decision is contrary to other jurisdictions which do not expressly authorize such self-help discovery.

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In Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, the Plaintiff (an attorney) brought an action against her law firm alleging that she was discriminated against on the basis of her gender. Prior to her lawsuit, she complained to her superiors that she was being treated differently and demoted on the basis of her gender. Following this internal complaint, Verdrager searched the firm’s document management system for evidence that might prove her claims of gender discrimination. After the firm became aware of Verdrager’s searches, she was terminated “for cause.” Verdrager filed suit alleging discrimination and retaliation under General Laws c. 151B, § 4, which prohibits employers from discriminating against employees on the basis of gender and also prohibits retaliation against employees for engaging in “protected activity,” i.e., activity undertaken “to protest or oppose statutorily prohibited discrimination.”

The Court concluded that an employee’s self-help discovery to support discrimination claims under General Laws c. 151B, § 4, may constitute protected activity under the statute if his or her actions are reasonable considering the totality of the circumstances. In determining the reasonableness, the Court articulated seven factors to consider:

(1) how the employee came into possession of, or access to, the documents;

(2) whether the use or disclosure of the documents unduly disrupts the employer’s business;

(3) the strength of the employee’s expressed reason for copying the document;

(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;

(7) the broad remedial purposes the Legislature has advanced through laws against discrimination.

These factors were cited from a New Jersey Supreme Court decision, Quinlan v. Curtiss-Wright Corp, where the Court held that stealing documents was subject to anti-retaliation laws, i.e. that an employer could not terminate a Plaintiff for using the documents to pursue her claims for discrimination. In Quinlan, the court held that the removal of documents did not constitute “protected activity” but that the plaintiff’s use of a stolen document during a deposition did constitute “protective activity” because she:

“gave it only to her attorneys, it was directly relevant to her claim, she had a colorable basis to believe that the [performance] appraisal would not have been disclosed during discovery, and although the use of that document was clearly upsetting to [the employee who was the subject of the appraisal], … its disclosure did not threaten the operation of the company in any way.”

Despite the Verdrager and Quinlan holdings, and other jurisdictions which take a balanced approach to this issue, there is also a growing body of case law recognizing that, absent limited circumstances, employees do not have the right to self-help discovery, even when it is conducted to support possible claims or lawsuits against the employer. For example, in the Ninth Circuit decision, O’Day v. McDonnell Douglas Helicopter Co., the appellate court held that:

“In balancing an employer’s interest in maintaining a “harmonious and efficient” workplace with the protections of the anti-discrimination laws, we are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer’s discrimination practices; it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.”

Similarly, in the context of whistleblower claims, a Virginia district court held that “[b]y no means can the policy fairly be said to authorize disgruntled employees to pilfer a wheelbarrow full of an employer’s proprietary documents in violation of their contract merely because it might help them blow the whistle.” JDS Uniphase Corp. v. Jennings, 473 F. Supp. 2d 697.


There are certainly circumstances where the employer has the right to take action against an employee for theft or other related misconduct.  However, given the wide array of potential reasons for taking documents, the laws that might be implicated, and the types employer policies that may be involved, this is an issue that requires detailed case-by-case analysis. Employers, especially those with a national presence in multiple jurisdictions, should be careful in implementing policies and taking adverse employment actions against employees in these types of circumstances. At minimum, such instances should be thoroughly investigated by the employer, considering any computer usage/document policies and the laws that might apply. Any adverse employment action should also be taken promptly after an investigation, as to lessen the likelihood that the action will be viewed as retaliatory.

Contributor:  Daniel C. Kim, Attorney at Law | Weintraub Tobin