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Media Alerts - Andrea Constand v. William H. Cosby, Jr. - Third Circuit
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August 24, 2016
  Andrea Constand v. William H. Cosby, Jr. - Third Circuit
Headline: Third Circuit Holds that Cosby's Request to Reseal Documents Containing Sexual Admissions is Moot

Area of Law: Civil Procedure, Mootness

Issue(s) Presented: Has William Cosby's appeal to reseal documents become moot due to the public disclosure of their contents?

Brief Summary:

William H. Cosby, Jr. made damaging admissions regarding his sexual conduct in a 2005 deposition. Documents from the deposition were sealed from public view by an interim order issued by the District Court. In 2015, the District Court issued an order that the documents be immediately unsealed. Wide dissemination of the documents by prominent news sources promptly followed, which made public that Cosby had engaged in extramarital affairs; acquired Quaaludes and engaged in sexual relations with a woman after she ingested the drug; and had given money to one woman and offered money to Constand. The Third Circuit rejected Cosby's argument that resealing the documents would at least slow the dissemination of their contents and might affect whether they could be used against him in other litigation. It held that the appeal had become moot due to the public disclosure of their contents so that resealing the documents would have no effect.

Extended Summary:
William H. Cosby, Jr. appealed to the Court the District Court order unsealing certain documents that revealed damaging admissions he made in a 2005 deposition regarding his sexual behavior. There was no stay of that order, and the contents of the documents received immediate and wide publicity. The unsealed documents result from a complaint filed by Andrea Constand against Cosby in the District Court in March 2005. Constand alleged that Cosby has drugged and sexually assaulted her at his home. As part of the discovery process, Constand's counsel took Cosby's deposition and questioned him regarding his relationships with other women, including whether any of these women had ingested Quaaludes prior to a sexual encounter. The documents thus reveal that Cosby made a number of damaging admissions during his deposition, including that he had: engaged in extramarital affairs; acquired Quaaludes and engaged in sexual relations with a woman after she ingested the drug; and given money to one woman and offered money to Constand. However, these documents were sealed under an interim order issued by the District Court in November 2005.

Before the District Court could rule on whether the documents should remain sealed permanently, Cosby and Constand reached a confidential settlement in October 2006, and the case was dismissed shortly thereafter. The interim sealing order continued in effect and the documents remained sealed. The District Court's Local Rules require that the Clerk of Court send a notice to the attorney for the party who submitted the sealed documents stating that the documents will be unsealed unless an objection is filed. Eight years passed without the Clerk taking any action. In December 2014, the AP requested that the Clerk issue such a notice. The Clerk then placed a notice on the District Court docket stating that the documents would be unsealed within 60 days unless an objection was filed. Cosby's counsel filed an objection and the District Court allowed the AP to intervene and argue for lifting the interim sealing order. Cosby did not request a stay at this time. On July 6, 2015, the District Court issued an order that the documents be immediately unsealed and accompanied the order with a 25-page opinion explaining its reasoning.

Without a stay and with the District Court's instruction that the Clerk unseal the documents "forthwith," an AP reporter discovered that the documents were publicly available and downloaded them within minutes of the online posting. Though Cosby's counsel emailed a stay request to the Court less than 20 minutes later, it was too late to prevent the media from publicizing Cosby's damaging admissions. The AP sent out a "news alert" reading "Documents: Cosby admitted in 2005 to getting Quaaludes to give to women he sought sex. Within hours, four more news organizations had published stories regarding the contents of the documents. In addition, The New York Times obtained a full transcript of the deposition and published excerpts on its website. In the wake of this publicity, the District Court did not rule on Cosby's stay request, and he filed a notice of appeal to the Court.

The Court held that Cosby's appeal has become moot due to the public disclosure of their contents. The Associated Press (the "AP") argued in favor of mootness because resealing the documents after they have already become public will have no effect. Cosby argued that this was not the case as resealing the documents would at least slow the dissemination of their contents and might affect whether they could be used against him in other litigation.

The Court noted that it has previously held that appeals seeking to restrain further dissemination of publicly disclosed information are moot. In light of the extensive publicity surrounding Cosby's admissions, the Court was without power to affect the dissemination of the unsealed documents' contents in any meaningful way. Five prominent news organizations published articles about the documents within hours of the District Court's order and the media has repeated his damaging admissions countless times since then. In addition, a Google Search for "Bill Cosby deposition testimony" yields some 81,200 results, some which include full copies of the documents. The Court noted that anyone with an Internet connection can easily obtain images of the original documents online, so it is not clear why anyone would bother filing an additional public records request.

The Court also held that any effect that resealing the documents might have on the numerous other legal proceedings that result from sexual assault allegations against Cosby are not enough to present a live controversy in the appeal. The Court rejected Cosby's argument that resealing the documents would leave him "better positioned" to persuade "the various courts in which he finds himself a party" to limit the use of the documents in the proceedings before them. The Court stated that this argument effectively requested an advisory opinion, and that Cosby failed to cite any authority to the effect that sealing documents in a civil case would render them inadmissible in another litigation. Sealed documents are often admitted into evidence. Thus resealing the documents would not provide Cosby with any meaningful relief and the appeal was moot.

Because the appeal was moot, the Court could not review the merits of the District Court's decision to unseal the document. However, it exercised its equitable discretion to vacate the District Court's order, which would prevent its decision from "spawning any legal consequences." The Court vacated the District Courts' order out of concern for procedural fairness, namely that parties should not remain bound by a decision that the court of appeals cannot review because it has become moot.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/152797p.pdf

Panel: Ambro, Smith, and Krause, Circuit Judges

Argument Date: April 13, 2016

Date of Issued Opinion: August 15, 2016

Docket Number: No. 15-2797

Decided: Vacated and Dismissed

Case Alert Author: Cynthia C. Pereira

Counsel: George M. Gowen, III, Patrick J. O'Connor, Counsel for Appellant; Gayle C. Sproul, Elizabeth Seidlin-Bernstein, Counsel for Intervenor-Appellee.

Author of Opinion: Circuit Judge Ambro

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/24/2016 03:50 PM     3rd Circuit  

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