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IN THE UNITED STATES DISTRICT COUR~ FOR THE EASTERN DISTRICT OF PENNSYLV~ 

ANDREA CONSTAND, 

Plaintiff 

CIVIL ACTION NO. 05-1099 

v. 

WILLIAM H. COSBY, JR., 

Defendant 

Philadelphia, Penns~ania 

November 4, 2005 ,--J 

J~ E ,Ir":" 6 

MICHA, , v 200. 

TELEPHONE CONFERENCE By 

BEFORE THE HONORABLE EDUARDO C. ROBRENO 

UNITED STATES DISTRICT COURT JUDGE 

APPEARANCES: 

For the Plaintiff: 

For the Defendant: 

Audio Operator: 

Transcribed by: 

DOLORES M. TROIANI, ESQUIRE 

Troiani/Kivitz, LLP 

38 North Waterloo Road 

Devon, PA 19333 

PATRICK J. O'CONNOR, ESQUIRE 

GEORGE M. GOWEN, III, ESQUIRE 

Cozen O'Connor 

1900 Market Street 

Philadelphia, PA 19103 

J. Matkowski 

Paula L. Curran, CET 

(Proceedings recorded by For the Record Gold sound 

recording; transcript provided by AAERT-certified 

transcriber.) 

American Association of Electronic Reporter5 & Transcribers, Inc. 

Laws Transcription Service 

48 W. La Crosse Avenue 

Lansdowne, PA 19050 

(610) 62:J-4178 
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(The following occurred via telephone conference.) 

THE COURT: Good morning, this is Judge Robreno and 

I have you on the record. May I have the appearances of 

counsel beginning with plaintiff's counsel? 

MS. TROIANI: Dolores Troiani for Andrea Constand. 

Good morning, your Honor. 

THE COURT: Good morning. And for the defendants? 

MR. O'CONNOR: Patrick O'Connor for the Defendant 

Cosby, along with George Gowen. 

THE COURT: Okay, well, good morning. 

MR. O'CONNOR: Jack Schmidt is also on the line, 

sir. 

THE COURT: Yes, well, good morning, Mr. Schmidt. 

This is a status conference. I will not be making any 

rulings on the merits. But I wanted to review where we are 

and where we're going. Let me just say that I have read 

every page and every line of the materials that you sent me. 

So, I think I have a sense, not only for the trees, but also 

for the forest of this case. 

And let me make just a couple of comments here. 

Number one, this is a difficult case for the lawyers to 

handle, from both sides. And I appreciate that and I have a 

sensitivity to that, as well. And I think that both sides 

have, within the difficult burdens that they are carrying, 

done the best that they can for their clients. 

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Now, it comes a time to cut the Gordian (ph) knot 

and get to the bottom line here. And I think this is what I 

would like to do. These are going to have to be determined 

4 on a one-by-one basis to the extent that anyone wishes to 

5 seek to compel a further answer. And what I think we should 

6 do is the following. The party seeking to compel an answer 

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7 or a fuller answer to a question will file a motion to compel 

8 and that will be done as follows. Each question and each 

9 answer which is in controversy will be on a separate page. 

10 There will be a question, there will be the answer and then 

11 there will be a brief citation to the authorities and a one, 

12 two or three line explanation why that action should be 

13 compelled. 

14 The party opposing the requests will then file a 

15 response and that should also be done each response on a 

16 separate page. So that, we will have the opportunity to have 

17 the question, the answer and the response, together with the 

18 explanations, all in two pages, one for each side. So, the 

19 responding party should number the response by the same 

20 number as the request. 

21 Additionally, each side will be afforded the 

22 opportunity to submit probably no longer than a five page 

23 summary of the substantive arguments, if they wish to do 

24 that. There may be themes or there may be particular running 

25 objections that may need to be tied up and I want to give you 
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the opportunity to do that. We will do that. We will give 

15 days for the motions to compel and each side will review 

the transcript and make whatever requests each side wants to 

make. And then the party opposing them will then have 15 

days to respond to it. 

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The second issue is whether or not these proceedings 

should then be conducted under some special rules of 

confidentiality. Or whether they should be treated in the 

same manner that other litigation is treated, i.e., that 

while the discovery itself is confidential, ordinarily 

proceedings involving the Court and enforcement of the 

Court's orders, are conducted in open court and on the 

record. And there can be pretty good arguments both ways. 

So, the way to join that issue, it seems to me, is these 

requests should be filed under seal and the answers should be 

filed under seal. 

When that is completed, then there will be an 

opportunity for any party that wishes to argue that the seal 

should not be lifted, to so show. And an opportunity to 

oppose that. That is, it seems to me that before we have an 

argument of whether or not the seal should be lifted, we need 

to have on the record what it is that is going to be subject 

public review. 

MS. TROIANI: Your Honor, excuse me. 

THE COURT: Yes? 
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MS. TROIANI: Do you want the motion about the seal 

to be public? 

THE COURT: No, well, that's a good point. I 

suppose it shouldn't be. 

MS. TROIANI: Well, I thought the Court had already 

ruled that there wasn't going to be confidentiality in this 

case.! 

THE COURT: Well, yes, except that for discovery, 

the parties had agreed that there would be confidentiality. 

That's the point of this whole thing. 

MS. TROIANI: No, we did not. We agreed, sir, that 

they could file a motion for confidentiality. 

THE COURT: Yes. 

MS. TROIANI: So, we think that that's the first 

issue here. 

THE COURT: Well, you can't file a motion until you 

know what it is that is going to be held confidential. 

MS. TROIANI: Mm-hmm. 

THE COURT: So, that's what I want to lay the 

predicate on the record of what it is that is going to be 

confidential. So, I am suggesting a two-step process. 

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Number one, that the requests to compel and the oppositions 

be filed under seal. Then the second point is whether or not 

those matters that are filed under seal -- whether or not the 

seal should be lifted. And then at the conclusion of that, 
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we'll have an answer to that question. 

The difficulty here is the following. That the 

courts have recognized that confidentiality can be attached 

to discovery because, among other reasons, the Court is not 

directly involved. The parties privately can make those 

arrangements. If the motion to compel becomes a vehicle to 

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disclose the discovery, then the entire point of any 

agreement that the parties have or any desire that the courts 

have endorsed in the past for discovery, as opposed to court 

proceedings, to remain confidential, it would be pointless. 

Now, it may just be that that's the way it is. I 

mean, I don't know the answer to that. But certainly, that's 

what the question is going to be·, whether or not the access 

to the court which has been endorsed by the Supreme Court and 

which in this case, I had initially ruled on, how that is 

balanced within the context of discovery. And I like to walk 

before I run on that issue. So, that's why I'm suggesting 

that we do that. I mean, we could all, in the abstract, make 

arguments one way or the other, but we won't know how they 

apply to this case until I know specifically what it is that 

you are seeking to compel. 

Maybe you'll go back, you'll re-read the transcript 

and you'll pick out, you know, a couple of questions, maybe 

you pick out 100 questions. I don't know what you will do. 

So, let's do it one at a time. 
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MS. TROIANI: And how do we file our motion to lift 

the seal? 

THE COURT: This is how that's going to be done. 

And I'll have an order, by the way, on this. I just wanted 

to talk to you because I think it's helpful to hear your 

comments and then to also be able to address your concerns. 

Parties seeking to compel the answers in the manner 

in which I have described, will have 15 days to do that. 

Party opposing will then have 15 days to respond. So, we 

have a 30-day cycle there and that should be filed under 

seal. 

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Now, once you have that in hand, there will be 15 

days to file a motion in response to why the seal should not 

be lifted. And whoever wishes to oppose the lifting of the 

seal, should do that. Maybe nobody will oppose it, maybe 

they will. The party who doesn't want the seal lifted should 

then file a motion within 15 days. And the party who wishes 

the seal lifted, they will oppose that and that will be a 

30-day cycle. At that point -- and that should also be filed 

under seal. 

At that point, I will have both the record and the 

motions and I may decide and then we'll have argument on the 

record or whether I will decide the issue right there and 

we'll see what happens. Okay. Any comments here? Ms. 

Troiani, you seem to be disturbed by this proceeding. 
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MS. TROIANI: Yes, I am, your Honor, I'm extremely 

disturbed by this. 

THE COURT: Okay. 

MS. TROIANI: Mr. Cosby chose to defame our client 

in the media. 

THE COURT: Right. 

MS. TROIANI: I mean, you've read that part of the 

deposition and although we didn't get many answers, but he 

show that our client was telling the truth. 

THE COURT: Mm-hmm. 

MS. TROIANI: I'm very concerned about this 

procedure. This is totally different than any other case 

that is handled. Our courts are not secret. Our courts are 

open to the public and they're open to the public for a 

reason. And that is to preserve the integrity of this 

process. And Mr. Cosby should not be granted star status in 

the system. And I am extremely concerned about that. We, as 

lawyers, must come to court knowing that no matter who our 

client is, they're going to be treated like any other client. 

And your Honor and I'm certainly saying this with all due 

respect to the Court, there is absolutely no reason when a 

man chooses to go public and put his defense in the 

newspaper, why when we have decimated that defense and he has 
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now we have to conduct this litigation under seal. 

I am also concerned that Associated Press came to 

you, tried to join in the motion for confidentiality and now 

they have no way of knowing what's going on here. They have 

no way of now presenting their case. You already ruled that 

this is not confidential. Frankly, your Honor, our client 

has three ways of vindicating herself. Settlement, trial or 

by having the public be made aware through these motions, 

what is going on in this court system. 

THE COURT: Okay, well, then you'll make your 

argument. I mean, that's the essence of the argument. 

Nobody -- I'm not ruling on that argument. If that's the 

argument that wins the day, that's what's going to happen. 

MR. O'CONNOR: I think Ms. Troiani has revealed her 

true intentions in trying this case, seeking justice three 

ways. Through settlement, through a trial and then through 

the newspapers. And I find that to be an outrageous 

statement. 

THE COURT: Okay. 

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MR. O'CONNOR: Your Honor has ruled that she will 

have an opportunity to attempt to unseal discovery. But I've 

been practicing law for a long time and I've never had 

discovery in any case that I've been involved with, bandied 
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about in the press. Discovery is between the parties. It's 

not what occurs in open court. What Ms. Troiani has been 

attempting to do throughout this case is create issues which 

would enable her to file motions which would circumvent the 

confidentiality this Court has imposed on discovery. 

THE COURT: Okay, I haven't imposed anything and the 

point is that we're going to do this one step at a time. The 

presumption of access is there. That's why the show cause 

would be upon the party, why the seal should not be lifted. 

So, the presumption is not a presumption that it will be 

confidential, but there may be reasons why, in whole or in 

part, some aspects may be confidential including, I recall if 

my memory is correct, that the plaintiff wanted the names of 

the Jane Does to remain confidential at one time. There was 

some information concerning third parties that may -- the 

Court may have to take into account, maybe not. 

So, I think that both of you are getting agitated 

prematurely. This is a court proceeding that needs to be 

conducted in an orderly fashion so that there will be an 

appropriate record for review. And as I indicated to you, 

there are a lot of sensitive issues involved. The parties 

involved, third parties, the interest of the public. All of 

those have to be carefully assessed and we could just simply 

do it one way or the other and I don't think that would be 

appropriate. I think the Court's first ruling indicated a 
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1 desire to have the eye of the public on this and any other 

2 proceedings, as the Supreme Court has directed us to do. 

3 In fact, as you may know, just two or three weeks 

4 after the decision that I made, the Third Circuit made a 

5 decision in a case out of the Middle District where the judge 

6 had sealed the -- I think it's some of the discovery in the 

7 case. And it indicated that that should be pretty much on 

8 the same basis that this Court had found was not appropriate. 

9 So, we don't know where we're going to end up, but I 

10 think that given all of the interests which are involved in 

11 this case, it would be unfortunate to get too agitated too 

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early. And some of this can be saved for closing statements 

at the conclusion of the case. So, this is -- we're going to 

do this and I think then that in about 60 to 90 days, we'll 

15 know, at least at this level, what the answer to these issues 

16 and then we'll have to take it from there. 

17 I'll have an order issued today outlining these 

18 proceedings. You know, I think it is a fair and balanced way 

19 and in no way is intended to rule on what is going to happen 

20 to anything in this matter. 

21 MS. TROIANI: Your Honor, we also have the issue 

22 about whether or not Hall and Applied Telematics apply. 

23 THE COURT: Yes. 

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MS. TROIANI: 

THE COURT: 

Would that --

That should be brought up. That should 
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be brought up. I think that that's why I gave you the 

opportunity to summarize that. I think that there are two 

over-arching issues here. I think that may be one. And I 

think there is also the -- that there is some discrepancy as 

to the scope of the attorney/client privilege. And I think 

that also should be fleshed out. Those are, you know, 

difficult issues. And I think they should be fleshed out. 

And I said five pages, frankly, you know if you need more --

I mean, you know, we shouldn't arbitrarily limit, you know, 

the wisdom that this Court can get. But I think brevity 

would be helpful, but if you need more than that, that is 

fine. And I think there is various views on that particular 

issue. 

I do hope that we relate that to the specifics of 

the case, as opposed to some general discussion of the 

soundness of that approach. But I think that that's 

something that needs to be addressed here. And I didn't want 

to address this, frankly, without an appropriate foundation. 

And I think that's what this procedure intends to do. Not to 

foreclose anyone from doing anything at the right time. But 

if it is going to be done, it should be done after, you know, 

some due deliberation here. 

And I appreciate again, I think it's difficult for 

the lawyers here and I think we're fortunate to have, you 

know, the two of you who are experienced and have gone 
1 through these wars. And that will serve the interests of 

2 your clients and the interest of justice, hopefully. So, I 

3 think a little patience may serve us all. 

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4 It may sound like a long time, I know, to litigants 

5 when you're talking about 90 days. But, as you know, 

6 litigation moves at a, you know, it has its own pace. and I 

7 think under the circumstances of this case this is being done 

8 with dispatch, as much as it is feasible under the 

9 circumstances. So, I'll issue this order today. 

10 Now, let me ask you this, until we resolve these 

11 issues, can anything else be done or anything needs to be put 

12 on hold until you flesh this out? 

13 MS. TROIANI: Your Honor, we believe that we need to 

14 flesh this out first, because -- and we had also requested in 

15 our letter that you extend the time to add additional --

16 THE COURT: Okay, yes, well, we'll address those. I 

17 mean, it seems to me that that will follow from whatever the 

18 ruling is here, that we'll have to adjust that. But I didn't 

19 know whether you were proposing to take any other depositions 

20 or whether you now wanted to get this in place before you 

21 proceed. Your preference is just to wait and see what 

22 happens here. 

23 MS. TROIANI: Yes, your Honor, we have some 

24 subpoenas. 

25 THE COURT: Okay. 
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1 MS. TROIANI: And we would expect that we can, you 

2 know, for records and things like that, I'm sure we can 

3 THE COURT: Well, record discovery I don't see any 

4 reason why that can't proceed. But maybe discovery should be 

5 held in abeyance. Mr. O'Connor, what do you think? 

6 MR. O'CONNOR: Well, I think I have no trouble 

7 with that, your Honor. 

8 THE COURT: Okay. 

9 MR. O'CONNOR: Until you clarify the playing field 

10 here, I think that's a wise decision. 

11 THE COURT: Okay, fine. Okay, anything else then? 

12 Okay, we'll get this order out today and hopefully, we can 

13 resolve this entire matter in a 90-day cycle. Thank you. 

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MS. TROIANI: Thank you, your Honor. 

(Proceeding adjourned 9:25 o'clock a.m.) 

* * * 
CERTIFICATION 

I hereby certify that the foregoing is a correct 

transcript from the electronic sound recording of the 

proceedings in the above-entitled matter. 

~ (?_ ~--+--/~_1~~1~- 7 I 

Geraldine C. Laws, CET 

Laws Transcription Service 

Date