Case 2:05-cv-01099-ER Document 1 Filed 03/08/05 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV:
: JURY TRIAL DEMANDED
:

COMPLAINT
Plaintiff Andrea Constand, by her attorneys,
Troiani/Kivitz, L.L.P., claims of Defendant a sum in excess of
$150,000.00, and in support thereof states the following:

A. Jurisdiction and Venue
1.

The United States District Court for the Eastern

District of Pennsylvania has jurisdiction over this action
pursuant to diversity of citizenship and amount in
controversy, 28 U.S.C. § 1332.
2.

Venue lies in the Eastern District of Pennsylvania

pursuant to 28 U.S.C. § 1391 in that the events giving rise to
the claim occurred in the Eastern District of Pennsylvania.

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B. The Parties
3.

Plaintiff Andrea Constand is an adult individual

currently residing at a confidential address in Pickering,
Ontario.
4.

Defendant William H. Cosby, Jr. is an adult individual

with a residence at 8210 New Second Street, Cheltenham,
Pennsylvania.

C. Factual Background
5.

Plaintiff incorporates by reference the prior

paragraphs of this Complaint, as though fully set forth at
length.
6.

On or about December 2001, Plaintiff was employed at

Temple University as Director of Operations for the Women’s
Basketball program.

In her capacity as such, Plaintiff met

Defendant Cosby in November 2002.
7.

Defendant fostered a friendship with Plaintiff, so

that over time she considered him to be both her friend, albeit
older, and a mentor.
8.

For over one (1) year, Plaintiff socialized with

Defendant Cosby, including, inter alia, discussing Temple
women’s basketball with him, talking with him by telephone, and
being his guest at dinner parties and other events hosted by him
at his Cheltenham home and other locations.

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9.

In January 2004, Defendant invited Plaintiff to his

8210 New Second Street, Cheltenham, Montgomery County,
Pennsylvania, home, telling her that he wanted to offer her
assistance in her pursuit of a different career.
10.

Plaintiff agreed to meet him, and arrived at

Defendant’s home at approximately 9:00 p.m.
11.

Plaintiff and Defendant conversed, and during their

conversation, Plaintiff expressed that she was feeling stressed
about making her career decision.
12.

Defendant then offered Plaintiff three blue pills,

which he told her were herbal medication, which would help her
relax.
13.

Plaintiff questioned if she needed to take all three

pills, and Defendant assured her that all three pills were
necessary.
14.

Plaintiff ingested the pills with bottled water,

believing that the pills were what Defendant represented them to
be.
15.

Within a short period of time, Plaintiff’s knees began

to shake, her limbs felt immobile, she felt dizzy and weak, and
she began to feel only barely conscious.
16.

Upon information and belief, Defendant provided

Plaintiff with some sort of narcotic or other type of drug, and
not an “herbal” remedy.

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17.

When Plaintiff advised Defendant she did not feel

well, Defendant led Plaintiff to a sofa, because she could not
walk on her own, where he laid her down, under the guise of
“helping” her.
18.

Subsequently, Defendant positioned himself behind

Plaintiff on the sofa, touched her breasts and vaginal area,
rubbed his penis against her hand, and digitally penetrated her.
19.

Plaintiff remained in a semi-conscious state

throughout the time of this ordeal.
20.

At no time was Plaintiff capable of consent after the

pills affected her, and at no time did she consent to
Defendant’s acts.
21.

Plaintiff lost consciousness after the events

described above, and did not fully awaken until sometime after
4:00 a.m.
22.

Plaintiff awoke feeling raw in and around her vaginal

area.
23.

When Plaintiff awoke, her clothes and undergarments

were in disarray.
24.

After Plaintiff awoke, Defendant greeted her in his

bathrobe.
25.

Plaintiff left Defendant’s residence by herself.

26.

On January 13, 2005, Plaintiff reported Defendant’s

actions to the Durham, Ontario police.

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27.

Following Plaintiff’s January 13, 2005, police report,

Defendant and his authorized representatives and/or agents have
made publicized statements to the media, including, Celebrity
Justice (“CJ”), which have included:
Sources connected with Bill Cosby tell “CJ” that before his
accuser went to police, her mother asked the comedian to
make things right with money.…We’re told she asked Cosby to
help pay for her daughter’s education and to generally help
her out financially, and this conversation occurred before
the accuser ever contacted police.…As police continue to
investigate, a Cosby rep call [sic] this a classic
shakedown.
These particular statements were broadcast nationwide, and
posted on Celebrity Justice’s internet website, also available
nationwide, on February 7, 2005.
28.

Celebrity Justice, The Toronto Sun, and FoxNews, among

other media sources, had previously printed and/or aired
Plaintiff’s name and address and/or picture in connection with
this investigation, and other media sources had published her
name and/or a picture of Plaintiff as well, therefore making her
identity as Cosby’s accuser recognizable to the public.
29.

On or about February 21, 2005, Defendant gave an

“exclusive” interview to The Enquirer, a national tabloid with a
circulation of about 1.5 million, concerning Plaintiff’s
allegations.

In that interview, in an effort to continue to

make the public believe that Plaintiff was guilty of extortion,

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Defendant said, “I am not going to give in to people who try to
exploit me because of my celebrity status.”
30.

At the time that Defendant and/or his authorized

representatives and/or agents, servants, or employees made their
statements to Celebrity Justice and The Enquirer, each of them
knew or should have known that the statements were false,
because following Plaintiff’s report of the incident to the
Durham police, and beginning on or about January 16, 2005, and
continuing in the days thereafter, Defendant and/or his
representatives and agents placed at least four telephone calls
to Plaintiff and her mother in which, among other things,
Defendant apologized and offered financial compensation to
Plaintiff, which offer was not accepted by Plaintiff and/or her
mother.

COUNT I
Andrea Constand v. William Cosby
Battery
31.

Plaintiff hereby incorporates by reference the prior

paragraphs of this Complaint as though fully set forth at
length.
32.

Defendant’s offensive or harmful contact with

Plaintiff as set forth herein at length constituted a battery
upon her.

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33.

The aforesaid conduct by Defendant was committed

willfully, knowingly, maliciously, intentionally, wantonly,
recklessly, and/or negligently.
34.

As the direct and proximate result of Defendant’s acts

as described in the foregoing paragraphs of this Complaint,
Plaintiff has suffered serious and debilitating injuries, mental
anguish, humiliation, embarrassment, physical and emotional
upset, including, but not limited to, post-traumatic stress
disorder, depression, sleeplessness, isolation, flashbacks,
anxiety, the full extent of which injuries are not yet known,
and some or all of which may be permanent in nature.
35.

As the direct and proximate result of the Defendant’s

acts as described in the foregoing paragraphs of this Complaint,
Plaintiff suffered and will in the future continue to suffer
serious pain, mental anguish, emotional upset, and the loss of
enjoyment of life’s pleasures.
36.

As the direct and proximate result of the Defendant’s

acts as described in the foregoing paragraphs of this Complaint,
Plaintiff sustained a setback and loss of continuity in her
education, the full extent of which is not yet known.
37.

As the direct and proximate result of the Defendant’s

acts as described in the foregoing paragraphs of this Complaint,
Plaintiff has sustained a loss of earnings and earning capacity.

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38.

As the direct and proximate result of the Defendant’s

acts as described in the foregoing paragraphs of this Complaint,
Plaintiff has in the past and will in the future continue to be
compelled to expend large sums of money for psychological
treatment and therapy.
WHEREFORE, Plaintiff respectfully requests that this
Honorable Court enter judgment in her favor and against
Defendant William Cosby, in an amount in excess of One Hundred
Fifty Thousand Dollars ($150,000.00) plus reasonable attorneys'
fees, interest, costs, punitive damages, and such other relief
as the Court deems just and proper.

COUNT II
Andrea Constand v. William Cosby
Assault
39.

Plaintiff hereby incorporates by reference the prior

paragraphs of this Complaint as though fully set forth at
length.
40.

Defendant’s harmful or offensive contact with

Plaintiff as set forth herein at length, placed her in imminent
apprehension of such contact, and constituted an assault upon
her.
41.

The aforesaid conduct by Defendant was committed

willfully, knowingly, maliciously, intentionally, wantonly,
recklessly, and/or negligently.

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42.

As the direct and proximate result of Defendant’s acts

described in the foregoing paragraphs of this Complaint,
Plaintiff has suffered serious and debilitating injuries, mental
anguish, humiliation, embarrassment, physical and emotional
upset, including, but not limited to, post-traumatic stress
disorder, depression, sleeplessness, isolation, flashbacks,
anxiety, the full extent of which injuries are not yet known and
some or all of which may be permanent in nature.
43.

As the direct and proximate result of Defendant’s acts

described in the foregoing paragraphs of this Complaint,
Plaintiff suffered and will in the future continue to suffer
serious pain, mental anguish, emotional upset, and the loss of
enjoyment of life’s pleasures.
44.

As the direct and proximate result of Defendant’s acts

described in the foregoing paragraphs of this Complaint,
Plaintiff sustained a setback and loss of continuity in her
education, the full extent of which is not yet known.
45.

As the direct and proximate result of Defendant’s acts

described in the foregoing paragraphs of this Complaint,
Plaintiff has sustained a loss of earnings and earning capacity.
46.

As the direct and proximate result of Defendant’s acts

described in the foregoing paragraphs of this Complaint,
Plaintiff has in the past and will in the future continue to be

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compelled to expend large sums of money for psychological
treatment and therapy.
WHEREFORE, Plaintiff respectfully requests that this
Honorable Court enter judgment in her favor and against
Defendant William Cosby, in an amount in excess of One Hundred
Fifty Thousand Dollars ($150,000.00) plus attorneys’ fees,
interest, costs, punitive damages, and such other additional
relief as this Court deems just and proper.

COUNT III
Andrea Constand v. William Cosby
Intentional and Negligent Infliction of Emotional Distress_
47.

Plaintiff hereby incorporates by reference the prior

paragraphs of this Complaint as though fully set forth at
length.
48.

Defendant’s conduct, as set forth in the foregoing

paragraphs of this Complaint, was so outrageous in character and
so extreme in degree as to fall outside the bounds of decency,
and is to be regarded as intolerable in the community.
49.

At all times relevant hereto, Defendant knew with

substantial certainty, or should have known that severe
emotional distress would be produced by his conduct.
50.

By engaging in the acts set forth in the foregoing

paragraphs of this Complaint, Defendant engaged in extreme and

10

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outrageous conduct and intentionally inflicted severe emotional
distress upon Plaintiff.
51.

By engaging in the acts set forth in the foregoing

paragraphs of this Complaint, Defendant exploited and abused his
friendship and his mentor relationship with Plaintiff, violated
her trust, and caused her great distress.
52.

As a direct and proximate result of the acts of

Defendant as set forth in the foregoing paragraphs of this
Complaint, Plaintiff has in the past been required, and may in
the future required, medicine, medical, psychological and other
treatment in order to cure herself of the injuries she has
sustained; has in the past been obliged, and may in the future
be obliged, to expend various sums of money for such medical
care and treatment.
53.

As further direct and proximate result of the acts of

the Defendant as set forth in the foregoing paragraphs of this
Complaint, Plaintiff has been caused to suffer and continues to
suffer severe emotional distress, humiliation, embarrassment and
financial loss.
WHEREFORE, Plaintiff respectfully requests that this
Honorable Court enter judgment in her favor and against
Defendant William Cosby, in an amount in excess of One Hundred
Fifty Thousand Dollars ($150,000.00) plus attorneys’ fees,

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interest, costs, punitive damages, and such other additional
relief as this Court deems just and proper.

COUNT IV
Andrea Constand v. William Cosby
Defamation/Defamation Per Se
54.

Plaintiff hereby incorporates by reference the prior

paragraphs of this Complaint as though fully set forth at
length.
55.

At all times relevant hereto, Plaintiff was a law

abiding citizen of the Commonwealth of Pennsylvania and/or
Pickering, Ontario, who enjoyed the respect, confidence and
esteem of her neighbors, as well as others in the community, and
has never been adjudged guilty of any crime, offense or
violation of the law which would tend to lessen the respect,
confidence and esteem which she enjoyed, and to which she was
entitled.
56.

At all times mentioned herein, Defendant acted on his

own or through his authorized agents, representatives, sources,
servants or employees who acted for Defendant’s benefit, under
Defendant’s control or direction, and within the course and
scope of their authority, agency, representation or employment.
57.

On or before February 7, 2005, the Defendant, through

his representatives, agents, servants, or employees intending to
injure the Plaintiff and to deprive her of her good name, credit

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and reputation, falsely, maliciously, and wickedly provided
information for at least one publication which aired on
Celebrity Justice, a nationally syndicated television show, and
was posted on the Celebrity Justice website concerning
Plaintiff.
58.

On or about February 21, 2005, Defendant gave an

“exclusive” interview to The Enquirer, a national tabloid with a
circulation of about 1.5 million, intending to or knowing it
would injure Plaintiff, and to deprive her of her good name,
credit and reputation, in which Defendant said, “I am not going
to give in to people who try to exploit me because of my
celebrity status.”
59.

The statements contained in the above publications,

shows and websites intended to and did convey to the viewers
and/or readers thereof, either directly or by implication, that
Plaintiff asked Defendant for money; she did so before she went
to the police; and, that her actions constituted a “shakedown”,
or an attempt to extort money from Defendant, and to exploit
him.
60.

The statements and charges in the publications, shows,

and/or websites identified in the foregoing paragraphs of this
Complaint are false, and Defendant knew or should have known
that they were false at the time of the publications.

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61.

Plaintiff has never, at any time, been guilty of the

crimes alleged by Defendant, nor was she ever an accessory to,
nor an aider and abettor of, such criminal acts, nor has she
ever been guilty of any other violation of law, but she has at
all times been a peaceable and law abiding inhabitant of the
several communities in which she has resided from the day of her
birth to the present time.
62.

Defendant and/or his representatives and agents knew,

or should have known that the statements and charges contained
in the publications, shows and websites identified in the
foregoing paragraphs of this Complaint were false when made, and
Defendant uttered and published them either intentionally and
maliciously, or with reckless disregard for their truth or
falsity.
63.

The statements and charges contained in the

publications, shows and websites identified in the foregoing
paragraphs of this Complaint were printed, published, circulated
and aired by Celebrity Justice on February 7, 2005, and by The
Enquirer on or about March 4, 2005, and were widely heard and
read by the Plaintiff’s family, neighbors, and friends and
diverse other persons, who understood immediately that Plaintiff
was the accuser to which Cosby and/or his representatives,
agents, servants or employees referred.

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64.

By reason of the printing, publication, and

circulation of the statements and charges contained in the
articles, shows, publications, and websites identified in the
foregoing paragraphs of this Complaint, Plaintiff has been
brought into scandal and reproach, and has been held up to scorn
and contempt among her neighbors, business acquaintances, and
other good citizens, and is suspected by them to have been
guilty of the crimes and fraudulent practices which Defendant’s
articles imputed to Plaintiff, as a result of which the
Plaintiff has suffered in her business, her reputation, feelings
and peace of mind, to her great financial loss and damage, and
to her great humiliation.
WHEREFORE, Plaintiff respectfully requests that this
Honorable Court enter judgment in her favor and against
Defendant William Cosby, in an amount in excess of One Hundred
Fifty Thousand Dollars ($150,000.00) plus attorneys’ fees,
interest, costs, punitive damages, and such other additional
relief as this Court deems just and proper.

COUNT V
Andrea Constand v. William Cosby
False Light/Invasion of Privacy
65.

Plaintiff hereby incorporates by reference the prior

paragraphs of this Complaint as though fully set forth at
length.

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66.

The statements identified in the foregoing paragraphs

of this Complaint made by Defendant, or through his authorized
representatives, agents, servants or employees were highly
offensive statements made against Plaintiff, which portrayed her
in a false light.
67.

The statements identified in the foregoing paragraphs

of this Complaint made against Plaintiff were publicized by
Defendant, or publicized through his authorized representatives,
agents, servants, employees and sources.
68.

Defendant and his authorized representatives, agents,

servants, employees and sources knew or should have known that
such statements were false, or recklessly disregarded the
falsity of said statements.
69.

Defendant and/or his authorized representatives,

agents, servants or employees created a false impression by
knowingly or recklessly publicizing selective pieces of
information, rendering the publication susceptible to inferences
casting Plaintiff in a false light.
70.

By reason of Defendant’s aforesaid conduct, Plaintiff

has suffered in her business, her reputation, feelings and peace
of mind, to her great financial loss and damage, and to her
great humiliation.
WHEREFORE, Plaintiff respectfully requests that this
Honorable Court enter judgment in her favor and against

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Defendant William Cosby, in an amount in excess of One Hundred
Fifty Thousand Dollars ($150,000.00) plus attorneys’ fees,
interest, costs, punitive damages, and such other additional
relief as this Court deems just and proper.

JURY DEMAND
Plaintiff hereby demands a trial by jury in this matter.

Respectfully submitted,
Troiani/Kivitz, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
I.D. No. 30253
Dolores M. Troiani, Esquire
I.D. No. 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
(610) 688-8426 fax
Attorneys for Plaintiff,
Andrea Constand
Dated: March 8, 2005

17

Case 2:06-cv-00483-ER Document 1 Filed 02/01/06 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff

:
:

v.

:
:

MARTIN D. SINGER, ESQUIRE
and
THE NATIONAL ENQUIRER
Defendants

CIVIL ACTION NO.

:
:
:

COMPLAINT
Plaintiff Andrea Constand, by her attorneys,
Troiani/Kivitz, L.L.P., claims of Defendants a sum in excess of
$150,000.00, and in support thereof states the following:
A. Jurisdiction and Venue
1.

Plaintiff Andrea Constand is a citizen of Canada and

a resident of Pickering, Ontario.
2.

Defendant Martin D. Singer is a citizen and resident

of the state of California.
3.

Defendant The National Enquirer is a tabloid

newspaper with offices located at One Park Avenue, 3rd Floor,
New York, New York and in Boca Raton, Florida.
4.

The United States District Court for the Eastern

District of Pennsylvania has jurisdiction over this action
pursuant to 28 U.S.C. §§ 1332 and 1332(a)(2) as this is a civil
action between a citizen of a state and a citizen or subject of

Case 2:06-cv-00483-ER Document 1 Filed 02/01/06 Page 2 of 16

a foreign state with an amount in controversy in excess of
$75,000.
5.

Venue lies in the Eastern District of Pennsylvania

pursuant to 28 U.S.C. § 1391 in that the events giving rise to
the claim occurred in the Eastern District of Pennsylvania.
B. The Parties
6.

Plaintiff Andrea Constand is an adult individual

currently residing at a confidential address in Pickering,
Ontario.
7.

Defendant Martin D. Singer is a citizen of the

state of California and whose business address is 2049 Century
Park East, Suite 2400, Los Angeles, California 90067-2906.
8.

Defendant The National Enquirer is a tabloid

newspaper with offices located at One Park Avenue, 3rd Floor,
New York, New York and in Boca Raton, Florida.
C. Factual Background
9.

Plaintiff incorporates by reference the prior

paragraphs of this Complaint, as though fully set forth at
length.
10.

On or about December 2001, Plaintiff was employed at

Temple University as Director of Operations for the Women=s
Basketball program.

In her capacity as such, Plaintiff

met William H. Cosby, Jr. (“Cosby”) in November 2002.

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11.

Cosby fostered a friendship with Plaintiff, so that

over time she considered him to be both her friend, albeit
older, and a mentor.
12.

For over one (1) year, Plaintiff socialized with

Cosby, including, inter alia, discussing Temple women’s
basketball with him, talking with him by telephone, and being
his guest at dinner parties and other events hosted by him at
his Cheltenham home and other locations.
13.

In January 2004, Cosby invited Plaintiff to his 8210

New Second Street, Cheltenham, Montgomery County, Pennsylvania,
home, telling her that he wanted to offer her assistance in her
pursuit of a different career.
14.

Plaintiff agreed to meet him, and arrived at Cosby’s

home at approximately 9:00 p.m.
15.

During that meeting, Cosby drugged the plaintiff and

sexually assaulted her, the facts of which are set forth in a
another action captioned, Constand v. Cosby, Civ. Action No.
05-CV-1099 (E.D. Pa. 2005).
16.

On January 13, 2005, Plaintiff reported Cosby’s

actions to the Durham, Ontario police.
17.

Following Plaintiff’s January 13, 2005 police report,

Cosby and Defendant Singer publicized statements to the media,
including, inter alia, Celebrity Justice (“CJ”), which
statements included: Sources connected with Bill Cosby tell
“CJ” that before his accuser went to police, her mother asked

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the comedian to make things right with money. . . .We’re told
she asked Cosby to help pay for her daughter’s education and to
generally help her out financially, and this conversation
occurred before the accuser ever contacted police. . . .As
police continue to investigate, a Cosby rep [Defendant Singer]
call [sic] this a classic shakedown....However, Cosby’s
attorney, Martin Singer dismissed the allegation as sheer
nonsense and instead accused Constand of being an extortionist
who made the allegations only after Cosby refused to give her
money.
18.

These particular statements were broadcast

nationwide, and posted on Celebrity Justice’s internet website,
also available nationwide, on February 7, 2005 and February 9,
2005, and repeated in multiple news outlets thereafter, (See
Exhibit A).
19.

Celebrity Justice, The Toronto Sun, and FoxNews,

among other media sources, had previously printed and/or aired
Plaintiff’s name and address and/or picture in connection with
this investigation, and other media sources had published her
name and/or a picture of Plaintiff as well, therefore making
her identity as Cosby’s accuser recognizable to the public.
20.

On or about January 26, 2005, Cosby gave an interview

to Cheltenham Township Police officers, in which Cosby admitted
that neither Plaintiff nor her mother had asked him for any

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money, but had only asked him to apologize to Plaintiff and her
mother, which he did.
21.

Sometime thereafter, Defendant Singer informed Cosby

that another woman, Beth Ferrier, had contacted Defendant The
National Enquirer about a similar incident involving Cosby in
which Ferrier alleged that Cosby sexually assaulted her after
she unknowingly ingested a drug given to her by Cosby.
22.

On or about February 21, 2005 in Houston, Texas,

Cosby met with representatives of Defendant The National
Enquirer including Enquirer editor, Barry Levine.
23.

Prior to the Houston meeting, Cosby’s

representatives, including Defendant Singer, negotiated with
Defendant, The National Enquirer and agreed, inter alia, that
Cosby would provide an exclusive interview to Defendant The
National Enquirer, if The National Enquirer would agree to
refrain from printing the Beth Ferrier story.
24.

Defendant The National Enquirer provided a copy of

the unpublished Beth Ferrier article to Cosby and his
representatives, and also provided the interview of Cosby to
Cosby and his representatives for his review, prior to
publication.
25.

At the Houston meeting, Cosby also informed

Defendant The National Enquirer of the conversation he had with
Plaintiff and her mother in January 2005, in which they had
asked only for an apology, not for money.

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26.

On or about February 21, 2005, Cosby gave the agreed

upon “exclusive” interview to Defendant The National Enquirer
concerning Plaintiff’s allegations.

In that interview, in an

effort to continue to make the public believe that Plaintiff
was guilty of extortion, Cosby said, “I am not going to give in
to people who try to exploit me because of my celebrity
status.” (See Exhibit B)
27.

Despite knowing that Plaintiff had not requested

money from Cosby, Defendant The National Enquirer printed the
exclusive Cosby interview, which falsely stated that
Plaintiff’s objective was extortion.
28.

At the time that Cosby and/or his authorized

representatives and/or agents, servants, or employees,
including Defendant Singer, made their statements to Celebrity
Justice, Defendant The National Enquirer, and other
publications, each of them knew or should have known that the
statements were false, because following Plaintiff’s report of
the incident to the Durham police, and beginning on or about
January 16, 2005, and continuing in the days thereafter, Cosby
and/or his representatives and agents, including Defendant
Singer, placed at least four telephone calls to Plaintiff and
her mother in which, among other things, Cosby apologized and
offered financial compensation to Plaintiff, which offer was
not accepted by Plaintiff and/or her mother.

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29.

At the time of the publication, Defendant The

National Enquirer was aware that the article placed Plaintiff
in a false light and was in fact, false, in that The National
Enquirer had knowledge of other women who made claims against
Cosby that he had drugged, and then sexually assaulted them.
30.

At the time of the publications to Celebrity

Justice and The National Enquirer, Defendant Singer was aware
that the publications placed Plaintiff in a false light and
were in fact, false, in that Defendant Singer had knowledge of
other women who made claims against Cosby that he had drugged,
and then sexually assaulted them.
COUNT I
Andrea Constand v. Martin Singer
Defamation/Defamation Per Se
Plaintiff hereby incorporates by reference the prior
paragraphs of this Complaint as though fully set forth at
length.
31.

At all times relevant hereto, Plaintiff was a law

abiding citizen of the Commonwealth of Pennsylvania and/or
Pickering, Ontario, who enjoyed the respect, confidence and
esteem of her neighbors, as well as others in the community,
and has never been adjudged guilty of any crime, offense or
violation of the law which would tend to lessen the respect,
confidence and esteem which she enjoyed, and to which she was
entitled.

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32.

On or about February 7, 2005, and at diverse times

thereafter, Defendant Singer intending to injure the Plaintiff
and to deprive her of her good name, credit and reputation,
falsely, maliciously, and wickedly provided information for at
one or more publications, including but not limited to
Celebrity Justice, a nationally syndicated television show and
internet website concerning Plaintiff, which statements are
more fully set forth above.
33.

On or about February 21, 2005, Defendant Singer

and Cosby agreed to give an “exclusive” interview to Defendant
The National Enquirer, a national tabloid with a circulation of
about 1.5 million, intending to or knowing it would injure
Plaintiff, and to deprive her of her good name, credit and
reputation, in which Cosby made the defamatory statements more
fully set forth above.
34.

Defendant The National Enquirer printed its

exclusive interview with Cosby despite knowing that Plaintiff’s
objective was to obtain an apology from Cosby, not to extort
him.
35.

The statements contained in the above

publications, shows and web sites intended to and did convey to
the viewers and/or readers thereof, either directly or by
implication, that Plaintiff asked Cosby for money; she did so
before she went to the police; and, that her actions

Case 2:06-cv-00483-ER Document 1 Filed 02/01/06 Page 9 of 16

constituted a “classic shakedown”, or an attempt to extort
money from Cosby, and to exploit him.
36.

The statements and charges in the publications,

shows, and/or web sites identified in the foregoing paragraphs
of this Complaint are false, and Defendants Singer and The
National Enquirer knew or should have known that they were
false at the time of the publications.
37.

Plaintiff has never, at any time, been guilty of

the crimes alleged by Cosby, nor was she ever an accessory to,
nor an aider and abettor of, such criminal acts, nor has she
ever been guilty of any other violation of law, but she has at
all times been a peaceable and law abiding inhabitant of the
several communities in which she has resided from the day of
her birth to the present time.
38.

Defendant Singer knew, or should have known that

the statements and charges contained in the publications, shows
and web sites identified in the foregoing paragraphs of this
Complaint were false when made, and Singer uttered and
published them either intentionally and maliciously, or with
reckless disregard for their truth or falsity.
39.

The statements and charges contained in the

publications, shows and web sites identified in the foregoing
paragraphs of this Complaint were printed, published,
circulated and aired by Celebrity Justice on February 7, 2005
and February 9, 2005, and by Defendant The National Enquirer on

Case 2:06-cv-00483-ER Document 1 Filed 02/01/06 Page 10 of 16

or about March 4, 2005, and were widely heard and read by the
Plaintiff=s family, neighbors, and friends and diverse other
persons, who understood immediately that Plaintiff was the
accuser to which Defendants referred.
40.

By reason of the printing, publication, and

circulation of the statements and charges contained in the
articles, shows, publications, and web sites identified in the
foregoing paragraphs of this Complaint, Plaintiff has been
brought into scandal and reproach, and has been held up to
scorn and contempt among her neighbors, business acquaintances,
and other good citizens, and is suspected by them to have been
guilty of the crimes and fraudulent practices which Defendants=
publications imputed to Plaintiff, as a result of which the
Plaintiff has suffered in her business, her reputation,
feelings and peace of mind, to her great financial loss and
damage, and to her great humiliation.
WHEREFORE, Plaintiff respectfully requests that this
Honorable Court enter judgment in her favor and against
Defendants Singer and The National Enquirer, jointly and
severally in an amount in excess of One Hundred Fifty Thousand
Dollars ($150,000.00) plus attorneys’ fees, interest, costs,
punitive damages, and such other additional relief as this Court
deems just and proper.
COUNT II
Andrea Constand v. The National Enquirer
Defamation/Defamation Per Se

Case 2:06-cv-00483-ER Document 1 Filed 02/01/06 Page 11 of 16

Plaintiff hereby incorporates by reference the prior
paragraphs of this Complaint as though fully set forth at
length.
41.

At all times relevant hereto, Plaintiff was a law

abiding citizen of the Commonwealth of Pennsylvania and/or
Pickering, Ontario, who enjoyed the respect, confidence and
esteem of her neighbors, as well as others in the community,
and has never been adjudged guilty of any crime, offense or
violation of the law which would tend to lessen the respect,
confidence and esteem which she enjoyed, and to which she was
entitled.
42.

On or before February 21, 2005, Defendant Singer

and Cosby agreed to give an “exclusive” interview to Defendant
The National Enquirer, a national tabloid with a circulation of
about 1.5 million, intending to or knowing it would injure
Plaintiff, and to deprive her of her good name, credit and
reputation, in which Cosby made the defamatory statements more
fully set forth above.
43.

Defendant The National Enquirer printed its

exclusive interview with Cosby despite knowing that Plaintiff’s
objective was to obtain an apology from Cosby, not to extort
him.
44.

The statements contained in the above publication

were intended to and did convey to the readers thereof, either
directly or by implication, that Plaintiff asked Cosby for

Case 2:06-cv-00483-ER Document 1 Filed 02/01/06 Page 12 of 16

money; she did so before she went to the police; and, that her
actions constituted a “classic shakedown”, or an attempt to
extort money from Cosby, and to exploit him.
45.

The statements and charges in the publication

identified in the foregoing paragraphs of this Complaint are
false, and Defendants Singer and The National Enquirer knew or
should have known that they were false at the time of the
publications.
46.

Plaintiff has never, at any time, been guilty of

the crimes alleged by Cosby, nor was she ever an accessory to,
nor an aider and abettor of, such criminal acts, nor has she
ever been guilty of any other violation of law, but she has at
all times been a peaceable and law abiding inhabitant of the
several communities in which she has resided from the day of
her birth to the present time.

Case 2:06-cv-00483-ER Document 1 Filed 02/01/06 Page 13 of 16

47.

The statements and charges contained in the

publication identified in the foregoing paragraphs of this
Complaint were printed, published, circulated and aired by
Defendant The National Enquirer on or about March 4, 2005,
and were widely heard and read by the Plaintiff’s family,
neighbors, and friends and diverse other persons, who
understood immediately that Plaintiff was the accuser to
which Defendants referred.
48.

By reason of the printing, publication, and

circulation of the statements and charges contained in the
articles, shows, publications, and web sites identified in
the foregoing paragraphs of this Complaint, Plaintiff has
been brought into scandal and reproach, and has been held
up to scorn and contempt among her neighbors, business
acquaintances, and other good citizens, and is suspected
by them to have been guilty of the crimes and fraudulent
practices which Defendants’ publications imputed to
Plaintiff, as a result of which the Plaintiff has suffered
in her business, her reputation, feelings and peace of
mind, to her great financial loss and damage, and to her
great humiliation.
WHEREFORE, Plaintiff respectfully requests that
this Honorable Court enter judgment in her favor and
against Defendants Singer and The National Enquirer, in an

Case 2:06-cv-00483-ER Document 1 Filed 02/01/06 Page 14 of 16

amount in excess of One Hundred Fifty Thousand Dollars
($150,000.00) plus attorneys= fees, interest, costs,
punitive damages, and such other additional relief as this
Court deems just and proper.
COUNT III
Andrea Constand v. Martin Singer and The National
Enquirer
False Light/Invasion of Privacy
Plaintiff hereby incorporates by reference the prior
paragraphs of this Complaint as though fully set forth at
length.
49.

The statements identified in the foregoing

paragraphs of this Complaint made by each of the
Defendants were highly offensive statements made against
Plaintiff, which portrayed her in a false light.
50.

The statements identified in the foregoing

paragraphs of this Complaint made against Plaintiff were
publicized by Defendants.
51.

Each of the defendants knew or should have

known that such statements were false, or recklessly
disregarded the falsity of said statements.
52.

Each of the defendants created a false

impression by knowingly or recklessly publicizing
selective pieces of information, rendering the publication

Case 2:06-cv-00483-ER Document 1 Filed 02/01/06 Page 15 of 16

susceptible to inferences casting Plaintiff in a false
light.
53.

By reason of each of the defendants= aforesaid

conduct, Plaintiff has suffered in her business, her
reputation, feelings and peace of mind, to her great
financial loss and damage, and to her great humiliation.
WHEREFORE, Plaintiff respectfully requests that this
Honorable Court enter judgment in her favor and against
Defendants Singer and The National Enquirer, jointly and
severally, in an amount in excess of One Hundred Fifty
Thousand Dollars ($150,000.00) plus attorneys= fees,
interest, costs, punitive damages, and such other
additional relief as this Court deems just and proper.
JURY DEMAND
Plaintiff hereby demands a trial by jury in this
matter.
Respectfully submitted,
Troiani/Kivitz, L.L.P.
_____________________________
Bebe H. Kivitz, Esquire
I.D. No. 30253
Dolores M. Troiani, Esquire
I.D. No. 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400
(610) 688-8426 fax
Attorneys for Plaintiff,
Andrea Constand

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Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER

AND NOW, this ____ day of __________ 2005, upon consideration of the Motion of
Jane Doe Witnesses to Protect the Disclosure of their Names, supporting Memorandum of Law
and opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses identified herein shall not be disclosed to the
media. The parties are directed that the identities of the Jane Doe witnesses identified herein
shall not be disclosed to anyone other than the parties in this case, counsel for the parties, and
any representatives working on their behalf.
2. The witnesses seeking protection herein shall be referred to as “Jane Doe” with a
number suffix, e.g., “Jane Doe 1”, etc. in all discovery responses, transcripts, and court filings.

BY THE COURT:

_______________________
J.

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 2 of 25

B. Joyce Dale, Esquire
I.D. No. 70093
Crime Victim’s Law Center
202 N. South Avenue
Media, PA 19063

Attorneys for Plaintiff

Judith Rubino, Esquire
I.D. No. 14203
1528 J.F.K. Blvd., Suite 1204
Philadelphia, PA 19102
Ralph A. Jacobs, Esquire
I.D. No. 21387
Ralph A. Jacobs & Associates
215 S. Broad Street, 10th Floor
Philadelphia, PA 19107

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

MOTION OF JANE DOE WITNESSES TO PROTECT
DISCLOSURE OF THEIR NAMES OUTSIDE OF THIS LITIGATION
The Jane Doe witnesses specified below, by their undersigned counsel, move this Court
for an order protecting their identity from the media. In support of their Motion, the Jane Doe
witnesses rely on the accompanying Memorandum of Law, which is incorporated by reference as

1

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 3 of 25

if fully set forth herein.

_______________________
B. Joyce Dale, Esquire
I.D. No. 70093
Crime Victim’s Law Center
202 N. South Avenue
Media, PA 19063
and
Judith F. Rubino, Esquire
I.D. No. 14203
1528 J.F.K. Blvd., Suite 1204
Philadelphia, PA 19102
and
Ralph A. Jacobs, Esquire
I.D. No. 21387
Ralph A. Jacobs & Associates
215 S. Broad Street, 10th Floor
Philadelphia, PA 19107

2

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 4 of 25

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

MEMORANDUM OF LAW OF JANE DOE WITNESSES TO PROTECT
THE DISCLOSURE OF THEIR NAMES OUTSIDE THIS LITIGATION
This motion is filed by three separate counsel, B. Joyce Dale, Esquire, Judith Rubino,
Esquire, and Ralph Jacobs, Esquire, who are each presently representing at least one Jane Doe
witness in this litigation. The reasons for the relief sought are set forth below.
Plaintiff’s counsel have previously made clear the scope of the relief requested by the
Jane Doe witnesses identified below. Each witness has come forward voluntarily to lend support
to plaintiff’s case by testifying to similar events each has experienced with the defendant. None
of the Jane Doe witnesses knows the plaintiff personally. None of the Jane Doe witnesses stands
anything to gain by coming forward at this time. Each of the Jane Doe witnesses is aware that
her identity has been disclosed to defendant, and that defendant will have the right to take
discovery as well as to cross-examine her. Each of the specified Jane Doe witnesses is willing to
subject herself to such scrutiny within the context of this litigation; still, the Jane Doe witnesses
specified below are not celebrities or public personalities. They wish their identities to be
protected from the media to avoid the type of media frenzy associated with other celebrity cases,
and already associated with this case.
In fact, members of the media have called the plaintiff here, Andrea Constand, on her
home telephone line, uninvited to do so, and have visited her at her home, similarly uninvited.

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 5 of 25

On one occasion, a reporter showed up unexpectedly and without prior notice at plaintiff’s home
with flowers, appearing to be a delivery man, in an attempt to solicit an “exclusive interview”.
Moreover, the media attention has originated from many and multiple sources, and has been
relentless. The media calls have stemmed from local newspapers and television stations as well
as out-of-state newspapers, Canadian newspapers, The National Enquirer, CNN, FoxNews,
MSNBC, Celebrity Justice, and The Geraldo Rivera Show, to name but a few. The Jane Doe
witnesses do not seek this attention, but more importantly, several of them are specifically
requesting that they not be contacted or harassed as plaintiff was. Each Jane Doe witness is
prepared to testify and be cross-examined here; however, none of the Jane Doe witnesses
specified below wishes to invite unsolicited media attention and the stress associated with it.
Counsel for the Jane Doe witnesses hereby incorporate plaintiff’s Motion to Protect the
Identity of Rule 415 Jane Doe Witnesses as though fully set forth herein, which is attached
hereto as Exhibit “A”. In addition, consistent with the Court’s June 2, 2005 Order, counsel for
the Jane Doe witnesses submit the following reasons, supplied by the witnesses, all of which
constitute good cause, pursuant to F.R.E 26(c), why the Jane Doe names should not be disclosed
outside the scope of this litigation1 .
1. JANE DOE NO. 1
Jane Doe No. 1 lives in a small town. She is a private person, as is her 87 year old father
and 82 year old mother. She is not the type of person to invite media attention, nor does she or
her family want it. She believes that she has a moral and civic obligation to participate here as a
witness. At the same time, she believes that she and her elderly parents will be unable to cope

1

Counsel have not submitted affidavits or disclosures that would necessitate the signatures of the
witnesses, given that the names have not previously been disclosed in a motion or pleading, and
counsel are requesting in this motion that their names not be disclosed outside of this litigation.
4

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 6 of 25

with significant media attention or publicity, and will find it too stressful. She requests that her
identity not be revealed to the media.
2. JANE DOE NO. 2
Jane Doe No. 2 suffers from and has been treated for bipolar disorder. She does not want
her privacy invaded, and feels that such an invasion would be upsetting to her, would be
detrimental to her medical condition, and in fact might exacerbate her symptoms. She does not
want to be contacted by the news, and does not want her family contacted. She believes that any
unsolicited coverage or calls from the media will have a detrimental effect on her and her family,
and will be a source of additional stress.
3. JANE DOE NO. 3
Jane Doe No. 3 values her privacy, and requests that it be respected. She does not want
her privacy invaded. She believes that it would be devastating for her to be contacted by the
press or by defendant’s fans or supporters. She believes that defendant’s fans or supporters
might try to harass her, contact her, or otherwise give her a difficult time. Jane Doe No. 3 is also
employed by a gambling casino; she believes that she could in fact lose her job if she is
contacted at her place of employment, and further, that she could lose her job if the casino
management has a problem simply with her being in the limelight because of her status as a Jane
Doe witness here.
4. JANE DOE NO. 4
Jane Doe No. 4 does not want media attention or media contact, and believes it would be
too stressful. She especially wants to protect the privacy of her family. Her husband has been
ill, and has undergone brain surgery within the last month. As a result of his medical condition
and treatment, she feels it is imperative that she and her family suffer no additional stress.

5

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5. JANE DOE NO. 5
Jane Doe No. 5 is not requesting that her identity be kept private.

6. JANE DOE NO. 6
Jane Doe No. 6 does not want any notoriety, publicity, or media attention as a result of
her involvement as a witness here. She wants her life to remain private and, most importantly,
the same. She recognizes the time commitment associated with being a witness in these
proceedings; still, she does not want the press interfering with her time outside of the scope of
this case, or interfering with her ability to maintain her career or her contacts with her clients.
7. JANE DOE NO. 7
Jane Doe No. 7 does not want to be contacted by the news media, and does not want to
suffer embarrassment from any such attention. She does not want her friends and family
contacted, including her child who is starting a new school, or that child’s school. She also fears
that her child may be subjected to harassment or ridicule if her name were revealed in the press.
She has recently reentered therapy as a result of dealing with the psychological repercussions
over the prior events with defendant, after coming forward here. She feels that media attention
would exacerbate these stressful life events for her, and therefore, she asks that her identity not
be released outside of this litigation.
8. JANE DOE NO. 8
Counsel hereby incorporates the separate Motion to Extend the Suspension Period of the
Court’s Order Regarding the Identity of the Jane Doe Witnesses as to Jane Doe No. 8, submitted
by plaintiff’s counsel, as though fully set forth herein.
9. JANE DOE NO. 9

6

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Jane Doe No. 9 is not seeking, and does not want, any publicity or notoriety in
connection with her participation here as a witness. She does not want to be contacted, bothered,
or harassed by the media.

10. JANE DOE NO. 10
Jane Doe No. 10 believes that media attention will be humiliating, and she does not want
it. She does not want people showing up at her house, whether it be defendant’s fans, the press,
or cameramen. She does not want any of these sources contacting her. She understands that as a
witness, she will be deposed and will testify subject to cross-examination, but does not seek
publicity, and does not want her name disclosed to others outside of this litigation.
11. JANE DOE NO. 11
Jane Doe No. 11 does not want to be harassed by the media or by others. She values her
privacy, and requests that it be respected. She summed up her feelings in the following way:
having already been a victim, she feels that she will be victimized again if her name is disclosed
outside of this litigation.
12. JANE DOE NO. 12
Jane Doe No. 12 does not want to be contacted, bothered or harassed by the media, and
believes that such contact would be intrusive.
For the reasons stated in the Motion to Protect the Identity of the Rule 415 Jane Doe
Witnesses, as well as the individual good cause demonstrated herein, the above specified Jane

7

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 9 of 25

Doe witnesses respectfully request the Court to protect the release of their names outside of this
litigation, and requests that the Court order defendant not to disclose their names to others

8

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 10 of 25

outside of this litigation.
Respectfully submitted,

______________________
B. Joyce Dale, Esquire
Attorney I.D. No. 70093
Crime Victim’s Law Center
202 N. South Avenue
Media, PA 19063
Attorney for Jane Doe Nos. 1-7 and
Jane Doe No. 9
and

Judith F. Rubino, Esquire
Attorney I.D. No. 14203
1528 J.F.K. Blvd., Suite 1204
Philadelphia, PA 19102
Attorney for Jane Doe No. 10 and
Jane Doe No. 11
and

Ralph A. Jacobs, Esquire
Attorney I.D. No. 21387
Ralph A. Jacobs & Associates
215 S. Broad Street, 10th Floor
Philadelphia, PA 19107
Attorney for Jane Doe No. 12

9

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 11 of 25

EXHIBIT “A”

10

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 12 of 25

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER

AND NOW, this ____ day of __________ 2005, upon consideration of Plaintiff’s Motion
to Protect the Identity of Rule 415 Jane Doe Witnesses, supporting Memorandum of Law and
opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses shall not be disclosed to the media. In order to
assure this, their identities shall not be disclosed to anyone other than the parties in this case,
counsel for the parties, and any representatives working on their behalf.
2. All Plaintiff’s Rule 415 witness shall be referred to as “Jane Doe” with a number
suffix, e.g., “Jane Doe 1”, etc. in all discovery responses, transcripts and court filings.

BY THE COURT:

_______________________
J.

11

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 13 of 25

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PLAINTIFF’S MOTION TO PROTECT THE
IDENTITY OF RULE 415 JANE DOE WITNESSES
Plaintiff Andrea Constand, by her undersigned counsel, moves this Court for an order
protecting the identity of F.R.E. 415 witnesses from the media. In support of her Motion,
plaintiff relies on the accompanying Memorandum of Law, which is incorporated by reference as
if fully set forth herein.

TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 14 of 25

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION
TO PROTECT THE IDENTITY OF RULE 415 JANE DOE WITNESSES
Plaintiff Andrea Constand (“Constand”) submits this Memorandum of Law in support of
her Motion to Protect the Identity of Rule 415 Jane Doe Witnesses.
At trial, plaintiff will seek the admissibility of testimony of ten or more witnesses
pursuant to F.R.E. 415. These witnesses – identified in Plaintiff’s “Self-Executing Disclosures”
as “Jane Doe” witnesses – will testify about prior similar sexual assaults and/or drugging
incidents perpetrated by the Defendant. See Plaintiff’s Self-Executing Disclosures pursuant to
Federal R. Civ. Proc. 26(a) & 28 U.S.C. § 473(a)(4), attached hereto as Exhibit “A”. Plaintiff
does not seek to protect the identity of these witnesses from defendant. However, because of the
sensitive and personal nature of these witnesses’ testimony, plaintiff seeks to protect their
identity from the press and the public by requesting the Court to issue a protective order, before
their actual identities are revealed to defendant and his counsel.

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 15 of 25

ARGUMENT
The Motion to Protect the Identity of the Jane Doe Witnesses should be granted
because their Privacy Concerns Outweigh the Public’s right to know their Identity.
Plaintiff proposes to identify the Jane Doe witnesses to defendant in this litigation, but
not identify them by name to the press. The anticipated testimony of the Jane Doe witnesses
relates to the obviously sensitive subject matter of sexual assaults and/or druggings. Of equal
concern is that disclosure of the witness’s identities may place them at risk of further physical
and psychological harm from media exposure or from overly zealous fans and supporters of the
celebrity defendant2 . These concerns are critical because whether plaintiff should publicly
disclose the identities of the Jane Doe witnesses rests upon a weighing of their privacy and
security interests against the public’s need to know their names and addresses.
Other Courts have weighed these interests and, typically, extend protection to testifying
witnesses. In James v. Tilghman, 194 F.R.D. 398 (D. Conn. 1999), for example, the Court was
confronted with a similar issue pertaining to a civil suit against the Connecticut Department of
Corrections over its failure to protect the plaintiff inmate from sexual assaults by his cellmate.
The plaintiff wished to call certain Rule 415 inmate witnesses, who had also been subject to
sexual assaults by the same cellmate. In this instance, the defendant and not plaintiff knew the
identities of the witnesses. Plaintiff filed a motion to compel discovery of the inmate identities
and defendant filed a motion to preclude their identities. Id. at 399. The court held that
disclosure of the inmate identities subjected them to a possible security risk and “in balancing the
interests of all parties concerned” set forth procedures that required the cellmates’ consent as a
precondition to disclosing their identities, otherwise disclosure would not be permitted. Id. at
402.
2

Indeed, this is not a specious concern. Although the press routinely declines to print the name of sexual assault
complainants, in this case both plaintiff’s name and picture were published in various sources.

2

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 16 of 25

In another example, Jason Doe v. American Nat. Red Cross, 151 F.R.D. 71, 72 (S.D.
W.Va. 1993), the Judge Magistrate performed a similar balancing analysis in determining
whether the identity of a deceased blood donor should be disclosed to plaintiff transfusion
recipient. The court ordered that the confidentiality of the donor identity be maintained but
subject to limited disclosure for discovery purposes. Id. at 74-75, n.5. See also Landano v. U.S.
Dept. of Justice, 956 F.2d 422, 430 -431 (3rd Cir. 1992) (no public interest in disclosure of
names under FOIA request for FBI files where individuals involved have some privacy interest
in not having names disclosed in connection with criminal investigation).
Likewise, in Carhart v. Ashcroft, 300 F. Supp.2d 921 (2004), an action to enjoin
enforcement of the Partial-Birth Abortion Ban Act of 2003, plaintiffs moved to protect the
identity of their expert witness who had performed the banned procedures. The court held that
the witness, a non-party, was uniquely qualified to testify that his or her safety would be
compromised by disclosure of the witness’s identity. Id. at 922. The court opined:
The court may take all reasonable steps necessary to protect the
witness during discovery, at trial, and thereafter. See, e.g., Federal
Rule of Evidence 611(a) ("The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to ... (3) protect witnesses from
harassment or undue embarrassment") & Federal Rule of Civil
Procedure 26(c) (permitting the court to make "any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden ...."). In extraordinary
circumstances, "where the safety ... of a witness ... might be
jeopardized by compelling testimony to be given under normal
conditions, the courts have permitted testimony to be given in
camera, outside the courtroom, or under other circumstances that
afford protection." 28 Charles A. Wright & Victor J. Gold, Federal
Practice and Procedure § 6164, at 350-51 (1993) (footnotes
omitted).
Id. at 922 -923. See also Fluke v. Heidrick & Struggles, Inc., 2004 WL 884455, 2 (E.D. Pa
2004) (in negligence suit against executive recruitment form, identities may be protected where

3

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 17 of 25

disclosure of names and addresses would be harmful to search candidates and to defendant’s
ability to perform executive searches); McMullan v. Wohlgemuth, 444 Pa. 563, 567, 281 A.2d
836, 838 (1971) (Pennsylvania Right to Know Act excludes disclosure of information which
would operate to the prejudice or impairment of a person's reputation or personal security).
In the instant case, it is difficult to identify what public interest, if any, will be served by
disclosing the identity to the media of the Jane Doe witnesses. The public, of course, will have
access to the substance of the testimony; but the identity of the testifying witness will add little to
the public’s knowledge of the proceedings. On the other hand, without the imposition of a
confidentiality order and with fear of embarrassment and possible retaliation, there is a risk of
harm to each of the witnesses should their identities become publicly broadcast. Clearly, the
balance here weighs heavily in favor of preserving the privacy of the Jane Doe witnesses.
CONCLUSION
For all the foregoing reasons, Plaintiff Andrea Constand respectfully requests this Court
to grant her Motion to Protect the Identity of Rule 415 Jane Doe Witnesses.

Respectfully submitted,
TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

4

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 18 of 25

CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiff’s Motion and Memorandum of Law to
Protect the Identity of the Rule 415 Jane Doe Witness was filed electronically and is available for
viewing and downloading from the ECF system. I further certify that a true and correct copy of
said document was served via regular First Class mail, postage prepaid, on the following:
Patrick J. 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

TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff
Date: April 19, 2005

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 19 of 25

EXHIBIT “A”

2

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 20 of 25

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

SELF-EXECUTING DISCLOSURES PURSUANT TO
FEDERAL R. CIV. PROC. 26(a) & 28 U.S.C. §473(a)(4)

Plaintiff, by and through her counsel, Troiani/Kivitz,
L.L.P., provides the following disclosures:

A.

WITNESSES:
1.

Andrea Constand
Confidential address
Pickering, Ontario

2.

Gianna Constand
Confidential address
Pickering, Ontario

3.

Detective Richard Shaffer
Cheltenham Township Police Dept.
8230 Old York Road
Elkins Park, PA 19027

4.

Lt. Richard Peffall
Montgomery County Detective Bureau
One Montgomery Plaza, Suite 502
Norristown, PA 19401
3

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 21 of 25

5.

Jennifer Sprague
Psychotherapist
53 Rabbit Street
Lakefield, Ontario

6.

William H. Cosby, Jr.
8210 New Second Street
Cheltenham, Pennsylvania

7.

Barry Levine
The National Enquirer, Inc.
1000 American Media Way
Boca Raton, Florida 33464

8.

Joe Tobin
Celebrity Justice
New York, New York

Fed. R. Evid. 415 Witnesses, as to prior sexual assaults:
9.

Tamara Lucier Green, Esquire
Confidential address
Ventura, California
Plaintiff believes this witness is in the process of
retaining legal counsel

10.

Jane Doe 1
Confidential address
Taos, New Mexico
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

11.

Jane Doe 2
Confidential address
Spring Hill, Florida
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

12.

Jane Doe 3
Confidential address
Las Vegas, Nevada
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

4

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 22 of 25

13.

Jane Doe 4
Confidential address
Portola Valley, California
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

14.

Jane Doe 5
Confidential address
Denver, Colorado
Plaintiff believes this witness is in the process of
retaining legal counsel

15.

Jane Doe 6
Confidential address
Toledo, Ohio
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

16.

Jane Doe 7
Confidential address
Cave Creek, Arizona
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

16.

Jane Doe 8
Confidential address
Monument, Colorado

16.

Jane Doe 9
Confidential address
Corralitos, California
Plaintiff believes this witness is in the process of
retaining legal counsel

Plaintiff reserves the right to supplement this list as a
result of discovery and/or as additional information becomes
known or available to her, as additional Jane Doe witnesses are
located, or as additional Jane Doe witnesses who have contacted
Plaintiff’s counsel indicate their willingness to be listed as
trial witnesses.

B.

DOCUMENTS

1.
Documents constituting the criminal investigation in
this matter.

5

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 23 of 25

2.
Documents constituting transcripts of telephone
conversations by Mr. Cosby and his authorized agents.

3.
Relevant publications, including February 7, 2005,
Celebrity Justice and March 4, 2005, Enquirer, and other
relevant documents in possession of Celebrity Justice, The
Enquirer, or other publications concerning Defendant’s
statements, statements of his representatives or agents, and
statements made by potential witnesses to representatives of
such publications.
4.
Documents within the possession of the New York County
District Attorney’s Office and/or 19th Police Precinct, New York,
NY, concerning Lachele Covington’s allegation of sexual assault
made against Defendant in 2000.
Plaintiff reserves the right to supplement this list as a
result of discovery and/or as additional information becomes
known or available to her.
C.

DAMAGES

Plaintiff has sustained emotional and psychological damage,
including post-traumatic stress disorder, anxiety, depression,
and humiliation.

TROIANI/KIVITZ, L.L.P.

________________________
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

6

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 24 of 25

CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiff’s Selfexecuting Disclosures was served via facsimile and U.S. mail,
postage prepaid, on the following:

Patrick J. O’Connor, Esquire
Cozen O’Connor
1900 Market Street
Philadelphia, PA 19103

TROIANI/KIVITZ, L.L.P.

Date: April 6, 2005

________________________
Bebe H. Kivitz
Dolores M. Troiani
Attorney for Plaintiff

7

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 25 of 25

CERTIFICATE OF SERVICE
I, B. Joyce Dale, hereby certify that on the date indicated below the undersigned served
the Motion of Jane Doe Witnesses to Protect the Disclosure of their Names by facsimile and
U.S. First Class mail, postage prepaid, on the following:
Patrick J. 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

________________________
B. Joyce Dale, Esquire
Crime Victim’s Law Center
202 N. South Avenue
Media, PA 19063

Date: June 13, 2005

Case 2:05-cv-01099-ER Document 30 Filed 06/02/05 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
WILLIAM H. COSBY, JR.
Defendant.

CIVIL ACTION
05-1099

CASE MANAGEMENT ORDER 1
AND NOW, this 2nd day of June, 2005, it is hereby
ORDERED that Pennsylvania Rule of Professional Conduct 3.6 shall
be adopted as Case Management Order 1 governing the conduct of
counsel in this matter.

Rule 3.6 shall be adopted as follows:

(a) A lawyer who is participating or has
participated in the investigation or
litigation of a matter shall not make an
extrajudicial statement that the lawyer knows
or reasonably should know will be
disseminated by means of public communication
and will have a substantial likelihood of
materially prejudicing an adjudicative
proceeding in the matter.
(b) Notwithstanding paragraph (a), a
lawyer may state:
(1) the claim, offense or defense involved
and, except when prohibited by law, the
identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of the matter is in
progress;
(4) the scheduling or result of any step in
litigation;
(5) a request for assistance in obtaining
evidence and information necessary thereto;
(6) a warning of danger concerning the
behavior of a person involved, when there is
reason to believe that there exists the

Case 2:05-cv-01099-ER Document 30 Filed 06/02/05 Page 2 of 2

likelihood of substantial harm to an
individual or to the public interest . . . .
(c) Notwithstanding paragraph (a), a
lawyer may make a statement that a reasonable
lawyer would believe is required to protect a
client from the substantial undue prejudicial
effect of recent publicity not initiated by
the lawyer or the lawyer's client. A
statement made pursuant to this paragraph
shall be limited to such information as is
necessary to mitigate the recent adverse
publicity.
(d) No lawyer associated in a firm or
government agency with a lawyer subject to
paragraph (a) shall make a statement
prohibited by paragraph (a).1
IT IS FURTHER ORDERED that violations of Case
Management Order 1 shall be subject to sanctions by this Court.
AND IT IS SO ORDERED.

EDUARDO C. ROBRENO, J.

1

Rule 3.6 of the Rules of Professional Conduct was adopted
by the Pennsylvania Supreme Court on August 23, 2004 and became
effective January 1, 2005.
2

Case 2:05-cv-01099-ER Document 59 Filed 12/05/05 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff

:
: CIVIL ACTION
:
v.
: NO. 05-CV-1099
:
WILLIAM H. COSBY, JR.,
:
Defendant
:
____________________________________________________________________________

RESPONSE OF PLAINTIFF TO MOTION OF THE ASSOCIATED PRESS TO
INTERVENE AND TO LIFT SEAL

Plaintiff, Andrea Constand, hereby responds to the Motion To Intervene of the
Associated Press. For the reasons stated in the accompanying memorandum of law, Plaintiff
does not oppose the motion for intervention and joins in the request to lift the seal.

Respectfully submitted,
TROIANI/KIVITZ, L.L.P.

By:_____________________
Bebe H. Kivitz
Attorney I.D. No. 30253
Dolores M. Troiani
Attorney I.D. No. 21283
38 N. Waterloo Road
Devon, Pennsylvania 19333
610 - 688-8400
Dated:_________________

Case 2:05-cv-01099-ER Document 59 Filed 12/05/05 Page 2 of 2

CERTIFICATE OF SERVICE
I hereby certify that on, December 5, 2005, the undersigned were served in the following
manner, a true and correct copy of : Response of Plaintiff To Motion Of The Associated
Press To Intervene and Memorandum of Law.
NAME

MANNER

The Honorable Eduardo C. Robreno
Eastern District of Pennsylvania
U.S. Courthouse
601 Market Street, Room 2609
Philadelphia, PA 19106

Hand-Delivered

Office of the Clerk of Court
Eastern District of Pennsylvania
U.S. Courthouse
601 Market Street, Room 2609
Philadelphia, PA 19106

Hand-Delivered

Patrick J. O’Connor, Esquire
Cozen O’Connor
1900 Market Street
Philadelphia, PA 19103

Hand-Delivered

Andrew D. Schau, Esquire

United States First Class Mail

Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036
TROIANI/KIVITZ, L.L.P.
By: _________________________
Dolores M. Troiani
Attorney I.D. No. 21283
Attorney for Plaintiff

Date: _12/5/05

Case 2:05-cv-01099-ER Document 59-1 Filed 12/05/05 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff

:
: CIVIL ACTION
:
v.
: NO. 05-CV-1099
:
WILLIAM H. COSBY, JR.,
:
Defendant
:
____________________________________________________________________________

PLAINTIFF’S RESPONSE TO THE ASSOCIATED PRESS’ MOTION
TO INTERVENE AND TO LIFT SEAL AND MEMORANDUM
OF LAW IN SUPPORT OF THE MOTION
Plaintiff, Andrea Constand does not oppose the Motion of the Associated Press to
Intervene and to Lift Seal, and, in fact, joins in said Motion and incorporates the Memorandum of
Law filed by the Associated Press as if fully set forth herein. Plaintiff agrees that “all requests
for discovery, responses, and legal memoranda”, as well as all motions and other judicial records
should not be sealed. Further, Plaintiff reiterates her objection to proceeding exclusively by way
of sending letters to the Court, rather than filing formal and public motions pursuant to the
Federal Rules of Civil Procedure. As she has previously stated, Plaintiff is entitled to make a
record concerning every aspect of these proceedings, which record is her only means of public
vindication for the harm inflicted upon her by Defendant’s defamation. Moreover, Plaintiff
objects that Defendant is achieving de facto confidentiality by litigating secretively by way of
letter in spite of the Court’s Order, which denied Defendant’s Motion for a blanket protective
order. Constand v. Cosby, 229 F.R.D. 472, (E.D. Pa. 2005)
Not only does Plaintiff object to this unorthodox and “secretive” avenue of proceeding, it

1

Case 2:05-cv-01099-ER Document 59-1 Filed 12/05/05 Page 2 of 4

is contrary to the Court’s standard operating procedures, established case law, and the Federal
Rules of Civil Procedure. Litigating this case furtively is prejudicial to Plaintiff and denies her
the equal protection of the law. It permits Defendant to manipulate public opinion, as he has
admitted that he has done, and it also prohibits Plaintiff from fully responding to motions filed by
Defendant, which motions raise factual issues concerning matters, which are under seal. For
instance, Defendant has filed a Motion to Strike Plaintiff’s Motion Concerning Defendant’s
Conduct at the Deposition that references a telephone conference with the Court and counsel.
The transcript of the telephonic conference was also sealed and Plaintiff is unable to obtain the
transcript without Court Order. The necessity of obtaining such an order causes delay, which
would not be encountered if this case were to proceed in the normal course. It is also unduly
burdensome upon the Court, which is required to rule upon the request for the transcript.
Consequently, either Plaintiff will be forced to reply to the Motion to Strike without the benefit
of the transcript or the time period for Plaintiff’s response is effectively shorten while Plaintiff
awaits the Court’s ruling. Plaintiff should be afforded the same response time afforded to all
other litigants who seek protection of the federal courts and the Court should not be required to
interrupt its schedule to make such a ruling.
Moreover, Defendant has caused substantial delay in this case by diverting the Court onto
an issue, previously ruled upon. The statute of limitations on defamation runs on February 7,
2006 as to those unidentified agents of Defendant who made the statements to Celebrity Justice
and on February 21, 2006, as to the National Enquirer. Instead of addressing the merits of the
Motions to Compel and the “Hall” motion, Defendant has sidetracked this case onto an issue,
which he previously and unsuccessfully litigated. Defendant has created confusion so that it is
2

Case 2:05-cv-01099-ER Document 59-1 Filed 12/05/05 Page 3 of 4

unclear if the scope and breadth of the Court’s November 4, 2005, Order is in conflict with the
earlier Order of June 2, 2005. For example, Plaintiff seeks to file a motion to compel compliance
with a subpoena Plaintiff served upon the National Enquirer, aimed at the production of an
agreement Defendant made with the National Enquirer preceding Defendant’s 1/21/05 Exclusive
Interview, which is, in part, the subject of Plaintiff’s defamation claim. If that motion to compel
compliance with the subpoena is also governed by the November 4, 2005 Order, then Defendant
has obtained the blanket order, which this Court initially denied.
In fact, Plaintiff’s counsel clearly articulated publicly on September 26, 2005, when
counsel appeared before the Court, that Plaintiff’s counsel intended to question Defendant about
whether or not Defendant was confronted with the Beth Ferrier polygraph and that was his
motive for granting the National Enquirer interview. A report of that hearing was published in
the Philadelphia Daily News, (Exhibit A). Plaintiff should be permitted to file such a Motion,
without concern that it touches upon material Defendant just happens to be requesting be kept
confidential particularly where Defendant wants every aspect of this litigation to be kept
confidential and this Court has denied that request, and some of the material he seeks to suppress
is already in the public domain. Moreover, how can the public properly assess the information
they receive concerning Plaintiff, when the only information is that generated by the Cosby press
machine and the public is unaware of the manipulation perpetrated by that machine?
In addition, if Plaintiff chooses to file an amended complaint to add other defendants, a
majority of the information will be revealed in that document. This entire procedure is an
exercise in futility perpetrated by Defendant in hopes of causing sufficient delay, so that Plaintiff
will be unable to join his “agents and representatives” because the statute of limitations will have
3

Case 2:05-cv-01099-ER Document 59-1 Filed 12/05/05 Page 4 of 4

run on the defamation claim.
Finally, an additional reason that Plaintiff requests that the seal be lifted is that one
element of a defamation claim is the public vindication of Plaintiff’s name. See, e.g. Sprague
v.ABA, et al., 276F. Supp 2d 365 (E.D. Pa. 2003). (“ … the most important function of an action
for defamation is to give the innocent and injured Plaintiff a public vindication of his good name
… ) In this regard, Plaintiff should be entitled to the release of any and all testimony and
documents, which support her defamation claim, and allows her to vindicate her name and
mitigate her damages. Insofar as Defendant has testified to matters that corroborate Plaintiff’s
claims against him, and provide evidence of his actual motivation in making publicized and false
statements about Plaintiff, the seal should be lifted so that Plaintiff may be vindicated.
For all of the reasons cited in the Memorandum of the Associated Press, and herein,
Plaintiff requests that this Honorable Court lift its seal.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
By:_____________________
Dolores M. Troiani
Attorney I.D. No. 21283
Bebe H. Kivitz
Attorney I.D. No. 30253
38 N. Waterloo Road
Devon, Pennsylvania 19333
610 - 688-8400

4

Case 2:05-cv-01099-ER Document 17 Filed 04/27/05 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
:
:
:
:
:
:
:
:

No. 05-cv-1099

DEFENDANT’S MOTION FOR PROTECTIVE ORDER
Pursuant to Federal Rule of Civil Procedure 26(c), Defendant hereby moves for an Order
protecting him—and all parties and all witnesses in this highly publicized, sensational case—
from undue embarrassment, oppression, and annoyance and preserving his right to a fair trial.
The grounds for this motion are set forth in the accompanying memorandum.

Dated: April 27, 2005

s/ Patrick O’Connor
Patrick J. O’Connor
George M. Gowen III
COZEN O’CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant

Case 2:05-cv-01099-ER Document 17-1 Filed 04/27/05 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
:
:
:
:
:
:
:
:

No. 05-cv-1099

ORDER
AND NOW, upon consideration of Defendant’s Motion for Protective Order, Plaintiffs’
Motion to Protect the Identity of Rule 415 Jane Doe Witnesses, and the parties’ respective
responses thereto, it is hereby ORDERED that Defendant’s Motion is GRANTED and Plaintiff’s
motion is DENIED AS MOOT. It is further ORDERED that:
1.

All information uncovered or obtained in discovery in this matter shall be treated

as confidential, subject to review by the Court upon application of any party.
2.

No party may disclose any information covered by paragraph one to anyone other

than the parties in this case, their counsel, and representatives working on their behalf, and no
party may use any such information for any purpose other than this litigation.
3.

The parties are granted leave to file documents under seal, subject to review by

the Court upon application of any party.
4.

All court filings referring to, quoting, summarizing, or attaching any information

covered by paragraph one must be filed under seal, with a substitute copy expressly omitting the

Case 2:05-cv-01099-ER Document 17-1 Filed 04/27/05 Page 2 of 2

reference, quotation, summary, or attachment filed publicly.

EDUARDO C. ROBRENO, J.

2

Case 2:05-cv-01099-ER Document 17-2 Filed 04/27/05 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
:
:
:
:
:
:
:
:

No. 05-cv-1099

MEMORANDUM IN SUPPORT OF DEFENDANT’S
MOTION FOR PROTECTIVE ORDER AND IN OPPOSITION
TO PLAINTIFF’S MOTION TO PROTECT THE IDENTITY OF
RULE 415 JANE DOE WITNESSES FOR PROTECTIVE ORDER
Defendant respectfully submits this memorandum in support of his Motion for Protective
Order (“Defendant’s Motion”). For the reasons explained below, Defendant seeks an order
preventing the parties from publicly disclosing or discussing information learned in discovery.
Because the relief sought in Defendant’s Motion would obviate the relief sought in Plaintiff’s
Motion for Protective Order (“Plaintiff’s Motion”), Defendant also submits this memorandum in
opposition to Plaintiff’s Motion.
I.

FACTUAL BACKGROUND
This is a diversity case, involving contested claims of sexual assault, battery, infliction of

emotional distress, and defamation. Plaintiff alleges that the Defendant drugged her and sexually
assaulted her. The Defendant vigorously denies Plaintiff’s allegations. As in any civil case, the
Plaintiff’s claims will be tried in due course, and a jury will have the opportunity to assess their
merit and render a judgment.

Case 2:05-cv-01099-ER Document 17-2 Filed 04/27/05 Page 2 of 8

Unfortunately, because the Defendant is a famous comic personality and actor, and
because Plaintiff’s attorneys have been aggressively courting media coverage of the Plaintiff’s
allegations in the national and local press, plaintiff’s allegations, and the allegations of
anonymous “Jane Doe” witnesses, have attracted a frenzy of media attention. The coverage has
been particularly acute in the Philadelphia area, because the Defendant is from Philadelphia, has
well-known ties to Temple University, and maintains a home in Cheltenham. Regrettably, as a
result, Defendant’s right to a fair and impartial jury may be severely compromised.
Consider what has happened already, just in Philadelphia. Plaintiff filed her Complaint
on March 8, 2005. Less than 24 hours later, the Philadelphia Daily News not only published a
story detailing the allegations in the Complaint, but it printed a separate human interest piece on
Plaintiff and her family. (See Exs. A & B.) When Plaintiff filed her unilateral “Report
Following Rule 26 Conference of the Parties” (which she filed publicly although under no
obligation to do so), the Daily News followed with another article, seizing upon Plaintiff’s
mention of ten potential additional witnesses under Federal Rule of Evidence 415. (See Ex. C.)
The article referred to an independent conversation between the Daily News reporter and
Plaintiff’s attorneys, in which Plaintiff’s attorneys apparently informed the reporter that ten
women had contacted them to report similar allegations against Defendant. (See id.)
Defendant’s April 15, 2005 Motion to Compel Plaintiff’s Initial Disclosures was
followed on April 19 by another Daily News article, quoting from Defendant’s brief. (See
Ex. D.) Plaintiff’s opposition brief and Defendant’s motion for leave to file a reply brief each
were similarly reported and quoted by the media. (See Exs. E & F.) Most recently, the Daily
News reported that Plaintiff’s attorneys claim to have identified three more witnesses. (See
Ex. G.)
2

Case 2:05-cv-01099-ER Document 17-2 Filed 04/27/05 Page 3 of 8

The case has also attracted the attention of the national media. Descriptions of the suit,
and Plaintiffs’ attorneys’ comments about it, have appeared in several articles and on several
programs and websites, including, but not limited to, those of USA Today, MSNBC, Fox News
Channel, Access Hollywood, the New York Daily News, and the Miami Herald. The Associated
Press covered the filing of the Complaint within a day of the event. Its story was reprinted in
dozens of papers across the country. All the while, Plaintiffs’ attorneys have been adding fuel to
the fire. One of her attorneys, Delores Troiani, appeared on an MSNBC legal talk show, “The
Abrams Report,” and engaged in a detailed debate with the host and guest attorneys about the
merits of the case and the credibility of the witnesses. (See Ex. H.)
This case is so sensational and publicized that media coverage itself has become
newsworthy, with one publication or program reporting the contents of another’s story, without
critical examination for accuracy and bias. Indeed, Nicole Egan, a reporter for the Daily News,
has made herself part of story by virtue of her detailed coverage of this case and apparent access
to Plaintiff’s camp. Ms. Egan was interviewed by the Fox News Channel’s Greta Van Susteren,
and Ms. Egan stated (1) that she knew the contents of certain alleged audiotaped conversations
involving Defendant and (2) that, in her judgment, the tapes “support [Plaintiff’s] allegations.”
(Ex. I.)
Unfortunately, the media sometimes seizes upon one side’s characterizations of the facts
as though that characterization were the objective truth. For example, the Daily News printed
Plaintiff’s recent statement, in a public filing, that Defendant “refused to be deposed.” That
characterization was misleading, as Defendant later demonstrated in his answering brief, but the
Daily News printed it immediately after it was filed. (See Exs. E & F.)

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All this attention—and potential for prejudice and embarrassment—has been generated,
even though discovery is just beginning. As discovery progresses, the heightened level of media
scrutiny, the prejudice and confusion it creates, and the embarrassment wreaked upon the parties
and witnesses are bound to increase. Plaintiff and Defendant have demanded documents and
information from each other and each intends to conduct a deposition of the other. Virtually all
the subjects covered in these requests and depositions will be deeply personal and private. In
addition, the parties will undoubtedly conduct discovery of the other persons who accuse
Defendant of misconduct.
Plaintiff has moved to protect the identity of the Defendant’s other alleged accusers from
public disclosure, citing their privacy interests and fear of embarrassment. But, tellingly,
Plaintiff only seeks to conceal their names, not their allegations. This imbalance would be
grossly unfair to the Defendant. While he has no desire to publicize the names of any person
who prefer to remain anonymous, the Plaintiff and her attorneys should not be allowed to
conceal those names and simultaneously exploit their allegations. In fairness to the Defendant,
the names and the allegations should both remain confidential.
There can be no doubt about the propriety of confidentiality in this case. The parties
recently subpoenaed the relevant files of the Cheltenham Township Police Department and the
Montgomery County District Attorney. These files reflect the detailed criminal investigation
triggered by Plaintiff’s allegations, and they include several salacious statements from alleged
witnesses whose credibility has never been tested. Nevertheless, public discussion of these
untested allegations would be embarrassing and prejudicial. Indeed, the Montgomery County
District Attorney himself stated, upon declining to press criminal charges against Defendant, that

4

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“[m]uch exists in this investigation that could be used (by others) to portray persons on both
sides of the issue in a less than flattering light.” (Ex. J.)
The Defendant recognizes that Plaintiff has a right to present her case to a jury. But
Defendant has a corresponding right to a jury that is untainted by prejudicial pretrial publicity
from anonymous sources. An order preserving the confidentiality of discovery will help to
insure fairness for all concerned.
II.

ARGUMENT
Federal Rule of Civil Procedure 26(c) empowers this Court to control discovery in order

to protect the parties and the other participants from embarrassment and invasion of privacy and
to preserve a fair and unbiased jury trial. The rule provides that:
Upon motion by a party or by the person from whom discovery is
sought, accompanied by a certification that the movant has in good
faith conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without court action, and for good
cause shown, the court in which the action is pending or
alternatively, on matters relating to a deposition, the court in the
district where the deposition is to be taken may make any order
which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense . . . .
Fed. R. Civ. P. 26(c). The orders permitted under Rule 26(c) include orders restricting the use
and disclosure of material and information gathered in discovery. Cipollone v. Liggett Group,
Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
Indeed, the Supreme Court has noted that pretrial discovery is not typically open to
public view. “[P]retrial depositions and interrogatories are not public components of a civil trial.
Such proceedings were not open to the public at common law, and, in general, they are
conducted in private as a matter of modern practice.” Seattle Times Co. v. Rhinehart, 476 U.S.
20, 33 (1984) (citations and footnotes omitted). “Much of the information that surfaces during
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pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of
action. Therefore, restraints placed on discovered, but not yet admitted, information are not a
restriction on a traditionally public source of information.” Id.
The Supreme Court also recognized that, given the liberal and unsupervised discovery
permitted in federal court, courts must enter protective orders to protect the parties’ reputations
and privacy.
Because of the liberality of pretrial discovery permitted by Rule
26(b)(1), it is necessary for the trial court to have the authority to
issue protective orders conferred by Rule 26(c). It is clear from
experience that pretrial discovery by depositions and
interrogatories has a significant potential for abuse. This abuse is
not limited to matters of delay and expense; discovery also may
seriously implicate privacy interests of litigants and third parties.
The Rules do not distinguish between public and private
information. Nor do they apply only to parties to the litigation, as
relevant information in the hands of third parties may be subject to
discovery. There is an opportunity, therefore, for litigants to
obtain—incidentally or purposefully—information that not only is
irrelevant but if publicly released could be damaging to reputation
and privacy. The government clearly has a substantial interest in
preventing this sort of abuse of its processes.
Id. at 34-35. In other words, “[t]he unique character of the discovery process requires that the
trial court have substantial latitude to fashion protective orders.” Id. at 36. Accordingly, Rule
26(c) “confers broad discretion on the trial court to decide when a protective order is appropriate
and what degree of protection is required.” Id.
A party seeking an order sealing pretrial discovery need only show “good cause.” Fed.
R. Civ. P. 26(c). “Embarrassment” constitutes good cause where the potential embarrassment is
“particularly serious.” Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
“[E]mbarrassment is usually thought of as a nonmonetized harm to individuals.” Id. Where the
litigants are natural persons, as opposed to businesses, it is easier to show the embarrassment

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necessary to justify a protective order. Id. The court may also restrict the public availability of
information to preserve a fair trial. See Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir. 1986).
(“The district court was concerned that the extensive publicity . . . would inhibit and perhaps
prevent the selection of an impartial jury. . . . Because it was faced with specific instances of
massive and potentially harmful publicity, we find there was good cause for the district court to
issue the protective order.”).
The Defendant in this case adamantly denies engaging in sexual misconduct. Even so,
public disclosure of the discovery proceedings in this case could result in serious and palpable
embarrassment. The sordid details of this case—including the parties’ own allegations and the
statements of various witnesses—almost exclusively concern sex, including alleged sexual
relations between non-married persons. Plaintiff acknowledges that the alleged “Jane Doe”
witnesses wish to be shielded from public scrutiny based upon their privacy interests and fear of
embarrassment. If the public disclosure of their allegations would be embarrassing for the
Defendant’s alleged accusers, it would be no less embarrassing for Defendant.
Defendant’s celebrity status, especially in Philadelphia, and the media’s apparent lack of
restraint, threatens the parties’ right to a fair trial. Indeed, one Daily News reporter already has
taken it upon herself to weigh in as a factfinder in this case. Without disclosing the objective
details, she said on a national news program that Plaintiff possessed audiotapes that, in her
opinion, “support” Plaintiff’s claims.
Defendant’s Motion concerns discovery, as opposed to trial. As the Supreme Court
recognized, discovery, as opposed to trial, is not a public event, to which a default presumption
of access would apply. On the other hand, it is discovery that poses the greatest risk of jury
tainting and undue embarrassment. During a trial, evidence is admitted into the public record
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only if it is competent, relevant, and not unduly prejudicial. In discovery, the limits are much
broader. For example, while Plaintiff contends that the “prior bad act” testimony of other
women will be admissible under Rule 415, the Court has yet to make that determination. Yet, if
their proposed testimony becomes public, the damage to all the parties’ reputations and to the
integrity of the jury pool could be severe.
As for Plaintiff’s Motion, it is one-sided and seeks an unfair and inequitable result.
While Plaintiff professes the need to keep these witnesses’ names confidential, her failure to
acknowledge the need also to keep their allegations confidential suggests an ulterior motive and
constitutes precisely the sort of abuse of the court’s processes against which the Supreme Court
has cautioned. See Seattle Times, 476 U.S. at 34-35. Under Plaintiff’s proposal, these witnesses
will be free to make anonymous, but public, accusations about Defendant’s sexual history. The
allegations may be false, and they may be inadmissible, but no matter. They will be public, and
the damage will be done.
CONCLUSION
For the foregoing reasons, Defendant requests the Court to deny Plaintiff’s Motion, to
grant Defendant’s Motion, and to enter the proposed order that accompanies Defendant’s
Motion.

s/ Patrick O’Connor
Patrick J. O’Connor
George M. Gowen III
COZEN O’CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000

Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000

Dated:

Attorneys for Defendant

April 27, 2005
8

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EXHIBIT A

COSBY ACCUSER SUES HIM
Case 2:05-cv-01099-ER Document 17-3 Filed 04/27/05 Page 2 of 43

Page 1 of 2

Posted on Wed, Mar. 09, 2005

COSBY ACCUSER SUES HIM
Ex-Temple employee charges sexual assault, wants damages
By NICOLE WEISENSEE EGAN
weisenn@phillynews.com

A FORMER Temple University employee filed a federal lawsuit yesterday against comedian Bill Cosby, alleging he drugged and sexually
assaulted her at his Cheltenham Township mansion in January 2004.
The lawsuit from Andrea Constand, who was director of operations for the Temple women's basketball team, includes claims of battery,
assault, invasion of privacy, defamation and intentional infliction of emotional distress.
Constand's attorneys, Dolores Troiani and Bebe Kivitz, ask for sums in excess of $150,000, plus attorneys fees and punitive damages. The
basis for the claim in federal court is Constand's Canadian citizenship and the amount the attorneys are requesting.
The civil suit contains new details about the night in question, including claims that Cosby, 67, did more than just grope Constand. The
attorneys said they have a lot more evidence than before.
"We're still getting phone calls from people with information," Troiani said, "and we'd like to keep getting phone calls."
The suit also states that Cosby and his representatives phoned Constand, 31, and her mother after Constand went to police on Jan. 13 and
offered them "financial compensation," which they refused.
"Beginning on or about Jan. 16, 2005, and continuing in the days thereafter, defendant and/or his representatives and agents placed at
least four phone calls to plaintiff and her mother in which, among other things, defendant apologized and offered financial compensation to
plaintiff," the lawsuit said.
Troiani and Kivitz said filing the suit was the first step toward closure for their client.
"Our client is seeking the justice due her in a forum where she can expect to be treated with the dignity and respect she deserves," they
said in a statement. "Our client sustained injuries and justice, by definition in a civil suit, includes compensation for such damages."
David Brokaw, Cosby's publicist, had no comment on the suit or its contents.
"Right now, I have no information," Brokaw said late yesterday afternoon.
Cosby has previously denied the allegations.
Last month, Montgomery County District Attorney Bruce L. Castor Jr. announced he was not filing criminal charges against Cosby, saying
there was not enough evidence to sustain the case beyond a reasonable doubt. The Daily News had not identified Constand before now,
because it does not identify alleged sexual-assault victims. However, Constand's attorneys, who could have identified her as a "Jane Doe"
in the suit, used her real name.
Castor's handling of the criminal case, including not notifying Constand or her attorneys of his decision, still rankles Troiani and Kivitz.
Constand even offered to take a lie detector test, but investigators said it wasn't necessary, Troiani said.
Constand first met Cosby in November 2002, about a year after she began working at Temple University, the suit said. Cosby, who is
married, "fostered a friendship" with her, "so that over time she considered him to be both her friend, albeit older, and a mentor," the suit
said.
She socialized with him over the next year, discussing Temple women's basketball with him, talking with him by telephone and "being his
guest at dinner parties and other events hosted by him at his Cheltenham home and other locations," the suit said.

In January 2004, Cosby invited Constand to his mansion, "telling her he wanted to offer her assistance in her pursuit of a different career,"

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EXHIBIT B

Accuser described as Case
outgoing,
forthright, honest Document 17-3 Filed 04/27/05 Page 4 of 43
2:05-cv-01099-ER

rage i 01

Posted on Wed, Mar. 09, 2005

Accuser described as outgoing, forthright, honest
By NICOLE WEISENSEE EGAN

weisenn@phillynews.com

ANDREA CONSTAND is strikingly beautiful, with long, curly red hair. Six feet tall. A smile a mile wide.
Her father is Greek, but shortened his last name once he moved to Canada. Her mother is Italian, niece of a World War II hero whom the
Roman Catholic Church is considering for sainthood.
She was a driven basketball player who dreamed of playing for the pros from the time she was a little girl.
"I'm on a mission," she said in a 1997 interview before leaving for Italy to play on Canada's team in the World University Games. "First to
help Canada do well, then to play basketball in Italy and finally crack a spot on a team in the WNBA."
But today, the 31-year-old woman has gained notoriety not for her successes on the basketball court, but for accusing Bill Cosby, her onetime mentor and Philadelphia's best-loved celebrity, of drugging and sexually assaulting her at his Montgomery County mansion last year.
Prosecutors announced last month that they will not file criminal charges against Cosby, but Constand yesterday filed a lawsuit against
him.
Although she has declined to speak to the Daily News, Constand's name and picture have been plastered on news pages and TV screens
across the world.
But the woman at the center remains mostly a mystery - even in Philadelphia, where she helped Temple women's basketball coach Dawn
Staley lead the team for 2 Va years.
Friends, former teammates and coaches describe her as outgoing. Forthright. Energetic. A health and fitness buff who loves the outdoors.
As tough and aggressive on the court as she is warm and compassionate off the court.
And honest.
"It's not in her character to say something happened that didn't happen," said Anthony Simms, 47, who has known Constand for 15 years.
"People can go into her history and dig and dig and dig, but I don't know what they'll find," said Simms, who played on Canada's
basketball team in the 1984 Olympics. "I'm pretty sure it's the cleanest slate you'll ever see. She's a good person."
Constand was born and reared in Canada. Her family is close-knit. Her father is a massage therapist. Her mother is a medical secretary.
She has one older sister and is close to of them, Simms said.
"Even when she went to college in Arizona, I don't think there was a game her family didn't see," Simms said.
Simms said he first met her when she was in high school, playing for Albert Campbell Collegiate in Scarborough, Ontario, where she was a
star and considered one of Canada's top female players. Averaging 30 points a game, she led the Celtics to five straight senior girls' highschool titles. She also played on Canada's national junior team and national development team.
She was determined to succeed, despite all sorts of obstacles, Simms said.
"There's always people trying to steal your dream," he said. "Then there's a few that come along and say, 'No matter what they say, just
keep going.' That's Andrea."
In the summer, she participated in basketball training camps and tournaments, which is how she caught the eye of University of Arizona
Coach Joan Bonvicini and about 49 other NCAA coaches.

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EXHIBIT C

'os accuser's lawyers: There's more to tell
Case 2:05-cv-01099-ER Document 17-3 Filed 04/27/05 Page 6 of 43

Page 1 of

Posted on Sat, Apr. 09, 2005

Cos accuser's lawyers: There's more to tell
They secl< to add
!".y -,'ICOLc '.VEISENSEE EGAN
weisenn'iphi!lynews.com

The attorneys for a woman who claims Bill Cosby drugged and sexually assaulted her last year have at least 10 other women whose
statements they want admitted as testimony, a new court filing says.
The report by the plaintiffs' attorneys, which followed a March 23 conference between both sides, did not state what the women have to say.
Ho.vever, the attorneys have previously said that women had contacted them to report that Cosby had done something similar to them as he
is alleged to have done to Andrea Constand, the Canadian woman who accused Cosby of drugging and assaulting her last year.
One of the other women is California attorney Tamara Green, who first told her story to the Daily News in February.
Bete Kivitiz and Dolores Troiani, the attorneys for Constand, also want the court to issue a limited protective order to keep the media from
kncv.'ing cr publishing the identities of the other women.
Ne'.vs organizations traditionally do not reveal the identities of sexual-assault victims. However, when she came forward, Green requested her
name be used. Cosby's people subsequently made unflattering information about her available to the media. The request for a limited
protective order is obviously an attempt to prevent that from happening again.
Constand's identity became public only after her parents gave an interview in January to a Canadian paper and allowed their names and their
daughter's name to be used. Many news organizations used that as justification for using Constand's name.
The Daily News did not publish Constand's identity until she filed her lawsuit against Cosby. The attorneys could have identified her as Jane
Doe, which is common in sexual-assault civil suits, but chose to use her real name.
The defendants, the report added, want the entire proceedings to be kept confidential under a protective order, but Constand's attorneys
oppose such a request.
Patrick O'Connor, a member of Cosby's new legal team, did not return a phone call requesting comment. O'Connor filed a notice of
appearance on behalf of Cosby in federal court on Monday.
O'Connor is a partner in Cozen O'Connor, one of the top 100 law firms in the country and among the area's top campaign contributors.
Constand, a 31-year-old former Temple University employee, went to Canadian police in January with her allegations against Cosby. The
alleged incident occurred the previous January, she told cops.
In February, Montgomery County District Attorney Bruce I. Castor, Jr. announced he would not be filing criminal charges against Cosby.

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EXHIBIT D

Case 2:05-cv-01099-ER
Document 17-3 Filed 04/27/05 Page 8 of 43
NewsLibrary Document
Delivery
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REAL
Cities
Philadelphia Daily News (PA)
April 19, 2005
Section: LOCAL
Edition: 4STAR
Page: 18

Cosby wants data on 9 accusers
NICOLE WEISENSEE EGAN weisenn
@phillynews. com
Bill Cosby's attorneys want the names, phone numbers and addresses of nine women
who claim the entertainer assaulted them.
In a court filing two weeks ago, Cosby accuser Andrea Constand's attorneys, Bebe Kivitz
and Dolores Troiani, disclosed that they have at least 10 new witnesses.
One woman, California attorney Tamara Green, already has gone public with her story, claiming
Cosby drugged and sexually assaulted her more than 30 years ago. Constand's attorneys want
to keep the identities of the nine other women secret.
Cosby attorneys Patrick O'Connor and George Gowen said Troiani and Kivitz have violated the
federal rules of civil procedure of disclosure by identifying the nine women only as "Jane Does,"
they said in a memorandum and motion filed Friday in federal court here.
"Plaintiff is attempting to tailor the civil litigation to her own wishes," the memo said.
"She publicly filed a complaint against a public person. Now, however, she wishes to keep
portions of the litigation secret, for no reason of her own. In fact, she apparently hopes to keep
portions of the litigation secret from defendant himself. Plaintiffs tactics cannot be condoned."
Neither Troiani nor Kivitz was available for comment yesterday.
Constand, 31, has accused Cosby of drugging and sexually assaulting her at his mansion in
Elkins Park in January 2004.
The former Temple University employee waited a year before reporting the allegations.
In February, Montgomery County District Attorney Bruce L. Castor Jr. said he was not filing
criminal charges against Cosby. Constand filed the civil suit against Cosby last month.
Also, yesterday, U.S. District Judge Eduardo Robreno allowed Cosby's Pennsylvania attorneys
to add another member to their legal team. New York attorney Andrew Schau has signed on as
an associate counsel.
Schau was one of Cosby's attorneys when Autumn Jackson was on trial for extorting money

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Document 17-3 Filed 04/27/05 Page 9 of 43
from the entertainer, whom she claimed was her father. Cosby testified during the trial, admitting
he had had an affair with Jackson's mother, Shawn Upshaw, but denied having fathered
Jackson. *
lllustration:PHOTO
Bill Cosby: Lawyers for accuser in civil suit say they have other women who claim the
comedian assaulted them.
Copyright (c) 2005 Philadelphia Daily News

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EXHIBIT E

Case 2:05-cv-01099-ER
Document 17-3 Filed 04/27/05 Page 11 of 43
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REAL
Cities
Philadelphia Daily News (PA)
April 20, 2005
Section: LOCAL
Edition: 4STAR
Page:17

Court papers: Cosby declines
deposition
NICOLE WEISENSEE EGAN weisenn
@phillynews. com
Bill Cosby is refusing to be deposed in the sex-assault civil case that has been filed
against him by a former Temple University employee, papers filed in federal court here
yesterday say.
"Defendant has now taken the position that he will not be deposed - despite earlier
discussions between the parties concerning back-to-back depositions of defendant and
plaintiff," a footnote in the paperwork said.
Andrew Schau, one of Cosby's attorneys, would not comment on whether his client is refusing to
be deposed.
"We will respond to that when we file our legal papers," Schau said yesterday.
Cosby accuser Andrea Constand's attorneys made the statement in a memorandum denying
that they are refusing to turn over the names of nine women who say Cosby drugged and/or
sexually assaulted them, too.
Dolores Troiani and Bebe Kivitz, Constand's lawyers, said in the memo that they will give Cosby
the women's names, addresses and phone numbers once the judge rules on their motion for a
protective order to keep the identities secret from the media.
Troiani and Kivitz provided a list of expected witnesses to the attorneys but identified nine of the
women only as "Jane Does" and their contact as Joyce Dale, an attorney in Media. The list does
contain the cities where the women live, which include Las Vegas; Toledo, Ohio, and Corralitos,
Calif.
"The anticipated testimony of the Jane Doe witnesses relates to the obviously sensitive subject
matter of sexual assaults and/or druggings," Troi-ani and Kivitz wrote.
"Of equal concern is that disclosure of the witness' identities may place them at risk of further
physical and psychological harm from media exposure or from overly zealous fans and
supporters of the celebrity defendant."
Constand, 31, has accused Cosby of drugging and sexually assaulting her at his Elkins Park,

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Montgomery County, mansion in January 2004.
She reported it to police a year later. In February, Montgomery County District Attorney Bruce L.
Castor Jr. declined to file criminal charges against the entertainer. Constand filed her civil suit
last month. *
Copyright (c) 2005 Philadelphia Daily News

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EXHIBIT F

"osby's lawyers deny Case
he has2:05-cv-01099-ER
refused to be deposedDocument 17-3 Filed 04/27/05 Page 14 of 43

Page 1 of

Posted on Sat, Apr. 23, 2005

Cosby's lawyers deny he has refused to be deposed
His legal team wants to know names of witnesses
By NICOLE WEISENSEE EGAN
.weisenn@phillynews.com

Bill Cosby is not refusing to be deposed in a civil suit lodged against him by a former Temple employee, his attorneys said in court papers
filed in federal court here yesterday.
Attorneys for Cosby accuser Andrea Constand made that claim in a motion filed on Tuesday.
But Cosby's attorneys said the entertainer simply wants to know the identities of nine women who are accusing him of drugging and/or
sexually assaulting him before he's deposed.
"Plaintiff's statement that defendant 'has now taken the position that he will not be deposed' is misleading," the memo said. "Rather, in an
April 11, 2005 letter, defendant's counsel stated that he 'will not be producing defendant for a deposition while plaintiff is concealing the very
identity of the witnesses with whom she intends to confront him.' "
Dolores Troiani, one of Constand's attorneys, said she has not seen the motion but "obviously we don't believe we misrepresented anything."
In an April 6 report following a March 23 conference between both sides, Constand's attorneys asked the judge to admit testimony from at
least 10 other women who say the comedian drugged and/or sexually assaulted them.
They also asked for a limited protective order to keep the media from knowing or publishing the identities of the women. Only one, California
attorney Tamara Green, has made her identity public. Troiani and Kivitz listed the others as "Jane Does."
In their motion, Cosby's attorneys said Troiani and Kivitz said they would turn over the women's identities within 14 days of the March 23
meeting but didn't.
Troiani said that is not true.
"They're manufacturing this issue because most of the names are in the police report, which they have, because we gave the names to the
police," she said.
"We wanted an agreement from them that they wouldn't turn those names over to the media and they wouldn't do that. Our concern is to
prevent a smear campaign, like they conducted against Tamara Green."
Andrew Schau, one of Cosby's attorneys, had no comment. He said earlier this week that responses will be made in legal papers that are filed
in court.
In her lawsuit, Constand, 31, said Cosby sexually assaulted and drugged her at his Elkins Park, Montgomery County, mansion in January
2004. She went to police a year later. In February, authorities here declined to prosecute. Constand's attorneys, Troiani and Bebe Kivitz, filed
her civil suit against Cosby the following month.

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EXHIBIT G

^osby accusers now number
13
Case 2:05-cv-01099-ER
Document 17-3 Filed 04/27/05 Page 16 of 43

Page 1 of 2

Posted on Wed, Apr. 27, 2005

Cosby accusers now number 13
Women came forward after ex-Temple employee went to cops
By NICOLE WEISENSEE EGAN
weisenn@phillynews.com

Thirteen women now say Bill Cosby drugged and/or sexually assaulted them, according to new court papers filed in federal court here.
Twelve women came forward after ex-Temple University employee Andrea Constand went to police in January with her accusations against
Cosby.
Ten of the women gave statements to Constand's attorneys, Dolores Troiani and Bebe Kivitz. The attorneys also forwarded the information
about those women to Montgomery County authorities.
However, when Troiani and Kivitz recently received the police file through the civil lawsuit they filed on behalf of Constand, they found two
other women who had contacted detectives, who had not reached out to them, a response they filed Monday says.
A Cosby attorney had no comment yesterday.
Constand, 31, has accused Cosby of drugging and sexually assaulting her at his mansion in Elkins Park, Montgomery County, in January
2004. She waited a year before going to police.
In February, Montgomery County District Attorney Bruce L. Castor Jr. declined to prosecute. Constand filed her civil suit in March.
In their response, Constand's attorneys also disputed claims made by Cosby's attorneys in a motion filed last Friday.
Cosby's attorneys have been asking Constand's attorneys for the identities of nine of the accusers, who are identified merely as "Jane Does"
in court filings. Only one, California attorney Tamara Green, has been publicly identified.
On April 11, Cosby's attorneys sent a letter to Troiani and Kivitz saying their client will not be deposed "while plaintiff is concealing the very
identities of the witnesses with whom she intends to confront him," according to a copy of the letter filed with the court.
Last Friday, Cosby's attorneys filed a memo stating that Troiani and Kivitz had promised to turn over the identities of the Jane Does within 14
days of a March 23 meeting between both sides. His attorneys have asked the judge to force Troiani and Kivitz to hand over the names.
In their Monday response, Kivitz and Troiani say they have been clear since March 15 that they would not release the names until the judge
rules on their request for a limited protective order.
They have asked the judge to prohibit the disclosure of the women's identities to the media as well as prevent them from publishing their
identities.
"Plaintiff's position has not changed and remains the same to this day; all 11 Jane Doe witnesses, once their names are disclosed to
defendant, are entitled to their privacy from the media," the response said.
Furthermore, they stated, Cosby's attorneys already have many of the Jane Does' names and addresses because they are in the police file.
The attorneys pointed out that in one court filing they identified the Jane Does by the state and city where they live, and sent the attorneys a
letter on April 20 that identified Jane Does 10 and 11 by name.
The attorneys attached a copy of that letter, with the names of the women blacked out, as an exhibit to their response.

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MSNBC.com

'The Abrams Report' for March 9
Read the transcript to the Wednesday show
Updated: 3:52 p.m. ET March 10, 2005

Guest: Geoffrey Fieger, Jim Thomas, Susan Filan, Dolores Troiani, Mercedes Colwin
DAN ABRAMS, HOST: Coming up, the accuser in the Michael Jackson case takes the stand.
(BEGIN VIDEOTAPE)

ABRAMS (voice-over): The now 15-year-old cancer survivor tells jurors exactly what he says
happened at the Neverland Ranch—this after his brother and sister get grilled by Jackson's
attorney.
And another ABRAMS REPORT exclusive—the woman accusing Bill Cosby of drugging and molesting
her now suing him in civil court for assault, emotional distress and defamation. We have the
exclusive with her lawyer.
The program about justice starts now.
(END VIDEOTAPE)
ABRAMS: Hi everyone. It's the moment we've all been waiting for. Michael Jackson's accuser
takes the witness stand. It is the first time Jackson and the boy have been face-to-face since the
boy left Neverland in March of 2003. Some say the boy appeared to sneer when asked if he
recognized the man sitting across from him, Michael Jackson.
NBC's Mike Taibbi was in the courtroom, joins us now with the latest on the boy's testimony. So
Mike, what did he say?
MIKE TAIBBI, NBC NEWS CORRESPONDENT: Well first of all, I don't say that he sneered, Dan. I
was watching him very carefully, as was every pair of eyes in that courtroom. He walked in. He's
nervous. He's tall, lean, still young, 15 years old. And when he was asked that question and he
said yes, I think he had the first of several nervous smiles, nervous laughs of the day. I don't think
it was that kind of a look at all, but some people did see it that way.
Now what he had to say to this point is just kind of setting up what will be the story that we've all
gotten to know in pretty close detail at this point. He will claim obviously that Michael Jackson
provided him with alcohol. He will claim, and as he said in his grand jury testimony, that he was
inappropriately touched by Michael Jackson on two occasions, and he will describe—he will talk
about the allegation that his family felt imprisoned, not free to leave Neverland at a point after the
showing of the Martin Bashir documentary.
I think that we're going to learn much more about the specifics of his direct testimony and we'll
obviously see how he's going to be challenged, not necessarily tomorrow, maybe next Monday,
Tuesday by Tom Mesereau. More important thing today—more important developments really
involve the younger brother who finished his testimony and his cross-examination this morning.
He was on the stand and withstood a withering cross-examination by Tom Mesereau, a couple

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inconsistencies to which he admitted.
In other words, at one point Mesereau said you said that you felt you weren't free to go and that
you were threatened, how were you threatened? He said he was threatened by saying that—he
was told that by an alleged co-conspirator that they could make his grandparents disappear.
Mesereau pointed out that in a previous statement he'd said that he and his brother and his
grandparents and his sister and his mother could all be killed. The boy was forced to say well I
guess I said something different then.
And then there was the question of the third alleged assault. If you want to go into that, we can
go into that...
ABRAMS: Yes, lets talk about that in a minute.
(CROSSTALK)
ABRAMS: I want to stay on the key issue that happened just now, only moments ago and that is
that the actual accuser in this case, the boy who Michael Jackson allegedly abused, is now on the
witness stand. You know, Mike, before I go into sort of some of the substance, though, was it kind
of—what did it feel like? I mean you have this boy who is sitting only yards away from the guy
who allegedly molested him, the guy who allegedly changed his life forever. Was there—you know
what did it feel like in that courtroom to have them sitting so close?
TAIBBI: Well, everybody was sitting on the edge of their seats obviously, Dan, but this was also a
courtroom where everybody has seen this boy on video many times, where Jackson has had his
reactions to prior testimony, which he felt was not credible. He'd shake his head a couple of
times. He'd huddle for quick discussions with his attorney, Tom Mesereau, that sort of thing. So I
don't think that it was as electric as it might have been. We'll see what happens when he comes
out with sort of the money statements we know he's going to make under direct examination
whether there's any reaction then, but here certainly was the boy and I think everybody in their
mind was saying what did happen between the two of them?
ABRAMS: All right. "My Take"—look, I have said that I think this is a case in trouble for
prosecutors. This boy is the only hope for them to win this case. He's going to have to come
across as credible, as authentic as someone that these jurors believe.
Joining me now criminal defense attorney Geoffrey Fieger, prosecutor with the Connecticut State
Attorney's Office Susan Filan, and MSNBC analyst, former Santa Barbara County Sheriff, Jim
Thomas. Mike Taibbi is going to stick around with us as well.
All right. Geoffrey, based on what you've read, you've read all the transcripts in this case, as have
I, based on what you've seen, you know, do you think that this is a boy that's going to make or
break the case?
GEOFFREY FIEGER, CRIMINAL DEFENSE ATTORNEY: No, and I think your analysis, although you
and I agree a lot, Danny and you know I got a lot of respect for you, is off the wall...
ABRAMS: Why?

FIEGER: ... in terms of the difficulty you see from the prosecutor. First of all, there's too much
opportunity for Michael Jackson. This has been a case presented—I think in probably the correct
fashion by Sneddon. He's doing it right. He's bringing the witnesses real quickly. He's not
delaying, making it, you know, interminably long like the Peterson case. We've established that
there's plenty of opportunity for Jackson to have engaged in this activity.

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Jackson himself out of his own mouth says he sleeps with boys. We know how he looks and you've
never also brought up what I think is an essential element to this case and that is the race card is
being played but is being played in a different way. The victims are Hispanic. You're trying to
discredit a Hispanic family with four Hispanics on the jury. And if there is another witness who
comes on the stand and testifies, Michael Jackson can forget about it, Danny. Your analysis isn't
correct.
ABRAMS: No, Geoffrey, how about this, all right? Listen to this and listen to it carefully, Geoffrey,
because I'm going to read it slowly. All right. All right, here we go. This is from the grand jury.
The prosecutor asked the accuser—this is it—this is the heart of the case. All right. You told us
about two occasions now—where he says he was molested - a night and then the next night that
Mr. Jackson masturbated you, correct?
Accuser: Yes.
Prosecutor: Did he do it again?
A second, I think so.
Prosecutor: How many times do you think that happened like that?
Accuser: Probably about five times.
Then the other three times?
It feels like, if I'm trying to remember back to kindergarten, it kind of feels like dreamlike.
Jim Thomas, that is the accuser's testimony in this case that he was molested twice. I'm not
saying he's not telling the truth. I'm talking about this from a legal point of view, jurors evaluating
the evidence in this case. This is a kid who says yes, I was molested twice, you know, yes, I think
I might have been molested another three times but you know I'm just not really sure about it.
JIM THOMAS, MSNBC ANALYST: You know, I've taken reports of a lot of rape cases over my 34
years in law enforcement and run into the same thing. This particular case, the issue also will be
the alcohol. And I think the implication will be that during the three times that he may not
remember, he may have been under the influence to the point that he can't remember...
ABRAMS: But...
(CROSSTALK)
ABRAMS: ... my problem, Jim.
(CROSSTALK)
ABRAMS: It sounds like he's trying to say the right thing, meaning he knows his brother is going
to come out and say, yes, I saw my brother passed out on the bed and Michael Jackson molesting
him.
THOMAS: No, Dan, that's not the three. Those are two other ones and I think you'll find that
there's three in addition to the two that his brother saw and the two that he will testify...

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ABRAMS: But three that they didn't charge him with, right, because it was a dreamlike state...
THOMAS: Well I think It's actually...
ABRAMS: ... as opposed to conscious.
THOMAS: ... I think it's actually four. I think there's another rubbing incident they may not have
charged. But they're charging on the two that he'll testify to, the two that his brother says that he
saw from the stairwell, and I think one attempt will also...
ABRAMS: Look I've intentionally stacked this panel with people who tend to be pro-prosecution,
because I do view this as a case in jeopardy. Susan Filan, again, you have—we'll get to the boy's
the other family members' testimony and Michael will talk to us a little bit more about some
inconsistencies with the brother's testimony and the girl, and again, don't get me wrong, I'm not
saying everyone is lying necessarily. I'm saying that when it comes to a jury having to take away
someone's freedom, proof beyond a reasonable doubt, you're going to tell me that a boy is going
to take the witness stand and says that three times he thinks he might have been molested but he
was in some sort of dream-like state is going to be enough with the family members' testimony as
well that's had some contradictions to convict Michael Jackson.
(CROSSTALK)
ABRAMS: Hang on. Susan. Hang on. Hang on.
SUSAN FILAN, CONNECTICUT PROSECUTOR: Dan, I do. You've got to remember that you're
talking about the testimony and the recollection of a child...
ABRAMS: But wait, you either have to...
(CROSSTALK)
ABRAMS: Wait. Wait. Wait. Everyone keeps saying that...
(CROSSTALK)
ABRAMS: Wait, Susan, I've got—I'm sorry to interrupt, but everyone keeps saying that. Oh, it's
the recollection of a child. Well you know what? Either the recollection of that child is going to
convict Michael Jackson or it's not.
FIEGER: Danny...
ABRAMS: He's still a child either way.
(CROSSTALK)
ABRAMS: Let me let Susan respond Geoffrey.
(CROSSTALK)
FILAN: But I think—what I think is missing in all of the analysis is that there's going to be some
connection between the jury and the witness, some level of understanding that memory is
definitely hazy at time, and it's really hard for kids to talk about sex. He's not going to have the
language. He's not going to have the memory. He's not going to have any context that an adult

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would have...
ABRAMS: Except that this is a kid whose family has accused previously J.C. Penney, for example,
of sexual abuse...
(CROSSTALK)
ABRAMS: ... right, the mother made the accusation. Go ahead Geoffrey...
FIEGER: Let me just tell you, Fve defended these cases. I've won every case in which a child has
accused an adult of acting improperly sexually. And the common thread in all the cases is there's
no evidence, zero evidence...
ABRAMS: Right.
FIEGER: ... except the child's claim...
ABRAMS: Right.
FIEGER: ... very often made much later...
ABRAMS: I accept that.
FIEGER: In this case, there's a myriad of corroborative evidence in terms of the pornographic
magazines, in terms of the alcohol and the way he conducts himself with alcohol, in terms of the
other people who allegedly saw him including the brother and the key to this case, Danny, you
might be right, is the possibility of the similar acts testimony. If that, for instance...
ABRAMS: All right.
FIEGER: ... 1993 victim gets on the stand and says when I was 14 or 10, he did the same thing to
me, he can kiss it goodbye.
ABRAMS: That—I—look, I have long said that the '93 case really could change the fate of this case
because I think the evidence there was stronger. Jim Thomas investigated that case. Very
quickly, Jim, was the evidence pretty strong there in '93?
THOMAS: Yes it was. We're going to have one if not two actually testify to the fact that they were
molested. In addition, you're going to have witnesses who will testify to the fact that they saw
Michael Jackson inappropriately touch other children. The issue being is this case strong enough to
bring in the '93 case?
ABRAMS: Right.
THOMAS: The fact that Tom Mesereau did not move the brother off of those main charges that he
made and I believe that this boy will be able to stick with I think will ensure '93 to come in.
ABRAMS: Look, I think '93 will come in, but the notion, again, that he didn't move the boy off, I
think that some people in the prosecution camp are sort of phrasing this as if someone thought
that the kid was going to suddenly break down and start crying and say no, no, no, it didn't
happen. Yes, he's telling the same story. The question is, is he credible or not?
All right, we're going to continue. This is a big day in the Michael Jackson case. The accuser is on

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the witness stand. His brother has taken the stand. His sister has taken the stand. We're going to
continue talking about it.
Plus, the woman accusing Bill Cosby of abuse now files a civil case against him. We'll talk
exclusively with her attorney.
Your e-mails a^arn.srepQ.rtMrn.sn^c.com... Please include your name and where you're writing
from. I respond at the end of the show.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: E! Entertainment is doing daily reenactments of the Michael Jackson trial
and now so is Nickelodeon Jay...
UNIDENTIFIED MALE: Really...
UNIDENTIFIED FEMALE: Take a look.
(LAUGHTER)
UNIDENTIFIED MALE: Order. Order.
(SOUNDS)
(LAUGHTER)
UNIDENTIFIED MALE: Are you ready Mr. Jackson?
UNIDENTIFIED MALE: Yes Your Honor.
(LAUGHTER)
(END VIDEO CLIP)
(COMMERCIAL BREAK)
ABRAMS: Coming up, more of the accuser in the Michael Jackson case on the witness stand. We
are live at the courthouse coming up.
(COMMERCIAL BREAK)
(NEWS BREAK)
ABRAMS: We're back. Michael Jackson, trial day eight—in addition to being dominated by some
cross-examination of the accuser's brother, the accuser himself was on the witness stand today.
Mike Taibbi is at the courthouse.
Mike, before I ask you about the brother, real quick, how long are we expecting the accuser to be
on the stand?
TAIBBI: Well I think he's going to take most of tomorrow, which is the last court day this week,
Dan, for the direct examination by Mr. Sneddon. Sneddon is going to have to walk him through

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the entire incident and then get very specific on the two alleged incidents of molestation to which
this boy is going to testify.
ABRAMS: And the cross-examination will probably happen next week, all right. So Mike, in terms
of the...
(CROSSTALK)
ABRAMS: ... brother's testimony, key testimony. He's the witness to...
TAIBBI: Yes.
ABRAMS: ... at least a couple of the counts here. What do you think the most important—quote—
"contradictions"—you heard Jim Thomas a minute ago basically say that he believes this boy
escaped relatively unscathed in terms of the heart of his testimony.
TAIBBI: Yes, I disagree with Jim on that. You made the point before, Dan, there was not going to
be a Perry Mason moment like OK, I lied, I made it up. That's not going to happen. This is the
sole corroborating witness and he's going to say at the end, as Mr. Sneddon had him say
(UNINTELLIGIBLE) did you tell the truth? Yes, I did. Did you see what you said you saw? Yes I
did. And that's how Mr. Sneddon finished his redirect, but here are a couple of discrepancies and
contradictions.
Number one: The boy told different stories in different forms about the allegedly $75,000 watch
that Michael Jackson supposedly gave his brother where he gave it to him on the plane or at
Neverland. He said in answer to the question about did you ever see Michael Jackson give your
sister liquor. He said yes, one time. He gave her vodka in the kitchen. Well the jury knows
because they heard it three days ago the sister said that, yes, Michael Jackson gave her liquor one
time. He poured her a glass of wine in the wine cellar. Not a huge point, but it's there.
I think the big thing that's going to happen is that Mr. Mesereau will set him up as—to be
impeached later on with other witnesses and evidence. How many times did he ask him about the
alarm system? How many times did he say were you and your brother ever drinking, caught
drinking alone, caught doing other things? And it's interesting that he finished his crossexamination by saying and you and your mother never asked Jay Leno for money and the boy said
no. And Mr. Mesereau said I'm finished with this witness.
ABRAMS: And another key element that they're going to get, the boy and his brother on in a
contradiction is did they have access to Michael Jackson's bedroom when Michael Jackson wasn't
there. One of them saying...
TAIBBI: Absolutely.
ABRAMS: ... yes, we used to go there. The other one saying, no, no, the accuser saying, no, we
would never go there. So I think that...
TAIBBI: Right.
ABRAMS: ... I think that is going to be another key one. All right, let me go back to the panel. I
want to read this. This is from the cross-examination of the brother.
Do you recall telling Santa Barbara sheriffs you caught Mr. Jackson inappropriately touching your
brother on two occasions?

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Brother: Actually, it was three times. I was nervous when I did the interview.
So because youVe nervous, you didn't get the facts right?
Brother: Yes.
ABRAMS: Geoffrey, it doesn't trouble you and again, I'm not asking you to determine whether
they're telling the truth or not, but from a jury's point of view, the fact that you have got the
accuser uncertain about how many times he was abused, saying it might have been five, it might
have been two, I was in a dream-like state. The brother saying it was two, wait a second, it was
actually three. This is abuse. We're talking about molesting—either getting molested or watching
molestation and they don't remember?
FIEGER: You have to understand this bigger picture and let me communicate this to you. Jurors
see everything through their own perspective and their own biases and prejudices. Now, lawyers
think that every time you catch somebody in an inconsistency...
ABRAMS: These are big, though, Geoffrey...
(CROSSTALK)
ABRAMS: These are not little things...
(CROSSTALK)
FIEGER: ... excuse me, they may be big to you and they may be little to somebody else...
ABRAMS: Well it's little how many times the boys were molested, that's not a big issue?
FIEGER: Listen. Listen. If you're 11 years old, you don't know that much. And that's when—how
old he was allegedly when this occurred. The brother was 11, 12 years old. But more to the point,
if the jury overall, if individuals on the jury overall believe that he is telling the truth and that
Mesereau is playing lawyer and trying to catch him up, because I'll tell you, a good lawyer with an
adult can trip up anybody. I can trip up anybody, let alone with a kid. If a jury is sitting back
there says you know overall, I believe him...
ABRAMS: Yes.
FIEGER: ... he may not have everything right, he may not remember everything, that's bad, it
doesn't necessarily absolutely work.
ABRAMS: That's true and look, if they believe this boy on the whole, Geoffrey is absolutely right...
THOMAS: Dan...
ABRAMS: ... and again—Jim, very quickly, Jim, then I've got to take a break. Go ahead.
THOMAS: OK. This particular issue is cleared up during redirect by the D.A. The boy actually
testified to three events. The two he saw through the stairwell and another one that was a rubbing
event. He testified to that to the sheriffs, it's in the report. He also testified that to the grand
jury. So that's already documented, those three. So there is not the inconsistency that everybody
thought there was yesterday.

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ABRAMS: All right. WeVe going to take a quick break. Everyone is going to stick around. Mike
Taibbi thanks a lot. Appreciate it.
Also, coming up later, in addition to more coverage of this big stuff in Jackson, our exclusive
interview, the attorney for the woman who says Bill Cosby drugged her and assaulted her, the D.A.
wouldn't press charges so the question that some have asked is, is she just out for money? Her
attorney says no way. We're going to ask (UNINTELLIGIBLE) tough questions.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Believing that children are the true example of God's beauty, innocence and
purity, Michael has devoted as much of his life to helping the world's children. He has donated
millions of dollars to healing children with disease, helping children with Aids, and traveling the
world to emphasize the importance and welfare of our children. Michael Jackson would never harm
a child.
(END VIDEO CLIP)
ABRAMS: I don't know if the Mother Teresa business is really going to help Michael Jackson. I
think they basically got to go for, you know, they didn't prove the case beyond a reasonable doubt,
but that's just a press conference, not in court, that happened months ago.
All right, Susan Filan, the accuser is on the witness stand. He's going to be on for days now. He is
the central witness. If you're the defense attorney, I'm going to ask you to switch hats for a
minute, in this case and you've got to cross examine the boy, this is the boy who could put your
client away. This is the one who is sitting only yards away from him saying that man right there,
your client, molested me. And yet he's still a boy. How do you go about cross-examining him?
How tough are you?
FILAN: Well I wouldn't be that tough to start certainly. I would treat this boy with dignity,
respect, kindness and compassion to start. I would think that would give the prosecutor and the
defense some validity before the jury. What I see Mesereau doing in reading the transcripts is he's
beating up on this witness so badly and picking him apart, he starts to look like something in "The
Exorcist" with his head spinning around and he doesn't know which way is up and which way is
down. I think the jury is not going to like that.
ABRAMS: Right.
FILAN: In reading the transcript, I started to come to this boy's defense and started to believe him
extra just because I was trying—I felt sorry for him. So...
ABRAMS: And there's no question they have to be careful not—and I
Geoffrey made this point before, about not focusing on minutia. Because yes, so what?
FILAN: Right.
ABRAMS: You prove that a 12-year-old says one thing one time, he says something else a little bit
different another time. If it's not on the crucial issues in the case...
FILAN: Right. So here's what I think is key, Dan. I think the things that really, really matter are

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could you see what you say that you could see?
ABRAMS: But I'm talking about the accuser, now the accuser himself...
FILAN: OK.

ABRAMS: ... cross-examination.
FILAN: I would focus on the facts, what actually happened, what did you feel...
FIEGER: No way.
FILAN: ... what—excuse me...
ABRAMS: That's Geoffrey saying no way...
FIEGER: You can't ask the victim as a defense counsel to tell the story again. You kill yourself.
FILAN: No, I disagree. You focus on trying to lock him in and find the inconsistencies on things
that actually matter.
FIEGER: No...
FILAN: Not stupid minutia, not...
ABRAMS: Geoffrey...
FILAN: ... extra terrestrial stuff.
ABRAMS: Geoffrey, how hard are you if you're the defense attorney on the accuser himself?
FIEGER: Not at all. You pick one thing that you know you can beat him at. You never let the child
repeat the story because it will become more engrained and more engrained. You are very short.
You are very channeled. And you find one or two things that you know absolutely you can prove
that child is saying the wrong thing, it could have never happened, and you amplify that no matter
how small it is or how big it is.
One or two things, because that's all Mesereau will really be able to do. He'll never be able to
prove, for instance, that the child wasn't in the bed. Jackson said he was in the bed. He'll never
be able to prove he wasn't there at Neverland, so he's got to pick something that makes it so the
jury gets the idea that that child would say something that absolutely nobody believes could be
true.
ABRAMS: And they have got to tie him back to mom. They've got to make this—look the question
that has to be answered is why is everyone lying here? Why is everyone lying?
FIEGER: Right.
ABRAMS: And the answer is, it's got to be, well, you know what?
Family wanted to make some money...

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FIEGER: But you lose that if the 20-year-old from '93 gets on the stand. That's a real hard
defense if another guy gets on the stand.
ABRAMS: Except that guy got $25 million.
FIEGER: Yes, he did. Yes, he did.
ABRAMS: And this family has got nothing.
FIEGER: Oh, well. They're about to get in line.
ABRAMS: All right. Oh, we'll see. You know, this is one of those few—this is one of those cases
where it really could go either way.
All right, Susan Filan, Jim Thomas, thanks a lot. Geoffrey Fieger is going to stick around.
Coming up, charges in the Michael Jackson case may be graphic, so are what a Canadian woman
says Bill Cosby did to her. Up next, we have the exclusive with her attorney. They couldn't
convince the D.A. to press charges, now they're taking Cosby to court themselves.
Your e-mails abramsreport@msnbc.com . Please include your name and where you're writing
from. I respond at the end of the show.
(COMMERCIAL BREAK)
ABRAMS: Coming up, my exclusive interview with the lawyer representing a woman who accused
Bill Cosby of assault. She's just filed a civil lawsuit. She's live in just a minute answering the
tough questions, but first the headlines.
(NEWS BREAK)
ABRAMS: We're back. Now to the Bill Cosby case, the woman who told police that Cosby drugged
and then sexually assaulted a year ago is now taking her case to civil court. She's got some pretty
graphic claims about what she says happened. Remember, authorities in Philadelphia decided not
to press any criminal charges against Cosby last month. But yesterday, his accuser filed a federal
lawsuit claiming assault, battery, emotional distress. She says Cosby and his associates defamed
her, that her reputation was damaged according to the suit when news organizations reported her
name, not this one. And by the interview Cosby cave to "The National Enquirer" earlier this month
the suit also claims after the woman went to police, Cosby and his lawyers called her five times
and offered money.
Joining me now exclusively is Dolores Troiani who represents the woman suing Bill Cosby. Thanks
very much for coming on the program. We appreciate it.
DOLORES TROIANI, REPRESENTS BILL COSBrS ACCUSER: You're welcome.
Good evening.
ABRAMS: All right. I want to give you an opportunity to respond to some of the concerns I've had
about the allegations in this case and I know you want to clear up the record, so I'm going to give
you that opportunity. So let's focus on the first issue, and that is the timing of when she made this
report. It's almost a year after it allegedly happened and she goes to the Canadian authorities and
says here's what happened to me. Why didn't she just go and complain about it right away?

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TROIANI: A delay in a case like this is really not unusual. There are many reasons why a woman
who are put in this situation do not come forward immediately. You have to understand
something. Although I myself have not personally experienced this as a prosecutor, I dealt with
many women who were sexually assaulted and they feel like they died that night.
They feel that they're vulnerable, which they didn't feel before. They feel they can no longer trust
anyone. They feel shame. They feel fear, and this case was certainly compounded by the fact that
the person who she has accused is Bill Cosby, an icon in this area and certainly an icon at Temple
where she worked. Her delay was very understandable and very usual.
ABRAMS: But then why did she ultimately come forward? I mean it sounds like what you're
saying is there was shame. There was this. There was that, but then she did come forward.
TROIANI: Because she had to deal with this. She had to find some closure. And it was haunting
her, as it does haunt every victim of a sexual assault. This is permanent injury to anyone who has
suffered something such as this and you can't do it alone. You need to have therapy; you need to
talk about it. And what happened was that she was having nightmares. She was experiencing
many difficulties in trying to—in her mental focus and she finally came forward to her mother and
immediately went to the police, not weeks later...
ABRAMS: All right.
TROIANI: ... immediately went to the police.
ABRAMS: But still, it was months after the incident. But I—let me refer now to "Toronto Sun"
article that talks about the delay and I know you wanted to talk about this. So asked why their
daughter has only now gone to police one year later, her dad said he believes it has to do with her
massage training. They teach about a code of ethics. She's starting to understand that when you
violate a person, it's not right. You can understand why people would read that and say what, she
only realizes it's not right after going to massage training?
TROIANI: Well obviously anyone who would think that the father meant that was misreading what
was—what he said. He was taken out on context and that's why it's important not to believe
everything that you read in the newspaper or here on the media. What her father meant and what
happened was that she had tried to deal with this on her own. Her father is a massage therapist
and she decided to choose his profession. She was in school. There was constant talk about
consent and touching. And all of that triggered in her, her understanding that she had to come
forward and she had to seek help.
ABRAMS: But so—but you know then it's not out of context. And the bottom line is it sounds like
massage training is what led her to say OK, what Bill Cosby did to me allegedly was wrong.
TROIANI: But—no, she always knew what he did to her was wrong, that's what's taken out of
context.
ABRAMS: Let me read this number five here. This is—we asked Cosby's attorneys for a
statement. This is what they gave us today.
"Mr. Cosby will address this matter through the judicial process and not through the media."
Let me read you a quote—a couple of quotes—I want to do number eight and number 10 -- of Bill
Cosby in an interview with "The National Enquirer" that he did recently.
He said looking back on it I realize that words and actions can be misinterpreted by another

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person. Unless you're a supreme being, you can't predict what another individual will do, but
that's all behind me now and I'm looking only toward a bright future. I'm not going to give in to
people who try to exploit me because of my celebrity status.
You know, it sure sounds like what he's saying is that this woman is trying to exploit him and
effectively get money from him because he's a celebrity.
TROIANI: Well that was the basis of our defamation count, that there
his representatives had said to "Celebrity Justice" that she was trying to extort money from
him and then he added to that by saying that she was exploiting him. And that's the basis of our
defamation claim.
In the complaint, we allege that he knew at the time that those statements were made that after
this incident happened and he was confronted by her mother, he apologized to both our client and
to her mother and then he and his representatives called and offered financial gain.
ABRAMS: But couldn't it be...
TROIANI: She didn't accept it.
ABRAMS: Couldn't it be because of what he says was a misinterpretation. I mean he's saying
that, you know, again looking back on it that words and actions can be misinterpreted.
TROIANI: I don't understand that at all, because the allegations here are that he gave her drugs
and she was unconscious.
ABRAMS: Lay out for us exactly what your client is saying happened.
TROIANI: Our client is saying that this was a man who she felt was a grandfather figure in her
life. He was a mentor towards her. He was a friend. And she went to his home on this occasion.
She felt stressed because she was thinking of changing her job. He gave her some pills, which he
told her were an herbal remedy. That she became semiconscious, that she was immobile, she
couldn't move her arms and her legs and he sexually assaulted her.
ABRAMS: But she doesn't remember much of what happened, right, according...
TROIANI: No, she remembers everything that happened up until a point and our complaint I think
was pretty graphic about what occurred...
ABRAMS: Yes, it was.
TROIANI: ... that she remembers.
ABRAMS: Yes, it was and we're intentionally, you know, not going to put in the details. They're
pretty gnarly.
TROIANI: Nor am I.
ABRAMS: All right, if you could just stick around for a moment. You had agreed to come on with a
couple of other lawyers to talk about this case. So we are going to take a break. When we come
back, Mercedes Colwin defends a lot of these cases and she thinks that there are some real
problems here. And Geoffrey Fieger is back with us and Ms. Troiani is going to stick around. So

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stay with us—more of our exclusive interview on the civil lawsuit being filed against Bill Cosby
coming up.
(COMMERCIAL BREAK)
(NEWS BREAK)
ABRAMS: We are talking about the Bill Cosby case and the accusations being made by a woman
who the authorities decided not to file charges against Cosby in connection with, but she is now
filing a civil lawsuit against Cosby.
Let me go to number four here. This is part of the lawsuit that was filed. Let me give everyone a
minute to get there. As a direct and proximate result of Cosby's acts, plaintiff has suffered serious
and debilitating injuries, mental anguish, humiliation, embarrassment, physical and emotional
upset, depression, sleeplessness, isolation, flashbacks, anxiety, serious pain, mental anguish,
emotional upset. It goes on, and a loss of earnings and earning capacity.
Dolores Troiani is the woman who represents the woman accusing Bill Cosby. And I'm joined now
by criminal defense attorneys Mercedes Colwin and Geoffrey Fieger. All right, Mercedes, you've
heard Ms. Troiani respond to what I think are some of the toughest questions for her to answer.
Why did it take so long for her to report this? Why did she report it to the Canadian authorities?
Why is she saying that the massage therapy courses sort of triggered this in her mind—tough case
to defend or not?
MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY: Oh I don't think so at all. I think thisactually it gave me fodder for cross-examination. It's fantastic that it took a year—I mean and
then to have to go to massage school to understand that this type of behavior is unlawful. I mean
I think that's the biggest liability she has here. And the second liability that the accuser has is the
fact that the prosecutor did not go forward with the charges. I mean...
ABRAMS: But you know there's a different standard, right...
(CROSSTALK)
ABRAMS: ... I mean the standard—the criminal standard they have to prove it...
COLWIN: Reasonable...
ABRAMS: ... beyond a reasonable doubt...
COLWIN: Yes. Sure. Sure Dan.
ABRAMS: In a civil court it's just one person versus another.
COLWIN: But the issue is they didn't find her credible. I mean when prosecutors make the
determination whether to bring forth charges or not, they're evaluating these individuals especially
an accuser with a one-on-one encounter...
ABRAMS: So you don't believe...
COLWIN: ... with the defendant.
ABRAMS: ... you don't believe the D.A.'s statement when they say because a civil action with a

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much lower standard of proof is possible, the district attorney renders no opinion concerning the
credibility of any party involved so as not to contribute to the publicity and taint prospective
jurors...
COLWIN: I think that's company speak. That's what it is, Dan. It really is. The prosecutor is not
going to go out on a limb and say I don't find this woman credible, therefore I'm not going to...
ABRAMS: All right. Ms. Troiani, your response.
TROIANI: I don't think your guest was listening when I said that my client did not have to go to
massage school to realize what happened to her was wrong. It was one of the triggers that caused
her to realize that she needed to seek help and could not get over this by herself. The district
attorney in this case in our state are elected. In this particular case, before there was any
investigation whatsoever, he came out and said that this was a weak case. He shot himself in the
foot. I'm a former prosecutor. My partner, Bebe Kivitz is a former prosecutor. We would have
had no problems with this case.
ABRAMS: It wasn't before...
COLWIN: But Counsel...
ABRAMS: ... to be fair...
COLWIN: Can I respond...
ABRAMS: Wait...
TROIANI: No...
ABRAMS: To be fair, it wasn't before...
TROIANI: Oh no it was.
ABRAMS: They had spoken to Bill Cosby before they held that press conference. That I know.
TROIANI: No, before that.
ABRAMS: Yes.
TROIANI: Before that...
ABRAMS: We're talking about before the press conference.
TROIANI: Yes.
COLWIN: Can I respond...
TROIANI: The first time that our client met with them, they said it was a weak case.
ABRAMS: Go ahead, Mercedes.
COLWIN: Counsel, it's a credibility finding by the prosecutor. I understand that you work in a

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prosecutor's office, but this prosecutor evaluated your client and decided for us to go forward and
use taxpayer's resources this is not the type of case we want to go forward because it is a
credibility issue. And we're not entirely sure about this credibility and I think the biggest issue was
the year that it took for her to go to authorities.
TROIANI: Well as I said before, you know, I was a prosecutor for 14 years, my partner was chief
of the Child Abuse Unit in Philadelphia. I tried homicides in Philadelphia and I tried rape cases in
Chester County. And it is not unusual for a woman to delay in a situation such as this. And this
prosecutor knows that. That is what is so offensive about his conduct.
ABRAMS: Geoffrey Fieger, what do you make of this?
FIEGER: You can (UNINTELLIGIBLE) you can kiss this case goodbye. It's a triple whammy. It's
not only the length of time. It's not only that the prosecutor refused to prosecute. It's also the
fact that there is zero, zero physical evidence. And you better hope that your client has gone to a
psychiatrist before the year in which she made the complaint so you have evidence of her pain and
suffering and her humiliation and the impact upon her, because without that, a jury is going to sit
there and say, how in the world are you going to prove this and on top of this, a 30-year-old
woman didn't make any complaint to anybody?
No jury—the jury, although they are going to be instructed on a lower standard of proof, they're
not going to apply it to a guy who has a spotless record, who is Bill Cosby, and you picked the
wrong guy, because this guy will fight you. This guy put his own daughter in prison.
ABRAMS: All right, I got to wrap it up. Ms. Troiani gets the final word.
TROIANI: Well, we have recently had a prosecution in Montgomery County of a state trooper with
very similar facts where the woman delayed for more than one year and there was a conviction.
FIEGER: With zero physical evidence?
TROIANI: You don't know what we have...
FIEGER: I know you don't have any physical evidence or you would have shared it with the
prosecutor.
TROIANI: We have shared what we have with the prosecutor.
ABRAMS: All right. Ms. Troiani, thanks a lot for...
TROIANI: You're welcome.
ABRAMS: ... coming on the program and taking the questions and battling it out with Geoffrey and
Mercedes. I know you wanted to clear the record and I hope that everyone feels that they've been
treated fairly now.
Mercedes, thanks a lot as well.
TROIANI: Thank you.
COLWIN: Thank you Dan.
ABRAMS: Coming up, why we should all be able to see what's going on inside the Michael Jackson

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courtroom. I've got a beef and it's my "Closing Argument".
(COMMERCIAL BREAK)
ABRAMS: Coming up, why the Michael Jackson courtroom I say should be open for everyone to
see. It's my "Closing Argument".
(COMMERCIAL BREAK)

ABRAMS: My "Closing Argument." As I listen to different reporters coming in and out of the
Jackson courtroom, I'm struck by how much their accounts differ.
Quote, "The accuser's brother was credible and did not stray on the key issues" some say, while
others sitting in the same courtroom report the prosecution really seemed to have lost ground with
this witness. Just channel surf, you can't miss it. And I can't help but think that we would all be
better served if you all could decide for yourselves.
Judge Rodney Melville has made that impossible, imposing a sweeping gag order and banning any
cameras or taping in the courtroom. And as I've said before, Judge Melville's attempts at secrecy
have backfired, with just about all of the pertinent information in this case leaking out before trial,
but that it also should have been a camera in the courtroom. In the past few days, the accuser's
brother and sister have been testifying and now the accuser himself.
Their testimony will likely determine the outcome of the case, a case that the world is watching.
This is one of those cases where the proceedings and the outcome will affect the public's
perception of the legal system one way or another. It would be better to see it without a filter, no
reporter bias, allowing you to decide for yourself whether justice was served. Now with the
accuser and his brother, they're both kids so we likely wouldn't be able to see their faces anyway
on TV and—but you might be able to listen to them tell their stories and to see Michael Jackson tell
his story, when and if he takes the stand.
Many seem to think that a camera adds to a circus-like atmosphere and in the O.J. Simpson case it
did just that. I agree. But sometimes it's the price we have to pay and most of the time it has
little or no impact on the proceedings. I've covered many televised trials with tough judges where
the camera ended up being forgotten. Some like Jesse Jackson bemoaning the fact that there are
no African Americans on the jury. If Jackson is convicted, there may be allegations of racism, and
since few will have actually seen the proceedings, it will be based on hunches probably rather than
facts. Whatever the outcome, in a case with this notoriety, seeing is believing and not seeing may
mean not believing.
Coming up in 60 seconds, it looks like we may have one feline viewer out there so upset by one of
our stories last night that the cat may have taken matters into his own paws.
(COMMERCIAL BREAK)

ABRAMS: Before we go to your letters, just want to make one correction. Geoffrey Fieger just a
moment ago talking about the Bill Cosby case made a comment about Bill Cosby having put his
own daughter in jail, there's no evidence that the woman who ended up serving time for extortion
was actually Cosby's daughter. The DNA test never happened, so you know Geoffrey was wrong
on that one.
All right—I've had my say, now it's time for "Your Rebuttal". Last night in our "Just A Minute"
segment, we told you about a firefighter in Wisconsin who wants the law changed so he can shoot
stray cats who meander onto his property.

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Karl in New York agrees. "Picture this. You have a classic car in your driveway, a custom paint
job, and you wake up one morning to take it for a cruise, lo and behold, all over the hood and roof
are sandy, dirty cat prints. If the unlucky critter keeps finding its way to my car and my property,
it might just meet the same fate as the guy who's proposing strays should not be—able to be
shot."
Karl, man you know ease up.
From Georgetown, Texas, Jane Thompson. "Cats don't bother me. Men, now men bother me.
They break my heart. They take my money. They lie to me and they stand me up. They make
promises and disappear. I'd like to see the law changed to where I could shoot men who bother
me. Why not?"
Bob Reiss in Penndel, Pennsylvania, "It takes a hard man to want to shoot an animal that will walk
right up to you, rub up against your leg, and purr. I fear for this guy's wife."
Also last night, some transgender groups want to establish a third category of public restrooms
that are gender-neutral, serve transsexuals, cross dressers and other people whose sexual identity
may be at issue. I said it was ridiculous.
Don Petersen in Spearfish, South Dakota with a reference to last night's "OH PLEAs!" where the
state of New Jersey named the tomato as the state vegetable, not fruit. "Dan, isn't it hypocritical
to dismiss the need for a third restroom for cross dressers, but embrace the idea of the tomato
cross dressing as a vegetable?"
My guest, Rikki Klieman, supported the idea of a gender-neutral bathroom, so she wouldn't have to
wait in as long a line. R. Arend in Altoona, Pennsylvania. "Rikki Klieman would quickly change her
position on multi-sexual restrooms should she ever enter one that I've just departed."
But Eliza Mitchell who claims to be a transgender was offended. "If I were to use the restroom
designated for my biological gender dressed as a female, I'd put my physical safety at risk. Should
I use the women's bathroom, I run the risk of being called a perverted, strange, or being greatly
misunderstood. Please try to see the other side of every issue before dismissing it as a trivial
matter."
Sorry, I still see it as trivial.
And Bob Kleamovich in East Greenbush, New York, "So now any transvestite, she-male or tanssomething will not have to divulge their sex and have a bathroom all to themselves. Come on
people."
Finally Kathi Keeney with a more general thought about me. "I used to watch you on Court TV a
long time ago. I thought you were an interesting and very intelligent television personality
attorney. Why do you end your MSNBC show reading letters, insulting your viewers? It's scary
and what's wrong with just being yourself?"
You want to hear something really scary, Kathi? This is me being myself. I don't insult my
viewers. I respond to them. A lot of them write aggressive notes. I try and respond back.
Your e-mails—I love my viewers—come on - everyone—you guys know I love you - abramsreport—
one word— @msnbc.com. We go through them at the end of the show.
"OH PLEAs!"—apparently a cat in Upper Pennsylvania Michigan got wind of our show last night,
causing the cat to become a sour puss. Remember yesterday's story, Wisconsin firefighter looking

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to legalize shooting the stray cats. It seems Joseph Stanton's cat is aiming to end the initiative.
Stanton was cooking dinner in his kitchen, presumably watching the program; his beloved cat was
roaming the countertops.
After hearing the proposed stray cat genocide in Wisconsin, Stanton's cat may have wanted to
make sure Joseph wasn't a supporter. Here's what happened. The cat knocked a loaded 9milimeter handgun off the counter. The gun discharged, hitting Stanton in the torso, state
troopers found him wounded at his home, took him to the hospital. He's fine. The cat's going to
be arrested—no, just kidding.
That does it for us tonight. Coming up next, "HARDBALL" with Chris Matthews. Thanks for
watching.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
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FOX
NEWS
channel

Do Tapes Back Cosby Accuser's Claim?
Tuesday, February 08, 2005
FOX NEWS
This is a partial transcript from "On the Record," February 7, 2005, that has been edited for clarity.
Watch "On the Record" every weeknight at 10p.m. ET
GRETA VAN SUSTEREN, HOST: Bill Cosby's (search) accuser claims she's got the tapes to back up her
bombshell allegations. Joining us is reporter Nicole Egan, who wrote the story for The Philadelphia Daily News.
Nicole, what is this involving tapes?
NICOLE WEISENSEE EGAN, PHILADELPHIA DAILY NEWS: Well, what I reported was that the alleged victim in
Canada recorded some conversations that occurred with Bill Cosby after she filed her report with the Canadian police
in January and that Mr. Cosby initiated them and that they support her allegations that he drugged and groped her at
his Cheltenham township home last January.
VAN SUSTEREN: All right, take us back. How is it, I mean, at least according to her, that she was in any sort of
situation in which she claims that Bill Cosby groped her?
EGAN: Well, according to the police report she filed, they went out to dinner in Philadelphia with some friends last
January and that Mr. Cosby invited her back to his Elkins Park mansion. When they got there, she said she was
stressed and not feeling well and that he offered her some pills and that when she took them, she started feeling
dizzy. And she basically — from what I understand, according to her attorneys — became immobilized and couldn't
move, and that he, at one point, was touching her breasts and that he had her touch his groin and that when she
woke up around 4 a.m., her bra was undone and her clothes were in disarray. And at that point, she got up and went
home. She drove herself home.
VAN SUSTEREN: All right. And when was the first time that she told anybody about this incident that she said
happened last January?
EGAN: She didn't tell anyone until she told her mother a few weeks before she went to the Canadian authorities.
VAN SUSTEREN: And in terms of these tapes — these conversations that she claims that she had with Bill Cosby —
that was after she told her mother, after she told the authorities, and these were tapings that she made. What's on
these tapes?
EGAN: I can't really get into that. I don't really want to go beyond what I've reported so far. But they support her
allegations.
VAN SUSTEREN: And these are statements by Bill Cosby that support her allegations from last January.
EGAN: Yes, ma'am.
VAN SUSTEREN: Have you actually heard these? I won't pry any further, but have you heard these tapes?
EGAN: No, I haven't heard them.

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VAN SUSTEREN: So are you taking her word that it corroborates her allegations?
EGAN: I can't get into how I know about it, or what I'm doing, but it's good information.
VAN SUSTEREN: What is going to happen? I mean, is the district attorney looking at this for a possible criminal
prosecution?
EGAN: Yes, he is. And two weeks ago, he said that he would announce a decision on whether to file charges against
Mr. Cosby sometime this week.
VAN SUSTEREN: Has Bill Cosby made any statement at all?
EGAN: No, he hasn't, other than statements he's made through his lawyer, Mr. Walter Phillips, Jr.
VAN SUSTEREN: All right, Nicole. Thank you very much. Appreciate you joining us.
Content and Programming Copyright 2005 FOX News Network, L.L.C. ALL RIGHTS RESERVED. Transcription
Copyright 2005 eMediaMHIWorks, Inc. (f/k/a Federal Document Clearing House, Inc.), which takes sole responsibility
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http://www.foxnews.com/printer_friendly_story/0,3566,146773,00.html

4/27/2005

Case 2:05-cv-01099-ER Document 17-3 Filed 04/27/05 Page 40 of 43

EXHIBIT J

Case 2:05-cv-01099-ER Document 17-3 Filed 04/27/05 Page 41 of 43
Montco D.A. Press Release

Pagel of 3

OFFICE OF THE DISTRICT ATTORNEY
BRUCE L. CASTOR, JR.
DISTRICT ATTORNEY

RISA VETRI FERMAN
FIRST ASSISTANT DISTRICT ATTORNEY

COUNTY OF MONTGOMERY
COURT HOUSE

P.O. Box 311
Norristown, Pennsylvania
19404-0311

OSCAR P. VANCE, JR.
CHIEF COUNTY DETECTIVE

ANNE C. METZ
OFFICE ADMINISTRATOR

DISTRICT ATTORNEY'S OFFICE
DISTRICT ATTORNEY'S FAX
COUNTY DETECTIVE BUREAU

(610) 278-3090
(610) 278-3095
(610) 278-3368

PRESS RELEASE

For Immediate Release

February 17, 2005

Montgomery County District Attorney Bruce L. Castor, Jr. has announced that a joint
investigation by his office and the Cheltenham Township Police Department into allegations against
actor and comic Bill Cosby is concluded. Cosby maintains a residence in Cheltenham Township,
Montgomery County

A 31 year old female, a former employee of the Athletic Department of Temple University
complained to detectives that Cosby touched her inappropriately during a visit to his home in January of
2004. The woman reported the allegation to police in her native Canada on January 13,2005. Canadian
authorities, in turn, referred the complaint to Philadelphia Police. Philadelphia forwarded the complaint
to Cheltenham Police. The District Attorney's Office became involved at the request of Cheltenham
Chief of Police John Norris.

Everyone involved in this matter cooperated with investigators including the complainant and Mr.
Cosby. This level of cooperation has helped the investigation proceed smoothly and efficiently. The
District Attorney commends all parties for their assistance.

The District Attorney has reviewed the statements of the parties involved, those of all witnesses
who might have first hand knowledge of the alleged incident including family, friends and co-workers of
the complainant, and professional acquaintances and employees of Mr. Cosby. Detectives searched Mr.
Cosby's Cheltenham home for potential evidence. Investigators further provided District Attorney

http://www.montcopa.Org/da/pressreleases/D ACastor_decision_on_Cosby.htm

2/17/2005

Case 2:05-cv-01099-ER Document 17-3 Filed 04/27/05 Page 42 of 43
Montco D.A. Press Release

Page 2 of 3

Castor with phone records and other items that might have evidentiary value. Lastly, the District
Attorney reviewed statements from other persons claiming that Mr. Cosby behaved inappropriately with
them on prior occasions. However, the detectives could find no instance in Mr. Cosby's past where
anyone complained to law enforcement of conduct, which would constitute a criminal offense.

After reviewing the above and consulting with County and Cheltenham detectives, the District
Attorney finds insufficient, credible, and admissible evidence exists upon which any charge against Mr.
Cosby could be sustained beyond a reasonable doubt. In making this finding, the District Attorney has
analyzed the facts in relation to the elements of any applicable offenses, including whether Mr. Cosby
possessed the requisite criminal intent. In addition, District Attorney Castor applied the Rules of
Evidence governing whether or not evidence is admissible. Evidence may be inadmissible if it is too
remote in time to be considered legally relevant or if it was illegally obtained pursuant to Pennsylvania
law. After this analysis, the District Attorney concludes that a conviction under the circumstances of
this case would be unattainable. As such, District Attorney Castor declines to authorize the filing of
criminal charges in connection with this matter.

Because a civil action with a much lower standard of proof is possible, the District Attorney
renders no opinion concerning the credibility of any party involved so as not to contribute to the
publicity, and taint prospective jurors. The District Attorney does not intend to expound publicly on the
details of his decision for fear that his opinions and analysis might be given undue weight by jurors in
any contemplated civil action. District Attorney Castor cautions all parties to this matter that he will
reconsider mis decision should the need arise. Much exists in this investigation that could be used (by
others) to portray persons on both sides of the issue in a less than flattering light. The District Attorney
encourages the parties to resolve their dispute from this point forward with a minimum of rhetoric.

Approved for release:

Bruce L. Castor, Jr.
District Attorney

Thursday, February 17, 2005 5:45PM

http://www.montcopa.Org/da/pressreleases/D ACastor_decision_on_Cosby.htm

2/17/2005

Case 2:05-cv-01099-ER Document 17-3 Filed 04/27/05 Page 43 of 43
Montco D.A. Press Release
Page 3 of 3

Media Advisory

Montgomery County District Attorney Bruce L. Castor, Jr. directs persons interested in the Cosby
matter to the DA's Office website for a press release, www.montcopa.org/da.

Press Releases

http://www.montcopa.org/da/pressreleases/DACastor_decision_on_Cosby.hmi

2/17/2005

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
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:
:
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:
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No. 05-cv-1099

DEFENDANT’S BRIEF IN OPPOSITION TO THE MOTION OF
THE ASSOCIATED PRESS TO INTERVENE AND TO LIFT SEAL
The Associated Press (the “AP”) again has moved to intervene in this case. This time, it
seeks to vacate one of the Court’s Case Management Orders, the Order entered on November 4,
2005 titled “Case Management Order 2” (doc. #47). That Order sets deadlines for the filing of
certain discovery motions. It also provides that the motions will be temporarily sealed, for a
short period of time, until the parties have had the opportunity to argue that any material in the
motions should be kept confidential. On behalf of the public, the AP argues that Case
Management Order 2 must be vacated, and that the parties’ discovery motions should be released
to the public, immediately, in their entirety, and without opportunity for advance review by this
Court.
The AP’s motion must be denied. First, the AP’s argument rests fundamentally on a
misimpression that Case Management Order 2 is a protective order that imposes permanent
confidentiality. That is not the case, and what the AP fears—a permanent seal and/or order of
confidentiality—has not yet even been requested by either party. As it now stands, the
temporary seal imposed by Case Management Order 2 will dissolve, by its own terms. Thus, the

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 2 of 11

AP’s grievance is unripe, and its motion is premature. Second, the AP ignores that neither it nor
the public has any presumptive right of access to discovery material or discovery motions. Case
Management Order 2 concerns only certain discovery motions. Therefore, the AP lacks standing
to move to vacate that order. The AP’s seeming outrage that the Court would even consider
sealing a discovery motion, even temporarily, without broadcasting its intent with sufficient
notice to the AP, demonstrates the AP’s inflated view of its right to access the discovery
proceedings in this case. For these reasons, which are stated in detail below, the Court should
deny the AP’s motion.
COUNTER-STATEMENT OF FACTS
The AP misconstrues the relevant facts in several critical ways. First, the AP blatantly
mischaracterizes Case Management Order 2 as “directing that ‘all requests for discovery,
responses and legal memoranda’ be filed under seal.” (AP’s Br. at 1 (emphasis added); see also
id. at 4, 15.) Perhaps the AP did so to strengthen the appeal of its argument that the November 4,
2005 Order violates the Federal Rules of Civil Procedure “on its face.” (Id. at 7 n.2.) In reality,
the Order is far more narrow. It provides that requests for discovery and related briefs “filed
pursuant to this order shall be filed under seal.” (Case Mgmt. Order 2, at 2 (emphasis added).)
The Order does not govern all discovery motions that may ever be filed in this case.
That distinction is critical, because of another provision of Case Management Order 2 AP
ignored by the AP—by its terms, the Order is temporary. The AP contends that the Order sets
forth a protocol for “testing” the propriety of the seal and merely “contemplate[es] that the seal
“may” be lifted. (AP’s Br. at 4.) In other words, the AP construes the Order as imposing a
permanent seal, which the parties may then challenge. The opposite is true. The Order imposes
a temporary seal. It is up to any party “opposing the lifting of the seal” to file a memorandum

2

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 3 of 11

“show[ing] cause why the seal should not be lifted.” (Case Mgmt. Order 2, at 2.) Thus, unless a
party moves to make any part of the seal permanent by December 21, 2005, the seal will be
lifted. The Court carefully required the parties to articulate every request on separate pages, so
that any later permanent sealing could be cleanly limited to the extent requested and justified.
The AP also contends that there is no public record explaining the genesis of, the reasons
for, and the limitations of Case Management Order 2. To the contrary, the November 4, 2005
conference, which preceded the Order, occurred on the record. There is a publicly available
transcript of that proceeding. During the proceeding, the Court recognized its responsibility to
balance any public interest with any legitimate basis for confidentiality. The Court noted that the
purpose of Case Management Order 2 was to establish a protocol whereby the Court could
review that issue in camera, so as not to decide the issue as a matter of default:
The second issue is whether or not these proceedings [i.e.,
the motions to compel relating to the parties’ depositions] should
then be conducted under some special rules of confidentiality. Or
whether they should be treated in the same manner that other
litigation is treated, i.e., that while discovery itself is confidential,
ordinarily proceedings involving the Court and enforcement of the
Court’s Orders, are conducted in open court and on the record.
And there can be pretty good arguments both ways. So, the way to
join that issue, it seems to me, is these requests should be filed
under seal and the answers should be filed under seal.
When that is completed, then there will be an opportunity
for any party that wishes to argue that the seal should not be lifted,
to so show. And an opportunity to oppose that. That is, it seems to
me, that before we have an argument of whether or not the seal
should be lifted, we need to have on the record what it is that is
going to be subject to public review.
(Nov. 4, 2005 Tr. at 4.) The Court noted that, without such a temporary seal, a party’s motion to
compel could very well, unilaterally, moot any legitimate claim to confidentiality:
The difficulty here is the following. The courts have
recognized that confidentiality can be attached to discovery
because, among other reasons, the Court is not directly involved.
3

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 4 of 11

The parties privately can make those arrangements. If a motion to
compel becomes a vehicle to disclose the discovery, then the entire
point of any agreement that the parties have or any desire that the
courts have endorsed in the past for discovery, as opposed to court
proceedings, to remain confidential, would be pointless.
(Id. at 6.) The Court emphasized that, unless a party objected, the seal would be lifted: “Maybe
nobody will oppose it, maybe they will.” (Id. at 7.)
Case Management Order 2 itself provides the record and careful, tailored judicial
decision-making that the AP insists is absent. The Order recognizes the authority relied on by
the AP. The Court explained that, “It is in the context of a discovery dispute that [the] Court
again is called upon to balance the private and public interests implicated in this case. The
purpose of this protocol is 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.” (Case Mgmt.
Order 2, at 3 n.1.) Thus, the Order makes clear that it is not a protective order or any other order
of confidentiality, but rather a case management order, establishing a procedure for the orderly
discharge of the Court’s consideration of the balance between public and private interests.
ARGUMENT
I.

THE AP’S MOTION IS PREMATURE.
The central fallacy of the AP’s argument is that the Court permanently sealed judicial

records. Laboring under this misconception, the AP cites to authority governing the procedure
for decisions to close court proceedings, to seal judicial records permanently, and for the entry of
protective orders.1 (See AP’s Br. at 6–9.) As Case Management Order 2 states, however, the

1

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), concerned an order
closing a criminal trial. Press-Enterprise Co v. Superior Court, 464 U.S. 501 (1984), and
United States v. Antar, 38 F.3d 1348 (3d Cir. 1994), concerned a decision to close and
seal the transcript of criminal voir dire proceedings. Shingara v. Skiles, 420 F.3d 301 (3d
4

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 5 of 11

seal it imposes is temporary. Unless a party objects to the lifting of the seal, which neither party
has done, the motions to compel will become publicly available. Thus, what the AP fears is not
yet even a possibility. Permanent sealing will only become possible if and when a party moves
for a permanent seal, and only to whatever extent the parties assert. At that putative point, the
Court will apply the law, issue a ruling, and articulate whatever findings are required by the law.
Therefore, the AP’s motion should be denied as premature.
In fact, it is difficult to determine exactly what the AP thinks should have occurred. The
AP states that it “does not here argue that good cause never exists for sealing.” (AP’s Br. at 8.)
It even recognizes that “the parties certainly have the right to ask the Court to review sensitive or
privileged information in camera.” (Id. at 9.) Yet, at the same time, the AP criticizes the Court
for placing “the cart before the horse,” “as the Court apparently decided to seal first and
determine the validity of sealing later.” (Id. at 8.) The AP has it topsy-turvy. If there may be
good cause here for sealing a discovery motion, and if that may only be determined by
submitting the motion to the Court, then the motion must be submitted, at first, under seal.
Otherwise, the discovery motion would become public (thanks to the AP itself), and the motion
to seal it would become moot. That procedure would put the cart before the horse. Case
Management Order 2 establishes a sensible, orderly procedure that preserves the rights of the
parties.

Cir. 2005), concerned a protective order governing the parties’ dissemination of all
discovery material. United States v. Raffoul, 826 F.2d 218 (3d Cir. 1987), concerned the
closure and sealing of the transcript from a criminal trial. Publicker Industries v. Cohen,
733 F.2d 1059 (3d Cir. 1984), concerned the closure and sealing of the transcript from a
preliminary injunction hearing.
5

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 6 of 11

II.

THE AP HAS NO STANDING TO SEEK ACCESS TO
DISCOVERY MATERIAL OR DISCOVERY MOTIONS.
The AP’s motion also rests on a critical misunderstanding of a substantive nature—

namely, that the mere filing of any document with the court, rendering it a “judicial document,”
affords the public a common law or constitutional right to access the document. The AP lumps
all “judicial records and proceedings” together, ignoring that Case Management Order 2
concerns only discovery material and discovery motions. Throughout its brief, the AP cites
broadly to the public’s “presumptive right to inspect and copy judicial records and documents.”
(AP’s Br. at 6 (internal quotation marks omitted).) The AP invokes the right of “the press and
public” “to articulate their countervailing interests” in the potential sealing of any court filing.
(Id. at 13.) The AP argues that “the seal should be lifted, and the public’s right to access
motions, requests, and other records filed with the Court should be fully restored.” (Id. at 9.)
Judging from the authority it cites, the AP even equates Case Management Order 2 to an order
closing an actual, live courtroom proceeding. (Id. at 9–10 & n.3.)
Neither the public nor the press has any right, however, to access discovery motions or
the discovery material attached to those motions. In Leucadia, Inc. v. Applied Extrusion
Technologies, Inc., 998 F.2d 157 (3d Cir. 1993), the United States Court of Appeals for the Third
Circuit held that “there is a presumptive right to public access to all material filed in connection
with nondiscovery pretrial motions, . . . but no such right as to discovery motions and their
supporting documents.” 998 F.2d at 165 (emphasis added). The court noted that “we cannot
overlook the Supreme Court’s statements in Seattle Times v. [Rhinehart, 467 U.S. 20 (1984)] . . .
that ‘pretrial deposition and interrogatories are not part of public components of a civil trial.’”
Id. at 164. The court stated that “a holding that discovery motions and supporting materials are
subject to a presumptive right of access would make raw discovery, ordinarily inaccessible to the

6

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 7 of 11

public, accessible merely because it had to be included in motions precipitated by inadequate
discovery responses or overly aggressive discovery demands. This would be a holding based
more on expediency than principle.” Id. at 165.2
The AP all but ignores this principle of law, masquerading as the champion of a public
right that does not exist. The AP relegates Leucadia to one sentence in a footnote in its brief.
Without any explanation, the AP claims that Leucadia “is of limited precedential value,” citing to
a Pennsylvania state court decision as authority. (AP’s Br. at 7 n.2.) To the contrary, and the
AP’s wishful thinking notwithstanding, Leucadia controls this court. No court has even
questioned whether Leucadia remains good law.3 Under the law of this circuit, there is no public
right of access to discovery motions or the discovery materials attached to those motions.
The same is true in other circuits. In Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir.
1986), the United States Court of Appeals for the First Circuit stated: “We think it is clear and
hold that there is no right of public access to documents considered in civil discovery motions.”
805 F.2d at 12. The court held:
2

The Supreme Court explained why discovery is not, itself, sufficiently “judicial” to
warrant a public right of access. “Much of the information that surfaces during pretrial
discovery may be unrelated, or only tangentially related, to the underlying cause of
action. Therefore, restraints placed on discovered, but not yet admitted, information are
not a restriction on a traditionally public source of information.” Seattle Times, 476 U.S.
at 33.

3

The Third Circuit’s opinion in Pansy v. Borough of Stroudsbourg, 23 F.3d 772 (3d Cir.
1994) does not conflict, expressly or otherwise, with Leucadia. In Pansy, the document
at issue was a settlement agreement, not a discovery motion. The Third Circuit already
had decided that “a settlement agreement deemed a judicial record is accessible under the
right of access doctrine.” Pansy, 23 F.3d at 781 (citing Bank of Am. Nat’l Trust & Sav.
Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344-45 (3d Cir. 1986).) Thus, to
determine whether the public had a right to access the settlement agreement in Pansy, the
court only was required to decide whether the settlement agreement was a “judicial
record.” Id. The court did not hold, or even consider, whether the right of access
extended to all documents filed with the court by litigants. The remainder of the opinion
did not concern access to judicial documents at all.
7

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 8 of 11

[D]iscovery proceedings are fundamentally different from
proceedings to which the courts have recognized a public right of
access. . . . [A] request to compel or protect the disclosure of
information in the discovery process is not a request for a
disposition of substantive rights. Materials submitted to a court for
its consideration of a discovery motion are actually one step further
removed in public concern from the trial process than the
discovery materials themselves, materials that the Supreme Court
has said are not subject to the public'
s right of access.
Anderson, 805 F.2d at 12-13; see also Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263
F.3d 1304, 1312 (11th Cir. 2001) (“The better rule is that material filed with discovery motions is
not subject to the common-law right of access.”); United States v. Amodeo, 44 F.3d 141, 145 (2d
Cir. 1995) (“We think that the mere filing of a paper or document with the court is insufficient to
render that paper a judicial document subject to the right of public access.”).
The Third Circuit’s approach is sensible. The filing and content of a discovery motion is
a unilateral decision made by one litigant. A party is free to include whatever it wishes in such a
motion. The Supreme Court has held that no part of discovery, let alone the parts contested and
repeated in discovery motions, is subject to a public right of access. See Seattle Times, 476 U.S.
at 33 (“Much of the information that surfaces during pretrial discovery may be unrelated, or only
tangentially related, to the underlying cause of action.”). Discovery motions concern the
contested aspects of discovery, i.e., matters that at least one party believes have no relevance to
the judicial proceeding at all and should not even be discoverable. In fact, extreme abuse could
stem from unfettered public access to discovery motions. In a case such as this one, where
legitimate privacy interests are at stake and media scrutiny is acute, a party seeking to use
publicity as leverage may feel free to inquire into irrelevant, sensitive areas, knowing that it will
respond to any legitimate resistance from its opponent by filing a motion.

8

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 9 of 11

In addition to misapplying the constitution and the federal common law, the AP also
misapplies the Federal Rules of Civil Procedure, arguing that “its right to access is based on”
those rules. (AP’s Br. at 7 n.2.) The AP contends that Case Management Order 2 “on its face
violates Rule 26(c).” (Id.) Rule 26(c), however, governs discovery itself, not the court’s
authority to seal any portion of the judicial record. Specifically, Rule 26 governs protective
orders in discovery, such as orders limiting the scope of discovery, or orders imposing
confidentiality on certain information produced in discovery. Case Management Order 2 is not a
protective order. It does not control whether the parties may disseminate discovery material
from this case.4 Rather, it is a case management order, providing a temporary seal so that the
broader protective order question may be argued and decided. The Order rests not on Rule 26
but on the Court’s “supervisory power over its own records and files,” Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598 (1978), and on the “equitable powers of courts of law
over their own process, to prevent abuses, oppression, and injustices.” Gumbel v. Pitkin, 124
U.S. 131, 144 (1888). Shingara v. Skiles, 420 F.3d 301 (3d Cir. 2005), the case relied on most
heavily by the AP, concerned a Rule 26(c) protective order, not the sort of Case Management
Order at issue in the AP’s motion.5
In summary, the AP does not have a right to access discovery in this case, or to access
discovery motions. Its broadly worded brief all but ignores that point. Thus, the AP’s motion to
intervene to unseal the motions filed pursuant to Case Management Order 2 should be denied.

4

In this case, the parties agreed that they would treat the depositions as confidential until
Defendant had sought and received a ruling from the Court.

5

As for Rule 5, which was also mentioned in the portion of Leucadia quoted and cited by
the AP, (AP’s Br. at 7 n.2), that rule specifically provides that discovery material must
not be filed in the public record, a practice this Court has followed for years. See Local
R. Civ. P. 26.1(a).
9

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 10 of 11

III.

THE COURT MAY RESOLVE DISCOVERY DISPUTES BY LETTER.
For the same reason, the AP’s contention that the Court may not act without “the filing of

motions that publicly seek the Court’s intervention” is simply wrong. (AP’s Br. at 10.) Contrary
to the AP’s implication, it is entirely proper to hear discovery disputes by letter and to conduct
in-chambers or telephonic discovery conferences. Again, neither discovery nor discovery
motions are subject to a public right of access. Courts frequently hear discovery disputes by
letter. See, e.g., Stafford v. Vaughn, No. Civ.A.02-3790, 2005 WL 226147, at *1 (E.D. Pa. Jan.
20, 2005) (providing that “any such discovery disputes shall be presented to the Court by letter to
Chambers”). Some judges of this District Court maintain standing orders requiring discovery
disputes to be raised by letter. See, e.g., Laurenzano v. Lehigh Valley Hosp., Inc., No. CIV.A.
00-CV-02621, 2003 WL 21780978, at *2 (E.D. Pa. July 28, 2003) (“A Standing Order of the
undersigned dated January 2, 2003 provides that all discovery disputes which cannot be amicably
resolved shall be brought to the attention of Magistrate Judge Rapoport “by letter or other
informal means”). Other district courts require this practice by local rule. See Local Rules of
the United States District Courts for the Southern and Eastern Districts of New York, Rule
37.3(c).
The AP does not have the right to know every detail about discovery in this case. Its
outrage over the procedure in this case is misplaced. “Simply stated, the purpose of discovery is
to resolve legal disputes between parties, not to provide newsworthy material.” Chicago
Tribune, 263 F.2d at 1316 (Black, J., concurring). “If it were otherwise and discovery
information and discovery orders were readily available to the public and the press, the
consequences to the smooth functioning of the discovery process would be severe.” Id. “Such

10

Case 2:05-cv-01099-ER Document 62 Filed 12/19/05 Page 11 of 11

interference by parties who have no interest in the underlying litigation could seriously impair an
Article III court from carrying out its core function—resolving cases and controversies.” Id.
CONCLUSION
For these reasons, Defendant respectfully requests the Court to deny the AP’s motion.

Dated: December 19, 2005

Patrick J. O’Connor
Patrick J. O’Connor
George M. Gowen III
COZEN O’CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant

11

Case 2:05-cv-01099-ER Document 28 Filed 05/27/05 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
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No. 05-cv-1099

MEMORANDUM IN OPPOSITION TO THE MOTION OF
THE ASSOCIATED PRESS TO INTERVENE AND TO FILE
OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER
Defendant respectfully submits this memorandum in opposition to the Motion of the
Associated Press (“AP”) to Intervene and to File Opposition to Defendant’s Motion for
Protective Order. Defendant does not, in this memorandum, repeat the factual or legal bases for
his Motion for Protective Order, except to the extent specifically necessary to respond to the
AP’s memorandum. Rather, he incorporates and presumes the Court’s familiarity with his
memorandum and reply memorandum in support of his motion.
I.

INTRODUCTION
A Protective Order limiting the public dissemination of confidential and private

discovery materials is neither unconstitutional nor a violation of the common law. Indeed, the
entry of such orders in civil litigation is routine. The Protective Order requested in this case is
reasonable and lawful, and should be entered by the Court.
The need for a Protective Order in this case is self-evident. The lawsuit involves subject
matters that are unquestionably personal and private. Plaintiff accuses Defendant of drugging
and touching her without her consent, allegations that the Defendant strenuously denies. At the

Case 2:05-cv-01099-ER Document 28 Filed 05/27/05 Page 2 of 12

appropriate juncture, there will be a trial. Plaintiff will present her case, Defendant will respond,
and the jury will render its verdict.
In the interim period leading up to trial, however, Defendant wishes to prevent the public
disclosure of confidential and private discovery materials, including allegations of sexual
misconduct made by unidentified individuals who have chosen to remain anonymous.1 These
allegations are untested and prejudicial, and they may well be ruled inadmissible at trial. It
would serve no legitimate purpose to publicize them before trial, in the judicial record or
otherwise. Regrettably, in the absence of a Protective Order, these discovery materials will
almost certainly be the subject of widespread media attention.
To date, nearly all of the filings in this case, even the most inconsequential (such as the
order granting counsel’s admission pro hac vice), have been the subject of press reports. There
is no reason to expect that future filings, especially if they contain confidential and private
discovery materials, will not garner similar attention. The resulting prejudice to the parties and
damage to the integrity of the judicial process would be overwhelming. The only practical
solution is to require that documents and pleadings that reference or attach discovery materials
that the parties have designated as confidential be filed under seal, at least until this Court has
had an opportunity to review the information and determine whether it should remain
confidential or instead be disclosed. The AP’s protestations notwithstanding, there is nothing
unusual or untoward about such a procedure. Indeed, it represents the norm in civil litigation,
not the exception.
1

Notably, the AP does not insist that it has a First Amendment or common law right to
report the names of Defendant’s anonymous accusers. Like the Plaintiff, the AP
apparently wishes to disclose only the allegations against him. This tactic, if allowed by
the Court, would effectively deprive the Defendant of any meaningful right to respond to
the allegations, no matter how false and malicious they may be. This is less of a concern
at trial where the witnesses will testify in open court and be subject to cross-examination.
2

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In seeking unfettered access to discovery materials before trial and before the Court has
had an opportunity to review them, the AP demands much more access than is normally
available in a civil case. In order to avoid giving this impression, however, the AP’s motion
mischaracterizes the relief that Defendant actually seeks. It begins by arguing that the requested
Protective Order would do what it plainly would not do, which is to conceal every aspect of these
proceedings from the public, even those that are not confidential. The AP thus asserts that
Defendant seeks a “blanket sealing of judicial records” and a “wholesale sealing of court
papers.” (AP’s Mem. at 5, 9.) Of course, as reflected in the proposed Protective Order that
accompanies Defendant’s motion, that is not what he is seeking at all. Nevertheless, the AP goes
on to argue that the Protective Order would bar it from publicizing “accusations being made in
court proceedings.” (Id. at 6.) That is not true, either. The crux of Defendant’s argument is that
none of the discovery materials at issue, especially the statements by the so-called “Jane Doe
witnesses,” has ever been aired in a court proceeding. In short, the AP targets a phantom
Protective Order that has never been requested and does not exist.
That said, it seems apparent that the AP would oppose the entry of any Protective Order,
however it is characterized and whatever its actual effect. Even so, the Court’s consideration of
the Defendant’s request for a Protective Order should be guided by what Defendant’s motion
actually seeks, rather than what the AP says it seeks. The Court should bear in mind that the
controlling Supreme Court case, Seattle Times, draws a clear distinction between pretrial
discovery materials (which generally are not public) and judicial proceedings (which generally
are public). When analyzed appropriately under the governing legal standards, Defendant’s
motion should be granted.

3

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II.

THERE IS NO PUBLIC RIGHT OF ACCESS TO PRETRIAL
DISCOVERY MATERIALS.
Although the Protective Order sought by Defendant would not result in the “blanket

sealing of judicial records” or the “wholesale sealing of court papers,” it would affect the ability
of the parties to disseminate the raw fruits of discovery to the public. In this respect, the
Protective Order is perfectly proper, because there is no right of access to pretrial discovery
materials.
[P]retrial depositions and interrogatories are not public components
of a civil trial. Such proceedings were not open to the public at
common law, and, in general, they are conducted in private as a
matter of modern practice. Much of the information that surfaces
during pretrial discovery may be unrelated, or only tangentially
related, to the underlying cause of action. Therefore, restraints
placed on discovered, but not yet admitted, information are not a
restriction on a traditionally public source of information.
Seattle Times Co. v. Rhinehart, 476 U.S. 20, 33 (1984) (citations and footnotes omitted).
The AP’s argument that the Protective Order somehow impinges on a public right fails to
take account of the distinction between pretrial discovery materials and judicial proceedings.
Indeed, it treats discovery and trial as though they were one and the same, arguing that, now that
the facts of the case “are about to be tested in the crucible of discovery, it is all the more
important for the public to have access to the facts that will explain what has occurred in this
matter and why.” (AP’s Mem. at 8.)
The notion that the facts “are about to be tested in the crucible of discovery” is sheer
nonsense. Discovery is not a “crucible” for anything, and it is certainly not the arena in which
the “facts that will explain what has occurred” will be determined. As in every case, the facts
will be determined at trial, not in discovery. The trial will be open to the public, and there will

4

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be ample opportunity to learn what actually occurred and why. The Protective Order sought by
Defendant has nothing to do with the conduct of the trial, and, as such, treads on no public right.2
Because the requested Protective Order will have no effect on the trial of this case, the
only legitimate question before the Court is whether Defendant’s request for a Protective Order
meets the “good cause” requirement of Federal Rule of Civil Procedure 26(c). As Defendant
demonstrated in his motion papers, it does. One of Rule 26(c)’s express purposes is to protect
litigants from potential “embarrassment,” especially where the potential embarrassment is
“particularly serious.” Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
This is precisely the sort of case where a Protective Order is needed most. Much of the
discovery in this case—including the police files, the parties’ interrogatory answers, and the
parties’ and witnesses depositions—will concern personal relationships, alleged sexual
misconduct, possible drug use, and the psychological and emotional well-being of the parties and
witnesses. All of this information (whether it is true or false) is unquestionably private and
confidential. The fact that the AP’s reporters are eager to obtain and report this material is
besides the point. “There is no reason whatsoever for allowing public access to information that
is damaging or embarrassing to a party or a witness merely because it makes good press copy or
will engage the public’s interest.” Jack H. Friedenthal, Secrecy in Civil Litigation: Discovery &
Party Agreements, J.L. & Pol’y 67, 86 (2000). See also Seattle Times, 476 U.S. at 34-35
(“Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), . . . . [t]here is an
2

Again displaying the very overreaching that Seattle Times warned against, the AP insists
that “the public is entitled to know how the District Attorney came to the conclusion that
Mr. Cosby should not be charged with a crime.” (AP’s Mem. at 8.) If that were true,
there would be a public right to view the police and District Attorney’s files, regardless of
whether a civil suit is subsequently filed. There is no such right, and therein lies
Defendant’s point. Police investigatory records are not public and they should not
become available to the media simply because the parties subpoena them in discovery.
5

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opportunity . . . for litigants to obtain—incidentally or purposefully—information that not only is
irrelevant but if publicly released could be damaging to reputation and privacy.”).3
Thus, the Rule 26(c) standard is clearly met in this case. Indeed, it would appear that
Plaintiff’s purpose in seeking to publicize anonymous allegations against the Defendant is to
embarrass him, deprive him of the opportunity to respond, and undermine his reputation in the
community. The AP’s apparent willingness to go along with this tactic does not render the tactic
more legitimate, just more damaging.
The sealing of discovery materials in cases involving allegations of sexual misconduct is
appropriate even where the public’s interest in the allegations is far more legitimate than it is
here. In Jones v. Clinton, 1998 U.S. Dist. LEXIS 2923 (D. Ark. 1998), for example, a case
involving alleged sexual harassment by a sitting U.S. President, the court sealed discovery and
court filings dealing with discovery. Id. at *22. Citing Seattle Times, the court held that the
protective order was justified on the following grounds:
Rule 26(c) thus protects privacy interests and specifically includes
among its express purposes the protection of a party or person from
embarrassment. . . . . Much of the discovery in this case of alleged
sexual harassment has delved deeply into the personal lives of
individuals and elicited information that, regardless of its truth or
falsity, could prove damaging to reputation and privacy. Many in
the media have shown no restraint in their willingness to place
such personal information in the public domain despite the pain it
may cause. Driven by profit and intense competition, gossip,
speculation, and innuendo have replaced legitimate sources and
attribution as the tools of the trade for many of these media
representatives. Stories are apparently no longer subjected to
3

Other discovery material, even material that might not be considered confidential in other
cases, may be confidential in this case because of Defendant’s celebrity status. For
example, the press should not be given access to Defendant’s private telephone numbers,
much less his personal financial information, just because Plaintiff is seeking this
information in discovery. Airing this information in public would seriously compromise
the privacy interests of the Defendant, members of his family, and numerous other
individuals, yet its release would serve no legitimate public purpose.
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critical examination prior to being printed. Indeed, the printing of
a story in one publication is itself now considered newsworthy and
justification for its reprinting in other publications, without critical
examination for accuracy and bias. Thus, stories without
attribution and based on gossip, speculation, and innuendo fly
through media outlets with blinding speed only later to be placed in
context or subjected to clarification and/or retraction, as the case
may be. The Court finds there is good cause under Rule 26(c) in
attempting to protect private individuals from the stigma of being
associated with a case that involves alleged sexual indiscretions
and which is being played out on a national stage.
Id. at *31.
A Protective Order barring the dissemination of confidential discovery material does not
implicate the public’s right of access to judicial proceedings. A Protective Order is appropriate
under Rule 26(c) because Defendant has shown good cause.4
III.

THE PUBLIC HAS A PRESUMED BUT LIMITED RIGHT OF ACCESS
TO JUDICIAL PROCEEDINGS AND RECORDS.
The Protective Order sought by Defendant would also apply, at least theoretically, to

court filings that reference or attach discovery materials that have been designated confidential.
The parties would be required to file such materials under seal, permitting the Court, with the
parties’ participation, to determine whether they should remain sealed or whether any part of
them should be released.
This procedure is sensible and proper. Although there is a presumed “right of access to
judicial proceedings and judicial records,” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 780–
81, there is a correlative principle that “the right of access . . . is not absolute.” Bank of Am.
4

As Defendant pointed out in his earlier memoranda, the Court may also restrict the public
availability of information to preserve a fair trial. See Anderson v. Cryovac, Inc., 805
F.2d 1, 8 (1st Cir. 1986) (“The district court was concerned that the extensive publicity . .
. would inhibit and perhaps prevent the selection of an impartial jury. . . . Because it was
faced with specific instances of massive and potentially harmful publicity, we find there
was good cause for the district court to issue the protective order.”).
7

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Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986). In
determining whether the public should be given access to judicial records, the Court is required
to balance competing public and private interests. Thus, the “presumption of access [to judicial
records] must be balanced against the factors militating against access.” Id.
The balancing test applicable to the sealing of judicial records does not apply to every
court filing, however, because not everything that is filed in court is considered a “judicial
record.” In particular, there is no presumed right of access to filings that relate to “discovery
motions and their supporting documents.” Leucadia, Inc. v. Applied Extrusion Technologies,
Inc., 998 F.2d 157, 165 (3d Cir. 1993). As the Leucadia court explained: “[A] holding that
discovery motions and supporting materials are subject to a presumptive right of access would
make raw discovery, ordinarily inaccessible to the public, accessible merely because it had to be
included in motions precipitated by inadequate discovery responses or overly aggressive
discovery demands.” Id. at 164. Therefore, to the extent that the requested Protective Order
would require the parties to file discovery motions and exhibits under seal, it would not implicate
the public’s presumed right of access to judicial records.
The Second Circuit has also emphasized that not every court filing implicates the
presumed right of public access. It articulated several reasons why this is so, including a number
of reasons that apply squarely to the discovery materials at issue here:
[I]t must be recognized that an abundance of statements and
documents generated in federal litigation actually have little or no
bearing on the exercise of Article III judicial power. The relevance
or reliability of a statement or document cannot be determined until
heard or read by counsel, and, if necessary, by the court or other
judicial officer. As a result, the temptation to leave no stone
unturned in the search for evidence material to a judicial proceeding
turns up a vast amount of not only irrelevant but also unreliable
material. Unlimited access to every item turned up in the course of
litigation would be unthinkable. Reputations would be impaired,

8

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personal relationships ruined, and businesses destroyed on the basis
of misleading or downright false information.
United States v. Amodeo, 71 F.3d 1044, 1048-49 (2d Cir. 1995) (emphasis added).
Thus, despite the broad sweep of the AP’s memorandum, the AP’s concern about access
to “judicial records” does not even apply unless and until one of the parties seeks to file a nondiscovery motion that references or attaches confidential discovery materials, such as a motion
for summary judgment. Yet, even at that point, the AP’s claim that Defendant seeks a “blanket
sealing” of all such records, at the sole discretion of the parties, is not correct. Defendant’s
motion seeks merely to establish a prophylactic procedure that would enable the Court to
consider and decide whether particular filings should be considered confidential, without the
issue becoming moot by the mere filing of the material in question.5
If either Plaintiff or Defendant wishes to challenge the initial requirement that she or he
file confidential discovery materials under seal, such party may do so, with the burden properly
on the party seeking confidentiality to establish good cause for sealing the material at issue.
Each such filing would be accompanied by a redacted, publicly filed version of the same
pleading, thereby enabling the AP to ascertain in general terms the nature of the information
under seal. If the AP chooses, it can move to unseal the information. This was the procedure
followed and approved in Leucadia, a case cited by the AP. See 998 F.2d at 166.
The AP’s next argument is that Defendant is not entitled to a Protective Order under
Pansy because he is a “public person” and “one of the important entertainment icons and role
models this City has ever produced.” (AP’s Mem. at 8.) This argument misreads the Pansy
5

Although the AP is correct that the law prevents parties from unilaterally deciding,
without court supervision, what judicial documents should be sealed, the law is equally
clear that parties may not unilaterally decide to make confidential materials public,
through the unsupervised and wholly discretionary act of filing a document in the public
court file.
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decision. A person’s privacy interests are not diminished because he or she happens to be a
celebrity. The Pansy court’s reference to persons “subject to legitimate public scrutiny” and
“issues or parties of a public nature”—such as the litigation against a municipality at issue before
it—was based on precedents concerning persons “who serve [the public] in office,” “a
government agency and matters of public concern,” and “information important to public health
and safety.” Id. at 787-88 (citations and quotation marks omitted). Defendant in this case fits
none of these categories. To the contrary, “[m]ore than mere celebrity interest” is required to tip
the balance against privacy. Condit v. Dunne, 225 F.R.D. 113, 120 (S.D.N.Y. 2004); see also
Paisley Park Enters. v. Uptown Prods., 54 F. Supp. 2d 347, 348 (S.D.N.Y. 1999) (holding that,
where opposing party had history of sharing information with media, rock star Prince’s motion
for protective order would be granted).
In addition, the Supreme Court has explained that courts have inherent “supervisory
power” to deny access to court files where “court files might have become a vehicle for improper
purposes” and to “insure that its records are not ‘used to gratify private spite or promote public
scandal.’” Nixon v. Warner Communications, Inc., 425 U.S. 589, 598, 603 (1978) (citation
omitted). Moreover, in cases like this, where much of the discovery material will likely be
inadmissible at trial, a Protective Order does not interfere with a legitimate public interest.
United States v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997) (“[n]either tradition nor logic
supports public access to inadmissible evidence.”). Thus, a Protective Order that precludes the
parties from publishing incendiary and scandalous information, which is inadmissible and
judicially useless, is entirely appropriate, particularly given the strong countervailing privacy
interests at stake. See id.

10

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Defendant’s proposed Protective Order imposes a requirement that discovery materials
that are designated as confidential should be filed under seal, but it leaves for another day the
resolution of specific disputes concerning whether particular discovery materials should remain
sealed. Defendant is not seeking to seal the trial record, or any other actual court proceeding.
Thus, most of the cases the AP cites in its motion to intervene are inapplicable. See PressEnterprise Co. v. Superior Court, 464 U.S. 501 (1984) (concerning the tradition of open criminal
trials); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (concerning sealed transcripts
of criminal preliminary hearing); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984)
(concerning closed hearing on preliminary injunction motions); North Jersey Media Group, Inc.
v. Ashcroft, 308 F.2d 198 (3d Cir. 2002) (concerning closed hearings over deportation of
suspected terrorists).
IV.

CONCLUSION
Plaintiff and the AP each give their own reasons for opposing Defendant’s motion for a

Protective Order. Plaintiff argues that the motion somehow represents an attempt by the
Defendant to “silence his accusers” and bring “shame, self doubt, and humiliation” on victims of
sexual assault. The AP argues that the motion somehow treads on the public’s right of access to
judicial records and proceedings and would deny the public “access to the facts that will explain
what has occurred in this matter and why.” Neither argument comes anywhere close to the mark.
Defendant’s request for a Protective Order harms no one and treads on no public right. It
seeks merely to prevent the prevent the dissemination of confidential discovery materials before
trial. Entry of a Protective Order will help to preserve the integrity of the jury pool, ensure
fairness, and lessen the prospects that the parties will be prejudiced by the disclosure of
potentially irrelevant and unreliable material that may be inadmissible at trial.

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The Court should deny the AP’s motion to intervene and enter the Protective Order
attached to Defendant’s motion.

Dated: May 27, 2005

s/ Patrick O’Connor
Patrick J. O’Connor
George M. Gowen III
COZEN O’CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant

12

Case 2:05-cv-01099-ER Document 21 Filed 05/09/05 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
:
:
:
:
:
:
:
:

No. 05-cv-1099

DEFENDANT’S ANSWER
Defendant hereby answers Plaintiff’s Complaint, as follows:
A. Jurisdiction and Venue
1.

The allegations contained in paragraph one of the Complaint constitute

conclusions of law, to which no response is required.
2.

The allegations contained in paragraph two of the Complaint constitute

conclusions of law, to which no response is required.
B. The Parties
3.

Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of

the allegations contained in paragraph three of the Complaint and, therefore, denies them.
4.

Admitted.
C. Factual Background

5.

Paragraph five of the Complaint contains no factual allegations. Therefore, no

response is required.

Case 2:05-cv-01099-ER Document 21 Filed 05/09/05 Page 2 of 9

6.

Defendant admits that, to his knowledge and memory, Plaintiff was employed by

the Temple University Women’s Basketball Program, for a period of time in the last five years.
He also admits that he met Plaintiff through their mutual connection to Temple University.
Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of the remaining
allegations contained in paragraph six of the Complaint and, therefore, denies them.
7.

Defendant admits that, over the course of Plaintiff’s employment by Temple

University, he befriended Plaintiff and attempted to help and encourage her professional
development. Defendant admits that, to his knowledge, Plaintiff considered him to be a friend
and mentor. Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of the
remaining allegations contained in paragraph seven of the Complaint and, therefore, denies them.
8.

Defendant admits that, from when they first became friends until some point prior

to January 2005 (when Plaintiff first made her allegations against Defendant), Plaintiff and he
saw each other socially. He admits that these social interactions included various group dinners
and other functions at his Elkins Park home. Defendant also admits that these social interactions
included one-on-one dinners and evenings at his Elkins Park home and other locations. He also
admits that Plaintiff attended a dinner party with him in March 2004 and attended one of his
performances in August 2004. He admits that, during the course of their friendship, Plaintiff and
he discussed many topics, including basketball, Plaintiff’s career and personal development, job
opportunities, and Plaintiff’s spiritual beliefs.
9.

Denied as stated. By way of further answer, Defendant admits that, on more than

one occasion, he invited Plaintiff to his Elkins Park home, and she accepted. On certain of these
occasions, Plaintiff was Defendant’s only guest. Plaintiff and Defendant discussed, as they often
did, Plaintiff’s career. Defendant does not recall the exact dates or times of Plaintiff’s visits.
2

Case 2:05-cv-01099-ER Document 21 Filed 05/09/05 Page 3 of 9

10.

Defendant incorporates his answer to paragraph nine of the Complaint.

11.

Denied as stated. Defendant admits that, during one of Plaintiff’s one-on-one

visits to his Elkins Park home, Plaintiff complained of tension and an inability to sleep.
Defendant denies the remaining allegations contained in paragraph eleven of the Complaint.
12.

Denied. By way of further answer, Defendant states that, in response to

Plaintiff’s complaint of tension and inability to sleep, he offered Plaintiff one and one-half
tablets of over-the-counter Benadryl®.
13.

Denied.

14.

Defendant admits that Plaintiff accepted the tablets that he offered her. Defendant

denies the remaining allegations contained in paragraph 14 of the Complaint.
15.

Denied.

16.

Defendant admits that he offered Plaintiff one and one-half tablets of over-the-

counter Benadryl®. Defendant denies the remaining allegations contained in paragraph 16 of the
Complaint.
17.

Denied.

18.

Denied as stated.

19.

Denied.

20.

Denied.

21.

Denied.

22.

Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of

the allegations contained in paragraph 22 of the Complaint and, therefore, denies them.
23.

Denied.
3

Case 2:05-cv-01099-ER Document 21 Filed 05/09/05 Page 4 of 9

24.

Denied as stated. By way of further answer, Defendant states that, when he came

downstairs to wake Plaintiff, she was already awake. Defendant denies wearing only a bathrobe.
25.

Admitted. By way of further answer, Defendant states that prior to Plaintiff’s

departure from his Elkins Park home, Defendant served Plaintiff a breakfast consisting of a
homemade blueberry muffin and a cup of hot tea.
26.

Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of

the allegations contained in paragraph 26 of the Complaint and, therefore, denies them.
27.

Defendant admits that, between January 13, 2005 and the present, he has made

statements that have been published by the media. The publications and broadcasts speak for
themselves. Defendant denies the remaining allegations contained in paragraph 27 of the
Complaint.
28.

Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of

the allegations contained in paragraph 28 of the Complaint and, therefore, denies them. By way
of further answer, Defendant states, upon information and belief, that Plaintiff’s identity as
Defendant’s accuser was first made public by a member of Plaintiff’s family.
29.

Denied as stated. Defendant admits that, on February 21, 2005, he was

interviewed by a reporter for The National Enquirer and that the subjects covered in the
interview included Plaintiff’s allegations. He also admits that The National Enquirer
subsequently published an article that purported to set forth portions of his statements during the
interview. That article speaks for itself. Defendant denies the remaining allegations contained in
paragraph 29 of the Complaint.
30.

Denied.

4

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COUNT I
Andrea Constand v. William Cosby
Battery
31.

Paragraph 31 of the Complaint contains no factual allegations. Therefore, no

response is required.
32.

Denied.

33.

Denied.

34.

Denied.

35.

Denied.

36.

Denied.

37.

Denied.

38.

Denied.

WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.
COUNT II
Andrea Constand v. William Cosby
Assault
39.

Paragraph 39 of the Complaint contains no factual allegations. Therefore, no

response is required.
40.

Denied.

41.

Denied.

42.

Denied.

5

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43.

Denied.

44.

Denied.

45.

Denied.

46.

Denied.

WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.
COUNT III
Andrea Constand v. William Cosby
Intentional and Negligent Infliction of Emotional Distress
47.

Paragraph 47 of the Complaint contains no factual allegations. Therefore, no

response is required.
48.

Denied.

49.

Denied.

50.

Denied.

51.

Denied.

52.

Denied.

53.

Denied.

WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.

6

Case 2:05-cv-01099-ER Document 21 Filed 05/09/05 Page 7 of 9

COUNT IV
Andrea Constand v. William Cosby
Defamation/Defamation Per Se
54.

Paragraph 54 of the Complaint contains no factual allegations. Therefore, no

response is required.
55.

Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of

the allegations contained in paragraph 55 of the Complaint and, therefore, denies them.
56.

Denied.

57.

Denied.

58.

Denied as stated. Defendant admits that, on February 21, 2005, he was

interviewed by a reporter for The National Enquirer and that the subjects covered in the
interview included Plaintiff’s allegations. The article purportedly publishing some of his
statements during that interview speaks for itself. Defendant denies the remaining allegations
contained in paragraph 58 of the Complaint.
59.

Denied.

60.

Denied.

61.

Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of

the allegations contained in paragraph 61 of the Complaint and, therefore, denies them.
62.

Denied.

63.

Defendant lacks knowledge sufficient to form a belief as to the truth or falsity of

the allegations contained in paragraph 63 of the Complaint and, therefore, denies them.
64.

Denied.

7

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WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.
COUNT V
Andrea Constand v. William Cosby
False Light/Invasion of Privacy
65.

Paragraph 65 of the Complaint contains no factual allegations. Therefore, no

response is required.
66.

Denied.

67.

Defendant admits that, on February 21, 2005, he was interviewed by a reporter for

The National Enquirer and that the subjects covered in the interview included Plaintiff’s
allegations. The article purportedly publishing some of his statements during that interview
speaks for itself. Defendant denies the remaining allegations contained in paragraph 67 of the
Complaint.
68.

Denied.

69.

Denied.

70.

Denied.

WHEREFORE, Defendant demands the entry of judgment in his favor and against
Plaintiff and an award of his costs, his attorneys fees, and such other relief as the Court deems
appropriate.
AFFIRMATIVE DEFENSES

1.

Plaintiff’s claims are barred by the applicable statute of limitations.
8

Case 2:05-cv-01099-ER Document 21 Filed 05/09/05 Page 9 of 9

2.

Plaintiff’s claims are barred by the doctrines of estoppel and laches.

Dated: May 9, 2005

s/ Patrick J. O’Connor
Patrick J. O’Connor
George M. Gowen III
COZEN O’CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant

9

Case 2:05-cv-01099-ER Document 79 Filed 04/12/06 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.

WILLIAM H. COSBY, JR.,
Defendant.

DEFENDANT'S MOTION FOR THE ISSUANCE
OF INTERNATIONAL LETTERS OF REQUEST
Pursuant to Federal Rule of Civil Procedure Rule 28(b), 28 U.S.C § 1781, the inherent
powers of the Court, and the principles of reciprocity and comity, Defendant hereby moves this
Court to issue the attached Letters of Request directed to the appropriate judicial authorities in
Ontario, Canada. The grounds for this motion are set forth in the accompanying memorandum.

Dated: April 12, 2006

sl Patrick O'Connor

Patrick J. O'Connor
George M. Gowen III
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas

N
ew York, NY 10036-6710
212.336.2000
Attorneys for Defendant

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.
WILLIAM H. COSBY, JR.,
Defendant.

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION
FOR THE ISSUANCE OF INTERNATIONAL LETTERS OF REQUEST
Defendant respectfully submits this memorandum in support of his Motion for the
Issuance of International Letters of Request directed to the appropriate judicial authorities in
Ontario, Canada. Defendant seeks the Court's assistance in obtaining certain discovery from
sources located in Ontario.
1.

BACKGROUND

The Court already is familiar with the allegations and scope of discovery in this case.
Plaintiff alleges that Defendant sexually assaulted her, in January 2004. (Am. Compl. [doc. #
41] ¶¶ 11-25.) She did not, however, report the incident to police until January 2005. (Id. ¶ 28.)
She alleges that, after she spoke to police, she and her mother had telephone conversations with
Defendant. (Id. ¶ 32.) Subsequently, according to Plaintiff, Defendant made statements to the
media, directly and through "representatives," which were untruthful and defamatory. She
claims that the content of her mother's telephone conversations with Defendant prove that he
knew his statements to the press were false. (Id. ¶¶ 29-32.)

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 2 of 13

Placing much about herself at issue, Plaintiff alleges that Defendant's conduct has caused
her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss of
enjoyment of life's pleasures," "a set back in her education," and "a loss of earnings and earning
capacity." (Id. ¶¶ 36-39.) Plaintiff's defamation claim also places at issue her motivations in
deciding to accuse Defendant of assault, a year after the alleged attack. (See id. ¶¶ 29, 31.)
Defendant denies Plaintiff's allegations. (See Def.'s Answer Pl.'s Am. Compl. [doc. # 42].)
The parties currently are conducting discovery. What would be routine discovery,
however, has become complicated, because Plaintiff is Canadian. Several obvious subjects of
discovery-such as persons identified in Plaintiff's Initial Disclosures, her family members who
witnessed her mental state and with whom she discussed her allegations, and the police officers
to whom she first made her accusations-are in Ontario, Canada. Thus, they are outside the
subpoena power of this or any United States court. Plaintiff has done nothing to mitigate this
complication-she has not agreed to make her relatives available for deposition or consented to
any routine documentary discovery. Thus, to prepare his defense and receive the discovery to
which he is entitled, Defendant must seek judicial assistance abroad. To do so, Defendant must
ask this Court to act, by issuing international letters of request. Defendant's proposed
international letters of request are attached hereto as Exhibits A-K.
II. THE DISCOVERY REQUESTED
A.

Depositions

Through discovery, Defendant has learned that there are at least eight individuals located
in Ontario, Canada who possess relevant information not obtainable from other sources.

2

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1.

Gianna Constand

Gianna Constand is Plaintiff's mother. The parties agree that she possesses relevant
information. Indeed, in her Initial Disclosures, Plaintiff identified Gianna Constand as a person
whose testimony Plaintiff may use to support her claims. Gianna Constand's telephone
conversations with Defendant are a central fact of Plaintiff's case. Moreover, as Plaintiff's
mother, who lived with Plaintiff after the alleged attack, Gianna Constand is also likely to have
information about several other aspects of the case, including Plaintiff s relationship with
Defendant, the alleged attack, its effect on Plaintiff, Plaintiff's decision to reveal it, and the
events that occurred thereafter.
2.
Andrew Constand
Andrew Constand is Plaintiff's father. He lived with Plaintiff after the alleged attack and
specifically, when she decided to reveal the attack a year after it allegedly occurred. As he
explained to the Toronto Sun, he knows the effect that the alleged attack had on Plaintiff, what
caused Plaintiff to break her silence, Plaintiff's motivations in bringing this suit, her propensity
for telling the truth, and the nature of Plaintiff's and Defendant's relationship. Thus, Defendant
wishes to learn this information from Mr. Constand at a deposition.
Jennifer

3.
Sprague

In her Initial Disclosures, Plaintiff identified Jennifer Sprague, a Canadian
psychotherapist, as a person whose testimony Plaintiff may use to prove her claims. Indeed,
Plaintiff sought counseling from Ms. Sprague both before and after the alleged attack. Thus, Ms.
Sprague may possess knowledge and documents that bear upon Plaintiff's allegations of injury.
Defendant must depose Ms. Sprague.

3

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 4 of 13

4.

Darryl Rastorp

Discovery has revealed that Plaintiff did not live alone at the time she alleges Defendant
assaulted her. Her cousin, Darryl Rastorp, lived with her at the time. In fact, according to
Plaintiff, Mr. Rastorp was with her on a daily basis during this period of time. Thus, Mr. Rastorp
is likely to have information concerning, among other things, Plaintiff's relationship with
Defendant and her behavior after the alleged attack. Accordingly, Defendant wishes to depose
Mr. Rastorp.
5.

Stuart Parsons

Stuart Parsons is Plaintiff's brother-in-law and a Toronto police officer. He learned of
Plaintiff's allegations around the time Plaintiff first reported the alleged incident to the police.
Mr. Parsons discussed the alleged assault with Plaintiff, helped her find a lawyer, and
accompanied her to Pennsylvania to report the incident to police in Montgomery County. Thus,
Mr. Parsons is likely to possess information concerning the alleged attack, Plaintiff's decision to
make her allegations public, Plaintiff's state of mind before and after the alleged attack, and
Plaintiff's motivations in bringing this suit. Therefore, Defendant should be permitted to take
Mr. Parsons' deposition.
6.

Diana Parsons

Diana Parsons is Plaintiff's sister and is married to Mr. Parsons. According to Mr.
Parsons, it was Diana Parsons who told him about the alleged attack around the time Plaintiff
reported it to Canadian police. Thus, Diana Parsons is likely to have information about
Plaintiff's decision to make her allegations public, and the events that occurred thereafter.
Moreover, as Plaintiff's sister, Diana Parsons is also likely to have information concerning the

4

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 5 of 13

attack itself, Plaintiff's relationship with Defendant, and Plaintiff's state of mind before and after
the alleged attack. Thus, Defendant requires testimony from Diana Parsons.
7.

David Mason and Ken Anderson of the Durham Police Department

The Durham Police Department in Ontario, Canada possess critical information relevant
to determining the truth of Plaintiff's allegations. It was the Durham police to whom Plaintiff
first reported the alleged assault. The Durham police officers who spoke with Plaintiff issued a
report of their conversation with her. The report identified officers David Mason and Ken
Anderson as responsible for the report. Accordingly, Defendant seeks the depositions of these
officers, as the initial recipients of the complaint at issue in this case.
B.

Requests For The Production Of Documents

Discovery also has revealed several entities located in Ontario, Canada that possess
relevant documents not obtainable from other sources.
1.

The Sutherland-Chan School of Massage Therapy

In September 2004, Plaintiff enrolled in classes at Sutherland-Chan School of Massage
Therapy ("Sutherland-Chan") in Ontario. As of September 2005, Plaintiff still was enrolled at
Sutherland-Chan. Sutherland-Chan is likely to have documents concerning Plaintiff's
educational endeavors and her potential earning capacity. These documents will bear on the
truth of Plaintiff s allegations that Defendant's actions caused her a loss of continuity in her
education and a loss of earnings and earning capacity.
Discovery has further revealed Jennifer Sprague, Plaintiff s psychoanalyst, is affiliated
with Sutherland-Chan. As is set forth above, the records relating to Ms. Sprague's discussions
with Plaintiff are obviously relevant. To the extent that Sutherland-Chan is the custodian of

5

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 6 of 13

these records, Defendant seeks to obtain them from Sutherland-Chan. While Plaintiff could
simply consent to Sutherland- Chan's release of these records to Defendant, she has not agreed to
do so.
2.

Bell Canada telephone records

Between the alleged attack and her decision to reveal it, Plaintiff lived with her parents in
Ontario. The records of her telephone conversations during that period will bear upon and lead
to evidence of her mental condition, including her ability to "enjoy life's pleasures," which she
has placed at issue. They will also bear upon the extent of her relationship with Defendant,
which continued after the alleged attack. Bell Canada of Toronto, Ontario possesses those
records. While Plaintiff could simply consent to Bell Canada's release of these records to
Defendant, she has not agreed to do so.
3.
Plaintiffs cellular
telephone records
In addition to her parents' home phone, Plaintiff used a cellular telephone while living in
Canada after the alleged attack. The records of this activity on that phone are held by Rogers
Communications, Inc. of Toronto, Ontario. Again, Plaintiff refuses to consent to Rogers' release
of those records to Defendant. Accordingly, Defendant seeks assistance from the Court.
4.
Realizing Your
Potential
Discovery has revealed that Plaintiff, within two months of her relocation from
Philadelphia to Ontario in March 2004, enrolled in classes at Reaching Your Potential, a school
of polarity therapy training. Reaching Your Potential since changed its name to Realizing Your
Potential. See Welcome to Realizing Your Potential, http://www.reachingyourpotential.com
(last visited March 6, 2005). Realizing Your Potential is likely to have documents concerning
Plaintiff's educational endeavors and her potential earning capacity. This information will bear

6

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 7 of 13

on the truth of Plaintiff's allegations that Defendant' s actions caused her a loss of continuity in
her education and a loss of earnings and earning capacity. Given the nature of the training, this
information also will bear on Plaintiff's state of mind after the attack in general.
III. THE LETTERS OF REQUEST
Unlike discovery located in different jurisdictions within the United States, Defendant
cannot simply issue process from a Canadian court. Nor may he, without this Court's
involvement, appeal directly to a Canadian court for assistance. Canada and the United States
are not parties to the same treaty or convention regarding discovery or evidence. Canadian
courts, however, do have the authority to enforce international letters of request, pursuant to
statute. See Canada Evidence Act, R.S.C., ch. C-5, § 46(1) (1985). In particular, Ontario courts
have the authority, under the Ontario Evidence Act, R.S.O., ch. E-23, § 60(1) (1990), to enforce
letters of request from courts in the United States.
Letters of request, also known as letters rogatory, are a medium whereby one country
requests that a court of another country assist in the administration of justice in the former
country. United States v. Zabady, 546 F. Supp. 35, 40 (M.D Pa. 1982) (citing The Si nee, 37 F.
Supp. 819, 820 (E.D. La. 1941)). Courts make and grant such requests for reasons of comity and
reciprocity. Id. United States federal courts have the inherent authority to issue letters of
request. United States v. Strong, 608 F. Supp. 188, 192 (E.D. Pa. 1985) ("It has been held that
federal courts have the inherent power to issue requests for judicial assistance through letters
rogatory."). This inherent authority is recognized in Federal Rule of Civil Procedure 28(b) and
28 U.S.C. § 1781. Id. at 192-93; see Fed. R. Civ. P. 28(b); 28 U.S.C. § 1781.
To be enforceable by a court in Ontario, a letter of request from this Court must meet
certain requirements. While it is the Ontario court that ultimately will make this determination,

7

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 8 of 13

the letters Defendant asks this Court to execute contain proposed conclusions that address those
requirements, for the benefit of the Ontario court. Accordingly, Defendant discusses the
requirements below.
A.

The Ontario Evidence Act

The relevant portion of the Ontario Evidence Act provides:
Where it is made to appear to the Superior Court of Justice or a
judge thereof, that a court or tribunal of competent jurisdiction in a
foreign country has duly authorized, by commission, order or other
process, for a purpose for which a letter of request could be issued
under the rules of court, the obtaining of the testimony in or in
relation to an action, suit or proceeding pending in or before such
foreign court or tribunal, of a witness out of the jurisdiction thereof
and within the jurisdiction of the court or judge so applied to, such
court or judge may order the examination of such witness before
the person appointed, and in the manner and form directed by the
commission, order or other process, and may, by the same or by a
subsequent order, command the attendance of a person named
therein for the purpose of being examined, or the production of a
writing or other document or thing mentioned in the order, and
may give all such directions as to the time and place of the
examination, and all other matters connected therewith as seem
proper, and the order may be enforced, and any disobedience
thereto punished, in like manner as in the case of an order made by
the court or judge in an action pending in the court or before a
judge of the court.
Canada Evidence Act, R.S.C., ch. C-5, § 46(1) (1985). Thus, pursuant to the Act, an Ontario
court may enforce international letters of request issued by a foreign court, provided that three
factors are met: (1) the letters of request were issued by a foreign court or tribunal of competent
jurisdiction that has authorized the discovery at issue through a commission, order, or some other
process; (2) the letters of request could be issued under the rules of an Ontario court; and (3) the
evidence sought is within the Ontario court's jurisdiction.
The first requirement concerns the type of adjudicatory body in the requesting country
and whether that body has authorized the discovery at issue. For example, Canadian courts may
8

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 9 of 13

balk at enforcing a letter of request issued by a private arbitrator in a foreign country. See e.g.,
B.F. Jones Logistics Inc. v. Rolko, [2004] 72 O.R.2d 355, 359. Here, this Court is a traditional,
constitutionally authorized court of competent jurisdiction. It is empowered to weigh, rule upon,
and authorize discovery related to these proceedings.
In determining whether the first factor is met, Ontario courts may also inquire whether
they could look to the requesting country for similar assistance. Republic of France v. De
Havilland Aircraft of Canada Ltd., [1991] 3 O.R.3d 705, 713. This requirement of willing
reciprocity is not limited to the powers of the actual requesting tribunal, but rather applies to the
entire jurisdiction. Id. at 714. In other words, "the question must be, is there a mechanism in
place within the foreign jurisdiction which could respond favourably to a Canadian request by
way of letters rogatory?" Id. United States courts, including this Court, do in fact have a process
to favorably respond to a Canadian international letter of request. Under 28 U.S.C. § 1782, a
"district court of the district in which a person resides or is found may order him to give his
testimony or statement or to produce a document or other thing for use in a proceeding in a
foreign or international tribunal .... The order may be made pursuant to a letter rogatory issued,
or request made, by a foreign or international tribunal or upon the application of any interested
person and may direct that the testimony or statement be given, or the document or other thing be
produced, before a person appointed by the court." See 28 U.S.C. § 1782; see also John Deere,
Ltd. v. Sperry Co!R.,, 754 F.2d 132, 134 (3d Cir. 1985) ("Had the Canadian tribunal directly
petitioned the district court to permit testimony to be taken, there would be little question as to
the propriety of honoring the request for assistance."). Thus, Defendant's proposed letters of
request will meet the first requirement of the Ontario Evidence Act.

9

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The second requirement of the Ontario Evidence Act ensures that letters of request are
directed at a purpose for which letters of request could be issued by an Ontario court. Re
Mulroney and Coates, [1986] 27 D.L.R.4th 118, 128. The Ontario Rules of Civil Procedure
allow litigants to seek depositions from non -parties "who there is reason to believe ha[ve]
information relevant to a material issue in the action." See Ont. R. Civ. P. 31.10. The Ontario
Rules of Civil Procedure also allow litigants to seek documents from non-parties where "(a) the
document[s] [are] relevant to a material issue in the action; and (b) it would be unfair to require
the moving party to proceed to trial without having discovery of the document." See Ont. R.
Civ. P. 30.10. As is explained above, Defendant's proposed letters of request seek depositions
and documents from non-parties, which are directly relevant to several material issues in this
case. Thus, his proposed letters will meet the second requirement of the Ontario Evidence Act.
Finally, the Ontario Evidence Act requires that evidence sought is within the jurisdiction
of the requested court. Defendant's proposed letters also satisfy this requirement, as the eleven
individuals and entities from which Defendant seeks documents and testimony are located in
Ontario, Canada.
B.

Discretionary Factors

When a letter of request meets the requirements of the Ontario Evidence Act, the Ontario
court will then decide whether to enforce the letter of request, based on discretionary factors
developed by Canadian courts: (1) whether the evidence sought is relevant; (2) whether the
evidence sought is necessary for pre-trial discovery or trial; (3) whether the evidence is not
otherwise obtainable in the requesting jurisdiction; (4) whether documentary evidence is
identified with specificity; (5) whether the assistance sought is contrary to public policy; (6) and
whether the order sought is unduly burdensome. Re Friction Division Products and E. I. Du Pont

10

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 11 of 13

o. 2), [1986] 56 O.R.2d 722, 732. The application of these factors to Defendant's proposed
letters of request weighs in favor of enforcing them.
First, as is described above, the documents and testimony that Defendant seeks are both
relevant and necessary as a matter of pre-trial discovery. The testimony and documents sought
will bear on critical issues in this case, including Plaintiff's relationship with Defendant, the
alleged attack, Plaintiff's alleged injuries (including her state of mind, education, earning
capacity, and "enjoyment of life's pleasures"), Plaintiff's decision to accuse Defendant of
assault, Plaintiff's motivations in doing so, and Plaintiff's credibility. Without this information,
Defendant cannot prepare a complete defense.
Second, the evidence Defendant seeks is not otherwise obtainable. The individuals and
entities at issue are outside the subpoena power of this or any United States court. Only those
individuals can provide the evidence Defendant seeks, and only those entities possess the records
of Plaintiff's education, employment, and mental therapy that Defendant seeks. This formal
process is necessary because Plaintiff has not agreed to make any of these individuals available
for deposition or consent to Defendant's receipt of the documents at issue.
Third, Defendant has identified the documents he seeks with specificity. To identify
documents with specificity, a party does not have to prove that such documents exist. Id. at 737.
Rather, documents are required to be identified with reasonable precision in the circumstances of
each case. Id. Where a party is a stranger to the documents it seeks, it is sufficient to identify
the documents by topic or class. Id. Defendant has identified the class of documents he seeks,
both above, and in his proposed letters of request.
Fourth, Defendant's proposed letters of request do not contravene Canadian public
policy. Subjecting a non-party witness to a procedure permitted in Canadian litigation is not

11

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contrary to Canadian public policy. Henry Bacon Bldg. Materials Inc. v. Royal Canadian
Mounted Police, [ 1994] 98 B.C.L.R.2d 59, 70. The Canadian court also will balance two broad
policy considerations concerning international comity: (1) the impact of the proposed order on
Canadian sovereignty and (2) whether justice requires that the evidence be ordered. Re Fecht
and Deloitte & Touche, [1997] 32 O.R.3d 417,417 affirming, [1996] 28 O.R.3d 188. Canadian
sovereignty is violated when enforcement of the letters of request would directly violate
Canadian law. De Havilland Aircraft, 3 O.R.3d at 719-20. Again, given the provisions of the
Ontario Rules of Civil Procedure, there is no reason to believe that Defendant's proposed letters
of request would violate Canadian law. On the other hand, justice requires that Defendant be
permitted to procure the discovery necessary to preparing his defense and ensuring a fair trial.
Finally, the order sought is not unduly burdensome. Defendant plans to conduct
depositions near the residences of the witnesses in Ontario, thus minimizing any burden or
imposition on them. Defendant intends to conduct each deposition according to the same rules
that would apply in a deposition in the United States. The document requests adhere to the same
rules that apply to document requests upon entities located in the United States. The entities that
would be subject to the document requests will have the opportunity to produce the requested
documents via mail or on-site inspection, and Defendant will bear the photocopying and other
costs.
IV. CONCLUSION
For the foregoing reasons, Defendant hereby respectfully requests this Court to issue the
attached letters of request directed to the appropriate judicial authorities in Ontario, Canada.

12

Case 2:05-cv-01099-ER Document 79-1 Filed 04/12/06 Page 13 of 13

Dated: April 12, 2006

s/ Patrick O'Connor

Patrick J. O'Connor
George M. Gowen III
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant

13

Case 2:05-cv-01099-ER Document 79-2 Filed 04/12/06 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.

WILLIAM H. COSBY, JR.,
Defendant.

ORDER
AND NOW, upon consideration of Defendant's Motion for the Issuance of International
Letters of Request, and any response thereto, it is hereby ORDERED that said motion is
GRANTED. It is further ORDERED and that the attached Letters of Request shall be submitted
to the Court in duplicate, one original to be retained in the Court's files and the other original to
be signed by the Court, sealed and delivered to Patrick J. O'Connor, Cozen O'Connor, 1900
Market Street, Philadelphia, Pennsylvania, 19103, for transmittal through suitable channels to the
appropriate judicial authorities in Ontario, Canada.

EDUARDO C. ROBRENO, J.

Case 2:05-cv-01099-ER Document 79-3 Filed 04/12/06 Page 1 of 5

EX HIBIT A

Case 2:05-cv-01099-ER Document 79-3 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.
WILLIAM H. COSBY, JR.,
Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain testimony to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
individual to give testimony during a deposition: Gianna Constand, 481 Rougemont Drive,
Pickering, Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANUKIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-3 Filed 04/12/06 Page 3 of 5

FACTS AND CONCLUSIONS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.

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The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
Gianna Constand is plaintiff's mother. In discovery, plaintiff identified Gianna Constand
as a person whose testimony she may use to support her claims. Gianna Constand lived with
plaintiff after the alleged attack. During this period of time, she had telephone conversations
with the defendant. These telephone conversations are relevant to this case. Moreover, Gianna
Constand is also likely to have information about several other aspects of this case, including
plaintiff's relationship with defendant, the alleged attack, its effect on plaintiff, plaintiff's
decision to reveal it, and the events that occurred thereafter.
This Court is of competent jurisdiction and authorizes defendant to take Gianna
Constand's deposition for purposes of this case. The information sought is relevant and
necessary as a matter of pre-trial discovery. The evidence is not otherwise obtainable. In this
Court's view, the relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Gianna Constand to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
plaintiffs injuries, plaintiff's relationship with defendant, the alleged attack, plaintiff's decision
to reveal the alleged attack, the events that occurred thereafter, and any other information Gianna
Constand possesses that may support plaintiff s claims against defendant. Gianna Constand is

3

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outside the subpoena power of this or any United States court and the testimony sought is not
otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court' s request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market St
Philadelphia, PA 19106

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EX HIBIT B

Case 2:05-cv-01099-ER Document 79-4 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.
WILLIAM H. COSBY, JR.,
Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain testimony to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
individual to give testimony during a deposition: Andrew Constand, 481 Rougemont Drive,
Pickering, Ontario.
PARTIES,
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANI/KIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-4 Filed 04/12/06 Page 3 of 5

FACTS AND CONCLUSIONS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.

2

Case 2:05-cv-01099-ER Document 79-4 Filed 04/12/06 Page 4 of 5

The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
Andrew Constand is plaintiff's father. He lived with plaintiff after the alleged attack.
Subsequent to the alleged attack, Andrew Constand informed the Toronto Sun that he knew what
caused plaintiff to reveal the alleged attack, the effect that the attack had on plaintiff, plaintiff's
motivations in bringing suit against defendant, plaintiff's propensity for telling the truth, and the
nature of plaintiff's and defendant's relationship.
This Court is of competent jurisdiction and authorizes defendant to take Andrew
Constand's deposition for purposes of this case. The information sought is relevant and
necessary as a matter of pre-trial discovery. The evidence is not otherwise obtainable. In this
Court's view, the relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Andrew Constand
to participate in a deposition in Ontario. The topics the parties will cover during the deposition
are: the nature of plaintiff's and defendant's relationship, the cause of plaintiff's decision to
reveal the alleged attack, the effect that the alleged attack had on plaintiff, plaintiff's motivations
in bringing suit against defendant, plaintiff's propensity for telling the truth, and plaintiff's
injuries. Andrew Constand is outside the subpoena power of this or any United States court and
the testimony sought is not otherwise obtainable by the defendant.

3

Case 2:05-cv-01099-ER Document 79-4 Filed 04/12/06 Page 5 of 5

AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

4

Case 2:05-cv-01099-ER Document 79-5 Filed 04/12/06 Page 1 of 5

EXHIBIT C

Case 2:05-cv-01099-ER Document 79-5 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.
WILLIAM H. COSBY, JR.,

Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain documents and testimony to be used in a civil proceeding before this Court
in the above captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
individual to produce documents and give testimony during a deposition: Jennifer Sprague, 53
Rabbit Street, Lakefield, Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANFKIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-5 Filed 04/12/06 Page 3 of 5

FACTS AND CONCLUSIONS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff s complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff s allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiffs case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief

2

Case 2:05-cv-01099-ER Document 79-5 Filed 04/12/06 Page 4 of 5

The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents and testimony he seeks. This court granted defendant's request and issued this letter.
In discovery, plaintiff identified Jennifer Sprague, a Canadian psychotherapist, as a
person whose testimony plaintiff may use to prove her claims. Plaintiff sought counseling from
Ms. Sprague both before and after the alleged attack. Ms. Sprague possesses knowledge and
documents that bear upon plaintiff's allegations of injury.
This Court is of competent jurisdiction and authorizes defendant to take Jennifer
Sprague's deposition for purposes of this case. The information sought is relevant and necessary
as a matter of pre-trial discovery. The evidence is not otherwise obtainable. In this Court's
view, the relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Jennifer Sprague to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
Jennifer Sprague's knowledge regarding plaintiff's injuries, her relationship with defendant, and
the alleged attack, in addition to any other information Jennifer Sprague possesses that she
believes or knows plaintiff to believe supports plaintiff's claims against defendant. This Court
hereby further prays that the appropriate court in Ontario compel Jennifer Sprague to produce (1)
any and all records in her possession concerning her counseling of plaintiff; (2) her
communications with plaintiff about this suit; and (3) her communications with plaintiff's

3

Case 2:05-cv-01099-ER Document 79-5 Filed 04/12/06 Page 5 of 5

counsel about this suit. Jennifer Sprague is outside the subpoena power of this or any United
States court and the testimony and documents sought are not otherwise obtainable by the
defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

4

Case 2:05-cv-01099-ER Document 79-6 Filed 04/12/06 Page 1 of 5

EXHIBIT D

Case 2:05-cv-01099-ER Document 79-6 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.

WILLIAM H. COSBY, JR.,
Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain testimony to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
individual to give testimony during a deposition: Darryl Rastorp, 166 Norton Avenue, Toronto
Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANI/KIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-6 Filed 04/12/06 Page 3 of 5

FACTS AND CONCLUSIONS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.

2

Case 2:05-cv-01099-ER Document 79-6 Filed 04/12/06 Page 4 of 5

The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
At the time of the alleged attack, plaintiff lived with her cousin Darryl Rastorp. Mr.
Rastorp is likely to have information about plaintiff's relationship with defendant, in addition to
plaintiff's behavior before and after the alleged attack.
This Court is of competent jurisdiction and authorizes defendant to take Darryl Rastorp's
deposition for purposes of this case. The information sought is relevant and necessary as a
matter of pre-trial discovery. The evidence is not otherwise obtainable. In this Court's view, the
relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Darryl Rastorp to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
plaintiff's relationship with defendant and plaintiff's behavior before and after the alleged attack.
Darryl Rastorp is outside the subpoena power of this or any United States court and the
testimony sought is not otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.

3

Case 2:05-cv-01099-ER Document 79-6 Filed 04/12/06 Page 5 of 5

REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

4

Case 2:05-cv-01099-ER Document 79-7 Filed 04/12/06 Page 1 of 5

EXHIBIT E

Case 2:05-cv-01099-ER Document 79-7 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.
WILLIAM H. COSBY, JR.,
Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain testimony to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
individual to give testimony during a deposition: Stuart Parsons, 114 Copley Street, Pickering,
Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANI/KIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-7 Filed 04/12/06 Page 3 of 5

FACTS AND CONCLUSIONS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.

2

Case 2:05-cv-01099-ER Document 79-7 Filed 04/12/06 Page 4 of 5

The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
Stuart Parsons is plaintiff's brother-in-law and a Toronto police officer. He learned of
plaintiff's allegations around the time plaintiff first reported the alleged incident to the police.
Mr. Parsons discussed the alleged attack with plaintiff, helped her find a lawyer, and
accompanied her to Pennsylvania to report the incident to the police in Montgomery County.
Mr. Parsons is likely to possess information concerning the alleged attack, plaintiff's decision to
make her allegations public, plaintiff's state of mind before and after the alleged attack, and
plaintiff's motivations in instituting suit against defendant.
This Court is of competent jurisdiction and authorizes defendant to take Stuart Parson's
deposition for purposes of this case. The information sought is relevant and necessary as a
matter of pre-trial discovery. The evidence is not otherwise obtainable. In this Court's view, the
relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Stuart Parsons to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
the alleged attack, plaintiff's decision to make her allegations public, plaintiff's state of mind
before and after the alleged attack, and plaintiff's motivations in instituting suit against
defendant.

3

Case 2:05-cv-01099-ER Document 79-7 Filed 04/12/06 Page 5 of 5

AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

4

Case 2:05-cv-01099-ER Document 79-8 Filed 04/12/06 Page 1 of 5

EX HIBIT F

Case 2:05-cv-01099-ER Document 79-8 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.

WILLIAM H. COSBY, JR.,
Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain testimony to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
individual to give testimony during a deposition: Diana Parsons, 114 Copley Street, Pickering,
Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANFKIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-8 Filed 04/12/06 Page 3 of 5

FACTS AND CONCLUSIONS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.

2

Case 2:05-cv-01099-ER Document 79-8 Filed 04/12/06 Page 4 of 5

The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
Diana Parsons is plaintiff's sister and is married to Stuart Parsons. Stuart Parsons is a
Toronto police officer. Stuart Parsons has stated that Diana Parsons told him about the alleged
attack around the time plaintiff reported it to the Canadian police. Diana Parsons is likely to
have information about plaintiff's decision to make her allegations public, and the events that
occurred thereafter. Diana Parsons, as plaintiff's sister, is also likely to possess information
concerning plaintiff's relationship with defendant, the alleged attack itself, and plaintiff's state of
mind before and after the attack.
This Court is of competent jurisdiction and authorizes defendant to take Diana Parsons
deposition for purposes of this case. The information sought is relevant and necessary as a
matter of pre-trial discovery. The evidence is not otherwise obtainable. In this Court's view, the
relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Diana Parsons to
participate in a deposition in Ontario. The topics the parties will cover during the deposition are:
plaintiff's relationship with defendant, the attack itself, and plaintiff's state of mind before and
after the alleged attack, plaintiff's decision to make her allegations public, and the events that
occurred thereafter.

3

Case 2:05-cv-01099-ER Document 79-8 Filed 04/12/06 Page 5 of 5

AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

4

Case 2:05-cv-01099-ER Document 79-9 Filed 04/12/06 Page 1 of 5

EXHIBI T G

Case 2:05-cv-01099-ER Document 79-9 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,

No. 05-cv-1099
V.

WILLIAM H. COSBY, JR.,
Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain testimony to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
individuals to give testimony during a deposition: David Mason and Ken Anderson, Durham
Regional Police Department, 605 Rossland Rd. E, Box 911, Durham, Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANI/KIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-9 Filed 04/12/06 Page 3 of 5

FACTS AND CONCLUSIONS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. The Durham police officers who spoke with plaintiff issued a report of their conversation
with her. The report itself identifies David Mason and Ken Anderson as its authors. Plaintiff
contends that the report is inaccurate.
Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss

3

Case 2:05-cv-01099-ER Document 79-9 Filed 04/12/06 Page 4 of 5

of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.
The parties are currently conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks testimony and documents from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
testimony he seeks. This court granted defendant's request and issued this letter.
This Court is of competent jurisdiction and authorizes defendant to take depositions of
David Mason and Ken Anderson for purposes of this case. The information sought is relevant
and necessary as a matter of pre-trial discovery. The evidence is not otherwise obtainable. In
this Court's view, the relief sought is not unduly burdensome.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel David Mason and
Ken Anderson of the Durham police department in Ontario to participate in depositions in
Ontario. The depositions will cover the officers' investigation into the alleged attack and the
accuracy of the report generated from that investigation. David Mason, Ken Anderson, and the
Durham Police Department are outside the subpoena power of this or any United States court
and the testimony sought is not otherwise obtainable by the defendant.

4

Case 2:05-cv-01099-ER Document 79-9 Filed 04/12/06 Page 5 of 5

AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

5

Case 2:05-cv-01099-ER Document 79-10 Filed 04/12/06 Page 1 of 5

EXHIBIT H

Case 2:05-cv-01099-ER Document 79-10 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.

WILLIAM H. COSBY, JR.,
Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain documents to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
entity to produce documents: Sutherland-Chan School of Massage Therapy, 330 Dupont Street,
Suite 400, Toronto, Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANUKIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-10 Filed 04/12/06 Page 3 of 5

FACTS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.

2

Case 2:05-cv-01099-ER Document 79-10 Filed 04/12/06 Page 4 of 5

The parties currently are conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks documents and testimony from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents he seeks. This court granted defendant's request and issued this letter.
In September 2004, plaintiff enrolled in classes at Sutherland-Chan School of Massage
Therapy ("Sutherland-Chan"). As of September 2005, plaintiff still was enrolled at SutherlandChan. Sutherland-Chan likely possesses documents concerning plaintiff's educational endeavors
and her potential earning capacity, which would bear on the truth of plaintiff's allegations that
defendant's actions caused her a loss of continuity in her education and a loss of earnings and
earning capacity.
In addition, plaintiff's therapist, Jennifer Sprague is affiliated with Sutherland-Chan.
Plaintiff sought counseling from Ms. Sprague both before and after the alleged attack. Ms.
Sprague may have generated documents that bear upon plaintiff's allegations of injury.
Defendant is entitled to obtain these records from Sutherland-Chan, to the extent that SutherlandChan is the custodian.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Sutherland-Chan
School of Massage Therapy to produce any and all records in its possession concerning plaintiff,
including but not limited to any: correspondence, applications for admission, transcripts,
performance evaluations, documents that reflect the reason she stopped her enrollment in the
institution and/or documents concerning Jennifer Sprague's counseling of plaintiff. Such records

3

Case 2:05-cv-01099-ER Document 79-10 Filed 04/12/06 Page 5 of 5

are relevant and necessary as a matter of pre-trial discovery for purposes of this litigation.
Sutherland-Chan is outside the subpoena power of this or any United States court and the
documents sought are not otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

4

Case 2:05-cv-01099-ER Document 79-11 Filed 04/12/06 Page 1 of 5

EXHIBIT I

Case 2:05-cv-01099-ER Document 79-11 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.
WILLIAM H. COSBY, JR.,

Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain documents to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
entity to produce documents: Bell Canada, 483 Bay Street, 5th Floor, N. Tower, Toronto,
Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANI/KIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-11 Filed 04/12/06 Page 3 of 5

FACTS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.

2

Case 2:05-cv-01099-ER Document 79-11 Filed 04/12/06 Page 4 of 5

The parties currently are conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks documents and testimony from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents he seeks. This court granted defendant's request and issued this letter.
Between the alleged attack and her decision to reveal it, plaintiff lived with her parents,
Gianna and Andrew Constand, in Ontario. Defendant is entitled the records of her telephone
conversations during that period, because those records will bear upon the extent of her
relationship with defendant after the alleged attack. The records will also bear upon her ability
to enjoy life's pleasures and her other allegations of injury. The records may also shed further
light on plaintiff's decision to come forward with her accusations. Bell Canada possesses those
records.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Bell Canada to
produce any and all records of telephone calls to or from phone number (905) 509-3303, between
and including March 2004 and March 2005. Such records are relevant and necessary as a matter
of pre-trial discovery for purposes of this litigation. Bell Canada is outside the subpoena power
of this or any United States court and the documents sought are not otherwise obtainable by the
defendant.

3

Case 2:05-cv-01099-ER Document 79-11 Filed 04/12/06 Page 5 of 5

AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

4

Case 2:05-cv-01099-ER Document 79-12 Filed 04/12/06 Page 1 of 5

EXHIBIT J

Case 2:05-cv-01099-ER Document 79-12 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.
WILLIAM H. COSBY, JR.,

Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain documents to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
entity to produce documents: Rogers Communications, Inc. 333 Bloor St. East, 10th Floor,
Toronto, Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANI/KIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-12 Filed 04/12/06 Page 3 of 5

FACTS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.

2

Case 2:05-cv-01099-ER Document 79-12 Filed 04/12/06 Page 4 of 5

The parties currently are conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks documents and testimony from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents he seeks. This court granted defendant's request and issued this letter.
Between the alleged attack and her decision to reveal it, plaintiff used a cellular phone.
Defendant is entitled the records of her cellular phone conversations during that period, because
those records will bear upon the extent of her relationship with defendant after the alleged attack.
The records will also bear upon her ability to enjoy life's pleasures and her other allegations of
injury. The records may also shed further light on plaintiff's decision to come forward with her
accusations. Rogers Communications, Inc. possesses those records.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Rogers
Communications, Inc. to produce any and all records of cellular phone calls to or from phone
number (416) 371-3303, between and including March 2004 and March 2005. Such records are
relevant and necessary as a matter of pre-trial discovery for purposes of this litigation. Rogers
Communications, Inc. is outside the subpoena power of this or any United States court and the
documents sought are not otherwise obtainable by the defendant.

3

Case 2:05-cv-01099-ER Document 79-12 Filed 04/12/06 Page 5 of 5

AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

4

Case 2:05-cv-01099-ER Document 79-13 Filed 04/12/06 Page 1 of 5

EX HIBIT K

Case 2:05-cv-01099-ER Document 79-13 Filed 04/12/06 Page 2 of 5

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
No. 05-cv-1099
V.
WILLIAM H. COSBY, JR.,
Defendant.

REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
(INTERNATIONAL LETTER OF REQUEST)
The United States District Court for the Eastern District of Pennsylvania presents its
compliments to the appropriate judicial authority of Canada and requests international judicial
assistance to obtain documents to be used in a civil proceeding before this Court in the above
captioned matter.
This Court requests the assistance described herein as necessary in the interests of justice.
The assistance requested is that the appropriate courts in Ontario, Canada compel the following
entity to produce documents: Realizing Your Potential, 40-646 Village Parkway, Unionville,
Ontario.
PARTIES
The parties and their representatives in this matter are:
Plaintiff, Andrea Constand
represented by:
Bebe H. Kivitz, Esq.
Dolores M. Troiani, Esq.
TROIANI/KIVITZ LLP
38 Waterloo Road
Devon, PA 19333

Defendant William H. Cosby,
represented by:
Patrick J. O'Connor, Esq.
George M. Gowen III, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103

Andrew D. Schau, Esq.
PATTERSON BELKNAP
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036

Case 2:05-cv-01099-ER Document 79-13 Filed 04/12/06 Page 3 of 5

FACTS
Plaintiff, Andrea Constand, brought this civil action against defendant, William H.
Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of
emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff,
allegedly a Canadian citizen, alleges that she met defendant while she was employed at Temple
University in Philadelphia, Pennsylvania.
The crux of plaintiff's complaint is that, while alone with defendant at defendant's
Pennsylvania home in January 2004, defendant deceived plaintiff into ingesting a drug which
caused her to become semi-conscious. According to plaintiff, defendant thereafter sexually
assaulted her. Defendant denies plaintiff's allegations. In March 2004, plaintiff moved from
Philadelphia to Ontario, Canada.
In January 2005, plaintiff reported defendant's alleged actions to the Durham, Ontario
police. Plaintiff alleges that, after she spoke to police, she and her mother had telephone
conversations with defendant. She further contends that after she reported defendant's alleged
actions to the Durham, Ontario police, defendant and/or his authorized representatives
knowingly made false statements to the media about plaintiff. The Durham Ontario police
subsequently referred plaintiff's case to police in Pennsylvania. The District Attorney of
Montgomery County, Pennsylvania decided not to file criminal proceedings against defendant.
In March 2005, plaintiff filed this civil action. Plaintiff alleges that defendant's conduct
has caused her, among other things, "mental anguish," "post-traumatic stress disorder," "the loss
of enjoyment of life's pleasures," "a set back in her education," and a "loss of earnings and
earning capacity." Plaintiff seeks an award of compensatory damages plus reasonable attorneys'
fees, interest, costs, punitive damages and other unspecified relief.

2

Case 2:05-cv-01099-ER Document 79-13 Filed 04/12/06 Page 4 of 5

The parties currently are conducting discovery. To test plaintiff's allegations and prepare
his defense, defendant seeks documents and testimony from several individuals and entities
located in Ontario, Canada. Unable to procure these documents and testimony through domestic
channels or agreement, defendant has applied to this Court for assistance. Defendant sought an
international letter of request to the appropriate court in Ontario, Canada in order to obtain the
documents he seeks. This court granted defendant's request and issued this letter.
Within two months of her relocation from Philadelphia to Ontario in March 2004,
plaintiff enrolled in classes at Reaching Your Potential School, a school of polarity training.
Reaching Your Potential since changed its name to Realizing Your Potential. Realizing Your
Potential School of Polarity Therapy Training possesses documents concerning plaintiff's
educational endeavors and her potential earning capacity. Defendant is entitled plaintiff's
educational records to the extent that such records may bear on the truth of plaintiff's allegations
that Defendant's actions caused her a loss of continuity in her education and a loss of earnings
and earning capacity. Defendant is also entitled to these records as they may bear upon
plaintiff's state of mind in general after the alleged attack.
PRAYER FOR RELIEF
This Court hereby prays that the appropriate court in Ontario compel Realizing Your
Potential School of Polarity Therapy Training to produce all documents in its possession
concerning plaintiff, including but not limited to all: correspondence, applications, registration
forms, performance evaluations, transcripts, and/or documents that reflect the reason she
terminated her relationship with the institution. Such records are relevant and necessary as a
matter of pre-trial discovery for purposes of this litigation. Realizing Your Potential School of

3

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Polarity Therapy Training is outside the subpoena power of this or any United States court and
the documents sought are not otherwise obtainable by the defendant.
AUTHORITY
This Court has the inherent authority to issue an international letter of request. This
inherent authority is recognized in the United States Federal Rule of Civil Procedure 28(b), and
Title 28, Section 1781 of the United States Code.
REIMBURSEMENT OF COSTS
This Court respectfully submits that any fees and costs endured by the appropriate court
in Ontario in executing this Court's request for international judicial assistance are reimbursable.
Requests for reimbursement should be sent to:
William H. Cosby c/o Patrick J. O'Connor
Cozen O'Connor
1900 Market Street
Philadelphia, PA 19103
212.665.2000
SIGNATURE AND SEAL

Dated:
Eduardo C. Robreno, J.
United States District Court
for the Eastern District of Pennsylvania
601 Market Street
Philadelphia, PA 19106

4

Case 2:05-cv-01099-ER Document 80 Filed 04/26/06 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREA CONSTAND,
Plaintiff

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
: JURY TRIAL DEMANDED
:

v.
WILLIAM H. COSBY, JR.,
Defendant

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR THE ISSUANCE OF
INTERNATIONAL LETTERS OF REQUEST
Once again, Defendant has orchestrated and manipulated publicity in this case. While
insisting that his deposition (now completed), as well as his written agreement with the National
Enquirer (produced at the deposition), be maintained under seal indefinitely, Defendant has
publicly filed his Motion for the Issuance of International Letters of Request, causing headlines
throughout North America, including those which appeared in newspapers in Philadelphia and
Toronto. (Attached hereto as Exhibit A).

In the course of filing the Motion, Defendant revealed

portions of Plaintiff’s deposition under the guise of “discovery has revealed…”. Further,
Defendant’s motion makes it appear that Plaintiff is not cooperating in the discovery process and
ergo, she has something to hide.
What Defendant neglects to mention, however, is that Plaintiff has already agreed that
Defendant may take such discovery.

In fact, Plaintiff agreed to assist Defendant in obtaining

the depositions of her relatives in exchange for Defendant’s assistance in obtaining the
depositions of Defendant’s wife and agents, including employees of the William Morris Agency.
It is Defendant who refuses to cooperate in order to complete the discovery process. Following

1

Case 2:05-cv-01099-ER Document 80 Filed 04/26/06 Page 2 of 5

the completion of Defendant’s deposition on March 29, 2006, counsel discussed cooperating
with one another in obtaining the additional depositions required, by both sides, and Plaintiff’s
counsel memorialized the conversation in a letter dated April 7, 2006. This letter stated, in
pertinent part:
As we discussed at the conclusion of the defendant’s deposition, there are additional
witnesses we want to depose. We are willing to assist you with the Canadian witnesses
who are related to Ms. Constand in exchange for your cooperation in the production of
the following witnesses: Peter Wiederlight, Ken DiCamillo, John St. Marthe, Lew
Weiss, Tom Cantone, Steve Littman, Tom Illius, the pilot, Mr. Beverly, and Camille
Cosby.
Finally, Jack Schmitt needs to be deposed about his negotiations with the National
Enquirer, and his knowledge regarding same, as well as his firm’s involvement regarding
the Lachelle Covington allegations. You said that there may be something we can work
out in lieu of a formal deposition. Please advise what you have in mind.
Plaintiff requested Defendant’s cooperation in obtaining the deposition of his New York
attorney (who is a fact witness), and other individuals with knowledge in this matter, including
those who called Plaintiff in January 2005 by telephone at Defendant’s request. Following
Defendant’s telephone conversation with Plaintiff and her mother in January 2005, Defendant
had employees of William Morris and his California attorney, Martin Singer, Esquire, call
Plaintiff in order to attempt to arrange a meeting or attempt to discuss compensation. Similarly,
in the past, Defendant caused a William Morris employee to mail a note and check to a Jane Doe
witness. Thus, discovery directed at representatives of the William Morris Agency who have
taken such actions is appropriate.
In his motion, Defendant also alleges that Plaintiff refused to consent to the obtaining of
her telephone records. In fact, Plaintiff has fully cooperated; however, Defendant’s blanket
request for all records is overly broad. Plaintiff simply requests that it be limited to the pertinent
time period.

2

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BACKGROUND AND ARGUMENT
Plaintiff met Defendant when she worked for Temple University as Director of
Operations for Women’s Basketball Am. Compl., [Doc. 41], ¶8 . Defendant led Plaintiff to
believe that he was her friend and mentor, Id. ¶9. Defendant cultivated such a notion by
fostering a friendship, asking Plaintiff to call him concerning basketball games, and inviting
Plaintiff to events, including a dinner party hosted at his Cheltenham home by him for college
administrators. See, e.g., Id, ¶10.
When Plaintiff was invited to Defendant’s home in January 2004, they discussed her
career, and she admitted that was feeling stressed about making a career decision. Id., ¶13.
Defendant offered Plaintiff what he represented was “herbal” medication to help her relax, and
told her to ingest all three pills. When she questioned whether all three pills were necessary, he
said that they were. Id., ¶¶14-15. Plaintiff believed these pills to be what Defendant represented
them to be, until her knees began to shake, her limbs became immobile, she felt dizzy and weak,
and she began to feel barely conscious. Id., ¶¶16-17. Plaintiff therefore believes that Defendant
gave her some other type of drug, not herbal as he originally claimed, and not Benedryl, as he
has since publicly claimed.

It was in this semi-conscious state that Plaintiff was sexually

assaulted by Defendant. Id. ¶¶ 19-21.
Following Plaintiff’s January 13, 2005, report to Toronto police, Defendant gave his
“exclusive interview” to the National Enquirer, and Martin Singer, Esquire, acting as
Defendant’s representative, also made several statements in February 2005 to Celebrity Justice.
Id., ¶¶29, 30, 31. In these statements, Defendant and/or his agents suggested that Plaintiff was
trying to “shake him down”, and “exploit his celebrity status.” Id., ¶¶, 29, 30, 31. However,
Defendant made such statements after he and his representatives placed at least four (4)

3

Case 2:05-cv-01099-ER Document 80 Filed 04/26/06 Page 4 of 5

telephone calls to Plaintiff and her mother, in which Defendant offered financial compensation to
Plaintiff. Consequently, at the time of the interview and statements made by Singer, Defendant
knew that Plaintiff and/or her mother had not accepted his offer. Id., ¶32.
Now, Defendant claims he needs depositions from Plaintiff’s friends and family in
Canada and that Plaintiff does not consent to these depositions -- when he knows in fact that
Plaintiff proposed mutual cooperation in the discovery process. After the Motion was filed,
Defendant’s counsel informed Plaintiff that he would not produce Mrs. Cosby or the people who
Defendant directed to call Plaintiff. In his Motion, Defendant alleges “this formal process is
necessary because Plaintiff has not agreed to make any of these individuals available for
deposition or consent to Defendant’s receipt of the documents in issue.” To the contrary,
Plaintiff has simply requested the same courtesy from Defendant that she is willing to extend to
him, and that he limit the telephone document request to the pertinent time period. Plaintiff has
also requested that Defendant provide pertinent telephone service information concerning his
calls, including those he made to Plaintiff, so that Plaintiff can subpoena such documents.
CONCLUSION
Plaintiff requests that this Honorable Court deny the Motion as to Gianna Constand,
Andrew Constand, Darryl Rastorp, and Stuart and Diana Parsons because these are Plaintiff’s
relatives who are available with a mutual cooperation agreement, and further, that the request for
telephone records be limited to the time period from March 2004, when Plaintiff returned to
Canada, through the end of January, 2005, which includes the time period during which Plaintiff
reported the incident to the police and was contacted by Defendant and his agents.

4

Case 2:05-cv-01099-ER Document 80 Filed 04/26/06 Page 5 of 5

Respectfully submitted,
TROIANI/KIVITZ, L.L.P.

By:_________________________
Dolores M. Troiani
I.D. No 21283
Bebe H. Kivitz
I.D. No. 30253
38 North Waterloo Road
Devon, Pennsylvania 19333
Attorneys for Plaintiff

5

Case 2:05-cv-01099-ER Document 80-1 Filed 04/26/06 Page 1 of 1

CERTIFICATE OF SERVICE
I hereby certify that on April 26, 2006, the undersigned were served in the following
manner, a true and correct copy of : Plaintiff’s Response to Defendant’s Motion For The
Issuance Of International Letters of Request.
NAME

MANNER

Patrick J. O’Connor, Esquire
Cozen O’Connor
1900 Market Street
Philadelphia, PA 19103

Via First Class Mail

Andrew D. Schau, Esquire
Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036

Via First Class Mail

TROIANI/KIVITZ, L.L.P.

By:_________________________
Bebe H. Kivitz
I.D. No. 30253
Dolores M. Troiani
I.D. No. 21283
Attorneys for the Plaintiff
38 North Waterloo Road
Devon, Pennsylvania 19333
(610) 688.8400

Case 2:05-cv-01099-ER Document 32 Filed 06/10/05 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER

AND NOW, this ____ day of __________ 2005, upon consideration of the Motion to
Extend the Suspension Period of the Court’s Order Regarding the Identity of the Jane Doe
Witnesses as to Jane Doe No. 8, and any response thereto, IT IS HEREBY ORDERED as
follows, the identity of Jane Doe No. 8 shall be suspended until November 1, 2005, to allow her
sufficient time in which to file a motion requesting that her name be withheld.

BY THE COURT:

_______________________
J.

Case 2:05-cv-01099-ER Document 32 Filed 06/10/05 Page 2 of 4

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

MOTION TO EXTEND THE SUSPENSION PERIOD OF THE COURT’S ORDER
REGARDING THE IDENTITY OF JANE DOE WITNESSES AS TO JANE DOE NO. 8
Plaintiff Andrea Constand, by her undersigned counsel, requests that the Court extend the
ten (10) day suspension period concerning the identity of the Jane Doe witnesses as to Jane Doe
No. 8, for the following reason.
Counsel for plaintiff has previously spoken to Jane Doe No. 8, who indicated that her
husband was on a transplant list, awaiting a bone marrow transplant. Counsel was advised that if
and when a transplant was available, Jane Do No. 8 and her husband would be forced to relocate
to Seattle, Washington, and she would remain with him throughout the transplant and his
recovery. Once unavailable, Jane Doe No. 8 expected to remain unavailable for several months.
This is the only Jane Doe witness, to counsel’s knowledge, who has not yet retained counsel to
represent her here, although she initially indicated that she intended to do so, and represented
also that she did not want media attention.

Case 2:05-cv-01099-ER Document 32 Filed 06/10/05 Page 3 of 4

Jane Doe No. 8 operates a business in Colorado. Plaintiff’s counsel attempted to contact
Jane Doe No. 8, following the Court’s June 2, 2005, Order in this matter, and left a message for
her. Jane Doe No. 8’s employee called plaintiff’s counsel back to advise that Jane Doe No. 8 is
presently in Seattle with her husband; a bone marrow transplant is anticipated; and, Jane Doe No.
8 will likely not be available for purposes of this litigation until mid-October 2005, when her
husband’s transplant and rehabilitation are complete, and she has returned to Colorado. The
stress of this Jane Doe’s medical needs and medical treatment is all-consuming right now, and it
is unreasonable to ask this Jane Doe to divert her attention from her husband’s imminent medical
needs.
The name and address for Jane Doe No. 8 has been provided to defense counsel, along
with the names and addresses of the other Jane Doe witnesses. Although the plaintiff expects the
other Jane Doe witnesses to file a motion to protect their identity consistent with the Court’s June
2, 2005, Order, plaintiff’s counsel requests that Jane Doe No. 8 be provided sufficient time to file
her motion with the Court once her husband has recovered and she is able to focus on this matter
and retain counsel.
For the above reason, plaintiff’s counsel requests an extension of time until November 1,
2005, for Jane Doe No. 8 to submit a motion, either on her own or through counsel, that her
name be protected.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

2

Case 2:05-cv-01099-ER Document 32 Filed 06/10/05 Page 4 of 4

CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that the Motion to Extend the Suspension Period of the
Court’s Order Regarding the Identity of the Jane Doe Witnesses as to Jane Doe No. 8, was filed
electronically and is available for viewing and downloading from the ECF system. I further
certify that a true and correct copy of said document was served via regular First Class mail,
postage prepaid, on the following:
Patrick J. 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

TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff
Date: June 10, 2005

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER

AND NOW, this ____ day of __________ 2005, upon consideration of the Motion of
Jane Doe Witnesses to Protect the Disclosure of their Names, supporting Memorandum of Law
and opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses identified herein shall not be disclosed to the
media. The parties are directed that the identities of the Jane Doe witnesses identified herein
shall not be disclosed to anyone other than the parties in this case, counsel for the parties, and
any representatives working on their behalf.
2. The witnesses seeking protection herein shall be referred to as “Jane Doe” with a
number suffix, e.g., “Jane Doe 1”, etc. in all discovery responses, transcripts, and court filings.

BY THE COURT:

_______________________
J.

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 2 of 25

B. Joyce Dale, Esquire
I.D. No. 70093
Crime Victim’s Law Center
202 N. South Avenue
Media, PA 19063

Attorneys for Plaintiff

Judith Rubino, Esquire
I.D. No. 14203
1528 J.F.K. Blvd., Suite 1204
Philadelphia, PA 19102
Ralph A. Jacobs, Esquire
I.D. No. 21387
Ralph A. Jacobs & Associates
215 S. Broad Street, 10th Floor
Philadelphia, PA 19107

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

MOTION OF JANE DOE WITNESSES TO PROTECT
DISCLOSURE OF THEIR NAMES OUTSIDE OF THIS LITIGATION
The Jane Doe witnesses specified below, by their undersigned counsel, move this Court
for an order protecting their identity from the media. In support of their Motion, the Jane Doe
witnesses rely on the accompanying Memorandum of Law, which is incorporated by reference as

1

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 3 of 25

if fully set forth herein.

_______________________
B. Joyce Dale, Esquire
I.D. No. 70093
Crime Victim’s Law Center
202 N. South Avenue
Media, PA 19063
and
Judith F. Rubino, Esquire
I.D. No. 14203
1528 J.F.K. Blvd., Suite 1204
Philadelphia, PA 19102
and
Ralph A. Jacobs, Esquire
I.D. No. 21387
Ralph A. Jacobs & Associates
215 S. Broad Street, 10th Floor
Philadelphia, PA 19107

2

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 4 of 25

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

MEMORANDUM OF LAW OF JANE DOE WITNESSES TO PROTECT
THE DISCLOSURE OF THEIR NAMES OUTSIDE THIS LITIGATION
This motion is filed by three separate counsel, B. Joyce Dale, Esquire, Judith Rubino,
Esquire, and Ralph Jacobs, Esquire, who are each presently representing at least one Jane Doe
witness in this litigation. The reasons for the relief sought are set forth below.
Plaintiff’s counsel have previously made clear the scope of the relief requested by the
Jane Doe witnesses identified below. Each witness has come forward voluntarily to lend support
to plaintiff’s case by testifying to similar events each has experienced with the defendant. None
of the Jane Doe witnesses knows the plaintiff personally. None of the Jane Doe witnesses stands
anything to gain by coming forward at this time. Each of the Jane Doe witnesses is aware that
her identity has been disclosed to defendant, and that defendant will have the right to take
discovery as well as to cross-examine her. Each of the specified Jane Doe witnesses is willing to
subject herself to such scrutiny within the context of this litigation; still, the Jane Doe witnesses
specified below are not celebrities or public personalities. They wish their identities to be
protected from the media to avoid the type of media frenzy associated with other celebrity cases,
and already associated with this case.
In fact, members of the media have called the plaintiff here, Andrea Constand, on her
home telephone line, uninvited to do so, and have visited her at her home, similarly uninvited.

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 5 of 25

On one occasion, a reporter showed up unexpectedly and without prior notice at plaintiff’s home
with flowers, appearing to be a delivery man, in an attempt to solicit an “exclusive interview”.
Moreover, the media attention has originated from many and multiple sources, and has been
relentless. The media calls have stemmed from local newspapers and television stations as well
as out-of-state newspapers, Canadian newspapers, The National Enquirer, CNN, FoxNews,
MSNBC, Celebrity Justice, and The Geraldo Rivera Show, to name but a few. The Jane Doe
witnesses do not seek this attention, but more importantly, several of them are specifically
requesting that they not be contacted or harassed as plaintiff was. Each Jane Doe witness is
prepared to testify and be cross-examined here; however, none of the Jane Doe witnesses
specified below wishes to invite unsolicited media attention and the stress associated with it.
Counsel for the Jane Doe witnesses hereby incorporate plaintiff’s Motion to Protect the
Identity of Rule 415 Jane Doe Witnesses as though fully set forth herein, which is attached
hereto as Exhibit “A”. In addition, consistent with the Court’s June 2, 2005 Order, counsel for
the Jane Doe witnesses submit the following reasons, supplied by the witnesses, all of which
constitute good cause, pursuant to F.R.E 26(c), why the Jane Doe names should not be disclosed
outside the scope of this litigation1 .
1. JANE DOE NO. 1
Jane Doe No. 1 lives in a small town. She is a private person, as is her 87 year old father
and 82 year old mother. She is not the type of person to invite media attention, nor does she or
her family want it. She believes that she has a moral and civic obligation to participate here as a
witness. At the same time, she believes that she and her elderly parents will be unable to cope

1

Counsel have not submitted affidavits or disclosures that would necessitate the signatures of the
witnesses, given that the names have not previously been disclosed in a motion or pleading, and
counsel are requesting in this motion that their names not be disclosed outside of this litigation.
4

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 6 of 25

with significant media attention or publicity, and will find it too stressful. She requests that her
identity not be revealed to the media.
2. JANE DOE NO. 2
Jane Doe No. 2 suffers from and has been treated for bipolar disorder. She does not want
her privacy invaded, and feels that such an invasion would be upsetting to her, would be
detrimental to her medical condition, and in fact might exacerbate her symptoms. She does not
want to be contacted by the news, and does not want her family contacted. She believes that any
unsolicited coverage or calls from the media will have a detrimental effect on her and her family,
and will be a source of additional stress.
3. JANE DOE NO. 3
Jane Doe No. 3 values her privacy, and requests that it be respected. She does not want
her privacy invaded. She believes that it would be devastating for her to be contacted by the
press or by defendant’s fans or supporters. She believes that defendant’s fans or supporters
might try to harass her, contact her, or otherwise give her a difficult time. Jane Doe No. 3 is also
employed by a gambling casino; she believes that she could in fact lose her job if she is
contacted at her place of employment, and further, that she could lose her job if the casino
management has a problem simply with her being in the limelight because of her status as a Jane
Doe witness here.
4. JANE DOE NO. 4
Jane Doe No. 4 does not want media attention or media contact, and believes it would be
too stressful. She especially wants to protect the privacy of her family. Her husband has been
ill, and has undergone brain surgery within the last month. As a result of his medical condition
and treatment, she feels it is imperative that she and her family suffer no additional stress.

5

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 7 of 25

5. JANE DOE NO. 5
Jane Doe No. 5 is not requesting that her identity be kept private.

6. JANE DOE NO. 6
Jane Doe No. 6 does not want any notoriety, publicity, or media attention as a result of
her involvement as a witness here. She wants her life to remain private and, most importantly,
the same. She recognizes the time commitment associated with being a witness in these
proceedings; still, she does not want the press interfering with her time outside of the scope of
this case, or interfering with her ability to maintain her career or her contacts with her clients.
7. JANE DOE NO. 7
Jane Doe No. 7 does not want to be contacted by the news media, and does not want to
suffer embarrassment from any such attention. She does not want her friends and family
contacted, including her child who is starting a new school, or that child’s school. She also fears
that her child may be subjected to harassment or ridicule if her name were revealed in the press.
She has recently reentered therapy as a result of dealing with the psychological repercussions
over the prior events with defendant, after coming forward here. She feels that media attention
would exacerbate these stressful life events for her, and therefore, she asks that her identity not
be released outside of this litigation.
8. JANE DOE NO. 8
Counsel hereby incorporates the separate Motion to Extend the Suspension Period of the
Court’s Order Regarding the Identity of the Jane Doe Witnesses as to Jane Doe No. 8, submitted
by plaintiff’s counsel, as though fully set forth herein.
9. JANE DOE NO. 9

6

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 8 of 25

Jane Doe No. 9 is not seeking, and does not want, any publicity or notoriety in
connection with her participation here as a witness. She does not want to be contacted, bothered,
or harassed by the media.

10. JANE DOE NO. 10
Jane Doe No. 10 believes that media attention will be humiliating, and she does not want
it. She does not want people showing up at her house, whether it be defendant’s fans, the press,
or cameramen. She does not want any of these sources contacting her. She understands that as a
witness, she will be deposed and will testify subject to cross-examination, but does not seek
publicity, and does not want her name disclosed to others outside of this litigation.
11. JANE DOE NO. 11
Jane Doe No. 11 does not want to be harassed by the media or by others. She values her
privacy, and requests that it be respected. She summed up her feelings in the following way:
having already been a victim, she feels that she will be victimized again if her name is disclosed
outside of this litigation.
12. JANE DOE NO. 12
Jane Doe No. 12 does not want to be contacted, bothered or harassed by the media, and
believes that such contact would be intrusive.
For the reasons stated in the Motion to Protect the Identity of the Rule 415 Jane Doe
Witnesses, as well as the individual good cause demonstrated herein, the above specified Jane

7

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 9 of 25

Doe witnesses respectfully request the Court to protect the release of their names outside of this
litigation, and requests that the Court order defendant not to disclose their names to others

8

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 10 of 25

outside of this litigation.
Respectfully submitted,

______________________
B. Joyce Dale, Esquire
Attorney I.D. No. 70093
Crime Victim’s Law Center
202 N. South Avenue
Media, PA 19063
Attorney for Jane Doe Nos. 1-7 and
Jane Doe No. 9
and

Judith F. Rubino, Esquire
Attorney I.D. No. 14203
1528 J.F.K. Blvd., Suite 1204
Philadelphia, PA 19102
Attorney for Jane Doe No. 10 and
Jane Doe No. 11
and

Ralph A. Jacobs, Esquire
Attorney I.D. No. 21387
Ralph A. Jacobs & Associates
215 S. Broad Street, 10th Floor
Philadelphia, PA 19107
Attorney for Jane Doe No. 12

9

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 11 of 25

EXHIBIT “A”

10

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 12 of 25

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER

AND NOW, this ____ day of __________ 2005, upon consideration of Plaintiff’s Motion
to Protect the Identity of Rule 415 Jane Doe Witnesses, supporting Memorandum of Law and
opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses shall not be disclosed to the media. In order to
assure this, their identities shall not be disclosed to anyone other than the parties in this case,
counsel for the parties, and any representatives working on their behalf.
2. All Plaintiff’s Rule 415 witness shall be referred to as “Jane Doe” with a number
suffix, e.g., “Jane Doe 1”, etc. in all discovery responses, transcripts and court filings.

BY THE COURT:

_______________________
J.

11

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 13 of 25

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PLAINTIFF’S MOTION TO PROTECT THE
IDENTITY OF RULE 415 JANE DOE WITNESSES
Plaintiff Andrea Constand, by her undersigned counsel, moves this Court for an order
protecting the identity of F.R.E. 415 witnesses from the media. In support of her Motion,
plaintiff relies on the accompanying Memorandum of Law, which is incorporated by reference as
if fully set forth herein.

TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 14 of 25

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION
TO PROTECT THE IDENTITY OF RULE 415 JANE DOE WITNESSES
Plaintiff Andrea Constand (“Constand”) submits this Memorandum of Law in support of
her Motion to Protect the Identity of Rule 415 Jane Doe Witnesses.
At trial, plaintiff will seek the admissibility of testimony of ten or more witnesses
pursuant to F.R.E. 415. These witnesses – identified in Plaintiff’s “Self-Executing Disclosures”
as “Jane Doe” witnesses – will testify about prior similar sexual assaults and/or drugging
incidents perpetrated by the Defendant. See Plaintiff’s Self-Executing Disclosures pursuant to
Federal R. Civ. Proc. 26(a) & 28 U.S.C. § 473(a)(4), attached hereto as Exhibit “A”. Plaintiff
does not seek to protect the identity of these witnesses from defendant. However, because of the
sensitive and personal nature of these witnesses’ testimony, plaintiff seeks to protect their
identity from the press and the public by requesting the Court to issue a protective order, before
their actual identities are revealed to defendant and his counsel.

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 15 of 25

ARGUMENT
The Motion to Protect the Identity of the Jane Doe Witnesses should be granted
because their Privacy Concerns Outweigh the Public’s right to know their Identity.
Plaintiff proposes to identify the Jane Doe witnesses to defendant in this litigation, but
not identify them by name to the press. The anticipated testimony of the Jane Doe witnesses
relates to the obviously sensitive subject matter of sexual assaults and/or druggings. Of equal
concern is that disclosure of the witness’s identities may place them at risk of further physical
and psychological harm from media exposure or from overly zealous fans and supporters of the
celebrity defendant2 . These concerns are critical because whether plaintiff should publicly
disclose the identities of the Jane Doe witnesses rests upon a weighing of their privacy and
security interests against the public’s need to know their names and addresses.
Other Courts have weighed these interests and, typically, extend protection to testifying
witnesses. In James v. Tilghman, 194 F.R.D. 398 (D. Conn. 1999), for example, the Court was
confronted with a similar issue pertaining to a civil suit against the Connecticut Department of
Corrections over its failure to protect the plaintiff inmate from sexual assaults by his cellmate.
The plaintiff wished to call certain Rule 415 inmate witnesses, who had also been subject to
sexual assaults by the same cellmate. In this instance, the defendant and not plaintiff knew the
identities of the witnesses. Plaintiff filed a motion to compel discovery of the inmate identities
and defendant filed a motion to preclude their identities. Id. at 399. The court held that
disclosure of the inmate identities subjected them to a possible security risk and “in balancing the
interests of all parties concerned” set forth procedures that required the cellmates’ consent as a
precondition to disclosing their identities, otherwise disclosure would not be permitted. Id. at
402.
2

Indeed, this is not a specious concern. Although the press routinely declines to print the name of sexual assault
complainants, in this case both plaintiff’s name and picture were published in various sources.

2

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 16 of 25

In another example, Jason Doe v. American Nat. Red Cross, 151 F.R.D. 71, 72 (S.D.
W.Va. 1993), the Judge Magistrate performed a similar balancing analysis in determining
whether the identity of a deceased blood donor should be disclosed to plaintiff transfusion
recipient. The court ordered that the confidentiality of the donor identity be maintained but
subject to limited disclosure for discovery purposes. Id. at 74-75, n.5. See also Landano v. U.S.
Dept. of Justice, 956 F.2d 422, 430 -431 (3rd Cir. 1992) (no public interest in disclosure of
names under FOIA request for FBI files where individuals involved have some privacy interest
in not having names disclosed in connection with criminal investigation).
Likewise, in Carhart v. Ashcroft, 300 F. Supp.2d 921 (2004), an action to enjoin
enforcement of the Partial-Birth Abortion Ban Act of 2003, plaintiffs moved to protect the
identity of their expert witness who had performed the banned procedures. The court held that
the witness, a non-party, was uniquely qualified to testify that his or her safety would be
compromised by disclosure of the witness’s identity. Id. at 922. The court opined:
The court may take all reasonable steps necessary to protect the
witness during discovery, at trial, and thereafter. See, e.g., Federal
Rule of Evidence 611(a) ("The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to ... (3) protect witnesses from
harassment or undue embarrassment") & Federal Rule of Civil
Procedure 26(c) (permitting the court to make "any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden ...."). In extraordinary
circumstances, "where the safety ... of a witness ... might be
jeopardized by compelling testimony to be given under normal
conditions, the courts have permitted testimony to be given in
camera, outside the courtroom, or under other circumstances that
afford protection." 28 Charles A. Wright & Victor J. Gold, Federal
Practice and Procedure § 6164, at 350-51 (1993) (footnotes
omitted).
Id. at 922 -923. See also Fluke v. Heidrick & Struggles, Inc., 2004 WL 884455, 2 (E.D. Pa
2004) (in negligence suit against executive recruitment form, identities may be protected where

3

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 17 of 25

disclosure of names and addresses would be harmful to search candidates and to defendant’s
ability to perform executive searches); McMullan v. Wohlgemuth, 444 Pa. 563, 567, 281 A.2d
836, 838 (1971) (Pennsylvania Right to Know Act excludes disclosure of information which
would operate to the prejudice or impairment of a person's reputation or personal security).
In the instant case, it is difficult to identify what public interest, if any, will be served by
disclosing the identity to the media of the Jane Doe witnesses. The public, of course, will have
access to the substance of the testimony; but the identity of the testifying witness will add little to
the public’s knowledge of the proceedings. On the other hand, without the imposition of a
confidentiality order and with fear of embarrassment and possible retaliation, there is a risk of
harm to each of the witnesses should their identities become publicly broadcast. Clearly, the
balance here weighs heavily in favor of preserving the privacy of the Jane Doe witnesses.
CONCLUSION
For all the foregoing reasons, Plaintiff Andrea Constand respectfully requests this Court
to grant her Motion to Protect the Identity of Rule 415 Jane Doe Witnesses.

Respectfully submitted,
TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

4

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 18 of 25

CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiff’s Motion and Memorandum of Law to
Protect the Identity of the Rule 415 Jane Doe Witness was filed electronically and is available for
viewing and downloading from the ECF system. I further certify that a true and correct copy of
said document was served via regular First Class mail, postage prepaid, on the following:
Patrick J. 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

TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff
Date: April 19, 2005

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 19 of 25

EXHIBIT “A”

2

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 20 of 25

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

SELF-EXECUTING DISCLOSURES PURSUANT TO
FEDERAL R. CIV. PROC. 26(a) & 28 U.S.C. §473(a)(4)

Plaintiff, by and through her counsel, Troiani/Kivitz,
L.L.P., provides the following disclosures:

A.

WITNESSES:
1.

Andrea Constand
Confidential address
Pickering, Ontario

2.

Gianna Constand
Confidential address
Pickering, Ontario

3.

Detective Richard Shaffer
Cheltenham Township Police Dept.
8230 Old York Road
Elkins Park, PA 19027

4.

Lt. Richard Peffall
Montgomery County Detective Bureau
One Montgomery Plaza, Suite 502
Norristown, PA 19401
3

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 21 of 25

5.

Jennifer Sprague
Psychotherapist
53 Rabbit Street
Lakefield, Ontario

6.

William H. Cosby, Jr.
8210 New Second Street
Cheltenham, Pennsylvania

7.

Barry Levine
The National Enquirer, Inc.
1000 American Media Way
Boca Raton, Florida 33464

8.

Joe Tobin
Celebrity Justice
New York, New York

Fed. R. Evid. 415 Witnesses, as to prior sexual assaults:
9.

Tamara Lucier Green, Esquire
Confidential address
Ventura, California
Plaintiff believes this witness is in the process of
retaining legal counsel

10.

Jane Doe 1
Confidential address
Taos, New Mexico
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

11.

Jane Doe 2
Confidential address
Spring Hill, Florida
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

12.

Jane Doe 3
Confidential address
Las Vegas, Nevada
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

4

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 22 of 25

13.

Jane Doe 4
Confidential address
Portola Valley, California
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

14.

Jane Doe 5
Confidential address
Denver, Colorado
Plaintiff believes this witness is in the process of
retaining legal counsel

15.

Jane Doe 6
Confidential address
Toledo, Ohio
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

16.

Jane Doe 7
Confidential address
Cave Creek, Arizona
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

16.

Jane Doe 8
Confidential address
Monument, Colorado

16.

Jane Doe 9
Confidential address
Corralitos, California
Plaintiff believes this witness is in the process of
retaining legal counsel

Plaintiff reserves the right to supplement this list as a
result of discovery and/or as additional information becomes
known or available to her, as additional Jane Doe witnesses are
located, or as additional Jane Doe witnesses who have contacted
Plaintiff’s counsel indicate their willingness to be listed as
trial witnesses.

B.

DOCUMENTS

1.
Documents constituting the criminal investigation in
this matter.

5

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 23 of 25

2.
Documents constituting transcripts of telephone
conversations by Mr. Cosby and his authorized agents.

3.
Relevant publications, including February 7, 2005,
Celebrity Justice and March 4, 2005, Enquirer, and other
relevant documents in possession of Celebrity Justice, The
Enquirer, or other publications concerning Defendant’s
statements, statements of his representatives or agents, and
statements made by potential witnesses to representatives of
such publications.
4.
Documents within the possession of the New York County
District Attorney’s Office and/or 19th Police Precinct, New York,
NY, concerning Lachele Covington’s allegation of sexual assault
made against Defendant in 2000.
Plaintiff reserves the right to supplement this list as a
result of discovery and/or as additional information becomes
known or available to her.
C.

DAMAGES

Plaintiff has sustained emotional and psychological damage,
including post-traumatic stress disorder, anxiety, depression,
and humiliation.

TROIANI/KIVITZ, L.L.P.

________________________
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

6

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 24 of 25

CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiff’s Selfexecuting Disclosures was served via facsimile and U.S. mail,
postage prepaid, on the following:

Patrick J. O’Connor, Esquire
Cozen O’Connor
1900 Market Street
Philadelphia, PA 19103

TROIANI/KIVITZ, L.L.P.

Date: April 6, 2005

________________________
Bebe H. Kivitz
Dolores M. Troiani
Attorney for Plaintiff

7

Case 2:05-cv-01099-ER Document 33 Filed 06/13/05 Page 25 of 25

CERTIFICATE OF SERVICE
I, B. Joyce Dale, hereby certify that on the date indicated below the undersigned served
the Motion of Jane Doe Witnesses to Protect the Disclosure of their Names by facsimile and
U.S. First Class mail, postage prepaid, on the following:
Patrick J. 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

________________________
B. Joyce Dale, Esquire
Crime Victim’s Law Center
202 N. South Avenue
Media, PA 19063

Date: June 13, 2005

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER

AND NOW, this ____ day of __________ 2005, upon consideration of Plaintiff’s Motion
to Protect the Identity of Rule 415 Jane Doe Witnesses, supporting Memorandum of Law and
opposition thereto, IT IS HEREBY ORDERED as follows:
1. The identity of the Jane Doe witnesses shall not be disclosed to the media. In order to
assure this, their identities shall not be disclosed to anyone other than the parties in this case,
counsel for the parties, and any representatives working on their behalf.
2. All Plaintiff’s Rule 415 witness shall be referred to as “Jane Doe” with a number
suffix, e.g., “Jane Doe 1”, etc. in all discovery responses, transcripts and court filings.

BY THE COURT:

_______________________
J.

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 2 of 13

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PLAINTIFF’S MOTION TO PROTECT THE
IDENTITY OF RULE 415 JANE DOE WITNESSES
Plaintiff Andrea Constand, by her undersigned counsel, moves this Court for an order
protecting the identity of F.R.E. 415 witnesses from the media. In support of her Motion,
plaintiff relies on the accompanying Memorandum of Law, which is incorporated by reference as
if fully set forth herein.

TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 3 of 13

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION
TO PROTECT THE IDENTITY OF RULE 415 JANE DOE WITNESSES
Plaintiff Andrea Constand (“Constand”) submits this Memorandum of Law in support of
her Motion to Protect the Identity of Rule 415 Jane Doe Witnesses.
At trial, plaintiff will seek the admissibility of testimony of ten or more witnesses
pursuant to F.R.E. 415. These witnesses – identified in Plaintiff’s “Self-Executing Disclosures”
as “Jane Doe” witnesses – will testify about prior similar sexual assaults and/or drugging
incidents perpetrated by the Defendant. See Plaintiff’s Self-Executing Disclosures pursuant to
Federal R. Civ. Proc. 26(a) & 28 U.S.C. § 473(a)(4), attached hereto as Exhibit “A”. Plaintiff
does not seek to protect the identity of these witnesses from defendant. However, because of the
sensitive and personal nature of these witnesses’ testimony, plaintiff seeks to protect their
identity from the press and the public by requesting the Court to issue a protective order, before
their actual identities are revealed to defendant and his counsel.

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 4 of 13

ARGUMENT
The Motion to Protect the Identity of the Jane Doe Witnesses should be granted
because their Privacy Concerns Outweigh the Public’s right to know their Identity.
Plaintiff proposes to identify the Jane Doe witnesses to defendant in this litigation, but
not identify them by name to the press. The anticipated testimony of the Jane Doe witnesses
relates to the obviously sensitive subject matter of sexual assaults and/or druggings. Of equal
concern is that disclosure of the witness’s identities may place them at risk of further physical
and psychological harm from media exposure or from overly zealous fans and supporters of the
celebrity defendant1 . These concerns are critical because whether plaintiff should publicly
disclose the identities of the Jane Doe witnesses rests upon a weighing of their privacy and
security interests against the public’s need to know their names and addresses.
Other Courts have weighed these interests and, typically, extend protection to testifying
witnesses. In James v. Tilghman, 194 F.R.D. 398 (D. Conn. 1999), for example, the Court was
confronted with a similar issue pertaining to a civil suit against the Connecticut Department of
Corrections over its failure to protect the plaintiff inmate from sexual assaults by his cellmate.
The plaintiff wished to call certain Rule 415 inmate witnesses, who had also been subject to
sexual assaults by the same cellmate. In this instance, the defendant and not plaintiff knew the
identities of the witnesses. Plaintiff filed a motion to compel discovery of the inmate identities
and defendant filed a motion to preclude their identities. Id. at 399. The court held that
disclosure of the inmate identities subjected them to a possible security risk and “in balancing the
interests of all parties concerned” set forth procedures that required the cellmates’ consent as a
precondition to disclosing their identities, otherwise disclosure would not be permitted. Id. at
402.
1

Indeed, this is not a specious concern. Although the press routinely declines to print the name of sexual assault
complainants, in this case both plaintiff’s name and picture were published in various sources.

2

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 5 of 13

In another example, Jason Doe v. American Nat. Red Cross, 151 F.R.D. 71, 72 (S.D.
W.Va. 1993), the Judge Magistrate performed a similar balancing analysis in determining
whether the identity of a deceased blood donor should be disclosed to plaintiff transfusion
recipient. The court ordered that the confidentiality of the donor identity be maintained but
subject to limited disclosure for discovery purposes. Id. at 74-75, n.5. See also Landano v. U.S.
Dept. of Justice, 956 F.2d 422, 430 -431 (3rd Cir. 1992) (no public interest in disclosure of
names under FOIA request for FBI files where individuals involved have some privacy interest
in not having names disclosed in connection with criminal investigation).
Likewise, in Carhart v. Ashcroft, 300 F. Supp.2d 921 (2004), an action to enjoin
enforcement of the Partial-Birth Abortion Ban Act of 2003, plaintiffs moved to protect the
identity of their expert witness who had performed the banned procedures. The court held that
the witness, a non-party, was uniquely qualified to testify that his or her safety would be
compromised by disclosure of the witness’s identity. Id. at 922. The court opined:
The court may take all reasonable steps necessary to protect the
witness during discovery, at trial, and thereafter. See, e.g., Federal
Rule of Evidence 611(a) ("The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to ... (3) protect witnesses from
harassment or undue embarrassment") & Federal Rule of Civil
Procedure 26(c) (permitting the court to make "any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden ...."). In extraordinary
circumstances, "where the safety ... of a witness ... might be
jeopardized by compelling testimony to be given under normal
conditions, the courts have permitted testimony to be given in
camera, outside the courtroom, or under other circumstances that
afford protection." 28 Charles A. Wright & Victor J. Gold, Federal
Practice and Procedure § 6164, at 350-51 (1993) (footnotes
omitted).
Id. at 922 -923. See also Fluke v. Heidrick & Struggles, Inc., 2004 WL 884455, 2 (E.D. Pa
2004) (in negligence suit against executive recruitment form, identities may be protected where

3

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 6 of 13

disclosure of names and addresses would be harmful to search candidates and to defendant’s
ability to perform executive searches); McMullan v. Wohlgemuth, 444 Pa. 563, 567, 281 A.2d
836, 838 (1971) (Pennsylvania Right to Know Act excludes disclosure of information which
would operate to the prejudice or impairment of a person's reputation or personal security).
In the instant case, it is difficult to identify what public interest, if any, will be served by
disclosing the identity to the media of the Jane Doe witnesses. The public, of course, will have
access to the substance of the testimony; but the identity of the testifying witness will add little to
the public’s knowledge of the proceedings. On the other hand, without the imposition of a
confidentiality order and with fear of embarrassment and possible retaliation, there is a risk of
harm to each of the witnesses should their identities become publicly broadcast. Clearly, the
balance here weighs heavily in favor of preserving the privacy of the Jane Doe witnesses.
CONCLUSION
For all the foregoing reasons, Plaintiff Andrea Constand respectfully requests this Court
to grant her Motion to Protect the Identity of Rule 415 Jane Doe Witnesses.

Respectfully submitted,
TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

4

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 7 of 13

CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiff’s Motion and Memorandum of Law to
Protect the Identity of the Rule 415 Jane Doe Witness was filed electronically and is available for
viewing and downloading from the ECF system. I further certify that a true and correct copy of
said document was served via regular First Class mail, postage prepaid, on the following:
Patrick J. 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

TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff
Date: April 19, 2005

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 8 of 13

EXHIBIT “A”

6

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 9 of 13

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

SELF-EXECUTING DISCLOSURES PURSUANT TO
FEDERAL R. CIV. PROC. 26(a) & 28 U.S.C. §473(a)(4)

Plaintiff, by and through her counsel, Troiani/Kivitz,
L.L.P., provides the following disclosures:

A.

WITNESSES:
1.

Andrea Constand
Confidential address
Pickering, Ontario

2.

Gianna Constand
Confidential address
Pickering, Ontario

3.

Detective Richard Shaffer
Cheltenham Township Police Dept.
8230 Old York Road
Elkins Park, PA 19027

4.

Lt. Richard Peffall
Montgomery County Detective Bureau
One Montgomery Plaza, Suite 502
Norristown, PA 19401
7

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 10 of 13

5.

Jennifer Sprague
Psychotherapist
53 Rabbit Street
Lakefield, Ontario

6.

William H. Cosby, Jr.
8210 New Second Street
Cheltenham, Pennsylvania

7.

Barry Levine
The National Enquirer, Inc.
1000 American Media Way
Boca Raton, Florida 33464

8.

Joe Tobin
Celebrity Justice
New York, New York

Fed. R. Evid. 415 Witnesses, as to prior sexual assaults:
9.

Tamara Lucier Green, Esquire
Confidential address
Ventura, California
Plaintiff believes this witness is in the process of
retaining legal counsel

10.

Jane Doe 1
Confidential address
Taos, New Mexico
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

11.

Jane Doe 2
Confidential address
Spring Hill, Florida
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

12.

Jane Doe 3
Confidential address
Las Vegas, Nevada
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

8

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 11 of 13

13.

Jane Doe 4
Confidential address
Portola Valley, California
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

14.

Jane Doe 5
Confidential address
Denver, Colorado
Plaintiff believes this witness is in the process of
retaining legal counsel

15.

Jane Doe 6
Confidential address
Toledo, Ohio
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

16.

Jane Doe 7
Confidential address
Cave Creek, Arizona
Represented by Joyce Dale, Esquire, Media, PA
Witness may be contacted through her legal counsel

16.

Jane Doe 8
Confidential address
Monument, Colorado

16.

Jane Doe 9
Confidential address
Corralitos, California
Plaintiff believes this witness is in the process of
retaining legal counsel

Plaintiff reserves the right to supplement this list as a
result of discovery and/or as additional information becomes
known or available to her, as additional Jane Doe witnesses are
located, or as additional Jane Doe witnesses who have contacted
Plaintiff’s counsel indicate their willingness to be listed as
trial witnesses.

B.

DOCUMENTS

1.
Documents constituting the criminal investigation in
this matter.

9

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 12 of 13

2.
Documents constituting transcripts of telephone
conversations by Mr. Cosby and his authorized agents.

3.
Relevant publications, including February 7, 2005,
Celebrity Justice and March 4, 2005, Enquirer, and other
relevant documents in possession of Celebrity Justice, The
Enquirer, or other publications concerning Defendant’s
statements, statements of his representatives or agents, and
statements made by potential witnesses to representatives of
such publications.
4.
Documents within the possession of the New York County
District Attorney’s Office and/or 19th Police Precinct, New York,
NY, concerning Lachele Covington’s allegation of sexual assault
made against Defendant in 2000.
Plaintiff reserves the right to supplement this list as a
result of discovery and/or as additional information becomes
known or available to her.
C.

DAMAGES

Plaintiff has sustained emotional and psychological damage,
including post-traumatic stress disorder, anxiety, depression,
and humiliation.

TROIANI/KIVITZ, L.L.P.

________________________
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

10

Case 2:05-cv-01099-ER Document 13 Filed 04/19/05 Page 13 of 13

CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiff’s Selfexecuting Disclosures was served via facsimile and U.S. mail,
postage prepaid, on the following:

Patrick J. O’Connor, Esquire
Cozen O’Connor
1900 Market Street
Philadelphia, PA 19103

TROIANI/KIVITZ, L.L.P.

Date: April 6, 2005

________________________
Bebe H. Kivitz
Dolores M. Troiani
Attorney for Plaintiff

11

Case 2:05-cv-01099-ER Document 29 Filed 06/02/05 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
WILLIAM H. COSBY, JR.
Defendant.

CIVIL ACTION
05-1099

M E M O R A N D U M
EDUARDO C. ROBRENO, J.
I.

JUNE 2, 2005

BACKGROUND
Plaintiff, Andrea Constand, brings this diversity

action against defendant, William H. Cosby, Jr., asserting claims
of battery, sexual assault, intentional and negligent infliction
of emotional distress, defamation/defamation per se and false
light/invasion of privacy.

Plaintiff is the former Director of

Operations for the Women’s Basketball program at Temple
University.

Defendant is a well-known entertainer and celebrity

and a supporter of Temple University programs.

Plaintiff met

defendant while she was employed at Temple University.
The gravamen of plaintiff’s complaint is that while
alone with defendant at defendant’s home in January 2004,
defendant deceived plaintiff into ingesting a narcotic or other
type of drug which caused plaintiff to become semi-conscious, and
thereafter defendant sexually assaulted plaintiff.

Plaintiff

Case 2:05-cv-01099-ER Document 29 Filed 06/02/05 Page 2 of 26

also contends that after she reported defendant’s alleged actions
to the Durham, Ontario police, defendant and/or his authorized
representatives knowingly made false statements to the media
about plaintiff.

In connection with her allegations, plaintiff

seeks an award of compensatory damages plus reasonable attorneys’
fees, interest, costs, punitive damages, and other unspecified
relief.
Presently before the Court are two motions for
protective orders.

One, plaintiff seeks to keep confidential the

identity of prospective witnesses who are expected to testify at
trial pursuant to Federal Rule of Evidence 415 (“Evidence of
Similar Acts in Civil Cases Concerning Sexual Assault”).

Two,

defendant seeks to preclude the parties from disclosing any
information learned in discovery to anyone other than the parties
themselves, their counsel and representatives working on their
behalf and to preclude use of any such information for any
purpose other than this litigation.

The Court held a hearing to

address issues raised in these motions on May 11, 2005.
In plaintiff’s motion for a protective order, which
defendant initially opposed, plaintiff argues that the identities
of ten or more of the prospective Rule 415 witnesses, whom
plaintiff tagged as “Jane Doe witnesses” in disclosures to
defendant (“Jane Doe witnesses”), should be protected from public

2

Case 2:05-cv-01099-ER Document 29 Filed 06/02/05 Page 3 of 26

disclosure.1

At the hearing, plaintiff’s counsel stated that at

least thirteen Rule 415 witnesses may testify, (Hr’g Tr. Troiani
(5/11/05) at 21), and that all but two are represented by
counsel, with one of the unrepresented witnesses being an
attorney herself, (Hr’g Tr. Kivitz (5/11/05) at 29).

In support

of her position, plaintiff argues that there are important
privacy concerns at issue in disclosing the Jane Doe witnesses’
names and addresses to the media.

In particular, the anticipated

testimony of the Jane Doe witnesses relates to details of alleged
similar incidents of sexual assaults involving the defendant.
Plaintiff argues that disclosure of these witnesses’ identities
may place the Jane Doe witnesses at risk of physical and
psychological harm from media exposure.

Plaintiff also contends

that disclosure of their identities may expose the Jane Doe
witnesses to the risk of harm from overly zealous fans and
supporters of the celebrity defendant.
Defendant initially challenged plaintiff’s ability to
move for a protective order to conceal the identities of the Jane
Doe witnesses arguing that plaintiff may only move for a
protective order to protect her own interests and not the

1

Although plaintiff has not disclosed the identities of
these Jane Doe witnesses to defendant, prompting defendant to
file a motion to compel, plaintiff does not seek to protect the
identities of these witnesses from defendant. Rather, plaintiff
seeks only to protect their identities from the press and the
public.
3

Case 2:05-cv-01099-ER Document 29 Filed 06/02/05 Page 4 of 26

interests of third-party witnesses.

Defendant also argued that

if such a protective order is granted, the Jane Doe witnesses
will be free to make anonymous public accusations about
defendant’s sexual history without corresponding scrutiny.
However, at the hearing, counsel for defendant clarified that
defendant was not opposed to protecting the names of the Jane Doe
witnesses from public disclosure at this time (i.e., during the
discovery period), so long as defendant is provided with their
names and has the opportunity to depose them.

(Hr’g Tr. O’Connor

(5/11/05) at 14-15.)
Defendant’s motion requests a blanket protective order
preventing the parties (and presumably counsel and witnesses)
from publicly disclosing or discussing any information learned in
discovery.

In support of this motion, defendant argues that a

protective order cloaking information produced in discovery will
protect the parties and witnesses in this case from embarrassment
and invasion of privacy and will help preserve a fair and
unbiased jury pool.

Defendant highlights the publicity this case

has already garnered and predicts that public disclosure of the
discovery proceedings could result in serious and palpable
embarrassment to the defendant.
At the hearing, defense counsel explained that
defendant’s request for a protective order went beyond protecting
information obtained by the parties during discovery.

4

In

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essence, defendant would like the Court to issue a gag order
prohibiting the parties and counsel from making any extrajudicial
statements about any aspect of the case.

Id. at 12-13, 25.

Plaintiff opposes defendant’s request for a protective
order cloaking in a mantle of confidentiality all discovery
obtained in this case and for a more expansive gag order.
Plaintiff argues that defendant is a person with unfettered
access to worldwide media outlets and that, in fact, defendant
has already utilized the media in this litigation by portraying
himself as the type of individual who would not engage in the
behavior alleged herein.

Plaintiff posits that if the Court were

to seal discovery, defendant would promote his own innocence by
talking to the media, lecturing at public venues and otherwise
promoting his public image.

According to plaintiff’s counsel, if

plaintiff is denied the right to have her counsel speak for her
in public, she will have no public voice with which to counteract
defendant.

(Hr’g Tr. Troiani (5/11/05) at 6.)

Plaintiff’s

counsel argues that because the defendant’s friends and agents
are speaking out on his behalf, it is necessary for the
plaintiff’s attorneys to speak out to present the public with a
balanced picture of the case.

Id. at 6-8.

In essence, the parties have presented the Court with
three issues:
1.

Whether the Court should enter a gag
order limiting the ability of the
5

Case 2:05-cv-01099-ER Document 29 Filed 06/02/05 Page 6 of 26

parties and counsel to make
extrajudicial statements;
2.

Whether the names of prospective Rule
415 Jane Doe witnesses should be
disclosed to counsel only and otherwise
kept confidential; and

3.

Whether the Court should enter a
protective order cloaking all discovery
in the case in a mantle of
confidentiality.

The Court will address these issues seriatim.

II.

DISCUSSION
A.

Should the Court Enter a Gag Order Limiting the
Ability of the Parties and Counsel to Make
Extrajudicial Statements?
“It is difficult to strike a balance between protecting

the right to a fair trial and safeguarding the right of free
expression.”

Rules of Prof’l Conduct, R. 3.6, 42 Pa.C.S.A., cmt.

1 (Supp. 2005).

Extrajudicial statements by counsel of record in

an ongoing, high-profile civil proceeding, such as here, presents
a case in point.
On the one hand, it is true that a lawyer’s
extrajudicial statements may contribute to the public’s
understanding of the judicial process in general or help explain
the intricacies of a particular case.

This is specially so when,

as here, by virtue of the public notoriety of one of the parties
and the subject matter of the action, the case attracts
significant media attention.

Yet, on the other hand,
6

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extrajudicial statements by counsel heighten the risk of turning
litigation into a media circus, polluting the jury pool and
lowering the esteem and dignity of the court in the eyes of the
public.
Faced with this dilemma, some courts have entered some
form of “gag order” limiting parties, counsel and even witnesses
from publicly discussing the facts or merits of a case.2

Given

the First Amendment implications of a sweeping gag order,
however, limiting speech by parties and witnesses, particularly
in a civil case and this early in the proceeding, is not to be
likely undertaken.

Neither should the Court undertake to limit

counsels’ extrajudicial statements without great care.

Rather,

the Court must be convinced, not merely suspect, that there is a
substantial likelihood that extrajudicial statements by counsel,
in light of the circumstances of the case, will materially
prejudice the pending proceedings.

Gentile v. State Bar of Nev.,

501 U.S. 1030, 1075 (1991); United States v. Scarfo, 263 F.3d 80,
93-94 (3d Cir. 2001).

The Supreme Court has held that this

“‘substantial likelihood of material prejudice’ standard
constitutes a constitutionally permissible balance between the

2

See, e.g., Commonwealth v. Lambert, No. 423-1992 (Pa. Com.
Pl. Apr. 14, 1998); Commonwealth v. DuPont, No. 29-96 (Pa. Com.
Pl. Jan. 13, 1997); State v. Grossberg, No. 9611007811 (Del.
Super. Ct. Mar. 21, 1996).
7

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First Amendment rights of attorneys in pending cases and the
State’s interest in fair trials.”

Gentile, 501 U.S. at 1075.

In light of these concerns, there are at least three
reasons why the Court need not enter a gag order in this case, at
least not now, and not of the breadth of the one proposed by
defendant in this case.

One, limiting parties and witnesses from

making extrajudicial statements during a pending civil proceeding
raises constitutional questions where similar limitations upon
lawyers do not.

See id. at 1071 (noting that in In re Sawyer,

360 U.S. 622 (1959), the Court “observed that lawyers in pending
cases were subject to ethical restrictions on speech to which an
ordinary citizen would not be.”).
Two, although at least one counsel has made
extrajudicial statements to the media concerning certain aspects
of the case, the bulk of the media coverage has centered on the
averments made by the parties in the pleadings.3

Thus, silencing

the lawyers outside the courtroom alone would not necessarily
lessen the sensationalist tone of the public coverage witnessed
here.4

3

Statements made in pleadings may be stricken by the Court
under Federal Rule of Civil Procedure 12(f). Rule 12(f), in
pertinent part, provides that “upon the court's own initiative at
any time, the court may order stricken from any pleading any . .
. redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f).
4

The District Attorney for Montgomery County, Pennsylvania
investigated this matter for several weeks, ultimately declining
8

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Three, attorneys’ extrajudicial statements are already
subject to sanction, albeit seldom enforced, under the
Pennsylvania Rules of Professional Conduct.

Specifically, Rule

3.6, applicable in this Court through operation of Eastern
District of Pennsylvania Rule of Civil Procedure 83.6 (Rule
IV(B)),5 was adopted in 1987 and recently amended.

Its pedigree

traces to the American Bar Association (“ABA”) Model Code of
Professional Responsibility and the ABA Standards Relating to
Fair Trial and Free Press, as amended in 1978.

The Rule puts

flesh on the bones of the “substantial likelihood of material
prejudice” standard endorsed by the United States Supreme Court.
It is applicable to all members of this Bar and to those
attorneys who are admitted pro hac vice in this case.
In pertinent part, the Rule provides:
(a) A lawyer who is participating or has
participated in the investigation or
litigation of a matter shall not make an
extrajudicial statement that the lawyer knows
or reasonably should know will be
disseminated by means of public communication
and will have a substantial likelihood of

to prosecute it. As a consequence of that investigation,
substantial publicity was generated before the instant case was
even filed.
5

Local Rule of Civil Procedure 83.6 (Rule IV(B)) provides
in pertinent part that “[t]he Rules of Professional Conduct
adopted by this Court are the Rules of Professional Conduct
adopted by the Supreme Court of Pennsylvania, as amended from
time to time by that Court, except as otherwise provided by
specific Rule of this Court. . . .” E.D. Pa. R. Civ. P. 83.6
(Rule IV(B)).
9

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materially prejudicing an adjudicative
proceeding in the matter.
(b) Notwithstanding paragraph (a), a
lawyer may state:
(1) the claim, offense or defense
involved and, except when prohibited by law,
the identity of the persons involved;
(2) information contained in a public
record;
(3) that an investigation of the matter
is in progress;
(4) the scheduling or result of any step
in litigation;
(5) a request for assistance in
obtaining evidence and information necessary
thereto;
(6) a warning of danger concerning the
behavior of a person involved, when there is
reason to believe that there exists the
likelihood of substantial harm to an
individual or to the public interest . . . .
(c) Notwithstanding paragraph (a), a
lawyer may make a statement that a reasonable
lawyer would believe is required to protect a
client from the substantial undue prejudicial
effect of recent publicity not initiated by
the lawyer or the lawyer's client. A
statement made pursuant to this paragraph
shall be limited to such information as is
necessary to mitigate the recent adverse
publicity.
(d) No lawyer associated in a firm or
government agency with a lawyer subject to
paragraph (a) shall make a statement
prohibited by paragraph (a).
Rules of Prof’l Conduct, R. 3.6, 42 Pa.C.S.A. (Supp. 2005)
(emphasis added).
Comment 5 sheds light on the type of extrajudicial
statements which are proscribed by the Rule:

10

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[5] There are, on the other hand, certain
subjects that are more likely than not to
have a material prejudicial effect on a
proceeding, particularly when they refer to a
civil matter triable to a jury, a criminal
matter, or any other proceeding that could
result in incarceration. These subjects
relate to:
(1) the character, credibility,
reputation or criminal record of a
party, suspect in a criminal
investigation or witness, or the
identity of a witness, or the expected
testimony of a party or witness;
. . . .
(3) the performance or results of any
examination or test or the refusal or
failure of a person to submit to an
examination or test, or the identity or
nature of physical evidence expected to
be presented;
. . . .
(5) information that the lawyer knows or
reasonably should know is likely to be
inadmissible as evidence in a trial and
that would, if disclosed, create a
substantial risk of prejudicing an
impartial trial . . . .
Id. cmt. 5 (emphasis added).

Comment 7 explains that under the

Rule counsel may be justified in making extrajudicial statements
in response to extrajudicial statements made by other counsel in
violation of the Rule:
[7] Finally, extrajudicial statements that
might otherwise raise a question under this
Rule may be permissible when they are made in
response to statements made publicly by
another party, another party's lawyer, or
third persons, where a reasonable lawyer
11

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would believe a public response is required
in order to avoid prejudice to the lawyer's
client. When prejudicial statements have been
publicly made by others, responsive
statements may have the salutary effect of
lessening any resulting adverse impact on the
adjudicative proceeding. Such responsive
statements should be limited to contain only
such information as is necessary to mitigate
undue prejudice created by the statements
made by others.
Id. cmt. 7; see also Heffernan v. Hunter, 189 F.3d 405, 414 (3d
Cir. 1999) (“We are not so naive as to believe that there is no
exception to the admonition that lawyers are to try their cases
only in the courtroom.

There may be circumstances where

conscientious lawyers must act to defend against adverse
publicity where their clients have been tried and convicted by
the media long before trial, or where the opposing litigants-government or private--have blanketed the community with damaging
publicity.”).
The Rule, in its original incarnation, including what
is now Comment 5, which at the time was section (b) of the Rule,
largely tracks the language of Nevada’s rule of professional
conduct that the Supreme Court found to be constitutionally
permissible in Gentile.

Moreover, Rule 3.6 has expressly been

found constitutionally sound by at least one Pennsylvania
appellate court.
(Pa. Super. 1998).

Commonwealth v. Lambert, 723 A.2d 684, 692, 695
Under these circumstances, Rule 3.6 provides

12

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a constitutionally tested method of defining the contours of
permissible extrajudicial statements by counsel.
It is true that breaches of the Pennsylvania Rules of
Professional Conduct are generally enforceable by reference of
the offending counsel to the Pennsylvania Disciplinary Board.
See, e.g., Eagan by Keith v. Jackson, 855 F. Supp. 765, 791 (E.D.
Pa. 1994) (holding that the Disciplinary Board and not the court
adjudges whether a breach of the Rules of Professional Conduct
should result in professional discipline); Greenfield v. U.S.
Healthcare, Inc., No. Civ.A.92-6345, 1993 WL 106453, at *2 (E.D.
Pa. Apr. 6, 1993) (“[T]he inquiry, adjudication, and
determination of allegations of ethical misconduct are matters
for the Disciplinary Board of the Supreme Court of
Pennsylvania.”).

It is also true that this method of post hoc

enforcement has been criticized as effectively toothless.

See,

e.g., Robert S. Bennett, Press Advocacy and the High-Profile
Client, 30 Loy. L.A. L. Rev. 13, 18 (1996) (stating that the
rules of ethics and their after-the-fact enforcement actions have
little teeth when it comes to curing damage caused by media abuse
during trial).

This criticism is particularly apt here, where an

after-the-fact rebuke by the Disciplinary Board would not address
the need for prompt action by the trial court to sanction
attorney conduct or to enter orders protecting the integrity of
the proceedings while the case is ongoing.

13

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Nevertheless, the Court is not inevitably relegated to
the role of the veritable “potted plant” with respect to
enforcement of the Rules of Professional Conduct.

This is

particularly true here, where the likelihood that extrajudicial
statements may have the substantial likelihood of materially
prejudicing the proceedings is high.

Rather, given the need for

close judicial superintendency of the proceedings, there is good
reason to adopt Rule 3.6 as a rule of procedure applicable to
counsel and enforced by the Court in this case.
Under Federal Rule of Civil Procedure 16, the Court is
authorized to enter case management orders and to establish
procedures that “may facilitate the just, speedy, and inexpensive
disposition of the action.”

Fed. R. Civ. P. 16(c)(16).

Moreover, the Court has inherent power to enter prophylactic
orders that will protect the parties’ right to a fair trial.
Thus, given this authority, and under the circumstances of this
case, the Court will adopt Rule 3.6 as Case Management Order 1 in
this case applicable to all counsel of record.

Henceforth,

breaches of Rule 3.6 (Case Management Order 1) may be punished
under Federal Rule of Civil Procedure 16(f) or under the Court’s
inherent power.

Under this authority, the Court may impose

monetary sanctions, order referral to the Pennsylvania
Disciplinary Board, revoke a lawyer’s pro hac vice admission, or
enter such other orders which are just under the circumstances.

14

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The Court recognizes that this is a volatile case.

One

party is a prominent entertainer well known nationally and
internationally with a high profile in the local community.

The

subject matter of the action involves allegations of sexual
assault and battery.

Moreover, under Federal Rule of Evidence

415, alleged similar episodes involving the defendant and third
parties may be admissible under certain circumstances.6
Understandably, putting together the parties, the subject matter
of the action and the scope of the charges, this case has
generated intense media scrutiny.
Yet, a gag order stilling counsel’s voice outside the
courtroom is not the answer.

Attorney public speech is not

always undesirable nor is media attention always deleterious to
the interest of justice.

The lamp of public scrutiny shining

brightly over the proceedings can assist the Court in reaching a
just result under the watchful eye of an informed public.

When,

however, counsel seeks to use this light not to enlighten but to
distort, not to inform but to proselytize, the fragile
accommodation between the right to a fair trial and the exercise
of free expression is put at risk.

Battling news conferences,

appearances on television and radio shows, and media interviews
on the part of counsel exacerbates this risk.

6

Timely and fair

Under Rule 415, a party may offer evidence in a civil
case that the defendant previously committed another offense or
offenses of sexual assault. Fed. R. Evid. 415(a).
15

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enforcement of Rule 3.6, on the other hand, will help the Court
guard against it.

Therefore, Rule 3.6 will be adopted as Case

Management Order 1 and thereafter all extrajudicial statements of
counsel of record in this case shall be measured against the
teachings of Rule 3.6.7

B.

Should the Names of Prospective Rule 415 Jane Doe
Witnesses Be Disclosed to Counsel Only and
Otherwise Kept Confidential?
It is well established that there exists a common law

public right of access to judicial proceedings in civil cases.
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir.
1984).

This public right of access entails not only the ability

to attend open court proceedings, but also the ability to inspect
and copy judicial records and documents.

In re Cendant Corp.,

7

The District Court for the Eastern District of
Pennsylvania has adopted a detailed local rule, applicable to
criminal cases, defining the duty of attorneys concerning the
release of information by means of public communication.
Specifically, Local Rule of Criminal Procedure 53.1(a) provides:
It is the duty of the lawyer not to release
or authorize the release of information or
opinion for dissemination by any means of
pubic communication, in connection with
pending or imminent criminal litigation with
which the lawyer is associated, if there is a
reasonable likelihood that such dissemination
will interfere with a fair trial or otherwise
prejudice the due administration of justice.
E.D. Pa. R. Crim. P. 53.1(a). Though the scope of this Rule is
broader than Rule 3.6 of the Pennsylvania Rules of Professional
Conduct, it does not apply to civil proceedings in this Court.
16

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260 F.3d 183, 192 (3d Cir. 2001); Littlejohn v. BIC Corp., 851
F.2d 673, 678 (3d Cir. 1988).

The public interests which

underscore the public right of access have been summarized by the
Third Circuit:
The 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.
As with other branches of government, the
bright light cast upon the judicial process
by public observation diminishes
possibilities for injustice, incompetence,
perjury, and fraud. Furthermore, the very
openness of the process should provide the
public with a more complete understanding of
the judicial system and a better perception
of its fairness.
Littlejohn, 851 F.2d at 678 (citations omitted).
The public right of access, however, is not absolute.
In re Cendant Corp., 260 F.3d at 194.
access may be rebutted.”

Id.

“The presumption of public

For instance, “[a] party may limit

or condition the public’s access to the information produced
during the course of discovery, by obtaining a protective order
from the court.”

Aetna Cas. & Sur. Co. v. George Hyman Constr.

Co., 155 F.R.D. 113, 115 (E.D. Pa. 1994) (footnote omitted)
(citing Fed. R. Civ. P. 26(c)).

Protective orders “are intended

to offer litigants a measure of privacy, while balancing against
this privacy interest the public’s right to obtain information
concerning judicial proceedings.”

Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994).
17

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“A party seeking a protective order over discovery
materials must demonstrate that ‘good cause’ exists for the
protection of that material.”

Glenmede Trust Co. v. Thompson, 56

F.3d 476, 483 (3d Cir. 1995).

A party can establish good cause

by “showing that disclosure will work a clearly defined and
serious injury to the party seeking closure.”
786.

Pansy, 23 F.3d at

It is essential that the injury to be prevented be shown

with specificity.

Id.

“‘Broad allegations of harm,

unsubstantiated by specific examples or articulated reasoning,’
do not support a good cause showing.”

Id. (citing Cipollone v.

Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)).
Ultimately, in deciding whether good cause exists for a
protective order, i.e., whether a party has shown a clearly
defined and serious injury, the court must employ a balancing
process.

Id. at 787.

What is critical is that a district

court’s “analysis . . . always reflect a balancing of private
versus public interests.”

Glenmede Trust Co., 56 F.3d at 483.

Here, plaintiff seeks a protective order cloaking the
identity of Jane Doe witnesses who are expected to offer
testimony at trial pursuant to Federal Rule of Evidence 4158 in a
mantle of confidentiality.

On this record, plaintiff has not

8

This evidence apparently will consist of testimony
concerning alleged offenses similar to the offense allegedly
committed by defendant in this case.
18

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shown good cause why this information should be protected as to
all witnesses for all purposes.
First, plaintiff’s only argument for protecting the
identities of the Jane Doe witnesses is that the Jane Doe
witnesses themselves may be placed at risk of physical and
psychological harm from media exposure or from overly zealous
fans and supporters of the celebrity defendant.

While this

argument surmises that some type of serious harm may befall
plaintiff’s witnesses, it fails to show how “disclosure will work
a clearly defined and serious injury to [plaintiff herself, as]
the party seeking closure.”
Second, plaintiff’s underlying assertion that all Jane
Doe witnesses may suffer physical and psychological harm from
media exposure or from overly zealous fans and supporters of the
defendant is precisely the type of unsubstantiated broad
allegation of harm said to be insufficient to establish good
cause.

Plaintiff has simply grouped all Jane Doe witnesses in

one category or class claiming that the harm resulting from
disclosure of any information concerning any one witness will
fall with equal impact upon all Jane Doe witnesses.

This type of

stereotypical and non-specific conclusory statement cannot
satisfy the good cause requirement under Federal Rule of Civil
Procedure 26(c).

19

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Finally, significant is the fact that the Jane Doe
witnesses, all but two of whom are represented by counsel,9 have
not requested a protective order in their own right.
For all of these reasons, the plaintiff’s motion for a
protective order keeping confidential the identities of the Jane
Doe witnesses will be denied.

Yet, it may well be that any one

of the Jane Doe witnesses may be able to show, based on their own
individual circumstances, that there is a particularized reason
why a protective order may be appropriate in an individual case.
In order to permit such a showing, the Court will suspend the
operation of the Order denying the request to keep the names of
Jane Doe witnesses confidential for ten days in order to afford
the Jane Doe witnesses an opportunity to seek individual relief,
if they so wish.

C.

Should the Court Enter a Protective Order Cloaking
All Discovery in the Case in a Mantle of
Confidentiality?
Defendant seeks a blanket protective order preventing

the parties and their counsel and agents from publicly disclosing
or discussing all information learned in discovery.

He argues

that a blanket protective order will protect the parties and the

9

One of the unrepresented Jane Does, whose name has already
been disclosed publicly, is a lawyer.
20

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other participants in this case from embarrassment and invasion
of privacy and will help preserve a fair and unbiased jury pool.
With respect to embarrassment, the Third Circuit has
held that “an applicant for a protective order whose chief
concern is embarrassment must demonstrate that the embarrassment
will be particularly serious.”

Cipollone, 785 F.2d at 1121.

It

is true that allegations of, inter alia, sexual assault and
battery, not only by plaintiff, but also by the Jane Doe
witnesses, may cause defendant serious embarrassment.
Embarrassment alone, however, even if serious, does not justify
the cloak of confidentiality over all discovery in this case.
Defendant, as the party seeking protection, must show a nexus
between the potential for serious embarrassment and the
particular information sought to be kept confidential.

In other

words, it does not necessarily follow that because some of the
information disclosed during discovery will cause embarrassment
to defendant, all the discovery should be subject to a protective
order.
In this case, defendant has failed to make a connection
between the embarrassment he risks from disclosure and the
particular items of discovery he seeks to cloak.

In a similar

vein, with respect to defendant’s concerns about invasion of
privacy and the need to preserve a fair and unbiased jury pool,
the basis for these concerns has not been connected to any

21

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particular type of discovery.

Nor has defendant identified, even

by umbrella category, the specific type of discovery which might
lead to embarrassment, invasion of privacy or jury taint.
Given that the defendant failed to connect the private
interests which may be implicated (e.g., embarrassment, invasion
of privacy or jury taint) to any specific discovery item,
defendant has not shown that the private interests in this case
outweigh the public interest in access to these proceedings.
Therefore, on the basis of this record, the Court cannot conclude
that good cause has been shown to warrant a blanket protective
order.10
Finally, two points need to be underscored.

One,

typically, discovery under the Federal Rules of Civil Procedure
is conducted by the parties in private.

Ordinarily a right of

access does not attach to documents exchanged by parties or any
of the pretrial discovery that is not filed with the court.

See

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)
(“[P]retrial depositions and interrogatories are not public
components of a civil trial . . . and, in general, they are
conducted in private as a matter of modern practice. . . .
Therefore, restraints placed on discovered, but not yet admitted,

10

Two days after a hearing on the defendant’s motion for a
blanket protective order, The Associated Press moved to intervene
to oppose the defendant’s motion. The Court will deny this
motion as moot since the defendant’s motion for a protective
order is being denied.
22

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information are not a restriction on a traditionally public
source of information.”).

Nothing in the Court’s ruling today is

intended to prevent the parties from conducting discovery in
accordance with this established procedure.11

Two, the Order

issued by the Court today governing the disclosure of discovery
information and extrajudicial statements by counsel is a work in
progress.

The Court trusts that these measured steps will be

adequate to that task.

Should changed circumstances compel it,

the Court will revisit the issues and will recalibrate the scales
upon which it bases today’s judgment.

III. CONCLUSION
For the foregoing reasons, the Court will deny the
request for a gag order as to the parties, counsel and witnesses.
Instead, the Court adopts Rule 3.6 of the Pennsylvania Rules of
Professional Conduct as Case Management Order 1 applicable to
counsel for purposes of this case.

In so adopting Rule 3.6, the

Court has placed counsel on notice that the provisions of Rule
3.6 may be enforced under the Court’s authority and that
violations of the Rule may lead to the imposition of sanctions.

11

Of course, the parties could on their own, without the
club of a judicial sanction, agree to keep some items of
discovery confidential, see Aetna Cas. & Sur. Co., 155 F.R.D. at
116, so long as the items specifically designated do not involve
information that must necessarily be included in court filings or
disclosed during open court proceedings.
23

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As to plaintiff’s motion to keep confidential the names of the
Jane Doe witnesses, that motion will be denied.

However, the

Court will suspend operation of the Order denying the request to
keep the identities of the Jane Doe witnesses confidential for
ten days in order to afford the Jane Doe witnesses an opportunity
to seek individual relief.

Defendant’s motion for a blanket

protective order will also be denied.
An appropriate Order follows.

24

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND
Plaintiff,
v.
WILLIAM H. COSBY, JR.
Defendant.

:
:
:
:
:
:
:
:
:

CIVIL ACTION
05-1099

ORDER
AND NOW, this 2nd day of June, 2005, it is hereby
ORDERED that:
1.

The Court adopts Rule 3.6 of the Pennsylvania

Rules of Professional Conduct as Case Management Order 1 for
purposes of this case;
2.

Defendant’s motion to compel initial disclosures

(doc. no. 10) is GRANTED.

Plaintiff shall provide the names and

addresses of its Rule 415 Jane Doe witnesses to defendant within
five days;
3.

Plaintiff’s motion for a protective order to

protect the identity of her Rule 415 Jane Doe witnesses (doc. no.
13) is DENIED.

The Court will suspend operation of the Order

denying the request to keep the identities of the Jane Doe
witnesses confidential for ten days;
4.

Defendant’s motion for a protective order (doc.

no. 17) is DENIED;

Case 2:05-cv-01099-ER Document 29 Filed 06/02/05 Page 26 of 26

5.

Defendant’s motion for leave to file a reply

memorandum in support of his motion to compel plaintiff’s initial
disclosures (doc. no. 14) is GRANTED;
6.

Defendant’s motion for leave to file a reply

memorandum in support of his motion for a protective order (doc.
no. 22) is GRANTED; and
7.

The Associated Press’s motion to intervene (doc.

no. 26) is DENIED AS MOOT.
AND IT IS SO ORDERED.

EDUARDO C. ROBRENO, J.

Case 2:05-cv-01099-ER Document 77 Filed 02/28/06 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,

Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
:
:
:
:
:
:
:
:

CIVIL ACTION
No. 05-CV-1099

MOTION OF PLAINTIFF ANDREA CONSTAND TO CONSOLIDATE
Plaintiff Andrea Constant respectfully moves this court, pursuant to Federal Rule of Civil
Procedure 42(a) and for the reasons set forth in the accompanying Memorandum of Law, to
consolidate the action of Constand v. Singer and The National Enquirer, CivilAction No. 06-483
with the instant matter.

Respectfully submitted,

TROIANI/KIVITZ, LLP
BY: DOLORES M. TROIANI
Attorney I.D. 21283
BEBE H. KIVITZ
Attorney I.D. 30253
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Case 2:05-cv-01099-ER Document 77 Filed 02/28/06 Page 2 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S
MOTION TO CONSOLIDATE
Plaintiff, Andrea Constand, respectfully submits the following Memorandum of Law in
support of her Motion to Consolidate.
BACKGROUND
In April, 2005, plaintiff filed the above captioned law suit which arose from a sexual
assault perpetrated upon her by defendant. Thereafter, on February 1, 2006, plaintiff filed suit
against Martin Singer and the National Enquirer, at Civil Action Number 06-483. The initial
complaint seeks damages against Cosby, (hereafter the defendant), for, inter alia, assault and
defamation. The defamation occurred following the assault, when defendant and his agents
accused plaintiff of attempting to extort him. These statements made to various news outlets
form the basis of the defamation count. In discovery, it was learned that Martin D. Singer, one of
defendant’s lawyer was the unidentified “source”, acting on behalf of Cosby, who made the
defamatory statements to Celebrity Justice. Singer was also quoted in other media sources,
stating that plaintiff is a extortionist.
Since the filing of the initial complaint, plaintiff has learned that defendant and the
National Enquirer entered into an agreement to publish a false and defamatory interview of the

2

Case 2:05-cv-01099-ER Document 77 Filed 02/28/06 Page 3 of 7

defendant, which accused plaintiff of “exploiting” him. In the second cause of action, it is
alleged that at the time of publication, the National Enquirer knew or should have known that
Plaintiff was not seeking to extort Cosby but had only requested that he apologize to her and her
mother and that the National Enquirer had reason to credit plaintiff’s allegations because they
agreed to forgo publishing another woman’s similar accusations against Cosby in return for
Cosby’s interview. At the time of the agreement, the tabloid has subjected the other woman to a
polygraph, which indicated that she was truthful. Despite that information, the paper published
Cosby’s statements, which are the basis of the defamation allegations in both lawsuits. At his
deposition, defendant admitted that plaintiff had only asked for an apology and he had in fact
apologized to her. Although Cosby claimed to have told the National Enquirer that plaintiff and
her mother had asked only for an apology, his attorney claimed that he had not.
The deposition of defendant has not been completed; however, Cosby provided sufficient
information to form a basis for a defamation claim against both Martin Singer and the National
Enquirer. Because the statute of limitations for plaintiff’s defamation claim ran in early February
as against Singer and in March as against the National Enquirer, Plaintiff filed a separate
defamation action, captioned Constand v. Singer and The National Enquirer, Civ. Action No 06483 in this Court (hereinafter, “Constand v. Singer and The National Enquirer”). Had there not
been this time constraint, plaintiff would have joined Singer and the National Enquirer as
additional defendants. Because her claim against Singer and the National Enquirer, arise from

3

Case 2:05-cv-01099-ER Document 77 Filed 02/28/06 Page 4 of 7

the same transaction or occurrence and bear a logical relationship with the Plaintiff’s claims
against Defendant in this case, Plaintiff now moves the Court to consolidate the actions.
ARGUMENT
A. Plaintiff’s Action against Singer and the National Enquirer Involve Common
Questions of Law and Fact and, accordingly, Consolidation is Appropriate.
Federal Rule of Civil Procedure 42(a) provides:
When actions involving a common question of law or fact
are pending before the court, it may order a joint hearing or trial
of any or all the matters in issues in the actions; it may order all the
actions consolidated; andit may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.

It is within the Court’s discretion to consolidate actions involving “a common question of law or
fact.” To determine whether multiple claims arise from a common question of law or fact, the
Court may look to whether a “logical relationship” exists between claims. See Miller v Hygrade
Food Prods. Corp. 202 F.R.D. 142, 144 (E.D. Pa. 2001). A logical relationship exists if both
actions involve the same factual and legal issues or where “they are offshoots of the same basic
controversy between the parties.” Xerox Corp. v. SCM Corp., 576 F.2d 1057, 1059 (3d Cir.
1978).
It the instant case, the commonality of the two actions is readily apparent. Here, the basic
controversy arises out of a sexual assault committed by defendant and, at least in the case of
Singer, the actions of his agents, in attempting to protect his image and to destroy plaintiff’s
credibility following the public revelation of the assault. The defamation and related claims in
this lawsuit and in Constand v. Singer and The National Enquirer are not only “offshoots” of that
conduct, they are in fact, the same incident. In the instant lawsuit, Plaintiff asserts that

4

Case 2:05-cv-01099-ER Document 77 Filed 02/28/06 Page 5 of 7

Defendant sought to defame her by besmirching her reputation and motives in Celebrity Justice
and the National Enquirer. Discovery in this case – which is yet to be completed – has revealed
that the wrongful campaign to defame Plaintiff began with defendant and extended to other
participants, specifically to Martin Singer and the National Enquirer. The second action,
Constand v. Singer and The National Enquirer, addresses that wrongful conduct. In summary,
both this lawsuit and that against Martin Singer and the National Enquirer, arise out of
Defendant’s sexual assault of the Plaintiff. Both law suits contain defamation claims arising out
of the Defendant’s campaign to silence her and attribute wrongful motivations to her actions.
Both actions involve the same actors, and the same defamatory statements made in the same
publications. Plaintiff, Cosby, Singer, representatives of the National Enquirer and the woman
whose story was not published by the National Enquirer are all witnesses in both suits. Neither
suit can be tried without extensive testimony as to the actions of the other defendants. The
allegations in the complaints are virtually the same and the witnesses will be the same in both
cases. There should be little dispute that both cases involve common questions of both law or
fact and, accordingly, Plaintiff’s Motion to Consolidate should be granted.

B. Consolidation of the Actions will not Prejudice Defendant and will result in
Judicial Economy.
In determining whether multiple actions should be consolidated, the court
‘must balance the benefits of judicial economy and expediting the
litigation against the possibility of prejudice.” ’ Smithkline
Beecham, 2001 WL1249694, at 5 (quoting Kerley v. Great Lakes
Dredge & Dock Co., 1996 WL 131136, at 1 (E.D. Pa. 1996)); see
also Rosario v. SCM Group USA, Inc., 2003 WL 21982116, at 1
5

Case 2:05-cv-01099-ER Document 77 Filed 02/28/06 Page 6 of 7

(E.D. Pa. 2003) (“Consolidation is at the discretion of the trial
court and “should be permitted where the consolidation of separate
actions presenting common questions of law or fact will promote
convenience and economy in judicial administration.”).

Janovici v. DVI, Inc., 2003 WL 22849604, 3 (E.D. Pa. 2003). It deserves little discussion that a
single trial of both this case and that of Constand v. Singer and The National Enquirer, would
promote judicial economy. As explained above, the facts in both cases involve the same actors
and the same defamatory statements made on the same dates. Separate trials would entail
duplication of both the Court’s and the parties’ resources. It makes economic sense that both
cases be tried as a single matter. Since the evidence in both cases will be the same, there is no
potential of prejudice to the Defendant. For all these reasons, Plaintiff respectfully requests this
Court to grant her Motion for Consolidation.
CONCLUSION
For all the foregoing reasons, Plaintiff Andrea Constand respectfully requests this Court
to grant her Motion for Consolidation.
Respectfully submitted,
TROIANI/KIVITZ, LLP
BY: DOLORES M. TROIANI
Attorney I.D. 21283
BEBE H. KIVITZ
Attorney I.D. 30253
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

6

Case 2:05-cv-01099-ER Document 77 Filed 02/28/06 Page 7 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,

:
CIVIL ACTION

:
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
:
:
:
:
:
:

No. 05-CV-1099

ORDER
And Now this

day of March, 2006, upon consideration of Plaintiff’s Motion to

Consolidate, supporting Memoranda of Law and any response thereto, Plaintiff’s motion is
GRANTED and it is hereby ORDERED pursuant to Federal Rule of Civil Procedure 42(a) that
Constand v. Singer and The National Enquirer, Civ. Action No. 06-483 shall be consolidated
with the instant matter under Civil Action 05-CV-1099.
BY THE COURT:

Robreno, J

Case 2:05-cv-01099-ER Document 77-1 Filed 02/28/06 Page 1 of 1

CERTIFICATE OF SERVICE
I hereby certify that on February 28, 2006, I filed electronically with the United States
District Court For The Eastern District of Pennsylvania and via United States First Class Mail
the undersigned were served in the following manner, a true and correct copy of : Motion of
Plaintiff Andrea Constand to Consolidate along with the Memorandum Of Law In Support Of
Plaintiff’s Motion To Consolidate and Certificate of Service.
NAME

MANNER

Jennifer B. Jordan, Esquire
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103

Via First Class Mail

Patrick J. O’Connor, Esquire
Cozen O’Connor
1900 Market Street
Philadelphia, PA 19103

Via First Class Mail

Andrew D. Schau, Esquire
Patterson Belknap Webb & Tyler, LLP
1133 Avenue of the Americas
New York, NY 10036

Via First Class Mail

Martin D. Singer, Esquire
2049 Century Park East
Suite 2400
Los Angeles, California 90067

Via First Class Mail

Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
By:_________________________
Bebe H. Kivitz
I.D. No. 30253
Dolores M. Troiani
I.D. No. 21283
Attorneys for the Plaintiff
38 North Waterloo Road
Devon, Pennsylvania 19333
(610) 688.8400

Case 2:05-cv-01099-ER Document 14 Filed 04/22/05 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
:
:
:
:
:
:
:
:

No. 05-cv-1099

DEFENDANT’S MOTION FOR LEAVE TO FILE
REPLY MEMORANDUM IN SUPPORT OF HIS
MOTION TO COMPEL PLAINTIFF’S INITIAL DISCLOSURES
Defendant respectfully moves for leave to file the attached reply memorandum in support
of his Motion to Compel Plaintiff’s Initial Disclosures (Defendant’s “Motion to Compel”). A
reply is necessary to correct certain misstatements in Plaintiff’s Memorandum of Law in
Opposition to Defendant’s Motion to Compel. The misstatements concern issues beyond the
scope of the Motion to Compel.

Dated: April 22, 2005

s/ Patrick O’Connor
Patrick J. O’Connor
George M. Gowen III
COZEN O’CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant

Case 2:05-cv-01099-ER Document 14 Filed 04/22/05 Page 2 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendant.

:
:
:
:
:
:
:
:
:

No. 05-cv-1099

REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S
MOTION TO COMPEL PLAINTIFF’S INITIAL DISCLOSURES
Defendant respectfully submits this reply memorandum to correct certain misstatements
in Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Compel Plaintiff’s
Initial Disclosures (Defendant’s “Motion to Compel”).
Plaintiff now states that she never intended to conceal from Defendant the identity of her
alleged “Jane Doe” witnesses. Instead, she contends that her counsel informed Defendant’s
attorneys, at a March 23, 2005 meeting between counsel, that she would not disclose the names
until after the Court rules on her “Motion to Protect the Identity of Rule 415 Jane Doe
Witnesses.” Plaintiff’s account of the March 23, 2005 meeting is inaccurate. At that meeting,
Plaintiff’s counsel stated that Plaintiff would disclose the identities of her alleged witnesses
within 14 days of the meeting. She did not indicate that she intended to condition her disclosure
on receipt of a protective order.
Fourteen days came and went, as did the deadline for Plaintiff’s initial disclosures, but
Plaintiff did not disclose the identities of her alleged witnesses. Nor did she did file a motion for

Case 2:05-cv-01099-ER Document 14 Filed 04/22/05 Page 3 of 4

a protective order. In fact, it was only Defendant’s Motion to Compel that provoked Plaintiff to
file a motion for a protective order.
All the while, Plaintiff was pursuing her own discovery demands, including a request for
Defendant’s deposition. In short, Plaintiff unilaterally withheld the required disclosures,
contrary to default discovery procedure and an independent agreement between counsel, without
even moving, let alone receiving, the relief she now seeks.
Moreover, Plaintiff’s statement that Defendant “has now taken the position that he will
not be deposed” is misleading. (Pl.’s Mem. Law Opp’n Def.’s Mot. Compel at 2 n.2.) Rather, in
an April 11, 2005 letter, Defendant’s counsel stated that he “will not be producing Defendant for
a deposition while Plaintiff is concealing the very identity of the witnesses with whom she
intends to confront him.” (Ex. A at 2.) Defendant is not refusing to be deposed. His position is
that he should not be deposed until Plaintiff provides the threshold disclosures required in every
civil case, to allow litigants to prepare for and conduct discovery. In other words, his position is
precisely the position that he expressed in this Motion to Compel.1
Ultimately, however, it appears that Plaintiff now concedes that Defendant is entitled to
the information she is concealing. The dispute now appears to be about Plaintiff’s demand for
unilateral confidentiality. Defendant will address that demand in his response to Plaintiff’s
motion. In the interim, however, there being no dispute concerning Defendant’s right to know

1

Regrettably, Plaintiff’s inaccurate characterization of Defendant’s position was repeated
in an article published in the Philadelphia Daily News on April 20, 2005. (Ex. B.)
2

Case 2:05-cv-01099-ER Document 14 Filed 04/22/05 Page 4 of 4

the identity of Plaintiff’s witnesses, his Motion to Compel should be granted.

Dated: April 22, 2005

s/ Patrick O’Connor
Patrick J. O’Connor
George M. Gowen III
COZEN O’CONNOR
1900 Market Street
Philadelphia, PA 19103
215.665.2000
Andrew D. Schau
PATTERSON, BELKNAP,
WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
212.336.2000
Attorneys for Defendant

3

Case 2:05-cv-01099-ER Document 14-1 Filed 04/22/05 Page 1 of 3

EXHIBIT A

Case 2:05-cv-01099-ER Document 14-1 Filed 04/22/05 Page 2 of 3
PHILADELPHIA
ATLANTA
CHARLOTTE
CHERRY HILL
CHICAGO

V
\

1
W

NEW YORK
NEWARK
SAN DIEGO
SAN FRANCISCO
SEATTLE

^V^TCk I
\*\~/t-L.l ^

COZEN

DALLAS
DENVER
HOUSTON

O

LAS VEGAS

.
ix-vrk
CONNOR

TRENTON
WASHINGTON, DC
WEST CONSHOHOCKEN

ATTORNEYS

LONDON
LOS ANGELES

WICHITA
WILMINGTON

A PROFESSIONAL CORPORATION

1900 MARKET STREET

PHILADELPHIA, PA 19103-3508

215.665.2000

800.523.2900

215.665.2013 FAX

www.cozen.com

PATRICK J. O'CONNOR
Direct Phone 215.665.2024
Direct Fax
215.665.3701
poconnor@cozen.com

April 11,2005

VIA FACSIMILE
Bebe H. Kivitz, Esquire
Troiani/Kivitz, L.L.P.
38 North Waterloo Road
Devon, PA 19333
Re:

Constand v. Cosby. 05-CV-1099 (E.D. Pa.2005)

Dear Bebe:
I received your April 6, 2005 letter, by fax, and the attached Rule 26(f) report and initial
disclosures. I must say that I am disappointed with your continued lack of cooperation in this
case.
On three separate occasions, on March 24, March 31, and April 4, 2005, you submitted to
me a proposed submission to the Court, labeled a "Preliminary Scheduling Order." In three
separate letters, dated March 31, April 1, and April 6, 2005,1 replied and reiterated that, if you
propose to submit something to the Court, it should be a report of our March 23, 2005 planning
meeting, which Rule 26(f) requires us to draft and submiljointly. You repeatedly refused to
address my concern and instead kept proposing the same "document," which was the nonnarrative "Scheduling Order." Thus, I was quite surprised to learn that, on April 6, 2005, you not
only abandoned the effort to negotiate and jointly make a submission to the Court, but you also
submitted the very "Report Following Rule 26 Conference" that you previously refused even to
acknowledge. In other words, under the aegis of Rule 26(f), you submitted to the Court a
document that you never once proposed to me inform, let alone content. You gave me no
opportunity to provide Defendant's position on the subjects of the Report, to be included therein.
The misleading and erroneous content of your submission explains your tactics. First, in
your Report, you imply that your submission of a unilateral report is justified by my alleged
refusal to cooperate, but the truth is that I never even had the chance to comment on your Report.
Second, you state in your Report that I withdrew agreement that "all" motions be filed by the end

Case 2:05-cv-01099-ER Document 14-1 Filed 04/22/05 Page 3 of 3

Bebe H. Kivitz, Esquire
April 11, 2005
Page 2
of discovery, but I never agreed to such a broad provision in the first place. Frankly, without
knowing exactly which motions will be necessary in this case, why would either of us agree not
to file any, other than motions in limine, after discovery? You also misrepresent our settlement
discussions. In sum, instead of addressing the comments I made repeatedly, in good faith, in my
letters to you, you seized upon a pretext for filing a unilateral report, to avoid them.
Plaintiffs initial disclosures constitute an even more flagrant violation of the Federal
Rules of Civil Procedure. Rule 26(a)(l) mandates, in no uncertain terms, that each party "must,
without awaiting a discovery request, provide to other parties ... the name and, if known, the
address and telephone number of each individual likely to have discoverable information that the
disclosing party may use to'support its claims." Fed. R. Civ. P. 26(a)(l) (emphasis added).
Plaintiff has not moved for relief from this fundamental requirement. In fact, at our March 23
meeting, you told Mr. Schmitt and me that you would disclose the names of your witnesses
within 14 days. Nevertheless, in her initial disclosures Plaintiff refused to disclose either the
name or address of nine of its witnesses, flouting its obligations under the rules and your
agreement with me.
Also at our meeting, you promised to provide us with copies of the audiotape recordings
of Defendant in Plaintiffs possession, within 14 days. You have not done so. Please provide the
tapes as soon as possible. Your insistence on deposition priority is meritless. Perhaps you are
right that it is time to raise this issue with the Court. In any event, we certainly will not be
producing Defendant for a deposition while Plaintiff is concealing the very identity of the
witnesses with whom she intends to confront him.
We wish to take the depositions of Plaintiff s parents and Ms. Sprague. Please inform me
whether you will arrange to produce them for deposition. If so, please provide me with several
possible dates in May and June and the location where they will be produced.
Finally, attached is Defendant's First Request for Production of Documents and Things.
Very truly yours,
COZEN O'CONNOR

PATRICK jyO'CONN

PJOC:jk
cc:

John P. Schmitt, Esquire (w/ encl.)
Andrew D. Schau, Esquire

Case 2:05-cv-01099-ER Document 14-2 Filed 04/22/05 Page 1 of 2

EXHIBIT B

Casedeclines
2:05-cv-01099-ER
Document 14-2 Filed 04/22/05 Page 2 of 2Page 1 of 1
Court papers: Cosby
deposition

Posted on Wed, Apr. 20, 2005

Court papers: Cosby declines deposition
By NICOLE WEISENSEE EGAN

weisenn@phillynews.com

Bill Cosby is refusing to be deposed in the sex-assault civil case that has been filed against him by a former Temple
University employee, papers filed in federal court here yesterday say.
"Defendant has now taken the position that he will not be deposed - despite earlier discussions between the parties
concerning back-to-back depositions of defendant and plaintiff," a footnote in the paperwork said.
Andrew Schau, one of Cosby's attorneys, would not comment on whether his client is refusing to be deposed.
"We will respond to that when we file our legal papers," Schau said yesterday.
Cosby accuser Andrea Constand's attorneys made the statement in a memorandum denying that they are refusing to
turn over the names of nine women who say Cosby drugged and/or sexually assaulted them, too.
Dolores Troiani and Bebe Kivitz, Constand's lawyers, said in the memo that they will give Cosby the women's names,
addresses and phone numbers once the judge rules on their motion for a protective order to keep the identities secret
from the media.
Troiani and Kivitz provided a list of expected witnesses to the attorneys but identified nine of the women only as "Jane
Does" and their contact as Joyce Dale, an attorney in Media. The list does contain the cities where the women live, which
include Las Vegas; Toledo, Ohio, and Corralitos, Calif.
"The anticipated testimony of the Jane Doe witnesses relates to the obviously sensitive subject matter of sexual assaults
and/or druggings," Troi-ani and Kivitz wrote.
"Of equal concern is that disclosure of the witness' identities may place them at risk of further physical and psychological
harm from media exposure or from overly zealous fans and supporters of the celebrity defendant."
Constand, 31, has accused Cosby of drugging and sexually assaulting her at his Elkins Park, Montgomery County,
mansion in January 2004.
She reported it to police a year later. In February, Montgomery County District Attorney Bruce L. Castor Jr. declined to
file criminal charges against the entertainer. Constand filed her civil suit last month.

''<* 2005 Philadelphia Daily News and wire service sources. All Rights Reserved.
blip: / Av w w. p h i 11y. c o m

http://www.philly.eom/mld/dailynews/news/local/l 1439000.htm?template=contentModule... 4/22/2005

Case 2:05-cv-01099-ER Document 37 Filed 07/07/05 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND
Plaintiff,
v.
WILLIAM H. COSBY, JR.
Defendant.

:
:
:
:
:
:
:
:
:

CIVIL ACTION
05-1099

ORDER
AND NOW, this 6th day of July, 2005, it is hereby
ORDERED that:
1.

The Motion of Jane Doe Witnesses to Protect

Disclosure of Their Names Outside of this Litigation (doc. no.
33) is DENIED;1 and
1

The Court’s June 2, 2005 Memorandum in this case set forth
the appropriate standard to be applied to a motion for a
protective order:
“A party seeking a protective order over
discovery materials must demonstrate that
‘good cause’ exists for the protection of
that material.” Glenmede Trust Co. v.
Thompson, 56 F.3d 476, 483 (3d Cir. 1995). A
party can establish good cause by “showing
that disclosure will work a clearly defined
and serious injury to the party seeking
closure.” [Pansy v. Borough of Stroudsburg,
23 F.3d 772, 786 (3d Cir. 1994).] It is
essential that the injury to be prevented be
shown with specificity. Id. “‘Broad
allegations of harm, unsubstantiated by
specific examples or articulated reasoning,’
do not support a good cause showing.” Id.
(citing Cipollone v. Liggett Group, Inc., 785
F.2d 1108, 1121 (3d Cir. 1986)). Ultimately,
in deciding whether good cause exists for a
protective order, i.e., whether a party has

Case 2:05-cv-01099-ER Document 37 Filed 07/07/05 Page 2 of 3

2.

Plaintiff’s Motion to Extend the Suspension Period

of the Court’s Order Regarding the Identity of Jane Doe Witnesses
as to Jane Doe No. 8 (doc. no. 32) is DENIED.2

shown a clearly defined and serious injury,
the court must employ a balancing process.
Id. at 787. What is critical is that a
district court’s “analysis . . . always
reflect a balancing of private versus public
interests.” Glenmede Trust Co., 56 F.3d at
483.
Constand v. Cosby, No. Civ.A.05-1099, 2005 WL 1324883, at *7
(E.D. Pa. June 2, 2005).
With this standard in mind, the Court finds that the
allegations of harm by each of the Jane Doe witnesses are
unsubstantiated broad allegations insufficient to establish good
cause. First, no affidavits have been provided by any of the
Jane Does to support their counsels’ description of the possible
harm from disclosure. Thus, the allegations are factually
unsupported. Second, while disclosures may prove annoying and
potentially embarrassing, these factors do not supply the
requisite quantum to trump the public interest in access to court
proceedings.
Finally, two observations are on point. One, because
the Court will not protect the identities of the Jane Doe
witnesses from disclosure, it does not mean that the parties are
required to disclose them. As the Court pointed out in its June
2, 2005 Memorandum and Order, pretrial discovery is ordinarily
conducted in private and its fruits are not made public unless
they are filed (or made part of a filing) with the Court. This
well-established procedure, which does not involve the Court, is
available to the parties. Two, it may well be that specific
items for which discovery is sought, i.e., medical, educational
or criminal records, or other particularlized information of a
sensitive nature, may be subject to a narrowly tailored
protective order in the future, in which event, the Court will
conduct a Rule 26(c) analysis, if and when, an appropriate
application is made.
2

To the extent that plaintiff’s counsel seeks to represent
Jane Doe No. 8 in a request for an extension of time during which
the disclosure of the identity of Jane Do. No. 8 is protected by
the Court, counsel has not entered an appearance on behalf of
Jane Doe No. 8 and therefore is not authorized to represent her

Case 2:05-cv-01099-ER Document 37 Filed 07/07/05 Page 3 of 3

AND IT IS SO ORDERED.

EDUARDO C. ROBRENO, J.

in this case.
3

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:
ORDER

AND NOW, this ______ day of ______________ 2005, upon consideration of
Defendant’s Motion for Protective Order, and opposition thereto, it is hereby ORDERED and
DECREED that said motion is DENIED.

BY THE COURT:

_______________________
J.

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 2 of 16

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PLAINTIFF’S RESPONSE TO
DEFENDANT’S MOTION FOR PROTECTIVE ORDER
Plaintiff denies that defendant is entitled to a protective order, and in support of her
Response to Defendant’s Motion, plaintiff relies on the accompanying Memorandum of Law,
which is incorporated by reference as if fully set forth herein.

Respectfully submitted,
TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 3 of 16

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER
Plaintiff Andrea Constand (“Constand”), through her counsel, Troiani/Kivitz, L.L.P.,
submits this Memorandum of Law in support of her opposition to Defendant’s Motion for a
Protective Order.
It is undisputed that defendant, William H. Cosby, Jr. (“Cosby”), is a powerful man with
unfettered access to worldwide media outlets. As is the case with all celebrities, defendant
employs numerous agents to cultivate a public image that he can use to promote himself and to
prompt the public to view programs in which he appears, to attend events in which he is featured,
and to buy products he promotes. Defendant now complains that the limited media coverage
given to this case will embarrass him and will taint the potential jurors. In fact, each night
defendant assails those very jurors with images of himself specifically designed as noted above
to portray him as the type of individual who would not engage in the behavior alleged herein.

1

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 4 of 16

Unfortunately for defendant’s victims, he is Bill Cosby, not Dr. Huxtable. Defendant urges this
court to silence his accusers, while he continues to make the public believe that he is the
characters he portrays. He continues to lecture the public at “town meetings” about morality.
See, Exhibit “A”. Further, he promotes himself on a web site, sponsored by the William Morris
Agency, the very agency he used in an attempt to dissuade plaintiff from revealing the
allegations of this complaint. See, Exhibit “B”.
Defendant’s position is particularly disingenuous in that no one has more aggressively
courted media coverage in this matter than defendant himself. When plaintiff’s allegations
surfaced in the media -- through no actions on plaintiff’s part -- defendant, his attorneys, and
other representatives immediately began making statements in their selected publications.
For example, at the inception of the criminal investigation, criminal defense counsel is
quoted as saying, “It’s pointedly bizarre because it’s been a year since it allegedly happened, and
she is coming forward”; counsel’s phrases concerning plaintiff’s allegations, “ pointedly bizarre”
and “utterly preposterous”, were repeated nationwide in innumerable stories about the criminal
investigation then in progress. See, Exhibit “C”. Defendant’s representatives spoke to Celebrity
Justice, see, Exhibit “D”, and on February 7, 2005, Celebrity Justice reported:
Cosby was under the impression the mother wanted money, so to keep the
encounter quiet, he called the mother back. We’re told she asked Cosby to help
pay for her daughter’s education and to generally help her out financially, and this
conversation occurred before the accuser ever contacted police.
See, Exhibit “E”. Indeed, this allegation forms the basis of plaintiff’s defamation claim, because
defendant and his representatives knew this was not true at the time they uttered the statement.
Defendant himself offered the National Enquirer an “exclusive story”: “Bill Cosby Ends
His Silence: My Story!”, setting forth nationally defendant’s revised version of what had
occurred: “Looking back on it, I realize that words and actions can be misinterpreted by another

2

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 5 of 16

person, and unless you’re a supreme being, you can’t predict what another individual will do.”
He stated further about learning of the criminal investigation: “My heart sank. I was at home,
and these claims hurt me.” Finally, in order to reinforce defendant’s “spin” on the claims,
defendant said: “…celebrities are often put in positions where their roles as mentors can lead to
trouble. ‘Sometimes you try to help people and it backfires on you and then they try to take
advantage of you…People can soil you by taking advantage.’” See, Exhibit “F”. This represents
a concerted effort by defendant to solicit national coverage, and to reinforce the public’s
perception of the untrue allegations in the February 7, 2005, Celebrity Justice publication.
Defendant’s strategy is clear. Defendant aggressively solicited media coverage with the
publications of his choice -- to set forth his “version” and attempt to convince the public that he
might be a victim here -- a position vehemently disputed by plaintiff. Ironically, however, as
soon as the media coverage became more neutral, covering topics such as plaintiff, her
background, and her allegations, and other complainants came forward to support her, defendant
has moved to suppress any coverage. Although defendant seeks to portray the coverage of this
matter as pervasive and a threat to his ability to obtain a fair and impartial jury, it appears the
Fox Network disagrees. On April 29, 2005, the panel on the program, Fox News Watch
discussed why the media was not covering this case. See, Exhibit “G”.
In considering this motion, as well as Plaintiff’s motion for protective order, this Court
must balance the “strong common law presumption of access….against the factors militating
against access.” Bank of America National Trust v. Hotel Rittenhouse, 800 F.2d 339, 344 (3rd
Cir. 1986). In this case, due to defendant’s unique position, he is attempting to control the media
so that the public does not get any glimpse into what he has done, as opposed to the carefully
cultivated image, with which his handlers have permeated the airwaves for over thirty-five (35)

3

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 6 of 16

years. The reasons defendant offers for this motion is that a protective order will prevent him
from being embarrassed, and, further that without it the jury pool will be tainted. In fact, the
prospective jury pool, if tainted, has been rendered so by defendant’s relentless publicity team.
In his motion, defendant has chosen to highlight only those media items which he views
as unflattering to him. This presents a skewed and one-sided portrait of the coverage. Defendant
makes much of the fact that plaintiff’s counsel spoke out in defense of their client. Counsel has
an ethical obligation to protect their client, particularly following the defendant’s use of the
District Attorney’s decision to not prosecute him. Defendant seized upon this decision, and
disseminated it as if it proved that plaintiff’s allegations were baseless. Nationwide, his attorney
was quoted as saying, “Mr. Cosby is gratified that [the District Attorney], after a thorough
investigation conducted with the full cooperation of Mr. Cosby, has determined not to file
charges.” See, e.g., Exhibit “H”. Defendant’s protestations bespeak a double standard. When
plaintiff’s counsel pointed out that the criminal investigation was irrelevant to the civil suit, and
not as thorough as defendant wished the public to believe, plaintiff’s attorneys are accused of
“cultivating” and “aggressively courting” the press and “adding fuel to the fire.” Yet, defendant
has used the National Enquirer “exclusive” interview to “set the record straight”.
Defendant repeatedly points to the unquestionably inadmissible fact that the District
Attorney’s failure to charge him is proof that plaintiff’s allegations are false. In fact, defendant
has cited in his Initial Disclosures the Montgomery County District Attorney’s Office February
17, 2005, Press Release as one of the documents “that he may use to support his defenses.” The
press release is also quoted in defendant’s memorandum of law. It is well settled, however, and
defendant undoubtedly knows that the Third Circuit held that evidence of non-prosecution is

4

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 7 of 16

inadmissible in a civil action to disprove the allegations which give rise to criminal charges. As
the Court stated:
Further, prosecutorial discretion may take into account many other factors not
relevant in a civil suit. At best, the evidence of non-prosecution is evidence of an
opinion by the prosecutor. The opinion of a layperson, as the prosecutor was in
this case, however, is inadmissible if it based on knowledge outside the
individual's personal experience. (citations omitted)
American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 325 (3rd. Cir.
1985).
Defendant’s request for a protection order and plaintiff’s request for limited
confidentiality differ in that defendant simply wants to avoid embarrassment, while plaintiff
seeks to protect a clearly established public policy. Women who find themselves in plaintiff’s
position must be encouraged to come forward and report their complaints to the appropriate
authorities. There must be public confidence that they will find justice, if not in the criminal
courts, then in the civil ones. To silence women and their attorneys who dare to challenge the
powerful will have a chilling effect on the First Amendment rights of all victims. The tactic of
smearing the victim is so well-documented that the federal government and most states have
passed laws in an attempt to prevent the use of this weapon.
At common law, evidence of a female rape complainant's general reputation for
morality and chastity was deemed admissible on the issue of consent. The result
of this common law rule was notorious abuse of victim witnesses by aggressive
defense counsel who essentially put the victim on trial. In response to such
unjustifiable abuses, the federal government and the states enacted statutes known
as Rape Shield laws. Rape Shield laws were intended to end the abuses fostered
by the common law rule by limiting the harassing and embarrassing inquires of
defense counsel into irrelevant prior sexual conduct of sexual assault
complainants. (citations omitted)
Commonwealth of Pennsylvania v. Nieves, 399 Pa. Super. 327, 582 341 (Pa. Super. 1990).
Plaintiff and those women brave enough to come forward to tell of their own experiences
with defendant are already intimidated in the face of defendant’s unlimited resources. By way of

5

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 8 of 16

example, Tamara Lucier Green, Esquire, an attorney, approached the media on her own initiative
to report a similar sexual assault incident with defendant, after she heard defendant’s counsel’s
characterizations concerning plaintiff’s allegations. Ms. Green, who does not know plaintiff,
reported that defendant gave her what he represented to be “Contac” medication for a cold.
After ingesting it, she alleged that it was not Contac, but instead was a drug or narcotic that
severely affected her motor control. Defendant then attempted to sexually assault Ms. Green.
She resisted and, after a struggle, defendant left her apartment, leaving behind two $100 bills on
her table. The defense immediately went into high gear, attacking Ms. Green and delving into
her background for anything negative they could find, regardless of its relevance to her
allegations. Defendant’s attorney e-mailed a Philadelphia Daily News Reporter, and produced a
New York Post story that discussed a California Bar Association complaint filed against Ms.
Green. A defense representative also provided the Philadelphia Daily News and other media,
including the Greta Van Susteren Show, with names and phone numbers of California lawyers
they claimed had “damaging information” about Ms. Green. Defendant’s attorneys also
commented regarding Ms. Green’s background to the Greta Van Susteren Show and provided the
same information to her program, which information was discussed on the show and dismissed
by its panel of attorneys. See, Exhibit “I”. Defendant endorsed this tactic. He is quoted in his
Enquirer “exclusive”: “It’s bothersome that when my side revealed her background we were
blamed for throwing dirt...I guess that a celebrity trying to protect himself is not supposed to use
every ounce of protection.” The reporter wrote, “Cosby added that he doesn’t regret having his
lawyers reveal information about Green, saying if he didn’t the media onslaught ‘could have
been even worse’.” See, Exhibit “F”.

6

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 9 of 16

Defendant’s position is clear. If defendant is manipulating and controlling the media
coverage, there is no problem with it. Defendant can convene reporters and offer exclusive
interviews; defendant can speak to audiences all over the country, proclaiming himself to be a
moral man, above reproach. It is simply the fact that the media is neutral and ready to offer a
counter-balance to his self-image, and is also prepared to publish plaintiff’s account as well as
the accounts of the Jane Doe witnesses, that troubles defendant.
To grant defendant’s motion is even more inequitable because defendant is a public
figure, who lectures to the American public about issues such as morality, and entertains
audiences with his humor. Indeed, defendant even made “drugging” a topic of laughter at one of
his performances, asking an audience participant if she would claim to be “drugged” by him.
See, Exhibit “J”. There is nothing amusing about these allegations; yet, defendant feels he can
gain more support by belittling plaintiff’s claims to his fans. On the other hand, if other
complainants report that they were also given drugs or substances -- such as Tamara Green -- it
lends credence to plaintiff’s account and it becomes impossible for defendant to make jokes
about it. Thus, the true reason why defendant now requests a protection order is so that he can
continue to control and manipulate the type of media coverage he gets.
Defendant has bi-coastal legal counsel in place, media representatives, publicists, and
other paid representatives and staff to portray the image he wants portrayed. Plaintiff did not ask
to be in this position. She finds herself a plaintiff here because of defendant’s actions. To deny
the press access to plaintiff’s side of the case, and still allow defendant to present a one-sided
public persona, would be grossly unfair. Defendant claims the media coverage of this case will
embarrass him, and is a threat to a fair and impartial jury. In fact, to deny the public access to
this information, while permitting defendant to continue to inundate potential jurors with

7

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 10 of 16

defendant’s unilateral version of his character and his actions here, denies plaintiff a fair and
impartial jury.
Defendant argues that plaintiff seeks to prohibit the identities of the other complainants
from becoming public and, therefore, both sides should be given the benefit of confidentiality.
Plaintiff does not seek to prevent defendant and the public from knowing their allegations, or
from allowing defendant to challenge their claims. It is only their names that plaintiff seeks to
protect. Indeed, plaintiff seeks to spare the Jane Does from the same media treatment she
received, i.e. repeated phone calls made by reporters at her home; reporters surrounding her
house; alleged “journalists” attempting to gain access to her home by delivering flowers; her
photograph and name plastered on television shows and in newspapers without her consent.
The result of the balancing test is far different when applied to plaintiff’s motion for
protective order. Most media outlets have already acknowledged that the public interest in
encouraging victims to come forward far outweighs the public’s right to know the victim’s
identities. Universally, female victims who speak out against their sexual offenders are vilified.
Any past peccadillo or innuendo, true or false, admissible or not, is circulated to the mass media.
The result of this character assassination behavior is that more often then not, women in this
position remain silent for years. They suffer the shame, self doubt, and humiliation without
consolation because they fear retaliation. When they do come forward after years of agonizing,
the abusers express bewilderment as to why the victim did not subject herself to this revictimization sooner. It becomes clear that intimidation heaped upon one victim of a powerful
man causes other similarly situated victims to delay reporting, or to never report.

8

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 11 of 16

The complainants in this case voice a common theme--they were victimized after being
conned by the Cosby image. There is no doubt that the publicity in this case has benefited society
in general. It has prompted women, some of whom are now named as Jane Does, to contact
plaintiff’s counsel1 . Defendant seeks to cut off plaintiff’s public access in order to stem the flow
of this type of information, and to keep such claims a “secret”. To subject the Jane Does to
public scrutiny will silence them and others like them forever. None of these women are here by
choice. Defendant chose to conduct himself in this manner. Accordingly, when balancing the
motions, the scales tip in favor of plaintiff and the public interest in their right to know.
ARGUMENT
Defendant’s Motion for a Protective Order should be denied because the Public’s
Right to Access Pretrial Discovery outweighs this Defendant’s Personal Interest in
Avoiding Embarrassment.
From defendant’s point of view, the starting point of his Motion for a Protective Order is
the embarrassment he may suffer upon public revelation of the alleged acts. He disregards the
fundamental presumption of our judicial system, which is public access, not confidentiality.
That is where the analysis must start. The Courts of this Circuit have acknowledged the
“pervasive common law right “to inspect and copy public records and documents, including
judicial records and documents.” Batsis v. Temple University, 1994 U.S. Dist Lexis 10106, 2
(E.D. Pa. 1991) (citing United States v. Crideni, 648 F.2d 814, 819 (3d Cir. 1981). The
presumption of access, however, may be rebutted by balancing it against factors that militate
against access. Id. at 3.

1

Of course, plaintiff anticipates that defendant will argue that all of the Jane Doe witnesses should have contacted
the police or district attorney. This argument, however, overlooks the fact that both defendant and plaintiff have
received the documents generated during the criminal investigation, and the majority of Jane Doe witnesses whose
names were provided to the police, were never interviewed by them.

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Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 12 of 16

Defendant, however, noticeably ignores the balancing process. He relies upon Cipollone
v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986) to support his proposition that
embarrassment constitutes good cause for entering a protective order where such embarrassment
is “particularly serious.” Defendant never explains why his embarrassment should be deemed so
great that the public’s right of access should be quashed. The balancing analysis is discussed by
the Court in Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994). In Pansy, a former
police chief commenced a civil rights suit against the borough of Stroudsburg and others. After
the parties reached a confidential settlement agreement, newspapers moved to intervene and
modify the confidentiality order. The lower court denied the newspapers’ motions, which the
Court of Appeals reversed. Id. at 775. In determining the newspapers’ motion to modify the
settlement agreement, the Pansy court looked to the law related to protection of pretrial
discovery and held that protective orders
are intended to offer litigants a measure of privacy, while
balancing against this privacy interest the public’s right to obtain
information concerning judicial proceedings… Protective orders
and orders of confidentiality are functionally similar, and require
similar balancing between public and private concerns.
Id. at 786. The balancing process is critical to the determination and “should be applied by
courts when considering whether to grant confidentiality orders at any stage of litigation,
including settlement.” Id. at 787. The degree of protection placed upon disclosure of discovery
“depends on a judicial balancing of the harm to the party seeking protection (or third persons)
and the importance of disclosure to the public.” Id. The Pansy court further noted that privacy
interests may also be protected, however, such interests “are diminished when the party seeking
protection is a public person subject to legitimate public scrutiny.” Id. The court held:
A factor which a court should consider in conducting the good
cause balancing test is whether a party benefiting from the order of

10

Case 2:05-cv-01099-ER Document 20 Filed 05/09/05 Page 13 of 16

confidentiality is a public entity or official. Similarly, the district
court should consider whether the case involves issues important to
the public. If a settlement agreement involves issues or parties of a
public nature, and involves matters of legitimate public concern,
that should be a factor weighing against entering or maintaining an
order of confidentiality. See, e.g., FTC v. Standard Fin.
Management Corp., 830 F.2d 404, 412 (1st Cir.1987) (threshold
for sealing is elevated because the case involves a government
agency and matters of public concern). On the other hand, if a
case involves private litigants, and concerns matters of little
legitimate public interest, that should be a factor weighing in favor
of granting or maintaining an order of confidentiality.
Id. at 788.
Thus, whether to grant Defendant’s motion for a protective order turns upon the outcome
of the balancing test. The first consideration is what kind of defendant is defendant here. Is he a
private individual or a public figure? Does the public have any interest in him? Defamation law
provides a precise analogy on this point. In New York Times Co. v. Sullivan, 376 U.S. 254
(1964), the United States Supreme Court announced that a public official may not recover in a
defamation action absent a showing "that the statement was made with 'actual malice' that is,
with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at
279-80. Subsequently, the Court applied the same standard to public figures. See, Gertz v. Robert
Welch, Inc., 418 U.S. 323, 342 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). The
court in Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1292 (C.A.D.C., 1980)
addressed the question of how to determine whether a party is a “public figure”. It opined:
From analyzing Gertz and more recent defamation cases, we
believe that a person can be a general public figure only if he is a
"celebrity" his name a "household word" whose ideas and actions
the public in fact follows with great interest.

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Id. See also, Kroll Associates v. City and County of Honolulu, 833 F. Supp. 802, 806 (D. Hi.
1993). Certainly, defendant falls within the “public figure” role carved out by the court. His
own brief reinforces that conclusion:
Unfortunately, because the Defendant is a famous comic
personality and actor, and because Plaintiff’s attorneys have been
aggressively courting media coverage of the Plaintiff’s allegations
in the national and local press, plaintiff’s allegations, and the
allegations of anonymous “Jane Doe” witnesses, have attracted a
frenzy of media attention. (emphasis added)
Defendant’s Brief at 2. Defendant is such a well-known public figure that the press, the media,
and the public are intensely interested in his activities.2 Defendant’s description about himself,
however, does not go far enough. Defendant is not just a “comic personality and actor” but he is
also a community leader, an individual who serves on the board of major universities, takes
stands on public matters, and is interviewed by media hosts concerning his opinion. Defendant
is without question a public figure who generates intense public interest. That status weighs in
favor of granting public access to discovery in this case. See also, Willie Nelson Music Co. v.
Commissioner of Internal Revenue, 85 T.C. 914, 916 (1985) (motion for protective order denied
despite assertions by singer/celebrity that criminal liability may subject him to embarrassment
and emotional distress); Condit v. Dunne, 225 F.R.D. 113 (S.D. N.Y. 2004) (court refused to
impose protective order on discovery where former Congressman sued television commentator
about statements made about possible involvement in a woman’s disappearance); Flaherty v.
Seroussi, 209 F.R.D. 295, 300 (legitimate public interest to have access to court proceedings
outweighed embarrassment that might be caused by release of video-taped deposition).

2

That the plaintiffs’ lawyers have “courted” the media is merely defendant’s spin on plaintiff’s efforts legitimately
to respond to media inquires about events already of interest to it, or commented upon by defendant or his
representatives.

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In weighing the personal interests of defendant against the interest of public access, it
must be kept in mind that if the Court were to seal discovery in this case, defendant’s public
relations machine would continue to paint him as a picture of virtue. Defendant will continue to
talk, lecture, and promote his own “defense” merely by promoting the image he has fostered,
while the plaintiff’s lips must remain sealed about the evidence she has learned. The roots of this
paradox lie in defendant’s public figure status; he always has an audience. It is also the most
compelling basis for ignoring his allegations of embarrassment and denying his Motion for a
Protective Order. Any embarrassment the evidence may cause defendant will quickly dissipate
through the force of his own public relations, should the allegations not be proven. On the other
hand, such embarrassment shall be of little consequence if plaintiff prevails here. Balancing
these concerns against the right of access to pretrial discovery, Plaintiff submits should result in a
denial of Defendant’s Motion for a Protective Order.
CONCLUSION
For all of the foregoing reasons, Plaintiff Andrea Constand respectfully requests this
Court to deny Defendant’s Motion for a Protective Order.

Respectfully submitted,
TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

13

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CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that on the date indicated below, a true and correct copy
of Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Protective Order,
was served via regular First Class mail, postage prepaid, on the following:
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

TROIANI/KIVITZ, L.L.P.

/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff
Date: May 9, 2005

14

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
MARTIN SINGER, ESQUIRE
and
THE NATIONAL ENQUIRER
Defendant

:
: CIVIL ACTION
:
: NO. 06-CV-483
:
:
:
:
:

PLAINTIFF’S RESPONSE TO DEFENDANT, THE NATIONAL ENQUIRER’S
MOTION TO DISMISS AND MOTION TO STRIKE
Plaintiff makes this her response to defendant, The National Enquirer’s Motion to Dismiss
and Motion to Strike and prays this Honorable Court deny the Motions and in support thereof,
Plaintiff incorporates by reference the memorandum of law attached hereto as if fully set forth
herein.
Respectfully submitted,

TROIANI/KIVITZ, LLP
BY: DOLORES M. TROIANI
Attorney I.D. 21283
mailto:dmt@troianikivitz.com
BEBE H. KIVITZ
Attorney I.D. 30253
mailto:bhk@troianikivitz.com
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 2 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
MARTIN SINGER, ESQUIRE
and
THE NATIONAL ENQUIRER
Defendant

:
: CIVIL ACTION
:
: NO. 06-CV-483
:
:
:
:
:
ORDER

And now, this

day of

, 2006, upon consideration of Defendant,

National Enquirer’s Motions to Dismiss and to Strike and any response thereto, the Motions are
DENIED.
BY THE COURT:

Robreno, J.

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 3 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
___________________________________
:
ANDREA CONSTAND
:
:
CIVIL ACTION NO. 06-483
Plaintiff,
:
:
v.
:
:
MARTIN D. SINGER and
:
THE NATIONAL ENQUIRER
:
:
Defendants.
:
___________________________________ :

MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO DISMISS OF
DEFENDANT NATIONAL ENQUIRER
Plaintiff Andrea Constand has filed a Complaint raising claims of defamation and false
light invasion of privacy against The National Enquirer (“Enquirer”). As detailed in her
Complaint, attached as Exhibit A, Plaintiff’s claims arise from a sexual assault perpetrated
against her by William H. Cosby, Jr.

The circumstances of the assault were reported by The

National Enquirer in late February, 2005 based on its exclusive interview of Mr. Cosby. Exhibit
B, attached. To obtain the Cosby interview, the Enquirer agreed to refrain from publishing an
article reporting on a similar incident of sexual assault in which another woman (Beth Ferrier)
asserted that she, too, had been drugged and sexually assaulted by Cosby. Although the Enquirer
was aware that Plaintiff had made no effort to extort, exploit, or obtain money from Mr. Cosby,
the published article compared Plaintiff’s claims to past “extortion plots” against Mr. Cosby and
further implied that Plaintiff had engaged in similar exploitive conduct to obtain “hush money.”
The National Enquirer (“Enquirer”) has moved to dismiss Plaintiff’s Complaint on the
grounds of improper venue under Fed. R. Civ. P. 12(b)(3), and failure to state a claim under Fed.

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 4 of 17

R. Civ. P. 12 (b)(6). The Enquirer has further moved to strike Plaintiff’s request for punitive
damages under Fed. R. Civ. 12(f). None of the Enquirer’s claims have merit.

BACKGROUND AND SUMMARY:
A. Plaintiff has raised claims of defamation and false light invasion of privacy against
Defendant The National Enquirer (“Enquirer”), a nationally distributed tabloid newspaper. See
Complaint, Exhibit A.
B. Plaintiff’s Complaint against the Enquirer is one of two related cases in this judicial
district that raise claims arising out of the sexual assault allegedly perpetrated against her by
William H. Cosby, Jr. See Constand v. Cosby, Civil Action No. 05-CV-1099. Motions to
Consolidate these cases are pending before the Court.
C. Venue in this case properly lies in this Court pursuant to U.S.C. §1391(a)(2).

The events reported by the Enquirer wholly derived from a sexual assault
that occurred here. The underlying sexual assault occurred in Cheltenham
Township, Montgomery County, Pennsylvania that is within this federal
judicial district.

These underlying events were also the subject of an investigation by
Cheltenham Township police, who interviewed and took statements from
Mr. Cosby, from Plaintiff, and from numerous Philadelphia area residents
who knew and/or had worked with Plaintiff at Temple University.

Statements by the Montgomery County prosecutor, Bruce Castor, were
quoted directly by the Enquirer in its published article. See Exhibit B.

Defendant’s defamatory statements were published in Philadelphia which
is where Plaintiff had lived and worked and where she has friends and
business associates before who she was defamed and her reputation
damaged.

D. The allegations of Plaintiff’s Complaint are more than sufficient to support her claims
of defamation and false light invasion of privacy and to further support that Defendant published

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 5 of 17

its article deliberately, knowingly, and in reckless disregard for the known truth. See Plaintiff’s
Complaint, attached as Exhibit A.

Defendant’s article likened Plaintiff’s conduct in this case to another
occasion where Mr. Cosby had been the victim of “an extortion plot” and
it ascribed similar exploitive behavior to Plaintiff. See Exhibit A;
Complaint ¶¶ 26-27, 44.

Defendant knew when it published this article that these assertions as to
Plaintiff were false; that Plaintiff had not sought or accepted cash from
Mr. Cosby; that extortion was not her objective; that Cosby had
volunteered an apology which was enough for Plaintiff; and that Plaintiff’s
allegations of sexual assault against Cosby were supported by the similar
credible account of another woman, Ms. Beth Ferrier, who stated that she
too had been sexually assaulted and drugged by Mr. Cosby. Complaint ¶¶
21, 23-25, 27-28, 29, 34, 35-36, 42-43, 45.

When it published its defamatory article, Defendant also knew that it had
submitted to Cosby an unpublished article concerning the Beth Ferrier
assault and that it had negotiated with Cosby to withdraw the Ferrier
article from publication in exchange for Cosby’s exclusive interview.
Complaint ¶¶ 23-24, 26.

Venue is Proper in the Eastern District of Pennsylvania
The instant case is before the federal District Court pursuant to the Court’s diversity
jurisdiction under 28 U.S. C. §1332. See Plaintiff’s Complaint, ¶¶ 1- 5, attached as Exhibit A.
Venue is based on 28 U.S.C. §1391(a)(2) which states that a federal civil action premised on
diversity of citizenship may be brought in any judicial district in which a “substantial part of the
events or omissions giving rise to the claim occurred.” Id. Pursuant to this statutory test, venue
may be properly placed in more than one judicial district. Dollar Discount Stores of America v.
Petrusha, 2001 U.S. District Lexis 10877 (E.D. Pa. 2001).

Moreover, the determination of

venue under 28 U.S. C. 1391(a) does not require the reviewing court to find the “single ‘best
forum’.” Id.; Bowdoin v. Oriel, 1999 U.S. Dist. Lexis 6832 (E.D. Pa. 1999). Rather, it is
required only that the selected venue be one in which a substantial part of the events occurred.

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 6 of 17

This “substantiality” test is designed to assure that a defendant “is not haled into a remote district
having no real relationship to the dispute.” Cottman Transmission Systems v. Martino, 36 F.3d
291, 294 (3rd Cir. 1994); Dollar Discount Stores, 2001 U.S. Dist. Lexis 10877, at *5. See, Bartle
v. Giant Eagle, Inc. 1991 U.S. Dist. Lexis 10954 (E.D. Pa. 1991) (“when venue is proper . . . an
action may not be dismissed even if there are other proper forums in which the action could be
brought. ” ( footnote omitted)).
Plaintiff’s Complaint more than meets the substantiality test for venue in this judicial
district: (1) the events reported by the Enquirer wholly derive and are premised on a sexual
assault that occurred here; (2) these events spawned a criminal investigation in which police in
this judicial district took a statements from plaintiff, residents of this area who knew or had
worked with plaintiff at Temple University, Mr. Cosby and others; (3) the results of this
investigation were reviewed and reported by a county prosecutor within this judicial district, who
was referred to and directly quoted by the Enquirer in its tabloid article, Exhibit B, attached; (4)
this is the community in which Plaintiff lived and worked at the time of the underlying assault ;
(5) this is the community in which Mr. Cosby resided when the incident occurred and where he
owns a home; (6) the Enquirer article was published and distributed nationally including in this
judicial district and (7) this is the community in which Plaintiff had friends and business
associates before whom she was defamed by the Enquirer’s published article. Exhibit A,
Complaint ¶¶ 10-15, 20, 41, 47-48.
By way of contrast, Defendant asserts that venue lies only in Texas (where Mr. Cosby
was interviewed) or New York (the Enquirer’s claimed “location”). Defendant has not identified
a single event that occurred in New York. Rather, Defendant asserts only that the defamatory
article, which quotes directly from a Pennsylvania prosecuting official, was written by an

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 7 of 17

individual “located outside the Commonwealth of Pennsylvania.”

Motion to Dismiss of

Defendant Enquirer, at p. 2., paragraph 2; and p. 5, paragraph 2. Since there is no suggestion by
Defendant that any event ever actually occurred in New York, Defendant plainly has not met the
“substantiality” test under 28 U.S.C. 1391(a)(2). Accordingly, there is no New York federal
judicial district that has venue over this action. Cottman Transmission Systems, 36 F.3d 291, 294
(venue cannot lie in judicial district that has no real relationship to the dispute). Defendant’s
assertion that venue lies in the federal district courts of New York must therefore be summarily
rejected.
Defendant also asserts Texas as a proper venue on the grounds that Houston was the
situs of the Enquirer’s interview of Mr. Cosby. Defendant does not claim that the selection of
Houston as an interview site was anything other than an arbitrary selection of convenience for a
one-time event. Indeed, Defendant makes no claim that any other event occurred in the state of
Texas, nor does he represent that the Enquirer ever had sufficient contact with Texas to even
satisfy its long arm statute. See Tex. Civ. Prac. & Rem. §17.042 (2005). In any event, based on
this single interview about events that occurred in Pennsylvania, the federal courts of Texas do
not have venue under the substantiality test of 28 U.S. C. §1391. Moreover, even if Defendant
could meet the substantiality test for a Texas venue, that would not preempt venue in this federal
judicial district or support dismissal of Plaintiff’s Complaint. See, Bartle v. Giant Eagle, Inc.
1991 U.S. Dist. Lexis 10954.

1

Defendant’s Motion to Dismiss Under Fed. R. Civ. 12(b)(6) Must Be Denied.

1

Defendant does not seek a transfer of venue to Texas, or any other jurisdiction, nor does he
claim that another venue would be more convenient. See 28 U.S.C §1404(a). Indeed, given this
Court’s familiarity with the issues raised by this case, and given that the related case of Constand
v. Cosby is already pending here, a transfer of venue would only undermine judicial efficiency
and economy.

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 8 of 17

A. Plaintiff’s claims are not precluded by a stipulation offered months earlier in another
case and context and where the stipulation is not in any event a part of the record that may
be considered on a Motion to Dismiss.
Defendant asserts that Plaintiff’s Complaint fails to state a cause of action for defamation
or false light invasion of privacy. In support of this assertion, Defendant argues that the
statements published in the Enquirer article are incapable of defamatory meaning, and that the
elements of the tort of false light invasion of privacy are not adequately set forth in the
Complaint. Defendant also argues at great length that the Complaint must be dismissed because
its allegations are fatally inconsistent with a stipulation entered by Plaintiff’s counsel four
months earlier, during the second day of Mr. Cosby’s deposition in Constand v. Cosby, CV No.
6-483.2 See Defendant’s Motion to Dismiss at p. 4, paragraph 4 and p. 5, paragraph 2.
According to Defendant this stipulation, which was entered after an off the record conference
and has been taken entirely out of context, nonetheless precludes Plaintiff from arguing,
asserting, claiming or proving that the Enquirer knew when it published its article that that
“Plaintiff’s objective was to obtain an apology from Cosby, not to extort him,” Complaint ¶34,
or that the Enquirer knew from conversation with Cosby that Plaintiff and her mother in
January, 2005, had asked only for an apology and not for money. Complaint, ¶25. For the
reasons that follow, the out of context stipulation on which Defendant relies, if it may even be

2

Cosby’s deposition was taken in two segments. Part I of the deposition occurred on
September 28 and September 29, 2005. The deposition was then aborted because Cosby,
claiming attorney client privilege, refused to answer numerous questions, including questions
concerning the Enquirer interview. These claims of privilege were rejected by the Court on
Plaintiff’s Motion to Compel and the Cosby deposition resumed on March 28 and March 29,
2006. At the beginning of the Cosby Deposition, Part II, Mr. Cosby’s lawyer provided Plaintiff
with the negotiated agreement, conditions, and protocol under which Mr. Cosby gave the
Enquirer interview. Discovery in accordance with the federal rules will further establish what
witnesses were present, what recording devices were used, and what pre-publication drafts were
submitted for third party review. See attached sealed Exhibit C, Deposition Part II 3/28/06 p.4-5,
p.37, lines 13-14.
Mr.

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 9 of 17

considered here, does not have the preclusive or binding import argued by Defendant. See
attached sealed Exhibit D, Cosby Deposition 9/29/05 p. 225, lines 2-10, 229, lines 12-24, 231
lines 10-18, p. 232, lines 1-24; see generally p. 225-233.
The standard of review on a Motion to Dismiss mandates that the Court accept as true the
factual allegations of the Plaintiff’s Complaint. The allegations must also be viewed in the light
most favorable to the non-moving party. Christopher v. Harbury, 536 U.S. 403 (2002); Brody v.
Hankin, 145 Fed. Appx. 768 (3rd Cir. 2005); Herick v. Rodale, 2004 U.S. Dist. Lexis 9912,
(E.D. Pa. 2004). A Motion to Dismiss under Rule 12(b)(6) may not be granted unless it clearly
appears that Plaintiff has alleged no set of facts which, if proved, would entitle her to relief.
Hishon v. King & Spaulding, 467 U.S. 69 (1984); Morse v. Lower Merion School District, 132
F.3d 902 (3rd Cir. 1997); Markowitz v. Northeast Land Co. 906 F.2d 100 (3rd Cir. 1990).
A Motion to Dismiss allows for only limited record review. The documents that may be
considered consists of the factual allegations of the Complaint, exhibits or documents appended
or referred to in the Complaint, matters of public record, and authentic documents attached as
exhibits to the Defendant’s Motion to Dismiss provided they were relied upon by Plaintiff in
formulating her claims. Pension Benefit Guaranty Corp. v. White Consolidated Industries, Inc. ,
998 F.2d 1192 (3rd Cir. 1993); Downing Properties Associates v. McDonalds Corp., 1998 U.S.
Dist. Lexis 8067 (E.D. Pa. 1998). The Court, however, may not examine a transcript of a prior
proceeding for the purpose of adducing facts or making a determination as to the truth of those
facts. Southern Cross Overseas Agencies v. Wah Kwong Shipping Group, Ltd. 181 F.3d 410 (3rd
Cir. 1999) (court cannot look to another court’s opinion or to the transcript of a prior proceeding
to find facts on a motion to dismiss.)

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 10 of 17

Defendant has appended to its Motion to Dismiss a discovery motion from the Cosby
case.3 This document, from another, albeit related, lawsuit is not properly considered here.
Indeed, the sealed document appended by the Defendant Enquirer as Exhibit A to its Motion to
Dismiss is not even the document it refers to, quotes, and relies upon in its Motion and
Memorandum of Law. See Enquirer’s Motion to Dismiss at p. 4-5.

4

In any event, because

neither document was relied upon by Plaintiff in formulating her Complaint, neither can be
considered on a Rule 12(b)(6) Motion to Dismiss. In Re Rockefeller Center Properties, Inc., 184
F.3d 280 (3rd Cir. 1999).5

3

Although there is no sealing order in this case, the Enquirer has unilaterally determined to file
both its pre-trial motion to dismiss as well as the accompanying exhibits under seal. Defendant’s
gratuitous extension of the sealing order to the Motion to Dismiss is neither justified nor
warranted. Even if the Exhibits themselves were properly filed under seal, the Enquirer’s
Motion was not. The Enquirer significantly does not claim that sealing is necessary to protect
the identity of a confidential source. Moreover, the filing of a Motion to Dismiss under seal by a
nationally distributed newspaper in a defamation action is wholly inconsistent with the First
Amendment and with the responsibilities and duties of a free press. Leucadia v. Applied
Extrusion Technologies, Inc., 998 F.2d 157, 164 (3rd Cir. 1993) (there is a presumptive right of
public access to pre-trial motions of a non-discovery nature; that presumption applies to
preliminary and dispositive motions and includes the materials filed in connection with those
motions.)
4

The Document cited and quoted by the Defendant Enquirer in its Motion to Dismiss is “Pl’s
Reply Memorandum of Law in Response to Defendant Cosby’s Opposition to Plaintiff’s Motion
to Compel at p. 6.” The document actually attached to this Motion, filed with the Court, and
served on counsel is a wholly separate document entitled “Plaintiff’s Reply to the National
Enquirer’s Memorandum of Law in Opposition to Plaintiff’s Motion to Compel.” These are two
different documents. Indeed, the Exhibit actually attached by Defendant has no page 6.
5

Defendant has not specifically asked to have its Motion to Dismiss treated as a summary
judgment motion pursuant to Fed. R. Civ. P. 56. While the Court may determine to consider
Defendant’s additional documents, representations, and evidentiary assertions, it may do so only
if it converts Defendant’s Rule 12(b) motion into a Rule 56 summary judgment motion. Under
well-settled Third Circuit practice, a conversion of this nature requires express notice to Plaintiff.
In Re Rockefeller Center Properties, Inc., 184 F.3d at 288-290. Such notice may not be inferred
nor is the right to express notice of conversion waived where opposing counsel appends
additional materials in its response to the defendant’s Rule 12(b) motion. Id. at 288-290.

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 11 of 17

Nonetheless, even if the Court were to consider Defendant’s additional materials, there
would be no grounds for dismissal. Defendant posits that a stipulation made by Plaintiff’s
Counsel during the first part of Mr. Cosby’s deposition in September, 2005, based upon a
representation of an attending counsel who was not counsel of record and who is now a fact
witness, constitutes a binding evidentiary assertion that precludes Plaintiff from proving the
itemized allegations of her complaint. The stipulation, neither on its not face nor read in context,
precludes Plaintiff from proving at trial that the Enquirer well knew when it published its article
that Plaintiff had not extorted Cosby; that it knew she had not sought “hush money” from him;
and that it knew she had not exploited Cosby or taken advantage of his celebrity status. Further at
the time of publishing the article the Enquirer knew of additional evidence, which would
corroborate Plaintiff’s claims, and it deliberately withheld that evidence from publication.
Complaint, ¶ 21. Not only has the stipulation been taken wholly out of context, but also it was
entered more than four months before this Complaint was filed and without the benefit of
additional discovery. Most significantly, however, the stipulation does not, even on its face,
negate other sworn testimony showing that the Enquirer was told in advance of publication that
Plaintiff and her mother had accepted as sufficient the apology that was volunteered to them, and
that they had not made monetary or extortionist demands. Exhibit D (sealed) at N.T. p. 225, lines
2-10, p. 229 lines 18-24.
B. Plaintiff has properly and fully set forth in the well pleaded allegations of her Complaint
the causes of action for Defamation and False Light Invasion of Privacy.
The Enquirer claims that Plaintiff has failed to state a cause of action for defamation
because the article it published was not capable of defamatory meaning and because the
Enquirer’s published statements could not be said to apply to Plaintiff. See Exhibit A. Defendant
argues that the comments it reported as those of Mr. Cosby were merely accurate statements of

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 12 of 17

Cosby’s subjective state of mind and that no reference to Plaintiff was made or implied. The
Enquirer, however, has misrepresented the allegations of Plaintiff’s Complaint, the contents of
the article it published, and the contextual meaning and artful juxtaposition of its harmful,
damaging and defamatory statements. See Sprague v. American Bar Association, 2003 U.S.
Dist. Lexis 15518 (E.D. Pa. 2003) (defamatory statements must be read in context, including
whether the comments are deliberately cast in an ambiguous light “in the hope of insinuating a
false import”). Viewed as a whole, a published article may be so “fraught with modifiers” and
other “clues” that no reasonable reader could doubt the defamatory meaning and intent. Id. at
22, n. 13.
A tabloid newspaper such as the Enquirer cannot mask its defamatory import by parsing
and isolating its written statements so as to misrepresent the hurtful and false impression that the
statements, when read in the context in which they were published, were plainly calculated to
produce. Id. See also Weber v. Lancaster Newspapers, Inc. 878 A.2d 63 (Pa. Super. 2005) (an
article that places a “sting” or “spin” materially greater than a truthful retelling has defamatory
meaning and must go to the jury). Thus, for example, the Enquirer argues that there is no
suggestion in its article that Plaintiff intended to “extort” Cosby, or that her objective was
extortion. In support of its assertion, the Enquirer argues that “exploit” is not “extort” and that
the reference to Mr. Cosby’s so-called “subjective state of mind” not to give in to people who
tried to “exploit” him did not suggest that Plaintiff had an extortionist motive.

6

See Enquirer

Motion to Dismiss at p.10, line 4.

6

Defendant’s argument devolves into a dictionary assignment. While the contextual dictionary
definitions it presents are admittedly different, neither “extortion” nor “exploitation” are
reasonably calculated to create a favorable impression. See Enquirer’s Motion to Dismiss at 11.

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 13 of 17

Defendant conveniently ignores the context in which the extort-exploit references were
made: First, the Enquirer article reports Cosby’s furious reaction to the prospect of a civil suit by
the “young Canadian woman.” Then, in the very same sentence, the article reports Cosby’s
“vow” to stand his ground against anyone who would “exploit” him. The article goes on to give a
detailed favorable description of Mr. Cosby as a “real-life” “father figure.” The article proceeds
to refer to Plaintiff’s anticipated lawsuit and, in the very next sentence, reports that Cosby has
previously been the victim of an “extortion plot.” The next paragraph repeats that Cosby will not
give in to “people who try to exploit him because of his celebrity status.” The next paragraph
refers to a “published report” of a phone call from the young woman’s mother and Cosby’s
“impression” that the woman was after “hush money.” The next two paragraphs give detailed
descriptions of Plaintiff’s age, the fact that she is a former pro basketball player, and that she was
employed at Temple University when she met Cosby. Immediately to the right of these
paragraphs is a picture of Cosby with the bold letter quote “Sometimes you try to help people
and it backfires on you.”
Plainly, a reasonable person in the intended audience for this publication would conclude
that Plaintiff had taken advantage of, and attempted to “extort” “hush money” from Cosby. The
defamatory meaning is clear and unequivocal. Accordingly, the defamation count must go to the
jury. Indeed, the Enquirer’s accusation of extortion may even be found to constitute defamation
per se. Frederick v. Reed Smith Shaw & McClay, 1994 U.S. Dist. Lexis 1809, *37 (E.D. Pa.
1994) (a statement that imputes that Plaintiff has committed a criminal offense constitutes
defamation per se). See, Dougherty v. The Boyertown Times, 547 A.2d 778, 783 (Pa. Super
1988) (if there is a defamatory interpretation of the statement, the case must go to the jury even if
there is a plausible innocent interpretation). .

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 14 of 17

Nor is there any merit to Defendant’s claim that the article cannot be said to apply to
Plaintiff. While it is true that the article does not identity her by name, the exquisite factual
detail concerning her age, location, employment at Temple University, career as a basketball
player, how and where she met Cosby, and the criminal complaint and investigation, including
quotes from the Pennsylvania prosecutor, leave no room to doubt that the person referred to is
Plaintiff.
The Enquirer also implies that it is not culpable for defamation because it only published
what Cosby represented as true. This is not a ground for dismissal. Under Pennsylvania law, a
newspaper cannot escape liability for defamation merely by asserting that it accurately reported
the defamatory statements of others. Norton v. Glenn, 580 Pa. 212 (2004)(Pennsylvania does not
recognize a neutral reporting privilege; newspaper cannot defend in a defamation case by
claiming that the defamatory statements were not its own.) Accord, Weber v. Lancaster
Newspapers, 878 A.2d 63.

In any event, the well pleaded facts of the Complaint, which here

must be accepted as true, are more than sufficient to support that the Enquirer knew that Plaintiff
had not asked for hush money; that she had not exploited Cosby; that she had not extorted
anything; and that she had never been part of an “extortion plan.” Despite this knowledge it
deliberately and recklessly defamed her.
The Enquirer claims as well that Plaintiff has failed to establish a cause of action for the
tort of false light invasion of privacy. Pennsylvania has adopted the Restatement definition of
false light invasion of privacy. Wecht v. PG Publishing Co., 725 A.2d 788 (Pa. Super. 1999).
The elements of the cause of action are (1) publicity that places the person before the public in a
false light; (2) the false light must be highly offensive to a reasonable person; and (3) knowledge
or reckless disregard as to the false light that in which the Plaintiff has been place. Id.

Like

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 15 of 17

defamation, the tort of false light invasion of privacy requires that the complained of statements
impute falsity and concern the Plaintiff. Frederick v. Reed Smith, 1994 U.S. Dist. Lexis 1809 *
42.

7

The publisher of the statements must also know that the statements are false or publish

them in reckless disregard of their falsity. These elements are made out on the face of the
Complaint.
The allegations of the Complaint that the Enquirer published these statements in reckless
disregard for the truth because it knew that Plaintiff had not extorted anything from defendant
are supported by deposition testimony. Exhibit D, N.T. 9/29/05 p. 229 lines 12-24, p.230 2-13.
Indeed, whether or not the Enquirer was also told that Plaintiff “only” wanted an apology is
irrelevant. Enquirer Motion to Dismiss at p. 14. What is crystal clear, and well pleaded, is that
whatever historical stipulations may have been entered during the partial Cosby deposition on
which Defendant relies, the Enquirer knew that any implication of extortion was fundamentally
false. It knew that because Cosby told the reporter, and because it had information, which it
withheld from publication, that at least one other woman, Beth Ferrier, had made credible claims
of sexual assault under similar circumstances. Complaint ¶ ¶ 21, 24. See Exhibit C, N.T. 3/28/06
pgs. 52-53. These circumstances and the allegations of the Complaint are sufficient to establish
that the Enquirer knew when it published the article that it was false, but that it chose to
recklessly disregard its falsity.
Defendant’s Motion to Strike request for Punitive Damages should be denied.
In its final claim, Defendant urges that Plaintiff’s request for punitive damages in the ad
damnum clause of her Complaint must be stricken because the Plaintiff is precluded from
establishing actual malice.
7

Defendant’s argument, yet again, is wholly premised on the

The tort of false light invasion of privacy does not also require that the statements be
defamatory. Id.

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 16 of 17

presumed preclusion of the historical stipulation in which Plaintiff’s counsel, on the second day
of the Cosby deposition and more than four months before the filing of this Complaint, stated
that “based on the representations of counsel” Mr. Cosby did not tell the Enqurier that the only
thing Plaintiff wanted was apology. Even assuming that this stipulation may be considered here,
the stipulation does not preclude or undermine the well pleaded facts of the Complaint or prevent
Plaintiff from establishing that the Enquirer article’s numerous implications of extortion were
knowingly published by it in deliberate disregard of the truth.
Wherefore, for the foregoing reasons, Defendant Motion to Dismiss and Motion to Strike
should be denied.
Respectfully submitted,
TROIANI & KIVITZ LLP

BY: DOLORES M. TROIANI
Attorney I.D. 21283
mailto:dmt@troianikivitz.com
BEBE H. KIVITZ
Attorney I.D. 30253
mailto:bhk@troianikivitz.com
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Case 2:06-cv-00483-ER Document 15 Filed 05/05/06 Page 17 of 17

EXHIBITS FILED UNDER SEAL

Case 2:06-cv-00483-ER Document 15-1 Filed 05/05/06 Page 1 of 1

CERTIFICATE OF SERVICE

I, Dolores M. Troiani, hereby certify that the foregoing
Plaintiff’s Answer in Opposition to Defendant The National Enquirer’s Motion to Dismiss
and Motion to Strike and Memorandum of Law was filed electronically and
is available for viewing and downloading from the ECF system.
Exhibits were filed Under Seal. I further certify that a true
and correct copy of said document and Exhibits were served via
regular First Class mail, postage prepaid, on the following:
Paul D. Weller, Esquire
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103-2921
Nancy J. Gellman, Esquire
Conrad O’Brien Gellman &
Rohn, P.C.
1515 Market Street
16th Floor
Philadelphia, PA 19102-1916
TROIANI/KIVITZ, L.L.P.

By:_______________________
Dolores M. Troiani
Attorney I.D. No. 21283
Bebe H. Kivitz
Attorney I.D. No. 30253
Attorneys for Plaintiff
Date: May 5, 2006

Case 2:05-cv-01099-ER Document 7 Filed 04/06/05 Page 1 of 4

TROIANI/KIVITZ, L.L.P.
Bebe H. Kivitz, Esquire
I.D. No.: 30253
Dolores M. Troiani, Esquire
I.D. No.: 21283
38 North Waterloo Road
Devon, PA 19333
(610) 688-8400

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PLAINTIFF’S REPORT FOLLOWING
RULE 26 CONFERENCE OF THE PARTIES
Counsel for Plaintiff and Defendant met on March 23, 2005.
The parties discussed for several hours, and verbally agreed to
the dates set forth in the attached Preliminary Scheduling
Order, though following such time, defense counsel has not
agreed that these dates should be set forth in the form of an
order, and, earlier today, withdrew agreement that all motions,
other than motions in limine, must be filed by the close of
discovery.

Plaintiff therefore submits this report

unilaterally, and requests that the enclosure be entered as en
order, and that it supplement any other deadlines set forth in
an order by the Court, following the Rule 16 conference.

Case 2:05-cv-01099-ER Document 7 Filed 04/06/05 Page 2 of 4

Plaintiff will need discovery on at least the following
topics: the sexual assault of January 2004 referenced in
Plaintiff’s Complaint; all statements publicized by Defendant
and/or his authorized representatives or agents concerning this
incident, including the ones referenced in Plaintiff’s
Complaint; the identity of Defendant’s authorized
representatives or agents who made such statements; and, prior
sexual assaults or drugging incidents perpetrated by Defendant,
as well as any settlements entered into which originated from
allegations of sexual assaults or drugging.

In this regard,

Plaintiff will also seek the admissibility of testimony of ten
(10) or more other claimants pursuant to F.R.E. 415, among other
applicable rules, and will seek a limited protective order
pursuant to Rule 26(c) that the names of the other women not be
disclosed to or published by the media.

Defendant has requested

that the entire proceedings be kept confidential pursuant to
protective order; Plaintiff does not believe that this relief
would be appropriate, and opposes such request.
There was not substantive discussion concerning settlement,
nor was there any settlement demand or offer at counsels’
meeting, but Plaintiff’s counsel has offered to attend a
settlement conference with the Court’s Magistrate.

Case 2:05-cv-01099-ER Document 7 Filed 04/06/05 Page 3 of 4

Plaintiff has forwarded her Self-executing Disclosures to
defense counsel as of this date.
Respectfully submitted,
TROIANI/KIVITZ, L.L.P.
/s/ Bebe H. Kivitz
Bebe H. Kivitz, Esquire
Dolores M. Troiani, Esquire
Attorneys for Plaintiff

Case 2:05-cv-01099-ER Document 7 Filed 04/06/05 Page 4 of 4

CERTIFICATE OF SERVICE
I, Bebe H. Kivitz, hereby certify that Plaintiff’s Report
Following Rule 26 Conference of the Parties has been
electronically filed on the date indicated below and is
available for viewing and downloading from the ECF system.

I

hereby further certify that the foregoing pleading was sent via
facsimile and U.S. mail, postage prepaid, on the following:

Patrick J. O’Connor, Esquire
Cozen O’Connor
1900 Market Street
Philadelphia, PA 19103

TROIANI/KIVITZ, L.L.P.

Date: April 6, 2005

/s/ Bebe H. Kivitz
Bebe H. Kivitz
Dolores M. Troiani
Attorney for Plaintiff

Case 2:05-cv-01099-ER Document 7-1 Filed 04/06/05 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND,
Plaintiff
v.
WILLIAM H. COSBY, JR.,
Defendant

:
: CIVIL ACTION
:
: NO. 05-CV-1099
:
:
:

PRELIMINARY SCHEDULING ORDER
AND NOW, this ____ day of __________, 2005, it is ORDERED
as follows:
Discovery
1.
The required Rule 26(a)(1) disclosures shall be
exchanged no later than April 6, 2005.
2.
All discovery shall proceed and continue in such
manner as will assure that all requests for, and responses to
discovery will be noticed, served and completed by December 31,
2005. Discovery may take place thereafter by agreement of the
parties without court approval, so long as the trial will not be
delayed and trial preparation will not unreasonably be
disrupted. No discovery may take place during the trial unless
directed by the court.
2a. Discovery Limitations. Plaintiff will seek
appropriate protective orders regarding the identity of
witnesses who will be called at trial pursuant to Fed.R.Evid.
415 and other applicable rules.
3.
By agreement, plaintiff may serve up to fifty (50)
interrogatories, including subparts to defendant, and defendant
may serve up to fifty (50) interrogatories, including subparts
to plaintiff.
4.
The parties shall comply with the requirements of
Fed.R.Civ.Proc. 26(a) for disclosure of expert witnesses and
plaintiff shall provide their curriculum vitae and reports by
January 15, 2006. Defendant shall provide the curriculum vitae
and reports for their experts by February 28, 2006. All expert
discovery shall be completed by March 31, 2006.

Case 2:05-cv-01099-ER Document 7-1 Filed 04/06/05 Page 2 of 2

Motions
5.
All motions to amend the complaint, or to join or add
additional defendants shall be filed by June 30, 2005, which
assumes defendant shall cooperate in his Rule 26(a)(1)
disclosures as well as with requests by plaintiff to establish
the identities of any potential additional defendants. All
motions for summary judgment or partial summary judgment shall
be filed and served on or before March 31, 2006. Responses
shall be served by April 14, 2006. All motions in limine shall
be filed and served at least fourteen (14) days before the trial
date. All other motions shall be filed and served prior to the
close of the discovery period.

________________________
J.

Case 2:05-cv-01099-ER Document 47 Filed 11/04/05 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA CONSTAND

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
WILLIAM H. COSBY, JR.
Defendant.

CIVIL ACTION
05-1099

CASE MANAGEMENT ORDER 2
AND NOW, this 4th day of November 2005, it is hereby
ORDERED that parties seeking to compel discovery shall file those
requests as follows:
1. Each party shall file any request to compel by
November 21, 2005;
2. Each request shall appear on a separate page,
numbered consecutively;
3. Each request shall quote the specific question and
answer given at the deposition, without argument of counsel;
4. Each question and answer shall be followed by a
pinpoint citation to the deposition transcript, together with the
legal authority supporting the request and a brief explanation;
5. The responding party shall file a response to each
request by December 6, 2005;
6. Each response shall include whether the party
objects in full, objects in part or does not object to the
request, and any objection shall be supported by legal authority

Case 2:05-cv-01099-ER Document 47 Filed 11/04/05 Page 2 of 3

and a brief explanation;
7. Each response shall be on a separate page, numbered
to correspond with the request to which it pertains;
8. The parties requesting discovery may file a
memorandum of law addressing overarching issues, i.e. attorneyclient privilege, Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.
Pa. 1993), and Applied Telematics, Inc. v. Sprint Corp., No. 944603, 1995 U.S. Dist. Lexis 2191 (E.D. Pa. Feb. 22, 1995), type
of objections, as well as a summary of the arguments in the
requests to compel; and
9. Any party opposing the lifting of the seal shall
show cause why the seal should not be lifted by filing a
memorandum of law by December 21, 2005.

Any party supporting the

lifting of the seal shall file a memorandum of law by January 9,
2006.
IT IS FURTHER ORDERED that all requests for discovery,
responses and legal memoranda filed pursuant to this order shall
be filed UNDER SEAL.1
1

The parties in this case have taken the depositions of
plaintiff and defendant. By agreement of the parties, and as is
customary in civil litigation, Seattle Times Co. v. Rhinehart,
467 U.S. 20, 33 (1984), the depositions were taken in private.
Certain issues have arisen, inter alia, concerning the
permissible scope of inquiry, the role of counsel at deposition
and the extent to which a witness may rely upon prior statements
in answering questions. The issues have been brought to the
Court’s attention by way of letters from counsel to the Court.
The Court has reviewed the transcripts of the depositions and
conferred with the parties.
2

Case 2:05-cv-01099-ER Document 47 Filed 11/04/05 Page 3 of 3

AND IT IS SO ORDERED.

EDUARDO C. ROBRENO, J.

The Court has previously recognized the common law
right of access to judicial proceedings in a civil case. See
Constand v. Cosby, 229 F.R.D. 472, 478 (E.D. Pa. 2005) (citing
Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir.
1984)). Concomitantly, the Court has also recognized that the
public’s right of access is not absolute, id. at 479 (citing In
re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001)), and may be
limited or conditioned upon a showing of good cause. Id. at 479
(citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.
1995)). The burden is on the party seeking to limit discovery.
See id. (citing Glenmede Trust Co., 56 F.3d at 483).
It is in the context of a discovery dispute that Court
again is called upon to balance the private and public interests
implicated in this case. The purpose of this protocol is 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. See id. (citing Glenmede Trust Co., 56 F.3d at
483).
3

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