Constand v. Cosby

229 F.R.D. 472, 62 Fed. R. Serv. 3d 734, 2005 U.S. Dist. LEXIS 10856, 2005 WL 1324883
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 2, 2005
DocketNo. 05-1099
StatusPublished
Cited by5 cases

This text of 229 F.R.D. 472 (Constand v. Cosby) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Constand v. Cosby, 229 F.R.D. 472, 62 Fed. R. Serv. 3d 734, 2005 U.S. Dist. LEXIS 10856, 2005 WL 1324883 (E.D. Pa. 2005).

Opinion

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

I. BACKGROUND

Plaintiff, Andrea Constand, brings this diversity action against defendant, William H. Cosby, Jr., asserting claims of battery, sexual assault, intentional and negligent infliction of emotional distress, defamation/defamation per se and false light/invasion of privacy. Plaintiff is the former Director of Operations for the Women’s Basketball program at Temple University. Defendant is a well-known entertainer and celebrity and a supporter of Temple University programs. Plaintiff met defendant while she was employed at Temple University.

The gravamen of plaintiffs complaint is that while alone with defendant at defendant’s home in January 2004, defendant deceived plaintiff into ingesting a narcotic or other type of drug which caused plaintiff to become semi-conscious, and thereafter defendant sexually assaulted plaintiff. Plaintiff also contends that after she reported defendant’s alleged actions to the Durham, Ontario police, defendant and/or his authorized representatives knowingly made false statements to the media about plaintiff. In connection with her allegations, plaintiff seeks an award of compensatory damages plus reasonable attorneys’ fees, interest, costs, punitive damages, and other unspecified relief.

Presently before the Court are two motions for protective orders. One, plaintiff seeks to keep confidential the identity of prospective witnesses who are expected to testify at trial pursuant to Federal Rule of Evidence 415 (“Evidence of Similar Acts in Civil Cases Concerning Sexual Assault”). Two, defendant seeks to preclude the parties from disclosing any information learned in discovery to anyone other than the parties themselves, their counsel and representatives working on their behalf and to preclude use of any such information for any purpose other than this litigation. The Court held a hearing to address issues raised in these motions on May 11, 2005.

In plaintiffs motion for a protective order, which defendant initially opposed, plaintiff argues that the identities of ten or more of the prospective Rule 415 witnesses, whom plaintiff tagged as “Jane Doe witnesses” in disclosures to defendant (“Jane Doe witnesses”), should be protected from public disclosure.1 At the hearing, plaintiffs counsel stated that at least thirteen Rule 415 [474]*474witnesses may testify (Hr’g Tr. Troiani (5/11/05) at 21), and that all but two are represented by counsel, with one of the unrepresented witnesses being an attorney herself, (Hr’g Tr. Kivitz (5/11/05) at 29). In support of her position, plaintiff argues that there are important privacy concerns at issue in disclosing the Jane Doe witnesses’ names and addresses to the media. In particular, the anticipated testimony of the Jane Doe witnesses relates to details of alleged similar incidents of sexual assaults involving the defendant. Plaintiff argues that disclosure of these witnesses’ identities may place the Jane Doe witnesses at risk of physical and psychological harm from media exposure. Plaintiff also contends that disclosure of their identities may expose the Jane Doe witnesses to the risk of harm from overly zealous fans and supporters of the celebrity defendant.

Defendant initially challenged plaintiffs ability to move for a protective order to conceal the identities of the Jane Doe witnesses arguing that plaintiff may only move for a protective order to protect her own interests and not the interests of third-party witnesses. Defendant also argued that if such a protective order is granted, the Jane Doe witnesses will be free to make anonymous public accusations about defendant’s sexual history without corresponding scrutiny. However, at the hearing, counsel for defendant clarified that defendant was not opposed to protecting the names of the Jane Doe witnesses from public disclosure at this time (ie., during the discovery period), so long as defendant is provided with then-names and has the opportunity to depose them. (Hr’g Tr. O’Connor (5/11/05) at 14-15.)

Defendant’s motion requests a blanket protective order preventing the parties (and presumably counsel and witnesses) from publicly disclosing or discussing any information learned in discovery. In support of this motion, defendant argues that a protective order cloaking information produced in discovery will protect the parties and witnesses in this case from embarrassment and invasion of privacy and will help preserve a fair and unbiased jury pool. Defendant highlights the publicity this case has already garnered and predicts that public disclosure of the discovery proceedings could result in serious and palpable embarrassment to the defendant.

At the hearing, defense counsel explained that defendant’s request for a protective order went beyond protecting information obtained by the parties during discovery. In essence, defendant would like the Court to issue a gag order prohibiting the parties and counsel from making any extrajudicial statements about any aspect of the case. Id. at 12-13, 25.

Plaintiff opposes defendant’s request for a protective order cloaking in a mantle of confidentiality all discovery obtained in this case and for a more expansive gag order. Plaintiff argues that defendant is a person with unfettered access to worldwide media outlets and that, in fact, defendant has already utilized the media in this litigation by portraying himself as the type of individual who would not engage in the behavior alleged herein. Plaintiff posits that if the Court were to seal discovery, defendant would promote his own innocence by talking to the media, lecturing at public venues and otherwise promoting his public image. According to plaintiffs counsel, if plaintiff is denied the right to have her counsel speak for her in public, she will have no public voice with which to counteract defendant. (Hr’g Tr. Troiani (5/11/05) at 6.) Plaintiffs counsel argues that because the defendant’s friends and agents are speaking out on his behalf, it is necessary for the plaintiffs attorneys to speak out to present the public with a balanced picture of the case. Id. at 6-8.

In essence, the parties have presented the Court with three issues:

1. Whether the Court should enter a gag order limiting the ability of the parties and counsel to make extrajudicial statements;
2. Whether the names of prospective Rule 415 Jane Doe witnesses should be disclosed to counsel only and otherwise kept confidential; and
[475]*4753. Whether the Court should enter a protective order cloaking all discovery in the case in a mantle of confidentiality.

The Court will address these issues seriatim.

II. DISCUSSION

A. Should the Court Enter a Gag Order Limiting the Ability of the Parties and Counsel to Make Extrajudicial Statements?

“It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression.” Rules of Profl Conduct, R. 3.6, 42 Pa.C.SA., cmt. 1 (Supp.2005). Extrajudicial statements by counsel of record in an ongoing, high-profile civil proceeding, such as here, presents a case in point.

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Related

Dougherty v. Heller
97 A.3d 1257 (Superior Court of Pennsylvania, 2014)
Constand v. Cosby
232 F.R.D. 486 (E.D. Pennsylvania, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
229 F.R.D. 472, 62 Fed. R. Serv. 3d 734, 2005 U.S. Dist. LEXIS 10856, 2005 WL 1324883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/constand-v-cosby-paed-2005.