DOLORES M TROIANI, ESQUIRE 

BEBE H. KIVITZ, ESQUIRE 

December 8, 2005 

(Hand-Delivered) 

Office of the Clerk of Court 

Eastern District of Pennsylvania 

U.S. Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

TROIANI/KIVITZ, L.L.P. 

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 Response To Defendant's Motion To Strike Plaintiff's Motion 

Concerning Conduct Of Defendant's Deposition And Motion for Sanctions 

And Memorandum of Law 

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 (via hand-delivery) 

Andrew D. Schau, Esquire (first class mail) 

Andrea Constand (first class mail) 

Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff 

v. 

WILLIAM H. COSBY, JR., 

Defendant 

: CIVIL ACTION 

: NO. 05-CV-1099 

:UNDER SEAL 

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE 

PLAINTIFF'S MOTION CONCERNING CONDUCT OF DEFENDANT'S 

DEPOSITION AND MOTION FOR SANCTIONS 

Plaintiff makes this her response to defendant's Motion to Strike and prays this 

Honorable Court deny the Motion and impose Rule 11 sanctions against Defendant and in 

support thereof, Plaintiff incorporates by reference the memorandum of law attached hereto as if 

fully set forth herein. 

Respectfully submitted, 

Attorney l.D. 30253 

Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 2 of 11
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff 

v. 

WILLIAM H. COSBY, JR., 

Defendant 

: CIVIL ACTION 

: NO. 05-CV-1099 

:UNDER SEAL 

PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S 

MOTION TO STRIKE PLAINTIFF'S MOTION CONCERNING CONDUCT 

OF DEFENDANT'S DEPOSITION AND MOTION FOR SANCTIONS 

On November 21, 2005, Plaintiff filed a Motion Concerning Conduct of Defendant's 

Deposition and Motion for Sanctions, (hereafter "Hall Motion"). In that Motion, Plaintiff 

requests " that this Honorable Court order Defendant to adhere to the guidelines set forth in Hall 

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

a full and complete deposition at his expense, and to sanction Defendant and/or his counsel by 

requiring them to reimburse Plaintiff for the costs of the Defendant's deposition, and to impose 

other sanctions, as the Court deems appropriate." 

In reply, on November 28, 2005, Defendant filed a motion to strike, fraught with Rule 

11 violations. Federal Rule of Civil Procedure 11, provides, in pertinent part: 

The signature of an attorney or party constitutes a certificate by the signer that 

the signer has read the pleading, motion, or other paper; that to the best of the 

signer's knowledge, information, and belief formed after reasonable inquiry it is well 

grounded in fact and is warranted by existing law or a good faith argument for the 

extension, modification, or reversal of existing law, and that it is not interposed for 

any improper purpose, such as to harass or to cause unnecessary delay or needless 

increase in the cost of litigation. If a pleading, motion, or other paper is signed in 

violation of this rule, the court, upon motion or upon its own initiative, shall impose 

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Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 3 of 11
upon the person who signed it, a represented party, or both, an appropriate sanction, 

which may include an order to pay to the other party or parties the amount of the 

reasonable expenses incurred because of the filing of the pleading, motion, or other 

paper, including a reasonable attorney's fee. 

Fed. R. Civ. P. 11. 

Defendant in his Motion to Strike misrepresented the telephonic conference which this 

Honorable Court conducted with counsel on November 4, 2005, as well as, the rulings of the 

Court. Those misrepresentations include, inter alia, that: 

1) Defendant asserted that Plaintiff asked the Court for permission to file "of record," 

both a motion to compel and a "Motion Concerning the Conduct of Defendant's Deposition." 

"Neither of Plaintiffs requests was granted." (Def. Memo, 2) 

2) Defendant claimed that by filing the Hall Motion, Plaintiff was "Ignoring that she had 

already requested to file such a motion, and ignoring the Court has already read the entirety of 

each party's deposition and concluded that no impropriety occurred, Plaintiff filed a 62-page 

memorandum concerning counsel's conduct during Defendant's deposition." (Def. Memo, 2) 

3) "Plaintiff made her motion knowing that the Court had already rejected her 

characterization of counsel's conduct." (Def. Memo, 2) 

In fact, this Honorable Court began the November 4, 2005, telephone conference by 

stating, "This is a status conference. I will not be making any rulings on the merits." (Tr. 

11/4/05, 2) Defendant argues that Plaintiff needed to obtain permission before filing the Hall 

Motion and that that permission was denied by this Honorable Court. Presumably, there may be 

extraordinary circumstances when the courts are closed to a litigant, but, this Court has never 

placed such a restriction upon Plaintiff and in fact, the following discussion occurred concerning 

the Hall Motion: 

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Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 4 of 11
Ms. Troiani: 

Your Honor, we also have the issue about whether or not Hall and Applied 

Telematics apply. 

The Court: 

Yes 

Ms. Troiani: 

Would thatThe Court: 

That should.be brought up. That should be brought up. I think that's 

why I gave you the opportunity to summarize that. I think that there are two overarching issues here. I think that may be one .. And I think there is also the -- that 

there is some discrepancy as to the scope of the attorney/client privilege. And I 

think that also should be fleshed out. Those are, you know, difficult issues. And I 

think they should be fleshed out. And I said five pages, frankly, you know if you 

need more -- I mean, you know, we shouldn't arbitrarily limit, you know, the 

wisdom that this Court can get. But I think brevity would be helpful, but if you 

need more than that, that is fine. And I think there is various views on that 

particular issue. 

I do hope that we relate that to the specifics of the case, as opposed to 

some general discussion of the soundness of that approach. But I think that that's 

something that needs to be addressed here. And I didn't want to address this, 

frankly, without an appropriate foundation. And I think that's what this 

procedure intends to do. Not to foreclose anyone from doing anything at the 

right time. But if it is going to be done, it should be done after, you know, 

some due deliberation here. 

(Tr.11/4/05, 12) 

Defendant's assertion that this Honorable Court foreclosed Plaintiff from filing the Hall 

Motion is sanctionable under Federal Rule of Civil Procedure 11. Messrs. O'Connor, Gowen 

and Schmidt all participated in the phone conference. It is inconceivable that not one of them 

heard the Court make the two statements referenced above; nor ordered the transcript before 

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Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 5 of 11
making such allegations in the Motion to Strike. Rule 11 requires a reasonable investigation of 

the facts before a pleading is filed. Terminix Int'/ Co., L.P. v. Kay 150 F.R.D. 532 (E.D. Pa. 

1993) The simple act of ordering the transcript would have prevented Defendant from 

misquoting the Court and misrepresenting that the Court had prohibited Plaintiff from filing the 

Hall Motion. 

4) Defendant asserted that in the November 4, 2004 telephone conference, "The Court 

noted that it had read every word of both deposition transcripts. The Court opined that both 

parties' counsel had conducted themselves appropriately in defending their respective client's 

depositions." (Def. Memo, 2) 

In fact the Court said: 

" Let me just say that I have read every page and every line of the materials that you sent 

me. So, I think I have a sense, not only for the trees, but also for the forest of this case. And let 

me make just a couple of comments here. Number one, this is a difficult case for the lawyers to 

handle, from both sides. And I appreciate that and I have a sensitivity to that, as well. And I think 

that both sides have, within the difficult burdens that they are carrying, done the best that they 

can for their clients." (Tr. 11/4/05, 2-3) Some of the conduct which Defendant asserts this 

Honorable Court has condoned include the following statements of Defense Counsel: "You're 

never going to learn unless you listen." (Def. Dep. 9129105, 16); "I don't know the last time 

you've been in court." (Def. Dep. 9129105, 104);" That is so outrageous and inappropriate. I'm 

going to take a break. I may call the judge on this. I'm not going to put up with this crap, okay? 

I am tired of you insulting this witness and his voracity (sic). And if you continue with it, I'm 

4 

Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 6 of 11
shutting it down."(Def. Dep. 9129105, 116); "You didn't like his first answer, now you're trying 

to get another."( Def. Dep. 9129105, 145) 

Defense Counsel's assertion that such behavior is not only appropriate but ratified by the 

Court emphasizes the need for judicial intervention. It is respectfully submitted that if counsel is 

not disabused of his belief that he acted appropriately, this type of conduct will not only continue 

but increase in frequency and ferocity. Lawyers do not need to be insulting or use inappropriate 

language to assert a position and protect their clients. As the Court stated: "This is a court 

proceeding that needs to be conducted in an orderly fashion so that there will be an appropriate 

record for review." (Tr. 11/4/05, 10) It is respectfully submitted that the only means of achieving 

the conduct of this case in an orderly fashion is by granting Plaintiffs Motion. 

5) Next, Defendant wrote: "Not content with citations to the record already before the 

Court, Plaintiff reproduces, verbatim, over 50 pages of the transcript in her motion." (Def. 

Memo, 3) (emphasis added) 

In Tarkett, Inc.v. Congoleum Corp., 144 F.R.D. 282 (E.D.Pa. 1992), this Honorable 

Court sanctioned counsel for failing to comply with Eastern District Rule 24 (b ). Rule 24(b) is 

now Rule 26.1 (b) which reads: 

Every motion pursuant to the Federal Rules of Civil Procedure governing discovery shall 

identify and set forth, verbatim, the relevant parts of the interrogatory, request, answer, 

response, objection, notice, subpoena, or depositions. 

5 

Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 7 of 11
Part (c) reads: 

If material in interrogatories, requests, answers, responses, or depositions is used as 

evidence in connection with any motion, the relevant parts shall be set forth, verbatim, in the 

moving papers or in responding memorandum. (emphasis added) 

Local Rule 26.1 

As this Honorable Court wrote in Tarkett, supra, "The Rule requires the movant to 

identify for the court the precise request which is in dispute between the parties. Compliance 

serves the interest of judicial economy in that it focuses the court's attention on the specific 

request at issue without the need for the court to cull from the discovery papers the knob of the 

dispute." 144 at 285. Defense counsel having engaged in questionable conduct throughout the 

deposition, now complains that Plaintiffs Motion seeking redress for that conduct is too long. 

The length of the memoranda was determined by the frequency of the complained of conduct. 

Defendant seeks to strike Plaintiffs Hall Motion because she complied with the Rules of 

Civil Procedure and the rulings of this Honorable Court. Counsel's failure to be familiar with 

and abide by court rules is sanctionable. Gateriewictz v. Gebhardt, 1994 U.S. Dist. LEXIS 3637 

(E.D. Pa. 1994). In fact, once again, Defendant's defense is a false accusation of misconduct on 

the part of Plaintiff. At page 4 of the memorandum oflaw, Defendant wrote: "Plaintiff, who has 

made no secret of her desire to foment prejudicial pretrial publicity by publishing the fruits of 

discovery before trial, should not be permitted to fabricate ''judicial issues" simply to avoid the 

default rule that deposition transcripts are not public." Although the by-product of compliance 

with Local Rule 26.1 may be public access to those statements which Defendant seeks to secrete 

from public scrutiny, as the Court stated: 

6 

Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 8 of 11
"The difficulty here is the following. That the courts have recognizes that confidentiality can be 

attached to discovery because, among other reasons, the Court is not directly involved. The 

parties privately can make those arrangements. If the motion to compel becomes a vehicle to 

disclose the discovery, then the entire point of any agreement that the parties have or any desire 

that the courts have endorsed in the past for discovery, as opposed to court proceedings, to 

remain confidential, it would be pointless. Now, it may just be that's the way it is." (Tr. 

11/4/05, 3) 

In fact, this case will be subjected to public scrutiny whether at the discovery stage or at 

trial. As previously indicated, the courts are open to the public to preserve the integrity of the 

process. Defendant should not be afforded "star status." He needs to be treated like any other 

litigant. It is that very public scrutiny that acts as deterrent to the behavior complained of in the 

Hall Motion. 

It is respectfully submitted that Defendant has filed with the Court a Motion to Strike 

which misstates this Honorable Court's own words and rulings. Attorneys have been sanctioned 

for less egregious conduct. Spencer v. Steinman, 1999 U.S. Dist. LEXIS 23387 (attorney issued 

third party subpoenas without notice); Loftus v. SEPTA, 8 F. Supp. 2d 458 (E.D. Pa. 1998) 

(attorney pursued frivolous law suit after similar one filed by same attorney had been dismissed) 

Dover Steel Co. v. Hartford Accident & Indem. Co. 151 F.R.D. 570 (E.D.Pa. 1993) (sanctions 

mandatory upon finding of Rule 11 violation); Mid-Atlantic Constructors, Inc. v. Stone & 

Webster, 2005 U.S. Dist. LEXIS 26625 (E.D. Pa., 2005) (service of subpoena past discovery 

deadline); Terminix Int 'l Co., L.P. v. Kay (150 F.R.D. 532 (E.D.Pa. 1993) (Rule 11 violation); 

PA Envt'l Defense Found. v. U.S. Dep 't of the Navy, 1995 U.S. Dist. LEXIS 1461, (E.D. Pa. 

7 

Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 9 of 11
1995) (violation of Pa. Rule of Prof. Cond. 3.3.(d) duty of candor); Christaldi v. SEPTA, 1997 

U.S. Dist. LEXIS 8886 (E.D. Pa. 1997)( in house attorney failed to appear for mediation and file 

timely response to show cause order); Getekv. Ohio Casualty Ins. Co., 1994 U.S. Dist. LEXIS 

507 (E.D. Pa. 1994) (failing to obey order concerning completion and submission oflnitial 

Pretrial Conference Information Report), Delaware County Intermediate Unit #25 v. Martin & 

Melinda K. 1993 U.S. Dist. LEXIS 745 (E.D. Pa. 1993) (failure to comply with discovery order). 

The filing of a Motion to Strike does not act as a stay. Defendant's response to the Hall 

Motion was due on December 6, 2005. If Defendant has not responded to the Hall Motion, 

Plaintiff requests that the Court grant the Hall Motion and further impose Rule 11 sanctions upon 

Defendant for the filing of the Motion to Strike . 

1 Local Rule 7 .1 ( c) authorizes the court to grant 

as uncontested any motion to which a timely response has not been filed. Kimball v. 

Countrywide Merchant Servs. 2005 U.S. Dist. LEXIS 1817 (E.D.Pa. 2005). 

WHEREFORE, Plaintiff respectfully prays this Honorable Court to grant the Motion for 

Sanction and for the imposition of the Hall guidelines to depositions and further to sanction 

Defendant for Rule 11 violations with regard to the Motion to Strike. 

Attorney l.D. 21283 

BEBE H. KIVITZ 

Attorney I.D. 30253 

1 Although Defendant hand delivers pleadings to the Court, he does not serve counsel in 

the same manner. Plaintiff has not received Defendant's responses as of the time of filing of this 

reply and is unaware ifhe responded to the Hall Motion. 

8 

Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 10 of 11
CERTIFICATE OF SERVICE 

I hereby certify that on, December 8, 2005, the undersigned were served in the following 

manner, a true and correct copy of: Plaintiff's Response To Defendant's Motion To Strike 

Plaintiff's Motion Concerning Conduct Of Defendant's Deposition And Motion for 

Sanctions and Memorandum of Law. 

NAME 

The Honorable Eduardo C. Robreno 

Eastern District of Pennsylvania 

U.S. Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

Office of the Clerk of Court 

Eastern District of Pennsylvania 

U.S. Courthouse 

601 Market Street, Room 2609 

Philadelphia, PA 19106 

Patrick J. O'Connor, Esquire 

Cozen O'Connor 

1900 Market Street 

Philadelphia, PA 19103 

Andrew D. Schau, Esquire 

Patterson Belknap Webb & Tyler, LLP 

1133 Avenue of the Americas 

New York, NY 10036 

Date: M Lt}tsMANNER 

Hand-Delivered 

Hand-Delivered 

Hand-Delivered 

United States First Class Mail 

By:~~-+''-'-~---'-o___..______,_-P!'~=-'-~ 

Dolo s M. Troiani 

A rney l.D. No. 21283 

Attorney for Plaintiff 

Case 2:05-cv-01099-ER Document 60 Filed 12/08/05 Page 11 of 11