The first correspondence with the Court in this regard 1

involved plaintiff’s August 25, 2005 letter to the Court and

defendant’s September 12, 2005 letter to the Court regarding

interrogatories. During a discovery conference, held in open

court on September 26, 2005, the Court ruled on the issues from

the bench.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREA CONSTAND : CIVIL ACTION

 : 05-1099

Plaintiff, :

:

v. :

:

WILLIAM H. COSBY, JR. :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. JANUARY 31, 2006

Before the Court are the parties’ motions to compel

further deposition testimony (docs. no. 49 and 50) and

plaintiff’s motion for sanctions (doc. no. 48). 

Discovery in this case began with the exchange of

interrogatories and requests for production, and the taking of

the depositions of plaintiff and defendant. During the course of

discovery, several issues arose which the parties brought to the

Court’s attention for resolution via letter. The instant 1

dispute over the parties responses at deposition was raised in an

October 5, 2005 letter from defense counsel requesting assistance

from the Court. Plaintiff submitted a response letter on October

6, 2005 in which she also raised issues regarding these
All references to question numbers are consistent with the 2

parties’ numbered motions to compel, organized pursuant to the

Court’s November 4, 2005 order.

2

depositions.

On November 4, 2005, the Court held a telephone

conference to address the proper procedure by which the parties’

discovery disputes regarding depositions could be resolved. The

conference did not address the merits of the dispute, but was

intended to afford the parties an opportunity to comment on a

procedure within which the Court could evaluate the parties’

conflicting arguments. See Nov. 4, 2005 Tr. at 2. At the end of

the conference, the Court entered its November 4, 2005 interim

order setting forth the procedure discussed and sealing the

parties’ motions to compel and the responses pending review by

the Court. See Case Mgmt. Order 2 (doc. no. 47). These motions

to compel and the motion for sanctions were filed under seal

pursuant to that order.

I. MOTIONS TO COMPEL

The parties’ motions to compel further deposition

testimony involve questions left unanswered because of assertions

of the attorney client privilege or objections by counsel,

including instructions not to answer. To date, the depositions 2

of both parties remain incomplete subject to the motions to

compel. Consistent with the Court’s ruling of January 13, 2006,
The date, time and place and the logistics of the 3

depositions were agreed upon by the parties. The depositions, so

far, have taken place in private. See Seattle Times v.

Rhinehart, 467 U.S. 20, 33 (1984) (“pretrial depositions . . .

are conducted in private as a matter of modern practice” 

(internal citations omitted)); see also Sept. 26, 2005 Tr. at 12.

3

the parties’ depositions shall continue to be conducted in

private. The notes of testimony of the depositions taken 3

pursuant to the order of this date shall be sealed until further

order of the Court. Upon completion of the depositions, as set

forth below, the Court will determine whether there is good cause

for the seal to continue to attach to the motions and the notes

of deposition testimony attached to the motions, as well as to

the entire transcripts of the depositions in accordance with the

November 4, 2005 Order. Moreover, the deposition questioning

pursuant to the Court’s ruling on these motions to compel will be

limited to the questions listed in the parties’ motions to compel

and those questions that reasonably arise from the answers. 

These reconvened depositions of plaintiff and defendant shall not

extend beyond the scope that is permitted by the order of this

date.

A. Plaintiff’s Motion to Compel.

1. Alleged prior acts of sexual assault.

The information sought through plaintiff’s motion to

compel can be placed in one of three categories: (1) core

information about the alleged incident between plaintiff and
Although the motions to compel and responses are filed 4

under seal, the Court may reveal as much “as is necessary to

produce a reasoned opinion that can itself be reviewed.” See In

re Ford Motor Co., 110 F.3d 954 (3d Cir. 1997) (addressing in

camera review).

4

defendant that is directly relevant; (2) information about the

Jane Doe witnesses; and (3) information about other alleged

sexual affairs, use of prescriptions or controlled substances and

trust arrangements with unrelated third parties involving the

defendant, that do not involve already identified Federal Rule of

Evidence 415 witnesses.4

Comprehensive discovery is the staple of modern

American litigation practice. The ability to develop the

parties’ cases pretrial results in efficiency and leads to a

trial on the merits. While liberal, the scope of discovery is

not unbound. Discovery comes at a cost both in financial terms

and in its impact on the privacy interests of parties. 

Additionally, particular care should be employed when requiring

the production of sensitive personal information concerning

persons who are not parties to the dispute. Federal Rule of

Civil Procedure 26(b) strikes a balance between these competing

interests. Rule 26(b)(1) provides:

Parties may obtain discovery regarding any

matter, not privileged, that is relevant to

the claim or defense of any party . . . . For

good cause, the court may order discovery of

any matter relevant to the subject matter

involved in the action. Relevant information

need not be admissible at the trial if the
5

discovery appears to lead to the discovery of

admissible evidence. All discovery is subject

to the limitations imposed by Rule

26(b)(2)(i), (ii), and (iii).

Additionally, relevant information may nevertheless be cloaked

with a mantle of confidentiality, upon a showing of good cause. 

See Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994).

See generally Fed. R. Civ. Pro. 26(c).

Information in category one, i.e. core information

about plaintiff and defendant’s relationship, clearly is relevant

non-privileged discovery central to the parties’ claims and

defenses. It is without question that any alleged history of sex

or use of prescriptions or controlled substances between

plaintiff and defendant is core to this action. Therefore,

defendant is required to answer the following questions pursuant

to plaintiff’s motion to compel: 13, 27, 28 and 34.

For good cause, the Court may order discovery of

relevant evidence if it appears reasonably calculated to lead to

the discovery of admissible evidence. See Fed. R. Civ. Pro.

26(b)(1). Information in category two, i.e. information about

defendant’s alleged encounters with the Jane Doe witnesses, is

relevant and may lead to the discovery of admissible evidence of

defendant’s propensity for sexual assault, if any, or his modus

operandi, if any, under Rule 415. The admissibility of

propensity evidence in sexual assault cases is governed by Rule

415. 
The relevant portion of Rule 413(d) defines the phrase 5

“offense of sexual assault.” Rule 414 relates to child

molestation cases specifically, and does not apply here.

6

Rule 415 states: 

In a civil case in which a claim for damages

or other relief is predicated on a party’s

alleged commission of conduct constituting an

offense of sexual assault or child

molestation, evidence of that party’s

commission of another offense or offenses of

sexual assault or child molestation is

admissible and may be considered as provided

in Rule 413 and Rule 414 of these rules.

(emphasis added). The language of the rule itself does not 5

define the scope of inquiry. The Third Circuit, however, has

filled the gap. See Johnson v. Elk Lake Sch. Dist., 283 F.3d 138

(3d Cir. 2002). 

In Johnson, the Third Circuit considered the standards

for admission of evidence of prior sexual misconduct under Rule

415. The Court determined that “a court may admit the [Rule 415]

evidence so long as it is satisfied that the evidence is

relevant, with relevancy determined by whether a jury could

reasonably conclude by a preponderance of the evidence that the

past act was a sexual assault and that it was committed by

defendant.” Id. at 144 (applying to Rule 415 the standard for

admissibility of Rule 404(b) evidence from Huddleston v. United

States, 485 U.S. 681 (1988)). Once that initial determination is

made, the Court is then free to conduct a balancing analysis

under Rule 403. Id. 
Though the district court did not label its analysis as 6

conducted under Rule 403, the Third Circuit interpreted it that

way.

7

The defendant in Johnson was accused of sexually

harassing and abusing a female student at the high school where

defendant worked as a guidance counselor. The plaintiff sought

to introduce the testimony of another teacher who saw defendant,

during what appeared to be horseplay, pick up a female student

and throw her over his shoulder, in the course of which defendant

put his hand on the student’s crotch. The court affirmed the

exclusion of the testimony based on a purported Rule 403

analysis. The court stated the proper balancing analysis as 6

follows:

[I]n cases where the past act is demonstrated

with specificity and is substantially similar

to the act(s) for which the defendant is being

sued, it is Congress’s intent that the

probative value of the similar act be presumed

to outweigh Rule 403's concerns. In a case

such as this one, however, in which the

evidence of the past act differed from the

charged act in important ways, we believe that

no presumption in favor of admissibility is in

order, and that the trial court retain

significant authority to exclude the proffered

evidence under Rule 403.

Id. at 144. 

Therefore, pursuant to the Third Circuit’s decision in

Johnson, the Court must consider the following factors in

determining the admissibility of Rule 415 Jane Doe evidence: (1)

the proximity in time of the events, (2) the similarity between
8

events, (3) the frequency of prior acts, (4) the presence/lack of

intervening events and (5) the need for evidence beyond the

testimony of the defendant and the victim. See id. at 156

(quoting United States v. Guardia, 135 F.3d 1326, 1330 (10th Cir.

1998)). Finally, the past act sought to be introduced under Rule

415 must be “demonstrated with specificity.” Id. at 156

(citations omitted). Therefore, there is good cause for

discovery of information in category two in order to allow the

Court to apply the Johnson factors in determining the likelihood

that the inquiry would lead to the discovery of admissible

evidence under Rule 415 and/or whether the information should be

kept under seal. Defendant is required to answer the following

questions pursuant to plaintiff’s motion to compel: 2, 3, 4, 9,

14, 15, 17 and 18. 

With regard to the information in category three, i.e.

information about alleged sexual affairs, use of prescriptions or

controlled substances and trust arrangements with unrelated third

parties allegedly involving the defendant that do not involve

already identified Rule 415 witnesses, the link is more

attenuated. The questions in category two involve individuals

who have identified themselves as alleged victims of sexual

assault involving the defendant, and therefore have voluntarily

thrust themselves into the vortex of this case. By contrast, the

questions in category three seek to expand this universe to
9

include the identity and circumstances of persons who allegedly

may have been victims of sexual misconduct by defendant beyond

the already self-identified Rule 415 Jane Doe witnesses. 

The broad scope of the inquiry raises concerns in two

areas. One, it implicates the privacy interests of non-parties. 

Unfettered discovery of the type sought, if productive, would

expose and bring into the controversy non-parties who, unlike the

Jane Doe witnesses, have not voluntarily agreed to provide

personal information that may be relevant to this dispute. Two,

it also implicates the privacy interests of the defendant. While

the defendant will be made to answer in open court to allegations

in the complaint, this defendant, just like any other defendant

in a civil action, no matter how high or low his or her status,

Clinton v. Jones, 520 U.S. 681, 688 (1997) (citing Jones v.

Clinton, 72 F.3d 1354, 1358 (8th Cir. 1996)), does not surrender

all privacy rights ipso facto merely by being named as a

defendant in a lawsuit. Although defendant is not entitled to a

brand of “celebrity justice,” neither is he stripped of all of

his rights to privacy by virtue of this litigation.

Balancing these competing interests, the plaintiff’s

right to take discovery in pursuit of admissible evidence versus

the privacy rights of non-parties and of the defendant, calls for

an initial definition of the outer limits of Rule 415 type

discovery under the teachings of Johnson. A temporal perimeter
Though the allegations of the Jane Doe witnesses span at 7

least twenty years, plaintiff is not entitled to unlimited

questioning regarding topics in category three. The Jane Does

are self-reported Rule 415 witnesses who have brought themselves

into this controversy. As such, the information in category two

is not limited in time. The information in category three,

however, must be subject to some limitations to protect the

privacy interests of unidentified non-parties who may be

unwillingly brought into this case.

10

thus must be imposed. Therefore, as to Rule 415 discovery, and

the information that falls within the scope of category three,

the defendant shall be required to answer questions limited to

conduct, acts or events, if any, which occurred within the five

years preceding the alleged assault of plaintiff by defendant.7

Pursuant to this direction, defendant is required to answer the

following questions in plaintiff’s motion to compel, limited to

the five years preceding the date of the alleged assault of

plaintiff: 1, 5, 6, 7, 8, 10, 11, 12, 29, 30, 31, 32, 33, 35, 36,

37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and 47.

2. The National Enquirer interview.

Plaintiff’s motion to compel also requests information

regarding the interview of defendant that appeared in the

National Enquirer, which plaintiff alleges is the basis for her

defamation claim against defendant. In that regard, plaintiff

seeks to compel information concerning defendant’s negotiation

with the National Enquirer related to that article, in which

defendant’s counsel Marty Singer, Esquire was involved. There is

no question that Marty Singer has served as one of defendant’s
Federal Rule of Evidence 501 requires the application of 8

state privilege law “in civil actions and proceedings, with

respect to an element of a claim or defense as to which State law

supplies the rule of decision.” Both plaintiff and defendant

rely on Pennsylvania law in support of their arguments as to

whether the attorney client privilege protects the communications

at issue. It is not entirely clear whether the conversations

with Singer and the negotiation of the contract between defendant

and the National Enquirer occurred in Pennsylvania. Since both

parties rely on Pennsylvania law and the Court is unaware that

the law of another jurisdiction would compel a different result,

the Court will apply Pennsylvania law in deciding this issue of

privilege.

11

lawyers for some time and that he acted in that capacity when

negotiating the terms of the interview with the National

Enquirer. The issue is whether the plaintiff can inquire into

defendant’s relationship with Marty Singer in general and

specifically with regards to the National Enquirer article. 

Defendant asserts the attorney client privilege protects this

communication. On the other hand, plaintiff asserts that the 8

information is relevant to her claim of defamation and that the

crime-fraud exception to the privilege may apply if Marty Singer

helped defendant commit the alleged tort of defamation. 

First, plaintiff’s relevancy argument for piercing the

protection of the attorney client privilege must fail. 

“Relevance is not the standard for determining whether or not

evidence should be protected from disclosure as privileged, and

that remains the case even if one might conclude the facts to be

disclosed are vital, highly probative, directly relevant, or even

go to the heart of the issue.” Rhone-Poulenc Rorer, Inc. v. Home
At oral argument on January 9, 2006, plaintiff indicated 9

that the National Enquirer may also be a potential defendant if

discovery reveals they somehow knew of or acquiesced in any

alleged defamatory statements by defendant. Jan. 9, 2006 Tr. at

84. The line of questioning involved in this motion to compel,

however, relates specifically to Marty Singer.

12

Indemnity Co., 32 F.3d 851, 864 (3d Cir. 1994). Therefore,

plaintiff’s assertion that the information relates to her

defamation claim is not enough to overcome the attorney client

privilege.

Second, plaintiff’s allegation that Marty Singer may

have participated in or helped the defendant to commit the tort

of defamation does not obviate the privilege on the current

record. In order to invoke the crime-fraud exception, the

plaintiff must “make out a prima facie case that the attorney was

used in order to promote an intended, continuing criminal or

fraudulent activity.” In re Westinghouse, 76 F.R.D. 47, 57 (W.D.

Pa. 1977). The plaintiff has not made such a showing. She

alleges that the information may lead to another defendant

(presumably Singer ) in the defamation action, but that is not 9

enough to breach the attorney client privilege. 

Although defendant’s conversations with Marty Singer

regarding the negotiation with the National Enquirer may be

privileged, the facts surrounding that negotiation are not so

protected. It is well-settled that: 

The protection of the privilege extends only

to communications and not to facts. A fact is
This is consistent with the Court’s ruling from the bench 10

at the September 26, 2005 hearing. There, the Court directed the

defendant to “provide information concerning when, where and to

whom, as far as communications between himself and the Enquirer”

in response to plaintiff’s interrogatory. See Sept. 26, 2005 Tr.

at 10. Further the Court determined that “any agreement between

the defendant and the National Enquirer concerning the terms of

the interview will be required, at least by way of interrogatory

and at this stage of the proceedings, the rest of the objection

will be sustained.” Id.

Whether defendant’s testimony should be cloaked with 11

confidentiality pursuant to a private agreement with the National

Enquirer is not a question addressed by the Court today. Whether

13

one thing and a communication concerning that

fact is an entirely different thing. The

client cannot be compelled to anser the

question, ‘What did you say or write to the

attorney?’ but may not refuse to disclose any

relevant fact merely because he incorporated a

statement of such fact into his communication

to his attorney.

Rhone-Poulenc, 32 F.3d at 862 (quoting City of Phila. v.

Westinghouse Elec. Corp, 205 F. Supp. 830, 831 (E.D. Pa. 1962));

see also Upjohn Co. v United States, 449 U.S. 383, 395-96 (1981). 

Therefore, certain issues regarding the existence of a contract

with the National Enquirer, whether the defendant was paid, and

if so, how much, and whether he agreed that the story as written

was accurate are facts that are not privileged merely because

defendant spoke with a lawyer concerning those facts.10

Moreover, the negotiation itself, though subject to a

confidentiality agreement between defendant and the Enquirer, is

not protected by the privilege because it was not a “confidential

communication between lawyer and client.” United States v. 11
deposition testimony which would disclose the terms of the

agreement with a third party, i.e. the National Enquirer, should

not be disclosed is a question reserved until completion of the

parties’ depositions, upon notice to the National Enquirer. 

14

Betinsky, No. 88-198, 1998 U.S. Dist. LEXIS 10520, at *7 (E.D.

Pa. 1988) (finding that counsel’s negotiations with bank on

behalf of client were not protected by the attorney client

privilege). Plaintiff is allowed to question defendant about the

facts of his negotiation with the National Enquirer, including

any information revealed to him by Marty Singer that was obtained

from third parties, and also including the terms of the agreement

with the National Enquirer. However, plaintiff may not inquire

as to any advice Marty Singer may have given defendant which goes

beyond that information that was obtained from third parties. 

Defendant, therefore, is required to answer the following

questions pursuant to plaintiff’s motion to compel: 19, 20, 21,

22, 23, 24, 25 and 26. 

3. Reading prior statements in response to a 

question.

Finally, plaintiff challenges defendant’s assertion

that a deponent may be allowed to answer a question by reading

from a document which contains his previous response to a similar

question. Defendant attempted to read the statement he gave to

the police regarding the alleged assault of plaintiff when asked

to recount the events in his own words. A deponent may not read
The only question not addressed above is question 16 in 12

plaintiff’s motion to compel. The question as to whether

defendant lied about the names of guests at a dinner party is, at

best, impeachment material. The issue appears exhausted on this

record and defendant is not required to answer further question

16.

15

from a document when he is asked to recite his recollection of an

event. Rather, the deponent is required to testify in his own

words. Of course, if a deponent’s recollection is exhausted, he

may use the document to refresh his recollection and continue the

deposition testimony in his own words based on that refreshed

recollection, if any. See Fed. R. Evid. 612. Therefore,

defendant is required to testify at deposition in response to

question 34 of plaintiff’s motion to compel from his recollection

of the events in his own words and may not read from a previous

statement in response to a question posed. 

12

B. Defendant’s Motion to Compel.

1. Plaintiff’s contact with the Philadelphia lawyers.

Defendant has moved to compel further deposition

testimony from plaintiff concerning her interactions with counsel

before contacting the police to report the incident at issue. 

The scope of the attorney client privilege, therefore, is at the

center of defendant’s motion to compel. 

Federal Rule of Evidence 501 instructs the Court, “in

civil actions and proceedings, with respect to an element of a

claim or defense as to which State law supplies the rule of
Both parties relied on Pennsylvania law, therefore the 13

Court will construe the privilege accordingly. Aside from

Pennsylvania law, Canadian privilege law could apply to

plaintiff’s assertion of the attorney client privilege as that is

the origin of her contact with the lawyers at issue in

defendant’s motion to compel. Defendant addressed this potential

conflict of law issue in his motion to compel, remarking that

Canadian privilege law does not differ from that of Pennsylvania. 

Plaintiff applied Pennsylvania privilege law in her response to

defendant’s motion to compel and did not raise the issue of

Canadian privilege law. 

16

decision, the privilege . . . shall be determined in accordance

with State law.” Here, both parties argue in their motions that

Pennsylvania law applies to the plaintiff’s assertion of

privilege. 

13

The Pennsylvania attorney client privilege is codified

at 42 Pa. Cons. Stat. Ann. § 5928, which states: “In a civil

matter counsel shall not be competent or permitted to testify to

confidential communications made to him by his client, nor shall

the client be compelled to disclose the same, unless in either

case this privilege is waived upon trial by the client.” The

traditional elements of the attorney client privilege protect

information from discovery if the following factors are met:

(1) the asserted holder of the privilege is or

sought to become a client; 

(2) the person to whom the communication was

made (a) is a member of the bar of a court, or

his or her subordinate, and (b) in connection

with this communication is acting as a lawyer;

(3) the communication relates to a fact of

which the attorney was informed (a) by his

client (b) without the presence of strangers

(c) for the purpose of securing primarily
17

either (I) an opinion of law or (ii) legal

services or (iii) assistance in some legal

proceeding, and (d) not for the purpose of

committing a crime or tort; and 

(4) the privilege has been (a) claimed and (b)

not waived by the client. 

Rhone-Poulenc, 32 F.3d at 862 (citing In re Grand Jury

Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979) (citing United

States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59

(D. Mass. 1950))) (applying Pennsylvania law and finding there

were no characteristics that differed from these elements).

The first and second elements that need to be satisfied

in order to apply the privilege are that “the asserted holder of

the privilege is or sought to become a client” and the

communication was made to a member of the bar. There is no

dispute that plaintiff was not and is not a client of either

Joseph Cincotta or Richard Myers, the Philadelphia attorneys to

whom she placed the telephone call at issue, nor is there a

dispute that both Cincotta and Meyers are members of the bar. 

Rather, the issue is whether “communications [made] prior to the

establishment of a formal attorney-client relationship” are

protected by the attorney client privilege. Commonwealth of

Penn. v. Mrozek, 657 A.2d 997, 999 (Pa. Super. Ct. 1995). 

Defendant’s main argument in support of his motion to

compel is that plaintiff did not speak with the lawyers for the

purpose of securing legal advice, therefore she was not “seeking

to become a client” within the meaning of the privilege. That
18

argument is based on certain statements made by plaintiff during

her deposition that she did not call the lawyers to hire them and

she did not discuss the facts of the case with them. On the

other hand, plaintiff researched the telephone numbers of the

lawyers on the Internet, identified Messrs. Cincotta and Meyers

as lawyers who could provide her with guidance and called the

lawyers’ office for advice on how to proceed with her complaint

against defendant.

In Pennsylvania, a lawyer need not actually have been

hired for the privilege to apply. See Mrozek, 657 A.2d at 999;

see also Irvin v. Mason, 50 Pa. D. & C.4th 129 (C.P. Allegheny

County 2002). “The privilege requires the existence of a

relationship in which an attorney is acting in his professional

capacity as a lawyer; the key is whether there has been a

professional consultation with an attorney, who acts or advises

as such.” Okum v. Penn. Unemployment Compensation Bd. of Review,

465 A.2d 1324, 1325 (Pa. Commw. 1983) (citing Alexander v. Queen,

97 A. 1063 (Pa. 1916) and Fogg’s Estate, 94 A. 453 (1915)). As a

leading commentator has put it: “It is not necessary that an

attorney-client relation have actually existed. One who consults

a lawyer with a view to obtaining professional legal services

from him or her is regarded as a client for purposes of the

privilege.” 8 Charles A. Wright & Arthur R. Miller, Federal

Practice & Procedure § 2017, at 258-60 (2d ed. 1994). 
19

In Mrozek, the defendant contacted a lawyer with whom

he had a previous professional relationship in another matter. 

The fact of the previous relationship was not determinative, as

the court noted: “not even considering the fact that appellant

already had a pre-existing attorney client relationship with

Davis, the fact that appellant called to seek legal assistance

would satisfy the first requirement.” Mrozek, 657 A.2d at 999. 

The lawyer’s secretary said he was unavailable to take

defendant’s call. After repeating his request and again being

denied an opportunity to speak with the lawyer, defendant told

his secretary: “Honey, I don’t think you understand. I’ve just

committed a homicide. I need to speak with Sam.” Id. at 998. 

At trial, the statement was admitted over defendant’s motion to

suppress and defendant was convicted of murder. The Superior

Court vacated his conviction and remanded the case, finding that

defendant’s statement to the secretary was protected by the

attorney client privilege “despite [the] lack of a formal

attorney-client relationship.” Id. at 999. 

Similarly, here it appears that plaintiff’s telephone

call to the Philadelphia lawyers sought guidance concerning the

legal implications of her alleged encounter with defendant. That

a formal attorney client relationship had not been established or

that plaintiff did not intend to hire the lawyers at the time of

the phone call at issue is not dispositive. Rather, since
20

plaintiff was consulting counsel and discussing a problem, issue

or event that has legal implications, for the purpose of

obtaining guidance, even before counsel is retained, she

satisfies the requirement that the consultation be for the

purpose of “becoming a client.” See id.

The third element of the privilege at issue requires

that plaintiff have been seeking legal advice from the lawyers

during the communication. Defendant argues that plaintiff, by

her own admission, was not seeking legal advice during the

communication with the lawyers. Precisely what constitutes legal

advice depends upon the circumstances at issue. In In re Ford

Motor Company, 110 F.3d 954, 965 (3d Cir. 1997), the issue before

the court was “whether the communications memorialized by the

minutes [of a meeting of Ford executives] were made for the

purpose of obtaining legal advice.” The court examined the

circumstances of the meeting and concluded that the meeting was

for the purpose of obtaining legal advice with respect to the

Ford Bronco II. Id. at 966. The factors that led to that

conclusion were the company’s concerns about the product, that a

particular course of action was proposed with respect to those

concerns and that the meeting was called to discuss the proposal.

Id. at 966. 

Here, by analogy, plaintiff was concerned about how to

proceed against defendant, she had not determined a particular
21

course of action and she admittedly was seeking “guidance” from

the attorneys. Those factors point to the conclusion that

plaintiff called the attorneys for the purpose of securing legal

advice within the bounds of the attorney client privilege. 

Plaintiff cannot be compelled to answer “What did you talk about

[with your lawyers]?” See Rhone-Poulenc, 32 F.3d at 862 (“The

client cannot be compelled to answer the question ‘What did you

say or write to the attorney?’” (quoting Upjohn Co. v. United

States, 449 U.S. 383, 395-96 (1981))). Therefore, plaintiff is

not compelled to answer questions 1 and 2 of defendant’s motion

to compel because the attorney client privilege prevents

disclosure. 

However, the fact of whether the lawyers’ gave

plaintiff legal advice is not protected by the attorney client

privilege and must be disclosed. Rhone-Poulenc, 32 F.3d at 862. 

“Did any of these lawyers whom you talked to give you any

advice?” merely requests a fact and would not reveal any client

confidences in violation of the privilege. Therefore, plaintiff

is required to answer question 3 of defendant’s motion to compel

because the fact of advice is discoverable. In the event

plaintiff was provided advice by the lawyers, the substance of

that communication is protected by the attorney client privilege. 

Rhone-Poulenc, 32 F.3d at 862 (listing elements of privilege). 

However, even if the answer is no, i.e. that plaintiff was not
22

provided legal advice, under these circumstances, what the

lawyers told the plaintiff would still be protected by the

attorney client privilege. See Coregis Ins. Co. v. Kaffrisen,

186 F. Supp. 2d 567 (E.D. Pa. 2002). The circumstances here are

such that a single telephone call serves as the only source of

information from plaintiff to the lawyers. There can be no other

conclusion than that the lawyers’ communications to the client,

even if not in the form of legal advice, would necessarily be

based on and would reveal what plaintiff told the lawyers in that

one telephone call. Therefore, although plaintiff is required to

disclose the fact of whether advice was given, she is not

required to disclose what the lawyers told her whether she

answers the question in the affirmative or the negative. 

The final element of the attorney client privilege

requires that it not have been waived. Defendant argues that

plaintiff waived the privilege through discussions with a third

party. “[I]t is well-settled that when a client voluntarily

discloses privileged communications to a third party, the

privilege is waived.” Westinghouse Elec. Corp. v. Republic of

the Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991) (citing

United States v. Rockwell Int’l, 897 F.2d 1255, 1265 (3d Cir.

1990)). It is unclear whether plaintiff revealed any privileged

communications to her friend during the conversation at issue. 

Plaintiff should answer the question as to what she told her
23

friend. If privileged information was not revealed, the

privilege remains protected. If privileged information was

revealed, the privilege was waived. In any event, the answer as

to what plaintiff revealed to her friend cannot be withheld on

the basis of attorney client privilege. Therefore, plaintiff is

required to answer question 4 of defendant’s motion to compel.

2. Request to serve additional interrogatories upon 

plaintiff.

In his motion to compel, defendant requests leave to

serve additional interrogatories on plaintiff following

information revealed during plaintiff’s deposition. Pursuant to

Federal Rule of Civil Procedure 33, the Court will grant

defendant leave to serve additional interrogatories on plaintiff. 

Defendant will be allowed to serve additional interrogatories to

inquire as to persons who may have discoverable information who

were not disclosed by plaintiff in her Rule 26 disclosures. 

3. Request for equal time at deposition.

Finally, defendant requests additional time to depose

plaintiff that is commensurate with any additional deposition

testimony to which defendant will be subject. There is no

absolute rule that requires symmetry of the length of deposition

testimony of the parties. Cf. Fed. R. Civ. Pro. 30(d)(2) (limits

deposition testimony to one seven-hour day, but the parties may

stipulate to other arrangements). Rather, plaintiff and
24

defendant shall proceed as to those matters covered by the

motions to compel and within the scope of this order. 

II. MOTION FOR SANCTIONS

Plaintiff’s motion to sanction defense counsel for his

conduct at defendant’s deposition concerns two overarching

issues: (1) the scope of the attorney client privilege as invoked

by defendant’s lawyer, and (2) the acceptability in this circuit

of the deposition guidelines set forth in Hall v. Clifton

Precision, 150 F.R.D. 525 (E.D. Pa. 1993).

Plaintiff’s motion for sanctions is taken under

advisement until the completion of the parties’ depositions. Any

further deposition testimony should be taken in accordance with

the Court’s instruction at the January 9, 2006 hearing. See Jan.

9, 2006 Tr. at 87-89.

III. CONCLUSION 

Plaintiff’s motion to compel will be granted in part

and denied in part. Defendant is required to answer questions 1-

15 and 17-47 of plaintiff’s motion to compel. Defendant is not

required to answer question 16 of plaintiff’s motion to compel.

Defendant’s motion to compel will be granted in part

and denied in part. Plaintiff is required to answer questions 3

and 4 of defendant’s motion to compel. Plaintiff is not required
25

to answer questions 1 and 2 of defendant’s motion to compel. 

Defendant’s request for leave to serve additional interrogatories

(issue number 5 in defendant’s motion to compel) will be granted. 

Defendant is not permitted to conduct further deposition

testimony of plaintiff outside of the subjects listed in his

motion to compel (issue number 6 in defendant’s motion to

compel). 

Plaintiff’s motion for sanctions is taken under

advisement until the completion of the parties’ depositions. 

An appropriate order follows.
26

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREA CONSTAND : CIVIL ACTION

 : 05-1099

Plaintiff, :

:

v. :

:

WILLIAM H. COSBY, JR. :

:

Defendant. :

ORDER

AND NOW, this 31st day of January 2006, it is hereby

ORDERED that:

1. Plaintiff’s Motion to Compel is GRANTED IN PART and

DENIED IN PART in accordance with the Court’s January 31, 2006

Memorandum;

2. Defendant’s Motion to Compel is GRANTED IN PART and

DENIED IN PART in accordance with the Court’s January 31, 2006

Memorandum; and

3. Plaintiff’s Motion for Sanctions is taken under

advisement until the completion of the parties’ depositions. Any

further deposition testimony shall be taken in accordance with

the Court’s instruction at the January 9, 2006 hearing. See Jan.

9, 2006 Tr. at 87-89.

IT IS FURTHER ORDERED that the deposition questioning

shall be limited to the questions listed in the parties’ motions

to compel and those questions that reasonably arise from the
27

answers. 

IT IS FURTHER ORDERED that the parties shall agree as

to the date, time and place of the depositions and shall report

to the Court by letter concerning their agreement within thirty

(30) days from the date of this order.

AND IT IS SO ORDERED.

s/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.