First Cosby Unsealed Doc

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TROIANI/KIVITZ,

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~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ T T O R N E Y S T L W ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

DOLORES

M. TROIANI, ESQUIRE

BEBE

H.

I


2/66

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

Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 2 of 66


3/66

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


Patrick J O Connor, Esquire

Cozen O Connor

1900 Market Street


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



4/66

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

-1-



5/66

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 .

-2-



6/66

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

-3-



7/66

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

-4-



8/66

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 .

-5-



9/66

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

-6-



10/66

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



11/66

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)

-8-



12/66

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.

-9-



13/66

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

-10-



14/66

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.



15/66

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



16/66

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

-13-



17/66

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



18/66

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.

-15-



19/66

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 .

-16-



20/66

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

-17-



21/66

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?

-18-



22/66

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 ?

-19-



23/66

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



24/66

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.

-21-



25/66

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?



26/66

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

-23-



27/66

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.

-24-



28/66

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?

-25-



29/66

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

6



30/66

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

7



31/66

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

-28-



32/66

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)

-29-



33/66

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:

-30-



34/66

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

-31-



35/66

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.

-32-



36/66

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

-33-



37/66

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

them



38/66

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:

-35-



39/66

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



40/66

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

-37-



41/66

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:

-38-



42/66

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

-39-



43/66

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

40



44/66

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)

4



45/66

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

42



46/66

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 - -

4



47/66

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

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