TROIANI/KIVITZ, L.L.P. 

---------------ATTORNEYS KI' LAW---------------

DOLORES M. TROIANI, ESQUIRE 

BEBE H. KIVITZ, ESQUIRE 38 NORTH WATERLOO ROAD 

DEVON, PA 19333 

January 5, 2006 

(Hand-Delivered) 

Office of the Clerk of Court 

Eastern District of Pennsylvania 

U.S. Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

RE: Andrea Constand vs. William H. Cosby, Civil Action No. 05-CV-1099 

Motion For Leave To File Plaintiff's Reply To the National Enquirer's 

Memorandum of Law In Opposition to Plaintiff's Motion To Compel 

Dear Sir/Dear Madam: 

(610) 688-8400 

FAX (610) 688-8426 

Enclosed for filing in the above-captioned matter, please find an original and a disk. 

Thank you for your anticipated cooperation. 

Respectfully submitted, 

g ~ty,t:y_ t~ ~ lbe H. Kivitz ·~ 

BHK:m 

Enclosure 

cc: Patrick J. O'Connor, Esquire (w/enclosure-first class mail) 

Andrew D. Schau, Esquire w/enclosure -first class mail) 

Andrea Constand (w/enclosure - first class mail) 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff 

: CIVIL ACTION 

v. : NUMBER 05-1099 

WILLIAM H. COSBY, JR., 

Defendant 

: FILED UNDER SEAL 

PLAINTIFF'S MOTION FOR LEAVE TO FILE 

REPLY MEMORANDUM OF LAW IN RESPONSE TO 

NATIONAL ENQUIRER'S MEMORANDUM IN OPPOSITION 

TO PLAINTIFF'S MOTION TO COM PEL 

COMPLIANCE WITH SUBPOENA FOR DOCUMENTS 

Plaintiff Andrea Constand respectfully moves for leave to file the attached 

Memorandum of Law in response to The National Enquirer's Memorandum in Opposition to 

® 

Plaintiffs Motion to Compel The National Enquirer's Compliance with a Subpoena. A reply is 

necessary to respond to legal arguments which have been asserted by The National Enquirer for 

the first time in their response. 

Respectfully submitted, 

TROIANI/KNITZ, L.L.P. 

1"1 By: I ( 

Dolores M roiani, Esqui 

I.D. No. 283 

Bebe H. Kivitz, Esquire 

I.D. No. 30253 

38 North Waterloo Road 

Devon, Pennsylvania 19333 

(610) 688.8400 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 2 of 18
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONST AND, 

Plaintiff 

v. 

WILLIAM H. COSBY, JR., 

Defendant 

: CIVIL ACTION 

: NO. 05-CV-1099 

: FILED UNDER SEAL 

PLAINTIFF'S REPLY TO THE NATIONAL ENQUIRER'S MEMORANDUM OF LAW_ 

IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL 

Plaintiff Andrea Constand submits the following Reply Memorandum of Law in support 

of her Motion to Compel. The arguments presented here are limited to the privilege issues raised 

by the National Enquirer. Further briefing in connection with the service issues is unnecessary 

because the National Enquirer concedes the facts necessary to conclude that service was proper: 

it admits that it has a New York office, and that half of its staff works there; and it admits that a 

process server left a copy of the subpoena with the (only) receptionist at the National Enquirer 

address of record, after a person named "Mark" declined to retrieve It from the receptionist's 

desk. See, Introduction, National Enquirer's Memorandum of Law, at 1; See also, 

Memorandum of Law, National Enquirer, at 8 and 11 ("The National Enquirer is located in New 

York"). 

ARGUMENT 

The Discovery Materials Sought by Plaintiff Should be Produced because Plaintiff is not 

seeking Confidential Source Materials and to the Extent that National Enquirer has Made 

Source Materials Public it Has Waived its Privilege. 

Plaintiff has sued Defendant for defamation for statements he made to the media, 

including those made in an exclusive interview published by the National Enquirer. Plaintiff 

1 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 3 of 18
may also have claims against the media in connection with those publications. Therefore, what 

Defendant said to the National Enquirer reporter, what he revised, if anything, and what he was 

shown, are all relevant to Plaintiffs claims and to decisions concemingjoinder. The National 

Enquirer is the only entity that possesses the notes of Defendant's conversations with National 

Enquirer's reporter, Barry Levine, and the drafts of the Ferrier and Cosby interviews. Moreover, 

although Mr. Cosby or his counsel presumably have an original or copy of the actual contract 

Defendant entered into with the tabloid, Defendant has refused to produce it without a 

confidentiality agreement. 

The National Enquirer argues that all unpublished information related to Defendant's and 

Beth Ferrier's interviews are confidential and protected. Under the circumstances presented here, 

however, the National Enquirer's position is without merit. Defendant testified at his deposition 

that he learned from Martin Singer, Esquire, his representative, that Beth Ferrier, another woman 

accusing him of sexual misconduct, had made a statement to the National Enquirer. (Cosby dep. 

9129105, p. 148, Exhibit A). In response, Defendant and the National Enquirer entered into a 

written agreement wherein Cosby agreed to an exclusive interview with the National Enquirer in 

exchange for the National Enquirer's agreeing to kill the Beth Ferrier story. (Cosby dep. 9/29/05, 

pp. 155-156, 161, Exhibit A). At the time of the agreement, Defendant was aware of Beth 

Ferrier's allegatio~ns and may have been aware of a polygraph taken by her at the request of the 

National Enquirer. (Cosby dep. 9/29/05, p. 166-168, Exhibit A). Most importantly, Defendant 

testified that he was read a draft of Beth Ferrier's story by his counsel, Jack Schmitt, Esquire. 

(Cosby dep. 9/29/05, p. 169, Exhibit A). Clearly, the National Enquirer had voluntarily disclosed 

the Beth Ferrier story and the facts in connection with the story to the Defendant. 

2 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 4 of 18
The National Enquirer's disclosure extends even further. Defendant testified that he was given 

the opportunity to review his own interview before it was published. (Cosby dep. 9/29/05, pp. 

171, 182, Exhibit A). According to Defendant, Barry Levine had accurately quoted him. Id. At 

the deposition, his attorneys, including John Schmitt, Esquire, who accompanied Defendant at 

. the meeting with the National Enquirer, stipulated that Defendant had, in fact, said everything 

that the National Enquirer placed in quotation marks, as coming from him, in its published 

interview. (Cosby dep. 9129105, pp. 172-173, Exhibit A). 

The material that Plaintiff seeks, therefore, is vastly different than "source" material 

protected by the Pennsylvania Shield Law. 42 Pa. C.S. § 5942(a). Indeed, once a newspaper's 

source materials are made public or disclosed to those outside of the newspaper, its privilege is 

waived and will not protect the materials from disclosure to third parties. See, Steaks Unlimited, 

Inc. v. Deaner, 623 F.2d 264, 278 (3d Cir. 1980) (shield law protects all sources of information 

persons, documents, and recordings with exception of information for which privilege was 

waived by actual publication or public disclosure) (citing Re Taylor and Selby Appeals, 412 Pa. 

32, 193 A.2d 181 (1963)). See also Anderson v. Nixon, 444 F. Supp 1195 (D.D.C. 1978) 

(Reporter waived the privilege by filing suit to vindicate his rights). 

Accordingly, the National Enquirer may not assert a privilege over materials it has printed 

or made public by revealing same to the Defendant or his agents. Once shared with nonnewspaper individuals, the Ferrier draft shown l2y the National Enquirer to Defendant and Mr. 

Schmitt, cannot be deemed privileged. Similarly, Defendant's "draft" interview, whether revised 

by him, or simply endorsed and adopted by him, has already been shown to Defendant and his 

representative. Thus, it, too, can no longer be characterized as privileged. 

3 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 5 of 18
Even assuming that the National Enquirer has not waived its privilege, Plaintiff does not 

seek the identity of newspaper "sources". It is clear that the only sources are Defendant and Ms. 

Ferrier themselves, and both agreed to have their stories published. Defendant's interview was 

published in the National Enquirer; Ms. Ferrier's story was ultimately published by the 

Philadelphia Daily News. 

To the extent that the requested discovery materials contain source information related 

to sources other than the Defendant and Ms. Ferrier, the law does not bar their production in a 

defamation action. In Hatchard v. Westinghouse Broadcasting, 516 Pa. 184, 532 A.2d 346 

(1987), in which plaintiff attempted to obtain videos prepared but not shown in a broadcast, the 

Pennsylvania Supreme Court reviewed the scope of the protection offered by the Shield Law in 

the particular context of a defamation suit. The Court refused to preclude disclosure of all 

unpublished information in the media's possession, holding that "unpublished documentary 

information ... is discoverable by a Plaintiff in a libel action to the extent [it] does not reveal the 

identity of a personal source of information or may be redacted to eliminate the revelation of a 

personal source of information. 516 Pa. at 195. This is so ~egardless of whether the defamation 

action is against the media entity itself or some other person. Following Hatchard, the Court in 

Davis v._ Glanton, 705 A.2d 879 (1997), held that the newspaper was required to produce 

material, which had been used for a published article. The Court stated: 

Regardless of whether the defendant in the defamation action is the media entity 

itself or some other person, the public figure Plaintiff faces the same hurdle; the 

burden of proving that a defamatory statement was maliciously published and that 

the statement was false. If the media are permitted to withhold information that is 

relevant to this burden, whether or not the media are themselves the Defendants, the 

obstacles placed in the way of a plaintiff in attempting to vindicate his constitutionally 

protected interest in his reputation are rendered almost insurmountable. 705 A.2d at 

4 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 6 of 18
884-885 (emphasis added). 

CONCLUSION 

Accordingly, Plaintiff seeks the following: 

1) The contract entered into between Defendant and the National Enquirer concerning his 

exclusive interview, which is not "privileged" and, of course, does not relate to sources. 

2) The notes of the reporter's interviews with Defendant, which are critical to Plaintiffs 

defamation claim, and again, do not reveal - or can be redacted to eliminate - the identity of any 

sources. 

3) The drafts and/or any revisions, endorsements, or mark-ups of the Cosby article and Beth 

Ferrier article already shown to and read hy Defendant and his representative. Both articles are 

relevant to Defendant's state of mind in making statements as to Plaintiff. The newspaper's 

knowledge, Plaintiffs defamation claim, and Defendant's credibility. Once shown to nonnewspaper members of the public, the National Enquirer has waived its argument that any 

privilege attaches to the above documents. 

For all of the above reasons, Plaintiff respectfully requests that the National Enquirer be 

ordered to produce the requested materials on an expedited basis. 

Respectfully submitted, 

TROI VITZ, L.L.P. 

Dolores M. Troiani 

I.D. No. 21283 

Attorneys for the Plaintiff 

38 North Waterloo Road 

Devon, Pennsylvania 19333 

(610) 688.8400 

5 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 7 of 18
7 

William Cosby, Jr. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND 

vs -

:CIVIL ACTION 

:NO. 05-CV-.1099 

WILLIAM H. COSBY, JR.:VOLUME II 

3 Oral deposition of WILLIAM H. COSBY, 

3 JR., taken pursuant to notice, held at the 

Rittenhouse Hotel, 210 West Rittenhouse 

L Square, Philadelphia, Pennsylvania, on 

2 Thursday, September 29, 2005, beginning at 

3 approximately 9:20 a.m., before Jen 

1 Marchesani, a Certified Professional Reporter 

s and a Conunissioner of the Commonwealth of 

6 Pennsylvania. 

7 

8 KAPLAN, LEAMAN AND WOLFE 

9 The Bourse Building, Suite 970 

o 111 South Independence Mall East 

1 Philadelphia, Pennsylvania 19106 

.2 (215) 922-7112 

:3 

~4 

KAPLAN, LEAMAN AND WOLFE 

(800) 295-7571 

1 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 8 of 18
William Cosby, Jr. 

you knew that Beth Ferrier would give 

a statement to the press? 

A. Maybe about eight, nine 

months ago. 

Q. 

A. 

Q. 

A. 

counsel. 

How did you know that? 

I got a call about it. 

From whom? 

I hope I'm accurate, 

Q. You have four counsel 

sitting here. Which counsel was it? 

A. It was Marty Singer. 

Q. What did he say to you in 

that call? 

MR. O'CONNOR: Please don't 

answer that. It's attorney-client 

privilege. You know it is. It's 

absurd. 

THE WITNESS: Would she do 

that? 

BY MS. TROIANI: 

Q. What was Mr. Singer 

representing you in when he called 

You? 

K~ PT .:n l\T T "[;'171. 1\Wft ••• , •• ··---

148 

E 

x 

H 

I 

8 

I 

T 

s 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 9 of 18
, \. 11t 11 1111 ln\\n\\'.~\{ ·· 

William Cosby, Jr. 

Q. Do you have a public 

relations person who negotiates with 

newspapers when you give them an 

interview? 

A. 

Q. 

Yes. 

Did someone negotiate your 

interview with the Enquirer? 

MR. O'CONNOR: Don't answer 

that question if it was an attorney. 

If it was not an attorney, you can 

answer the question. 

THE WITNESS: I cannot 

answer the question. 

BY MS. TROIANI: 

Q. Did you have a written 

contract with the Enquirer to give 

this interview? 

MR. O'CONNOR: Which 

interview? 

MS. TROIANI: Your 

interview, my story. 

MR. O'CONNOR: That was 

dramatic. Can you answer the 

question? 

--------

155 

E 

x 

H 

I 

B 

I 

T 

s 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 10 of 18
William Cosby, Jr. 

l THE WITNESS: Yes. 

2 BY MS. TROIANI: 

3 

4 

5 

Q. 

A. 

Q. 

Please do. 

I did. 

You did have -- then my 

6 question was can you answer the 

7 question. 

a You do have a written 

9 contract with the Enquirer then? 

A. Yes. 

11 MS. TROIANI: Are you taking 

~u the position that that is also \i,·. 

l'J!•"· 

ar ':" privileged, Mr. O'Connor? ,~.~. 

it\. 

m~~ MR. O'CONNOR: Yes, just 

like Ms. Ferrier's contract was. I 

would consider exchanging her contract 

and her payment. 

MS. TROIANI: I don't have 

anything from her. 

MR. O'CONNOR: . I'm not going 

to allow anything like that to get in. 

I allowed him to answer the question 

it was a contract. I'm not going to 

allow him to divulge the discussions 

KAPLAN, LEAMAN n l\m TAJ("\ T i::;ii:;t 

156 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 11 of 18
William Cosby, Jr. 

couldn't tell me. 

MR. O'CONNOR: That's 

outrageous. Let's break for lunch. 

(At this time, a lunch break 

was taken.) 

BY MS. TROIANI: 

Q. What is your understanding 

of the agreement that you had with the 

National Enquirer concerning the story 

that appeared in the National Enquirer 

which was your exclusive interview 

termed my story? 

A. I would give them an 

exclusive story, my words. 

Q. What would they give you in 

return? 

A. They would not print the 

story of -- print Beth's story. 

Q. Why did you make that 

agreement? 

A. It was at a time when I did 

not want any tabloid-type accusations, 

sexual accusations going into a paper. 

Q. What do you mean by 

161 

E 

x 

H 

I 

8 

I 

T 

s 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 12 of 18
now? 

A. 

Q. 

I\\,. nc~\\f .. 

William Cosby, Jr. 

Yes. 

At the time you made this 

agreement with the Enquirer, did you 

know what her allegations were? 

A. Say that part again. At the 

time 

Q. You made the agreement with 

the National Enquirer to give your 

story, did you know what Beth's 

allegations were? 

A. Her story, I knew at least 

the National Enquirer's story. 

Q. The National Enquirer's 

version of what Beth said; is that 

what you're saying? 

A. Yes. 

Q. Did you know that Beth had 

been given a polygraph? 

MR. O'CONNOR: That she had 

given one? 

MS. TROIANI: Had been given 

one. 

THE WITNESS: When did I 

166 

E 

x 

H 

I 

B 

I 

T 

s 

w 

0 

A 

D 

I 

N 

D 

E 

x 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 13 of 18
William Cosby, Jr. 

know this? 

BY MS. TROIANI: 

Q. I'm asking, at any time did 

you know that Beth had been given a 

polygraph? 

A. That's what they said. 

Q. 

A. 

Who said? 

Somebody told me. I don't 

remember who. 

Q. 

before 

A. 

Do you know if you knew that 

I think it went into print 

somewhere. I think it was in one of 

your papers. 

Q. So, you don't believe you 

knew she passed the polygraph before 

you made the deal with the National 

Enquirer? 

MR. O'CONNOR: I object to 

the form. I mean, that it was 

reported that she passed the polygraph 

[ think would be a fair question. 

\Y MS. TROIANI: 

I'm asking your knowledge. 

K:nDT 7\ ....... 

167 

E 

x 

H 

I 

8 

I 

T 

s 

" ( 

F 

c 

I 

N 

D 

E 

x 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 14 of 18
William Cosby, Jr. 

asked? 

BY MS. TROIANI: 

Q. I'll clarify that. That's 

fair. 

Did someone read to you 

Beth's story that she had given to the 

National Enquirer? 

A. 

Q. 

A. 

Yes. 

When was that? 

That was before it was 

supposed to come out. 

Q. Did she say anything in that 

story different than the one that we 

reviewed this morning? 

A. I think that I will not say 

anything because it was read to me by 

my counsel. 

MR. O'CONNOR: I was just 

advised, and I want to put this on the 

record, by Mr. Schmitt that his 

llnderstanding of that article came 

: through an attorney-client 

relationship with his counsel. 

MS. TROIANI: Marty Singer? 

KAPLAN, LEAMAN AND WOLFE In""' - \. 

169 

E 

x 

H 

I 

B 

I 

T 

s 

" c 

F 

c 

I 

N 

0 

E 

x 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 15 of 18
William Cosby, Jr. 

Q. Did you tell them, because 

some of the things you said are in 

quotes, and some of it . 1S just the 

story. 

MR. O'CONNOR: This is in 

quotes, too, Cosby declared no man . 

MS. TROIANI: It's also . in 

quotes, the charge can 

MR. O'CONNOR: I want it in 

context. That's all I'm saying. His 

quote starts with no one wants to see 

his family put in the position of 

having these kinds of allegations come 

out and for your loved ones to suffer 

emotional stress, then it goes on. 

MS. TROIANI: That's fine. 

I didn't really care about that quote. 

I'll ask you about every quote that's 

in here. 

THE WITNESS: Please don't 

io that. Go ahead. I'm sorry. 

MR. O'CONNOR: We're going 

:o stipulate to what 's quoted I 

·elieve as coming from his mouth; 

KAPLAN I LEAM?l. l\T 7\ ?.'TT' ,._ .• _ ·- -

172 

w 

0 

R 

D 

E 

x 

H 

I 

B 

I 

T 

s 

I 

N 

D 

E 

x 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 16 of 18
t:-'. 

k 

~ 

William Cosby, Jr. 

isn't that correct? 

MR. SCHMITT: Yes. 

MR. O'CONNOR: We'll 

stipulate that whatever is in 

quotation marks from Mr. Cosby he 

said. 

MS. TROIANI: That's fine. 

It doesn't mean I still can't ask him 

the question. 

MR. O'CONNOR: I know that. 

I was trying to save some time. 

BY MS. TROIANI: 

Q. The charge can influence the 

view that family and friends have of 

him as a good person. 

A. Did I say that? 

Q. 

yes. 

A. 

It has quotations around it, 

Do you remember saying that? 

No, I don't remember saying 

it, of course not. But when the 

grammar gets to of him, we're still 

talking about no man wants to. And 

then when you get to of him, so I'm 

talking about no man. 

KAPLAN, LEAMAN AND WOLFE 

(800) 295-7.t=i71 

173 

E 

x 

H 

I 

8 

I 

T 

s 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 17 of 18
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff 

v. 

WILLIAM H. COSBY, JR., 

Defendant 

: CIVIL ACTION 

: NUMBER 05-1099 

: FILED UNDER SEAL 

CERTIFICATE OF SERVICE 

I hereby certify that on, January 5, 2006, the undersigned were served in the following 

manner, a true and correct copy of: Plaintiff's Motion For Leave to File A Reply 

Memorandum of Law to The National Enquirer's Memo in Opposition to Plaintiff's 

Motion To Compel Compliance with Subpoena Issued to the National Enquirer and 

Memorandum of Law. 

NAME 

Patrick J. O'Connor, Esquire 

Cozen O'Connor 

1900 Market Street 

Philadelphia, PA 19103 

Andrew D. Schau, Esquire 

MANNER 

United States First Class Mail 

United States First Class Mail 

Patterson Belknap Webb & Tyler, LLP 

1133 Avenue of the Americas 

New York, NY 10036 

Paul D. Weller, Esquire 

Jennifer B. Jordan· Esquire 

Morgan, Lewis & Bockius, LLP 

1701 Market Street 

Philadelphia, PA 19103 

Date: 1/5/06 

Unites.States First Class Mail 

Bebe H. Kivitz, Esquire 

I.D. No. 30253 

38 North Waterloo Road 

Devon, Pennsylvania 19333 

(610) 688.8400 

Case 2:05-cv-01099-ER Document 68 Filed 01/05/06 Page 18 of 18