IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREA CONSTAND, : CIVIL ACTION

: No. 05-1099

Plaintiff, :

:

v. :

:

WILLIAM H. COSBY, JR., :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. July 6, 2015

Before the Court is a motion to intervene and obtain 

access to documents filed under seal during the discovery phase 

in this matter.1 Defendant has objected to the unsealing of the 

documents at issue. For the reasons that follow, the Court will 

overrule Defendant’s objections and unseal the documents.

Plaintiff Andrea Constand (“Plaintiff” or “Constand”) 

was at the time of the relevant events Director of Operations 

for the women’s basketball program at Temple University. 

Defendant William H. Cosby, Jr. (“Defendant” or “Cosby”) is an 

internationally known entertainer.

 

1 In its order dated June 18, 2015, the Court construed 

a letter from the Associated Press (ECF No. 99) “as a motion to 

intervene and obtain access to documents filed under seal” (ECF 

No. 100).

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On March 8, 2005, Plaintiff filed a civil complaint in 

this Court against Defendant, asserting claims of battery, 

sexual assault, intentional and negligent infliction of 

emotional distress, defamation/defamation per se, and false 

light/invasion of privacy. During the course of discovery, 

Plaintiff took Defendant’s deposition. Excerpts of the 

deposition as well as several briefs prepared by counsel were 

filed with the Court in connection with sanctions- and 

discovery-related motions (“the Documents”). The Court entered a 

temporary seal removing the Documents from public view pending a 

full hearing on whether they should be permanently sealed. 

Before the Court could rule on the motion to seal, the parties 

settled the case.

Now, nearly ten years later, the Associated Press 

(“the AP”) has requested that the Documents be “unsealed” and 

made available to the public. Defendant opposes the request. 

Plaintiff has not asserted objections to the request. The issue 

before the Court is whether Defendant has shown good cause under 

Federal Rule of Civil Procedure 26(c) to keep the Documents 

under seal.

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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY2

During the course of discovery, a number of issues 

arose concerning, inter alia, attorney conduct during 

depositions, insufficient responses to deposition questions and 

interrogatories by both Plaintiff and Defendant, and Plaintiff’s 

attempt to compel the National Enquirer to produce certain 

documents. The parties also disputed whether filings related to 

said discovery issues--particularly filings incorporating 

deposition material--should or should not be sealed by the Court.

On November 4, 2005, the Court entered an interim 

order setting forth how discovery would proceed and temporarily 

sealing the parties’ motions related to the disputes and

responses thereto. Order dated Nov. 4, 2005, ECF No. 47. In that 

order, the Court directed that “[a]ny party opposing the lifting 

 

2 Early on in the case, the parties requested broad 

protective orders. Plaintiff sought to avoid the public 

disclosure of the identities of a number of Jane Doe witnesses 

whose testimony may have been admissible pursuant to Federal 

Rule of Evidence 415. The Court concluded that Plaintiff had not 

shown “good cause” as required by Federal Rule of Civil 

Procedure 26(c) and denied the motion. Mem. and Order dated June 

2, 2005, at 20, ECF No. 29. On the other hand, Defendant sought 

to preclude public access to all material obtained during 

discovery through what essentially would have been a gag order. 

The Court denied Defendant’s motion, finding that he had failed 

to meet the “good cause” standard by not connecting his expected 

embarrassment to any specific injury. Id. at 21-22. The Court 

also determined that a far-reaching gag order was not warranted. 

Id. at 15. Instead the Court adopted Rule 3.6 of the 

Pennsylvania Rules of Professional Conduct in a case management 

order to govern counsel’s interaction with the media. See Order 

dated June 2, 2005, ECF No. 30.

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of the seal shall show cause why the seal should not be lifted,” 

id. at 2, and explained that the purpose of the interim sealing 

and protocol was “to develop a record upon which the Court may 

calibrate the scales upon which the proper balancing of private 

and public interests may take place,” id. at 3 n.1. It is 

pursuant to this order that the Documents were initially sealed.

On November 23, 2005, the AP filed a motion to 

intervene and lift the seal on the filings related to the 

parties’ discovery disputes.3 See Second Mot. Intervene and 

Unseal, ECF No. 51. The Court denied the AP’s motion without 

prejudice pending the outcome of discovery. See Mem. and Order 

dated Jan. 13, 2006, ECF No. 72. In its memorandum, the Court 

stated that “[i]n the event that the Court grants a protective 

order supported by specific findings sealing any materials, any 

interested party will have an opportunity to request to 

intervene and challenge the ruling granting the protective order 

at that time.” Id. at 12. The Court further stated that “[a]fter 

the Court rules on the motions to compel and unless the 

protection of the seal is extended, the seal will lapse.” Id. at 

 

3 The Third Circuit has “determined that media outlets 

have ‘standing to challenge protective orders and 

confidentiality orders’ as long as they can demonstrate that the 

order is an obstacle to their attempt to obtain access.” United 

States v. Wecht, 484 F.3d 194, 202-03 (3d Cir. 2007) (quoting 

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 

1994)).

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8 (emphasis added); see also id. at 12. However, the matter 

settled before the parties’ depositions were concluded, and thus 

the Court never revisited the sealing of the Documents.

Nearly ten years later, on December 29, 2014, after 

more recent allegations of similar misconduct by Defendant 

gained public attention, the AP wrote the Clerk of Court 

requesting that the seal be lifted on the Documents4 pursuant to 

 

4 The Documents at issue are the following:

 Plaintiff’s Motion Concerning Conduct of Defendant’s 

Deposition and Motion for Sanctions (ECF No. 48);

 Defendant’s Requests to Compel and Memorandum Concerning 

Overarching Issues (ECF No. 49);

 Plaintiff’s Motion to Compel Discovery (ECF No. 50);

 Defendant’s Motion to Strike Plaintiff’s Motion Concerning 

Conduct of Defendant’s Deposition and Motion for Sanctions 

(ECF No. 52);

 Redacted Transcript of Proceedings Held on November 4, 2005 

(ECF No. 54);

 Pages 8 and 9 of the Redacted Transcript of Hearing on 

Telephone Conference Dated November 4, 2005 (ECF No. 55);

 Plaintiff’s Reply to Defendant’s Requests to Compel and 

Memorandum Concerning Overarching Issues (ECF No. 57);

 Defendant’s Responses to Plaintiff’s Motion to Compel and 

Memorandum Concerning Overarching Issues (ECF No. 58);

 Plaintiff’s Response to Defendant’s Motion to Strike 

Plaintiff’s Motion Concerning Conduct of Defendant’s 

Deposition and Motion for Sanctions (ECF No. 60);

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Local Rule of Civil Procedure 5.1.5, which sets forth a 

procedure by which documents are unsealed two years after their 

sealing, subject to party objection and court ruling. See AP 

Mot. 1-2, ECF No. 99. Accordingly, the Clerk issued a notice to 

counsel of record in this case on January 12, 2015, informing 

counsel that the Documents would be unsealed unless objections 

were filed within sixty days from the date of the notice. Notice 

to Counsel, ECF No. 97.

 

 Plaintiff’s Motion to Compel the National Enquirer’s 

Compliance with Subpoena for Document and Request for 

Expedited Resolution (ECF No. 61);

 Defendant’s Memorandum of Law in Partial Opposition to the 

Lifting of the Seal Established by Case Management Order 2 

(ECF No. 63);

 Defendant’s Brief in Opposition to Plaintiff’s Motion to 

Compel the National Enquirer’s Compliance with Subpoena for 

Document and Request for Expedited Resolution (ECF No. 64);

 The National Enquirer’s Memorandum of Law in Opposition to 

Plaintiff’s Motion to Compel (ECF No. 65);

 Plaintiff’s Motion for Leave to File Reply Memorandum of 

Law in Response to Defendant’s Memorandum in Opposition to 

Plaintiff’s Motion to Compel the National Enquirer’s 

Compliance with Subpoena for Documents (ECF No. 66);

 Plaintiff’s Memorandum of Law in Support of the Lifting of 

the Seal Established by Case Management Order 2 (ECF No. 

67); and

 Plaintiff’s Motion for Leave to File Reply Memorandum of 

Law in Response to National Enquirer’s Memorandum in 

Opposition to Plaintiff’s Motion to Compel Compliance with 

Subpoena for Documents (ECF No. 68).

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On March 10, 2015, Defendant informed the Court that 

he objected to the Documents’ unsealing and requested briefing 

on the matter, Defendant’s Objection, ECF No. 98, and on June 

17, 2015, the AP apprised the Court of its challenge to the 

sealing and echoed Defendant’s request for a briefing schedule,

AP Mot. 1-2.

The Court scheduled a hearing for June 26, 2015, on 

the AP’s motion and Defendant’s objections to lifting the 

interim seal impressed upon the Documents by the order of 

November 4, 2005. ECF No. 100. The Court further provided that 

interested parties seeking access to the Documents could file 

briefs in support of or in opposition to the lifting of the seal 

by June 24, 2015. Id. Both the AP and Defendant filed briefs, in 

support of and in opposition to lifting the seal, respectively

(ECF Nos. 101, 102), and argued their positions at the hearing.

Neither Plaintiff nor any other interested party appeared at the 

hearing. This matter is now ripe for disposition.

II. LEGAL STANDARDS

A. Public Right of Access

“It is well-settled that there exists, in both 

criminal and civil cases, a common law public right of access to 

judicial proceedings and records.” Goldstein v. Forbes (In re 

Cendant Corp.), 260 F.3d 183, 192 (3d Cir. 2001). The Third 

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Circuit has stated that “[t]he public’s exercise of its common 

law access right in civil cases promotes public confidence in 

the judicial system by enhancing testimonial trustworthiness and 

the quality of justice dispensed by the court.” Littlejohn v. 

BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988).

However, “[t]he public’s common law right to access 

judicial records ‘is not absolute.’” United States v. Wecht, 484 

F.3d 194, 208 (3d Cir. 2007) (quoting Littlejohn, 851 F.2d at

678). Rather, when the right attaches, “there is a ‘strong 

presumption’ that the public may view the records.” Id. “In 

general, the common law right attaches to any document that is 

considered a ‘judicial record,’ which ‘depends on whether [the] 

document has been filed with the court, or otherwise somehow 

incorporated or integrated into a district court’s adjudicatory 

proceedings.’” Id. (alteration in original) (quoting Goldstein, 

260 F.3d at 192).

Discovery, on the other hand, has traditionally been 

conducted by the parties in private, outside of the public’s 

view. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) 

(“[P]retrial depositions . . . are conducted in private as a 

matter of modern practice.”). Thus, “[w]hen discovery materials 

are filed with the trial court, the private nature of discovery 

comes into conflict with the public’s right to access judicial 

records.” Wecht, 484 F.3d at 209. The Third Circuit has resolved 

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this conflict by holding that although “there is a presumptive 

[common law] right to public access to all material filed in 

connection with nondiscovery pretrial motions,” there is “no 

such right as to discovery motions and their supporting 

documents.” Leucadia, Inc. v. Applied Extrusion Techs., Inc., 

998 F.2d 157, 165 (3d Cir. 1993). Without such a presumption,

the party seeking to prevent public access to discovery 

material--Defendant in this case--must show good cause under 

Federal Rule of Civil Procedure 26(c) to keep the material away 

from the public eye.

B. Protective Orders Under Rule 26(c)

A party may seek a protective order under Rule 26(c) 

“on matters relating to a deposition,” “for good cause” shown,

“to protect a party or person from annoyance, embarrassment, 

oppression, or undue burden or expense.” The party seeking the 

protective order bears the burden of showing good cause. Pansy 

v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir. 1994).

In Pansy, the Third Circuit set forth several factors courts

should consider before issuing protective orders, including:

(1) whether disclosure will violate any privacy 

interests;

(2) whether the information is being sought for a 

legitimate purpose or for an improper purpose;

(3) whether disclosure of the information will cause 

a party embarrassment;

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(4) whether confidentiality is being sought over 

information important to public health and 

safety;

(5) whether the sharing of information among 

litigants will promote fairness and efficiency;

(6) whether a party benefitting from the order of 

confidentiality is a public entity or official; 

and

(7) whether the case involves issues important to the 

public.

Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) 

(citing Pansy, 23 F.3d at 787-91)). The Pansy court also 

discussed how courts should analyze motions to change or lift 

protective orders:

The appropriate approach in considering motions to 

modify confidentiality orders is to use the same 

balancing test that is used in determining whether to 

grant such orders in the first instance, with one 

difference: one of the factors the court should 

consider in determining whether to modify the order is 

the reliance by the original parties on the 

confidentiality order. The parties’ reliance on an 

order, however, should not be outcome determinative, 

and should only be one factor that a court considers 

when determining whether to modify an order of 

confidentiality.

Pansy, 23 F.3d at 790 (footnote omitted). These factors are 

“neither mandatory nor exhaustive,” but provide a useful 

framework upon which a court may base its analysis. Glenmede 

Trust Co., 56 F.3d at 483. 

The Third Circuit has emphasized that good cause must 

be shown by “articulat[ing] a[] specific, cognizable injury from 

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th[e] dissemination” of the material at issue. Id. at 484. 

“Broad allegations of harm, unsubstantiated by specific examples 

or articulated reasoning, do not support a good cause showing.”

Pansy, 23 F.3d at 786 (internal quotation marks omitted). 

Overall, in determining good cause, a court must weigh the 

injuries that disclosure may cause against the other party’s or 

the public’s interest in the information. See id. at 787-91.

Finally, the Third Circuit has stated that “[i]n 

determining whether any document or portion thereof merits 

protection from disclosure,” a court should be mindful that 

“continued sealing must be based on ‘current evidence to show 

how public dissemination of the pertinent materials now would 

cause the . . . harm [the party seeking protection] claim[s].’” 

Leucadia, 998 F.2d at 167 (quoting Republic of Philippines v. 

Westinghouse Elec. Corp., 949 F.2d 653, 663 (3d Cir. 1991)).

III. DISCUSSION

The Documents were filed with the Court in connection 

with a number of different discovery disputes between the 

parties. While the bulk of the Documents consists of legal 

arguments advanced by counsel--including counsel’s 

characterizations of deposition testimony--the Court impressed 

all of the Documents with an interim seal. Some of the Documents 

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directly quote select portions of Defendant’s deposition.

5 A 

number of other Documents simply refer to Defendant’s deposition 

but do not quote from it. Although the Court must decide whether 

to lift the seal as to all of the Documents, the central issue 

before the Court--and the one hotly contested by the parties--is 

 

5 The following Documents contain select portions of 

Defendant’s deposition testimony:

 Pl.’s Mot. Concerning Conduct of Def.’s Dep. and Mot. for 

Sanctions 5-7, 9, 15-20, 22-24, 27-28, 30-34, 36-37, 39-41, 

46-49, 52, and 55 (ECF No. 48); 

 Pl.’s Mot. to Compel Disc. 1-2, 5, 10, 16, 18-20, 26, 28, 

41-43, and 45-47 (ECF No. 50); 

 Pl.’s Reply to Def.’s Reqs. to Compel and Mem. Concerning 

Overarching Issues 5 (ECF No. 57);

 Def.’s Resps. to Pl.’s Mot. to Compel and Mem. Concerning 

Overarching Issues 32 (ECF No. 58);

 Def.’s Brief in Opp’n to Pl.’s Mot. to Compel the National 

Enquirer’s Compliance with Subpoena for Doc. and Req. for 

Expedited Resolution 3 (ECF No. 64);

 Pl.’s Mot. for Leave to File Reply Mem. of Law in Resp. to 

Def.’s Mem. in Opp’n to Pl.’s Mot. to Compel the National 

Enquirer’s Compliance with Subpoena for Docs. 3-5 (ECF No. 

66); 

 Pl.’s Mem. of Law in Supp. of the Lifting of the Seal 

Established by Case Management Order 2 Exs. D & F (ECF No. 

67); and

 Pl.’s Mot. for Leave to File Pl.’s Reply Mem. of Law in 

Resp. to National Enquirer’s Mem. in Opp’n to Pl.’s Mot. to 

Compel Compliance with Subpoena for Docs. Ex. A (ECF No. 

68).

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whether the quoted excerpts from Defendant’s deposition will be 

released to the public.6

Because this case concerns “discovery motions and 

their supporting documents,” id. at 165, it is clear that no 

presumptive right of public access exists in this matter, see

id.7 Rather, as the parties agreed during oral argument, the 

burden lies with Defendant--who argues on a “blank slate,” 

unencumbered by the presumption of a public right of access, 

Hr’g Tr. 29:4, June 26, 2015--to show good cause under Rule 

26(c), as informed by Pansy, for why the Documents should be 

sealed.8,9 The AP believes that Defendant has failed to show good 

 

6 Defendant has not contended that the portions of the 

deposition appearing in the parties’ briefs are not true and 

correct copies of his testimony. There being no apparent issue 

with the accuracy of the reporting, the Court need not consider 

it further. The full deposition transcript in this case is 

presumably in the parties’ possession.

7 The Leucadia court stated that “a holding that 

discovery motions and supporting materials are subject to a 

presumptive right of access would make raw discovery, ordinarily 

inaccessible to the public, accessible merely because it had to 

be included in motions precipitated by inadequate discovery 

responses or overly aggressive discovery demands.” 998 F.2d at 

164. The Court notes that nowhere has the Third Circuit 

indicated that a negative presumption (i.e., against a public 

right of access) attaches to discovery motions and supporting 

materials, such as Defendant’s deposition testimony here.

8 The Documents are not technically sealed at this time, 

given that the Court initially sealed them temporarily in its 

efforts to resolve the outstanding discovery disputes, and 

indicated that the temporary seal would lapse if not 

definitively extended. See Mem. and Order dated Jan. 13, 2006, 

at 8, 12.

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cause for why the Documents should be sealed. Defendant, on the 

other hand, contends that the Pansy factors weigh heavily in 

favor of sealing the Documents. The Court proceeds to balance 

 

9 The procedural vehicle that the AP used to bring this 

matter to light once more is Local Rule of Civil Procedure 

5.1.5(c), which reads as follows:

If a document is still sealed at the conclusion of the 

two-year period [provided in 5.1.5(b)(2)] and the 

Court has not entered an order continuing its sealed 

status beyond that time, the Clerk of Court shall 

notify the attorney for the party having submitted the 

sealed document at the attorney’s address on the 

docket that the document will be unsealed unless the 

attorney or the submitting party advises the Clerk 

within sixty (60) days that said attorney or 

submitting party objects. If the attorney or 

submitting party objects to the unsealing of the 

document or if the Clerk’s notification is returned 

unclaimed, the Court will make a determination, on a 

case-by-case basis, whether to maintain the document 

under seal, to unseal it, or to require further 

notification.

Thus, Local Rule 5.1.5(c) provides a procedure by which 

documents are automatically unsealed two years after their 

sealing, unless a party objects and the court orders otherwise. 

Rule 5.1.5 is an administrative rule of procedure 

which does not set forth a substantive rule of decision. Under 

it, the Court is afforded broad discretion to determine whether 

or not documents should remain sealed. The Local Rule--which 

expressly provides that a “case-by-case” determination must be 

made with respect to each sealed record, and each portion 

thereof--reflects a general policy that access to court records 

serves the public interest. See United States Courts’ Judicial 

Conference, Policy on Sealed Cases, United States Courts (Sept. 

13, 2011), http://www.uscourts.gov/news/2011/09/13/conferenceapproves-standards-procedures-sealing-civil-cases-0 (available 

as PDF) (setting forth specific criteria to be met before 

sealing a case, and providing that a civil file should be sealed 

only in “extraordinary circumstances” and should be unsealed 

once those extraordinary circumstances have passed).

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the relevant factors, grouping them together as it deems 

appropriate.

A. Privacy Interests and Legitimate Purpose 

Justice Louis Brandeis famously defined privacy as 

“the right to be let alone.” Olmstead v. United States, 277 U.S. 

438, 478 (1928) (Brandeis, J., dissenting). Defendant has 

asserted potentially significant privacy interests in this 

matter--namely, the fact that disclosing his deposition 

testimony would reveal intimate knowledge about his sex life, 

health, medical history, prescription use, financial affairs, 

and personal relationships. Def.’s Br. 9.

The Supreme Court has recognized that “discovery . . . 

may seriously implicate privacy interests.” See Seattle Times 

Co., 467 U.S. at 35. However, the precise contours of a party’s 

privacy interest may expand or contract depending on the 

public’s interest in either the party or the information at 

issue. See Pansy, 23 F.3d at 787.

Initially, it is the scope of this privacy interest

that the Court must define in this case. The Third Circuit has 

recognized a curtailment of this interest for persons holding 

public office. See id.10 Although it has not expressly extended 

 

10 See also Shingara v. Skiles, 420 F.3d 301, 303-04 (3d 

Cir. 2005) (concerning the Pennsylvania State Police); Pansy, 23 

F.3d at 776 (concerning the government of the Borough of 

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this principle to “public figures” outside the category of

office holders, Pansy and its progeny suggest that the privacy 

interest may be diminished when a party seeking to use it as a 

shield “is a public person subject to legitimate public 

scrutiny.” Id.

Although Defendant is a public person in the sense 

that his name, fame, and brand are worldwide in scope, he does 

not surrender his privacy rights at the doorstep of the 

courthouse. Were this so, well-known nongovernmental public 

figures, visible in the public eye but pursuing strictly private 

activities, would be subject to spurious litigation brought 

perchance to gain access to the intimate details of their 

personal lives. Under these circumstances, the potential for 

abuse is high. 

This case, however, is not about Defendant’s status as 

a public person by virtue of the exercise of his trade as a 

televised or comedic personality.11 Rather, Defendant has donned 

the mantle of public moralist and mounted the proverbial 

 

Stroudsburg); United States v. Smith, 776 F.2d 1104, 1114 (3d 

Cir. 1985) (“[T]he public has a substantial interest in the 

integrity or lack of integrity of those who serve them in public 

office.”).

11 Cf., e.g., Paisley Park Enters., Inc. v. Uptown 

Prods., 54 F. Supp. 2d 347, 349 (S.D.N.Y. 1999) (allowing 

Prince’s deposition to be videotaped with restrictions, after 

noting that privacy concerns outweigh the public’s “interest in 

every imaginable detail about the life of a rock star”).

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electronic or print soap box to volunteer his views on, among

other things, childrearing, family life, education, and crime.12

To the extent that Defendant has freely entered the public 

square and “thrust himself into the vortex of th[ese] public

issue[s],” Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 

(1974), he has voluntarily narrowed the zone of privacy that he 

is entitled to claim.13

 

12 See, e.g., Pound Cake Speech, Wikipedia, 

https://en.wikipedia.org/wiki/Pound_Cake_speech (last visited 

July 6, 2015); Dr. Bill Cosby Speaks at the 50th Anniversary 

Commemoration of the Brown vs. Topeka Board of Education Supreme 

Court Decision, www.eightcitiesmap.com/transcript_bc.htm (last 

visited July 6, 2015); Bill Cosby Tells Don Lemon Black Men Need 

to Raise Their Kids, Has Message for “No-groes,” Mediaite (Sept. 

14, 2013), www.mediaite.com/tv/bill-cosby-tells-don-lemon-blackmen-need-to-raise-their-kids-has-message-for-no-groes; Victor 

Fiorillo, Bill Cosby to Temple Grads: Algebra Easier than Cotton

Picking, Philadelphia Magazine (May 21, 2014), www.phillymag.

com/news/2014/05/21/bill-cosby-temple-grads-algebra-easiercotton-picking.

13 Defendant offers a number of other cases in support of 

his position, but each is readily distinguishable. See Morgan v. 

Wal-Mart Stores, Inc., No. 14-4388, 2015 WL 3882748 (D.N.J. June 

23, 2015); People v. Jackson, 27 Cal. Rptr. 3d 596 (Cal. Ct. 

App. 2005); Jones v. Clinton, 12 F. Supp. 2d 931 (E.D. Ark. 

1998); Damiano v. Sony Music Entm’t, Inc., 168 F.R.D. 485 

(D.N.J. 1996). In Morgan, the court confronted a sealed 

application for attorneys’ fees that was collateral to the 

central issues of the case, 2015 WL 3882748, at *1; the court in 

Jackson heavily weighed the privacy interests of minors and the 

risk of prejudice to a fair trial, 27 Cal. Rptr. 3d at 599-600; 

the Clinton court unsealed all records at issue, except for 

those revealing the identities of Jane Does, 12 F. Supp. 2d at 

934-35; and in Damiano, the court was concerned that the 

plaintiff sought access for an improper commercial purpose, 168 

F.R.D. at 491-93. None of these considerations is present in 

this case.

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Furthermore, as it relates to the claims in this case, 

the allegations (which are of course just that, and have not 

been proven) are already in the public domain. The Complaint is 

explicit in detail. See Am. Compl. ¶¶ 8-27, ECF No. 41. A number 

of other persons have publicly alleged similar conduct on the 

part of Defendant in the media and in at least two pending civil 

actions.

14 In turn, Defendant has responded publicly with denials 

as to the veracity of the claims and questioned the possible 

motives of his accusers.15 By joining the debate about the merits 

 

14 See Green v. Cosby, No. 14-30211 (D. Mass.) (filed 

Dec. 10, 2014); Huth v. Cosby, No. BC565560, (Cal. Super. Ct.) 

(filed Dec. 2, 2014); see also, e.g., Chris Perry, New Cosby 

Accuser: “Do You Remember Me?,” CNN (Mar. 22, 2015), 

www.cnn.com/2015/02/24/us/cosby-accuser-heidi-thomas/index.html; 

Manuel Roig-Franzia et al., Bill Cosby’s Legacy, Recast: 

Accusers Speak in Detail About Sexual-Assault Allegations, 

Washington Post (Nov. 22, 2014), http://www.washingtonpost.com/

lifestyle/style/bill-cosbys-legacy-recast-accusers-speak-indetail-about-sexual-assault-allegations/2014/11/22/d7074938-

718e-11e4-8808-afaa1e3a33ef_story.html; Robert Huber, “Cosby 

Threw Me on the Bed,” Philadelphia Magazine (Nov. 1, 2006), 

www.phillymag.com/articles/cosby-threw-me-on-the-bed.

15 See Barry Levine, Bill Cosby Ends His Silence: My 

Story!, Nat’l Enquirer, Mar. 2, 2005, at 29, 29-30. At oral 

argument, Defendant’s counsel insisted that Defendant’s 

interview with the National Enquirer did not cover the 

allegations in the underlying case. Hr’g Tr. 55:11-56:3. 

However, that characterization is not accurate, as a review of 

the article in question reveals. See Levine, supra, at 29-30 

(discussing the allegations). Defendant has also continued to 

comment publicly on the allegations in other similar cases. See, 

e.g., Jackie Willis, Bill Cosby Addresses Allegations: “I’ve 

Never Seen Anything Like This,” ETOnline (May 15, 2015), 

http://www.etonline.com/news/164575_bill_cosby_first_tv_intervie

w_since_sex_scandal/; Nick Vadala, Bill Cosby Jokes About Sexual 

Assault Allegations Facing Him at Second Canadian Tour Stop, 

Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 18 of 25
19

of the allegations against him, he has further diminished his 

entitlement to a claim of privacy.

Moreover, the AP’s interest in obtaining Defendant’s 

depositions is legitimate. The purpose for which the deposition 

is sought (and surely will be distributed to the world) is not 

merely commercial gain16 or prurient interest17 in exposing the 

details of Defendant’s personal life. Nor is it simply a matter 

collateral to the issues in the lawsuit.

18 Rather, the stark 

contrast between Bill Cosby, the public moralist and Bill Cosby, 

the subject of serious allegations concerning improper (and 

perhaps criminal) conduct, is a matter as to which the AP--and 

by extension the public--has a significant interest.

Finally, the nature of the allegations--sex, drugs, 

seduction, etc.--do not cloak this case, including the 

 

Philly.com (Jan. 8, 2015), http://www.philly.com/philly/blogs/

trending/Bill-Cosby-jokes-about-sexual-assault-allegations-atsecond-Canadian-tour-stop.html.

16 See, e.g., Damiano, 168 F.R.D. at 491-93 (finding in 

favor of Bob Dylan’s privacy interests, in light of plaintiff’s 

improper commercial purpose of directly monetizing revealed 

material).

17 See, e.g., Paisley Park Enters., Inc., 54 F. Supp. 2d 

at 349 (holding that the public’s “interest in every imaginable 

detail about the life of a rock star” did not outweigh Prince’s 

privacy concerns).

18 See, e.g., Morgan, 2015 WL 3882748, at *2 (concluding 

that the “public has no legitimate interest in gaining access 

to . . . confidential information” regarding settlement-related 

matters collateral to the central issues of the case).

Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 19 of 25
20

depositions of one of the parties, with an automatic or per se 

seal of silence. Were it otherwise, the distinction would create 

a category of cases which, because of the inflammatory nature of 

their subject matter, would always lie outside public scrutiny. 

This point is particularly relevant here where the allegations 

of improper conduct are not collateral to, or background 

information in, the case but rather form its very essence.

Given the circumstances of this case, the Court 

concludes that Defendant has a diminished privacy interest and 

that this diminished interest is outweighed by the AP’s and the 

public’s interest in gaining access to his deposition testimony.

B. Embarrassment

The Third Circuit has stated that, “because release of 

information not intended . . . for public consumption will 

almost always have some tendency to embarrass, an applicant for 

a protective order whose chief concern is embarrassment must 

demonstrate that the embarrassment will be particularly 

serious.” Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 

(3d Cir. 1986); see also Shingara v. Skiles, 420 F.3d 301, 307

(3d Cir. 2005) (requiring a showing of a “risk that particularly 

serious embarrassment will result from the release of the 

documents” (internal quotation marks omitted)). Defendant has 

not done so here. In his brief, he worries that release of the 

Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 20 of 25
21

deposition testimony, “which delves into the most intimate 

subjects imaginable, would generate a firestorm of publicity.” 

Def.’s Br. 10. At oral argument, Defendant’s counsel stressed 

that the Court simply must recognize how embarrassing this all 

would be for Defendant. See Hr’g Tr. 32:1-34:22.

Although of course intense media scrutiny into one’s 

private matters would almost always cause embarrassment, cf., 

e.g., Cipollone, 785 F.2d at 1121, this is the type of general 

allegation that does not satisfy Pansy. Defendant has not 

specifically shown why his embarrassment would be “particularly 

serious” at this time and in the context of this case.19 In 

short, Defendant has failed to show what specific and severe 

injuries he would suffer upon release of the deposition 

testimony at this time which he has not already experienced.

20

The Court finds that Defendant has failed to make the 

necessary showing that disclosure will cause him a “clearly 

defined and serious injury” with respect to Pansy’s 

 

19 Defendant suggests that he has satisfied the 

specificity requirement by his linking of the “threat [of 

serious embarrassment] to specific discovery material.” Def.’s

Br. 10. However, this mischaracterizes the legal standard, which 

requires specificity of injury, not merely that of the material 

to be sealed. See Pansy, 23 F.3d at 786.

20 The Court recognizes that Defendant is operating under 

the constraint of not being able to detail the information in 

the deposition testimony. However, this does not remove his 

burden of establishing what “particularly serious” embarrassment 

he would suffer.

Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 21 of 25
22

embarrassment factor. Pansy, 23 F.3d at 786 (internal quotation 

marks omitted).

C. Reliance

Defendant contends that releasing the deposition 

testimony now would undermine the parties’ reliance on their 

private settlement agreement, in which, according to Defendant’s 

representation (as it has not been filed of record in this 

action), the parties agreed to keep all discovery material 

confidential. Def.’s Br. 12-13. This reliance is not justified 

for two reasons. One, the Court was never presented with the 

settlement agreement or asked to retain jurisdiction over the 

enforcement of the confidentiality portion of that agreement. 

Two, when the case settled, the Court was not asked to 

permanently seal the discovery material, which at that time was 

subject to an interim sealing order. Because Defendant did not 

seek the Court’s imprimatur on his intent to keep the Documents

from ever seeing the light of day, his reliance that the 

discovery materials would remain out of the public eye was 

misplaced.21

 

21 Defendant also suggests that if the Court released the 

deposition testimony now, it would have a chilling effect on 

other settlement agreements because parties would not be able to 

rely on the persistence of confidentiality. See Def.’s Br. 12-

13. However, as the Court noted above, parties can ensure the 

permanency of a seal by simply requesting a court order to that 

Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 22 of 25
23

D. Efficiency and Fairness

Defendant argues specifically that releasing his 

deposition testimony now “would impact jury selection in [a]

case currently proceeding against him in the District of 

Massachusetts.” Id. at 13. However, the Third Circuit is

“ordinarily . . . confident that a district court will be able 

to select a fair and impartial jury in cases even where there 

has been pre-trial media attention to the case.” Shingara, 420 

F.3d at 307. The Shingara court refused to countenance the 

generalized concern that disclosure would affect a fair and 

impartial jury where “the defendants did not present any 

evidence to support their argument, drawn from the information 

already published, that there will be difficulty selecting a 

jury in this case or evidence that if additional information is 

published there would be such difficulty.” Id.

Defendant attempts to distinguish Shingara from the 

instant case on the theory that “[t]he Court now has before it 

specific examples of prejudicial discovery material and a known 

record of pretrial publicity on matters directly at issue in the 

Massachusetts proceeding.” Def.’s Br. 13. But the specificity of 

 

effect (provided good cause is shown). Moreover, as the AP’s 

counsel pointed out during oral argument, parties settle for 

many reasons other than confidentiality. See Hr’g Tr. 10:6-20. 

The “chilling effect” argument therefore does not carry much 

analytical weight. 

Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 23 of 25
24

the discovery material and the pretrial publicity does not 

explain what about Defendant’s deposition testimony will 

interfere with the selection of an impartial jury in the 

Massachusetts case. In other words, Defendant does not show why 

or how the Court’s release of additional documents here will

overcome the district court’s ability to choose a fair jury. 

Therefore, the Court relies on Shingara and finds that Defendant 

has failed to show a specific, clearly defined injury with 

respect to Pansy’s fairness and efficiency factor. Pansy, 23 

F.3d at 786.22

* * *

At bottom, it is not unfair to Defendant for the Court 

to unseal the Documents, including those portions of the 

deposition testimony that were filed in this case. Defendant is 

highly educated (he earned a doctoral degree from the University 

of Massachusetts).23 He is a successful professional, accustomed 

to performing in the public eye. He appeared at his deposition 

in a federal court case with able legal counsel who actively 

interposed objections and directed Defendant not to answer when 

 

22 Any other concerns of efficiency and fairness are not 

relevant under the circumstances of this case, as some ten years

have elapsed since the parties settled the matter without court 

involvement.

23 See Gail Jennes, That Doctorate After Bill Cosby’s 

Name Is No Honorary Freebie, People Magazine, June 6, 1977, at 

30, available at www.people.com/people/archive/article/

0,,20068008,00.html.

Case 2:05-cv-01099-ER Document 105 Filed 07/06/15 Page 24 of 25
25

he thought the questions were improper. At the end of this

exercise, punctuated by vigorous verbal combat between counsel, 

what emerged from those portions of the deposition testimony 

that were filed with the Court is Defendant’s version of certain 

of the events surrounding this lawsuit--in his own words.

IV. CONCLUSION

After balancing all of the pertinent Pansy factors,24

the Court finds that Defendant has pervasively failed “to 

articulate any specific, cognizable injury” that would result 

upon the Documents’ release to the public, Glenmede Trust Co., 

56 F.3d at 484, and therefore has not carried his burden of 

showing good cause under Rule 26(c) and Pansy. Pansy, 23 F.3d at 

787-91. Accordingly, the Court will overrule Defendant’s 

objections and order the Documents to be unsealed forthwith.

25 An 

appropriate order follows.

 

24 The remaining Pansy factor, relating to public health 

and safety, see Pansy, 23 F.3d at 788, is not applicable to this 

case.

25 Defendant appears to request that, should the Court 

deny his request to keep the Documents at issue under seal, he 

be allowed to redact them before they are released. See Hr’g Tr. 

43:13-47:20. For the same reasons the Court provides above in 

support of its decision to unseal the Documents, it will deny 

Defendant’s request to redact them.

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