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TROIANI/KIVITZ,
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o
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ T T O R N E Y S T L W ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
DOLORES
M. TROIANI, ESQUIRE
BEBE
H.
I
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IN THE UNITED STATES DISTRICT COURT
FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREA
CONSTAND
P l a i n t i f f
v.
WILLIAM H. COSBY, JR.
Defendant
CIVIL ACTION
NUMBER 05-1099
PLAINTIFF S MOTION
CONCERNING
CONDUCT OF
DEFENDANT S DEPOSITION
AND MOTION FOR
SANCTIONS
P l a i n t i f f prays
t h i s
Honorable Court to
Order
Defendant to
adhere
to
the guide l ine s se t
fo r th
in Hall v.
Cl i f t on
Prec is ion
150
F.R.D.
525
E.D.
Pa.
1993) , and
fu r the r t o o rde r
Defendant
to
submit to a
fu l l and
complete
depos i t ion a t
h i s
expense,
and
to
sanc t ion Defendant and /or h i s counsel by requ i r ing them to
re imburse P l a i n t i f f fo r
the
cos ts
of
the
Defendan t s depos i t ion ,
and
to
impose
o ther sanc t ions ,
as
the Court deems appropr ia te ,
and in suppor t the reof incorpora tes here in the
Memorandum
o f Law
which i s
a t tached here to .
Respec t fu l ly
submit ted ,
TROI
I/KIVITZ,
LP
BY: DOL
RES M
TROIANI
Attorney
I .D.
21283
BEBE H.
KIVITZ
Attorney I .D. 30253
Attorneys fo r P l a i n t i f f
38
North
Water loo Road
Devon, PA 19333
(610)
688-8400
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CERTIFICATE
OF
SERVICE
I hereby certify that on November 21, 2005, the undersigned were served in the following
manner, a true and correct copy of Plaintiff s Motion for Sanctions Concerning Conduct of
Defendant
at
Deposition
and Memorandum
of
Law.
NAME
The Honorable Eduardo C. Robreno
Eastern District
of
Pennsylvania
U.S. Courthouse
601 Market Street, Room 2609
Philadelphia, PA 19106
Office
of
the Clerk ofCourt
Eastern District
of
Pennsylvania
U.S. Courthouse
601 Market Street, Room 2609
Philadelphia, PA 19106
Patrick J O Connor, Esquire
Cozen O Connor
1900 Market Street
Philadelphia, PA 19103
Andrew D Schau, Esquire
Patterson Belknap Webb Tyler, LLP
1133 Avenue of the Americas
New York,
NY 10036
Date:
~
o£
MANNER
Via Hand Delivered
by
Courier
Via Hand Delivered
by
Courier
Via Hand Delivered by Courier
Via First Class Mail
j fl
By: i
1
Dolo s M. Troiani
Attorney I.D. No. 21283
Attorney for Plaintiff
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IN
THE
UNITED:STATES DISTRICT
COURT
FOR
THE
EASTERN DISTRICT OF PENNSYLVANIA
ANDREA
CONSTAND
P l a i n t i f f
v.
WILLIAM H. COSBY,
JR. ,
Defendant
CIVIL ACTION
NUMBER 05-1099
MEMORANDUM
OF
LAW IN SUPPORT
OF
PLAINTIFF'S MOTION CONCERNING CONDUCT OF
DEFENDANT S DEPOSITION AND
MOTION
FOR SANCTIONS
P l a i n t i f f r e sp e c t fu l l y reques ts t ha t t h i s Honorable Court
order
Defendant to adhere
to
the
guide l ine s se t
fo r th in Hall v.
Cl i f t on
Prec is ion
150 F.R.D. 525 E.D. Pa. 1993), and fu r the r to
order
Defendant to submit to a
fu l l
and complete
depos i t i on
a t
h i s expense,
and to
sanc t ion
Defendant
and /or h i s
counsel by
requ i r ing them to re imburse
P l a i n t i f f
fo r the cos t s
of the
Defendant ' s depos i t ion ,
and to impose
other sanc t ions ,
as the
Court deems
appropr i a t e .
Federa l
Rule of
Civ i l
30(d) (3)
au thor i ze s the im posi t ion of
sanc t ions i the cour t f inds t h a t any impediment, delay , o r
o ther
conduct
has f ru s t r a t e d the f a i r examinat ion of the
deponent .
Fur ther , t h i s Honorable Court has promulgated
c e r t a i n
procedures
which
s t a t e
t ha t i a
discovery dispute
requ i re s the
Court ' s
in te rven t ion , the Court
customari ly
imposes
sanc t ions
upon
the
non-preva i l ing
par ty unless the pos i t ion of the non-
par ty i s found to have been su b s t a n t i a l l y j u s t i f i e d . As i s
ev iden t below,
defense
counse l ' s conduct cannot be j u s t i f i e d
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under any ci rcumstances . Counsel
engaged
in conduct demeaning
to
the
profe ss ion of
law, de l ibe ra te ly obs t ruc t ive , and
unnecessar i ly
vexat ious , which conduct impeded
the f a i r
examinat ion of the
deponent .
Defendant was deposed on
September
27
and
28, 2005. Defense
counsel
was so
obs t ruc t ive
in the depos i t i on
t ha t he denied
P l a i n t i f f her r i gh t
to
an appropr ia te
in te r roga t ion .
Defense
counsel openly coached the wi tness ; confer red
with
him about the
ques t ions which
were being
asked;
in te r rup ted
the ques t ion ing
with
long
winded and
r e pe t i t i ve
speaking
ob jec t ions ; d i r ec ted
defendant not
to
answer ques t ions ,
when pr iv i l ege was not in
i s sue ) ,
inappropr ia te ly as se r ted a cla im
of
pr iv i l ege to numerous
ques t ions and
l i n e s
of ques t ioning;
and u l t imate ly improperly
t e rmina ted the depos i t i on . Defense counse l s conduct
was
demeaning and d i s respec t fu l and beyond the p a l l o f normal
advocacy. His
conduct so
fa r
exceeds
the
bounds
of
appropr ia te
behavior t h a t
the
major i ty , but
not
a l l )
1
of the
conduct
i s
reproduced
he re in so
t h a t t h i s Honorable Court may have the
fu l l
f l avor
of the
obs t ruc t ive
natu re o f counse l s
ac t ions .
A
sampling
of the ac t ions which
are
the sub jec t of t h i s
The Court
has
had the benef i t of
reading
both
days of the
depos i t ion ,
as
well
as,
the
Motion
to
Compel
which
has
been
s imul taneously f i l ed
with
the
Motion.
P l a i n t i f f i s
not
waiving
her cha l l enges to Defense
Counsel s
conduct on those days,
but
r e sp e c t fu l l y submits t ha t the f i f t y pages of
examples c i t e d
he re in a re s u f f i c i e n t
proof to support P l a i n t i f f s reques t
fo r
r e l i e f .
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motion are as
fol lows:
1 QUESTIONS REL TING TO POLICE DOCUMENT
Defendant
was
being quest ioned
about
a document which
was
genera ted
by
the po l ice .
I t
l i s t e d
two
s o c i a l
se c u r i t y
numbers
and addresses assoc ia t ed with
defendan t .
The ques t ions were
d i r ec t ed a t
de fendan t ' s
knowledge as to
why those
i tems would be
assoc ia t ed
with
him.
Pr io r
to
the
depos i t ion ,
in
open
Court ,
defense counsel had agree to prov ide p l a i n t i f f with
informat ion
concerning
defendant ' s res idences .
He did not provide the
informat ion.
The
fo l lowing
exchange
occurred .
MS TROIANI:
There
c a n ' t be
an
agreement i we both don ' t
agree.
MR O CONNOR:
You're never going
t o l e a r n
unless
you l i s t en . The
agreement
with
the
cour t
was t h a t I would al low Mr.
Cosby
to
be
quest ioned
on
res idences
where he
l i ve s .
I
i nd ica t ed to
the
cour t
in f ron t of counsel t ha t t he re
was
a
l i s t i n g
o f
some
20
proper t i e s ,
re fe renced on a pol i cy
of insurance
t h a t we blocked
out wi th
the
unders tand ing
t ha t when
it
came t ime fo r h i s
depos i t ion , I would al low counsel to explore
with
Mr.
Cosby
where he l i ve s . Now, as f a r as
I 'm concerned,
t h a t ' s f a i r l y
simple
ques t ions .
Where
do
you
r es ide
and
he
would
answer
those
ques t ions .
She i s not going
to
ge t a
l i s t i n g
from Mr.
Cosby
of
o ther asse t s and prope r ty which he owns.
And
I
f ee l
comfortable
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in
tha t d i r ec t ion .
MS. TROIANI:
I
asked him what hi s
res idences
were and he sa id
Massachuset ts .
He did
not go through which one of
these
prope r t i e s and
you
did
not provide
it before the deposi t ion .
MR
O CONNOR:
He
t o ld
you he
res ided in Cheltenham.
MS. TROIANI:
No,
he did not .
MR
O CONNOR:
He
t o ld
you
he res ided in
New
York, he t o ld
you
he res ided
in Massachuset ts .
You asked
him with
whom
he r e s ides in
Massachuset ts .
I al lowed
those
ques t ions to
be
asked. I al lowed
them
to be answered.
I f
you want
to ask
him
i f he r e s ides in
any
l oca t ion in
Cal i fo rn ia ,
I
wi l l al low
him
to answer t ha t . But
you go
through
t h i s
l i t any ,
I m
not going
to
al low
t ha t . Ask
the
ques t ion ,
t h a t s the agreement.
(9 /29 /05 ,
16-17)
The l i ne of ques t ion ing was twofold .
I t not
only concerned
defendan t s res idences which Defendant had agreed
in
open cour t
to provide
but
which were not
provided;
it
a l so
concerned
the
list
genera ted
by
the
pol ice .
Pla in t i f f
had
every
r igh t
to
inqui re as to
the
accuracy of
the
l i s t ,
and
as to defendant s
knowledge
of
why
the
addresses
appeared
on
the
list
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Furthermore ,
counsel
misrepresented
t h a t h is
c l i en t
s t a t e d
tha t
he res ided in New York and Cheltenham, and the record does
not
comport
with
t h a t
s ta tement .
As i s
evident
below, counsel
repea tedly miss ta ted
the
tes t imony
and
the
documents
provided
by
the po l ice .
On September
27,
2005, the pa r t i e s and counsel appeared
before t h i s Honorable Court in order to address
c e r t a in discovery
i s sues which were outs tand ing and
about
which t was an t i c ip a t ed
di spu te s would a r i s e dur ing the
depos i t ion .
P l a i n t i f f
be l ieved
t h a t
the
i s sues
had
been
reso lved
by
agreement
and
the
Court
i ssued
an
order f ind ing t ha t the di spu te s were
moot. In
fac t
Defendant s imply did
not
honor the agreements.
2 QUESTIONS REL TING TO
QU LUDES
Afte r defendant t e s t i f i e d t ha t he obta ined seven
presc r ip t ions fo r
Quaaludes, the fo l lowing tes t imony
was
e l i c i t e d :
Q.
A.
Q.
t was - -
You gave them t o o the r people?
Yes.
9/29/05, 66)
You gave those drugs to othe r people knowing t ha t
MR
O CONNOR: He
sa id
he gave
t
to
T-- -
r i g h t now.
MS. TROIANI: He sa id o ther people . He did say othe r people .
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BY MS.
TROIANI:
Q.
Knowing t ha t it was i l l e g a l ?
***MR. O CONNOR:
Whatever
the l e g a l i t y of it
i s ,
it wi l l s tand .
I m
i n s t ruc t i ng
him
not to answer. He gave the Quaaludes. I f it was
i l l e g a l ,
the
cour t s wi l l
determine
t ha t .
BY MS
TROIANI:
Q.
Did you
ever get
another pre s c r i p t i on for
Quaaludes
from another doc tor a f t e r
t ha t
t ime?
MR
O CONNOR:
This
i s in the
70s?
TH
WITNESS:
A.
No.
BY
MS.
TROIANI:
Q.
Who are the people
t ha t you gave the Quaaludes to?
MR
O CONNOR:
Keep
it
to
the
Jane
Does.
I m
not going
beyond
it
I m
i n s t ruc t i ng
him not
to
answer it
beyond
the Jane Does.
(Tr.
9 /29 /05 .
66-68)
BY
MS. TROIANI:
Q. When you
got
the
Quaaludes,
was it in
your mind
t ha t
you
were
going
to use these Quaaludes for
young
women t ha t
you
wanted
to
have
sex with?
A. Yes.
Q. Did
you ever
g ive
any of
those
young
women
the
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Quaaludes
wi thout
t h e i r knowledge?
MR O CONNOR:
Object to the ques t ion .
R es t r i c t
it to the Jane
Does, would
you,
please .
MS.
TROIANI:
No,
I
w i l l
not .
MR
O CONNOR: Do
not answer it.
MS. TROIANI:
It s
a
discovery depos i t ion .
THE WITNESS:
I misunders tood . Woman, meaning T- - - - - , and not women.
BY
MS. TROIANI:
Q.
Okay.
So,
y o u r e
say ing
you
never
gave
the
Quaaludes to anyone
othe r
than T- - - - - ?
MR O CONNOR:
Don t answer
the ques t ion . You
can ask
a l l the
ques t ions
you
want about the
Jane
Does.
BY MS. TROIANI:
Q.
Si r , I want to exp la in to you.
I m ask ing you a
ques t ion . You
have
every
r i g h t in
the
world
to
say ,
no,
y o u r e
misunders t and ing
me.
A. I j u s t did .
Q. Your counsel cannot give you
c lues ,
as he i s
obvious ly t ry ing to do,
t h a t s
i n ap p ro p r i a t e .
MR O CONNOR: I m
not
giv ing him
c lues .
I m
i n s t r u c t i n g
him not
to
answer,
except
in
the
con tex t o f
T - - - - - .
And
you keep
v io l a t i n g
my objec t ion .
We re
going
to
go
to
cour t to reso lve
t h i s .
And
every
t ime you ask
about
r e l a t i o n s h ip s
wi th
othe r
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women
with
whom
he
may have
had consent ing
r e la t ionsh ips ,
I m
going to
s top it
MS TROIANI: Tha t s f i ne . You ce r t a in ly can - - I
unders tand
your
objec t ion . There s
no
other
need
for
you
to
say except
objec t ion .
MR O CONNOR: I m going
to
i n s t ruc t
him not to
answer.
MS TROIANI: And you can
t e l l
him not
to
answer. Tha t s f i ne .
But the
mere
fac t tha t you have made an
ob jec t ion
and
then
I
cont inue
to ask
a quest ion, which I
bel ieve i s per t inen t
and
r e l evan t
and
wil l
l ead
to
the discovery of
re levant
informat ion
i s not v io l a t i ve of your objec t ion because your objec t ion i s
not
anything
but
an
objec t ion .
BY MS TROIANI:
Q. Now, l e t s get back
to
my ques t ions . And ce r t a in ly
your counsel
i f he
chooses to
i n s t ruc t
you not to answer, he wil l
do t ha t .
But
I
need
to
ask
you
these ques t ions
and
I
need
to
unders tand
and
the j u ry
needs
to understand. Are
you
saying
tha t
you
never gave
the
Quaaludes to
any other female
but
T -- - - - - - ?
MR O CONNOR: Don t answer the ques t ion .
Rephrase
the ques t ion .
BY
MS TROIANI:
Q. E ar l i e r I bel ieve you t e s t i f i e d tha t you
had
given
the
Quaaludes
to other
women;
i s
tha t
co r rec t?
MR O CONNOR: Do not answer tha t ques t ion .
(9 /29 /05 ,
69-75)
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This
i s a
c lea r
i l l u s t r a t i o n of how counse l ' s
remarks inf luenced
the
wi tness ' test imony. Having unequivoca l ly sa id
tha t
he
gave
the
quaaludes
to other people
upon hear ing counse l ' s t h in ly
ve i l ed clues , the
deponent changed
h i s
test imony
to
a
claim
of
having
misunderstood
the word
women for woman.
Further,
Counsel
appears
to bel ieve
tha t
he had taken
on
the ro le of judge.
Asser t ing tha t
he
had
made an object ion , and
tha t
Pla in t i f f
was
viola t ing
h i s
ob jec t ion
by at tempting
to
place her ques t ions
on
the record.
He
seemed
to
be l ieve t ha t Pla in t i f f was supposed to
abide
by
h i s
ob jec t ion
and
r e f r a in
from
asking
the ques t ions .
In
addi t ion , Defense
Counsel
added the
words, in
the 70 ' s to the
ques t ion .
There i s no
l ega l proceeding
in which one lawyer
can
simply ca l l out an
addendum to the opposing l awyer ' s ques t ion .
Defense
counsel
pers i s ted i n h i s improper conduct
as
fol lows:
BY
MS TROIANI:
Q. You would agree
with
me
tha t
i f you
got seven
presc r ip t ions for Quaaludes you could st ll keep those
Quaaludes
fo r a
number
of
years?
A. Yes.
Q.
And do you know
how
long a f t e r you s topped ge t t ing
the
presc r ip t ions
you
st ll
had
the
Quaaludes
in
your
possess ion?
MR
O CONNOR:
You're t a lk ing
about the
1970s?
MS
TROIANI: I 'm
t a lk ing about the Quaaludes.
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MR
O CONNOR: In the 70s . That s the only
t ime
he got them.
BY
MS TROIANI:
Q. Did you ge t
Quaaludes
a f t e r
the
70s?
MR
O CONNOR:
You
asked
t ha t
and
he
sa id
no.
MS
TROIANI:
You do
not
i n t e r ru p t
a
depos i t i on to t e s t i f y , which
i s
what
y o u r e doing. That i s
a
c l e a r v i o l a t i o n of
a
federa l
ru le .
(9 /29/05 , 90)
There i s no doubt t ha t
defense counsel
i s
not
permi t t ed to
change
the
meaning
of
a
quest ion ,
as
Mr.
O Connor
did
in
the
above
sequence.
When the unders igned at tempted to cont inue
the
ques t ion ing the
fo l lowing
occurred:
(At
t h i s
t ime, the cour t r ep o r t e r read back from
the record
as
reques ted . )
BY MS
TROIANI:
Q.
Did
you,
s i r ?
A.
What
was
my
i n s t ruc t ion before you a l l s t a r t e d
arguing? I m so r ry .
Q. I
d o n t
know.
I f your lawyer i s
i n s t ruc t ing you not
to
answer t ha t , then
you
c a n t answer t ha t .
MR
O CONNOR:
The i n s t ruc t ion was, and it s been asked and
answered,
was
with
T --- - in
1976.
The
witness
t e s t i f i e d
he
got
Quaaludes dur ing t ha t
t ime f rame. There
was
seven
presc r ip t ions
over a
per iod of years . You re now asking
Quaaludes, he kept
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those Quaaludes I guess in
the
80s, 90s and
year
2000. I f
t h a t s
your
ques t ion
whether he kept
any
presc r ip t ions from the
70s
f i l l e d by
t h i s
deceased
doctor , I ll
al low you
to answer
because
t h a t s
a r e levan t ques t ion .
MS TROIANI: That wasn t
my
ques t ion .
BY
MS TROIANI:
Q. Did you
ever
obta in Quaaludes again
from
any
o ther
source a f t e r
the ones
tha t you had
been
given in
the
presc r ip t ion
tha t
were
no
longer ava i lab le
to
you?
MR
O CONNOR:
What
t ime
frame?
Don t
answer
the
ques t ion .
BY
MS
TROIANI:
Q. Have you
ever
go t ten any presc r ip t ions from
any
o ther
doc tor which drugs
would
have a s imi la r e f f e c t to
Quaaludes?
MR O CONNOR: During what t ime frame?
MS TROIANI:
The
t ime
frame
we
have
here
i s
from
the
1976
when
we
have the f i r s t
Jane Doe
tha t
we ve
been
discuss ing through the
year
2004.
MR O CONNOR: I th ink
t h a t s
i ncor rec t . The only Jane
Doe
tha t
t a lks about Quaaludes i s T-- - - .
I f
you have other Jane Does -
MS TROIANI: I m
not
t a lk ing about Quaaludes.
MR
O CONNOR:
I f
there are
any
other
Jane
Doe
tha t t a lks
about
any
o ther
drugs, I wi l l al low tha t ,
but the re i s none.
And
you re suggest ing the re
i s
from 76 to 2005.
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MS
TROIANI:
Mr. 0
1
Connor
1
you re de l ibe ra te ly
d is rup t ing
t h i s
depos i t ion .
w
you have
made tha t pos i t ion c lea r .
I
be l ieve
t ha t
you
are
wrong.
We do
not
agree t ha t the drug t ha t
was given
to our
c l i en t
was Benadryl.
We
have
the r igh t
to explore
1
espec ia l ly
now
t ha t your
c l i en t has
admit ted i l l e g a l l y
obta in ing
another drug
1
which
could
have
a
s imi la r
ef fec t .
We have
the
r i gh t to explore whether or
not
he has done t ha t
1
i f
tha t
i s
a
pa t te rn
in
h i s
l i f e .
MR
O CONNOR:
Here s
what you have
a
r igh t
to explore .
You
have
a
r igh t
to
explore
what he
gave
your
c l i en t .
MS
TROIANI: You
have made tha t pos i t ion c lea r .
And
now
l e t s
move
on.
MR
O CONNOR: I
wi l l not i n t e r f e r e .
You do
not
have a r igh t
to
suggest
tha t h i s
candid
admission
in
1976 t ha t he
gave
t h i s
T-- -
Quaaludes1
which seems
t o d i s tu rb y his admission
in
tha t
regard/ continued
through
2006.
That
I m not
going
to
al low
to
happen. St ick to
the
Jane Does
1
ask whatever
ques t ions
you want
and
move
on
to your c l i en t .
I f you
th ink she got Quaaludes
from
the
70s
1
ask
the ques t ion .
MS TROIANI: You
have sa id
tha t severa l
t imes
1
s i r .
I
wi l l ask
you to
s top
d is rup t ing
t h i s depos i t ion .
I assure you tha t a l l
of
these
i n t e r rup t ions wi l l
be
brought
to
the cour t .
You
are
c l e a r ly in v io l a t i on
of
the federa l
ru les .
BY
MS
TROIANI:
2
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Q.
Have you
obtained
drugs , any type of drug
tha t
would
have the same
type
of e f f ec t as Quaaludes from any source s ince
the
t ime
you
got
the
Quaaludes
to the
t ime
t ha t
you
no
longer had an assoc ia t ion with our c l i en t ?
MR O CONNOR:
I m
ins t ruc t ing him
aga in not to
answer.
MS. TROIANI:
Tha t s f i ne .
You
keep
d is rup t ing
t h i s depos i t ion .
MR O CONNOR: I
have
a r igh t
MS. TROIANI:
No, you
do not .
You ve done t severa l
t imes. We
wi l l
move on.
MR
O CONNOR:
Let
me
expla in
one
th ing .
You
want
me
to
s top
t h i s
depos i t ion? I
have
a
r igh t to put my objec t ion on
the
record.
MS. TROIANI:
You have done
t ha t . You do
not have
tha t
r i gh t .
You repeated
severa l
t imes. This
i s
enough. Now,
l e t s move on.
MR
MS
MR
MS.
MR
MS
MR
MS.
O CONNOR:
TROIANI:
O CONNOR:
TROIANI:
O CONNOR:
TROIANI:
O CONNOR:
TROIANI:
No
one i s
going t o t h rea t en me, Dolores .
This
i s enough.
I v e
had enough of you
with your - -
I f
you want to walk out , you go ahead.
I m not walking
out .
Stop
i n t e r rup t ing .
Do
not ever t a l k to
me
tha t way aga in .
Stop
i n t e r rup t ing .
( 9 / 2 9 / 0 5 , 92-98)
The
i ssue of Defendant s wil l ingness and a b i l i t y to ob ta in
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an
i l l e g a l
drug
fo r
sexual purposes i s c r u c i a l
to
P l a i n t i f f s
case .
Defense counse l was unscrupulous i n h i s
t o t a l di s rega rd
fo r
not
only the Federa l Rules o f Civ i l
Procedure
but a l so the
Pennsylvania
Code
of
C i v i l i t y .
Coun se l s
conduct does
not
represent
advocacy.
I t i s tu rn ing a d ep o s i t i o n i n to a
ca rn iva l
and in t h a t
sense
t
i s
a
degradat ion
o f the process
which
lawyers
t ak e an
oath to uphold. At t h i s poin t in t ime, desp i t e a
prev ious w r i t t en agreement
to
the
con t ra ry , counse l took the
p o s i t i o n
t ha t
he would
not permit
the
depos i t i on
of the
defendant
to
con t inue
beyond
4:00
p.m.
t h a t
day.
I t
was c l e a r l y
h is
in t en t i o n
to consume l a rge per iods of t ime
by
i n ces s an t and
r e p e t i t i v e speaking
objec t ions .
3 ST TEMENT
TO POLI E OF RULE 415 WITNESS
Defendant
was
ques t ioned
about
a
Rule
415 w i t n es s
s ta tement ,
in which
she
s t a t e d t h a t a t
age 19,
she met defendant
who
had
sex
with
her
a f t e r
giv ing her
Quaaludes .
Her
s ta tement
was ambiguous about
whether
o r
not they
cont inued to see each
o t h e r o r s imply
met again
two
y ea r s
l a t e r .
Defense
counse l
r ep ea t ed l y i n t e r j e c t e d
himsel f
in to
the tes t imony, giv ing
h is
ve rs ion of the
i nc iden t
and
once again denying
the
a p p l i c a b i l i t y
o f
Rule
30 c) to the proceed ings .
TH
WITNESS:
A.
Th a t s
her s t a tement .
I d o n t know. How many y ea r s
ago
are
we t a l k in g about? 197 what?
14
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MR
O CONNOR: 6.
BY MS.
TROIANI:
Q. You thought
t
was l a t e r than
t ha t ?
MR
O CONNOR: He
met
her
two
years
l a t e r .
THE WITNESS:
A.
I meet Ms Redacted) in Las Vegas. She meets me
back
s tage .
I give h e r
Quaaludes. We
then have
sex.
I do
not
I
c a n t judge
a t t h i s
t ime what
she
knows about h e r s e l f
fo r
19
years , a pass ive persona l i ty .
9/29/05,
76-77)
A.
T- - - - - was sweet in
her
persona l i ty . As f a r as I was
concerned
was well-mannered,
d i d n t
demand o r give a
fee l ing t ha t
she was above anyone.
I f anything,
I
t h ink
she
may
very wel l
have
been
very happy to be
around the
show
business surroundings .
Q. Sta r s t ruck?
A. You l l
have
to
ask
her .
Q. So,
you
wouldn t disagree with her when she says in
the
repor t t h a t she
was
s t a r s t ruck?
MR O CONNOR: Objec t to the form. He
j u s t
answered the
ques t ion . He s a i d
ask
her . Then you asked the
same
ques t ion
again . I objec t to the form o f
the
ques t ion .
MS.
TROIANI:
Q.
You
can
answer.
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THE WITNESS:
A. What am I doing?
MR O CONNOR:
You can answer.
I objec ted to the form. You
a l r ead y
answered
it.
She
s a i d
do
you
agree wi th
her
a f t e r you
a l r ead y s a id you
have
to ask her .
ques t ion .
I
t h ink
h e s answered your
THE WITNESS:
A. Yes
you
have
to
ask
her ,
please .
BY MS. TROIANI:
Q. Now,
she
seems
to
say
in
t h i s
repor t
t h a t
a f t e r
t ha t
i n i t i a l meeting she d i d
not
see you again u n t i l she was 21; i s
t h a t cor rec t ?
A. I
have
no idea .
MR O CONNOR: The ques t ion seems she unequivoca l ly s t a t e s .
It s
an incor rec t s ta tement . She s t a t e s she spent a two-week p e r i o d
with
Mr.
Cosby a t Lake Tahoe
when
she
was
21.
BY
MS.
TROIANI:
Q. I d o n t t h ink it s c l e a r whether o r
not
you saw her in
between t h a t
t ime.
And you
d o n t
know if you saw h e r from the
t ime o f the i n i t i a l con tac t u n t i l
when
she met you
in
Lake
Tahoe?
MR
O CONNOR: I
d o n t
even
t h ink
he t e s t i f i e d he
met
her
a t Lake
Tahoe. I m read in g
the s t a tement .
MS. TROIANI:
It s cross -examinat ion .
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MR
O CONNOR: I objec t
to
the form
of the ques t ion because
it
assumes he t e s t i f i e d to t ha t .
( 9 / 2 9 / 0 5 , 78-80)
In
t h i s
ins tance ,
counsel
gives
hi s
opin ion of
the ques t ion ,
coaches hi s c l i e n t with
an
answer which the Defendant
immediately
adopts
and then recaps hi s vers ion of
the
previous
test imony.
4
DEFENDANT S RELATIONSHIP WITH
WILLI M MORRIS GENCY
Defendant t e s t i f i e d t ha t he ca l l ed Tom I l l u s of the
Will iam
Morris
Agency
and
asked
him
to
send
money to
one
of the
Rule
415
witnesses . He t e s t i f i e d
t ha t Mr. I l l u s
did not ask him why. He
then
t e s t i f i e d :
Q.
Have
you ever asked him in the pas t to
send
money to
women?
A. I m not sure .
Q.
Had
you
ever
had
a
d i scuss ion
with
him
concerning
t h i s
process where he would ac t as a
conduit
for you to
send funds to
o the r people?
MR
O CONNOR: I f you r e s t r i c t it to Jane Does
I ll
al low
him
to
answer the ques t ion
o r
to Andrea.
MS TROIANI: I be l i eve
the cour t
sa id we
can delve i n to
o the r
i s sues
in h i s
l i f e concerning
o the r
women
t ha t
he
may or may
not
have
paid .
MR
O CONNOR: I d o n t be l i eve so.
The
problem i s it s a
ques t ion
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of p r ivacy fo r o the r
consen t ing adu l t s ,
if it s
occurred .
I
don ' t
t h ink
it
would be
appropr i a t e .
The
judge
says it i s , we ' l l
ab ide .
I
don ' t
t h ink it s appropr i a t e t o
br ing ,
if
t he re a re
o t h e r
women with
a
consen t ing
r e l a t i o n sh i p , i n t o
t he
s i t ua t i on .
MS. TROIANI: You
d o n ' t
know t ha t t he y ' r e
consen t ing adu l t s .
Mr.
Cosby be l i eves Andrea
consen ted . She
does not . T h a t ' s your
i s sue . We ve go t to know who they a re so we can
f i nd
out
from
them.
MR
O CONNOR:
We do
know who
they are . There ' s 11 o f
them
and
you ' r e
on
the
second one.
( 9 / 2 9 / 0 5 ,
83-84)
In t h i s passage, counsel was c l e a r l y c lu ing the witness to
on ly t e s t i f y about
the
11 women, they
be l i eve
are known to t he
P l a i n t i f f , and to not r evea l any o the r s . He a l so gave Defendant
the
c lue
concern ing uconsent ing adu l t s , which Defendant then
used
i n h i s
responses .
5
QU STIONS REQUESTING EXPL N TION OF PR VIOUS
NSWER
BY
MS. TROIANI:
Q. Mr. Cosby, d i d you be l i eve t ha t T - - - - - -
P-- - - -wou ld
go
to t he
pres s
with her s t o r y when you sen t he r the money?
A No
Q.
You
sa i d
t ha t
a f t e r you
go t
of f
t he
phone you were
angry and
you
thought about it.
What were
the p o s s i b i l i t i e s t ha t
you
thought
about?
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MR O CONNOR: Object
to
the form of the ques t ion . You can
ce r t a in ly ask him what went through
h i s
mind i he r e c a l l s .
BY MS. TROIANI:
Q.
What
d id
you
t h ink
about?
MR
O CONNOR: I f anyth ing .
MS. TROIANI: He j u s t sa i d he
did .
(9 /29 /05 , 86-87)
Although
defendant even tua l ly answered the ques t ion , it was
improper fo r defense counsel
to
i n t e r j e c t
h imse l f
i n to the
ques t ion ing .
I f
he
had an
ob jec t i on to
form, he
need
only
have
sa i d the one
word. I t
i s then P l a i n t i f f ' s counse l ' s
dec i s ion as
to whether o r not to rephrase the ques t ion . In add i t i on ,
Defendant had
j u s t
t e s t i f i e d t ha t he
thought
about t he c a l l a f t e r
he got of f
of
the phone and he
decided
to
send
t he c a l l e r money.
In view o f t ha t tes t imony Defense counse l ' s comment,
I f
anything
cannot
be
defended under
any
c i rcumstances .
6. QUESTIONS REG RDING
ST TEMENT
TO POLI E
OF
NOTHER RULE
4 5
WITNESS
BY
MS. TROIANI:
A. She says she
met
you 24 years ago a t
a hea l th c lub in
Las Vegas
where she worked
as a masseuse. Do you r eca l l meeting a
woman who
was
a
masseuse?
A.
No.
Q.
She
was
about 27 years
o ld . You have no
reco l l ec t ion
of t h i s
woman a t
a l l ?
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A.
No.
MR
O CONNOR:
I t
says
she was 25.
MS TROIANI: I m looking a t her
s tatement .
(9/29/05,
99-100)
After
the
i n t e r rup t ion , the
quest ioning
continued as fol lows:
A.
I
d o n t understand what I m
supposed
to say never
happened. How do
I
know she was
in
a
dream-l ike
s ta te? I s n t
t ha t
in t rospec t ive?
MR
O CONNOR:
Do you r eca l l t h i s
woman
or
not?
THE
WITNESS:
No.
MS
TROIANI:
Sir , do not in te r rupt my cross-examinat ion.
MR
O CONNOR:
Will you
please s top
t e l l i ng me what my
r igh ts I
r esen t it
He
answered
he d i dn t r e c a l l t h i s
woman
and ye t you
go on.
MS
TROIANI:
You re
not
to
in te r rupt
my
cross-examinat ion.
You
could not
do
it
in
cour t ,
you
c a n t do
it
here .
MR
O CONNOR:
Of course
I
could
do
it in cour t .
MS
TROIANI:
No, you cou ldn t .
MR
O CONNOR: I
d o n t know the
l a s t
t ime
you ve
been
in
cour t .
MS
TROIANI: Please
do not get
persona l .
(9/29/05, 103-104)
Again,
defense
counsel chose
a
very
low
road.
Undoubtably
f rus t r a t e d by his c l i e n t s
apparent incons i s tenc ies ,
he
r eso r ted
to personal at tacks which inc reased
in frequency,
as his c l i e n t s
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tes t imony become
more
and more unbel i evab le .
BY MS TROIANI:
Q.
Are you
t e l l i n g
us
t ha t t h i s woman has made up t h i s
s to r y
about
you
having sex
with
her?
MR
O CONNOR: Don t
answer.
I
objec t t o
the form o f
t ha t
ques t ion .
He doesn t
r e c a l l
the woman. I f t h a t s h i s tes t imony,
then
he
c a n t
t e s t i f y to what you asked.
(9/29/05, 104)
There can
be
no j u s t i f i c a t i o n fo r
counsel
ac tua l ly answering the
ques t ions .
BY MS TROIANI:
Q. So,
you
are
saying
then t h a t you
never
encountered a
woman, whether o r
not
you remember what her name was, in Las
Vegas t h a t you
had
dinner
with
her , gave
her
a shot of a lcohol
and t ha t you had
sex
with her a f t e r tha t?
MR
O CONNOR:
That
wasn t
your
e a r l i e r
ques t ion
t ha t
he
sa id
no
to . I t
was
t o t a l l y
d i f f e r e n t . Now
you ve
rephrased
t
to
a
whole
d i f f e r e n t s i t ua t ion . So,
in f a i rnes s
to the wi tness , you
can
answer.
Th a t s
a t o t a l l y
d i f f e r e n t
ques t ion .
(9/29/05, 106)
The
Defendant
obedient ly fo l lowed
h is counse l s
l ead
and
responded
by
d i s s ec t i n g
the
two
ques t ions .
7
DEFENDANT S REFEREN E TO PREVIOUS
TESTIMONY
The
depos i t i on began
in the a f t e rnoon o f
September
28, 2005.
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Defendant was
ques t ioned about a dinner par ty he
had
a t
h i s home.
The
dinner
gues t s inc luded
P l a i n t i f f
and
high
l eve l
admin i s t ra to r s from Swarthmore College
and
the Univers i ty
o f
Pennsylvania . Defendant a t
f i r s t s t a t e d
tha t
he d i d not
want
to
revea l the
names o f
the othe r dinner gues ts .
Upon f u r th e r
ques t ion ing ,
he
s t a t e d t h a t he did
not
know the
names of the
gues t s othe r than P l a i n t i f f .
The
unders igned s tone of vo ice
was
incredu lous and the
fo l lowing
day Defendant appeared
to
imply
t h a t he did know the names
and
t ha t I was cor rec t t h a t he
d e l i b e ra t e l y
withheld the
names and
the
fo l lowing
occurred :
TH WITNESS:
A. People
come
to my
house
what?
Q
People come to your house whose
names
you d o n t
know.
You
t o ld
us
yes te rday t ha t you d i d n t know the
names of the
people who were a t the d inner . So people
do
come to your
house
t h a t
you
d o n t know o r
remember a t
t h i s
poin t?
A.
Yes.
I s a id t ha t
yes te rday ,
but you know
what
I
was
doing yes te rday .
Q
No
I
d o n t . What were you doing
yes terday?
A.
Never
mind i you d o n t
know.
I d o n t know t h i s
man.
This man
came
to my house. I d o n t know him.
Q
Are you
sugges t ing
t ha t
yes te rday
you were
d e l i b e ra t e l y not t e l l i n g
us
the
names o f
the people a t
Swarthmore?
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A. I m
not
sugges t ing anyth ing .
MR O CONNOR: That i s
so
outrageous and inappropr ia te . I m
going to take a break. I may ca l l
the judge
on t h i s . I m
not
going
to
put
up
with
t h i s
crap
okay?
I am
t i r ed
of
you
insu l t ing t h i s witness and
hi s vorac i ty
(sic) .
And i f
you
cont inue
wi th it,
I m
shut t i ng
it down.
MS. TROIANI: I m here to t e s t
hi s vorac i ty ( s i c )
MR O CONNOR: You b e t t e r
not
cha l lenge it in t h i s fashion.
MS. TROIANI: He
j u s t
sa id I knew what
he
was
doing
yes terday .
And
I
asked
him
a
fol low-up
ques t ion .
MR
O CONNOR: He
answered
your
ques t ion
about who
at tended
dinner pa r t i e s and
he i den t i f i ed what t he i r pos i t i on was
and then
he
couldn t r eca l l
t he i r names. And you r e sugges t ing t h e r e s
some l inkage here .
BY MS
TROIANI:
Q.
What did
you
mean
by
I
knew
what you were
doing
yes te rday?
MR
O CONNOR: Who was doing? What you were doing?
MS
TROIANI:
back.
You unders tand my
ques t ion . I ll
have her read it
(9 /29/05, 116-118)
I t
was
apparent
t ha t
defense counsel
was
concerned
as
to
what hi s c l i e n t
was about
to
admit i however, tha t does
not
j u s t i f y hi s
language,
nor
i s it appropr ia te advocacy
to a t t ack
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opposing
counsel
persona l ly .
8
COUNSEL S
MISST TEMENTS
OF EVIDENCE
BY MS TROIANI:
Q.
So, t h i s would
have
then occurred
in
the
1990s;
i s
t ha t cor rec t?
A. I m not sure about the year or the decade
of the
Turn
of the Century engagements.
MR O CONNOR: You know t h a t s 21 years ago.
Why
would you say
tha t?
I don t ge t t h i s .
MS. TROIANI:
Si r ,
please
do
not
give
c lues to
the
c l i en t .
MR O CONNOR: I have
to
read the s ta tement , because as
you well
know
t ha t we put
on
the record -
MS TROIANI: I m
done.
You cannot
i n t e r ru p t
the depos i t ion .
Stop
i n t e r rup t ing
the depos i t ion .
MR O CONNOR: I
apologize . I m
sorry .
MS TROIANI:
Thank
you.
MR O CONNOR: Should I
go to my corner?
BY MS
TROIANI:
Q. L e t s ge t
back to Beth F e r r i e r .
MR O CONNOR:
Don t mis lead
t h i s
witness .
You know
when
she met
him.
MS TROIANI: I am
not mis leading
a
witness .
MR O CONNOR:
You re de l ibe ra te ly mis lead ing
the witness
on
Beth
F e r r i e r . It s over
20 years ago.
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BY
MS.
TROIANI:
Q. Did you not t e l l me t ha t you
knew
Jo F a r re l l in
the 1990s?
9/29/05,
121-122)
Defense counse l
heard
Defendant c la im to have meet Jo
F a r re l l
in
the 1990 s .
Beth
F e r r i e r
was in t roduced to Defendant
by
Jo Fa r r e l l .
Again,
c o u n s e l s
method o f c lu ing the Defendant
t h a t
he was
being i ncons i s t en t was to
a t t a ck opposing
counse l
and
once again p rov ide c o u n s e l s v e r s i o n of the even t s .
T h e rea f t e r ,
Defendant
was
ques t ioned
about
an newspaper
a r t i c l e in which Beth F e r r i e r
revea led her
encounter
with
Defendant .
BY
MS.
TROIANI:
Q.
So,
you
know t ha t
s h e s
s t a t i ng
t h a t
you
gave
her
drugs
in o rd e r to have sex
with her?
MR
O CONNOR:
Point
t ha t
out ,
please .
Give
me
a
r e f e ren ce
b efo re we al low
the ques t ion .
MS.
TROIANI: H ere s your
f avor i t e cof fee ,
something
I made
fo r
you
to
r e l ax you.
MR O CONNOR: This
i s
the quote she gave to the newspaper.
9/29/05,
126)
BY
MS.
TROIANI:
Q. Do you
r e c a l l
doing
t ha t ?
A. And what
happened?
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Q.
Do you
r e c a l l t ha t ?
A.
Excuse
me. I
gave
her
drugs,
you sa id , am I cor rec t ?
Q. Yes.
A.
Okay.
Then
you
read,
h e r e s
your
f avor i t e
cof fee .
Q. Th a t s because your
counsel
s a i d
he
wanted it
poin ted
out to him, not to you.
MR
O CONNOR: Because
the repor t
never
s a i d t ha t .
Okay.
T h a t s
the
f a i rnes s
t h a t s
not
going on here .
MS.
TROIANI: I m
read ing
from
the newspaper a r t i c l e .
MR
O CONNOR:
I t
d o e s n t
say
drugs,
it
says
cof fee ,
then
she
passed out .
MS.
TROIANI: I t says , about
21
years ago a f t e r she
ended a
month
long consensual a f f a i r with the e n t e r t a i n e r , she sa id , he
rugge
h e r
when
she v i s i t e d
him
b efo re a performance
in
Denver . Is t ha t
not what it says , Mr. O Connor?
MR
O CONNOR:
Give
me
the
re fe rence .
THE WITNESS:
What
paper i s i t ?
MR
O CONNOR:
Nicole
Egan, the
Dai ly
News.
Which r e f e ren ce
are
we
here so
I
can
fo l low t h i s ? She
t a l k s about
cof fee .
MS. TROIANI: I m look ing a t
the
fo u r t h paragraph. You
have the
a r t i c l e
in
your own fo lde r . I v e given you ano ther
copy.
MR
O CONNOR: I
have
it
now.
BY MS. TROIANI:
Q. I ll
read t h i s to
you.
About
21
years ago a f t e r
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she
ended a
month long
consensual
a f f a i r
with
the
e n t e r t a i ne r ,
Beth
Fe r r i e r
says
he
drugged
her when she
v i s i t e d him
before
a
performance
in
Denver.
Do
you agree
with tha t?
A
No
MR
O CONNOR:
Read on.
BY MS.
TROIANI:
Q. He sa id , h e r e s your
f avo r i t e
coffee , something I made
t o r e l a x
you.
Do you r eca l l saying tha t?
A No
Q.
She
says
she drank
the
coffee ,
became
woozy
and
next
t h ing she knew severa l hours had passed and she had
no
memory of
what happened. Did an
i nc iden t l i ke t ha t ever
occur with
Beth
Fer r i e r ?
(9 /29 /05 , 126-128)
I t
i s extremely doubtfu l t ha t Mr. O Connor had such
d i f f i c u l t y
reading
the
newspaper
a r t i c l e .
Fur ther ,
t h i s
i s
another i l l u s t r a t i o n of the Defendant s
s t r a t egy ,
t ha t
i s ,
a t tempt to d i ve r t a t t e n t i on
from
h is misdeeds by cons tan t ly
accus ing
opposing counsel of
imagined
misconduct , in
t h i s
case
c la iming
the ques t ion was unfa i r because the
a r t i c l e
d id not say
t ha t Defendant drugged
Ms.
Fe r r i e r
when i n fac t
t
did . Lawyers
.
should
address
one
another
with
appropr ia te
decorum and
not
disparage t he i r pro fes s ion with wild and unfounded accusa t ions
aga ins t one another . To advocate on a
c l i e n t s
behal f i s to
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address the
fac t s
of the case ,
not
to lodge
unfounded
accusat ions
a t opposing counsel .
9 DEFENDANT S VI W
OF
TH DAILY N WS
The
Beth
Fer r i e r
a r t i c l e
was
read
to
Defendant
and
he
was
given
the oppor tuni ty
to
admit
or deny what
Ms.
Fer r i e r sa id .
Ins tead ,
he a t tempted to d igress
from
t ha t
l i ne of ques t ion ing by
c la iming t ha t the a r t i c l e was
w r i t t e n
so as to engender p i t y for
Ms. Fer r ie r .
Q.
So,
newspaper?
He was ques t ioned as fo l lows:
your
objec t ion i s t ha t they put it in
the
A. No, my ob jec t ion i s t ha t t h i s i s a newspaper
piece
as
t o ld to and
it s
her
desc r ip t ion of
whatever it
i s a t
the end of
something.
MR O CONNOR:
He s
denied
under oath
the bagel s tory . T h a t s
the
po in t . He s
al ready
t e s t i f i e d to t ha t .
( 9 / 2 9 / 0 5 ,
140)
In
fac t ,
t ha t
was not
the po in t
t ha t
h i s c l i e n t
was making.
This
t ime
Mr.
O Connor was
unsuccessfu l in re- focus ing
h is
c l i en t
and
the
fo l lowing ensued:
Q. So, am I
unders tand ing t ha t
your poin t
i s t ha t
the
press i s manipu la t ing
publ ic
opin ion wi th t h i s
s tory?
A. Don t say
t ha t .
Say
t ry ing to ,
because
when
you
leave
it, it s sor t of l i ke t h i s sorrow s tory of
a
woman, she l e f t
without saying good-bye. The good-bye could have been when he
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sa id you have to
l eave .
Q.
So, the
s tory i s accura te , you r e j u s t objec t ing to
what?
MR O CONNOR: Object to the form.
MS. TROIANI: I want to
unders tand
what you r e saying. You
d o n t
have to t e s t i f y to what h e s
saying.
BY MS TROIANI:
Q. Can you
answer t ha t ques t ion?
MR
O CONNOR:
No.
Wait.
MS. TROIANI:
You
do
not
t e s t i f y ,
Mr.
O Connor.
T h a t s
enough
of
your t e s t i fy ing .
MR
O CONNOR: Young lady.
MS
TROIANI:
MR O CONNOR:
MS
TROIANI:
MR
O CONNOR:
MS. TROIANI:
MR
O CONNOR:
MS.
TROIANI:
what
to
say.
ques t ion?
MR
O CONNOR:
MS TROIANI:
Thank
you but no.
What occur red here i s Mr.
Cosby has a l ready
-
al lm
counselor or Ms.
Troiani .
Ms. Troiani ,
he
t e s t i f i e d
a l ready
t ha t
he
-
Oh - -
Let me f in i sh .
He s
going
to t e s t i f y , you r e going to t e l l
him
I wi l l not
l e t
you
f in i sh .
Do you objec t to
my
Yes.
Fine.
(9 /29 /05 , 141-143)
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Again, in the con tex t o f a l ega l proceeding, t
i s
improper fo r
counsel to address one
another
except
by
terms which emphasizes
t h e i r
profess iona l i sm.
those
te rms.
Certa in ly , young
lady
i s
not one o f
On t h i s
occas ion ,
the unders igned
preven ted
Mr.
O'Connor
from
t e s t i f y i n g
and
obtained an answer to
the
ques t ion ,
but
defense
counsel
s imply
seethed
and re loaded :
Q. What happened
when
you saw her
in
Denver?
A. I guess we met.
had
MR
O CONNOR:
Don' t guess .
occurred ,
t e l l her .
I can only imagine t ha t we met and
I f you have
a
reco l l ec t ion o f
what
THE WITNESS:
I
d o n t r e c a l l .
BY MS. TROIANI:
Q. You
d o n t
r e c a l l what
happened?
A.
I
d o n t .
Q. She says what happened i s t ha t you gave her cof fee ,
which she b e l i ev ed was drugged and t h a t somehow she
ended up
in
a
car
in a
park ing
l o t
and t ha t she
be l i eves
t h a t you had had
sexual con tac t with h e r while she was unconscious?
MR O CONNOR:
That
was a l r ead y asked
and answered.
You want him
to
go
over
t
again?
MS. TROIANI: He
sa id he d o e s n t
remember.
BY MS.
TROIANI:
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Q. You don t
remember
t ha t occur r ing?
MR O CONNOR:
Don t answer
t ha t ques t ion . You ve
answered t ha t
ques t ion and we re not going to answer it again.
I ll
s tand on
t ha t .
You
d i d n t
l i ke
hi s
f i r s t
answer,
now you r e t ry ing
to
get
another .
BY
MS TROIANI:
Q. Do you
remember
being in a car
with
her?
MR
O CONNOR:
He s
a l ready answered t ha t .
MS TROIANI: No, he
has not .
THE
WITNESS:
No.
MR
O CONNOR: The record w i l l
r e f l e c t
t ha t you answered a l l
those
ques t ions .
BY
MS TROIANI:
Q. Do you know whether
o r
not you had sexual contact with
her a t t ha t t ime
in Denver
when she came to meet you
in
Denver?
A. Probably.
( 9 / 2 9 / 0 5 , 144- 146)
I t
i s conceded
t ha t
asking the same
ques t ion repeated ly can
become oppress ive .
But to
ask the
same
ques t ion
twice,
pa r t i cu la r ly
in
t h i s
case where the
answers
were of ten
incons i s t en t ,
i s simply an appropr ia te form of c l a r i f i c a t i o n .
10
DEFENSE COUNSEL S ASSERTION
O
ATTORNEY-CLIENT PRIVILEGE
Defense counsel inappropr ia te ly asse r t ed the
a t t o rne y -c l i e n t
p r i v i l e ge i n circumstances when it c l ea r l y
did
not apply . Afte r
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lunch
he reversed
hi s pos i t i on somewhat, but
by
then
P l a i n t i f f
had i ncu r red
the
expense of
the
cour t repor t e r
and
her
a t t o rne y s
t ime as
Defendant
wasted a lmost an hour by asse r t i ng a pr iv i l ege
when
he
knew
it
was
improper
to
do
so.
BY MS. TROIANI
Q. When
was
the
f i r s t
t ime
t ha t
you knew
t ha t Beth
Fe r r i e r
would give
a
s ta tement
to
the
press?
A.
Q.
A.
Q.
A.
Q.
was
i t ?
A.
Q.
Maybe about
e igh t ,
nine months ago.
How d id you know tha t?
I
got
a
c a l l
about
it.
From
whom?
I
hope I m accura te , counsel .
You
have four counsel
s i t t i n g
here . Which counsel
I t was Marty
Singer .
What
d id
he
say
to
you
in
t ha t ca l l ?
MR
O CONNOR:
Please
don t answer t ha t .
It s
a t t o rne y -c l i e n t
p r i v i l e ge . You
know
t i s .
I t s
absurd
THE
WITNESS:
Would
she do tha t?
(9 /29 /05 , 147-148
An a t to rney t e l l i n g h is
c l i e n t what
a
t h i rd
p a r t y s a i d
i s
no t
pr iv i l eged ;
however,
even
i f defense counsel
bel ieved
t ha t
he
was cor rec t , he should be proh ib i t ed from making remarks such as
the
one
reproduced
above.
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BY MS. TROIANI:
Q. What was Mr Singer
r ep re s en t i n g
you in when he
ca l l ed
you?
MR
O CONNOR:
Don t
answer
That
pr iv i l ege .
It s
an a t t o r n ey - c l i en t
MS. TROIANI: What he
was
r ep re s en t i n g him in?
MR O CONNOR: Yes
BY MS. TROIANI:
Q. How
long
has Mr Singer represen ted you?
A
Cer ta in cases .
Q.
What
was
the case
t h a t was
occur r ing a t the t ime t ha t
he ca l l ed and
t o l d you about the Beth F e r r i e r account?
***MR. O CONNOR:
It s
a t t o r n ey - c l i en t p r i v i l eg e .
Q. What did
you
do as a r e su l t o f phone c a l l
from
Mr
Singer?
MR
O CONNOR:
Don t
get
i n t o
t ha t
if
it
was
pursuan t
to h i s
adv ice . It s a t t o rn e y -c l i e n t
p r iv i l eg e ,
as you
wel l know It s
a very c leve r way o f pie rc ing
it,
b u t w e re not going to al low
him to
divu lge those conf idences . So
move
on
MS. TROIANI:
I need a
response from him
You t o l d him if it
was
as
a
r e s u l t .
MR
O CONNOR:
Your
ques t ion
was
as
a
r e s u l t .
MS. TROIANI: What he did a f t e r t ha t ?
MR O CONNOR: Yes He
was
ac t ing pursuan t to
counsel
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presumably.
BY MS. TROIANI:
Q. Were
you ac t ing
pursuan t to
c o u n s e l s
adv ice ,
Mr.
Cosby whatever
you did?
MR
O CONNOR: Whatever
you did
wi thout saying
what
t
was.
THE
WITNESS:
I d o n t even know
what
the ques t ion was.
BY
MS.
TROIANI:
Q. I asked
you how
did
you
f ind out about Beth F e r r i e r
going publ ic with
her
s ta tement and you t o l d me
you
got a c a l l
from
Marty
Singer?
A.
Right .
Q.
I asked
you what you did a f t e r
t h a t
phone ca l l ?
MR
O CONNOR:
I t was objec ted
to .
MS. TROIANI:
Counsel
i s saying i f
you
ac ted pursuan t
to
h is
adv ice , then
what you did he be l i eves you
cannot
t e l l
us.
THE
WITNESS:
That
i s
co r r ec t .
BY MS. TROIANI:
Q. Would
you
agree to waive
your
a t t o r n ey - c l i en t
p r iv i l eg e i n
t h i s
rega rd?
A. Can
we
go to lunch?
Q. I t ak e
t ha t you
w i l l not?
A.
I
r e fu s e
to
waive.
Q.
Afte r you rece ived
the
phone c a l l from
Marty Singer , d id
you make any ar rangements with the Nat iona l Enqui rer to give
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an in te rv iew?
MR
O CONNOR:
Don t
answer any
ques t ion
about
whatever
you and
Mr. Singer
discussed
o r what you
did
as a r e s u l t of those
di scuss ions .
MS. TROIANI: I
d i dn t
ask
him
tha t . You may answer
the
ques t ion .
MR O CONNOR:
No, you may
not .
MS TROIANI: Are you t e l l i ng
me
t ha t I cannot ask
him about
h is
Enquirer
a r t i c l e ,
which
i s
the subjec t
of
the defamat ion
claim?
MR
O CONNOR: I
d i d n t
say
tha t .
I
sa id
you
cannot invade
the
a t t o rn e y -c l i e n t p r i v i le g e .
MS. TROIANI: No one i s t e l l i ng
him
to
invade
the
a t to rney-c l i en t
p r iv i l ege .
MR O CONNOR: Lis t en to your
ques t ion .
MS. TROIANI: Would
you
read back
my
quest ion?
(At
t h i s
t ime,
the cour t
repor t e r
read
back
from
the
record
as
reques ted . )
MR O CONNOR:
Don t answer
the ques t ion as
phrased. It s
c l e a r ly pursuant
to
advice .
MS TROIANI: I t i s not pursuant to h i s advice .
MR O CONNOR: Rephrase your
ques t ion
because the way
t ha t
ques t ion
i s
phrased
it
would
be,
a f t e r you
t a lked to
him, what
did
you do.
We re
not
going
to al low
him
to
do
t ha t .
BY
MS. TROIANI:
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Q.
Did you know
about
Beth
F e r r i e r s i n t en t ion to give a
s tory to
the
National Enquirer a t any
t ime
in your en t i r e l i f e?
MR O CONNOR: I f you
did
not
l ea rn
about it through your
a t to rneys .
I f you
l earned
about
it
through
another
source ,
I
wi l l
al low
you to answer.
MS TROIANI: I
d i sag ree
with t ha t .
BY MS TROIANI:
Q. I need to know, did
you l ea rn
from any
source t ha t
Beth
Fer r i e r was going to give a s tory to the National Enquirer?
MR
O CONNOR:
You
can
only
answer
i f
you
l earned
from
a source
o the r than your at torney . We re not going to
al low
the
a t t o r ney - c l i en t
pr i v i l e ge
to
be
p ie rced .
BY MS
TROIANI:
Q. Can you
answer
tha t?
A.
~
(9 /29/05,
150-154)
Q. Did
someone
negot ia te your
in terv iew
with
the
Enquirer?
MR
O CONNOR: Don t
answer
t ha t
ques t ion
i it was an at torney .
I f it
was
not
an
at torney , you can
answer the ques t ion .
Q.
You did
have - - then my
ques t ion was
can you
answer
the
ques t ion . You
do
have
a
wri t t en con t r ac t
with
the
Enqui re r then?
A. Yes.
BY MS
TROIANI: Are you
t ak ing the
pos i t i on tha t t ha t i s a l so
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pr iv i l eged , Mr. O Connor?
MR
O CONNOR:
Yes,
j u s t
l i ke
Ms.
F e r r i e r s
con t rac t was. I
would cons ider exchanging her con t rac t
and
her payment.
MS. TROIANI: I d o n t have anything from her .
MR O CONNOR: I m not going
to
al low
anything
l i ke tha t to ge t
in . I
al lowed him
to answer
the ques t ion
t was a con t rac t .
I m
not
going
to al low
him
to divu lge the
discuss ions
he and h is
a t to rney had
with
the
Enqui rer
in
connect ion wi th
the
a r t i c l e .
BY MS TROIANI:
Q. Was the re anyone
e l se present
a t to rney
has
j u s t s a id t ha t the re were
now
your
pre sen t
he wi l l not a l low
you
to
revea l d i scuss ions
t h a t
you
and
your
a t to rney had with the
Enqui rer . Was the re anyone
e l se present when these discuss ions
occurred?
A. No.
Q.
Wasn t
the re
a
r ep resen ta t ive
from
the
Enquirer
presen t?
MR
O CONNOR:
Of course .
THE WITNESS: Not
wai t
a minute.
What
did I j u s t t e l l you?
BY
MS TROIANI:
Q. No, s i r , you have to answer
my
ques t ion .
A.
No,
I
j u s t
t o ld
you
no.
And
then
you
sa id ,
now
wait a minute, w as n t
the re .
Q. Did you
ever nego t ia te
with anyone
from the
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Enqui rer about
t h i s
a r t i c l e ?
MR O CONNOR: I f you did so
wi thout
an a t to rney .
MS. TROIANI: I f he did so with
an
a t to rney p re sen t and t h e r e s a
t h i r d
pa r ty ,
t h e r e s no
a t t o r n ey - c l i en t p r i v i l eg e
and you
know
t ha t .
MR
O CONNOR:
Th a t s
a f a l s e s ta tement o f
the
law.
MS. TROIANI: Okay. I f t h a t s your pos i t ion , t h a t s your
pos i t ion .
MR O CONNOR: It s an i ncor rec t s ta tement o f the law.
BY
MS.
TROIANI:
Q. Were
you paid fo r the
a r t i c l e
t ha t
appeared in
the
Nat ional Enquirer?
***MR. O CONNOR: I f
it s pursuan t to nego t i a t ion you
and
your
a t t o rn e y had, I m
not
going to al low
the
him to
answer.
BY MS. TROIANI:
Q.
Did you
make
any agreement
with
the
Enqui rer
t ha t
if
they
d i d n t
p r in t
Beth
F e r r i e r s
s to ry
you would
give
them
an
in te rv iew?
MR O CONNOR: Don t answer the ques t ion if it was pursuan t to
d i s cu s s i o n s between your a t to rney .
BY MS. TROIANI:
Q.
Are you
not
answering
the
s i r ?
MR
O CONNOR:
H e s
i n s t r u c t ed
not
to .
BY MS. TROIANI:
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Q. Had
you
a t any
poin t th rea tened
to
sue
t he Nat iona l
Enquirer?
A Yes
Q. Did you sue them?
A
No
Q. What prompted you
then
to give t h i s newspaper t h i s
s tory?
***MR. O CONNOR: I f it s pursuan t to i n s t ruc t i ons
from
your
a t to rney , do not answer You can phrase ques t ions t ha t
would
s top
t h i s
ob jec t i on .
BY MS. TROIANI:
Q. Are you dec l in ing
to answer?
A Yes
Q.
Without r evea l ing
any
discuss ions
with your
a t to rney ,
can you t e l l me what thoughts went through your mind t ha t caused
you
to
give
t h i s
i n t e rv iew
to
the
Nat iona l
Enquirer?
A
No
MR O CONNOR: I f
MS. TROIANI: You cannot
MR O CONNOR: I
have
a r i gh t to ob jec t .
MS. TROIANI: He
sa id
he c o u l d n t t e l l me
MR
O CONNOR:
T h a t s
L e t s
break
fo r
lunch
( 9 / 2 9 / 0 5 ,
154-161)
Following the lunch break , some of the ob jec t i ons
to
the l i ne of
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ques t ioning
were withdrawn and defendant
reversed
h i s e a r l i e r
pos i t ion in which
he
reneged
on
the agreement
to
f i n i s h h i s
depos i t i on a t ano ther date , i f we did
not
conclude on
September
29.
However
Pla in t i f f
and
her
counsel wasted over
an
hour
while Defense Counsel in te rposed objec t ions t ha t
were
so c l e a r ly
specious tha t Defendant had to
reverse
h i s pos i t ion .
P l a i n t i f f
should not
be
pre judiced
by
t h i s
behav ior
and Defendant should be
requi red
to
re imburse her for
the
expenses incurred
during
t h i s
exerc i se .
Af ter
the
lunch break
Defendant
admit ted
t ha t
he
agreed
to
give an
exc lus ive in te rv iew
to the National Enquirer in exchange
for t he i r agreement
to
not pr in t the Beth
Fer r ie r
s to ry .
He was
then quest ioned as
to
h i s knowledge
of
the Beth Fer r ie r
s to ry ,
as
fol lows:
Q.
Has someone
read
the
s to ry to
you the National
Enquirer
s tory?
A. Yes.
Q. And
how
r ecen t l y
was
tha t?
A. That was
with
counsel .
I s t h i s the Nat iona l
Enquirer
s tory?
Q. Yes.
A.
That
they
never
pr in ted?
MR O CONNOR:
No
t h i s i s
my s to ry .
THE WITNESS:
I d o n t
know what s h e s t a lk ing
about then.
I
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thought
she was
t a l k in g
about Beth F e r r i e r ' s
s to r y i n
the
Nat iona l .
What was
the
ques t ion asked?
9/29/05 , 166-168)
In
fac t ,
the ques t ion ing
concerned
the
Beth
F e r r i e r
s to r y
but
Defense Dounsel i n t e r j e c t e d
my
s to ry , which was the title of
the
a r t i c l e
t h a t defendant gave to the Enqui rer .
BY
MS TROIANI:
Q. I ll
c l a r i f y t ha t .
That ' s
f a i r .
Did
someone
read to
you
Beth ' s
s to r y t h a t
she
had given
to
the
National
Enquirer?
A.
Yes.
Q.
When was tha t?
A. That
was
before
it
was supposed
to
come
out .
Q.
Did
she
say anyth ing
i n tha t
s to ry
d i f f e r e n t than
the one t h a t we
reviewed t h i s morning?
A.
I
t h ink t h a t
I w i l l
not
say anyth ing
because it
was
read
to
me
by
my
counsel .
MR
O'CONNOR: I was j u s t advised, and I want to
put t h i s
on
the
record ,
by Mr.
Schmitt t ha t
h is
understanding of t ha t
a r t i c l e
came through
an a t to rney-c l i en t re l a t ionsh ip
with
h i s counsel .
MS TROIANI: Marty Singer?
MR
O'CONNOR: I
t h ink
a
d i f f e r e n t lawyer.
MS. TROIANI: Who
i s
the
lawyer?
MR O'CONNOR: I
t h ink
it might be Mr. Schmit t ,
so
let s not
t ry
to go the re . 9/29/05,
169-170)
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Defendant t e s t i f i e d t ha t he was
given
the Beth F e r r i e r
s to ry , which
was pending
pub l ica t ion in
the
Enquirer
fo r
h is
review.
I t was h i s reading t h i s
s to ry
which
prompted
him
to make
the deal
with
the
Enquirer
to
pr in t
h i s
s tory , ins tead .
I t
i s
t h a t
s to r y
which i s the
subjec t
of
the defamat ion c la im.
Incredibly ,
Defendant asse r ted
the a t to rney
c l i e n t
pr iv i l ege
as
to ques t ions about the Beth F e r r i e r s to r y because t was read to
him
by
h i s lawyer. Not
only
i s the pr iv i l ege
not
app l i cab le
because the Beth F e r r i e r s to ry i s not
a
conf iden t ia l
communicat ion,
t
i s
a l so
not
appl icable
because
the
pr iv i l ege
cannot be asse r ted when the a t to rney i s p a r t i c i p a t i n g in the
t o r t .
Rhone-Poulenc
Rorer
Inc. V Home
Indemni ty Co.
32
F.3d
851
3d.
Cir . 1994)
The asse r t ions of pr iv i l ege to the
circumstances surrounding
Defendant ' s National Enquirer
s to r y
are
pa r t i c u l a r ly egregious .
At
the hear ing before
t h i s
Honorable Court
on
September
27, 2005,
P l a i n t i f f ' s In te r roga to ry 21 was addressed. The in te r roga to ry
reads :
Describe a l l communicat ions by you with the Enquirer
r e l a t i ng
to
P l a i n t i f f ' s a l l ega t ions , inc lud ing why
and
when
you
gave
an
exc lus ive
in te rv iew on February
21,
2005,
and any conversa t ions o r communicat ions preceding same.
Attach
a
copy of any
communicat ions
o r agreement reduced
to
wri t ing regarding the
exc lus ive
in te rv iew.
The
Court , in
a s s i s t i ng
counsel
to reach
an
agreement ,
determined
t h a t
t h i s was an appropr ia te a rea
fo r
inqui ry ,
es p ec i a l l y
in
view
of
the f ac t t h a t P l a i n t i f f
be l ieved
t h a t Defendant had t raded
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up.
That
i s , he used
h i s c e l e b r i t y s t a t u s
to
induce the
Enqui rer to pr in t the def amatory a r t i c l e r a t h e r than
the
one
which
by
h i s
own
admiss ion
l ends
c r e d i b i l i t y
to
P l a i n t i f f ' s
a l l eg a t i o n s .
11
QUESTIONS
ON ERNING DEFENDANT S STORY
The
Nat ional Enqui rer a r t i c l e
o f
Defendan t ' s
s to r y
was read
to
Defendant and he was
then ques t ioned as to whether
o r
not
he
had
a c t u a l l y
made the
s ta tements
in the a r t i c l e . I t was the
i n t en t i o n
o f P l a i n t i f f ' s counsel to asked Defendant to exp la in
each
s ta tement .
The
a r t i c l e i s one
o f
the
bas i s
o f
P l a i n t i f f ' s
defamat ion claim.
BY
MS. TROIANI:
Q.
Did you
say t ha t
the charge can in f luence the view
t ha t
family and
f r i ends
have o f him meaning you as a good person and
a person to
be
t rus t ed? I 'm
se t t i n g
up your
quote .
the
charge
can
in f luence
I t does
say
MR O CONNOR:
Dolores
with a l l due
re spec t ,
it s t a r t s ,
no man
wants to
see
h is fami ly .
MS. TROIANI:
I ll
ge t the re .
BY MS. TROIANI:
Q. Did you t e l l
them
because some o f the th ings you s a i d
are in
quotes ,
and
some
o f
it
i s
j u s t
the
s to ry .
MR
O CONNOR:
This
i s
in quotes , too , Cosby dec la red no
man.
MS. TROIANI:
It s
a l so
in
quotes , the
charge
can - -
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MR. O CONNOR: I want it in context . That s a l l I m saying. His
quote
s t a r t s with no
one
wants
to see
h i s
family put
in the
p o s i t i o n
o f having these
kin