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Damaging Cosby Deposition Is Too Public to Reseal, 3rd Cir. Rules

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By Casey C. Sullivan, Esq. on August 17, 2016 1:57 PM

Deposition documents that revealed Bill Cosby's extramarital affairs and use of Quaaludes as a seduction technique will not be resealed, the Third Circuit ruled on Monday. Those documents, which included a series of damaging admissions by the comedian, had been so widely disseminated that resealing the documents would do nothing to stop their public disclosure.

Cosby's admissions were made during depositions in a 2005 civil suit against Cosby, brought Andrea Constand, who accused Cosby of drugging and sexually assaulting her. Constand dropped her suit, but Cosby's deposition was eventually unsealed in response to a motion by the Associate Press last year, after dozens of women came forward with similar accusations.

Damaging Testimony, Quickly Distributed

In the depositions, Bill Cosby admits to a series of affairs and acknowledged that he gave women Quaaludes as part of his attempts to seduce them. Quaaludes, a powerful sedative, were a common "party drug" in the 1970's, until they was withdrawn from the market in the 1980's, following negative publicity surrounding their connection to addiction, overdoses, and sexual assault. On the record, Cosby admitted to giving women he wanted to sleep with Quaaludes "the same as a person would say have a drink."

That testimony was unsealed last July, after U.S. District Judge Eduardo Robreno agreed to release the documents in part because Cosby had "donned the mantle of public moralist and mounted the proverbial electronic or print soap box to volunteer his views on, among other things, childrearing, family life, education and crime."

Within minutes, that testimony was everywhere. The ABA Journal recounts its quick dissemination:

AP had downloaded the unsealed documents after Robreno's decision, before Cosby's counsel emailed a stay request to the court 20 minutes later. The New York Times later obtained the entire deposition, apparently because of a misunderstanding by a court reporting service.

By the time Cosby's resealing case made it to appellate court, the Third Circuit noted, a Google search for "Bill Cosby deposition testimony" resulted in more than 80,000 results.

Ya Can't Put the Quaalude-Drugged Genie Back in the Bottle

Cosby sought to reseal the documents, arguing that doing so would slow their dissemination and could affect their use in other litigation. But the Third Circuit wasn't convinced. As Cosby's attorneys had argued in district court, if the documents were made public, any appeal "will be pointless." And given how easy the documents are to find, any attempt to restrain access to them would be fruitless, meaning the court could grant no effective relief.

While the propriety of the depositions release was not before the court, the Third Circuit made it clear that the district court's logic was questionable, at least. In a footnote, Judge Thomas L. Ambro noted that the court had "serious reservations" about Judge Robreno's "'public moralist' rationale." That reasoning "has no basis in our jurisprudence," while "the term 'public moralist' is vague and undefined.'"

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