Cosby accusers wish to question Quincy Jones

7/24/2019 Cosby accusers wish to question Quincy Jones

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

WESTERN DIVISION

TAMARA GREEN, et al.,

Plaintiffs/Counter-Defendants,

v.

WILLIAM H. COSBY, JR.,

Defendant/Counter-Plaintiff.

Case No.: 3:14-cv-30211-MGM-DHH

PLAINTIFFS PARTIAL OPPOSITION TO DEFENDANTS MOTION TO STAY THIS

ACTION DURING THE PENDENCY OF HIS CRIMINAL SUIT, AND REQUEST FOR

HEARING

COME NOW the Plaintiffs, by and through their counsel, and hereby partially oppose

Defendants Motion to Stay This Action During the Pendency of His Criminal Suit (Motion to

Stay). Defendant has not articulated any good cause to completely stay this civil action. The

only concern that Defendant has raised is that this civil action will compel him to invoke his

right against self-incrimination in response to some discovery requests and deposition questions.

Indeed, Defendant thus far has refused to provide any substantive discovery responses, and

contends that all of Plaintiffs discovery requests are barred by Defendants right against self-

incrimination.

Plaintiffs contend that Defendant is over-invoking his Fifth Amendment right, and intend

to put Defendants position to the test by filing a motion to compel his discovery responses.

Nevertheless, in the meantime, based upon Defendants expressed Fifth Amendment concerns,

Plaintiffs are currently amenable to staying discovery addressed to Defendant -- if, in the interest

Case 3:14-cv-30211-MGM Document 217 Filed 02/29/16 Page 1 of 20


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of fairness, the Court also stays Defendants discovery addressed to Plaintiffs.1 To this point in

discovery, Plaintiffs have provided thousands of pages of documents in response to document

requests, and have given two depositions, whereas Defendant has provided no substantive

discovery responses. This state of affairs must not continue. Furthermore, in the interest of

judicial economy and to avoid substantial prejudice to Plaintiffs, the Court should allow

discovery addressed to third parties to proceed unabated.

Plaintiffs explain further, as follows:

I.

FACTUAL BACKGROUND

Plaintiffs allege that Defendant sexually assaulted each of them, during a period spanning

from 1969 to 1992. Andrea Constand, who is not a party to this case, alleges that Defendant

sexually assaulted her in 2004.

In 2005, the year after Defendants alleged assault against Ms. Constand, Montgomery

County District Attorney Bruce Castor elected not to prosecute Defendant for the assault. As the

Montgomery County Court of Common Pleas found earlier this month, Mr. Castor did not reach

an agreement with Defendants counsel that there would never be a criminal prosecution. See

Exhibit A, Transcript of February 3, 2016 Hearing on Petition for Writ of Habeas Corpus/Motion

to Disqualify Montgomery County District Attorneys Office (Transcript of Habeas Hearing)

at 108-109;Exhibit B, Order denying Defendants Petition for a Writ of HabeasCorpus. Rather,

when Ms. Constand sued Defendant in 2005 and took his deposition, Defendant simply assumed

1Furthermore, Plaintiffs request that the Court require Defendant to submit a personally signed declaration that he

intends to invoke the Fifth Amendment at his deposition, rather than answer questions regarding the alleged sexualassaults underlying this case and any other sexual assaults Defendant is alleged to have committed. The Court

should not simply rely upon the assurances of Defendants attorneys that Defendant will in fact invoke the Fifth

Amendment at his deposition, given that the right against self-incrimination is personal, and cannot be invoked by

defense counsel, on Defendants behalf. See Textron Fin. Corp. v. Eddys Trailer Sales, Inc., CV 08-2289, 2010

U.S. Dist. LEXIS 32067, *9 (E.D.N.Y. Apr. 1, 2010);State ex rel. Butterworth v. Southland Corp., 684 F. Supp.

292 (S.D. Fla. 1988);see also Moran v. Burbine, 475 U.S. 412, 434 n.4 (1986) (right against self-incrimination can

be invoked personally by defendant, not attorney). Defendant has never personally invoked his Fifth Amendment

rights in this case.



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that Montgomery County would never reconsider its position, elected not to invoke the Fifth

Amendment, and gave incriminating testimony at his deposition.

Nine years later, in December of 2014, Plaintiff Tamara Green sued Defendant. Plaintiff

Green alleged that Defendant publicly and falsely branded her a liar after she truthfully disclosed

that he sexually assaulted her in the 1970s, after tricking her into ingesting a narcotic or other

incapacitating drug that rendered her helpless. Dkt. No. 109 at 16-19.2 The Complaint was

later amended multiple times; first to add Plaintiffs Therese Serignese and Linda Traitz to the

case; and subsequently to add four additional Plaintiffs. All seven Plaintiffs are making similar

defamation and related claims against Defendant.

In July of 2015, the transcript of Defendants deposition in the Constand civil action was

made public. Defendants admissions inthe deposition prompted the Montgomery County

District Attorney to resume investigating Ms. Constands criminal complaint. At that point in

time, Defendants Motions to Dismiss the instant action were pending. Furthermore, discovery

was stayed pursuant to an Order of this Court entered in June of 2015, pending the disposition of

the Motions to Dismiss. Dkt. No. 80. Nevertheless, Defendant expressed no need for the stay to

continue on the ground that he was being investigated by Montgomery County.

In October of 2015, this Court denied the Motions to Dismiss, thus signaling that the

Court would shortly lift the stay upon discovery. Defendant did not move to re-enter a stay of

the action.

To the contrary, Defendant actively opposed staying this action: In June of 2015,

Defendants homeownersinsurance policy carrier, AIG Property Casualty Company (AIG),

filed a separate declaratory action against Defendant and several of the Plaintiffs, 3:15-cv-30111

2In the Memo. in Support of Mot. to Stay (Memo.) at at 2, Defendant states that Plaintiff Green alleges that

Defendant gave her over-the-counter medicine for a cold. That is incorrect. PlaintiffGreen alleges that

Defendant falsely told her that he was giving her harmless medicine.



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(the AIG action). AIG then moved to stay the instant action, pending the outcome of the AIG

action. On November 3, 2015, Defendant filed in the AIG action an opposition to staying the

instant action. Dkt. No. 33. The Court in the AIG action ultimately declined to stay this case.

Dkt. No. 45.

Discovery resumed with the Courts initial scheduling conference on November 30,

2015. On December 2, 2015, Plaintiffs served Interrogatories and a Request for Production of

Documents upon Defendant. In the same month, rather than move to stay the action, Defendant

also served discovery requests upon Plaintiffs and noted their depositions. Defendant has also

served subpoenas duces tecum upon several third parties. Furthermore, on December 14, 2015,

Defendant intentionally broadenedthe scope of this action by filing counterclaims against

Plaintiffs. Dkt. No. 121.

On December 30, 2015, a criminal complaint was filed in the Court of Common Pleas

against Defendant, for sexually assaulting Ms. Constand. See Exhibit C, Police Criminal

Complaint. On January 11, 2016, Defendant filed in the Court of Common Pleas a request to

dismiss the Constand criminal action, on the ground that (as notedsupra) the former District

Attorney supposedly had agreed with Defendants counsel never to prosecute Defendant.

However, Defendant did not respond to the indictment by promptly moving to stay this

action. Thus, in open court at a motions hearing on January 13, 2016, Plaintiff asked Magistrate

Judge David H. Hennessy to set a deadline for Defendant to file any motion to stay the action.

Defense counsel expressed that they were uncertain whether they would ever file a motion to

stay. (Judge Hennessy did not set a deadline before Defendant ultimately did file his Motion to

Stay.)



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After discovery commenced and before Defendant filed his Motion to Stay, the Plaintiffs

provided more than 2,500 pages of documents that Defendant requested of Plaintiffs, including a

supplement that Plaintiffs provided after the indictment, on February 4, 2016. Defendant also

took the deposition of Plaintiff Louisa Moritz after the indictment, on January 13, 2016. On the

other hand, Defendant refused to provide any signed Answers to Interrogatories or documents in

his Response to Request for Production of Documents, although these discovery responses were

due (by agreement of the parties) on January 11, 2016. Defendant asserted that all of his

substantive discovery responses are protected by the Fifth Amendment.

Defendant did not file his Motion to Stay until February 9, 2016, five days after the Court

of Common Pleas rejected his request to dismiss the Constand criminal action. Since then,

Plaintiffs supplemented their document production again on February 16, 2016. Furthermore,

Defendant took the deposition of another Plaintiff, Linda Traitz, on February 19, 2016. The

next Plaintiff scheduled to be deposed is Joan Tarshis, on March 15, 2016.

II. STANDARD OF DECISION

This Court has the inherent power to stay proceedings. See Landis v. N. Am. Co., 299

U.S. 248, 254 (1936). However, a defendant who seeks to stay a civil case against him on the

ground that he is also the subject of a criminal prosecution bears a heavy burden to show the

necessity of a stay of the entire case. See Microfinancial, Inc. v. Premier Holidays Intl, Inc.,

385 F.3d 72, 77 (1st Cir. 2004) (citingAustin v. Unarco Indus., Inc., 705 F.2d 1, 5 (1st Cir.

1983));see also SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1374 (D.C. Cir. 1980) (In the

absence of substantial prejudice to the rights of the parties involved, such parallel [criminal and

civil] proceedings are unobjectionable under our jurisprudence.);In re Par Pharmaceutical,



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Inc., 133 F.R.D. 12, 13 (S.D.N.Y. 1990) (A total stay of civil discovery pending the outcome of

related criminal proceedings, however, is an extraordinary remedy.).

According to the First Circuit inMicrofinancial, 385 F.3d at 77-78:

[A] defendant has no constitutional right to a stay simply because a parallelcriminal proceeding is in the works. SeeUnited States v. Kordel, 397 U.S. 1, 11,

25 L. Ed. 2d 1, 90 S. Ct. 763 (1970) (observing that the Constitution does not

provide parties blanket protection from the perils of contemporaneous criminaland civil proceedings). . . . The touchstone, of course, is that a district court's

discretionary power to stay civil proceedings in deference to parallel criminal

proceedings should be invoked when the interests of justice counsel in favor of

such a course. SeeKordel, 397 U.S. at 12 n.27.

That determination is highly nuanced. The decision to grant or deny such a

stay involves competing interests. Balancing these interests is a situation-specifictask, and an inquiring court must take a careful look at the idiosyncratic

circumstances of the case before it.SEC v. Dresser Indus., Inc., 202 U.S. App.

D.C. 345, 628 F.2d 1368, 1375 (D.C. Cir. 1980).Notwithstanding that each

instance is sui generis, the case law discloses five factors that typically bear on thedecisional calculus: (i) the interests of the civil plaintiff in proceeding

expeditiously with the civil litigation, including the avoidance of any prejudice to

the plaintiff should a delay transpire; (ii) the hardship to the defendant, includingthe burden placed upon him should the cases go forward in tandem; (iii) the

convenience of both the civil and criminal courts; (iv) the interests of third

parties;[3]

and (v) the public interest. See, e.g.,Fed. Sav. & Loan Ins. Corp. v.

Molinaro, 889 F.2d 899, 903 (9th Cir. 1989);Arden Way Assocs. v. Boesky, 660F. Supp. 1494, 1496-97 (S.D.N.Y. 1987);Digital Equip. Corp. v. Currie Enters.,

142 F.R.D. 8, 12 (D. Mass. 1991).To this list we add (vi) the good faith of the

litigants (or the absence of it) and (vii) the status of the cases.

Before staying the entire case, the Court should consider less drastic methods that

can prevent prejudice to the Defendant relating to his right against self-incrimination.

See Digital Equipment Corp. v. Currie Enters., 142 F.R.D. 8, 13 (D. Mass. 1991).

3This case does not implicateMicrofinancialfactor (iv).

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7/33

7

III. GIVEN THE MICROFINANCIAL FACTORS, IT IS MOST

APPROPRIATE TO STAY DISCOVERY ADDRESSED TO THE

PARTIES FOR THE TIME BEING, BUT NOT DISCOVERY ADDRESSED

TO THIRD PARTIES.

A.

This case does not qualify for a stay of the entire action, given that thereis no overlap between the allegations and claims of this case, and the

Constand criminal action (Microfinancial factors (ii) and (iii)).

i. The prejudice that Defendant claims he would suffer as a result of

this civil action at most justifies staying discovery addressed to the

parties, not staying the entire case.

The degree of overlap between the civil action in which the defendant seeks a stay, and

the pending criminal action, is a threshold question in determining whether to stay the entire

action. See In re Deriv. Litig., Civ. Action No. 06-02964, 2007 U.S. Dist. LEXIS 26906, *4-5, 7

n.1 (E.D. Pa. 2007); SEC v. Healthsouth Corp., 261 F. Supp. 2d 1298, 1326 (N.D. Ala. 2003);

see also Brock v. Tulow, 109 F.R.D. 116, 119 (E.D.N.Y. 1985) (A stay of civil proceedings is

most likely to be granted where the civil and criminal actions involve the same subject matter,

and is even more appropriate when both actions are brought by the government. (internal

citation omitted)). If there is no substantial overlap, then there cannot be significant prejudice to

Defendant. See Trustees of the Plumbers and Pipefitters Natl Pension Fund v. Transworld

Mechanical, Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995).

Here, there is no overlapbetween the allegations and claims in this case and the Constand

criminal action. The two actions concern different sexual assaults, separated by more than a

decade. Unlike everyother case cited by Defendant, in which a trial court granted a stay, the

two actions at issue here do not arise out of any of the same events.4 Because there is no

4Of the cases cited by Defendant, the one that comes closest to breaking that pattern is Tucker v. New York Police

Department, Civil Action No. 08-CV-2156, 2010 U.S. Dist. LEXIS 15920 (D.N.J. Feb. 23, 2010). That case was a

civil action by the plaintiff for, inter alia, false arrest on suspicion for murder. While the civil action was pending,

Plaintiff was under investigation for murder in New York and under indictment for murder in Illinois. The civil trial

court noted that there was overlap because it is not only possible it is fully anticipatedthat Defendant would



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Yet these authorities state the opposite of the point that Defendant is asserting (and the

phrase pattern of behavior appears in neither authority). Lockuff holds that [e]vidence of

other crimes, wrongs, or bad acts is inadmissible to prove a defendants propensity to commit

the crimes for which he is being tried under Pennsylvania Rule of Evidence 404(b)(1). 813

A.2d at 860 (emphasis added).5 Subsection (b)(2) of the Rule does allow the admission of prior

bad acts evidence, but only to prove motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident. It does not appear that evidence of

Defendants sexual assaults against the Plaintiffs would fall under any of those exceptions, nor

does Defendant give any explanation to that effect. The Court should not accept, nor need

Plaintiffs respond to, an argument that Defendant has chosen not to make. See Local Rule

7.1(b)(1). Defendant does claim, at Page 4 of his Memo., that Pennsylvania Rule of Evidence

404 permit[s] victims of uncharged offenses to appear as witnesses in criminal suits,but

nowhere does the Rule state this is true in general. The Court cannot find that this civil action

prejudices Defendant, given that Defendant has not substantiated that any of the evidence

regarding the alleged sexual assaults underlying this action, will be admissible in the Constand

criminal action.

In any eventparticularly given that Defendant is already refusing to provide substantive

discovery6Plaintiffs are amenable to a stay of discovery addressed to Defendant (and

Plaintiffs),pending their forthcoming motion to compel Defendants discovery responses, which

will determine the actual breadth of Defendants right against self-incrimination. Staying

5In contrast, Federal Rule of Evidence 415 expressly allows this Court to admit evidence regarding Defendants

propensity to commit sexual assault. See Martinez v. Hongyi Cui, 608 F.3d 54, 59-60 (1st Cir. 2010). Thus, the

range of admissible prior bad acts will be substantially wider in this civil action, than in the Constand criminal

action.6Assuming that Defendant personally verifies his intent to invoke the Fifth Amendment at his deposition, see supra

at Footnote 1.



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discovery addressed to Defendant while allowing third-party discovery to progress will address

any substantial claim of prejudice that Defendant has, because it will obviate his need to invoke

the Fifth Amendment. See SEC v. Bray, 98 F. Supp. 3d 219, 223 (D. Mass. 2015);United Techs.

v. Dean, 906 F. Supp. 27, 29 (D. Mass. 1995).7

ii. Because there is no overlap between the cases, staying the entire

civil action in the midst of discovery would interfere with, not

benefit, judicial administration.

The absence of any overlap between the two cases also weighs against a complete stay

under the convenience of the courtsMicrofinancial factor. As a general matter, [a] policy of

freely granting stays solely because a litigant is defending simultaneous multiple suits interferes

with judicial administration. Digital Equipment Corp.., 142 F.R.D. at 14 (quotingPaine, 486

F. Supp. at 1119).

Defendant asserts that this general principle does not hold true here because, [w]here the

[c]ourtsuspects that further amendments and dispositive motions are in the offing [] under those

circumstances, delay is not likely to inconvenience this Court . Memo. at 11 (quotingZavatsky

v. OBrien, 902 F. Supp. 2d 135, 148-49 (D. Mass. 2012)). However, whereas discovery in this

case has been pending for almost three months (and Defendant has obtained substantial

discovery from Plaintiffs),Zavatsky was still in the pleadings stage and discovery had not

commenced. Furthermore, additional amendments to the pleadings are not anticipated here, nor

are dispositive motions (the Court has already rejected Defendants Motions to Dismiss).

7Plaintiffs add that the Court should not take seriously Defendants assertion that it is burdensome for him to defend

against this action and the Constand criminal action simultaneously. SeeMemo. at 10-11. First of all, Defendant

neglects to mention that his insurer AIG Property Casualty Company is paying for Defendants legal defense in this

case. See AIG action, Dkt. No. 27 at 2. Second, upon information and belief, Defendant is a man of immense

wealth who could easily afford to pay for his legal defense in both actions. Third, this Court has noted that the mere

fact that a party is defending himself in two cases is not ground to stay one of the actions. See Digital Equipment

Corp., 142 F.R.D. at 14. Moreover, it is particularly odd for Defendant to assert that the need to travel is an

imposition upon him, given that Defendant lives in Shelburne Falls, Massachusetts, less than an hours drive away

from the Springfield courthouse.



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Halting this case in the middle of discovery for an extended period of time would indeed

interfere with this Courtsjudicial administration.

Defendant also asserts that a stay may actually preserve judicial resources as the

outcome of the criminal action will likely impact the course of discovery and possibilities of

settlement. Memo. at11. Defendant fails to explain how that would be true in this case. The

resolution of a criminal action may streamline discovery or promote settlement in a civil action

if the actions rely upon overlapping allegations. E.g., inEstate of Gaither v. District of

Columbia, Civil Action No. 03-1458, 2005 U.S. Dist. LEXIS 35426 (D.D.C. Dec. 2, 2005), cited

by Defendant, the plaintiff sued the District of Columbia for failing to prevent two jail inmates

from killing the decedent; whereas the parallel criminal action was a prosecution of the inmates

for that same killing. Compare also the dissimilar case of SEC v. Telexfree, Inc., 52 F. Supp. 3d

349, 353 (D. Mass. 2014), which Defendant also cites; there, the Court noted that resolution of

the criminal action would likely collaterally estop the defendants from re-litigating issues in the

civil action, because both actions arose out of overlapping allegations of securities fraud. In

contrast, a jury finding that Defendant sexually assaulted Ms. Constand would not bind

Defendant to admit that he sexually assaulted the Plaintiffs.

Defendant makes another similarly empty assertion in his Motion to Stay, Memo. at 11,

when he posits that this case should be stayed if it risks interfering with the criminal prosecution

in Montgomery County in any way. Plaintiffs are at a loss as to what interference Defendant

anticipates, and Defendant gives no hint of what he has in mind. Any interference is

particularly hard to fathom, given that this case and the Constand criminal action arise out of

different incidents. Moreover, in the cases that Defendant cites at Pages 11 to 12 of his Memo.,8

8TelexFree, as well asBridgeportandIn re Ivan F. Boesky Sec. Litig., 128 F.R.D. 47 (S.D.N.Y. 1989) and Javier H.

v. Garcia-Botello, 218 F.R.D. 72 (W.D.N.Y. 2003).



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it was the government who opposed discovery in the civil action, in order to avoid any

interference with the criminal action. That is not so here, presumably because it is implausible

that this civil action will interfere with the Constand criminal action.

There is no overlap between the allegations of this civil action and the Constand criminal

action. The only overlap of significance is that some of Defendants discovery responses in this

action maybe admissible in the Constand criminal action. At most this justifies a stay of

discovery addressed to Defendant (and, in the interests of fairness, discovery addressed to

Plaintiffs), not a stay of the entire case.

B.

Fairness demands that the Court stay discovery addressed toall

parties,not just discovery addressed to Defendant (Microfinancial factor (vi)).

Defendant should not be allowed to misuse a stay for gamesmanship purposes, by

obtaining discovery from Plaintiffs while claiming immunity to discovery addressed to himself.

Unfortunately, that is the state of affairs that has effectively persisted since discovery began in

this case. It should not be allowed to continue.

Once a criminal investigation against Defendant began in July of 2015, Defendant did not

file any motion later that year, requesting that the Court stay the action pending the disposition of

the investigation. To the contrary, Defendant opposed AIGs request to re-impose a stay, in

November of 2015, then intentionally broadened this action in December by filing his

counterclaims.

Nor did Defendant promptly move to stay the action once he was indicted on December

30, 2015, although Plaintiffs urged him to move promptly if he intended to move at all. To the

contrary, Defendant waited, and accepted Plaintiffs continued document production. Moreover,

as Defendant delayed, he conducted a deposition of one Plaintiff before he moved to stay, then

deposed a second Plaintiff after he moved to stay. Defendant has also noticed the service of



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subpoenas duces tecum upon several third parties, since being indicted. Meanwhile, Defendant

refused (and continues to refuse) to provide signed Answers to Interrogatories, or documents in

Response to Request for Production of Documents, purportedly on the basis of, inter alia, the

Fifth Amendment.

If Defendant was in good faith concerned about the pre-indictment criminal investigation

against him, then he should have moved to stay this case in advance of the November 30, 2015

resumption of discovery. Defendant did not, and he opposed a stay in December.

Furthermore, Defendant certainly should have moved to stay promptly after he was

indicted. It was not reasonable for Defendant to wait another month and delay until after the

Court of Common Pleas ruled upon his petition to dismiss the criminal action. Defendant could

have easily moved to stay this action pending the ruling of the Court of Common Pleas.

Instead, Defendant used his further delay to continue conducting significant discovery

both before and after filing his Motion to Stay. At the same time, Defendant has refused to

provide any substantive discovery responses, on the same asserted basis as his Motion to Stay.

Thus, Defendant has used his own delay to unilaterally impose a one-sided stay of this action to

block only Plaintiffs discovery, while still obtaining evidence from the Plaintiffs. Only now,

after acquiring substantial discovery responses from the Plaintiffs without giving any in return, is

Defendant seeking a stay.

It is not fair for Defendant to enjoy the benefits of a one-sided stay in discovery,

conducting his own discovery addressed to Plaintiffs while providing nothing in return.

See Lugo v. Alvarado, 819 F.2d 5, 6-7 (1st Cir. 1987) (rejecting motion for stay, in part, because

movant first conducted discovery to his own benefit). While Plaintiffs are currently amenable to

a stay of discovery addressed to Defendant (butsee supra at Footnote 1), a stay must be imposed



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on even terms. It would not be fair to subjectonlythe Plaintiffs to the burden of responding to

discovery requests. Furthermore,it would smack of gamesmanship for Defendant to conduct full

discovery (including depositions) with respect to every Plaintiff, giving him an opportunity to

strategically prepare his testimony and litigation strategy, before Defendant has to provide any

substantive discovery responses or deposition testimony at all. Any stay of discovery addressed

to Defendant, should also extend to Defendantsdiscovery addressed to Plaintiffs.

C. Staying the whole civil action for the entire duration of the Constand

criminal action would likely irreparably prejudice Plaintiffs. This case

arises out of alleged sexual assaults that occurred as long as 47 years ago,

and it is imperative that at least third-party discovery continue unabated

(Microfinancial

factors (i) and (vii)).

Plaintiffs are amenable to a stay of discovery addressed to the parties only. This will

allow third-party discovery to progress (e.g., Plaintiffs are in the midst of deposing Camille

Cosby, have served a subpoena duces tecum upon Dolores Troiani, and intend to depose and/or

subpoena documents from other third parties, including but not limited to Martin D. Singer, John

P. Schmitt, David Brokaw, Quincy D. Jones, Jr., and William Morris Endeavor). In the

meantime, while third-party discovery is ongoing, any need to continue staying discovery

addressed to Defendant may evaporate as the Constand criminal action may resolve, and/or this

Court may determine that Defendants right against self-incrimination is narrower than he

contends (an issue that Plaintiffs intend to squarely put before the Court by filing a motion to

compel Defendants discovery responses). Thus a limited stay may cause little or no delay in the

ultimate resolution of this case.

In contrast, staying the entirecase, including all discovery, would likely irreparably

prejudice Plaintiffs. See Intl Floor Crafts, Inc. v. Adams, 529 F. Supp. 2d 174, 176 (D. Mass.



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2007) (denying stay in spite of overlap between civil and criminal actions, to avoid prejudicing

plaintiff by delay).

On December 15, 2015, in the AIG action, this Court (with the support of Defendant)

denied AIGs motion to stay this civil action. Dkt. No. 45. At Page 10 of the Courts decision,

the Honorable Mark G. Mastroianni found:

[C]ontrary to AIGs arguments, the factthat the underlying events took place long

ago and the duty to defend issue can be resolved quickly militates against, not for,

staying the Underlying Litigation. As the alleged sexual assaults occurred in the

1960s and 1970s, delaying the Underlying Litigation would increase the dangerof prejudice resulting from the loss of evidence, including the inability of

witnesses to recall specific facts, or the possible death of a party. Clinton v.

Jones, 520 U.S. 681, 707-708 (1997).

See also K2 Unlimited, 15 F. Supp. 3d at 160 (Staying discovery would entail the risk of

losing evidence through the death of witnesses or fading memories.). Defendant is

collaterally estopped from contesting this ruling by the Court (although he attempts to do

so anyway, at Pages 6 to 7 of the Memo.). See Enica v. Principi, 544 F.3d 328, 337 (1st

Cir. 2008).

It is easy to demonstrate that staying the entire case would likely significantly

prejudice Plaintiffs and the discovery process. To take a few examples:

Plaintiffs will notice the deposition of Quincy D. Jones, Jr. for March 21,2015, under the expectation that Mr. Jones may have knowledge of

Defendants history of alleged sexual assaults. Upon information and belief,Mr. Jones is 82 years old, and news media have reported that he was rushed to

the hospital with chest pains in September of 2015. See Exhibit D, Michael

Jacksons legendary producer Quincy Jones rushed to hospital due to severe

chest pains, Dailymail.com, September 17, 2015, updated September 18,2015.

Walter M. Phillips, Jr., a spokesperson for Defendant who issued one of thedefamatory statements at issue in this case, passed away in February of 2015.



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Tom Ilius, an employee of the William Morris Agency (predecessor toWilliam Morris Endeavor) who forwarded a payoff from Defendant to

Plaintiff Therese Serignese in 1996, passed away in 2011.

This is to say nothing of the further loss or destruction of documents and tangible

evidence that is likely to result if the Court indefinitely stays this case entirely.

After all, Defendant is requesting what could be a very lengthy stay. The criminal

complaint against Defendant was filed on December 30, 2015. Under Pennsylvania Rule

of Criminal Procedure 600, trial need not commence for 365 days from that date,

although that deadline will be extended if Defendant delays the criminal proceedings.

(E.g., Defendant has already sought to delay the preliminary hearing in the Constand

criminal action, currently set for March 8, 2016. See Exhibit E, Defendant William H.

Cosby, Jr.s Motion to Amend the February 4, 2016 Order Denying His Petition for Writ

of Habeas Corpus to Certify the Order for Appeal Pursuant to 42 Pa. C.S. Section 702(b)

at 4 n.1.) In the event that Defendant is found guilty, he will also need to be sentenced.

Defendant would also likely appeal the conviction (indeed, he is already attempting to

appeal the Court of Common Pleas denial of his petition to dismiss). The Pennsylvania

Bar Association reports that, as of 2012, the median time for all appeals was 245 days.9

The First Circuit has expressed reservations about entering a stay where the defendant is,

in effect, asking to stay proceedings for an indefinite (and potentially protracted)

period. Microfinancial, 385 F.3d at 79.

At Page 6 of his Memo., Defendant asserts that Plaintiffs must demonstrate a

unique injury to defeat Defendants request to stay the entire case. That is not the law

of the circuit, asMicrofinancial holds that it is Defendant who bears a heavy burden to

substantiate the need for a stay, and the trial court should only stay a civil action if it is in

9Seehttp://www.pabar.org/public/committees/appellat/timeline/longappealtaketmore.asp.

http://www.pabar.org/public/committees/appellat/timeline/longappealtaketmore.asphttp://www.pabar.org/public/committees/appellat/timeline/longappealtaketmore.asphttp://www.pabar.org/public/committees/appellat/timeline/longappealtaketmore.asphttp://www.pabar.org/public/committees/appellat/timeline/longappealtaketmore.asp


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the interests of justice to do so. See 385 F.3d at 77-78. In any event, Plaintiffs meet even

the heightened standard asserted by Defendant. The great amount of time that has

already passed since the alleged sexual assaults against the Plaintiffs is the very reason

that a complete stay would substantially undermine the determination of the truth in this

case.10

It is imperative that the Court deny Defendants request to indefinitely delay the

entire case.

D. The public interest demands the prompt resolution of civil actions

in general, and this action in particular given widespread public

concern over the outcome (Microfinancial factor (v)).

Plaintiffs propose to proceed with third-party discovery for the time being, and in

the meantime further developments in this case and/or in the Constand criminal action

may later dispense with the need to continue staying discovery addressed to the parties.

Plaintiffs proposalwill minimize the delay of the resolution of this case. In contrast, a

stay of the entire case, as Defendant proposes, would be contrary to the presumption that

the public has an interest in prompt resolution of civil cases. See Fed. R. Civ. P. 1.

Microfinancial, 385 F.3d at 79 n.4.

10Even though every Plaintiff has filed her claims within one year of being defamed by Defendant, at Page 7 of his

Memo., Defendant insinuates that Plaintiffs have delayed in filing suit because they were assaulted more than a

decade ago. To answer this charge, Plaintiffs refer this Court to Defendants own previous opposition to staying this

action, which he filed in the AIG action. Dkt. No. 33. As Defendant previously noted at Pages 8-9:

AIG claims that a stay of the Green lawsuit pending a decision on the duty to defend will not

prejudice the Green plaintiffs. AIG claims that the Green plaintiffs cannot reasonably protest orobject to a stay because of the "temporal relationship between [the alleged wrongful acts in the

1960s and 1970s] and the claims in the Green case." AIG Memo. at 6. In other words, AIG claims

that the Green plaintiffs waited decades to bring claims against Mr. Cosby, and therefore cannot

complain about a delay of a few months. However, AIG gets it completely wrong. The Green

plaintiffs are not seeking recovery from Mr. Cosby for events in the 1960s and 1970s. They are

seeking recovery, and claim injury, based on statements first allegedly made by alleged agents of

Mr. Cosby in 2014. Therefore, AIG's notion that the Green plaintiffs delayed 40 or 50 years

simply is untrue.



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That interest is particularly strong in this case. As the intense media coverage

demonstrates, the public is watching this case closely. The public is also fiercely

debating who is telling the truth, as can be seen in the many online comment threads

regarding this case. The public has a strong interest in knowing whether a man of

Defendants fame and stature, who has donned the mantle of public moralist, is who he

claims to be, or instead a serial sexual assaulter. See generally Constand v. Cosby, 112 F.

Supp. 3d 308 (E.D. Pa. 2015 (declining to seal court filings in Ms. Constandscivil action

against Defendant). The public similarly has an interest in knowing whether Plaintiffs

are malicious liars (as Defendant counterclaims), or are in fact victims of Defendants

assaults.

Unduly delaying the determination of the truth may serve Defendants interests,

but not those of the public. The Court should act to vindicate the publics belief that the

judicial system can promptly resolve claims even against powerful members of our

society.

IV.

CONCLUSION

Defendant is not entitled to put a hold on this entire case, merely because he has

been criminally charged for an alleged sexual assault that occurred ten years after any of

the alleged sexual assaults underlying this case. Defendants request is particularly

dubious given the lack of overlap between this case and the Constand criminal action; his

gamesmanship in delaying his Motion to Stay and refusing to provide discovery

responses while he has conducted discovery addressed to Plaintiffs and third parties; and

the substantial prejudice to Plaintiffs that would likely result if the Court were to stay the

case entirely.



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Nevertheless, assuming that Defendant provides a personally signed certification

that he intends at his deposition to invoke the Fifth Amendment rather than answer

questions regarding his alleged sexual assaults, Plaintiffs are amenable to staying

discovery addressed to the parties. Staying discovery addressed to Defendant will

obviate the need for Defendant to invoke the Fifth Amendment, and fairness demands a

corresponding stay of discovery addressed to the Plaintiffs.

In the meantime, discovery addressed to third parties can and should proceed

unabated. Also in the meantime, Plaintiffs intend to file a motion to compel Defendants

discovery responses, to test the rightful breadth of Defendants privilege against self-

incrimination in this case. The outcome of that motion to compel, and/or developments

in the Constand criminal action, may provide cause to fully resume discovery again in

this action.

WHEREFORE, Plaintiffs respectfully request that the Court partially grant and partially

deny Defendants Motion to Stay, as set forth above.

Respectfully submitted,

/s/ Joseph Cammarata____

Joseph Cammarata, Esquire

Ira Sherman, EsquireMatthew W. Tievsky, Esquire

CHAIKIN, SHERMAN, CAMMARATA &

SIEGEL, P.C.

The Law Building1232 Seventeenth Street, N.W.

Washington, D.C. 20036

Ofc: (202) 659-8600

Fax: (202) 659-8680E-mail:[email protected]

Attorneys for All Plaintiffs

mailto:[email protected]:[email protected]:[email protected]:[email protected]


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REQUEST FOR HEARING

Plaintiffs hereby request that the Court hold a hearing on Defendants Motion.

/s/ Joseph Cammarata____Joseph Cammarata, Esquire

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the CM/ECF system will be sentelectronically to the registered participants as identified on the NEF on February 29, 2016.

/s/ Joseph Cammarata____

Joseph Cammarata



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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

WESTERN DIVISION

TAMARA GREEN, et al.,

Plaintiffs/Counter-Defendants,

v.

WILLIAM H. COSBY, JR.,

Defendant/Counter-Plaintiff.

Case No.: 3:14-cv-30211-MGM-DHH

ORDER

Upon consideration of Defendants Motion to Stay This Action Duringthe Pendency of His

Criminal Suit, and Plaintiffs Partial Opposition thereto, it is this ___ day of _______, 2016, hereby

ORDERED, that Defendants Motion is granted in part and denied in part; and it is furthermore

ORDERED, that within five days of the date of this Order, Defendant shall file a personally

signed declaration that he intends, at his deposition, to personally invoke his privilege against self-

incrimination rather than answer questions regarding any sexual assaults that he has allegedly committed;

and it is furthermore

ORDERED, that all discovery requests (including but not limited to interrogatories, requests for

production of documents, and depositions) by Plaintiffs addressed to Defendant, and by Defendant

addressed to Plaintiffs, are stayed until further Order of the Court; and it is furthermore

ORDERED, that this Order shall not preclude Plaintiffs from filing a motion to compel

Defendants discovery responses.

_______________________________________The Honorable Mark G. Mastroianni
