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In Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., decided May 31, 2016, the SJC addressed the issue of self-help discovery as protected activity.  The court said, in part:

“The question whether an employee’s acts of self-help discovery in aid of claims under G. L. c. 151B, § 4, may ever, under any circumstances, constitute protected activity is one of first impression for this court. …[W]e conclude that such conduct may in certain circumstances constitute protected activity under that statute, but only if the employee’s actions are reasonable in the totality of the circumstances.

“We emphasize two points in this regard.  First, the protections discussed here are limited, applying as they do only to employees pursuing claims under G. L. c. 151B.  Second, even as to plaintiffs pursuing such claims, protection is afforded only to those acts determined to be reasonable under the circumstances.  This being so, employees pursuing discrimination claims who access, copy, or disseminate confidential material “even under the best of circumstances . . . run the significant risk that the conduct in which they engage will not be found . . . [ultimately] to fall within the protection[s]” of the statute.”

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