Cosby 68
Cosby 68
TROIANI/KIVITZ, L.L.P.
- - - - - - - - - - - - - - - A T T O R N E Y S KI' L A W - - - - - - - - - - - - - - DOLORES M. TROIANI, ESQUIRE
BEBE H. KIVITZ, ESQUIRE
January 5, 2006
(Hand-Delivered)
RE:
g
lbe H.
Kivitz
BHK:m
Enclosure
cc:
Patrick J. O'Connor, Esquire (w/enclosure-first class mail)
Andrew D. Schau, Esquire w/enclosure -first class mail)
Andrea Constand (w/enclosure - first class mail)
: CIVIL ACTION
: NUMBER 05-1099
: FILED UNDER SEAL
1"1
By: I (
Dolores M roiani, Esqui
I.D. No. 283
Bebe H. Kivitz, Esquire
I.D. No. 30253
38 North Waterloo Road
Devon, Pennsylvania 19333
(610) 688.8400
: CIVIL ACTION
: NO. 05-CV-1099
: FILED UNDER SEAL
Plaintiff Andrea Constand submits the following Reply Memorandum of Law in support
of her Motion to Compel. The arguments presented here are limited to the privilege issues raised
by the National Enquirer. Further briefing in connection with the service issues is unnecessary
because the National Enquirer concedes the facts necessary to conclude that service was proper:
it admits that it has a New York office, and that half of its staff works there; and it admits that a
process server left a copy of the subpoena with the (only) receptionist at the National Enquirer
address of record, after a person named "Mark" declined to retrieve It from the receptionist's
desk. See, Introduction, National Enquirer's Memorandum of Law, at 1; See also,
Memorandum of Law, National Enquirer, at 8 and 11 ("The National Enquirer is located in New
York").
ARGUMENT
The Discovery Materials Sought by Plaintiff Should be Produced because Plaintiff is not
seeking Confidential Source Materials and to the Extent that National Enquirer has Made
Source Materials Public it Has Waived its Privilege.
Plaintiff has sued Defendant for defamation for statements he made to the media,
including those made in an exclusive interview published by the National Enquirer. Plaintiff
1
may also have claims against the media in connection with those publications. Therefore, what
Defendant said to the National Enquirer reporter, what he revised, if anything, and what he was
shown, are all relevant to Plaintiffs claims and to decisions concemingjoinder. The National
Enquirer is the only entity that possesses the notes of Defendant's conversations with National
Enquirer's reporter, Barry Levine, and the drafts of the Ferrier and Cosby interviews. Moreover,
although Mr. Cosby or his counsel presumably have an original or copy of the actual contract
Defendant entered into with the tabloid, Defendant has refused to produce it without a
confidentiality agreement.
The National Enquirer argues that all unpublished information related to Defendant's and
Beth Ferrier's interviews are confidential and protected. Under the circumstances presented here,
however, the National Enquirer's position is without merit. Defendant testified at his deposition
that he learned from Martin Singer, Esquire, his representative, that Beth Ferrier, another woman
accusing him of sexual misconduct, had made a statement to the National Enquirer. (Cosby dep.
9129105, p. 148, Exhibit A). In response, Defendant and the National Enquirer entered into a
written agreement wherein Cosby agreed to an exclusive interview with the National Enquirer in
exchange for the National Enquirer's agreeing to kill the Beth Ferrier story. (Cosby dep. 9/29/05,
pp. 155-156, 161, Exhibit A). At the time of the agreement, Defendant was aware of Beth
Ferrier's
and may have been aware of a polygraph taken by her at the request of the
National Enquirer. (Cosby dep. 9/29/05, p. 166-168, Exhibit A). Most importantly, Defendant
testified that he was read a draft of Beth Ferrier's story by his counsel, Jack Schmitt, Esquire.
(Cosby dep. 9/29/05, p. 169, Exhibit A). Clearly, the National Enquirer had voluntarily disclosed
the Beth Ferrier story and the facts in connection with the story to the Defendant.
2
The National Enquirer's disclosure extends even further. Defendant testified that he was given
the opportunity to review his own interview before it was published. (Cosby dep. 9/29/05, pp.
171, 182, Exhibit A). According to Defendant, Barry Levine had accurately quoted him. Id. At
the deposition, his attorneys, including John Schmitt, Esquire, who accompanied Defendant at
. the meeting with the National Enquirer, stipulated that Defendant had, in fact, said everything
that the National Enquirer placed in quotation marks, as coming from him, in its published
interview. (Cosby dep. 9129105, pp. 172-173, Exhibit A).
The material that Plaintiff seeks, therefore, is vastly different than "source" material
protected by the Pennsylvania Shield Law. 42 Pa. C.S. 5942(a). Indeed, once a newspaper's
source materials are made public or disclosed to those outside of the newspaper, its privilege is
waived and will not protect the materials from disclosure to third parties. See, Steaks Unlimited,
Inc. v. Deaner, 623 F.2d 264, 278 (3d Cir. 1980) (shield law protects all sources of information
persons, documents, and recordings with exception of information for which privilege was
waived by actual publication or public disclosure) (citing Re Taylor and Selby Appeals, 412 Pa.
32, 193 A.2d 181 (1963)). See also Anderson v. Nixon, 444 F. Supp 1195 (D.D.C. 1978)
(Reporter waived the privilege by filing suit to vindicate his rights).
Accordingly, the National Enquirer may not assert a privilege over materials it has printed
or made public by revealing same to the Defendant or his agents. Once shared with nonnewspaper individuals, the Ferrier draft shown l2y the National Enquirer to Defendant and Mr.
Schmitt, cannot be deemed privileged. Similarly, Defendant's "draft" interview, whether revised
by him, or simply endorsed and adopted by him, has already been shown to Defendant and his
representative. Thus, it, too, can no longer be characterized as privileged.
Even assuming that the National Enquirer has not waived its privilege, Plaintiff does not
seek the identity of newspaper "sources". It is clear that the only sources are Defendant and Ms.
Ferrier themselves, and both agreed to have their stories published. Defendant's interview was
published in the National Enquirer; Ms. Ferrier's story was ultimately published by the
Philadelphia Daily News.
To the extent that the requested discovery materials contain source information related
to sources other than the Defendant and Ms. Ferrier, the law does not bar their production in a
defamation action. In Hatchard v. Westinghouse Broadcasting, 516 Pa. 184, 532 A.2d 346
(1987), in which plaintiff attempted to obtain videos prepared but not shown in a broadcast, the
Pennsylvania Supreme Court reviewed the scope of the protection offered by the Shield Law in
the particular context of a defamation suit. The Court refused to preclude disclosure of all
unpublished information in the media's possession, holding that "unpublished documentary
information ... is discoverable by a Plaintiff in a libel action to the extent [it] does not reveal the
identity of a personal source of information or may be redacted to eliminate the revelation of a
personal source of information. 516 Pa. at 195. This is so
action is against the media entity itself or some other person. Following Hatchard, the Court in
Davis v._ Glanton, 705 A.2d 879 (1997), held that the newspaper was required to produce
material, which had been used for a published article. The Court stated:
Regardless of whether the defendant in the defamation action is the media entity
itself or some other person, the public figure Plaintiff faces the same hurdle; the
burden of proving that a defamatory statement was maliciously published and that
the statement was false. If the media are permitted to withhold information that is
relevant to this burden, whether or not the media are themselves the Defendants, the
obstacles placed in the way of a plaintiff in attempting to vindicate his constitutionally
protected interest in his reputation are rendered almost insurmountable. 705 A.2d at
4
CONCLUSION
Accordingly, Plaintiff seeks the following:
1)
The contract entered into between Defendant and the National Enquirer concerning his
exclusive interview, which is not "privileged" and, of course, does not relate to sources.
2)
The notes of the reporter's interviews with Defendant, which are critical to Plaintiffs
defamation claim, and again, do not reveal - or can be redacted to eliminate - the identity of any
sources.
3)
The drafts and/or any revisions, endorsements, or mark-ups of the Cosby article and Beth
Ferrier article already shown to and read hy Defendant and his representative. Both articles are
relevant to Defendant's state of mind in making statements as to Plaintiff. The newspaper's
knowledge, Plaintiffs defamation claim, and Defendant's credibility. Once shown to nonnewspaper members of the public, the National Enquirer has waived its argument that any
privilege attaches to the above documents.
For all of the above reasons, Plaintiff respectfully requests that the National Enquirer be
ordered to produce the requested materials on an expedited basis.
Respectfully submitted,
TROI
VITZ, L.L.P.
Dolores M. Troiani
I.D. No. 21283
Attorneys for the Plaintiff
38 North Waterloo Road
Devon, Pennsylvania 19333
(610) 688.8400
5
vs -
:CIVIL ACTION
:NO. 05-CV-.1099
3
3
Pennsylvania.
.2
(215) 922-7112
:3
months ago.
Q.
A.
Q.
From whom?
A.
counsel.
Q.
sitting here.
A.
Q.
H
I
that call?
answer that.
Please don't
It's attorney-client
You know it is.
It's
absurd.
THE WITNESS:
Would she do
that?
BY MS. TROIANI:
Q.
I
T
MR. O'CONNOR:
privilege.
PT .:n l\T
"[;'171. 1\Wft ,
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, \. 11t 11 1111
Q.
Yes.
Q.
Don't answer
I cannot
I
B
I
BY MS. TROIANI:
Q.
Which
Your
interview, my story.
MR. O'CONNOR:
dramatic.
question?
That was
THE WITNESS:
Yes.
BY MS. TROIANI:
Q.
Please do.
A.
I did.
Q.
question.
You do have a written
a
9
Yes.
11
MS. TROIANI:
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ar
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it\.
Yes, just
I don't have
it was a contract.
KAPLAN,
LEAMAN n l\m
TAJ("\ T
i::;ii:;t
That's
Q.
return?
A.
agreement?
A.
Q.
I
8
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166
D
I
now?
N
D
E
A.
Yes.
Q.
At the
time
Q.
allegations were?
H
I
B
I
Q.
A.
given one?
MS. TROIANI:
THE WITNESS:
When did I
one.
"F
167
c
I
know this?
N
D
BY MS. TROIANI:
Q.
Q.
Who said?
A.
don't
remember who.
Q.
before
A.
somewhere.
MR. O'CONNOR:
the form.
I object to
H
I
I
T
your papers.
Q.
7\ .......
"c
169
I
N
asked?
BY MS. TROIANI:
Q.
That's
fair.
Did someone read to you
Beth's story that she had given to the
National Enquirer?
A.
Yes.
Q.
A.
A.
was just
: through an attorney-client
relationship with his counsel.
MS. TROIANI:
Marty Singer?
\.
H
I
I
T
MR. O'CONNOR:
0
R
172
Q.
I
N
D
E
.
1S
just the
story.
MR. O'CONNOR:
This is in
MS. TROIANI:
It's also in
I want it in
His
That's fine.
LEAM?l. l\T
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,._. _ -
x
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Yes.
MR. O'CONNOR:
We'll
That's fine.
I know that.
BY MS. TROIANI:
Q.
t:-'.
k
A.
Q.
yes.
A.
And
295-7.t=i71
I
8
I
T
: CIVIL ACTION
: NUMBER 05-1099
: FILED UNDER SEAL
CERTIFICATE OF SERVICE
I hereby certify that on, January 5, 2006, the undersigned were served in the following
manner, a true and correct copy of: Plaintiff's Motion For Leave to File A Reply
Memorandum of Law to The National Enquirer's Memo in Opposition to Plaintiff's
Motion To Compel Compliance with Subpoena Issued to the National Enquirer and
Memorandum of Law.
NAME
MANNER
Date: 1/5/06