Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 1 of 25 ANDREA CONSTAND, CIVIL ACTION No. 05-1098 Plaintiff, ve WILLIAM H. COSBY, JR., Defendant. : MEMORANDUM EDUARDO C. ROBRENO, J. duly 6, 2015 Before the Court is a motion to intervene and obtain access to documents filed under seal during the discovery phase in this matter.’ Defendant has objected to the unsealing of the documents at issue. For the reasons that follow, the Court will overrule Defendant’s objections and unseal the documents. Plaintiff Andrea Constand (“Plaintiff” or “Constand”) was at the time of the relevant events Director of Operations for the women’s basketball progyam at Temple University Defendant William #. Cosby, Jr. (“Defendant” or “Cosby”) is an internationally known entertainer. a In its order dated June 18, 2015, the Court construed a letter from the Associated Press (ECF No. 99) “as a motion to intervene and obtain access to documents filed under seal” (ECF No. 100).Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 2 of 25 On March 8, 2005, Plaintiff filed a civil complaint in this Court against Defendant, asserting claims of battery sexual assault, intentional and negligent infliction of emotional distress, defamation/defamation per se, and false light/invasion of privacy. During the course of discovery, Plaintiff took Defendant’s deposition. Excerpts of the deposition as well as several briefs prepared by counsel were filed with the Court in connection with sanctions- and discovery-related motions (“the Documents”). The Court entered e temporary seal removing the Documents from public view pending 2 full hearing on whether they should be permanently sealed Before the Court could rule on the motion to seal, the parties settled the case. Now, nearly ten years later, the Associated Press (“the AP”) has requested that the Documents be “unsealed” and made available to the public. Defendant opposes the request. Plaintiff has not asserted objections to the request. The issue before the Court is whether Defendant has shown good cause under Federal Rule of Civil Procedure 26(c) to keep the Documents under seal.Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 3 of 25 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY’ During the course of discovery, a number of issues arose concerning, inter alia, attorney conduct during depositions, insufficient responses to deposition questions and interrogatories by both Plaintiff and Defendant, and Plaintiff's attempt to compel the National Enquirer to produce certain documents. The parties also disputed whether filings related to said discovery issues--particularly filings incorporating deposition material--should or should not be sealed by the Court. On November 4, 2005, the Court entered an interim order setting forth how discovery would proceed and temporarily sealing the parties’ motions related to the disputes and responses thereto. Order dated Nov. 4, 2005, ECF No. 47. In that order, the Court directed that “lalny party opposing the lifting = Early on in the case, the parties requested broad protective orders. Plaintiff sought to avoid the public disclosure of the identities of a number of Jane Doc witnesses whose testimony may have been admissible pursuant to Federal Rule of Evidence 415. The Court concluded that Plaintiff had not shown “good cause” as required by Federal Rule of Civil Procedure 26(c) and denied the motion. Mem. and Order dated June 2, 2005, at 20, ECF No. 29, On the other hand, Defendant sought to preclude public access to all material obtained during discovery through what essentially would have been a gag order. The Court denied Defendant's motion, finding that he had failed to meet the “good cause” standard by not connecting his expected embarrassment to any specific injury. Id. at 21-22. The Court also determined that a far-reaching gag order was not warranted Id. at 15. Instead the Court adopted Rule 3.6 of the Pennsylvania Rules of Professional Conduct in a case management order to govern counsel’s interaction with the media. See Order dated June 2, 2005, ECF No. 30.Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 4 of 25 of the seal shall show cause why the seal should not be lifted,” id. at 2, and explained that the purpose of the interim sealing and protocol was “to develop a record upon which the Court may calibrate the scales upon which the proper balancing of private and public interests may take place,” id. at 3.n.1. It is pursuant to this order that the Documents were initially sealed On November 23, 2005, the AP filed a motion to intervene and lift the seal on the filings related to the parties’ discovery disputes.’ See Second Mot. Intervene and Unseal, ECF No. 51. The Court denied the AP’s motion without prejudice pending the outcome of discovery. see Mem. and Order dated Jan. 13, 2006, ECF No. 72. In its memorandum, the Court stated that “{iln the event that the Court grants a protective order supported by specific findings sealing any materials, any interested party will have an opportunity to request to intervene and challenge the ruling granting the protective order at that time.” Id. at 12. The Court further stated that “[a]fter the Court rules on the motions to compel and unless the protection of the seal is extended, the seal will lapse.” Id. at . The Third Circuit has “determined that media outlets have ‘standing to challenge protective orders and confidentiality orders’ as long as they can demonstrate that the order is an obstacle to their attempt to obtain access.” United States v. Wecht, 484 F.3d 194, 202-03 (3d Cir. 2007) (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir 1994)).Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 5 of 25 8 (emphasis added); see also id. at 12. However, the matter settled before the parties’ depositions were concluded, and thus the Court never revisited the sealing of the Documents. Nearly ten years later, on December 29, 2014, after more recent allegations of similar misconduct by Defendant gained public attention, the AP wrote the Clerk of Court requesting that the seal be lifted on the Documents’ pursuant to ‘The Documents at issue are the following: © Plaintiff’s Motion Concerning Conduct of Defendant’ Deposition and Motion for Sanctions (ECF No. 48); * Defendant’s Requests to Compel and Memorandum Concerning Overarching Tssues (ECF No. 49); © Plaintiff's Motion to Compel Discovery (ECF No. 50); * Defendant’s Motion to Strike Plaintiff’s Motion Concerning Conduct of Defendant’s Deposition and Motion for Sanctions (ECF No. 52); * Redacted Transcript of Proceedings Held on November 4, 2005 (ECF No. 54); * Pages 8 and 9 of the Redacted Transcript of Hearing on Telephone Conference Dated November 4, 2005 (ECF No. 55)3 * Plaintiff’s Reply to Defendant’s Requests to Compel and Memorandum Concerning Overarching Issues {ECF No. 57); * Defendant’s Responses to Plaintiff’s Motion to Compel and Memorandum Concerning Overarching Issues (ECF No. 58); * Plaintiff’s Response to Defendant’s Motion to Strike Plaintiff's Motion Concerning Conduct of Defendant’s Deposition and Motion for Sanctions {ECF No. 60);Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 6 of 25 Local Rule of Civil Procedure 5.1.5, which sets forth a procedure by which documents are unsealed two years after their sealing, subject to party objection and court ruling. See AP Mot. 1-2, ECF No. 99. Accordingly, the Clerk issued a notice to counsel of record in this case on January 12, 2015, informing counsel that the Documents would be unsealed unless objections were filed within sixty days from the date of the notice. Notice to Counsel, ECF No. 97. * Plaintiff’s Motion to Compel the National Enquirer’s Compliance with Subpoena for Document and Request for Expedited Resolution (ECF No. 61); * Defendant’s Memorandum of Law in Partial Opposition to the Lifting of the Seal Established by Case Management Order 2 {ECF No. 63); * Defendant’s Brief in Opposition to Plaintiff’s Motion to Compel the National Enquirer’s Compliance with Subpoena for Document and Request for Expedited Resolution (ECF No. 64) * The National Enquirer’s Memorandum of Law in Opposition to Plaintiff’s Motion to Compel (ECF No. 65)7 * Plaintiff’s Motion for Leave to File Reply Memorandum of Law in Response to Defendant's Memorandum in Opposition to Plaintiff's Motion to Compel the National Enquirer’s Compliance with Subpoena for Documents (ECF No. 66) © Plaintiff’s Memorandum of Law in Support of the Lifting of the Seal Established by Case Management Order 2 (ECF No. 67); and * Plaintiff’s Motion for Leave to File Reply Memorandum of Law in Response to National Enquirer’s Memorandum in Opposition to Plaintiff’s Motion to Compel Compliance with Subpoena for Documents (ECF No. 68)Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 7 of 25 On March 10, 2015, Defendant informed the Court that he objected to the Documents’ unsealing and requested briefing on the matter, Defendant’s Objection, ECF No. 98, and on June 17, 2015, the AP apprised the Court of its challenge to the sealing and echoed Defendant’s request for a briefing schedule, AP Mot. 1-2. ‘The Court scheduled a hearing for June 26, 2015, on the AP’s motion and Nefendant’s objections to lifting the interim seal impressed upon the Documents by the order of November 4, 2005. ECF No. 100. The Court further provided that interested parties seeking access to the Documents could file briefs in support of or in opposition to the lifting of the seal by June 24, 2015. Id. Both the AP and Defendant filed briefs, in support of and in opposition to lifting the seal, respectively (ECF Nos. 101, 102), and argued their positions at the hearing Neither Plaintiff nor any other interested party appeared at the hearing. This matter is now ripe for disposition IT. LEGAL STANDARDS A. Public Right of Access “It is well-settled that there exists, in both criminal and civil cases, a common law public right of access to judicial proceedings and records.” Goldstein v. Forbes (In re Cendant Corp.), 260 F.3d 183, 192 (3d Cir. 2001). The ThirdCase 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 8 of 25 Circuit has stated that “[t]he public's exercise of its common law access right in civil cases promotes public confidence in the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed by the court.” Littlejohn v BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988). However, “[t]he public's common law right to access judicial records ‘is not absolute.’” United States v. Wecht, 484 F.3d 194, 208 (3d Cir. 2007) (quoting Littlejohn, 851 F.2d at 678). Rather, when the right attaches, “there is a ‘strong presumption’ that the public may view the records.” Td. “In general, the common law right attaches to any document that is considered a ‘judicial record,’ which ‘depends on whether [the document has been filed with the court, or otherwise somehow incorporated or integrated into a district court’s adjudicatory proceedings.’” Id. (alteration in original) (quoting Goldstein 260 F.3d at 192). Discovery, on the other hand, has traditionally been conducted by the parties in private, outside of the public’s view. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984 (*[Pivetrial depositions . . . are conducted in private as a matter of modern practice.”). Thus, “[w]hen discovery materials are filed with the trial court, the private nature of discovery comes into conflict with the public’s right to access judicial records.” Wecht, 484 F.3d at 209. The Third Circuit has resolvedCase 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 9 of 25 this conflict by holding that although “there is a presumptive [common law] right to public access to all material filed in connection with nondiscovery pretrial motions,” there is “no such right as to discovery motions and their supporting documents.” Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993}. without such a presumption, the party’ seeking to prevent public access to discovery material--Defendant in this case--must show good cause under Federal Rule of Civil Procedure 26(c}) to keep the material away from the public eye. Protective Orders Under Rule 26(c) A party may seek @ protective order under Rule 26(c) “on matters relating to a deposition,” “for good cause” shown, “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The party seeking the protective order bears the burden of showing good cause. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir. 1994). In Pansy, the Third Circuit set forth several factors courts should consider before issuing protective orders, including: (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment;Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 10 of 25 (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citing Pansy, 23 F.3d at 787-91)). The Pansy court also discussed how courts should analyze motions to change or lift protective orders: The appropriate approach in considering motions to modify confidentiality orders is to use the same balancing test that is used in determining whether to grant such orders in the first instance, with one difference: one of the factors the court should consider in determining whether to modify the order is the reliance by the original parties on the confidentiality order. The parties’ reliance on an order, however, should not be outcome determinative, and should only be one factor that a court considers when determining whether to modify an order of confidentiality. Pansy, 23 F.3d at 790 (footnote omitted). These factors are “neither mandatory nor exhaustive,” but provide a useful framework upon which a court may base its analysis. Glenmede Brust Co., 56 F.3d at 483. he Third Circuit has emphasized that good cause must be shown by “articulat[ing] al] specific, cognizable injury from 10Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 11 of 25 thle] dissemination” of the material at issue. Id. at 484. “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing.” Pansy, 23 F.3d at 786 (internal quotation marks omitted). Overall, in determining good cause, a court must weigh the injuries that disclosure may cause against the other party’s or the public’s interest in the information. See id. at 787-91. Finally, the Third Circuit has stated that “[i]n determining whether any document or portion thereof merits protection from disclosure,” a court should be mindful that “continued sealing must be based on ‘current evidence to show how public dissemination of the pertinent materials now would cause the . . . harm [the party seeking protection] claim[s].’” Leucadia, 998 F.2d at 167 (quoting Republic of Philippines v- Westinghouse Blec. Corp., 945 F.2d 653, 663 (3d Cir. 199i)). III, DISCUSSION The Documents were filed with the Court in connection with a number of different discovery disputes between the parties. while the bulk of the Documents consists of legal arguments advanced by counsel-~including counsel's characterizations of deposition testimony--the Court impressed all of the Documents with an interim seal. Some of the Documents 1Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 12 of 25 directly quote select portions of Defendant’s deposition.® A number of other Documents simply refer to Defendant’s deposition but do not quote from it. Although the Court must decide whether to lift the seal as to all of the Documents, the central issue before the Court--and the one hotly contested by the parties--is ie The following Documents contain select portions of Defendant’s deposition testimony: « P1.’s Mot. Concerning Conduct of Def.’s Dep. and Mot. for Sanctions 5-7, 9, 15-20, 22-24, 27-28, 30-34, 36-37, 39-41, 46-49, 52, and 55 (ECF No. 48); © Pl.’s Mot. to Compel Disc. 1-2, 5, 10, 16, 18-20, 26, 28, 41-43, and 45-47 (BCE No. 50: * Pl.‘s Reply to Def.’s Reqs. to Compel and Mem. Concerning Overarching Issues § (ECF No. 57); * Def.’s Resps. to Pl.‘s Mot. to Compel and Mem. Concerning overarching Issues 32 (ECF No. 58); * Def./s Brief in Opp’n to Pl.’s Mot. to Compel the National Enquirer’s Compliance with Subpoena for Doc. and Req. for Expedited Resolution 3 (ECF No. 64); * P1.’s Mot. for Leave to File Reply Mem. of Law in Resp. to Def.’s Mem. in Opp’n to Pl.’s Mot. to Compel the National Enquirer’s Compliance with Subpoena for Docs. 3-5 (ECF No. 66); * P1.‘s Mom. of Law in Supp. of the Lifting of the Seal Established by Case Management Order 2 Exs. D & F (ECF No. 67); and * Pl.‘s Mot. for Leave to File Pl.’s Reply Mem. of Law in Resp. to National Enquirer’s Mem. in Opp’n to Pl.'s Mot. to Compel Compliance with Subpoena for Docs. Rx. A (BCF No 68). 12Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 13 of 25 whether the quoted excerpts from Defendant’s deposition will be released to the public.® Because this case concerns “discovery motions and their supporting documents,” id. at 165, it is clear that no presumptive right of public access exists in this matter, see id.” Rather, as the parties agreed during oral argument, the burden lies with Defendant--who argues on a “blank slate,” unencumbered by the presumption of a public right of access, Hr’g Tr. 29:4, June 26, 2015--to show good cause under Rule 26(c), as informed by Pansy, for why the Documents should be sealed." The AP believes that Defendant has failed to show good i Defendant has not contended that the portions of the deposition appearing in the parties’ briefs are not true and correct copies of his testimony. There being no apparent issue with the accuracy of the reporting, the Court need not consider it further. The full deposition transcript in this case is presumably in the parties’ possession i The Leucadia 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 public, accessible merely because it had to be included in motions precipitated by inadequate discovery responses or overly aggressive discovery demands.” 998 F.2d at 164. The Court notes that nowhere has the Third Circuit indicated that a negative presumption (i.e., against a public right of access) attaches to discovery motions and supporting materials, such as Defendant’s deposition testimony here. . The Documents are not technically sealed at this time, given that the, Court initially sealed them temporarily in its efforts to resolve the outstanding discovery disputes, and indicated that the temporary seal would lapse if not definitively extended. See Mem. and Order dated Jan. 13, 2006. at 8, 12. 13Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 14 of 25 cause for why the Documents should be sealed. Defendant, on the other hand, contends that the Pansy factors weigh heavily in favor of sealing the Documents. The Court proceeds to balance i The procedural vehicle that the AP used to bring this matter to light once more is Local Rule of Civil Procedure 5.1.5(c), which reads as follows: If a document is still sealed at the conclusion of the two-year period [provided in 5.1.5(b)(2)] and the Court has not entered an order continuing its sealed status beyond that time, the Clerk of Court shail notify the attorney for the party having submitted the sealed document at the attorney’s address on the docket that the document will be unsealed unless the attorney or the submitting party advises the Clerk within sixty (60) days that said attorney or submitting party objects. If the attorney or submitting party objects to the unsealing of the document or if the Clerk's notification is returned unclaimed, the Court will make a determination, on a case-by-case basis, whether to maintain the document under seal, to unseal it, or to require further notification. Thus, Local Rule §.1.5(c) provides a procedure by which documents are automatically unsealed two years after their sealing, unless a party objects and the court orders otherwise. Rule 5.1.5 is an administrative rule of procedure which does not set forth a substantive rule of decision. Under it, the Court is afforded broad discretion to determine whether or not documents should remain sealed. The Local Rule--which expressly provides that a “case-by-case” determination must be made with respect to each sealed record, and each portion thereof--reflects a general policy that access to court records serves the public interest. See United States Courts’ Judicial Conference, Policy on Sealed Cases, United States Courts (Sept 13, 2011), http: //www.uscourts .gov/news/2011/09/13/conference- approves-standards-procedures-sealing-civil-cases~0 (available as BDF) (setting forth specific criteria to be met before sealing a case, and providing that a civil file should be sealed only in “extraordinary circumstances” and should be unsealed once those extraordinary circumstances have passed) . 14Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 15 of 25 the relevant factors, grouping them together as it deems appropriate. Privacy Interests and Legitimate Purpose Justice louis Brandeis famously defined privacy as “the right to be let alone.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Defendant has asserted potentially significant privacy interests in this matter--namely, the fact that disclosing his deposition testimony would reveal intimate knowledge about his sex life, health, medical history, prescription use, financial affairs and personal relationships. Def.’s Br. 9. ‘The Supreme Court has recognized that “discovery . - may seriously implicate privacy interests.” See Seattle Times c 467 U.S. at 35. However, the precise contours of a party's privacy interest may expand or contract depending on the public’s interest in either the party or the information at issue. See Pansy, 23 F.3d at 787. Initially, it is the scope of this privacy interest that the Court must define in this case. The Third Circuit has recognized a curtailment of this interest for persons holding public office. See id.’ Although it has not expressly extended au See also Shingara v. Skiles, 420 F.3d 301, 303-04 (3d Cir. 2005) (concerning the Pennsylvania State Police); Pansy, 23 F.3d at 776 (concerning the government of the Borough of 15Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 16 of 25 this principle to “public figures” outside the category of office holders, Pansy and its progeny suggest that the privacy interest may be diminished when a party seeking to use it as a shield “is a public person subject to legitimate public scrutiny.” Id_ Although Defendant is a public person in the sense that his name, fame, and brand are worldwide in scope, he does not surrender his privacy rights at the doorstep of the courthouse. Were this so, well-known nongovernmental public figures, visible in the public eye but pursuing strictly private activities, would be subject to spurious litigation brought perchance to gain access to the intimate details of their personal lives. Under these circumstances, the potential for abuse is high. This case, however, is not about Defendant's status as a public person by virtue of the exercise of his trade as a televised or comedic personality. Rather, Defendant has donned the mantle of public moralist and mounted the proverbial Stroudsburg); United States v. Smith, 776 F.2d 1104, 1114 (3d Cir. 1985) (*[T)he public has 4 substantial interest in the integrity or lack of integrity of those who serve them in public office.”). a Cf., e.g., Paisley Park Enters., Inc. v. Uptown Prods., 54 F. Supp. 2d 347, 349 (§.D.N-¥. 1999) (allowing Prince’s deposition to be videotaped with restrictions, after noting that privacy concerns outweigh the public's “interest in every imaginable detail about the life of a rock star”). 16Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 17 of 25 electronic or print soap box to volunteer nis views on, among other things, childrearing, family life, education, and crime. ro the extent that Defendant has freely entered the public square and “thrust himself into the vortex of th[ese] public issue(s],” Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974), he has voluntarily narrowed the zone of privacy that he is entitled to claim. a See, e.g., Pound Cake Speech, Wikipedia https: //en.wikipedia.org/wiki/Pound Cake speech (last visited July 6, 2015); Dr. Bill Cosby Speaks at the 50th Anniversary Commemoration of the Brown vs. Topeka Board of Education Supreme Court Decision, www.eightcitiesmap.com/transcript_bc.htm (last visited July 6, 2015); Bill Cosby Tells Don Lemon Black Men Need to Raise Their Kids, Has Message for “No-groes,” Mediaite (Sept 14, 2013), www.mediaite.com/tv/bill-cosby-tells-don-lemon-black- men-need-to-raise-their-kids-has-message-for-no-groes; Victor Fiorillo, Bill Cosby to Temple Grads: Algebra Easier than Cotton Picking, Philadelphia Magazine (May 21, 2014), www.phillymag. com/news/2014/05/21/bill-cosby-temple-grads-algebra-easier~ cotton-picking. oe Defendant offers a number of other cases in support of his position, but each is readily distinguishable. See Morgan v. Wal-Mart Stores, Inc., No. 14-4388, 2015 WL 3882748 (D.N.J. June 23, 2015); People v. Jackson, 27 Cal. Rptr. 3d 596 (Cal. Ct. App. 2005); dones v. Clinton, 12 F. Supp. 2d 931 (B.D. Ark 1998); Damiano v. Sony Music Entm’t, Inc., 168 F.R.D. 485 (D.N.g. 1996), In Morgan, the court confronted a sealed application for attorneys’ fees that was collateral to the central issues of the case, 2015 WL 3882748, at *1; the court in Jackson heavily weighed the privacy interests of minors and the risk of prejudice to a fair trial, 27 Cal. Rptr. 3d at 599-600 the Clinton court unsealed all records at issue, except for those revealing the identities of Jane Does, 12 ¥. Supp. 2d at 934-35; and in Damiano, the court was concerned that the plaintif£ sought access for an improper commercial purpose, 168 F.R.D. at 491-93. None of these considerations is present in this case. 17Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 18 of 25 Furthermore, as it relates to the claims in this case, the allegations (which are of course just that, and have not been proven) are already in the public comain. The Complaint is explicit in detail. See Am. Compl. $7 8-27, ECF No, 41. A number of other persons have publicly alleged similar conduct on the part of Defendant in the media and in at least two pending civil actions.“ In turn, Defendant has responded publicly with denials as to the veracity of the claims and questioned the possible motives of his accusers.\® By joining the debate about the merits ne See Green v. Cosby, No. 14-30211 (0. Mass.) (filed Dec. 10, 2014); Huth v. Cosby, No. BC565560, (Cal. Super. Ct. (filed Dec. 2, 2014); see also, e.g., Chris Perry, New Cosby Accuser: “Do You Remember Me?,” CNN (Mar. 22, 2015) wow can, Com/2015/02/24/us/cosby-accuser-heidi-thomas/index. html. Manuel Roig-Franzia et al., Bill Cosby’s Legacy, Recast Accusers Speak in Detail About Sexual-Assault Allegations, Washington Post (Nov. 22, 2014), http://www.washingtonpost .com/ lifestyle/style/bill-cosbys-legacy-recast-accusers-speak-in- detail-about-sexual-assault-allegations/2014/11/22/a7074938- 718e-11e4-8808-afaale3a33ef_story.html; Robert Huber, “Cosby Threw Me on the Bed,” Philadelphia Magazine (Nov. 1, 2006) www .phillymag.com/articles/cosby-threw-me-on-the-bed. 35 See Barry Levine, Bill Cosby Ends His Silence: My Story!, Nat’l Enquirer, Mar. 2, 2005, at 29, 29-30. At oral argument, Defendant’s counsel insisted that Defendant’s interview with the National Enquirer did not cover the allegations in the underlying case. Br’g Tr. 55:11-56:3 However, that characterization is not accurate, as a review of the article in question reveals. See Levine, supra, at 29-30 (discussing the allegations). Defendant has also continued to comment publicly on the allegations in other similar cases. See, e.g., Jackie Willis, Bill Cosby Addresses Allegations: “I've Never Seen Anything Like This,” BTOnline (May 15, 2015) http://www .etonline.com/news/164575_bill_coshy first_tv_intervie w_since_sex_scandal/; Nick Vadala, Bill Cosby Jokes About Sexual Assault Allegations Facing Him at Second Canadian Tour Stop 18Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 19 of 25 of the allegations against him, he has further diminished his entitlement to a claim of privacy. Moreover, the AP’s interest in obtaining Defendant’s depositions is legitimate. The purpose for which the deposition is sought (and surely will be distributed to the world) is not merely commercial gain’ or prurient interest!” in exposing the details of Defendant's personal life. Nor is it simply a matter collateral to the issues in the lawsuit.‘* Rather, the stark contrast between Bill Cosby, the public moralist and Bill Cosby the subject of serious allegations concerning improper (and perhaps criminal) conduct, is a matter as to which the AP--and by extension the public--has a significant interest. Finally, the nature of the allegations--sex, drugs, seduction, ete.--do not cloak this case, including the Philly.com (Jan, 8, 2015), http: //www.philly.com/philly/blogs/ trending/Bill-Cosby~jokes-about-sexual-assault-allegations-at~ second~Canadian-tour-stop. html See, e.g., Damiano, 168 F.R.D. at 491-93 (finding in favor of Bob Dylan’s privacy interests, in light of plaintiffs improper commercial purpose of directly monetizing revealed material). an See, e.g., Paisley Park Enters., Inc., 54 F. Supp. 2d at 349 (holding that the public's “interest in every imaginable detail about the life of a rock star” did not outweigh Prince’s privacy concerns) . ae See, e.g., Morgan, 2015 WL 3882748, at *2 (concluding that the “public has no legitimate interest in gaining access to . confidential information” regarding settlement-related matters collateral to the central issues of the case). 19Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 20 of 25 depositions of one of the parties, with an automatic or per se seal of silence. Were it otherwise, the distinction would create a category of cases which, because of the inflammatory nature of their subject matter, would always lie outside public scrutiny This point is particularly relevant here where the allegations of improper conduct are not collateral to, or background information in, the case but rather form its very essence Given the circumstances of this case, the Court concludes that Defendant has a diminished privacy interest and that this diminished interest is outweighed by the AP’s and the public's interest in gaining access to his deposition testimony. B. Embarrassment The Third Circuit has stated that, “because release of information not intended . . . for public consumption will almost always have some tendency to embarrass, an applicant for a protective order whose chief concern is embarrassment must demonstrate that the embarrassment will be particularly serious.” Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986); see also Shingara v. Skiles, 420 F.3d 301, 307 (3d Cix. 2005) (requiring a showing of a “risk that particularly serious embarrassment will result from the release of the documents” (internal quotation marks omitted]). Defendant has not done so here. In his brief, he worries that release of the 20Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 21 of 25 deposition testimony, “which delves into the most intimate subjects imaginable, would generate a firestorm of publicity.” Def.’s Br. 10. At oral argument, Defendant’s counsel stressed that the Court simply must recognize how embarrassing this all would be for Defendant. See Hr'g Tr. 32:1-34:22. Although of course intense media scrutiny into one’s private matters would almost always cause embarrassment, cf... e.g., Cipollone, 785 F.2d at 1121, this is the type of general allegation that does not satisfy Pansy. Defendant has not specifically shown why his embarrassment would be “particularly serious” at this time and in the context of this case.** In short, Defendant has failed to show what specific and severe injuries he would suffer upon release of the deposition testimony at this time which he has not already experienced.” The Court finds that Defendant has failed to make the necessary showing that disclosure will cause him a “clearly defined and serious injury” with respect te Pansy’s oe Defendant suggests that he has satisfied the specificity requirement by his linking of the “threat [of serious embarrassment] to specific discovery material.” Def.‘s Br. 10. However, this mischaracterizes the legal standard, which requires specificity of injury, not merely that of the material to be sealed. See Pansy, 23 F.3d at 786 oe The Court recognizes that Defendant is operating under the constraint of not being able to detail the information in the deposition testimony. However, this does not remove his burden of establishing what “particularly serious” embarrassment he would suffer. 21Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 22 of 25 embarrassment factor. Pansy, 23 F.3d at 786 (internal quotation marks omitted) . Reliance Defendant contends that releasing the deposition testimony now would undermine the parties’ reliance on their private settlement agreement, in which, according to Defendant’s representation (as it has not been filed of record in this action), the parties agreed to keep all discovery material confidential. Def.’s Br. 12-13. This reliance is not justified for two reasons. One, the Court was never presented with the settlement agreement or asked to retain jurisdiction over the enforcement of the confidentiality portion of that agreement. ‘two, when the case settled, the Court was not asked to permanently seal the discovery material, which at that time was subject to an interim sealing order. Because Defendant did not seek the Court’s imprimatur on his intent to keep the Documents from ever seeing the light of day, his reliance that the discovery materials would remain out of the public eye was misplaced.” o Defendant also suggests that if the Court released the deposition testimony now, it would have a chilling effect on other settlement agreements because parties would not be able to rely on the persistence of confidentiality. See Def.’s Br. 12~ 13. However, as the Court noted above, parties can ensure the permanency of a seal by simply requesting a court order to that 22Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 23 of 25 D. Efficiency and Fairness Defendant argues specifically that releasing his deposition testimony now “would impact jury selection in [a] case currently proceeding against him in the District of Massachusetts.” Id at 13. However, the Third Circuit is “ordinarily . . . confident that a district court will be able to select a fair and impartial jury in cases even where there has been pre-trial media attention to the case.” Shingara, 420 F.3d at 307. The Shingara court refused to countenance the generalized concern that disclosure would affect a fair and impartial jury where “the defendants did not present any evidence to support their argument, drawn from the information already published, that there will be difficulty selecting a jury in this case or evidence that if additional information is published there would be such difficulty.” Id. Defendant attempts to distinguish Shingara from the instant case on the theory that “{t]he Court now has before it specific examples of prejudicial discovery material and a known xecord of pretrial publicity on matters directly at issue in the Massachusetts proceeding.” Def.’s Br. 13, But the specificity of effect (provided good cause is shown). Moreover, as the AP’s counsel pointed out during oral argument, parties settle for many reasons other than confidentiality. See Hr’g Tr. 10:6-20 The “chilling effect” argument therefore does not carry much analytical weight. 23Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 24 of 25 the discovery material and the pretrial publicity does not explain what about Defendant’s deposition testimony will interfere with the selection of an impartial jury in the Massachusetts case. In other words, Defendant does not show why ox how the Court’s release of additional documents here will overcome the district court’s ability to choose a fair jury Therefore, the Court relies on Shingara and finds that Defendant has failed to show a specific, clearly defined injury with respect to Pansy’s fairness and efficiency factor. Pansy, 23 F.3d at 786.7 At bottom, it is mot unfair to Defendant for the Court to unseal the Documents, including those portions of the deposition testimony that were filed in this case. Defendant is highly educated (he earned a doctoral degree from the University of Massachusetts) .*? He is a successful professional, accustomed to performing in the public eye. He appeared at his deposition in a federal court case with able legal counsel who actively interposed objections and directed Defendant not to answer when fe Any other concerns of efficiency and fairness are not relevant under the circumstances of this case, as some ten years have elapsed since the parties settled the matter without court involvement. ne See Gail Jennes, That Doctorate After Bill Cosby’s Name Is No Honorary Freebie, People Magazine, June 6, 1977, at 30, available at www.people.com/people/archive/article/ 0, ,20068008,00. html. 24Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 25 of 25 he thought the questions were improper. At the end of this exercise, punctuated by vigorous verbal combat between counsel, what emerged from those portions of the deposition testimony that were filed with the Court is Defendant’s version of certain of the events surrounding this lawsuit--in his own words. IV. CONCLUSION after balancing all of the pertinent Pansy factors,” the Court finds that Defendant has pervasively failed “to articulate any specific, cognizable injury” that would result upon the Documents’ release to the public, Glenmede Trust Co., 56 F.3d at 484, and therefore has not carried his burden of showing good cause under Rule 26(c) and Pansy. Pansy, 23 F.3d at 187-91. Accordingly, the Court will overrule Defendant's objections and order the Documents to be unsealed forthwith.* An appropriate order follows. fe ‘The remaining Pansy factor, relating to public health and safety, see Pansy, 23 P.3d at 788, is not applicable to this case. an Defendant appears to request that, should the Court deny his request to keep the Documents at issue under seal, he be allowed to redact them before they are released. See Hr’g Tr. 43:13-47:20. For the same reasons the Court provides above in support of its decision to unseal the Documents, it will deny Defendant’s request to redact them. 25Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 1 of 49 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ANDREA CONSTAND : CIVIL ACTION Plaintife v. NUMBER 05-1099 WILLIAM H. COSBY, JR. mn Defendant : ayonaey Cla PLAINTIFF'S MOTION TO COMPEL DISCOVERY * Cher, Plaintiff prays this Honorable Court to Compel Defendant to provide full and complete answers to the questions propounded by Plaintiff at Defendant's deposition, and further to Order that said answers shall be provided without interruption by defense counsel. lly submitted, LLP SM. TROIANI Attorney I.D. 21283 BEBE H. KIVITZ Attorney I.D. 30253 Attorneys for Plaintiff 38 North Waterloo Road Devon, PA 19333 (610) 688-8400 BY:Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 2 of 49 QUESTION ONE: ‘Defendant testified that he obtained seven prescriptions for Quaaludes to give the drug to ‘women with whom he wanted to have sexual contact. The following testimony was elicited: Q. You gave them to other people? A. ‘Yes. (9/29/05, 66) Q Who are the people that you gave the Quaaludes to? (9/29/05, 68) ‘The parties stipulated that all objections except as to form are reserved for time of trial. This stipulation mirrors Federal Rule of Civil Procedure 32(4)(3)(A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information, In this case, Plaintiff intends to introduce evidence of prior sexual assaults committed by defendant pursuant to Federal Rule of Evidence 415. In addition, Defendant’s conduct with other women, with whom he had/has a relationship of a sexual nature, and his conduct with other individuals, with whom he has a business relationship, is sought under Federal Rule of Evidence 404(b). This evidence shows a pattem in which Defendant “mentored” naive young women and introduced drugs into the relationship, (with and without the woman’s knowledge), in order for ‘him to achieve sexual satisfaction. Further, it is anticipated that discovery wili reveal that various business associates were aware of Defendant’s actions and not only failed to warn Plaintiff but actively participated in her victimization, Defendant has defamed Plaintiff in a media blitz, in which he and his agents have sought to portray Plaintiff as attempting to “extort and embarrass him.” He has also stated that his actions arc misinterpreted due to his celebrity status. Rule 404(b) concerns prior acts/wrongs which show motive, intent, preparation, plan, knowledge, absence of mistake or accident. Rule 406 permits the introduction of evidence of habit or routine. In the instant case, Defendant has evidenced a predilection for sexual contact with women who are unconscious or drugged. His victims are young, “star stuck”, and totally trusting of his public persona, ‘Quaaludes are a drug which was banned in this country in the 1980's. It has a sedative effect and in the 1970's it was linked with sexual activity. Defendant contends that he gave Plaintiff the over the counter medication Benedryl. Plaintiff intends to introduce expert testimony that Benedryl would not produce the sedative, almost immobilization effect that Plaintiff experienced. Testimony about Defendant's access to drugs, and those with whom he shares drugs may lead to evidence as to what it was that he gave Plaintiff.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 3 of 49 QUESTION TWO. Q. When you got the Quaaludes, was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with? A Yes. Q. Did you ever give any of those young women the Quaaludes without their knowledge? (9/29/05, 71) ‘The parties stipulated that all objections except as to form are reserved for time of trial. This stipulation mitrors Federal Rule of Civil Procedure 32(4)(3)(A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. In this case, Plaintiff intends to introduce evidence of prior sexual assaults committed by defendant pursuant to Federal Rule of Evidence 415. In addition, Defondant’s conduct with other women, with whom he had/has a relationship of a sexual nature, and his conduct with other individuals, with whom he has a business relationship, is sought under Federal Rule of Evidence 404(b). This evidence shows a pattem in which Defendant “mentored” naive young women and introduced drugs into the relationship, (with and without the woman’s knowledge), in order for him to achieve sexual satisfaction. Further, it is anticipated that discovery will reveal that various business associates were aware of Defendant’s actions and not only failed to warm Plaintiff but actively participated in her victimization, Defendant has defamed Plaintiff in a media blitz, in which he and his agents have sought to portray Plaintiff as attempting to “extort and embarrass him.” He has also stated that his actions are misinterpreted due to his celebrity status. Rule 404(b) concerns prior acts/wrongs whici, show motive, intent, preparation, plan, knowledge, absence of mistake or accident, Rule 406 permits the introduction of evidence of habit or routine. In the instant case, Defendant has evidenced a predilection for sexual contact with women who are unconscious or drugged. His victims are young, “star stuck”, and totally trusting of his public persona, ‘Quaaludes are a drug which was banned in this country the 1980's. It has a sedative effect and in the 1970's it was linked with sexual activity. Defendant contends that he gave Plaintiff the over the counter medication Benedry!. Plaintiff intends to introduce expert testimony that Benedry! would not produce the sedative, almost immobilization effect that Plaintiff experienced. Testimony about Defendant's access to drugs and those with whom he shares drugs may lead to evidence as to what it was that he gave Plaintiff.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 4 of 49 QUESTION THREE Q. Are you saying that you never gave the Quaaludes fo any other female but ‘Theresa? (9729105, 74) Defendant's counsel improperly interjected himself into the questioning and denied that defendant had said he gave the quaaludes to people other than Theresa. When defendant appeared to adopt his attorney’s “clue”, his attorney instructed him not to answer questions aimed at attempting to reconcile the two contradicting answers. Plaintiff sceks to question Defendant as to which of the two versions he is asserting at this time.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 5 of 49 QUESTION FOUR BY MS. TROIANI: Q. _Batlier I believe you testified that you had given the Quaaludes to other women; is that correct? ( 9/29/05, 74-75) Counsel objected that Defendant had not made the statement and directed him not to answer. In fact, Defendant had testified that he gave the Quaaludes to “other people.” This was a follow up question aimed at developing evidence and testing Defendant’s credibility pursuant to Rules of Evidence, 404 (b), 406 and 415.Case 2:05-cv-01099-ER Document §0 Filed 11/21/05 Page 6 of 49 QUESTION FIVE Defendant testified that he called Tom Illus of the William Morris Agency and asked him to send money to one of the Rule 415 witnesses. He testified that Mr. Illus did not ask him why. He then testified: Q. Have you ever asked him in the past to send money to women? A. Imnot sure. Q. Had you ever had a discussion with him conceming this process where he would act as a conduit for you to send funds to other people? (9/29/05, 83) Defendant admitted that in his initial conversation with Plaintiff and her mother, he asked them what they wanted and they said they only wanted an apology and to know the name of the drug ‘Defendant had given to Plaintiff. He testified that some time after that call, he decided to call Plaintiff's mother to offer Plaintiff funds for “education” and to ask them to meet him in Florida. He then had a representative of the William Mortis agency call Plaintiff. ‘The William Morris agency also funneled money to one of the Rule 415 witnesses. It is believed that this line of questioning will lead to relevant information concerning other Jane Does, and other evidence which not only supports Plaintiff's version of the events, but also tends to prove the malicious actions of Defendant which evidence is relevant to punitive damages. In this case, Plaintiff intends to introduce evidence of prior sexual assaults committed by defendant pursuant to Federal Rule of Evidence 415. In addition, Defendant’s conduct with other women, with whom he had/has a relationship of a sexual nature, and his conduct with other individals, with whom he has a business relationship, is sought under Federal Rule of Evidence 404(b). This evidence shows a pattern in which Defendant “mentored” naive young women and introduced drugs into the relationship, (with and without the woman's knowledge), in order for him (o achieve sexual satisfaction. Further, it is anticipated that discovery will reveal that various business associates were aware of Defendant’s actions and not only failed to warn Plaintiff but actively participated in her victimization. Defendant has defamed Plaintiff in a media blitz, in which he and his agents have sought to portray Plaintiff as attempting to “extort and embarrass him.” He has also stated that his actions are misinterpreted due to his celebrity status. Rule 404(b) concerns prior acts/wrongs which show motive, intent, preparation, plan, knowledge, absence of mistake or accident. Rule 406 permits the introduction of evidence of habit or routine, In the instant case, Defendant has evidenced a predilection for sexual contact with women who are unconscious or drugged. His victims are young, “star stuck”, and totally trusting of his public persona.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 7of 49 QUESTION SIX, Q. Had you ever sent money to any other female who you believe you had a consenting relationship with? 9/29/08, 85 In this case, Plaintiff intends to introduce evidence of prior st defendant pursuant to Federal Rule of Evidence 415. In addition, Defendant’s conduct with other women, with whom he hed/has a relationship of a sexual nature, and his conduct with other individuals, with whom he has a business relationship, is sought under Federal Rule of Evidence 404(b). This evidence shows a patter in which Defendant “mentored” naive young women and introduced drugs into the relationship, (with and without the woman’s knowledge), in order for him to achieve sexual satisfaction. Further, it is anticipated that discovery will reveal that various business associates were aware of Defendant’s actions and not only failed to warm Plaintiff but actively participated in her victimization. Defendant has defamed Plaintiff in a media blitz, in which he and his agents have sought to portray Plaintiff as attempting to “extort and embarrass him.” He has also stated that his actions are misinterpreted due to his celebrity status. Rule 404(b) concems prior acts/wrongs which show motive, intent, preparation, plan, knowledge, absence of mistake or accident. Rule 406 permits the introduction of evidence of habit or routine, In the instant case, Defendant has evidenced a predilection for sexual contact with women Who are unconscious or dragged. His vietims are young, “star stuck”, and totally trusting of his public persona. ‘Defendant seems to be objecting because this question is directed to consensual relationships. However, Defendant has testified that his relationship with Plaintiff was consensual. It is submitted that this question is not only directed at the discovery of additional Rule 415 witnesses but also tests Defendant's credibility. Plaintiff is not required to accept defendant's characterization of the relationship as consensual.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 8 of 49 QUESTION SEVEN Plaintiffs intended to place certain questions on the record but defendant stipulated as follows: MS. TROIANT: understand your position. Ineed to get my question on the record. MR. O'CONNOR: ‘You don't need to put your question on the record. The issuc before the judge is whether, and we can stipulate to this, any people other than the Jane Does and Ms. Constand, whatever relationship Mr. Cosby had with them as far as I'm concemed, ifhe had any such relationships, consenting or otherwise, we're not going to delve into, This deposition was restricted hopefully to ‘Ms. Constand, which the case is all about, and witnesses 20 and 30 years ago, one of whom took Quaaludes, And you can certainly ask him about the others. She's freely admitted that he gave her. That's it. You want to build a record about other people, I'm going to go to the court on that. Let's save time. (9/29/05, 85-86) In fact, Plaintifis do sock to question Defendant about other individuals who have claimed that Defendant cither drugged them, drugged some one whom they know, acted inappropriately in a sexual manner towards them or someone they know, Some of these individuals have.come forward to the police or counsel but will not agree to be witnesses at this time. Should these individuals change their minds in the future, Plaintiff has a right to ask Defendant to explain their statements, in order to discover evidence which may be used by Defendant for impeachment purposes, Further this line of questioning is pertinent to Federal Rules of Evidence 404 (b), 406 and 415.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 9 of 49 QUESTION EIGHT Q Have you ever obtained other drugs from any physician that you did not intend to use but intended to give to other parties such as you did with the Quaaludes? (9/9/05, 90) ‘The parties stipulated that all objections except as to form are reserved for time of trial. This stipulation mirrors Federal Rule of Civil Procedure 32(d)(3)(A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information, Defendant absurdly objected that it is somehow improper for Plaintiff to acouse him of lying about giving her Benedryl, Defendant's credibility is always in issue. Quaaludes are a drug, which was banned in this country in the 1980's. It has a sedative effect and in the 1970's it was, linked with sexual activity. A central issue of this case is the identity of the drug used by defendant to deprive plaintiff of her ability to resist his advances. On the night in question, plaintiff told defendant that she was under a lot of stress due to her contemplating changing her job and returning to Canada. Defendant left the room and when he returned he had three blue pills in his hand. He told her to take them. Previous fo this incident, the parties had engaged in discussions about herbal medications, (Tr. 9/28/05, 33), and defendant had his homeopathic practitioner speak with plaintiff. Consequently, plaintiff asked defendant if the pills were herbal. He replied that they were “Your friends, I have three friends for you to make you relax.” (Tr. 9/29/05, 234) Defendant contends that he gave Plaintiff the over the counter medication Benedryl. Plaintiff intends to introduce expert testimony that Benedryl would not produce the sedative almost immobilization effect that Plaintiff experienced. Testimony about Defendant's access to drugs and those with whom he shares drugs may Jead to evidence as to what it was that he gave Plaintiff.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 10 of 49 QUESTION NINE Q What are the other drugs which you have been prescribed in the past five years? (9/29/05, 90) The parties stipulated that all objections except as to form are reserved for time of trial. This stipulation mirrors Federal Rule of Civil Procedure 32(d)(3)(A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (6)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. Defendant absurdly objected that it is somehow improper for Plaintiff to accuse him of lying about giving het Benedryl. Defendant's credibility is always in issue, Defendant contends that he gave Plaintiff the over the counter medication Benedryi. Plaintiff intends to introduce expert testimony that Benedryi would not produce the sedative almost immobilization effect that Plaintiff experienced. Testimony about Defendant’s access to drugs and those with whom he. shares drugs may lead to evidence as to what it was that he gave Plaintiff.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 11 of 49 QUESTION TEN Q. You would agree with me that if you got seven prescriptions for Quaaludes you could still keep those Quaaludes for a number of yeats? A Yes. Q And do you know how long after you stopped getting the prescriptions you still had the Quaaludes in your possession? (9/29/05, 90-91) The patties stipulated that all objections except as to form are reserved for time of trial. ‘This stipulation mirrors Federal Rule of Civil Procedure 32(4)(3)(A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. Defendant absurdly objected that it is somehow improper for Plaintiff to accuse him of lying about giving her Benedryl. Defendant's credibility is always in issue. Quaaludes are a drug ‘which was banned in this country in the 1980's. It has a sedative effect and in the 1970!s it was linked with sexual activity. Defendant contends that he gave Plaintiff the over the counter medication Benedtyl. Plaintiff intends to introduce expert testimony that Benedryl would not produce the sedative, almost immobilization effect that Plaintiff experienced. Testimony about Defendant’s access to drugs and those with whom he shares drugs may lead-to evidence as to what it was that he gave Plaintiff. 10Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 12 of 49 STION ELEVEN, Q. Did you ever obtain Quaatudes again from any other source after the ones that you had been given in the prescription that were no longer available to you? (9729105, 93) The parties stipulated that all objections except as to form are reserved for time of trial. This stipulation mirrors Federal Rule of Civil Procedure 32(4)(3)(A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b\(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. Defendant absurdly objected that it is somehow improper for Plaintiff to accuse him of lying about giving her Benedryl. Defendant's credibility is always in issue. Quaaludes are a drug which was banned in this country in the 1980's. It has a sedative effect and in the 1970's it was linked with sexual activity. Defendant contends that he gave Plaintiff the over the counter medication Benedryl, Plaintiff intends to introduce expert testimony that Benedryl would not produce the sedative, almost immobilization effect that Plaintiff experienced. Testimony about Defendant's access to drags and those with whom he shares drugs may lead to evidence as to what it was that he gave Plaintiff, ulCase 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 13 of 49 QUESTION TWELVE Q Have you ever gotten any prescriptions from any other doctor which drugs would have a similar effect to Quaaludes? (9/29/05, 94) The parties stipulated that all objections except as to form are reserved for time of trial, This stipulation mirrors Federal Rule of Civil Procedure 32(4)(3)(A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information refevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. Defendant absurdly objected that it is somehow improper for Plaintiff to accuse him of lying about giving her Benedryl, Defendant’s credibility is always in issue. Quaaludes are a drug, which was banned in this country in the 1980's. It has a sedative effect and in the 1970's it was linked with sexual activity. Defendant contends that he gave Plaintiff the over the counter medication Benedry!. Plaintiff intends to introduce expert testimony that Benedryl would not produce the sedative, almost immobilization effect that Plaintiff experienced. Testimony about Defendant’s access to drugs and those with whom he shares drugs may lead to evidence as to what it was that he gave Plaintiff. The objection to this question concerned the time frame, Plaintiff intends to present expert testimony pursuant to the Federal Rules of Evidence 404 (b) and 415. Evidence of Defendant's continuing behavior spans at least four decades, 12Case 2:05-ev-01099-ER Document 50 Filed 11/21/05 Page 14 of 49 QUESTION THIRTEEN Q Have you obtained drugs, any type of drug that would have the same type of effect as Quaaludes from any source since the time you got the Quaaludes to the time that you no longer had an association with our client? (9/29/05, 92-98) The parties stipulated that all objections except as to form are reserved for time of trial. This stipulation mirrors Federal Rule of Civil Procedure 32(d)(3A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. Defendant absurdly objected that it is somehow improper for Plaintiff to accuse him of lying, about giving her Benedryl. Defendant's credibility is always in issue. Quaaludes are a drag which was banned in this country in the 1980's. Ithas a sedative effect and in the 1970's it was, linked with sexual activity. Defendant contends that he gave Plaintiff the over the counter medication Benedryl. Plaintiff intends to introduce expert testimony that Benedryl would not produce the sedative, almost immobilization effect that Plaintiff experienced. Testimony about Defendant’s access to drugs and those with whom he shares drags may Iead to evidence as to what it was that he gave Plaintiff. 13Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 15 of 49 QUESTION FOURTEEN Defendant was read a statement given by one of the Rule 415 witnesses and the following «questions ensued about the incidents alleged in the statement: Q. Are you telling us that this woman has made up this story about you having sex with her? (9/29/05, 104) The question is calculated to lead to evidence which may be put forth by defendant to impeach the witness at trial. The parties stipulated that all objections except as to form are reserved for time of trial. Federal Rule of Civil Procedure 32(d)(3)(A), provides that objections as to materiality and relevancy are not waived if not raised at the deposition, Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information, 14Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 16 of 49 QUESTION FIFTEEN Q No. I'l start over again. Tm sony, You're having s little difficulty. It really was an inartful question. Let me start over again, In the early 1970s, did you ever give a woman a drug and then take her back to her home, have sexual contact with her while she was unconscious in Sausalito, California? (9/29/05, 112-113) Defendant was read a statement by one of the Rule 415 witnesses, He was then given an opportunity to dispute the statement or any part of it. The question is calculated to lead to evidence which may be put forth by defendant to impeach the witness at trial. The parties stipulated that all objections except as to form are reserved for time of trial. This stipulation mirrors Federal Rule of Civil Procedure 32(d){3)(A), which provides that objections as to materiality and relevancy are not Waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information 15Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 17 of 49 QUESTION SIXTEEN A, People come to my house what? Q. People come to your house whose names you don't know. You told us yesterday that you didn't know the names of the people who were at the dinner. So, people do come to your house that you don't know or remember at this point? A. Yes. Isaid that yesterday, but you know what I was doing yesterday. Q No, Idon't, What were you doing yesterday? A. Nevermind if yon don't know. I don't know this man. This man came to my house. I don't know him. Q Are you suggesting that yesterday you were deliberately not telling us the names of the people at Swarthmore? A. I'mnot suggesting anything. BY MS. TROTANT: Q. What did you mean by I knew what you were doing yesterday? (9/29/05, 116-118) Tt appeared that Defendant knew the names of his dinner guests and deliberately declined to answer the questions posed the previous day. At the continuation of the deposition, he made the ambiguous statement that the questioner knew what he was doing the day before, Plaintiff believes he was admitting that he had not fully answered the questions and was presenting Defendant with the opportunity to explain himself, 16Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 18 of 49 QUESTION SEVENTEEN Q. When you had the relationship with Beth Ferrier, were you also having relationships with other women? (9/29/05, 131) The parties stipulated that all objections except as to form are reserved for time of trial. This stipulation mirrors Federal Rule of Civil Procedure 32(4)(3)(A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition, Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. In this case, Plaintiff intends to introduce evidence of prior sexual assaults committed by defendant pursuant to Federal Rule of Evidence 415. In addition, Defendant's conduct with other women, with whom he had/has a relationship of a sexual nature, and his conduct with other individuals, with whom he has a business relationship, is sought under Federal Rule of Evidence 404(b). This evidence shows a pattern in which Defendant “mentored” naive young women and introduced drugs into the relationship, (with and without the woman's knowledge), in order for him to achieve sexual satisfaction. Further, itis anticipated that discovery will reveal that various business associates were aware of Defendant’s actions and not only failed to wam Plaintiff but actively participated in her victimization, Defendant has defamed Plaintiff in a media blitz, in which he and his agents have sought to portray Plaintiff as attempting to “extort and embarrass him.” He has also stated that his actions are misinterpreted due to his celebrity status, Rule 404(b) concems prior acts/wrongs which show motive, intent, preparation, plan, knowledge, absence of mistake or accident. Rule 406 permits the introduction of evidence of habit or routine. In the instant case, Defendant has evidenced a predilection for sexual contact with women who are unconscious or drugged. His victims are young, “star stuck”, and totally trusting of the public persona. This question is aimed at discovery of other Rule 415 witnesses. 7Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 19 of 49 QUESTION EIGHTEEN Q. You don’t recall what happened? AL Tdon’t. Q. She says what happened is that you gave her coffee, which she believed was drugged and that somehow she cnded up in a car in a parking lot and that she believes that you hhad had sexual contact with her while she was unconscious? Following interruptions by defense counsel, then Q You don’t remember that occurring? (9/29/05, 144-146) ‘This line of questioning involved the statement of a Rule 415 witness. Defendant's testimony was so disjointed because counsel interrupted, told defendant answers and acted with the utmost incivility towards opposing counsel, that plaintiff requests her right to repeat these questions without interruption, Federal Rule of Civil Procedure 30(c) ; Hall v. Clifion Precision, 150 F.R.D. 525 (U.S.ED. 1993) and Applied Telematics, Inc. v. Sprint Corporation, 1995 U.S. Dist. LEXIS 2191 18Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 20 of 49 QUESTION NINETEEN Q. When was the first time that you knew that Beth Ferrier would give a statement to the press? A. Maybe about eight, nine months ago. Q How did you know that? A. gota call about it. Q. From whom? A. Thope I'm accurate, counsel. Q — Youhave four counsel sitting here. Which counsel was it? ‘A. It was Marty Singer. Q_ What did he say to you in that call? (9/29/05, 147-148) The attomey client privilege applies to statements made by the client not those by the attorney to the client unless the disclosure would reveal communications made from the client to the lawyer. Coregis Ins. Co. v. Law Offices of Carole f Kafrissen, 186 F. Supp. 24 567, ( E.D. Pa, 2002), (rev, on other grounds, 2003 U.S. App.Lexis 1806). This question involves the attorney informing the client what was told to the attorney by a third party. ‘The privilege is simply inapplicable. Robertson v, Allstate, 1999 U.S. Lexis 1999. 19Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 21 of 49 QUESTION TWENTY Apparently a California attorney named Marty Singer and Mr. Schmidt negotiated with the National Enquirer on behalf of Mr. Cosby. Defendant testified that he learned that the paper ‘was going to print Beth Ferrier’s story from his lawyer Marty Singer and that he decided to give the paper an “exclusive interview” in exchange for their not printing the Beth Ferrier story, which he had been given the opportunity to review, He asserted the attomey client privilege in response to questions about what Mr. Singer fold him about the article, Mr. Singer also called plaintiff on defendant's behalf. Plaintiff seeks to delve into the relationship between defendant and Mr. Singer to determine if he is a practicing attomey or a celebrity agent and whether or not he was acting in his capacity as attorney at the relevant time. BY MS. TROIANI: Q How long has Mr. Singer represented you? A. Certain cases. Q. What was the case that was occurring at the time that he called and told you about the Beth Ferrier account? (9/29/05, 149) Ina diversity case, the issue of aitoney-client privilege is decided according to. Pennsylvania law. ‘The privilege is codified at 42 Pa. Cons. Stat. Ann. § 5928. The party resisting discovery must establish: “(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar of a court, or his or her subordinate, and is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which the attorney was informed by the client without the presence of strangers for the purpose of securing primarily either an opinion of law, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or tort, and the privilege has been claimed and not waived by the client.” Rhone-Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 862 (3d. Cir. 1994) Plaintiff seeks to explore whether or not Mr. Singer was acting as an attorney in order to determine whether or not the privilege applies. In addition, Plaintiff has the right to test Defendant's credibility by following up with a question asking for details which support Defendant's previous response. 20Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 22 of 49 QUESTION TWENTY-ONE BY MS. TROIANE: Q. _ Tasked you how did you find out about Beth Ferrier going public with her statement and you told me you got a call from Marty Singer? A. Right. Q _Tasked you what you did after that phone call?” MS. TROIANI: Counsel is saying if you acted pursuant to his advice, then what you did he believes you cannot tell us. ‘THE WITNESS: That is correct. (9/29/05, 150-151) Ina diversity case, the issue of attomey-client privilege is decided according to Pennsylvania law. The privilege is codified at 42 Pa. Cons. Stat. Ann. § 5928. The party resisting discovery must establish: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar ofa court, or his or her subordinate, and is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which the attorney was informed by the client without the presence of strangers for the purpose of securing primarily either an opinion of law, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime of tort, and the privilege has been claimed and not waived by the client.” Rhone-Poulenc Rover, Inc. v. Home Indemnity Co,, 32 F.3d 851, 862 (34. Cir, 1994) The attorney client privilege applies to statements made by the client not those by the attorney to the client unless the disclosure would reveal communications made from the client to the lawyer. Coregis Ins. Co. v. Law Offices of Carole f, Kafrissen, 186 F. Supp. 24 567, ( E.D. Pa. 2002), (rev. on other grounds, 2003 U.S. App.Lexis 1806). This question involves the attorney informing the client what was told to the attomey by a third party. ‘The privilege is simply inapplicable. Robertson v. Allstate, 1999 U.S. Lexis 1999, Further, if the client and the attorney decided to commit the tort of defamation in response to the Ferrier article, the privilege is not applicable. 2Case 2:05-cv-01099-ER Document 0 Filed 11/21/05 Page 23 of 49 QUESTION TWENTY-TWO Q After you received the phone call from Marty Singer, did you make any arrangements with the National Enquirer to give them an interview? (9/29/05, 152) Ina diversity case, the issue of attomey-client privilege is decided according to Pennsylvania law. The privilege is codified at 42 Pa. Cons. Stat. Ann. § 5928. The patty resisting discovery must establish: “(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar of @ court, or his or ber subordinate, and is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which the attorney was informed by the client without the presence of strangers for the purpose of securing primarily either an opinion of law, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or tort, and the privilege has been claimed and not waived by the client.” Rhone-Poulene Rorer, Inc, v. Home Indemnity Co,, 32 F.3d 851, 862 (34. Cir. 1994) ‘The attorney client privilege applies to statements made by the client not those by the attorney to the client unless the disclosure would reveal communications made from the client to the lawyer. Coregis Ins. Co. v. Law Offices of Carole f. Kafrissen, 186 F. Supp. 24.567, (ED. Pa. 2002), (rev. on other grounds, 2003 U.S. App.Lexis 1806). This question involves the attommey informing the client what was told to the atiomey by a third party. The privilege is simply inapplicable. Robertson v. Allstate, 1999 USS. Lexis 1999. Further, ifthe client and-the attomey decided to commit the tort of defamation in response to the Ferrier article, the privilege is not applicable. 22Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 24 of 49 QUESTION TWENTY-THREE Q_ Did someone negotiate your interview with the Enquirer? MR. O'CONNOR: Don't answer that question ifit was an attorney. If it was not an atiomey, you can answer the question. THE WITNESS: I cannot answer the question. (9/2905, 155) It was clearly implied that the person who negotiated the story with the Enquirer which lead to the defamation action was an attorney. Ina diversity case, the issue of attomey-client privilege is decided according to Pennsylvania law. The privilege is codified at 42 Pa. Cons. Stat. Ann. § 5928. The party resisting discovery must establish: “(I) the asserted holder of the privilege is or sought fo become a client; (2) the person to whom the communication was made is a member of the bar of a court, or his or her subordinate, and is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which the attorney was informed by the client without the presence of strangers for the purpose of securing primarily either an opinion of law, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or tort, and the privilege has been claimed and not waived by the client.” Rhone-Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 862 (3d. Cir, 1994) The attorney client privilege applies to statements made by the client not those by the attorney to the client unless the disclosure would reveal communications made from the client to the lawyer. Coregis Ins. Co. v. Law Offices of Carole f. Kafrissen, 186 F. Supp. 2d 567, ( E.D. Pa. 2002), (rev. on other grounds, 2003 U.S. App-Lexis 1806). This question involves the attorney informing the client what was told to the attorney by a third party. ‘The privilege is simply inapplicable, Robertson y, Allstate, 1999 U.S. Lexis 1999. Further, if the client and the attorney decided to commit the tort of defamation in response to the Fetrier article, the privilege is not applicable. 23Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 25 of 49 QUESTION TWENTY-FOUR BY MS. TROIANI: Q Did you have a written contract with the Enquirer to give this interview? MR. O'CONNOR: I'm not going to allow anything like that to get in. allowed him to answer the question it was a contract. I'm not going to allow him to divulge the discussions he and his attorney had with the Enquirer in connection with the article. (9/29/05, 156) In fact, Plaintiff secks to question Defendant about the negotiations with the National Enquirer. Initially, counsel took the position that the contract was privileged. It is believed that he has now reversed himself; however, he continued to object to the circumstances surrounding the negotiation of the contract and has failed to provide the contract to Plaintiff. Plaintiff seeks the Court’s order that the document be provided and that plaintiff be permitted to question defendant about it and the circumstances surrounding its formation. ‘The contract is relevant to the defamation claim as itis direct proof of defendant's intention to divert the public from the truth of plaintifi’s allegations by defaming her. Further if the attorney participated in defamation scheme, the attorney is also liable to the Plaintiff. Ina diversity case, the issue of attomey-client privilege is decided according to Pennsylvania law. The privilege is codified at 42 Pa. Cons. Stat. Ann. § 5928, The party resisting discovery must establish: “(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar of a court, or his or her subordinate, and is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which the attorney was informed by the client without the presence of strangers for the purpose of securing primarily either an opinion of law, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or tort, and the privilege has been claimed and not waived by the client.” Rhone-Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 862 (34. Cir. 1994) The attorney client privilege applies to statements made by the client not those by the attorney to the client unless the disclosure would reveal communications made from the client to the lawyer. Coregis Ins. Co. v. Law Offices of Carole f. Kafrissen, 186 F. Supp. 2d 567, ( E.D. Pa, 2002), (rev. on other grounds, 2003 U.S. App.Lexis 1806). This question involves discussions with third parties. The privilege is simply inapplicable. Robertson v. Allstate, 1999 U.S. Lexis 1999, Further, if the client and the attomey decided to commit the tort of defamation in response to the Ferrier article, the privilege is not applicable. 24Case 2:05-cv-01099-ER Document SO Filed 11/21/05 Page 26 of 49 QUESTION TWENTY-FIVE, BY MS. TROIANI: Did you make any agreement with the Enquirer that if they didn't print Beth Ferricr's story you would give them an interview? Although defendant eventually answered this question in the affirmative, counsel’s interruptions were so disruptive that plaintiff requests that the questions be re-asked after counsel is instructed to refrain from interfering with the cross-examination. (9/29/05, 14-161) Federal Rule of Civil Procedure 30(c) ; Hail v. Clifton Precision, 150 F.R.D. 525 (U.S.E.D. 1993) and Applied Telematics, Inc. v. Sprint Corporation, 1995 U.S. Dist. LEXIS 2191 25Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 27 of 49 QUESTION TWENTY-SIX Defendant admitted that he agreed to give an exclusive interview to the National Enquirer in exchange for their agreement to not print the Beth Ferrier story. He was then questioned as to his knowledge of the Beth Ferrier story, as follows Q. _ Mlclarify that. That's fair. Did someone read to you Beth's story that she had given to the National Enquirer? A. Yes. Q. When was that? ‘A. That was before it was supposed to come out, Q Did she say anything in that story different than the one that we reviewed this moming? ‘A. I think that I will not say anything because it was read to me by my counsel. (9/29/05, 169-170) Defendant objected because apparently Mr. Schmidt was tive attorney who read the Beth Ferrier article to Defendant and apparently Mr. Schmidt was present during the negotiations with the Enquire. Defendant admitted that he prevented the article being published because he believed it bolstered Plaintiff's allegations against him. If the Defendant and his attorney in response decided to defame Plaintiff in order to discredit her, then the privilege is inapplicable. Attomeys cannot assist clients in committing intentional torts. Ina diversity case, the issue of attomey-client privilege is decided according to Pennsylvania law, The privilege is codified at 42 Pa. Cons. Stat. Ann. § 5928. The party resisting discovery must establish: “(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar of court, or his or her subordinate, and is acting as a lawyer in connection with the communication; (3) the communication relates to a fact of which the attomey was informed by the client without the presence of strangers for the purpose of securing primarily either an opinion of law, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime or tort, and the privilege has been claimed and not waived by the client." Rhone-Poulene Rorer, Inc. , Home Indemnity Co., 32 F.3d 851, 862 (3d. Cir. 1994) “The attorney client privilege applies to statements made by the client not those by the attomey to the client unless the disclosure would reveal communications made from the client to the lawyer. Coregis Ins. Co. v. Law Offices of Carole f. Kafrissen, 186 F. Supp. 2d 567, ( B.D. Pa, 2002), (rev. on other grounds, 2003 U.S. App.Lexis 1806). This question involves discussions with third parties. The privilege is simply inapplicable. Robertson v. Allstate, 1999 U.S. Lexis 1999. Further, if the client and the attorney decided to commit the tort of defamation in response to the Ferrier article, the privilege is not applicable, 26Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 28 of 49 QUESTION TWENTY-SEVEN Q Were you saying in this statement that Andrea was trying to exploit you because of your celebrity status? (9/29/05, 181) The National Enquirer article which is the subject of Plaintif?'s defamation claim was read to Defendant. He was then questioned about his statements in the article, ‘The question directly relates to Defendant's intention. It is believed that discovery will reveal that the Enquirer permitted Defendant to write his own “story” and they agreed to print it, knowing that it was defamatory. It is further believed that the Defendant had the ability to edit the story before it was printed, Not only is intention relevant to a defamation claim, it is also relevant to establish the malice under Plaintiff's punitive damages claim, Defendant's objection was that the “article is a document which speaks for itself” To the contrary, defamation may be direct or implied. Sprague v. ABA, 276 Supp. 2d 365 (E.D. Pa. 2003) The evidence sought by this question tends to prove Defendant's knowledge when he gave his story and apparently edited it before it was published. Federal Rule of Evidence 401, 20Case 2:05-cv-01099-ER Dacument 50 Filed 11/21/05 Page 29 of 49 QUESTION TWENTY-EIGHT Q. Following what I just read to you, it says, a published report states that the woman's mother called Cosby before her daughter went to the police and the comedian was under the impression she was after hush money. And that is also in quotes. A. But that's not me, I didn’t say that, Q _Itsays the comedian, quote, was under the impression she was after hush money, end quote, ‘MR. O'CONNOR: That's not a correct statement. MS. TROIANI: A published report states that the woman's mother called Cosby before her daughter went to the police and the comedian, quote, was under the impression, end quote, she was after hush money. MR, O'CONNOR: But the she was afler hush money is not in quotes, it's referring not to this article, but another report. If you have that report, let's look at it, BY MS, TROIANI: Q Did you say that? ( 9/29/05, 183) Once again, defense counsel improperly interjected himself into the testimony so that the question is now related to what defense counsel said, The defamatory article apparently refers to another statement which Defendant made at another time. Plaintiff was seeking information as to whether or not Defendant made that statement, and if'so, when and to whom he made it. Further, if as believed, Defendant “ ghosted “ the article or was permitted to edit it before it was published, the questioned statement is direct evidence of defamation. Federal Rule of Evidence 401; Federal Rule of Civil Procedure 30(c) ; Hail v. Clifton Precision, 150 F.R.D. 525 (U.S.E.D. 1993) and Applied Telematics, Inc. v, Sprint Corporation, 1995 U.S. Dist. LEXIS 2191 28Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 30 of 49 QUESTION TWENTY-NINE Q_ Have you offered any other woman money for their education to prevent them from embarrassing you? (9/29/05, 200) In the defamatory article, Defendant claimed that he tries to help people and they take advantage of him. The clear implication of the article was that he had been the victim of an extortion plot in the past and now he was the victim again. In fact, he initiated the idea of giving Plaintiff funds for “education”, which neither she nor her parents accepted. He admitted that he had given one of the Rule 415 witnesses money for “education.” This question tends to establish that his offer of educational funds to Plaintiff was not altruistic, as he stated in the defamatory article, but rather was in fact an offer of “hush money” initiated by Defendant. It tends to prove not only the defamatory nature of the article but also a “consciousness of guilt” and is relevant to his, credibility. Federal Rule of Evidence 401 Itis also anticipated that Defendant will attempt to introduce evidence of good character through the testimony of individuals who have been the recipient of educational funds from Defendant. ‘The corruption of the funds by Defendant's use of the money to compensate women he has similarly victimized is admissible to rebut evidence of good character. Federal Rules of Evidence 404, 405. 29Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 31 of 49 QUESTION THIRTY Q. Let's go back to my question, which is, have you ever offered an educational trust to any woman with whom you have had sexual relations? (9/29/08, 202) In the dofamatory article, Defendant claimed that he tries to help people and they take advantage of him, The clear implication of the article was that he had been the victim of an extortion plot in the past and now he was the victim again. In fact, he initiated the idea of giving Plaintiff funds for “education” which neither she nor her parents accepted. He admitted that he had given one of ‘the Rule 415 witnesses money for “education.” This question tends to establish that his offer of educational funds to Plaintiff was not altruistic, as he stated in the defamatory article, but rather was in fact an offer of “hush money” initiated by Defendant. It tends to prove not only the defamatory nature of the article but also a “consciousness of guilt.” Federal Rule of Evidence 401, It is also anticipated that Defendant will attempt to introduce evidence of good character through the testimony of individuals who have been the recipient of educational funds from Defendant. ‘The corruption of the funds by Defendant's use of the money to compensate women he has similarly victimized negates evidence of good character. Federal Rules of Evidence 404, 405. 30Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 32 of 49 QUESTION THIRTY-ONE Q. Have you ever offered an educational trust to any woman with whom you've had consensual sexual relationship with? (9/29/05, 202) Defendant admitted to the police and in his deposition that the plaintiff and her mother did not ask for money or the “educational trust” which he called to offer to her after the initial phone conversation with plaintiff and her mother. He further admitted that he had previously used the “educational trust” device to pay one of the Rule 415 witnesses, when he believed that she was going to reveal their liaison, ‘The thrust of plaintiff's defamation claim is that defendant knew that she had not asked for money or attempted to extort or embarrass him when he gave that statement to the police and the National Enquirer. In the defamatory article, Defendant claimed that he tries to help people and they take advantage of him. The clear implication of the article was that he had been the victim of an extortion plot in the past and now he was the victim again, In fact, he initiated the idea of giving Plaintiff funds for “education” which neither she nor her parents accepted. He admitted that he had given one of the Rule 415 witnesses money for “education.” This question tends to establish that his offer of educational funds to Plaintiff was not altruistic, as he stated in the defamatory article, but rather was in fact an offer of “hush money” initiated by Defendant. It tends to prove not only the defamatory nature of the article but also a “consciousness of guilt.” Federal Rule of Evidence 40l. Tris also anticipated that Defendant will attempt to introduce evidence of good character through the testimony of individuals who have been the recipient of educational funds from Defendant. The corruption of the funds by Defendant’s use of the money to compensate women he has similarly victimized negates evidence of good character. Federal Rules of Evidence 404, 405. Although, the question relates to consensual relationships, itis relevant to this matter because Defendant is claiming that his sexual assault upon Plaintiff was consensual. He cannot avoid answering questions because he has determined that the relationship was consensual, when in fact the other party asserts that it was not. 31Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 33 of 49 QUESTION THIRTY-TWO Q. How does one get an educational trust from you or your family? (9/29/05, 206) Defendant admitted to the police and in his deposition that the plaintiff and her mother did not ask for money or the “educational trust” which he called to offer to her after the initial phone conversation with plaintiff and her mother. He further admitted that he had previously used the “educational trust” device to pay one of the Rule 415 witnesses, when he believed that she was going to reveal their liaison. ‘The thrust of plaintiff's defamation claim is that defendant knew that she had not asked for money or attempted to éxtort or embarrass him when he gave that statement to the police and the National Enquirer, In the defamatory article, Defendant claimed that he tries to help people and they take advantage of him, ‘The clear implication of the article was that he had been the victim of an extortion plot in the past and now he was the victim again. In fact, he initiated the idea of giving Plaintiff funds for “education” which neither she nor her parents accepted. He admitted that he had given one of the Rule 415 witnesses money for “education.” This question tends to establish that his offer of educational funds to Plaintiff was not altruistic, as he stated in the defamatory article, but rather ‘was in fact an offer of “hush money” initiated by Defendant. It tends to prove not only the defamatory nature of the article but also a “consciousness of guilt.” Federal Rule of Evidence 401. Itis also anticipated that Defendant will atfempt to introduce evidence of good character through the testimony of individuals who have been the recipient of educational funds from Defendant. The corruption of the funds by Defendant’s use of the money to compensate women he has similarly victimized negates evidence of good character. Although, the question relates to consensual relationships, it is relevant to this matter because Defendant is claiming that his sexual assault upon Plaintiff was consenswal, He cannot avoid answering questions because he has determined that the relationship was consensual, when in faot the other party asserts that it was not.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 34 of 49 QUESTION THIRTY-THREE Q. Are there any criteria for these educational trusts? (9/29/05, 206) Defendant admitted to the police and in his deposition that the plaintiff and her mother did not ask for money or the “educational trust” which he called to offer to her after the initial phone conversation with plaintiff and her mother. He further admitted that he had previously used the “educational trust” device to pay one of the Rule 415 witnesses, when he believed that she was going to reveal their liaison. The thrust of plaintiff's defamation claim is that defendant knew that she hed not asked for money or attempted to extort or embarrass him when he gave that statement to the police and the National Enquirer. In the defamatory article, Defendant claimed that he tries to help people and they take advantage of him, The clear implication of the article was that he had been the victim of an extortion plot, in the past and now he was the victim again. In fact, he initiated the idea of giving Plaintiff funds for “education” which neither she nor her parents accepted. He admitted that he had given one of the Rule 415 witnesses money for “education.” This question tends to establish that his offer of educational funds to Plaintiff was not altruistic, as he stated in the defamatory article, but rather was in fact an offer of “hush money” initiated by Defendant. It tends to prove not only the defamatory nature of the article but also a “consciousness of guilt.” Federal Rule of Evidence 401 Itis also anticipated that Defendant will attempt to introduce evidence of good character through the testimony of individuals who have been the recipient of educational funds from Defendant. The corruption of the funds by Defendant’s use of the money to compensate women he has similarly victimized negates evidence of good character. Federal Rules of Evidence 404, 405, Although, the question relates to consensual relationships, it is relevant to this matter because Defendant is claiming that his sexual assault upon Plaintiff was consensual. He cannot avoid answering questions because he has determined that the relationship was consensual, when in fact the other party asserts that it was not.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 36 of 49 QUESTION THIRTY-FOUR Plaintiff asked defendant to explain in his own words, what happened on the night of the alleged assault. As his testimony grew more and more inconsistent with his statement to the police, counsel interrupted and insisted that he be permitted to read the statement, Thereafter, defense counsel improperly terminated the deposition, Plaintiff requests that the Court permit this line of questioning without reference to the statement and further order defense counsel to refrain from making statements or providing defendant with clues during the course of the questioning (9/29/05, 233-245) ‘Once again, defense counsel improperly interjected himself into the testimony. Defendant was being questioned about his recollection of the events of the night of the sexual assault. His version differed from the one he gave to the police. Defendant was NOT being question about the statement, Yet, defense counsel choose to terminate the deposition because he was not permitted to read the statement to the Defendant. Even if the questioning concerned the statement, Rule 613 of the Federal Rules of Evidence is unequivocal that the statement does not need to be shown to the deponent during the questioning. Counsel’s conduct at this time was so clearly in contravention of the Rules that sanctions are warranted, Federal Rules of Evidence 401; 613; Federal Rules of Civil Procedure 30(c); 37 (a)(4) ; Hall v. Clifton Precision, 150 ERD. 525 (US.ED. 1993) and Applied Telematies, Inc. v. Sprint Corporation, 1995 US, Dist. LEXIS 2191 34,Case 2:05-cv-01099-ER Document SO Filed 11/21/05 Page 36 of 49 QUESTION THIRTY-FIVE Plaintiff attempted to question defendant about Gladys Rodgers, a Woman who lived at his house in Pennsylvania for almost twenty years and who was evicted from the premises. Counsel was prohibited from asking questions about Ms. Rodgers’ role at the house; her relationship with defendant and her knowledge of his relationships with women with whom he was sexually active. It is believed that Ms. Rodgers has information concerning these matters and Plaintiff wishes to delve into not only those aspects but what if any impeachment may be introduced at trial against Ms. Rodgers by Defendant if she is called as a witness for Plaintiff. (9/28/05, 20) The question is calculated to lead to evidence which may be put forth by defendant to impeach the witness at trial. The parties stipulated that all objections except as to form are reserved for time of trial, Federal Rule of Civil Procedure 32(4)(3)(A), provides that objections as to materiality and relevancy are not waived if not raised at the deposition, Federal Rule of Civil Procedure 26 (b\(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information, 35Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 37 of 49 QUESTION THIRTY-SIX Q Did you have Gladys Rodgers sign a confidentiality agreement? (9/28/05, 21) ‘The question is calculated to fead to evidence which may be put forth by defendant to impeach the witness at trial, The parties stipulated that all objections except as to form are reserved for time of trial, Federal Rule of Civil Procedure 32(d)(3)(A), provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. 36Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 38 of 49 QUESTION THIRTY-SEVEN Q Did you ever tell Gladys Rodgers about any relationship you had with a woman other than your wife? (9/28/08, 22) ‘The question is calculated to iead to evidence which may be put forth by defendant to impeach the witness at trial. The parties stipulated that all objections except as to form are reserved for time of trial. Federal Rule of Civil Procedure 32(d)(3)(A), provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information, 37Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 39 of 49 QUESTION THIRTY-EIGHT Q Getting back to Gladys Rodgers, did you ever confide in Gladys Rodgers concerning any woman with whom you were having a sexual relationship? (9/28/05, 29) The question is calculated to lead to evidence which may be put forth by defendant to impeach the witness at trial. If Ms. Rodgers states that Defendant in fact confided in him, Plaintiff has the right to inquire if Defendant agrees with that statement. Defendant testified that there were certain people with him he-could speak about his infidelities.( 9/28/05, 190) This question is directed to determining who they are. The parties stipulated that all objections except as to form are reserved for time of trial. Federal Rule of Civil Procedure 32(4)(3)(A), provides that objections as to materiality and relevancy are not waived if not raised at the deposition, Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. 38Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 40 of 49 QUESTION THIRTY-NINE Q. Why do you see Dr. Holden? (9/28/05, 40) Plaintiff seeks to question Defendant about his medical history. This area is relevant to Defendant’s access to drugs which may have the qualities similar to the one given to Plaintiff. It is also relevant to Defendant's physical condition which would account for the sexual propensities recounted by the Federal Rule of Evidence 415 witnesses and also may reveal physical conditions which would be contra-indicated for the drug Defendant claims to have administered to Plaintiff. The question is calculated to lead to evidence which may be put forth by defendant to impeach the witness at trial. The parties stipulated that all objections except as to form are reserved for time of trial. Federal Rule of Civil Procedure 32(4)(3)(A), provides that objections as to materiality and relevancy are not waived if not raised at the deposition, Federal Rule of Civil Procedure 26 (b)(1) pemmits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 41 of 49 QUESTION FORTY Q. Have you ever seen any physician for any vascular issues? (9/28/05, 43) Plaintiff seeks to question Defendant about his medical history. This area is relevant to Defendant’s access to drugs which may have the qualities similar to the one given to Plaintiff. It is also relevant to Defendant’s physical condition which would account for the sexual propensities recounted by the Federal Rule of Evidence 415 witnesses and also may reveal physical conditions which would be contra-indicated for the drug Defendant claims to have administered to Plaintiff. ‘The question is calculated to lead to evidence which may be put forth by defendant to impeach the witness at trial. The parties stipulated that all objections except as to form are reserved for time of trial, Federal Rule of Civil Procedure 32(4)(3)(A), provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b\ 1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead fo admissible information, 40Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 42 of 49 QUESTION FORTY-ONE Q Have you ever used the William Morris Agency for personal matters? A Yes. Q. What type ofpersonal matters? (9128/05, 91) Several people have given statements to the police and others that Defendant used a modeling agency in Denver to supply him with young women, many of whom claim to have been victimized by Defendant, In the instant case, Defendant in his role as “mentor” sent Plaintiff to New York to meet with a representative of the William Momris Agency. A representative of the agency called Plaintif's home in an attempt to set up a meeting with Defendant in Florida after Plaintiff's mother confronted Defendant. Defendant used the agency to funnel money to one of the Rule 415 witnesses. Defendant testified that from the first time he saw Plaintiff he decided to have a sexual relationship with her, a fact of which she was unaware, A fair reading of his testimony indicates that to achieve his goal, he led her to believe that he was het mentor. The William Morris Agency’s knowledge and role in this charade, which apparently has been repeated many-times over the years, is relevant to the instant claim and may lead to the discovery of evidence which would result in the amendment of the complaint to add other defendants. It is inconceivable that the Agency did not know of defendant’s longstanding difficulties with women and plaintiff has the right to explore this area. Despite that knowledge, the Agency not only permitted defendant to libel plaintif, it is anticipated that discovery will establish , it also used other celebrities under contract to them fo publicize that stander, in order to preserve their economic interest in defendant. Such testimony is relevant to Plaintiff's claim. Federal Rule of Evidence 401 aCase 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 43 of 49 QUESTION FORTY-TWO Q. Well, you asked the William Morris Agency or someone at the William Morris “Agency to call Andrea after you had gotten a phone call from her mother; is that correct? A Yes. Q. Is that the first time you ever asked the William Morris Agency to get involved in a personal matter? A. No. Q What other personal matters have they handled for you? (9/28/05, 95) Several people have given statements to the police and others that Defendant used a modeling, agency in Denver to supply him with-young women, many of whom claim to have been vietimized by Defendant. In the instant case, Defendant in his role as “mentor” sent Plaintiffto ‘New York to meet with a representative of the William Morris Agency. A representative of the agency called Plaintiff's home in an attempt to set up a meeting with Defendant in Plorida after Plaintiff's mother confronted Defendant, Defendant used the agency to funnel money to one of the Rule 415 witnesses. Defendant testified that from the first time he saw Plaintiff he decided to have a sexual relationship with her, a fact of which she was unaware. A fair reading of his testimony indicates, that to achieve his goal, ke-led her to believe that he was her mentor. The William Morris Agency's knowledge and role in this charade, which apparently has been repeated many times over the years, is relevant to the instant claim and may lead to the discovery of evidence which would result in the amendment of the complaint to add other defendants. It is inconceivable that the Agency did not know of defendant’s longstanding difficulties with women, and plaintiff has the right to explore this area, Despite that knowledge, the Ageney not only permitted defendant to libel plaintiff, it is anticipated that discovery will establish , it also used other celebrities under contract to them to publicize that slander, in order to preserve their economic interest in defendant. Such testimony is relevant to Plaintiff's claim, Federal Rule of Evidence 401. 42Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 44 of 49 QUESTION FORTY-THREE ‘The questions concern the call from Peter Weiderlight of the William Morris Agency to Plaintiff's home after she and her mother told Defendant that they only wanted an apology. Q What did you tell Peter that caused him to make this phone call? A. Ifhe would call and find out if they were willing to come to Miami, 1 would pay for air travel and the hotel expense. Q Did he ask you why you wanted that to occur? A. No. Q. Had you asked him to make similar arrangements in the past? (9/28/05, 98) Several people have given statements to the police and others that Defendant used a modeling agency in Denver to supply him with young women, many of whom claim to have been victimized by Defendant. In the instant case, Defendant in his role as “mentor” sent Plaintiff to New York fo meet with a representative of the William Morris Agency. A representative of the agency called Plaintiff's home in an attempt to set up a meeting with Defendant in Florida after Plaintiff's mother confronted Defendant. Defendant used the agency to funnel money to one of the Rule 415 witnesses. Defendant testified that from the first time he saw Plaintiff he decided to have a sexual relationship with her, a fact of which she was unaware, A fair reading of his testimony indicates that to achieve his goal, he led her to believe that he was her mentor. The William Morris Agency's knowledge and role in this charade, which apparently has been repeated many times over the years, is relevant to the instant claim and may lead to the discovery of evidence which would result in the amendment of the complaint to add other defendants. It is inconceivable that the Agency did not know of defendant’s longstanding difficulties with women, and plaintiff has the right to explore this area, Despite that knowledge, the Agency not only permitted defendant to libel plaintiff, itis anticipated that discovery will establish , it also used other celebrities under contract to them to publicize that slander, in order to preserve their economic interest in defendant. Such testimony is relevant to Plaintiff's claim, Federal Rule of Evidence 401 43Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 45 of 49, QUESTION FORTY-FOUR, Defendant was questioned concerning an interview with the police in which Peter ‘Wiederlight said that in the past eighteen months, he booked three flights for you and all of them were women, Defendant stated that he didn’t know if the statement were correct. Q. Do you recall flying any other women to your concerts who were not related to the concerts? (9/28/05, 100) ‘Several people have given statements to the police and others that Defendant used a modeling agency in Denver to supply him with young women, many of whom claim to have been victimized by Defendant. In the instant case, Defendant in his role as “mentor” sent Plaintiff to New York to meet with a representative of the William Mortis Agency. A representative of the agency called Plaintiff's home in an attempt to set up a meeting with Defendant in Florida after Plaintiff's mother confronted Defendant. Defendant used the agency to funnel money to one of the Rule 415 witnesses. Defendant testified that from the first time he saw Plaintiff he decided to hhave a sexual relationship with her, a fact of which she was unaware. A fair reading of his testimony indicates that to achieve his goal, he led her to believe that he was het mentor. The William Mortis Agency’s knowledge and role in this charade, which apparently has been repeated many times over the years, is relevant to the instant claim and may lead to the discovery of evidence which would result in the amendment of the complaint to add other defendants, Itis inconceivable that the Agency did not know of defendant’s long standing difficulties with woman and plaintiff has the right to explore this area. Despite that knowledge, the Agency not only permitted defendant to libel plaintiff, itis anticipated that discovery will establish, it also used other celebrities under contract to them to publicize that slander, in order to preserve their economic interest in defendant, Such testimony is relevant to Plaintiff's claim. Federal Rule of Evidence 401 44Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 46 of 49 QUESTION FORTY-FIVE Tt appears that the defense in this case is to blame the victim. Along those lines, Defendant questioned Plaintiff as to whether it is “normal” for a single woman to visit a married ‘man at his home at a time that bis wife is not there, Defendant was questioned as follows: Q. AsTrecall your counsel asked Andrea if she thought it was appropriate for an unmarried woman to come to your house when she would be alone with you. Do you believe it’s appropriate for an unmarried woman to come to your house when she would be alone with you? A No Q. And have you in the past asked unmarried women to come to your house? (9/28/05, 102) ‘This question is directly related to the questions asked of Plaintiff and is relevant to Defendant's credibility. Federal Rule of Evidence 401. 45Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 47 of 49, QUESTION FORTY-SIX Q. Have yon told her about other women who have not come forward in the newspapers? A. No. Ha, Ha,I got you. I want you to just -- you have to understand, where you make the statement that and this is for my own benefit, that's - i's a part of my personality, but I ‘want to also say that there are people, married men and married women who can sit around in. their own comfortable company and say what they're doing. I mean, there are women who perhaps after being with me would call a friend of theirs. Q And who are they? A; Idon't know who these women are. I'm saying there are women ~ I'm talking broad spectrum people who after they've been with me, somewhere, somehow, not even sexually, ‘wio will make a call to a friend and say, I had so and so, I was with him. I don't even know the woman, Tdon't even know the person, Q Have you had women who you do know and who you have been with tell other people about having a sexual encounter with you? (9/27/05, 179-180) Although defense counsel, admitted that Defendant opened the dooro the question, he instructed his client not to answer it. This was simply a follow up question to Defendant’s previous response.Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 48 of 49 QUESTION FORTY-SEVEN Q. Do you also believe that there would be a financial consequence to you if the public believed that the drug you gave her was something other than Benadryl? AL Yes. Q. Have you ever used illegal drugs? (9/28/05, 185) ‘The parties stipulated that all objections except as to form are reserved for time of trial. This stipulation mirrors Federal Rule of Civil Procedure 32(d)(3)(A), which provides that objections as to materiality and relevancy are not waived if not raised at the deposition. Federal Rule of Civil Procedure 26 (b)(1) permits discovery not only of information relevant to the claim and the defense but also information which although not admissible is reasonably calculated to lead to admissible information. Defendant absurdly objected that it is somehow improper for Plaintiff to accuse him of lying about giving her Benedryl. Defendant’s credibility is always in issue. A central issue of this case is the identity of the drug used by defendant to deprive plaintiff of her ability to resist his advanees, On the night in question, plaintiff told defendant that she was under 2 lot of stress due to her contemplating changing her job and returning to Canada. Defendant left the room and ‘when he returned he had three blue pills in his hand. He told her to take them. Previous to this incident, the parties had engaged in discussions about herbal medications, (Tr. 9/28/05, 33), and defendant had his homeopathic practitioner speak with plaintiff. Consequently, plaintiff asked defendant if the pills were herbal. He replied that they were “Your friends, I have three friends for you to make you relax.” (Tr. 9/29/05, 234) Defendant contends that he gave Plaintiff the over the ‘counter medication Benedryl. Plaintiff intends to introduce expert testimony that Benedry! would not produce the sedative almost immobilization effect that Plaintiff experienced. Testimony about Defendant's access to drugs and those with whom he shares drugs may lead to evidence as to what it was that he gave Plaintiff. 47Case 2:05-cv-01099-ER Document 50 Filed 11/21/05 Page 49 of 49 CERTIFICATE OF SERVICE Thereby certify that on November 21, 2005, the undersigned were served in the following manner, a trie and correct copy of : Plaintiff's Motion to Compel Discovery NAME MANNER ‘The Honorable Eduardo C, Robreno ‘Via Hand Delivered by Courier Eastem District of Pennsylvania US. Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106 Office of the Clerk of Court ‘Via Hand Delivered by Courier Eastern District of Pennsylvania U.S. Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106 Patrick J. O’Connor, Esquire ‘Via Hand Delivered by Courier Cozen O’Connor 1900 Market Street Philadelphia, PA 19103 Andrew D. Schau, Esquire Via First Class Mail Patterson Belknap Webb & Tyler, LLP 1133 Avenue of the Americas New York, NY 10036 Attorfiey LD. No. 21283 Attorney for PlaintiffCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 4of66 (TB) IN THE UNITED :STATHS DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ANDREA CONS'TAND, CIVIL ACTION Plaintiff v NUMBER 05-1099 WILLIAM H, COSBY, UR., Defendant : MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION CONCERNING CONDUCT OF DEFENDANT’S DEPOSITION AND MOTION FOR SANCTIONS Plaintiff respectfully requests that this Honorable Court order Defendant to adhere to the guidelines set forth in Hall v. Clifton Precision, 150 F.R.D. 525 (B.D. Pa. 1993), and further to order Defendant to submit to a full and complete deposition at his expense, and to sanction Defendant and/or his counsel by requiring them to reimburse Plaintiff for the costs of the Defendants deposition, and to impose other sanctions, as the Court deems appropriate. Federal Rule of Civil 30(d) (3) authorizes the imposition of sanctions if the court finds that “any impediment, delay, or other conduct has frustrated the fair examination of the deponent." Further, this Honorable Court has promulgated certain procedures which state that if a discovery dispute requires the “Court’s intervention, the Court customarily imposes sanctions upon the non-prevailing party unless the position of the non- party is found to have been substantially justified.” As is evident below, defense counsel’s conduct cannot be justifiedCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 5 of 66 under any circumstances. Counsel engaged in conduct demeaning to the profession of law, deliberately obstructive, and unnecessarily vexatious, which conduct impeded the fair examination of the deponent Defendant was deposed on September 27 and 28, 2005. Defense counsel was so obstructive in the deposition that he denied Plaintiff her right to an appropriate interrogation. Defense counsel openly coached the witness; conferred with him about the questions which were being asked; interrupted the questioning with long winded and repetitive speaking objections; directed defendant not to answer questions, (when privilege was not in issue), inappropriately asserted a claim of privilege to numerous questions and lines of questioning; and ultimately improperly terminated the deposition. Defense counsels conduct was demeaning and disrespectful and beyond the pall of normal advocacy. His conduct so far exceeds the bounds of appropriate behavior that the majority, (but not all)!, of the conduct is reproduced herein so that this Honorable Court may have the full flavor of the obstructive nature of counsel's actions A sampling of the actions which are the subject of this ‘ the Court has had the benefit of reading both days of the deposition, as well as, the Motion to Compel which has been simultaneously filed with the Motion. Plaintiff is not waiving her challenges to Defense Counsel's conduct on those days, but respectfully submits that the fifty pages of examples cited herein are sufficient proof to support Plaintiff's request for reliefCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 6 of 66 motion are as follows: 1. QUESTIONS RELATING TO A POLICE DOCUMENT Defendant was being questioned about a document which was generated by the police. It listed two social security numbers and addresses “associated with” defendant. The questions were directed at defendant’s knowledge as to why those items would be “associated with” him. Prior to the deposition, in open Court, defense counsel had agree to provide plaintiff with information concerning defendant's residences. He did not provide the information. ‘The following exchange occurred. MS. ‘TROIANI There can't be an agreement if we both don't agree. MR. ©'CONNOR: You're never going to learn unless you listen. The agreement with the court was that I would allow Mr. Cosby to be questioned on residences where he lives. {I indicated to the court in front of counsel that there was a listing of some 20 properties, referenced on a policy of insurance that we blocked out with the understanding that when it came time for his deposition, I would allow counsel to explore with Mr. Cosby where he lives. Now, as far as I'm concerned, that's fairly simple questions. Where do you reside and he would answer those questions. She is not going to get a listing from Mr. Cosby of other assets and property which he owns. And I feel comfortable 3Case 2:05-cv-01099-ER Document 48 Filed 12/21/05 Page 7 of 66 in that direction. MS. TROTANI: I asked him what his residences were and he said Massachusetts. He did not go through which one of these properties and you did not provide it before the deposition. MR. O'CONNOR: He told you he resided in Cheltenham. MS. TROTANI: No, he did not. MR. O'CONNOR: He told you he resided in New York, he told you he resided in Massachusetts. You asked him with whom he resides in Massachusetts. I allowed those questions to be asked. I allowed them to be answered. If you want to ask him if he resides in any location in California, I will allow him to answer that. But you go through this litany, I'm not going to allow that. Ask the question, that's the agreement. (9/29/05, 16-17) The line of questioning was twofold. It not only concerned defendant's residences which Defendant had agreed in open court to provide but which were not provided; it also concerned the list generated by the police. Plaintiff had every right to inquire as to the accuracy of the list, and as to defendant's knowledge of why the addresses appeared on the list.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 8 of 66 Furthermore, counsel misrepresented that his client stated that he resided in New York and Cheltenham, and the record does not comport with that statement. As is evident below, counsel repeatedly misstated the testimony and the documents provided by the police. on September 27, 2005, the parties and counsel appeared before this Honorable Court in order to address certain discovery issues which were outstanding, and about which it was anticipated disputes would arise during the deposition. Plaintiff believed that the issues had been resolved by agreement and the Court issued an order finding that the disputes were moot. In fact, Defendant simply did not honor the agreements. 2. QUESTIONS RELATING TO QUAALUDES After defendant testified that he obtained seven prescriptions for Quaaludes, the following testimony was elicited: a. You gave them to other people? A. Yes. (9/29/05, 66) Q. You gave those drugs to other people knowing that it was MR. O'CONNOR: He said he gave it to T- right now. MS. TROIANI: He said other people. He did say other people.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 9 of 66 BY MS. TROIANI: 2 Knowing that it was illegal? +*4MR, O'CONNOR: Whatever the legality of it is, it will stand. I'm instructing him not to answer. He gave the Quaaludes. If it was illegal, the courts will determine that. BY MS, TROTANI: 2 Did you ever get another prescription for Quaaludes from another doctor after that time? MR. O'CONNOR: This is in the '70s? ‘THE WITNESS A No BY MS. TROIANT: Q. Who are the people that you gave the Quaaludes to? MR. O* CONN Keep it to the Jane Does. i'm not going beyond it. I'm instructing him not to answer it beyond the Jane Does. (tr, 9/29/05. 66-68) BY MS. TROTANI: Q. When you got the Quaaludes, was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with? A. Yes. Q. Did you ever give any of those young women theCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 10 of 66 Quaaludes without their knowledge? MR. O'CONNOR: Object to the question. Restrict it to the Jane Does, would you, please. MS. TROIANE: No, I will not MR. O'CONNOR: Do not answer it. MS. TROIANT: It's a discovery deposition THE WITNESS: I misunderstood. Woman, meaning T-----, and not women BY MS, TROIANI: Okay. So, you're saying you never gave the Quaaludes to anyone other than T- MR. 0'CONN( R: Don't answer the question. You can ask all the questions you want about the Jane Does. BY MS. TROIANI: Q. Sir, I want to explain to you, I'm asking you a question. You have every right in the world to say, no, you're misunderstanding me. I just did. Q. Your counsel cannot give you clues, as he is obviously trying to do, that's inappropriate. MR. O'CONNOR: I'm not giving him clues, I'm instructing him not to answer, except in the context of T- -. And you keep violating my objection. We're going to go to court to resolve this. And every time you ask about relationships with otherCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 11 of 66 women with whom he may have had consenting relationships, I'm going to stop it. That's fine. You c MS. TROLAN tainly can -- I understand your objection. There's no other need for you to say except objection. MR. O'CONNOR: I'm going to instruct him not to answer. MS. TROIANI: And you can tell him not to answer. That's fine. But the mere fact that you have made an objection and then I continue to ask a question, which I believe is pertinent and relevant and will lead to the discovery of relevant information is not violative of your objection because your objection is not anything but an objection. BY MS. TROIANI: . Now, let's get back to my questions. And certainly your counsel if he chooses to instruct you not to answer, he will do that. But I nee@ to ask you these questions and I need to understand and the jury needs to understand. Are you saying that you never gave the Quaaludes to any other female but T-- MR. O'CONNOR: Don't answer the question. Rephrase the question. BY MS. TROIANI: Q. Barlier I believe you testified that you had given the Quaaludes to other women; is that correct? MR. O'CONNOR: Do not answer that question. (9/29/05, 69-75)Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 12 of 66 This is a clear illustration of how counsel's remarks influenced | the witness’ testimony. Having unequivocally said that he gave the quaaludes to “other people” upon hearing counsel's thinly i veiled clues, the deponent changed his testimony to a claim of having misunderstood the word women for woman, Further, Counsel | appears to believe that he had taken on the role of judge. Asserting that he had made an objection, and that Plaintiff was “violating” his objection by attempting to place her questions on the record. He seemed to believe that Plaintiff was supposed to abide by his objection and refrain from asking the questions. In addition, Defense Counsel added the words, “in the 70's” to the question. There is no legal proceeding in which one lawyer can simply call out an addendum to the opposing lawyer’s question. Defense counsel persisted in his improper conduct as follows: BY MS. TROTANT: Q. You would agree with me that if you got seven prescriptions for Quaaludes you could still keep those Quaaludes for a mumber of years? A. Yes. Q. And do you know how long after you stopped getting the prescriptions you still had the Quaaludes in your possession? MR. O'CONNOR: You're talking about the 1970s? MS. TROIANI: I'm talking about the Quaaludes.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 13 of 66 MR. O'CONNOR: In the '70s. That's the only time he got them. BY MS, TROIAN. 2. Did you get Quaaludes after the '70s? MR. O'CONNOR: You asked that and he said no. MS. TROIANI: You do not interrupt a deposition to testify, which ig what you're doing. That is a clear violation of a federal rule. (9/29/05, 90) There is no doubt that defense counsel is not permitted to change the meaning of a question, as Mz. 0’Connor did in the above sequence. When the undersigned attempted to continue the questioning the following occurred: (At this time, the court reporter read back from the record as requested.) BY MS, TROIANI: Q. Did you, sir? A. What was my instruction before you all started arguing? I'm sorry ©. I don't know, If your lawyer is instructing you not to answer that, then you can't answer that. MR. O'CONNOR: ‘The instruction was, and it's been asked and anewered, was with T- - in 1976. The witness testified he got Quaaludes during that time frame. There was seven prescriptions over a period of years. You're now asking Quaaludes, he kept -10-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 14 of 66 those Quaaludes I guess in the '@0s, '90s and year 2000. If that's your question whether he kept any prescriptions from the ‘70s filled by this deceased doctor, I'll allow you te answer because that's a relevant question. MS. TROTAN: : That wasn't my question. BY MS. TROIANI: Q. Did you ever obtain Quaaludes again from any other source after the ones that you had been given in the prescription that were no longer available to you? MR. O'CONNOR: What time frame? Don't answer the question. BY MS. TROIANI: Q. Have you ever gotten any prescriptions from any other doctor which drugs would have a similar effect to Quaaludes? MR, O'CONNOR: During what time frame? MS. TROIANI: The time frame we have here is from the 1976 when we have the first Jane Doe that we've been discussing through the year 2004, MR. O'CONNOR: I think that's incorrect. The only Jane Doe that talks about Quaaludes is T----. If you have other Jane Does - MS, TROIANI: I'm not talking about Quaaludes. MR. O'CONNOR: I£ there are any other Jane Doe that talks about any other drugs, I will allow that, but there is none. And you're suggesting there is from '76 to 2005 “ueCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 15 of 66 MS. TROIAN, Mr. O'Connor, you're deliberately disrupting this deposition. Now, you have made that position clear. I believe that you are wrong. We do not agree that the drug that was given to our client was Benadryl. we have the right to explore, especially now that your client has admitted illegally obtaining another drug, which could have a similar effect. We have the right to explore whether or not he has done that, if that is a | pattern in his life. MR. O'CONNOR: Here's what you have a right to explore. You have a right to explore what he gave your client. MS. 'TROIANI: You have made that position clear. And now let's move on. | MR. O'CONNOR: I will not interfere. You do not have a right to suggest that his candid admission in 1976 that he gave this T- Quaaludes, which seems to disturb you, his admission in that regard, continued through 2006. That I'm not going to allow to happen. Stick to the Jane Does, ask whatever questions you want and move on to your client. If you think she got Quaaludes from the '70s, ask the question. MS. TROIANI: You have said that several times, six. I will ask you to stop disrupting this deposition. I assure you that all of these interruptions will be brought to the court. You are clearly in violation of the federal rules. BY MS. TROIANI: “12Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 16 of 66 Q. Have you obtained drugs, any type of drug that would have the same type of effect as Quaaludes from any source since the time you got the Quaaludes to the time that you no longer had an association with our client? MR. O'CONNOR: I'm instructing him again not to answer. MS. TROIANI: That's fine. You keep disrupting this deposition. MR. O'CONNOR: I have a right -- MS. TROTANT No, you do not. You've done it several times. We will move on. MR. O'CONNOR: Let me explain one thing. You want me to stop this deposition? I have a right to put my objection on the record. MS. TROIANI: You have done that. You do not have that right You repeated several times. This is enough. Now, let's move on MR. O'CONNOR: No one is going to threaten me, Dolores. MS. TROIANI: This is enough. MR. O'CONNOR: I've had enough of you with your -- MS. TROIANI: If you want to walk out, you go ahead. MR, O'CONNOR: I'm not walking out. MS. TROIANI: Stop interrupting. MR. O'CONNOR: Do not ever talk to me that way again. MS. TROIANI: Stop interrupting. (9/29/05, 92-98} The issue of Defendant’s willingness and ability to obtain 1B.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 17 of 66 an illegal drug for sexual purposes is crucial to Plaintiff's case. Defense counsel was unscrupulous in his total disregard for not only the Federal Rules of Civil Procedure but also the Pennsylvania Code of Civility. Counsel’s conduct does not represent advocacy, It is turning a deposition into a carnival and in that sense it is a degradation of the process which lawyers take an oath to uphold. At this point in time, despite a previous written agreement to the contrary, counsel took the position that he would not permit the deposition of the defendant to continue beyond 4:00 p.m, that day. It was clearly his intention to consume large periods of time by incessant and repetitive speaking objections. 3. STATEMENT TO POLICE OF RULE 415 WITNESS Defendant was questioned about a Rule 415 witness’ statement, in which she stated that at age 19, she met defendant who had sex with her after giving her Quaaludes. Her statement was ambiguous about whether or not they continued to see each other or simply met again two years later. Defense counsel repeatedly interjected himself into the testimony, giving his version of the incident and once again denying the applicability of Rule 30 (c) to the proceedings. THE WITNESS: A. That's her statement. I don't know. How many years ago are we talking about? 197 what? deCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 18 of 66 MR. O'CONNOR: 6. BY MS. TROIANI: ©. You thought it was later than that? MR. O'CONNOR: He met her two years later. THE WITNESS: A. I meet Ms (Redacted) in Las Vegas. She meets me back stage. I give her Quaaludes. We then have sex. I do not -- I can't judge at this time what she knows about herself for 19 years, a passive personality. (9/29/05, 76-77) A. --- was sweet in her personality. As fer as I was concerned was well-mannered, didn't demand or give a feeling that she was above anyone. If anything, I think she may very well have been very happy to be around the show business surroundings. Q. Star struck? A. You'll have to ask her. @. So, you wouldn't disagree with her when she says in the xeport that she was star struck? MR. O'CONNOR: Object to the form. He just answered the question. He said ask her. Then you asked the same question again. I object to the form of the question. MS. TROTANI: Q. You can answer. -15-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 19 of 63 ‘THE WITNESS: A. What am I doing? MR, O'CONNOR: You can answer. I objected to the form. You already answered it. She said do you agree with her after you already said you have to ask her. I think he's answered your question. ‘THE WETNESS: A. Yes, you have to ask her, please. BY MS. TROIANI: Q. Now, she seems to say in this report that after that initial meeting she did not see you again until she was 21; is that correct? A. I have no idea. MR. O'CONNOR: The question seems she unequivocally states. It's an incorrect statement. She states she spent a two-week period with Mr. Cosby at Lake Tahoe when she was 21. BY MS. TROIANI: Q. I don't think it's clear whether or not you saw her. in between that time. And you don't know if you saw her from the time of the initial contact until when she met you in Lake Tahoe? MR. O'CONNOR: I don't even think he testified he met her at Lake Tahoe. I'm reading the statement. MS. TROIANI: It's cross-examination.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 20 of 66 MR. O'CONNOR: I object to the form of the question because it assumes he testified to that. (9/29/05, 78-80) In this instance, counsel gives his opinion of the question, coaches his client with an answer, which the Defendant immediately adopts and then recaps his version of the previous testimony. 4. DEFENDANT'S RELATIONSHIP WITH WILLIAM MORRIS AGENCY Defendant testified that he called Tom Tllus of the William Morris Agency and asked him to send money to one of the Rule 415 witnesses. He testified that Mr. Illus did not ask him why. He then testified: Q. Have you ever asked him in the past to send money to women? A. I'm not sure. Q. Had you ever had a discussion with him concerning this process where he would act as a conduit for you to send funds to other people? MR. © CONNO) : KE you restrict it to Jane Does, I'11 allow him to answer the question or to Andrea. MS. TROIANI: I believe the court said we can delve into other issues in his life concerning other women that he may or may not have paid. MR. O'CONNOR: I don't believe so. The problem is it's a question -l7-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 21 of 66 of privacy for other consenting adults, if it's occurred. I don't think it would be appropriate. The judge says it is, we'll abide. 1 don't think it's appropriate to bring, if there are other women with a consenting relationship, into the situation. MS. TROIANI: You don't know that they're consenting adults. Mr. Cosby believes Andrea consented. She does not. That's your issue. We've got to know who they are so we can find out from them. MR. O'CONNOR: We do know who they are. Theres 11 of them and you’re on the second one. (9/29/08, 83-84) In this passage, counsel was clearly cluing the witness to only testify about the 11 women, they believe are known to the Plaintiff, and to not reveal any others. He also gave Defendant the clue concerning “consenting adults”, which Defendant then used in his responses. 5. QUESTIONS REQUESTING EXPLANATION OF PREVIOUS ANSWER BY MS. TROIANI: Q. Mr. Cosby, did you believe that T. -would go to the press with her story when you sent her the money? PaHLENo’ Q. You said that after you got off the phone you were angry and you thought about it. What were the possibilities that you thought about? -18-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 22 of 66 MR. O'CONNOR: Object to the form of the question. You can certainly ask him what went through his mind if he recalls. BY MS. TROIANI: Q. What did you think about? MR. O'CONNOR: If anything. MS. ‘TROTAN : He just said he did. (9/29/05, 86-87) Although defendant eventually answered the question, it was improper for defense counsel to interject himself into the questioning. If he had an objection te form, he need only have said the one word. It is then Plaintiff’s counsel’s decision as to whether or not to rephrase the question. In addition, Defendant had just testified that he thought about the call after he got off of the phone and he decided to send the caller money. In view of that testimony Defense counsel’s comment, “If anything” cannot be defended under any circumstances. 6. QUESTIONS REGARDING STATEMENT TO POLICE OF ANOTHER RULE 415 WITNESS BY MS, TROTANI: A. She says she met you 24 years ago at a health club in Las Vegas where she worked as a masseuse. Do you recall meeting a woman who was a masseuse? AL No. Q. She was about 27 years old. You have no recollection of this woman at all? -19-MR. O'CONNOR: Ms. Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 23 of 66 A No. TROIANI: It says she was 25. I'm looking at her statement (9/29/05, 99-100) After the interruption, the questioning continued as follows: happened. AL I don't understand what I'm supposed to say never How do I know she was in a dream-like state? Isn't that introspective? MR. O'CONNOR: THE WETNESS: MS. TROIAN: MR. "CONNOR resent it. go on. MS. TROIANI Do you recall this woman or not? No. sir, do not interrupt my cross-examination Will you please stop telling me what my rights We answered he didn't recall this woman and yet you You're not to interrupt my cross-examination. You could not do it in court, you can't do it here. MR frustrated by his client’s apparent inconsistencies, he resorted (©! CONNOR : ‘TROIANT: (0" CONNOR ‘TROIANI Of course I could do it in court. No, you couldn't. I don't know the last time you've been in court Please do not get personal. (9/29/05, 103-104) Again, defense counsel chose a very low road. Undoubt ably I to personal attacks which increased in frequency, as his client's -20-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 24 of 66 testimony become more and wore unbelievable. BY MS. TROIANI: Q. Are you telling us that this woman has wade up this story about you having sex with her? MR. O'CONNOR: Don't answer. I object to the form of that question. He doesn't recall the woman. If that's his testimony, then he can't testify to what you asked. (9/29/05, 104) There can be no justification for counsel actually answering the questions. BY MS. TROIANI: Q. 0, you are saying then that you never encountered a woman, whether or not you remember what her name was, in Las Vegas that you had dinner with her, gave her a shot of alcohol and that you had sex with her after that? MR. O'CONNOR: That wasn't your earlier question that he said no to. Tt was totally different. Now you've rephrased it to a whole different situation. So, in fairness to the witness, you can answer. That's a totally different question. (9/29/05, 106) ‘The Defendant obediently followed his counsel’s lead and responded by dissecting the two questions. 7. DEFENDANT’ S REFERENCE TO PREVIOUS TESTIMONY The deposition began in the afternoon of September 28, 2005. 21.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 25 of 66 Defendant was questioned about a dinner party he had at his home. ‘The dinner guests included Plaintiff and high level administrators from Swarthmore College and the University of Pennsylvania. Defendant, at first stated that he did not want to reveal the names of the other dinner guests. Upon further questioning, he stated that he did not know the names of the guests other than Plaintiff. The undersigned’s tone of voice was incredulous and the following day Defendant appeared to imply that he did know the names and that I was correct that he deliberately withheld the names, and the following occurred ‘THE WITNESS: A. People come to my house what? Q. People come to your house whose names you don't know. You told us yesterday that you didn't know the names of the people who were at the dinner. So, people do come to your house that you don't know or remember at this point? A. Yes. I said that yesterday, but you know what I was doing yesterday. . No, I don't. What were you doing yesterday? A. Never mind if you don’t know. I don't know this man. This man came to my house. I don't know him. @. Are you suggesting that yesterday you were deliberately not telling us the names of the people at Swarthmore? 22.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 26 of 66 A, I'm not suggesting anything. MR. O'CONNOR: That is so outrageous and inappropriate. I'm going to take a break. I may call the judge on this. I'm not going to put up with this crap, okay? I am tired of you insulting this witness and his voracity (sic). And if you continue with it, I'm shutting it down. MS. TROIANI: I'm here to test his voracity (sic). MR. O'CONNOR: You better not challenge it in this fashion. MS. TROIANI: He just said I knew what he was doing yesterday. And I asked him a follow-up question. MR. O'CONNOR: He answered your question about who attended dinner parties and he identified what their position was and then he couldn't recall their names. And you're suggesting there's some linkage here. BY MS. TROIANI: Q. What did you mean by I knew what you were doing yesterday? MR. O'CONNOR: Who was doing? What you were doing? MS. TROIANI: You understand my question. 1111 have her read it back. (9/29/05, 116-118) It was apparent that defense counsel was concerned as to what his client was about to admi: however, that does not justify his language, nor is it appropriate advocacy to attack -23-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 27 of 66 opposing counsel personally. 8. COUNSEL’S MISSTATEMENTS OF EVIDENCE BY MS. TROTANI: Q. So, this would have then occurred in the 1990s; is that correct? A, I'm not sure about the year or the decade of the Turn of the Century engagements. MR. O'CONNOR: You know that's 21 years ago. Why would you say that? I don't get this. MS. TROIANI: Sir, please do not give clues to the client MR. O'CONNOR: I have to read the statement, because as you well know that we put on the record - MS. TROIANI: I'm done. You cannot interrupt the deposition. Stop interrupting the deposition. MR. O'CONNOR: I apologize. I'm sorry. MS. TROIAN: Thank you. MR. O'CONNOR: Should T go to my corner? BY MS, TROIANT: Q. Let's get back to Beth Ferrier. MR. O'CONNOR: Don't mislead this witness. You know when she met him. MS. TROTAN: I am not misleading a witness. MR. O'CONNOR: You're deliberately misleading the witness on Beth Ferrier. It's over 20 years ago. 24.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 28 of 66 BY MS. TROIANT: Q. Did you not tell me that you knew Jo Farrell in the 1990s? (9/29/05, 121-122) Defense counsel heard Defendant claim to have meet Jo Farrell in the 1990's, Beth Ferrier was introduced to Defendant by Jo Farrell, Again, counsel’s method of cluing the Defendant that he was being inconsistent was to attack opposing counsel and once again provide counsel's version of the events. Thereafter, Defendant was questioned about an newspaper article in which Beth Ferrier revealed her encounter with Defendant . BY MS. TROTANT: Q. So, you know that she's stating that you gave her drugs in order to have sex with her? MR. O'CONNOR: Point that out, please. Give me a reference before we allow the question. MS. TROIANI: Here's your favorite coffee, something I made for you to relax you. MR. O'CONNOR: This is the quote she gave to the newspaper. (9/29/05, 126) BY MS. ‘TROIANT: Q. Do you recall doing that? A. And what happened? -25-out, MR. the MS MR. Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 29 of 66 Q. Do you recall that? A. Excuse me. I gave her drugs, you said, am I correct? Q. Yes. A. Okay. Then you read, here's your favorite coffee. Q. That's because your counsel said he wanted it pointed to him, not to you. O'CONNOR: Because the report never said that. Okay. That's fairness that's not going on here. TROIAN, : I'm reading from the newspaper article. O'CONNOR: It doesn't say drugs, it says coffee, then she passed out. MS. ‘TROTAN: Tt says, about 21 years ago after she ended a month long consensual affair with the entertainer, she said, he drugged her not when she visited him before a performance in Denver, Is that what it says, Mr. O'Connor? O'CONNOR: Give me the reference. WITNESS: What paper is it? O'CONNOR: Nicole Egan, the Daily News. Which reference are we here so I can follow this? She talks about coffee. MS. TROIANI: I'm looking at the fourth paragraph. You have the article in your own folder. I've given you another copy. MR. O'CONNOR: I have it now. BY MS. TROTANI: Q. I'll read this to you. About 21 years ago after -26-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 30 of 66 she ended a month long consensual affair with the entertainer, Reth Ferrier says he drugged her when she visited him before a performance in Denver, Do you agree with that? A. No. MR. O'CONNOR: Read on. BY MS. TROIANI: Q. He said, here's your favorite coffee, something I made to relax you. Do you recall saying that? A. No. Q. She says she drank the coffee, became woozy and next thing she knew several hours had passed and she had no memory of what happened. Did an incident like that ever occur with Beth Ferrier? (9/29/05, 126-128) It is extremely doubtful that Mr. 0’ Connor had such difficulty reading the newspaper article. Further, thie is another illustration of the Defendant's strategy, that is, attempt to divert attention from his misdeeds by constantly accusing opposing counsel of imagined misconduct, in thie case claiming the question was unfair because the article did not say that Defendant drugged Ms. Ferrier when in fact it did. Lawyers should address one another with appropriate decorum and not disparage their profession with wild and unfounded accusations against one another. To advocate on a client‘s behalf is to 21Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 31 of 66 address the facts of the case, not to lodge unfounded accusations at opposing counsel. 9. DEFENDANI’S VIEW OF THE DAILY NEWS The Beth Ferrier article was read to Defendant and he was given the opportunity to admit or deny what Ms. Ferrier said. Instead, he attempted to digress from that line of questioning by claiming that the article was written so as to engender pity for Ms. Ferrier. He was questioned as follows: Q. So, your objection is that they put it in the newspaper? A. No, my objection is that this is a newspaper piece as told to and it's her description of whatever it is at the end of something MR. O'CONNOR: He's denied under oath the bagel story. That's the point. He's already testified to that. (9/29/05, 140) tn fact, that was not the point that his client was making. This time Mr. 0/Connor was unsuccessful in re-focusing his client and the following ensued: ©. So, am I understanding that your point is that the press is manipulating public opinion with this story? A. Don't say that. Say trying to, because when you leave it, it's sort of like this sorrow story of a woman, she left without saying good-bye. The good-bye could have been when he -28-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 32 of 66 said you have to leave. Q. So, the story is accurate, you're just objecting to what? MR. O'CONNOR: Object to the form. MS, TROTANT: I want to understand what you're saying. You don't have to testify to what he’s saying. BY MS. TROIANI Q. Can you answer that question? MR. O'CONNOR: No. Wait. MS. TROIANI: You do not testify, Mr. O'Connor. That's enough of your testifying MR. O*CONNO! Young lady. MS, TROIANI: Thank you, but no MR. O'CONNOR: What occurred here is Mr. Cosby has already MS. TROIANT: Call me counselor or Ms. Troiani MR. O'CONNOR: Ms. Troiani, he testified already that he -- MS. TROIANI: Oh -- MR. O'CONNOR: Let me finish. MS. TROIANI: He's going to testify, you're going to tell him what to say. I will not let you finish. Do you object to my question? MR, O'CONNOR: Yes MS. TROIANI: Fine. (9/29/05, 141-143) -29-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 33 of 66 again, in the context of a legal proceeding, it is improper for counsel to address one another except by terms which emphasizes their professionalism. Certainly, ‘young lady” is not one of those terms. On this occasion, the undersigned prevented Mr. 0’Connor from testifying and obtained an answer to the question, but defense counsel simply seethed and reloaded: @. What happened when you saw her in Denver? A. I guess we met. I can only imagine that we met and had -- MR. O'CONNOR: Don't guess. If you have a recollection of what occurred, tell her. THE WITNESS: I don't recall. BY MS. TROTANI: Q. You don’t recall what happened? A. I dontt. Q. She says what happened is that you gave her coffee, which she believed was drugged and that somehow she ended up in a car in a parking lot and that she believes that you had had sexual contact with her while she was unconscious? MR. O'CONNOR: That was already asked and answered, You want him to go over it again? MS. TROIANI: He said he doesn't remember. BY MS. TROTANI: -30-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 34 of 66 2. You don't remember that occurring? MR. O'CONNOR: Don't answer that question. You've answered that question and we're not going to answer it again, I'11 stand on that, You didn't like his first answer, now you're trying to get another. BY MS. TROTANT: ©. Bo you remember being in a car with her? MR, O'CONNOR: He’s already answered that. MS. TROTANI: No, he has not. ‘THE WITNESS: No. MR. O'CONNOR: The record will reflect that you answered all those questions. BY MS. TROTANE: Q. Do you know whether or not you had sexual contact with her at that time in Denver when she came to meet you in Denver? A. Probably. (9/29/05, 144-146) It is conceded that asking the same question repeatedly can become oppressive. But to ask the same question twice, particularly in this case where the answers were often inconsistent, is simply an appropriate form of clarification. 10. DEFENSE COUNSEL'S ASSERTION OF ATTORNEY-CLIENT PRIVILEGE Defense counsel inappropriately asserted the attorney-client privilege in circumstances when it clearly did not apply. After leCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 35 of 66 lunch he reversed his position somewhat, but by then Plaintiff had incurred the expense of the court reporter and her attorney's time as Defendant wasted almost an hour by asserting a privilege when he knew it was improper to do so. BY MS. TROTANI ©. When was the first time that you knew that Beth Ferrier would give a statement to the press? A. Maybe about eight, nine months ago. Q. How did you know that? A. I got a call about it. Q. From whom? A, I hope I'm accurate, counsel. @. You have four counsel sitting here. Which counsel was it? A, It was Marty Singer. Q. What did he say to you in that call? MR. O'CONNOR: Please don't answer that. It's attorney-client privilege. You know it is. It's absurd. THE WITNESS: Would she do that? (9/29/05, 147-148) An attorney telling his client what a third party said is not privileged; however, even if defense counsel believed that he was correct, he should be prohibited from making remarks such as the one reproduced above. 32.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 36 of 66 BY MS. TROTANT: Q. What was Mr. Singer representing you in when he called you? MR. O'CONNOR: Don't answer That. It's an attorney-client privilege. MS. TROIAN: what he was representing him in? MR. O'CONNOR: Yes. BY MS. TROIANI: Q. How long has Mr. Singer represented you? A. Certain cases. Q. What was the case that was occurring at the time that. he called and told you about the Beth Ferrier account? **4MR. O'CONNOR: It's attorney-client privilege. Q. What did you do as a result of phone call from Mr. Singer? MR. O'CONNOR: Don’t get into that if it was pursuant to his advice. It's attorney-client privilege, as you well know. It's a very clever way of piercing it, but we're not going to allow him to divulge those confidences. So move on. MS. TROIANI: I need a response from him. You told him if it was as a result. MR. O'CONNOR: Your question was as a result. MS. TROIANI: What he did after that? MR. O'CONNOR: Yes. He was acting pursuant to counsel 33-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 37 of 66 presumably. BY MS. TROIANI: Q. Were you acting pursuant to counsel's advice, Mr. Cosby, whatever you did? MR. O'CONNOR: Whatever you did without saying what it was. THE WITNESS: 1 don't even know what the question was. BY MS. TROTANT: @. I asked you how did you find out about Beth Ferrier going public with her statement and you told me you got a call from Marty Singer? A. Right. ©. 1 asked you what you did after that phone call? MR. O'CONNOR: It was objected to MS. TROIANI: Counsel is saying if you acted pursuant to his advice, then what you did he believes you cannot tell us. THE WITNESS: That is correct BY MS. TROLANI: @. Would you agree to waive your attorney-client privilege in this regard? B. Can we go to lunch? Q. I take that you will not? A. I refuse to waive. Q. After you received the phone call from Marty Singer, did you make any arrangements with the National Enquirer to give them “34.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 38 of 66 an interview? MR, O'CONNOR: Don't answer any question about whatever you and Mr. Singer discussed or what you did as a result of those discussions. MS. TROIANI: I didn't ask him that. You may answer the question. MR. O'CONNOR: No, you may not. MS. TROIANI: Are you telling me that I cannot ask him about his Enquirer article, which is the subject of the defamation claim? MR. O'CONNOR: I didn't say that. I said you cannot invade the attorney-client privilege. MS. TROIANI: No one is telling him to invade the attorney-client privilege. MR. O'CONNOR: Listen to your question. MS. TROIANI: Would you read back my question? (At this time, the court reporter read back from the record as requested.) MR. O'CONNOR: Don't answer the question as phrased. . It's clearly pursuant to advice. MS. TROIANI: It is not pursuant to his advice. MR. O'CONNOR: Rephrase your question because the way that question is phrased it would be, after you talked to him, what did you do. We're not going to allow him to do that. BY MS. TROTANT: -35-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 39 of 66 Q. Did you know about Beth Ferrier's intention to give a story to the National Enquirer at any time in your entire life? MR. O'CONNOR: If you did not learn about it through your attorneys. If you learned about it through another source, I will allow you to answer MS. TROIANI: [I disagree with that. BY MS. TROTANT: Q. I need to know, did you learn from any source that Beth Ferrier was going to give a story to the National Enquirer? MR. O'CONNOR: You can only answer if you learned from a source other than your attorney. We're not going to allow the attorney-client privilege to be pierced BY MS. TROIANI: Q. Can you answer that? A. No. (9/29/05, 150-154) Q. Did someone negotiate your interview with the Enquirer? MR. O'CONNOR: Don't answer that question if it was an attorney. Tf it was not an attorney, you can answer the question. Q. You did have -~ then my question was can you answer the question. You do have a written contract with the Enquirer then? A. Yes. BY MS. TROIANI: Are you taking the position that that is alsoCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 40 of 66 privileged, Mx. O'Connor? MR. O'CONNOR: Yes, just like Ms. Ferrier's contract was. 1 would consider exchanging her contract and her payment. MS. TROIANI: I don't have anything from her. MR. O'CONNOR: I'm not going to allow anything like that to get in. I allowed him to answer the question it was a contract I'm not going to allow him to divulge the discussions he and his attorney had with the Enguirer in connection with the article. BY MS. TROIANI: Q. Was there anyone else present -- now your present attomey has just said that there were -- he will not allow you to reveal discussions that you and your attorney had with the Enquirer. Was there anyone else present when these discussions occurred? A. No. Q. Wasn't there a representative from the Enquirer present? MR. O'CONNOR: Of course. THE WETNESS: Not wait a minute. what did I just tell you? BY MS. TROLANI: Q. No, sir, you have to answer my question. A. No, I just told you no. And then you said, now wait a minute, wasn't there. Q. Did you ever negotiate with anyone from the 37-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 41 of 66 Enquirer about this article? MR, O'CONNOR: If you did so without an attorney MS, TROIANI: If he did so with an attorney present and there's a third party, there's no attorney-client privilege and you know that MR. O'CONNOR That's a false statement of the law. MS. TROIANI: Okay. If that's your position, that's your position. MR. O'CONNOR: [t's an incorrect statement of the law BY MS. TROIANI: Q. Were you paid for the article that appeared in the National gnquirer? *#4MR. O'CONNOR: If it's pursuant to negotiation you and your attorney had, I'm not going to allow the him to answer BY MS. TROIANI: Q. Did you make any agreement with the Enquirer that if they didn't print Beth Ferrier's story you would give them an interview? MR. O'CONNOR: Don't answer the question if it was pursuant to discussions between your attorney. BY MS. TROIANI: Q. Are you not answering the six? MR. O'CONNOR: He's instructed not to, BY MS. TROTANI: -38-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 42 of 66 Q. Had you at any point threatened to sue the National Enquirer? A. Yes. Q. Did you sue them? A. No. Q. What prompted you then to give this newspaper this story *¥**MR. O'CONNOR: If it's pursuant to instructions from your attorney, do not answex. You can phrase questions that would stop this objection. BY MS, TROIANI: Q. Are you declining to answer? A. Yes. 0. Without revealing any discussions with your attorney, can you tell me what thoughts went through your mind that caused you to give thie interview to the National Enquirer? A. No. MR. O'CONNOR: If -~ MS. TROIANI: You cannot -- MR. O'CONNOR: I have a right to object. MS. TROIANI: He said he couldn't tell me. MR. ©" CONNO! That's Let's break for lunch. (9/29/05, 154-161) Following the lunch break, some of the objections to the line of 39Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 43 of 66 questioning were withdrawn and defendant reversed his earlier position in which he reneged on the agreement to finish his deposition at another date, if we did not conclude on September 29. However, Plaintiff and her counsel wasted over an hour, while Defense Counsel interposed objections that were so clearly specious that Defendant had to reverse his position. Plaintiff should not be prejudiced by this behavior and Defendant should be xequired to reimburse her for the expenses incurred during this exercise. After the lunch break, Defendant admitted that he agreed to give an exclusive interview to the National Enquirer in exchange for their agreement to not print the Beth Ferrier story. He was then questioned as to his knowledge of the Beth Ferrier story, as follows: Q. Has someone read the story to you, the National Enquirer story? A. Yes. Q. And how recently was that? A. That was with counsel. Is this the National Enquirer Q. Yes. A. That they never printed? MR. O'CONNOR: No, this is my story. THE WITNESS: 1 don't know what she's talking about then. I -40-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 44 of 66 thought she was talking about Beth Ferrier's story in the National. What was the question asked? (9/29/05, 166-168) In fact, the questioning concerned the Beth Ferrier story but Defense Dounsel interjected “ny story,“ which was the title of the article that defendant gave to the Enquirer. BY MS. TROIANI: Q. I'll clarify that. That's fair. Did someone read to you Beth's story that she had given to the National Enquirer? A Yes. o When was that? A. That was before it was supposed to come out. 2. Did she say anything in that story different than the one that we reviewed this morning? A. I think that I will not say anything because it was read to me by my counsel. MR. O'CONNOR: I was just advised, and I want to put this on the record, by Mr. Schmitt that his understanding of that article came through an attorney-client relationship with his counsel. MS. TROIANI: Marty Singer? MR. O'CONNOR: I think a different lawyer. MS. TROIANT: Who is the lawyer? MR. O'CONNOR: I think it might be Mr. Schmitt, so let's not try to go there. (9/29/05, 169-170) “AlCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 45 of 66 Defendant testified that he was given the Beth Ferrier story, which was pending publication in the Enquirer for his review. It was his reading this story which prompted him to make the deal with the Enquirer to print his story, instead. It is that story which is the subject of the defamation claim. Incredibly, Defendant asserted the attorney client privilege as to questions about the Beth Ferrier story because it was read to him by his lawyer. Not only is the privilege not applicable because the Beth Ferrier story is not a confidential communication, it is also not applicable because the privilege cannot be asserted when the attorney is participating in the | tort. Rhone-Poulenc Rorer, Inc. V. Home Indemnity, Co., 32 F.3d 851 (3d. Cir, 1994) ‘The assertions of privilege to the circumstances surrounding Defendant's National Enquirer story are particularly egregious. At the hearing before this Honorable Court on September 27, 2005, Plaintiff's Interrogatory 21 was addressed. The interrogatory xeads: Describe all communications by you with the Enquirer relating to Plaintiff's allegations, including why and when you gave an exclusive interview on February 21, 2005, and any conversations or communications preceding same. Attach a copy of any communications or agreement reduced to writing regarding the exclusive interview. The Court, in assisting counsel to reach an agreement, determined that this was an appropriate area for inquiry, especially in view of the fact that Plaintiff believed that Defendant had “traded “42.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 46 of 66 up." That is, he used his celebrity status to induce the Enquirer to print the defamatory article rather than the one which by his own admission, lends credibility to Plaintiff's allegations. 11. QUESTIONS CONCERNING DEFENDANT’S STORY The National Enquirer article of Defendant's story was read to Defendant and he was then questioned as to whether or not he had actually made the statements in the article. It was the intention of Plaintiff’s counsel to asked Defendant to explain each statement. The article is one of the basis of Plaintiff's defamation claim. BY MS. TROIANI: Q. Did you say that the charge can influence the view that family and friends have of him, meaning you, as a good person and a person to be trusted? I'm setting up your quote. It does say the charge can influence -- MR. O'CONNOR: Dolores, with all due respect, it starts, no man wants to see his family. MS. TROIANI: I'11 get there. BY MS. TROTANT: Q. Did you tell them, because some of the things you said are in quotes, and some of it is just the story. MR. O'CONNOR: This is in quotes, too, Cosby declared no man. Ms. TROIANI: It's also in quotes, the charge can -- -43-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 47 of 66 MR. O'CONNOR: I want it in context. That's all I'm saying. His quote starts with no one wants to see his family put in the position of having these kinds of allegations come out and for your loved ones to suffer emotional stress, then it goes on MS. TROIANI: That's fine. I didn't really care about that quote. 1'11 ask you about every quote that's in here. THE WITNESS: Please don't do that. Go ahead. I'm sorry. MR. O'CONNOR: We're going to stipulate to what's quoted T believe as coming from his mouth; isn't that correct? MR. SCHMITT: Yes. MR. O'CONNOR: We'll stipulate that whatever is in quotation marks from Mr. Cosby he said. MS. TROIANI: That's fine. It doesn't mean I still can't ask him the question. MR. O'CONNOR: I know that. I was trying to save some time. (9/29/05, 171-173) Following this exchange, Defendant promptly denied making one of the statements which was in quotes: BY MS. TROIANI: Q. Following what I just read to you, it says, a published report states that the woman's mother called Cosby before her daughter went to the police and the comedian was under the impression she was after hush money. And that is also in quotes. A. But that's not me, I didn't say that. 4.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 48 of 66 Q. It says the comedian, quote, was under the impression she was after hush money, end quote. MR. O'CONNOR: ‘what's not a correct statement. MS. TROIANI: A published report states that the woman's mother called Cosby before her daughter went to the police and the comedian, quote, was under the impression, end quote, she was after hush money. MR. O'CONNOR: But the she was after hush money is not in quotes, it's referring not to this article, but another report. If you have that report, let's look at it. BY MS. TROTANT: Q. Did you say that? (9/29/05, 183) Again, Mr. 0/Connor interjected himself into the questioning so that it was impossible to obtain an answer to the question being posed The next frivolous objection interposed by counsel was that Defendant could not be questioned about what he meant in the defamatory article, as follows: Q. Were you saying in this statement that Andrea was trying to exploit you because of your celebrity status? MR. O'CONNOR: No. I'm going to object to the form. Because the statement speaks for itself. It clearly excludes Andrea. MS. TROIANI: I am absolutely entitled to ask him. -45-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 49 of 66 (9/29/05, 181) Again, counsel provided a “clue” when he stated that the statement excluded Plaintiff. Q. 80, you did not believe that Andrea or her mother wanted money from you at the time they made the phone calls to you? A No. ° Then why did you offer them money? MR. O'CONNOR: I object to the form of that question. I don't believe there's anything in the record, If you have something, give it to him. (9/29/05, 187) There is no requirement that the deponent be given a document during questioning (Federal Rule of Evidence 613) and counsel's demand for such was clearly improper. 12. QUESTIONS ABOUT DEFENDANT’S STATEMENT TO THE POLICE Thereafter, defendant was questioned about his statement to the police. During the questioning his counsel was permitted to read the statement to him, (9/29/05, 191). As plaintiff's counsel attempted to question defendant about the statement, his counsel repeatedly interrupted, in an overt attempt to influence defendant's answers which were inconsistent with the statement he had previously given to the police. The following occurred:Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 50 of 66 Q. Did that lead you to believe that Andrea or her mother would use the information to either extort money from you or embarrass you? MR. O'CONNOR: Object to the form of the question. There's never been any time that he used the word extort, which is a crime. MS. TROIANI: You can answer. THE WITNESS: No. BY MS. TROIANT: Q. I'll refer to page 12 of the police statement that you gave, the fifth question down. At any time because of who you are, did you feel that there was the potential that either Andrea or her mother was going to use this information to either embarrass you or extort you? Did you have any of these concerns? And you answered, yes. Do you recall telling the police yes? A. Yes. Q. So, why is your answer different today? MR. O'CONNOR: It's not. I object to the form of the question. It's either embarrass or extort. MS. TROIANI: That's exactly what I said. MR. O'CONNOR: Which is it, embarrass or extort? MS. TROIANI: You can answer now that your counsel gave you a clue. (9/29/05, 193-195) Not only was defense counsel blatantly telling Defendant the 47Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 51 of 66 answer, he was telling him the wrong answer because in fact his statement did include an allegation that Plaintiff was trying to extort money from him. 13. QUESTIONS ABOUT THE OFFER OF A TRUST TO PLAINTIFF Defendant testified that even though beth Plaintiff and her mother told him that all they wanted was an apology, he called Plaintiff's home and spoke to her mother to offer money for Plaintiff's “education.” ‘he following occurred during questioning about that event: Q. So, are you saying that Andrea would have to prove to you that she got a 3.0 average wherever she went in order for you to pay for her education? A. She would have to prove to me that while she was at said university that she was maintaining a 3.0. Q. But you didn't require that of T , did you? A. , yes, How can you say, but you weren't? Do you know the deal with T----? Q. You told us earlier. A. What did I say it was? Q. You said that you didn't require her to prove to you that she got the As. MR. O'CONNOR: That wasn't the deal. MS. TROTAN: I'm not talking about the deal. (9/29/05, 199-200) -48-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 52 of 66 Again, counsel overtly clued in his client as to how counsel wanted his client to answer the question. Defense counsel is not stating an objection, he’s merely asserting his opinion as to how the question should be answered. There can not be any justification for this behavior. 14. QUESTIONS ABOUT WHAT DEFENDANT TOLD THE ENQUIRER. BY MS, TROTANI: Q. Did you ever tell the National Enquirer that the only thing that Andrea's mother had asked for in that conversation was an apology? A, I didn't mean the only thing she asked for. 1 was coming off of what she said. That's all I wanted, Bill. That's all I wanted Q. So, are you saying, no, you did not tell them that all she asked for was an apology? A. I'm trying to get you to understand what I was saying. ‘The answer is yes, because when I said, I apologize. Her mother said -- I said, I apologize. She said, okay, Bill, that's all I wanted. Q. Now we're a little confused on this record. Are you telling me that, yes, you did tell the National Enquirer -- A. I don't know what is there. Read the thing. Q. Mr. Cosby, you have to wait for me to finish asking the question. We have to make sure we're on the same page. Because I -49-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 53 of 66 asked you a question and you answered yes. and I'm not sure I know what you answered yes to. I need to go back and clarify this. Did you tell the National Enquirer that all that Andrea's mother had asked for in your conversation was an apology? MR. O'CONNOR: Let me break this down in fairness. MS. TROIANI: I will object to that because you're now coaching the witness. The Hall Case, Rule 30, you are not permitted to do this. THE WITNESS: I can't read this. I would be able to look at this, wouldn't 1? BY MS. TROTANI Q. will assert to you, and I will read this whole article to you if you want, that nowhere in this article does it appear that you said to the National Enguirer that all the mother asked for was an apology, but that's not my question. A, What is your question? Q. My question is, did you tell the person who wrote this article or a representative of, the National Enquirer that all andrea's mother asked for was an apology? MR. O'CONNOR: I'm going to object to the form of the question because Mr. Cosby has explained that even though the mother accepted his apology, he read between the Lines. MS. TROIANI: This is totally unacceptable, sir. You have to stop coaching the witness.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 54 of 66 MR. O'CONNOR: I'11 go to my corner later. It's an unfair question. I'm instructing him not to answer. Please rephrase it. BY MS. TROTANI: Q. Are there things that you told the National Enquirer that did not get into this story? A. I couldn't tell you. I really could not in honesty. 1 don't know. Q. Do you know if you told the National Enquirer that when you spoke to Mrs. Constand all she asked for was an apology? MR. O'CONNOR: I object to the form of that question. She said many other things to you other than that. And in the context of that question, that's all she asked for. THE WITNESS: May I? MS. TROTANI: Certainly. THE WITNESS A writer -- MS. TROTAN: : I need you to answer my question. THE WITNESS: I'm answering your question. A writer -- BY MS. TROIANI: Q. May I make a suggestion to you? AL Yes. Q. You can answer my question yes or no and then you can explain it for the rest of the day. MR. O'CONNOR: You can answer your question any way you'd like, SleCase 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 55 of 66 Mr. Cosby. That's not a yes or no question, it's an unfair question because it mischaracterizes what the conversation was | between them. If you want to answer that question given that -- MS. TROIANI: If you want to adopt what your attorney just said - MR. O'CONNOR: Tf you want to adopt what I said, you can. BY MS. TROIANI: Q. Can you answer my question? A. The answer is no, I did not tell the writer that that was the only thing. I explained to the writer what Andrea's mother said, which means that a writer can go off and do anything he wants to do after that. Q. What did you tell the writer that Andrea's mother had said? MR. O'CONNOR: If anything. MS. TROIANT: He just said he told her THE WITNESS: Andrea's mother said that's all I wanted, Bill. Twice. BY MS. TROIANI: Q. And you told that to the National Enquirer? AL Yes Q. You told the National Enquirer? A. How many times -- do you have something where I'm lying or some proof or something? Because I can't answer it any other way. That's what I said to the fellow sitting in the 52.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 56 of 66 Q. I want to make sure because you're talking about you told the National Enquirer that the mother only asked you to give her an apology. Mr. O'CONNOR: I've objected to the form of the question. THE WITNESS: Look, once again, you've got to understand what T say and what a writer puts - MS. TROIANI: I understand that fully. THE WITNESS: If it's nok here, if it isn't here, then I believe that it's mull and void. If it isn't here, if it isn't in some newspaper or somewhere, help me where you're having a problem with the writer saying that I told him something or somebody said I told them something when it isn't in print. I think I have the xight to say something to someone and then they write down, T say, give me a head of lettuce and the guy says, two tuna fish sandwiches, That's not what I said. I know what Andrea's mother said to me. And I have no problem saying at least, Bill, that's all I wanted to hear. MR. O'CONNOR: There's confusion. MS. TROIANI: This is very confused. MR, SCHMITT: Can we stop for a second. Can we go off the record for a second. (At this time, a discussion was held off the record.) MS. TROIANI: We have agreed based upon representations of -53-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page $7 of 66 counsel, it is agreed that Mr. Cosby did not tell the National Enquirer that all Andrea or her mother asked for was an apology. Is that agreed, Mr. O'Connor? MR. O'CONNOR: Yes. And the record will stand that my recollection is that Mr. Cosby told you under oath that he did not recall what he told the National Enquirer anyway, except for what was printed and in quotes. ‘That's my recollection of the record. With that caveat, I agree to that stipulation. The record will say what it says. MS. TROTAN: : The record will say what it says. Let's get moving here. (9/29/08, 224-232) Apparently, Mr. Schmitt was present during the discussions with the National Enquirer and he properly requested a recess to alert opposing counsel, and so that he could remonstrate upon hearing his client testify to what did not occur. Mr. 0’Connor, on the other hand, sought to alert Defendant that he should now change his testimony to a lack of memory of what he told the National Enquirer. 15. ‘TERMINATION OF THE DEPOSITION Defendant was questioned about his recollection of the night that he gave the drugs to Plaintiff. For the first time, he recounted that he broke one pill in half and gave Plaintiff three halves. This story was inconsistent with his prior statement. 54.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 58 of 66 Defense Counsel interfered in the questioning, as follows: BY MS. TROTAN: Q.' So, you broke one pill in half. Where are the three? I£ you have one half and one whole one, that's two. Are you saying you broke the whole one so you had three halves? A. Yes. Q. Why would you break the whole pill in half and give her both halves? A. Because they're long. MR. O'CONNOR: Let me read what he said. MS. TROIANI: Please do not. I'm not discussing that statement. I'm talking to him about the incident. MR. O'CONNOR: I'm not. going allow you. This is the statement he gave. MS. TROIANI: You may not do this. MR. O'CONNOR: Of course I can. MS. TROIANI: You may not. MS. KIVITZ: We're going to have to call the judge. MR. O'CONNOR: Call the judge. MS. TROIANI: If his statement today is inconsistent -~ MR. O'CONNOR: This is unfair because he can't read his statement. MS. TROIANI: If his statement is inconsistent to the police, like you asked our client -55-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 59 of 66 MR. O'CONNOR: She was reading it. MS. TROIANI: She was not reading it MR. O'CONNOR: Incorrect. It's an unfair examination. He's entitled to know what he said to the police. I'm not going to allow this travesty to occur. MS. TROIANI: That's why he should have been prepped for more than three hours, if we believe he was prepped for three hours MR. O'CONNOR: Are you challenging something here? MS. TROIANI: Yes, I am. I am asking him and I don't want you to interrupt him at this moment. MR. O'CONNOR: I am asking if he wants his statement re: He is entitled to it. MS. TROIANI: He is not. This is cross-examination. MR. O'CONNOR: When I cross-examined your client on the statement, the statement was in front of her. MS. TROIANI; I'm not cross-examining him on the statement. MR. O'CONNOR: Of course you are. MS. TROIANI: I am not. I'm asking him his recollection of what occurred. MR. O'CONNOR: Do you wish to read your statement before you give the answers? MS. TROIANI: And I object to your asking him to do that and I will seek sanctions against you. That is a Rule 30 violation and you know it. -56-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 60 of 66 MR. O'CONNOR: You have no clue what a Rule 30 violation is. Do you wish to read your statement again before you answer these questions or not? If you don't and want to answer them on your own -- THE WITNESS: Yes, I would like it read to me. MS. TROIANI: We object MR. O'CONNOR: Let's call the court. Get him on the phone. Because he has every right to read his statement. MS, TROIANI: He does not, not in the middle of my cross-examination. MR, O'CONNOR: It's not cross-examination. MS. TROIANI: It certainly is. It absolutely is. MR. O'CONNOR: This is unfair for the witness not to read his statement. Call the judge, otherwise we're not going to continue. MS. TROIANI: Then let's not continue. MR. O'CONNOR: Why won't you let him read his statement? MS. TROIANI: I have never in 31 years allowed a witness to read to me from his statement. If I want to read his statement, I'1] read it. I want to know what he remembers. MR. O'CONNOR: I allowed your client to do it. MS. KIVITZ: Not true. MS. TROIANI: If he's telling the truth, he won't have an issue. MR. O'CONNOR: Every time I questioned your client she had the -57-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 61 of 66 interview in front of her. MS. KIVITZ: She was not reading her statement. MR. O'CONNOR: The record will reflect that. (9/29/05, 233-239) After a failed attempt to speak with the emergency judge, defense counsel improperly terminated the deposition. SUMMARY Plaintiff urges this Honorable Court to adopt the guidelines set forth in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). As the Court is aware from reading the Defendant’s deposition and Plaintiff's Motion to Compel, the above examples of misconduct on the part of Defense Counsel are not all inclusive. If one had the ability to count the words, it would not be surprising to find that Mr. 0/Connor spoke more than Mr. Cosby. Federal Rule of Civil Procedure Rule 30(d)provides, in relevant part, that Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion [to protect the deponent or party from annoyance, embarrassment, or oppression] .* ? Defendant can hardly claim that the objections sought to protect him from embarrassment. He frequently joked, made comedic faces, and gestured wildly while illustrating how he pats the “butts” of high school students at the Penn Relays. By way of illustration, when asked if employees were required to sign a confidentiality agreement, defendant replied that they had a choice but if they didn’t sign..."We kill them..." (Tr. 9/26/05,Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 62 of 66 Defense counsel openly and repeatedly violated this rule and as noted above stated to the questioner, “You have no clue what a Rule 30 violation is." (9/29/05, 238). In fact, it is Defense Counsel who appears to have no familiarity with Rule 30. It is incumbent upon counsel to be familiar with the Federal Rules and to abide by them. Getex v. Ohio Casualty Ins. Co., 1994 U.S. Dist. Lexis 501, (B.D. Pa. 1944). It may be that counsel believed that Hall, supra, was inapplicable because Rule 30 was amended after the decision; however, the amendment embodies the spirit of Hall, and the comment to the rule states that the purpose of the 1993 amendment was to avoid exactly what occurred in this case, “Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.” In that objections to relevancy; competency and materiality are not waived if not made 24) and at one pointed admitted: THE WITNESS: I’m not making fun of you. MS. TROIANI: I don’t think you’re making fun of me. I th: you'r making light of a very serious situation. THE WITNESS: That may very well be. MS. TROIANI: It is, sir. (9/28/05, 104-105) -59-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 63 of 66 at the deposition, (Federal Rule of Civil Procedure 32(d) (3) (a)), counsel's persistence in making these objections could only serve the purpose of disrupting the deposition, which in fact they did. Hall has been favorably cited by numerous courts throughout the country, including this Honorable Court, Bey v. Pennsylvania Department of Corrections, 98 F. Supp. 24 650, (H.D. Pa. 2000) at Footnote 29. Although the Hall guidelines have not been considered by the Third Circuit, the guidelines have been applied to various cases in the Third Circuit, O'Brien v. amtrak, 163 F.R.D. 232, 236 (E.D. Pa. 1995); Applied Telematics, Inc. v Sprint, 1995 U.S. Dist. Lexis 2192, (B.D. Pa. 1995); Frazier v. SEPTA, 161 F.R.D. 309 (E.D. Pa. 1995); Lauria v. Amtrak, 1999 U.S. Dist. Lexis 7562, (E.D. Pa. 1999); Christy v. Pennsylvania Turnpike Comm'n, 160 F.R.D. 51 (.D. Pa. 1995); Johnson v, Wayne Manor Apts., 152 F.R.D. 56 (B.D, Pa. 1993) Counsel‘s conduct in this matter is strikingly similar to that detailed in O’Brien v. Amtrak, 163 PRD 232 (B.D. Pa. 1995). In that case, the court imposed the Hall guidelines because of defense counsel's behavior which included numerous speaking objections, consultations with witnesses during recesses and while questions were pending, which allegedly resulted in changes in testimony, as well as improper instructions not to answer cert. questions, interruptions of Plaintiff's questioning, Defense Counsel's practice of interjecting his own questions to -60-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 64 of 66 the witnesses and other similar behavior. In addition to the imposition of the Hall guidelines, Plaintiff herein requests that the Court sanction Defendant by requiring him to 1) to submit to the remainder of the deposition in which inquiry will be made into those areas which were not reached; 2) pay the costs of the deposition and reasonable counsel fees incurred at the time of the deposition and in the preparation of this Motion and Memorandum of Law; and 3) permit the re-examination of defendant in the areas which were obstructed by counsel In Lauria v. Amtrak, 1999 U.S. Dist. Lexis 7562, (B.D. Pa. 1999), the Court denied a Motion for Protective Order to prevent a third deposition of Plaintiff, allowing the third deposition to proceed because of counsel’s obstructive and improper behavior in the second deposition. It is respectfully submitted that requiring Defendant to be deposed without restrictions as to whether or not he answered the same question in the first deposition is also appropriate in this case. The interference of counsel was so pervasive that fairness dictates that Plaintiff be given the opportunity to re-depose Defendant at his expense. It is further requested that this Honorable Court establish a deadline for the date of the continuation of Defendant‘s deposition and that three (3) days be set aside for that deposition. -61-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 65 ot 66 WHEREFORE, Plaintiff respectfully prays this Honorable Court to grant the Motion for Sanction and for the imposition of the Hall guidelines to depositions. Respectfully submitted, BY: Attorney I.D, 21283 BEBE H. % Attorney I.D, 30253 62.Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 66 of 66 CERTIFICATE OF SERVICE Thereby certify that on November 21, 2005, the undersigned were served in the following manner, a true and correct copy of: Plaintiff's Motion for Sanctions Concerning Conduct of Defendant at Deposition and Memorandum of Law. ‘The Honorable Eduardo C. Robreno Eastern District of Pennsylvania U.S. Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106 Office of the Clerk of Court Eastem District of Pennsylvania US. Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106 Patrick J. O’Connor, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Andrew D. Schau, Esquire Patterson Belknap Webb & Tyler, LLP 1133 Avenue of the Americas New York, NY 10036 MANNER Via Hand Delivered by Courier Via Hand Delivered by Courier Via Hand Delivered by Courier Via First Class Mail Attorfiey LD. No. 21283 Attomey for Plaintiff