When courts refuse to draw a line, intimidation can become a litigation strategy.
Intimidation does not have to eliminate every witness to succeed. It succeeds when fear changes who will testify, what evidence can safely be presented, whether a party can obtain assistance, or whether that party remains capable of continuing the case.
Once a court receives documented allegations that litigation participants are being threatened or punished, unexplained inaction is not neutral. If the conduct produces the intended litigation advantage and no court identifies or enforces a boundary, the practical lesson is that the tactic works.
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The court was told that intimidation was suppressing evidence—and then ended claims because the evidence was not presented.
Beginning in January 2019, Waters repeatedly told the Superior Court that publications, threats, and attacks on potential witnesses were impairing his functioning and making it unsafe to identify witnesses, conduct depositions, and present evidence. This was not raised only after an adverse judgment. It was presented before and during the proceedings that produced summary judgment.
The threshold objection
- At the January 9 hearing, Waters reported new publications, third-party threats, and resulting difficulty functioning.
- At the January 17 hearing, he said witnesses would be publicly targeted and requested protection and accelerated resolution.
- At the March 12 summary-judgment hearing, he objected that he was not ready and said harassment repeatedly occurred before important litigation events and impaired depositions and evidence presentation.
The procedural consequence
The defendants’ dismissal motion was converted to summary judgment because the court considered outside evidence. The allegations in the complaint could not substitute for Rule 56 evidence. Waters did not provide the full merits presentation or evidentiary record he said he could not safely assemble.
The court proceeded and terminated every remaining claim. As to several allegations, it relied on defense materials and the absence of counter-affidavits or concrete opposing evidence.
The first appeal did not cure the evidence-access problem
The Appeals Court restored one libel theory, but it did not reopen every claim or decide every factual dispute on a complete evidentiary record. For other statements, the panel explained that important materials were missing from the appellate appendix and that those omissions limited review.
The decisive point for this failure mode is earlier: Waters’s appellate position was that the merits record was incomplete because intimidation had prevented the safe presentation of evidence in the first place. Treating the appendix problem as the whole failure misses the threshold objection that the trial process never produced a safely developed record.
After remand, the motion to present the suppressed evidence was never decided
On May 9, 2022, Waters filed an unopposed motion for leave to redecide two claims. The motion said the relevant evidence would already be presented on the surviving claim to impeach the defense’s central witness. It also argued that issue preclusion should not attach because intimidation had prevented the evidence from being presented when summary judgment was entered in 2019.
The docket records the motion and accompanying affidavit but no ruling on that motion before the case was dismissed again. The result was another closed loop: the claims had been terminated on an undeveloped record, the appeal restored only part of the case, and the post-remand request to place the suppressed and impeachment evidence before the court was left undecided.
Federal repetition · Protection remained unresolved
The same warning preceded dismissal in the federal cases.
The filings said protection was necessary to collect evidence and fully present the claims.
The state case was not an isolated instance in which safety was raised after an adverse decision. In both federal actions, Waters presented intimidation as a present obstacle to collecting evidence and litigating the merits before dismissal.
Protection requested before sua sponte dismissal
The November 2020 emergency TRO/PI motion described recurring attacks before legal proceedings, asserted resulting impairment, and separately addressed likelihood of success, irreparable harm, balance of harms, and public interest.
The court later made a proposed amended complaint operative, dismissed it with prejudice in the same order, and denied the pending injunction motions as moot. It never decided whether the requested protection had been necessary to present the case safely before dismissal.
Protection again tied directly to full presentation
The verified complaint and injunction memorandum alleged that prior unexplained injunction denials had prevented Waters from fully presenting claims and fairly collecting evidence. The filing treated unchecked intimidation as an access-to-court injury, not merely as emotional harm.
No summons issued and no defendant presented a merits response. The court dismissed the case during pre-service screening and denied the TRO on the same likelihood-of-success conclusion, without separately resolving the asserted need for protection to develop the record.
Appellate protection requests did not cure the gap
The Massachusetts appellate motion sought protection or, alternatively, decision on the briefs because the alleged harassment impaired participation. The docket expressly allowed only the alternative request and shows no separate disposition of the protection request.
The December 2021 First Circuit motion addressed the injunction-pending-appeal standard and the district court’s failure to make findings. The docket later recorded a judgment stating “Affirmed,” without a separate ruling on that motion. A later second injunction request was denied by stating that the burden had not been met, without identifying the deficient factor or evidence.
Escalation record
The alleged conduct became more organized and more destructive after repeated judicial inaction.
The question is not whether a single order could guarantee perfect behavior; it is why no court supplied a reasoned boundary while intervention could still matter.
Waters said the conduct impaired functioning, deterred witnesses, and made evidence presentation unsafe. Broad injunctive relief was denied, but no narrower protection plan was established.
The Superior Court denied the request. A later state appellate filing argued that the continuing conduct made participation unsafe.
After Kearney received a filing containing a therapist’s statement, the served papers appeared in a private group. Messages then discussed finding and circulating threats created through a fake profile attributed to Waters and using them to impair his litigation.
The filed record linked the source to preserved group-chat evidence. After service of a subpoena, Kearney threatened to attack her family, customers, livelihood, and reputation. Emergency protection and sanctions requests were denied without findings addressing that evidence.
The next day’s dismissal relied on two reasons later held incorrect on appeal. The safety and sanctions evidence never received a merits explanation.
Multiple charging instruments contained numerous witness-intimidation, conspiracy, picketing, and related counts. Some counts or cases were later dismissed or dropped, while other proceedings continued.
Direct media evidence concerning the November 2021 coordination and June 2022 threats
Early exhibits concerning harassment and witness reluctance
Institutional cost
Unreasoned inaction did not contain the dispute. It exported and multiplied it.
What looked like avoiding one difficult protection decision produced years of additional proceedings.
Whatever the judges believed they were accomplishing—avoiding confrontation, preserving discretion, or sparing the defendant an immediate consequence—the practical result benefited no one. The unresolved safety questions generated repeated protection motions, reconsideration requests, appellate injunction motions, criminal-complaint applications, separate federal actions, extraordinary-relief petitions, police reports, multiple appeals, and now a legislative reform campaign.
A proportionate response
The courts did not need to decide everything. They needed to draw and explain a line.
Early protection could have been narrow, reviewable, and protective of every party’s rights.
Hold a focused hearing
Determine authenticity, attribution, imminence, litigation connection, and the practical effect on witnesses and evidence.
Prohibit witness contact and retaliation
Use a narrow no-contact or anti-retaliation order directed to identified litigation participants rather than broad control of public speech.
Protect identifying information
Permit confidential witness identification, staged disclosure, sealing, or attorney-only access where public exposure creates a demonstrated risk.
Preserve evidence
Order preservation of accounts, messages, platform records, and communications relevant to alleged interference.
State findings
Identify what evidence was accepted or rejected, the standard applied, the material deficiency, and whether narrower relief was considered.
Provide prompt review
Allow rapid correction if a clear error leaves witnesses, evidence, or meaningful access to court exposed to irreversible harm.
A safeguard must preserve the ability to build the record—not merely review the damage afterward.
These examples support a coordinated reform response. Minimal findings reveal why protection failed. Expedited review corrects clear consequential error before evidence and participation are lost. A narrow system-level remedy addresses grave constitutional failure when ordinary review leaves the harm uncorrected.
Covered safety decisions
Protection, sanctions, witness access, confidentiality, evidence preservation, emergency injunctions, and any ruling that materially affects the ability to present a case safely should receive at least a short reasoned decision.
A preservation duty while review is pending
When a credible filing alleges that witnesses or evidence are being targeted, courts should preserve meaningful participation while deciding the request and during any expedited review.
After ordinary requests produced no reasoned protection, preserving the record and seeking legislative safeguards became the lawful path forward.
The purpose is not retaliation. It is to ensure that no litigant must choose between abandoning evidence and exposing witnesses to unchecked retaliation—and that courts cannot dispose of claims on an incomplete record without first addressing the intimidation alleged to have made that record incomplete.
“Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued, until it be obtained, or until liberty be lost in the pursuit.”