Patrick O’Connor, one of the attorneys representing Bill Cosby, is vowing to get to the bottom of how The New York Times was able to obtain a decade-old deposition given by the comedian that almost everyone presumed was confidential. He even hints at legal action.
In its story on Saturday, the paper reported that despite an intense media effort to unseal documents in an old lawsuit brought by a female accuser, “the deposition itself was never sealed” and was in fact publicly available through a court reporting service.
“How that deposition became public without being court-sanctioned is something we are going to pursue and deal with very vigorously,” O’Connor told The Philadelphia Inquirer. “It’s an outrage that the court processes weren’t followed here.”
The Times story came on the heels of the release of excerpts of the deposition contained in court papers. Earlier this month, a judge agreed to a media motion to unseal some of the records in the case over Cosby’s objections. But until the Times obtained it, nobody but the parties involved and the one who transcribed it had a copy of the full transcript of the deposition, which according to the newspaper, showed Cosby presenting himself “as an unapologetic, cavalier playboy, someone who used a combination of fame, apparent concern and powerful sedatives in a calculated pursuit of young women.”
The Hollywood Reporter has spoken to several attorneys who express astonishment the deposition wasn’t marked confidential and under a protective order. Although transcripts are presumed to be in the public record unless specific steps are taken, some legal observers wonder whether professional etiquette at very least meant the court reporter should have contacted the parties before any release was made.
But was the Times accurate in saying the deposition was never sealed in the first place? This question isn’t merely about reporting things accurately. Possible civil or criminal contempt charges could hang in the balance if a court order was violated.
In recent weeks, insiders in the legal fight over Cosby’s alleged sexual misconduct have been acting as if there wasn’t any question about the deposition being sealed.
For example, after an attorney representing women presently suing Cosby for defamation attempted to subpoena documents, Cosby’s lawyers brought a motion to quash.
“Discovery in the Constand Litigation was largely conducted privately, and discovery materials were submitted to the court, as necessary, under seal,” Cosby attorney George Gowan wrote in court papers on June 2. “Indeed, on November 4, 2005, the Court issued an order acknowledging that the ‘depositions [of the parties] were taken in private’ and ordering that ‘all requests for discovery, responses and legal memoranda filed pursuant to this order shall be filed UNDER SEAL.”
Here’s a copy of the judge’s order that Gowan referenced. In later proceedings, after the Associated Press intervened and Cosby’s lawyers asked for blanket protection, the judge sidestepped the issue by noting that “a right of access does not attach to documents exchanged by parties or any of the pretrial discovery that is not filed with the court.”
Then on July 8 in the wake of the unsealing of excerpts, the attorney for Andrea Constand — the woman who sued Cosby and conducted the deposition before the case was settled — asked the judge for injunctive relief.
“In that [Cosby’s reps] has chosen to ignore the confidentiality provisions of the settlement agreement, Plaintiff requests that this Honorable Court release the entire deposition transcripts and further release plaintiff and her counsel from those same provisions which defendant has chosen to ignore,” wrote Delores Troiani in a court filing.
Five days later, an attorney for one of Cosby’s other accusers Beth Ferrier filed a motion in support: “Unsealing Defendant’s complete deposition transcript will allow Ms. Ferrier to understand and, therefore, defend against Defendant’s statements against her.”
That same day, attorney Gloria Allred filed papers in the Pennsylvania case in what appeared to be a prelude to an attempt to pry loose more about what Cosby had said. But if what the Times says is accurate, all anyone had to do — not just members of the media, but also notably aggressive attorneys like Allred — was to call the court reporter anytime in the past decade.
Asked about whether documents were truly sealed, a New York Times reporter who worked on the story said it was a pending legal matter and referred THR to the paper’s communications department.
The paper’s spokesperson responds, “The Times legally obtained the transcript from a court reporting service. The judge in the case had declined in 2005 to enter a confidentiality order making the depositions confidential so there was no court order sealing the testimony, then or now. Once we obtained the transcript, we were free to report on Mr. Cosby’s testimony. “