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

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MASSACHUSETTS
WESTERN DIVISION
TAMARA GREEN, et al.,
Plaintiffs/Counter-Defendants,
v.
Case No.: 3:14-cv-30211-MGM-DHH
WILLIAM H. COSBY, JR.,
Defendant/Counter-Plaintiff.

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 selfincrimination.
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 2 of 20

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 Habeas Corpus. Rather,
when Ms. Constand sued Defendant in 2005 and took his deposition, Defendant simply assumed
1

Furthermore, 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 sexual
assaults 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 in the 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 homeowners insurance policy carrier, AIG Property Casualty Company (AIG),
filed a separate declaratory action against Defendant and several of the Plaintiffs, 3:15-cv-30111
2

In 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. Plaintiff Green 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 broadened the 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 noted supra) 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) (citing Austin 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 in Microfinancial, 385 F.3d at 77-78:
[A] defendant has no constitutional right to a stay simply because a parallel
criminal proceeding is in the works. See United 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 criminal
and 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. See Kordel, 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-specific
task, 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 the
decisional 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, including
the 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, 660
F. 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).

This case does not implicate Microfinancial factor (iv).

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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 there
is 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 overlap between 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 every other 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

Of 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 anticipated that Defendant would

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overlap, there is no good cause to stay this case entirely. The mere fact that Defendant has been
indicted for committing a sexual assault in 2004 does not entitle him to completely stay the many
civil actions against him arising out of other sexual assaults he allegedly committed more than a
decade (or decades) previously. See SEC v. K2 Unlimited, Inc., 15 F. Supp. 3d 158, 161 (D.
Mass. 2014) (declining to stay a civil enforcement action in favor of a criminal action for lack of
factual overlap, notwithstanding that both actions concerned violations of securities laws).
Defendant is left to argue that some of his discovery responses adduced in this case may
be used in the Constand criminal action. In the first place, even if this were true, Defendant has
not cited any precedent for the extreme position that a civil action arising out of one incident
should be entirely stayed in favor of a criminal action arising out of a different incident, merely
because some portion of evidence in the civil action might be admitted in the criminal action. To
the contrary, again see K2 Unlimited, supra; presumably, evidence in that civil action might have
been admissible in the criminal action, because they both arose out of securities laws violations,
yet this Court refused to enter a stay.
Furthermore, Defendant fails to demonstrate that any evidence regarding the
circumstances of Defendants alleged sexual assaults in this case, will even be admissible in the
Constand criminal action. Indeed, Defendant is careful to note that he contends it would be
wholly improper for the evidence adduced in this case to be admitted in the Constand criminal
action. Memo. at 13. Nevertheless, Defendant asserts broadly that even alleged victims of
uncharged crimes may testify in criminal trials in an attempt to prove a pattern of behavior or
propensity to commit a crime, and in support thereof Defendant cites Pennsylvania Rule of
Evidence 404 and Commonwealth v. Lockuff, 813 A.2d 857 (Pa. 2002).
inquire into the underlying murder charges when deposing Plaintiff regarding the circumstances of his arrest. Id. at
22. Thus even Tucker is unlike this case, in that the civil and criminal actions overlapped; the civil action literally
arose out of the criminal prosecution.

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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 event particularly given that Defendant is already refusing to provide substantive
discovery6 Plaintiffs 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

In 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.
6
Assuming 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 courts Microfinancial 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 (quoting Paine, 486
F. Supp. at 1119).
Defendant asserts that this general principle does not hold true here because, [w]here the
[c]ourt suspects that further amendments and dispositive motions are in the offing [] under those
circumstances, delay is not likely to inconvenience this Court. Memo. at 11 (quoting Zavatsky
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).

Plaintiffs 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. See Memo. 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 Courts judicial 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. at 11. 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., in Estate 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

TelexFree, as well as Bridgeport and In 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 may be 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 to all 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 (but see supra at Footnote 1), a stay must be imposed

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on even terms. It would not be fair to subject only the 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 Defendants discovery 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 entire case, 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 fact that 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 danger
of 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 the
defamatory 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 to


William 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, as Microfinancial 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
9

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

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Case 3:14-cv-30211-MGM Document 217 Filed 02/29/16 Page 17 of 20

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 proposal will 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.

10

Even 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 or
object 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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Case 3:14-cv-30211-MGM Document 217 Filed 02/29/16 Page 18 of 20

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. Constands civil 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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Case 3:14-cv-30211-MGM Document 217 Filed 02/29/16 Page 19 of 20

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 selfincrimination 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, Esquire
Matthew W. Tievsky, Esquire
CHAIKIN, SHERMAN, CAMMARATA &
SIEGEL, P.C.
The Law Building
1232 Seventeenth Street, N.W.
Washington, D.C. 20036
Ofc: (202) 659-8600
Fax: (202) 659-8680
E-mail: joe@dc-law.net
Attorneys for All Plaintiffs

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

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 sent
electronically 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.
Case No.: 3:14-cv-30211-MGM-DHH
WILLIAM H. COSBY, JR.,
Defendant/Counter-Plaintiff.

ORDER
Upon consideration of Defendants Motion to Stay This Action During the 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 selfincrimination 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

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