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Bill Cosby’s prior deposition testimony must be unsealed


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pogilvy

By Patrick Ogilvy


A U.S. District Court in Pennsylvania has determined sealed deposition excerpts in a ten-year-old lawsuit against Bill Cosby must be unsealed and released to the public.

Allegations against Bill Cosby

The director of operations for a university basketball program filed a lawsuit against internationally known comedian and actor Bill Cosby, asserting claims of battery, sexual assault, intentional and negligent infliction of emotional distress, defamation, and invasion of privacy. During the course of the lawsuit, excerpts of Cosby’s deposition and related legal briefs in support of motions to compel discovery were removed from the public view by virtue of the court’s sealing order pending a full hearing on whether the documents should be permanently sealed.

In the temporary sealing order, the court stated the seal would lapse after the motions to compel were ruled on if the protection of the seal was not extended. The parties settled the case before the court ruled on the motion to seal.

Almost ten years later, the Associated Press sought to intervene in the settled case and have the Cosby deposition excerpts and other documents unsealed and made available to the public. While the director of operations did not oppose the request, Cosby did oppose it. The question is whether Cosby has shown good cause to keep the documents under seal.

Public view of discovery material

The court noted there is generally a presumptive right of the public to access material filed with a court in connection with motions, except in the case of discovery-related motions, which are generally private in nature. A party such as Cosby seeking to keep discovery material out of the public need only show good cause in order to protect the person from annoyance, embarrassment, oppression, or undue burden or expense. Such good cause must be based on current evidence to show how public dissemination of the materials now would cause the alleged harm to the person seeking protection.

Cosby asserted the deposition testimony under seal pertained to significant privacy interests regarding his sex life, health, medical history, prescription use, financial affairs, and personal relationships. The court found Cosby’s status as a public entertainer alone does not diminish his right to privacy. However, because Cosby, though his entertaining, has presented himself as a “public moralist” who readily volunteers his view on childrearing, family life, education, and crime, he has freely entered the public square on these issues and voluntarily narrowed the scope of his privacy.

Further, Cosby has been publicly and explicitly accused both in the present lawsuit and in two current lawsuits of sexual misconduct, and Cosby has responded publicly to deny these allegations and question the motives of his accusers. Cosby’s voluntary joining in this public debate further diminished his right to privacy.

The court also explained the AP has a significant interest in the deposition testimony. The AP was not seeking the testimony simply out of commercial gain or prurient interest, but because of the stark contrast between Cosby’s public perception as a moralist and the serious allegations of improper conduct against him. The court stated these are interests of public concern, supporting the AP’s interest in obtaining the sealed documents. Accordingly, the court concluded Cosby’s diminished privacy interests were outweighed by the AP’s and the public’s interest in obtaining the deposition testimony.

The court also noted Cosby did not show the potential for embarrassment supported maintaining the documents under seal. The release of information not intended for the public will almost always have some tendency to embarrass. Cosby was required to show any embarrassment caused by the deposition excerpts would be particularly serious.

Cosby simply contended release of the deposition excerpts would generate a firestorm of publicity but failed to explain why the embarrassment accompanying such publicity would be particularly serious and failed to otherwise identify any severe injuries he would suffer. Therefore, the court ruled the deposition excerpts must be unsealed and provided to the AP.


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