fifth cosby unsealed doc

8/20/2019 Fifth Cosby Unsealed Doc

1/15

IN THE UNITED STATES DISTRICT

O U R ~

FOR

THE

EASTERN

DISTRICT

OF P E N N S Y L V ~

ANDREA CONSTAND

Pla in t i f f

CIVIL

ACTION

NO.

05-1099

v.

WILLIAM H.

COSBY

JR. ,

Defendant

Phi lade lphia ,

P e n n s ~ a n i a

November

4,

2005

--J

J ~

Ir :

6

MICHA

, v

200

TELEPHONE

CONFERENCE

By

BEFORE

THE

HONORABLE

EDUARDO C.

ROBRENO

UNITED STATES DISTRICT

COURT

JUDGE

APPEARANCES:

For the Pla in t i f f :

For the Defendant:

Audio

Operator :

Transcribed

by:

DOLORES

M. TROIANI, ESQUIRE

Troiani /Kivi tz ,

LLP

38

North Waterloo Road

Devon, PA

19333

PATRICK

J .

O CONNOR, ESQUIRE

GEORGE M. GOWEN I I I , ESQUIRE

Cozen

O Connor

1900

Market St ree t

Phi lade lphia ,

PA

19103

J . Matkowski

Paula

L.

Curran,

CET

(Proceedings

recorded by For the Record Gold sound

recording; t r an sc r ip t provided by AAERT-cert i f ied

t r ansc r ibe r .

merican ssociation of

Electronic Reporter5 Transcrib ers Inc.

Laws

Transcription Service

48 W. La Crosse

Avenue

Lansdowne,

PA

19050

610) 62:J-4178

Case 2:05-cv-01099-ER Document 54 Filed 12/02/05 Page 1 of 15


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(The

fol lowing occurred v ia te lephone

conference.)

THE COURT:

Good morning, t h i s i s Judge

Robreno and

I

have you on

the

record .

May I

have the appearances

of

counsel

beginning with

p l a i n t i f f s

counsel?

MS. TROIANI:

Dolores Tro ian i for Andrea Constand.

Good

morning,

your

Honor.

THE

COURT:

Good morning.

And

for

the

defendants?

MR.

O CONNOR:

Pat r ick

O Connor for the Defendant

Cosby,

along with George Gowen.

THE

COURT: Okay,

well , good

morning.

MR.

O CONNOR:

Jack Schmidt

i s

a l so on

the l ine ,

s i r .

THE

COURT: Yes,

well ,

good morning,

Mr. Schmidt.

This i s a s t a tus

conference .

I wi l l

not

be

making any

ru l ings on

the meri ts .

But

I

wanted to

review

where

we a re

and where w e re going.

Let me j u s t

say

tha t I

have read

every page and every

l i ne of the

mater ia l s t ha t you

sent

me.

So, I th ink I

have

a sense ,

not on ly

for the t r ees , but

a l so

for the fo res t of t h i s case .

And

l e t me

make

j u s t a

couple

of

comments here .

Number one,

t h i s

i s

a

d i f f i c u l t case

for the lawyers

to

handle , from both s ides . And

I apprec ia te

t ha t and

I

have

a

sens i t i v i t y

to

tha t ,

as

well . And

I

th ink

t ha t

both

s ides

have, within the

d i f f i c u l t

burdens t ha t they are ca rry ing,

done

the

bes t

t ha t

they

can

for t he i r

c l i en t s .

2



3/15

2

3

Now t comes a t ime to cut the Gordian

ph)

knot

and get to the bottom

l ine

here . And I th ink t h i s i s what I

would l ike

to

do. These

are

going

to

have to be determined

4

on

a

one-by-one

basis to

the

extent

tha t

anyone

wishes

to

5

seek to compel

a

fur the r answer.

And

what

I

th ink

w

should

6 do

i s the following. The par ty seeking

to

compel an answer

3

7 o r a fu l l e r

answer to

a question wil l

f i l e

a

motion

to compel

8

and tha t

wil l be

done

as fol lows. Each ques t ion and

each

9

answer

which

i s

in

controversy

wil l

be on

a separa te page.

10 There wil l

be

a quest ion, there wil l

be

the

answer

and then

11 there wil l

be

a br i e f c i t a t ion to the

author i t i es

and a one,

12

two or three l ine explanation why

tha t

act ion should be

13 compelled.

14

The party

opposing the

reques ts wil l then f i l e

a

15

response

and tha t should

also

be

done

each

response

on

a

16

separa te page. So

tha t

w

wil l

have

the oppor tuni ty

to

have

17 the quest ion,

the

answer

and

the

response,

together with

the

18

explanat ions, a l l in two pages, one for each side. So, the

19 responding par ty should number the response

by

the

same

20

number

as the

reques t .

21

Addit ionally, each

s ide

wil l

be

af forded

the

22 oppor tuni ty to submit probably no

longer than

a f ive

page

23

summary

of the

subs tant ive

arguments,

i f

they

wish

to

do

24

tha t . There

may

be

themes or there

may

be

par t i cu l a r running

25 object ions

tha t

may need to be t i ed up and I

want to give

you



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the oppor tuni ty to do t ha t . We

w i l l

do t ha t . We

w i l l giv

15 days fo r the motions to compel and each s ide wi l l

revie

the

t r a ns c r ip t and make whatever reques ts each s ide wants

make.

And

then

the

par ty

opposing

them

wi l l

then

have

15

days

to

respond to it

The second i ssue i s whether o r not

these

proceedi

should

then

be

conducted under

some spec ia l ru les

of

c o n f i d e n t i a l i t y . Or

whether they

should be t r e a t e d in

the

same manner t ha t othe r l i t i g a t i o n i s t rea ted , i . e . , t ha t

while the

discovery

i t s e l f i s conf iden t ia l ,

o rd i n a r i l y

proceedings involving the Court and

enforcement

of the

Cou r t s o rde rs , a re conducted in

open

cour t

and on

the

record .

And

t he re can be p r e t t y

good

arguments

both

ways.

So

the

way to jo in t h a t i s sue ,

it

seems to me i s

these

reques t s

should be

f i l e d under

sea l and the

answers

should

f i l ed

under sea l .

When

t h a t

i s completed then t he re wi l l be an

oppor tuni ty for

any par ty t ha t

wishes

to argue t ha t

the

se

should not be l i f t e d , to

so show.

And an oppor tun i ty to

oppose

t ha t . That i s , it

seems to

me

t h a t

before we have

argument

of whether o r

not

the sea l

should be l i f t ed ,

we n

to have on the record

what

it i s t h a t i s going to be

subje

pub l i c

review.

MS.

TROIANI:

Your Honor

excuse

me.

THE COURT:

Yes?



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MS. TROIANI: Do

you want

the

motion about the

sea l

to

be

publ ic?

THE

COURT: No,

well , t h a t s a

good po in t .

I

suppose

t

shou ldn t

be.

MS. TROIANI: Well, I

thought

the Court had

a l ready

ru led

t ha t

the re

wasn t

going to

be c onf ide n t i a l i t y

in

t h i s

case.

THE COURT: Well,

yes, except t ha t

for

discovery,

the par t i e s

had agreed t ha t the re

would be

conf iden t i a l i ty .

Th a t s

the

po in t of t h i s whole t h ing .

MS.

TROIANI:

No,

we did not .

We agreed , s i r ,

tha t

they could

f i l e

a motion fo r

conf ident ia l i ty .

THE

COURT: Yes.

MS. TROIANI: So, we t h ink tha t

t h a t s

the f i r s t

i s sue

here .

THE COURT: Well,

you

c a n t f i l e a

motion

un t i l

you

know what

t

i s

t ha t i s

going to

be

held conf iden t i a l .

MS TROIANI:

Mm-hmm.

THE COURT:

So, t h a t s

what

I

want to

lay

the

pred ica te

on

the

record

of

what

t

i s

t ha t

i s

going

to

be

conf iden t i a l .

So,

I am

suggest ing a

two-step process .

5

Number

one, tha t the reques ts

to compel and

the oppos i t ions

be

f i l e d

under

sea l .

Then

the

second

point

i s

whether

o r

not

those

mat te rs tha t are f i l ed under

s ea l - -

whether

o r not

the

sea l should

be

l i f t e d . And then a t

the

conc lus ion

of tha t ,



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w e l l have an

answer

to

t ha t ques t ion .

The

d i f f i c u l t y

here i s the fol lowing. That

the

cour t s

have recognized t h a t c o n f i d e n t i a l i t y can be

a t tached

to

discovery

because,

among

o ther

reasons , the

Court i s

no

d i r e c t l y

involved. The pa r t i e s

p r i v a t e l y can make

those

arrangements .

I f the motion to compel becomes a veh ic l e

to

d i sc lose

the d iscovery , then the e n t i r e poin t of

any

agreement t h a t

the pa r t i e s

have o r any des i re t h a t the

cou

have endorsed in

the pas t fo r discovery , as opposed

to

cou

proceedings, to remain conf iden t ia l , it would be po in t l e ss .

Now

it

may

j u s t

be t h a t

t h a t s

the

way

it i s . I

mean,

I d o n t

know

the

answer to

t ha t .

But

ce r t a in ly , t h a

what

the

ques t ion

i s going

to

be· whether o r not the access

to

the cour t

which

has been endorsed

by

the Supreme Court

a

which in

t h i s case,

I had

i n i t i a l l y ru l ed

on,

how

t h a t

i s

balanced

within

the

context of d iscovery .

And I l i k e to w

before I run

on t h a t

i s sue . So, t h a t s why I m suggest ing

t h a t we do t ha t .

I mean, we

could

a l l , in the abs t rac t , m

arguments

one

way o r the othe r , but we

won t

know how they

apply to

t h i s case

un t i l

I

know

s pe c i f i c a l l y what it i s t h a

you

are seeking

to

compel.

Maybe

y o u l l

go back, y o u l l r e - read the t r a ns c r ip

and

y o u l l

pick

out ,

you

know,

a

couple

of ques t ions ,

maybe

you

pick out 100

ques t ions .

I d o n t

know

what you wi l l do.

So, let s do it one

a t

a t ime.



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MS. TROIANI: And how do we f i l e our

motion to

lif

the sea l?

THE

COURT This i s how t h a t s going

to

be done.

And

I ll

have

an

order ,

by

the

way

on t h i s .

I

j u s t

wanted

to t a lk to you because

I th ink it s

helpful to

hear

your

comments

and

then to a l so be ab le to address

your

concerns .

Par t i e s seeking

to

compel the answers

in

the

manne

in which

I

have

descr ibed, wi l l

have

15

days to

do t ha t .

Par ty

opposing wi l l then have

15

days to respond. So

we

have a 30-day cyc le the re

and

tha t

should

be

f i l ed

under

sea l .

Now once you have t ha t in hand the re w i l l be

15

days

to

f i l e

a

motion in response to why

the

sea l should not

be l i f t e d .

And

whoever wishes

to

oppose the

l i f t i n g

of the

sea l ,

should

do

t ha t . Maybe nobody

wi l l

oppose

it,

maybe

they

wil l . The par ty who

d o es n t want

the

sea l l i f t e d shoul

then

f i l e

a

motion within

15

days.

And

the

par ty

who

wishes

the

sea l l i f t e d ,

they wi l l oppose t ha t

and

t ha t w i l l be a

30-day cyc le . At t ha t poin t

- - and

t ha t

should

a l so be

f i l e

under

sea l .

At

t ha t po in t ,

I

wi l l have

both the record

and

the

motions and

I

may decide and then

w e l l

have argument on

the

record

o r

whether

I

w i l l

decide

the i s sue

r igh t

the re

and

w e l l

see

what happens. Okay.

Any comments here?

Ms.

Troiani ,

you

seem

to

be dis turbed

by

t h i s

proceeding.



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8

MS.

TROIANI:

Yes,

I

am

your Honor,

I m

extremely

dis turbed by

t h i s .

THE

COURT:

Okay.

MS.

TROIANI:

Mr.

Cosby

chose

to

defame

our

c l i en t

in

the

media.

THE COURT:

Right .

MS.

TROIANI:

I mean, you ve

read

t ha t p a r t of

the

depos i t i on and

al though

we d i d n t ge t

many

answers,

but he

show t ha t our c l i en t

was

t e l l i n g

the

t r u th .

THE COURT:

Mm hmm.

MS. TROIANI:

I m very

concerned about t h i s

procedure . This i s t o t a l l y

d i f f e r e n t

than

any

o ther case

tha t i s

handled . Our cour t s a re not

sec re t . Our

cour t s a re

open to

the publ ic

and

t he y r e

open to

the publ ic

fo r

a

reason.

And

tha t

i s

to

preserve

the

i n t eg r i t y

of

t h i s

process .

And Mr.

Cosby

should not

be granted

s t a r

s t a tus in

the system. And I am extremely concerned

about t ha t .

We

as

lawyers ,

must

come to

cour t

knowing

tha t

no

mat te r who

our

c l i en t

i s ,

t he y r e

going to

be t r ea ted l ike

any o ther

c l i en t .

And your Honor and I m

c e r t a in ly

saying

t h i s

with a l l

due

respec t

to

the

Court ,

there

i s

abso lu te ly

no

reason

when

a

man chooses to go

publ ic

and put h i s defense in the

newspaper, why when

we

have decimated

tha t

defense and he

has



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....

now

we

have to

conduct t h i s

l i t i g a t i o n

under sea l .

I am

a l so

concerned

t ha t

Assoc ia ted Press

came

to

you,

t r i e d to j o in

in the

motion fo r

c onf ide n t i a l i t y

and

now

they have no

way

of

knowing

what s

going on

here . They

have

no way

of now

presen t ing t h e i r case.

You a l ready ru l ed tha t

t h i s i s

not conf iden t i a l . Frankly , your Honor, our

c l i en t

has th ree

ways of

v ind ica t ing

herse l f .

Sett lement ,

t r i a l o r

by

having

the publ ic be

made

aware

through

these motions,

what i s going

on

in t h i s cour t system.

THE

COURT: Okay,

well ,

then

y o u l l

make your

argument. I

mean,

t h a t s the

essence

of the

argument.

Nobody - -

I m

not ru l ing

on

t ha t

argument. I f

t h a t s the

argument tha t

wins

the

day, t h a t s

what s

going to

happen.

MR

O CONNOR: I

th ink Ms.

Troiani

has

revea led

her

t rue

in ten t ions

i n t ry ing

t h i s

case , seeking

j u s t i c e

three

ways. Through se t t lement , through

a

t r i a l and then through

the

newspapers.

And

I f ind

tha t

to

be an outrageous

sta tement .

THE COURT: Okay.

9

MR

O CONNOR:

Your Honor has ru led

tha t she

w i l l

have an

oppor tuni ty

to

at tempt

to unsea l

discovery . But I v e

been

prac t i c ing

law

fo r a

long

t ime

and

I v e

never had

discovery in any case

tha t I v e

been involved with, bandied



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10

about in the pres s . Discovery i s between

the par t i e s .

It s

not

what

occurs in

open

cour t . What

Ms. Troiani

has been

a t tempt ing

to

do

throughout

t h i s

case i s crea te

issues which

would

enable

her

to

f i l e

motions

which

would

circumvent

the

c onf ide n t i a l i t y t h i s

Court has imposed on discovery .

THE COURT Okay I haven t imposed anything

and the

poin t

i s

tha t w e re

going to

do t h i s one

s tep

a t a t ime. The

presumption

of

access i s the re . Tha t s why

the

show cause

would

be

upon

the

par ty , why

the

s ea l should not

be

l i f t e d .

So

the

presumption i s not

a

presumption

t ha t

it w i l l

be

conf iden t i a l , but the re

may

be reasons why

in whole

o r in

pa r t ,

some

aspec ts

may

be

co n f id en t i a l

including, I r e c a l l i f

my

memory i s

cor rec t ,

t ha t the p la in t i f f wanted the names of

the

Jane Does

to

remain conf iden t ia l a t one t ime. There was

some informat ion

concerning

t h i rd pa r t i e s

tha t

may

- - the

Court may

have to

take i n to

account maybe

not .

So

I th ink tha t

both

of

you

are

ge t t ing

ag i t a t ed

premature ly.

This

i s

a cour t

proceeding

t ha t needs

to

be

conducted in

an

order ly

fashion

so

t ha t

the re wi l l

be an

appropr ia te

record fo r review.

And

as I ind ica ted to you

the re are a l o t of sens i t ive i s sues involved. The pa r t i e s

involved t h i rd pa r t i e s ,

the

i n t e re s t of

the

publ ic . All of

those

have

to

be

c a re fu l l y

assessed

and

we

could

j u s t

simply

do it one way o r the o ther and I d o n t t h ink t ha t would be

appropr i a t e .

I th ink the Cour t s f i r s t

ru l ing ind ica ted

a



11/15

11

1

des ire

to have the

eye of

the publ ic on t h i s and

any other

2 proceedings , as the Supreme Court has

direc ted

us to

do.

3

In fact , as

you may

know, jus t

two

or th ree weeks

4

a f te r

the

decis ion

tha t

I

made,

the

Third

Circui t

made a

5 decis ion

in

a

case out of

the

Middle Dis t r i c t where the

judge

6

had

sealed the

- -

I th ink it s some of

the discovery

in the

7

case.

And

it ind ica ted

tha t

tha t should

be

pre t t y

much

on

8 the

same bas i s

tha t

t h i s Court

had found was not

appropr ia te .

9 So, we

don t

know

where we re

going to

end

up, but I

10 th ink

tha t

given a l l

of

the in te res t s which are involved in

11 t h i s case,

it

would be unfortunate to get

too agi ta ted

too

12

13

14

ear ly .

And

some of

t h i s can

be

saved

for

clos ing

sta tements

a t the

conclusion

of the case . So, t h i s i s

- -

we re going to

do

t h i s

and

I th ink

then tha t in

about 6

to

9

days, we l l

15 know,

a t

l e a s t a t t h i s

leve l ,

what

the

answer to these i ssues

16

and then we l l have

to

take it

from there .

17 I ll have an order issued today out l in ing these

18

proceedings .

You

know,

I th ink

it i s

a

f a i r

and

balanced way

19 and

in

no way i s

in tended

to ru le on what i s going to

happen

2

to anything in

t h i s matter .

21

MS

TROIANI: Your

Honor,

we

also have the i s sue

22 about whether

or not Hall

and

Applied Telematics apply.

23

THE

COURT:

Yes.

24

25

MS

TROIANI:

THE COURT:

Would

tha t

- -

That

should

be

brought

up.

That should



12/15

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

12

be

brought up.

I

t h ink

tha t t h a t s

why

I

gave you

the

oppor tuni ty to summarize tha t . I th ink tha t

the re

are two

over-a rching

i s sues here .

I th ink t ha t

may

be one.

And

I

th ink the re

i s

a l so

the

- -

t ha t

the re

i s

some

disc repancy as

to

the scope of the a t to rne y /c l i e n t

pr iv i l ege . And

I t h ink

tha t

a l so

should be f leshed out .

Those

are ,

you know

d i f f i c u l t

i s sues . And I t h ink they should be

f leshed

out .

And

I sa id f ive

pages

f rankly ,

you know

i f you need more -

I mean

you

know we shou ldn t

a r b i t r a r i l y

l imi t ,

you know

the wisdom tha t t h i s Court can

ge t . But

I t h ink brev i ty

would

be

he lp fu l , but i f

you need more than t ha t , t ha t i s

f ine . And

I th ink

the re i s

var ious

views

on

tha t

pa r t i c u l a r

i s sue .

I do

hope

t ha t we

r e l a t e

tha t

to

the

spec i f i c s

of

the case ,

as

opposed

to

some genera l discuss ion

of

the

soundness of tha t approach.

But

I th ink t ha t

t h a t s

something t ha t needs

to

be

addressed here . And

I

d i d n t want

to address

t h i s , f rankly , without an appropr ia te foundat ion.

And I t h ink t h a t s

what

t h i s

procedure

in tends

to

do.

Not

to

forec lose anyone from doing anything a t

the

r i gh t

t ime. But

i f

it

i s going

to

be

done it should

be

done

a f t e r , you

know

some

due

de l ibe ra t ion here .

And

I

apprec ia te

aga in

I

th ink

it s

d i f f i c u l t

fo r

the

lawyers here and

I th ink we re for tuna te

to have you

know

the two of

you

who are exper ienced

and have gone



13/15

1 through these wars. And

tha t

wil l

serve the

in te res t s of

2 your

c l ien ts

and

the i n t e r e s t of jus t ice , hopeful ly. So

I

3 th ink a l i t t l e pat ience may

serve us a l l .

13

4

I t

may

sound

l ike

a

long time

I

know

to

l i t igan t s

5

when you re t a lk ing about

90

days.

But as

you know

6 l i t i g a t i o n moves

a t a

you know it

has

i t s own

pace. and

I

7

think under

the

circumstances of

t h i s

case th i s i s being

done

8

with

dispatch

as

much

as it i s feas ible

under

the

9 circumstances . So I ll

i ssue

t h i s order today.

10

Now

l e t me ask

you t h i s , un t i l

we

resolve these

11 i ssues ,

can

anything e lse

be

done or anything needs to be put

12

on

hold

un t i l you f l e sh t h i s out?

13

MS

TROIANI:

Your

Honor we bel ieve

tha t we

need to

14

f l e sh t h i s out f i r s t , because - -

and

we

had also requested in

15

our

l e t t e r tha t

you

extend the

time to

add addi t ional - -

16

THE COURT:

Okay

yes well we l l

address

those.

I

17 mean it seems to me

tha t

tha t wi l l fol low from

whatever

the

18 ru l ing i s

here

tha t

we l l have

to

adjus t that . But

I

d idn t

19

know whether

you were proposing to take any other depos i t ions

20

o r

whether

you

now

wanted

to get t h i s in

place before you

21 proceed.

Your

preference i s jus t to

wait

and see what

22

happens here .

23

MS

TROIANI:

Yes

your

Honor

we

have

some

24

subpoenas.

25

THE COURT:

Okay.



14/15

14

1

MS. TROIANI: And we would expect tha t we

can, you

2 know for records and

th ings

l ike tha t , I m sure

we

can

3 THE

COURT:

Well, record discovery I don t see any

4

reason

why

tha t can t

proceed.

But

maybe

discovery

should

be

5

held

in abeyance. Mr.

O Connor, what

do you

think?

6 MR. O CONNOR: Well, I th ink I

have

no t rouble

7 with tha t , your

Honor.

8

THE COURT:

Okay.

9

MR.

O CONNOR: Unt i l you c la r i fy the playing f i e ld

10 here, I th ink t ha t s a wise decision.

11

THE COURT:

Okay,

f ine .

Okay, anything

e l se

then?

12

Okay,

we l l get

t h i s order

out today and hopeful ly, we

can

13

resolve t h i s

en t i re

matter in a 90-day cycle.

Thank you.

14

15

16

MS.

TROIANI:

Thank you,

your

Honor.

(Proceeding

adjourned

9:25 o c lock a.m.)



15/15

CERTIFICATION

I hereby c e r t i f y t ha t the

fo rego ing i s

a

cor rec t

t r a ns c r ip t

from

the

e lec t ron ic

sound

record ing

o f the

proceedings in

t he ab ove en t i t led ma t t e r .

?_

~ / ~ _ 1 ~ ~ 1 ~

Gera ld ine

C. Laws CET

Laws

Transc r ip t ion Serv ice

Date


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