IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, : 

: 

 Plaintiff, : 

 : No. 05-cv-1099 

 v. : 

 : 

WILLIAM H. COSBY, JR., : 

 : 

 Defendant. : 

ORDER 

AND NOW, this ______________ day of __________________, 2015, upon 

consideration of Plaintiff’s Motion for Injunctive Relief, Defendant’s opposition thereto, and 

Defendant’s Motion to Strike, it is hereby ORDERED and DECREED that Plaintiff’s Motion is 

DENIED and Defendant’s Motion is GRANTED. Accordingly, the Clerk is DIRECTED to 

STRIKE from the record Plaintiff’s Motion for Injunctive Relief (ECF Doc. 107) and any 

attachments or exhibits thereto. 

 

 _____________________________ 

 Robreno, J.

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 1 of 19
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, : 

: 

 Plaintiff, : 

 : No. 05-cv-1099 

 v. : 

 : 

WILLIAM H. COSBY, JR., :

 : 

 Defendant. : 

DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S MOTION FOR 

INJUNCTIVE RELIEF 

Defendant William H. Cosby, Jr., files this motion to strike Plaintiff’s motion for 

injunctive relief (ECF Doc. 107). For the reasons set forth in the accompanying brief in support 

hereof, which is fully incorporated herein, Plaintiff’s motion should be denied, Defendant’s 

motion should be granted, and Plaintiff’s motion for injunctive relief (ECF Doc. 107), and any 

attachments or exhibits thereto, should be struck from the record. 

Dated: July 21, 2015 /s/ Patrick J. O’Connor 

Patrick J. O’Connor (No. 13086) 

George M. Gowen III (No. 83210) 

Matthew L. Bleich (No. 208069) 

Michael P. Zabel (No. 310278) 

COZEN O’CONNOR 

One Liberty Place 

1650 Market Street 

Philadelphia, PA 19103 

215.665.2000 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 2 of 19
1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, : 

: 

 Plaintiff, : 

 : No. 05-cv-1099 

 v. : 

 : 

WILLIAM H. COSBY, JR., : 

 : 

 Defendant. : 

MEMORANDUM OF LAW IN SUPPORT OF 

DEFENDANT’S MOTION TO STRIKE AND IN OPPOSITION 

TO PLAINTIFF’S MOTION FOR INJUNCTIVE RELIEF 

Defendant William H. Cosby, Jr., respectfully submits this memorandum of law, in 

support of his Motion to Strike Plaintiff’s Motion for Injunctive Relief, and also in opposition to 

Plaintiff’s motion. 

INTRODUCTION 

The timing of Plaintiff’s July 8, 2015 motion reflects an attempt on her part to ride on the 

coattails of the barrage of inaccurate and negative media attention that followed this Court’s July 

6, 2015 release of excerpts from Defendant’s deposition. Those deposition excerpts included 

Defendant’s candid testimony that he had had an extramarital affair with one of the Rule 415 

Witnesses in the 1970’s, and that, as part of that affair, she took Quaaludes offered by Defendant. 

(Doc. #48, at 15.) Those excerpts did not, however, contain any testimony that Defendant 

engaged in any non-consensual sex or gave the Rule 415 Witness (or anyone else) Quaaludes 

without her knowledge or consent. Indeed, Quaaludes were a highly popular recreational drug in 

the 1970’s, labeled in slang as “disco biscuits,” and known for their capacity to increase sexual 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 3 of 19
2 

arousal. There are countless tales of celebrities, music stars, and wealthy socialites in the 1970’s 

willingly using Quaaludes for recreational purposes and during consensual sex. Yet, upon the 

unsealing of those excerpts, the media immediately pounced, inaccurately labeling the released 

testimony as Defendant’s “confession” of “drugging” women and assaulting them.1 Reading the 

media accounts, one would conclude that Defendant has admitted to rape. And yet Defendant 

admitted to nothing more than being one of the many people who introduced Quaaludes into 

their consensual sex life in the 1970’s. Especially now that Defendant’s entire deposition is in 

the public domain, it is all the more obvious that the media, armed with only one side of the 

story, cavalierly misinterpreted Defendant’s testimony. Emboldened by the media’s one-sided 

reporting, Plaintiff has now filed a Motion that is a barely-veiled attempt to continue her and her 

counsel’s campaign against him in the public eye, despite having settled her actual claim against 

him and having agreed to say no more. 

In sum, Plaintiff argues in her motion that, because other women accused Defendant after 

this case was settled—causing publicity and generating benign, non-substantive comments from 

Defendant and his counsel—her crucial promise to Defendant of confidentiality should simply be 

voided. In this obvious attempt to smear Defendant, Plaintiff even goes so far as to claim that 

she, as opposed to Defendant, is the victim of the current barrage of negative publicity about 

Defendant. 

As she states in her motion, Plaintiff’s specific goal is to be permitted to release the 

entirety of Defendant’s deposition transcript to the media. As the Court already knows, Plaintiff 

already got what she wanted. On or about July 18, 2015, Plaintiff’s own hired court reporter 

 

1

 For example, Vanity Fair reported, “The comedian admitted to drugging women in a 2005 

deposition.” (See Ex. A.) Variety’s headline was “Bill Cosby Admits to Drugging Women for 

Sex.” (See Ex. B.) The New York Daily News claimed Defendant admitted: “I drugged gals for 

sex.” (See Ex. C.) 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 4 of 19
3 

turned Defendant’s entire, near 1,000-page, deposition transcript over to the media, without a 

word to Defendant. The media now has published the transcript worldwide. This occurred 

despite Plaintiff’s contractual obligation to prevent it. And this occurred after the Court and 

Defendant expended significant resources in motion practice over whether motions containing 

just some of Defendant’s deposition would become public, and after Judge Padova ordered that 

Plaintiff’s counsel must not turn over Defendant’s deposition to certain third-parties seeking it by 

subpoena. This massive breach of protocol and of the parties’ settlement agreement dwarfs the 

petty complaints Plaintiff makes in her Motion. 

In any event, as is explained below, Plaintiff’s accusations against Defendant are 

incorrect and overstated, and Plaintiff has suffered no injury. In fact, it is she, and her counsel, 

who have violated the Settlement Agreement, enabling and fomenting negative—and largely 

inaccurate—publicity against Defendant. Plaintiff and her counsel should be sanctioned, and her 

request for equitable relief should be denied because of her unclean hands. 

FACTUAL BACKGROUND 

This case, now closed, was a sexual assault and defamation case between two individuals. 

Plaintiff claimed that she accepted and ingested pills from Defendant, believing them to be an 

“herbal remedy of some sort.” She claimed that the pills incapacitated her, and that Defendant 

sexually assaulted her while she was incapacitated. Defendant denied these allegations. 

Plaintiff professed that, at trial, she would offer testimony from 13 additional women 

who would accuse Defendant of similar prior acts. These women became known as the “Rule 

415 Witnesses.” Some of the Rule 415 Witnesses kept their names and allegations confidential 

and were identified as “Jane Does.” Others revealed their names and stories to the public. 

Defendant did not, as Plaintiff represents, “successfully petition[] the Court to permit” the Jane 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 5 of 19
4 

Does’ names “to be made public.” Rather, Plaintiff forced Defendant to move the Court to 

require Plaintiff to reveal their names to him in confidential discovery. Defendant and his 

counsel took care throughout the case and after to keep those names confidential. 

From the outset, Plaintiff and her counsel made it clear that they would use publicity and 

the media to attack Defendant and to pressure him into a settlement. Early in the case, the Court 

adopted Pennsylvania Rule of Professional Conduct 3.6, to remind Plaintiff’s counsel of their 

obligations not to make certain extrajudical statements to the press. (See Doc. #30.) In an 

October 6, 2005 letter to the Court, Plaintiff’s counsel professed her intent to publish the 

discovery from this case, thus providing Plaintiff “a public forum in which to clear her name.” 

Before the case ended, Plaintiff argued that “the seal should be lifted so that Plaintiff may be 

vindicated.” In fact, the judicial activity in this case was not on the merits but instead was 

largely about publicity—whether discovery would be kept confidential (as is traditional), 

whether discovery motions would be sealed, whether protective orders would be entered. At 

every turn, Plaintiff fought Defendant’s attempts to avoid publicity of the case. 

On October 16, 2006, the parties and their counsel entered into a “Confidential 

Settlement Agreement and General Release” (the “Settlement Agreement”).2

 The agreement 

required Plaintiff, her parents, and her counsel not to disclose or to comment on “any aspect of 

this LITIGATION,” including the allegations in the case and any information they learned 

through discovery in this case or through the prior criminal investigation by the Montgomery 

County District Attorney and the Cheltenham Township Police Department. (See Ex. D, 

 

2

 The Settlement Agreement itself was to be kept confidential. The agreement provided an 

exception, however, allowing the parties to disclose the terms of the agreement to a court, should 

the agreement become the subject of litigation, but only to the extent necessary. (See Ex. D, 

O’Connor Decl. ¶ 3.) Because Plaintiff’s Motion initiates litigation about the confidentiality 

terms of the agreement, those terms may be noted here. 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 6 of 19
5 

O’Connor Decl. ¶ 3.) The Settlement Agreement also required Plaintiff and her counsel to “use 

their best efforts to ensure that their respective . . . consultants, agents, . . . and vendors comply

with the confidentiality provisions” of the agreement. (See id.) Having procured an end to this 

case, Defendant and his counsel agreed to the same confidentiality terms. 

In 2014, newly public allegations surfaced against Defendant, and some of his accusers 

have sued him, in various jurisdictions. Two of the former Rule 415 Witnesses, Tamara Green 

and Theresa Serignese, have sued Defendant in the United States District Court for the District of 

Massachusetts, in a proceeding captioned Green et al., v. Cosby (“Green”). Defendant, while 

careful to limit public comment, has responded briefly to media questions about the new 

allegations, as has his counsel. 

Meanwhile, Plaintiff and her counsel, with settlement in hand, are intent on reneging on 

what they promised Defendant—confidentiality and finality—and depriving Defendant of his 

end of the bargain. As long ago as February 2014, Plaintiff, in response to an article about this 

case, “tweeted” that, “I won’t go away, there is a lot more I will say.” (See Ex. E.) In March 

2014, she added, “It’s not that everybody just forgot about [this case,] truth is nobody cared.” 

(See id.) On July 6, 2015, in response to the Court’s unsealing, Plaintiff “tweeted”: “Yes!” and 

“Sir!” in quick succession. (See id.) Then, on July 8, 2015, Plaintiff gave an interview to the 

Toronto Sun about her “heavy ordeal involving Bill Cosby.” (See Ex. F.) In the interview, she 

lamented her confidentiality restrictions, because “there is so much more to say.” (See id.) 

Apparently, Plaintiff is no longer satisfied with the settlement in this case, and she now wants to 

resume her campaign against Defendant in the court of public opinion. 

In May 2015, the Green plaintiffs issued a subpoena to Plaintiff’s counsel, seeking her 

entire file from this case, including Defendant’s deposition transcripts. They did this despite the 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 7 of 19
6 

fact that Defendant’s motion to dismiss the Green case was pending and that discovery in Green

had not yet begun. Plaintiff’s counsel, Ms. Troiani, was in contact with the Massachusetts 

plaintiffs’ attorney to arrange for the subpoena to be served. Defendant moved to quash the 

subpoena, invoking the Settlement Agreement and arguing that the subpoena was premature. 

See Green v. Cosby, 15-mc-144 (E.D. Pa. 2015). Soon thereafter, the Green court stayed 

discovery in that case, and the Hon. John Padova stayed the subpoena to Plaintiff’s counsel.

Recently, in June 2015, prompted by the Associated Press, this Court held proceedings to 

determine whether to unseal discovery motions in this case. The parties had filed the motions 

under seal by leave of Court, and the motions contained quotes from Defendant’s deposition in 

this case. Defendant objected to the unsealing, but, on July 6, 2015, this Court unsealed the 

motions. As Defendant had predicted, an avalanche of media attention immediately followed. 

In fact, the Associated Press apparently gained access to the unsealed documents almost 

simultaneously with counsel’s notice of the Court’s decision. 

On July 8, 2015, Plaintiff filed this Motion. On July 18, 2015, The New York Times 

reported that it had procured Defendant’s entire deposition transcript from “a court reporting 

service.” The media promptly published many embarrassing and private portions of Defendant’s 

deposition, for the world to see. On July 20, 2015, Plaintiff’s court reporter, Kaplan Leaman & 

Wolfe, wrote to the Court, acknowledging that, without seeking permission from Defendant, it 

had simply released the deposition to the media. (See Ex. G.) 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 8 of 19
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ARGUMENT 

I. PLAINTIFF’S MOTION SHOULD BE STRICKEN. 

Plaintiff’s Motion should be stricken because it violates the very agreement under which 

it seeks relief. Specifically, the Settlement Agreement precludes Plaintiff from seeking to 

enforce the Settlement Agreement in court before complying with an initial dispute resolution 

provision. 

As is explained above, the key component to the Settlement Agreement, from 

Defendant’s perspective, was confidentiality. Because Defendant was settling to avoid publicity 

over his personal life, the parties took care to specifically describe their confidentiality 

obligations. They even foresaw that one party may accuse another of violating the Settlement 

Agreement, and they agreed that, before they did so publicly, they first would submit the dispute 

for “initial resolution” to Magistrate Judge Thomas Rueter, who had overseen the parties’ 

settlement negotiations. (See Ex. D, O’Connor Decl. ¶ 3.) This was akin to a private arbitration 

agreement, demonstrated by the parties’ further agreement that, if Judge Rueter no longer was on 

the bench, the parties would discuss using his services “in an alternative dispute resolution 

capacity.” In short, as part of strict and detailed confidentiality terms, the parties agreed to first 

attempt to resolve any disputes over the agreement privately.3

With her Motion, Plaintiff has flouted this important provision of the Settlement 

Agreement. Although she sent a copy of the motion to Judge Rueter, she publicly filed her 

motion with this Court, specifically directing her request for relief not to Judge Rueter but to 

 

3

 As often is the case with private arbitration clauses, the parties retained the right to appeal 

Judge Rueter’s decision to the courts. They agreed that any such action would be filed in the 

United States District Court of Pennsylvania and consented to personal jurisdiction for that 

purpose. (See Ex. D, O’Connor Decl. ¶ 3.) 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 9 of 19
8 

“this Honorable Court” (Doc. #107 at 8). As she and her counsel consistently did throughout this 

litigation, Plaintiff filed her Motion as a pretext for making statements and accusations that she 

knows will become public through the Court’s records. Given that Plaintiff specifically agreed 

not to do so, in exchange for Defendant’s settlement, her Motion should be stricken. 

II. PLAINTIFF’S CHARACTERIZATION OF “FOOTNOTE 5” IS INCORRECT. 

Part of the relief Plaintiff seeks is the striking of a footnote from one of Defendant’s 

briefs in the unsealing proceedings. The crux of the Court’s analysis was whether the public’s 

legitimate interest in this case outweighed Defendant’s privacy rights and threatened 

embarrassment. Accordingly, in a footnote in Defendant’s brief in opposition to the unsealing, 

he argued that any public interest in the discovery motions was diminished to the extent the 

motions revealed not his actual testimony but merely Plaintiff’s counsel’s questions and 

Plaintiff’s own discovery arguments, which often mischaracterized testimony and allegations. 

Plaintiff now contends that this “footnote 5” was an attempt to brand Plaintiff’s counsel 

“a liar.” She argues that this must be so because the Court granted (in part) the motion to compel 

in which the mischaracterizations appeared. As Defendant’s counsel recently reminded 

Plaintiff’s counsel, Defendant did not offer footnote 5 as an argument in opposition to Plaintiff’s 

motion to compel, such that an order granting the motion to compel would suggest that the 

footnote was false. Nor does the Court’s decision to unseal the discovery motions suggest that 

footnote 5 was inaccurate or otherwise inappropriate. Rather, Footnote 5 was appropriate 

advocacy insofar as it set forth a reason why those motions should remain sealed. Defendant 

merely argued that, even if the public had some legitimate public interest in his actual testimony 

or accusations against him, the public certainly does not have a legitimate interest in 

mischaracterizations of his testimony or those accusations. In short, Defendant argued against 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 10 of 19
9 

the release of motions and deposition excerpts that, once in the hands of the media, would create 

an inaccurate impression of his testimony. As it turns out—and as more fully explained above—

that is precisely what has happened. 

Of course, Plaintiff fails to mention any of that in her Motion. Instead, in her recitation 

of the events subsequent to the unsealing, Plaintiff mentions only one media report: a statement 

by an unnamed source opining that Defendant settled this case to avoid embarrassment and pain 

to his family. (Pl.’s Mot. at 5.) With this one statement, Plaintiff claims that, somehow, the 

publicity following the unsealing has harmed Plaintiff, as opposed to Defendant. This, of course, 

is ludicrous, as a “Google” for recent media reports on Defendant instantly reveals. Plaintiff’s 

insistent contention that Defendant somehow controls and manipulates the media is thoroughly 

belied by the tidal wave of inaccurate media reports about Defendant. The media has created the 

embarrassing, erroneous public impression that Defendant feared, and that he knew he would be 

powerless to prevent. 

III. PLAINTIFF HAS DEPRIVED DEFENDANT OF 

MUCH OF HIS BENEFIT OF THE BARGAIN, AND SHE 

SHOULD BE SANCTIONED AND DENIED FURTHER RELIEF. 

The other relief Plaintiff seeks is that the Court “negate the confidentiality portions of the 

settlement agreement.” (Pl.’s Mot. at 8.) While Plaintiff’s Motion rambles at times, her central 

argument appears to be that Defendant and his counsel have violated the confidentiality terms of 

the Settlement Agreement, and therefore those terms simply should be voided. Now, however, 

Plaintiff essentially has received the relief she wanted, as Defendant’s entire deposition transcript 

was improperly released to the public domain. Not only did this violate the Settlement 

Agreement, but Plaintiff’s Motion itself violates the Settlement Agreement. Plaintiff should be 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 11 of 19
10 

denied further relief and instead should be sanctioned. The Court should preserve what little 

benefit to Defendant remains from the Settlement Agreement. 

A. Plaintiff’s Accusations Are Pretextual.

Plaintiff cites to prior alleged violations of the Settlement Agreement, but those incidents 

simply prove that Plaintiff’s current Motion is a pretext and itself violates the Settlement 

Agreement. In 2014, Plaintiff’s counsel asserted that Defendant and his counsel had violated the 

Settlement Agreement, when they fended off and briefly commented on new allegations in the 

media, by other women. The Settlement Agreement does not restrict the parties from discussing 

allegations made by non-parties after the settlement, which necessarily could not be considered 

an “aspect of the litigation.” Thus, the agreement does not restrict Defendant or his counsel from 

responding to allegations of sexual misconduct lodged against him now, by other women. This 

is true even if the accusers also were Rule 415 Witnesses in this case, and even if their 

accusations now are similar to what they would have said in this case. 

In each case, Plaintiff raised her objections not by making a public filing, but by 

approaching Defendant’s counsel. In each case, Defendant’s counsel explained that the 

comments, brief and innocuous as they were, concerned other women and not Plaintiff or this 

case. The parties agreed that no material breach had been committed, and, in one case, they 

agreed to a public clarification that no breach had occurred. In other words, Plaintiff knows 

precisely how the Settlement Agreement envisioned the resolution of disputes over 

confidentiality. Now, however, with this new Motion, she did not bother to mediate with 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 12 of 19
11 

Defendant’s counsel or even to follow the agreed-upon private dispute procedure before Judge 

Rueter.4

 

Tellingly, Plaintiff does not seek to void the entire Settlement Agreement; obviously, she 

wants to keep what she was paid. Even where a material breach has occurred, however, the nonbreaching party cannot simply pick and choose which contractual obligations will be void and 

which will stand. Only where “performances to be exchanged under an exchange of promises 

can be apportioned into corresponding pairs of part performance so that the parts of each pair are 

properly regarded as agreed equivalent” can the cancellation of the contract be partial. See

Restatement (Second) of Contracts § 240. Where the provisions of a contract are not so easily 

severable, the entire contract must be voided and “the party in breach is entitled to restitution for 

any benefit that he has conferred by way of part performance or reliance in excess of the loss that 

he has caused by his own breach.” Restatement (Second) of Contracts § 374. Here, that would 

require Plaintiff to disgorge some or all of the money paid to her by Defendant as part of the 

settlement.5

 

 

4

 Plaintiff does not cite any law to support her argument that the confidentiality terms of the 

Settlement Agreement simply should be discarded. This is understandable because the 

applicable law prevents the relief she seeks. Contractual obligations cannot be disregarded 

lightly. Only “[i]f a breach constitutes a material failure of performance” can the non-breaching 

party’s performance under the contract be excused. Oak Ridge Const. Co. v. Tolley, 504 A.2d 

1343, 1348 (Pa. 1985) (emphasis added). The parties agreed that the Settlement Agreement 

would be construed pursuant to Pennsylvania law. 

5

 Here, Defendant’s July 6, 2015 statement is, at worst, an inconsequential error prompted by the 

storm of publicity unleashed by the release of the partial transcript. Again, the statement 

disclosed nothing, offering merely a self-serving claim about Defendant’s reason for settling, 

drowned out by a cacophony of press claiming that Defendant had “confessed” to assault. 

Plaintiff’s insistence that, somehow, she has been harmed by this publicity, is ridiculous (as is 

the idea that releasing Defendant’s entire deposition would make things better). Given all the 

facts, it would be unjust and nonsensical to vitiate the entire confidentiality section of the parties’ 

Settlement Agreement. 

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B. Plaintiff Has Made A Mockery Of The 

Confidentiality Terms Of The Settlement Agreement. 

Plaintiff’s requested relief is all the more unwarranted because she and her counsel 

themselves have committed blatant violations of the Settlement Agreement, and thus come into 

court with unclean hands. What’s worse, Plaintiff’s violations actually disclose evidence from 

this case, something of which she does not even accuse Defendant. 

“Unclean hands is ‘a self-imposed ordinance that closes the doors of a court of equity to 

one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, 

however improper may have been the behavior of the defendant.’” Romero v. Allstate Ins. Co., 

52 F. Supp. 3d 715, 734 (E.D. Pa. 2014) (quoting Precision Instrument Mfg. Co. v. Auto. Maint. 

Mach. Co., 324 U.S. 806, 814 (1945)). “A claim is barred under the doctrine of unclean hands 

when (1) a party seeking affirmative relief (2) is guilty of conduct involving fraud, deceit, 

unconscionability, or bad faith (3) directly related to the matter in issue (4) that injures the other

party and (5) affects the balance of equities between the litigants.” Romero, 52 F. Supp. 3d at 

734. That doctrine plainly applies here. 

First, Plaintiff breached the Settlement Agreement when she ignored her obligation to use 

best efforts to ensure that her “vendor” did not publish Defendant’s deposition transcript. 

Apparently, Plaintiff’s counsel never even informed her court reporter about the confidentiality 

agreement. When Defendant’s counsel reminded her about this obligation, Plaintiff’s counsel 

responded that she simply had assumed the court reporter would not release the transcript. 

Plaintiff’s counsel went on to argue that the Court’s July 6, 2015 opinion somehow made the 

entire deposition public and justified this egregious violation of both the parties’ contract and 

ethical and industry norms. (See Ex. H.) This nonsensical and cavalier response reveals 

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13 

Plaintiff’s and her counsel’s disdain for the very confidentiality that they agreed to provide 

Defendant. Not surprisingly, that conscious neglect now has led directly to a colossal breach of 

that confidentiality. 

This appalling development violated prior orders of this Court, both in letter and spirit. 

The Green plaintiffs have been trying to get Defendant’s deposition for some time. In 

coordination with Plaintiff’s counsel, they served a friendly subpoena on Plaintiff’s counsel, 

seeking the deposition. On June 11, 2015, Judge Padova ruled that such efforts to procure the 

deposition from Plaintiff’s counsel were stayed, unless and until the stay of discovery in the 

Green case should be lifted. After that Order, Plaintiff’s counsel’s court reporter simply sent the 

entire deposition to the media. In short, due to Plaintiff’s failure to comply with her contractual 

duties, Plaintiff’s counsel and the Green plaintiffs have performed an end-run around Judge 

Padova’s order, circumventing the process that Judge Padova carefully put in place. 

Plaintiff’s Motion itself violates the Settlement Agreement, in more ways than one. As is 

explained above, Plaintiff ignored the requirement to submit her dispute in private to Judge 

Rueter, before invoking her right to “further review by the courts.” This was no mistake, and 

instead was a bad-faith resumption of her campaign to attack Defendant, by fashioning a podium 

out of her unilateral ability to make court filings. 

Indeed, in Plaintiff’s Motion, she goes out of her way to characterize and to describe the 

accusations purportedly lodged by the Rule 415 witnesses long ago in this case. (See Pl.’s Mot. 

¶ 9.) For the logical purposes of her Motion, Plaintiff simply could have noted the existence of 

the Rule 415 Witnesses and that she had planned to offer testimony from them about “prior bad 

acts” by Defendants, as was known in the case at the time. Instead, knowing her Motion would 

be publicized, Plaintiff specifically describes what she claims the witnesses would have said: 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 15 of 19
14 

“each claimed that Cosby gave them a drug and then had sexual contact with them while they 

were unable to respond to the acts being perpetuated upon them.” (Id. ¶ 9.) Plaintiff does not 

stop there; she adds: “Although some of the women engaged in consensual relations with Cosby, 

their accounts substantiated defendant’s alleged predilection for somnophilia.” (Id.) Again, this 

is a blatant violation of the Settlement Agreement, and it strikes directly at the heart of 

Defendant’s bargain. To make matters worse, this gratuitous summary and characterization of 

the evidence is not even accurate. 

Plaintiff’s counsel also violated the Settlement Agreement in preparing to file it. Plaintiff 

admits that her counsel contacted many of the former Rule 415 Witnesses for permission to seek 

to release Defendant’s deposition to the media. (Pl.’s Mot. at 7 n.1.) Necessarily, Plaintiff’s 

counsel must have informed these women that they were subjects of the deposition, which, 

again, squarely violates the Settlement Agreement.6

 Plaintiff’s counsel also published her intent 

to file the Motion and the support she was gathering to do so. On July 8, NBC News and The 

New York Times covered and publicized these preparations for the Motion. The Times quoted 

two of the women whom Plaintiff’s counsel contacted, one of whom commented, “I think more 

will come out . . . . and it’s going to strengthen the case against him.” (See Ex. I.) Plaintiff’s 

contention that her counsel did not reveal “what was said” about these women in the deposition 

strains credulity. (See Pl.’s Mot. at 7 n.1.) 

Plaintiff and her counsel also committed other breaches of the Settlement Agreement. In 

a telephone conversation with Defendant’s counsel in 2014, Plaintiff’s counsel admitted that she 

spoke to new would-be accusers of Mr. Cosby about the identity of the Rule 415 Witnesses, 

 

6

 Former Rule 415 Witness Rebecca Cooper admits in her recent proposed memorandum in 

support of Plaintiff’s Motion that Plaintiff’s counsel informed her that she is a topic of 

Defendant’s deposition in this case. 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 16 of 19
15 

confirming whether or not someone was, indeed, a Rule 415 Witness. This was a direct and 

substantive violation of the Settlement Agreement, which precludes counsel from discussing the 

content of discovery in the case. It was made by Plaintiff’s counsel, who herself negotiated the 

Settlement Agreement. 

Plaintiff represents that, “[t]hroughout this ordeal plaintiff has denied all requests for 

interviews.” To the contrary, on July 8, 2015, Plaintiff gave an interview to the Toronto Sun, 

about her “heavy ordeal involving Bill Cosby.” (See Ex. F.) As long ago as February 2014, 

Plaintiff, in response to an article about this case, “tweeted” that, “I won’t go away, there is a lot

more I will say.” (See Ex. E.) In March 2014, she added, “It’s not that everybody just forgot 

about [this case,] truth is nobody cared.” (See id.) On July 6, 2015, in response to the Court’s 

unsealing, Plaintiff “tweeted”: “Yes!” and “Sir!” in quick succession. (See id.) 

These breaches injured Defendant, depriving him of much of the benefit of his bargain 

with Plaintiff. In fact, Plaintiff’s Motion rests on the notion that the confidentiality terms of the

Settlement Agreement exist as some discrete, independent agreement, of equal importance to 

both sides. Of course, this is not the case. Throughout this case, Plaintiff made no secret of her 

desire to publicize it, and she fought mightily, every chance she got, to achieve that publicity. 

Defendant settled—and paid Plaintiff—to avoid that very publicity, and Plaintiff reluctantly 

agreed to the confidentiality terms. While Defendant also agreed to the basic confidentiality 

terms, the rest of the agreement makes clear that the confidentiality was Defendant’s benefit of 

the bargain. Specifically, the agreement contains Plaintiff’s recognition that Defendant, alone, 

wished to “keep permanently under seal the portion of the court’s records current under seal” and 

agreed “not to oppose any action necessary to do so.” (See Ex. D, O’Connor Decl. ¶ 3.) 

Confidentiality was the “heart” of the bargain—for Defendant. Indeed, due to the private nature 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 17 of 19
16 

of the information at issue, confidentiality was an important inducement to the settlement, and 

Defendant relied on the confidentiality provisions in entering into the settlement. Disclosing that 

material now would undermine the settlement and deprive Defendant of one of the material 

benefits of that agreement. Further, in her most recent letter to Defendant’s counsel, Plaintiff’s 

counsel notes that she has no objection to the release of her own deposition from the case. 

Obviously, the “heart” of Plaintiff’s bargain was not secrecy, but rather the receipt of money, 

which she still has. Plaintiff’s Motion is a sham and an obvious attempt to have her cake and eat 

it, too. 

Defendant will seek relief for Plaintiff’s violations separately. Unlike Plaintiff, 

Defendant will honor the terms of the settlement agreement by asking that the dispute be 

submitted to and resolved by Judge Rueter. For purpose of this memorandum, however, 

Plaintiff’s conduct calls for the striking and rejecting of Plaintiff’s Motion 

CONCLUSION 

 For the foregoing reasons, Defendant respectfully requests that Plaintiff’s motion be 

stricken. 

Dated: July 21, 2015 /s/ Patrick J. O’Connor

Patrick J. O’Connor (No. 13086) 

George M. Gowen III (No. 83210) 

Matthew L. Bleich (No. 208069) 

Michael P. Zabel (No. 310278) 

COZEN O’CONNOR 

One Liberty Place 

1650 Market Street 

Philadelphia, PA 19103 

215.665.2000 

Attorneys for Defendant 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 18 of 19
17 

CERTIFICATE OF SERVICE 

 I, Patrick J. O’Connor, hereby certify that on July 21, 2015, I caused a true and correct 

copy of the foregoing Motion to Strike and in Opposition to Plaintiff’s Motion for Injunctive 

Relief with Supporting Memorandum of Law in Support thereof, with related papers, 

to be filed on all counsel of record through the court’s electronic filing system. 

 /s/ Patrick J. O’Connor 

 Patrick J. O’Connor 

Case 2:05-cv-01099-ER Document 112 Filed 07/21/15 Page 19 of 19