Case 2:16-cv-00508-ER Document 13 Filed 02/17/16 Page 1 of 73 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA WILLIAM H. COSBY, JR. Plaintiff, Civil Action No. 16-508 v. AMERICAN MEDIA, INC., DOLORES M. TROIANI, BEBE KIVITZ, ANDREA CONSTAND AND GIANNA CONSTAND Defendants. ORDER AND NOW, this day of 2016,upon consideration of the Motion of Plaintiff William H. Cosby, Jr. to File His Complaint Under Seal, and the response in opposition thereto by Defendants Bebe Kivitz and Dolores M. Troiani, it is hereby ORDERED that Plaintiffs Motion is DENIED. DeadlineBY THE COURT: J. Case 2:16-cv-00508-ER Document 13 Filed 02/17/16 Page 2 of 73 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA WILLIAM H. COSBY, JR. Plaintiff, Civil Action No. 16-508 v. AMERICAN MEDIA, INC., DOLORES M. TROIANI, BEBE KIVITZ, ANDREA CONSTAND AND GIANNA CONSTAND Defendants. ANSWER BY DEFENDANTS BEBE H. KIVITZ AND DOLORES M. TROIANI IN OPPOSITION TO PLAINTIFF'S MOTION TO FILE HIS COMPLAINT UNDER SEAL Defendants, Bebe H. Kivitz and Dolores M. Troiani, hereby oppose the motion of plaintiff William H. Cosby, Jr. to file his complaint under seal. For the reasons set forth in the accompanying brief, Bebe H. Kivitz and Dolores M. Troiani request this court deny plaintiffs motion to file his complaint under seal. WHEREFORE, Defendants Bebe H. Kivitz and Dolores M. Troiani respectfully request this Honorable Court deny plaintiffsDeadline motion for leave to file his complaint under seal. Respectfully submitted, ls/Jeffrey B. Mccarron Jeffrey B. McCarron Eitan D. Blanc SWARTZ CAMPBELL LLC 1 Two Liberty Place, 28 h Floor 1 50 South l 6 h Street Philadelphia, Pa 19102 Phone: (215) 564-5190 Fax: (215) 299-4301 Case 2:16-cv-00508-ER Document 13 Filed 02/17/16 Page 3 of 73 [email protected] [email protected] Attorneys for Defendants, Bebe H Kivitz and Dolores M Troiani Dated: February 16, 2016 Deadline 2 Case 2:16-cv-00508-ER Document 13 Filed 02/17/16 Page 4 of 73 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA WILLIAM H. COSBY, JR. Plaintiff, Civil Action No. 16-508 v. AMERICAN MEDIA, INC., DOLORES M. TROIANI, BEBE KIVITZ, ANDREA CONSTAND AND GIANNA CONSTAND Defendants. MEMORANDUM IN SUPPORT OF THE ANSWER BY DEFENDANTS, BEBE H. KIVITZ AND DOLORES M. TROIANI, IN OPPOSITION TO PLAINTIFF'S MOTION TO FILE HIS COMPLAINT UNDER SEAL I. Introduction This is an action by William H. Cosby, Jr. against Dolores M. Troiani, Bebe H. Kivitz, Andrea Constand, Gianna Constand, and American Media, Inc. ("American Media"). Cosby asserted claims for the alleged violation of the confidentiality provisions of a settlement agreement. Cosby moved for leave to seal his complaint against defendants to shield from disclosure the information relevantDeadline to the validity of his accusations against defendants concerning breach of the confidentiality provisions. To grant Cosby's motion will prevent the public from possessing the ability to objectively assess Cosby's accusations against defendants. Cosby is requesting this Court permit him to make public accusations while restricting the ability of the public to learn the information relevant to his accusations. The question before the Court is whether Cosby's motion to file this action under seal should be granted even though Case 2:16-cv-00508-ER Document 13 Filed 02/17/16 Page 5 of 73 Cosby 1) did not establish any specific cognizable injury which would result from public access to the tenns of the settlement agreement at the heart of this action; and 2) did not establish good cause for filing this action under seal where Cosby gave multiple statements to the media regarding the underlying claims and settlement and where Cosby accused Troiani and Kivitz of criminal or unethical conduct. Troiani, Kivitz, and the public have a great interest in a public adjudication of this matter with the benefit of access to the settlement agreement at the heart of this action. The interests of Troiani, Kivitz, and the public outweigh Cosby's non-existent or diminished interest in litigating this action without public access to the document which forms the basis for his public accusations of wrongdoing against defendants. The Court is without good cause to seal away the information critical to an assessment of the validity of Cosby's public accusations. II. Factual Background A. Underlying Constand Action In 2005, Andrea Constand, through her attorneys, Troiani and Kivitz, commenced a civil action ("underlying action") against Cosby. PL Mem. of Law at p.1-2. Cosby is an internationally known American comedian and actor, and self styled public moralist. Pl. Mem. of Law at p. l. The claims assertedDeadline against Cosby were for battery, sexual assault, intentional and negligent infliction of emotional distress, defamation/defamation per se, and false light invasion of privacy. In 2006, a separate action was commenced by Andrea Constand, through Troiani and Kivitz, against Martin Singer and American Media. PL Mem. of Law at p.2. In October 2006, both actions concluded following settlement. Id. On October 16, 2006, all parties to the actions entered into and executed a settlement agreement. Id. The settlement 2 Case 2:16-cv-00508-ER Document 13 Filed 02/17/16 Page 6 of 73 agreement provided for the release of all claims in exchange for, among other things, financial consideration. Id. The settlement agreement contained a confidentiality provision. Id. The settlement agreement was achieved between the parties to the actions without obtaining Court approval. The settlement agreement was not filed with the Court. Id. B. Order Permitting Release of the Transcript of Cosby's Deposition Approximately eight years after settlement, The Associated Press requested, pursuant to Local Rule of Civil Procedure 5.1.5, that documents related to underlying sanctions and discovery motions be unsealed. See Constand v. Cosby, 112 F.Supp.3d 308, 309-311 (E.D. Pa. 2015). The documents sought by The Associated Press included excerpts of Cosby's deposition in the underlying action. Id. Cosby opposed the request by The Associated Press and the matter was briefed and argued before the Court. Id at 311-312. The Court considered whether the release of the documents requested by The Associated Press would infringe Cosby's right to privacy. Id. at 315-316. The Court held that Cosby voluntarily narrowed the zone of privacy he is entitled to protect because he "donned the mantle of public moralist" and publicly volunteered his views on childrearing, family life, education, and crime. Id. at 315-316. The Court held the public had a significant interest in the matters at issue due to the "the stark contrastDeadline between Bill Cosby, the public moralist and Bill Cosby, the subject of serious allegations concerning improper (and perhaps criminal) conduct." Id. The Court held the public's interest in gaining access to the documents outweighed Cosby's diminished privacy interest. Id. The Court considered Cosby's contention that releasing his deposition testimony would undermine Cosby's reliance on the confidentiality provisions of the settlement agreement. Id. at 3 Case 2:16-cv-00508-ER Document 13 Filed 02/17/16 Page 7 of 73 318. Cosby's reliance on the confidentiality provisions was not justified because 1) the Court was not presented with the settlement agreement or asked to retain jurisdiction over the confidentiality portion of the agreement and 2) the Court was not asked to permanently seal discovery when the action settled. Id. Because Cosby did not seek the Court's imprimatur on his intent to keep the sealed documents from ever "seeing the light of day," the Court held Cosby's reliance on the confidentiality provision of the settlement agreement was misplaced. Id. In so holding, the Court rejected Cosby's argument the release of the documents would have a chilling effect on other settlement agreements. Id. at 318 n.21. Cosby failed to articulate any specific, cognizable injury that would result from the documents release to the public. Id. at 319. The Court held Cosby did not carry his burden of showing good cause and, accordingly, overruled Cosby's objection to the request by The Associated and entered an order that the documents be unsealed. Id. The Court Reporter who transcribed the Cosby depositions mistakenly released the deposition transcripts in their entirety, without notifying any party to the Settlement Agreement. See Complaint at ,-r 53. 1 C. Cosby and His Representatives Engage in Public Relations Campaign Beginning in 2014, Cosby and his representatives engaged in a public campaign to support Cosby's public personaDeadline as a moralist and to discredit the many women who accused Cosby of unwanted sexual contact with them. On or about November 16, 2014, Cosby, through his attorney, released a statement. In the statement, Cosby announced the "decade-old, 1 Troiani and Kivitz, and their attorneys, do not have access to the sealed docket and therefore are unable to properly cite to the ECF document number. 4 Case 2:16-cv-00508-ER Document 13 Filed 02/17/16 Page 8 of 73 discredited allegations against Mr. Cosby have resurfaced. The fact that they are being repeated does not make them true. Cosby does not intend to dignify these allegations with any comment."2 On November 23, 2014, Cosby, while speaking with Florida Today, said he didn't "have to answer to innuendos."3 Further, "[p]eople should fact check. People shouldn't have to go through that and shouldn't answer to innuendos." Id. On November 20, 2014, Cosby asked The Associated Press to scuttle on camera comments in which he questioned the integrity of The Associated Press for inquiring about the allegations against Cosby.4 Cosby commented, "we thought the AP had the integrity not to ask." Id.