TROIANI/KIVITZ, L.L.P. 

----------------ATTORNEYS AT LAW----------------

DOLORES M. TROIANI, ESQUIRE 

BEBE H. I<IVITZ, ESQUIRE 

January 4, 2006 

(Hand-Delivered) 

Office of the Clerk of Court 

Eastern District of Pennsylvania 

U.S. Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

38 NORTH WATERLOO ROAD 

DEVON, PA 19333 

(610) 688-8400 

FAX (610) 688-8426 

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

Plaintiff's Motion For Leave To File Reply Memorandum Of Law In Response To 

Defendant's Memo In Opposition to Plaintiff's Motion to Compel the National 

Enquirer's Compliance With Subpoena For Documents 

Dear Sir/Dear Madam: 

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

Thank you for your anticipated cooperation. 

DMT:m 

Enclosure. 

Respectfully submitted, 

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

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

Andrea Constand (w/enclosure - first class mail) 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 1 of 22
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff 

: CIVIL ACTION 

v. : NUMBER 05-1099 

WILLIAM H. COSBY, JR., 

Defendant 

: FILED UNDER SEAL 

PLAINTIFF'S MOTION FOR LEA VE TO FILE 

REPLY MEMORANDUM OF LAW IN RESPONSE TO 

DEFENDANT'S MEMO IN OPPOSITION TO PLAINTIFF'S 

MOTION TO COMPEL THE NATIONAL ENQUIRER'S 

COMPLIANCE WITH SUBPOENA FOR DOCUMENTS 

Plaintiff Andrea Constand respectfully moves for leave to file the attached 

Memorandum of Law in response to Defendant's Memorandum in Opposition to Plaintiffs 

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

to correct Defendant's misstatement of facts and to respond to legal arguments which have been 

asserted by Defendant for the first time in their response. 

Respectfully submitted, 

TROIANl/KNITZ, L.L.P. 

By:--+-ti~-Hf--1!.Y:.~-L...!'--....,L.-H 

Dolores roiani, Esquire 

I.D. No. 2 83 

Bebe H. Kivitz, Esquire 

I.D. No. 30253 

38 North Waterloo Road 

Devon, Pennsylvania 19333 

(610) 688.8400 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 2 of 22
IN THE UN1TED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff 

: CIVIL ACTION 

v. : NUMBER 05-1099 

WILLIAM H. COSBY, JR., 

Defendant 

: FILED UNDER SEAL 

PLAINTIFF'S REPLY MEMORANDUM OF LAW IN RESPONSE TO 

DEFENDANT'S MEMO IN OPPOSITION TO PLAINTIFF'S 

MOTION. TO COMPEL THE NATIONAL ENQUIRER'S 

COMPLIANCE WITH SUBPOENA FOR DOCUMENTS 

Plaintiff Andrea Om.stand submits this Memorandum of Law in response to Defendant's 

Memorandum in Opposition to Plaintiffs Motion to Compel The National Enquirer's 

Compliance with a Subpoena. 

I. PLAINTIFF HAS NOT MISCHARACTERIZED HER CLAIM OR THE RECORD 

Defendant asserts that the Plaintiffs Motion to Conipel the National Enquirer's 

Compliance with a Subpoena issued to it by Plaintiff should not be granted because she has 

"mischaracterized (sic) her claim and the record." Defendant claims that he does not dispute that 

he made the statements in question, and that he had the opportunity to review the article, 

(Exhibit A), before it was printed and published. He then argues that Plaintiff does not need 

any additional discovery because the article is not defamatory as it does not apply to Plaintiff, 

(Def. Memo, pg. 2). This "defense" is precisely why the documents are critical to Plaintiffs 

ability to prove her claim. It is believed that the documents will demonstrate that Defendant was 

in fact directing his comments to Plaintiff and that he wanted the public to believe that Plaintiff 

1 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 3 of 22
was attempting to extort him. 1 

The article in question was titled "My Story." It was touted as the first time Defendant 

spoke out since Plaintiffs allegations became known. The article made clear that it concerned 

Defendant's response to Plaintiffs claims. It states: "Reacting to the prospect of a civil action 

from the young Canadian woman, furious Cosby vowed to The ENQUIRER that he would stand 

his ground against anyone who tried to "exploit" him because he is a celebrity." It is black letter 

law that a plaintiff does not need to be identified by name in order to be defamed. Cosgrove 

Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751(Pa.1962). As a corollary to 

that proposition, a defendant cannot escape a libel by the juxtaposition of Plaintiffs name next 

to statement that he has been the victim of an extortion in the past but he's not going to speculate 

about Plaintiffs motivation. This is defamation by innuendo, made even more transparent by 

the statements of Defendant's agents on February 7 and 9, 2005, to Celebrity Justice, including 

that Plaintiff was engaged in a "classic shakedown." Cosgrove, id. 

The National Enquirer documents are particularly relevant to the proof of defamation by 

innuendo because Defendant has admitted that he reviewed and presumably edited the article 

before it appeared. The subpoena is directed to those documents which will establish what 

changes, if any, Defendant made to the article prior to publication. Defendant's contract with the 

National Enquirer will reveal just how much editorial control Defendant exercised over the 

publication, and forestall any claim that he was not responsible for the version which was 

published. Defendant hinted at such a defense in his deposition when he claimed that although 

1

It should be noted that Defendant is asserting this argument, despite his unequivocal admission 

to the contrary. The fact that Defendant is willing to now retract his deposition testimony makes 

the discovery of the documents crucial to Plaintiffs case. 

2 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 4 of 22
he told the National Enquirer writer about his conversations with Plaintiff and her mother, it was 

the writer's choice as to what was published. The documents that Defendant reviewed before 

giving the interview will be used to contradict Defendant's assertion that he did not intend for 

the statements Plaintiff alleges are defamatory to be applicable to her. Further, they will 

establish that Defendant gave the story to the Enquirer to prevent them from publishing Beth 

Ferrier's story because he believed that Beth Ferrier's story lent credibility to Plaintiffs 

accusations, that she was drugged and sexually assaulted by Defendant. Obviously, Defendant's 

intention in this regard is relevant to the intentional tort of defamation. If the purpose of the 

article was to discredit Plaintiff, then a reasonable fact finder can infer that Defendant is being 

disingenuous in his current statement that he was not commenting on Plaintiffs motives, and in 

fact he was intentionally defaming her by innuendo. Any documents evidencing revisions to the 

article by Defendant before publication will also demonstrate the extent of Defendant's control 

over the contents of the article. 

In his memorandum of law, Defendant claims that he "vigorously denies" that he 

"killed" the Ferrier story because he believed that it would bolster Plaintiffs allegations against 

him. (Def. memo, p. 3) Defendant's position in this regard is inexplicable in light of the 

following excerpts from his deposition: 

Q. What is your understanding of the agreement that you had with the National 

Enquirer concerning the story that appeared in the National Enquirer which was 

your exclusive interview termed my story? 

A. I would give them an exclusive story, my words. 

Q. What would they give you in return? 

A. They would not print the story of-- print Beth's story. 

(Cosby dep. 9/29/05, 161) 

3 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 5 of 22
Q. Did you ever think that if Beth Ferrier's story was printed in the National Enquirer, 

that that would make the public believe that maybe Andrea was also telling the 

truth? 

A. Exactly. 

Q. So that you knew when this article was printed, when you told the Enquirer this, 

that you had to make the public believe that Andrea was not telling the truth? 

A. Yes. 

(Cosby dep. 9129105, 222) 

The fact, that in his brief, Defendant is willing to make assertions directly contradicted 

by his own deposition testimony, emphasizes the need for the requested documents. In 

addition, Defendant's attorneys now claim that Defendant was unclear as to what he told the 

National Enquirer. It is undisputed that in the conversation amongst Plaintiff, her mother and 

Defendant in January, 2005, Defendant asked Plaintiff and her mother what they wanted. They 

replied that all they wanted was an apology. Defendant called Plaintiffs mother after this 

conversation, and he offered to pay for Plaintiffs "education." In his statement to law 

enforcement on January 26, 2005, admitted that Plaintiff and her mother had only asked for an 

apology. Requesting only an apology is not the action of an extortionist or someone who wants 

to "exploit" a celebrity. Certainly, if the National Enquirer knew, as Cosby did, that Plaintiff 

had not asked for money, then its publication of the article in question was malicious. Tucker v. 

Philadelphia Daily News, et. al., 577 Pa. 598, 848 A.2d 113 (Pa. 2004). At his deposition, 

Defendant's testimony about whether or not he told the Enquirer that the only thing that Plaintiff 

requested was an apology was unclear: 

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 offand do anything he 

wants to do after that. 

4 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 6 of 22
Q. What did you tell the writer that Andrea's mother had said? 

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 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. 

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. 

(9129105, 231-232) 

Apparently, Mr. Schmitt, one of Defendant's four attorneys who attended the deposition, 

was present during the discussions with the National Enquirer and he properly requested a recess 

to alert opposing counsel, so that he could remonstrate upon hearing his client testify to what did 

not occur. The following stipulation was then entered into the record: 

MS. TROIANI: 

We have agreed based upon representations of counsel, it is agreed that Mr. Cosby did 

5 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 7 of 22
not tell the National Enquirer that all Andrea or her mother asked for was an apology. 

Is that agreed, Mr. O'Connor? 

(9129105, 232) 

The material sought by Plaintiff from the National Enquirer will clarify this issue, establish the 

extent of Defendant's editorial control on the publication, prove Plaintiffs defamation claim and 

the corollary, disprove defendant's defense to the defamation claim, (as that defense is now 

characterized in Defendant's memorandum), and provide support for Plaintiffs punitive damages 

claim in that it will reveal the malicious nature of Defendant's actions. 

II. THE INFORMATION SOUGHT IS RELEVANT. 

Defendant contends that the information sought in the subpoena is irrelevant. First, the 

standard is not relevance, but rather whether or not the information sought is likely to lead to 

relevant and admissible evidence. In his memorandum, Defendant states, "No reasonable trier of 

fact could conclude that Defendant's refusal to characterize Plaintiffs motives amounted to an 

accusation that she was attempting to extort him, or that he intended to make such an 

accusation." As indicated above, the materials sought are relevant to Plaintiffs claim and 

establish Defendant's intentions, which are clearly in issue. Rather than reproduce the above, 

Plaintiff incorporates by reference her previous arguments. 

Further, Defendant has waived this argument. In his attempt to conduct this litigation in 

secret so that the public will only be aware of the information, which he chooses to feed them, 

Defendant insists upon submitting letter requests to the Court. Plaintiff has objected to this 

procedure, asserting that it is prejudicial to her, in that Defendant is not required to fully brief 

issues or to clearly define them. This issue is a case in point. 

6 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 8 of 22
On November 15, 2005, Defendant wrote to the Court asking for a limited protective 

order as to Defendant's agreement with the National Enquirer. In that letter, Defendant agreed 

to produce the contract but requested only that it be kept confidential. If Defendant were 

required to file a motion for protective order, then he waived any argument as to relevance by 

failing to raise it in his motion. Additionally, Defendant is attempting to benefit from his own 

misconduct. Defendant asserts that Plaintiff is aware of the terms of the agreement from 

Defendant's own testimony. In fact, the misconduct of Defendant's counsel prohibited Plaintiff 

from questioning Defendant about the agreement. Further, as is evident from the memorandum 

of law filed by Defendant, Plaintiff cannot rely upon either Defendant's deposition testimony or 

letters from counsel to the Court. Defendant has reversed both his assent to release the 

agreement, albeit with confidentiality, (to which Plaintiff will not agree), and his clear and 

unequivocal testimony that 1) he gave his interview to the Enquirer in exchange for their 

agreement to not print the Ferrier article; 2) he knew if the Ferrier article were published it 

would make the public believe that Plaintiff were also telling the truth, and 3) his motivation in 

granting the interview was that he wanted the public to believe that Plaintiff was not being 

truthful in her allegations against him. Plaintiff has the right to question Defendant about this 

testimony and to use the documents to determine if that testimony is inconsistent with those 

documents. 

III. DEFENDANT'S MOTION FOR PROTECTIVE ORDER SHOULD BE DENIED 

Once again Defendant requests secrecy and, in addition, despite the above arguments, he 

asserts that he has agreed to release the National Enquirer agreement on the condition of 

confidentiality. He takes the absurd position that revealing the circumstances of his quest for 

world wide publicity is an invasion of his privacy. Compounding these irreconcilable positions, 

7 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 9 of 22
is Defendant's insistence upon ascribing improper motives to Plaintiff for her articulation of the 

legal principles enunciated by the Pennsylvania Supreme Court that the most important function 

of a defamation action, is the public vindication of the defamed person, Gaetano v. Sharon 

Herald, 426 Pa. 1791, 231 A.2d 753 (Pa. 1967); Moyer v. Phillips, 462 Pa. 395, 341A.2d441 

(Pa. 1975); Graham v. Today's Spirit, 503 Pa. 52, 468 A.2d 454 (Pa.1983); Sprague v. ABA, et 

al., 276 F. Supp 2d.365 (E.D.Pa. 2003), as well as his insistence that the article in question is not 

about Plaintiff. 

What Defendant claims is private, is the deal he orchestrated to prevent the public from 

knowing that Plaintiffs claims were supported by similar claims of another woman that she too 

was drugged and sexually assaulted by Defendant. Defendant claims a privacy interest in this 

information but he doesn't explain what that interest is. He sought and obtained worldwide 

publicity.2 When he did that, he proclaimed to the world that he did not have any interest in his 

ownpnvacy. 

Defendant's claims of embarrassment are disingenuous. His behavior on the first day of 

his deposition was jocular. He gestured wildly as he explained his patting the "butts" of high 

schoolers at the Penn Relays. He joked and made faces. More importantly, he has publicly 

joked about this case. On February 26, 2005, while performing in New Brunswick, New Jersey, 

Defendant asked a woman to come onto the stage. He then asked, "Before I get started, let me 

ask you: Did I put anything into your drink?" Just as he is denying that his National Enquirer 

article concerned Plaintiff, Defendant denied that the joke applied to Plaintiff. As indicated in 

the attached newspaper article about the incident, (Exhibit B), the audience perceived that 

2 The header on the article reads: "enquirer world exclusive." 

8 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 10 of 22
Defendant was referencing the charges brought by Plaintiff. Regardless, this incident illustrates 

the relief which Defendant seeks. In reality, what he says to this Court is that he is the only one 

who can speak publicly about this case and when he does, he will be demeaning and dismissive 

of the claims of Plaintiff and the other women, and the public will never know the truth because 

he will use the court system to silence them. 

Defendant asserts that his private life is not the subject of public scrutiny. Taking to the 

stage to joke about drugging women and giving an "exclusive interview" to the National 

Enquirer hardly support that assertion. Defendant's alleges that he has never commented about 

this case. Presumably, he makes this assertion because the article preceded the filing of the 

lawsuit. Defendant misperceives Plaintiffs claim. She is not asserting a defamation claim 

because "Defendant defamed her by questioning her veracity and motivation in filing this suit..." 

(Def. memo p. 8) Plaintiffs claim is that Defendant had spoken to Plaintiff and her mother and 

knew that they had not asked him for money or attempted to exploit or extort him. They had 

only asked for an apology. Defendant also knew that he had drugged and had sexual contact 

with Plaintiff while she was unconscious and that another woman had also made a similar claim 

and was prepared to reveal that claim, publicly. He deliberately and intentionally defamed 

Plaintiff by causing the public to believe that he was once again the victim of an extortion plot 

perpetrated by Plaintiff and similar to the one which resulted in the conviction and incarceration 

of a woman claiming to be his daughter. He wanted the public to believe that Plaintiff was just 

another criminal. The Celebrity Justice article, (Exhibit C), was ascribed to Defendant's agents; 

it unequivocally states that Plaintiff was attempting to" shakedown" Defendant. 

In his memorandum, Defendant states, " Plaintiff only alleges that Defendant spoke 

about her to the media. Defendant denies that he ever did so, and the article proves him right." 

9 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 11 of 22
(Def. memo, p. 8). The National Enquirer article which is the subject of Plaintiffs defamation 

claim reads, inter alia: 

"Because of the looming civil suit, Cosby stressed to the ENQUIRER that he could speak only 

in broad terms about the case." (Emphasis added) 

"These allegations have caused my family great emotional stress." 

"Reacting to the prospect of a civil action from the young Canadian woman, furious Cosby 

vowed to The ENQUIRER that he would stand his ground against anyone who tried to "exploit" 

him because he is a celebrity." 

"Responding to the charge by the Canadian woman, Cosby declared .... " 

"Cosby told The ENQUIRER that when he heard police had launched an investigation, "My 

heart sank. I was at home, and these claims hurt me."' 

After the allegations surfaced, the accuser's family described Cosby as a friend and "mentor" to 

the woman. But Cosby told The ENQUIRER that celebrities are often put in the positions where 

their roles as mentors can lead to trouble. "Sometimes you try to help people and it backfires on 

you and then they try to take advantage of you." he said. "People can soil you by taking 

advantage." 

Defendant acknowledges that pursuant to Pansy v. Borough ofStroudsbourg, 23 F.3d 772 

(3d Cir. 1994), this Court must find that good cause exists in order to enter a protective order. 

To grant Defendant's motion, the Court must accept Defendant's version of the facts which are 

simply not true. The first "fact" is that Defendant has a privacy interest in that which he has 

made public. The second is that despite his joking and public statements critical of Plaintiff, he is 

now somehow embarrassed. He argues that the release of the National Enquirer agreement will 

draw further attention to Ms. Ferrier's allegations. In other words, Defendant wants a protective 

order for that which is already in the public domain, and further, the Court is supposed to ignore 

his role in placing it in the public domain. Defendant asserts that the information he seeks to 

make confidential does not concern public health or safety issues. He argues that unlike a public 

10 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 12 of 22
official the public does not have any interest in his integrity or lack thereof. In fact, the public 

does have such an interest. Defendant has used his celebrity status to place himself in the 

position where he can deceive woman into believing that they can trust him and that he is a 

mentor, when in fact, it is evident that their trust in him is misplaced. 

Defendant contends that "private" matters related to his health, medical history, and 

business and financial practices should be protected from disclosure because of the 

embarrassment that would cause him if they were made public, an implicit acknowledgment of 

his public stature and the interest that his circumstances engender among the public. These 

kinds of matters are, of course, the subject of everyday litigation and hardly distinguish the 

Defendant's situation from that of any other civil litigant. The distinguishing factor, from 

Defendant's point of view, is that defendant is a celebrity. Yet, courts do not give celebrities 

special consideration and Defendant cites to none that do. Willie Nelson Music Co. v. 

Commissioner of Internal Revenue, 85 T.C. 914, 916 (1985) (motion for protective order denied 

despite assertions by singer/celebrity that criminal liability may subject him to embarrassment 

and emotional distress); Condit v. Dunne, 225 F.R.D. 113 (S.D. N.Y. 2004) (court refused to 

impose protective order on discovery where former Congressman sued television commentator 

about statements made about possible involvement in a woman's disappearance); Flaherty v. 

Seroussi, 209 F.R.D. 295, 300 (legitimate public interest to have access to court proceedings 

outweighed embarrassment that might be caused by release of video-taped deposition). 

The real issue here is not Defendant's financial and health "secrets," it is the allegations 

of sexual misconduct and drugs. Following Shingara v. Skiles, 420 F.3d 301 (3d Cir. 2005) and 

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994), a party seeking protection 

from potential embarrassment must show it to be "particularly serious" . Shingara, 420 F.3d at 

11 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 13 of 22
307. Other than to vaguely restate the facts contained in discovery, Defendant fails to specify 

the serious harm that will occur from their disclosure. This Court has already held that such 

broad assertions do not rise to the level of the required specificity. This Court, following Pansy, 

supra and Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986), has held that 

"[b ]road allegations of harm, unsubstantiated by specific examples of articulated reasoning, do 

not support a good cause showing." Constand v. Cosby, C.A. No. 05-1099, Order, July 6, 2005, 

Document 37, filed 7/7/05 at n. 1 (E.D. Pa.) (Robreno, J.). In earlier briefing in this case, on the 

motion of the Jane Doe witnesses to protect their identities, the witnesses submitted to the Court 

examples of how each would suffer harm by the disclosure of their relationships with the 

Defendant. See Motion of Jane Doe Witnesses to Protect Disclosure of Their Names Outside of 

this Litigation and Supporting Memorandum of Law Constand v. Cosby, C.A. No. 05-1099, 

Document 33, filed 6/13/05 (E.D. Pa.). The witnesses asserted that disclosure would adversely 

effect health and mental problems and conditions - bipolar disorder in one case; effect their 

employment and careers; and cause humiliation and harassment by media attention. These 

assertions are not unlike those of the Defendant who alleges harm from the media and damage to 

his career which ''would quickly become the subject of scandal." With regard to the Jane Doe 

witnesses, this Court held that 

the allegations of harm by each of the Jane Doe witnesses are 

unsubstantiated broad allegations insufficient to establish good 

cause. First, no affidavits have been provided by any of the Jane 

Does to support their counsels' description of the possible harm 

from disclosure. Thus, the allegations are factually unsupported. 

Second, while disclosures may prove annoying and potentially 

embarrassing, these factors do not supply the requisite quantum to 

trump the public interest in access to court proceedings. 

12 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 14 of 22
Constand v. Cosby, C.A. No. 05-1099, Order, July 6, 2005, n. 1 (E.D. Pa.) (Robreno, J.) The 

Defendant has provided far less support for his broad allegations of harm than did the Jane Does. 

Defendant claims that his is not a "public figure" merely because he is a celebrity and 

entertainer. He neglects, however, to point out that he is much more than just a celebrity. It is a 

matter of public record that he is a community leader, serves on boards of major universities, 

takes public stands on important issues, and is frequently interviewed by the press for his 

opinions, not his jokes. Albeit he is not an elected official, it is beyond dispute that he is a public 

figure who generates intense and legitimate public scrutiny and interest. As a result, his 

expectation of privacy cannot be equivalent to that of a private citizen. Pansy, 23 F.3d at 787 

(privacy interests of a public person are diminished). . 

Defendant's expectation of privacy has been diminished by his own conduct. His 

contacts with Celebrity Justice and his exclusive contractual interview with the National 

Enquirer were all attempts at using his public stature to .persuade the public about his side of the 

story. It is not just the Plaintiff who has placed his conduct at issue. Defendant, on his own 

behalf, has reached out to the media about his "innocence" at the same time defaming his 

accuser. Now he wants the Court to protect him from publicity, which is not under his control. 

This simply is not "good cause" for protecting his the subpoenaed documents from disclosure. 

It is also import to recognize that the matter of concern to the Defendant, to the extent 

that facts are not already the subject of public knowledge, will eventually be disclosed, a fact 

that also diminishes his privacy interest. In a case very close on point, Koster v. Chase 

Manhattan Bank, 93 F.R.D. 471, 472 (D.C.N.Y. 1982). a former bank employee commenced an 

action against Chase Manhattan Bank and a former vice-president alleging that while she and 

former vice-president were employed by bank, he forced her to engage in a sexual relationship 

13 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 15 of 22
with him, abused her, and interfered with her career. The lawsuit generated a considerable 

amount of publicity in newspapers, television, and radio. The Koster court wrote that 

"[a ]ccording to the defendants, the widespread and, at times, somewhat sensationalized coverage 

has resulted in injury to the reputations of Ross, the Bank and its employees." Id. at 472-73. As 

a consequence the defendants moved for a protective order to seal information obtai~ed through 

discovery. The court performed a detailed "good cause" analysis, denied the defendant's 

motion, and held the following about the his concerns of embarrassment: 

The relative importance to this lawsuit of information concerning 

any sexual relationship between Koster and Ross is another factor 

that leads us to deny the defendants' motion. Ordinarily, one's 

privacy interest in preventing the public disclosure of the details of 

a sexual relationship might be viewed as a reason for granting a 

protective order. In this instance, however, the information is not 

irrelevant matter that was revealed as a by-product of the liberal 

discovery rules. Rather, the facts underlying the plaintiff's 

allegations that Ross forced her to have sex for the purpose of 

"safeguarding her career" and that he abused her when she 

terminated the relationship must be proven if the plaintiff is to 

prevail on her cause of action. In other words, this information is 

highly relevant to the issues in the lawsuit and will be revealed at 

a trial on the merits, assuming that there is one. Thus, the 

defendants' privacy interest in the information is significantly 

reduced by the likelihood that the information will eventually be 

disclosed. See Protective Orders, supra, at 1663 ("If the 

information will be disclosed eventually in any case, there is no 

reason to prevent disclosure at the discovery stage." (footnote 

omitted)); cf. Lucido v. Cravath, Swaine & Moore, supra, 25 

F.R.Serv.2d at 1051 (protective order covered only that 

information that "would, or at a minimum, might not be admissible 

at trial"). Id. at 482 (emphasis added) 

Similarly, the issues raised in the subpoenaed documents are at the heart of Plaintiffs claims. 

As a practical matter, placing the documents under seal now will not protect the Defendant from 

its eventual disclosure. As a consequence, the Defendant's expectation of privacy is both 

diminished and ephemeral. Accordingly, his motion for Protective Order should be denied. 

14 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 16 of 22
In summary, the documents Plaintiff seeks are relevant to her claim, and Defendant has 

waived his right to privacy by seeking out publicity which is favorable to him, and failed to 

establish good cause for the protection he now seeks. 

Respectfully submitted, 

TROIANI/KIVITZ, L.L.P. 

Bebe H. Kivitz, Esquire 

I.D. No. 30253 

38 North Waterloo Road 

Devon, Pennsylvania 19333 

(610) 688.8400 

15 

• 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 17 of 22
,, fl ... , 

Bill Cosby ends his silence: 

By BARRY LEVINE 

© 2005 The National ENQUIRER, Inc. 

I NA blockbus. ter exclusive interview with The ENQUIRER, 

Bill Cosby has spoken out for 

the first time since he was cleared of the headline-making sexual molestation charges 

brought by a Canadian woman. "I'm not saying that what I did 

was wrong, but I apologize to my 

loving wife, who has stood by my 

side for all these years, for any 

pain I have caused her," the 67-

year-old entertainer told The 

ENQUIRER. 

"These allegations have caused 

my family great emotional stress." 

The soul-baring interview took 

place on February 21 in a hotel 

NE

1129

A

1 FINAL. •;RDl!,lllJIWllll&llli 

suite in Houston, Texas, during 

Cosby's concert tour. · Reacting to the prospect of a civil action from the young Canadian woman, furious Cosby 

vowed to The ENQUIRER thathe 

would stand his ground against 

anyone who tried to "exploit" him 

because he is a celebrity. 

And about the California 

II re 

$ woman who publicly supported 5 

his accuser and claimed Cosby had ~ 

acted inappropriately with her, ~ 

too, Cosby told The ENQUIRER: ~ 

"She is a wrecking ball." o 

Responding to the charge by the i:: 

Canadian woman, Cosby de-~ 

clared: "No man wants to see his ~ 

family put in the position of having i.; 

(Continued on next page) 29 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 18 of 22
SBY MY STORY 

loving wife for any pain I have caused her' 

g to give in to people 

try to exploit me be

e of my celebrity 

s." 

published report 

s that the woman's 

her called Cosby before 

aughter went to police 

the co

an "was 

r the 

ression" 

was after 

 money. 

ecause 

woman 

med she 

the vic

of a sex 

e, The 

QUIRER 

ontinuing 

withhold 

name un

he goes 

c in a civ

on. 

e isa31-

ar-old 

er pro 

ketball 

er who 

Cosby while she 

ked in the athletic de· 

ment at Philadelphia's 

ple University. Temple 

uate Cosby is one of 

chool's biggest boost

Because of the looming 

civil lawsuit, Cosby 

stressed to The 

ENQUIRER that he could 

speak only in broad terms 

about the case. 

But in citing an example, 

Cosby suggested that the 

woman might have left out 

importsnt facts when she 

made her allegations to authorities. 

"Take a kid who comes 

home from school with a note from the principal," he 

said. 

"The note reads, 1We 

would like to see you tomorrow to discuss your 

child's behavior.' So the 

parent says to the child, 

'What did you do?' 

"The child says, 'The 

teacher slapped me, and I kicked her.' 

"The parent goes to the 

school and is angry with the 

authorities. But as the discussion unfolds, we fmd that the 

student ha.• 

left out the reason for the slap - the child 

picked up a 

stick in the 

clao;sroom and 

tried to strike 

the teacher. 

"The teacher stepped 

away and 

slapped the 

child in self. 

defense. 

"The child, 

in tslking to 

the parent, 

has left out a 

cruclal part ofthestorythetruth." 

After the 

allegations 

surfaced, the accuser's 

family described Cosby as 

a friend and "mentor" to 

the woman. 

But Cosby told The 

ENQUIRER that celcbri· 

ties are often put In 

positions where their roles 

as mentors can lead to 

trouble. 

"Sometimes you try to 

help people and it backfires 

on you and then they try to 

take advantage or you," he 

said. 

"People can soil you by 

taking advantage." 

Cosby admitted that the 

recent scandal intensified 

when a California lawyer, 67-year--old Tamara Green, 

msde additional allegations against him. 

The one-time actress 

and former model told a 

newspaper that she met Cosby at an audition and 

worked at his Los Angeles 

nightclub 30 years ago. She 

said one day she fell lll and 

Cosby gave her two drug 

tableta that let\ her 

"stoned." 

Back at her apartment, 

Cosby allegedly tried to 

take advantage of her. She 

claims Cosby then dropped 

two $100 bills on a table 

and fled. 

Green soid she told 

famlly and friends about 

Cosby's alleged assault but 

didn1t go to police. She finally 

called police on January 28 

and told them her story, and 

said she was speaking out 

now because she feared pros· 

ecutors would dismiss the 

claims made by the former 

Temple University employee. 

Cosby's lawyers insisted 

that he did not know Green, 

and directed the media to important information about the 

woman's credibility. 

According to the State Bar 

of California, Green entered a 

program for lawyers with substsnce abuse or mental health 

problems in October. 

The bar had lodged disciplinary charges against her in 

March 2004, alleging 12 counts 

of misconduct involving: 

three clients, spokeswoman 

Kathleen Beitiks said. 

Among the allegations were 

failure to perform with competence, failure to maintain 

client funds in a trust account, 

and failure to refund unearned 

fees. 

"My problem is with some 

media and how it appeared 

that Miss Green was allowed 

to be a 'wrecking baJI/ " Cosby 

said. 

"When Miss Green spoke, 

they pointed out that she was a ,, 

lawyer. This gives her c 

ity. 

"Anybody could 

checked out her credi' 

and credentials. But it 

pears that they 11 

checked her- or did c 

her and found it was 

venicnt to not mention it. 

"It's bothersome that when 

my side revealed her back 

ground1 we were blamed re 

throwing dirt. 

••'l'hen I was bla 

having a humu 

amount of la\ 

That's unfair. 

"I guess thal 

celebrity trying to 

pl'otect himself is 

not supposed to 

use every ounce of protection." 

Cosby added that he doesn't 

regret having his lawyers reveal information about Green, 

saying if he didn't, the media 

onslaught ••could have been 

even worse. 

"We're not bringing up 

something that a cadre or special investigators would have 

needed to go underground 

with trench coats 

mustaches to fin1 

ENQUIRER 

WORLD 

EXGLUSWE 

NE1131AO FINAL & R 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 19 of 22
-

Cosby jol~es on stage about doping drink 

Posted on Tue, Mar. OB, 2005 

Cosby jokes on stage about doping drink 

B\• NICOLE WElSF.NSEE EGAN 

wt1isenn@phifl'1new5.com 

Page 1of1 

A little over a week after being cleared of doping and groping a former Temple University women's basketball executive, Bill Cosby joked 

during a performance at the State Theater in New Brunswick, N.J., about whether he had slipped drugs into a woman's drink. 

"He brought this woman up from the audience,• said Stuart Zaklm, a spokesman for the Narfonal Enquirer, who happened to be in the 

audience for the Feb. 26 show. "He said, 'Before l get started, let me ask·you: Did [put anything into your drink? She said, 'No.'" 

She was laughing and the audience was hysterical, Zaklm said. 

"I laughed, too," Zakim said. "It was very smart on his part: Obviously the people who went to see him are fans and are aware of what's been 

going on and that the charges were never flied.• 

On Feb. 17. Montgomery County District Attorney Bruce Castor announced he wasn't filing criminal charges in connection with the Temple 

woman's complaint that Cosby had drugged and groped her at his Cheltenham Township mansion. The woman quit her Temple job after the 

alleged assault and returned to her native Canada. A year after the incident, she reported It to the pollce. 

The Canadian woman's )awvers say she'll soon file a civil lawsuit against Cosby. 

Zakim took Cosby's joke to be a reference to the Canadian woman's allegations. Cosby attorney Marty Singer and Cosby spokesman David 

Brokaw took no issue with Zakim's account of what Cosby had said. But they said Cosby's joke .had not been about the Canadian woman. 

Brokaw said Cosby's joke referred to a Feb. 14 story in the National Enquirer in which Shawn Upshaw was quoted as saying that during an 

affair she had with the comedian, he had given her "a funny-tasting drink." · 

"And then she says she woke up, knowing that something funny had happened, knowing she was pregnant. The morning after, so to speak/ 

Brokaw said, ridiculing Upshaw's story. 

Singer said Cosby had bee_n joking "about a woman who sold a story to a tabloid'' - not about the Canadian woman. 

"He's never treated it in a joking or light mann.er," Singer said, referring to the allegations raised by the Canadian woman. He added that 

Upshaw's story was false. 

Upshaw's daughter is Autumn Jackson, who threatened to tell the world she was Cosby's daughter if the entertainer didn't pay her $24 

million. Autumn lac:kson was convicted of e><tortion and sentenced to 26 months in jail. Cosby admitted having had an affair with Upshaw in 

the early· 1970s, but denies having fathered Autumn Jackson. 

In a phone Interview last week, Upshaw said Cosby's Jok~ had been "in poor taste.• 

With regard to her story, she said, "He's making light or it as damage control. He's trying to make the community think he didn't do it; that's 

why he can joke about it." . 

~'J ~(l\l::i Phifodt'ft\hi:. Daily :\i1.·•.••s «Iii.I Y.)f': ~t;:rvit.·i· ~1mf;C.~ .• -\'II Ril!lll~ l~('st'l'V~-..!. 

blip:."/\\'',\.·\' •. phiJ1~.ClU1 I 

ttp:/iwww .phiUy.com/mld/dailynews/news/JocaJ/11078265 .htm?template=contentlVIodules/orintstorv,iso 

0 

5/12/200.'\ 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 20 of 22
; I '~ c .. 

CJ - Cosby Accuser's Mom Contacted Cosby Before Cops? ,. Page 1 of I 

111

• SEARCH 

-·--·---·--·--:~_···---·1 

J 

~ 

Cosby Accuser's Mom Contacted 

Cosby Before Cops? 

February 7, 2005 

A "Celebrity Justice" Exclusive. 

Sources connected with Bill Cosby tell "CJ" that 

before his accuser went to police, her mother asked 

the comedian to make things right with money. 

. Cosoy has been accused of sexual assault by a 

woman who played basketball for the University of Arizona before taking a job at Temple 

University in Philadelphia. She has claimed that Cosby drugged and then fondled her. The 

incident in question took place a year ago January at Cosby's home in Philadelphia. 

Cosby has told police that there was a sexual encounter, but that it was consensual. 

According to "CJ" Executive Producer Harvey Levin. "Sources tell us that Cosby and his accuser 

had a cordial relationship throughout 2004. but we're told her mother contacted Cosby last month 

and complained." 

Sources say Cosby was under the impression the mother wanted money, so to keep the 

encounter quiet. he called the mother back. We're told she asked Cosby to help pay for her 

daughter's education and to generally help her out financlally, and this conversation occurred 

before the accuser ever contacted police. 

It appears tfle accuser and her mother may halie taped at least one c;onversation with Cosby. 

As police continue lo Investigate, a Cosby rep call this a classic shakedown. 

--··{ ~ ~)~l#l'. ~ )---· '· 

WI 

Click tci Watch the Video 

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http://celebritviustice.warnerbros.com/news/0502/07a.html 5112/2005 

0 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 21 of 22
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff 

v. 

WILLIAM H. COSBY, JR., 

Defendant 

: CIVIL ACTION 

: NUMBER 05-1099 

: FILED UNDER SEAL 

CERTIFICATE OF SERVICE 

I hereby certify that on, January 4, 2006, the undersigned were served in the following 

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

Memorandum of Law to Defendant's Memo in Opposition to Plaintiff's Motion To Compel 

Compliance with Subpoena Issued to the National Enquirer and Memorandum of Law. 

NAME 

Patrick J. O'Connor, Esquire 

Cozen 0' Connor 

1900 Market Street 

Philadelphia, PA 19103 

Andrew D. Schau, Esquire 

MANNER 

United States First Class Mail 

United States First Class Mail 

Patterson Belknap Webb & Tyler, LLP 

1133 Avenue of the Americas 

New York, NY 10036 

Paul D. Weller, Esquire 

Jennifer B. Jordan· Esquire 

Morgan, Lewis & Bockius, LLP 

1701 Market Street 

Philadelphia, PA 19103 

Unites States First Class Mail 

Bebe H. Kivitz, Esquire 

I.D. No. 30253 

38 North Waterloo Road 

Devon, Pennsylvania 19333 

(610) 688.8400 

16 

Case 2:05-cv-01099-ER Document 66 Filed 01/04/06 Page 22 of 22