GREEN et al v. COSBY
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ANITA B. BRODY ON 3/21/2016. 3/21/2016 ENTERED AND COPIES VIA ECF.(mo, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TAMARA GREEN, et al.,
WILLIAM H. COSBY, JR.,
March 21, 2016
Anita B. Brody, J.
Plaintiffs Tamara Green, Therese Serignese, Linda Traitz, Louisa Moritz, Barbara
Bowman, Joan Tarshis, and Angela Leslie brought suit against Defendant William H. Cosby, Jr.
in the United States District Court for the District of Massachusetts (“Massachusetts District
Court”) for alleged defamation, invasion of privacy (false light), and intentional infliction of
emotional distress (“Green Litigation”). Third Am. Compl., Green v. Cosby, No. 14-30211, (D.
Mass. Nov. 13, 2015), ECF No. 109 [hereinafter Third. Am. Compl.]. On December 2, 2015,
Plaintiffs served a subpoena on attorney Dolores Troiani to produce her case file in the Constand
Litigation.1 Cosby moves this Court to quash the subpoena.2 Intervenor American Media, Inc.
(“AMI”) also moves this Court to quash or modify the subpoena. For the reasons set forth
below, I will grant in part and deny in part Cosby’s motion to quash the subpoena, and I will
grant AMI’s motion to quash or modify the subpoena.
See infra Section I.A.
Although the Massachusetts District Court issued the subpoena, Plaintiffs served the subpoena on
Troiani in Philadelphia, Pennsylvania. The motion to quash is properly filed in this Court because “the
court for the district where compliance is required must quash or modify a subpoena.” Fed. R. Civ. P.
A. The Constand Litigation and Criminal Prosecution
In 2005, attorney Troiani represented Andrea Constand who filed suit against Cosby for
alleged battery, assault, intentional and negligent infliction of emotional distress,
defamation/defamation per se, and false light/invasion of privacy in the United States District
Court for the Eastern District of Pennsylvania (“Eastern District of Pennsylvania”). Compl.,
Constand v. Cosby, No. 05-1099 (E.D. Pa. Mar. 8, 2005), ECF No. 1. In that action, Constand
alleged that Cosby drugged her and then sexually assaulted her. Id. After Constand reported the
sexual assault, Cosby allegedly made false statements to the media about Constand. Id.
In 2006, Constand filed another suit in the Eastern District of Pennsylvania against The
National Enquirer (a media brand owned and operated by Intervenor AMI) and Martin Singer
(Cosby’s attorney) for defamation/defamation per se and false light/invasion of privacy. Compl.,
Constand v. Singer, No. 06-483 (E.D. Pa. Feb. 1, 2006), ECF No. 1. Constand’s two lawsuits
were consolidated before Judge Eduardo C. Robreno (collectively, the “Constand Litigation”).
Id., ECF No. 30.
During the course of the Constand Litigation, the parties conducted discovery regarding
other women’s accusations that Cosby had sexually assaulted them. See Constand v. Cosby, 232
F.R.D. 494 (E.D. Pa. 2006). On November 4, 2005, the Constand Court entered an interim order
(“Sealing Order”) temporarily sealing several documents on the docket, pending a full hearing on
whether the documents should be permanently sealed.3 Case Mgmt. Order 2, Constand v. Cosby,
No. 05-1099 (E.D. Pa. Nov. 4, 2005), ECF No. 47; see also Constand v. Cosby, 112 F. Supp. 3d
Although the Constand Court entered the Sealing Order prior to consolidation of Constand’s two
lawsuits, the Constand Court later entered an order affirming that the Sealing Order applied to the entire
Constand Litigation. See Stipulation of Confidentiality, Constand v. Cosby, No. 05-1099 (E.D. Pa.
July13, 2006), ECF No. 94.
308, 310 (E.D. Pa. 2015). Before the Constand Court ruled on whether to permanently seal the
documents, the parties to the Constand Litigation settled. Constand v. Cosby, 112 F. Supp. 3d at
In October 2006, the parties to the Constand Litigation entered into the Confidential
Settlement Agreement and General Release (“CSA”). The confidentiality provisions of the CSA
provide, in relevant part:
CONSTAND, COSBY, SINGER, AMERICAN MEDIA, GIANNA
CONSTAND, ANDREW CONSTAND, and their undersigned counsel
acknowledge COSBY’s, SINGER’s, and AMERICAN MEDIA’s interests
in not permitting others (a) to know (i) the outcome or the underlying facts
of the LITIGATION, or (ii) the terms of this Confidential Settlement
Agreement and General Release, (b) to learn more about CONSTAND’s
allegations or their defenses other than what is already a matter of public
record, via their pleadings, or published press reports (c) to learn the
information gathered and generated in the course of discovery in the
LITIGATION , or (d) to gain access to the motions and briefs currently filed
under seal in the LITIGATION. They also acknowledge that CONSTAND,
COSBY, SINGER, and AMERICAN MEDIA enter into this Confidential
Settlement Agreement and General Release to protect those interests.
Accordingly . . . :
A. CONSTAND, COSBY, SINGER, AMERICAN MEDIA, GIANNA
CONSTAND, ANDREW CONSTAND, and their undersigned counsel agree,
as of August 23, 2006, not to disclose to anyone, via written or oral
communication or by disclosing a document, in private or public, any aspect
of this LITIGATION, including, but not limited to:
1. the events or allegations upon which the LITIGATION was based;
2. allegations made about COSBY or CONSTAND by other persons;
3. the information that they learned during the criminal investigation of
COSBY or discovery in the LITIGATION, including, but not limited
to, allegations made by other women concerning COSBY, the content
of the Montgomery County District Attorney’s and the Cheltenham
Township Police Department’s files from the criminal investigation of
COSBY, and the content of COSBY’s and CONSTAND’s depositions
in the LITIGATION, and information about COSBY or CONSTAND
gathered by their agents.
C. CONSTAND, COSBY, SINGER, AMERICAN MEDIA, GIANNA
CONSTAND, ANDREW CONSTAND, and their undersigned counsel
agree not to disclose this Confidential Settlement Agreement and General
Release or any of its terms and condition . . . , unless such disclosure is . . .
i n response to a valid subpoena issued by a court of competent
The confidentiality provisions . . . are a material inducement to each of
the parties hereto to enter this Confidential Settlement Agreement and
General Release, and each of the parties and the party’s undersigned
counsel acknowledges that in entering this Confidential Settlement
Agreement and General Release, each party is expressly relying [on] each
other party’s agreement to abide by the confidentiality provisions. . . .
Def.’s Mot. Quash Ex. 2 ¶ 3.
Almost nine years after the parties had entered into the CSA, the Associated
Press moved to intervene in the Constand Litigation and requested that all of the
documents on the docket be unsealed and made available to the public. Constand v.
Cosby, 112 F. Supp. 3d at 309-10. On July 6, 2015, the Constand Court granted the Associated
Press’s motion and unsealed the documents. Id. at 319. First, the court examined the November
4, 2005 Sealing Order that sealed the documents and concluded that “[t]he Documents are not
technically sealed at this time, given that the Court initially sealed them temporarily in its efforts
to resolve the outstanding discovery disputes, and indicated that the temporary seal would lapse
if not definitively extended.” Id. at 314 n.8. The Constand Court then refused to keep the
documents sealed because Cosby had not demonstrated good cause for a protective order. Id. at
319. Cosby appealed the Constand Court’s decision to unseal the documents. The appeal is
currently pending in the Third Circuit. See Constand v. Cosby, No. 15-2797 (3d Cir. July 29,
Furthermore, on December 30, 2015, Cosby was criminally charged with aggravated
indecent assault in Montgomery County, Pennsylvania for his alleged sexual assault of Constand.
See Commonwealth v. William Henry Cosby, Jr., http://www.montcopa.org/commonwealthvs
cosby (last visited Mar. 9, 2016).
B. The Green Litigation
On December 10, 2014, Plaintiff Green initiated the Green Litigation by filing a
complaint against Cosby in the Massachusetts District Court. Compl., Green v. Cosby, No. 1430211, (D. Mass. Dec. 10, 2014), ECF No. 1. On November 13, 2015, the current operative
complaint—the Third Amended Complaint—was filed on behalf of Plaintiffs Green, Serignese,
Traitz, Moritz, Bowman, Tarshis, and Leslie, asserting claims against Cosby for alleged
defamation, invasion of privacy (false light), and intentional infliction of emotional distress.
Third Am. Compl. In the Third Amended Complaint, Plaintiffs allege that Cosby sexually
assaulted them. Id. Additionally, the majority of Plaintiffs allege that Cosby drugged them in
order to carry out the assault. Plaintiffs made public statements about these assaults, and allege
that Cosby defamed them by denying that he sexually assaulted them. Id. Additionally,
Plaintiffs allege that Cosby’s defamatory statements cast them in a false light and intentionally
inflicted emotion distress on them. Id.
In December 2015, Cosby filed counterclaims to Plaintiffs’ Third Amended Complaint.
See Def.’s Answer, Affirmative Defenses, and Counterclaims to Pls.’ Third Am. Compl., Green
v. Cosby, No. 14-30211, (D. Mass. Dec. 14, 2015), ECF No. 121 at 77-89 [hereinafter Def.’s
Counterclaims]. Cosby filed counterclaims against each Plaintiff for alleged defamation per se,
defamation, tortious interference, and intentional infliction of emotional distress. Id. at 83-88.
In the counterclaims, Cosby alleges that “each [Plaintiff] engaged in a campaign to assassinate
Mr. Cosby’s reputation and character by willfully, maliciously, and falsely accusing Mr. Cosby
of multi-decade-old purported sexual misconduct in an opportunistic attempt to extract financial
gain from their allegations.” Id. at 79-80 ¶ 17. Cosby supports his counterclaims with factual
allegations outlining the individual actions taken by each Plaintiff to damage his reputation and
cause him harm. Id. at 80-82 ¶¶ 18-26.
On December 2, 2015, Plaintiffs served a subpoena on Troiani, the attorney who
represented Constand in the Constand Litigation. The subpoena commanded Troiani to produce:
Your entire case file for the case of Constand v. Cosby, U.S. District for the
Eastern District of Pennsylvania, Case No. 2:05-cv-01099, excluding attorneyclient communications and attorney work-product.
Def.’s Mot. Quash Ex. 1. Troiani has not filed any objection to production of her case file.
Cosby and AMI filed the current motions to quash the subpoena.4
II. LEGAL STANDARD
While Federal Rule of Civil Procedure 45(d)(3) describes when a court is required or
permitted to quash or modify a subpoena, Federal Rule of Civil Procedure 26(b)(1) delineates the
general scope of discovery. “A Rule 45 subpoena served in conjunction with discovery must fall
within the scope of proper discovery under Fed .R .Civ. P. 26(b)(1).” Schmulovich v. 1161 Rt. 9
LLC, No. 07-597, 2007 WL 2362598, at *2 (D.N.J. Aug. 15, 2007); accord Frank v. Honeywell
Int’l Inc., No. 15-MC-172, 2015 WL 4770965, at *4 (E.D. Pa. Aug. 13, 2015); In re Domestic
Drywall Antitrust Litig., 300 F.R.D. 234, 239 (E.D. Pa. 2014). “The serve-and-volley of the
federal discovery rules govern the resolution of a motion to quash.” In re Domestic Drywall, 300
F.R.D. at 239 (internal quotation marks omitted). First, the subpoenaing party must demonstrate
that its requests fall within the general scope of discovery defined in Rule 26(b)(1). Id.
Accordingly, the subpoenaing party may only seek “discovery regarding any nonprivileged
Technically, AMI moves to quash or modify the subpoena.
matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”
Fed. R. Civ. P. 26(b)(1). If the general scope of discovery encompasses the requests of the
subpoenaing party then the burden shifts to the party opposing the subpoena to establish that
Rule 45(d)(3) provides a basis to quash the subpoena.5 See In re Domestic Drywall, 300 F.R.D.
at 239. Rule 45(d)(3)(A) requires a court to quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule
(iii) requires disclosure of privileged or other protected matter, if no exception or
waiver applies; or
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(d)(3)(A). Rule 45(d)(3)(B) permits a court to quash or modify a subpoena in
other limited circumstances. The burden of the party opposing the subpoena “is particularly
heavy to support a motion to quash as contrasted to some more limited protection such as a
protective order.” In re Domestic Drywall, 300 F.R.D. 234 at 239 (internal quotation marks
III. COSBY’S MOTION TO QUASH
In the subpoena, Plaintiffs seek to obtain Troiani’s entire case file for the Constand
Litigation, excluding attorney-client communications and attorney work-product. In response to
Cosby’s motion to quash, however, Plaintiffs concede that they “do not seek to enforce the
subpoena as to the CSA itself—so long as the Court does not otherwise intend to grant the
As a general rule, only the subpoenaed party may seek to quash a subpoena. New Park Entm’t L.L.C. v.
Elec. Factory Concerts, Inc., No. 98-775, 2000 WL 62315, at *4 (E.D. Pa. Jan. 13, 2000). “However, an
exception to this rule exists where a party claims that it has some personal right or privilege with respect
to the subject matter sought in the subpoena directed to a nonparty.” New Park, 2000 WL 62315, at *4;
see also Kida v. EcoWater Sys. LLC, No. 10-4319, 2011 WL 1883194, at *2 (E.D. Pa. May 17, 2011)
(same). No one questions Cosby’s or AMI’s standing to move to quash the subpoena.
Motion to Quash to any extent, on the basis of the CSA.” Pl.’s Resp. 8. I will grant Cosby’s
motion to quash the subpoena as to the disclosure of the CSA itself because, as discussed below,
the existence of the CSA does not influence my decision to grant any other aspect of Cosby’s
motion to quash. Cosby moves to quash the remainder of Plaintiffs’ subpoena of Troiani’s case
file on the following grounds: (1) there is no compelling justification for requiring disclosure of
these confidential materials; (2) not everything in the case file is relevant to Plaintiffs’ action;
and (3) production of the file would subject a person to undue burden.
A. No Compelling Justification
Cosby argues that Troiani’s case file is confidential and should not be disclosed because
Plaintiffs have not produced a compelling justification for the disclosure of confidential
materials. Cosby hinges his compelling justification argument on the premise that Troiani’s case
file is protected from disclosure by the CSA.6 However, there is no Federal Rule of Civil
Procedure, or legal precedent, that requires Plaintiffs to provide a compelling justification for the
disclosure in discovery of materials deemed confidential pursuant to a private settlement
agreement.7 Even assuming the existence of Cosby’s compelling justification requirement for
Cosby also argues that Troiani’s case file is confidential based of the Constand Court’s
November 4, 2005 Sealing Order. However, the November 4, 2005 Sealing Order only sealed
documents on the docket from public disclosure, and did not dictate the confidentiality of any
documents contained in the parties’ case files. Moreover, the Constand Court recently unsealed
these documents and concluded that the November 4, 2005 Sealing Order has already lapsed.
Constand v. Cosby, 112 F. Supp. 3d at 314 n.8, 319. Thus, Cosby cannot rely on the Sealing
Order to support his compelling justification argument.
Cosby derives his compelling justification theory from jurisprudence of the Court of Appeals
for the Second Circuit holding that court protective orders may only be modified if an
“‘extraordinary circumstance’ or ‘compelling need’ warrants the requested modification.”
F.D.I.C. v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982) (quoting Martindell v. Int'l Tel. &
Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979)); see also S.E.C. v. TheStreet.Com, 273 F.3d 222,
229 (2d Cir. 2001). The Third Circuit, however, has explicitly rejected the stringent standard for
modification of court protective orders adopted by the Second Circuit. Pansy v. Borough of
disclosure of confidential materials, and that the CSA prohibits Troiani from disclosing her case
file, Cosby’s argument would still fail.
The existence of the CSA would not trigger Plaintiffs’ burden to produce a compelling
justification for disclosure of Troiani’s case file because Plaintiffs never agreed to the
confidentiality of these materials. An agreement between two parties to keep materials
confidential cannot block the disclosure of those materials to third parties in discovery. Gotham
Holdings, LP v. Health Grades, Inc., 580 F.3d 664, 665 (7th Cir. 2009). “Contracts bind only
the parties. No one can ‘agree’ with someone else that a stranger’s resort to discovery under the
Federal Rules of Civil Procedure will be cut off.” Id.; see also ABF Capital Mgmt. v. Askin
Capital, No. 95-8905, 2000 WL 191698, at *2 (S.D.N.Y. Feb. 10, 2000) (explaining that
“litigants cannot shield a settlement agreement from discovery merely because it contains a
confidentiality provision, or was filed under seal”); Tribune Co. v. Purcigliotti, No. 93-7222,
1996 WL 337277, at *3 (S.D.N.Y. June 19, 1996) (“[T]he mere fact that the settling parties
agreed to maintain the confidentiality of their agreement cannot serve to shield it from
discovery.”); Kalinauskas v. Wong, 151 F.R.D. 363, 367 (D. Nev. 1993) (“With respect to
contracts containing explicit guarantees of confidentiality, such contracts, of course, cannot bind
parties who do not sign them and may have little effect on the capacities of a non-party to
discover or introduce at trial the settlement communications covered by the contract.” (internal
quotation marks omitted)); but see Flynn v. Portland Gen. Elec. Corp., No. 88-455, 1989 WL
112802, at *2 (D. Or. Sept. 21, 1989) (noting “the strong public policy favoring settlement of
disputed claims dictates that confidentiality agreements regarding such settlements not be lightly
Stroudsburg, 23 F.3d 772, 789-90 (3d Cir. 1994). Moreover, jurisprudence on the standard for
modification of court protective orders is inapposite to whether a party needs a compelling
justification in order to obtain discovery that is deemed confidential based on a private
confidentiality agreement that the party did not agree to or sign.
abrogated”). “[L]itigants’ preference for secrecy does not create a legal bar to disclosure.”
Gotham, 580 F.3d at 665. Accordingly, Plaintiffs do not need a compelling justification for
disclosure of Troiani’s case file.
Even if Plaintiffs were required to produce a compelling justification for disclosure, one
readily exists. The public reaps no benefit by allowing settlement agreements to suppress
evidence. . . . [T]his concern grows more pressing as additional individuals are harmed by
identical or similar action.” Channelmark Corp. v. Destination Prods. Int’l, Inc., No. 99-214,
2000 WL 968818, at *5 (N.D. Ill. July 7, 2000) (internal quotation marks omitted). Plaintiffs
and Constand allege they were sexually assaulted by Cosby in a similar manner. Additionally,
other women accused Cosby of sexual assault and were investigated as potential witnesses in the
Constand Litigation. “Defendants should not be able to buy the silence of witnesses with a
settlement agreement when the facts of one controversy are relevant to another.” Wendt v.
Walden Univ., Inc., No. 4-95-467, 1996 WL 84668, at *2 (D. Minn. Jan. 16, 1996); accord
Gutter v. E.I. DuPont de Nemours & Co., No. 95-2152, 2001 WL 36086590, at *1 (S.D. Fla. Jan.
31, 2001). Therefore, Cosby cannot prevent Plaintiffs from accessing Troiani’s case file on the
basis that the CSA protects the file from disclosure.
Federal Rule of Evidence 26(b)(1) provides that a party “may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case . . . . Information within this scope of discovery need not be admissible in
evidence to be discoverable.” Relevance is “construed broadly to encompass any matter that
bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may
be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also Henry v.
Morgan’s Hotel Grp., Inc., No. 15-1789, 2016 WL 303114, at *3 (S.D.N.Y. Jan. 25, 2016)
(recognizing that the Oppenheimer Court’s definition of relevance continues to apply after the
2015 amendment to Federal Rule of Civil Procedure 26(b)(1)).
Plaintiffs seek access to Troiani’s entire case file, excluding attorney-client
communications and attorney work-product. Plaintiffs contend that Troiani’s case file contains
information about several Plaintiffs and other women who accused Cosby of sexual assault and
were investigated as potential witnesses in the Constand Litigation. Plaintiffs argue, without
opposition from Cosby, that materials in Troiani’s case file that pertain directly to them are
relevant to their action against Cosby. Thus, all parties agree that materials pertaining to
Plaintiffs are relevant. Cosby argues that the subpoena is overbroad because the remainder of the
information in Troiani’s case file is not relevant as required under Rule 26(b)(1). Plaintiffs
contend that materials pertaining to the other women who accused Cosby of sexual assault (“the
other witnesses”) are relevant.
Plaintiffs argue that, moreover, materials pertaining to the other witnesses are relevant
and admissible under Federal Rule of Evidence 415. Rule 415 provides: “In a civil case
involving a claim for relief based on a party’s alleged sexual assault or child molestation, the
court may admit evidence that the party committed any other sexual assault or child
molestation.” Fed. R. Evid. 415. Plaintiffs contend that materials pertaining to the other
witnesses are relevant because Plaintiffs and the other witnesses allege they were sexually
assaulted by Cosby,8 and admissible under Rule 415 because Plaintiffs’ suit involves claims for
Plaintiffs also argue that materials pertaining to the other witnesses are relevant “in order to rebut
[Cosby’s] counterclaims, which allege a wide-ranging and malicious conspiracy by [Cosby’s] accusers
against him.” Pl.’s Resp. to Def.’s Supp. Br. 8. Cosby alleges in his counterclaims that “each [Plaintiff]
engaged in a campaign to assassinate Mr. Cosby’s reputation and character by willfully, maliciously, and
falsely accusing Mr. Cosby of multi-decade-old purported sexual misconduct in an opportunistic attempt
to extract financial gain from their allegations.” Def.’s Counterclaims 79-80 ¶ 17. Although Cosby
relief based on alleged sexual assault. Cosby argues that materials pertaining to the other
witnesses are neither relevant nor admissible under Rule 415 because Plaintiffs do not bring any
claims for sexual assault.
Although Plaintiffs do not bring any claims for sexual assault, they do bring claims for
defamation, alleging that Cosby defamed them by making statements that they fabricated their
allegations of sexual assault. In the Green Litigation, the Massachusetts District Court has
already determined that an essential element of defamation is proof of the falsity of Cosby’s
statements. Green v. Cosby, No. 14-30211, 2015 WL 5923553, at *8 (D. Mass. Oct. 9, 2015).9
Therefore, Plaintiffs must prove that Cosby sexually assaulted them in order to succeed on their
Plaintiffs assert that their defamation claims are “claim[s] for relief based on a party’s
alleged sexual assault,” id., because proof of sexual assault is an essential element of their
defamation claims. Whether Rule 415 encompasses Plaintiffs’ defamation claims as “claim[s]
for relief based on a party’s alleged sexual assault,” id., is a novel evidentiary question that may
control the admissibility of materials pertaining to the other witnesses. At this stage of the
brings counterclaims against each Plaintiff, he does not allege a conspiracy and fails to mention the other
witnesses. Accordingly, materials pertaining to the other witnesses are not relevant to Plaintiffs’ defense
against Cosby’s counterclaims.
Plaintiffs Green, Traitz, and Serignese were the only Plaintiffs in the Green Litigation when the District
Court of Massachusetts issued its memorandum. See Green v. Cosby, 2015 WL 5923553, at * 1. These
Plaintiffs alleged that Cosby published defamatory statements about Green when she was domiciled in
Florida, and about Traitz and Serignese when they were domiciled in California. Id. at *5. The
Massachusetts District Court concluded that the appropriate state law to apply to Plaintiffs’ defamation
claims is the law of state in which each Plaintiff was domiciled at the time when the alleged publication
occurred. Id. Consistent with this choice of law analysis, the Massachusetts District Court analyzed
defamation under both California and Florida law, and concluded that both states require proof of the
following essential elements: “(1) a publication; (2) that is false; (3) defamatory, meaning damaging to
the good reputation of the person who is the subject of the statement; (4) made by an actor with the
requisite degree of fault; (5) is not protected by any privilege; and (6) causes injury to the subject.” Id. at
*8 (emphasis added).
litigation, however, information sought in discovery “need not be admissible in evidence to be
discoverable.” Fed. R. Civ. P. 26(b)(1). Regardless of admissibility, materials pertaining to the
other witnesses are certainly relevant because Plaintiffs and the other witnesses allege they were
sexually assaulted by Cosby.
I will deny Cosby’s motion to quash the subpoena as to materials pertaining to Plaintiffs
and the other witnesses. But, I will grant Cosby’s motion to quash the subpoena as to materials
pertaining to any other subject matter because Plaintiffs have not met their initial burden of
demonstrating that these materials fall within the general scope of discovery.
C. Undue Burden
Federal Rule of Evidence 45(d)(3)(iv) requires a court to quash or modify a subpoena that
“subjects a person to undue burden.” Cosby argues that the subpoena subjects him to undue
burden because materials in Troiani’s case file relate to his ongoing criminal prosecution in
Montgomery County and “could greatly impact the prosecution and defense” of his case. Def.’s
Supp. Br. 7. Additionally, he argues that the subpoena subjects the other witnesses in the
Constand Litigation to undue burden because materials related to them in Troiani’s case file may
cause them harm.
A defendant only has standing to quash a subpoena that is not directed to him if he “has
some personal right or privilege with respect to the subject matter sought in the subpoena
directed to a nonparty.” New Park, 2000 WL 62315, at *4; see also Kida v. EcoWater Sys. LLC,
No. 10-4319, 2011 WL 1883194, at *2 (E.D. Pa. May 17, 2011) (same). Even if a defendant
has standing generally to quash a subpoena, he still lacks standing to challenge a third-party
subpoena based on undue burden because it is the third-party that faces the burden of production
and not the defendant. Plastic the Movie Ltd. v. John Doe Subscriber Assigned IP Address
18.104.22.168, No. 15-2446, 2015 WL 4715528, at *2 (D.N.J. Aug. 7, 2015); Malibu Media, LLC
v. John Does, 1-18, No. 12-2095, 2012 WL 8264665, at *7 (E.D. Pa. Sept. 27, 2012); Malibu
Media, LLC v. John Does 1-15, No. 12-2077, 2012 WL 3089383, at *8 (E.D. Pa. July 30, 2012).
Cosby has no standing to quash the subpoena on behalf of the other witnesses because he
has articulated no personal right or privilege to protect them from harm caused by production of
Troiani’s case file. Moreover, Cosby lacks standing to argue that the subpoena subjects him or
the other witnesses to undue burden because the burden of production falls solely on Troiani.
Even if Cosby had standing, he has not proven that the subpoena would produce an undue
burden on him or the other witnesses. Cosby contends that he and the other witnesses will be
burdened by the production of Troiani’s case file because sensitive information about them will
become public.10 Cosby fears that disclosure of Troiani’s case file may assist the prosecution
and impair his ability to get an impartial jury in his Montgomery County criminal case. Cosby
will not face undue burden in his criminal case if Troiani produces her case file because, as
Cosby acknowledges, “the Montgomery County DA’s office has a copy of Ms. Troiani’s file.”
Def.’s 2nd Supp. Br. 4. Furthermore, Cosby’s concern about public disclosure is purely
speculative and does not support a motion to quash.11 Thus, Cosby has not demonstrated any
Cosby also expresses the unsubstantiated concern that Plaintiffs will harass the other witnesses if they
learn their identities. Plaintiffs, however, already know the identities of the other witnesses. Pl.’s Resp. to
Def.’s Supp. Br. 7.
Cosby’s concern over public disclosure does not present a legitimate basis upon which to grant a
motion to quash because Cosby may still seek a protective order to prevent public disclosure of materials
in Troiani’s case filed even if they are disclosed to the parties. In his supplemental brief, Cosby
recognizes this remedy and requests a protective order if the motion to quash is not granted in its entirety.
However, he never moves for such relief. See Def.’s Mot. Quash (moving solely to quash the subpoena
pursuant to Federal Rule of Civil Procedure 45). If Cosby wishes to protect materials in Troiani’s case
file from public disclosure, he should consider filing a motion for a protective order in the Massachusetts
District Court where the Green Litigation is pending.
IV. AMI’S MOTION TO QUASH OR MODIFY
AMI moves to quash or modify the subpoena only to redact any information in Troiani’s
case file that reflects the settlement amount paid by AMI to Constand under the CSA. The
parties do not oppose AMI’s motion. Therefore, I will grant AMI’s motion to quash or modify
For the reasons set forth above, I will grant in part and deny in part Cosby’s motion to
quash the subpoena. I will deny Cosby’s motion to quash the subpoena as to materials in
Troiani’s case file pertaining to Plaintiffs and the other witnesses, excluding attorney-client
communications and attorney work-product. I will grant Cosby’s motion to quash the subpoena
as to the CSA itself and materials in Troiani’s case filed that do not pertain to Plaintiffs or the
other witnesses. Additionally, I will grant AMI’s motion to quash or modify the subpoena that
seeks only to redact any information in Troiani’s case file that reflects the settlement amount
paid by AMI to Constand under the CSA. A review of Troiani’s entire case file is necessary to
determine the portions of the file that should be disclosed consistent with the subpoena and this
memorandum. Therefore, Troiani is prohibited from disclosing any portion of the case file until
further order of the Court.
s/Anita B. Brody
ANITA B. BRODY, J.
Copies VIA ECF on _________ to:
Copies MAILED on _______ to:
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