1 IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2 - - -

3 ANDREA CONSTAND, : 2:05-cv-01099-ER

 Plaintiff, : PHILADELPHIA, PA

4 vs. :

 WILLIAM H. COSBY, JR., : June 26, 2015

5 Defendant. : 10:07 a.m.

6 TRANSCRIPT OF MOTION HEARING

 BEFORE THE HONORABLE EDUARDO C. ROBRENO

7 UNITED STATES DISTRICT JUDGE

8 APPEARANCES:

9 For the Movant, GAYLE CHATILO SPROUL, ESQUIRE

The Associated Press: LEVINE, SULLIVAN,

10 KOCH & SCHULZ, LLP

 1760 Market Street, Suite 1001

11 Philadelphia, PA 19103

 (215) 988-9778

12 gsproul@lskslaw.com

13 For the Defendant: GEORGE M. GOWEN, III, ESQUIRE

 COZEN O'CONNOR

14 1900 Market Street

 Philadelphia, PA 19103

15 (215) 665-2000

 ggowen@cozen.com

16

AUDIO OPERATOR: N. PHILLIPPI

17

TRANSCRIBER: JUDI Y. OLSEN, RPR

18

19

20 (Proceedings recorded by electronic sound recording,

transcript produced by transcription service.)

21

22

23 VERITEXT NATIONAL COURT REPORTING COMPANY

 MID-ATLANTIC REGION

24 1801 Market Street - Suite 1800

 Philadelphia, PA 19103

25 (888) 777-6690

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3 ARGUMENT:

 By Ms. Sproul 3, 48

4 By Mr. Gowen 26, 55

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 E X H I B I T S

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NUMBER DESCRIPTION MARKED ADMITTED

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(None marked.)

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1 - - -

2 THE COURT: Okay. Let me hear from the

3 movant.

4 MS. SPROUL: I'm not sure, Your Honor,

5 which one of us is designated as the movant, but --

6 THE COURT: You filed the motion.

7 MS. SPROUL: I filed the motion, right,

8 in 2006.

9 Okay. Your Honor, I'm Gayle Sproul. I

10 represent The Associated Press.

11 In a nutshell --

12 THE COURT: Yeah, why don't you come up

13 here? Yeah, yeah.

14 MS. SPROUL: Thank you, Your Honor.

15 In a nutshell, Your Honor, Mr. Cosby is

16 urging the court to maintain everything in this file

17 that has been sealed -- everything in this case that

18 has been sealed under seal because, first, he claims

19 that the information that's under seal is not a

20 matter of legitimate public concern. He claims that

21 release of the information would invade his privacy

22 and that of third parties. He argues that release of

23 information would undermine the settlement agreement

24 and the judicial process. And he argues that it

25 would prejudice a current proceeding in another

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1 court.

2 That is the case that we referred to as

3 Green 1, Your Honor, which is now pending in the

4 District of Massachusetts. It's a case in which

5 Mr. Cosby has been accused of sexual assault and

6 defamation by three named female plaintiffs.

7 In fact, none of Mr. Cosby's assertions

8 actually demonstrate good cause as that term has been

9 defined in Pansy and Cipollone and Glenmede Trust.

10 First of all, he attempts to portray The

11 AP as some sort of villain that would make improper

12 use of the public contents of a public docket.

13 There's no authority for that

14 proposition, nor does he cite any. News reporting

15 is, of course, not an improper purpose. It's

16 protected by the First Amendment.

17 The test, instead, is whether he's able

18 to demonstrate that he -- not third parties, but

19 he -- will suffer a clearly defined and serious

20 injury from disclosure.

21 The Third Circuit has made clear that

22 it's not just any embarrassment that can be deemed an

23 injury, but a particularly serious embarrassment. I

24 believe it was the court in Cipollone that said any

25 disclosure that a person does not intend tends to

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1 cause some embarrassment. But what he has to show

2 here is a particularly serious injury.

3 In fact, he cannot do that. First, just

4 as an -- just to begin, Rule 5.15, which is the

5 reason that we're here today, is a reflection of the

6 judiciary's commitment to transparency in the courts.

7 Not everything is going to be made public, but it

8 demonstrates also that the passage of time can have

9 an impact on what should be made public.

10 And in this case, it's asking -- it's

11 requiring the court to take a look at everything

12 that's already been sealed and examine it under

13 today's circumstances.

14 THE COURT: Now, you're at somewhat of a

15 disadvantage because you don't know what's under

16 seal.

17 MS. SPROUL: Correct.

18 THE COURT: So --

19 MS. SPROUL: I don't.

20 THE COURT: So you could -- you're

21 arguing somewhat hypothetically at that point.

22 Mr. Gowen knows what's under seal. You do not.

23 MS. SPROUL: I do not.

24 THE COURT: So how does that impact your

25 analysis?

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1 MS. SPROUL: Well, I can't give you --

2 THE COURT: In other words, you're

3 assuming that what's under seal is going to -- I

4 guess for purposes of this argument, you're assuming

5 that it would cause some embarrassment, but it would

6 not be particularly serious embarrassment within the

7 meaning of that term.

8 MS. SPROUL: I am arguing that, and I am

9 arguing -- because, as Your Honor has said, I don't

10 know what's in the record. And I -- I think when a

11 party argues that everything that's under seal has to

12 stay under seal and doesn't take a

13 document-by-document, page-by-page approach, which is

14 what Pansy requires --

15 THE COURT: Um-hmm.

16 MS. SPROUL: -- then it can't be that

17 everything will cause embarrassment.

18 THE COURT: Now, you can tell from the

19 docket that some of it is the briefs and memoranda

20 that lawyers have filed. What do you think of that?

21 MS. SPROUL: Your Honor, I think that

22 they should be unsealed. I mean, one of the things

23 that we didn't say in our brief but -- we were

24 waiting to see what Mr. Cosby had to say -- is that

25 there's a role for redaction in this matter.

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1 What the courts require is, essentially,

2 that, you know, Your Honor -- unfortunately, it falls

3 to you -- has to -- the plaintiff can -- I mean --

4 sorry -- the defendant can suggest what he believes

5 needs to be redacted. He didn't do that here.

6 THE COURT: Um-hmm.

7 MS. SPROUL: But that is the way it

8 should proceed, because only he can say -- and it's

9 important to note at this point, Your Honor, that

10 Mr. Cosby hasn't put in a declaration.

11 THE COURT: Um-hmm.

12 MS. SPROUL: There's no evidence from

13 him directly about any embarrassment in this case.

14 You know, he has -- he took a deposition, and that --

15 that is somewhere, and it's under seal, the parts of

16 it that are on file with the court.

17 We have no -- and Your Honor has no way

18 of judging what he would say --

19 THE COURT: Um-hmm.

20 MS. SPROUL: -- because he has not -- he

21 has not demonstrated that in this proceeding, and I

22 believe he has an obligation to do that.

23 But with respect to briefs and

24 memorandum, I think it's clear that legal argument,

25 you know, any sort of recitation of facts that are

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1 not facts that are unduly sensitive --

2 Mr. Gowen cites in his brief testimony

3 that Mr. Cosby gave about his marriage, about

4 prescription drugs, his sex life, and so on.

5 You know, if those things are unduly

6 sensitive, even without his declaration, it may be

7 that the court will decide that those matters should

8 not be released.

9 But there are many other facts in this

10 case, and they're under seal. And so what we're

11 asking is that -- is that the court follow what the

12 rule is, which is, essentially, that anything that

13 there's no cause for sealing should come out --

14 THE COURT: Um-hmm.

15 MS. SPROUL: -- of the sealing and be

16 made public, available on the docket through PACER to

17 anyone who would like to see it.

18 THE COURT: What do you think of the --

19 we don't have a settlement agreement on the record

20 here. What do you think of the argument that

21 Mr. Cosby entered into a settlement agreement and --

22 with the plaintiff and that this court should honor

23 the agreement that he entered into with another

24 party, that there was some reliance on that?

25 MS. SPROUL: There are two points on

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1 that, Your Honor.

2 First of all, again, we don't have his

3 testimony. We don't have a declaration from him

4 where he says, I relied. We have a brief that says

5 he relied. The settlement agreement has not been

6 given to Your Honor to look at in camera. So there's

7 no evidence of that. There's a brief.

8 But in addition to that, there's two

9 facts that are of importance here. One is that -- or

10 two concepts that are important.

11 One is that the parties cannot divest

12 Your Honor of discretion by making an agreement to do

13 something and keep it confidential.

14 It's very similar to parties in

15 discovery entering into a protective arrangement, a

16 confidentiality agreement, in which they agree to

17 keep things, you know, between themselves. But the

18 court is not required to so order that agreement.

19 The court, in fact, is tasked by the

20 Judicial Conference with, you know, being very

21 cautious about entering into -- about signing

22 something into effect as a protective order.

23 So just because the parties have agreed

24 to it -- and we cite a couple of cases in our

25 footnote; I think it's Footnote 11 in our brief --

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1 it's not -- it's not --

2 THE COURT: Okay.

3 MS. SPROUL: -- it doesn't take away

4 from if you, Your Honor, your discretion in this

5 matter.

6 Secondly, in Pansy, the court downplays

7 the need to encourage settlements as a basis for

8 ensuring confidentiality.

9 They say -- quoting U.S. versus Kentucky

10 Utilities, they say, settlements will be entered into

11 in most cases whether or not confidentiality can be

12 maintained. In other words, there's lots of reasons

13 why parties enter into settlement agreements, not

14 just because of confidentiality.

15 They said, the parties might prefer to

16 have confidentiality, but this does not mean that

17 they would not settle otherwise; for one thing, if

18 the case goes to trial, even more is likely to be

19 disclosed than if the public had access to pretrial

20 matters.

21 And then they say from their own voice,

22 to the extent that parties may have to more often

23 enforce orders of confidentiality in private contract

24 suits -- in other words, sue each other for

25 disclosing something that they agreed not to -- we

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1 believe this may, in fact, be preferable to the

2 current trend of increasing judicial secrecy.

3 So both with respect to the parties --

4 and, of course, the plaintiff is not here, and the

5 plaintiff does not object to the unsealing here. The

6 plaintiff -- apparently, in the stipulation of

7 confidentiality that was signed when The National

8 Enquirer case was consolidated with this one, the

9 plaintiff signed under protest with respect to

10 confidentiality. There's an explicit paragraph in

11 there that says that.

12 So the fact that these parties have

13 different views on confidentiality and the fact that

14 Mr. Cosby may -- and I emphasize "may" -- have relied

15 on that, that single provision that we haven't seen,

16 doesn't matter.

17 THE COURT: Now, I -- your -- your

18 brief -- let me put it this way. Is Pansy the

19 authority that this court has to apply; that is,

20 apply the Pansy factors and then call it depending

21 upon that balance? Is that how you see the case?

22 MS. SPROUL: Yeah.

23 THE COURT: Because you did not go

24 through the Pansy factors in your --

25 MS. SPROUL: We didn't go through them

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1 as factors, Your Honor.

2 THE COURT: Yeah.

3 MS. SPROUL: But what -- the reason that

4 we didn't is because we don't know really exactly

5 what's under seal.

6 And there are certain motions under seal

7 that perhaps wouldn't be characterized as discovery

8 motions. I don't know. It has to do with motions

9 for sanctions.

10 And there are cases -- and I have some;

11 they're not in the brief, but I have some -- that

12 are -- that talk about different types of motions.

13 You know, you have to apply different standards to

14 different motions and to different judicial records.

15 THE COURT: Now -- well, that brings me

16 to the point -- and maybe we'll go back to that, but

17 just to clarify that, if a motion is a discovery

18 motion --

19 MS. SPROUL: Um-hmm.

20 THE COURT: -- you would agree that the

21 right of access would not apply to that?

22 MS. SPROUL: I would agree that under

23 the current Third Circuit analysis [indiscernible] --

24 THE COURT: But you make a point some of

25 them may not be discovery --

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1 MS. SPROUL: Yeah.

2 THE COURT: -- motions --

3 MS. SPROUL: Yeah.

4 THE COURT: -- because you don't know.

5 MS. SPROUL: I don't know.

6 THE COURT: But to the extent that they

7 are so classified --

8 MS. SPROUL: Yes.

9 THE COURT: -- the analysis would not

10 include that right of access?

11 MS. SPROUL: It is not a constitutional

12 right of access. It is not a common law right of

13 access. However, what the Judicial Conference has

14 said -- and we're here on 5.15, which is

15 incorporating 26(c), but -- but what we're here on is

16 a -- is a rule that is, in effect -- and I think both

17 of those rules, in effect, embody a preference for

18 disclosure.

19 THE COURT: Um-hmm.

20 MS. SPROUL: And it is just like the

21 balancing that occurs in the Commonwealth. The --

22 THE COURT: So the burden is on the

23 party seeking to seal the documents --

24 MS. SPROUL: That is right.

25 THE COURT: -- applying the good cause

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1 standard --

2 MS. SPROUL: Right.

3 THE COURT: -- and then in forming that

4 judgment by the line of juris prudence in this

5 circuit that deals with Pansy and the related cases

6 that apply factors to -- to what is good cause and

7 what is not good cause --

8 MS. SPROUL: Right. Yes, Your Honor.

9 THE COURT: -- in discovery -- in

10 discovery issues?

11 MS. SPROUL: In -- in discovery. And

12 Pansy was a settlement --

13 THE COURT: Right.

14 MS. SPROUL: -- agreement issue. But

15 the Pansy court is very explicit in saying that, you

16 know, here, we're giving you some factors. And they

17 were very much driven by the facts in that case. For

18 example, it was a borough on the defense --

19 THE COURT: Yeah, it was a public

20 entity, sure.

21 MS. SPROUL: Yes. And it was a former

22 public employee as a plaintiff. So they said -- they

23 were talking about public officials. But by no

24 means, did they restrict the analysis to public

25 officials --

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1 THE COURT: Yeah.

2 MS. SPROUL: -- as Mr. Cosby suggests.

3 And, in fact, if I might say a word

4 about that, Your Honor?

5 THE COURT: Yeah, please.

6 MS. SPROUL: I --

7 THE COURT: Why don't -- does it make

8 any impact? Does he -- I think Pansy used the word

9 "public figure," but I don't think it meant really

10 public figure. It meant public official.

11 MS. SPROUL: Yeah, they weren't -- Your

12 Honor, they weren't talking about a public official.

13 THE COURT: Yeah.

14 MS. SPROUL: They were talking about a

15 public body, but that doesn't -- that doesn't matter,

16 because what -- what they're also saying is, we're

17 giving you some factors; we're talking about them;

18 we're balancing based on what we see before us. But

19 they say explicitly, this is not an exhaustive list.

20 THE COURT: Yeah. But at least you

21 should start off by checking those off.

22 MS. SPROUL: Yeah.

23 THE COURT: There may be some other

24 factors --

25 MS. SPROUL: Yeah, right.

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1 THE COURT: -- but don't cross out any

2 of these --

3 MS. SPROUL: Right.

4 THE COURT: -- unless they're not

5 relevant.

6 MS. SPROUL: Look at them and balance

7 them.

8 THE COURT: Yeah.

9 MS. SPROUL: Mr. Cosby portrays himself

10 in the brief as an entertainer, a celebrity. He is

11 far more than that. He is an icon, particularly in

12 this city, but he is an icon. He is, you know, a

13 person who has attempted to make a difference in the

14 African American community by reaching out to

15 students, young students. He's written over 20

16 books.

17 THE COURT: So what does that make him?

18 MS. SPROUL: That makes him -- that

19 makes him of great interest to the community. So

20 when the court is analyzing, is this an important

21 dispute --

22 THE COURT: In other words, if he was a

23 person that was not in the public eye in some

24 fashion, the analysis would -- that would -- that

25 would factor into the analysis?

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1 MS. SPROUL: It would factor into it, I

2 think. I think if he had not held himself out as

3 someone who, you know, would guide the public in ways

4 of morality, which he has done, and then to have

5 himself become a defendant in these lawsuits -- and

6 in this particular lawsuit ten years ago, he was

7 being investigated by a District Attorney for an

8 assault.

9 You know, he's a different type of

10 person. I don't know exactly what he is, but he is

11 not a celebrity like someone on a -- you know, a TV

12 show on cable TV. He is someone who has had probably

13 a 50-year career and --

14 THE COURT: Well, that's what I'm asking

15 you. What do we call that, and how do we analyze --

16 MS. SPROUL: Well --

17 THE COURT: -- that? A public person of

18 some sort?

19 MS. SPROUL: Okay.

20 THE COURT: I don't find anything in the

21 cases that address that particularly --

22 MS. SPROUL: There isn't --

23 THE COURT: -- the difference between a

24 public official and a regular person. There is some

25 category in the middle of individuals who have

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1 some -- I guess they call them celebrity sort of

2 thing. They -- they may either bring attention to

3 themselves or -- by the way they act or the way they

4 talk. Kardashians, that type of thing, in other

5 words, what are they? Are they over here, or are

6 they over here?

7 MS. SPROUL: Well, I would -- based on

8 the work that I normally do, Your Honor, I wouldn't

9 venture to characterize the Kardashians. But I

10 represent a lot of defendants in defamation

11 actions --

12 THE COURT: Yeah.

13 MS. SPROUL: -- where the public figure

14 concept comes into play.

15 THE COURT: Yes.

16 MS. SPROUL: And as Your Honor is aware,

17 where there is a public figure, the public figure has

18 to -- has to prove a heightened level --

19 THE COURT: Yeah, but I don't think --

20 that's a constitutional standard, isn't it?

21 MS. SPROUL: Well, yeah, it is.

22 THE COURT: Yeah.

23 MS. SPROUL: But I mean, just to guide

24 your analysis --

25 THE COURT: Well, one thing is whether

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1 or not -- and I think this comes from the defamation

2 law -- whether -- if you inject yourself --

3 MS. SPROUL: Yes.

4 THE COURT: -- in the thrust of the

5 debate --

6 MS. SPROUL: Um-hmm.

7 THE COURT: -- whether at that point,

8 you've given up some privacy.

9 MS. SPROUL: Um-hmm.

10 THE COURT: In other words, you can stay

11 home and don't say anything, but if you say

12 something, then -- then that may open the door or may

13 reduce your right of -- it doesn't eliminate it, but

14 it may limit it.

15 MS. SPROUL: Well, that is what I was

16 getting at, Your Honor --

17 THE COURT: Yeah.

18 MS. SPROUL: -- because that is the test

19 for a public figure, is if someone thrusts themselves

20 into the vortex of some sort of --

21 THE COURT: Yeah.

22 MS. SPROUL: -- controversy, and then

23 there's a legitimate interest in what they're doing.

24 So the press [indiscernible] --

25 THE COURT: So that deals with the

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1 improper purpose of the Pansy analysis?

2 MS. SPROUL: Yes, yes. They're -- and

3 they're -- they're, really -- I mean, as I said at

4 the outset, I don't think there's any way that news

5 coverage should be characterized as an improper

6 purpose.

7 And, you know, this is a matter that is

8 of legitimate public concern because Mr. Cosby is

9 someone who is very notable and has thrust himself

10 into the public eye with respect to issues relating

11 to morality and been very specific and adamant about

12 it, and -- and here he is.

13 And on that note, Your Honor, I would

14 point out that the -- Mr. Cosby has said that the

15 coverage of this latest round of disclosures is,

16 quote, unquote -- a media centerpiece he called it.

17 Even before The AP or anyone, because it

18 wouldn't just be The AP, of course, sees what's on

19 the public docket, if Your Honor puts anything

20 further on the docket -- I don't see how the -- given

21 the media centerpiece this is and the tremendous

22 amount of publicity associated with what has happened

23 recently, the publication of the events of ten years

24 ago and the testimony of ten years ago and nine years

25 ago can make a material difference.

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1 And I don't believe Mr. Cosby, because

2 he hasn't produced any evidence and he hasn't

3 explained anything to you that I've seen, can

4 demonstrate to Your Honor a material difference in

5 what is already out there.

6 And to restrict a public docket in this

7 case because it might embarrass him further is not

8 the standard, cannot be the standard, and should not

9 be the reason that this court restricts the docket

10 because it adds a certain, you know, thumb on the

11 scale, whatever it is.

12 And, also, just to follow up on that,

13 Your Honor, Mr. Cosby has also urged the court to

14 consider the jury pool in Massachusetts. So --

15 obviously, a different district.

16 But even putting that aside, the cases

17 in this court are very clear, the [indiscernible]

18 case and the [indiscernible] case, that the way to

19 deal with that is not to restrict information but to

20 do a very thorough and careful voir dire.

21 So up there in Massachusetts, if they

22 have a trial at some point, the judge there will

23 conduct a voir dire, or the lawyers will, and that

24 will -- that is constitutionally -- the Supreme Court

25 has said it as well, that is the favored approach to

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1 deal with jury [indiscernible] --

2 THE COURT: Well, I think the tainting

3 of the jury concept grew out of the rule of

4 professional conduct that prohibited lawyers -- the

5 efforts to get gag orders and having lawyers talk

6 about the case.

7 I don't know if tainting the jury has

8 ever been connected to the disclosure of discovery

9 material.

10 MS. SPROUL: I have seen that argument,

11 Your Honor.

12 THE COURT: Yeah.

13 MS. SPROUL: And I think in the Sheppard

14 case years ago, Sam Sheppard, who --

15 THE COURT: Right.

16 MS. SPROUL: -- allegedly murdered -- I

17 guess was convicted of murdering his wife, there was

18 a tremendous amount of pretrial publicity --

19 THE COURT: Well, that was -- yeah.

20 Well, that was a criminal case, yeah.

21 MS. SPROUL: Yeah, it was a criminal

22 case.

23 THE COURT: Yeah, yeah.

24 MS. SPROUL: So there was a fair trial,

25 Sixth Amendment right at issue.

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1 THE COURT: Yeah.

2 MS. SPROUL: But, you know -- but the

3 solution in civil cases and criminal cases to any

4 sort of -- and gag orders are part of that -- any

5 sort of --

6 THE COURT: Well, they have to be very

7 carefully tailored.

8 MS. SPROUL: Yes.

9 THE COURT: Yeah. Which we had the

10 issue in this case.

11 MS. SPROUL: Yes. And Your Honor

12 refused --

13 THE COURT: And I denied the gag order.

14 MS. SPROUL: And what you did is what a

15 lot of judges have now done --

16 THE COURT: Yeah.

17 MS. SPROUL: -- following your

18 example --

19 THE COURT: Yeah.

20 MS. SPROUL: -- is to just follow the

21 rules of professional responsibility.

22 THE COURT: That was my recollection of

23 what happened here --

24 MS. SPROUL: It is what you did.

25 THE COURT: -- and everybody seemed to

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1 behave afterwards, yeah.

2 MS. SPROUL: So, you know, that is --

3 that is the way that it goes. So that --

4 THE COURT: Okay. So your bottom line

5 is good cause -- plaintiff has failed to show good

6 cause, and good cause is informed by the application

7 of Pansy factors, and in this case, we don't have

8 affidavits, we don't have anything of what the

9 plaintiff says and that he has not identified -- has

10 not defined specific injury in this. It is somewhat

11 speculative what would happen here. You don't know

12 because you don't know what's in the documents.

13 MS. SPROUL: That is right, yes. And

14 just to put a --

15 THE COURT: Yeah.

16 MS. SPROUL: -- final point on it, Your

17 Honor, I would like to urge that the review has to be

18 done on a document-by-document basis --

19 THE COURT: So some documents --

20 MS. SPROUL: -- [indiscernible] page by

21 page --

22 THE COURT: -- would fall one way, and

23 some the other way?

24 MS. SPROUL: And page by page, as you

25 did with one of the transcripts of a hearing that you

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1 had. You redacted two pages from it that are still

2 under seal.

3 THE COURT: Do you think there is a

4 difference between a deposition of a party and either

5 depositions or statements or materials from

6 non-parties?

7 MS. SPROUL: I don't, unless someone

8 demonstrates to you that there is a reason. I think

9 the content is the issue. It's not necessarily --

10 I mean, and there are no third parties

11 here to tell the court how they feel about it. And

12 they may be -- I don't know who they are. They may

13 be the plaintiffs in the Massachusetts case. They

14 may be some of the other, I believe more than 20,

15 women who have made statements in the press.

16 So I -- to answer your question -- and I

17 wish I could answer it more directly --

18 THE COURT: Okay. You would need to

19 know what it is?

20 MS. SPROUL: -- I need to know what it

21 is, yeah.

22 THE COURT: Okay. Well, thank you.

23 MS. SPROUL: Thank you.

24 THE COURT: We'll give you a chance to

25 reply here.

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1 MS. SPROUL: Okay.

2 THE COURT: Mr. Gowen, please.

3 MR. GOWEN: Thank you, Your Honor.

4 May it please the court. My name is

5 George Gowen, and I represent the defendant.

6 Your Honor, we've had some discussion

7 already, but I think because this case ended so long

8 ago, it might be helpful just to set the stage and

9 remember where we were, which was a dispute between

10 individuals, not between public officials or

11 involving a public official, not even public

12 companies, not involving the government.

13 One of those individuals happens to be a

14 celebrity. The dispute was about the personal

15 components of his relationships, nothing that had

16 been injected into the public eye.

17 The parties engaged in private pretrial

18 discovery, and before too long, they decided to

19 settle their dispute. And they decided to settle it

20 before it became public, before it left the

21 traditionally private discovery phase, and they did

22 so with an agreement in which they agreed to keep the

23 discovery they had learned through the case

24 confidential forever.

25 Now, The AP, many years later, would

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1 like the court to unseal a few of the discovery

2 motions and associated briefs that were filed in that

3 case under seal before it was settled.

4 As we just heard and, certainly, as we

5 see in the brief, The AP quotes relies upon, even

6 quotes itself, in the well-known authority supporting

7 and encouraging judicial openness and public scrutiny

8 of the judicial process.

9 But it's worth noting that in the over

10 eight years since this case was settled, The AP did

11 nothing to champion those causes in this case. Now

12 it comes forward, and it does so by its own

13 admission, because a new crop of scandalous

14 allegations have been lodged against the defendant

15 and a new barrage of tabloid-style media publicity

16 has followed.

17 So to be clear, The AP wants these

18 records unsealed not because it wants to inspect the

19 particulars of the judicial process in this case, but

20 because it wants to sell a story about a celebrity

21 scandal.

22 When you look at The AP's brief, at

23 least -- we heard some more today, but when you look

24 at the brief, the brief would suggest that the

25 analysis is very simple.

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1 The AP argued in its brief that the

2 public simply has a right to see everything that is

3 ever filed with a court and that the court's analysis

4 has to begin with a strong presumption that the

5 material -- all material becomes unsealed and it's up

6 to defendant to make a strong showing to overcome --

7 THE COURT: Well, isn't that law?

8 MR. GOWEN: No, Your Honor. It's not.

9 The AP went on at length about the Leucadia case, and

10 the Leucadia case, which --

11 THE COURT: So you think that the burden

12 of proof is on The AP?

13 MR. GOWEN: No, no. I didn't mean to

14 say that, Your Honor.

15 THE COURT: Okay.

16 MR. GOWEN: What Leucadia said --

17 THE COURT: Well, there's no

18 presumption. I think we agree with that.

19 MR. GOWEN: Okay.

20 THE COURT: We don't have to spend a lot

21 of time.

22 The question is -- on the 26(c), I think

23 that the party seeking to seal has the burden of

24 proof, and that's what you're here to show.

25 MR. GOWEN: You're right, Your Honor. I

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1 merely meant to make the point, as is made very clear

2 in the Hecht [ph] case, which was decided after this

3 case ended, that that analysis, which, of course, we

4 bear the burden of leading, occurs on a blank slate.

5 THE COURT: Right.

6 MR. GOWEN: It doesn't occur amidst the

7 presumption of openness. It occurs on a blank slate.

8 THE COURT: I agree.

9 MR. GOWEN: Okay. And the factors to be

10 considered, certainly the factors that must be

11 considered -- and there may be others -- are

12 announced in Pansy and [indiscernible] --

13 THE COURT: Okay. Good. Let's get to

14 those.

15 MR. GOWEN: And we checked through those

16 factors in our brief, and I'm ready to do that here,

17 because blank slate or not, none of the factors in

18 Pansy ways in favor of unsealing here.

19 The first one is privacy. Pansy asked,

20 will unsealing and not protecting the documents

21 violate privacy interests?

22 THE COURT: So what is the clearly

23 defined specific and cognizable injury that the

24 plaintiff claims -- that -- I'm sorry -- that

25 defendant claims?

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1 MR. GOWEN: Well, first, we claim that

2 the material at issue here is private. So just to

3 check off that factor, it's private. These are

4 not -- this is not questions and answers about

5 accounting records or a business dispute.

6 THE COURT: But what is the injury?

7 MR. GOWEN: Well, the injury, Your

8 Honor, would be embarrassment and a violation of --

9 THE COURT: Well, every case involving

10 sex or drugs involves some measure of embarrassment.

11 So the question is, what is the specific injury?

12 Those subjects in the Complaint, for

13 example --

14 MR. GOWEN: Right.

15 THE COURT: -- is the embarrassing.

16 MR. GOWEN: Right. But -- but --

17 THE COURT: It doesn't mean it's true,

18 but it's embarrassing to be accused of those kinds of

19 things. Nobody would like to be accused of them,

20 even if one is completely innocent.

21 So the question, I think, that the case

22 law asks is -- that's sort of general embarrassment.

23 You wouldn't want to be accused of that. But in your

24 case, what is the defined, specific, and cognizable

25 injury? What is going to happen if this material is

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1 released?

2 MR. GOWEN: Well, the big difference,

3 Your Honor, is, first of all, we're talking about

4 specifics now. We're no longer analyzing the

5 abstract. And I understand The AP is at a

6 disadvantage.

7 THE COURT: Right.

8 MR. GOWEN: But Your Honor is not, and

9 we are not. We are not talking about abstract

10 principles, as we were earlier in the case. We now

11 have specifics. We have pages -- separated into

12 pages --

13 And, most importantly, getting at Your

14 Honor's point, we're not talking about what someone

15 else says about defendant. We're talking about what

16 defendant himself has said --

17 THE COURT: Um-hmm.

18 MR. GOWEN: -- and we're talking about

19 things that defendant said at a deposition in

20 testimony that was elicited from him. These are not

21 subjects that he has injected into the public.

22 And while it would defeat the purpose of

23 today's proceeding and our argument here to talk

24 about the specifics here --

25 THE COURT: Right. I appreciate that.

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1 MR. GOWEN: -- I would note that if

2 these subjects are not embarrassing, it is hard to

3 imagine what the Pansy court would think would be

4 embarrassing.

5 And, in fact, I have to add, The AP, as

6 it did today and in its brief, agrees that the

7 subject matter generally is embarrassing.

8 And, in fact, Your Honor noted early in

9 the case that unlike perhaps an accounting case, this

10 is the sort of case that could lead to embarrassing

11 discovery, but any protection would have to be over

12 specific material specifically shown to be

13 embarrassing.

14 And, again, that's what we have here.

15 We have specifics. They are embarrassing. And,

16 again, The AP seems to agree but only to say, well,

17 gee, the guy's been embarrassed so much about what

18 other people have said -- by what other people have

19 said about him, this shouldn't matter at all; let's

20 just let this stuff out, and let's let everyone see

21 what he was forced to say.

22 Well, that -- frankly, it's offensive,

23 but more importantly, it doesn't make any sense, Your

24 Honor. Again, we're talking about the defendant's

25 own testimony elicited from him at a deposition by

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1 opposing counsel about very embarrassing subjects.

2 And you're right. While they're not

3 here and we don't know whether they know about this,

4 the questions and answers also --

5 THE COURT: Well, now, that's

6 interesting that you mentioned that, because I was

7 thinking of that, that taking one aspect of the

8 materials which are under seal, which have been

9 identified as portions of his deposition, he -- you

10 said, "he was forced to."

11 I mean, he was asked questions, and he

12 gave answers. He had a lawyer present. He was under

13 oath. There was vigorous back-and-forth as to what

14 those questions should be and what they meant.

15 Isn't that his own version of the facts?

16 Why would he be embarrassed by his own version of the

17 facts?

18 MR. GOWEN: Your Honor, it's hard,

19 again, to answer the question without defeating the

20 purpose, so perhaps --

21 THE COURT: Right.

22 MR. GOWEN: -- I could use a

23 hypothetical --

24 THE COURT: Yes, please.

25 MR. GOWEN: -- and just talk about me?

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1 THE COURT: Yeah.

2 MR. GOWEN: There's a lot in my personal

3 life that is my version of the facts and is true, but

4 I don't want anyone to know about it because it would

5 be embarrassing. And I don't want anyone to know,

6 even if it's one person.

7 If this material comes out, everyone

8 will know about it. It would be terribly

9 embarrassing for this material to come out.

10 And that brings me to another point,

11 about a declaration. Your Honor, we'd be very happy

12 to submit a declaration about this, but, frankly,

13 reading the authority, I don't think it would add

14 much.

15 Embarrassment, obviously, is subjective.

16 Of course, Mr. Cosby can submit an affidavit that

17 says, this will be embarrassing to me, and we can

18 explain why, but it really is up to the court to

19 decide whether it should be embarrassing.

20 THE COURT: Okay.

21 MR. GOWEN: I submit that if you look at

22 this material, the court will conclude that it is.

23 THE COURT: Um-hmm.

24 MR. GOWEN: Now --

25 THE COURT: Yes. Go ahead. I'm sorry.

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1 MR. GOWEN: Okay.

2 THE COURT: Now, privacy and

3 embarrassment seem to be somewhat conflated. Are

4 they -- is there a difference between the two?

5 MR. GOWEN: Well, in this case, no,

6 probably, because it's embarrassing because it's

7 private.

8 THE COURT: Okay.

9 MR. GOWEN: I think that Pansy --

10 THE COURT: Um-hmm.

11 MR. GOWEN: -- imagined the distinction,

12 but here, they really run together.

13 THE COURT: Now, what about this

14 argument that he may be somewhere between a public

15 official and a private person -- that is, a person

16 who's not only an entertainer but who also has opined

17 on matters of public interest -- and that, therefore,

18 the public -- there would be a proper inquiry whether

19 the individual opining in matters of public interest,

20 morality, et cetera -- about, you know, his

21 background, et cetera, which may not be the same as

22 you or -- or me, perhaps, if we had some private

23 matters?

24 If I go out there and I talk about a --

25 you know, morality, would it be -- would that weigh

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1 in the balance here?

2 MR. GOWEN: No, Your Honor. And I admit

3 it's an interesting concept, but the answer is no.

4 And to conclude that, you need go no further than The

5 AP's brief. They make this argument in one half6 hearted sentence at the end of their brief, and they

7 offer no authority, because there is no authority,

8 and we provide authority which holds the opposite.

9 THE COURT: Which one? Which is your

10 authority here?

11 MR. GOWEN: I can run back to --

12 THE COURT: Well, I think you had a case

13 of some -- yeah --

14 MR. GOWEN: There was one about Prince.

15 THE COURT: -- a rapper or something

16 who's deposition --

17 MR. GOWEN: Right.

18 THE COURT: -- was kept under seal from

19 the district court somewhere. Yeah.

20 MR. GOWEN: And then there was a case

21 against, I believe, Gary Condit, who actually was a

22 public official.

23 THE COURT: Right.

24 MR. GOWEN: And --

25 THE COURT: Well, he was a public

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1 figure.

2 MR. GOWEN: -- the court noted, mere

3 celebrity interest here isn't -- this isn't just

4 about mere celebrity interest.

5 THE COURT: Yeah.

6 MR. GOWEN: The point being that it has

7 to be more than that. And that makes sense if you

8 look at what I'll call the public interest factors in

9 Pansy and the other cases.

10 When you read the context in which those

11 are articulated and, most importantly, when you read

12 the citations Pansy uses to articulate those factors,

13 it's very clear Pansy is talking about public in

14 the not only defamation sense but in the governmental

15 sense; public officials, the use of public funds, the

16 workings of government.

17 Mere celebrity here doesn't make this

18 case or any one person public for the Pansy sense of

19 the word.

20 THE COURT: Yeah. Okay.

21 MR. GOWEN: A word -- could I offer a

22 word about the settlement issue?

23 THE COURT: Yeah, that's -- I'd like

24 to -- you know, I mean, proceed through the factors.

25 I don't mean to cut you off here.

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1 MR. GOWEN: Pansy mentions settlement as

2 a factor --

3 THE COURT: Yeah.

4 MR. GOWEN: -- and, certainly, it -- it

5 offered a rather hypothetical notion that parties

6 will settle anyway. But let's talk about this case.

7 Again, this case was between private

8 individuals, and they ended it before it become

9 public, and they ended it avoiding the publicity and

10 embarrassment that a trial would bring. And they

11 entered into an agreement keeping everything

12 confidential.

13 Now, if key portions --

14 THE COURT: Well, keeping everything

15 confidential, what does that mean?

16 MR. GOWEN: Well, they --

17 THE COURT: In other words, did they --

18 they didn't come to the court and ask to seal

19 anything.

20 MR. GOWEN: Well, we did, Your Honor. I

21 know what Your Honor means. We -- defendant did, and

22 there was an interim sealing order --

23 THE COURT: Right.

24 MR. GOWEN: -- which took place when the

25 case ended.

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1 And you're right, and as The AP says, we

2 can't rely -- merely by settling, we can't rely on

3 the courts keeping that under seal forever.

4 But we did everything we could. So did

5 the plaintiff. And, more importantly, there is no

6 public right of access to discovery documents.

7 THE COURT: Right.

8 MR. GOWEN: And here, we otherwise --

9 THE COURT: Well, but the court never

10 decided whether or not these documents should be

11 sealed.

12 What it said, as I understand it from my

13 own writing, is, let's stop; let's gather the

14 documents; and then we'll make a decision.

15 That decision was never made. That's

16 what we're doing now.

17 MR. GOWEN: Right.

18 THE COURT: In a sense, we're rolling

19 the -- we're turning the clock back to eight years

20 ago and trying to decide whether or not this

21 should -- should be sealed.

22 MR. GOWEN: Right.

23 THE COURT: So two things should have

24 happened. Either the courts should have made that

25 determination back then, or the parties should have

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1 asked the court, we have a confidentiality agreement,

2 Judge; we want you to seal all the discovery

3 materials. And then we could have done a Pansy

4 analysis and then decide one way or the other, I

5 think, in which case, then reliance would have been

6 much greater.

7 The court -- you told us this was going

8 to be sealed, and now somebody comes in and wants to

9 unseal it.

10 MR. GOWEN: Understood, Your Honor.

11 THE COURT: Yeah.

12 MR. GOWEN: And that didn't happen, and

13 perhaps in retrospect, it should have.

14 THE COURT: Um-hmm.

15 MR. GOWEN: However, what I'm trying to

16 say now is -- and it pertains only to this case and

17 not the hypothetical imagined in Pansy -- if we had

18 been asked at the time whether -- would you settle if

19 you know all this stuff is going to get out, the

20 answer would be, I'm not so sure I want to settle.

21 THE COURT: It would have -- it would

22 have discouraged you.

23 MR. GOWEN: It would have discouraged

24 the settlement --

25 THE COURT: Um-hmm.

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1 MR. GOWEN: -- in a very big way.

2 And so what you have here is -- merely

3 because something was included in a routine discovery

4 motion in a case that never went to trial, you

5 have --

6 THE COURT: No. Well --

7 MR. GOWEN: -- [indiscernible] --

8 THE COURT: Let me ask you about that,

9 because when you have your deposition taken, wouldn't

10 you anticipate that that would work its way, through

11 summary judgment or trial, into the public?

12 In other words, is [sic] the taking of a

13 deposition, which is taken in private, give you some

14 assurances that that will not get out into the public

15 arena at some point in the future unless you settle

16 the case and you get a sealing order?

17 So is your reliance affected by --

18 certainly, by the legal prospect that this may come

19 out in the regular course of -- of the trial?

20 MR. GOWEN: Your Honor, let me slip into

21 hypotheticals a little bit.

22 THE COURT: Yeah.

23 MR. GOWEN: But absolutely. You can

24 imagine a party beginning a case. Discovery, The

25 Seattle Times says, is private, and the depositions

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1 unfold.

2 And that party could say, boy, we better

3 settle this thing; we think the other side is wrong,

4 but the publicity and embarrassment that would follow

5 a public trial or a summary judgment motion wouldn't

6 be worth the victory, so we better settle this, and

7 now is the time to do it because we're in discovery;

8 The Seattle Times says it's private; I'm sure the

9 other side will agree, if we stop it now, nothing

10 becomes public.

11 And you're right. We can't technically

12 rely on the courts not unsealing some discovery

13 motions that have been filed, but those are -- we go

14 right back to the analysis. Those are just discovery

15 motions.

16 THE COURT: Yeah.

17 MR. GOWEN: There's no right of access

18 to them. Disclosing them would serve no public good,

19 the public in the Pansy sense of the word, and yet,

20 it would cause terrible embarrassment and invading

21 the privacy.

22 So, again, just conclude, it would

23 undermine the settlement here, and it would

24 [indiscernible] future settlements in similar cases.

25 THE COURT: Um-hmm. What about tainting

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1 of the jury pool? What do you think of that?

2 MR. GOWEN: I was surprised when I read

3 in The AP's brief that there's no more jury pool to

4 taint because, of course, we have this case in

5 Massachusetts pending against Mr. Cosby.

6 And, again, that showing has to be

7 specific, but again, we now have specifics for the

8 court to look at, which, frankly, for the same

9 reasons that they would be embarrassing, would also

10 prejudice him in the eyes of the jury pool in

11 Massachusetts.

12 THE COURT: Um-hmm.

13 MR. GOWEN: Another word, Your Honor, if

14 you don't mind?

15 THE COURT: Yeah, please.

16 MR. GOWEN: I don't want to interrupt

17 your train of thought, but with respect to redaction,

18 with respect to the notion that not every single word

19 in a discovery motion can meet the balancing test,

20 obviously, that's true.

21 And that's the reason -- I don't fault

22 Ms. Sproul for not knowing this -- we did submit

23 redacted copies of everything here. We did early on,

24 when this was at issue in the case, and we filed a

25 brief in opposition to the lifting of the seal. And

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1 we called it a partial opposition to the lifting of

2 the seal. We submitted to the court redacted copies.

3 Now, as I stand here today, with nine

4 years having lapsed and what I would think any public

5 interest in these materials having lapsed with it, I

6 don't think the court necessarily needs to go through

7 that, because there is no right of access, there are

8 no factors supporting disclosure, and there are lots

9 of factors encouraging sealing.

10 But if the court is inclined to do that,

11 we have the redactions in the file, and what I would

12 simply ask is, now that the time has gone by, that we

13 get a chance to make sure we've done everything and

14 redacted everything that was filed and provide you

15 with that.

16 So if that is the sort of -- I think it

17 would be an unnecessary use of judicial resources,

18 but if that's what the court wants --

19 THE COURT: Now, would that be as to

20 each and every document or as to the deposition or --

21 or --

22 MR. GOWEN: Well, the way it played out,

23 Your Honor -- and it was according to a terrific

24 procedure that --

25 THE COURT: Yeah.

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1 MR. GOWEN: -- that the court

2 promulgated -- the pages of the depositions, I don't

3 believe -- perhaps with an exception or two, weren't

4 themselves attached, but rather, the parties retyped

5 them. They produced them verbatim.

6 And often, and just as troubling here,

7 they characterized them. Okay? So you have

8 characterizations and cites to the record, and you

9 also have verbatim repetitions of testimony in the

10 motions itself.

11 THE COURT: Well, the depositions

12 is [sic] questions and answers --

13 MR. GOWEN: Right.

14 THE COURT: -- and then there's a

15 back-and-forth by the lawyers.

16 MR. GOWEN: Right.

17 THE COURT: The back-and-forth probably

18 no -- no role here. It really only would be -- be

19 that, unless you think that the back-and-forth put

20 the answers in context.

21 MR. GOWEN: That's it, Your Honor. When

22 we went through and redacted -- and, again, I'd like

23 a chance --

24 THE COURT: Yeah.

25 MR. GOWEN: -- to double check, we

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1 didn't redact back-and-forth about, you know, the

2 form of a question or something like that or some of

3 the really [indiscernible] stuff.

4 THE COURT: Would -- let me ask you to

5 clarify it. And I think you -- is it document 63

6 that has some attachments? Is that -- is that what

7 you're saying that you -- that you redacted?

8 MR. GOWEN: We took, Your Honor, if

9 memory serves -- and, again, I'd like to double check

10 this. We took plaintiff's motions for sanctions,

11 plaintiff's motion to compel, defendant's motion to

12 compel, plaintiff's motion to compel The National

13 Enquirer, all --

14 THE COURT: Yeah, I think -- excuse me

15 for interrupting you, but I think you -- yeah, I'm

16 looking at 63, Memorandum of Law in Partial

17 Opposition to the Lifting of the Seal. Is that the

18 one? Okay.

19 MR. GOWEN: Is that which one, Your

20 Honor?

21 THE COURT: That's 63.

22 MR. GOWEN: That's a brief that we

23 filed --

24 THE COURT: Right, Memorandum of Law in

25 Part -- but I think it had -- it had attachments.

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1 And maybe that's what you're referring to. Those

2 attachments had the redactions.

3 MR. GOWEN: Yes, Your Honor. I'm sorry.

4 THE COURT: Okay.

5 MR. GOWEN: I misunderstood. With that

6 brief --

7 THE COURT: Yeah.

8 MR. GOWEN: -- we submitted redacted

9 copies of, I think, all of the other briefs, all of

10 the other motions and briefs.

11 THE COURT: Oh, okay.

12 MR. GOWEN: So in that brief, which

13 itself was under seal and which itself we redacted

14 and submitted to the court, we argued if the court

15 would be more comfortable proceeding this way, we

16 have proposed redacted copies of all of the discovery

17 motions, thus limiting the sealing to the portions of

18 those papers that meet the balancing test.

19 THE COURT: Okay. I think I -- I follow

20 that.

21 MR. GOWEN: Okay.

22 THE COURT: Okay. Bottom line?

23 MR. GOWEN: The bottom line, Your Honor,

24 is that --

25 THE COURT: You think you've met good

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1 cause?

2 MR. GOWEN: We do, Your Honor. We do,

3 Your Honor. I think it's very clear if you look at

4 even the first couple of pages of plaintiff's motion

5 for sanctions or plaintiff's motion to compel. There

6 is no presumption of openness here. We're on a blank

7 slate.

8 THE COURT: Right.

9 MR. GOWEN: And there are factors in

10 favor of sealing and zero factors under the Pansy

11 analysis in favor of unsealing.

12 And the concepts that have been offered

13 by The AP are novel, without authority. Opening

14 these documents would serve no sanctioned public good

15 and would cause terrible impairment.

16 THE COURT: Okay. Thank you, Mr. Gowen.

17 MR. GOWEN: Thank you, Your Honor.

18 THE COURT: Okay. Let me ask counsel,

19 Ms. Sproul, if you would like a rebuttal.

20 MS. SPROUL: Thank you, Your Honor.

21 Just a couple of points.

22 There are under seal two pages of a

23 transcript --

24 THE COURT: Right.

25 MS. SPROUL: -- of a hearing that the

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1 court held on one or two or three of the motions.

2 There is a different standard for proceedings held in

3 court. The closure --

4 THE COURT: Yeah, there's a transcript.

5 MS. SPROUL: Yeah.

6 THE COURT: There are two pages of a

7 transcript --

8 MS. SPROUL: 8 and 9, pages 8 and 9.

9 THE COURT: -- that are here somewhere.

10 We do have them. Yeah. Okay. So that -- that would

11 be --

12 MS. SPROUL: That would be a

13 constitutional standard.

14 THE COURT: That would be a court --

15 court document. Okay.

16 MS. SPROUL: Yes. And that would be --

17 it's a judicial record. There would be a

18 presumption.

19 THE COURT: Yes.

20 MS. SPROUL: You know, we don't agree

21 that the law is that there's no -- there's no favor

22 either way for sealing or non-sealing.

23 We believe it's clear, even putting

24 aside the common law and the constitutional tests,

25 that Rule 5.15 embodies the court's dedication to the

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1 proposition that court proceedings should be held in

2 the open unless there is good cause, and it is the

3 defendant's burden to show it in this case because he

4 wants the sealing.

5 We have never said that everything

6 should be accessible. We understand there is

7 something that is called good cause and sometimes it

8 can be met. We are just saying that from what we

9 see, it isn't met here.

10 The fact that Mr. Cosby sat at his

11 deposition and gave testimony and gave his version of

12 the facts does not, you know, visit upon him a

13 particular injury. In fact, it's his story. It's

14 what he's saying to defend himself. And we can't

15 really roll back the clock and pretend that this

16 happened nine years ago because so much has happened

17 in between.

18 And, in fact, the Green case in

19 Massachusetts is a defamation case that arises from

20 the fact that Mr. Cosby went out to the press and

21 talked about this and defended himself and gave his

22 version of the facts.

23 So, you know, how does that hurt -- how

24 does this hurt him, the fact that his deposition will

25 somehow -- parts of his deposition will come out? I

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1 don't know what those parts are. I don't see that as

2 the particularized, specific, clearly demonstrated

3 injury that the Third Circuit specifically requires

4 here.

5 Just to say it's a sexual nature -- the

6 information is of a sexual nature and, therefore,

7 it's embarrassing, that's not enough. You know, it

8 has to be explained.

9 Because if it's already out there and if

10 it's already in the public eye -- and I believe it

11 is; obviously, I can't attest to it because I don't

12 know what specifically he said -- then there's no

13 basis for keeping it secret in this court, especially

14 because this is a court.

15 And that brings me to the Condit case

16 and the Prince case that were cited in Mr. Gowen's --

17 THE COURT: Where the -- where the

18 depositions were sealed?

19 MS. SPROUL: Yeah. Those were not --

20 those did not arise from matters that had been filed

21 in court.

22 In other words, the deposition

23 transcripts -- and I believe in the Condit -- no, it

24 wasn't the Condit. In the Prince case, I don't know

25 if he had actually given his deposition yet.

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1 But in the Condit case, the deposition

2 that was at issue in that case was Dominick Dunne's

3 deposition. Dominick Dunne at the time -- he's now

4 deceased -- had a show --

5 THE COURT: Right.

6 MS. SPROUL: -- on cable TV, and he

7 talked about Gary Condit and Chandra Levy, and he

8 gave the whole story from his perspective. He was

9 sued by Gary Condit.

10 And so he was the defendant, and he was

11 going to give a deposition, and he wanted -- and he

12 gave a deposition, and he wanted it to be sealed.

13 And the court refused to seal it.

14 Now, I'm not really sure why they cited

15 that case, but it's true they said some things in the

16 course --

17 THE COURT: You mean before the

18 deposition was taken?

19 MS. SPROUL: No. The deposition was

20 actually taken in that case, had been taken, and he

21 wanted it under seal because the plaintiff's lawyer,

22 Gary Condit's lawyer, Lin Wood, said -- said to

23 someone in the Daily News in New York something about

24 maybe distributing the transcript of the deposition.

25 And Dominick Dunne was enraged and

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1 didn't want that to happen, so he moved for a

2 sealing -- he moved for an order to seal.

3 But it wasn't an issue where the

4 deposition transcript or portions of it had been sent

5 to the court to evaluate a motion separately.

6 THE COURT: Well, now, the

7 confidentiality agreement that was entered into in

8 this case was not presented to the court, but is that

9 confidentiality agreement within the scope of this

10 case?

11 Is that -- is that something in this

12 case even though it was -- you know, occurred outside

13 of the case? Is the deposition transcript of this

14 case, perhaps other deposition transcripts that might

15 have been taken in this case, which are not in the

16 record of the -- of the -- that is, not in the

17 clerk's office -- are those within the scope of this

18 case that the court would have authority to either

19 cloak them in some kind of a protective order or

20 order their production?

21 MS. SPROUL: I guess I have two answers

22 for that.

23 One is that I believe the court has some

24 authority in that regard because of the Pansy case,

25 because, as Your Honor will recall, the settlement

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1 agreement was not filed of record in that case and

2 the court made a determination that it could not be

3 sealed even --

4 There was a corollary proceeding going

5 on there in Pansy. There was a right to know action

6 in the state court in Pennsylvania at the same time

7 by the newspaper seeking that settlement agreement.

8 And the court said, we're not going to

9 allow that agreement to be sealed. And that made it

10 accessible through the right to know case that was

11 proceeding on the side.

12 And so the court made a determination

13 with respect to that settlement agreement even though

14 it wasn't in the court file. There were two grounds

15 for them -- for the court's actions.

16 And so in -- in this case -- and we're

17 not asking the court to order the defendant or the

18 plaintiff to allow The Associated Press to see

19 unfiled discovery. That's The Seattle Times case.

20 We're not asking for that.

21 What we're asking for is what has been

22 filed with the court because that has a different

23 character, different personality, different judicial

24 importance. And in this case, what we're asking the

25 court to do is to look at these documents to see

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1 whether there is actually an affirmative injury that

2 will arise from them.

3 THE COURT: Okay.

4 MS. SPROUL: And it may not -- you know,

5 with the passage of time, it may not be as it once

6 was nine years ago.

7 THE COURT: Okay. Thank you.

8 Mr. Gowen, please.

9 MR. GOWEN: Brief rebuttal, Your Honor?

10 THE COURT: Yeah, sure.

11 MR. GOWEN: Just very briefly.

12 Defendant never commented in public

13 about this case or about the subjects covered in the

14 depositions we're talking about today. That just

15 never happened.

16 It's -- counsel mentioned transcripts,

17 judicial proceedings versus [indiscernible] --

18 THE COURT: Is that -- you said he never

19 commented about this case in public?

20 MR. GOWEN: Not publicly, Your Honor.

21 There's no -- there's --

22 THE COURT: I thought in the -- I

23 thought there had been -- and my memory may not be

24 accurate, but I thought part of the debate during the

25 sanctions process was an interview that he had given

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1 to The National Enquirer about the facts of the case.

2 MR. GOWEN: Not this case, Your Honor.

3 That was about something else. And that's an

4 important distinction.

5 The cases don't distinguish between

6 discovery motions, meaning the paper portion of it,

7 and the transcripts around them. The cases, because

8 of Seattle Times, make a broad exception to the

9 common law right of access to discovery motions.

10 THE COURT: Um-hmm.

11 MR. GOWEN: There's no authority to

12 suggest that the transcripts deciding those motions

13 is different from the motions -- the pieces of paper

14 arguing them.

15 There is no authority for the idea that

16 Mr. Cosby, because of what he has done, meets the

17 public interest factors announced in Pansy.

18 The Condit case may be distinguishable,

19 as counsel mentions, but they have no authority for

20 their argument, their chief argument here, that

21 because of Mr. Cosby's status and who he is, he

22 deserves less of the privacy and embarrassment

23 factors announced in Pansy. There's just no

24 authority for that, Your Honor.

25 Thank you.

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1 THE COURT: Okay. Very well. I think

2 everything has been said. If not -- by everybody,

3 and I will take the matter under advisement and will

4 get back to you.

5 MR. GOWEN: Thank you, Your Honor.

6 THE COURT: Okay. Thank you.

7 COURTROOM DEPUTY: All rise.

8 - - -

9 (Whereupon, the proceeding was concluded

10 at 10:58 a.m.)

11 - - -

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1 C E R T I F I C A T I O N

2

3

4 I, Judi Y. Olsen, Registered

5 Professional Reporter, do hereby certify that the

6 foregoing is a true and correct transcript from the

7 electronic sound recordings of the proceedings in the

8 above-captioned matter.

9

10

11

12

 <%Signature%>

13 June 29, 2015 ____________________

Date Judi Y. Olsen, RPR

14

15

16

17

18

19

20

21

22

23

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  '  /

B =

8

L 7 D C ; <

  '  

B =

8

L 7 D @

 '  

B =

8

L ; :

  '   2   2  

  ' 

B =

8

L : 7 C D ?

  '  

B =

8

L : ; ? ; : @

  '  

B =

8

L = D ; D ? <

  '  

B = D B ; L ?

  '     ' 

  ' 

B = D B ; L ? <

/ '     '  

B = D B ; A D

 '     ' 

B = D B : > F ;

  '     ' 

  '  

B = D B : > F ; F

  ' /

O

7 > ? I = A C ? @

6

B = D B : > F ; F P

#    

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 60 of 69
B = D F C ?

  '     '  

  '   2     '  2  2 /

  '  

B = D F C ? M <

  '  

B = D F > B ?

  '     ' 

B = D H ; A ; D B ;

/ '  

  '  

B = D H C F ; D ? C 7 :

/ '  

  '     '   2  

B = D H C F ; D ? C 7 : C ? @

/ '  

  '  2   2   2   2  

  '  2   2     ' 

  '  2 /

B = D H : 7 ? ; F

  ' 

B = D D ; B ? ; F

  ' 

B = D < C F ; A

  '  

B = D < C F ; A ; F

 / '   2  

B = D < = : C F 7 ? ; F

  ' 

B = D < ? 7 D F

 ' 

B = D < ? C ? > ? C = D 7 :

  '  

  '    / '   2  

B = D < ? C ? > ? C = D 7 : : @

  '  

B = D ? ; D ?

  ' /

B = D ? ; D ? <

 '  

B = D ? ; Q ?

  '     '  

B = D ? A 7 B ?

  '  

B = D ? A = G ; A < @

 / '  

B = D G C B ? ; F

  '  

B = L C ; <

  '     ' 

  ' / 2  

B = A = : : 7 A @

  ' 

B = A A ; B ?

 '     ' 

B = < 9 @

 '   '    ' 

 '    '    '  2  

  '     '    ' /

  '  2     '  2  

  '     '    '   2  

  '  

B = < 9 @ M <

 '    '  

B = > D < ; :

  '    '  

  '     '  /

B = > L : ;

/ '     '  2  

B = > A < ;

 '     ' 

  '    / '    '  

  '  /   '    '  

B = > A ?

 '  2    '  2 

 '   2    '  2    '  

 '   2   2   2    ' 

 '   2    '  2   2  

 '  /  '  2   2   2  

 '   / '   2  /   '  2 

  '   2  / 2     '  2  

  '   2     '  2  2  2 /

  '  / 2   2     '  2 /

  '   2   2  /   '  2 

  '  2   2   2     ' 

  '  2  2   2   2  

  '   2   2   2  

  '   2   2  / 2   2  

 / '  2  2   2   2   2  

  ' / 2   2   2     ' 

  '   2   2  / 2     ' 

  '  2 / 2   2   2  / 2  

  '     '  2   2  / 2  

  '  2   2   2   2  

  '  2    '    '  2 

  '   2   2   2    / ' 

 / '  2   2     '  2 /

  '   2     '  2   2  

  '    '  2   2  

  '  2   2   2   2   2  

  '  2  2   2     ' /

  '   2   2   2  / 2  

  '     '  2  2   2  

  '  2   2   2   2  

 / '  2 / 2 / 2   2     ' 

  '  2   2   2   2  

  '  2  2     '   2  

  '  2   2     '  2 

  '   2   2  / 2     ' 

  '   2   2   2     ' 

  '   2   2     '  2 

  '   2   2   2  / 2  

  '     '  2   2   2  

 / '  2  2  2  2 / 2   2  

 / '   2  /   '    '  

  '   2   2     '  2  

  '     '  2  2  2  

  '     '  2  2  2  

  '   2   2   2     ' 

  '  2   2   2     '  

  '  2 

B = > A ? M <

  '   / '  

  '  

B = > A ? A = =

8   ' 

B = > A ? <

 '   '   / ' 

 / '     '  

B = G ; A 7 E ;

  '  2  

B = G ; A ; F

  '  

B = K ; D

 '  

B = K ; D

5

B =

8  '  

B A C

8

C D 7 :

  '   2  

  ' 

B A = L

  '  

B A = < <

  ' 

B > A A ; D ?

 '     ' 

  '  

B > ?

  '  

B G

 ' 

F

F

 ' 

F 7 C : @

  '  

F 7 ? ;

  '  

F ; 7 :

  '  /   ' 

F ; 7 : <

  '   / '  

F ; 9 7 ? ;

 / '    '  

F ; B ; 7 < ; F

  ' 

F ; B C F ;

 '    '  /

 / '     ' 

F ; B C F ; F

  '   2  /

 / '   / '  

F ; B C F C D E

  '  

F ; B C < C = D

 / '   2  

F ; B : 7 A 7 ? C = D

 '    ' 

/ '    '   2  

F ; F C B 7 ? C = D

 / '  

F ; ;

8

; F

 '  

F ; H 7

8

7 ? C = D

 ' 

  '    / '    '  

  '  /

F ; H ; 7 ?

  '  

F ; H ; 7 ? C D E

  '  /

F ; H ; D F

  '  

F ; H ; D F 7 D ?

 '  2  

 '    '    '    '  

  '   / '     '   2  

  '  /   '     '  

  '     '  

F ; H ; D F 7 D ? M <

  '  

  '     ' 

F ; H ; D F 7 D ? <

  '  

F ; H ; D F ; F

  '  

F ; H ; D < ;

  '  

F ; H C D ; F

 ' / 2  /   '  

 / '     '  

F ;

8

= D < ? A 7 ? ;

 '  2  

  ' 

F ;

8

= D < ? A 7 ? ; F

 '  

  ' 

F ;

8

= D < ? A 7 ? ; <

 ' 

  ' 

F ; D C ; F

  '  

F ; L ; D F C D E

  '  

F ; L = < C ? C = D

 '     ' 

  '  /   '     ' /

  '     ' / 2     '  

  '   2   2     '  

  '     '  2  2   2  

  '   2  / 2     '  2  

  '  

F ; L = < C ? C = D <

  ' 

  '     '  2     '  

  '  

F ; L > ? @

  ' 

F ; < B A C L ? C = D

 '  

F ; < ; A G ; <

  '  

F ; < C E D 7 ? ; F

 ' 

F ; ? ; A

8

C D 7 ? C = D

 / '     '  2  

F C H H ; A ; D B ;

  '  

  '     '     ' 

  '    '    ' 

F C H H ; A ; D ?

  '  

  '   2   2   2     ' /

  '    / '    '   2  

  '     '  

O

B = D F C ?

6

F C H H ; A ; D ? P

#    

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 61 of 69
F C A ;

  '   2  

F C A ; B ? : @

 '     '  

F C < 7 F G 7 D ? 7 E ;

 '  

  ' 

F C < B : = < ; F

  '  /

F C < B : = < C D E

  '  

  '  

F C < B : = < > A ;

 '   2  

  '     '    ' 

F C < B : = < > A ; <

  '  

F C < B = > A 7 E ; F

  '  

  '  

F C < B = G ; A @

/ '     ' 

  '   2     ' / 2   2  

  '    '   2   2  

  '    '    / ' 

  '    '  2     ' 

  '   2     '  /

  '     '  /   '  2 /

F C < B A ; ? C = D

/ '     ' 

F C < B > < < C = D

  ' 

F C < L > ? ;

  '     ' /

  '   2  /   ' 

F C < ? C D B ? C = D

  '  

  ' 

F C < ? C D E > C < I

  ' 

F C < ? C D E > C < I 7 9 : ;

  '  

F C < ? A C 9 > ? C D E

  '  

F C < ? A C B ?

 '  2  2   ' 

  '    '     '  /

F C G ; < ?

/ '  

F = B N ; ?

 '    '  /

 '     '  / 2     ' 

  ' /

F = B >

8

; D ?

 '   2  

  '   2     '     ' 

 / '  

F = B >

8

; D ? <

  '  

  '   2  /  / '    / ' 

 / '   2     '  

  '  

F = C D E

 / '    / '  

F =

8

C D C B N

  '  2  2  

F = = A

 / '  

F = > 9 : ;

  '     ' /

F = J D L : 7 @ <

  ' 

F A C G ; D

  '  

F A > E <

 '    '  

F > D D ;

  '  2  

F > D D ; M <

  ' 

;

;

 '  2     ' 

; 7 A : C ; A

  '  

; 7 A : @

  '    '  

; 7 < ? ; A D

 ' 

; F > 7 A F =

 ' 

; H H ; B ?

/ '     '   2  

; H H = A ? <

  ' 

; C E I ?

  '    / '  /

; C ? I ; A

  '    ' 

 / '    / '     '  

; : ; B ? A = D C B

 '     ' 

; : C B C ? ; F

  '     '  

; : C

8

C D 7 ? ;

 / '  

;

8

9 7 A A 7 < <

  ' 

;

8

9 7 A A 7 < < ; F

  '  

  '  

;

8

9 7 A A 7 < < C D E

  '  

  '     '  2  2  2  

  '   2     '    ' 

  ' / 2   2  /   ' 

  ' /   ' 

;

8

9 7 A A 7 < <

8

; D ?

 '   2    '   '  2  2  

 '     '  2   2  

  '     '    '  

  '  2     '  

;

8

9 = F C ; <

 / '  

;

8

9 = F @

  '  

;

8

L I 7 < C K ;

  '  

;

8

L : = @ ; ;

  '  

; D B = > A 7 E ;

  ' 

; D B = > A 7 E C D E

  ' 

  ' /

; D F ; F

  '   / ' 

  '  2 / 2  

; D H = A B ;

  '  

; D E 7 E ; F

  '  

; D R > C A ; A

  '    '  

  ' 

; D A 7 E ; F

  '  

; D < > A C D E

  ' 

; D ? ; A

  '  

; D ? ; A ; F

 '   2  

  '     '     ' 

; D ? ; A C D E

/ '   2  

; D ? ; A ? 7 C D ; A

  '  

  '  

; D ? C ? @

  '  

; A

 ' 

; < L ; B C 7 : : @

  '  

; < R > C A ;

 ' / 2  

; < < ; D ? C 7 : : @

 '   '  

; ?

  '   2  

; G 7 : > 7 ? ;

  ' 

; G ; D ? <

  '  

; G ; A @ 9 = F @

  '  

  ' 

; G C F ; D B ;

 '   / ' 

  ' 

; Q 7 B ? : @

  '    '  

; Q 7

8

C D ;

 '  

; Q 7

8

L : ;

  '  

  '     '  

; Q B ; L ? C = D

  '    ' 

; Q B > < ;

  '  

; Q I 7 > < ? C G ;

  '  /

; Q L : 7 C D

  '  

; Q L : 7 C D ; F

  '    ' 

; Q L : C B C ?

  '     '  

; Q L : C B C ? : @

  '  /

; Q ? ; D ?

  '     ' 

; @ ;

  '     '  

  '     '  

; @ ; <

  '  

H

H

  ' 

H 7 B ?

 '   '  / '  /

  '  2   2     ' 

  '  2    '   2   2  

  '   2  

H 7 B ? = A

  '     ' 

  '    ' 

H 7 B ? = A <

  '   2  

  '    '  2     '  

  '     '   / ' / 2  

 / '   2     '  2   2  

  '  2 /   ' / 2  

  '   2  

H 7 B ? <

 '    '  2 / / ' /

  '     '   2     ' 

  '   2     ' 

H 7 C : ; F

  ' 

H 7 C A

  '  

H 7 : :

  '  

H 7 : : <

 ' 

H 7 A

  '  

H 7 < I C = D

  '  

H 7 > : ?

  '  

H 7 G = A

 / '     '  

  '    / '  

H 7 G = A ; F

  '  

H ; ; :

  '  

H ;

8

7 : ;

 ' 

H C E > A ;

  ' / 2     '  

  '   2    / '  /   ' 

H C : ;

 '    '     '  

  '  

H C : ; F

 '  2   '     ' 

  '    '     '  

  '     '     '  

  '  2  

H C D 7 :

  '  

H C D F

  '  

H C A < ?

 '    '   2  

 '  / '   / '  /   ' 

  '    ' 

H = : : = J

 '     '  

  '     '    '  /

H = : : = J ; F

  '  

H = : : = J C D E

  '  

H = = ? D = ? ;

/ '   2  

H = A B ; F

  '     '  

H = A ; E = C D E

  ' 

O

F C A ;

6

H = A ; E = C D E P

#    

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 62 of 69
H = A ; G ; A

  '    / ' 

H = A

8   ' 

H = A

8

; A

  '  

H = A

8

C D E

  ' 

H = A ? I

  '     '   2  

  '  /   ' 

H = A J 7 A F

  '  

H A 7 D N : @

  '     '  

  ' 

H > D F <

  '  

H > A ? I ; A

  '     ' 

  ' 

H > ? > A ;

  '     '  

E

E 7 E

  '    '  2  

E 7 A @

  '     '  2 / 2  

E 7 ? I ; A

 / '  

E 7 @ : ;

 ' /  ' /

E ; ;

  '  

E ; D ; A 7 :

  '  

E ; D ; A 7 : : @

  ' 

E ; = A E ;

 '     ' 

E ; ? ? C D E

 / '     '  

E E = J ; D

 '  

E C G ;

 '    '     '  

  '  

E C G ; D

/ '   / '    '  

  '     '  

E C G C D E

  '     '  

E : ; D

8

; F ;

 ' /

E =

  '   2     '  

  '     '     ' 

  '     ' 

E = ; <

  '     ' 

E = C D E

 '   '    '  

  '  2  /   '     ' 

  ' 

E = = F

 '    '     ' 

  '    '  2  2   / '  

  '     '     '  

  '  2 

E = G ; A D

8

; D ?

  '  

  '  

E = G ; A D

8

; D ? 7 :

  '  

E = J ; D

 '    '   '  

 '    '  2  2    '  2  

  '   2  / 2    / '  2 /

 / '     '  2  2   2  

  '  2  2     ' 

  '   2   2     '  2  

  '     '  2  2 / 2  

  '  2   2   2   2   2  

  '  2  2     '  2  2  

  '   2    / '  2   2  

  '   2   2   2     ' 

  '  2   2     '  

  '  2   2     '  

  '  2   2   2   2  

  '  2  / 2     '  2  2 

  '   2   2     '  2 /

  '   2     '  2 / 2  

  '     '  2     ' 

E = J ; D M <

  '  

E A ; 7 ?

  '  /

E A ; 7 ? ; A

  ' 

E A ; ; D

 '    '  

E A ; J

  ' 

E A = > D F <

  '  

E < L A = > :

 '  

E > ; < <

 '    '    '  

  '  

E > C F ;

  '    '  

E > @ M <

  '  

I

I

 '   '  

I 7 : H

  ' 

I 7 L L ; D

  '     '  

  '     ' 

I 7 L L ; D ; F

  '  

  '    / '     '  

  '     '  

I 7 L L ; D <

  '  

I 7 L L @

  '  

I 7 A F

  '    '  

I ; 7 A

 ' 

I ; 7 A F

  '  2  

I ; 7 A C D E

 '    '  

  '  

I ; 7 A ? ; F

  ' 

I ; B I ?

 / ' 

I ; C E I ? ; D ; F

  '  

I ; : F

  '   / '  2 

  ' 

I ; : L H > :

  ' 

I

8 8  '    '  2   2  /

 '     '  /   '  /

 / '  2 /   '     '  

  '     '   2  

  '     '     '  

I = : F <

  ' 

I =

8

;

 / '  

I = D = A

 '  2 / 2   2  

 '   ' / 2    '  2 / 2  

 '   / '  2  2     ' 

  '    '    '  2  

  '  2    / '     '  

  '  /   '  2     '  

  '     '     '  2 

  '  2   2     ' 

  '  2    '  2  

  '     '     ' 

  '   2     '  

  '     '     '  

  '     '  2     ' 

  '     '  2  2   2  

  '     ' / 2     ' 

  '     ' 

I = D = A M <

  '  

I = D = A 7 9 : ;

 ' 

I > A ?

  '   2  

I @ L = ? I ; ? C B 7 :

  '  

  '    '  

I @ L = ? I ; ? C B 7 : : @

 '  

I @ L = ? I ; ? C B 7 : <

  '  

C

C B = D

  '   2  

C F ; 7

  '  

C F ; D ? C H C ; F

  ' /   ' /

C C C

 '  

C

8

7 E C D ;

  '    '  

C

8

7 E C D ; F

  '  

  '  

C

8

L 7 B ?

 ' / 2     ' 

C

8

L 7 C A

8

; D ?

  '  

C

8

L = A ? 7 D B ;

/ ' /

  '  

C

8

L = A ? 7 D ?

 ' / / '  

  '     ' 

C

8

L = A ? 7 D ? : @

  '  

  '     '    / ' 

C

8

L A = L ; A

 '   2  

  '  2 

C D B : C D ; F

  '  

C D B : > F ;

  '  

C D B : > F ; F

  ' 

C D B = A L = A 7 ? C D E

  '  

C D B A ; 7 < C D E

  ' 

C D F C < B ; A D C 9 : ;

  '  

 / '     '   2     ' 

  '    / '     ' 

  '     '    '  

C D F C G C F > 7 :

  '  /

C D F C G C F > 7 : <

  '  

  '   2     ' 

C D H = A

8

7 ? C = D

 '  / 2  

 '     '  /   ' 

C D H = A

8

; F

  ' 

C D S ; B ?

 / ' 

C D S ; B ? ; F

  '     '  

C D S > A @

 '   2    ' 

  '    / '     '  2 

  '   2     '     ' 

  ' 

C D D = B ; D ?

  '  

C D R > C A @

  '  

C D < L ; B ?

  '  

C D ? ; D F

 '  

C D ? ; A ; < ?

  '  /  / '  

  '   2  /   '  2  2 

  '    '  

C D ? ; A ; < ? C D E

  ' 

  ' 

C D ? ; A ; < ? <

 / '  

O

H = A ; G ; A

6

C D ? ; A ; < ? < P

#    

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 63 of 69
C D ? ; A C

8   '  

C D ? ; A A > L ?

  '  

C D ? ; A A > L ? C D E

  '  

C D ? ; A G C ; J

  '  

C D G 7 F ;

 '  

C D G 7 F C D E

  '  

C D G ; < ? C E 7 ? ; F

  ' 

C D G = : G ; <

  '  

C D G = : G C D E

  '   2  

  ' /

C < < > ;

  '     '  

  '     ' /   ' 

  '     '     ' 

  ' 

C < < > ; <

  '     '  

S

S A

 ' 

S > F E ;

 '    '     ' 

S > F E ; <

  '  

S > F E C D E

 '  

S > F E

8

; D ?

  ' 

  '     ' 

S > F C

 '     '  2  

S > F C B C 7 :

 '   / '  

  '    '     '  

  '  2  2  /   '  

 / '     '     '  

S > F C B C 7 A @ M <

 ' 

S > D ;

 '    '  

S > A C <

  ' 

S > A @

  '     '  2  2 

  '  2  2  

N

N 7 A F 7 < I C 7 D <

  '  2 /

N ; ; L

/ '   2     '  

N ; ; L C D E

  '   2  

 / '    '  

N ; D ? > B N @

  ' /

N ; L ?

  '  

N ; @

  '  

N C D F

  '  /

N C D F <

  '  

N D = J

 '    '    ' 

 '   2    '  / '   2  

  '  2  2     '  2 

  '     '     '  2 /

  '   2     '    '  

  '    '    '  2  

  '     '   2  / 2  

  '  2    '  2  2 

  '   2     '  

  '     '  /   ' 

 / '     '   2     ' 

  '  2   2     '  

  '  2     ' 

N D = J C D E

  '  

N D = J D

  ' 

N D = J <

 '  

N = B I

 '  

:

: 7 L < ; F

  '  2 

: 7 ? ; < ?

  '  

: 7 J

  '    / '    ' 

  '     '   2  

 / '   2     ' /

: 7 J < > C ?

  ' 

: 7 J < > C ? <

  ' 

: 7 J @ ; A

  '     '  

  '  

: 7 J @ ; A <

 '     '  

  '  2    '  

: ; 7 F

  '  

: ; 7 F C D E

 / ' 

: ; 7 A D ; F

  '  

: ; H ?

  '  

: ; E 7 :

 '     '  

: ; E C ? C

8

7 ? ;

 '  

 / '     ' 

: ; D E ? I

  ' /

: ; > B 7 F C 7

  ' / 2   2  

: ; G ; :

  '  

: ; G C D ;

 ' /

: ; G @

  ' 

: C H ;

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: C H ? C D E

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: C

8

C ?

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: C

8

C ? C D E

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: C D

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: C D ;

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: C < ?

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: C ? ? : ;

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: : L

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: = F E ; F

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: = D E

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: = D E ; A

  ' 

: = = N

 '   / '    ' 

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: = = N C D E

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: = ?

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: = ? <

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: < N < : 7 J

5

B =

8  '  

8

8  '  

8

7 C D ? 7 C D

 '  

8

7 C D ? 7 C D ; F

  '  

8

7 N C D E

/ '  

8

7 A N ; F

 '   2  

8

7 A N ; ?

 '   2   2  

8

7 A A C 7 E ;

 ' 

8

7 < < 7 B I > < ; ? ? <

 ' 

  '   2     '     ' 

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8

7 ? ; A C 7 :

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8

7 ? ; A C 7 : <

  '    ' 

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8

7 ? ? ; A

 '    '  

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8

7 ? ? ; A <

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8

; 7 D

 '    '    '  

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8

; 7 D C D E

 '    ' 

8

; 7 D <

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8

; 7 D ?

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8

; 7 < > A ;

  '  

8

; F C 7

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8

; ; ?

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8

; ; ? <

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8

;

8

= A 7 D F 7

 '  /

8

;

8

= A 7 D F >

8  '  

  '   2  

8

;

8

= A @

  ' /   '  

8

; D ? C = D ; F

  ' 

  '  

8

; D ? C = D <

  '    '  /

8

; A ;

  '  2  2  

8

; A ; : @

 / '   / ' 

  ' 

8

; ?

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8

C F

 '  

8

C F F : ;

  '  

8

C D F

  '  

8

C < > D F ; A < ? = = F

  ' 

8

= A 7 : C ? @

  '    '  

  '   2  

8

= ? C = D

 '   '  2 

  '   2     '    ' 

  '  /   '   2   2  

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8

= ? C = D <

  '  2  2  2  

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  '  2 / 2   2  

8

= G 7 D ?

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8

= G ; F

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8

> A F ; A ; F

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8

> A F ; A C D E

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D

D

 '    '    ' 

D 7

8

;

  ' 

O

C D ? ; A C

8 6

D 7

8

; P

#    

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 64 of 69
D 7

8

; F

 ' 

D 7 ? C = D 7 :

 '     ' 

  '     ' 

D 7 ? > A ;

  '  2 

D ; B ; < < 7 A C : @

  ' /

  ' 

D ; ; F

  '    '   2  

  ' 

D ; ; F <

 '    ' 

D ; G ; A

 / ' / 2     ' 

  '    '   2   2  

D ; J

  '   2     '  

D ; J <

 '     ' 

  '  

D ; J < L 7 L ; A

  ' 

D C D ;

  '     ' 

  '     ' 

D = D

  '   / '  

D = A

8

7 : : @

  ' 

D = ? 7 9 : ;

  ' /

D = ? ;

 ' /   '     ' 

D = ? ; F

  '    ' 

D = ? C D E

  ' /

D = ? C = D

  '    '  

D = G ; :

  '  

D >

8

9 ; A

 '  

D > ? < I ; : :

 '   2  

=

=

  ' 

= M B = D D = A

 '  

= 7 ? I

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= 9 S ; B ?

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= 9 : C E 7 ? C = D

 '  

= 9 G C = > < : @

  '  

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= B B > A

 / ' 

= B B > A A ; F

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= B B > A <

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= H H ; D < C G ;

  '  

= H H ; A

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= H H ; A ; F

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= H H C B ;

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= H H C B C 7 :

  '   2  

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= H H C B C 7 : <

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= I

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= N 7 @

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= : < ; D

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= D B ;

  ' 

= L ; D

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= L ; D C D E

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= L ; D D ; < <

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= L ; A 7 ? = A

 '  

= L C D ; F

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= L C D C D E

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= L L = < C D E

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= L L = < C ? ;

  ' 

= L L = < C ? C = D

  '  

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= A F ; A

/ '   2     '  

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= A F ; A <

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  ' 

= > ? < ; ?

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= > ? < C F ;

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= G ; A B =

8

;

  ' 

L

L 7

 '  2   2   2  

L 7 B ; A

 '  

L 7 E ;

 '   '   2  

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L 7 E ; <

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L 7 D < @

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L 7 L ; A

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L 7 L ; A <

  '  

L 7 A 7 E A 7 L I

  '  

L 7 A ?

  '    '  

  '  

L 7 A ? C 7 :

  '    '  

L 7 A ? C B > : 7 A

  ' 

  '  

L 7 A ? C B > : 7 A C K ; F

  ' 

L 7 A ? C B > : 7 A : @

 '  

 '   '    '     '  

L 7 A ? C B > : 7 A <

  '  /

L 7 A ? C ; <

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/ '   2   2     '   2  

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L 7 A ? <

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L 7 A ? @

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L 7 < < 7 E ;

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L ; D F C D E

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L ; D D < @ : G 7 D C 7

 ' 

  ' 

L ; = L : ;

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L ; A < = D

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L ; A < = D 7 :

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L ; A < = D 7 : C ? @

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L ; A < L ; B ? C G ;

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L ; A ? 7 C D <

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L I

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L I 7 < ;

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L I C : 7 F ; : L I C 7

 '  2  

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L I C : : C L L C

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L C ; B ; <

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L : 7 B ;

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L : 7 C D ? C H H

 '   ' 

 '     '  2  2  2 /

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L : 7 C D ? C H H M <

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L : 7 C D ? C H H <

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L : 7 @

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L : 7 @ ; F

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L : ; 7 < ;

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L = C D ?

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  '  

L = C D ? <

 '     '  

L = = :

  '     '  2  2  

L = A ? C = D

  ' 

L = A ? C = D <

  ' /   '  

  '     ' 

L = A ? A 7 @

 '  

L = A ? A 7 @ <

  ' /

L A ; H ; A

  '  

L A ; H ; A 7 9 : ;

  ' 

L A ; H ; A ; D B ;

  '  

L A ; S > F C B ;

 '  

  '  

L A ; < B A C L ? C = D

 ' 

L A ; < ; D ?

  '  

L A ; < ; D ? ; F

  ' 

L A ; < <

 ' /  '    / '  

  '     '     '  

L A ; < >

8

L ? C = D

  ' 

  '    / '    ' 

 / '  

L A ; ? ; D F

  '  

L A ; ? A C 7 :

  '  /   '  

  '  

L A C D B ;

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L A C D B C L : ; <

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L A C G 7 B @

 '    / ' 

 / '  / 2     '    '  

O

D 7

8

; F

6

L A C G 7 B @ P

#    

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 65 of 69
  '  

L A C G 7 ? ;

  '     '  

  '     '  2    ' 

  '   2     '    '  

  '     ' 

L A = 9 7 9 : @

  '     ' 

  '  

L A = B ; F > A ;

  '  

L A = B ; ; F

 '    '  

L A = B ; ; F C D E

 '  

 '     '     '  

  '  2     ' /

L A = B ; ; F C D E <

 '  

 / '    '    '  

  ' 

L A = B ; < <

 '     '  2  /

  '  

L A = F > B ; F

 '     ' 

  ' 

L A = F > B ? C = D

  '  

L A = H ; < < C = D 7 :

  ' 

  '     ' 

L A = I C 9 C ? ; F

  ' 

L A =

8

> : E 7 ? ; F

  ' 

L A = = H

  '   2  

L A = L ; A

  '  

L A = L = < ; F

  '  

L A = L = < C ? C = D

 '  

  ' 

L A = < L ; B ?

  '  

L A = ? ; B ? ; F

 '  

L A = ? ; B ? C D E

 / '  

L A = ? ; B ? C = D

  '  

L A = ? ; B ? C G ;

/ '   2  

  '  /

L A = ? ; < ?

  ' /

L A = G ;

  '  

L A = G C F ;

  '    '  

L A = G C < C = D

  '  

L A > F ; D B ;

  ' 

L > 9 : C B

 '    '   2  

 '  2 /  '     '  /

  '  / 2   2   2     ' /

  '   2   2   2  

  '     '  2   2  

  '   2   2    / '  /

  '  2   2  /   ' 

  '   2   2   2   2  

  '    '    '  

  '   2   2   2  /

  '   2     '  2   2  

  '   2     ' /  / ' 

  '   2     '  2   2  

  '  /   '    '  

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  '  

L > 9 : C B 7 ? C = D

  '  

L > 9 : C B C ? @

  '  

  '     '     ' /

  ' 

L > 9 : C B : @

  '  

L > A L = < ;

 '     '  2 

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L > A L = < ; <

 ' 

L > ?

 '     '  

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L > ? <

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L > ? ? C D E

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R

R > ; < ? C = D

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  '     '   2  

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R > ; < ? C = D <

  '    ' 

  '   2     '  

R > = ? ;

  '  

R > = ? ; <

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R > = ? C D E

  ' /

A

A

  ' 

A 7 L L ; A

  '  

A ; 7 B I C D E

  '  

A ; 7 F

  '   2     ' 

A ; 7 F C D E

  '  

A ; 7 F @

 / '  

A ; 7 : : @

  '    ' /   ' 

  '     '     '  

  '    '     '  

A ; 7 < = D

 '    '    ' /

  '    '  

A ; 7 < = D <

  '     ' /

A ; 9 > ? ? 7 :

  '  /   ' /

A ; B 7 : :

  '  

A ; B C ? 7 ? C = D

 '  

A ; B = : : ; B ? C = D

  '  

A ; B = A F

 '    '  /

  '   / '     '  

  ' 

A ; B = A F ; F

 '  

A ; B = A F C D E

 '  

A ; B = A F C D E <

  ' 

A ; B = A F <

  '     '  

  ' 

A ; F 7 B ?

  ' 

A ; F 7 B ? ; F

 '    ' 

  '     '  2     '  

  '    '  2   2  

A ; F 7 B ? C = D

 '  

  '  

A ; F 7 B ? C = D <

  '  

  ' 

A ; F > B ;

 / '  

A ; H ; A A ; F

 ' 

A ; H ; A A C D E

  ' 

A ; H : ; B ? C = D

 ' 

A ; H > < ; F

  '     '  

A ; E 7 A F

  '  

A ; E C = D

 '  

A ; E C < ? ; A ; F

  ' 

A ; E > : 7 A

  '     '  /

A ; : 7 ? ; F

  ' 

A ; : 7 ? C D E

  '  

A ; : 7 ? C = D < I C L <

  '  

A ; : ; 7 < ;

 '   2  

A ; : ; 7 < ; F

 '    ' 

A ; : ; G 7 D ?

  ' 

A ; : C 7 D B ;

 '     ' 

  '  

A ; : C ; F

/ '  2    '  

A ; : C ; <

  ' 

A ; : @

 / '  2    '  

A ;

8

;

8

9 ; A

  ' /

A ; L ; ? C ? C = D <

  ' /

A ; L : @

  '  

A ; L = A ? ; A

  ' 

A ; L = A ? C D E

 '    '  

A ; L A ; < ; D ?

 '  

  '     ' 

A ; R > C A ;

 ' 

A ; R > C A ; F

/ '  

A ; R > C A ; <

 '     ' 

A ; R > C A C D E

 '  

A ; < = > A B ; <

  '  

A ; < L ; B ?

 '     '  2 /

  '     '   2  

  '  

A ; < L = D < C 9 C : C ? @

  '  

A ; < ? A C B ?

  '     ' 

  '  /

A ; < ? A C B ? <

  ' /

A ; ? A = < L ; B ?

  '  

A ; ? @ L ; F

  ' 

A ; G C ; J

  '  

A C E I ?

 '    '  

  '   2   2   2     ' 

  '  2     '     ' 

 / '     '   2  

  '     '  2    / ' 

  '   2     '  2  

  '  2     '   2  

  '    / '  2  2  2  

 / '     '   2   2  

  '    '   2     '  

  '  2     '    ' 

  '     ' /

A C < ;

  ' 

A = 9 A ; D =

 ' 

A = : ;

 '     '  

A = : :

  '  

A = : : C D E

 / '  

A = > D F

  '  

A = > ? C D ;

  ' 

A L A

 '     '  

A > : ;

 '   '     '  

  '   / '  

A > : ; <

  '     '  

A > D

  '     '  

O

L A C G 7 B @

6

A > D P

#    

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 66 of 69
<

<

 '  

< 7

8   '  

< 7 D B ? C = D ; F

  '  

< 7 D B ? C = D <

  ' /   '  

  '    '  

< 7 ?

  '  

< 7 @ C D E

  '     '  

  '    '  2  

< 7 @ <

/ '  2    '  

  ' /   '     '  

 / '    '     ' 

< B 7 : ;

  '  

< B 7 D F 7 :

  '  

< B 7 D F 7 : = > <

  '  

< B I > : K

 '  

< B = L ;

  ' / 2  

< B A > ? C D @

  ' 

< ; 7 :

 '   2  /  '   2  

 '  2   2    '    '  

  '  2    '     ' 

  '    '     ' 

  '     '    / ' 

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< ; 7 : ; F

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 / '   2     '    '  

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< ; 7 : C D E

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< ; 7 ? ? : ;

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< ; B = D F : @

  ' 

< ; B A ; B @

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< ; B A ; ?

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< ; ;

 '    '     '  

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< ; ; N C D E

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< ; ; D

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< ; ; <

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< ; : :

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< ; D < ;

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< ; D < C ? C G ;

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< ; D ?

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< ; D ? ; D B ;

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< ; L 7 A 7 ? ; F

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< ; L 7 A 7 ? ; : @

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< ; A C = > <

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< ; A G ;

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< ; A G ; <

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< ; A G C B ;

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< ; ?

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< ; ? ? : ;

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8

; D ?

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8

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< ; Q

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< I ; L L 7 A F

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< I = J

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< I = J C D E

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< I = J D

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< C B

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< C F ;

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< C E D 7 ? > A ;

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< C E D ; F

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< C E D C D E

/ '  

< C

8

C : 7 A

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< C

8

L : ;

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< C

8

L : @

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< C Q ? I

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< : 7 ? ;

 / '  2  2     ' 

< : C L

  '  

< = : > ? C = D

  ' 

< =

8

; 9 = F @

  ' 

< =

8

; J I 7 ?

 '   2  

  '     ' 

< = A A @

 '   / '  

  '     ' 

< = A ?

 '    '     '  

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< = > D F

 '     ' 

< L ; B C H C B

  '     '  

 / '     '   2  

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< L ; B C H C B 7 : : @

  '  

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< L ; B C H C B <

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< L ; B > : 7 ? C G ;

  '  

< L ; D F

  '  

< L A = > :

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 ' / 2    '   2  / 2  

 '  2  2   2    '  2  

 '    '   2     ' 

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  '  2  2  2  2   2   2  

  '  2  2   2   2  

  '  2  2   2   2   2  

  '  2  2 / 2     '  2  

  '  / 2     '  2   2  

  '   2    / '  2  2 /

 / '   2   2     ' 

  '   2   2   2   2  

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< ? 7 E ;

  ' 

< ? 7 D F

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< ? 7 D F 7 A F

  '    '  

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< ? 7 D F 7 A F <

  '  

< ? 7 A ?

  '  

< ? 7 ? ;

  ' 

< ? 7 ? ;

8

; D ? <

  '  2  

< ? 7 ? ; <

 '  2 

< ? 7 ? > <

  '  

< ? 7 @

 '    / '  

< ? C L > : 7 ? C = D

  ' 

< ? = L

 / '     ' /

< ? = A @

  '     '  

  ' 

< ? A ; ; ?

 '   2   2  

< ? A = D E

  '  2 

< ? > F ; D ? <

  '   2  

< ? > H H

  '     '  /

  ' 

< ? @ : ;

  '  

< > 9 S ; B ?

  ' 

< > 9 S ; B ? C G ;

  '  

< > 9 S ; B ? <

  '     '  

  '    '    '  

< > 9

8

C ?

  '   2   2  

  '  

< > 9

8

C ? ? ; F

  '    ' 

  '  

< > ;

  '  

< > ; F

  ' /

< > H H ; A

 '  /

< > E E ; < ?

 '    '  

  '  

< > E E ; < ? <

  ' 

< > C ? ;

 '   2  

< > C ? <

  '  

< > : : C G 7 D

 ' /

< >

8 8

7 A @

  '  

  ' 

< > L L = A ? C D E

  ' 

  ' 

< > L A ;

8

;

  '  

< > A ;

 '    '     '  

  '    '     '  

O

<

6

< > A ; P

#    /

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 67 of 69
  '  

< > A L A C < ; F

  ' 

?

?

 '     '  2 

? 7 9 : = C F

  '  

? 7 C : = A ; F

  ' 

? 7 C D ?

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#     

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 68 of 69
J C < I

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J =

8

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J A = D E

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K

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J C < I

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#     

           	 
  	     
 

                                                  

Case 2:05-cv-01099-ER Document 119 Filed 07/10/15 Page 69 of 69