New England Biz Law Update
The Supreme Judicial Court has allowed Kamee B. Verdrager’s application for direct appellate review of the summary judgment dismissal of her discrimination suit against Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, Chairman R. Robert Popeo and others.
The case will see the SJC address, for the first time, a matter involving the use of “self-help discovery.”
Verdrager — who joined Mintz Levin in 2004 — sued the Boston firm for gender discrimination in 2007 after she failed to make partner.
Verdrager previously told Lawyers Weekly that she rejected a $700,000 settlement offer in November 2008. She said she was informed a week later that she would be laid off in a move that the firm claims in filings was in response to the slowing economy and excess capacity.
At that point Verdrager confronted Mintz Levin partner Kim V. Marrkand with one of many documents she had downloaded from the firm’s document library that she believed constituted “smoking gun” proof of her allegations, according to filings in the case. In its opposition to Verdrager’s SJC petition, Mintz Levin — represented by Choate, Hall & Stewart’s Joan A. Lukey — claims Verdrager also demanded a seven-figure settlement at that time.
Outraged to learn Verdrager had been harvesting — and sharing with her own lawyer — Mintz Levin documents that she believed supported her discrimination claims, Popeo ordered her immediate termination and reported her to the Board of Bar Overseers. The case now turns on the propriety of Verdrager’s conduct.
Verdrager argues that the documents came from the “public” section of the firm’s DeskSite library and that “firm policy informed users that they had no expectation of privacy in the DeskSite system.” Lukey’s opposition counters that Verdrager “proactively searched for, copied and transmitted to her lawyer privileged and confidential documents, many of which were irrelevant to her claims.”
The BBO unanimously cleared Verdrager in 2012, concluding that “any experienced plaintiff’s lawyer would have advised [Verdrager] to copy everything she could get her hands on that was freely available and pertinent to her claim. And that is all she did.”
SJC Justice Francis X. Spina affirmed the BBO ruling and noted that the court had never decided a case “involving the use of so-called self-help discovery.”
But back in Superior Court, where Verdrager’s discrimination lawsuit was pending, Judge Peter M. Lauriat granted Mintz Levin summary judgment in late 2013 after finding that the firm “has produced evidence to support its position that [Verdrager’s demotion] was based upon performance concerns,” not discrimination. Lauriat allowed counterclaims based on Verdrager’s document collection to proceed.
Verdrager, now representing herself pro se, argues that allowing the decision to stand would weaken Massachusetts’ unlawful discrimination statute by giving employers license to freely “terminate and prosecute any employee who retains evidence or who shares it with an attorney, without fear of a viable retaliation claim, by simply claiming disloyalty and breach of contract (if restricted by an employer policy or agreement).”
She has the backing of the Massachusetts Employment Lawyers Association.
“[A] plaintiff’s non-deceptive use of employer documents that are not genuinely confidential and do not affect third-party interests should not be considered a legitimate, non-discriminatory reason for an adverse employment action,” Boston lawyers Ellen J. Messing of Messing, Rudavsky & Weliky and Courtney M. Hostetler of Zalkind, Duncan & Bernstein write in the association’s amicus brief. “Such an approach would go some distance toward leveling the playing field in employment discrimination cases, in which most information and documents of value are typically held by the employer.”
Noting that “[e]mbodied within the trust and confidence placed in an attorney are the duties to maintain client confidentiality and not to misappropriate law firm property,” Lukey counters that Verdrager’s actions “were a betrayal of trust” that cannot insulate her from being fired.
The SJC allowed Verdrager’s application for direct appellate review June 26; oral arguments have not yet been scheduled.
