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TROIANI/KIVITZ, L.L.P. ~' fv;/ H}i 1) oS-

~~~~~~~~~~~~~~~ATTORNEYS AT LAW~~~~~~~~~~~~~~~ 

DOLORES M. TROIANI, ESQUIRE 

BEBE H. I<IVITZ, ESQUIRE 38 NORTH WATERLOO ROAD 

DEVON, PA 19333 

November 21, 2005 

HAND-DELIVERED 

Office of the Clerk of Court 

Eastern District of Pennsylvania 

United States Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

RE: Constand v. Cosby, No. 05-CV-1099 

Plaintiff's Motion for Sanctions Concerning Conduct of Defendant 

At Deposition and Memorandum of Law in Support of Motion 

To the Clerk: 

( 610) 688-8400 

FAX(610)688-8426 

Enclosed for filing in the above-captioned matter, please find an original and two CD 

disks. 

Thank you for your anticipated cooperation. 

DMT:m 

Enclosure 

Respectfully submitted, 

cc: Patrick J. O'Connor, Esquire (Via-hand-delivery) 

Andrew D. Schau, Esquire, (Via first class mail) 

Andrea Constand (Via first class mail) 

- ...,1 

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 1 of 66
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 

PLAINTIFF'S MOTION CONCERNING CONDUCT OF 

DEFENDANT'S DEPOSITION AND MOTION FOR SANCTIONS 

Plaintiff prays this Honorable Court to Order Defendant to 

adhere to the guidelines set forth in Hall v. Clifton Precision, 

150 F.R.D. 525 (E.D. Pa. 1993), and further to order Defendant to 

submit to a full and complete deposition at his expense, and to 

sanction Defendant and/or his counsel by requiring them to 

reimburse Plaintiff for the costs of the Defendant's deposition, 

and to impose other sanctions, as the Court deems appropriate, 

and in support thereof incorporates herein the Memorandum of Law 

which is attached hereto. 

Respectfully submitted, 

TROI I/KIVITZ, LP 

BY: DOL RES M. TROIANI 

Attorney I.D. 21283 

BEBE H. KIVITZ 

Attorney I.D. 30253 

Attorneys for Plaintiff 

38 North Waterloo Road 

Devon, PA 19333 

(610) 688-8400 

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 2 of 66
CERTIFICATE OF SERVICE 

I hereby certify that on November 21, 2005, the undersigned were served in the following 

manner, a true and correct copy of: Plaintiff's Motion for Sanctions Concerning Conduct of 

Defendant at Deposition and Memorandum of Law. 

NAME 

The Honorable Eduardo C. Robreno 

Eastern District of Pennsylvania 

U.S. Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

Office of the Clerk of Court 

Eastern District of Pennsylvania 

U.S. Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

Patrick J. O'Connor, Esquire 

Cozen O'Connor 

1900 Market Street 

Philadelphia, PA 19103 

Andrew D. Schau, Esquire 

Patterson Belknap Webb & Tyler, LLP 

1133 Avenue of the Americas 

New York, NY 10036 

Date: I J~ lo£ 

MANNER 

Via Hand Delivered by Courier 

Via Hand Delivered by Courier 

Via Hand Delivered by Courier 

Via First Class Mail 

j .fl 

By: /i 1 ~ 

Dolo s M. Troiani 

Attorney I.D. No. 21283 

Attorney for Plaintiff 

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 3 of 66
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 

MEMORANDUM OF LAW IN SUPPORT OF 

PLAINTIFF'S MOTION CONCERNING CONDUCT OF 

DEFENDANT'S DEPOSITION AND MOTION FOR SANCTIONS 

Plaintiff respectfully requests that this Honorable Court 

order Defendant to adhere to the guidelines set forth in Hall v. 

Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), and further to 

order Defendant to submit to a full and complete deposition at 

his expense, and to sanction Defendant and/or his counsel by 

requiring them to reimburse Plaintiff for the costs of the 

Defendant's deposition, and to impose other sanctions, as the 

Court deems appropriate. 

Federal Rule of Civil 30(d) (3) authorizes the imposition of 

sanctions if the court finds that "any impediment, delay, or 

other conduct has frustrated the fair examination of the 

deponent." Further, this Honorable Court has promulgated certain 

procedures which state that if a discovery dispute requires the 

"Court's intervention, the Court customarily imposes sanctions 

upon the non-prevailing party unless the position of the nonparty is found to have been substantially justified." As is 

evident below, defense counsel's conduct cannot be justified 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 4 of 66
under any circumstances. Counsel engaged in conduct demeaning to 

the profession of law, deliberately obstructive, and 

unnecessarily vexatious, which conduct impeded the fair 

examination of the deponent. 

Defendant was deposed on September 27 and 28, 2005. Defense 

counsel was so obstructive in the deposition that he denied 

Plaintiff her right to an appropriate interrogation. Defense 

counsel openly coached the witness; conferred with him about the 

questions which were being asked; interrupted the questioning 

with long winded and repetitive speaking objections; directed 

defendant not to answer questions, (when privilege was not in 

issue), inappropriately asserted a claim of privilege to numerous 

questions and lines of questioning; and ultimately improperly 

terminated the deposition. Defense counsel's conduct was 

demeaning and disrespectful and beyond the pall of normal 

advocacy. His conduct so far exceeds the bounds of appropriate 

behavior that the majority, (but not all) 1 , of the conduct is 

reproduced herein so that this Honorable Court may have the full 

flavor of the obstructive nature of counsel's actions. 

A sampling of the actions which are the subject of this 

1 The Court has had the benefit of reading both days of the 

deposition, as well as, the Motion to Compel which has been 

simultaneously filed with the Motion. Plaintiff is not waiving 

her challenges to Defense Counsel's conduct on those days, but 

respectfully submits that the fifty pages of examples cited 

herein are sufficient proof to support Plaintiff's request for 

relief. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 5 of 66
motion are as follows: 

1. QUESTIONS RELATING TO A POLICE DOCUMENT 

Defendant was being questioned about a document which was 

generated by the police. It listed two social security numbers 

and addresses "associated with" defendant. The questions were 

directed at defendant's knowledge as to why those items would be 

"associated with" him. Prior to the deposition, in open Court, 

defense counsel had agree to provide plaintiff with information 

concerning defendant's residences. He did not provide the 

information. The following exchange occurred. 

MS. TROIANI: 

There can't be an agreement if we both don't agree. 

MR. O'CONNOR: 

You're never going to learn unless you listen. The 

agreement with the court was that I would allow Mr. Cosby to be 

questioned on residences where he lives. I indicated to the 

court in front of counsel that there was a listing of some 20 

properties, referenced on a policy of insurance that we blocked 

out with the understanding that when it came time for his 

deposition, I would allow counsel to explore with Mr. Cosby 

where he lives. Now, as far as I'm concerned, that's fairly 

simple questions. Where do you reside and he would answer those 

questions. She is not going to get a listing from Mr. Cosby of 

other assets and property which he owns. And I feel comfortable 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 6 of 66
in that direction. 

MS. TROIANI: 

I asked him what his residences were and he said 

Massachusetts. He did not go through which one of these 

properties and you did not provide it before the deposition. 

MR. O'CONNOR: 

He told you he resided in Cheltenham. 

MS. TROIANI: 

No, he did not. 

MR. O'CONNOR: 

He told you he resided in New York, he told you he resided 

in Massachusetts. You asked him with whom he resides in 

Massachusetts. I allowed those questions to be asked. I allowed 

them to be answered. If you want to ask him if he resides in 

any location in California, I will allow him to answer that. But 

you go through this litany, I'm not going to allow that. Ask 

the question, that's the agreement. 

(9/29/05, 16-17) 

The line of questioning was twofold. It not only concerned 

defendant's residences which Defendant had agreed in open court 

to provide but which were not provided; it also concerned the 

list generated by the police. Plaintiff had every right to 

inquire as to the accuracy of the list, and as to defendant's 

knowledge of why the addresses appeared on the list. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 7 of 66
Furthermore, counsel misrepresented that his client stated that 

he resided in New York and Cheltenham, and the record does not 

comport with that statement. As is evident below, counsel 

repeatedly misstated the testimony and the documents provided by 

the police. 

On September 27, 2005, the parties and counsel appeared 

before this Honorable Court in order to address certain discovery 

issues which were outstanding, and about which it was anticipated 

disputes would arise during the deposition. Plaintiff believed 

that the issues had been resolved by agreement and the Court 

issued an order finding that the disputes were moot. In fact, 

Defendant simply did not honor the agreements. 

2. QUESTIONS RELATING TO QUAALUDES 

After defendant testified that he obtained seven 

prescriptions for Quaaludes, the following testimony was 

elicited: 

Q. 

A. 

Q. 

it was --

You gave them to other people? 

Yes. 

(9/29/05, 66) 

You gave those drugs to other people knowing that 

MR. O'CONNOR: He said he gave it to T--- right now. 

MS. TROIANI: He said other people. He did say other people. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 8 of 66
BY MS. TROIANI: 

Q. Knowing that it was illegal? 

***MR. O'CONNOR: 

Whatever the legality of it is, it will stand. I'm 

instructing him not to answer. He gave the Quaaludes. If it was 

illegal, the courts will determine that. 

BY MS. TROIANI: 

Q. Did you ever get another prescription for 

Quaaludes from another doctor after that time? 

MR. O'CONNOR: 

This is in the '70s? 

THE WITNESS: 

A. No. 

BY MS. TROIANI: 

Q. Who are the people that you gave the Quaaludes to? 

MR. O'CONNOR: Keep it to the Jane Does. I'm not going beyond it. 

I'm instructing him not to answer it beyond the Jane Does. 

(Tr. 9/29/05. 66-68) 

BY MS. TROIANI: 

Q. When you got the Quaaludes, was it in your mind that 

you were going to use these Quaaludes for young women that you 

wanted to have sex with? 

A. Yes. 

Q. Did you ever give any of those young women the 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 9 of 66
Quaaludes without their knowledge? 

MR. O'CONNOR: Object to the question. Restrict it to the Jane 

Does, would you, please. 

MS. TROIANI: No, I will not. 

MR. O'CONNOR: Do not answer it. 

MS. TROIANI: It's a discovery deposition. 

THE WITNESS: 

I misunderstood. Woman, meaning T-----, and not women. 

BY MS. TROIANI: 

Q. Okay. So, you're saying you never gave the 

Quaaludes to anyone other than T-----? 

MR. O'CONNOR: Don't answer the question. You can ask all the 

questions you want about the Jane Does. 

BY MS. TROIANI: 

Q. Sir, I want to explain to you. I'm asking you a 

question. You have every right in the world to say, no, you're 

misunderstanding me. 

A. I just did. 

Q. Your counsel cannot give you clues, as he is 

obviously trying to do, that's inappropriate. 

MR. O'CONNOR: I'm not giving him clues. I'm instructing him not 

to answer, except in the context of T-----. And you keep 

violating my objection. We're going to go to court to resolve 

this. And every time you ask about relationships with other 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 10 of 66
women with whom he may have had consenting relationships, I'm 

going to stop it. 

MS. TROIANI: That's fine. You certainly can -- I understand your 

objection. There's no other need for you to say except 

objection. 

MR. O'CONNOR: I'm going to instruct him not to answer. 

MS. TROIANI: And you can tell him not to answer. That's fine. 

But the mere fact that you have made an objection and then I 

continue to ask a question, which I believe is pertinent and 

relevant and will lead to the discovery of relevant information 

is not violative of your objection because your objection is not 

anything but an objection. 

BY MS. TROIANI: 

Q. Now, let's get back to my questions. And certainly 

your counsel if he chooses to instruct you not to answer, he will 

do that. But I need to ask you these questions and I need to 

understand and the jury needs to understand. Are you saying that 

you never gave the Quaaludes to any other female but T-------? 

MR. O'CONNOR: Don't answer the question. Rephrase the question. 

BY MS. TROIANI: 

Q. Earlier I believe you testified that you had given 

the Quaaludes to other women; is that correct? 

MR. O'CONNOR: Do not answer that question. 

(9/29/05, 69-75) 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 11 of 66
This is a clear illustration of how counsel's remarks influenced 

the witness' testimony. Having unequivocally said that he gave 

the quaaludes to "other people" upon hearing counsel's thinly 

veiled clues, the deponent changed his testimony to a claim of 

having misunderstood the word women for woman. Further, Counsel 

appears to believe that he had taken on the role of judge. 

Asserting that he had made an objection, and that Plaintiff was 

"violating" his objection by attempting to place her questions on 

the record. He seemed to believe that Plaintiff was supposed to 

abide by his objection and refrain from asking the questions. In 

addition, Defense Counsel added the words, "in the 70's" to the 

question. There is no legal proceeding in which one lawyer can 

simply call out an addendum to the opposing lawyer's question. 

Defense counsel persisted in his improper conduct as 

follows: 

BY MS. TROIANI: 

Q. You would agree with me that if you got seven 

prescriptions for Quaaludes you could still keep those Quaaludes 

for a number of years? 

A. Yes. 

Q. And do you know how long after you stopped getting the 

prescriptions you still had the Quaaludes in your possession? 

MR. O'CONNOR: You're talking about the 1970s? 

MS. TROIANI: I'm talking about the Quaaludes. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 12 of 66
MR. O'CONNOR: In the '70s. That's the only time he got them. 

BY MS. TROIANI: 

Q. Did you get Quaaludes after the '70s? 

MR. O'CONNOR: You asked that and he said no. 

MS. TROIANI: You do not interrupt a deposition to testify, which 

is what you're doing. That is a clear violation of a federal 

rule. 

(9/29/05, 90) 

There is no doubt that defense counsel is not permitted to 

change the meaning of a question, as Mr. O'Connor did in the 

above sequence. When the undersigned attempted to continue the 

questioning the following occurred: 

(At this time, the court reporter read back from the record 

as requested.) 

BY MS. TROIANI: 

Q. Did you, sir? 

A. What was my instruction before you all started 

arguing? I'm sorry. 

Q. I don't know. If your lawyer is instructing you not 

to answer that, then you can't answer that. 

MR. O'CONNOR: The instruction was, and it's been asked and 

answered, was with T---- in 1976. The witness testified he got 

Quaaludes during that time frame. There was seven prescriptions 

over a period of years. You're now asking Quaaludes, he kept 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 13 of 66
those Quaaludes I guess in the '80s, '90s and year 2000. If 

that's your question whether he kept any prescriptions from the 

'70s filled by this deceased doctor, I'll allow you to answer 

because that's a relevant question. 

MS. TROIANI: That wasn't my question. 

BY MS. TROIANI: 

Q. Did you ever obtain Quaaludes again from any other 

source after the ones that you had been given in the prescription 

that were no longer available to you? 

MR. O'CONNOR: What time frame? Don't answer the question. 

BY MS. TROIANI: 

Q. Have you ever gotten any prescriptions from any 

other doctor which drugs would have a similar effect to 

Quaaludes? 

MR. O'CONNOR: During what time frame? 

MS. TROIANI: The time frame we have here is from the 1976 when 

we have the first Jane Doe that we've been discussing through the 

year 2004. 

MR. O'CONNOR: I think that's incorrect. The only Jane Doe that 

talks about Quaaludes is T----. If you have other Jane Does -

MS. TROIANI: I'm not talking about Quaaludes. 

MR. O'CONNOR: If there are any other Jane Doe that talks about 

any other drugs, I will allow that, but there is none. And 

you're suggesting there is from '76 to 2005. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 14 of 66
MS. TROIANI: Mr. 0 1 Connor 1 you're deliberately disrupting this 

deposition. Now 1 you have made that position clear. I believe 

that you are wrong. We do not agree that the drug that was given 

to our client was Benadryl. We have the right to explore 1 

especially now that your client has admitted illegally obtaining 

another drug 1 which could have a similar effect. We have the 

right to explore whether or not he has done that 1 if that is a 

pattern in his life. 

MR. O'CONNOR: Here's what you have a right to explore. You have 

a right to explore what he gave your client. 

MS. TROIANI: You have made that position clear. And now let's 

move on. 

MR. O'CONNOR: I will not interfere. You do not have a right to 

suggest that his candid admission in 1976 that he gave this T----

Quaaludes1 which seems to disturb you 1 his admission in that 

regard/ continued through 2006. That I'm not going to allow to 

happen. Stick to the Jane Does 1 ask whatever questions you want 

and move on to your client. If you think she got Quaaludes from 

the '70s 1 ask the question. 

MS. TROIANI: You have said that several times 1 sir. I will ask 

you to stop disrupting this deposition. I assure you that all of 

these interruptions will be brought to the court. You are 

clearly in violation of the federal rules. 

BY MS. TROIANI: 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 15 of 66
Q. Have you obtained drugs, any type of drug that would 

have the same type of effect as Quaaludes from any source since 

the time you got the Quaaludes to the time that you no 

longer had an association with our client? 

MR. O'CONNOR: I'm instructing him again not to answer. 

MS. TROIANI: That's fine. You keep disrupting this deposition. 

MR. O'CONNOR: I have a right 

MS. TROIANI: No, you do not. You've done it several times. We 

will move on. 

MR. O'CONNOR: Let me explain one thing. You want me to stop 

this deposition? I have a right to put my objection on the 

record. 

MS. TROIANI: You have done that. You do not have that right. 

You repeated several times. This is enough. Now, let's move on. 

MR. 

MS. 

MR. 

MS. 

MR. 

MS. 

MR. 

MS. 

O'CONNOR: 

TROIANI: 

O'CONNOR: 

TROIANI: 

O'CONNOR: 

TROIANI: 

O'CONNOR: 

TROIANI: 

No one is going to threaten me, Dolores. 

This is enough. 

I've had enough of you with your --

If you want to walk out, you go ahead. 

I'm not walking out. 

Stop interrupting. 

Do not ever talk to me that way again. 

Stop interrupting. 

(9/29/05, 92-98) 

The issue of Defendant's willingness and ability to obtain 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 16 of 66
an illegal drug for sexual purposes is crucial to Plaintiff's 

case. Defense counsel was unscrupulous in his total disregard 

for not only the Federal Rules of Civil Procedure but also the 

Pennsylvania Code of Civility. Counsel's conduct does not 

represent advocacy. It is turning a deposition into a carnival 

and in that sense it is a degradation of the process which 

lawyers take an oath to uphold. At this point in time, despite a 

previous written agreement to the contrary, counsel took the 

position that he would not permit the deposition of the defendant 

to continue beyond 4:00 p.m. that day. It was clearly his 

intention to consume large periods of time by incessant and 

repetitive speaking objections. 

3. STATEMENT TO POLICE OF RULE 415 WITNESS 

Defendant was questioned about a Rule 415 witness' 

statement, in which she stated that at age 19, she met defendant 

who had sex with her after giving her Quaaludes. Her statement 

was ambiguous about whether or not they continued to see each 

other or simply met again two years later. Defense counsel 

repeatedly interjected himself into the testimony, giving his 

version of the incident and once again denying the applicability 

of Rule 30 (c) to the proceedings. 

THE WITNESS: 

A. That's her statement. I don't know. How many years 

ago are we talking about? 197 what? 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 17 of 66
MR. O'CONNOR: 6. 

BY MS. TROIANI: 

Q. You thought it was later than that? 

MR. O'CONNOR: He met her two years later. 

THE WITNESS: 

A. I meet Ms (Redacted) in Las Vegas. She meets me back 

stage. I give her Quaaludes. We then have sex. I do not I 

can't judge at this time what she knows about herself for 19 

years, a passive personality. 

(9/29/05, 76-77) 

A. T----- was sweet in her personality. As far as I was 

concerned was well-mannered, didn't demand or give a feeling that 

she was above anyone. If anything, I think she may very well 

have been very happy to be around the show business surroundings. 

Q. Star struck? 

A. You'll have to ask her. 

Q. So, you wouldn't disagree with her when she says in the 

report that she was star struck? 

MR. O'CONNOR: Object to the form. He just answered the 

question. He said ask her. Then you asked the same question 

again. I object to the form of the question. 

MS. TROIANI: 

Q. You can answer. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 18 of 66
THE WITNESS: 

A. What am I doing? 

MR. O'CONNOR: You can answer. I objected to the form. You 

already answered it. She said do you agree with her after you 

already said you have to ask her. 

question. 

I think he's answered your 

THE WITNESS: 

A. Yes, you have to ask her, please. 

BY MS. TROIANI: 

Q. Now, she seems to say in this report that after that 

initial meeting she did not see you again until she was 21; is 

that correct? 

A. I have no idea. 

MR. O'CONNOR: The question seems she unequivocally states. It's 

an incorrect statement. She states she spent a two-week period 

with Mr. Cosby at Lake Tahoe when she was 21. 

BY MS. TROIANI: 

Q. I don't think it's clear whether or not you saw her in 

between that time. And you don't know if you saw her from the 

time of the initial contact until when she met you in Lake 

Tahoe? 

MR. O'CONNOR: I don't even think he testified he met her at Lake 

Tahoe. I'm reading the statement. 

MS. TROIANI: It's cross-examination. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 19 of 66
MR. O'CONNOR: I object to the form of the question because it 

assumes he testified to that. 

(9/29/05, 78-80) 

In this instance, counsel gives his opinion of the question, 

coaches his client with an answer, which the Defendant 

immediately adopts and then recaps his version of the previous 

testimony. 

4. DEFENDANT'S RELATIONSHIP WITH WILLIAM MORRIS AGENCY 

Defendant testified that he called Tom Illus of the William 

Morris Agency and asked him to send money to one of the Rule 415 

witnesses. He testified that Mr. Illus did not ask him why. He 

then testified: 

Q. Have you ever asked him in the past to send money to 

women? 

A. I'm not sure. 

Q. Had you ever had a discussion with him concerning this 

process where he would act as a conduit for you to send funds to 

other people? 

MR. O'CONNOR: If you restrict it to Jane Does, I'll allow him to 

answer the question or to Andrea. 

MS. TROIANI: I believe the court said we can delve into other 

issues in his life concerning other women that he may or may not 

have paid. 

MR. O'CONNOR: I don't believe so. The problem is it's a question 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 20 of 66
of privacy for other consenting adults, if it's occurred. I don't 

think it would be appropriate. The judge says it is, we'll 

abide. I don't think it's appropriate to bring, if there are 

other women with a consenting relationship, into the situation. 

MS. TROIANI: You don't know that they're consenting adults. Mr. 

Cosby believes Andrea consented. She does not. That's your 

issue. We've got to know who they are so we can find out from 

them. 

MR. O'CONNOR: We do know who they are. There's 11 of them and 

you're on the second one. 

(9/29/05, 83-84) 

In this passage, counsel was clearly cluing the witness to 

only testify about the 11 women, they believe are known to the 

Plaintiff, and to not reveal any others. He also gave Defendant 

the clue concerning uconsenting adults", which Defendant then 

used in his responses. 

5. QUESTIONS REQUESTING EXPLANATION OF PREVIOUS ANSWER 

BY MS. TROIANI: 

Q. Mr. Cosby, did you believe that T------ P-----would go 

to the press with her story when you sent her the money? 

A. No. 

Q. You said that after you got off the phone you were 

angry and you thought about it. What were the possibilities that 

you thought about? 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 21 of 66
MR. O'CONNOR: Object to the form of the question. You can 

certainly ask him what went through his mind if he recalls. 

BY MS. TROIANI: 

Q. What did you think about? 

MR. O'CONNOR: If anything. 

MS. TROIANI: He just said he did. 

(9/29/05, 86-87) 

Although defendant eventually answered the question, it was 

improper for defense counsel to interject himself into the 

questioning. If he had an objection to form, he need only have 

said the one word. It is then Plaintiff's counsel's decision as 

to whether or not to rephrase the question. In addition, 

Defendant had just testified that he thought about the call after 

he got off of the phone and he decided to send the caller money. 

In view of that testimony Defense counsel's comment, "If 

anything" cannot be defended under any circumstances. 

6. QUESTIONS REGARDING STATEMENT TO POLICE OF ANOTHER RULE 415 

WITNESS 

BY MS. TROIANI: 

A. She says she met you 24 years ago at a health club in 

Las Vegas where she worked as a masseuse. Do you recall meeting a 

woman who was a masseuse? 

A. No. 

Q. She was about 27 years old. You have no recollection 

of this woman at all? 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 22 of 66
A. No. 

MR. O'CONNOR: It says she was 25. 

MS. TROIANI: I'm looking at her statement. 

(9/29/05, 99-100) 

After the interruption, the questioning continued as follows: 

A. I don't understand what I'm supposed to say never 

happened. How do I know she was in a dream-like state? Isn't 

that introspective? 

MR. O'CONNOR: Do you recall this woman or not? 

THE WITNESS: No. 

MS. TROIANI: Sir, do not interrupt my cross-examination. 

MR. O'CONNOR: Will you please stop telling me what my rights I 

resent it. He answered he didn't recall this woman and yet you 

go on. 

MS. TROIANI: You're not to interrupt my cross-examination. You 

could not do it in court, you can't do it here. 

MR. O'CONNOR: Of course I could do it in court. 

MS. TROIANI: No, you couldn't. 

MR. O'CONNOR: I don't know the last time you've been in court. 

MS. TROIANI: Please do not get personal. 

(9/29/05, 103-104) 

Again, defense counsel chose a very low road. Undoubtably 

frustrated by his client's apparent inconsistencies, he resorted 

to personal attacks which increased in frequency, as his client's 

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 23 of 66
testimony become more and more unbelievable. 

BY MS. TROIANI: 

Q. Are you telling us that this woman has made up this 

story about you having sex with her? 

MR. O'CONNOR: Don't answer. I object to the form of that 

question. He doesn't recall the woman. If that's his testimony, 

then he can't testify to what you asked. 

(9/29/05, 104) 

There can be no justification for counsel actually answering the 

questions. 

BY MS. TROIANI: 

Q. So, you are saying then that you never encountered a 

woman, whether or not you remember what her name was, in Las 

Vegas that you had dinner with her, gave her a shot of alcohol 

and that you had sex with her after that? 

MR. O'CONNOR: That wasn't your earlier question that he said no 

to. It was totally different. Now you've rephrased it to a 

whole different situation. So, in fairness to the witness, you 

can answer. That's a totally different question. 

(9/29/05, 106) 

The Defendant obediently followed his counsel's lead and 

responded by dissecting the two questions. 

7. DEFENDANT'S REFERENCE TO PREVIOUS TESTIMONY 

The deposition began in the afternoon of September 28, 2005. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 24 of 66
Defendant was questioned about a dinner party he had at his home. 

The dinner guests included Plaintiff and high level 

administrators from Swarthmore College and the University of 

Pennsylvania. Defendant, at first stated that he did not want to 

reveal the names of the other dinner guests. Upon further 

questioning, he stated that he did not know the names of the 

guests other than Plaintiff. The undersigned's tone of voice was 

incredulous and the following day Defendant appeared to imply 

that he did know the names and that I was correct that he 

deliberately withheld the names, and the following occurred: 

THE WITNESS: 

A. People come to my house what? 

Q. People come to your house whose names you don't know. 

You told us yesterday that you didn't know the names of the 

people who were at the dinner. So, people do come to your 

house that you don't know or remember at this point? 

A. Yes. I said that yesterday, but you know what I was 

doing yesterday. 

Q. No, I don't. What were you doing yesterday? 

A. Never mind if you don't know. I don't know this man. 

This man came to my house. I don't know him. 

Q. Are you suggesting that yesterday you were 

deliberately not telling us the names of the people at 

Swarthmore? 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 25 of 66
A. I'm not suggesting anything. 

MR. O'CONNOR: That is so outrageous and inappropriate. I'm 

going to take a break. I may call the judge on this. I'm not 

going to put up with this crap, okay? I am tired of you 

insulting this witness and his voracity (sic) . And if you 

continue with it, I'm shutting it down. 

MS. TROIANI: I'm here to test his voracity(sic) 

MR. O'CONNOR: You better not challenge it in this fashion. 

MS. TROIANI: He just said I knew what he was doing yesterday. 

And I asked him a follow-up question. 

MR. O'CONNOR: He answered your question about who attended 

dinner parties and he identified what their position was and then 

he couldn't recall their names. And you're suggesting there's 

some linkage here. 

BY MS. TROIANI: 

Q. What did you mean by I knew what you were doing 

yesterday? 

MR. O'CONNOR: Who was doing? What you were doing? 

MS. TROIANI: 

back. 

You understand my question. I'll have her read it 

(9/29/05, 116-118) 

It was apparent that defense counsel was concerned as to 

what his client was about to admiti however, that does not 

justify his language, nor is it appropriate advocacy to attack 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 26 of 66
opposing counsel personally. 

8. COUNSEL'S MISSTATEMENTS OF EVIDENCE 

BY MS. TROIANI: 

Q. So, this would have then occurred in the 1990s; is 

that correct? 

A. I'm not sure about the year or the decade of the Turn 

of the Century engagements. 

MR. O'CONNOR: You know that's 21 years ago. Why would you say 

that? I don't get this. 

MS. TROIANI: Sir, please do not give clues to the client. 

MR. O'CONNOR: I have to read the statement, because as you well 

know that we put on the record -

MS. TROIANI: I'm done. You cannot interrupt the deposition. 

Stop interrupting the deposition. 

MR. O'CONNOR: I apologize. I'm sorry. 

MS. TROIANI: Thank you. 

MR. O'CONNOR: Should I go to my corner? 

BY MS. TROIANI: 

Q. Let's get back to Beth Ferrier. 

MR. O'CONNOR: Don't mislead this witness. You know when she met 

him. 

MS. TROIANI: I am not misleading a witness. 

MR. O'CONNOR: You're deliberately misleading the witness on Beth 

Ferrier. It's over 20 years ago. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 27 of 66
BY MS. TROIANI: 

Q. Did you not tell me that you knew Jo Farrell in 

the 1990s? 

(9/29/05, 121-122) 

Defense counsel heard Defendant claim to have meet Jo 

Farrell in the 1990's. Beth Ferrier was introduced to Defendant 

by Jo Farrell. Again, counsel's method of cluing the Defendant 

that he was being inconsistent was to attack opposing counsel and 

once again provide counsel's version of the events. 

Thereafter, Defendant was questioned about an newspaper 

article in which Beth Ferrier revealed her encounter with 

Defendant. 

BY MS. TROIANI: 

Q. So, you know that she's stating that you gave her 

drugs in order to have sex with her? 

MR. O'CONNOR: Point that out, please. Give me a reference 

before we allow the question. 

MS. TROIANI: Here's your favorite coffee, something I made for 

you to relax you. 

MR. O'CONNOR: This is the quote she gave to the newspaper. 

(9/29/05, 126) 

BY MS. TROIANI: 

Q. Do you recall doing that? 

A. And what happened? 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 28 of 66
Q. Do you recall that? 

A. Excuse me. I gave her drugs, you said, am I correct? 

Q. Yes. 

A. Okay. Then you read, here's your favorite coffee. 

Q. That's because your counsel said he wanted it pointed 

out to him, not to you. 

MR. O'CONNOR: Because the report never said that. Okay. That's 

the fairness that's not going on here. 

MS. TROIANI: I'm reading from the newspaper article. 

MR. O'CONNOR: It doesn't say drugs, it says coffee, then she 

passed out. 

MS. TROIANI: It says, about 21 years ago after she ended a month 

long consensual affair with the entertainer, she said, he drugged 

her when she visited him before a performance in Denver. Is that 

not what it says, Mr. O'Connor? 

MR. O'CONNOR: Give me the reference. 

THE WITNESS: What paper is it? 

MR. O'CONNOR: Nicole Egan, the Daily News. Which reference are 

we here so I can follow this? She talks about coffee. 

MS. TROIANI: I'm looking at the fourth paragraph. You have the 

article in your own folder. I've given you another copy. 

MR. O'CONNOR: I have it now. 

BY MS. TROIANI: 

Q. I'll read this to you. About 21 years ago after 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 29 of 66
she ended a month long consensual affair with the entertainer, 

Beth Ferrier says he drugged her when she visited him before a 

performance in Denver. Do you agree with that? 

A. No. 

MR. O'CONNOR: Read on. 

BY MS. TROIANI: 

Q. He said, here's your favorite coffee, something I made 

to relax you. Do you recall saying that? 

A. No. 

Q. She says she drank the coffee, became woozy and next 

thing she knew several hours had passed and she had no memory of 

what happened. Did an incident like that ever occur with Beth 

Ferrier? 

(9/29/05, 126-128) 

It is extremely doubtful that Mr. O'Connor had such 

difficulty reading the newspaper article. Further, this is 

another illustration of the Defendant's strategy, that is, 

attempt to divert attention from his misdeeds by constantly 

accusing opposing counsel of imagined misconduct, in this case 

claiming the question was unfair because the article did not say 

that Defendant drugged Ms. Ferrier when in fact it did. Lawyers 

., should address one another with appropriate decorum and not 

disparage their profession with wild and unfounded accusations 

against one another. To advocate on a client's behalf is to 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 30 of 66
address the facts of the case, not to lodge unfounded accusations 

at opposing counsel. 

9. DEFENDANT'S VIEW OF THE DAILY NEWS 

The Beth Ferrier article was read to Defendant and he was 

given the opportunity to admit or deny what Ms. Ferrier said. 

Instead, he attempted to digress from that line of questioning by 

claiming that the article was written so as to engender pity for 

Ms. Ferrier. 

Q. So, 

newspaper? 

He was questioned as follows: 

your objection is that they put it in the 

A. No, my objection is that this is a newspaper piece as 

told to and it's her description of whatever it is at the end of 

something. 

MR. O'CONNOR: He's denied under oath the bagel story. That's 

the point. He's already testified to that. 

(9/29/05, 140) 

In fact, that was not the point that his client was making. 

This time Mr. O'Connor was unsuccessful in re-focusing his client 

and the following ensued: 

Q. So, am I understanding that your point is that the 

press is manipulating public opinion with this story? 

A. Don't say that. Say trying to, because when you leave 

it, it's sort of like this sorrow story of a woman, she left 

without saying good-bye. The good-bye could have been when he 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 31 of 66
--:: 

said you have to leave. 

Q. So, the story is accurate, you're just objecting to 

what? 

MR. O'CONNOR: Object to the form. 

MS. TROIANI: I want to understand what you're saying. You don't 

have to testify to what he's saying. 

BY MS. TROIANI: 

Q. Can you answer that question? 

MR. O'CONNOR: No. Wait. 

MS. TROIANI: You do not testify, Mr. O'Connor. That's enough of 

your testifying. 

MR. O'CONNOR: Young lady. 

MS. TROIANI: 

MR. O'CONNOR: 

MS. TROIANI: 

MR. O'CONNOR: 

MS. TROIANI: 

MR. O'CONNOR: 

MS. TROIANI: 

what to say. 

question? 

MR. O'CONNOR: 

MS. TROIANI: 

Thank you, but no. 

What occurred here is Mr. Cosby has already --

Call me counselor or Ms. Troiani. 

Ms. Troiani, he testified already that he --

Oh --

Let me finish. 

He's going to testify, you're going to tell him 

I will not let you finish. Do you object to my 

Yes. 

Fine. 

(9/29/05, 141-143) 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 32 of 66
Again, in the context of a legal proceeding, it is improper for 

counsel to address one another except by terms which emphasizes 

their professionalism. 

those terms. 

Certainly, "young lady" is not one of 

On this occasion, the undersigned prevented Mr. O'Connor 

from testifying and obtained an answer to the question, but 

defense counsel simply seethed and reloaded: 

Q. What happened when you saw her in Denver? 

A. I guess we met. 

had 

MR. O'CONNOR: Don't guess. 

occurred, tell her. 

I can only imagine that we met and 

If you have a recollection of what 

THE WITNESS: I don't recall. 

BY MS. TROIANI: 

Q. You don't recall what happened? 

A. I don't. 

Q. She says what happened is that you gave her coffee, 

which she believed was drugged and that somehow she ended up in a 

car in a parking lot and that she believes that you had had 

sexual contact with her while she was unconscious? 

MR. O'CONNOR: That was already asked and answered. You want him 

to go over it again? 

MS. TROIANI: He said he doesn't remember. 

BY MS. TROIANI: 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 33 of 66
Q. You don't remember that occurring? 

MR. O'CONNOR: Don't answer that question. You've answered that 

question and we're not going to answer it again. I'll stand on 

that. You didn't like his first answer, now you're trying to get 

another. 

BY MS. TROIANI: 

Q. Do you remember being in a car with her? 

MR. O'CONNOR: He's already answered that. 

MS. TROIANI: No, he has not. 

THE WITNESS: No. 

MR. O'CONNOR: The record will reflect that you answered all 

those questions. 

BY MS. TROIANI: 

Q. Do you know whether or not you had sexual contact with 

her at that time in Denver when she came to meet you in Denver? 

A. Probably. 

(9/29/05, 144-146) 

It is conceded that asking the same question repeatedly can 

become oppressive. But to ask the same question twice, 

particularly in this case where the answers were often 

inconsistent, is simply an appropriate form of clarification. 

10. DEFENSE COUNSEL'S ASSERTION OF ATTORNEY-CLIENT PRIVILEGE 

Defense counsel inappropriately asserted the attorney-client 

privilege in circumstances when it clearly did not apply. After 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 34 of 66
lunch he reversed his position somewhat, but by then Plaintiff 

had incurred the expense of the court reporter and her attorney's 

time as Defendant wasted almost an hour by asserting a privilege 

when he knew it was improper to do so. 

BY MS. TROIANI 

Q. When was the first time that you knew that Beth Ferrier 

would give a statement to the press? 

A. 

Q. 

A. 

Q. 

A. 

Q. 

was it? 

A. 

Q. 

Maybe about eight, nine months ago. 

How did you know that? 

I got a call about it. 

From whom? 

I hope I'm accurate, counsel. 

You have four counsel sitting here. Which counsel 

It was Marty Singer. 

What did he say to you in that call? 

MR. O'CONNOR: Please don't answer that. It's attorney-client 

privilege. You know it is. It's absurd. 

THE WITNESS: Would she do that? 

(9/29/05, 147-148) 

An attorney telling his client what a third party said is 

not privileged; however, even if defense counsel believed that he 

was correct, he should be prohibited from making remarks such as 

the one reproduced above. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 35 of 66
BY MS. TROIANI: 

Q. What was Mr. Singer representing you in when he 

called you? 

MR. O'CONNOR: Don't answer That. 

privilege. 

It's an attorney-client 

MS. TROIANI: What he was representing him in? 

MR. O'CONNOR: Yes. 

BY MS. TROIANI: 

Q. How long has Mr. Singer represented you? 

A. Certain cases. 

Q. What was the case that was occurring at the time that 

he called and told you about the Beth Ferrier account? 

***MR. O'CONNOR: It's attorney-client privilege. 

Q. What did you do as a result of phone call from Mr. 

Singer? 

MR. O'CONNOR: Don't get into that if it was pursuant to his 

advice. It's attorney-client privilege, as you well know. It's 

a very clever way of piercing it, but we're not going to allow 

him to divulge those confidences. So move on. 

MS. TROIANI: I need a response from him. You told him if it 

was as a result. 

MR. O'CONNOR: Your question was as a result. 

MS. TROIANI: What he did after that? 

MR. O'CONNOR: Yes. He was acting pursuant to counsel 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 36 of 66
presumably. 

BY MS. TROIANI: 

Q. Were you acting pursuant to counsel's advice, Mr. 

Cosby, whatever you did? 

MR. O'CONNOR: Whatever you did without saying what it was. 

THE WITNESS: I don't even know what the question was. 

BY MS. TROIANI: 

Q. I asked you how did you find out about Beth Ferrier 

going public with her statement and you told me you got a call 

from Marty Singer? 

A. Right. 

Q. I asked you what you did after that phone call? 

MR. O'CONNOR: It was objected to. 

MS. TROIANI: Counsel is saying if you acted pursuant to his 

advice, then what you did he believes you cannot tell us. 

THE WITNESS: That is correct. 

BY MS. TROIANI: 

Q. Would you agree to waive your attorney-client 

privilege in this regard? 

A. Can we go to lunch? 

Q. I take that you will not? 

A. I refuse to waive. 

Q. After you received the phone call from Marty Singer, did 

you make any arrangements with the National Enquirer to give them 

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 37 of 66
an interview? 

MR. O'CONNOR: Don't answer any question about whatever you and 

Mr. Singer discussed or what you did as a result of those 

discussions. 

MS. TROIANI: I didn't ask him that. You may answer the 

question. 

MR. O'CONNOR: No, you may not. 

MS. TROIANI: Are you telling me that I cannot ask him about his 

Enquirer article, which is the subject of the defamation claim? 

MR. O'CONNOR: I didn't say that. I said you cannot invade the 

attorney-client privilege. 

MS. TROIANI: No one is telling him to invade the attorney-client 

privilege. 

MR. O'CONNOR: Listen to your question. 

MS. TROIANI: Would you read back my question? 

(At this time, the court reporter read back from the record as 

requested.) 

MR. O'CONNOR: Don't answer the question as phrased. It's 

clearly pursuant to advice. 

MS. TROIANI: It is not pursuant to his advice. 

MR. O'CONNOR: Rephrase your question because the way that 

question is phrased it would be, after you talked to him, what 

did you do. We're not going to allow him to do that. 

BY MS. TROIANI: 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 38 of 66
Q. Did you know about Beth Ferrier's intention to give a 

story to the National Enquirer at any time in your entire life? 

MR. O'CONNOR: If you did not learn about it through your 

attorneys. If you learned about it through another source, I 

will allow you to answer. 

MS. TROIANI: I disagree with that. 

BY MS. TROIANI: 

Q. I need to know, did you learn from any source that Beth 

Ferrier was going to give a story to the National Enquirer? 

MR. O'CONNOR: You can only answer if you learned from a source 

other than your attorney. We're not going to allow the 

attorney-client privilege to be pierced. 

BY MS. TROIANI: 

Q. Can you answer that? 

A. ~. 

(9/29/05, 150-154) 

Q. Did someone negotiate your interview with the 

Enquirer? 

MR. O'CONNOR: Don't answer that question if it was an attorney. 

If it was not an attorney, you can answer the question. 

Q. You did have -- then my question was can you answer the 

question. You do have a written contract with the Enquirer then? 

A. Yes. 

BY MS. TROIANI: Are you taking the position that that is also 

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 39 of 66
privileged, Mr. O'Connor? 

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 he and his 

attorney had with the Enquirer in connection with the article. 

BY MS. TROIANI: 

Q. Was there anyone else present 

attorney has just said that there were 

now your present 

he will not allow you 

to reveal discussions that you and your attorney had with the 

Enquirer. Was there anyone else present when these discussions 

occurred? 

A. No. 

Q. Wasn't there a representative from the Enquirer 

present? 

MR. O'CONNOR: Of course. 

THE WITNESS: Not wait a minute. What did I just tell you? 

BY MS. TROIANI: 

Q. No, sir, you have to answer my question. 

A. No, I just told you no. And then you said, now 

wait a minute, wasn't there. 

Q. Did you ever negotiate with anyone from the 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 40 of 66
Enquirer about this article? 

MR. O'CONNOR: If you did so without an attorney. 

MS. TROIANI: If he did so with an attorney present and there's a 

third party, there's no attorney-client privilege and you know 

that. 

MR. O'CONNOR: That's a false statement of the law. 

MS. TROIANI: Okay. If that's your position, that's your 

position. 

MR. O'CONNOR: It's an incorrect statement of the law. 

BY MS. TROIANI: 

Q. Were you paid for the article that appeared in the 

National Enquirer? 

***MR. O'CONNOR: If it's pursuant to negotiation you and your 

attorney had, I'm not going to allow the him to answer. 

BY MS. TROIANI: 

Q. Did you make any agreement with the Enquirer that if 

they didn't print Beth Ferrier's story you would give them an 

interview? 

MR. O'CONNOR: Don't answer the question if it was pursuant to 

discussions between your attorney. 

BY MS. TROIANI: 

Q. Are you not answering the sir? 

MR. O'CONNOR: He's instructed not to. 

BY MS. TROIANI: 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 41 of 66
Q. Had you at any point threatened to sue the National 

Enquirer? 

A. Yes. 

Q. Did you sue them? 

A. No. 

Q. What prompted you then to give this newspaper this 

story? 

***MR. O'CONNOR: If it's pursuant to instructions from your 

attorney, do not answer. You can phrase questions that would 

stop this objection. 

BY MS. TROIANI: 

Q. Are you declining to answer? 

A. Yes. 

Q. Without revealing any discussions with your attorney, 

can you tell me what thoughts went through your mind that caused 

you to give this interview to the National Enquirer? 

A. No. 

MR. O'CONNOR: If 

MS. TROIANI: You cannot 

MR. O'CONNOR: I have a right to object. 

MS. TROIANI: He said he couldn't tell me. 

MR. O'CONNOR: That's Let's break for lunch. 

(9/29/05, 154-161) 

Following the lunch break, some of the objections to the line of 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 42 of 66
questioning were withdrawn and defendant reversed his earlier 

position in which he reneged on the agreement to finish his 

deposition at another date, if we did not conclude on September 

29. However, Plaintiff and her counsel wasted over an hour, 

while Defense Counsel interposed objections that were so clearly 

specious that Defendant had to reverse his position. Plaintiff 

should not be prejudiced by this behavior and Defendant should be 

required to reimburse her for the expenses incurred during this 

exercise. 

After the lunch break, Defendant admitted that he agreed to 

give an exclusive interview to the National Enquirer in exchange 

for their agreement to not print the Beth Ferrier story. He was 

then questioned as to his knowledge of the Beth Ferrier story, as 

follows: 

Q. Has someone read the story to you, the National 

Enquirer story? 

A. Yes. 

Q. And how recently was that? 

A. That was with counsel. Is this the National Enquirer 

story? 

Q. Yes. 

A. That they never printed? 

MR. O'CONNOR: No, this is my story. 

THE WITNESS: I don't know what she's talking about then. I 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 43 of 66
thought she was talking about Beth Ferrier's story in the 

National. What was the question asked? 

(9/29/05, 166-168) 

In fact, the questioning concerned the Beth Ferrier story but 

Defense Dounsel interjected "my story," which was the title of 

the article that defendant gave to the Enquirer. 

BY MS. TROIANI: 

Q. I'll clarify that. That's fair. Did someone read to 

you Beth's story that she had given to the National Enquirer? 

A. Yes. 

Q. When was that? 

A. That was before it was supposed to come out. 

Q. Did she say anything in that story different than 

the one that we reviewed this morning? 

A. I think that I will not say anything because it was 

read to me by my counsel. 

MR. O'CONNOR: I was just advised, and I want to put this on the 

record, by Mr. Schmitt that his understanding of that article 

came through an attorney-client relationship with his counsel. 

MS. TROIANI: Marty Singer? 

MR. O'CONNOR: I think a different lawyer. 

MS. TROIANI: Who is the lawyer? 

MR. O'CONNOR: I think it might be Mr. Schmitt, so let's not try 

to go there. (9/29/05, 169-170) 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 44 of 66
Defendant testified that he was given the Beth Ferrier 

story, which was pending publication in the Enquirer for his 

review. It was his reading this story which prompted him to make 

the deal with the Enquirer to print his story, instead. It is 

that story which is the subject of the defamation claim. 

Incredibly, Defendant asserted the attorney client privilege as 

to questions about the Beth Ferrier story because it was read to 

him by his lawyer. Not only is the privilege not applicable 

because the Beth Ferrier story is not a confidential 

communication, it is also not applicable because the privilege 

cannot be asserted when the attorney is participating in the 

tort. Rhone-Poulenc Rorer, Inc. V. Home Indemnity, Co., 32 F.3d 

851 (3d. Cir. 1994) 

The assertions of privilege to the circumstances surrounding 

Defendant's National Enquirer story are particularly egregious. 

At the hearing before this Honorable Court on September 27, 2005, 

Plaintiff's Interrogatory 21 was addressed. The interrogatory 

reads: 

Describe all communications by you with the Enquirer 

relating to Plaintiff's allegations, including why and 

when you gave an exclusive interview on February 21, 2005, 

and any conversations or communications preceding same. 

Attach a copy of any communications or agreement reduced 

to writing regarding the exclusive interview. 

The Court, in assisting counsel to reach an agreement, determined 

that this was an appropriate area for inquiry, especially in view 

of the fact that Plaintiff believed that Defendant had "traded 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 45 of 66
up." That is, he used his celebrity status to induce the 

Enquirer to print the def amatory article rather than the one 

which by his own admission, lends credibility to Plaintiff's 

allegations. 

11. QUESTIONS CONCERNING DEFENDANT'S STORY 

The National Enquirer article of Defendant's story was read 

to Defendant and he was then questioned as to whether or not he 

had actually made the statements in the article. It was the 

intention of Plaintiff's counsel to asked Defendant to explain 

each statement. The article is one of the basis of Plaintiff's 

defamation claim. 

BY MS. TROIANI: 

Q. Did you say that the charge can influence the view that 

family and friends have of him, meaning you, as a good person and 

a person to be trusted? I'm setting up your quote. 

the charge can influence 

It does say 

MR. O'CONNOR: Dolores, with all due respect, it starts, no man 

wants to see his family. 

MS. TROIANI: I'll get there. 

BY MS. TROIANI: 

Q. Did you tell them, because some of the things you said 

are in quotes, and some of it is just the story. 

MR. O'CONNOR: This is in quotes, too, Cosby declared no man. 

MS. TROIANI: It's also in quotes, the charge can --

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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 do that. Go ahead. I'm sorry. 

MR. O'CONNOR: We're going to stipulate to what's quoted I 

believe as coming from his mouth; isn't that correct? 

MR. SCHMITT: Yes. 

MR. O'CONNOR: We'll stipulate that whatever is in quotation 

marks from Mr. Cosby he said. 

MS. TROIANI: That's fine. It doesn't mean I still can't ask him 

the question. 

MR. O'CONNOR: I know that. I was trying to save some time. 

(9/29/05, 171-173) 

Following this exchange, Defendant promptly denied making 

one of the statements which was in quotes: 

BY MS. TROIANI: 

Q. Following what I just read to you, it says, a published 

report states that the woman's mother called Cosby before her 

daughter went to the police and the comedian was under the 

impression she was after hush money. And that is also in quotes. 

A. But that's not me, I didn't say that. 

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Q. It says the comedian, quote, was under the impression 

she was after hush money, end quote. 

MR. O'CONNOR: That's not a correct statement. 

MS. TROIANI: A published report states that the woman's mother 

called Cosby before her daughter went to the police and the 

comedian, quote, was under the impression, end quote, she was 

after hush money. 

MR. O'CONNOR: But the she was after hush money is not in quotes, 

it's referring not to this article, but another report. 

have that report, let's look at it. 

BY MS. TROIANI: 

Q. Did you say that? 

(9/29/05, 183) 

If you 

Again, Mr. O'Connor interjected himself into the questioning 

so that it was impossible to obtain an answer to the question 

being posed. 

The next frivolous objection interposed by counsel was that 

Defendant could not be questioned about what he meant in the 

defamatory article, as follows: 

Q. Were you saying in this statement that Andrea was 

trying to exploit you because of your celebrity status? 

MR. O'CONNOR: No. I'm going to object to the form. Because the 

statement speaks for itself. It clearly excludes Andrea. 

MS. TROIANI: I am absolutely entitled to ask him. 

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(9/29/05, 181) 

Again, counsel provided a "clue" when he stated that the 

statement excluded Plaintiff. 

Q. So, you did not believe that Andrea or her mother 

wanted money from you at the time they made the phone calls to 

you? 

A. No. 

Q. Then why did you offer them money? 

MR. O'CONNOR: I object to the form of that question. I don't 

believe there's anything in the record. If you have something, 

give it to him. 

(9/29/05, 187) 

There is no requirement that the deponent be given a 

document during questioning (Federal Rule of Evidence 613) and 

counsel's demand for such was clearly improper. 

12. QUESTIONS ABOUT DEFENDANT'S STATEMENT TO THE POLICE 

Thereafter, defendant was questioned about his statement to 

the police. During the questioning his counsel was permitted to 

read the statement to him, (9/29/05, 191). As plaintiff's 

counsel attempted to question defendant about the statement, his 

counsel repeatedly interrupted, in an overt attempt to influence 

defendant's answers which were inconsistent with the statement he 

had previously given to the police. The following occurred: 

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Q. Did that lead you to believe that Andrea or her mother 

would use the information to either extort money from you or 

embarrass you? 

MR. O'CONNOR: Object to the form of the question. There's never 

been any time that he used the word extort, which is a crime. 

MS. TROIANI: You can answer. 

THE WITNESS: No. 

BY MS. TROIANI: 

Q. I'll refer to page 12 of the police statement that you 

gave, the fifth question down. At any time because of who you 

are, did you feel that there was the potential that either Andrea 

or her mother was going to use this information to either 

embarrass you or extort you? Did you have any of these concerns? 

And you answered, yes. Do you recall telling the police yes? 

A. Yes. 

Q. So, why is your answer different today? 

MR. O'CONNOR: It's not. I object to the form of the question. 

It's either embarrass or extort. 

MS. TROIANI: That's exactly what I said. 

MR. O'CONNOR: Which is it, embarrass or extort? 

MS. TROIANI: You can answer now that your counsel gave you a 

clue. 

(9/29/05, 193-195) 

Not only was defense counsel blatantly telling Defendant the 

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answer, he was telling him the wrong answer because in fact his 

statement did include an allegation that Plaintiff was trying to 

extort money from him. 

13. QUESTIONS ABOUT THE OFFER OF A TRUST TO PLAINTIFF 

Defendant testified that even though both Plaintiff and her 

mother told him that all they wanted was an apology, he called 

Plaintiff's home and spoke to her mother to offer money for 

Plaintiff's "education." The following occurred during 

questioning about that event: 

Q. So, are you saying that Andrea would have to prove to 

you that she got a 3.0 average wherever she went in order for you 

to pay for her education? 

A. She would have to prove to me that while she was at 

said university that she was maintaining a 3.0. 

Q. But you didn't require that of T------, did you? 

A. T-----, yes. How can you say, but you weren't? Do you 

know the deal with T----? 

Q. You told us earlier. 

A. What did I say it was? 

Q. You said that you didn't require her to prove to you 

that she got the As. 

MR. O'CONNOR: That wasn't the deal. 

MS. TROIANI: I'm not talking about the deal. 

(9/29/05, 199-200) 

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Again, counsel overtly clued in his client as to how counsel 

wanted his client to answer the question. Defense counsel is not 

stating an objection, he's merely asserting his opinion as to how 

the question should be answered. There can not be any 

justification for this behavior. 

14. QUESTIONS ABOUT WHAT DEFENDANT TOLD THE ENQUIRER. 

BY MS. TROIANI: 

Q. Did you ever tell the National Enquirer that the only 

thing that Andrea's mother had asked for in that conversation was 

an apology? 

A. I didn't mean the only thing she asked for. I was 

coming off of what she said. That's all I wanted, Bill. That's 

all I wanted. 

Q. So, are you saying, no, you did not tell them that all 

she asked for was an apology? 

A. I'm trying to get you to understand what I was saying. 

The answer is yes, because when I said, I apologize. Her mother 

said -- I said, I apologize. 

wanted. 

She said, okay, Bill, that's all I 

Q. Now we're a little confused on this record. Are you 

telling me that, yes, you did tell the National Enquirer 

A. I don't know what is there. Read the thing. 

Q. Mr. Cosby, you have to wait for me to finish asking the 

question. We have to make sure we're on the same page. Because I 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 52 of 66
asked you a question and you answered yes. And I'm not sure I 

know what you answered yes to. I need to go back and clarify 

this. Did you tell the National Enquirer that all that Andrea's 

mother had asked for in your conversation was an apology? 

MR. O'CONNOR: Let me break this down in fairness. 

MS. TROIANI: I will object to that because you're now coaching 

the witness. The Hall Case, Rule 30, you are not permitted to do 

this. 

THE WITNESS: I can't read this. I would be able to look at 

this, wouldn't I? 

BY MS. TROIANI: 

Q. I will assert to you, and I will read this whole 

article to you if you want, that nowhere in this article does it 

appear that you said to the National Enquirer that all the mother 

asked for was an apology, but that's not my question. 

A. What is your question? 

Q. My question is, did you tell the person who wrote 

this article or a representative of the National Enquirer that 

all Andrea's mother asked for was an apology? 

MR. O'CONNOR: I'm going to object to the form of the question 

because Mr. Cosby has explained that even though the mother 

accepted his apology, he read between the lines. 

MS. TROIANI: This is totally unacceptable, sir. You have to 

stop coaching the witness. 

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 53 of 66
MR. O'CONNOR: I'll go to my corner later. It's an unfair 

question. I'm instructing him not to answer. Please rephrase 

it. 

BY MS. TROIANI: 

Q. Are there things that you told the National Enquirer 

that did not get into this story? 

A. I couldn't tell you. I really could not in 

honesty. I don't know. 

Q. Do you know if you told the National Enquirer that 

when you spoke to Mrs. Constand all she asked for was an apology? 

MR. O'CONNOR: I object to the form of that question. She said 

many other things to you other than that. And in the context of 

that question, that's all she asked for. 

THE WITNESS: May I? 

MS. TROIANI: Certainly. 

THE WITNESS: A writer - -

MS. TROIANI: I need you to answer my question. 

THE WITNESS: I'm answering your question. A writer 

BY MS. TROIANI: 

Q. May I make a suggestion to you? 

A. Yes. 

Q. You can answer my question yes or no and then you 

can explain it for the rest of the day. 

MR. O'CONNOR: You can answer your question any way you'd like, 

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Mr. Cosby. That's not a yes or no question, it's an unfair 

question because it mischaracterizes what the conversation was 

between them. If you want to answer that question given that --

MS. TROIANI: If you want to adopt what your attorney just said -

MR. O'CONNOR: If you want to adopt what I said, you can. 

BY MS. TROIANI: 

Q. Can you answer my question? 

A. The answer is no, I did not tell the writer that that 

was the only thing. I explained to the writer what Andrea's 

mother said, which means that a writer can go off and do anything 

he wants to do after that. 

Q. What did you tell the writer that Andrea's mother had 

said? 

MR. O'CONNOR: If anything. 

MS. TROIANI: He just said he told her. 

THE WITNESS: Andrea's mother said that's all I wanted, Bill. 

Twice. 

BY MS. TROIANI: 

Q. And you told that to the National Enquirer? 

A. Yes. 

Q. You told the National Enquirer? 

A. How many times -- do you have something where I'm 

lying or some proof or something? Because I can't answer it any 

other way. That's what I said to the fellow sitting in the 

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suite. 

Q. I want to make sure because you're talking about you 

told the National Enquirer that the mother only asked you to give 

her an apology. 

Mr. O'CONNOR: I've objected to the form of the question. 

THE WITNESS: Look, once again, you've got to understand what I 

say and what a writer puts 

MS. TROIANI: I understand that fully. 

THE WITNESS: If it's not here, if it isn't here, then I believe 

that it's null and void. If it isn't here, if it isn't in some 

newspaper or somewhere, help me where you're having a problem 

with the writer saying that I told him something or somebody said 

I told them something when it isn't in print. I think I have the 

right to say something to someone and then they write down, I 

say, give me a head of lettuce and the guy says, two tuna fish 

sandwiches. That's not what I said. I know what Andrea's mother 

said to me. And I have no problem saying at least, Bill, that's 

all I wanted to hear. 

MR. O'CONNOR: There's confusion. 

MS. TROIANI: This is very confused. 

MR. SCHMITT: Can we stop for a second. Can we go off the record 

for a second. (At this time, a discussion was held off the 

record.) 

MS. TROIANI: We have agreed based upon representations of 

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counsel, it is agreed that Mr. Cosby did not tell the National 

Enquirer that all Andrea or her mother asked for was an apology. 

Is that agreed, Mr. O'Connor? 

MR. O'CONNOR: Yes. And the record will stand that my 

recollection is that Mr. Cosby told you under oath that he did 

not recall what he told the National Enquirer anyway, except for 

what was printed and in quotes. That's my recollection of the 

record. With that caveat, I agree to that stipulation. The 

record will say what it says. 

MS. TROIANI: The record will say what it says. Let's get moving 

here. 

(9/29/05, 224-232) 

Apparently, Mr. Schmitt was present during the discussions 

with the National Enquirer and he properly requested a recess to 

alert opposing counsel, and so that he could remonstrate upon 

hearing his client testify to what did not occur. Mr. O'Connor, 

on the other hand, sought to alert Defendant that he should now 

change his testimony to a lack of memory of what he told the 

National Enquirer. 

15. TERMINATION OF THE DEPOSITION 

Defendant was questioned about his recollection of the night 

that he gave the drugs to Plaintiff. For the first time, he 

recounted that he broke one pill in half and gave Plaintiff three 

halves. This story was inconsistent with his prior statement. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 57 of 66
Defense Counsel interfered in the questioning, as follows: 

BY MS. TROIANI: 

Q. So, you broke one pill in half. Where are the three? 

If you have one half and one whole one, that's two. Are you 

saying you broke the whole one so you had three halves? 

A. Yes. 

Q. Why would you break the whole pill in half and give 

her both halves? 

A. Because they're long. 

MR. O'CONNOR: Let me read what he said. 

MS. TROIANI: Please do not. I'm not discussing that statement. 

I'm talking to him about the incident. 

MR. O'CONNOR: I'm not going allow you. This is the statement he 

gave. 

MS. TROIANI: You may not do this. 

MR. O'CONNOR: Of course I can. 

MS. TROIANI: You may not. 

MS. KIVITZ: We're going to have to call the judge. 

MR. O'CONNOR: Call the judge. 

MS. TROIANI: If his statement today is inconsistent --

MR. O'CONNOR: This is unfair because he can't read his 

statement. 

MS. TROIANI: If his statement is inconsistent to the police, 

like you asked our client --

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 58 of 66
MR. O'CONNOR: She was reading it. 

MS. TROIANI: She was not reading it. 

MR. O'CONNOR: Incorrect. It's an unfair examination. He's 

entitled to know what he said to the police. 

allow this travesty to occur. 

I'm not going to 

MS. TROIANI: That's why he should have been prepped for more 

than three hours, if we believe he was prepped for three hours. 

MR. O'CONNOR: Are you challenging something here? 

MS. TROIANI: Yes, I am. I am asking him and I don't want you to 

interrupt him at this moment. 

MR. O'CONNOR: I am asking him if he wants his statement read. 

He is entitled to it. 

MS. TROIANI: He is not. This is cross-examination. 

MR. O'CONNOR: When I cross-examined your client on the 

statement, the statement was in front of her. 

MS. TROIANI: I'm not cross-examining him on the statement. 

MR. O'CONNOR: Of course you are. 

MS. TROIANI: I am not. I'm asking him his recollection of what 

occurred. 

MR. O'CONNOR: Do you wish to read your statement before you give 

the answers? 

MS. TROIANI: And I object to your asking him to do that and I 

will seek sanctions against you. That is a Rule 30 violation and 

you know it. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 59 of 66
MR. O'CONNOR: You have no clue what a Rule 30 violation is. Do 

you wish to read your statement again before you answer these 

questions or not? If you don't and want to answer 

them on your own --

THE WITNESS: Yes, I would like it read to me. 

MS. TROIANI: We object. 

MR. O'CONNOR: Let's call the court. Get him on the phone. 

Because he has every right to read his statement. 

MS. TROIANI: He does not, not in the middle of my 

cross-examination. 

MR. O'CONNOR: It's not cross-examination. 

MS. TROIANI: It certainly is. It ~bsolutely is. 

MR. O'CONNOR: This is unfair for the witness not to read his 

statement. Call the judge, otherwise we're not going to 

continue. 

MS. TROIANI: Then let's not continue. 

MR. O'CONNOR: Why won't you let him read his statement? 

MS. TROIANI: I have never in 31 years allowed a witness to read 

to me from his statement. If I want to read his statement, I'll 

read it. I want to know what he remembers. 

MR. O'CONNOR: I allowed your client to do it. 

MS. KIVITZ: Not true. 

MS. TROIANI: If he's telling the truth, he won't have an issue. 

MR. O'CONNOR: Every time I questioned your client she had the 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 60 of 66
interview in front of her. 

MS. KIVITZ: She was not reading her statement. 

MR. O'CONNOR: The record will reflect that. 

(9/29/05, 233-239) 

After a failed attempt to speak with the emergency judge, 

defense counsel improperly terminated the deposition. 

SUMMARY 

Plaintiff urges this Honorable Court to adopt the guidelines 

set forth in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 

1993). As the Court is aware from reading the Defendant's 

deposition and Plaintiff's Motion to Compel, the above examples 

of misconduct on the part of Defense Counsel are not all 

inclusive. If one had the ability to count the words, it would 

not be surprising to find that Mr. O'Connor spoke more than Mr. 

Cosby. Federal Rule of Civil Procedure Rule 30(d)provides, in 

relevant part, that: 

Any objection during a deposition must be stated 

concisely and in a non-argumentative and non-suggestive 

manner. A person may instruct a deponent not to answer 

only when necessary to preserve a privilege, to enforce 

a limitation directed by the court, or to present a 

motion [to protect the deponent or party from annoyance, 

embarrassment, or oppression] . 2 

2 Defendant can hardly claim that the objections sought to 

protect him from embarrassment. He frequently joked, made 

comedic faces, and gestured wildly while illustrating how he pats 

the "butts" of high school students at the Penn Relays. By way 

of illustration, when asked if employees were required to sign a 

confidentiality agreement, defendant replied that they had a 

choice but if they didn't sign ... "We kill them ... " (Tr. 9/28/05, 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 61 of 66
Defense counsel openly and repeatedly violated this rule and 

as noted above stated to the questioner, "You have no clue what a 

Rule 30 violation is." (9/29/05, 238). In fact, it is Defense 

Counsel who appears to have no familiarity with Rule 30. It is 

incumbent upon counsel to be familiar with the Federal Rules and 

to abide by them. Getex v. Ohio Casualty Ins. Co., 1994 U.S. 

Dist. Lexis 501, (E.D. Pa. 1944). 

It may be that counsel believed that Hall, supra, was 

inapplicable because Rule 30 was amended after the decision; 

however, the amendment embodies the spirit of Hall, and the 

comment to the rule states that the purpose of the 1993 amendment 

was to avoid exactly what occurred in this case, "Depositions 

frequently have been unduly prolonged, if not unfairly 

frustrated, by lengthy objections and colloquy, often suggesting 

how the deponent should respond." In that objections to 

relevancy; competency and materiality are not waived if not made 

24) and at one pointed admitted: 

THE WITNESS: I'm not making fun of you. 

MS. TROIANI: I don't think you're making fun of me. I think 

you'r making light of a very serious situation. 

THE WITNESS: That may very well be. 

MS. TROIANI: It is, sir. 

(9/28/05, 104-105) 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 62 of 66
at the deposition, (Federal Rule of Civil Procedure 32(d) (3) (a)), 

counsel's persistence in making these objections could only serve 

the purpose of disrupting the deposition, which in fact they did. 

Hall has been favorably cited by numerous courts throughout 

the country, including this Honorable Court, Bey v. Pennsylvania 

Department of Corrections, 98 F. Supp. 2d 650, (E.D. Pa. 2000) at 

footnote 29. Although the Hall guidelines have not been 

considered by the Third Circuit, the guidelines have been applied 

to various cases in the Third Circuit, O'Brien v. Amtrak, 163 

F.R.D. 232, 236 (E.D. Pa. 1995); Applied Telematics, Inc. v. 

Sprint, 1995 U.S. Dist. Lexis 2192, (E.D. Pa. 1995); Frazier v. 

SEPTA, 161 F.R.D. 309 (E.D. Pa. 1995); Lauria v. Amtrak, 1999 

U.S. Dist. Lexis 7562, (E.D. Pa. 1999); Christy v. Pennsylvania 

Turnpike Comm'n, 160 F.R.D. 51 (E.D. Pa. 1995); Johnson v. Wayne 

Manor Apts., 152 F.R.D. 56 (E.D. Pa. 1993). 

Counsel's conduct in this matter is strikingly similar to 

that detailed in O'Brien v. Amtrak, 163 FRD 232 (E.D. Pa. 1995) 

In that case, the court imposed the Hall guidelines because of 

defense counsel's behavior which included numerous speaking 

objections, consultations with witnesses during recesses and 

while questions were pending, which allegedly resulted in changes 

in testimony, as well as improper instructions not to answer 

certain questions, interruptions of Plaintiff's questioning, 

Defense Counsel's practice of interjecting his own questions to 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 63 of 66
the witnesses and other similar behavior. 

In addition to the imposition of the Hall guidelines, 

Plaintiff herein requests that the Court sanction Defendant by 

requiring him to 1) to submit to the remainder of the deposition 

in which inquiry will be made into those areas which were not 

reached; 2) pay the costs of the deposition and reasonable 

counsel fees incurred at the time of the deposition and in the 

preparation of this Motion and Memorandum of Law; and 3) permit 

the re-examination of defendant in the areas which were 

obstructed by counsel. 

In Lauria v. Amtrak, 1999 U.S. Dist. Lexis 7562, (E.D. Pa. 

1999), the Court denied a Motion for Protective Order to prevent 

a third deposition of Plaintiff, allowing the third deposition to 

proceed because of counsel's obstructive and improper behavior in 

the second deposition. It is respectfully submitted that 

requiring Defendant to be deposed without restrictions as to 

whether or not he answered the same question in the first 

deposition is also appropriate in this case. The interference 

of counsel was so pervasive that fairness dictates that Plaintiff 

be given the opportunity to re-depose Defendant at his expense. 

It is further requested that this Honorable Court establish 

a deadline for the date of the continuation of Defendant's 

deposition and that three (3) days be set aside for that 

deposition. 

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Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 64 of 66
WHEREFORE, Plaintiff respectfully prays this Honorable Court 

to grant the Motion for Sanction and for the imposition of the 

Hall guidelines to depositions. 

Respectfully submitted, 

BY: 

-62-

I/KIVITZ, LLP 

ES M. TROIANI 

Attorney I.D. 21283 

BEBE H. KIVITZ 

Attorney I.D. 30253 

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 65 of 66
CERTIFICATE OF SERVICE 

I hereby certify that on November 21, 2005, the undersigned were served in the following 

manner, a true and correct copy of: Plaintiff's Motion for Sanctions Concerning Conduct of 

Defendant at Deposition and Memorandum of Law. 

NAME 

The Honorable Eduardo C. Robreno 

Eastern District of Pennsylvania 

U.S. Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

Office of the Clerk of Court 

Eastern District of Pennsylvania 

U.S. Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

Patrick J. O'Connor, Esquire 

Cozen O'Connor 

1900 Market Street 

Philadelphia, PA 19103 

Andrew D. Schau, Esquire 

Patterson Belknap Webb & Tyler, LLP 

1133 Avenue of the Americas 

New York, NY 10036 

Date: JI }JJ/05' 

I 

MANNER 

Via Hand Delivered by Courier 

Via Hand Delivered by Courier 

Via Hand Delivered by Courier 

Via First Class Mail 

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 66 of 66