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Bill Cosby will give a new deposition in the defamation case from Janice Dickinson over her allegations of sexual assault.
The former supermodel told Entertainment Tonight in November 2014 the comedian drugged her into unconsciousness and raped her. Cosby’s former attorney Martin Singer responded in a statement to the media calling Dickinson’s story “an outrageous defamatory lie” and “completely fabricated.”
Dickinson in May sued Cosby for defamation, claiming Cosby criticized her account “with the intent and effect of re-victimizing her and destroying the professional reputation she’s spent decades building.”
In a hearing Monday, judge Debre K. Weintraub ordered Dickinson will depose Cosby and Singer by Nov. 25 on whether they knew if her allegations were true before denying them to the press. The testimony will follow Cosby’s recent deposition in Judy Huth’s lawsuit (which will be sealed until a Dec. 22 hearing in which the sides will argue if the testimony should be public).
Claiming defamation over Cosby’s campaign of denial is the favored legal approach of the comedian’s accusers (though Huth sued for sexual assault claiming she only recently realized her psychological injuries from an assault in 1974). Cosby has moved to strike Dickinson’s complaint under California’s anti-SLAPP law (read here), which protects First Amendment-protected activity like free speech from improper litigation.
In September, Dickinson’s lawyers took aim at a less well-known feature of anti-SLAPP motions: they automatically halt most discovery efforts including depositions and subpoenas not dealing with the basis of the SLAPP.
In a motion to allow discovery (read here), Dickinson’s lawyers argue the defamation standard for a “public figure” requires she demonstrate “actual malice” from Cosby. To counter the anti-SLAPP motion, Dickinson must demonstrate the likelihood of winning on her claims. Thus she has to prove Cosby and Singer’s statements were “knowingly false or made with reckless disregard as to their falsity.”
The anti-SLAPP statute permits discovery to move forward for “good cause.” The importance of questioning Cosby and Singer on “actual malice” meets the standard, argued Dickinson, because the only way to establish that Cosby made “knowingly false” statements would be to question him about his knowledge.
Cosby’s lawyers opposed the motion (read here) by arguing that this didn’t meet the “good cause” standard. They also argued that statements about Dickinson couldn’t rise to “provably false factual assertions.”
In the hearing Monday, Judge Weintraub sided with Dickinson.
“The court finds that plaintiff has satisfied the prerequisite of provable false facts sufficient to permit discovery for actual malice,” she said.
“A reasonable fact finder could conclude the press statements declare provable false assertions of fact, a factual assertion that Ms. Dickinson is lying,” she continued. “In other words, either the rape did occur or it did not occur, and in this regard Ms. Dickinson is either telling the truth or not telling the truth.”
The judge found Dickinson’s argument of “good cause” for the depositions holds up for three reasons: Cosby and Singer possess the relevant information on the question of actual malice, the information could not be found elsewhere, and Dickinson has a legitimate need for the information to fight the anti-SLAPP motion.
“The court recognizes that the attorney client privilege may apply to some information the plaintiff may seek to elicit from Mr. Singer at his deposition, and plaintiff has not made a persuasive argument as to why Mr. Cosby could be deemed to have generally waived his attorney-client privilege,” she added.
Christopher Tayback, in one of his first court appearances since he replaced Singer on Cosby’s team weeks ago, argued at the Monday hearing that the anti-SLAPP motion — which the judge postponed until January — would resolve whether the case is valid on legal grounds before evidence comes into the picture. “Where there is a case that falls within the umbrella of a potential anti-SLAPP motion they should see whether it should be resolved as a matter of law on the anti-SLAPP motion,” he said.
“We only get one opportunity to file an opposition to anti-SLAPP motion,” responded Dickinson’s attorney Lisa Bloom, so opposing with the proper evidence is important. “The statute [and procedure to lift the stay] is designed for precisely this situation.”
Nov. 2, 9:55 a.m. Updated with context on the case.