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The highest court in Massachusetts has ruled that, in certain instances, an employee can access and obtain an employer's records in order to support a claim of employment discrimination. (Verdrager v. Mintz Levin, No. SJC-11901 (May 31, 2016)).According to the Massachusetts Supreme Judicial Court, employers must balance the efficiency of document sharing with their employees with the risk that employees will conduct their own self-help-discovery before and after initiating litigation.
The plaintiff, a former associate at the defendant law firm, alleged that she was subjected to gender discrimination and unlawful retaliation. While still employed at the law firm (and after filing a claim of discrimination with the Massachusetts Commission Against Discrimination ("MCAD")), the plaintiff accessed the firm's document management system, searching for documents and communications that could support her discrimination claim. She accessed and forwarded dozens of documents to her personal email account, even sharing some with her attorney. The law firm terminated the plaintiff, contending that she unlawfully accessed law firm documents.
The plaintiff alleged that she was discriminated against based on her gender and that the firm fired her in retaliation for filing her MCAD complaint. In ruling that the plaintiff's claims can proceed to a jury, the SJC also ruled on whether her "self-help" discovery could be considered "protected activity" under the state's anti-retaliation laws. The SJC held that, in certain instances, this form of "self-help discovery" may constitute protected activity.The SJC explained that a court must consider the "totality of the circumstances" to determine whether the plaintiff's actions could be protected activity. It said that courts must consider the following seven factors:
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