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SJC-12054

     NANCY CHADWICK     vs.   DUXBURY PUBLIC SCHOOLS & others.1



            Plymouth.     May 3, 2016. - October 4, 2016.

 Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                             Hines, JJ.2


Privileged Communication. Evidence, Privileged communication.
     Practice, Civil, Discovery. Public Employment, Collective
     bargaining. Labor, Collective bargaining.



     Civil action commenced in the Superior Court Department on
December 8, 2014.

     A motion to compel discovery was heard by Raffi Yessayan,
J.

     A question of law presented in a petition for leave to
prosecute an interlocutory appeal in the Appeals Court was
reported by Andrew R. Grainger, J. The Supreme Judicial Court
on its own initiative transferred the case from the Appeals
Court.


     Jonathan J. Margolis (Beth R. Myers with him) for the
plaintiff.

     1
         Karen Baynes, Andrew Stephens, and Marc Talbot.
     2
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                    2


     John J. Cloherty, III, for the defendants.
     The following submitted briefs for amici curiae:
     Ava R. Barbour, of Michigan, Matthew D. Jones, Ira C.
Fader, James A.W. Shaw, Jasper Groner, Haidee Morris, Matthew E.
Dwyer, Eric P. Klein, & Katherine D. Shea for Massachusetts
Teachers Association & others.
     Paul T. Hynes & Michael R. Keefe for Professional Fire
Fighters of Massachusetts.
     Stephen J. Finnegan & Christopher J. Petrini for
Massachusetts Association of School Committees, Inc., & another.


     HINES, J.   In this appeal, we consider an issue of first

impression:   whether an employer, in defense of a lawsuit

alleging discrimination in employment filed by a union member,

may demand communications between the union member and her union

representatives or between union representatives acting in their

official capacity.   The issue arises on interlocutory review of

a discovery dispute in a Superior Court action brought by the

plaintiff, Nancy Chadwick, alleging claims of discrimination and

retaliation against the defendants.3   The plaintiff objected to

certain of the defendants' discovery requests, asserting a

"union member-union" privilege.   A Superior Court judge rejected

the plaintiff's claim and entered an order compelling production

of the requested discovery.   The plaintiff filed an application

for relief under G. L. c. 231, § 118, and a single justice of

the Appeals Court reported the issue to a panel of the Appeals



     3
       The plaintiff claimed unlawful handicap discrimination,
failure to provide reasonable accommodation, and retaliation.
                                                                   3


Court.4   We transferred the case to this court on our own

motion.

     In her challenge to the defendant's discovery requests, the

plaintiff concedes that a union member-union privilege has never

been recognized in Massachusetts.   She argues, however, that

G. L. c. 150E, the statute establishing the collective

bargaining rights of public employees, should be interpreted to

recognize a union member-union privilege and that such a

privilege bars the employer's access to the requested discovery.

We affirm the judge's ruling declining to recognize such a

privilege, as we discern no legislative intent to incorporate

within G. L. c. 150E a union member-union privilege extending

beyond the labor dispute setting, and we decline to recognize

the privilege under common law.

     Background.   The following summary of the facts is drawn

from the allegations in the plaintiff's complaint, the motion




     4
       The plaintiff filed two applications for relief under
G. L. c. 231, § 118, from the Superior Court judge's order
compelling production of the communications. In the first, she
requested that a single justice of the Appeals Court recognize a
privilege and remand for entry of a protective order. The
single justice affirmed the judge's order compelling production
but allowed the plaintiff an opportunity to seek further review.
In her second petition, the plaintiff requested that the single
justice report the case to the full court. In response, the
single justice reported the issue to a panel of the Appeals
Court.
                                                                     4


judge's memorandum of decision and order on the defendants'

motion to compel, and other relevant documents in the record.

    1.   The alleged discrimination and retaliation.     Beginning

in 2006, and continuing to her retirement in 2015, the plaintiff

was employed as an English teacher at Duxbury High School.

During her employment by the Duxbury public schools, the

plaintiff was represented by the Duxbury Teachers Association,

the local affiliate of the Massachusetts Teachers Association.

She served as president of the Duxbury Teachers Association for

six years, from 2010 to 2015.

    In 1998, the plaintiff was diagnosed with posttraumatic

stress disorder (PTSD), but she successfully managed the

symptoms until 2009.   After 2009, she experienced panic attacks,

anxiety, hypervigilance, and disturbed sleep patterns, which she

asserts were caused by work conditions, including bullying and

harassment from her direct supervisor.   In 2012, the plaintiff's

attorney notified the school superintendent of her PTSD

diagnosis and requested accommodation in the form of a

replacement supervisor.   In response, the school superintendent

assigned the assistant principal to conduct the plaintiff's

performance evaluation but declined to alter the subject-matter

supervisor for the English courses that the plaintiff taught.

    In December, 2013, and between March and May, 2014, the

plaintiff and the defendants engaged in a series of interactions
                                                                     5


that, according to the plaintiff, involved discrimination and

retaliation against her.5    On June 9, 2014, the plaintiff was

placed on a "directed growth plan,"6 a disciplinary action that

permitted Duxbury public schools to dismiss her at the end of

the 2014-2015 school year.    The plaintiff commenced this lawsuit

seeking monetary damages in December, 2014.7

     2.   The discovery requests.   On January 5, 2015, the

defendants served document requests and interrogatories pursuant

to Mass. R. Civ. P. 26, as amended, 423 Mass. 1401 (1996), and


     5
       In December, 2013, the assistant principal completed an
evaluation that the plaintiff asserts contained false and
unwarranted criticisms. In March, 2014, the plaintiff's
immediate supervisor sent her an electronic mail (e-mail)
message referencing errors the plaintiff allegedly made entering
data in the school's electronic grading system. In May, 2014,
the principal summoned the plaintiff to a meeting with the
superintendent, the principal, the assistant principal, and the
plaintiff's immediate supervisor regarding certain performance
issues. The day of the meeting, the plaintiff's counsel
delivered a letter to the superintendent, reminding him of her
posttraumatic stress disorder diagnosis and requesting that the
plaintiff's immediate supervisor limit contact with the
plaintiff to group settings. The record does not indicate
whether this request was allowed.
     6
       Neither this document nor other letters and e-mail
messages referenced in the background are contained in the
record.
     7
       In her complaint, the plaintiff asserted that she filed a
complaint with the Massachusetts Commission Against
Discrimination on June 24, 2014. The defendants denied the
allegation and defended on the ground that the plaintiff has not
exhausted administrative remedies. The details of this
complaint are not in the record, and neither party has raised
this as an issue in this appeal.
                                                                   6


Mass. R. Civ. P. 33, as amended, 385 Mass. 1212 (1982),

respectively.   On June 19, 2015, the plaintiff objected to

certain of the discovery requests,8,9 claiming a union member-


     8
       The plaintiff objected to the following interrogatories on
the basis of an asserted union member-union privilege:

          "Identify, by name, business address and telephone
     number, each person whom Plaintiff believes to have
     knowledge of any of the events alleged in this Complaint,
     and set forth the specific knowledge that each such person
     is believed to have."

          "Set forth in full detail the sum and substance of any
     unrecorded oral statements you believe you may have made to
     the Defendant (or employees, or former employee, of the
     Defendant) concerning the Incidents alleged in the
     Complaint and, of the injuries (or damages) alleged in the
     Complaint, or which you intend to use for any purpose in
     the litigation."

          "Identify (a) each person (other than Plaintiff's
     attorneys) with whom Plaintiff has discussed any of the
     Incidents alleged in his [sic] Complaint; (b) the date,
     place and means (e.g., telephone, face-to-face
     conversation, e-mail) of each such discussion; (c) the
     substance of each such discussion; and (d) any other
     persons who were present during each such discussion."
     9
       The plaintiff objected to the following requests for
document production claiming a union member-union privilege:

          "Request: All documents that Plaintiff provided to or
     received from her Union or Union representatives, including
     but not limited to the Massachusetts Teachers Association,
     at any time concerning Plaintiff's performance evaluations
     or performance reviews."

          "Request: All photographs, diagrams, depictions,
     videos, reenactments, sketches, drawings, tape recordings
     or other materials recorded and/or kept by Plaintiff that
     refer to the Incidents alleged in the Complaint."
                                                                     7


union privilege.   At the request of the defendants, the

plaintiff supplied a privilege log for ninety-two electronic

mail (e-mail) messages withheld from disclosure.    The defendants

filed a motion to compel production of the requested discovery,

and the plaintiff responded with an opposition and cross-motion

for protective order.10    The Superior Court judge declined the

plaintiff's request to recognize a union member-union privilege

and ordered the plaintiff to disclose all requested discovery

withheld on the basis of an asserted union member-union

privilege.   The judge acknowledged that some jurisdictions have

recognized a union member-union privilege, but he concluded that

the Legislature is the more appropriate body to weigh the policy

implications of doing so and declined the plaintiff's request to

create such a privilege.

     Discussion.   The plaintiff seeks recognition of a union

member-union privilege "that would protect from disclosure to


          "Request: Please provide copies of all electronic
     messages (i.e., emails, phone text messages or chat
     messages) sent or received by You that relates [sic] to the
     Incidents alleged in the Complaint in any way."
     10
       The plaintiff asked that the judge rule on her motion for
protective order as follows:

          "The Plaintiff's Cross-Motion for a Protective Order
     with Respect to Communications with her Union is ALLOWED.
     Communications between the plaintiff and her union, union
     representatives or other members on matters of union
     business are privileged to the extent that they were not
     intended to be distributed to third parties."
                                                                   8


employers communications between public sector employees and

their unions when made (1) in confidence; (2) in connection with

bargaining or representative services relating to anticipated or

ongoing disciplinary or grievance proceedings; (3) between an

employee (or the employee's attorney) and union representatives;

or (4) by union representatives acting in official

representative capacities."    Conceding that no such privilege

exists under G. L. c. 150E, the plaintiff argues instead that we

should interpret the statute as implying a union member-union

privilege to secure the collective bargaining rights inherent in

the statute.   More specifically, she contends that the

prohibited practices in G. L. c. 150E, § 10 (a) (1) and (2), are

vital to furthering the statute's purpose and that such

prohibitions must extend beyond the context of collective

bargaining disputes to protect employee and union interests.

    1.   Standard of review.   The issue before us comes by way

of a report for appellate review entered by a single justice of

the Appeals Court.   Under G. L. c. 231, § 118, first par., a

single justice of the Appeals Court has the authority to allow

appellate review of an interlocutory order or a question of law

contained therein.   CUNA Mut. Ins. Soc'y v. Attorney Gen., 380

Mass. 539, 540 (1980).   See Barnes v. Metropolitan Hous.

Assistance Program, 425 Mass. 79, 84 (1997).   On review of a

report by the single justice, we consider the merits of the
                                                                      9


underlying order.     CUNA Mut. Ins. Soc'y, supra at 540, 544.      The

issue whether the court should recognize a union member-union

privilege as implicit in G. L. c. 150E is a pure question of

law.    Thus, we accord "no deference to the judge's decision"

declining to recognize the privilege.       See Barr Inc. v.

Holliston, 462 Mass. 112, 114 (2012), quoting Sylvester v.

Commissioner of Revenue, 445 Mass. 304, 308 (2005), cert.

denied, 547 U.S. 1147 (2006) (reviewing interlocutory order

reported for appellate review by judge of Superior Court).

       2.   Statutory scheme.   We begin the analysis of the

plaintiff's claim by reviewing the statutory language to

determine if it reveals an unspoken legislative intent to create

a union member-union privilege.      General Laws c. 150E grants

public employees of the Commonwealth, as defined therein, the

right to bargain collectively over "wages, hours, and other

terms and conditions of employment, and to engage in lawful,

concerted activities for the purpose of collective bargaining or

other mutual aid or protection, free from interference,

restraint, or coercion."11      G. L. c. 150E, § 2.   As relevant

here, it is a "prohibited practice for a public employer" to,

among other things, (1) "[i]nterfere, restrain, or coerce any

       11
       General Laws c. 150E, § 6, also includes "wages, hours,
standards [of] productivity and performance, and any other terms
and conditions of employment" in the topics subject to
collective bargaining negotiations.
                                                                   10


employee in the exercise of any right guaranteed under this

chapter"; or (2) "[d]ominate, interfere, or assist in the

formation, existence, or administration of any employee

organization."   G. L. c. 150E, § 10 (a) (1), (2).   Considering

the statutory scheme as a whole, its essential purpose is to

protect the right of public employees to organize and to protect

unions and their members from intrusion or control by the

employer in the collective bargaining context.

    To determine whether the Legislature intended that

communications between a union member and a union representative

be protected from disclosure to an employer in its defense

against a civil action filed by an employee, "we look first to

the language of the relevant statute, which is generally the

clearest window into the collective mind of the Legislature."

Holmes v. Holmes, 467 Mass. 653, 659 (2014), citing Commonwealth

v. Nanny, 462 Mass. 798, 801-802 (2012).   "If the language of

the statute is unambiguous, our function is to enforce the

statute according to its terms."   Reading Co-Op. Bank v. Suffolk

Constr. Co., 464 Mass. 543, 547-548 (2013), citing Massachusetts

Community College Council MTA/NEA v. Labor Relations Comm'n, 402

Mass. 352, 354 (1988).

    We conclude that the privilege sought by the plaintiff is

not implicit in G. L. c. 150E, § 10 (a) (1) and (2), because

those provisions clearly are not intended to apply to a civil
                                                                  11


action.   First, the dispute underlying the plaintiff's civil

action is not related to "the formation, existence, or

administration of any employee organization," as protected in

G. L. c. 150E, § 10 (a) (2).   Although the plaintiff was

president of her local union for six years, her lawsuit relates

to allegedly discriminatory actions taken against her personally

as an employee, not to matters encompassing union activity.

Neither is a privilege implicit in § 10 (a) (1), which provides

that a public employer may not "[i]nterfere, restrain, or coerce

any employee in the exercise of any right guaranteed under this

chapter" (emphasis added).   The rights provided under c. 150E

protect collective bargaining and "lawful, concerted activities

for the purpose of collective bargaining or other mutual aid or

protection."   G. L. c. 150E, § 2.   Where the plain and

unambiguous language of § 10 (a) (1) restricts its application

to the collective bargaining context, we cannot say that, in

securing that right, the Legislature contemplated a necessity to

protect the confidentiality of union member-union communications

in a private lawsuit brought by the union member against the

employer.

    Consistent with the statutory emphasis on protecting the

right to collective bargaining, § 10 (a) (1) has been

interpreted by the Massachusetts Labor Relations Commission to

protect the confidentiality of communications between a union
                                                                  12


and its members in labor disputes.12   See Bristol County

Sheriff's Dep't, 31 M.L.C. 6, 17 (2004) (employer prohibited

from asking union members, during internal affairs

investigations, "overly-broad questions about the means and

methods by which the Union was organizing the upcoming picket"

because such organization "clearly falls within the realm of

concerted activities protected under [G. L. c. 150E, § 2]).     See

also City of Lawrence & Lawrence Patrolmen's Ass'n, 15 M.L.C.

1162, 1165-1166 (1988) (employer prohibited from demanding

content of letter containing communications between union

members and union administrator because subject matter protected

whether written or oral).

     A parallel provision in the National Labor Relations Act,

29 U.S.C. §§ 151 et seq. (2012), has been interpreted similarly

by the National Labor Relations Board (board).13   In Cook Paint &


     12
       This is the first case in the courts of the Commonwealth
where the existence of a union-member privilege has been
litigated, even though G. L. c. 150E was enacted in 1973, see
St. 1973, c. 1078, §§ 1-8, and the concept behind protected
collective bargaining has been recognized in a Massachusetts
statute since 1937, see St. 1937, c. 436, §§ 1-15, and St. 1938,
c. 345, § 2, inserting G. L. c. 150A. The likely explanation
for the dearth of cases raising the issue is the practice of the
Massachusetts Labor Relations Commission, where many labor
disputes are resolved, of protecting confidential communications
between a union and its members from disclosure during labor
disputes.
     13
       Decisions of the National Labor Relations Board (board)
are helpful for our analysis because the National Labor
                                                                  13


Varnish Co. & Paintmakers & Allied Trades Local 754, 258

N.L.R.B. 1230 (1981) (Cook Paint), the board ruled that

compelled disclosure of communications between an employee and

his union steward during the grievance process violated the

prohibition against interfering, restraining, or coercing

employees in the exercise of their collective bargaining

rights.14   Id. at 1232, citing 29 U.S.C. § 158(a)(1).   The

communications sought in Cook Paint related to an incident where

an employee allegedly fell in a paint spill after notifying his

union representative of the spill and being advised to return to

regular duties while the representative sought out the floor

supervisor.   Id. at 1230.   As a result of the incident, the

employer decided to discharge the employee.    Id.   The board

relied on the facts that the union representative's involvement



Relations Act, 29 U.S.C. §§ 151 et seq. (2012), contains
parallel provisions to G. L. c. 150E. Specifically, the
prohibited employment practices in G. L. c. 150E, § 10 (a) (1),
(2), as cited by the plaintiff, are addressed in parallel
provisions of the National Labor Relations Act. See 29 U.S.C.
§ 158(a)(1) (prohibited practice "to interfere with, restrain,
or coerce employees in the exercise of [collective bargaining]
rights"), and § 158(a)(2) (prohibited practice to "to dominate
or interfere with the formation or administration of any labor
organization or contribute financial or other support to it").
     14
       The board has also recognized that, for "collective
bargaining . . . to work, the parties must be able to formulate
their positions and devise their strategies without fear of
exposure. This necessity is so self-evident as apparently never
to have been questioned." Berbiglia, Inc., & Retail Store
Employees' Union, Local 782, 233 N.L.R.B. 1476, 1495 (1977).
                                                                  14


"arose solely as a result of his status as union steward" and,

after the union filed a grievance on behalf of the employee, the

employer specifically sought contemporaneous notes taken by the

representative in his capacity of carrying out union functions.

Id. at 1231-1232.

    In ruling that the employer impermissibly interfered with

the employee's collective bargaining rights by demanding the

substance of the conversations during the grievance process, the

board reasoned that "consultation between an employee

potentially subject to discipline and his union steward

constitutes protected activity in one of its purest forms."    Id.

at 1232.   The board specifically limited its ruling,

emphasizing, "[T]his case does not mean that all discussions

between employees and stewards are confidential and protected by

the [National Labor Relations Act].   Nor does our decision hold

that stewards are, in all instances, insulated from employer

interrogation."     Id.

    Unlike proceedings that are directly connected to the

collective bargaining context, the plaintiff here seeks a

protective order in a civil lawsuit against her employer.     Civil

lawsuits are beyond the zone of protection for union rights

contemplated in G. L. c. 150E.   Therefore, the plain and

unambiguous language of § 10 (a) (1) does not require that

communications between union members and union representatives
                                                                    15


be protected from interference by an employer defending itself

from an employee's civil action.

     3.    Common-law privilege.   Having concluded that there is

no statutorily based privilege implicit in G. L. c. 150E, we now

decline the plaintiff's request to judicially create such a

privilege.    Under Massachusetts law, a litigant or witness may

not rely on a privilege to withhold evidence in a legal

proceeding except as recognized by the "constitution, statute,

rules promulgated by the Supreme Judicial Court, or the common

law."     See Mass. G. Evid. § 501 (2016).   In the absence of a

recognized privilege as set forth in § 501, this court has the

power to create privileges, but "it is a power that we have

exercised sparingly."15    Babets v. Secretary of the Executive

Office of Human Servs., 403 Mass. 230, 234 (1988), citing Three

Juveniles v. Commonwealth, 390 Mass. 357, 360 (1983), cert.

denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068 (1984).

Privileges are exceptions to the general duty imposed on a

person to be a witness, disclose information, and produce

writings.    Matter of the Enforcement of a Subpoena, 463 Mass.

162, 166 (2012).


     15
        Until we recognized a judicial deliberative privilege in
Matter of the Enforcement of a Subpoena, 463 Mass. 162, 163
(2012), we had not recognized a common-law privilege since 1889.
See Matter of a Grand Jury Subpoena, 430 Mass. 590, 597 n.12
(2000).
                                                                      16


     a.   The plaintiff's reliance on other jurisdictions.      The

plaintiff relies principally on a recent case, Peterson v.

State, 280 P.3d 559 (Alaska 2012) (Peterson), in which the

Supreme Court of Alaska recognized a broad union-member

privilege based on language in the State's Public Employment

Relations Act.16   Id. at 564-565.   Peterson goes substantially

beyond other jurisdictions that have considered the matter, and

is the only case we have located where a court has judicially

recognized such a privilege for civil lawsuits without relying

on a State statute specifically protecting the same.17    The

Supreme Court of Alaska held that "[a]ny attempt by the State to

force disclosure of confidential communications between an

employee and a union representative during a grievance

proceeding would constitute an unfair labor practice" (emphasis

     16
       Alaska's Public Employment Relations Act contains
provisions similar to § 8 of the Federal act and to § 10 (a) of
G. L. c. 150E. See Peterson v. State, 280 P.3d 559, 565 (Alaska
2012), citing Alaska Stat. § 23.40.110.
     17
       In Bell v. Village of Streamwood, 806 F. Supp. 2d 1052
(N.D. Ill. 2011), a judge of the United States District Court
for the Northern District of Illinois adopted a portion of an
Illinois statute granting a broad union-member privilege. Id.
at 1056, citing 735 Ill. Comp. Stat. 5/8-803.5. The privilege
recognized in that case protected communications made "(1) in
confidence; (2) in connection with 'representative' services
relating to anticipated or ongoing disciplinary proceedings; (3)
between an employee and his union representative; (4) where the
union representative is acting in his or her official capacity."
Id. Conversely, the statute is not limited to communications
relating to anticipated or ongoing disciplinary proceedings.
735 Ill. Comp. Stat. 5/8-803.5(a).
                                                                     17


in original).   Id. at 565.   The communications at issue in

Peterson developed during a grievance proceeding, but when the

union and the State were unable to resolve the issue, the

employee filed a civil suit claiming wrongful termination.        Id.

at 561.   The court created a broad union-member privilege after

reasoning that the "protection against forced disclosure of

confidential union-related communications should not be lost if

the grievance dispute is not resolved and the employee files a

civil suit" because "the strong interest in confidential union-

related communications" would otherwise be undermined.     Id. at

565.

       Other jurisdictions that have analyzed this issue have

declined to judicially create privileges that would apply to

matters outside of grievance proceedings or disciplinary

investigations.   The Supreme Court of New Hampshire, although

recognizing that "an employer engages in an unfair labor

practice when it compels a union representative to disclose

confidential communications with a union employee" during a

disciplinary investigation, declined to create a privilege that

would apply in the context of a grand jury proceeding.     In re

Grand Jury Subpoena, 155 N.H. 557, 560-561, 563 (2007).     The

court reasoned that the petitioner "failed to show that the

union relationship is so highly valued by an ordered society

that its confidences warrant protection even at the cost of
                                                                  18


losing evidence important to the administration of justice."

Id. at 563, quoting In re Grand Jury Subpoenas Dated January 20,

1998, 995 F. Supp. 332, 335 (E.D.N.Y. 1998).   Likewise, a

California court declined to recognize a union-member privilege.

In American Airlines, Inc. v. Superior Court, 114 Cal. App. 4th

881, 891 (2003), the court concluded that determination of the

"countervailing policy reasons why a union representative should

not be compelled during civil litigation to disclose factual

information obtained from other union members he or she

represents . . . is the province of the Legislature, not this

court" (emphasis in original).

    b.   The Legislature's role.   In any event, the question

whether to create such a privilege is better left to the

Legislature.   The decision to create a privilege requires a

"balancing of the public's interest in obtaining every person's

[evidence] against public policy considerations in favor of

erecting a . . . privilege."   Three Juveniles, 390 Mass. at 364.

As to this issue, the Legislature may be in a better position to

decide whether to create a privilege and, if so, to weigh the

considerations involved in defining its contours.   See Matter of

a Grand Jury Subpoena, 430 Mass. 590, 598-599 (2000), S.C., 443

Mass. 20 (2004).   See also Babets, 403 Mass. at 235, quoting

McCormick, Evidence § 75, at 180 (3d ed. 1984) ("It may be

argued that legitimate claims to confidentiality are more
                                                                    19


equitably received by a branch of government not preeminently

concerned with the factual results obtained in litigation, and

that the legislatures provide an appropriate forum for the

balancing of the competing social values necessary to sound

decisions concerning privilege").

    Not only is the Legislature the more appropriate body to

weigh policy considerations and the contours of any such

privilege, this is not an appropriate case on which to

judicially create such a privilege.      We have been "especially

reluctant to create new privileges on the basis of speculation

or conjecture as to the harms which may result from our failure

to do so."   Babets, 403 Mass. at 238.     The record before us

contains a privilege log listing a series of communications

between the plaintiff and representatives and members of her

union.   We do not know the content of those communications or

the context in which they were made.     We do not know if they

were made in a confidential setting or whether they were made to

the union representative while acting in that role.     Without

clarity in the record on these points, any harm to the plaintiff

in declining her request to create a privilege is only

speculative.
                                                               20


     Conclusion.   We decline to create a union member-union

privilege in this case, and we affirm the order below.18

                                   So ordered.




     18
       The only issue before us is whether a Massachusetts court
should recognize a union member-union privilege. Although we
decline to recognize the privilege in the circumstances of this
case, we do not address whether a protective order may be
entered under Mass. R. Civ. P. 26 (c), as amended, 466 Mass.
1401 (2013). A court has inherent powers to issue protective
orders "to prevent abuses, oppression, and injustices,"
Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 213-214
(2011), quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35
(1984), and may exercise that power in appropriate circumstances
involving communications between a union member and her union.
