Escolar Documentos
Profissional Documentos
Cultura Documentos
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant
:
: CIVIL ACTION
:
: NO. 05-CV:
: JURY TRIAL DEMANDED
:
COMPLAINT
Plaintiff Andrea Constand, by her attorneys,
Troiani/Kivitz, L.L.P., claims of Defendant a sum in excess of
$150,000.00, and in support thereof states the following:
B. The Parties
3.
C. Factual Background
5.
that over time she considered him to be both her friend, albeit
older, and a mentor.
8.
9.
which he told her were herbal medication, which would help her
relax.
13.
pills, and Defendant assured her that all three pills were
necessary.
14.
to shake, her limbs felt immobile, she felt dizzy and weak, and
she began to feel only barely conscious.
16.
17.
described above, and did not fully awaken until sometime after
4:00 a.m.
22.
area.
23.
were in disarray.
24.
bathrobe.
25.
26.
27.
COUNT I
Andrea Constand v. William Cosby
Battery
31.
33.
38.
COUNT II
Andrea Constand v. William Cosby
Assault
39.
42.
COUNT III
Andrea Constand v. William Cosby
Intentional and Negligent Infliction of Emotional Distress_
47.
10
11
COUNT IV
Andrea Constand v. William Cosby
Defamation/Defamation Per Se
54.
12
13
61.
14
64.
COUNT V
Andrea Constand v. William Cosby
False Light/Invasion of Privacy
65.
15
66.
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JURY DEMAND
Plaintiff hereby demands a trial by jury in this matter.
Respectfully submitted,
Troiani/Kivitz, L.L.P.
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v.
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COMPLAINT
Plaintiff Andrea Constand, by her attorneys,
Troiani/Kivitz, L.L.P., claims of Defendants a sum in excess of
$150,000.00, and in support thereof states the following:
A. Jurisdiction and Venue
1.
11.
money, but had only asked him to apologize to Plaintiff and her
mother, which he did.
21.
26.
In that interview, in an
29.
32.
the crimes alleged by Cosby, nor was she ever an accessory to,
nor an aider and abettor of, such criminal acts, nor has she
ever been guilty of any other violation of law, but she has at
all times been a peaceable and law abiding inhabitant of the
several communities in which she has resided from the day of
her birth to the present time.
38.
or about March 4, 2005, and were widely heard and read by the
Plaintiff=s family, neighbors, and friends and diverse other
persons, who understood immediately that Plaintiff was the
accuser to which Defendants referred.
40.
money; she did so before she went to the police; and, that her
actions constituted a classic shakedown, or an attempt to
extort money from Cosby, and to exploit him.
45.
the crimes alleged by Cosby, nor was she ever an accessory to,
nor an aider and abettor of, such criminal acts, nor has she
ever been guilty of any other violation of law, but she has at
all times been a peaceable and law abiding inhabitant of the
several communities in which she has resided from the day of
her birth to the present time.
47.
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: CIVIL ACTION
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: NO. 05-CV-1099
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:
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ORDER
AND NOW, this ____ day of __________ 2005, upon consideration of the Motion of
Jane Doe Witnesses to Protect the Disclosure of their Names, supporting Memorandum of Law
and opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses identified herein shall not be disclosed to the
media. The parties are directed that the identities of the Jane Doe witnesses identified herein
shall not be disclosed to anyone other than the parties in this case, counsel for the parties, and
any representatives working on their behalf.
2. The witnesses seeking protection herein shall be referred to as Jane Doe with a
number suffix, e.g., Jane Doe 1, etc. in all discovery responses, transcripts, and court filings.
BY THE COURT:
_______________________
J.
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: CIVIL ACTION
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: NO. 05-CV-1099
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_______________________
B. Joyce Dale, Esquire
I.D. No. 70093
Crime Victims Law Center
202 N. South Avenue
Media, PA 19063
and
Judith F. Rubino, Esquire
I.D. No. 14203
1528 J.F.K. Blvd., Suite 1204
Philadelphia, PA 19102
and
Ralph A. Jacobs, Esquire
I.D. No. 21387
Ralph A. Jacobs & Associates
215 S. Broad Street, 10th Floor
Philadelphia, PA 19107
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: CIVIL ACTION
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: NO. 05-CV-1099
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On one occasion, a reporter showed up unexpectedly and without prior notice at plaintiffs home
with flowers, appearing to be a delivery man, in an attempt to solicit an exclusive interview.
Moreover, the media attention has originated from many and multiple sources, and has been
relentless. The media calls have stemmed from local newspapers and television stations as well
as out-of-state newspapers, Canadian newspapers, The National Enquirer, CNN, FoxNews,
MSNBC, Celebrity Justice, and The Geraldo Rivera Show, to name but a few. The Jane Doe
witnesses do not seek this attention, but more importantly, several of them are specifically
requesting that they not be contacted or harassed as plaintiff was. Each Jane Doe witness is
prepared to testify and be cross-examined here; however, none of the Jane Doe witnesses
specified below wishes to invite unsolicited media attention and the stress associated with it.
Counsel for the Jane Doe witnesses hereby incorporate plaintiffs Motion to Protect the
Identity of Rule 415 Jane Doe Witnesses as though fully set forth herein, which is attached
hereto as Exhibit A. In addition, consistent with the Courts June 2, 2005 Order, counsel for
the Jane Doe witnesses submit the following reasons, supplied by the witnesses, all of which
constitute good cause, pursuant to F.R.E 26(c), why the Jane Doe names should not be disclosed
outside the scope of this litigation1 .
1. JANE DOE NO. 1
Jane Doe No. 1 lives in a small town. She is a private person, as is her 87 year old father
and 82 year old mother. She is not the type of person to invite media attention, nor does she or
her family want it. She believes that she has a moral and civic obligation to participate here as a
witness. At the same time, she believes that she and her elderly parents will be unable to cope
Counsel have not submitted affidavits or disclosures that would necessitate the signatures of the
witnesses, given that the names have not previously been disclosed in a motion or pleading, and
counsel are requesting in this motion that their names not be disclosed outside of this litigation.
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with significant media attention or publicity, and will find it too stressful. She requests that her
identity not be revealed to the media.
2. JANE DOE NO. 2
Jane Doe No. 2 suffers from and has been treated for bipolar disorder. She does not want
her privacy invaded, and feels that such an invasion would be upsetting to her, would be
detrimental to her medical condition, and in fact might exacerbate her symptoms. She does not
want to be contacted by the news, and does not want her family contacted. She believes that any
unsolicited coverage or calls from the media will have a detrimental effect on her and her family,
and will be a source of additional stress.
3. JANE DOE NO. 3
Jane Doe No. 3 values her privacy, and requests that it be respected. She does not want
her privacy invaded. She believes that it would be devastating for her to be contacted by the
press or by defendants fans or supporters. She believes that defendants fans or supporters
might try to harass her, contact her, or otherwise give her a difficult time. Jane Doe No. 3 is also
employed by a gambling casino; she believes that she could in fact lose her job if she is
contacted at her place of employment, and further, that she could lose her job if the casino
management has a problem simply with her being in the limelight because of her status as a Jane
Doe witness here.
4. JANE DOE NO. 4
Jane Doe No. 4 does not want media attention or media contact, and believes it would be
too stressful. She especially wants to protect the privacy of her family. Her husband has been
ill, and has undergone brain surgery within the last month. As a result of his medical condition
and treatment, she feels it is imperative that she and her family suffer no additional stress.
Jane Doe No. 9 is not seeking, and does not want, any publicity or notoriety in
connection with her participation here as a witness. She does not want to be contacted, bothered,
or harassed by the media.
Doe witnesses respectfully request the Court to protect the release of their names outside of this
litigation, and requests that the Court order defendant not to disclose their names to others
______________________
B. Joyce Dale, Esquire
Attorney I.D. No. 70093
Crime Victims Law Center
202 N. South Avenue
Media, PA 19063
Attorney for Jane Doe Nos. 1-7 and
Jane Doe No. 9
and
EXHIBIT A
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: CIVIL ACTION
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: NO. 05-CV-1099
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ORDER
AND NOW, this ____ day of __________ 2005, upon consideration of Plaintiffs Motion
to Protect the Identity of Rule 415 Jane Doe Witnesses, supporting Memorandum of Law and
opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses shall not be disclosed to the media. In order to
assure this, their identities shall not be disclosed to anyone other than the parties in this case,
counsel for the parties, and any representatives working on their behalf.
2. All Plaintiffs Rule 415 witness shall be referred to as Jane Doe with a number
suffix, e.g., Jane Doe 1, etc. in all discovery responses, transcripts and court filings.
BY THE COURT:
_______________________
J.
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TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
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: CIVIL ACTION
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: NO. 05-CV-1099
:
:
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TROIANI/KIVITZ, L.L.P.
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
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: CIVIL ACTION
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: NO. 05-CV-1099
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ARGUMENT
The Motion to Protect the Identity of the Jane Doe Witnesses should be granted
because their Privacy Concerns Outweigh the Publics right to know their Identity.
Plaintiff proposes to identify the Jane Doe witnesses to defendant in this litigation, but
not identify them by name to the press. The anticipated testimony of the Jane Doe witnesses
relates to the obviously sensitive subject matter of sexual assaults and/or druggings. Of equal
concern is that disclosure of the witnesss identities may place them at risk of further physical
and psychological harm from media exposure or from overly zealous fans and supporters of the
celebrity defendant2 . These concerns are critical because whether plaintiff should publicly
disclose the identities of the Jane Doe witnesses rests upon a weighing of their privacy and
security interests against the publics need to know their names and addresses.
Other Courts have weighed these interests and, typically, extend protection to testifying
witnesses. In James v. Tilghman, 194 F.R.D. 398 (D. Conn. 1999), for example, the Court was
confronted with a similar issue pertaining to a civil suit against the Connecticut Department of
Corrections over its failure to protect the plaintiff inmate from sexual assaults by his cellmate.
The plaintiff wished to call certain Rule 415 inmate witnesses, who had also been subject to
sexual assaults by the same cellmate. In this instance, the defendant and not plaintiff knew the
identities of the witnesses. Plaintiff filed a motion to compel discovery of the inmate identities
and defendant filed a motion to preclude their identities. Id. at 399. The court held that
disclosure of the inmate identities subjected them to a possible security risk and in balancing the
interests of all parties concerned set forth procedures that required the cellmates consent as a
precondition to disclosing their identities, otherwise disclosure would not be permitted. Id. at
402.
2
Indeed, this is not a specious concern. Although the press routinely declines to print the name of sexual assault
complainants, in this case both plaintiffs name and picture were published in various sources.
In another example, Jason Doe v. American Nat. Red Cross, 151 F.R.D. 71, 72 (S.D.
W.Va. 1993), the Judge Magistrate performed a similar balancing analysis in determining
whether the identity of a deceased blood donor should be disclosed to plaintiff transfusion
recipient. The court ordered that the confidentiality of the donor identity be maintained but
subject to limited disclosure for discovery purposes. Id. at 74-75, n.5. See also Landano v. U.S.
Dept. of Justice, 956 F.2d 422, 430 -431 (3rd Cir. 1992) (no public interest in disclosure of
names under FOIA request for FBI files where individuals involved have some privacy interest
in not having names disclosed in connection with criminal investigation).
Likewise, in Carhart v. Ashcroft, 300 F. Supp.2d 921 (2004), an action to enjoin
enforcement of the Partial-Birth Abortion Ban Act of 2003, plaintiffs moved to protect the
identity of their expert witness who had performed the banned procedures. The court held that
the witness, a non-party, was uniquely qualified to testify that his or her safety would be
compromised by disclosure of the witnesss identity. Id. at 922. The court opined:
The court may take all reasonable steps necessary to protect the
witness during discovery, at trial, and thereafter. See, e.g., Federal
Rule of Evidence 611(a) ("The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to ... (3) protect witnesses from
harassment or undue embarrassment") & Federal Rule of Civil
Procedure 26(c) (permitting the court to make "any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden ...."). In extraordinary
circumstances, "where the safety ... of a witness ... might be
jeopardized by compelling testimony to be given under normal
conditions, the courts have permitted testimony to be given in
camera, outside the courtroom, or under other circumstances that
afford protection." 28 Charles A. Wright & Victor J. Gold, Federal
Practice and Procedure 6164, at 350-51 (1993) (footnotes
omitted).
Id. at 922 -923. See also Fluke v. Heidrick & Struggles, Inc., 2004 WL 884455, 2 (E.D. Pa
2004) (in negligence suit against executive recruitment form, identities may be protected where
disclosure of names and addresses would be harmful to search candidates and to defendants
ability to perform executive searches); McMullan v. Wohlgemuth, 444 Pa. 563, 567, 281 A.2d
836, 838 (1971) (Pennsylvania Right to Know Act excludes disclosure of information which
would operate to the prejudice or impairment of a person's reputation or personal security).
In the instant case, it is difficult to identify what public interest, if any, will be served by
disclosing the identity to the media of the Jane Doe witnesses. The public, of course, will have
access to the substance of the testimony; but the identity of the testifying witness will add little to
the publics knowledge of the proceedings. On the other hand, without the imposition of a
confidentiality order and with fear of embarrassment and possible retaliation, there is a risk of
harm to each of the witnesses should their identities become publicly broadcast. Clearly, the
balance here weighs heavily in favor of preserving the privacy of the Jane Doe witnesses.
CONCLUSION
For all the foregoing reasons, Plaintiff Andrea Constand respectfully requests this Court
to grant her Motion to Protect the Identity of Rule 415 Jane Doe Witnesses.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiffs Motion and Memorandum of Law to
Protect the Identity of the Rule 415 Jane Doe Witness was filed electronically and is available for
viewing and downloading from the ECF system. I further certify that a true and correct copy of
said document was served via regular First Class mail, postage prepaid, on the following:
Patrick J. OConnor, Esquire
Cozen OConnor
1900 Market Street
Philadelphia, PA 19103
Andrew D. Schau, Esquire
Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036
TROIANI/KIVITZ, L.L.P.
EXHIBIT A
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
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: CIVIL ACTION
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: NO. 05-CV-1099
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A.
WITNESSES:
1.
Andrea Constand
Confidential address
Pickering, Ontario
2.
Gianna Constand
Confidential address
Pickering, Ontario
3.
4.
5.
Jennifer Sprague
Psychotherapist
53 Rabbit Street
Lakefield, Ontario
6.
7.
Barry Levine
The National Enquirer, Inc.
1000 American Media Way
Boca Raton, Florida 33464
8.
Joe Tobin
Celebrity Justice
New York, New York
10.
Jane Doe 1
Confidential address
Taos, New Mexico
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
11.
Jane Doe 2
Confidential address
Spring Hill, Florida
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
12.
Jane Doe 3
Confidential address
Las Vegas, Nevada
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
13.
Jane Doe 4
Confidential address
Portola Valley, California
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
14.
Jane Doe 5
Confidential address
Denver, Colorado
Plaintiff believes this witness is in the process of
retaining legal counsel
15.
Jane Doe 6
Confidential address
Toledo, Ohio
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
16.
Jane Doe 7
Confidential address
Cave Creek, Arizona
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
16.
Jane Doe 8
Confidential address
Monument, Colorado
16.
Jane Doe 9
Confidential address
Corralitos, California
Plaintiff believes this witness is in the process of
retaining legal counsel
B.
DOCUMENTS
1.
Documents constituting the criminal investigation in
this matter.
2.
Documents constituting transcripts of telephone
conversations by Mr. Cosby and his authorized agents.
3.
Relevant publications, including February 7, 2005,
Celebrity Justice and March 4, 2005, Enquirer, and other
relevant documents in possession of Celebrity Justice, The
Enquirer, or other publications concerning Defendants
statements, statements of his representatives or agents, and
statements made by potential witnesses to representatives of
such publications.
4.
Documents within the possession of the New York County
District Attorneys Office and/or 19th Police Precinct, New York,
NY, concerning Lachele Covingtons allegation of sexual assault
made against Defendant in 2000.
Plaintiff reserves the right to supplement this list as a
result of discovery and/or as additional information becomes
known or available to her.
C.
DAMAGES
TROIANI/KIVITZ, L.L.P.
________________________
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiffs Selfexecuting Disclosures was served via facsimile and U.S. mail,
postage prepaid, on the following:
TROIANI/KIVITZ, L.L.P.
________________________
Bebe H. Kivitz
Dolores M. Troiani
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I, B. Joyce Dale, hereby certify that on the date indicated below the undersigned served
the Motion of Jane Doe Witnesses to Protect the Disclosure of their Names by facsimile and
U.S. First Class mail, postage prepaid, on the following:
Patrick J. OConnor, Esquire
Cozen OConnor
1900 Market Street
Philadelphia, PA 19103
Andrew D. Schau, Esquire
Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036
________________________
B. Joyce Dale, Esquire
Crime Victims Law Center
202 N. South Avenue
Media, PA 19063
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Plaintiff,
v.
WILLIAM H. COSBY, JR.
Defendant.
CIVIL ACTION
05-1099
EDUARDO C. ROBRENO, J.
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: CIVIL ACTION
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v.
: NO. 05-CV-1099
:
WILLIAM H. COSBY, JR.,
:
Defendant
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____________________________________________________________________________
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
By:_____________________
Bebe H. Kivitz
Attorney I.D. No. 30253
Dolores M. Troiani
Attorney I.D. No. 21283
38 N. Waterloo Road
Devon, Pennsylvania 19333
610 - 688-8400
Dated:_________________
CERTIFICATE OF SERVICE
I hereby certify that on, December 5, 2005, the undersigned were served in the following
manner, a true and correct copy of : Response of Plaintiff To Motion Of The Associated
Press To Intervene and Memorandum of Law.
NAME
MANNER
Hand-Delivered
Hand-Delivered
Hand-Delivered
Date: _12/5/05
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: CIVIL ACTION
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v.
: NO. 05-CV-1099
:
WILLIAM H. COSBY, JR.,
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Defendant
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____________________________________________________________________________
is contrary to the Courts standard operating procedures, established case law, and the Federal
Rules of Civil Procedure. Litigating this case furtively is prejudicial to Plaintiff and denies her
the equal protection of the law. It permits Defendant to manipulate public opinion, as he has
admitted that he has done, and it also prohibits Plaintiff from fully responding to motions filed by
Defendant, which motions raise factual issues concerning matters, which are under seal. For
instance, Defendant has filed a Motion to Strike Plaintiffs Motion Concerning Defendants
Conduct at the Deposition that references a telephone conference with the Court and counsel.
The transcript of the telephonic conference was also sealed and Plaintiff is unable to obtain the
transcript without Court Order. The necessity of obtaining such an order causes delay, which
would not be encountered if this case were to proceed in the normal course. It is also unduly
burdensome upon the Court, which is required to rule upon the request for the transcript.
Consequently, either Plaintiff will be forced to reply to the Motion to Strike without the benefit
of the transcript or the time period for Plaintiffs response is effectively shorten while Plaintiff
awaits the Courts ruling. Plaintiff should be afforded the same response time afforded to all
other litigants who seek protection of the federal courts and the Court should not be required to
interrupt its schedule to make such a ruling.
Moreover, Defendant has caused substantial delay in this case by diverting the Court onto
an issue, previously ruled upon. The statute of limitations on defamation runs on February 7,
2006 as to those unidentified agents of Defendant who made the statements to Celebrity Justice
and on February 21, 2006, as to the National Enquirer. Instead of addressing the merits of the
Motions to Compel and the Hall motion, Defendant has sidetracked this case onto an issue,
which he previously and unsuccessfully litigated. Defendant has created confusion so that it is
2
unclear if the scope and breadth of the Courts November 4, 2005, Order is in conflict with the
earlier Order of June 2, 2005. For example, Plaintiff seeks to file a motion to compel compliance
with a subpoena Plaintiff served upon the National Enquirer, aimed at the production of an
agreement Defendant made with the National Enquirer preceding Defendants 1/21/05 Exclusive
Interview, which is, in part, the subject of Plaintiffs defamation claim. If that motion to compel
compliance with the subpoena is also governed by the November 4, 2005 Order, then Defendant
has obtained the blanket order, which this Court initially denied.
In fact, Plaintiffs counsel clearly articulated publicly on September 26, 2005, when
counsel appeared before the Court, that Plaintiffs counsel intended to question Defendant about
whether or not Defendant was confronted with the Beth Ferrier polygraph and that was his
motive for granting the National Enquirer interview. A report of that hearing was published in
the Philadelphia Daily News, (Exhibit A). Plaintiff should be permitted to file such a Motion,
without concern that it touches upon material Defendant just happens to be requesting be kept
confidential particularly where Defendant wants every aspect of this litigation to be kept
confidential and this Court has denied that request, and some of the material he seeks to suppress
is already in the public domain. Moreover, how can the public properly assess the information
they receive concerning Plaintiff, when the only information is that generated by the Cosby press
machine and the public is unaware of the manipulation perpetrated by that machine?
In addition, if Plaintiff chooses to file an amended complaint to add other defendants, a
majority of the information will be revealed in that document. This entire procedure is an
exercise in futility perpetrated by Defendant in hopes of causing sufficient delay, so that Plaintiff
will be unable to join his agents and representatives because the statute of limitations will have
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No. 05-cv-1099
s/ Patrick OConnor
Patrick J. OConnor
George M. Gowen III
COZEN OCONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant
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No. 05-cv-1099
ORDER
AND NOW, upon consideration of Defendants Motion for Protective Order, Plaintiffs
Motion to Protect the Identity of Rule 415 Jane Doe Witnesses, and the parties respective
responses thereto, it is hereby ORDERED that Defendants Motion is GRANTED and Plaintiffs
motion is DENIED AS MOOT. It is further ORDERED that:
1.
No party may disclose any information covered by paragraph one to anyone other
than the parties in this case, their counsel, and representatives working on their behalf, and no
party may use any such information for any purpose other than this litigation.
3.
The parties are granted leave to file documents under seal, subject to review by
All court filings referring to, quoting, summarizing, or attaching any information
covered by paragraph one must be filed under seal, with a substitute copy expressly omitting the
EDUARDO C. ROBRENO, J.
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No. 05-cv-1099
FACTUAL BACKGROUND
This is a diversity case, involving contested claims of sexual assault, battery, infliction of
emotional distress, and defamation. Plaintiff alleges that the Defendant drugged her and sexually
assaulted her. The Defendant vigorously denies Plaintiffs allegations. As in any civil case, the
Plaintiffs claims will be tried in due course, and a jury will have the opportunity to assess their
merit and render a judgment.
Unfortunately, because the Defendant is a famous comic personality and actor, and
because Plaintiffs attorneys have been aggressively courting media coverage of the Plaintiffs
allegations in the national and local press, plaintiffs allegations, and the allegations of
anonymous Jane Doe witnesses, have attracted a frenzy of media attention. The coverage has
been particularly acute in the Philadelphia area, because the Defendant is from Philadelphia, has
well-known ties to Temple University, and maintains a home in Cheltenham. Regrettably, as a
result, Defendants right to a fair and impartial jury may be severely compromised.
Consider what has happened already, just in Philadelphia. Plaintiff filed her Complaint
on March 8, 2005. Less than 24 hours later, the Philadelphia Daily News not only published a
story detailing the allegations in the Complaint, but it printed a separate human interest piece on
Plaintiff and her family. (See Exs. A & B.) When Plaintiff filed her unilateral Report
Following Rule 26 Conference of the Parties (which she filed publicly although under no
obligation to do so), the Daily News followed with another article, seizing upon Plaintiffs
mention of ten potential additional witnesses under Federal Rule of Evidence 415. (See Ex. C.)
The article referred to an independent conversation between the Daily News reporter and
Plaintiffs attorneys, in which Plaintiffs attorneys apparently informed the reporter that ten
women had contacted them to report similar allegations against Defendant. (See id.)
Defendants April 15, 2005 Motion to Compel Plaintiffs Initial Disclosures was
followed on April 19 by another Daily News article, quoting from Defendants brief. (See
Ex. D.) Plaintiffs opposition brief and Defendants motion for leave to file a reply brief each
were similarly reported and quoted by the media. (See Exs. E & F.) Most recently, the Daily
News reported that Plaintiffs attorneys claim to have identified three more witnesses. (See
Ex. G.)
2
The case has also attracted the attention of the national media. Descriptions of the suit,
and Plaintiffs attorneys comments about it, have appeared in several articles and on several
programs and websites, including, but not limited to, those of USA Today, MSNBC, Fox News
Channel, Access Hollywood, the New York Daily News, and the Miami Herald. The Associated
Press covered the filing of the Complaint within a day of the event. Its story was reprinted in
dozens of papers across the country. All the while, Plaintiffs attorneys have been adding fuel to
the fire. One of her attorneys, Delores Troiani, appeared on an MSNBC legal talk show, The
Abrams Report, and engaged in a detailed debate with the host and guest attorneys about the
merits of the case and the credibility of the witnesses. (See Ex. H.)
This case is so sensational and publicized that media coverage itself has become
newsworthy, with one publication or program reporting the contents of anothers story, without
critical examination for accuracy and bias. Indeed, Nicole Egan, a reporter for the Daily News,
has made herself part of story by virtue of her detailed coverage of this case and apparent access
to Plaintiffs camp. Ms. Egan was interviewed by the Fox News Channels Greta Van Susteren,
and Ms. Egan stated (1) that she knew the contents of certain alleged audiotaped conversations
involving Defendant and (2) that, in her judgment, the tapes support [Plaintiffs] allegations.
(Ex. I.)
Unfortunately, the media sometimes seizes upon one sides characterizations of the facts
as though that characterization were the objective truth. For example, the Daily News printed
Plaintiffs recent statement, in a public filing, that Defendant refused to be deposed. That
characterization was misleading, as Defendant later demonstrated in his answering brief, but the
Daily News printed it immediately after it was filed. (See Exs. E & F.)
All this attentionand potential for prejudice and embarrassmenthas been generated,
even though discovery is just beginning. As discovery progresses, the heightened level of media
scrutiny, the prejudice and confusion it creates, and the embarrassment wreaked upon the parties
and witnesses are bound to increase. Plaintiff and Defendant have demanded documents and
information from each other and each intends to conduct a deposition of the other. Virtually all
the subjects covered in these requests and depositions will be deeply personal and private. In
addition, the parties will undoubtedly conduct discovery of the other persons who accuse
Defendant of misconduct.
Plaintiff has moved to protect the identity of the Defendants other alleged accusers from
public disclosure, citing their privacy interests and fear of embarrassment. But, tellingly,
Plaintiff only seeks to conceal their names, not their allegations. This imbalance would be
grossly unfair to the Defendant. While he has no desire to publicize the names of any person
who prefer to remain anonymous, the Plaintiff and her attorneys should not be allowed to
conceal those names and simultaneously exploit their allegations. In fairness to the Defendant,
the names and the allegations should both remain confidential.
There can be no doubt about the propriety of confidentiality in this case. The parties
recently subpoenaed the relevant files of the Cheltenham Township Police Department and the
Montgomery County District Attorney. These files reflect the detailed criminal investigation
triggered by Plaintiffs allegations, and they include several salacious statements from alleged
witnesses whose credibility has never been tested. Nevertheless, public discussion of these
untested allegations would be embarrassing and prejudicial. Indeed, the Montgomery County
District Attorney himself stated, upon declining to press criminal charges against Defendant, that
[m]uch exists in this investigation that could be used (by others) to portray persons on both
sides of the issue in a less than flattering light. (Ex. J.)
The Defendant recognizes that Plaintiff has a right to present her case to a jury. But
Defendant has a corresponding right to a jury that is untainted by prejudicial pretrial publicity
from anonymous sources. An order preserving the confidentiality of discovery will help to
insure fairness for all concerned.
II.
ARGUMENT
Federal Rule of Civil Procedure 26(c) empowers this Court to control discovery in order
to protect the parties and the other participants from embarrassment and invasion of privacy and
to preserve a fair and unbiased jury trial. The rule provides that:
Upon motion by a party or by the person from whom discovery is
sought, accompanied by a certification that the movant has in good
faith conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without court action, and for good
cause shown, the court in which the action is pending or
alternatively, on matters relating to a deposition, the court in the
district where the deposition is to be taken may make any order
which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense . . . .
Fed. R. Civ. P. 26(c). The orders permitted under Rule 26(c) include orders restricting the use
and disclosure of material and information gathered in discovery. Cipollone v. Liggett Group,
Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
Indeed, the Supreme Court has noted that pretrial discovery is not typically open to
public view. [P]retrial depositions and interrogatories are not public components of a civil trial.
Such proceedings were not open to the public at common law, and, in general, they are
conducted in private as a matter of modern practice. Seattle Times Co. v. Rhinehart, 476 U.S.
20, 33 (1984) (citations and footnotes omitted). Much of the information that surfaces during
5
pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of
action. Therefore, restraints placed on discovered, but not yet admitted, information are not a
restriction on a traditionally public source of information. Id.
The Supreme Court also recognized that, given the liberal and unsupervised discovery
permitted in federal court, courts must enter protective orders to protect the parties reputations
and privacy.
Because of the liberality of pretrial discovery permitted by Rule
26(b)(1), it is necessary for the trial court to have the authority to
issue protective orders conferred by Rule 26(c). It is clear from
experience that pretrial discovery by depositions and
interrogatories has a significant potential for abuse. This abuse is
not limited to matters of delay and expense; discovery also may
seriously implicate privacy interests of litigants and third parties.
The Rules do not distinguish between public and private
information. Nor do they apply only to parties to the litigation, as
relevant information in the hands of third parties may be subject to
discovery. There is an opportunity, therefore, for litigants to
obtainincidentally or purposefullyinformation that not only is
irrelevant but if publicly released could be damaging to reputation
and privacy. The government clearly has a substantial interest in
preventing this sort of abuse of its processes.
Id. at 34-35. In other words, [t]he unique character of the discovery process requires that the
trial court have substantial latitude to fashion protective orders. Id. at 36. Accordingly, Rule
26(c) confers broad discretion on the trial court to decide when a protective order is appropriate
and what degree of protection is required. Id.
A party seeking an order sealing pretrial discovery need only show good cause. Fed.
R. Civ. P. 26(c). Embarrassment constitutes good cause where the potential embarrassment is
particularly serious. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
[E]mbarrassment is usually thought of as a nonmonetized harm to individuals. Id. Where the
litigants are natural persons, as opposed to businesses, it is easier to show the embarrassment
necessary to justify a protective order. Id. The court may also restrict the public availability of
information to preserve a fair trial. See Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir. 1986).
(The district court was concerned that the extensive publicity . . . would inhibit and perhaps
prevent the selection of an impartial jury. . . . Because it was faced with specific instances of
massive and potentially harmful publicity, we find there was good cause for the district court to
issue the protective order.).
The Defendant in this case adamantly denies engaging in sexual misconduct. Even so,
public disclosure of the discovery proceedings in this case could result in serious and palpable
embarrassment. The sordid details of this caseincluding the parties own allegations and the
statements of various witnessesalmost exclusively concern sex, including alleged sexual
relations between non-married persons. Plaintiff acknowledges that the alleged Jane Doe
witnesses wish to be shielded from public scrutiny based upon their privacy interests and fear of
embarrassment. If the public disclosure of their allegations would be embarrassing for the
Defendants alleged accusers, it would be no less embarrassing for Defendant.
Defendants celebrity status, especially in Philadelphia, and the medias apparent lack of
restraint, threatens the parties right to a fair trial. Indeed, one Daily News reporter already has
taken it upon herself to weigh in as a factfinder in this case. Without disclosing the objective
details, she said on a national news program that Plaintiff possessed audiotapes that, in her
opinion, support Plaintiffs claims.
Defendants Motion concerns discovery, as opposed to trial. As the Supreme Court
recognized, discovery, as opposed to trial, is not a public event, to which a default presumption
of access would apply. On the other hand, it is discovery that poses the greatest risk of jury
tainting and undue embarrassment. During a trial, evidence is admitted into the public record
7
only if it is competent, relevant, and not unduly prejudicial. In discovery, the limits are much
broader. For example, while Plaintiff contends that the prior bad act testimony of other
women will be admissible under Rule 415, the Court has yet to make that determination. Yet, if
their proposed testimony becomes public, the damage to all the parties reputations and to the
integrity of the jury pool could be severe.
As for Plaintiffs Motion, it is one-sided and seeks an unfair and inequitable result.
While Plaintiff professes the need to keep these witnesses names confidential, her failure to
acknowledge the need also to keep their allegations confidential suggests an ulterior motive and
constitutes precisely the sort of abuse of the courts processes against which the Supreme Court
has cautioned. See Seattle Times, 476 U.S. at 34-35. Under Plaintiffs proposal, these witnesses
will be free to make anonymous, but public, accusations about Defendants sexual history. The
allegations may be false, and they may be inadmissible, but no matter. They will be public, and
the damage will be done.
CONCLUSION
For the foregoing reasons, Defendant requests the Court to deny Plaintiffs Motion, to
grant Defendants Motion, and to enter the proposed order that accompanies Defendants
Motion.
s/ Patrick OConnor
Patrick J. OConnor
George M. Gowen III
COZEN OCONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Dated:
EXHIBIT A
Page 1 of 2
A FORMER Temple University employee filed a federal lawsuit yesterday against comedian Bill Cosby, alleging he drugged and sexually
assaulted her at his Cheltenham Township mansion in January 2004.
The lawsuit from Andrea Constand, who was director of operations for the Temple women's basketball team, includes claims of battery,
assault, invasion of privacy, defamation and intentional infliction of emotional distress.
Constand's attorneys, Dolores Troiani and Bebe Kivitz, ask for sums in excess of $150,000, plus attorneys fees and punitive damages. The
basis for the claim in federal court is Constand's Canadian citizenship and the amount the attorneys are requesting.
The civil suit contains new details about the night in question, including claims that Cosby, 67, did more than just grope Constand. The
attorneys said they have a lot more evidence than before.
"We're still getting phone calls from people with information," Troiani said, "and we'd like to keep getting phone calls."
The suit also states that Cosby and his representatives phoned Constand, 31, and her mother after Constand went to police on Jan. 13 and
offered them "financial compensation," which they refused.
"Beginning on or about Jan. 16, 2005, and continuing in the days thereafter, defendant and/or his representatives and agents placed at
least four phone calls to plaintiff and her mother in which, among other things, defendant apologized and offered financial compensation to
plaintiff," the lawsuit said.
Troiani and Kivitz said filing the suit was the first step toward closure for their client.
"Our client is seeking the justice due her in a forum where she can expect to be treated with the dignity and respect she deserves," they
said in a statement. "Our client sustained injuries and justice, by definition in a civil suit, includes compensation for such damages."
David Brokaw, Cosby's publicist, had no comment on the suit or its contents.
"Right now, I have no information," Brokaw said late yesterday afternoon.
Cosby has previously denied the allegations.
Last month, Montgomery County District Attorney Bruce L. Castor Jr. announced he was not filing criminal charges against Cosby, saying
there was not enough evidence to sustain the case beyond a reasonable doubt. The Daily News had not identified Constand before now,
because it does not identify alleged sexual-assault victims. However, Constand's attorneys, who could have identified her as a "Jane Doe"
in the suit, used her real name.
Castor's handling of the criminal case, including not notifying Constand or her attorneys of his decision, still rankles Troiani and Kivitz.
Constand even offered to take a lie detector test, but investigators said it wasn't necessary, Troiani said.
Constand first met Cosby in November 2002, about a year after she began working at Temple University, the suit said. Cosby, who is
married, "fostered a friendship" with her, "so that over time she considered him to be both her friend, albeit older, and a mentor," the suit
said.
She socialized with him over the next year, discussing Temple women's basketball with him, talking with him by telephone and "being his
guest at dinner parties and other events hosted by him at his Cheltenham home and other locations," the suit said.
In January 2004, Cosby invited Constand to his mansion, "telling her he wanted to offer her assistance in her pursuit of a different career,"
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EXHIBIT B
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ANDREA CONSTAND is strikingly beautiful, with long, curly red hair. Six feet tall. A smile a mile wide.
Her father is Greek, but shortened his last name once he moved to Canada. Her mother is Italian, niece of a World War II hero whom the
Roman Catholic Church is considering for sainthood.
She was a driven basketball player who dreamed of playing for the pros from the time she was a little girl.
"I'm on a mission," she said in a 1997 interview before leaving for Italy to play on Canada's team in the World University Games. "First to
help Canada do well, then to play basketball in Italy and finally crack a spot on a team in the WNBA."
But today, the 31-year-old woman has gained notoriety not for her successes on the basketball court, but for accusing Bill Cosby, her onetime mentor and Philadelphia's best-loved celebrity, of drugging and sexually assaulting her at his Montgomery County mansion last year.
Prosecutors announced last month that they will not file criminal charges against Cosby, but Constand yesterday filed a lawsuit against
him.
Although she has declined to speak to the Daily News, Constand's name and picture have been plastered on news pages and TV screens
across the world.
But the woman at the center remains mostly a mystery - even in Philadelphia, where she helped Temple women's basketball coach Dawn
Staley lead the team for 2 Va years.
Friends, former teammates and coaches describe her as outgoing. Forthright. Energetic. A health and fitness buff who loves the outdoors.
As tough and aggressive on the court as she is warm and compassionate off the court.
And honest.
"It's not in her character to say something happened that didn't happen," said Anthony Simms, 47, who has known Constand for 15 years.
"People can go into her history and dig and dig and dig, but I don't know what they'll find," said Simms, who played on Canada's
basketball team in the 1984 Olympics. "I'm pretty sure it's the cleanest slate you'll ever see. She's a good person."
Constand was born and reared in Canada. Her family is close-knit. Her father is a massage therapist. Her mother is a medical secretary.
She has one older sister and is close to of them, Simms said.
"Even when she went to college in Arizona, I don't think there was a game her family didn't see," Simms said.
Simms said he first met her when she was in high school, playing for Albert Campbell Collegiate in Scarborough, Ontario, where she was a
star and considered one of Canada's top female players. Averaging 30 points a game, she led the Celtics to five straight senior girls' highschool titles. She also played on Canada's national junior team and national development team.
She was determined to succeed, despite all sorts of obstacles, Simms said.
"There's always people trying to steal your dream," he said. "Then there's a few that come along and say, 'No matter what they say, just
keep going.' That's Andrea."
In the summer, she participated in basketball training camps and tournaments, which is how she caught the eye of University of Arizona
Coach Joan Bonvicini and about 49 other NCAA coaches.
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EXHIBIT C
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The attorneys for a woman who claims Bill Cosby drugged and sexually assaulted her last year have at least 10 other women whose
statements they want admitted as testimony, a new court filing says.
The report by the plaintiffs' attorneys, which followed a March 23 conference between both sides, did not state what the women have to say.
Ho.vever, the attorneys have previously said that women had contacted them to report that Cosby had done something similar to them as he
is alleged to have done to Andrea Constand, the Canadian woman who accused Cosby of drugging and assaulting her last year.
One of the other women is California attorney Tamara Green, who first told her story to the Daily News in February.
Bete Kivitiz and Dolores Troiani, the attorneys for Constand, also want the court to issue a limited protective order to keep the media from
kncv.'ing cr publishing the identities of the other women.
Ne'.vs organizations traditionally do not reveal the identities of sexual-assault victims. However, when she came forward, Green requested her
name be used. Cosby's people subsequently made unflattering information about her available to the media. The request for a limited
protective order is obviously an attempt to prevent that from happening again.
Constand's identity became public only after her parents gave an interview in January to a Canadian paper and allowed their names and their
daughter's name to be used. Many news organizations used that as justification for using Constand's name.
The Daily News did not publish Constand's identity until she filed her lawsuit against Cosby. The attorneys could have identified her as Jane
Doe, which is common in sexual-assault civil suits, but chose to use her real name.
The defendants, the report added, want the entire proceedings to be kept confidential under a protective order, but Constand's attorneys
oppose such a request.
Patrick O'Connor, a member of Cosby's new legal team, did not return a phone call requesting comment. O'Connor filed a notice of
appearance on behalf of Cosby in federal court on Monday.
O'Connor is a partner in Cozen O'Connor, one of the top 100 law firms in the country and among the area's top campaign contributors.
Constand, a 31-year-old former Temple University employee, went to Canadian police in January with her allegations against Cosby. The
alleged incident occurred the previous January, she told cops.
In February, Montgomery County District Attorney Bruce I. Castor, Jr. announced he would not be filing criminal charges against Cosby.
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EXHIBIT D
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April 19, 2005
Section: LOCAL
Edition: 4STAR
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from the entertainer, whom she claimed was her father. Cosby testified during the trial, admitting
he had had an affair with Jackson's mother, Shawn Upshaw, but denied having fathered
Jackson. *
lllustration:PHOTO
Bill Cosby: Lawyers for accuser in civil suit say they have other women who claim the
comedian assaulted them.
Copyright (c) 2005 Philadelphia Daily News
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EXHIBIT E
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EXHIBIT F
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Bill Cosby is not refusing to be deposed in a civil suit lodged against him by a former Temple employee, his attorneys said in court papers
filed in federal court here yesterday.
Attorneys for Cosby accuser Andrea Constand made that claim in a motion filed on Tuesday.
But Cosby's attorneys said the entertainer simply wants to know the identities of nine women who are accusing him of drugging and/or
sexually assaulting him before he's deposed.
"Plaintiff's statement that defendant 'has now taken the position that he will not be deposed' is misleading," the memo said. "Rather, in an
April 11, 2005 letter, defendant's counsel stated that he 'will not be producing defendant for a deposition while plaintiff is concealing the very
identity of the witnesses with whom she intends to confront him.' "
Dolores Troiani, one of Constand's attorneys, said she has not seen the motion but "obviously we don't believe we misrepresented anything."
In an April 6 report following a March 23 conference between both sides, Constand's attorneys asked the judge to admit testimony from at
least 10 other women who say the comedian drugged and/or sexually assaulted them.
They also asked for a limited protective order to keep the media from knowing or publishing the identities of the women. Only one, California
attorney Tamara Green, has made her identity public. Troiani and Kivitz listed the others as "Jane Does."
In their motion, Cosby's attorneys said Troiani and Kivitz said they would turn over the women's identities within 14 days of the March 23
meeting but didn't.
Troiani said that is not true.
"They're manufacturing this issue because most of the names are in the police report, which they have, because we gave the names to the
police," she said.
"We wanted an agreement from them that they wouldn't turn those names over to the media and they wouldn't do that. Our concern is to
prevent a smear campaign, like they conducted against Tamara Green."
Andrew Schau, one of Cosby's attorneys, had no comment. He said earlier this week that responses will be made in legal papers that are filed
in court.
In her lawsuit, Constand, 31, said Cosby sexually assaulted and drugged her at his Elkins Park, Montgomery County, mansion in January
2004. She went to police a year later. In February, authorities here declined to prosecute. Constand's attorneys, Troiani and Bebe Kivitz, filed
her civil suit against Cosby the following month.
4/27/2005
EXHIBIT G
Page 1 of 2
Thirteen women now say Bill Cosby drugged and/or sexually assaulted them, according to new court papers filed in federal court here.
Twelve women came forward after ex-Temple University employee Andrea Constand went to police in January with her accusations against
Cosby.
Ten of the women gave statements to Constand's attorneys, Dolores Troiani and Bebe Kivitz. The attorneys also forwarded the information
about those women to Montgomery County authorities.
However, when Troiani and Kivitz recently received the police file through the civil lawsuit they filed on behalf of Constand, they found two
other women who had contacted detectives, who had not reached out to them, a response they filed Monday says.
A Cosby attorney had no comment yesterday.
Constand, 31, has accused Cosby of drugging and sexually assaulting her at his mansion in Elkins Park, Montgomery County, in January
2004. She waited a year before going to police.
In February, Montgomery County District Attorney Bruce L. Castor Jr. declined to prosecute. Constand filed her civil suit in March.
In their response, Constand's attorneys also disputed claims made by Cosby's attorneys in a motion filed last Friday.
Cosby's attorneys have been asking Constand's attorneys for the identities of nine of the accusers, who are identified merely as "Jane Does"
in court filings. Only one, California attorney Tamara Green, has been publicly identified.
On April 11, Cosby's attorneys sent a letter to Troiani and Kivitz saying their client will not be deposed "while plaintiff is concealing the very
identities of the witnesses with whom she intends to confront him," according to a copy of the letter filed with the court.
Last Friday, Cosby's attorneys filed a memo stating that Troiani and Kivitz had promised to turn over the identities of the Jane Does within 14
days of a March 23 meeting between both sides. His attorneys have asked the judge to force Troiani and Kivitz to hand over the names.
In their Monday response, Kivitz and Troiani say they have been clear since March 15 that they would not release the names until the judge
rules on their request for a limited protective order.
They have asked the judge to prohibit the disclosure of the women's identities to the media as well as prevent them from publishing their
identities.
"Plaintiff's position has not changed and remains the same to this day; all 11 Jane Doe witnesses, once their names are disclosed to
defendant, are entitled to their privacy from the media," the response said.
Furthermore, they stated, Cosby's attorneys already have many of the Jane Does' names and addresses because they are in the police file.
The attorneys pointed out that in one court filing they identified the Jane Does by the state and city where they live, and sent the attorneys a
letter on April 20 that identified Jane Does 10 and 11 by name.
The attorneys attached a copy of that letter, with the names of the women blacked out, as an exhibit to their response.
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MSNBC - TheCase
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MSNBC.com
Guest: Geoffrey Fieger, Jim Thomas, Susan Filan, Dolores Troiani, Mercedes Colwin
DAN ABRAMS, HOST: Coming up, the accuser in the Michael Jackson case takes the stand.
(BEGIN VIDEOTAPE)
ABRAMS (voice-over): The now 15-year-old cancer survivor tells jurors exactly what he says
happened at the Neverland Ranchthis after his brother and sister get grilled by Jackson's
attorney.
And another ABRAMS REPORT exclusivethe woman accusing Bill Cosby of drugging and molesting
her now suing him in civil court for assault, emotional distress and defamation. We have the
exclusive with her lawyer.
The program about justice starts now.
(END VIDEOTAPE)
ABRAMS: Hi everyone. It's the moment we've all been waiting for. Michael Jackson's accuser
takes the witness stand. It is the first time Jackson and the boy have been face-to-face since the
boy left Neverland in March of 2003. Some say the boy appeared to sneer when asked if he
recognized the man sitting across from him, Michael Jackson.
NBC's Mike Taibbi was in the courtroom, joins us now with the latest on the boy's testimony. So
Mike, what did he say?
MIKE TAIBBI, NBC NEWS CORRESPONDENT: Well first of all, I don't say that he sneered, Dan. I
was watching him very carefully, as was every pair of eyes in that courtroom. He walked in. He's
nervous. He's tall, lean, still young, 15 years old. And when he was asked that question and he
said yes, I think he had the first of several nervous smiles, nervous laughs of the day. I don't think
it was that kind of a look at all, but some people did see it that way.
Now what he had to say to this point is just kind of setting up what will be the story that we've all
gotten to know in pretty close detail at this point. He will claim obviously that Michael Jackson
provided him with alcohol. He will claim, and as he said in his grand jury testimony, that he was
inappropriately touched by Michael Jackson on two occasions, and he will describehe will talk
about the allegation that his family felt imprisoned, not free to leave Neverland at a point after the
showing of the Martin Bashir documentary.
I think that we're going to learn much more about the specifics of his direct testimony and we'll
obviously see how he's going to be challenged, not necessarily tomorrow, maybe next Monday,
Tuesday by Tom Mesereau. More important thing todaymore important developments really
involve the younger brother who finished his testimony and his cross-examination this morning.
He was on the stand and withstood a withering cross-examination by Tom Mesereau, a couple
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FIEGER: ... in terms of the difficulty you see from the prosecutor. First of all, there's too much
opportunity for Michael Jackson. This has been a case presentedI think in probably the correct
fashion by Sneddon. He's doing it right. He's bringing the witnesses real quickly. He's not
delaying, making it, you know, interminably long like the Peterson case. We've established that
there's plenty of opportunity for Jackson to have engaged in this activity.
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Brother: Actually, it was three times. I was nervous when I did the interview.
So because youVe nervous, you didn't get the facts right?
Brother: Yes.
ABRAMS: Geoffrey, it doesn't trouble you and again, I'm not asking you to determine whether
they're telling the truth or not, but from a jury's point of view, the fact that you have got the
accuser uncertain about how many times he was abused, saying it might have been five, it might
have been two, I was in a dream-like state. The brother saying it was two, wait a second, it was
actually three. This is abuse. We're talking about molestingeither getting molested or watching
molestation and they don't remember?
FIEGER: You have to understand this bigger picture and let me communicate this to you. Jurors
see everything through their own perspective and their own biases and prejudices. Now, lawyers
think that every time you catch somebody in an inconsistency...
ABRAMS: These are big, though, Geoffrey...
(CROSSTALK)
ABRAMS: These are not little things...
(CROSSTALK)
FIEGER: ... excuse me, they may be big to you and they may be little to somebody else...
ABRAMS: Well it's little how many times the boys were molested, that's not a big issue?
FIEGER: Listen. Listen. If you're 11 years old, you don't know that much. And that's whenhow
old he was allegedly when this occurred. The brother was 11, 12 years old. But more to the point,
if the jury overall, if individuals on the jury overall believe that he is telling the truth and that
Mesereau is playing lawyer and trying to catch him up, because I'll tell you, a good lawyer with an
adult can trip up anybody. I can trip up anybody, let alone with a kid. If a jury is sitting back
there says you know overall, I believe him...
ABRAMS: Yes.
FIEGER: ... he may not have everything right, he may not remember everything, that's bad, it
doesn't necessarily absolutely work.
ABRAMS: That's true and look, if they believe this boy on the whole, Geoffrey is absolutely right...
THOMAS: Dan...
ABRAMS: ... and againJim, very quickly, Jim, then I've got to take a break. Go ahead.
THOMAS: OK. This particular issue is cleared up during redirect by the D.A. The boy actually
testified to three events. The two he saw through the stairwell and another one that was a rubbing
event. He testified to that to the sheriffs, it's in the report. He also testified that to the grand
jury. So that's already documented, those three. So there is not the inconsistency that everybody
thought there was yesterday.
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ABRAMS: All right. WeVe going to take a quick break. Everyone is going to stick around. Mike
Taibbi thanks a lot. Appreciate it.
Also, coming up later, in addition to more coverage of this big stuff in Jackson, our exclusive
interview, the attorney for the woman who says Bill Cosby drugged her and assaulted her, the D.A.
wouldn't press charges so the question that some have asked is, is she just out for money? Her
attorney says no way. We're going to ask (UNINTELLIGIBLE) tough questions.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Believing that children are the true example of God's beauty, innocence and
purity, Michael has devoted as much of his life to helping the world's children. He has donated
millions of dollars to healing children with disease, helping children with Aids, and traveling the
world to emphasize the importance and welfare of our children. Michael Jackson would never harm
a child.
(END VIDEO CLIP)
ABRAMS: I don't know if the Mother Teresa business is really going to help Michael Jackson. I
think they basically got to go for, you know, they didn't prove the case beyond a reasonable doubt,
but that's just a press conference, not in court, that happened months ago.
All right, Susan Filan, the accuser is on the witness stand. He's going to be on for days now. He is
the central witness. If you're the defense attorney, I'm going to ask you to switch hats for a
minute, in this case and you've got to cross examine the boy, this is the boy who could put your
client away. This is the one who is sitting only yards away from him saying that man right there,
your client, molested me. And yet he's still a boy. How do you go about cross-examining him?
How tough are you?
FILAN: Well I wouldn't be that tough to start certainly. I would treat this boy with dignity,
respect, kindness and compassion to start. I would think that would give the prosecutor and the
defense some validity before the jury. What I see Mesereau doing in reading the transcripts is he's
beating up on this witness so badly and picking him apart, he starts to look like something in "The
Exorcist" with his head spinning around and he doesn't know which way is up and which way is
down. I think the jury is not going to like that.
ABRAMS: Right.
FILAN: In reading the transcript, I started to come to this boy's defense and started to believe him
extra just because I was tryingI felt sorry for him. So...
ABRAMS: And there's no question they have to be careful notand I
Geoffrey made this point before, about not focusing on minutia. Because yes, so what?
FILAN: Right.
ABRAMS: You prove that a 12-year-old says one thing one time, he says something else a little bit
different another time. If it's not on the crucial issues in the case...
FILAN: Right. So here's what I think is key, Dan. I think the things that really, really matter are
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could you see what you say that you could see?
ABRAMS: But I'm talking about the accuser, now the accuser himself...
FILAN: OK.
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FIEGER: But you lose that if the 20-year-old from '93 gets on the stand. That's a real hard
defense if another guy gets on the stand.
ABRAMS: Except that guy got $25 million.
FIEGER: Yes, he did. Yes, he did.
ABRAMS: And this family has got nothing.
FIEGER: Oh, well. They're about to get in line.
ABRAMS: All right. Oh, we'll see. You know, this is one of those fewthis is one of those cases
where it really could go either way.
All right, Susan Filan, Jim Thomas, thanks a lot. Geoffrey Fieger is going to stick around.
Coming up, charges in the Michael Jackson case may be graphic, so are what a Canadian woman
says Bill Cosby did to her. Up next, we have the exclusive with her attorney. They couldn't
convince the D.A. to press charges, now they're taking Cosby to court themselves.
Your e-mails abramsreport@msnbc.com . Please include your name and where you're writing
from. I respond at the end of the show.
(COMMERCIAL BREAK)
ABRAMS: Coming up, my exclusive interview with the lawyer representing a woman who accused
Bill Cosby of assault. She's just filed a civil lawsuit. She's live in just a minute answering the
tough questions, but first the headlines.
(NEWS BREAK)
ABRAMS: We're back. Now to the Bill Cosby case, the woman who told police that Cosby drugged
and then sexually assaulted a year ago is now taking her case to civil court. She's got some pretty
graphic claims about what she says happened. Remember, authorities in Philadelphia decided not
to press any criminal charges against Cosby last month. But yesterday, his accuser filed a federal
lawsuit claiming assault, battery, emotional distress. She says Cosby and his associates defamed
her, that her reputation was damaged according to the suit when news organizations reported her
name, not this one. And by the interview Cosby cave to "The National Enquirer" earlier this month
the suit also claims after the woman went to police, Cosby and his lawyers called her five times
and offered money.
Joining me now exclusively is Dolores Troiani who represents the woman suing Bill Cosby. Thanks
very much for coming on the program. We appreciate it.
DOLORES TROIANI, REPRESENTS BILL COSBrS ACCUSER: You're welcome.
Good evening.
ABRAMS: All right. I want to give you an opportunity to respond to some of the concerns I've had
about the allegations in this case and I know you want to clear up the record, so I'm going to give
you that opportunity. So let's focus on the first issue, and that is the timing of when she made this
report. It's almost a year after it allegedly happened and she goes to the Canadian authorities and
says here's what happened to me. Why didn't she just go and complain about it right away?
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TROIANI: A delay in a case like this is really not unusual. There are many reasons why a woman
who are put in this situation do not come forward immediately. You have to understand
something. Although I myself have not personally experienced this as a prosecutor, I dealt with
many women who were sexually assaulted and they feel like they died that night.
They feel that they're vulnerable, which they didn't feel before. They feel they can no longer trust
anyone. They feel shame. They feel fear, and this case was certainly compounded by the fact that
the person who she has accused is Bill Cosby, an icon in this area and certainly an icon at Temple
where she worked. Her delay was very understandable and very usual.
ABRAMS: But then why did she ultimately come forward? I mean it sounds like what you're
saying is there was shame. There was this. There was that, but then she did come forward.
TROIANI: Because she had to deal with this. She had to find some closure. And it was haunting
her, as it does haunt every victim of a sexual assault. This is permanent injury to anyone who has
suffered something such as this and you can't do it alone. You need to have therapy; you need to
talk about it. And what happened was that she was having nightmares. She was experiencing
many difficulties in trying toin her mental focus and she finally came forward to her mother and
immediately went to the police, not weeks later...
ABRAMS: All right.
TROIANI: ... immediately went to the police.
ABRAMS: But still, it was months after the incident. But Ilet me refer now to "Toronto Sun"
article that talks about the delay and I know you wanted to talk about this. So asked why their
daughter has only now gone to police one year later, her dad said he believes it has to do with her
massage training. They teach about a code of ethics. She's starting to understand that when you
violate a person, it's not right. You can understand why people would read that and say what, she
only realizes it's not right after going to massage training?
TROIANI: Well obviously anyone who would think that the father meant that was misreading what
waswhat he said. He was taken out on context and that's why it's important not to believe
everything that you read in the newspaper or here on the media. What her father meant and what
happened was that she had tried to deal with this on her own. Her father is a massage therapist
and she decided to choose his profession. She was in school. There was constant talk about
consent and touching. And all of that triggered in her, her understanding that she had to come
forward and she had to seek help.
ABRAMS: But sobut you know then it's not out of context. And the bottom line is it sounds like
massage training is what led her to say OK, what Bill Cosby did to me allegedly was wrong.
TROIANI: Butno, she always knew what he did to her was wrong, that's what's taken out of
context.
ABRAMS: Let me read this number five here. This iswe asked Cosby's attorneys for a
statement. This is what they gave us today.
"Mr. Cosby will address this matter through the judicial process and not through the media."
Let me read you a quotea couple of quotesI want to do number eight and number 10 -- of Bill
Cosby in an interview with "The National Enquirer" that he did recently.
He said looking back on it I realize that words and actions can be misinterpreted by another
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person. Unless you're a supreme being, you can't predict what another individual will do, but
that's all behind me now and I'm looking only toward a bright future. I'm not going to give in to
people who try to exploit me because of my celebrity status.
You know, it sure sounds like what he's saying is that this woman is trying to exploit him and
effectively get money from him because he's a celebrity.
TROIANI: Well that was the basis of our defamation count, that there
his representatives had said to "Celebrity Justice" that she was trying to extort money from
him and then he added to that by saying that she was exploiting him. And that's the basis of our
defamation claim.
In the complaint, we allege that he knew at the time that those statements were made that after
this incident happened and he was confronted by her mother, he apologized to both our client and
to her mother and then he and his representatives called and offered financial gain.
ABRAMS: But couldn't it be...
TROIANI: She didn't accept it.
ABRAMS: Couldn't it be because of what he says was a misinterpretation. I mean he's saying
that, you know, again looking back on it that words and actions can be misinterpreted.
TROIANI: I don't understand that at all, because the allegations here are that he gave her drugs
and she was unconscious.
ABRAMS: Lay out for us exactly what your client is saying happened.
TROIANI: Our client is saying that this was a man who she felt was a grandfather figure in her
life. He was a mentor towards her. He was a friend. And she went to his home on this occasion.
She felt stressed because she was thinking of changing her job. He gave her some pills, which he
told her were an herbal remedy. That she became semiconscious, that she was immobile, she
couldn't move her arms and her legs and he sexually assaulted her.
ABRAMS: But she doesn't remember much of what happened, right, according...
TROIANI: No, she remembers everything that happened up until a point and our complaint I think
was pretty graphic about what occurred...
ABRAMS: Yes, it was.
TROIANI: ... that she remembers.
ABRAMS: Yes, it was and we're intentionally, you know, not going to put in the details. They're
pretty gnarly.
TROIANI: Nor am I.
ABRAMS: All right, if you could just stick around for a moment. You had agreed to come on with a
couple of other lawyers to talk about this case. So we are going to take a break. When we come
back, Mercedes Colwin defends a lot of these cases and she thinks that there are some real
problems here. And Geoffrey Fieger is back with us and Ms. Troiani is going to stick around. So
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stay with usmore of our exclusive interview on the civil lawsuit being filed against Bill Cosby
coming up.
(COMMERCIAL BREAK)
(NEWS BREAK)
ABRAMS: We are talking about the Bill Cosby case and the accusations being made by a woman
who the authorities decided not to file charges against Cosby in connection with, but she is now
filing a civil lawsuit against Cosby.
Let me go to number four here. This is part of the lawsuit that was filed. Let me give everyone a
minute to get there. As a direct and proximate result of Cosby's acts, plaintiff has suffered serious
and debilitating injuries, mental anguish, humiliation, embarrassment, physical and emotional
upset, depression, sleeplessness, isolation, flashbacks, anxiety, serious pain, mental anguish,
emotional upset. It goes on, and a loss of earnings and earning capacity.
Dolores Troiani is the woman who represents the woman accusing Bill Cosby. And I'm joined now
by criminal defense attorneys Mercedes Colwin and Geoffrey Fieger. All right, Mercedes, you've
heard Ms. Troiani respond to what I think are some of the toughest questions for her to answer.
Why did it take so long for her to report this? Why did she report it to the Canadian authorities?
Why is she saying that the massage therapy courses sort of triggered this in her mindtough case
to defend or not?
MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY: Oh I don't think so at all. I think thisactually it gave me fodder for cross-examination. It's fantastic that it took a yearI mean and
then to have to go to massage school to understand that this type of behavior is unlawful. I mean
I think that's the biggest liability she has here. And the second liability that the accuser has is the
fact that the prosecutor did not go forward with the charges. I mean...
ABRAMS: But you know there's a different standard, right...
(CROSSTALK)
ABRAMS: ... I mean the standardthe criminal standard they have to prove it...
COLWIN: Reasonable...
ABRAMS: ... beyond a reasonable doubt...
COLWIN: Yes. Sure. Sure Dan.
ABRAMS: In a civil court it's just one person versus another.
COLWIN: But the issue is they didn't find her credible. I mean when prosecutors make the
determination whether to bring forth charges or not, they're evaluating these individuals especially
an accuser with a one-on-one encounter...
ABRAMS: So you don't believe...
COLWIN: ... with the defendant.
ABRAMS: ... you don't believe the D.A.'s statement when they say because a civil action with a
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much lower standard of proof is possible, the district attorney renders no opinion concerning the
credibility of any party involved so as not to contribute to the publicity and taint prospective
jurors...
COLWIN: I think that's company speak. That's what it is, Dan. It really is. The prosecutor is not
going to go out on a limb and say I don't find this woman credible, therefore I'm not going to...
ABRAMS: All right. Ms. Troiani, your response.
TROIANI: I don't think your guest was listening when I said that my client did not have to go to
massage school to realize what happened to her was wrong. It was one of the triggers that caused
her to realize that she needed to seek help and could not get over this by herself. The district
attorney in this case in our state are elected. In this particular case, before there was any
investigation whatsoever, he came out and said that this was a weak case. He shot himself in the
foot. I'm a former prosecutor. My partner, Bebe Kivitz is a former prosecutor. We would have
had no problems with this case.
ABRAMS: It wasn't before...
COLWIN: But Counsel...
ABRAMS: ... to be fair...
COLWIN: Can I respond...
ABRAMS: Wait...
TROIANI: No...
ABRAMS: To be fair, it wasn't before...
TROIANI: Oh no it was.
ABRAMS: They had spoken to Bill Cosby before they held that press conference. That I know.
TROIANI: No, before that.
ABRAMS: Yes.
TROIANI: Before that...
ABRAMS: We're talking about before the press conference.
TROIANI: Yes.
COLWIN: Can I respond...
TROIANI: The first time that our client met with them, they said it was a weak case.
ABRAMS: Go ahead, Mercedes.
COLWIN: Counsel, it's a credibility finding by the prosecutor. I understand that you work in a
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courtroom. I've got a beef and it's my "Closing Argument".
(COMMERCIAL BREAK)
ABRAMS: Coming up, why the Michael Jackson courtroom I say should be open for everyone to
see. It's my "Closing Argument".
(COMMERCIAL BREAK)
ABRAMS: My "Closing Argument." As I listen to different reporters coming in and out of the
Jackson courtroom, I'm struck by how much their accounts differ.
Quote, "The accuser's brother was credible and did not stray on the key issues" some say, while
others sitting in the same courtroom report the prosecution really seemed to have lost ground with
this witness. Just channel surf, you can't miss it. And I can't help but think that we would all be
better served if you all could decide for yourselves.
Judge Rodney Melville has made that impossible, imposing a sweeping gag order and banning any
cameras or taping in the courtroom. And as I've said before, Judge Melville's attempts at secrecy
have backfired, with just about all of the pertinent information in this case leaking out before trial,
but that it also should have been a camera in the courtroom. In the past few days, the accuser's
brother and sister have been testifying and now the accuser himself.
Their testimony will likely determine the outcome of the case, a case that the world is watching.
This is one of those cases where the proceedings and the outcome will affect the public's
perception of the legal system one way or another. It would be better to see it without a filter, no
reporter bias, allowing you to decide for yourself whether justice was served. Now with the
accuser and his brother, they're both kids so we likely wouldn't be able to see their faces anyway
on TV andbut you might be able to listen to them tell their stories and to see Michael Jackson tell
his story, when and if he takes the stand.
Many seem to think that a camera adds to a circus-like atmosphere and in the O.J. Simpson case it
did just that. I agree. But sometimes it's the price we have to pay and most of the time it has
little or no impact on the proceedings. I've covered many televised trials with tough judges where
the camera ended up being forgotten. Some like Jesse Jackson bemoaning the fact that there are
no African Americans on the jury. If Jackson is convicted, there may be allegations of racism, and
since few will have actually seen the proceedings, it will be based on hunches probably rather than
facts. Whatever the outcome, in a case with this notoriety, seeing is believing and not seeing may
mean not believing.
Coming up in 60 seconds, it looks like we may have one feline viewer out there so upset by one of
our stories last night that the cat may have taken matters into his own paws.
(COMMERCIAL BREAK)
ABRAMS: Before we go to your letters, just want to make one correction. Geoffrey Fieger just a
moment ago talking about the Bill Cosby case made a comment about Bill Cosby having put his
own daughter in jail, there's no evidence that the woman who ended up serving time for extortion
was actually Cosby's daughter. The DNA test never happened, so you know Geoffrey was wrong
on that one.
All rightI've had my say, now it's time for "Your Rebuttal". Last night in our "Just A Minute"
segment, we told you about a firefighter in Wisconsin who wants the law changed so he can shoot
stray cats who meander onto his property.
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Karl in New York agrees. "Picture this. You have a classic car in your driveway, a custom paint
job, and you wake up one morning to take it for a cruise, lo and behold, all over the hood and roof
are sandy, dirty cat prints. If the unlucky critter keeps finding its way to my car and my property,
it might just meet the same fate as the guy who's proposing strays should not beable to be
shot."
Karl, man you know ease up.
From Georgetown, Texas, Jane Thompson. "Cats don't bother me. Men, now men bother me.
They break my heart. They take my money. They lie to me and they stand me up. They make
promises and disappear. I'd like to see the law changed to where I could shoot men who bother
me. Why not?"
Bob Reiss in Penndel, Pennsylvania, "It takes a hard man to want to shoot an animal that will walk
right up to you, rub up against your leg, and purr. I fear for this guy's wife."
Also last night, some transgender groups want to establish a third category of public restrooms
that are gender-neutral, serve transsexuals, cross dressers and other people whose sexual identity
may be at issue. I said it was ridiculous.
Don Petersen in Spearfish, South Dakota with a reference to last night's "OH PLEAs!" where the
state of New Jersey named the tomato as the state vegetable, not fruit. "Dan, isn't it hypocritical
to dismiss the need for a third restroom for cross dressers, but embrace the idea of the tomato
cross dressing as a vegetable?"
My guest, Rikki Klieman, supported the idea of a gender-neutral bathroom, so she wouldn't have to
wait in as long a line. R. Arend in Altoona, Pennsylvania. "Rikki Klieman would quickly change her
position on multi-sexual restrooms should she ever enter one that I've just departed."
But Eliza Mitchell who claims to be a transgender was offended. "If I were to use the restroom
designated for my biological gender dressed as a female, I'd put my physical safety at risk. Should
I use the women's bathroom, I run the risk of being called a perverted, strange, or being greatly
misunderstood. Please try to see the other side of every issue before dismissing it as a trivial
matter."
Sorry, I still see it as trivial.
And Bob Kleamovich in East Greenbush, New York, "So now any transvestite, she-male or tanssomething will not have to divulge their sex and have a bathroom all to themselves. Come on
people."
Finally Kathi Keeney with a more general thought about me. "I used to watch you on Court TV a
long time ago. I thought you were an interesting and very intelligent television personality
attorney. Why do you end your MSNBC show reading letters, insulting your viewers? It's scary
and what's wrong with just being yourself?"
You want to hear something really scary, Kathi? This is me being myself. I don't insult my
viewers. I respond to them. A lot of them write aggressive notes. I try and respond back.
Your e-mailsI love my viewerscome on - everyoneyou guys know I love you - abramsreport
one word @msnbc.com. We go through them at the end of the show.
"OH PLEAs!"apparently a cat in Upper Pennsylvania Michigan got wind of our show last night,
causing the cat to become a sour puss. Remember yesterday's story, Wisconsin firefighter looking
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to legalize shooting the stray cats. It seems Joseph Stanton's cat is aiming to end the initiative.
Stanton was cooking dinner in his kitchen, presumably watching the program; his beloved cat was
roaming the countertops.
After hearing the proposed stray cat genocide in Wisconsin, Stanton's cat may have wanted to
make sure Joseph wasn't a supporter. Here's what happened. The cat knocked a loaded 9milimeter handgun off the counter. The gun discharged, hitting Stanton in the torso, state
troopers found him wounded at his home, took him to the hospital. He's fine. The cat's going to
be arrestedno, just kidding.
That does it for us tonight. Coming up next, "HARDBALL" with Chris Matthews. Thanks for
watching.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
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VAN SUSTEREN: So are you taking her word that it corroborates her allegations?
EGAN: I can't get into how I know about it, or what I'm doing, but it's good information.
VAN SUSTEREN: What is going to happen? I mean, is the district attorney looking at this for a possible criminal
prosecution?
EGAN: Yes, he is. And two weeks ago, he said that he would announce a decision on whether to file charges against
Mr. Cosby sometime this week.
VAN SUSTEREN: Has Bill Cosby made any statement at all?
EGAN: No, he hasn't, other than statements he's made through his lawyer, Mr. Walter Phillips, Jr.
VAN SUSTEREN: All right, Nicole. Thank you very much. Appreciate you joining us.
Content and Programming Copyright 2005 FOX News Network, L.L.C. ALL RIGHTS RESERVED. Transcription
Copyright 2005 eMediaMHIWorks, Inc. (f/k/a Federal Document Clearing House, Inc.), which takes sole responsibility
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except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any
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COUNTY OF MONTGOMERY
COURT HOUSE
ANNE C. METZ
OFFICE ADMINISTRATOR
(610) 278-3090
(610) 278-3095
(610) 278-3368
PRESS RELEASE
Montgomery County District Attorney Bruce L. Castor, Jr. has announced that a joint
investigation by his office and the Cheltenham Township Police Department into allegations against
actor and comic Bill Cosby is concluded. Cosby maintains a residence in Cheltenham Township,
Montgomery County
A 31 year old female, a former employee of the Athletic Department of Temple University
complained to detectives that Cosby touched her inappropriately during a visit to his home in January of
2004. The woman reported the allegation to police in her native Canada on January 13,2005. Canadian
authorities, in turn, referred the complaint to Philadelphia Police. Philadelphia forwarded the complaint
to Cheltenham Police. The District Attorney's Office became involved at the request of Cheltenham
Chief of Police John Norris.
Everyone involved in this matter cooperated with investigators including the complainant and Mr.
Cosby. This level of cooperation has helped the investigation proceed smoothly and efficiently. The
District Attorney commends all parties for their assistance.
The District Attorney has reviewed the statements of the parties involved, those of all witnesses
who might have first hand knowledge of the alleged incident including family, friends and co-workers of
the complainant, and professional acquaintances and employees of Mr. Cosby. Detectives searched Mr.
Cosby's Cheltenham home for potential evidence. Investigators further provided District Attorney
http://www.montcopa.Org/da/pressreleases/D ACastor_decision_on_Cosby.htm
2/17/2005
Page 2 of 3
Castor with phone records and other items that might have evidentiary value. Lastly, the District
Attorney reviewed statements from other persons claiming that Mr. Cosby behaved inappropriately with
them on prior occasions. However, the detectives could find no instance in Mr. Cosby's past where
anyone complained to law enforcement of conduct, which would constitute a criminal offense.
After reviewing the above and consulting with County and Cheltenham detectives, the District
Attorney finds insufficient, credible, and admissible evidence exists upon which any charge against Mr.
Cosby could be sustained beyond a reasonable doubt. In making this finding, the District Attorney has
analyzed the facts in relation to the elements of any applicable offenses, including whether Mr. Cosby
possessed the requisite criminal intent. In addition, District Attorney Castor applied the Rules of
Evidence governing whether or not evidence is admissible. Evidence may be inadmissible if it is too
remote in time to be considered legally relevant or if it was illegally obtained pursuant to Pennsylvania
law. After this analysis, the District Attorney concludes that a conviction under the circumstances of
this case would be unattainable. As such, District Attorney Castor declines to authorize the filing of
criminal charges in connection with this matter.
Because a civil action with a much lower standard of proof is possible, the District Attorney
renders no opinion concerning the credibility of any party involved so as not to contribute to the
publicity, and taint prospective jurors. The District Attorney does not intend to expound publicly on the
details of his decision for fear that his opinions and analysis might be given undue weight by jurors in
any contemplated civil action. District Attorney Castor cautions all parties to this matter that he will
reconsider mis decision should the need arise. Much exists in this investigation that could be used (by
others) to portray persons on both sides of the issue in a less than flattering light. The District Attorney
encourages the parties to resolve their dispute from this point forward with a minimum of rhetoric.
http://www.montcopa.Org/da/pressreleases/D ACastor_decision_on_Cosby.htm
2/17/2005
Media Advisory
Montgomery County District Attorney Bruce L. Castor, Jr. directs persons interested in the Cosby
matter to the DA's Office website for a press release, www.montcopa.org/da.
Press Releases
http://www.montcopa.org/da/pressreleases/DACastor_decision_on_Cosby.hmi
2/17/2005
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No. 05-cv-1099
APs grievance is unripe, and its motion is premature. Second, the AP ignores that neither it nor
the public has any presumptive right of access to discovery material or discovery motions. Case
Management Order 2 concerns only certain discovery motions. Therefore, the AP lacks standing
to move to vacate that order. The APs seeming outrage that the Court would even consider
sealing a discovery motion, even temporarily, without broadcasting its intent with sufficient
notice to the AP, demonstrates the APs inflated view of its right to access the discovery
proceedings in this case. For these reasons, which are stated in detail below, the Court should
deny the APs motion.
COUNTER-STATEMENT OF FACTS
The AP misconstrues the relevant facts in several critical ways. First, the AP blatantly
mischaracterizes Case Management Order 2 as directing that all requests for discovery,
responses and legal memoranda be filed under seal. (APs Br. at 1 (emphasis added); see also
id. at 4, 15.) Perhaps the AP did so to strengthen the appeal of its argument that the November 4,
2005 Order violates the Federal Rules of Civil Procedure on its face. (Id. at 7 n.2.) In reality,
the Order is far more narrow. It provides that requests for discovery and related briefs filed
pursuant to this order shall be filed under seal. (Case Mgmt. Order 2, at 2 (emphasis added).)
The Order does not govern all discovery motions that may ever be filed in this case.
That distinction is critical, because of another provision of Case Management Order 2 AP
ignored by the APby its terms, the Order is temporary. The AP contends that the Order sets
forth a protocol for testing the propriety of the seal and merely contemplate[es] that the seal
may be lifted. (APs Br. at 4.) In other words, the AP construes the Order as imposing a
permanent seal, which the parties may then challenge. The opposite is true. The Order imposes
a temporary seal. It is up to any party opposing the lifting of the seal to file a memorandum
show[ing] cause why the seal should not be lifted. (Case Mgmt. Order 2, at 2.) Thus, unless a
party moves to make any part of the seal permanent by December 21, 2005, the seal will be
lifted. The Court carefully required the parties to articulate every request on separate pages, so
that any later permanent sealing could be cleanly limited to the extent requested and justified.
The AP also contends that there is no public record explaining the genesis of, the reasons
for, and the limitations of Case Management Order 2. To the contrary, the November 4, 2005
conference, which preceded the Order, occurred on the record. There is a publicly available
transcript of that proceeding. During the proceeding, the Court recognized its responsibility to
balance any public interest with any legitimate basis for confidentiality. The Court noted that the
purpose of Case Management Order 2 was to establish a protocol whereby the Court could
review that issue in camera, so as not to decide the issue as a matter of default:
The second issue is whether or not these proceedings [i.e.,
the motions to compel relating to the parties depositions] should
then be conducted under some special rules of confidentiality. Or
whether they should be treated in the same manner that other
litigation is treated, i.e., that while discovery itself is confidential,
ordinarily proceedings involving the Court and enforcement of the
Courts Orders, are conducted in open court and on the record.
And there can be pretty good arguments both ways. So, the way to
join that issue, it seems to me, is these requests should be filed
under seal and the answers should be filed under seal.
When that is completed, then there will be an opportunity
for any party that wishes to argue that the seal should not be lifted,
to so show. And an opportunity to oppose that. That is, it seems to
me, that before we have an argument of whether or not the seal
should be lifted, we need to have on the record what it is that is
going to be subject to public review.
(Nov. 4, 2005 Tr. at 4.) The Court noted that, without such a temporary seal, a partys motion to
compel could very well, unilaterally, moot any legitimate claim to confidentiality:
The difficulty here is the following. The courts have
recognized that confidentiality can be attached to discovery
because, among other reasons, the Court is not directly involved.
3
records. Laboring under this misconception, the AP cites to authority governing the procedure
for decisions to close court proceedings, to seal judicial records permanently, and for the entry of
protective orders.1 (See APs Br. at 69.) As Case Management Order 2 states, however, the
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), concerned an order
closing a criminal trial. Press-Enterprise Co v. Superior Court, 464 U.S. 501 (1984), and
United States v. Antar, 38 F.3d 1348 (3d Cir. 1994), concerned a decision to close and
seal the transcript of criminal voir dire proceedings. Shingara v. Skiles, 420 F.3d 301 (3d
4
seal it imposes is temporary. Unless a party objects to the lifting of the seal, which neither party
has done, the motions to compel will become publicly available. Thus, what the AP fears is not
yet even a possibility. Permanent sealing will only become possible if and when a party moves
for a permanent seal, and only to whatever extent the parties assert. At that putative point, the
Court will apply the law, issue a ruling, and articulate whatever findings are required by the law.
Therefore, the APs motion should be denied as premature.
In fact, it is difficult to determine exactly what the AP thinks should have occurred. The
AP states that it does not here argue that good cause never exists for sealing. (APs Br. at 8.)
It even recognizes that the parties certainly have the right to ask the Court to review sensitive or
privileged information in camera. (Id. at 9.) Yet, at the same time, the AP criticizes the Court
for placing the cart before the horse, as the Court apparently decided to seal first and
determine the validity of sealing later. (Id. at 8.) The AP has it topsy-turvy. If there may be
good cause here for sealing a discovery motion, and if that may only be determined by
submitting the motion to the Court, then the motion must be submitted, at first, under seal.
Otherwise, the discovery motion would become public (thanks to the AP itself), and the motion
to seal it would become moot. That procedure would put the cart before the horse. Case
Management Order 2 establishes a sensible, orderly procedure that preserves the rights of the
parties.
Cir. 2005), concerned a protective order governing the parties dissemination of all
discovery material. United States v. Raffoul, 826 F.2d 218 (3d Cir. 1987), concerned the
closure and sealing of the transcript from a criminal trial. Publicker Industries v. Cohen,
733 F.2d 1059 (3d Cir. 1984), concerned the closure and sealing of the transcript from a
preliminary injunction hearing.
5
II.
namely, that the mere filing of any document with the court, rendering it a judicial document,
affords the public a common law or constitutional right to access the document. The AP lumps
all judicial records and proceedings together, ignoring that Case Management Order 2
concerns only discovery material and discovery motions. Throughout its brief, the AP cites
broadly to the publics presumptive right to inspect and copy judicial records and documents.
(APs Br. at 6 (internal quotation marks omitted).) The AP invokes the right of the press and
public to articulate their countervailing interests in the potential sealing of any court filing.
(Id. at 13.) The AP argues that the seal should be lifted, and the publics right to access
motions, requests, and other records filed with the Court should be fully restored. (Id. at 9.)
Judging from the authority it cites, the AP even equates Case Management Order 2 to an order
closing an actual, live courtroom proceeding. (Id. at 910 & n.3.)
Neither the public nor the press has any right, however, to access discovery motions or
the discovery material attached to those motions. In Leucadia, Inc. v. Applied Extrusion
Technologies, Inc., 998 F.2d 157 (3d Cir. 1993), the United States Court of Appeals for the Third
Circuit held that there is a presumptive right to public access to all material filed in connection
with nondiscovery pretrial motions, . . . but no such right as to discovery motions and their
supporting documents. 998 F.2d at 165 (emphasis added). The court noted that we cannot
overlook the Supreme Courts statements in Seattle Times v. [Rhinehart, 467 U.S. 20 (1984)] . . .
that pretrial deposition and interrogatories are not part of public components of a civil trial.
Id. at 164. The court stated that a holding that discovery motions and supporting materials are
subject to a presumptive right of access would make raw discovery, ordinarily inaccessible to the
The Supreme Court explained why discovery is not, itself, sufficiently judicial to
warrant a public right of access. Much of the information that surfaces during pretrial
discovery may be unrelated, or only tangentially related, to the underlying cause of
action. Therefore, restraints placed on discovered, but not yet admitted, information are
not a restriction on a traditionally public source of information. Seattle Times, 476 U.S.
at 33.
The Third Circuits opinion in Pansy v. Borough of Stroudsbourg, 23 F.3d 772 (3d Cir.
1994) does not conflict, expressly or otherwise, with Leucadia. In Pansy, the document
at issue was a settlement agreement, not a discovery motion. The Third Circuit already
had decided that a settlement agreement deemed a judicial record is accessible under the
right of access doctrine. Pansy, 23 F.3d at 781 (citing Bank of Am. Natl Trust & Sav.
Assn v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344-45 (3d Cir. 1986).) Thus, to
determine whether the public had a right to access the settlement agreement in Pansy, the
court only was required to decide whether the settlement agreement was a judicial
record. Id. The court did not hold, or even consider, whether the right of access
extended to all documents filed with the court by litigants. The remainder of the opinion
did not concern access to judicial documents at all.
7
In addition to misapplying the constitution and the federal common law, the AP also
misapplies the Federal Rules of Civil Procedure, arguing that its right to access is based on
those rules. (APs Br. at 7 n.2.) The AP contends that Case Management Order 2 on its face
violates Rule 26(c). (Id.) Rule 26(c), however, governs discovery itself, not the courts
authority to seal any portion of the judicial record. Specifically, Rule 26 governs protective
orders in discovery, such as orders limiting the scope of discovery, or orders imposing
confidentiality on certain information produced in discovery. Case Management Order 2 is not a
protective order. It does not control whether the parties may disseminate discovery material
from this case.4 Rather, it is a case management order, providing a temporary seal so that the
broader protective order question may be argued and decided. The Order rests not on Rule 26
but on the Courts supervisory power over its own records and files, Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598 (1978), and on the equitable powers of courts of law
over their own process, to prevent abuses, oppression, and injustices. Gumbel v. Pitkin, 124
U.S. 131, 144 (1888). Shingara v. Skiles, 420 F.3d 301 (3d Cir. 2005), the case relied on most
heavily by the AP, concerned a Rule 26(c) protective order, not the sort of Case Management
Order at issue in the APs motion.5
In summary, the AP does not have a right to access discovery in this case, or to access
discovery motions. Its broadly worded brief all but ignores that point. Thus, the APs motion to
intervene to unseal the motions filed pursuant to Case Management Order 2 should be denied.
In this case, the parties agreed that they would treat the depositions as confidential until
Defendant had sought and received a ruling from the Court.
As for Rule 5, which was also mentioned in the portion of Leucadia quoted and cited by
the AP, (APs Br. at 7 n.2), that rule specifically provides that discovery material must
not be filed in the public record, a practice this Court has followed for years. See Local
R. Civ. P. 26.1(a).
9
III.
motions that publicly seek the Courts intervention is simply wrong. (APs Br. at 10.) Contrary
to the APs implication, it is entirely proper to hear discovery disputes by letter and to conduct
in-chambers or telephonic discovery conferences. Again, neither discovery nor discovery
motions are subject to a public right of access. Courts frequently hear discovery disputes by
letter. See, e.g., Stafford v. Vaughn, No. Civ.A.02-3790, 2005 WL 226147, at *1 (E.D. Pa. Jan.
20, 2005) (providing that any such discovery disputes shall be presented to the Court by letter to
Chambers). Some judges of this District Court maintain standing orders requiring discovery
disputes to be raised by letter. See, e.g., Laurenzano v. Lehigh Valley Hosp., Inc., No. CIV.A.
00-CV-02621, 2003 WL 21780978, at *2 (E.D. Pa. July 28, 2003) (A Standing Order of the
undersigned dated January 2, 2003 provides that all discovery disputes which cannot be amicably
resolved shall be brought to the attention of Magistrate Judge Rapoport by letter or other
informal means). Other district courts require this practice by local rule. See Local Rules of
the United States District Courts for the Southern and Eastern Districts of New York, Rule
37.3(c).
The AP does not have the right to know every detail about discovery in this case. Its
outrage over the procedure in this case is misplaced. Simply stated, the purpose of discovery is
to resolve legal disputes between parties, not to provide newsworthy material. Chicago
Tribune, 263 F.2d at 1316 (Black, J., concurring). If it were otherwise and discovery
information and discovery orders were readily available to the public and the press, the
consequences to the smooth functioning of the discovery process would be severe. Id. Such
10
interference by parties who have no interest in the underlying litigation could seriously impair an
Article III court from carrying out its core functionresolving cases and controversies. Id.
CONCLUSION
For these reasons, Defendant respectfully requests the Court to deny the APs motion.
Patrick J. OConnor
Patrick J. OConnor
George M. Gowen III
COZEN OCONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant
11
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No. 05-cv-1099
INTRODUCTION
A Protective Order limiting the public dissemination of confidential and private
discovery materials is neither unconstitutional nor a violation of the common law. Indeed, the
entry of such orders in civil litigation is routine. The Protective Order requested in this case is
reasonable and lawful, and should be entered by the Court.
The need for a Protective Order in this case is self-evident. The lawsuit involves subject
matters that are unquestionably personal and private. Plaintiff accuses Defendant of drugging
and touching her without her consent, allegations that the Defendant strenuously denies. At the
appropriate juncture, there will be a trial. Plaintiff will present her case, Defendant will respond,
and the jury will render its verdict.
In the interim period leading up to trial, however, Defendant wishes to prevent the public
disclosure of confidential and private discovery materials, including allegations of sexual
misconduct made by unidentified individuals who have chosen to remain anonymous.1 These
allegations are untested and prejudicial, and they may well be ruled inadmissible at trial. It
would serve no legitimate purpose to publicize them before trial, in the judicial record or
otherwise. Regrettably, in the absence of a Protective Order, these discovery materials will
almost certainly be the subject of widespread media attention.
To date, nearly all of the filings in this case, even the most inconsequential (such as the
order granting counsels admission pro hac vice), have been the subject of press reports. There
is no reason to expect that future filings, especially if they contain confidential and private
discovery materials, will not garner similar attention. The resulting prejudice to the parties and
damage to the integrity of the judicial process would be overwhelming. The only practical
solution is to require that documents and pleadings that reference or attach discovery materials
that the parties have designated as confidential be filed under seal, at least until this Court has
had an opportunity to review the information and determine whether it should remain
confidential or instead be disclosed. The APs protestations notwithstanding, there is nothing
unusual or untoward about such a procedure. Indeed, it represents the norm in civil litigation,
not the exception.
1
Notably, the AP does not insist that it has a First Amendment or common law right to
report the names of Defendants anonymous accusers. Like the Plaintiff, the AP
apparently wishes to disclose only the allegations against him. This tactic, if allowed by
the Court, would effectively deprive the Defendant of any meaningful right to respond to
the allegations, no matter how false and malicious they may be. This is less of a concern
at trial where the witnesses will testify in open court and be subject to cross-examination.
2
In seeking unfettered access to discovery materials before trial and before the Court has
had an opportunity to review them, the AP demands much more access than is normally
available in a civil case. In order to avoid giving this impression, however, the APs motion
mischaracterizes the relief that Defendant actually seeks. It begins by arguing that the requested
Protective Order would do what it plainly would not do, which is to conceal every aspect of these
proceedings from the public, even those that are not confidential. The AP thus asserts that
Defendant seeks a blanket sealing of judicial records and a wholesale sealing of court
papers. (APs Mem. at 5, 9.) Of course, as reflected in the proposed Protective Order that
accompanies Defendants motion, that is not what he is seeking at all. Nevertheless, the AP goes
on to argue that the Protective Order would bar it from publicizing accusations being made in
court proceedings. (Id. at 6.) That is not true, either. The crux of Defendants argument is that
none of the discovery materials at issue, especially the statements by the so-called Jane Doe
witnesses, has ever been aired in a court proceeding. In short, the AP targets a phantom
Protective Order that has never been requested and does not exist.
That said, it seems apparent that the AP would oppose the entry of any Protective Order,
however it is characterized and whatever its actual effect. Even so, the Courts consideration of
the Defendants request for a Protective Order should be guided by what Defendants motion
actually seeks, rather than what the AP says it seeks. The Court should bear in mind that the
controlling Supreme Court case, Seattle Times, draws a clear distinction between pretrial
discovery materials (which generally are not public) and judicial proceedings (which generally
are public). When analyzed appropriately under the governing legal standards, Defendants
motion should be granted.
II.
sealing of judicial records or the wholesale sealing of court papers, it would affect the ability
of the parties to disseminate the raw fruits of discovery to the public. In this respect, the
Protective Order is perfectly proper, because there is no right of access to pretrial discovery
materials.
[P]retrial depositions and interrogatories are not public components
of a civil trial. Such proceedings were not open to the public at
common law, and, in general, they are conducted in private as a
matter of modern practice. Much of the information that surfaces
during pretrial discovery may be unrelated, or only tangentially
related, to the underlying cause of action. Therefore, restraints
placed on discovered, but not yet admitted, information are not a
restriction on a traditionally public source of information.
Seattle Times Co. v. Rhinehart, 476 U.S. 20, 33 (1984) (citations and footnotes omitted).
The APs argument that the Protective Order somehow impinges on a public right fails to
take account of the distinction between pretrial discovery materials and judicial proceedings.
Indeed, it treats discovery and trial as though they were one and the same, arguing that, now that
the facts of the case are about to be tested in the crucible of discovery, it is all the more
important for the public to have access to the facts that will explain what has occurred in this
matter and why. (APs Mem. at 8.)
The notion that the facts are about to be tested in the crucible of discovery is sheer
nonsense. Discovery is not a crucible for anything, and it is certainly not the arena in which
the facts that will explain what has occurred will be determined. As in every case, the facts
will be determined at trial, not in discovery. The trial will be open to the public, and there will
be ample opportunity to learn what actually occurred and why. The Protective Order sought by
Defendant has nothing to do with the conduct of the trial, and, as such, treads on no public right.2
Because the requested Protective Order will have no effect on the trial of this case, the
only legitimate question before the Court is whether Defendants request for a Protective Order
meets the good cause requirement of Federal Rule of Civil Procedure 26(c). As Defendant
demonstrated in his motion papers, it does. One of Rule 26(c)s express purposes is to protect
litigants from potential embarrassment, especially where the potential embarrassment is
particularly serious. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
This is precisely the sort of case where a Protective Order is needed most. Much of the
discovery in this caseincluding the police files, the parties interrogatory answers, and the
parties and witnesses depositionswill concern personal relationships, alleged sexual
misconduct, possible drug use, and the psychological and emotional well-being of the parties and
witnesses. All of this information (whether it is true or false) is unquestionably private and
confidential. The fact that the APs reporters are eager to obtain and report this material is
besides the point. There is no reason whatsoever for allowing public access to information that
is damaging or embarrassing to a party or a witness merely because it makes good press copy or
will engage the publics interest. Jack H. Friedenthal, Secrecy in Civil Litigation: Discovery &
Party Agreements, J.L. & Poly 67, 86 (2000). See also Seattle Times, 476 U.S. at 34-35
(Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), . . . . [t]here is an
2
Again displaying the very overreaching that Seattle Times warned against, the AP insists
that the public is entitled to know how the District Attorney came to the conclusion that
Mr. Cosby should not be charged with a crime. (APs Mem. at 8.) If that were true,
there would be a public right to view the police and District Attorneys files, regardless of
whether a civil suit is subsequently filed. There is no such right, and therein lies
Defendants point. Police investigatory records are not public and they should not
become available to the media simply because the parties subpoena them in discovery.
5
Other discovery material, even material that might not be considered confidential in other
cases, may be confidential in this case because of Defendants celebrity status. For
example, the press should not be given access to Defendants private telephone numbers,
much less his personal financial information, just because Plaintiff is seeking this
information in discovery. Airing this information in public would seriously compromise
the privacy interests of the Defendant, members of his family, and numerous other
individuals, yet its release would serve no legitimate public purpose.
6
court filings that reference or attach discovery materials that have been designated confidential.
The parties would be required to file such materials under seal, permitting the Court, with the
parties participation, to determine whether they should remain sealed or whether any part of
them should be released.
This procedure is sensible and proper. Although there is a presumed right of access to
judicial proceedings and judicial records, Pansy v. Borough of Stroudsburg, 23 F.3d 772, 780
81, there is a correlative principle that the right of access . . . is not absolute. Bank of Am.
4
As Defendant pointed out in his earlier memoranda, the Court may also restrict the public
availability of information to preserve a fair trial. See Anderson v. Cryovac, Inc., 805
F.2d 1, 8 (1st Cir. 1986) (The district court was concerned that the extensive publicity . .
. would inhibit and perhaps prevent the selection of an impartial jury. . . . Because it was
faced with specific instances of massive and potentially harmful publicity, we find there
was good cause for the district court to issue the protective order.).
7
Natl Trust & Sav. Assn v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986). In
determining whether the public should be given access to judicial records, the Court is required
to balance competing public and private interests. Thus, the presumption of access [to judicial
records] must be balanced against the factors militating against access. Id.
The balancing test applicable to the sealing of judicial records does not apply to every
court filing, however, because not everything that is filed in court is considered a judicial
record. In particular, there is no presumed right of access to filings that relate to discovery
motions and their supporting documents. Leucadia, Inc. v. Applied Extrusion Technologies,
Inc., 998 F.2d 157, 165 (3d Cir. 1993). As the Leucadia court explained: [A] holding that
discovery motions and supporting materials are subject to a presumptive right of access would
make raw discovery, ordinarily inaccessible to the public, accessible merely because it had to be
included in motions precipitated by inadequate discovery responses or overly aggressive
discovery demands. Id. at 164. Therefore, to the extent that the requested Protective Order
would require the parties to file discovery motions and exhibits under seal, it would not implicate
the publics presumed right of access to judicial records.
The Second Circuit has also emphasized that not every court filing implicates the
presumed right of public access. It articulated several reasons why this is so, including a number
of reasons that apply squarely to the discovery materials at issue here:
[I]t must be recognized that an abundance of statements and
documents generated in federal litigation actually have little or no
bearing on the exercise of Article III judicial power. The relevance
or reliability of a statement or document cannot be determined until
heard or read by counsel, and, if necessary, by the court or other
judicial officer. As a result, the temptation to leave no stone
unturned in the search for evidence material to a judicial proceeding
turns up a vast amount of not only irrelevant but also unreliable
material. Unlimited access to every item turned up in the course of
litigation would be unthinkable. Reputations would be impaired,
Although the AP is correct that the law prevents parties from unilaterally deciding,
without court supervision, what judicial documents should be sealed, the law is equally
clear that parties may not unilaterally decide to make confidential materials public,
through the unsupervised and wholly discretionary act of filing a document in the public
court file.
9
decision. A persons privacy interests are not diminished because he or she happens to be a
celebrity. The Pansy courts reference to persons subject to legitimate public scrutiny and
issues or parties of a public naturesuch as the litigation against a municipality at issue before
itwas based on precedents concerning persons who serve [the public] in office, a
government agency and matters of public concern, and information important to public health
and safety. Id. at 787-88 (citations and quotation marks omitted). Defendant in this case fits
none of these categories. To the contrary, [m]ore than mere celebrity interest is required to tip
the balance against privacy. Condit v. Dunne, 225 F.R.D. 113, 120 (S.D.N.Y. 2004); see also
Paisley Park Enters. v. Uptown Prods., 54 F. Supp. 2d 347, 348 (S.D.N.Y. 1999) (holding that,
where opposing party had history of sharing information with media, rock star Princes motion
for protective order would be granted).
In addition, the Supreme Court has explained that courts have inherent supervisory
power to deny access to court files where court files might have become a vehicle for improper
purposes and to insure that its records are not used to gratify private spite or promote public
scandal. Nixon v. Warner Communications, Inc., 425 U.S. 589, 598, 603 (1978) (citation
omitted). Moreover, in cases like this, where much of the discovery material will likely be
inadmissible at trial, a Protective Order does not interfere with a legitimate public interest.
United States v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997) ([n]either tradition nor logic
supports public access to inadmissible evidence.). Thus, a Protective Order that precludes the
parties from publishing incendiary and scandalous information, which is inadmissible and
judicially useless, is entirely appropriate, particularly given the strong countervailing privacy
interests at stake. See id.
10
CONCLUSION
Plaintiff and the AP each give their own reasons for opposing Defendants motion for a
Protective Order. Plaintiff argues that the motion somehow represents an attempt by the
Defendant to silence his accusers and bring shame, self doubt, and humiliation on victims of
sexual assault. The AP argues that the motion somehow treads on the publics right of access to
judicial records and proceedings and would deny the public access to the facts that will explain
what has occurred in this matter and why. Neither argument comes anywhere close to the mark.
Defendants request for a Protective Order harms no one and treads on no public right. It
seeks merely to prevent the prevent the dissemination of confidential discovery materials before
trial. Entry of a Protective Order will help to preserve the integrity of the jury pool, ensure
fairness, and lessen the prospects that the parties will be prejudiced by the disclosure of
potentially irrelevant and unreliable material that may be inadmissible at trial.
11
The Court should deny the APs motion to intervene and enter the Protective Order
attached to Defendants motion.
s/ Patrick OConnor
Patrick J. OConnor
George M. Gowen III
COZEN OCONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant
12
:
:
:
:
:
:
:
:
:
No. 05-cv-1099
DEFENDANTS ANSWER
Defendant hereby answers Plaintiffs Complaint, as follows:
A. Jurisdiction and Venue
1.
the allegations contained in paragraph three of the Complaint and, therefore, denies them.
4.
Admitted.
C. Factual Background
5.
response is required.
6.
Defendant admits that, to his knowledge and memory, Plaintiff was employed by
the Temple University Womens Basketball Program, for a period of time in the last five years.
He also admits that he met Plaintiff through their mutual connection to Temple University.
Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of the remaining
allegations contained in paragraph six of the Complaint and, therefore, denies them.
7.
University, he befriended Plaintiff and attempted to help and encourage her professional
development. Defendant admits that, to his knowledge, Plaintiff considered him to be a friend
and mentor. Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of the
remaining allegations contained in paragraph seven of the Complaint and, therefore, denies them.
8.
Defendant admits that, from when they first became friends until some point prior
to January 2005 (when Plaintiff first made her allegations against Defendant), Plaintiff and he
saw each other socially. He admits that these social interactions included various group dinners
and other functions at his Elkins Park home. Defendant also admits that these social interactions
included one-on-one dinners and evenings at his Elkins Park home and other locations. He also
admits that Plaintiff attended a dinner party with him in March 2004 and attended one of his
performances in August 2004. He admits that, during the course of their friendship, Plaintiff and
he discussed many topics, including basketball, Plaintiffs career and personal development, job
opportunities, and Plaintiffs spiritual beliefs.
9.
Denied as stated. By way of further answer, Defendant admits that, on more than
one occasion, he invited Plaintiff to his Elkins Park home, and she accepted. On certain of these
occasions, Plaintiff was Defendants only guest. Plaintiff and Defendant discussed, as they often
did, Plaintiffs career. Defendant does not recall the exact dates or times of Plaintiffs visits.
2
10.
11.
visits to his Elkins Park home, Plaintiff complained of tension and an inability to sleep.
Defendant denies the remaining allegations contained in paragraph eleven of the Complaint.
12.
Plaintiffs complaint of tension and inability to sleep, he offered Plaintiff one and one-half
tablets of over-the-counter Benadryl.
13.
Denied.
14.
Defendant admits that Plaintiff accepted the tablets that he offered her. Defendant
Denied.
16.
Defendant admits that he offered Plaintiff one and one-half tablets of over-the-
counter Benadryl. Defendant denies the remaining allegations contained in paragraph 16 of the
Complaint.
17.
Denied.
18.
Denied as stated.
19.
Denied.
20.
Denied.
21.
Denied.
22.
the allegations contained in paragraph 22 of the Complaint and, therefore, denies them.
23.
Denied.
3
24.
Denied as stated. By way of further answer, Defendant states that, when he came
downstairs to wake Plaintiff, she was already awake. Defendant denies wearing only a bathrobe.
25.
departure from his Elkins Park home, Defendant served Plaintiff a breakfast consisting of a
homemade blueberry muffin and a cup of hot tea.
26.
the allegations contained in paragraph 26 of the Complaint and, therefore, denies them.
27.
Defendant admits that, between January 13, 2005 and the present, he has made
statements that have been published by the media. The publications and broadcasts speak for
themselves. Defendant denies the remaining allegations contained in paragraph 27 of the
Complaint.
28.
the allegations contained in paragraph 28 of the Complaint and, therefore, denies them. By way
of further answer, Defendant states, upon information and belief, that Plaintiffs identity as
Defendants accuser was first made public by a member of Plaintiffs family.
29.
interviewed by a reporter for The National Enquirer and that the subjects covered in the
interview included Plaintiffs allegations. He also admits that The National Enquirer
subsequently published an article that purported to set forth portions of his statements during the
interview. That article speaks for itself. Defendant denies the remaining allegations contained in
paragraph 29 of the Complaint.
30.
Denied.
COUNT I
Andrea Constand v. William Cosby
Battery
31.
response is required.
32.
Denied.
33.
Denied.
34.
Denied.
35.
Denied.
36.
Denied.
37.
Denied.
38.
Denied.
WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.
COUNT II
Andrea Constand v. William Cosby
Assault
39.
response is required.
40.
Denied.
41.
Denied.
42.
Denied.
43.
Denied.
44.
Denied.
45.
Denied.
46.
Denied.
WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.
COUNT III
Andrea Constand v. William Cosby
Intentional and Negligent Infliction of Emotional Distress
47.
response is required.
48.
Denied.
49.
Denied.
50.
Denied.
51.
Denied.
52.
Denied.
53.
Denied.
WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.
COUNT IV
Andrea Constand v. William Cosby
Defamation/Defamation Per Se
54.
response is required.
55.
the allegations contained in paragraph 55 of the Complaint and, therefore, denies them.
56.
Denied.
57.
Denied.
58.
interviewed by a reporter for The National Enquirer and that the subjects covered in the
interview included Plaintiffs allegations. The article purportedly publishing some of his
statements during that interview speaks for itself. Defendant denies the remaining allegations
contained in paragraph 58 of the Complaint.
59.
Denied.
60.
Denied.
61.
the allegations contained in paragraph 61 of the Complaint and, therefore, denies them.
62.
Denied.
63.
the allegations contained in paragraph 63 of the Complaint and, therefore, denies them.
64.
Denied.
WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.
COUNT V
Andrea Constand v. William Cosby
False Light/Invasion of Privacy
65.
response is required.
66.
Denied.
67.
Defendant admits that, on February 21, 2005, he was interviewed by a reporter for
The National Enquirer and that the subjects covered in the interview included Plaintiffs
allegations. The article purportedly publishing some of his statements during that interview
speaks for itself. Defendant denies the remaining allegations contained in paragraph 67 of the
Complaint.
68.
Denied.
69.
Denied.
70.
Denied.
WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.
AFFIRMATIVE DEFENSES
1.
2.
s/ Patrick J. OConnor
Patrick J. OConnor
George M. Gowen III
COZEN OCONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant
sl Patrick O'Connor
Patrick J. O'Connor
George M. Gowen III
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
N
ew York, NY 10036-6710
212.336.2000
Attorneys for Defendant
BACKGROUND
The Court already is familiar with the allegations and scope of discovery in this case.
Plaintiff alleges that Defendant sexually assaulted her, in January 2004. (Am. Compl. [doc. #
41] 11-25.) She did not, however, report the incident to police until January 2005. (Id. 28.)
She alleges that, after she spoke to police, she and her mother had telephone conversations with
Defendant. (Id. 32.) Subsequently, according to Plaintiff, Defendant made statements to the
media, directly and through "representatives," which were untruthful and defamatory. She
claims that the content of her mother's telephone conversations with Defendant prove that he
knew his statements to the press were false. (Id. 29-32.)
Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 2 of 13
Placing much about herself at issue, Plaintiff alleges that Defendant's conduct has caused
her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss of
enjoyment of life's pleasures," "a set back in her education," and "a loss of earnings and earning
capacity." (Id. 36-39.) Plaintiff's defamation claim also places at issue her motivations in
deciding to accuse Defendant of assault, a year after the alleged attack. (See id. 29, 31.)
Defendant denies Plaintiff's allegations. (See Def.'s Answer Pl.'s Am. Compl. [doc. # 42].)
The parties currently are conducting discovery. What would be routine discovery,
however, has become complicated, because Plaintiff is Canadian. Several obvious subjects of
discovery-such as persons identified in Plaintiff's Initial Disclosures, her family members who
witnessed her mental state and with whom she discussed her allegations, and the police officers
to whom she first made her accusations-are in Ontario, Canada. Thus, they are outside the
subpoena power of this or any United States court. Plaintiff has done nothing to mitigate this
complication-she has not agreed to make her relatives available for deposition or consented to
any routine documentary discovery. Thus, to prepare his defense and receive the discovery to
which he is entitled, Defendant must seek judicial assistance abroad. To do so, Defendant must
ask this Court to act, by issuing international letters of request. Defendant's proposed
international letters of request are attached hereto as Exhibits A-K.
II. THE DISCOVERY REQUESTED
A.
Depositions
Through discovery, Defendant has learned that there are at least eight individuals located
in Ontario, Canada who possess relevant information not obtainable from other sources.
Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 3 of 13
1.
Gianna Constand
Gianna Constand is Plaintiff's mother. The parties agree that she possesses relevant
information. Indeed, in her Initial Disclosures, Plaintiff identified Gianna Constand as a person
whose testimony Plaintiff may use to support her claims. Gianna Constand's telephone
conversations with Defendant are a central fact of Plaintiff's case. Moreover, as Plaintiff's
mother, who lived with Plaintiff after the alleged attack, Gianna Constand is also likely to have
information about several other aspects of the case, including Plaintiff s relationship with
Defendant, the alleged attack, its effect on Plaintiff, Plaintiff's decision to reveal it, and the
events that occurred thereafter.
2.
Andrew Constand
Andrew Constand is Plaintiff's father. He lived with Plaintiff after the alleged attack and
specifically, when she decided to reveal the attack a year after it allegedly occurred. As he
explained to the Toronto Sun, he knows the effect that the alleged attack had on Plaintiff, what
caused Plaintiff to break her silence, Plaintiff's motivations in bringing this suit, her propensity
for telling the truth, and the nature of Plaintiff's and Defendant's relationship. Thus, Defendant
wishes to learn this information from Mr. Constand at a deposition.
Jennifer
3.
Sprague
Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 4 of 13
4.
Darryl Rastorp
Discovery has revealed that Plaintiff did not live alone at the time she alleges Defendant
assaulted her. Her cousin, Darryl Rastorp, lived with her at the time. In fact, according to
Plaintiff, Mr. Rastorp was with her on a daily basis during this period of time. Thus, Mr. Rastorp
is likely to have information concerning, among other things, Plaintiff's relationship with
Defendant and her behavior after the alleged attack. Accordingly, Defendant wishes to depose
Mr. Rastorp.
5.
Stuart Parsons
Diana Parsons
Diana Parsons is Plaintiff's sister and is married to Mr. Parsons. According to Mr.
Parsons, it was Diana Parsons who told him about the alleged attack around the time Plaintiff
reported it to Canadian police. Thus, Diana Parsons is likely to have information about
Plaintiff's decision to make her allegations public, and the events that occurred thereafter.
Moreover, as Plaintiff's sister, Diana Parsons is also likely to have information concerning the
Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 5 of 13
attack itself, Plaintiff's relationship with Defendant, and Plaintiff's state of mind before and after
the alleged attack. Thus, Defendant requires testimony from Diana Parsons.
7.
The Durham Police Department in Ontario, Canada possess critical information relevant
to determining the truth of Plaintiff's allegations. It was the Durham police to whom Plaintiff
first reported the alleged assault. The Durham police officers who spoke with Plaintiff issued a
report of their conversation with her. The report identified officers David Mason and Ken
Anderson as responsible for the report. Accordingly, Defendant seeks the depositions of these
officers, as the initial recipients of the complaint at issue in this case.
B.
Discovery also has revealed several entities located in Ontario, Canada that possess
relevant documents not obtainable from other sources.
1.
Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 6 of 13
these records, Defendant seeks to obtain them from Sutherland-Chan. While Plaintiff could
simply consent to Sutherland- Chan's release of these records to Defendant, she has not agreed to
do so.
2.
Between the alleged attack and her decision to reveal it, Plaintiff lived with her parents in
Ontario. The records of her telephone conversations during that period will bear upon and lead
to evidence of her mental condition, including her ability to "enjoy life's pleasures," which she
has placed at issue. They will also bear upon the extent of her relationship with Defendant,
which continued after the alleged attack. Bell Canada of Toronto, Ontario possesses those
records. While Plaintiff could simply consent to Bell Canada's release of these records to
Defendant, she has not agreed to do so.
3.
Plaintiffs cellular
telephone records
In addition to her parents' home phone, Plaintiff used a cellular telephone while living in
Canada after the alleged attack. The records of this activity on that phone are held by Rogers
Communications, Inc. of Toronto, Ontario. Again, Plaintiff refuses to consent to Rogers' release
of those records to Defendant. Accordingly, Defendant seeks assistance from the Court.
4.
Realizing Your
Potential
Discovery has revealed that Plaintiff, within two months of her relocation from
Philadelphia to Ontario in March 2004, enrolled in classes at Reaching Your Potential, a school
of polarity therapy training. Reaching Your Potential since changed its name to Realizing Your
Potential. See Welcome to Realizing Your Potential, http://www.reachingyourpotential.com
(last visited March 6, 2005). Realizing Your Potential is likely to have documents concerning
Plaintiff's educational endeavors and her potential earning capacity. This information will bear
on the truth of Plaintiff's allegations that Defendant' s actions caused her a loss of continuity in
her education and a loss of earnings and earning capacity. Given the nature of the training, this
information also will bear on Plaintiff's state of mind after the attack in general.
III. THE LETTERS OF REQUEST
Unlike discovery located in different jurisdictions within the United States, Defendant
cannot simply issue process from a Canadian court. Nor may he, without this Court's
involvement, appeal directly to a Canadian court for assistance. Canada and the United States
are not parties to the same treaty or convention regarding discovery or evidence. Canadian
courts, however, do have the authority to enforce international letters of request, pursuant to
statute. See Canada Evidence Act, R.S.C., ch. C-5, 46(1) (1985). In particular, Ontario courts
have the authority, under the Ontario Evidence Act, R.S.O., ch. E-23, 60(1) (1990), to enforce
letters of request from courts in the United States.
Letters of request, also known as letters rogatory, are a medium whereby one country
requests that a court of another country assist in the administration of justice in the former
country. United States v. Zabady, 546 F. Supp. 35, 40 (M.D Pa. 1982) (citing The Si nee, 37 F.
Supp. 819, 820 (E.D. La. 1941)). Courts make and grant such requests for reasons of comity and
reciprocity. Id. United States federal courts have the inherent authority to issue letters of
request. United States v. Strong, 608 F. Supp. 188, 192 (E.D. Pa. 1985) ("It has been held that
federal courts have the inherent power to issue requests for judicial assistance through letters
rogatory."). This inherent authority is recognized in Federal Rule of Civil Procedure 28(b) and
28 U.S.C. 1781. Id. at 192-93; see Fed. R. Civ. P. 28(b); 28 U.S.C. 1781.
To be enforceable by a court in Ontario, a letter of request from this Court must meet
certain requirements. While it is the Ontario court that ultimately will make this determination,
Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 8 of 13
the letters Defendant asks this Court to execute contain proposed conclusions that address those
requirements, for the benefit of the Ontario court. Accordingly, Defendant discusses the
requirements below.
A.
balk at enforcing a letter of request issued by a private arbitrator in a foreign country. See e.g.,
B.F. Jones Logistics Inc. v. Rolko, [2004] 72 O.R.2d 355, 359. Here, this Court is a traditional,
constitutionally authorized court of competent jurisdiction. It is empowered to weigh, rule upon,
and authorize discovery related to these proceedings.
In determining whether the first factor is met, Ontario courts may also inquire whether
they could look to the requesting country for similar assistance. Republic of France v. De
Havilland Aircraft of Canada Ltd., [1991] 3 O.R.3d 705, 713. This requirement of willing
reciprocity is not limited to the powers of the actual requesting tribunal, but rather applies to the
entire jurisdiction. Id. at 714. In other words, "the question must be, is there a mechanism in
place within the foreign jurisdiction which could respond favourably to a Canadian request by
way of letters rogatory?" Id. United States courts, including this Court, do in fact have a process
to favorably respond to a Canadian international letter of request. Under 28 U.S.C. 1782, a
"district court of the district in which a person resides or is found may order him to give his
testimony or statement or to produce a document or other thing for use in a proceeding in a
foreign or international tribunal .... The order may be made pursuant to a letter rogatory issued,
or request made, by a foreign or international tribunal or upon the application of any interested
person and may direct that the testimony or statement be given, or the document or other thing be
produced, before a person appointed by the court." See 28 U.S.C. 1782; see also John Deere,
Ltd. v. Sperry Co!R.,, 754 F.2d 132, 134 (3d Cir. 1985) ("Had the Canadian tribunal directly
petitioned the district court to permit testimony to be taken, there would be little question as to
the propriety of honoring the request for assistance."). Thus, Defendant's proposed letters of
request will meet the first requirement of the Ontario Evidence Act.
The second requirement of the Ontario Evidence Act ensures that letters of request are
directed at a purpose for which letters of request could be issued by an Ontario court. Re
Mulroney and Coates, [1986] 27 D.L.R.4th 118, 128. The Ontario Rules of Civil Procedure
allow litigants to seek depositions from non -parties "who there is reason to believe ha[ve]
information relevant to a material issue in the action." See Ont. R. Civ. P. 31.10. The Ontario
Rules of Civil Procedure also allow litigants to seek documents from non-parties where "(a) the
document[s] [are] relevant to a material issue in the action; and (b) it would be unfair to require
the moving party to proceed to trial without having discovery of the document." See Ont. R.
Civ. P. 30.10. As is explained above, Defendant's proposed letters of request seek depositions
and documents from non-parties, which are directly relevant to several material issues in this
case. Thus, his proposed letters will meet the second requirement of the Ontario Evidence Act.
Finally, the Ontario Evidence Act requires that evidence sought is within the jurisdiction
of the requested court. Defendant's proposed letters also satisfy this requirement, as the eleven
individuals and entities from which Defendant seeks documents and testimony are located in
Ontario, Canada.
B.
Discretionary Factors
When a letter of request meets the requirements of the Ontario Evidence Act, the Ontario
court will then decide whether to enforce the letter of request, based on discretionary factors
developed by Canadian courts: (1) whether the evidence sought is relevant; (2) whether the
evidence sought is necessary for pre-trial discovery or trial; (3) whether the evidence is not
otherwise obtainable in the requesting jurisdiction; (4) whether documentary evidence is
identified with specificity; (5) whether the assistance sought is contrary to public policy; (6) and
whether the order sought is unduly burdensome. Re Friction Division Products and E. I. Du Pont
10
o. 2), [1986] 56 O.R.2d 722, 732. The application of these factors to Defendant's proposed
letters of request weighs in favor of enforcing them.
First, as is described above, the documents and testimony that Defendant seeks are both
relevant and necessary as a matter of pre-trial discovery. The testimony and documents sought
will bear on critical issues in this case, including Plaintiff's relationship with Defendant, the
alleged attack, Plaintiff's alleged injuries (including her state of mind, education, earning
capacity, and "enjoyment of life's pleasures"), Plaintiff's decision to accuse Defendant of
assault, Plaintiff's motivations in doing so, and Plaintiff's credibility. Without this information,
Defendant cannot prepare a complete defense.
Second, the evidence Defendant seeks is not otherwise obtainable. The individuals and
entities at issue are outside the subpoena power of this or any United States court. Only those
individuals can provide the evidence Defendant seeks, and only those entities possess the records
of Plaintiff's education, employment, and mental therapy that Defendant seeks. This formal
process is necessary because Plaintiff has not agreed to make any of these individuals available
for deposition or consent to Defendant's receipt of the documents at issue.
Third, Defendant has identified the documents he seeks with specificity. To identify
documents with specificity, a party does not have to prove that such documents exist. Id. at 737.
Rather, documents are required to be identified with reasonable precision in the circumstances of
each case. Id. Where a party is a stranger to the documents it seeks, it is sufficient to identify
the documents by topic or class. Id. Defendant has identified the class of documents he seeks,
both above, and in his proposed letters of request.
Fourth, Defendant's proposed letters of request do not contravene Canadian public
policy. Subjecting a non-party witness to a procedure permitted in Canadian litigation is not
11
contrary to Canadian public policy. Henry Bacon Bldg. Materials Inc. v. Royal Canadian
Mounted Police, [ 1994] 98 B.C.L.R.2d 59, 70. The Canadian court also will balance two broad
policy considerations concerning international comity: (1) the impact of the proposed order on
Canadian sovereignty and (2) whether justice requires that the evidence be ordered. Re Fecht
and Deloitte & Touche, [1997] 32 O.R.3d 417,417 affirming, [1996] 28 O.R.3d 188. Canadian
sovereignty is violated when enforcement of the letters of request would directly violate
Canadian law. De Havilland Aircraft, 3 O.R.3d at 719-20. Again, given the provisions of the
Ontario Rules of Civil Procedure, there is no reason to believe that Defendant's proposed letters
of request would violate Canadian law. On the other hand, justice requires that Defendant be
permitted to procure the discovery necessary to preparing his defense and ensuring a fair trial.
Finally, the order sought is not unduly burdensome. Defendant plans to conduct
depositions near the residences of the witnesses in Ontario, thus minimizing any burden or
imposition on them. Defendant intends to conduct each deposition according to the same rules
that would apply in a deposition in the United States. The document requests adhere to the same
rules that apply to document requests upon entities located in the United States. The entities that
would be subject to the document requests will have the opportunity to produce the requested
documents via mail or on-site inspection, and Defendant will bear the photocopying and other
costs.
IV. CONCLUSION
For the foregoing reasons, Defendant hereby respectfully requests this Court to issue the
attached letters of request directed to the appropriate judicial authorities in Ontario, Canada.
12
Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 13 of 13
s/ Patrick O'Connor
Patrick J. O'Connor
George M. Gowen III
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant
13
Case 2:05-cv-01099-ER Document 79-2 Filed 04/12/06 Page 1 of 1
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.
ORDER
AND NOW, upon consideration of Defendant's Motion for the Issuance of International
Letters of Request, and any response thereto, it is hereby ORDERED that said motion is
GRANTED. It is further ORDERED and that the attached Letters of Request shall be submitted
to the Court in duplicate, one original to be retained in the Court's files and the other original to
be signed by the Court, sealed and delivered to Patrick J. O'Connor, Cozen O'Connor, 1900
Market Street, Philadelphia, Pennsylvania, 19103, for transmittal through suitable channels to the
appropriate judicial authorities in Ontario, Canada.
EDUARDO C. ROBRENO, J.
EX HIBIT A
Case 2:05-cv-01099-ER Document 79-3 Filed 04/12/06 Page 2 of 5
The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
Gianna Constand is plaintiff's mother. In discovery, plaintiff identified Gianna Constand
as a person whose testimony she may use to support her claims. Gianna Constand lived with
plaintiff after the alleged attack. During this period of time, she had telephone conversations
with the defendant. These telephone conversations are relevant to this case. Moreover, Gianna
Constand is also likely to have information about several other aspects of this case, including
plaintiff's relationship with defendant, the alleged attack, its effect on plaintiff, plaintiff's
decision to reveal it, and the events that occurred thereafter.
This Court is of competent jurisdiction and authorizes defendant to take Gianna
Constand's deposition for purposes of this case. The information sought is relevant and
necessary as a matter of pre-trial discovery. The evidence is not otherwise obtainable. In this
Court's view, the relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Gianna Constand to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
plaintiffs injuries, plaintiff's relationship with defendant, the alleged attack, plaintiff's decision
to reveal the alleged attack, the events that occurred thereafter, and any other information Gianna
Constand possesses that may support plaintiff s claims against defendant. Gianna Constand is
outside the subpoena power of this or any United States court and the testimony sought is not
otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court' s request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market St
Philadelphia, PA 19106
EX HIBIT B
Case 2:05-cv-01099-ER Document 79-4 Filed 04/12/06 Page 2 of 5
The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
Andrew Constand is plaintiff's father. He lived with plaintiff after the alleged attack.
Subsequent to the alleged attack, Andrew Constand informed the Toronto Sun that he knew what
caused plaintiff to reveal the alleged attack, the effect that the attack had on plaintiff, plaintiff's
motivations in bringing suit against defendant, plaintiff's propensity for telling the truth, and the
nature of plaintiff's and defendant's relationship.
This Court is of competent jurisdiction and authorizes defendant to take Andrew
Constand's deposition for purposes of this case. The information sought is relevant and
necessary as a matter of pre-trial discovery. The evidence is not otherwise obtainable. In this
Court's view, the relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Andrew Constand
to participate in a deposition in Ontario. The topics the parties will cover during the deposition
are: the nature of plaintiff's and defendant's relationship, the cause of plaintiff's decision to
reveal the alleged attack, the effect that the alleged attack had on plaintiff, plaintiff's motivations
in bringing suit against defendant, plaintiff's propensity for telling the truth, and plaintiff's
injuries. Andrew Constand is outside the subpoena power of this or any United States court and
the testimony sought is not otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
EXHIBIT C
Defendant.
The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents and testimony he seeks. This court granted defendant's request and issued this letter.
In discovery, plaintiff identified Jennifer Sprague, a Canadian psychotherapist, as a
person whose testimony plaintiff may use to prove her claims. Plaintiff sought counseling from
Ms. Sprague both before and after the alleged attack. Ms. Sprague possesses knowledge and
documents that bear upon plaintiff's allegations of injury.
This Court is of competent jurisdiction and authorizes defendant to take Jennifer
Sprague's deposition for purposes of this case. The information sought is relevant and necessary
as a matter of pre-trial discovery. The evidence is not otherwise obtainable. In this Court's
view, the relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Jennifer Sprague to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
Jennifer Sprague's knowledge regarding plaintiff's injuries, her relationship with defendant, and
the alleged attack, in addition to any other information Jennifer Sprague possesses that she
believes or knows plaintiff to believe supports plaintiff's claims against defendant. This Court
hereby further prays that the appropriate court in Ontario compel Jennifer Sprague to produce (1)
any and all records in her possession concerning her counseling of plaintiff; (2) her
communications with plaintiff about this suit; and (3) her communications with plaintiff's
counsel about this suit. Jennifer Sprague is outside the subpoena power of this or any United
States court and the testimony and documents sought are not otherwise obtainable by the
defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
EXHIBIT D
Case 2:05-cv-01099-ER Document 79-6 Filed 04/12/06 Page 2 of 5
The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
At the time of the alleged attack, plaintiff lived with her cousin Darryl Rastorp. Mr.
Rastorp is likely to have information about plaintiff's relationship with defendant, in addition to
plaintiff's behavior before and after the alleged attack.
This Court is of competent jurisdiction and authorizes defendant to take Darryl Rastorp's
deposition for purposes of this case. The information sought is relevant and necessary as a
matter of pre-trial discovery. The evidence is not otherwise obtainable. In this Court's view, the
relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Darryl Rastorp to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
plaintiff's relationship with defendant and plaintiff's behavior before and after the alleged attack.
Darryl Rastorp is outside the subpoena power of this or any United States court and the
testimony sought is not otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
EXHIBIT E
Case 2:05-cv-01099-ER Document 79-7 Filed 04/12/06 Page 2 of 5
The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
Stuart Parsons is plaintiff's brother-in-law and a Toronto police officer. He learned of
plaintiff's allegations around the time plaintiff first reported the alleged incident to the police.
Mr. Parsons discussed the alleged attack with plaintiff, helped her find a lawyer, and
accompanied her to Pennsylvania to report the incident to the police in Montgomery County.
Mr. Parsons is likely to possess information concerning the alleged attack, plaintiff's decision to
make her allegations public, plaintiff's state of mind before and after the alleged attack, and
plaintiff's motivations in instituting suit against defendant.
This Court is of competent jurisdiction and authorizes defendant to take Stuart Parson's
deposition for purposes of this case. The information sought is relevant and necessary as a
matter of pre-trial discovery. The evidence is not otherwise obtainable. In this Court's view, the
relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Stuart Parsons to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
the alleged attack, plaintiff's decision to make her allegations public, plaintiff's state of mind
before and after the alleged attack, and plaintiff's motivations in instituting suit against
defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
EX HIBIT F
Case 2:05-cv-01099-ER Document 79-8 Filed 04/12/06 Page 2 of 5
The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
Diana Parsons is plaintiff's sister and is married to Stuart Parsons. Stuart Parsons is a
Toronto police officer. Stuart Parsons has stated that Diana Parsons told him about the alleged
attack around the time plaintiff reported it to the Canadian police. Diana Parsons is likely to
have information about plaintiff's decision to make her allegations public, and the events that
occurred thereafter. Diana Parsons, as plaintiff's sister, is also likely to possess information
concerning plaintiff's relationship with defendant, the alleged attack itself, and plaintiff's state of
mind before and after the attack.
This Court is of competent jurisdiction and authorizes defendant to take Diana Parsons
deposition for purposes of this case. The information sought is relevant and necessary as a
matter of pre-trial discovery. The evidence is not otherwise obtainable. In this Court's view, the
relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Diana Parsons to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
plaintiff's relationship with defendant, the attack itself, and plaintiff's state of mind before and
after the alleged attack, plaintiff's decision to make her allegations public, and the events that
occurred thereafter.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
EXHIBI T G
Case 2:05-cv-01099-ER Document 79-9 Filed 04/12/06 Page 2 of 5
No. 05-cv-1099
V.
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.
The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
This Court is of competent jurisdiction and authorizes defendant to take depositions of
David Mason and Ken Anderson for purposes of this case. The information sought is relevant
and necessary as a matter of pre-trial discovery. The evidence is not otherwise obtainable. In
this Court's view, the relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel David Mason and
Ken Anderson of the Durham police department in Ontario to participate in depositions in
Ontario. The depositions will cover the officers' investigation into the alleged attack and the
accuracy of the report generated from that investigation. David Mason, Ken Anderson, and the
Durham Police Department are outside the subpoena power of this or any United States court
and the testimony sought is not otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
EXHIBIT H
Case 2:05-cv-01099-ER Document 79-10 Filed 04/12/06 Page 2 of 5
FACTS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.
The parties currently are conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks documents and testimony from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents he seeks. This court granted defendant's request and issued this letter.
In September 2004, plaintiff enrolled in classes at Sutherland-Chan School of Massage
Therapy ("Sutherland-Chan"). As of September 2005, plaintiff still was enrolled at SutherlandChan. Sutherland-Chan likely possesses documents concerning plaintiff's educational endeavors
and her potential earning capacity, which would bear on the truth of plaintiff's allegations that
defendant's actions caused her a loss of continuity in her education and a loss of earnings and
earning capacity.
In addition, plaintiff's therapist, Jennifer Sprague is affiliated with Sutherland-Chan.
Plaintiff sought counseling from Ms. Sprague both before and after the alleged attack. Ms.
Sprague may have generated documents that bear upon plaintiff's allegations of injury.
Defendant is entitled to obtain these records from Sutherland-Chan, to the extent that SutherlandChan is the custodian.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Sutherland-Chan
School of Massage Therapy to produce any and all records in its possession concerning plaintiff,
including but not limited to any: correspondence, applications for admission, transcripts,
performance evaluations, documents that reflect the reason she stopped her enrollment in the
institution and/or documents concerning Jennifer Sprague's counseling of plaintiff. Such records
are relevant and necessary as a matter of pre-trial discovery for purposes of this litigation.
Sutherland-Chan is outside the subpoena power of this or any United States court and the
documents sought are not otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
EXHIBIT I
Case 2:05-cv-01099-ER Document 79-11 Filed 04/12/06 Page 2 of 5
Defendant.
FACTS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.
The parties currently are conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks documents and testimony from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents he seeks. This court granted defendant's request and issued this letter.
Between the alleged attack and her decision to reveal it, plaintiff lived with her parents,
Gianna and Andrew Constand, in Ontario. Defendant is entitled the records of her telephone
conversations during that period, because those records will bear upon the extent of her
relationship with defendant after the alleged attack. The records will also bear upon her ability
to enjoy life's pleasures and her other allegations of injury. The records may also shed further
light on plaintiff's decision to come forward with her accusations. Bell Canada possesses those
records.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Bell Canada to
produce any and all records of telephone calls to or from phone number (905) 509-3303, between
and including March 2004 and March 2005. Such records are relevant and necessary as a matter
of pre-trial discovery for purposes of this litigation. Bell Canada is outside the subpoena power
of this or any United States court and the documents sought are not otherwise obtainable by the
defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
EXHIBIT J
Case 2:05-cv-01099-ER Document 79-12 Filed 04/12/06 Page 2 of 5
Defendant.
FACTS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.
The parties currently are conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks documents and testimony from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents he seeks. This court granted defendant's request and issued this letter.
Between the alleged attack and her decision to reveal it, plaintiff used a cellular phone.
Defendant is entitled the records of her cellular phone conversations during that period, because
those records will bear upon the extent of her relationship with defendant after the alleged attack.
The records will also bear upon her ability to enjoy life's pleasures and her other allegations of
injury. The records may also shed further light on plaintiff's decision to come forward with her
accusations. Rogers Communications, Inc. possesses those records.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Rogers
Communications, Inc. to produce any and all records of cellular phone calls to or from phone
number (416) 371-3303, between and including March 2004 and March 2005. Such records are
relevant and necessary as a matter of pre-trial discovery for purposes of this litigation. Rogers
Communications, Inc. is outside the subpoena power of this or any United States court and the
documents sought are not otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
EX HIBIT K
Case 2:05-cv-01099-ER Document 79-13 Filed 04/12/06 Page 2 of 5
FACTS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.
The parties currently are conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks documents and testimony from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents he seeks. This court granted defendant's request and issued this letter.
Within two months of her relocation from Philadelphia to Ontario in March 2004,
plaintiff enrolled in classes at Reaching Your Potential School, a school of polarity training.
Reaching Your Potential since changed its name to Realizing Your Potential. Realizing Your
Potential School of Polarity Therapy Training possesses documents concerning plaintiff's
educational endeavors and her potential earning capacity. Defendant is entitled plaintiff's
educational records to the extent that such records may bear on the truth of plaintiff's allegations
that Defendant's actions caused her a loss of continuity in her education and a loss of earnings
and earning capacity. Defendant is also entitled to these records as they may bear upon
plaintiff's state of mind in general after the alleged attack.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Realizing Your
Potential School of Polarity Therapy Training to produce all documents in its possession
concerning plaintiff, including but not limited to all: correspondence, applications, registration
forms, performance evaluations, transcripts, and/or documents that reflect the reason she
terminated her relationship with the institution. Such records are relevant and necessary as a
matter of pre-trial discovery for purposes of this litigation. Realizing Your Potential School of
Polarity Therapy Training is outside the subpoena power of this or any United States court and
the documents sought are not otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL
Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106
ANDREA CONSTAND,
Plaintiff
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
: JURY TRIAL DEMANDED
:
v.
WILLIAM H. COSBY, JR.,
Defendant
portions of Plaintiffs deposition under the guise of discovery has revealed. Further,
Defendants motion makes it appear that Plaintiff is not cooperating in the discovery process and
ergo, she has something to hide.
What Defendant neglects to mention, however, is that Plaintiff has already agreed that
Defendant may take such discovery.
the depositions of her relatives in exchange for Defendants assistance in obtaining the
depositions of Defendants wife and agents, including employees of the William Morris Agency.
It is Defendant who refuses to cooperate in order to complete the discovery process. Following
the completion of Defendants deposition on March 29, 2006, counsel discussed cooperating
with one another in obtaining the additional depositions required, by both sides, and Plaintiffs
counsel memorialized the conversation in a letter dated April 7, 2006. This letter stated, in
pertinent part:
As we discussed at the conclusion of the defendants deposition, there are additional
witnesses we want to depose. We are willing to assist you with the Canadian witnesses
who are related to Ms. Constand in exchange for your cooperation in the production of
the following witnesses: Peter Wiederlight, Ken DiCamillo, John St. Marthe, Lew
Weiss, Tom Cantone, Steve Littman, Tom Illius, the pilot, Mr. Beverly, and Camille
Cosby.
Finally, Jack Schmitt needs to be deposed about his negotiations with the National
Enquirer, and his knowledge regarding same, as well as his firms involvement regarding
the Lachelle Covington allegations. You said that there may be something we can work
out in lieu of a formal deposition. Please advise what you have in mind.
Plaintiff requested Defendants cooperation in obtaining the deposition of his New York
attorney (who is a fact witness), and other individuals with knowledge in this matter, including
those who called Plaintiff in January 2005 by telephone at Defendants request. Following
Defendants telephone conversation with Plaintiff and her mother in January 2005, Defendant
had employees of William Morris and his California attorney, Martin Singer, Esquire, call
Plaintiff in order to attempt to arrange a meeting or attempt to discuss compensation. Similarly,
in the past, Defendant caused a William Morris employee to mail a note and check to a Jane Doe
witness. Thus, discovery directed at representatives of the William Morris Agency who have
taken such actions is appropriate.
In his motion, Defendant also alleges that Plaintiff refused to consent to the obtaining of
her telephone records. In fact, Plaintiff has fully cooperated; however, Defendants blanket
request for all records is overly broad. Plaintiff simply requests that it be limited to the pertinent
time period.
telephone calls to Plaintiff and her mother, in which Defendant offered financial compensation to
Plaintiff. Consequently, at the time of the interview and statements made by Singer, Defendant
knew that Plaintiff and/or her mother had not accepted his offer. Id., 32.
Now, Defendant claims he needs depositions from Plaintiffs friends and family in
Canada and that Plaintiff does not consent to these depositions -- when he knows in fact that
Plaintiff proposed mutual cooperation in the discovery process. After the Motion was filed,
Defendants counsel informed Plaintiff that he would not produce Mrs. Cosby or the people who
Defendant directed to call Plaintiff. In his Motion, Defendant alleges this formal process is
necessary because Plaintiff has not agreed to make any of these individuals available for
deposition or consent to Defendants receipt of the documents in issue. To the contrary,
Plaintiff has simply requested the same courtesy from Defendant that she is willing to extend to
him, and that he limit the telephone document request to the pertinent time period. Plaintiff has
also requested that Defendant provide pertinent telephone service information concerning his
calls, including those he made to Plaintiff, so that Plaintiff can subpoena such documents.
CONCLUSION
Plaintiff requests that this Honorable Court deny the Motion as to Gianna Constand,
Andrew Constand, Darryl Rastorp, and Stuart and Diana Parsons because these are Plaintiffs
relatives who are available with a mutual cooperation agreement, and further, that the request for
telephone records be limited to the time period from March 2004, when Plaintiff returned to
Canada, through the end of January, 2005, which includes the time period during which Plaintiff
reported the incident to the police and was contacted by Defendant and his agents.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
By:_________________________
Dolores M. Troiani
I.D. No 21283
Bebe H. Kivitz
I.D. No. 30253
38 North Waterloo Road
Devon, Pennsylvania 19333
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on April 26, 2006, the undersigned were served in the following
manner, a true and correct copy of : Plaintiffs Response to Defendants Motion For The
Issuance Of International Letters of Request.
NAME
MANNER
TROIANI/KIVITZ, L.L.P.
By:_________________________
Bebe H. Kivitz
I.D. No. 30253
Dolores M. Troiani
I.D. No. 21283
Attorneys for the Plaintiff
38 North Waterloo Road
Devon, Pennsylvania 19333
(610) 688.8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER
AND NOW, this ____ day of __________ 2005, upon consideration of the Motion to
Extend the Suspension Period of the Courts Order Regarding the Identity of the Jane Doe
Witnesses as to Jane Doe No. 8, and any response thereto, IT IS HEREBY ORDERED as
follows, the identity of Jane Doe No. 8 shall be suspended until November 1, 2005, to allow her
sufficient time in which to file a motion requesting that her name be withheld.
BY THE COURT:
_______________________
J.
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
Jane Doe No. 8 operates a business in Colorado. Plaintiffs counsel attempted to contact
Jane Doe No. 8, following the Courts June 2, 2005, Order in this matter, and left a message for
her. Jane Doe No. 8s employee called plaintiffs counsel back to advise that Jane Doe No. 8 is
presently in Seattle with her husband; a bone marrow transplant is anticipated; and, Jane Doe No.
8 will likely not be available for purposes of this litigation until mid-October 2005, when her
husbands transplant and rehabilitation are complete, and she has returned to Colorado. The
stress of this Jane Does medical needs and medical treatment is all-consuming right now, and it
is unreasonable to ask this Jane Doe to divert her attention from her husbands imminent medical
needs.
The name and address for Jane Doe No. 8 has been provided to defense counsel, along
with the names and addresses of the other Jane Doe witnesses. Although the plaintiff expects the
other Jane Doe witnesses to file a motion to protect their identity consistent with the Courts June
2, 2005, Order, plaintiffs counsel requests that Jane Doe No. 8 be provided sufficient time to file
her motion with the Court once her husband has recovered and she is able to focus on this matter
and retain counsel.
For the above reason, plaintiffs counsel requests an extension of time until November 1,
2005, for Jane Doe No. 8 to submit a motion, either on her own or through counsel, that her
name be protected.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that the Motion to Extend the Suspension Period of the
Courts Order Regarding the Identity of the Jane Doe Witnesses as to Jane Doe No. 8, was filed
electronically and is available for viewing and downloading from the ECF system. I further
certify that a true and correct copy of said document was served via regular First Class mail,
postage prepaid, on the following:
Patrick J. OConnor, Esquire
Cozen OConnor
1900 Market Street
Philadelphia, PA 19103
Andrew D. Schau, Esquire
Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036
TROIANI/KIVITZ, L.L.P.
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER
AND NOW, this ____ day of __________ 2005, upon consideration of the Motion of
Jane Doe Witnesses to Protect the Disclosure of their Names, supporting Memorandum of Law
and opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses identified herein shall not be disclosed to the
media. The parties are directed that the identities of the Jane Doe witnesses identified herein
shall not be disclosed to anyone other than the parties in this case, counsel for the parties, and
any representatives working on their behalf.
2. The witnesses seeking protection herein shall be referred to as Jane Doe with a
number suffix, e.g., Jane Doe 1, etc. in all discovery responses, transcripts, and court filings.
BY THE COURT:
_______________________
J.
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
_______________________
B. Joyce Dale, Esquire
I.D. No. 70093
Crime Victims Law Center
202 N. South Avenue
Media, PA 19063
and
Judith F. Rubino, Esquire
I.D. No. 14203
1528 J.F.K. Blvd., Suite 1204
Philadelphia, PA 19102
and
Ralph A. Jacobs, Esquire
I.D. No. 21387
Ralph A. Jacobs & Associates
215 S. Broad Street, 10th Floor
Philadelphia, PA 19107
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
On one occasion, a reporter showed up unexpectedly and without prior notice at plaintiffs home
with flowers, appearing to be a delivery man, in an attempt to solicit an exclusive interview.
Moreover, the media attention has originated from many and multiple sources, and has been
relentless. The media calls have stemmed from local newspapers and television stations as well
as out-of-state newspapers, Canadian newspapers, The National Enquirer, CNN, FoxNews,
MSNBC, Celebrity Justice, and The Geraldo Rivera Show, to name but a few. The Jane Doe
witnesses do not seek this attention, but more importantly, several of them are specifically
requesting that they not be contacted or harassed as plaintiff was. Each Jane Doe witness is
prepared to testify and be cross-examined here; however, none of the Jane Doe witnesses
specified below wishes to invite unsolicited media attention and the stress associated with it.
Counsel for the Jane Doe witnesses hereby incorporate plaintiffs Motion to Protect the
Identity of Rule 415 Jane Doe Witnesses as though fully set forth herein, which is attached
hereto as Exhibit A. In addition, consistent with the Courts June 2, 2005 Order, counsel for
the Jane Doe witnesses submit the following reasons, supplied by the witnesses, all of which
constitute good cause, pursuant to F.R.E 26(c), why the Jane Doe names should not be disclosed
outside the scope of this litigation1 .
1. JANE DOE NO. 1
Jane Doe No. 1 lives in a small town. She is a private person, as is her 87 year old father
and 82 year old mother. She is not the type of person to invite media attention, nor does she or
her family want it. She believes that she has a moral and civic obligation to participate here as a
witness. At the same time, she believes that she and her elderly parents will be unable to cope
Counsel have not submitted affidavits or disclosures that would necessitate the signatures of the
witnesses, given that the names have not previously been disclosed in a motion or pleading, and
counsel are requesting in this motion that their names not be disclosed outside of this litigation.
4
with significant media attention or publicity, and will find it too stressful. She requests that her
identity not be revealed to the media.
2. JANE DOE NO. 2
Jane Doe No. 2 suffers from and has been treated for bipolar disorder. She does not want
her privacy invaded, and feels that such an invasion would be upsetting to her, would be
detrimental to her medical condition, and in fact might exacerbate her symptoms. She does not
want to be contacted by the news, and does not want her family contacted. She believes that any
unsolicited coverage or calls from the media will have a detrimental effect on her and her family,
and will be a source of additional stress.
3. JANE DOE NO. 3
Jane Doe No. 3 values her privacy, and requests that it be respected. She does not want
her privacy invaded. She believes that it would be devastating for her to be contacted by the
press or by defendants fans or supporters. She believes that defendants fans or supporters
might try to harass her, contact her, or otherwise give her a difficult time. Jane Doe No. 3 is also
employed by a gambling casino; she believes that she could in fact lose her job if she is
contacted at her place of employment, and further, that she could lose her job if the casino
management has a problem simply with her being in the limelight because of her status as a Jane
Doe witness here.
4. JANE DOE NO. 4
Jane Doe No. 4 does not want media attention or media contact, and believes it would be
too stressful. She especially wants to protect the privacy of her family. Her husband has been
ill, and has undergone brain surgery within the last month. As a result of his medical condition
and treatment, she feels it is imperative that she and her family suffer no additional stress.
Jane Doe No. 9 is not seeking, and does not want, any publicity or notoriety in
connection with her participation here as a witness. She does not want to be contacted, bothered,
or harassed by the media.
Doe witnesses respectfully request the Court to protect the release of their names outside of this
litigation, and requests that the Court order defendant not to disclose their names to others
______________________
B. Joyce Dale, Esquire
Attorney I.D. No. 70093
Crime Victims Law Center
202 N. South Avenue
Media, PA 19063
Attorney for Jane Doe Nos. 1-7 and
Jane Doe No. 9
and
EXHIBIT A
10
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER
AND NOW, this ____ day of __________ 2005, upon consideration of Plaintiffs Motion
to Protect the Identity of Rule 415 Jane Doe Witnesses, supporting Memorandum of Law and
opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses shall not be disclosed to the media. In order to
assure this, their identities shall not be disclosed to anyone other than the parties in this case,
counsel for the parties, and any representatives working on their behalf.
2. All Plaintiffs Rule 415 witness shall be referred to as Jane Doe with a number
suffix, e.g., Jane Doe 1, etc. in all discovery responses, transcripts and court filings.
BY THE COURT:
_______________________
J.
11
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
TROIANI/KIVITZ, L.L.P.
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ARGUMENT
The Motion to Protect the Identity of the Jane Doe Witnesses should be granted
because their Privacy Concerns Outweigh the Publics right to know their Identity.
Plaintiff proposes to identify the Jane Doe witnesses to defendant in this litigation, but
not identify them by name to the press. The anticipated testimony of the Jane Doe witnesses
relates to the obviously sensitive subject matter of sexual assaults and/or druggings. Of equal
concern is that disclosure of the witnesss identities may place them at risk of further physical
and psychological harm from media exposure or from overly zealous fans and supporters of the
celebrity defendant2 . These concerns are critical because whether plaintiff should publicly
disclose the identities of the Jane Doe witnesses rests upon a weighing of their privacy and
security interests against the publics need to know their names and addresses.
Other Courts have weighed these interests and, typically, extend protection to testifying
witnesses. In James v. Tilghman, 194 F.R.D. 398 (D. Conn. 1999), for example, the Court was
confronted with a similar issue pertaining to a civil suit against the Connecticut Department of
Corrections over its failure to protect the plaintiff inmate from sexual assaults by his cellmate.
The plaintiff wished to call certain Rule 415 inmate witnesses, who had also been subject to
sexual assaults by the same cellmate. In this instance, the defendant and not plaintiff knew the
identities of the witnesses. Plaintiff filed a motion to compel discovery of the inmate identities
and defendant filed a motion to preclude their identities. Id. at 399. The court held that
disclosure of the inmate identities subjected them to a possible security risk and in balancing the
interests of all parties concerned set forth procedures that required the cellmates consent as a
precondition to disclosing their identities, otherwise disclosure would not be permitted. Id. at
402.
2
Indeed, this is not a specious concern. Although the press routinely declines to print the name of sexual assault
complainants, in this case both plaintiffs name and picture were published in various sources.
In another example, Jason Doe v. American Nat. Red Cross, 151 F.R.D. 71, 72 (S.D.
W.Va. 1993), the Judge Magistrate performed a similar balancing analysis in determining
whether the identity of a deceased blood donor should be disclosed to plaintiff transfusion
recipient. The court ordered that the confidentiality of the donor identity be maintained but
subject to limited disclosure for discovery purposes. Id. at 74-75, n.5. See also Landano v. U.S.
Dept. of Justice, 956 F.2d 422, 430 -431 (3rd Cir. 1992) (no public interest in disclosure of
names under FOIA request for FBI files where individuals involved have some privacy interest
in not having names disclosed in connection with criminal investigation).
Likewise, in Carhart v. Ashcroft, 300 F. Supp.2d 921 (2004), an action to enjoin
enforcement of the Partial-Birth Abortion Ban Act of 2003, plaintiffs moved to protect the
identity of their expert witness who had performed the banned procedures. The court held that
the witness, a non-party, was uniquely qualified to testify that his or her safety would be
compromised by disclosure of the witnesss identity. Id. at 922. The court opined:
The court may take all reasonable steps necessary to protect the
witness during discovery, at trial, and thereafter. See, e.g., Federal
Rule of Evidence 611(a) ("The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to ... (3) protect witnesses from
harassment or undue embarrassment") & Federal Rule of Civil
Procedure 26(c) (permitting the court to make "any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden ...."). In extraordinary
circumstances, "where the safety ... of a witness ... might be
jeopardized by compelling testimony to be given under normal
conditions, the courts have permitted testimony to be given in
camera, outside the courtroom, or under other circumstances that
afford protection." 28 Charles A. Wright & Victor J. Gold, Federal
Practice and Procedure 6164, at 350-51 (1993) (footnotes
omitted).
Id. at 922 -923. See also Fluke v. Heidrick & Struggles, Inc., 2004 WL 884455, 2 (E.D. Pa
2004) (in negligence suit against executive recruitment form, identities may be protected where
disclosure of names and addresses would be harmful to search candidates and to defendants
ability to perform executive searches); McMullan v. Wohlgemuth, 444 Pa. 563, 567, 281 A.2d
836, 838 (1971) (Pennsylvania Right to Know Act excludes disclosure of information which
would operate to the prejudice or impairment of a person's reputation or personal security).
In the instant case, it is difficult to identify what public interest, if any, will be served by
disclosing the identity to the media of the Jane Doe witnesses. The public, of course, will have
access to the substance of the testimony; but the identity of the testifying witness will add little to
the publics knowledge of the proceedings. On the other hand, without the imposition of a
confidentiality order and with fear of embarrassment and possible retaliation, there is a risk of
harm to each of the witnesses should their identities become publicly broadcast. Clearly, the
balance here weighs heavily in favor of preserving the privacy of the Jane Doe witnesses.
CONCLUSION
For all the foregoing reasons, Plaintiff Andrea Constand respectfully requests this Court
to grant her Motion to Protect the Identity of Rule 415 Jane Doe Witnesses.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiffs Motion and Memorandum of Law to
Protect the Identity of the Rule 415 Jane Doe Witness was filed electronically and is available for
viewing and downloading from the ECF system. I further certify that a true and correct copy of
said document was served via regular First Class mail, postage prepaid, on the following:
Patrick J. OConnor, Esquire
Cozen OConnor
1900 Market Street
Philadelphia, PA 19103
Andrew D. Schau, Esquire
Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036
TROIANI/KIVITZ, L.L.P.
EXHIBIT A
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
A.
WITNESSES:
1.
Andrea Constand
Confidential address
Pickering, Ontario
2.
Gianna Constand
Confidential address
Pickering, Ontario
3.
4.
5.
Jennifer Sprague
Psychotherapist
53 Rabbit Street
Lakefield, Ontario
6.
7.
Barry Levine
The National Enquirer, Inc.
1000 American Media Way
Boca Raton, Florida 33464
8.
Joe Tobin
Celebrity Justice
New York, New York
10.
Jane Doe 1
Confidential address
Taos, New Mexico
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
11.
Jane Doe 2
Confidential address
Spring Hill, Florida
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
12.
Jane Doe 3
Confidential address
Las Vegas, Nevada
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
13.
Jane Doe 4
Confidential address
Portola Valley, California
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
14.
Jane Doe 5
Confidential address
Denver, Colorado
Plaintiff believes this witness is in the process of
retaining legal counsel
15.
Jane Doe 6
Confidential address
Toledo, Ohio
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
16.
Jane Doe 7
Confidential address
Cave Creek, Arizona
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
16.
Jane Doe 8
Confidential address
Monument, Colorado
16.
Jane Doe 9
Confidential address
Corralitos, California
Plaintiff believes this witness is in the process of
retaining legal counsel
B.
DOCUMENTS
1.
Documents constituting the criminal investigation in
this matter.
2.
Documents constituting transcripts of telephone
conversations by Mr. Cosby and his authorized agents.
3.
Relevant publications, including February 7, 2005,
Celebrity Justice and March 4, 2005, Enquirer, and other
relevant documents in possession of Celebrity Justice, The
Enquirer, or other publications concerning Defendants
statements, statements of his representatives or agents, and
statements made by potential witnesses to representatives of
such publications.
4.
Documents within the possession of the New York County
District Attorneys Office and/or 19th Police Precinct, New York,
NY, concerning Lachele Covingtons allegation of sexual assault
made against Defendant in 2000.
Plaintiff reserves the right to supplement this list as a
result of discovery and/or as additional information becomes
known or available to her.
C.
DAMAGES
TROIANI/KIVITZ, L.L.P.
________________________
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiffs Selfexecuting Disclosures was served via facsimile and U.S. mail,
postage prepaid, on the following:
TROIANI/KIVITZ, L.L.P.
________________________
Bebe H. Kivitz
Dolores M. Troiani
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I, B. Joyce Dale, hereby certify that on the date indicated below the undersigned served
the Motion of Jane Doe Witnesses to Protect the Disclosure of their Names by facsimile and
U.S. First Class mail, postage prepaid, on the following:
Patrick J. OConnor, Esquire
Cozen OConnor
1900 Market Street
Philadelphia, PA 19103
Andrew D. Schau, Esquire
Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036
________________________
B. Joyce Dale, Esquire
Crime Victims Law Center
202 N. South Avenue
Media, PA 19063
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER
AND NOW, this ____ day of __________ 2005, upon consideration of Plaintiffs Motion
to Protect the Identity of Rule 415 Jane Doe Witnesses, supporting Memorandum of Law and
opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses shall not be disclosed to the media. In order to
assure this, their identities shall not be disclosed to anyone other than the parties in this case,
counsel for the parties, and any representatives working on their behalf.
2. All Plaintiffs Rule 415 witness shall be referred to as Jane Doe with a number
suffix, e.g., Jane Doe 1, etc. in all discovery responses, transcripts and court filings.
BY THE COURT:
_______________________
J.
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
TROIANI/KIVITZ, L.L.P.
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ARGUMENT
The Motion to Protect the Identity of the Jane Doe Witnesses should be granted
because their Privacy Concerns Outweigh the Publics right to know their Identity.
Plaintiff proposes to identify the Jane Doe witnesses to defendant in this litigation, but
not identify them by name to the press. The anticipated testimony of the Jane Doe witnesses
relates to the obviously sensitive subject matter of sexual assaults and/or druggings. Of equal
concern is that disclosure of the witnesss identities may place them at risk of further physical
and psychological harm from media exposure or from overly zealous fans and supporters of the
celebrity defendant1 . These concerns are critical because whether plaintiff should publicly
disclose the identities of the Jane Doe witnesses rests upon a weighing of their privacy and
security interests against the publics need to know their names and addresses.
Other Courts have weighed these interests and, typically, extend protection to testifying
witnesses. In James v. Tilghman, 194 F.R.D. 398 (D. Conn. 1999), for example, the Court was
confronted with a similar issue pertaining to a civil suit against the Connecticut Department of
Corrections over its failure to protect the plaintiff inmate from sexual assaults by his cellmate.
The plaintiff wished to call certain Rule 415 inmate witnesses, who had also been subject to
sexual assaults by the same cellmate. In this instance, the defendant and not plaintiff knew the
identities of the witnesses. Plaintiff filed a motion to compel discovery of the inmate identities
and defendant filed a motion to preclude their identities. Id. at 399. The court held that
disclosure of the inmate identities subjected them to a possible security risk and in balancing the
interests of all parties concerned set forth procedures that required the cellmates consent as a
precondition to disclosing their identities, otherwise disclosure would not be permitted. Id. at
402.
1
Indeed, this is not a specious concern. Although the press routinely declines to print the name of sexual assault
complainants, in this case both plaintiffs name and picture were published in various sources.
In another example, Jason Doe v. American Nat. Red Cross, 151 F.R.D. 71, 72 (S.D.
W.Va. 1993), the Judge Magistrate performed a similar balancing analysis in determining
whether the identity of a deceased blood donor should be disclosed to plaintiff transfusion
recipient. The court ordered that the confidentiality of the donor identity be maintained but
subject to limited disclosure for discovery purposes. Id. at 74-75, n.5. See also Landano v. U.S.
Dept. of Justice, 956 F.2d 422, 430 -431 (3rd Cir. 1992) (no public interest in disclosure of
names under FOIA request for FBI files where individuals involved have some privacy interest
in not having names disclosed in connection with criminal investigation).
Likewise, in Carhart v. Ashcroft, 300 F. Supp.2d 921 (2004), an action to enjoin
enforcement of the Partial-Birth Abortion Ban Act of 2003, plaintiffs moved to protect the
identity of their expert witness who had performed the banned procedures. The court held that
the witness, a non-party, was uniquely qualified to testify that his or her safety would be
compromised by disclosure of the witnesss identity. Id. at 922. The court opined:
The court may take all reasonable steps necessary to protect the
witness during discovery, at trial, and thereafter. See, e.g., Federal
Rule of Evidence 611(a) ("The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to ... (3) protect witnesses from
harassment or undue embarrassment") & Federal Rule of Civil
Procedure 26(c) (permitting the court to make "any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden ...."). In extraordinary
circumstances, "where the safety ... of a witness ... might be
jeopardized by compelling testimony to be given under normal
conditions, the courts have permitted testimony to be given in
camera, outside the courtroom, or under other circumstances that
afford protection." 28 Charles A. Wright & Victor J. Gold, Federal
Practice and Procedure 6164, at 350-51 (1993) (footnotes
omitted).
Id. at 922 -923. See also Fluke v. Heidrick & Struggles, Inc., 2004 WL 884455, 2 (E.D. Pa
2004) (in negligence suit against executive recruitment form, identities may be protected where
disclosure of names and addresses would be harmful to search candidates and to defendants
ability to perform executive searches); McMullan v. Wohlgemuth, 444 Pa. 563, 567, 281 A.2d
836, 838 (1971) (Pennsylvania Right to Know Act excludes disclosure of information which
would operate to the prejudice or impairment of a person's reputation or personal security).
In the instant case, it is difficult to identify what public interest, if any, will be served by
disclosing the identity to the media of the Jane Doe witnesses. The public, of course, will have
access to the substance of the testimony; but the identity of the testifying witness will add little to
the publics knowledge of the proceedings. On the other hand, without the imposition of a
confidentiality order and with fear of embarrassment and possible retaliation, there is a risk of
harm to each of the witnesses should their identities become publicly broadcast. Clearly, the
balance here weighs heavily in favor of preserving the privacy of the Jane Doe witnesses.
CONCLUSION
For all the foregoing reasons, Plaintiff Andrea Constand respectfully requests this Court
to grant her Motion to Protect the Identity of Rule 415 Jane Doe Witnesses.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiffs Motion and Memorandum of Law to
Protect the Identity of the Rule 415 Jane Doe Witness was filed electronically and is available for
viewing and downloading from the ECF system. I further certify that a true and correct copy of
said document was served via regular First Class mail, postage prepaid, on the following:
Patrick J. OConnor, Esquire
Cozen OConnor
1900 Market Street
Philadelphia, PA 19103
Andrew D. Schau, Esquire
Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036
TROIANI/KIVITZ, L.L.P.
EXHIBIT A
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
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A.
WITNESSES:
1.
Andrea Constand
Confidential address
Pickering, Ontario
2.
Gianna Constand
Confidential address
Pickering, Ontario
3.
4.
5.
Jennifer Sprague
Psychotherapist
53 Rabbit Street
Lakefield, Ontario
6.
7.
Barry Levine
The National Enquirer, Inc.
1000 American Media Way
Boca Raton, Florida 33464
8.
Joe Tobin
Celebrity Justice
New York, New York
10.
Jane Doe 1
Confidential address
Taos, New Mexico
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
11.
Jane Doe 2
Confidential address
Spring Hill, Florida
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
12.
Jane Doe 3
Confidential address
Las Vegas, Nevada
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
13.
Jane Doe 4
Confidential address
Portola Valley, California
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
14.
Jane Doe 5
Confidential address
Denver, Colorado
Plaintiff believes this witness is in the process of
retaining legal counsel
15.
Jane Doe 6
Confidential address
Toledo, Ohio
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
16.
Jane Doe 7
Confidential address
Cave Creek, Arizona
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel
16.
Jane Doe 8
Confidential address
Monument, Colorado
16.
Jane Doe 9
Confidential address
Corralitos, California
Plaintiff believes this witness is in the process of
retaining legal counsel
B.
DOCUMENTS
1.
Documents constituting the criminal investigation in
this matter.
2.
Documents constituting transcripts of telephone
conversations by Mr. Cosby and his authorized agents.
3.
Relevant publications, including February 7, 2005,
Celebrity Justice and March 4, 2005, Enquirer, and other
relevant documents in possession of Celebrity Justice, The
Enquirer, or other publications concerning Defendants
statements, statements of his representatives or agents, and
statements made by potential witnesses to representatives of
such publications.
4.
Documents within the possession of the New York County
District Attorneys Office and/or 19th Police Precinct, New York,
NY, concerning Lachele Covingtons allegation of sexual assault
made against Defendant in 2000.
Plaintiff reserves the right to supplement this list as a
result of discovery and/or as additional information becomes
known or available to her.
C.
DAMAGES
TROIANI/KIVITZ, L.L.P.
________________________
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff
10
CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiffs Selfexecuting Disclosures was served via facsimile and U.S. mail,
postage prepaid, on the following:
TROIANI/KIVITZ, L.L.P.
________________________
Bebe H. Kivitz
Dolores M. Troiani
Attorney for Plaintiff
11
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Plaintiff,
v.
WILLIAM H. COSBY, JR.
Defendant.
CIVIL ACTION
05-1099
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
I.
JUNE 2, 2005
BACKGROUND
Plaintiff, Andrea Constand, brings this diversity
Plaintiff met
Plaintiff
Two,
disclosure.1
least thirteen Rule 415 witnesses may testify, (Hrg Tr. Troiani
(5/11/05) at 21), and that all but two are represented by
counsel, with one of the unrepresented witnesses being an
attorney herself, (Hrg Tr. Kivitz (5/11/05) at 29).
In support
(5/11/05) at 14-15.)
Defendants motion requests a blanket protective order
preventing the parties (and presumably counsel and witnesses)
from publicly disclosing or discussing any information learned in
discovery.
In
plaintiff is denied the right to have her counsel speak for her
in public, she will have no public voice with which to counteract
defendant.
Plaintiffs
Id. at 6-8.
3.
II.
DISCUSSION
A.
1 (Supp. 2005).
Given
Rather,
501 U.S. 1030, 1075 (1991); United States v. Scarfo, 263 F.3d 80,
93-94 (3d Cir. 2001).
360 U.S. 622 (1959), the Court observed that lawyers in pending
cases were subject to ethical restrictions on speech to which an
ordinary citizen would not be.).
Two, although at least one counsel has made
extrajudicial statements to the media concerning certain aspects
of the case, the bulk of the media coverage has centered on the
averments made by the parties in the pleadings.3
Thus, silencing
Specifically, Rule
Its pedigree
10
12
See,
13
This is
Henceforth,
14
One
The
When,
enforcement of Rule 3.6, on the other hand, will help the Court
guard against it.
B.
In re Cendant Corp.,
260 F.3d 183, 192 (3d Cir. 2001); Littlejohn v. BIC Corp., 851
F.2d 673, 678 (3d Cir. 1988).
Id.
Co., 155 F.R.D. 113, 115 (E.D. Pa. 1994) (footnote omitted)
(citing Fed. R. Civ. P. 26(c)).
Pansy v. Borough of
Pansy, 23 F.3d at
with specificity.
Id.
Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)).
Ultimately, in deciding whether good cause exists for a
protective order, i.e., whether a party has shown a clearly
defined and serious injury, the court must employ a balancing
process.
Id. at 787.
While this
This type of
19
of the Jane Doe witnesses may be able to show, based on their own
individual circumstances, that there is a particularized reason
why a protective order may be appropriate in an individual case.
In order to permit such a showing, the Court will suspend the
operation of the Order denying the request to keep the names of
Jane Doe witnesses confidential for ten days in order to afford
the Jane Doe witnesses an opportunity to seek individual relief,
if they so wish.
C.
the parties and their counsel and agents from publicly disclosing
or discussing all information learned in discovery.
He argues
that a blanket protective order will protect the parties and the
It
In other
In a similar
21
One,
Ordinarily a right of
See
10
the Court will revisit the issues and will recalibrate the scales
upon which it bases todays judgment.
III. CONCLUSION
For the foregoing reasons, the Court will deny the
request for a gag order as to the parties, counsel and witnesses.
Instead, the Court adopts Rule 3.6 of the Pennsylvania Rules of
Professional Conduct as Case Management Order 1 applicable to
counsel for purposes of this case.
11
However, the
24
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CIVIL ACTION
05-1099
ORDER
AND NOW, this 2nd day of June, 2005, it is hereby
ORDERED that:
1.
protect the identity of her Rule 415 Jane Doe witnesses (doc. no.
13) is DENIED.
5.
EDUARDO C. ROBRENO, J.
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.
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CIVIL ACTION
No. 05-CV-1099
Respectfully submitted,
TROIANI/KIVITZ, LLP
BY: DOLORES M. TROIANI
Attorney I.D. 21283
BEBE H. KIVITZ
Attorney I.D. 30253
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
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: CIVIL ACTION
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: NO. 05-CV-1099
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defendant, which accused plaintiff of exploiting him. In the second cause of action, it is
alleged that at the time of publication, the National Enquirer knew or should have known that
Plaintiff was not seeking to extort Cosby but had only requested that he apologize to her and her
mother and that the National Enquirer had reason to credit plaintiffs allegations because they
agreed to forgo publishing another womans similar accusations against Cosby in return for
Cosbys interview. At the time of the agreement, the tabloid has subjected the other woman to a
polygraph, which indicated that she was truthful. Despite that information, the paper published
Cosbys statements, which are the basis of the defamation allegations in both lawsuits. At his
deposition, defendant admitted that plaintiff had only asked for an apology and he had in fact
apologized to her. Although Cosby claimed to have told the National Enquirer that plaintiff and
her mother had asked only for an apology, his attorney claimed that he had not.
The deposition of defendant has not been completed; however, Cosby provided sufficient
information to form a basis for a defamation claim against both Martin Singer and the National
Enquirer. Because the statute of limitations for plaintiffs defamation claim ran in early February
as against Singer and in March as against the National Enquirer, Plaintiff filed a separate
defamation action, captioned Constand v. Singer and The National Enquirer, Civ. Action No 06483 in this Court (hereinafter, Constand v. Singer and The National Enquirer). Had there not
been this time constraint, plaintiff would have joined Singer and the National Enquirer as
additional defendants. Because her claim against Singer and the National Enquirer, arise from
the same transaction or occurrence and bear a logical relationship with the Plaintiffs claims
against Defendant in this case, Plaintiff now moves the Court to consolidate the actions.
ARGUMENT
A. Plaintiffs Action against Singer and the National Enquirer Involve Common
Questions of Law and Fact and, accordingly, Consolidation is Appropriate.
Federal Rule of Civil Procedure 42(a) provides:
When actions involving a common question of law or fact
are pending before the court, it may order a joint hearing or trial
of any or all the matters in issues in the actions; it may order all the
actions consolidated; andit may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.
It is within the Courts discretion to consolidate actions involving a common question of law or
fact. To determine whether multiple claims arise from a common question of law or fact, the
Court may look to whether a logical relationship exists between claims. See Miller v Hygrade
Food Prods. Corp. 202 F.R.D. 142, 144 (E.D. Pa. 2001). A logical relationship exists if both
actions involve the same factual and legal issues or where they are offshoots of the same basic
controversy between the parties. Xerox Corp. v. SCM Corp., 576 F.2d 1057, 1059 (3d Cir.
1978).
It the instant case, the commonality of the two actions is readily apparent. Here, the basic
controversy arises out of a sexual assault committed by defendant and, at least in the case of
Singer, the actions of his agents, in attempting to protect his image and to destroy plaintiffs
credibility following the public revelation of the assault. The defamation and related claims in
this lawsuit and in Constand v. Singer and The National Enquirer are not only offshoots of that
conduct, they are in fact, the same incident. In the instant lawsuit, Plaintiff asserts that
Defendant sought to defame her by besmirching her reputation and motives in Celebrity Justice
and the National Enquirer. Discovery in this case which is yet to be completed has revealed
that the wrongful campaign to defame Plaintiff began with defendant and extended to other
participants, specifically to Martin Singer and the National Enquirer. The second action,
Constand v. Singer and The National Enquirer, addresses that wrongful conduct. In summary,
both this lawsuit and that against Martin Singer and the National Enquirer, arise out of
Defendants sexual assault of the Plaintiff. Both law suits contain defamation claims arising out
of the Defendants campaign to silence her and attribute wrongful motivations to her actions.
Both actions involve the same actors, and the same defamatory statements made in the same
publications. Plaintiff, Cosby, Singer, representatives of the National Enquirer and the woman
whose story was not published by the National Enquirer are all witnesses in both suits. Neither
suit can be tried without extensive testimony as to the actions of the other defendants. The
allegations in the complaints are virtually the same and the witnesses will be the same in both
cases. There should be little dispute that both cases involve common questions of both law or
fact and, accordingly, Plaintiffs Motion to Consolidate should be granted.
B. Consolidation of the Actions will not Prejudice Defendant and will result in
Judicial Economy.
In determining whether multiple actions should be consolidated, the court
must balance the benefits of judicial economy and expediting the
litigation against the possibility of prejudice. Smithkline
Beecham, 2001 WL1249694, at 5 (quoting Kerley v. Great Lakes
Dredge & Dock Co., 1996 WL 131136, at 1 (E.D. Pa. 1996)); see
also Rosario v. SCM Group USA, Inc., 2003 WL 21982116, at 1
5
Janovici v. DVI, Inc., 2003 WL 22849604, 3 (E.D. Pa. 2003). It deserves little discussion that a
single trial of both this case and that of Constand v. Singer and The National Enquirer, would
promote judicial economy. As explained above, the facts in both cases involve the same actors
and the same defamatory statements made on the same dates. Separate trials would entail
duplication of both the Courts and the parties resources. It makes economic sense that both
cases be tried as a single matter. Since the evidence in both cases will be the same, there is no
potential of prejudice to the Defendant. For all these reasons, Plaintiff respectfully requests this
Court to grant her Motion for Consolidation.
CONCLUSION
For all the foregoing reasons, Plaintiff Andrea Constand respectfully requests this Court
to grant her Motion for Consolidation.
Respectfully submitted,
TROIANI/KIVITZ, LLP
BY: DOLORES M. TROIANI
Attorney I.D. 21283
BEBE H. KIVITZ
Attorney I.D. 30253
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
CIVIL ACTION
:
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.
:
:
:
:
:
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:
No. 05-CV-1099
ORDER
And Now this
Consolidate, supporting Memoranda of Law and any response thereto, Plaintiffs motion is
GRANTED and it is hereby ORDERED pursuant to Federal Rule of Civil Procedure 42(a) that
Constand v. Singer and The National Enquirer, Civ. Action No. 06-483 shall be consolidated
with the instant matter under Civil Action 05-CV-1099.
BY THE COURT:
Robreno, J
CERTIFICATE OF SERVICE
I hereby certify that on February 28, 2006, I filed electronically with the United States
District Court For The Eastern District of Pennsylvania and via United States First Class Mail
the undersigned were served in the following manner, a true and correct copy of : Motion of
Plaintiff Andrea Constand to Consolidate along with the Memorandum Of Law In Support Of
Plaintiffs Motion To Consolidate and Certificate of Service.
NAME
MANNER
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
By:_________________________
Bebe H. Kivitz
I.D. No. 30253
Dolores M. Troiani
I.D. No. 21283
Attorneys for the Plaintiff
38 North Waterloo Road
Devon, Pennsylvania 19333
(610) 688.8400
:
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No. 05-cv-1099
s/ Patrick OConnor
Patrick J. OConnor
George M. Gowen III
COZEN OCONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant
:
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No. 05-cv-1099
a protective order. In fact, it was only Defendants Motion to Compel that provoked Plaintiff to
file a motion for a protective order.
All the while, Plaintiff was pursuing her own discovery demands, including a request for
Defendants deposition. In short, Plaintiff unilaterally withheld the required disclosures,
contrary to default discovery procedure and an independent agreement between counsel, without
even moving, let alone receiving, the relief she now seeks.
Moreover, Plaintiffs statement that Defendant has now taken the position that he will
not be deposed is misleading. (Pl.s Mem. Law Oppn Def.s Mot. Compel at 2 n.2.) Rather, in
an April 11, 2005 letter, Defendants counsel stated that he will not be producing Defendant for
a deposition while Plaintiff is concealing the very identity of the witnesses with whom she
intends to confront him. (Ex. A at 2.) Defendant is not refusing to be deposed. His position is
that he should not be deposed until Plaintiff provides the threshold disclosures required in every
civil case, to allow litigants to prepare for and conduct discovery. In other words, his position is
precisely the position that he expressed in this Motion to Compel.1
Ultimately, however, it appears that Plaintiff now concedes that Defendant is entitled to
the information she is concealing. The dispute now appears to be about Plaintiffs demand for
unilateral confidentiality. Defendant will address that demand in his response to Plaintiffs
motion. In the interim, however, there being no dispute concerning Defendants right to know
s/ Patrick OConnor
Patrick J. OConnor
George M. Gowen III
COZEN OCONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant
EXHIBIT A
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NEW YORK
NEWARK
SAN DIEGO
SAN FRANCISCO
SEATTLE
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COZEN
DALLAS
DENVER
HOUSTON
LAS VEGAS
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CONNOR
TRENTON
WASHINGTON, DC
WEST CONSHOHOCKEN
ATTORNEYS
LONDON
LOS ANGELES
WICHITA
WILMINGTON
A PROFESSIONAL CORPORATION
PHILADELPHIA, PA 19103-3508
215.665.2000
800.523.2900
215.665.2013 FAX
www.cozen.com
PATRICK J. O'CONNOR
Direct Phone 215.665.2024
Direct Fax
215.665.3701
poconnor@cozen.com
April 11,2005
VIA FACSIMILE
Bebe H. Kivitz, Esquire
Troiani/Kivitz, L.L.P.
38 North Waterloo Road
Devon, PA 19333
Re:
Dear Bebe:
I received your April 6, 2005 letter, by fax, and the attached Rule 26(f) report and initial
disclosures. I must say that I am disappointed with your continued lack of cooperation in this
case.
On three separate occasions, on March 24, March 31, and April 4, 2005, you submitted to
me a proposed submission to the Court, labeled a "Preliminary Scheduling Order." In three
separate letters, dated March 31, April 1, and April 6, 2005,1 replied and reiterated that, if you
propose to submit something to the Court, it should be a report of our March 23, 2005 planning
meeting, which Rule 26(f) requires us to draft and submiljointly. You repeatedly refused to
address my concern and instead kept proposing the same "document," which was the nonnarrative "Scheduling Order." Thus, I was quite surprised to learn that, on April 6, 2005, you not
only abandoned the effort to negotiate and jointly make a submission to the Court, but you also
submitted the very "Report Following Rule 26 Conference" that you previously refused even to
acknowledge. In other words, under the aegis of Rule 26(f), you submitted to the Court a
document that you never once proposed to me inform, let alone content. You gave me no
opportunity to provide Defendant's position on the subjects of the Report, to be included therein.
The misleading and erroneous content of your submission explains your tactics. First, in
your Report, you imply that your submission of a unilateral report is justified by my alleged
refusal to cooperate, but the truth is that I never even had the chance to comment on your Report.
Second, you state in your Report that I withdrew agreement that "all" motions be filed by the end
PATRICK jyO'CONN
PJOC:jk
cc:
EXHIBIT B
Casedeclines
2:05-cv-01099-ER
Document 14-2 Filed 04/22/05 Page 2 of 2Page 1 of 1
Court papers: Cosby
deposition
weisenn@phillynews.com
Bill Cosby is refusing to be deposed in the sex-assault civil case that has been filed against him by a former Temple
University employee, papers filed in federal court here yesterday say.
"Defendant has now taken the position that he will not be deposed - despite earlier discussions between the parties
concerning back-to-back depositions of defendant and plaintiff," a footnote in the paperwork said.
Andrew Schau, one of Cosby's attorneys, would not comment on whether his client is refusing to be deposed.
"We will respond to that when we file our legal papers," Schau said yesterday.
Cosby accuser Andrea Constand's attorneys made the statement in a memorandum denying that they are refusing to
turn over the names of nine women who say Cosby drugged and/or sexually assaulted them, too.
Dolores Troiani and Bebe Kivitz, Constand's lawyers, said in the memo that they will give Cosby the women's names,
addresses and phone numbers once the judge rules on their motion for a protective order to keep the identities secret
from the media.
Troiani and Kivitz provided a list of expected witnesses to the attorneys but identified nine of the women only as "Jane
Does" and their contact as Joyce Dale, an attorney in Media. The list does contain the cities where the women live, which
include Las Vegas; Toledo, Ohio, and Corralitos, Calif.
"The anticipated testimony of the Jane Doe witnesses relates to the obviously sensitive subject matter of sexual assaults
and/or druggings," Troi-ani and Kivitz wrote.
"Of equal concern is that disclosure of the witness' identities may place them at risk of further physical and psychological
harm from media exposure or from overly zealous fans and supporters of the celebrity defendant."
Constand, 31, has accused Cosby of drugging and sexually assaulting her at his Elkins Park, Montgomery County,
mansion in January 2004.
She reported it to police a year later. In February, Montgomery County District Attorney Bruce L. Castor Jr. declined to
file criminal charges against the entertainer. Constand filed her civil suit last month.
''<* 2005 Philadelphia Daily News and wire service sources. All Rights Reserved.
blip: / Av w w. p h i 11y. c o m
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CIVIL ACTION
05-1099
ORDER
AND NOW, this 6th day of July, 2005, it is hereby
ORDERED that:
1.
2.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.
in this case.
3
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: CIVIL ACTION
:
: NO. 05-CV-1099
:
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ORDER
BY THE COURT:
_______________________
J.
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
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:
PLAINTIFFS RESPONSE TO
DEFENDANTS MOTION FOR PROTECTIVE ORDER
Plaintiff denies that defendant is entitled to a protective order, and in support of her
Response to Defendants Motion, plaintiff relies on the accompanying Memorandum of Law,
which is incorporated by reference as if fully set forth herein.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
Unfortunately for defendants victims, he is Bill Cosby, not Dr. Huxtable. Defendant urges this
court to silence his accusers, while he continues to make the public believe that he is the
characters he portrays. He continues to lecture the public at town meetings about morality.
See, Exhibit A. Further, he promotes himself on a web site, sponsored by the William Morris
Agency, the very agency he used in an attempt to dissuade plaintiff from revealing the
allegations of this complaint. See, Exhibit B.
Defendants position is particularly disingenuous in that no one has more aggressively
courted media coverage in this matter than defendant himself. When plaintiffs allegations
surfaced in the media -- through no actions on plaintiffs part -- defendant, his attorneys, and
other representatives immediately began making statements in their selected publications.
For example, at the inception of the criminal investigation, criminal defense counsel is
quoted as saying, Its pointedly bizarre because its been a year since it allegedly happened, and
she is coming forward; counsels phrases concerning plaintiffs allegations, pointedly bizarre
and utterly preposterous, were repeated nationwide in innumerable stories about the criminal
investigation then in progress. See, Exhibit C. Defendants representatives spoke to Celebrity
Justice, see, Exhibit D, and on February 7, 2005, Celebrity Justice reported:
Cosby was under the impression the mother wanted money, so to keep the
encounter quiet, he called the mother back. Were told she asked Cosby to help
pay for her daughters education and to generally help her out financially, and this
conversation occurred before the accuser ever contacted police.
See, Exhibit E. Indeed, this allegation forms the basis of plaintiffs defamation claim, because
defendant and his representatives knew this was not true at the time they uttered the statement.
Defendant himself offered the National Enquirer an exclusive story: Bill Cosby Ends
His Silence: My Story!, setting forth nationally defendants revised version of what had
occurred: Looking back on it, I realize that words and actions can be misinterpreted by another
person, and unless youre a supreme being, you cant predict what another individual will do.
He stated further about learning of the criminal investigation: My heart sank. I was at home,
and these claims hurt me. Finally, in order to reinforce defendants spin on the claims,
defendant said: celebrities are often put in positions where their roles as mentors can lead to
trouble. Sometimes you try to help people and it backfires on you and then they try to take
advantage of youPeople can soil you by taking advantage. See, Exhibit F. This represents
a concerted effort by defendant to solicit national coverage, and to reinforce the publics
perception of the untrue allegations in the February 7, 2005, Celebrity Justice publication.
Defendants strategy is clear. Defendant aggressively solicited media coverage with the
publications of his choice -- to set forth his version and attempt to convince the public that he
might be a victim here -- a position vehemently disputed by plaintiff. Ironically, however, as
soon as the media coverage became more neutral, covering topics such as plaintiff, her
background, and her allegations, and other complainants came forward to support her, defendant
has moved to suppress any coverage. Although defendant seeks to portray the coverage of this
matter as pervasive and a threat to his ability to obtain a fair and impartial jury, it appears the
Fox Network disagrees. On April 29, 2005, the panel on the program, Fox News Watch
discussed why the media was not covering this case. See, Exhibit G.
In considering this motion, as well as Plaintiffs motion for protective order, this Court
must balance the strong common law presumption of access.against the factors militating
against access. Bank of America National Trust v. Hotel Rittenhouse, 800 F.2d 339, 344 (3rd
Cir. 1986). In this case, due to defendants unique position, he is attempting to control the media
so that the public does not get any glimpse into what he has done, as opposed to the carefully
cultivated image, with which his handlers have permeated the airwaves for over thirty-five (35)
years. The reasons defendant offers for this motion is that a protective order will prevent him
from being embarrassed, and, further that without it the jury pool will be tainted. In fact, the
prospective jury pool, if tainted, has been rendered so by defendants relentless publicity team.
In his motion, defendant has chosen to highlight only those media items which he views
as unflattering to him. This presents a skewed and one-sided portrait of the coverage. Defendant
makes much of the fact that plaintiffs counsel spoke out in defense of their client. Counsel has
an ethical obligation to protect their client, particularly following the defendants use of the
District Attorneys decision to not prosecute him. Defendant seized upon this decision, and
disseminated it as if it proved that plaintiffs allegations were baseless. Nationwide, his attorney
was quoted as saying, Mr. Cosby is gratified that [the District Attorney], after a thorough
investigation conducted with the full cooperation of Mr. Cosby, has determined not to file
charges. See, e.g., Exhibit H. Defendants protestations bespeak a double standard. When
plaintiffs counsel pointed out that the criminal investigation was irrelevant to the civil suit, and
not as thorough as defendant wished the public to believe, plaintiffs attorneys are accused of
cultivating and aggressively courting the press and adding fuel to the fire. Yet, defendant
has used the National Enquirer exclusive interview to set the record straight.
Defendant repeatedly points to the unquestionably inadmissible fact that the District
Attorneys failure to charge him is proof that plaintiffs allegations are false. In fact, defendant
has cited in his Initial Disclosures the Montgomery County District Attorneys Office February
17, 2005, Press Release as one of the documents that he may use to support his defenses. The
press release is also quoted in defendants memorandum of law. It is well settled, however, and
defendant undoubtedly knows that the Third Circuit held that evidence of non-prosecution is
inadmissible in a civil action to disprove the allegations which give rise to criminal charges. As
the Court stated:
Further, prosecutorial discretion may take into account many other factors not
relevant in a civil suit. At best, the evidence of non-prosecution is evidence of an
opinion by the prosecutor. The opinion of a layperson, as the prosecutor was in
this case, however, is inadmissible if it based on knowledge outside the
individual's personal experience. (citations omitted)
American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 325 (3rd. Cir.
1985).
Defendants request for a protection order and plaintiffs request for limited
confidentiality differ in that defendant simply wants to avoid embarrassment, while plaintiff
seeks to protect a clearly established public policy. Women who find themselves in plaintiffs
position must be encouraged to come forward and report their complaints to the appropriate
authorities. There must be public confidence that they will find justice, if not in the criminal
courts, then in the civil ones. To silence women and their attorneys who dare to challenge the
powerful will have a chilling effect on the First Amendment rights of all victims. The tactic of
smearing the victim is so well-documented that the federal government and most states have
passed laws in an attempt to prevent the use of this weapon.
At common law, evidence of a female rape complainant's general reputation for
morality and chastity was deemed admissible on the issue of consent. The result
of this common law rule was notorious abuse of victim witnesses by aggressive
defense counsel who essentially put the victim on trial. In response to such
unjustifiable abuses, the federal government and the states enacted statutes known
as Rape Shield laws. Rape Shield laws were intended to end the abuses fostered
by the common law rule by limiting the harassing and embarrassing inquires of
defense counsel into irrelevant prior sexual conduct of sexual assault
complainants. (citations omitted)
Commonwealth of Pennsylvania v. Nieves, 399 Pa. Super. 327, 582 341 (Pa. Super. 1990).
Plaintiff and those women brave enough to come forward to tell of their own experiences
with defendant are already intimidated in the face of defendants unlimited resources. By way of
example, Tamara Lucier Green, Esquire, an attorney, approached the media on her own initiative
to report a similar sexual assault incident with defendant, after she heard defendants counsels
characterizations concerning plaintiffs allegations. Ms. Green, who does not know plaintiff,
reported that defendant gave her what he represented to be Contac medication for a cold.
After ingesting it, she alleged that it was not Contac, but instead was a drug or narcotic that
severely affected her motor control. Defendant then attempted to sexually assault Ms. Green.
She resisted and, after a struggle, defendant left her apartment, leaving behind two $100 bills on
her table. The defense immediately went into high gear, attacking Ms. Green and delving into
her background for anything negative they could find, regardless of its relevance to her
allegations. Defendants attorney e-mailed a Philadelphia Daily News Reporter, and produced a
New York Post story that discussed a California Bar Association complaint filed against Ms.
Green. A defense representative also provided the Philadelphia Daily News and other media,
including the Greta Van Susteren Show, with names and phone numbers of California lawyers
they claimed had damaging information about Ms. Green. Defendants attorneys also
commented regarding Ms. Greens background to the Greta Van Susteren Show and provided the
same information to her program, which information was discussed on the show and dismissed
by its panel of attorneys. See, Exhibit I. Defendant endorsed this tactic. He is quoted in his
Enquirer exclusive: Its bothersome that when my side revealed her background we were
blamed for throwing dirt...I guess that a celebrity trying to protect himself is not supposed to use
every ounce of protection. The reporter wrote, Cosby added that he doesnt regret having his
lawyers reveal information about Green, saying if he didnt the media onslaught could have
been even worse. See, Exhibit F.
defendants unilateral version of his character and his actions here, denies plaintiff a fair and
impartial jury.
Defendant argues that plaintiff seeks to prohibit the identities of the other complainants
from becoming public and, therefore, both sides should be given the benefit of confidentiality.
Plaintiff does not seek to prevent defendant and the public from knowing their allegations, or
from allowing defendant to challenge their claims. It is only their names that plaintiff seeks to
protect. Indeed, plaintiff seeks to spare the Jane Does from the same media treatment she
received, i.e. repeated phone calls made by reporters at her home; reporters surrounding her
house; alleged journalists attempting to gain access to her home by delivering flowers; her
photograph and name plastered on television shows and in newspapers without her consent.
The result of the balancing test is far different when applied to plaintiffs motion for
protective order. Most media outlets have already acknowledged that the public interest in
encouraging victims to come forward far outweighs the publics right to know the victims
identities. Universally, female victims who speak out against their sexual offenders are vilified.
Any past peccadillo or innuendo, true or false, admissible or not, is circulated to the mass media.
The result of this character assassination behavior is that more often then not, women in this
position remain silent for years. They suffer the shame, self doubt, and humiliation without
consolation because they fear retaliation. When they do come forward after years of agonizing,
the abusers express bewilderment as to why the victim did not subject herself to this revictimization sooner. It becomes clear that intimidation heaped upon one victim of a powerful
man causes other similarly situated victims to delay reporting, or to never report.
The complainants in this case voice a common theme--they were victimized after being
conned by the Cosby image. There is no doubt that the publicity in this case has benefited society
in general. It has prompted women, some of whom are now named as Jane Does, to contact
plaintiffs counsel1 . Defendant seeks to cut off plaintiffs public access in order to stem the flow
of this type of information, and to keep such claims a secret. To subject the Jane Does to
public scrutiny will silence them and others like them forever. None of these women are here by
choice. Defendant chose to conduct himself in this manner. Accordingly, when balancing the
motions, the scales tip in favor of plaintiff and the public interest in their right to know.
ARGUMENT
Defendants Motion for a Protective Order should be denied because the Publics
Right to Access Pretrial Discovery outweighs this Defendants Personal Interest in
Avoiding Embarrassment.
From defendants point of view, the starting point of his Motion for a Protective Order is
the embarrassment he may suffer upon public revelation of the alleged acts. He disregards the
fundamental presumption of our judicial system, which is public access, not confidentiality.
That is where the analysis must start. The Courts of this Circuit have acknowledged the
pervasive common law right to inspect and copy public records and documents, including
judicial records and documents. Batsis v. Temple University, 1994 U.S. Dist Lexis 10106, 2
(E.D. Pa. 1991) (citing United States v. Crideni, 648 F.2d 814, 819 (3d Cir. 1981). The
presumption of access, however, may be rebutted by balancing it against factors that militate
against access. Id. at 3.
Of course, plaintiff anticipates that defendant will argue that all of the Jane Doe witnesses should have contacted
the police or district attorney. This argument, however, overlooks the fact that both defendant and plaintiff have
received the documents generated during the criminal investigation, and the majority of Jane Doe witnesses whose
names were provided to the police, were never interviewed by them.
Defendant, however, noticeably ignores the balancing process. He relies upon Cipollone
v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986) to support his proposition that
embarrassment constitutes good cause for entering a protective order where such embarrassment
is particularly serious. Defendant never explains why his embarrassment should be deemed so
great that the publics right of access should be quashed. The balancing analysis is discussed by
the Court in Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994). In Pansy, a former
police chief commenced a civil rights suit against the borough of Stroudsburg and others. After
the parties reached a confidential settlement agreement, newspapers moved to intervene and
modify the confidentiality order. The lower court denied the newspapers motions, which the
Court of Appeals reversed. Id. at 775. In determining the newspapers motion to modify the
settlement agreement, the Pansy court looked to the law related to protection of pretrial
discovery and held that protective orders
are intended to offer litigants a measure of privacy, while
balancing against this privacy interest the publics right to obtain
information concerning judicial proceedings Protective orders
and orders of confidentiality are functionally similar, and require
similar balancing between public and private concerns.
Id. at 786. The balancing process is critical to the determination and should be applied by
courts when considering whether to grant confidentiality orders at any stage of litigation,
including settlement. Id. at 787. The degree of protection placed upon disclosure of discovery
depends on a judicial balancing of the harm to the party seeking protection (or third persons)
and the importance of disclosure to the public. Id. The Pansy court further noted that privacy
interests may also be protected, however, such interests are diminished when the party seeking
protection is a public person subject to legitimate public scrutiny. Id. The court held:
A factor which a court should consider in conducting the good
cause balancing test is whether a party benefiting from the order of
10
11
Id. See also, Kroll Associates v. City and County of Honolulu, 833 F. Supp. 802, 806 (D. Hi.
1993). Certainly, defendant falls within the public figure role carved out by the court. His
own brief reinforces that conclusion:
Unfortunately, because the Defendant is a famous comic
personality and actor, and because Plaintiffs attorneys have been
aggressively courting media coverage of the Plaintiffs allegations
in the national and local press, plaintiffs allegations, and the
allegations of anonymous Jane Doe witnesses, have attracted a
frenzy of media attention. (emphasis added)
Defendants Brief at 2. Defendant is such a well-known public figure that the press, the media,
and the public are intensely interested in his activities.2 Defendants description about himself,
however, does not go far enough. Defendant is not just a comic personality and actor but he is
also a community leader, an individual who serves on the board of major universities, takes
stands on public matters, and is interviewed by media hosts concerning his opinion. Defendant
is without question a public figure who generates intense public interest. That status weighs in
favor of granting public access to discovery in this case. See also, Willie Nelson Music Co. v.
Commissioner of Internal Revenue, 85 T.C. 914, 916 (1985) (motion for protective order denied
despite assertions by singer/celebrity that criminal liability may subject him to embarrassment
and emotional distress); Condit v. Dunne, 225 F.R.D. 113 (S.D. N.Y. 2004) (court refused to
impose protective order on discovery where former Congressman sued television commentator
about statements made about possible involvement in a womans disappearance); Flaherty v.
Seroussi, 209 F.R.D. 295, 300 (legitimate public interest to have access to court proceedings
outweighed embarrassment that might be caused by release of video-taped deposition).
That the plaintiffs lawyers have courted the media is merely defendants spin on plaintiffs efforts legitimately
to respond to media inquires about events already of interest to it, or commented upon by defendant or his
representatives.
12
In weighing the personal interests of defendant against the interest of public access, it
must be kept in mind that if the Court were to seal discovery in this case, defendants public
relations machine would continue to paint him as a picture of virtue. Defendant will continue to
talk, lecture, and promote his own defense merely by promoting the image he has fostered,
while the plaintiffs lips must remain sealed about the evidence she has learned. The roots of this
paradox lie in defendants public figure status; he always has an audience. It is also the most
compelling basis for ignoring his allegations of embarrassment and denying his Motion for a
Protective Order. Any embarrassment the evidence may cause defendant will quickly dissipate
through the force of his own public relations, should the allegations not be proven. On the other
hand, such embarrassment shall be of little consequence if plaintiff prevails here. Balancing
these concerns against the right of access to pretrial discovery, Plaintiff submits should result in a
denial of Defendants Motion for a Protective Order.
CONCLUSION
For all of the foregoing reasons, Plaintiff Andrea Constand respectfully requests this
Court to deny Defendants Motion for a Protective Order.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
13
CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that on the date indicated below, a true and correct copy
of Plaintiffs Memorandum of Law in Opposition to Defendants Motion for Protective Order,
was served via regular First Class mail, postage prepaid, on the following:
Patrick J. OConnor, Esquire
Cozen OConnor
1900 Market Street
Philadelphia, PA 19103
Andrew D. Schau, Esquire
Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036
TROIANI/KIVITZ, L.L.P.
14
:
: CIVIL ACTION
:
: NO. 06-CV-483
:
:
:
:
:
TROIANI/KIVITZ, LLP
BY: DOLORES M. TROIANI
Attorney I.D. 21283
mailto:dmt@troianikivitz.com
BEBE H. KIVITZ
Attorney I.D. 30253
mailto:bhk@troianikivitz.com
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 06-CV-483
:
:
:
:
:
ORDER
day of
National Enquirers Motions to Dismiss and to Strike and any response thereto, the Motions are
DENIED.
BY THE COURT:
Robreno, J.
National Enquirer in late February, 2005 based on its exclusive interview of Mr. Cosby. Exhibit
B, attached. To obtain the Cosby interview, the Enquirer agreed to refrain from publishing an
article reporting on a similar incident of sexual assault in which another woman (Beth Ferrier)
asserted that she, too, had been drugged and sexually assaulted by Cosby. Although the Enquirer
was aware that Plaintiff had made no effort to extort, exploit, or obtain money from Mr. Cosby,
the published article compared Plaintiffs claims to past extortion plots against Mr. Cosby and
further implied that Plaintiff had engaged in similar exploitive conduct to obtain hush money.
The National Enquirer (Enquirer) has moved to dismiss Plaintiffs Complaint on the
grounds of improper venue under Fed. R. Civ. P. 12(b)(3), and failure to state a claim under Fed.
R. Civ. P. 12 (b)(6). The Enquirer has further moved to strike Plaintiffs request for punitive
damages under Fed. R. Civ. 12(f). None of the Enquirers claims have merit.
The events reported by the Enquirer wholly derived from a sexual assault
that occurred here. The underlying sexual assault occurred in Cheltenham
Township, Montgomery County, Pennsylvania that is within this federal
judicial district.
D. The allegations of Plaintiffs Complaint are more than sufficient to support her claims
of defamation and false light invasion of privacy and to further support that Defendant published
its article deliberately, knowingly, and in reckless disregard for the known truth. See Plaintiffs
Complaint, attached as Exhibit A.
When it published its defamatory article, Defendant also knew that it had
submitted to Cosby an unpublished article concerning the Beth Ferrier
assault and that it had negotiated with Cosby to withdraw the Ferrier
article from publication in exchange for Cosbys exclusive interview.
Complaint 23-24, 26.
venue under 28 U.S. C. 1391(a) does not require the reviewing court to find the single best
forum. Id.; Bowdoin v. Oriel, 1999 U.S. Dist. Lexis 6832 (E.D. Pa. 1999). Rather, it is
required only that the selected venue be one in which a substantial part of the events occurred.
This substantiality test is designed to assure that a defendant is not haled into a remote district
having no real relationship to the dispute. Cottman Transmission Systems v. Martino, 36 F.3d
291, 294 (3rd Cir. 1994); Dollar Discount Stores, 2001 U.S. Dist. Lexis 10877, at *5. See, Bartle
v. Giant Eagle, Inc. 1991 U.S. Dist. Lexis 10954 (E.D. Pa. 1991) (when venue is proper . . . an
action may not be dismissed even if there are other proper forums in which the action could be
brought. ( footnote omitted)).
Plaintiffs Complaint more than meets the substantiality test for venue in this judicial
district: (1) the events reported by the Enquirer wholly derive and are premised on a sexual
assault that occurred here; (2) these events spawned a criminal investigation in which police in
this judicial district took a statements from plaintiff, residents of this area who knew or had
worked with plaintiff at Temple University, Mr. Cosby and others; (3) the results of this
investigation were reviewed and reported by a county prosecutor within this judicial district, who
was referred to and directly quoted by the Enquirer in its tabloid article, Exhibit B, attached; (4)
this is the community in which Plaintiff lived and worked at the time of the underlying assault ;
(5) this is the community in which Mr. Cosby resided when the incident occurred and where he
owns a home; (6) the Enquirer article was published and distributed nationally including in this
judicial district and (7) this is the community in which Plaintiff had friends and business
associates before whom she was defamed by the Enquirers published article. Exhibit A,
Complaint 10-15, 20, 41, 47-48.
By way of contrast, Defendant asserts that venue lies only in Texas (where Mr. Cosby
was interviewed) or New York (the Enquirers claimed location). Defendant has not identified
a single event that occurred in New York. Rather, Defendant asserts only that the defamatory
article, which quotes directly from a Pennsylvania prosecuting official, was written by an
Motion to Dismiss of
Defendant does not seek a transfer of venue to Texas, or any other jurisdiction, nor does he
claim that another venue would be more convenient. See 28 U.S.C 1404(a). Indeed, given this
Courts familiarity with the issues raised by this case, and given that the related case of Constand
v. Cosby is already pending here, a transfer of venue would only undermine judicial efficiency
and economy.
A. Plaintiffs claims are not precluded by a stipulation offered months earlier in another
case and context and where the stipulation is not in any event a part of the record that may
be considered on a Motion to Dismiss.
Defendant asserts that Plaintiffs Complaint fails to state a cause of action for defamation
or false light invasion of privacy. In support of this assertion, Defendant argues that the
statements published in the Enquirer article are incapable of defamatory meaning, and that the
elements of the tort of false light invasion of privacy are not adequately set forth in the
Complaint. Defendant also argues at great length that the Complaint must be dismissed because
its allegations are fatally inconsistent with a stipulation entered by Plaintiffs counsel four
months earlier, during the second day of Mr. Cosbys deposition in Constand v. Cosby, CV No.
6-483.2 See Defendants Motion to Dismiss at p. 4, paragraph 4 and p. 5, paragraph 2.
According to Defendant this stipulation, which was entered after an off the record conference
and has been taken entirely out of context, nonetheless precludes Plaintiff from arguing,
asserting, claiming or proving that the Enquirer knew when it published its article that that
Plaintiffs objective was to obtain an apology from Cosby, not to extort him, Complaint 34,
or that the Enquirer knew from conversation with Cosby that Plaintiff and her mother in
January, 2005, had asked only for an apology and not for money. Complaint, 25. For the
reasons that follow, the out of context stipulation on which Defendant relies, if it may even be
Cosbys deposition was taken in two segments. Part I of the deposition occurred on
September 28 and September 29, 2005. The deposition was then aborted because Cosby,
claiming attorney client privilege, refused to answer numerous questions, including questions
concerning the Enquirer interview. These claims of privilege were rejected by the Court on
Plaintiffs Motion to Compel and the Cosby deposition resumed on March 28 and March 29,
2006. At the beginning of the Cosby Deposition, Part II, Mr. Cosbys lawyer provided Plaintiff
with the negotiated agreement, conditions, and protocol under which Mr. Cosby gave the
Enquirer interview. Discovery in accordance with the federal rules will further establish what
witnesses were present, what recording devices were used, and what pre-publication drafts were
submitted for third party review. See attached sealed Exhibit C, Deposition Part II 3/28/06 p.4-5,
p.37, lines 13-14.
Mr.
considered here, does not have the preclusive or binding import argued by Defendant. See
attached sealed Exhibit D, Cosby Deposition 9/29/05 p. 225, lines 2-10, 229, lines 12-24, 231
lines 10-18, p. 232, lines 1-24; see generally p. 225-233.
The standard of review on a Motion to Dismiss mandates that the Court accept as true the
factual allegations of the Plaintiffs Complaint. The allegations must also be viewed in the light
most favorable to the non-moving party. Christopher v. Harbury, 536 U.S. 403 (2002); Brody v.
Hankin, 145 Fed. Appx. 768 (3rd Cir. 2005); Herick v. Rodale, 2004 U.S. Dist. Lexis 9912,
(E.D. Pa. 2004). A Motion to Dismiss under Rule 12(b)(6) may not be granted unless it clearly
appears that Plaintiff has alleged no set of facts which, if proved, would entitle her to relief.
Hishon v. King & Spaulding, 467 U.S. 69 (1984); Morse v. Lower Merion School District, 132
F.3d 902 (3rd Cir. 1997); Markowitz v. Northeast Land Co. 906 F.2d 100 (3rd Cir. 1990).
A Motion to Dismiss allows for only limited record review. The documents that may be
considered consists of the factual allegations of the Complaint, exhibits or documents appended
or referred to in the Complaint, matters of public record, and authentic documents attached as
exhibits to the Defendants Motion to Dismiss provided they were relied upon by Plaintiff in
formulating her claims. Pension Benefit Guaranty Corp. v. White Consolidated Industries, Inc. ,
998 F.2d 1192 (3rd Cir. 1993); Downing Properties Associates v. McDonalds Corp., 1998 U.S.
Dist. Lexis 8067 (E.D. Pa. 1998). The Court, however, may not examine a transcript of a prior
proceeding for the purpose of adducing facts or making a determination as to the truth of those
facts. Southern Cross Overseas Agencies v. Wah Kwong Shipping Group, Ltd. 181 F.3d 410 (3rd
Cir. 1999) (court cannot look to another courts opinion or to the transcript of a prior proceeding
to find facts on a motion to dismiss.)
Defendant has appended to its Motion to Dismiss a discovery motion from the Cosby
case.3 This document, from another, albeit related, lawsuit is not properly considered here.
Indeed, the sealed document appended by the Defendant Enquirer as Exhibit A to its Motion to
Dismiss is not even the document it refers to, quotes, and relies upon in its Motion and
Memorandum of Law. See Enquirers Motion to Dismiss at p. 4-5.
neither document was relied upon by Plaintiff in formulating her Complaint, neither can be
considered on a Rule 12(b)(6) Motion to Dismiss. In Re Rockefeller Center Properties, Inc., 184
F.3d 280 (3rd Cir. 1999).5
Although there is no sealing order in this case, the Enquirer has unilaterally determined to file
both its pre-trial motion to dismiss as well as the accompanying exhibits under seal. Defendants
gratuitous extension of the sealing order to the Motion to Dismiss is neither justified nor
warranted. Even if the Exhibits themselves were properly filed under seal, the Enquirers
Motion was not. The Enquirer significantly does not claim that sealing is necessary to protect
the identity of a confidential source. Moreover, the filing of a Motion to Dismiss under seal by a
nationally distributed newspaper in a defamation action is wholly inconsistent with the First
Amendment and with the responsibilities and duties of a free press. Leucadia v. Applied
Extrusion Technologies, Inc., 998 F.2d 157, 164 (3rd Cir. 1993) (there is a presumptive right of
public access to pre-trial motions of a non-discovery nature; that presumption applies to
preliminary and dispositive motions and includes the materials filed in connection with those
motions.)
4
The Document cited and quoted by the Defendant Enquirer in its Motion to Dismiss is Pls
Reply Memorandum of Law in Response to Defendant Cosbys Opposition to Plaintiffs Motion
to Compel at p. 6. The document actually attached to this Motion, filed with the Court, and
served on counsel is a wholly separate document entitled Plaintiffs Reply to the National
Enquirers Memorandum of Law in Opposition to Plaintiffs Motion to Compel. These are two
different documents. Indeed, the Exhibit actually attached by Defendant has no page 6.
5
Defendant has not specifically asked to have its Motion to Dismiss treated as a summary
judgment motion pursuant to Fed. R. Civ. P. 56. While the Court may determine to consider
Defendants additional documents, representations, and evidentiary assertions, it may do so only
if it converts Defendants Rule 12(b) motion into a Rule 56 summary judgment motion. Under
well-settled Third Circuit practice, a conversion of this nature requires express notice to Plaintiff.
In Re Rockefeller Center Properties, Inc., 184 F.3d at 288-290. Such notice may not be inferred
nor is the right to express notice of conversion waived where opposing counsel appends
additional materials in its response to the defendants Rule 12(b) motion. Id. at 288-290.
Nonetheless, even if the Court were to consider Defendants additional materials, there
would be no grounds for dismissal. Defendant posits that a stipulation made by Plaintiffs
Counsel during the first part of Mr. Cosbys deposition in September, 2005, based upon a
representation of an attending counsel who was not counsel of record and who is now a fact
witness, constitutes a binding evidentiary assertion that precludes Plaintiff from proving the
itemized allegations of her complaint. The stipulation, neither on its not face nor read in context,
precludes Plaintiff from proving at trial that the Enquirer well knew when it published its article
that Plaintiff had not extorted Cosby; that it knew she had not sought hush money from him;
and that it knew she had not exploited Cosby or taken advantage of his celebrity status. Further at
the time of publishing the article the Enquirer knew of additional evidence, which would
corroborate Plaintiffs claims, and it deliberately withheld that evidence from publication.
Complaint, 21. Not only has the stipulation been taken wholly out of context, but also it was
entered more than four months before this Complaint was filed and without the benefit of
additional discovery. Most significantly, however, the stipulation does not, even on its face,
negate other sworn testimony showing that the Enquirer was told in advance of publication that
Plaintiff and her mother had accepted as sufficient the apology that was volunteered to them, and
that they had not made monetary or extortionist demands. Exhibit D (sealed) at N.T. p. 225, lines
2-10, p. 229 lines 18-24.
B. Plaintiff has properly and fully set forth in the well pleaded allegations of her Complaint
the causes of action for Defamation and False Light Invasion of Privacy.
The Enquirer claims that Plaintiff has failed to state a cause of action for defamation
because the article it published was not capable of defamatory meaning and because the
Enquirers published statements could not be said to apply to Plaintiff. See Exhibit A. Defendant
argues that the comments it reported as those of Mr. Cosby were merely accurate statements of
Cosbys subjective state of mind and that no reference to Plaintiff was made or implied. The
Enquirer, however, has misrepresented the allegations of Plaintiffs Complaint, the contents of
the article it published, and the contextual meaning and artful juxtaposition of its harmful,
damaging and defamatory statements. See Sprague v. American Bar Association, 2003 U.S.
Dist. Lexis 15518 (E.D. Pa. 2003) (defamatory statements must be read in context, including
whether the comments are deliberately cast in an ambiguous light in the hope of insinuating a
false import). Viewed as a whole, a published article may be so fraught with modifiers and
other clues that no reasonable reader could doubt the defamatory meaning and intent. Id. at
22, n. 13.
A tabloid newspaper such as the Enquirer cannot mask its defamatory import by parsing
and isolating its written statements so as to misrepresent the hurtful and false impression that the
statements, when read in the context in which they were published, were plainly calculated to
produce. Id. See also Weber v. Lancaster Newspapers, Inc. 878 A.2d 63 (Pa. Super. 2005) (an
article that places a sting or spin materially greater than a truthful retelling has defamatory
meaning and must go to the jury). Thus, for example, the Enquirer argues that there is no
suggestion in its article that Plaintiff intended to extort Cosby, or that her objective was
extortion. In support of its assertion, the Enquirer argues that exploit is not extort and that
the reference to Mr. Cosbys so-called subjective state of mind not to give in to people who
tried to exploit him did not suggest that Plaintiff had an extortionist motive.
See Enquirer
Defendants argument devolves into a dictionary assignment. While the contextual dictionary
definitions it presents are admittedly different, neither extortion nor exploitation are
reasonably calculated to create a favorable impression. See Enquirers Motion to Dismiss at 11.
Defendant conveniently ignores the context in which the extort-exploit references were
made: First, the Enquirer article reports Cosbys furious reaction to the prospect of a civil suit by
the young Canadian woman. Then, in the very same sentence, the article reports Cosbys
vow to stand his ground against anyone who would exploit him. The article goes on to give a
detailed favorable description of Mr. Cosby as a real-life father figure. The article proceeds
to refer to Plaintiffs anticipated lawsuit and, in the very next sentence, reports that Cosby has
previously been the victim of an extortion plot. The next paragraph repeats that Cosby will not
give in to people who try to exploit him because of his celebrity status. The next paragraph
refers to a published report of a phone call from the young womans mother and Cosbys
impression that the woman was after hush money. The next two paragraphs give detailed
descriptions of Plaintiffs age, the fact that she is a former pro basketball player, and that she was
employed at Temple University when she met Cosby. Immediately to the right of these
paragraphs is a picture of Cosby with the bold letter quote Sometimes you try to help people
and it backfires on you.
Plainly, a reasonable person in the intended audience for this publication would conclude
that Plaintiff had taken advantage of, and attempted to extort hush money from Cosby. The
defamatory meaning is clear and unequivocal. Accordingly, the defamation count must go to the
jury. Indeed, the Enquirers accusation of extortion may even be found to constitute defamation
per se. Frederick v. Reed Smith Shaw & McClay, 1994 U.S. Dist. Lexis 1809, *37 (E.D. Pa.
1994) (a statement that imputes that Plaintiff has committed a criminal offense constitutes
defamation per se). See, Dougherty v. The Boyertown Times, 547 A.2d 778, 783 (Pa. Super
1988) (if there is a defamatory interpretation of the statement, the case must go to the jury even if
there is a plausible innocent interpretation). .
Nor is there any merit to Defendants claim that the article cannot be said to apply to
Plaintiff. While it is true that the article does not identity her by name, the exquisite factual
detail concerning her age, location, employment at Temple University, career as a basketball
player, how and where she met Cosby, and the criminal complaint and investigation, including
quotes from the Pennsylvania prosecutor, leave no room to doubt that the person referred to is
Plaintiff.
The Enquirer also implies that it is not culpable for defamation because it only published
what Cosby represented as true. This is not a ground for dismissal. Under Pennsylvania law, a
newspaper cannot escape liability for defamation merely by asserting that it accurately reported
the defamatory statements of others. Norton v. Glenn, 580 Pa. 212 (2004)(Pennsylvania does not
recognize a neutral reporting privilege; newspaper cannot defend in a defamation case by
claiming that the defamatory statements were not its own.) Accord, Weber v. Lancaster
Newspapers, 878 A.2d 63.
In any event, the well pleaded facts of the Complaint, which here
must be accepted as true, are more than sufficient to support that the Enquirer knew that Plaintiff
had not asked for hush money; that she had not exploited Cosby; that she had not extorted
anything; and that she had never been part of an extortion plan. Despite this knowledge it
deliberately and recklessly defamed her.
The Enquirer claims as well that Plaintiff has failed to establish a cause of action for the
tort of false light invasion of privacy. Pennsylvania has adopted the Restatement definition of
false light invasion of privacy. Wecht v. PG Publishing Co., 725 A.2d 788 (Pa. Super. 1999).
The elements of the cause of action are (1) publicity that places the person before the public in a
false light; (2) the false light must be highly offensive to a reasonable person; and (3) knowledge
or reckless disregard as to the false light that in which the Plaintiff has been place. Id.
Like
defamation, the tort of false light invasion of privacy requires that the complained of statements
impute falsity and concern the Plaintiff. Frederick v. Reed Smith, 1994 U.S. Dist. Lexis 1809 *
42.
The publisher of the statements must also know that the statements are false or publish
them in reckless disregard of their falsity. These elements are made out on the face of the
Complaint.
The allegations of the Complaint that the Enquirer published these statements in reckless
disregard for the truth because it knew that Plaintiff had not extorted anything from defendant
are supported by deposition testimony. Exhibit D, N.T. 9/29/05 p. 229 lines 12-24, p.230 2-13.
Indeed, whether or not the Enquirer was also told that Plaintiff only wanted an apology is
irrelevant. Enquirer Motion to Dismiss at p. 14. What is crystal clear, and well pleaded, is that
whatever historical stipulations may have been entered during the partial Cosby deposition on
which Defendant relies, the Enquirer knew that any implication of extortion was fundamentally
false. It knew that because Cosby told the reporter, and because it had information, which it
withheld from publication, that at least one other woman, Beth Ferrier, had made credible claims
of sexual assault under similar circumstances. Complaint 21, 24. See Exhibit C, N.T. 3/28/06
pgs. 52-53. These circumstances and the allegations of the Complaint are sufficient to establish
that the Enquirer knew when it published the article that it was false, but that it chose to
recklessly disregard its falsity.
Defendants Motion to Strike request for Punitive Damages should be denied.
In its final claim, Defendant urges that Plaintiffs request for punitive damages in the ad
damnum clause of her Complaint must be stricken because the Plaintiff is precluded from
establishing actual malice.
7
The tort of false light invasion of privacy does not also require that the statements be
defamatory. Id.
presumed preclusion of the historical stipulation in which Plaintiffs counsel, on the second day
of the Cosby deposition and more than four months before the filing of this Complaint, stated
that based on the representations of counsel Mr. Cosby did not tell the Enqurier that the only
thing Plaintiff wanted was apology. Even assuming that this stipulation may be considered here,
the stipulation does not preclude or undermine the well pleaded facts of the Complaint or prevent
Plaintiff from establishing that the Enquirer articles numerous implications of extortion were
knowingly published by it in deliberate disregard of the truth.
Wherefore, for the foregoing reasons, Defendant Motion to Dismiss and Motion to Strike
should be denied.
Respectfully submitted,
TROIANI & KIVITZ LLP
CERTIFICATE OF SERVICE
By:_______________________
Dolores M. Troiani
Attorney I.D. No. 21283
Bebe H. Kivitz
Attorney I.D. No. 30253
Attorneys for Plaintiff
Date: May 5, 2006
TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
In this regard,
CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiffs Report
Following Rule 26 Conference of the Parties has been
electronically filed on the date indicated below and is
available for viewing and downloading from the ECF system.
hereby further certify that the foregoing pleading was sent via
facsimile and U.S. mail, postage prepaid, on the following:
TROIANI/KIVITZ, L.L.P.
:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
Motions
5.
All motions to amend the complaint, or to join or add
additional defendants shall be filed by June 30, 2005, which
assumes defendant shall cooperate in his Rule 26(a)(1)
disclosures as well as with requests by plaintiff to establish
the identities of any potential additional defendants. All
motions for summary judgment or partial summary judgment shall
be filed and served on or before March 31, 2006. Responses
shall be served by April 14, 2006. All motions in limine shall
be filed and served at least fourteen (14) days before the trial
date. All other motions shall be filed and served prior to the
close of the discovery period.
________________________
J.
:
:
:
:
:
:
:
:
:
Plaintiff,
v.
WILLIAM H. COSBY, JR.
Defendant.
CIVIL ACTION
05-1099
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.