7:53am PT by Eriq Gardner
Bill Cosby: New York Magazine Has Waived Right to Withhold Interviews With Rape Accusers
As Bill Cosby takes to an appeals court to fend off a criminal prosecution for aggravated indecent assault, and as the embattled entertainer dukes it out in court with seven women who accuse him of defamation, he's pushing New York Magazine to turn over full interviews and other unpublished material from its July 2015 cover article titled "I'm No Longer Afraid." In response to a subpoena, the publication is asserting privilege under New York's Shield Law. Today, Cosby's attorneys told New York federal judge Judge Paul Crotty that the publication is not playing by the rules and thus has waived its ability to invoke privilege.
"I'm No Longer Afraid" is the award-winning story that featured 35 women sharing their stories of being sexually assaulted by Cosby. The subjects of the article were photographed and videotaped, and Cosby hopes to get his hands on these testimonials for the purpose of potentially identifying inconsistencies that will aid him in depositions and at trial.
New York Magazine considers the subpoena to be "broad and overreaching," and tells the court that to overcome a law intended to further the autonomy of the press, Cosby must show the information is highly relevant, that he cannot present a defense or pursue claims without it and such information cannot be obtained from another source. The publication submits that Cosby hasn't met his burden.
The interviews were apparently done on-the-record, and Cosby is pointing out that the information is not confidential. As such, Crotty's ruling could set some precedent.
Cosby also has a technical argument in support of his subpoena demands. His attorneys say that as a threshold matter, to be in compliance with federal rules of civil procedure, New York Magazine must produce a privilege log, or a listing of the various materials it wishes to withhold as privileged. Without doing so, the publication "has thus waived any qualified reporter’s privilege that could be applicable," according to Cosby's memorandum filed yesterday.
New York Magazine has pointed to how preparing such a privilege log would be chilling. It quotes one judge in a prior case as saying that "the heavy costs of subpoena compliance would be a significant issue if reporters have to immediately prepare a privilege log upon being served with a subpoena," and in any case, adds that Cosby has no need for a privilege log because it's clear what's being shielded.
The magazine also warns that to accept Cosby's at-large position, "every journalist who has covered the important public controversy over the Cosby accusations would be denied the reporter’s privilege. The result would be a chilling effect not only on the media, which would have to weigh the burdens and costs of responding to endless such demands before pursuing matters of public interest, but also on crucial media sources — in particular in this case, victims of sexual assault who would be even more likely to avoid sharing their stories."
Cosby maintains that this isn't a fishing expedition, that the materials being sought are critical and necessary to challenge the published statements of his female accusers. He can't get specific yet, but that's because he doesn't know what's in the unpublished materials, he says. To insist that he establish the information is helpful to him with certainty is "unfair," he maintains.
"This is not a situation where granting Mr. Cosby’s motion will result in the subpoenaing of every news outlet that has reported on Plaintiffs’ case against Mr. Cosby," the entertainer's lawyers told the judge. "What is critical here are Plaintiffs’ own recorded words. Unlike other news outlets repeating statements made by Plaintiffs’ lawyers or spokespeople, [New York Magazine] spoke directly to Plaintiffs about their allegations, videotaping at least two Plaintiffs in the process. Plaintiffs’ statements to [New York Magazine] may reveal descriptions of the alleged assaults by Mr. Cosby that differ from prior or future versions of these accounts."
In Massachusetts, a federal judge recently refused to stop the defamation case while the criminal one in Pennsylvania plays out. The judge, though, did allow that the Fifth Amendment would limit Cosby's own testimony. As for the criminal charges, Cosby was denied a petition of habeas corpus that maintained that the proceeding should be dismissed based on a prior deal with the former district attorney. Cosby has applied to the Superior Court of Pennsylvania for a writ of prohibition to prevent the trial court from conducting further proceedings. An interim stay has been issued. Last week, Cosby filed his opening appellate brief with a response due May 11.