·~ 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff, 

No. 05-cv-1099 

v. 

WILLIAM H. COSBY, JR., FILED UNDER SEAL 

Defendant. 

DEFENDANT'S RESPONSES TO PLAINTIFF'S MOTION TO COMPEL 

AND MEMORANDUM CONCERNING OVERARCHING ISSUES 

Pursuant to the Court's November 4, 2005 Order, Defendant submits these separately 

numbered responses to Plaintiffs motion to compel. Defendant also submits this memorandum 

concerning the overarching issue presented by Plaintiffs motion: Plaintiffs desire to conduct a 

broad-based fishing expedition into the most private areas of Defendant's life. 

As in any case, the scope of discovery in this case is framed by the Complaint and the 

Answer. This case concerns whether or not Defendant tricked Plaintiff into ingesting a drug, 

which made her semi-conscious and unable to move her body or speak, and then sexually 

assaulted her. The case also concerns whether Defendant defamed Plaintiff after Plaintiff filed 

criminal charges against Defendant. Plaintiff has identified several women who may seek to 

testify about sexual encounters with Defendant (the "Rule 415 witnesses"). Thus, to an uncertain 

extent, the case also may concern the truth or falsity of the Rule 415 witnesses' proposed 

testimony. 

Plaintiff is not satisfied to limit discovery to these issues. Rather, Plaintiff has embarked 

on, and now asks to continue, a limitless, speculative inquiry into Defendant's personal life, 

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including his consensual sex life, his personal financial affairs, and his medical history. For 

example, unsatisfied with asking Defendant whether he offered money to Plaintiff or any of the 

Rule 415 witnesses, Plaintiff seeks to ask, "Had you ever sent money to any other female who 

you believe you had a consenting relationship with?" and "[H]ave you ever offered an 

educational trust to any woman with whom you've had a consensual sexual relationship with?" 

(Pl. 's Mot. at Question 6, 31.) Not content to ask Defendant about his relationships with Plaintiff 

and any of the Rule 415 witnesses, Plaintiff wants to know, generally, "were you also having 

relationships with other women?" (Id. at Question 17.) Even though Defendant testified at 

length about the drugs to which he had access at the time of Plaintiffs alleged assault, Plaintiff 

also seeks to conduct a broad examination of Defendant's medical history and physical 

condition. (Id. at Question 39, 40.) Defendant explained whether he gave drugs or alcohol to 

Plaintiff or the Rule 415 witnesses, but Plaintiff also wants to know whether he gave drugs to 

anyone else. (Id. at Question 2-4, 8.) Plaintiff openly admits that she asks these questions in the 

vague hope of finding "additional Rule 415 witnesses" and "other defendants." 

The Federal Rules of Civil Procedure do not permit such an abuse of discovery. Rule 

26(b )(1) was amended in 2000 and now provides in pertinent part: 

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 discovery appears reasonably 

calculated to lead to the discovery of admissible evidence. 

Fed. R. Civ. P. 26(b)(l). The 2000 Amendments, while not intended to alter dramatically the 

scope of discovery, were intended to make it "narrower than it was, in some meaningful way." 

Surles v. Air France, No. 00 Civ. 5004, 2001WL1142231, at *1 n.3 (S.D.N.Y. Sept. 27, 2001) 

(internal quotations omitted). The Advisory Committee explained that the amendments were 

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designed to "focus [discovery] on the actual claims and defenses involved in the action," and 

"[ w ]hen judicial intervention is invoked, the actual scope of discovery should be determined 

according to the reasonable needs of the action." Fed. R. Civ. P. 26(b)(l) Advisory Committee 

Notes to 2000 Amendments. "The rule change signals to the court that it has the authority to 

confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties 

that they have no entitlement to discovery to develop new claims or defenses that are not already 

identified in the pleadings." Id. 

Even before the 2000 Amendments, courts did not allow discovery "based on pure 

speculation that amount[s] to nothing more than a "fishing expedition" into actions or past 

wrongdoing not related to the alleged claims or defenses. See Tottenham v. Trans World 

Gaming Corp., No. 00 Civ. 7697, 2002 WL 1967023, at *2 (S.D.N.Y. June 21, 2002); Surles, 

2001 WL 815522, at *4 (stating that, even under unamended version of Rule 26(b)(l), courts 

"would routinely decline to authorize fishing expeditions"). Discovery is "not intended to be a 

fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they 

initially have at least a modicum of objective support." Cleveland-Goins v. City of New York, 

No. 99 Civ. 1109, 1999 WL 673343, at* 2 (S.D.N.Y. Aug. 30, 1999); see also Shellenberger v. 

Chubb Life America, Civil Action No. 95-4514, 1996 WL 92092, at *3 (E.D. Pa. Feb. 29, 1996) 

(disallowing discovery "based on pure speculation" and noting that "discovery is not a fishing 

expedition"). 

Speculative, baseless discovery is all the more improper where "the requested discovery 

is of a highly personal nature." Fitzpatrick v. QVC, Inc., Civil Action No. 98-3815, 1999 WL 

1215577, at *3 (E.D. Pa. Dec. 7, 1999). Sexual conduct is "the most private of human conduct." 

Lawrence v. Texas, 539 U.S. 558, 567 (2003). Individuals have a constitutional right of privacy 

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in their medical records. Whalen v. Roe, 429 U.S. 589, 602 (1977). Financial information is 

also particularly private. Fraternal Order of Police, Lodge No. 5. v. City of Philadelphia, 812 

F.2d 105, 115 (3d Cir. 1987). Indeed, the rules do not permit depositions that unreasonably 

"annoy, embarrass, or oppress" the deponent. Fed. R. Civ. P. 30(d)(4). 

Plaintiff wants to embark on just such a speculative "fishing expedition" into the 

protected areas of Defendant's private life (and, necessarily, the protected areas of other person's 

lives). She makes no secret that she seeks not only evidence about the Rule 415 witnesses who 

have come forward, but she also seeks to "fish" for any other potential Rule 415 witnesses, as to 

whom there is no reason to think they even exist. For this reason, Plaintiff admits that she seeks 

to take broad discovery of "Defendant's conduct with other women, with whom he had/has a 

relationship of a sexual nature" and of "his conduct with other individuals, with whom he has 

had a business relationship." Plaintiff offers nothing more than speculation, however, that such 

discovery will lead to relevant evidence. 

Apparently, Plaintiff believes that, because Rule 415 provides for the admission of"prior 

bad act" evidence, it changes the rules of discovery and allows her to learn everything about 

Defendant's prior actions and relationships. If so, Plaintiff is mistaken. Rule 415 did not change 

the scope of discovery. "Prior bad acts" are admissible in all cases, under Rule 404. Thus, even 

in non-sexual assault cases, parties may take discovery concerning "prior bad acts." Such 

discovery, however, like all discovery, must stem from a good faith, concrete basis, and not a 

speculative hope. See Tottenham v. Trans World Gaming Corp., No. 00 Civ. 7697, 2002 WL 

1967023, at *2 (S.D.N.Y. June 21, 2002) (holding that discovery may not be used as a "fishing 

expedition to discover additional instances of wrongdoing beyond those already alleged"); see 

also PMC, Inc. v. Ferro Corp., 131F.R.D.184, 185 n.1 (C.D. Cal. 1990) ("The Court is not 

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persuaded that the mere existence of Rule 404(b) warrants a fishing expedition for uncharged 

fraud."). Thus, Plaintiff may not use Defendant's deposition as a "treasure hunt" for "prior bad 

acts," sexual or otherwise. 

In any case, parties are entitled to shield their personal lives from unnecessary 

examination. The invasion threatened by Plaintiffs proposed discovery, however, is even 

greater in this case. Media attention to this case is acute. Moreover, Plaintiff openly has 

admitted her desire to use discovery to "clear her name" in the court of public opinion, prior to 

trial. Plaintiff has steadfastly refused to enter into any form of confidentiality agreement with 

Defendant. Indeed, since Plaintiff took Defendant's deposition, she has strained to put the 

transcript in the public record. Ms. Troiani even threatened Defendant with publicity at his 

deposition. (See Def.'s Dep., 9/28/05, at 102 ("What's going to happen is we're going to file a 

motion with the court and attach this deposition.").) Plaintiff then filed a 62-page memorandum 

in support of a motion for sanctions, quoting verbatim over 50 pages of the transcript. Thus, 

whatever questions Defendant were to answer at his deposition, no matter how irrelevant or 

prejudicial, he can be certain that Plaintiff would do everything in her power to reveal that 

testimony to the public. While any litigant should be protected from unnecessary examination, 

this particular case presents little margin for error. 

Accordingly, Defendant's deposition should strictly be limited to questions reasonably 

calculated to lead to relevant, admissible evidence. He has testified at length about his 

relationship with Plaintiff. He answered all questions posed about the Rule 415 witnesses. He 

explained his agreement and interview with the National Enquirer. He explained the extent to 

which his agents and affiliates were involved in his interactions with Plaintiff, her mother, and 

any of the Rule 415 witnesses. He identified the drugs that he possessed and had access to 

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during his relationship with Plaintiff. In short, Defendant answered every question reasonably 

related to the claims and defenses framed by the Amended Complaint and Answer. Plaintiff is 

not entitled to more. 

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PLAINTIFF'S QUESTION 1 

Plaintiffs Question 1-"Who are the people that you gave the Quaaludes to?-is a 

perfect example of the open-ended, irrelevant, yet invasive discovery Plaintiff seeks to conduct 

into Defendant's personal life. Indeed, in one, single-spaced page, Plaintiffs only statement 

concerning the relevance of Question One is that testimony "about those with whom [Defendant] 

shares drugs may lead to evidence as to what it was that he gave Plaintiff." Plaintiff does not 

explain further, and for good reason. The only connection between Quaaludes and this case is 

that two of the Rule 415 witnesses, Theresa Serignese and Pat Steuer Leary, allegedly say that 

they knowingly took Quaaludes offered to them by Defendant in the late 1970's. Defendant 

answered every question Ms. Troiani posed about those women. In addition, he explained 

whether he ever gave Plaintiff or any of the Rule 415 witnesses any drug, with or without her 

knowledge. He also testified that he did not have Quaaludes in his possession during the time he 

knew Plaintiff. (See Def.' s Dep., 9129105, at 62.) Going farther would be unnecessary, yet quite 

invasive of both Defendant's and third-parties' privacy. See Shellenberger v. Chubb Life 

America, Civil Action No. 95-4514, 1996 WL 92092, at *3 (E.D. Pa. Feb. 29, 1996) (disallowing 

discovery "based on pure speculation" and noting that "discovery is not a fishing expedition"). 

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PLAINTIFF'S QUESTION 2 

This question mischaracterizes the testimony. Plaintiff leaves out the testimony that 

preceded and followed the passage she quotes, which shows that Defendant misunderstood the 

question and thought Ms. Troiani was asking only about Theresa Serignese. (See Def.'s Dep., 

9129105, at 71-72.) In any event, again, Defendant should not be required to answer speculative 

questions about his and other people's general experiences with Quaaludes. See Shellenberger v. 

Chubb Life America, Civil Action No. 95-4514, 1996 WL 92092, at *3 (E.D. Pa. Feb. 29, 1996) 

(disallowing discovery "based on pure speculation" and noting that "discovery is not a fishing 

expedition"). 

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PLAINTIFF'S QUESTION 3 

Defendant incorporates his response to Question 1. 

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PLAINTIFF'S QUESTION 4 

Defendant incorporates his response to Question 1. Plaintiff argues only that Question 4 

is "aimed at developing evidence," which proves its speculative nature. Plaintiff must offer 

some good faith basis before inquiring into Defendant's social life in the vague hope of finding 

more "prior bad act" evidence under Rule 404(b) and Rule 415. See Shellenberger v. Chubb 

Life America, Civil Action No. 95-4514, 1996 WL 92092, at *3 (E.D. Pa. Feb. 29, 1996) 

(disallowing discovery "based on pure speculation" and noting that "discovery is not a fishing 

expedition"). 

10 

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PLAINTIFF'S QUESTION 5 

Question 5 introduces a second area of Defendant's private life in which Plaintiff seeks to 

"fish"-his relationship with the William Morris talent agency. Defendant testified that an 

employee of the William Morris agency helped him in his interactions with Rule 415 witness 

Theresa Serignese. He also testified that he asked a different employee of the agency to set up a 

meeting with Plaintiff and her mother. Plaintiff, however, wants to know, generally, whether 

Defendant has used the William Morris agency to "send funds" to any other person. Moreover, 

she admits in her motion that the inquiry is purely speculative: "It is believed that this line of 

questioning will leads to relevant information concerning other Jane Does .... " Defendant 

answered every question posed about Plaintiff and the Rule 415 witnesses, including whether he 

offered them money, and whether the William Morris agency was involved. Without more than 

speculation, Plaintiff is not entitled to more, especially about Defendant's personal finances and 

business practices. See Shellenberger v. Chubb Life America, Civil Action No. 95-4514, 1996 

WL 92092, at *3 (E.D. Pa. Feb. 29, 1996) (disallowing discovery "based on pure speculation" 

and noting that "discovery is not a fishing expedition"); Fraternal Order of Police, Lodge No. 5. 

v. City of Philadelphia, 812 F.2d 105, 115 (3d Cir. 1987) (recognizing a privacy interest in 

personal financial information). 

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PLAINTIFF'S QUESTION 6 

Question 6-"Had you ever sent money to any other female who you believe you had a 

consenting relationship with?"-is irrelevant and speculative on its face. Defendant's 

consensual relationships are obviously irrelevant. Plaintiffs only argument is that she "is not 

required to accept defendant's characterization of the relationship as consensual." In other 

words, Plaintiff hopes to learn the names of any woman with whom Defendant may have had a 

consensual sexual relationship with, and then approach these woman to find out for herself 

whether that woman agrees that the relationship was truly consensual. She admits as much: "It 

is submitted that this question is ... directed at the discovery of additional Rule 415 witnesses." 

The inquiry, however, would invade Defendant's privacy and potentially invade the privacy of 

third parties. Without some basis, and without more than the mere hope that additional relevant 

evidence exists, Plaintiff is not entitled to pry into the personal lives of others. Rule 415 does not 

give Plaintiff license to know everything about Defendant and those he knows. See 

Shellenberger v. Chubb Life America, Civil Action No. 95-4514, 1996 WL 92092, at *3 (E.D. 

Pa. Feb. 29, 1996) (disallowing discovery "based on pure speculation" and noting that 

"discovery is not a fishing expedition"); Fitzpatrick v. QVC, Inc., Civil Action No. 98-3815, 

1999 WL 1215577, at *3 (E.D. Pa. Dec. 7, 1999) (holding that speculative discovery is all the 

more improper where "the requested discovery is of a highly personal nature"); Lawrence v. 

Texas, 539 U.S. 558, 567 (2003) (recognizing that sexual conduct is "the most private of human 

conduct"). 

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PLAINTIFF'S QUESTION 7 

Question 7 makes little sense. Defendant was willing to answer questions about the 

persons whom Plaintiff named in her initial disclosures as having relevant information. If 

Plaintiff knows other people who have made allegations that she considers relevant, then further 

questioning would constitute unfair surprise (and a violation of Plaintiffs Rule 26 disclosure 

obligations). 

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PLAINTIFF'S QUESTION 8 

Defendant agrees that the identity of the drug he offered to Plaintiff is relevant. He also 

recognizes that Plaintiff suspects that the drug was not Benadryl®. Accordingly, Defendant 

answered every question posed by Ms. Troiani about all of the prescription, over-the-counter, 

and homeopathic drugs that he had in his possession and had access to around the time of the 

night in question. Whether Defendant has ever obtained any other drugs, at any other time, does 

not tend to prove or disprove that the drug he gave Plaintiff was Benadryl®. Nor is the question 

likely to lead to evidence that would bear on that issue. 

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PLAINTIFF'S QUESTION 9 

Question 9 misstates the testimony. During the first day of Defendant's deposition, he 

testified at length about the doctors he has seen in the last five years and what, if any, drugs and 

supplements he has received from them. (See Def.'s Dep., 9/28/05, at 31-46, 75-89.) Indeed, 

Defendant's counsel stated, "You have a right to know what medicines he was obtaining from 

his physicians that may be related to this case during this time frame." (Id. at 39.) On the 

second day, Plaintiff asked Question 9. Defendant's counsel instructed him not to answer, based 

on the lengthy testimony from the previous day. In short, Plaintiff fails to mention that Question 

9 already has been answered. 

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PLAINTIFF'S QUESTION 10 

Question 10 also misstates the deposition transcript. Defendant did not refuse to answer 

Question 10. Rather, after his counsel interjected to seek a clarification of the question, Ms. 

Troiani asked a different question. In any event, Question 10 is irrelevant, because Defendant 

testified that he no longer possessed Quaaludes as of November 2002. (See Def. 's Dep., 9129105, 

at 61-62.) Plaintiff does not argue that the question is relevant to any issue other than the 

identity of the drug Defendant gave her. 

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PLAINTIFF'S QUESTION 11 

Question 11 is irrelevant, especially given the testimony Defendant already has provided. 

Defendant testified that he offered Quaaludes to Theresa Serignese, and that she knowingly took 

them. (See Def.'s Dep., 9/29/05, at 53, 58-59.) He explained where he got the Quaaludes and 

why. (Id. at 63-66.) He testified that he did not give Quaaludes to Plaintiff and that he has not 

possessed Quaaludes since at least the time he met her. (Id. at 61-62; Def.' s Dep., 9/28/05, at 

58-59, 69-70.) Plaintiff does not to need to know more. 

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PLAINTIFF'S QUESTION 12 

Defendant is willing to answer this question, if it is connected to any allegations made by 

Plaintiff or the Rule 415 witnesses. 

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PLAINTIFF'S QUESTION 13 

Defendant incorporates his response to Question 12. 

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PLAINTIFF'S QUESTION 14 

Question 14 omits critical context which demonstrates that an answer is unnecessary and 

impossible. Defendant testified that he does not remember Rebecca Cooper Neal and does not 

remember the incident that she apparently described to the police, or any similar incident. (See 

Def.'s Dep., 9129105, at 101-108.) He testified that he knows of no reason why Ms. Neal would 

fabricate such a story. (Id. at 108.) Plaintiff does not need an answer to Question 14, and 

Defendant cannot provide one. 

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PLAINTIFF'S QUESTION 15 

Defendant already answered Question 15. (See Def.'s Dep., 9129105, at 113.) 

21 

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PLAINTIFF'S QUESTION 16 

Defendant's counsel did not instruct him not to answer Question 16. Indeed, Defendant 

answered Question 16. (See Def.' s Dep., 9129105, at 118.) Plaintiff omitted the answer from her 

quotation of the deposition. 

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PLAINTIFF'S QUESTION 17 

Question 17 epitomizes Plaintiffs "fishing expedition." She seeks to know, generally, 

whether Defendant had any "relationships with other women." The only argument she offers in 

support of the question is that "[ t ]his question is aimed at discovery of other Rule 415 

witnesses." In other words, the question is an exercise in speculation. The existence of Rule 415 

does not provide Plaintiff with license to explore all of Defendant's relationships. See 

Shellenberger v. Chubb Life America, Civil Action No. 95-4514, 1996 WL 92092, at *3 (E.D. 

Pa. Feb. 29, 1996) (disallowing discovery "based on pure speculation" and noting that 

"discovery is not a fishing expedition"); Fitzpatrick v. QVC, Inc., Civil Action No. 98-3815, 

1999 WL 1215577, at *3 (E.D. Pa. Dec. 7, 1999) (holding that speculative discovery is all the 

more improper where "the requested discovery is of a highly personal nature"); Lawrence v. 

Texas, 539 U.S. 558, 567 (2003) (recognizing that sexual conduct is "the most private of human 

conduct"). 

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PLAINTIFF'S QUESTION 18 

Again, Plaintiff misstates the record and omits that Defendant already answered Question 

18. (See Def.'s Dep., 9129105, at 128-29.) That was the basis of his counsel's objection when 

Ms. Troiani asked him the same question, as reflected on the pages cited by Plaintiff. (See id. at 

144-46.) Nevertheless, as Plaintiff concedes, Defendant answered the question again. (See id. 

at 146.) Plaintiffs argument that she should be able to ask the question a third time, without any 

objections from counsel, is meritless. 

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PLAINTIFF'S QUESTION 19 

Question 19 concerns a conversation between Defendant and one of his attorneys, for the 

purpose of securing legal advice. Even accepting Plaintiffs unexplained assumption that 

Pennsylvania's attorney-client privilege law would apply to a conversation between Defendant 

and his California attorney, Plaintiffs view of the law is wrong. 

It should be noted that the law makes no distinction between 

communications made by a client and those made by an attorney, 

provided the communications are for the purpose of securing legal 

advice .... In other words, the entire discussion between a client 

and an attorney undertaken to secure legal advice is privileged, no 

matter whether the client or the attorney is speaking. 

In re Ford Motor Co., 110 F.3d 954, 965 n.9 (3d Cir. 1997) (applying 42 Pa. Cons. Stat.§ 5928) 

(Becker, C.J.). Defendant cannot be compelled to state what his attorney said to him in a 

conversation conducted for the purpose of providing legal advice to Defendant. 

Moreover, Plaintiff does not explain the relevance of Question 19. Defendant testified 

about how he learned about Ms. Ferrier's first statement to the press, how he reacted to it, and its 

connection to his National Enquirer interview. There is no need to delve into the exact 

conversations Defendant had with his lawyers in reaction to Ms. Ferrier's first statement to the 

press. 

25 

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PLAINTIFF'S QUESTION 20 

Defendant is willing to explain the general parameters of Mr. Singer's representation of 

Defendant around the time of his National Enquirer interview. 

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PLAINTIFF'S QUESTION 21 

Defendant no longer objects to Question 21 on the grounds of attorney-client privilege. 

The question, however, is moot. Defendant went on to testify about the reasons for his National 

Enquirer interview and the agreement with the National Enquirer that governed the interview. 

(See Def.'s Dep., 9129105, at 161-64.) Plaintiff does not need to know every detail between 

Defendant's learning of Ms. Ferrier's first statement to the press and his agreement and interview 

with the National Enquirer. Moreover, because Defendant worked closely with his attorneys 

during that interval, most of those details are privileged. 

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PLAINTIFF'S QUESTION 22 

Defendant no longer objects to Question 22 on the grounds of attorney-client privilege. 

The question, however, is moot. Defendant went on to testify about the reasons for his National 

Enquirer interview and the agreement with the National Enquirer that governed the interview. 

(See Def.'s Dep., 9129105, at 161-64.) Thus, Defendant explained the connection between Ms. 

Ferrier's first statement to the press and his National Enquirer interview. 

28 

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PLAINTIFF'S QUESTION 23 

Defendant no longer objects to Question 23 on the grounds of attorney-client privilege. 

The question, however, is moot. Defendant went on to testify about the reasons for his National 

Enquirer interview and the agreement with the National Enquirer that governed the interview. 

(See Def.'s Dep., 9129105, at 161-64.) Plaintiff does not need to know whether somebody other 

than Defendant negotiated the agreement. 

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PLAINTIFF'S QUESTION 24 

Question 24 is moot. Plaintiff already knows that there was a written contract between 

Defendant and the National Enquirer. 

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PLAINTIFF'S QUESTION 25 

Question 25 makes no sense. As Plaintiff concedes, Defendant already answered the 

question. There were no interruptions from counsel. (See Def.'s Dep., 9129105, at 161-63.) 

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PLAINTIFF'S QUESTION 26 

Question 26 blatantly misstates Defendant's testimony. Defendant did not, as Plaintiff 

contends, admit that "he prevented the [Ferrier] article being [sic] published because he believed 

it bolstered Plaintiffs allegations against him." Defendant testified that he did not want Ms. 

Ferrier's interview to be published because it would embarrass his family and because certain 

parts of it are false. (See Def.'s Dep. 9129105, at 161-64.) Ms. Troiani then asked him, "And 

you knew that ifBeth Ferrier's story was printed, that would add credence to not only Andrea's 

story but also to Tamara Green's story?" (Id. at 221.) Defendant answered, "You can't put 

words in my mouth," and, "The Answer is no." (Id.) Nor did he even approach testifying that he 

and his counsel decided to respond to Ms. Ferrier's first statement to the press by "defam[ing] 

Plaintiff in order to discredit her." Defendant never mentioned Plaintiff in his interview with the 

National Enquirer, and, as the article reflects, he refused to answer questions about Plaintiffs 

motives. Plaintiff cannot make her case by misrepresenting the record. 

In any event, Defendant is willing to answer whether, to his knowledge, Ms. Ferrier's 

first statement to the press differed from the statement that was published by the Philadelphia 

Daily News. 

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PLAINTIFF'S QUESTION 27 

Plaintiffs incomplete quotation hides that Defendant answered Question 27, after his 

counsel objected to the form of the question. (See Def.' s Dep., 9129/05, at 181-82.) 

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PLAINTIFF'S QUESTION 28 

Again, Plaintiff fails to note that Defendant answered Question 28. (See Def.'s Dep., 

9129105, at 184.) The difficulty was caused by Ms. Troiani's misquotation of the writing about 

which she sought to examine Defendant. Mr. O'Connor's interruptions were necessary to 

correct the record and to help his client, who was unable to read what Ms. Troiani was reading. 

In any event, Defendant has answered Question 28. 

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PLAINTIFF'S QUESTION 29 

Defendant already testified that he offered Plaintiff money for her education because he 

feared that she would use her allegations (and the truth of their consensual relationship) to 

embarrass him. (See Def.'s Dep., 9129105, at 198.) He also accepts that Plaintiff will attempt to 

distort that fact into a suggestion of wrongdoing. Asking whether Defendant made a similar 

offer to anyone else out of fear of embarrassment, however, is an undisguised fishing expedition. 

Defendant testified openly about his interactions with Plaintiff and the Rule 415 witnesses. 

Without some basis from Plaintiff, no more is required. See Shellenberger v. Chubb Life 

America, Civil Action No. 95-4514, 1996 WL 92092, at *3 (E.D. Pa. Feb. 29, 1996) (disallowing 

discovery "based on pure speculation" and noting that "discovery is not a fishing expedition") ; 

Fitzpatrick v. QVC, Inc., Civil Action No. 98-3815, 1999 WL 1215577, at *3 (E.D. Pa. Dec. 7, 

1999) (holding that speculative discovery is all the more improper where "the requested 

discovery is of a highly personal nature"). Plaintiffs argument that she is entitled generally to 

examine Defendant's character, simply because Defendant may introduce evidence of good 

character, is meritless. 

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PLAINTIFF'S QUESTION 30 

Question 30 introduces yet another, highly sensitive subject into which Plaintiff seeks to 

delve, wholesale, simply because it tangentially relates to her case: Defendant's "educational 

trusts." Defendant is a wealthy and generous person. He and his wife have established 

educational trusts and otherwise funded education for a variety of people, for a variety of 

reasons. The identities of the recipients and the reasons for the trusts are highly personal both to 

the Cos bys and the recipients. Simply because Defendant offered Plaintiff an "educational 

trust," however, she now hopes to learn everything about them. 

Question 30, for instance, is overbroad and highly invasive. Defendant did answer the 

question, "Have you ever offered any educational trust to any woman who has made a claim of 

inappropriate sexual contact with you?" Asking whether he has done so with respect to 

consensual sexual relationships, however, goes beyond what is relevant. Plaintiff apparently 

hopes to hopes to learn the names of any such person, and then approach the person to find out 

for herself whether that person agrees that the relationship was truly consensual. The inquiry, 

however, would invade Defendant's privacy and potentially invade the privacy of third parties. 

Without some basis, and without more than the mere hope that additional relevant evidence 

exists, Plaintiff is not entitled to pry into the personal lives of others. See Shellenberger v. 

Chubb Life America, Civil Action No. 95-4514, 1996 WL 92092, at *3 (E.D. Pa. Feb. 29, 1996) 

(disallowing discovery "based on pure speculation" and noting that "discovery is not a fishing 

expedition"); Fitzpatrick v. QVC, Inc., Civil Action No. 98-3815, 1999 WL 1215577, at *3 (E.D. 

Pa. Dec. 7, 1999) (holding that speculative discovery is all the more improper where "the 

requested discovery is of a highly personal nature"); Lawrence v. Texas, 539 U.S. 558, 567 

(2003) (recognizing that sexual conduct is "the most private of human conduct"). 

36 

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PLAINTIFF'S QUESTION 31 

Defendant incorporates his response to Question 30. 

37 

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PLAINTIFF'S QUESTION 32 

Defendant incorporates his response to Question 30. Plaintiff is not entitled to learn, 

generally, about this highly personal area of Defendant's life. 

38 

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PLAINTIFF'S QUESTION 33 

Defendant incorporates his response to Question 30. Plaintiff is not entitled to learn, 

generally, about this highly personal area of Defendant's life. 

39 

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PLAINTIFF'S QUESTION 34 

Question 34 is not one question at all. Rather it apparently covers 13 pages of the 

deposition transcript, in violation of the Court's November 4, 2005 Order. Plaintiff is correct, 

however, that the deposition terminated because Plaintiffs counsel refused to allow Defendant to 

review his statement to police during the deposition. (See Def.'s Dep., 9129105, at 235-42.) This 

was something Ms. Troiani had permitted up to that point in the deposition. (See, e.g., Def.'s 

Dep., 9/28/05, at 68-69.) In fact, during Plaintiffs deposition, her counsel prompted her to read 

her police statement, during questioning not about that police statement. (See Pl.' s Dep., 9/27, at 

408-09.) A witness has a right to refresh his recollection. Fed. R. Evid. 612. For medical 

reasons, Defendant must do so by having the document read to him. Nevertheless, Ms. Troiani 

objected. The deposition terminated, so that the parties could approach the Court for a resolution 

of their dispute. 

40 

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PLAINTIFF'S QUESTION 35 

Question 35 reveals Plaintiffs improper tactics. She argues that she is entitled to 

examine Defendant about Gladys Rogers, to determine "what if any impeachment may be 

introduced at trial against Ms. Rogers by Defendant if she is called as a witness for Plaintiff." 

Plaintiff also touts her "belie[f] that Ms. Rogers has information" about Defendant's 

"relationships with women with whom he was sexually active." Yet, Plaintiff has not disclosed 

Ms. Rogers as a person likely to have discoverable ieformation. She affirmed the completeness 

of her disclosures during the deposition. (See Def.'s Dep., 9129105, at 10-11.) To Defendant's 

knowledge, there is no connection between Ms. Rogers and this case, whatsoever. Without any 

good faith basis from Plaintiff-or Plaintiffs compliance with the basic requirements of federal 

discovery-" delving" into Ms. Rogers would be a fishing expedition into another of Defendant's 

personal relationships. 

41 

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PLAINTIFF'S QUESTION 36 

Defendant incorporates his response to Question 35. Plaintiff argues only that this 

question is "calculated to lead to evidence which may be put forth by defendant to impeach the 

witness at trial." Even assuming that were correct, it is immaterial. According to her initial 

disclosures and her counsel's representations at the deposition, Plaintiff does not even believe 

that Ms. Rogers is likely to have discoverable information to support Plaintiffs claim. (See 

Def.' s Dep., 9129105, at 10-11.) Thus, there is no need to discover how Ms. Rogers may be 

impeached as a witness. The truth is that Plaintiff wants to "fish" into any sensitive area of 

Defendant's life that she can find. Whether Defendant entered into a confidentiality agreement 

with one of his employees is irrelevant to this case. 

42 

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PLAINTIFF'S QUESTION 37 

Defendant incorporates his response to Questions 6 and 35. 

43 

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PLAINTIFF'S QUESTION 38 

Defendant incorporates his response to Questions 6 and 35. 

44 

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PLAINTIFF'S QUESTION 39 

In support of Question 39, Plaintiff admits that she "seeks to question Defendant about 

his medical history," generally. Accordingly, she apparently hopes to ask Defendant why he has 

seen every doctor he has seen. Such a broad-based inquiry into one of the protected areas of 

Defendant's life, however, is unnecessary. Defendant already testified about the drugs he was 

prescribed and had access to around the time of the night in question. (See Def.'s Dep., 9/28/05, 

at 31-46, 7 5-89.) He already answered Ms. Troiani' s questions about "impotence," "sexual 

dysfunction,'' and "diabetes." (Id.) He already answered Ms. Troiani's questions about the 

interaction ofBenadryl® and high blood pressure. (Id.) Without a good faith basis from 

Plaintiff, a broad inquiry into Defendant's medical history is unjustified. See Whalen v. Roe, 

429 U.S. 589, 602 (1977) (holding that individuals have a constitutional right of privacy in their 

medical records); Shellenberger v. Chubb Life America, Civil Action No. 95-4514, 1996 WL 

92092, at *3 (E.D. Pa. Feb. 29, 1996) (disallowing discovery "based on pure speculation" and 

noting that "discovery is not a fishing expedition"); Fitzpatrick v. QVC, Inc., Civil Action No. 

98-3815, 1999 WL 1215577, at *3 (E.D. Pa. Dec. 7, 1999) (holding that speculative discovery is 

all the more improper where "the requested discovery is of a highly personal nature"). 

45 

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PLAINTIFF'S QUESTION 40 

Defendant incorporates his response to Question 3 9. 

46 

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PLAINTIFF'S QUESTION 41 

Plaintiffs argument in support of Question 41 is appalling. First, as Plaintiff knows, the 

modeling agency is Denver to which she refers is not the William Morris agency (nor did 

Defendant ever use any agency to "supply him with young women"). Second, Plaintiff admits 

that she seeks to learn more about Defendant's relationship with the William Morris agency in 

the vague hope that she will discover "evidence which would result in the amendment of the 

complaint to add other defendants." Plaintiff simply presumes the veracity of several women 

whom she has not met, arguing that "[i]t is inconceivable that the Agency did not know of 

Defendant's longstanding difficulties with women." Plaintiff has no right to use discovery in 

this case to find support for additional claims. Fed. R. Civ. P. 26(b)(l) Advisory Committee 

Notes to 2000 Amendments (noting that parties "have no entitlement to discovery to develop 

new claims or defenses"). Even if such discovery were permissible, it still would not justify a 

broad inquiry into all the personal matters for which Defendant utilizes the William Morris 

agency. 

47 

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PLAINTIFF'S QUESTION 42 

Defendant incorporates his response to Question 41. 

48 

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PLAINTIFF'S QUESTION 43 

Defendant incorporates his response to Question 41. 

49 

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PLAINTIFF'S QUESTION 44 

Plaintiff has no basis to inquire generally whether Defendant ever has arranged for 

women to meet him at his concerts. Rule 415 does not give Plaintiff license to pry into every 

relationship and action of Defendant that has some tangential similarity to Plaintiffs allegations. 

See Shellenberger v. Chubb Life America, Civil Action No. 95-4514, 1996 WL 92092, at *3 

(E.D. Pa. Feb. 29, 1996) (disallowing discovery "based on pure speculation" and noting that 

"discovery is not a fishing expedition"). 

50 

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PLAINTIFF'S QUESTION 45 

Plaintiffs unexplained statement that Question 45-"[H]ave you in the past asked 

unmarried women to come to your house--is somehow "relevant to Defendant's credibility" is 

absurd. Whether or not Defendant has ever invited an unmarried woman to his house has 

nothing to do with his credibility. Moreover, whether Plaintiffbelieved it was out of the 

ordinary to dine at Defendant's house alone at night is entirely relevant to determining the truth 

of her contention that she had no romantic interest in Defendant. Asking Defendant whether he 

has asked any other unmarried women to his house is not analogous and is simply a thinly veiled 

fishing expedition. 

51 

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PLAINTIFF'S QUESTION 46 

Question 46 is irrelevant on its face. Whether any woman has had a relationship with 

Defendant and told someone else about it has no bearing on any issue in this case. Instead, it is 

an example of Plaintiffs treating his deposition as a "treasure hunt." 

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PLAINTIFF'S QUESTION 47 

Defendant incorporates his responses to Questions 1, 2, 4, and 9. 

53 

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CONCLUSION 

For these reasons, Defendant respectfully requests the Court to deny Plaintiffs motion. 

Dated: December 6, 2005 PJ05016 

Patrick J. O'Connor 

George M. Gowen III 

COZEN O'CONNOR 

1900 Market Street 

Philadelphia, PA 19103 

215.665.2000 

Andrew D. Schau 

PATTERSON, BELKNAP, 

WEBB & TYLER LLP 

1133 Avenue of the Americas 

New York, NY 10036-6710 

212.336.2000 

Attorneys for Defendant 

54 

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CERTIFICATE OF S,ERVICE 

I hereby certify that, on the date and in the manner indicated below, I caused a copy of 

the foregoing to be served upon the following counsel for Plaintiff: 

Dated: December 6, 2005 

Via First Class Mail 

Bebe H. Kivitz 

Dolores M. Troiani 

Troiani/Kivitz, L.L.P. 

3 8 North Waterloo Road 

Devon, Pennsylvania 19333 

610.688.8426 (fax) 

PJ05016 

Patrick J. O'Connor 

Case 2:05-cv-01099-ER Document 58 Filed 12/06/05 Page 55 of 55