GREEN v. COSBY

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/21/2016. 10/21/2016 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TAMARA GREEN,
Plaintiff,
v.
WILLIAM H. COSBY, JR.,
Defendants.

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MISCELLANEOUS ACTION
NO. 16-84

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

October 21, 2016

This miscellaneous action1 is an attempt to quash a
subpoena served upon a third party in Green v. Cosby, a case in
the District of Massachusetts. For the reasons that follow, the
Court will transfer the matter to the District of Massachusetts.
I.

BACKGROUND
This case arises out of a separate case in the

District of Massachusetts, Green v. Cosby, No. 14-30211 (“the
1

“The miscellaneous action is designed for proceedings
that do not otherwise qualify as a civil action . . . .” Sellman
v. United States, No. 12-mc-31, 2013 WL 6229172, at *2 (S.D.
Ind. Dec. 2, 2013). Motions to quash subpoenas that were issued
by other courts are frequently designated as miscellaneous
actions.

Massachusetts action” or “Green I”). In that case, which was
filed in December 2014, Plaintiffs Tamara Green, Therese
Serignese, Linda Traitz, Louisa Moritz, Barbara Bowman, Joan
Tarshis, and Angela Leslie2 allege that Defendant William H.
Cosby, Jr., sexually assaulted them and then defamed them in a
number of public statements. The Massachusetts action is
currently in the discovery phase.3
While the Massachusetts action was in the pleading
stage, this Court lifted the interim seal on certain documents
in Constand v. Cosby (No. 05-1099 in the Eastern District of
Pennsylvania), which was litigated and settled a decade ago. See
generally Constand v. Cosby, 112 F. Supp. 3d 308 (E.D. Pa.
2015), vacated, 833 F.3d 405 (3d Cir. 2016). Those documents
included excerpts from Cosby’s deposition testimony in that
case. After the Court unsealed those documents, several entities
and individuals – including counsel for Green in this case –
apparently contacted Kaplan Leaman & Wolfe (“KLW”), a court
reporting service, and obtained copies of the full deposition
transcript. KLW’s owner, Gregg Wolfe, later explained in an

2

While all seven women remain plaintiffs in the
Massachusetts action, Green is the only plaintiff in the case
presently before this Court.
3

At present, discovery in the Massachusetts action is
scheduled to be completed by February 6, 2017. Green I ECF No.
389.
2

affidavit that he understood this Court’s seal-lifting order to
dissolve any confidentiality requirement concerning the
deposition transcript, and that this interpretation was not
attributable to anyone outside of KLW. See Mot. Quash Ex. 9, ECF
No. 1-1.
Thereafter, the parties in the Massachusetts action
engaged in several disputes related to the deposition
transcript. Most importantly, for the purposes of this matter,
on March 1, 2016, Cosby filed – in the Massachusetts action – a
motion to seal his Constand v. Cosby deposition transcript,
which Green and her fellow plaintiffs had disclosed that they
possessed. Green I ECF No. 218. In that motion, Cosby argued
that Green’s counsel had committed misconduct in obtaining the
deposition transcript, and therefore that the transcript should
be sealed as a remedy. On April 11, 2016 – coincidentally, it
seems, the same day the instant case was filed – the
Massachusetts court denied Cosby’s Motion to Seal, finding,
among other things, that: (1) the full deposition transcript was
never under seal in this Court; (2) Cosby had failed to
substantiate his allegations of misconduct; (3) counsel for the
plaintiffs obtained the deposition transcript outside the formal
discovery process (by requesting it from KLW), such that a
protective order would be inappropriate and potentially
unconstitutional; and (4) the Constand confidentiality agreement
3

did not bind KLW. Green I ECF No. 307.
On April 7, 2016, Cosby served KLW with an amended
subpoena issued from the District of Massachusetts, commanding
KLW to appear and provide documents and testimony on April 14,
2016. On April 11, 2016, Plaintiff Tamara Green filed the
instant miscellaneous action, which is a motion to quash that
subpoena. ECF No. 1. Cosby responded on April 29 and also filed
a motion to transfer this matter to the Massachusetts court. ECF
No. 8. Green filed a response to the motion to transfer on May
12. ECF No. 12. KLW also filed its own statement of position as
to both the motion to quash and the motion to transfer. ECF No.
11.
Throughout that time, pending before this Court was
Cosby v. American Media, Inc. (No. 16-508), in which Cosby
sought damages from various parties for alleged breaches of a
confidential agreement he had entered into at the time he
settled Constand v. Cosby. The release of the Constand v. Cosby
deposition transcript was a central issue in that case and a
representative for KLW would have been deposed, but Cosby
voluntarily withdrew the case on July 28, 2016, just as
discovery was beginning. Thus, the issue of the deposition of
KLW is no longer before this Court. Accordingly, on August 1,
2016, the Court allowed the parties to file supplemental
memorandums setting forth their positions as to how the Court
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should proceed in this action, given Cosby’s withdrawal of Cosby
v. American Media. ECF No. 17. Cosby and Green both filed
supplemental memorandums, ECF Nos. 19, 20, and the Motion to
Quash and Motion to Transfer are now ripe for disposition.
II.

DISCUSSION
Federal Rule of Civil Procedure 26(b)(1) sets forth

the scope of discovery, stating that “[p]arties 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.” This broad rule is limited in part by Rule 45(d)(3),
which 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 45(c);

(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).
In her Motion to Quash, Plaintiff argues that Cosby’s
subpoena of KLW is (1) “a pretext to investigate counsel for the
Plaintiffs and counsel for Ms. Constand,” and (2) “an attempt to
discover evidence for use in the AMI action.”4 Mem. Support Mot.
Quash 18-19, ECF No. 1. She contends that the release of Cosby’s
4

Again, Plaintiff filed this motion before Cosby
withdrew Cosby v. American Media.
5

deposition transcript has nothing to do with the claims or
defenses in the Massachusetts action, which is a defamation
case, and thus that Cosby’s continued efforts to investigate the
circumstances under which Plaintiff obtained the transcript
should be quashed as irrelevant.
Cosby argues first that Plaintiff lacks standing to
quash this subpoena. He then contends that the Court should
transfer this matter to the District of Massachusetts, or, in
the alternative, that the Court should simply deny the Motion to
Quash and allow Cosby to depose KLW.5
“Generally speaking, a party does not have standing to
quash a subpoena served on a third party.” Thomas v. Marina
Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001) (quoting Johnson v.
Gmeinder, 191 F.R.D. 638, 640 n.2 (D. Kan. 2000)); see also 9A
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2459 (3d ed. 2016) (“Ordinarily a party has no
standing to seek to quash a subpoena issued to someone who is
not a party to the action . . . .”). There is an exception,
however, when the party “claims some personal right or privilege
5

For its part, KLW states that it has no position with
respect to the subpoena. KLW is prepared to comply with the
subpoena should the Court deny the Motion to Quash, but would be
“quite pleased” if the subpoena were quashed. KLW Resp. 2, ECF
No. 11. KLW also notes that it does object to Cosby’s assertion
that KLW “improperly” released the deposition transcript, as
there has been no judicial finding as to whether KLW acted
properly or improperly.
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in respect to the subject matter” of the subpoena. First Sealord
Sur. v. Durkin & Devries Ins. Agency, 918 F. Supp. 2d 362, 382
(E.D. Pa. 2013) (quoting Davis v. General Accident Ins. Co. of
Am., No. 98-4736, 1999 WL 228944, at *2 (E.D. Pa. Apr. 15,
1999)); see also Thomas, 202 F.R.D. at 434 (a party has standing
to quash a third-party subpoena if she has “an interest or a
claim of privilege relating to” the information sought in the
subpoena); Wright & Miller, supra, § 2463.1 (“Numerous cases
have held that a party lacks standing to challenge a [thirdparty] subpoena absent a showing that the objecting party has a
personal right or privilege regarding the subject matter of the
subpoena.”).
Plaintiff does not assert any privilege with respect
to the information sought in this subpoena; the question is
whether she has a “personal right” or “interest” in the subject
matter of the subpoena. Examples of things that give parties
such personal rights or interests include bank accounts, see
ITOCHU Int’l, Inc. v. Devon Robotics, LLC, 303 F.R.D. 229, 232
(E.D. Pa. 2014) (plaintiff served subpoena upon third-party bank
for records of bank accounts held by defendant); confidential
settlement agreements, see First Sealord Sur., 918 F. Supp. 2d
at 381-83 (plaintiff served subpoena upon third party for
documents subject to a confidential settlement agreement between
plaintiff and defendant); and protective orders, see Savant
7

Sys., LLC v. Crestron Elecs., Inc., No. 12-mc-51, 2012 WL
987404, at *2-3 (E.D. Pa. Mar. 22, 2012) (plaintiff served
subpoena upon third party for documents that had been placed
under a protective order).6
In this case, Cosby has made clear that the purpose of
this subpoena is for him to obtain information about whether
Plaintiff obtained the deposition transcript through misconduct
and then use that information in his efforts to restrict
Plaintiff’s use of the deposition transcript. Plaintiff argues,
then, that because the purpose of the subpoena is to investigate
Plaintiff’s actions and limit her use of the transcript in the
Massachusetts action, she has a sufficient personal interest in
the subject matter of the subpoena.
Ordinarily, the mere fact that a third-party subpoena
seeks information about a party’s conduct would likely not
suffice to give that party a “personal interest” in the subject
matter of the subpoena. If that were the case, the exception
6

Plaintiff also cites In re Grand Jury, 111 F.3d 1066
(3d Cir. 1997), as another case involving a “personal interest”
that affords standing to challenge a third-party subpoena. In
that case, the Government subpoenaed a third party for tape
recordings she had made of two individuals under grand jury
investigation, and the individuals moved to quash that subpoena.
The Third Circuit did find that they had standing to bring that
motion – but the Third Circuit pointed to a federal wiretap
statute explicitly affording them standing, and not to the
“personal interest” exception that is at issue here, so In re
Grand Jury is not relevant to the case at hand. See id. at 107076.
8

would undoubtedly swallow the rule, as presumably, many (if not
most) third-party subpoenas seek information concerning one of
the other parties in the case, or information through which one
party might affect another party’s position in the case. Cf.
Norguard Ins. Co. v. Serveon Inc., No. 08-900, 2011 WL 344076,
at *3 (D. Del. Jan. 28, 2011) (“Merely complaining that pretrial discovery takes time and costs money cannot provide a
sufficient basis to confer standing to quash a subpoena of a
non-party, as such a grant of standing would eviscerate the
general rule that a party does not have standing to challenge
the subpoena of a non-party.”).
Here, however, there has been a judicial
determination – from a magistrate judge in the Massachusetts
court – that there is no evidence Green and her counsel did
anything wrong in obtaining the deposition transcript, and thus
no reason to restrict the transcript’s use. See Green I ECF No.
307. Under these circumstances – where a judicial ruling has
potentially absolved Plaintiff of the alleged misconduct Cosby
seeks to uncover through this subpoena – Plaintiff’s interest in
preventing further litigation over that conduct may suffice to
provide her with a cognizable “personal interest” in the subject
matter of the subpoena. If so, she may have standing to

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challenge it.7
But the scope of that Massachusetts ruling is
disputed. Green contends that the ruling necessarily forecloses
further inquiries into her conduct, while Cosby argues that the
ruling concerned only Cosby’s failure to support his previous
motion on this matter and does not prevent Cosby from launching
other attempts to gather information about Green’s potential
role in the release of the deposition transcript. If Cosby is
correct, then it seems likely that Green lacks standing to quash
the subpoena at issue because she would have no cognizable
personal interest in the subject of the subpoena.
The ruling itself is opaque on this matter and does
not explicitly resolve this dispute. Because the Massachusetts
court is in a far better position to interpret its own ruling,
the Court will grant Cosby’s motion to transfer the motion to
quash to the District of Massachusetts.
Federal Rule of Civil Procedure 45(f) provides that
“[w]hen the court where compliance is required did not issue the
subpoena, it may transfer a motion under this rule to the
issuing court if the person subject to the subpoena consents8 or

7

The Court offers no view on the underlying merits of
the motion to quash.
8

Here, KLW has not objected, but also has not
consented.
10

if the court finds exceptional circumstances.” The Rule 45
committee notes provide some guidance concerning the existence
of “exceptional circumstances”:
In the absence of consent, the court may transfer
in exceptional circumstances, and the proponent of
transfer bears the burden of showing that such
circumstances are present. The prime concern should be
avoiding burdens on local nonparties subject to
subpoenas, and it should not be assumed that the
issuing court is in a superior position to resolve
subpoena-related
motions.
In
some
circumstances,
however, transfer may be warranted in order to avoid
disrupting the issuing court’s management of the
underlying litigation, as when that court has already
ruled on issues presented by the motion or the same
issues are likely to arise in discovery in many
districts. Transfer is appropriate only if such
interests outweigh the interests of the nonparty
served with the subpoena in obtaining local resolution
of the motion.
Fed. R. Civ. P. 45(f), advisory committee notes (2013
amendments).
The specific situation contemplated by the committee
is the situation here: the issuing court “has already ruled on
issues presented by” the motion to quash, id., and the scope of
that ruling, whatever it may be, appears to have significant
implications for the resolution of the motion. Therefore,
“exceptional circumstances” exist, such that it is appropriate
for this Court to transfer the motion to quash to the issuing
court.
Moreover, now that Cosby has voluntarily withdrawn
Cosby v. American Media, Inc., there are no issues pending
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before this Court concerning the release of the deposition
transcript, and therefore even fewer reasons for this Court to
decide the motion to quash. Finally, because KLW – “the nonparty
served with the subpoena” – did not file the motion to quash and
takes no position on it, the concerns that favor transfer
clearly outweigh KLW’s interests “in obtaining local resolution
of the motion.” Id.
III. CONCLUSION
For the foregoing reasons, the Court will grant
Cosby’s motion to transfer this matter to the District of
Massachusetts. An appropriate order follows.

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