VALENTIN LLC v. TOWN OF NATICK (2023)

MEMORANDUM AND ORDER

INTRODUCTION

Before the Court is Attorney Karis North's (“Attorney North”) Motion to Quash Subpoena Pursuant to Fed. R. Civ. P. 45(d)(3), or in the Alternative for a Protective Order Pursuant to Fed. R. Civ. P. 26(c)(1). Docket No. 86. The Motion seeks to forestall the deposition of Attorney North, who is counsel of record to the defendants Town of Natick, Planning Board of the Town of Natick, and Natick Historical Commission, as well as Theresa Evans, Andrew Meyer, Julian Munnich, Glen Glater, and Peter Nottonson (in their individual capacities and in their official capacities for the Town of Natick) (together, “Defendants”).

The parties have briefed the issues (see Docket Nos. 87, 89) and on February 2, 2023, I held a hearing on the motion. At that hearing I invited the parties to make supplemental submissions, to direct attention to specific relevant excerpts of discovery. Docket No. 99. The parties have submitted supplemental memoranda with attached excerpts from written discovery and deposition transcripts. Docket Nos. 103-104.

After a hearing, and upon consideration of the parties’ submissions, the Court DENIES the motion to quash for the reasons addressed below.

I. Factual Background

Plaintiffs Linda and Joel Valentin (“Plaintiffs”) are a black couple of Haitian origin who have lived in Natick for over 30 years. See Order on Motion to Dismiss, Docket No. 76, at 1.¹ In 2005, Plaintiffs bought a historic property at 50 Pleasant Street in South Natick, a predominantly white neighborhood. See id. at 2. The property included over an acre of land and a single family residence, zoned for single-family use. See id. Built in or about 1917, the residence was once the main house for a larger parcel of 34 acres, known as White Gables Park, which contained a large barn, stable, carriage house, and garages. See Complaint, Docket No. 1, at ¶ 31. The other structures no longer exist, and the parcel was subdivided, but the residence is qualified as an “Historic Structure” subject to historical preservation bylaws. See id. at ¶¶ 31, 36-40.

Under a 2014 Historic Preservation Bylaw (“2014 Bylaw”), historically significant buildings in Natick may be enlarged and adapted as multiple-unit dwellings (even in districts zoned for single family use). See id. at ¶¶ 37-40. The process requires application for a special permit from the Planning Board and unanimous consent from the Natick Historical Commission. See id.

In 2019, the Planning Board proposed a new Historic Preservation Bylaw (“New Bylaw”), which allowed for new construction that “replicate[d] documented previous structures that had existed on the site,” up to twice the floor area of the former structure. See id. at ¶¶ 42-43. At a town meeting, Planning Board chair Theresa Evans (“Evans”), while speaking in support of the New Bylaw, identified Plaintiffs’ interest in restoring the previously existing barn as a potential use case for the New Bylaw. See Order on Motion to Dismiss, Docket No. 76, at 3. The New Bylaw was passed at a Natick town meeting with an overwhelming majority. See id.

In August 2019, Plaintiffs filed a special permit application with the Planning Board. The proposal included eleven condominium units and complied with the floor area parameters of the New Bylaw. See Order on Motion to Dismiss, Docket No. 76, at 3. Defendants initially received the project favorably, and the Natick Historical Commission indicated that the “proposed project will have great benefit to our local historic character and architecture[.]” Id.

Others in Natick were not in favor of the project; neighbors began an opposition campaign and created a website, www.stop50pleasant.org. See id. at 4. The website contained a comment section – now deleted – which contained comments that the Plaintiffs have alleged were racist, such as that the Plaintiffs were “monkeying around” and that the development was an “attack on South Natick.” See id.

Plaintiffs contend that local opposition to the project led the Defendants to “abandon” support for the New Bylaw and the Plaintiffs’ project, while also “adopting or acquiescing to the neighbors’ discriminatory views.” See Complaint, Docket No. 1, at ¶ 61.

Pertinent to the present motion are the events that led to the ultimate rejection of the project. At a November 2019 hearing, the Planning Board stated that the New Bylaw was unclear and sought a legal opinion from Attorney North, in her role as Town Counsel for the Town of Natick. See Order on Motion to Dismiss, Docket No. 76, at 4. Attorney North provided a legal opinion in the form of a December 2019 letter to the Planning Board which, Plaintiffs contend, found that the project comported with the New Bylaw. See id.

At a January 2020 hearing, Plaintiffs agreed to withdraw their application without prejudice, allegedly at the suggestion of the Planning Board. See id. at 5. In February 2020, the Plaintiffs renewed their application under the New Bylaw. See id. In the ensuing months, the Planning Board scheduled 17 public hearings on the new application, running through December 2020; See id. Simultaneously, town residents organized a campaign to repeal the New Bylaw, which was to come up for a vote at a town meeting in the fall of 2020. See id.

During public hearings in September and October of 2020, Evans twice stated that repeal of the New Bylaw would not impact the project. See id. at 6. On a separate occasion, Director of Community & Economic Development James Freas (“Freas”), after consulting Attorney North, confirmed that the Plaintiffs’ project would be grandfathered if the repeal were successful. See id. at 6-7.

On November 4, 2020, the Planning Board voted to approve certain technical aspects of the project but postponed a final vote on the project until a later meeting – after the vote on repeal of the New Bylaw. See id. at 7. At a November 10, 2020 town meeting, the New Bylaw was repealed. See id.

On November 24, 2020, Benjamin Tymann, an attorney representing one of the neighbors, wrote a letter to Attorney North “advocating the position that the repeal of the New Bylaw compelled the denial of Plaintiffs’ application.” Opp. to Motion to Quash, Docket No. 94, at 5. Shortly thereafter, Attorney North “circulated a new opinion of her own, largely adopting [Tymann's] position[.]” Id.

On December 2, 2020, the Planning Board denied the Plaintiffs’ renewed application on the grounds that the New Bylaw was no longer in effect. See Order on Motion to Dismiss, Docket No. 76, at 7. At that meeting, portions of Attorney North's November 2020 legal opinion were read into the record. See id. Plaintiffs contend that discovery has shown that Attorney North's November 2020 legal opinion was the basis for the Planning Board's denial determination. See Plaintiffs’ Supp. Memorandum, Docket No. 103, at 4.

II. Procedural Background

Plaintiffs filed their complaint in May 2021. Early in the litigation, Plaintiffs sought to depose Attorney North. See Docket No. 47, at 12 (noting Plaintiffs’ strategic decision “to depose [Attorney North] early in the litigation to establish the factual bases for their claims”). Then, as now, Attorney North moved to quash the deposition. See Docket No. 42. Judge Saris referred the motion to Magistrate Judge Bowler. See Docket No. 45.

On December 21, 2021, Magistrate Judge Bowler held a hearing on the prior motion to quash. At that time, Magistrate Judge Bowler granted the motion for reasons set forth on the record. See Docket Nos. 48-49; see also Hearing Transcript, Docket No. 77. Specifically, Magistrate Judge Bowler found that the deposition was “premature ․ in light of the availability of other means to obtain the information” while also noting that “depositions of opposing counsel are generally disfavored” and that fact discovery was not set to close for another year. Hearing Transcript, Docket No. 77, at 28-29. Magistrate Judge Bowler indicated that a renewed deposition request could be entertained “toward the end of discovery.” Id. at 29.

In September 2022, Judge Saris entered an order on Defendants’ motion to dismiss, permitting Plaintiffs’ Fair Housing Act, equal protection, and substantive due process claims to proceed. In the order, Judge Saris repeatedly identified the Town's reversal of position on grandfathering as one of the allegations that underpin the Plaintiffs’ plausible claims. See Order on Motion to Dismiss, Docket No. 76, at 11 (“At the third step, plaintiffs allege that the Board did not then grant the permit, delaying a decision until after the vote on repealing the New Bylaw, and ultimately denying the permit based on this repeal despite promises that their proposal would be grandfathered in.”), at 12 (“Here, defendants are alleged to have delayed the project, asked for expert opinions and then ignored them, and misrepresented the consequences of the repeal.”), and at 14 (“The Board reversed course twice as to the 2019 Bylaw—first finding that its once clear requirements were so confusing that it disagreed with the Town Counsel opinion it had sought and later finding its repeal applied to pre-existing proposals, contrary to its previous reassurances about grandfathering.”) (emphasis added).

On December 16, 2022, having completed most of the scheduled depositions, Plaintiffs sent a letter to the Town of Natick, attaching a subpoena to depose Attorney North.² See Ex. 1, Motion to Quash, Docket No. 87-2. Shortly thereafter, Plaintiffs filed an assented-to motion to extend the fact discovery deadline (set for December 30, 2022), for the limited purpose of taking the deposition of Attorney North and/or permitting Attorney North to file a motion to quash. See Docket No. 79.

III. The Pending Motion

Attorney North filed the instant motion to quash on January 13, 2023. Attorney North argues that attorney depositions are generally discouraged, that Plaintiffs have other sources from which they could have gained the same information, and that Plaintiffs’ focus on Attorney North is harassing.

Plaintiffs filed their opposition on January 23, 2023. Plaintiffs argue that the deposition of Attorney North is necessary because other witnesses have claimed they do not recall the pertinent events. They contend that the deposition will be limited to nonprivileged information of crucial importance to the Plaintiffs’ case.

Plaintiffs’ proposed deposition topics include: 1) Attorney North's conversations with Planning Board chair Teresa Evans and Director of Community & Economic Development James Freas about the impact of repeal on the project; 2) whether and how local neighbors or their attorneys influenced Attorney North's November 2020 legal opinion; and 3) conversations and communications between Attorney North and Evans or Freas between September and December 2020 (months relevant to the repeal of the New Bylaw and its impact on the project). See Opp. to Motion to Quash, Docket No. 94, at 2.

IV. Legal Standard

Rule 45 of the Federal Rules of Civil Procedure provides:

on timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

* * *

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

Fed. R. Civ. P. 45(d)(3)(A) (emphasis added).

Under Rule 26, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Further, Rule 26 “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

V. Analysis

Deposing a party's lawyer is a perilous proposition. See Bogosian v. Woloohojian Realty Corp., 323 F.3d 55, 66 (1st Cir. 2003) (“Although not strictly forbidden, the procurement of trial testimony from opposing counsel is generally disfavored.”); Abiomed Inc. v. Maquet Cardiovascular LLC, No. 1:16-CV-10914-FDS, 2017 WL 11625640, at *2 (D. Mass. Oct. 6, 2017) (Boal, M.J.) (“Any time a deposition notice names an opposing party's counsel, current or former, as the deponent, red flags go up.”). Appropriately, the reported decisions warn that “[a]llowing depositions of opposing counsel ․ may disrupt the effective operation of the adversarial system by chilling the free and truthful exchange of information between attorneys and their clients,” can “create a unique opportunity for harassment,” and “carry the substantial potential of spawning litigation over collateral issues[.]” Sterne Kessler Goldstein & Fox, PLLC v. Eastman Kodak Co., 276 F.R.D. 376, 380-82 (D.D.C. 2011) (citations omitted) (collecting cases).

In Bogosian, the First Circuit identified factors to look at when considering an attempt to seek trial testimony from counsel. The Bogosian factors include: “whether (i) the subpoena was issued primarily for purposes of harassment, (ii) there are other viable means to obtain the same evidence, and (iii) to what extent the information sought is relevant, nonprivileged, and crucial to the moving party's case.” 323 F.3d at 66 (citations omitted). Several courts have applied the same factors in the context of discovery requests addressed to counsel. See, e.g., Weinreich v. Brooks, No. 21-CV-10496-NMG, 2022 WL 2373796, at *4 (D. Mass. Apr. 4, 2022) (“[The Bogosian] factors are also relevant to a situation such as here, where a party has subpoenaed documents from a former in-house counsel of the opposing party.”); In re Tyco Int'l Ltd., No. MDL 02-MD-1335-PB, 2007 WL 2682763, at *1 (D.N.H. Sept. 7, 2007) (“While Bogosian dealt with trial testimony, these factors are also relevant to depositions of trial counsel.”).

Along with Bogosian, several judges in this court have considered the multi-factor test laid out in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). See, e.g., Abiomed, 2017 WL 11625640, at *2 (applying the Shelton factors where subpoena sought deposition of in-house counsel); Bank of Am., N.A. v. Barnes Hill, LLC, No. 16-CV-11583-DJC, 2018 WL 10247150, at *1–2 (D. Mass. July 26, 2018) (applying the Shelton test where subpoena sought deposition of plaintiff's attorney). Shelton suggests that depositions should be limited to “where the party seeking to take the deposition has shown that, (1) no other means exist to obtain the information [other] than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” 805 F.2d at 1327 (citation omitted).

The factors identified in Bogosian and Shelton are largely duplicative. See Abiomed, 2017 WL 11625640, at *2 n.3 (identifying Bogosian and Shelton as “similar test[s]” but ultimately relying on the Shelton factors). The most notable distinction between the two is that Bogosian instructs the court to consider whether the serving party is motivated by harassment, which is a worthy consideration.

A. Relevant, Crucial, and Non-Privileged

To begin, it is clear that the information sought from Attorney North is relevant and possibly crucial to Plaintiffs’ remaining claims. In the order on the motion to dismiss – Judge Saris highlighted the Defendants’ reversal on grandfathering as an allegation that supported the Plaintiffs’ claims. Attorney North is clearly at or near the center of this dispute and was identified by Plaintiffs as a potential fact-witness in their initial disclosures. Attorney North does not press any argument that the information is irrelevant or tangential.

While Attorney North does not concede that the information sought by Plaintiffs is nonprivileged, it appears that Plaintiffs have limited the scope of proposed deposition in a reasonable effort to avoid privileged territory.³ Recognizing the heightened potential for privilege issues at stake in the deposition of an attorney, I am prepared to make myself available to make real-time privilege determinations.

B. Exhaustion

Courts in this district routinely scrutinize the discovery efforts of parties that seek to depose an opposing party's counsel.⁴ See, e.g., Petrosyan v. Maserati N. Am., Inc., No. 19-CV-12425-DJC, 2020 WL 8458123, at *3 (D. Mass. Nov. 18, 2020) (Boal, J.) (rejecting deposition of counsel, where the judge also granted (in part) a motion to compel further discovery on the same topic about which the deposing party sought testimony); see also Bradley v. Wells Fargo Bank, N.A., No. 12-CV-127-PB, 2015 WL 12856553, at *3 (D.N.H. Sept. 21, 2015) (“By deposing Bradley's counsel, the defendants seek information related to Bradley's foreclosed property, Bradley's counsel's communication with Bradley in 2011, and Bradley's counsel's communication with Mark and Sue Murray. This information is reasonably discoverable elsewhere.”).

After reviewing Plaintiffs’ efforts, I find that Plaintiffs have adequately exhausted other viable means of obtaining the information sought from Attorney North.

Plaintiffs outline their discovery efforts concerning the Town's reversal of position on grandfathering, which fall into three main categories. First, Plaintiffs note that Defendants have invoked attorney-client privilege to withhold and heavily redact “hundreds of emails and documents” and have “refused to answer three separate interrogatories regarding Attorney North's advice to Defendants[.]” Opp. to Motion to Quash, Docket No. 94, at 5-6. Second, during the depositions of Evans and Freas, “both testified that they recalled questions with Attorney North about whether and how the repeal would affect Plaintiffs’ application but were unable to testify to the substance of those conversations.” Id. at 6. Third, Plaintiffs suggest that some information is solely held by Attorney North, namely the effect of influence from the opposition campaign on her November 2020 legal opinion. Id. at 6-7.

The depositions of Evans and Freas revealed shortcomings which the deposition of Attorney North could remedy. Review of those deposition transcripts indicates that Plaintiffs’ counsel established that Attorney North had important conversations with Evans and Freas concerning the impact of repeal on the renewed application, but neither witness could recall the substance of those conversations. See Plaintiffs’ Supp. Memorandum, Docket No. 103, at 3-4. While Attorney North faults Plaintiffs’ counsel for failing to adequately press certain lines of questioning, the transcript excerpts are adequate to show that Plaintiffs hit a brick wall when it came to Evans’ and Freas’ lack of recollection.⁵

Plaintiffs also effectively note that they have sought by written discovery to obtain a variety of documents from the Defendants concerning the project, only to bump into broad privilege objections. See Plaintiffs’ Supp. Memorandum, Docket No. 103, at 2. Plaintiffs pressed the point further in a deficiency letter, noting that they did not “seek a broad, subject-matter waiver,” but specifically sought documents “related to the effect of the repeal of the New Bylaw on Plaintiffs’ special permit application.” See id. Defendants’ response appears to confirm that there is nothing here for Plaintiffs. Defendants represent that they “are not aware of any such additional documents in [Defendants’] possession, custody or control to produce in response to [Plaintiffs’] requests.” Id. Accordingly, it is reasonable for Plaintiffs to assume that documents concerning the repeal have either been withheld as privileged or have already been produced.

The most difficult component of the exhaustion question is whether Plaintiffs’ request is precluded by their failure to file a motion to compel production of any of the communications as to which Defendants have claimed attorney-client privilege. This is troubling, given Plaintiffs’ contention that Defendants have “waived any claim of privilege as to Attorney North's 2020 opinion and communications about it on December 2, 2020 when Evans quoted from the opinion during a public Planning Board hearing.” Opp. to Motion to Quash, Docket No. 94, at 11 n.5. Plaintiffs could – for example – have moved to compel production of all communications “related to the effect of the bylaw's repeal on the Plaintiffs’ application” that “Defendants have steadfastly refused to produce.” Id. at 6.

While it may have been the better course for Plaintiffs to begin by moving to compel production of documents, it is unlikely that it would have obviated the need for testimony from Attorney North.

Attorney North hypothesizes a variety of additional steps that Plaintiffs could plausibly have pursued, such as deposing Plaintiffs’ neighbors to see if any of them communicated with Attorney North. See Motion to Quash, Docket No. 104, at 1. This alternative course seems unduly burdensome and distinctly unpromising. A deposition of the alleged object of influence, Attorney North, is far less burdensome than searching for any number of potential source(s) of influence through deposition – a particularly expensive investigative tool. If this is the difference between Shelton Motors (“no other means”) and Bogosian (“other viable means”), it seems clear that the latter is the more sensible standard.

While there is more that could conceivably have been done to exhaust alternative avenues, the Court is persuaded that the information sought by Plaintiffs, if it exists, is most likely to be found in the mind and memory of Attorney North, rather than in the documents. Most importantly, there is unlikely to be non-privileged documentation showing the reasons that Attorney North came to the conclusions identified in the November 2020 legal opinion. As discussed above, Judge Saris's ruling on the motion to dismiss makes clear that the reasons for that change in position are highly relevant to Plaintiffs’ case.

Although their efforts may not have been perfect, Plaintiffs have reasonably exhausted all “other viable means to obtain the same evidence.” See Bogosian, 323 F.3d at 66.

C. Harassment

Attorney North argues that Plaintiffs are principally motivated to harass the Defendants. The fact that Plaintiffs began discovery in December 2021 with a subpoena to Attorney North leaves a distinct scent of harassment in the air. Moreover, Plaintiffs’ communication prior to the initial subpoena – that they would depose Attorney North “unless she withdraws as litigation counsel” – sounds more like strong-arm tactics than fact-finding. Motion to Quash, Docket No. 87, at 12; see Docket No. 43-4.⁶

Plaintiffs counter that they have now “exhausted every other potential source” before seeking the deposition and they have offered to “narrowly tailor the scope of the deposition,” both of which indicate a legitimate motivation for fact-finding. See Opp. to Motion to Quash, Docket No. 94, at 9-10. As discussed above, the Court agrees that Plaintiffs’ have reasonably exhausted other sources in search for information that is crucial to Plaintiffs’ remaining claims.

The bottom line is this. Attorney North appears to be the primary source of information that is at the center of this dispute. As with any attorney testimony, the proposed deposition is likely to be fraught, but it is nonetheless necessary for Plaintiffs’ case. Defendants’ decision to embed Attorney North within their litigation team, despite her prominent role in the permitting decision, should not overcome Plaintiffs’ right to obtain discoverable information.

CONCLUSION

Considering the factors identified in Bogosian and Shelton Motors, Plaintiffs have shown that a limited deposition of Attorney North is essential to fairly litigate the issues in this case.

It will be essential that the deposition be narrowly tailored to avoid “the substantial potential of spawning litigation over collateral issues related to the assertion of privilege, scope, and relevancy.” Sterne Kessler, 276 F.R.D. at 380-81.

To this end, the Court finds that Plaintiffs have, reasonably, limited the scope of the deposition to three discrete topics. On the issue of attorney-client privilege, while it is unclear what privilege objections may arise during the deposition, Defendants have already ceded some ground by producing Attorney North's November 2020 legal opinion.

The Court therefore denies Attorney North's Motion to Quash (Docket No. 86).⁷

The parties are instructed to schedule the deposition after conferring with my Courtroom Deputy in order to ensure that I will be available to resolve privilege and scope disputes as they arise.

SO ORDERED.

FOOTNOTES

1.   A more fulsome background is contained in Judge Saris’ order on the motion to dismiss. See generally Order on Motion to Dismiss, Docket No. 76, at 1-8.

2.   For several months in the fall of 2022, the parties agreed to pause discovery while they engaged in settlement discussions. See Feb. 2, 2023 Hearing Transcript, Docket No. 101, at 36-37. After re-engaging in discovery, the parties conducted a flurry of depositions in November and December of 2022.

3.   Plaintiffs point out that “Attorney North does not expressly assert a privilege claim in the Motion.” Opp. to Motion to Quash, Docket No. 94, at 11. Attorney North notes, however, that “any [attorney-client privilege] waiver has been strictly limited ․ and accompanied by an explicit reservation that the Town has not effectuated any broader subject matter waiver,” and directs the Court to her prior motion to quash, in which Attorney North asserts the attorney-client privilege claim at length. Motion to Quash, Docket No. 87, at 12 n.7; see Docket No. 43, at 10-15. While Attorney North does not address whether and how production of the November 2020 legal opinion impacts her position, it appears that Attorney North may assert privilege as to some information that may be sought.

4.   This scrutiny extends to attempted depositions of in-house counsel, the closest analogue to Attorney North's attorney-client relationship as Town Counsel to the Defendant Town of Natick. See, e.g., Weinreich, 2022 WL 2373796 (granting a motion to quash deposition of the corporate party's in-house counsel); Abiomed, 2017 WL 11625640 (same). Whatever role Attorney North may play in the litigation, the proposal to depose Attorney North would necessarily be subject to heightened attention due to her role as Town Counsel. Cf. Docket No. 47, at 4 (suggesting that Attorney North's delayed appearance as party counsel was intended as a defensive maneuver against her deposition).

5.   The Court notes that Attorney North defended the deposition of Evans, which resulted in Attorney North raising objections to Plaintiffs’ inquiries about Evans’ conversations with Attorney North. See generally Exhibit E, Plaintiffs’ Supp. Memorandum, Docket No. 103-5. This unseemly arrangement reinforces Plaintiffs’ contention that it is futile to chase other such sources in order to find out about Attorney North's role in the Town's about-face on the grandfathering of Plaintiffs’ project.

6.   Plaintiffs dispute responsibility for the initial discovery skirmish, highlighting Defendants’ refusal to disclose the November 2020 legal opinion until near the close of discovery. Whoever may have “started it,” the Court notes that Defendants’ privilege claim with respect to that publicly-brandished opinion was the driving argument in Attorney North's motion to quash Plaintiffs’ initial subpoena of Attorney North.

7.   The parties are advised that under Rule 72(a) of the Federal Rules of Civil Procedure and Rule 2(b) of the Rules for United States Magistrate Judges in the United States District Court for the District of Massachusetts, any party seeking review by a district judge of these determination(s) and order(s) must serve and file any objections within fourteen (14) days of being served a copy of this order, unless a different time is prescribed by the magistrate judge or the district judge. See Fed. R. Civ. P. 72(a). Such objections must specifically designate the order, or part, to be modified or set aside and the basis for objection. The district judge will set aside any portion of the magistrate judge's order that is found to be clearly erroneous or contrary to law. The parties are further advised that failing to follow the objection procedures of Rule 2(b) may preclude further appellate review. See Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999); Sunview Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962, 964-65 (1st Cir. 1997).

LEVENSON, UNITED STATES MAGISTRATE JUDGE