PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-2797

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ANDREA CONSTAND

v.

WILLIAM H. COSBY, JR.,

Appellant

THE ASSOCIATED PRESS,

Intervenor-Appellee

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Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-05-cv-01099)

District Judge: Honorable Eduardo C. Robreno

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Argued April 13, 2016

Before: AMBRO, SMITH and KRAUSE, Circuit Judges

(Opinion filed: August 15, 2016)
2

George M. Gowen, III, Esquire (Argued)

Cozen O’Connor

1650 Market Street

One Liberty Place, Suite 2800

Philadelphia, PA 19103

Patrick J. O’Connor, Esquire

Cozen O’Connor

200 Four Falls Corporate Center

P.O. Box 800, Suite 400

West Conshohocken, PA 19428

Counsel for Appellant

Gayle C. Sproul, Esquire (Argued)

Elizabeth Seidlin-Bernstein, Esquire

Levine Sullivan Koch & Schulz

1760 Market Street, Suite 1001

Philadelphia, PA 19103

Counsel for Intervenor-Appellee

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OPINION OF THE COURT

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AMBRO, Circuit Judge

William H. Cosby, Jr., appeals the District Court’s 

order unsealing certain documents that reveal damaging 

admissions he made in a 2005 deposition regarding his sexual 

behavior. There was no stay of that order, and the contents of 
3

the documents received immediate and wide publicity. While 

the parties dispute whether the District Court properly 

balanced the public and private interests at stake in unsealing 

the documents, we must decide at the outset whether Cosby’s 

appeal has become moot due to the public disclosure of their 

contents. The Associated Press (the “AP”) argues in favor of 

mootness because resealing the documents after they have 

already become public will have no effect. Cosby claims this 

is not the case for two primary reasons, as resealing the 

documents would (1) at least slow the dissemination of their 

contents and (2) might affect whether they can be used

against him in other litigation. For the reasons that follow, 

we conclude that the appeal is moot.1

I. BACKGROUND

The unsealed documents result from a complaint filed 

by Andrea Constand against Cosby in the District Court in 

March 2005. Constand alleged that Cosby had drugged and 

sexually assaulted her at his home. As part of the discovery 

process, Constand’s counsel took Cosby’s deposition and 

questioned him regarding his relationships with other women, 

including whether any of these women had ingested 

Quaaludes prior to a sexual encounter.

2

 The deposition 

 

1 The District Court had jurisdiction to hear this case 

under 28 U.S.C. § 1332. We have jurisdiction to determine if 

this appeal is moot, see White-Squire v. U.S. Postal Service, 

592 F.3d 453, 456 (3d Cir. 2010), but as we conclude that it 

is, we lack jurisdiction to decide the merits of it. See North 

Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam).

2

“‘Quaalude’ is the brand name for the drug 

Methaqualone, a non-barbiturate sedative-hypnotic that is a 

general depressant of the central nervous system.” Mendoza 
4

resulted in discovery disputes and the parties prepared to 

litigate those disputes before the District Court.

After a telephone conference with counsel, the Court 

entered an interim order in November 2005 requiring the 

parties to file under seal their discovery motions and any 

supporting documents. The AP then moved to intervene and 

oppose the sealing order. The Court denied the motion on the 

ground that the record was not yet sufficient to determine 

whether a permanent seal was warranted. It ruled that the 

interim sealing order would remain in effect until the parties 

had conducted all necessary depositions in the case, 

whereupon it would determine which documents should 

remain sealed.

As the discovery process continued, the parties filed 16 

documents, the ones before us, under the interim sealing 

order. In certain of them, counsel for Constand and Cosby 

quoted excerpts from the transcript of Cosby’s deposition and 

summarized portions of his testimony. As a result, the 

documents reveal that Cosby made a number of damaging 

admissions during his deposition, including that he had: (1) 

engaged in extramarital affairs; (2) acquired Quaaludes and 

engaged in sexual relations with a woman after she ingested 

the drug; and (3) given money to one woman and offered 

money to Constand.

 

v. Secretary, Florida Dept. of Corrections, 761 F.3d 1213, 

1217 n.3 (11th Cir. 2014) (internal quotation marks omitted). 

As a result, ingesting Quaaludes may render someone 

incapable of consenting to sex. See Gilardi v. Schroeder, 672 

F. Supp. 1043, 1045 (N.D. Ill. 1986). Though Quaaludes 

were legally available in the 1960s and 1970s, distribution of 

them is now a federal crime. Gerald F. Uelmen et al., 1 Drug 

Abuse and the Law Sourcebook § 3:58 (2015 ed.).
5

Before the District Court could rule on whether the 

documents should remain sealed permanently, Cosby and 

Constand reached a confidential settlement in October 2006,

and the case was dismissed shortly thereafter. The interim 

sealing order nonetheless continued in effect and the 

documents remained sealed. Though in such circumstances 

the District Court’s Local Rule 5.1.5(c) requires that the Clerk 

of Court send a notice to the attorney for the party who

submitted the sealed documents stating that the documents 

will be unsealed unless an objection is filed,

3

eight years 

passed without the Clerk taking any action. 

 

3 Eastern District of Pennsylvania Local Rule of Civil 

Procedure 5.1.5(c) provides:

If a document is still sealed at the conclusion of 

the two-year period and the Court has not 

entered an order continuing its sealed status 

beyond that time, the Clerk of Court shall notify 

the attorney for the party having submitted the 

sealed document at the attorney’s address on the 

docket that the document will be unsealed 

unless the attorney or the submitting party 

advises the Clerk within (60) days that said 

attorney or submitting party objects. If the 

attorney or submitting party objects to the 

unsealing of the document or if the Clerk’s 

notification is returned unclaimed, the Court 

will make a determination, on a case-by-case 

basis, whether to maintain the document under 

seal, to unseal it, or to require further 

notification.
6

That changed in December 2014 when the AP 

requested that the Clerk issue such a notice and within weeks 

the Clerk placed a notice on the District Court docket stating 

that the documents would be unsealed within 60 days unless 

an objection was filed. Cosby’s counsel filed an objection 

and the District Court allowed the AP to intervene and argue 

for lifting the interim sealing order. The Court then set a 

briefing schedule and heard oral argument. Cosby did not at 

that time request a stay in the event that the Court ruled 

against him and unsealed the documents.

On July 6, 2015, the District Court issued an order that 

the documents be immediately unsealed and accompanied the 

order with a 25-page opinion explaining its reasoning. In 

order to balance Cosby’s privacy interest against the public 

interest in access to the documents, the Court considered each 

of the factors we set out in Pansy v. Borough of Stroudsburg, 

23 F.3d 772 (3d Cir. 1994). In applying them, however, the 

Court relied on the novel rationale that Cosby had reduced 

privacy interests because he had “donned the mantle of public 

moralist and mounted the proverbial electronic or print soap 

box to volunteer his views on, among other things, 

childrearing, family life, education, and crime.” While the 

parties extensively debate the propriety of this reasoning in 

their briefs, it attracted little notice at the time in light of the 

consequences of the accompanying order.

With no stay and the District Court’s instruction that 

the Clerk unseal the documents “forthwith,” an AP reporter 

discovered that the documents were publicly available and 

downloaded them within minutes of the online posting. 

Though Cosby’s counsel emailed a stay request to the Court 

less than 20 minutes later, it was too late to prevent the media 

from publicizing Cosby’s damaging admissions. The AP sent 

out a “news alert” reading “Documents: Cosby admitted in 

2005 to getting Quaaludes to give to women he sought sex 
7

with.” Declaration of Maryclaire Dale, ¶ 4, Doc. No. 

003112063414 (Sept. 2, 2015). Within hours, four more 

news organizations had published stories regarding the 

contents of the documents, and public interest in the story did 

not abate thereafter. Indeed, allegedly due to a 

misunderstanding of the scope of the Court’s order by a court 

reporting service, The New York Times obtained a full 

transcript of the deposition and published excerpts on its 

website. In the wake of this publicity, the District Court did 

not rule on Cosby’s stay request, and he filed a notice of 

appeal to this Court.

At approximately the same time, Cosby and Constand 

became embroiled in a further dispute in the District Court. 

Each filed a motion for sanctions and injunctive relief, 

alleging breach of the confidential settlement agreement. The 

dispute ended when Constand and Cosby stipulated to 

dismissal of their motions for lack of subject matter 

jurisdiction. 

While Constand declined to participate in this appeal, 

the AP filed a motion to dismiss it as moot in light of the 

public disclosure of the documents. Cosby argued that the 

appeal was not moot because we could still order the 

documents resealed. A motions panel of this Court issued a 

preliminary denial of the motion to dismiss and referred the 

matter to us.4 See Order, Doc. No. 003112118113 (Nov. 2, 

2015).5

 

4 The denial was preliminary per Rule 10.3.5 of our 

Internal Operating Procedures:

A motion panel may grant a motion to dismiss 

an appeal. If the motion seeks dismissal for 
8

II. MOOTNESS

To say that an appeal is moot means that the court 

cannot provide the prevailing party with any relief. Chafin v. 

Chafin, 133 S. Ct. 1017, 1023 (2013). If this is true, there is 

no longer a controversy to decide as required by Article III of 

the United States Constitution for the exercise of federal 

judicial power. See id. Thus, we lack the ability (that is, 

appellate jurisdiction) to decide it and “the appeal must be 

dismissed.” Church of Scientology of California v. United 

States, 506 U.S. 9, 12 (1992).

As a result, our analysis is “centrally concerned with 

the court’s ability to grant effective relief.” County of Morris 

v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001). 

This is ordinarily a low bar, as “when a court can fashion 

some form of meaningful relief, even if it only partially 

redresses the grievances of the prevailing party, the appeal is 

 

lack of jurisdiction or for untimeliness, and the 

panel votes not to grant the motion, the motion 

is referred by order, without decision and 

without prejudice, to the merits panel.

5

In addition to this litigation, Cosby also has been 

involved in numerous other legal proceedings that involve 

allegations of sexual assault. These proceedings include civil 

suits by other alleged victims against him, a lawsuit Cosby 

filed against one of his accusers, and a criminal proceeding in 

Montgomery County, Pennsylvania, stemming from the same 

alleged conduct as Constand’s civil suit. These matters are 

not before us, however, and we are limited to deciding this 

particular appeal from the District Court’s order unsealing the 

documents.
9

not moot.” In re Continental Airlines, 91 F.3d 553, 558 (3d 

Cir. 1996) (internal quotation marks omitted) (emphasis in 

original). While the prospect of partial relief is sufficient to 

defeat mootness, mere speculation “afford[s] no basis for 

finding the existence of a continuing controversy as required 

by Article III.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 

690, 700 (3d Cir. 1996) (citing Rizzo v. Goode, 423 U.S. 362, 

371-73 (1976); DeFunis v. Odegaard, 416 U.S. 312, 320 n.5 

(1974)). However, we may consider any evidence bearing on 

whether the appeal has become moot. See Clark v. K-Mart 

Corp., 979 F.2d 965, 967 (3d Cir. 1992).

While Cosby argues that this appeal is not moot 

because we could provide him with partial relief by ordering 

the documents resealed, his own counsel has indicated that no 

meaningful relief is possible. In the request for a stay, 

Cosby’s counsel told the District Court that “[o]f course, if

the documents become public before ... his appeal [is] 

decided,” then an appeal “will be pointless.” App. at 757a. 

Though the documents are public, Cosby now claims that 

resealing them would at least slow their dissemination. In 

particular, resealing them would prevent the Clerk of the 

District Court from continuing to provide official copies of 

the documents upon request (whether through the online 

PACER system or on paper).

We and our sister circuit courts have held that appeals 

seeking to restrain “further dissemination of publicly 

disclosed information” are moot.6 Charles Alan Wright et al., 

 

6 United States v. Smith, 123 F.3d 140 (3d Cir. 1997), 

is not to the contrary. There, prosecutors published on a 

Government website a sentencing memorandum arguably 

containing secret grand jury information, including the names 

of uncharged accomplices of defendants, in violation of 
10

13C Federal Practice & Procedure § 3533.3.1 & n.35 (3d ed. 

2008) (collecting cases). In In re Orthopedic Bone Screw 

Products Liability Litigation, 94 F.3d 110 (3d Cir. 1996), the 

Food and Drug Administration (FDA) accidentally disclosed 

the data underlying a medical study to the plaintiffs in a 

 

Federal Rule of Criminal Procedure 6(e). Id. at 144. After 

publication, and after the uncharged individuals named in the 

sentencing memorandum complained to the District Court, it 

ordered the Government to remove the memorandum from its 

public website and to attempt to recover copies already 

distributed. Id. at 144-45. On appeal, we held that the risk of 

revealing additional, previously undisclosed, grand jury 

secrets justified continuing protective measures. See id. at 

154. 

In a dictum, we then rejected the news media’s 

argument that the District Court was “powerless ... to prevent 

all further disclosures by the [G]overnment” of secret grand 

jury information simply because that information had already 

been made public. Id. at 154. We noted that “[e]ven if the 

dissemination by members of the public continues, the order 

barring further disclosure of any secret grand jury material 

will at least narrow that dissemination.” Id. at 155. This 

aspect of Smith is easily distinguished by the type of 

information disclosed (not to mention the changes in internet 

technology since the opinion issued, making it much less 

likely that resealing documents on a Government website will 

lessen their dissemination). Simply put, courts have a 

different — and significantly greater — institutional interest 

in preserving the integrity of the grand jury process than they 

do in protecting the information of private litigants. As this is 

a typical civil litigation involving private parties in which all 

of the documents at issue are already public, no such

institutional interest is at stake here.
11

multi-district litigation. Id. at 110 n.1. The Scoliosis 

Research Society and Dr. Steven M. Mardjetko filed a motion 

to stay any public disclosure of the data, but the District Court 

denied the motion and authorized the plaintiffs to file the data 

in a public comment with the FDA. Id. at 110-11. We held 

that “[b]ecause that disclosure cannot now be undone, we will 

dismiss the appeal ... as moot.” Id. at 111. Public disclosure 

cannot be undone because, as the Second Circuit has 

explained in similar circumstances, “[w]e simply do not have 

the power, even were we of the mind to use it if we had, to 

make what has thus become public private again.” Gambale 

v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004); see 

also Doe No. 1 v. Reed, 697 F.3d 1235, 1238-1240 (9th Cir. 

2012).

In light of the extensive publicity surrounding Cosby’s 

admissions, we are similarly without power to affect the 

dissemination of the unsealed documents’ contents in any 

meaningful way. Five prominent news organizations 

published articles about the documents within hours of the 

District Court’s order, and the news media have repeated his 

damaging admissions countless times since then. Apart from 

the traditional press, a Google search for “Bill Cosby

deposition testimony” yields as of August 12, 2016, 81,200

results, some of which include full copies of the documents

bearing the District Court’s PACER imprint. See, e.g., Diana 

Moskovitz, Here Are The Documents Bill Cosby Didn’t Want 

You to Read, Deadspin.com, (Jul. 6, 2015 6:42 PM), 

http://deadspin.com/here-are-the-documents-bill-cosby-didntwant-you-to-rea-1716083975 (linking to full library of the 

documents). While these are not technically official records, 

“[i]f anyone with an internet connection can easily obtain 

images of the original documents online, it is not clear why 

anyone would bother filing an additional public records 

request.” Doe No. 1, 697 F.3d at 1239. In short, when it 

comes to public awareness of the documents’ contents, the 
12

feathers of the pillow are scattered to the winds; nearly 

everyone in America (and many more around the world) with 

access to a computer either know what Cosby has admitted to 

doing or could find out with a few clicks, and this will remain 

true even if we order the documents resealed.

Any effect that resealing the documents might have on 

the numerous other legal proceedings that result from sexual 

assault allegations against Cosby (or might occur in the 

future) is simply not enough to present a live controversy in 

this appeal. Cosby argues that resealing the documents would 

leave him “better positioned” to persuade “the various courts 

in which he finds himself a party” to limit the use of the 

documents in the proceedings before them. Reply Br. at 1-2. 

In particular, he asserts that he could persuade these courts 

that the documents are inadmissible and cannot otherwise be 

used against him. Id.

This argument is fatally flawed. We held in In re 

Cantwell, 639 F.2d 1050 (3d Cir. 1981), that an appeal 

seeking “a ‘firm basis’” to seek relief from another court “[i]n 

effect ... ask[s] us to issue an advisory opinion, something we 

may not do.” Id. at 1054. As advisory opinions are forbidden 

by Article III’s requirement of a live controversy, the 

Cantwell Court concluded that the appeal before it was moot. 

See id. Given that Cosby expressly requests us to provide a 

basis to make an argument to other courts, he also requests an 

advisory opinion. Moreover, even if we could issue such an 

opinion, Cosby cites no authority to the effect that sealing 

documents in a civil case would render them inadmissible in 

another litigation—indeed, sealed documents are often 

admitted into evidence. See, e.g., United States v. Alexander, 

901 F.2d 272, 273-74 (2d Cir. 1990) (per curiam). Hence this

argument is also too speculative to present us with a live 

controversy.
13

While Cosby cites several cases in which the 

possibility of an injunction limiting the future use of evidence 

obtained through grand jury proceedings was sufficient to 

defeat mootness — see In re Grand Jury Investigation, 445 

F.3d 266 (3d Cir. 2006); Gluck v. United States, 771 F.2d 750 

(3d Cir. 1985); Matter of Special March 1981 Grand Jury, 

753 F.2d 575 (7th Cir. 1985); United States v. Nix, 21 F.3d 

347 (9th Cir. 1994) — these cases do not give us any basis to 

meddle in the other proceedings involving sexual assault 

allegations against Cosby. Under Federal Rule of Civil 

Procedure 65(d)(2), a federal court’s power to order that a 

binding injunction issue is limited to certain persons 

connected to the case before it:

(A) the parties;

(B) the parties’ officers, agents, servants, 

employees and attorneys; and

(C) other persons who are in active concert or 

participation with anyone described in 

[subsections] (A) or (B).

As each of the cited cases concerned the possibility of an 

injunction against either the Government as a party to the 

grand jury proceedings or those who had received grand jury 

materials from the Government, there was no reason to doubt 

the court’s power to order such an injunction under Rule 

65(d)(2). In this appeal, however, Cosby has not identified 

whom he would seek to enjoin, and to the extent that he 

suggests it would be his adversaries in other cases, they are 

not parties to this litigation and Cosby does not allege that 

they are acting in concert with any party.7 We thus have no 

 

7 Although Beth Ferrier and Rebecca Cooper, two 

plaintiffs against Cosby in another case, moved to intervene 

in the proceedings regarding alleged breach of the settlement 
14

basis to conclude that that there is any “potential availability 

of a future-use injunction” to save this appeal from mootness. 

See In re Grand Jury Investigation, 445 F.3d at 273.

We have considered Cosby’s remaining arguments 

against mootness and find them unpersuasive. We cannot 

issue an advisory opinion simply to “make clear” to the news 

media that the District Court’s order does not entitle them to 

access any documents beyond those already unsealed. Reply 

Br. at 4. Similarly, even assuming that resealing the 

documents would enable Cosby to file the settlement 

agreement under seal in support of his claim that Constand 

breached it, he stipulated to dismissal of that claim for lack of 

subject matter jurisdiction. Though the dismissal was without 

prejudice, any prospect of relief in that proceeding is entirely

an imaginative guess. We therefore conclude that resealing 

the documents would not provide Cosby with any meaningful 

relief, and thus this appeal is moot.

III. WHETHER TO VACATE THE DISTRICT 

COURT’S ORDER

As this appeal is moot, we cannot review the merits of 

the District Court’s decision to unseal the documents and 

must decide what course is appropriate. We have equitable 

discretion to vacate the District Court’s order, Old Bridge 

Owners Co-op Corp. v. Township of Old Bridge, 246 F.3d 

310, 314 (3d Cir. 2001), which would prevent its decision 

from “spawning any legal consequences.” Rendell v. 

Rumsfeld, 484 F.3d 236, 243 (3d Cir. 2007) (internal 

 

agreement, Cosby’s description of them as “non-parties” is 

apt. Opp. to Mot. to Dismiss at 8. They did not become 

parties, as the District Court denied their motion to intervene. 

See Order, ECF No. 128 (Dec. 21, 2015).
15

quotation marks omitted). As a general rule, “when a case 

becomes moot pending disposition of an appeal, the judgment 

below will be vacated.” Old Bridge, 246 F.3d at 314 (internal 

quotation marks omitted). This is done out of concern for 

procedural fairness, namely that parties should not remain 

bound by a decision that the court of appeals cannot review 

because it has become moot. See U.S. Bancorp Mortg. Co. v. 

Bonner Mall P’ship, 513 U.S. 18, 25 (1994).

The only recognized exception to this rule is when 

“mootness results from settlement” and thus “the losing party 

has voluntarily forfeited his legal remedy.” Lightner ex rel. 

N.L.R.B. v. 1621 Route 22 West Operating Co., 729 F.3d 235, 

237-38 (3d Cir. 2013) (quoting Bancorp, 513 U.S. at 25). 

Refusing to vacate in those circumstances prevents parties

from attempting to “manipulate the [judicial] system” by 

settling the case in order to vacate an unfavorable decision. 

Rendell, 484 F.3d at 243. 

Although the claims of the AP are not settled, it 

nonetheless contends that Cosby forfeited his right to appeal 

by failing to make a timely motion to stay the District Court’s 

order. While the Tenth Circuit and the D.C. Circuit have 

declined to vacate when the losing party has made no attempt

whatsoever to seek a stay — see Mahoney v. Bobbitt, 113 

F.3d 219 (D.C. Cir. 1997); In re Western Pacific Airlines, 181 

F.3d 1191 (10th Cir. 1999) — that is not what happened here. 

Cosby’s counsel requested a stay within an hour of receiving 

the District Court’s order, and while this proved to be too late 

to prevent the documents from becoming public, there is 

certainly no evidence that it was part of any attempt to 

manipulate the judicial system. 

Though we follow the general rule and vacate the 

District Court’s order, we point out that our decision does not 

express any view on whether the documents should have been 
16

unsealed. That question implicates how to balance significant 

public and private interests, and we leave the problem of 

striking that balance for another day.8 Our decision merely 

recognizes the limits of our own power in this case. The 

contents of the documents are a matter of public knowledge,

and we cannot pretend that we could change that fact by 

ordering them resealed. We thus vacate the District Court’s 

order and dismiss this appeal as moot.

 

8 While we are without jurisdiction to review this question, it 

is worth noting that, if we could review it, we would have 

serious reservations about the District Court’s “public 

moralist” rationale. It has no basis in our jurisprudence 

regarding the conditions for modifying a protective order as 

set forth in Pansy and its progeny. Moreover, the term 

“public moralist” is vague and undefined.