The Massachusetts Supreme Judicial Court refused to find a
worker-union evidentiary privilege in a civil lawsuit by an educator against
her school, affirming the Superior Court.
Nancy Chadwick, a Massachusetts teacher at Duxbury High School and former president of the Duxbury Teachers Association, alleged
bullying and harassment by a direct supervisor, leading to her dismissal. She sued for discrimination and retaliation in
December 2014. At issue in discovery
were 92 emails sought by the defendant and alleged by the plaintiff to be protected
by a union-union member privilege.
The SJC, per Justice Hines, refused to recognize the
privilege under Massachusetts labor law or in common law. The Court recognized that labor statutes at both
the state and federal level, the latter per National Labor Relations Board
precedent, can privilege communication by union members. But looking to the apparent intent of the
legislature in Mass. Gen. L. ch. 150E, the Court reasoned that the scope of
that privilege is the protection of collective bargaining rights, not the furtherance
of a civil lawsuit.
In the common law analysis, the Court admonished that its
power to recognize privilege under Evidence Rule 501 to be “exercised sparingly.” The Court observed that the Supreme Court of Alaska
recognized a broad privilege under state statute in 2012. But that is the minority position. New Hampshire declined to find a privilege in
grand jury proceedings in 2007. And a
California appellate court opined in 2003 that the authority to create such a
privilege should rest with the legislature.
The SJC agreed that “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.”
McCormick on Evidence (3d ed. 1984) was quoted in a parenthetical: “It
may be argued that legitimate claims to confidentiality are more 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.”
Moreover, the SJC found “speculative” any harm that might result to the
plaintiff for the court’s refusal to recognize the privilege.
In a footnote, the SJC clarified that its decision did not
diminish inherent judicial powers to award protective order, as under civil procedure
rule 26(c).
The decision is significant in part because Massachusetts is
regarded as a state (or commonwealth) friendly to organized labor. The SJC decision asserts a conservative view
of separated powers such as to interpret statute and to evolve the common law under
rule 501. The latter especially has
implications for other potential common law privileges, such as the journalist’s
privilege. Also, because the decision
arises in the context of public employment, the lack of union privilege may
have implications for construction of sunshine laws that incorporate common law
and “other law” confidentiality by reference.
The case is Chadwick v. Duxbury Public Schools, no. SJC-12054 (Oct. 4, 2016) (PDF).
