United States Court of Appeals

For the First Circuit

No. 04-1831

 04-1861

MARY CHRIS SHEPPARD; ROBERT SHEPPARD,

Plaintiffs, Appellees, Cross-Appellants,

v.

RIVER VALLEY FITNESS ONE, L.P. d/b/a RIVER VALLEY CLUB; RIVER

VALLEY FITNESS ASSOCIATES, INC.; JOSEPH ASCH; ELIZABETH ASCH;

RIVER VALLEY CLUB GP LLC,

Defendants,

W. E. WHITTINGTON IV,

Appellant, Cross-appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

 Torruella, Lipez, and Howard, Circuit Judges.

W. E. Whittington IV for appellant/cross-appellee.

Kelly E. Dowd, with whom Upton & Hatfield, LLP, was on brief,

for appellees/cross-appellants.

October 21, 2005
 That suit, Aubin v. River Valley Fitness One, LP, was 1

assigned to a different district-court judge.

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LIPEZ, Circuit Judge. This is an appeal of a monetary

sanction that was imposed by the magistrate judge on defendants'

lawyer, William E. Whittington IV, for discovery misconduct. The

court required that Whittington personally compensate the opposing

parties for the attorney's fees and costs incurred in opposing a

protective order that he had obtained. Citing the injury to his

professional reputation, Whittington also appeals certain findings

of fact made by the magistrate judge in support of the monetary

sanction. The district court affirmed the sanction and most of the

findings. After a careful review of the record, we affirm the

sanction but vacate a finding that the district court affirmed.

I.

To explain the genesis of the sanction and findings, we

must review the history of the underlying case. River Valley was

a health club located in Hanover, New Hampshire. In early 1999,

Mary C. Sheppard, the principal plaintiff in this case, brought a

claim of sexual harassment against defendants (in essence, the club

and its owners, Joseph and Elizabeth Asch) for offensive incidents

she said she experienced while working at the club. The club's

manager, Robert Aubin, filed a lawsuit of his own, alleging that he

was fired in retaliation for reporting Sheppard's complaints about

harassment. In both cases, defendants denied all of the 1
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allegations and filed counterclaims against Sheppard and Aubin,

accusing them of conspiring to fabricate their lawsuits. In early

2000, the two cases were consolidated for discovery.

In August 2000, defendants and Aubin discussed settling

their dispute (and, shortly thereafter, did settle). The sanction

in this case and the findings all derive from three instances in

which Whittington made claims about the settlement process in the

Aubin case.

A. Whittington's statements to the Aubin court on August 21, 2000

On August 15, 2000, Whittington sent a letter to Aubin's

counsel to, as the letter put it, "summarize our settlement

discussions." The letter opened by stating that "[t]he parties

will settle on the following terms (subject to details being worked

out on the open items below)." The letter provided that "Aubin

would agree to a stipulated judgment of $50,000" in River Valley's

favor, but that Aubin need pay only $100 of that amount for release

and satisfaction. Also, because River Valley was keenly interested

in getting information from Aubin to help with its dispute with

Sheppard, Aubin would provide details of his discussions with

Sheppard about their claims. In addition, River Valley wanted

corroborating information and documents from two other people,

Barney Brannen and Jack Panzica, who River Valley believed were

involved with the alleged conspiracy against it; to that end, River

Valley had asked the court for subpoenas. The letter stated that
On August 21, 2000, Panzica's attorney told the court that 2

his client had no documents responsive to the subpoena. On

September 13, 2000, the court ordered Brannen to turn over his

responsive documents, Brannen soon did so, and he was deposed on

September 29.

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the parties would not file the stipulated settlement with the court

until after deposing those two witnesses. In the meantime, the

parties "will jointly inform the Court we're close to settlement .

. . and tell the Court that it would help the parties' settlement

negotiations to get a prompt ruling on the Brannen/Panzica motions,

which Aubin will now join." Whittington stressed the importance

that River Valley placed on Aubin's information by underlining the

following sentence: "The settlement is contingent upon defendants'

satisfaction that Aubin is assisting defendants in good faith to

the best of his ability." The letter closed by stating: "If the

above is satisfactory, please indicate by signing below and

returning a copy of this letter." The next day, August 16, Aubin's

counsel signed her agreement and returned the letter.

On August 21, 2000, Whittington, as promised, told the

Aubin court that the parties were close to settlement:

The parties advise the Court that they have seriously

discussed settlement, that they believe the prospects for

settlement are excellent after resolution of the two

pending motions [to get information from Brannen and

Panzica], and that resolution of the motions will be

helpful to the settlement process.

On October 3, 2000, having resolved the Brannen and Panzica issues2

and having obtained a satisfactory affidavit from Aubin,
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Whittington authorized Aubin's counsel to file the stipulated

judgment with the court and release other settlement documents from

escrow. On October 4, 2000, the district court entered judgment in

the Aubin case.

B. Whittington's letter to Sheppard's counsel on October 6, 2000

Whittington then tried to put the settlement in Aubin to

his clients' advantage in Sheppard. On October 6, 2000,

Whittington wrote a letter to Sheppard's counsel, informing her of

the outcome in the Aubin case. Whittington's letter did not say

that River Valley had agreed to accept $100 as satisfaction of a

much larger judgment; the letter referred simply to the "$50,000

judgment." Whittington wrote that it was "clear" that, when

presented with the "extensive evidence" marshaled by River Valley,

"Aubin and his counsel saw that the litigation had only one

possible outcome." The letter explained that River Valley was now

also privy to Aubin's "inside perspective." Referring to "the

press's continuing strong interest in the litigation," the letter

warned that Sheppard might be portrayed in an unflattering light

"once all the facts came out." Consequently, the letter advised,

"[r]eaching a negotiated settlement promptly" would help to avoid

that unpleasant outcome. The letter expressed River Valley's

willingness to settle for payment of $50,000 and an affidavit from

Sheppard backing up River Valley’s version of the disputed events.
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C. Whittington's motion for a protective order on March 29, 2001

Faced with Whittington's letter and wanting to see the

settlement agreement for herself, Sheppard's counsel filed a motion

to compel its production. On March 29, 2001, Whittington responded

by moving for a protective order, seeking to keep the terms of the

agreement secret. Claiming that the settlement agreement in Aubin

had "no bearing on any of the issues in this case," Whittington

offered to let the court review the documents in camera to

determine for itself whether they were relevant to the Sheppard

case. If the court did order the agreement's production,

Whittington asked that access be limited to Sheppard's counsel.

On March 30, 2001, the magistrate judge in the Sheppard

case granted the protective order to the extent that it sought

counsel's-eyes-only review of the settlement agreement. On April

23, 2001, having now received and read the agreement, Sheppard's

counsel filed a motion for relief from the protective order,

seeking full freedom to disclose the agreement, and for "sanctions

pursuant to Rule 26(c)," which governs protective orders.

That motion led to the sanctions at issue in this case.

On May 23, 2001, the magistrate judge ordered the settlement

agreement to be unsealed. Referring to what it called a "lack of

forthrightness" on Whittington's part and "[h]alf-truths about the

Aubin settlement," the magistrate judge also scheduled a hearing on

"appropriate sanctions, if any." At the end of that hearing on
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June 13, 2001, the magistrate judge said: "There will be at least

one sanction. Mr. Whittington is going to demonstrate to me that

he has taken at least 10 hours specifically of CLE related to

professional conduct responsibility rules within the next three

months." Then, addressing the lawyer whom Whittington had retained

for the hearing, the magistrate judge added: "And Mr. Daschbach,

you are to tutor him with regard to how you practice law in the

State of New Hampshire and in this court."

On September 27, 2001, the magistrate judge issued his

order on sanctions, making three main findings. First, the

magistrate judge found that "Whittington misled the court when he

argued that the Aubin settlement is irrelevant to the issues in

this case." Aubin's agreement to cooperate with River Valley was

"directly relevant to Aubin's credibility." Second, the magistrate

judge found that "Whittington intentionally misled the plaintiffs"

in his October 6, 2000 letter "to intimidate them into a $50,000

settlement in this case." Third, the magistrate judge found that

Whittington sought the protective order so as to "conceal his

deceptive conduct in the Aubin case" (i.e., telling the Aubin court

that the parties were merely "close" to a settlement when, in the

magistrate's view, they had already "reached a settlement in

principle"). The magistrate judge concluded that Whittington's

motion for a protective order had not been substantially justified

and ordered a monetary sanction under Fed. R. Civ. P. 37(a)(4):
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specifically, Whittington "shall personally compensate the

plaintiffs for their expenses, including reasonable attorney’s

fees, incurred in connection with their opposition to and the

motion for relief from the protective order."

On January 22, 2004, the district court affirmed the

sanction imposed by the magistrate judge. The court also found

that the record "fully support[ed] the Magistrate Judge's . . .

findings and conclusions," with one exception. The district court

rejected the magistrate judge's finding that Whittington sought a

protective order partly "to conceal his deceptive conduct in the

Aubin case." Referring to Whittington's suggestion that the

magistrate judge inspect the settlement agreement in camera, the

district court noted that this was "hardly the kind of offer likely

to be made by one bent upon concealing his misconduct." The

district court then referred the matter to the magistrate judge for

calculation of attorney's fees.

On April 27, 2004, the magistrate judge issued an order

assessing $6,538 in fees. On May 25, 2004, the district court

entered judgment in the case. On June 16, 2004, Whittington filed

this timely appeal, asking that we vacate the sanctions and set

aside the magistrate judge's findings about his misconduct before

the Aubin court and in his letter to Sheppard’s counsel.

II.

We have jurisdiction to review the sanction in this case
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as an appeal from a final decision of the district court. See 28

U.S.C. § 1291. We can review the underlying factual findings as

well. "The imposition of a sanction on an attorney is universally

regarded as an order, and, if an appellate tribunal has

jurisdiction to review such an order, its examination will

encompass the underlying findings." Williams v. United States (In

re Williams), 156 F.3d 86, 90 (1st Cir. 1998) (footnote omitted).

In certain circumstances, even factual findings by themselves

(i.e., unattached to any sanctions) can be appealed because of the

"serious practical consequences" they may have on counsel's

reputation. Obert v. Republic W. Ins. Co., 398 F.3d 138, 143 (1st

Cir. 2005), remand order modified, 2005 U.S. App. LEXIS 4793 (1st

Cir. Mar. 24, 2005).

"Like the district court, we review [the magistrate

judge's] factual findings under the 'clearly erroneous' rubric."

Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999).

As for the magistrate judge's decision itself, "[w]e have long

recognized that the decision as to whether discovery sanctions are

warranted and the choice of what sanctions should be imposed are

matters within the sound discretion of the trial court. As such,

review of . . . discovery sanctions is only for abuse of

discretion." United States v. Soto-Beniquez, 356 F.3d 1, 30 (1st

Cir. 2003), cert. denied, 124 S. Ct. 2432 (2004) (internal

quotation marks and citations omitted). "An abuse of discretion
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occurs when a material factor deserving significant weight is

ignored, when an improper factor is relied upon, or when all proper

and no improper factors are assessed, but the court makes a serious

mistake in weighing them." Id. (internal quotation marks omitted).

In the Rule 11 context, the Supreme Court has explained that a

court "would necessarily abuse its discretion if it based its

ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence." Cooter & Gell v. Hartmax Corp., 496

U.S. 384, 405 (1990); see also Obert, 398 F.3d at 143. We apply

that logic to our review of the sanction and findings at issue

here.

A. Factual findings

1. Whittington's statements to the Aubin court

We first examine the magistrate judge's finding that

Whittington misrepresented the settlement status of the Aubin case

when he told the Aubin court that the parties were close to

settlement ("the prospects for settlement are excellent") but had

not yet settled.

Before we reach the merits of this issue, however, we

reject at the outset Whittington's argument that the magistrate

judge somehow lacked jurisdiction to make findings (which

Whittington here calls "sanctions") about his conduct in the Aubin

case. These cases--Sheppard and Aubin--are closely related. They

have a common defendant, River Valley. Aubin alleged that he was
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fired in retaliation for reporting Sheppard's complaints about

harassment. The cases were consolidated for discovery before the

same magistrate judge. 

True, it would be odd for Sheppard to win her attorney's

fees and costs for Whittington's conduct in a case to which she was

not a party. However, that is not what happened here. Sheppard

sought compensation for costs incurred in challenging the

protective order in her case. In considering that request, the

magistrate judge had to look at Whittington's conduct in Aubin to

evaluate what Whittington was trying to achieve with a protective

order in Sheppard. Moreover, Whittington himself made the events

surrounding the Aubin settlement an issue in this case when he

decided to try to use that settlement to encourage settlement here,

too. The magistrate judge's findings of fact, including the

finding about Whittington's conduct in the Aubin case, were all

related to his decision to impose sanctions for Whittington's

discovery misconduct in this case.

We now examine the merits of the finding at issue. In

his September 27, 2001 order, the magistrate judge said that

Whittington, when he told the Aubin court that the parties were

close to settlement instead of settled, had engaged in "deceptive

conduct" and "misrepresentations" before the Aubin court. The

district court, for its part, said that Whittington’s conduct

certainly qualifies as "sharp practice," well outside the

boundaries of complete and full candor owed to the court
 The Rules of Professional Conduct of the New Hampshire 3

Supreme Court are the relevant ethical standards for lawyers

practicing before the United States District Court for the District

of New Hampshire. See D.N.H.R. 83.5 DR-1. All lawyers have a duty

of candor to the tribunal, which is violated by "knowingly" making

a "false statement of material fact or law to a tribunal." N.H.

Rules of Prof'l Conduct R. 3.3(a)(1). 

Although neither the magistrate judge nor the district court

referred to specific rules of New Hampshire's Rules of Professional

Conduct in their analysis of Whittington's conduct, it is apparent

to us that the rules informed their analysis of that conduct. In

their briefs on appeal, the parties also rely on those rules and

commentary to the ABA's Code of Professional Responsibility, see

infra, fn. 5, in defending and criticizing Whittington's conduct.

We also refer to the rules and that commentary in evaluating

Whittington's conduct. However, in making his findings about

Whittington's conduct, the magistrate judge did not explicitly make

a finding that a specific rule of New Hampshire's Rules of

Professional Conduct had been violated and neither did the district

court. We take a similar approach here, focusing our analysis only

on the factual findings of the magistrate judge. As noted above,

factual findings themselves about unprofessional conduct can be the

subject of appeal because of the "serious practical consequences"

they have on counsel's reputation. Obert, 398 F.3d at 143. 

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by those who practice in this district. At worst, 3

counsel intentionally sought to mislead the court with

regard to the actual settlement status of the Aubin case

in order to obtain rulings on pending motions that

otherwise probably would not have been made.

In this instance, we cannot agree with such a harsh view of

Whittington's conduct.

First and foremost, we take seriously River Valley's

concerns, expressed in the letter to Aubin's counsel, about being

able to corroborate Aubin's testimony with information obtained

from Brannen and Panzica. The magistrate judge dismissed that

concern, writing that "[n]othing in the settlement documents even

suggests that this is true." But Whittington's letter to Aubin’s
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counsel could hardly have been clearer when it stated that

"settlement is contingent upon defendants' satisfaction that Aubin

is assisting defendants in good faith to the best of his ability."

That statement came at the end of a paragraph stressing River

Valley's interest in Aubin's "actions/discussions" with Brannen and

Panzica. Two paragraphs later, the letter referred to the

importance of "getting a ruling on the Brannen and Panzica motions,

and defendants receiving their documents and taking their

depositions." Read fairly in context, these statements are

evidence of River Valley's reluctance to settle until it had

exhausted its ability to corroborate Aubin's affidavit. As

Whittington argues, "no prudent litigant in these circumstances

would have given up leverage by settling just before obtaining the

cooperation it was bargaining for." Thus it was fair for

Whittington to characterize the parties as being close to

settlement after the August 15, 2001 letter, but not yet settled.

The magistrate judge placed considerable emphasis on the

notion that the parties would have reached a settlement regardless

of what happened with the pending discovery motions. At the

sanctions hearing, Whittington said that he believed that the case

would have settled even if River Valley had been unable to

corroborate Aubin’s affidavit. But Whittington's post hoc

speculation, even if accurate, does not tell us much about how

close the parties were to a final settlement. To the contrary, in
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almost any negotiation, a lawyer would presumably begin with

various ambitions that he hopes to realize in the end--a best-case

scenario, as it were. Yet at the same time, he may be able to

concede privately that his client is still better off settling even

if it proves too difficult to secure some particular favorable

concession or other benefit. Presumably, Whittington simply meant

that River Valley's ability to corroborate the affidavit of an

untrusted adversary was one such aim: valuable if he could get it,

but not a deal-breaker if he could not. Importantly, Whittington

never said that River Valley would have settled if the information

from Brannen and Panzica had fatally undermined Aubin's affidavit

or critically impeached his credibility.

We are given further pause by the magistrate judge's own

somewhat varying descriptions of the settlement status in Aubin.

At one point, for example, the magistrate judge describes the

August 15, 2001 letter as, if not a true settlement, then at least

a "settlement in principle." A "settlement in principle" may well

have justified Whittington's statement to the court that "the

prospects for settlement are excellent after resolution of the two

pending motions." In the same vein, the magistrate judge wrote:

"Even if the Aubin matter was not settled on August 16, it was

settled prior to the court's September 12, 2000 ruling on the

Brannen motion." But in that case, then, it was not wrong for

Whittington to describe the parties as close to settlement on
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August 16. Anyway, it seems to us that a finding of ethical

misconduct, so fraught with consequences for a lawyer's

professional reputation, should not rest on such fine distinctions.

If the court has trouble coming to an unqualified conclusion about

the parties' settlement status, then Whittington can hardly be

charged with telling a knowing falsehood--the standard set forth by

the Rules of Professional Conduct--under such circumstances.

Similarly, we are reluctant to affirm a finding of

unethical conduct on the basis of a foray into contract law. The

district court described the letter agreement as being a 

settlement subject to a few conditions subsequent. . . .

Had those conditions not been met, perhaps defendants

could rescind the agreement and declare the settlement

null and void.

In the district court's view, "there was nothing of substance left

to negotiate," although in truth the settlement may not have been

"fully accomplished." This conclusion, though--that the letter

agreement may have had some legal force--seems to us to miss the

point. Even though the letter agreement may have been enforceable

in some circumstances, many contingencies remained. The most

crucial legal documents--the mutual releases, Aubin's affidavit,

the stipulated judgment--had not even been drafted, let alone

signed or delivered. In short, given the evident uncertainties

that remained, we conclude that Whittington gave a reasonably apt

summary of the situation when he advised the court that settlement

with Aubin was close. The magistrate judge's finding to the
The magistrate judge also noted that Whittington made this 4

representation not only to opposing counsel, but to the court as

well. In River Valley's motion for summary judgment, a footnote

referred to the $50,000 judgment without saying that it could be

satisfied for $100.

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contrary was erroneous. 

2. Letter to Sheppard's counsel

In this second finding, the magistrate judge found that

"[i]n his October 6 letter, Whittington intentionally misled the

plaintiffs into believing that Aubin did commit to a $50,000

payment in order to intimidate them into a $50,000 settlement in

this case." In that letter, Whittington wrote: 4

Attached please find a Stipulation to Judgment signed by

Judge Barbadoro on October 4 in the amount of $50,000 in

RVC’s [River Valley’s] favor in the Aubin case. It is

clear that, when presented with the extensive evidence

that we have compiled in support of our counterclaims

against him and our motion for summary judgment on his

own claims, Aubin and his counsel saw that the litigation

had only one possible outcome.

The $50,000 judgment, and the likelihood that it will

soon become public, prompt us to re-visit with you the

subject of settlement.

He then stated River Valley’s willingness to settle for "[p]ayment

of $50,000 by the Sheppards to [River Valley]," among other demands

similar to the Aubin settlement (for example, a truthful affidavit

confirming River Valley's version of events). He never disclosed

that the true cost of the settlement for Aubin was $100.

New Hampshire's Rules of Professional Conduct impose a

duty of truthfulness on lawyers with respect to people other than
 Before the ABA promulgated the Model Rules of Professional 5

Conduct in 1983, which many states have now adopted wholesale or

piecemeal, the ABA had promulgated the Code of Professional

Responsibility, also known as the Model Code. Following a period

during which New Hampshire lawyers were subject to the Model Code,

the New Hampshire Supreme Court adopted the present Rules of

Professional Conduct, also known as the Model Rules, effective

February 1, 1986. There is ABA commentary to both the Model Code

and the Model Rules. Oddly, publications setting forth the New

Hampshire Rules of Professional Conduct include commentary that

accompanied the now supplanted Code of Professional Responsibility,

i.e. the "ABA Model Code Comments". Although the New Hampshire

Supreme Court has never formally adopted these comments, it has

stated that "Although the text of each rule is authoritative, the

comments are intended as guides to interpretation." Carpenito's

Case, 139 N.H. 168, 173 (N.H. 1994). 

Therefore, the Model Code commentary can inform judgments

about the professional conduct of an attorney in New Hampshire. In

fact, this is how it appears the New Hampshire Supreme Court uses

the "ABA Model Code Comments," in the wake of the switch from the

Code to the Rules. See e.g., Carpenito's Case, supra; In re

Coffey's Case, 880 A.2d 403, 413 (N.H. 2005); In re Richmond's

Case, 152 N.H. 155, 158-59 (N.H. 2005). As we noted in footnote 3,

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the tribunal. Again, the Rules prohibit knowing falsehoods. See

N.H. Rules of Prof'l Conduct R. 4.1(a) ("In the course of

representing a client a lawyer shall not knowingly make a false

statement of material fact or law to a third person. . . ."). The

commentary accompanying New Hampshire Rule 4.1 in effect at the

time states that "[m]aking a false statement includes the failure

to make a statement in circumstances in which nondisclosure is

equivalent to making such a statement." N.H. Rules of Prof'l

Conduct R. 4.1, ABA Model Code Comments (2000). The magistrate

judge's finding that Whittington's omission constituted a

misrepresentation is consistent with the commentary's elaboration

of Rule 4.1.5
that appears to be what the magistrate judge and the district court

did here. The parties took a similar approach on appeal, and we do

the same here. (So far as we can tell, the New Hampshire Supreme

Court has not addressed the status or use of the commentary to the

ABA's Rules of Professional Conduct.)

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It is evident from the letter, read in its entirety, that

Whittington wanted Sheppard to believe that the Aubin case had

settled for a payment of $50,000. True, Whittington did not say so

explicitly. However, he managed to convey that impression anyway

by selecting certain words and omitting certain details with

studied precision. As the district court wrote: "[T]he words used

(and not used) by Whittington seem carefully chosen, and, if

dissected and construed from a minimalist point of view, are

defensible as 'literally true.' But it is likewise plainly

apparent that those words were meant to convey more." After all,

the letter's purpose--to encourage Sheppard to pay $50,000 to

settle her case--depended considerably on leaving the impression

that Aubin, in a similar position, had already committed to doing

the same thing. 

We are not saying that Whittington had a general

obligation to disclose the full terms of the Aubin settlement to

Sheppard just by mentioning the fact of the settlement. However,

Whittington did more than that. He chose to disclose the face

dollar value of the judgment against Sheppard without disclosing

the real dollar value of the settlement, in an attempt to induce

Sheppard to settle on terms comparable to the Aubin judgment.
 In defending his conduct, Whittington refers to the 6

following language from the ABA Model Code Comments:

A lawyer is required to be truthful when dealing with

others on a client's behalf, but generally has no

affirmative duty to inform an opposing party of relevant

facts. A misrepresentation can occur if the lawyer

incorporates or affirms a statement of another person

that the lawyer knows is false. Misrepresentation can

also occur by act as well as deed. Making a false

statement includes the failure to make a statement in

circumstances in which nondisclosure is equivalent to

making such a statement. Thus, where a lawyer has made a

statement that the lawyer believed to be true when made

but later discovers that the statement was not true, in

some circumstances failure to correct the statement is

equivalent to making a statement that is false.

N.H. Rules of Prof'l Conduct R. 4.1, ABA Model Code Comments

(2000). Whittington emphasizes the statement that a lawyer

"generally has no affirmative duty to inform an opposing party of

relevant facts." Also, he asserts that the last sentence -- which

outlines a situation where a lawyer makes a statement he later

discovers to be false -- describes the only circumstances in which

a nondisclosure is equivalent to a false statement.

The language Whittington cites -- that "[m]aking a false

statement includes the failure to make a statement in circumstances

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Having made that choice, Whittington had an obligation not to

misrepresent, affirmatively or by omission, the true value of the

settlement. In other words, Whittington's overall conduct created

the very circumstances under which his failure to act, i.e. his

failure to inform Sheppard's counsel of the real dollar value of

the settlement, became a misrepresentation. Therefore, the

magistrate judge correctly concluded that Whittington's too-artful

words "intentionally misled the plaintiffs into believing that

Aubin did commit to a $50,000 payment in order to intimidate them

into a $50,000 settlement in this case."6
in which nondisclosure is equivalent to making such a statement" --

actually captures the wrongfulness of his conduct. The manner in

which Whittington drafted his letter to Sheppard's counsel created

a situation in which his failure to make a statement constituted a

false statement. Simply because his own actions created the

circumstances that gave rise to his duty to disclose does not

relieve him of that duty. Finally, it is plainly obvious that the

last sentence of the paragraph is one example of a nondisclosure

that is equivalent to a false statement, not the only example.

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B. Monetary sanction

In the magistrate judge's view, Whittington's "true

purpose for seeking the protective order" was to conceal his

unethical conduct, as the magistrate judge saw it, reflected in his

statements to the Aubin court and his letter to Sheppard’s counsel.

Like the district court, we are not persuaded by this account of

Whittington's motivations. As the district court wrote:

Whittington did, after all, offer to file the Aubin

settlement documents with the court for in camera

inspection--hardly the kind of offer likely to be made by

one bent upon concealing his misconduct. Whittington

vigorously denies any such motive, and his actions

generally support his denials, as does the general tenor

of the record.

Also, we agree with the district court's observation that "[i]t is

highly unlikely that [Whittington] was motivated to file the motion

for protective order to conceal misconduct he did not (and still

does not) recognize as misconduct." Moreover, we have now

concluded that Whittington had no reason to conceal his statements

before the Aubin court. In the end, however, his motivation for

seeking the protective order does not matter. Whatever his

motivation, Whittington’s arguments for the order, simply taken at
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face value, were so unjustified that he must personally bear the

costs of opposing it. The monetary sanction imposed by the

magistrate judge must therefore stand.

Motions for protective orders are first governed by Rule

26(c), which provides for the award of expenses if the motion

fails:

If the motion for a protective order is denied in whole

or in part, the court may, on such terms and conditions

as are just, order that any party or other person provide

or permit discovery. The provisions of Rule 37(a)(4)

apply to the award of expenses incurred in relation to

the motion.

Fed. R. Civ. P. 26(c). Rule 37 provides in relevant part:

If the motion [to compel] is granted or if the disclosure

or requested discovery is provided after the motion was

filed, the court shall, after affording opportunity to be

heard, require the party . . . whose conduct necessitated

the motion [here, Whittington] . . . to pay to the moving

party the reasonable expenses incurred in making the

motion, including attorney's fees, unless the court finds

that the motion was filed without the movant's first

making a good faith effort to obtain the disclosure or

discovery without court action, or that the opposing

party's nondisclosure, response, or objection was

substantially justified, or that other circumstances make

an award of expenses unjust.

Fed. R. Civ. P. 37(a)(4)(A) (emphasis added). In a similar

context, the Supreme Court has said that "substantially justified"

does not mean "justified to a high degree," but only "justified in

substance or in the main-–that is, justified to a degree that could

satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552,

565 (1988) (internal quotation marks omitted) (construing

government's obligations under Equal Access to Justice Act).
It appears that, for some reason, Aubin never even paid the 7

$100 that he owed.

-22-

The specific wording of Whittington’s motion for

protective order is important. Whittington wrote:

3. Robert Aubin settled his claims by and against

defendants--in a different case from this case--in a

confidential settlement agreement. That settlement

agreement has no bearing on any of the issues in this

case, and is not calculated to lead to admissible

evidence.

4. Settlement agreements with related parties--absent a

showing of identity of issues or factual stipulations

having bearing on the subsequent case--are generally held

inadmissible as not relevant. Centillion Data Systems,

Inc. v. Ameritech Corp., 193 F.R.D. 550 (S.D. Ind. 1999);

Doe v. Methacton School Dist., 164 F.R.D. 175 (E.D. Pa.

1995); Thornton v. Syracuse Saving Bank, 961 F.2d 1042

(2d Cir. 1992); Griffin v. Mashariki, 1997 WL 756914

(S.D.N.Y. 1997).

Whittington argues in a conclusory way that these four cases

substantially justified his position. He complains in passing that

the magistrate judge never even noted that he had cited them before

imposing sanctions.

We have examined the cases and find them wanting. The

general proposition for which Whittington cites them is valid.

However, his motion is more notable for what it does not

acknowledge: namely, that settlement agreements may be used to

impeach a witness like Aubin, whose testimony–-which, to be sure,

was supposed to be "truthful"--entitles him to a $49,900 discount

on a judgment of $50,000. This omission is all the more glaring 7

given that the first case he cites makes that very point. In
 Rule 72(a) provides, for nondispositive rulings like this 8

one: "Within 10 days after being served with a copy of the

magistrate judge's order, a party may serve and file objections to

the order; a party may not thereafter assign as error a defect in

the magistrate judge's order to which objection was not timely

-23-

Centillion Data Systems, the court carefully noted that "evidence

of settlement offers and acceptances . . . may be admissible for

other purposes 'such as proving bias or prejudice of a witness.'"

193 F.R.D. at 553 (quoting Fed. R. Evid. 408). As Whittington had

to know, that is precisely the reason why Sheppard’s counsel was

interested in seeing the settlement agreement for herself.

Therefore, while Whittington may have felt no ethical concerns

about revealing his representations to the Aubin court or his

letter to Sheppard's counsel, he should not have fought disclosure

of a settlement agreement so obviously relevant to the impeachment

of Aubin's testimony in a future trial. The magistrate judge's

call on this point was exactly right.

C. Arguments rejected for procedural defects

At the June 13, 2001 hearing, the magistrate judge

announced that he would impose certain nonmonetary sanctions on

Whittington, requiring at least 10 hours of CLE credits and

tutoring from Whittington's attorney in ethics. Although

Whittington says that he is appealing these particular sanctions on

several grounds, he has not preserved his right to do so. He did

not object to these sanctions at the hearing or shortly thereafter

in the time provided by Fed. R. Civ. P. 72(a). When he filed 8
made."

 According to Whittington, these nonmonetary sanctions are 9

less important to him than the factual findings that we have

addressed. In any event, as we explained, even if the specific

nonmonetary sanctions are not appealable, the findings themselves

are because of their effect on the lawyer's professional reputation

and because they contributed to the imposition of monetary

sanctions for Whittington's discovery misconduct in this case.

Although we have vacated the finding based on Whittington's conduct

in the Aubin case, there remained ample grounds, as we have

explained, for the magistrate judge's imposition of a monetary

sanction for discovery misconduct.

-24-

objections to the magistrate judge's September 27, 2001 order, he

did not mention the nonmonetary sanctions at all. For that reason,

presumably, the district court did not review them in its January

22, 2004 ruling. Neither will we. "It is a firmly settled rule

that a party's appeal of a magistrate judge's order to the district

court delimits his right to further appellate review." Phinney,

199 F.3d at 3. Whittington's failure to appeal these nonmonetary

sanctions when he first had the chance prevents him from

challenging them now.9

Whittington is not alone in suffering from a selfinflicted wound on appeal. On April 12, 2004, the magistrate judge

issued his order fixing the amount that Whittington would have to

pay in attorney's fees. Sheppard now cross-appeals that order as

being too small, but she failed to object to that order within Rule

72(a)'s time limit. Before briefs had been filed in this case,

Whittington moved to dismiss Sheppard's cross-appeal as

unpreserved. We provisionally denied that motion and ordered the
-25-

parties to "address the issue raised by the motion papers in their

relevant briefs." Sheppard completely failed to address the issue

in her opening brief, only belatedly doing so in a reply brief.

"It is well settled in this court, for good reason which need not

be rehearsed here, that a legal argument made for the first time in

an appellant's reply brief comes too late and need not be

addressed." Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354

(1st Cir. 1992). At this point, the issue raised by Sheppard's

cross-appeal has been forfeited twice-over, and we decline to

consider it on the merits.

III.

For the reasons stated, we affirm the award of a monetary

sanction assessed personally against Whittington. We also affirm

the magistrate judge's finding that Whittington's letter to

Sheppard's counsel "intentionally misled the plaintiffs into

believing that Aubin did commit to a $50,000 payment in order to

intimidate them into a $50,000 settlement in this case." We vacate

the magistrate judge's finding that Whittington misrepresented the

settlement status of the Aubin case when he told the Aubin court

that the parties were close to settlement but had not yet settled.

Costs are taxed in favor of the appellee.

So ordered.