Constand v. Castor

RESPONSE in Opposition re MOTION to Seal Document Imposed

E.D. Pa.October 2, 2017

00181816.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA ANDREA CONSTAND : Plaintiff, : : CIVIL ACTION NO. 2:15-CV-05799-ER v. : : BRUCE CASTOR : Defendant. : DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO MAINTAIN SEAL Bruce Castor, by and through counsel, respectfully moves this Court to enter the attached Order, denying Plaintiff’s Motion to Maintain the Interim Seal on Plaintiff’s Deposition Transcript and denying Plaintiff’s request that Defendant’s Summary Judgment Motion be filed under seal. In support of this Motion, Bruce Castor incorporates, by reference, the accompanying Memorandum of Law. Respectfully submitted, KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: /s/ Justin A. Bayer, Esquire JUSTIN A. BAYER, ESQUIRE ROBERT CONNELL PUGH, ESQUIRE Attorney ID Nos. 93546 / 62566 510 Swede Street Norristown, PA 19401 Phone: 610-275-2000 Fax: 610-275-2018 Email: jbayer@kanepugh.com Attorneys for Bruce Castor Dated: October 2, 2017 Case 2:15-cv-05799-ER Document 130 Filed 10/02/17 Page 1 of 9 00181816.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA ANDREA CONSTAND : Plaintiff, : : CIVIL ACTION NO. 2:15-CV-05799-ER v. : : BRUCE CASTOR : Defendant. : ORDER AND NOW this ________________day of ____________, 2017, upon consideration of Plaintiff’s Motion to Maintain the Seal Imposed by the Court, and Defendant’s response thereto, it is hereby ORDERED and DECREED that the Motion is Denied. It is further ORDERED and DECREED that Plaintiff’s request that Defendant’s Summary Judgment Motion be filed under seal is Denied. BY THE COURT: Eduardo C. Robreno, J. Case 2:15-cv-05799-ER Document 130 Filed 10/02/17 Page 2 of 9 00181816.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA ANDREA CONSTAND : Plaintiff, : : CIVIL ACTION NO. 2:15-CV-05799-ER v. : : BRUCE CASTOR : Defendant. : DEFENDANT BRUCE CASTOR’S MEMORANDOM OF LAW IN SUPPORT OF RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO MAINTAIN INTERIM SEAL IMPOSED ON PLAINTIFF’S DEPOSITION Bruce Castor submits this Memorandum of Law in support of his Response in Opposition to Plaintiff’s Motion to Maintain Interim Seal. I. Introduction On September 12, 2017, this Court issued a Rule for Plaintiff to show cause why the interim seal on Plaintiff’s deposition transcript should not be lifted. Rather than attempt to show cause, Plaintiff spends the first six pages of her Memorandum leveling nonsensical, false accusations intending to impugn the professional reputation of Mr. Castor. Rather than wasting the Court’s time disproving each falsehood, Defendant will address the request of the Court. As a threshold matter, Defendant does not need to “unredact” portions of Plaintiff’s deposition transcript provided Plaintiff stipulates she does not personally know any of the individuals on the internet who have made negative comments about her which she contends is an element of her damages in this case. Further, Defendant does not intend to attach any interrogatory responses or expert reports to his Summary Judgment Motion. On September 7, 2017, Defendant simply sought guidance from the Court concerning earlier Orders placing an interim seal on Plaintiff’s deposition transcript. Defendant is prepared to file his Summary Judgment motion and Case 2:15-cv-05799-ER Document 130 Filed 10/02/17 Page 3 of 9 00181816.1 requests the interim seal on Plaintiff’s deposition be lifted. As there is no basis to maintain the interim seal or require Summary Judgment Motion be filed under seal, Defendant files this response in opposition to Plaintiff’s Motion. II. Legal Argument In order to prevail on her Motion to keep her deposition sealed and to require Defendant to file his Summary Judgment Motion under seal, Plaintiff must show good cause. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). Good cause can be established by showing that disclosure will work a clearly defined and serious injury to the party seeking closure. W. Penn Allegheny Health Sys., Inc. v. UPMC, 2011 U.S. Dist. LEXIS 149143, 2012 WL 512681 at 4-5 (W.D. Pa. Feb, 2011) (citing Pansy, 23 F.3d at 786). The party seeking the sealing of part of the judicial record "bears the burden of showing that the material is the kind of information that courts will protect" and that "disclosure will work a clearly defined and serious injury to the party seeking closure." In re Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001) (citing Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)). In order to meet this burden, the party seeking closure must provide specificity when delineating the injury to be prevented. See Publicker, 733 F.2d at 1071. As explained by this Court in Constand v. Cosby: The Third Circuit has emphasized that good cause must be shown by "articulat[ing] a[] specific, cognizable injury from th[e] dissemination" of the material at issue. Id. at 484. "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing." Pansy, 23 F.3d at 786 (internal quotation marks omitted). Overall, in determining good cause, a court must weigh the injuries that disclosure may cause against the other party's or the public's interest in the information. See Id. at 787-91. Finally, the Third Circuit has, stated that "[i]n determining whether any document or portion thereof merits protection from disclosure," a court should be mindful that "continued sealing must be based on 'current evidence to show how public dissemination of the pertinent materials now would cause the . . . harm [the party Case 2:15-cv-05799-ER Document 130 Filed 10/02/17 Page 4 of 9 00181816.1 seeking protection] claim[s].'" Leucadia, 998 F.2d at 167 (quoting Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 663 (3d Cir. 1991)). The Third Circuit has set forth several factors for courts to consider in deciding if “good cause” is shown. Pansy v. Borough of Stroudsburg, 23 F. 3d 722, 786-87 (3d Cir. 1994). Among the relevant Pansy factors to be considered in this case are: (i.) whether a disclosure violates a privacy interest; (ii.) legitimate purpose or an improper purpose; (iii.) whether disclosure will cause a party embarrassment; (iv.) whether sharing of information among litigants will promote fairness and efficiency; (v.) whether the case involves issues important to the public. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citing Pansy, 23 F.3d at 787-91)). i. There is no privacy interest at issue that justifies a seal. The only arguable issue which made this case any different from others was because it involved an accusation of sexual assault against a celebrity. However, the facts of Commonwealth v. Cosby have received world-wide media attention, Plaintiff has already testified in the criminal trial and there are no on-going privacy concerns as that trial is over. The retrial of Commonwealth v. Cosby, if it happens, bears no relevance on this matter as Plaintiff has already testified in the first criminal trial. Moreover, Plaintiff “finds herself in litigation” with Mr. Castor because she filed a lawsuit against him one week before an election publicly accusing him of wrongdoing and alleging damages. Should Plaintiff’s case survive Summary Judgment, Plaintiff will testify at trial to attempt to substantiate her claims. Plaintiff knowingly gave up certain privacy rights, the same as any other Plaintiff. Accordingly, there is no on-going privacy issue that justifies a seal. ii. A seal serves no legitimate purpose. There is neither a legitimate purpose for the Motion to be filed under seal nor an improper purpose for Mr. Castor’s request that the Motion not be sealed. Mr. Castor seeks to do what every Case 2:15-cv-05799-ER Document 130 Filed 10/02/17 Page 5 of 9 00181816.1 defendant has the right to do – to defend himself against baseless claims. Requiring the truth to be sealed serves no legitimate purpose. iii. Plaintiff fails to address how her embarrassment justifies a seal. Plaintiff fails to establish how the Motion for Summary Judgment will cause her embarrassment. The law requires that “an applicant for a protective order whose chief concern is embarrassment must demonstrate that the embarrassment will be particularly serious." Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986); see also Shingara v. Skiles, 420 F.3d 301, 307 (3d Cir. 2005) (requiring a showing of a "risk that particularly serious embarrassment will result from the release of the documents" (internal quotation marks omitted). Plaintiff makes no such showing here because she cannot. The details of this lawsuit and her testimony have been widely reported both locally, nationally, and around the world. Further, Cosby already has a copy of the redacted deposition transcript. Plaintiff testified for a day and a half in the criminal trial. She has not shown how she would suffer any specific and severe injuries. Plaintiff’s financial records are no longer at issue as she has stipulated she will not seek to recover lost business profits. Plaintiff fails to articulate any embarrassment which would justify a seal. iv. Fairness weighs against maintaining the seal. Plaintiff’s Motion is silent on the fairness factor. Mr. Castor is entitled to defend himself against the allegations made by Plaintiff in the same public manner in which the accusations against him have been made. To allow Plaintiff to file motions that include countless baseless and untrue accusations that only have the purpose of smearing the professional and personal reputation of Mr. Castor, and then ask that he be forced to file his Summary Judgment Motion under Seal is fundamentally unfair. v. Public importance weighs against the seal. Case 2:15-cv-05799-ER Document 130 Filed 10/02/17 Page 6 of 9 00181816.1 The public importance of this case is that a former District Attorney has been sued for defamation for answering questions from the media during the course of an election on an issue raised by an opponent. To be clear, Mr. Castor gave his opinion on why charges were not brought against Cosby in 2005 – because there was insufficient credible and admissible evidence to secure a conviction beyond a reasonable doubt. Mr. Castor was proven correct. However, Mr. Castor seeks Summary Judgment in this matter because the defamation claims fail as a matter of law, and his Motion should be filed publicly. Because Plaintiff’s Motion is fraught with misrepresentations about the history of confidentiality concerns in this case Defendant must set the record straight. Plaintiff blatantly misrepresents the history of Defendant’s Motion to Compel her Medical Examination filed in June 2017 [ECF 118]. The Motion to Compel was not stricken because it contained information redacted by this Court. The Motion to Compel was withdrawn and stricken from the docket by agreement of the parties because Plaintiff finally agreed to appear for her Examination and the Motion was moot. Moreover, the Motion did not contain any “information redacted by this Court”, as Plaintiff misrepresents in her Memorandum. Further, Plaintiff has displayed pattern of obstruction regarding discovery throughout this case. Mr. Castor had to file Motions to compel discovery responses, to Overrule Objections, to Compel Plaintiff’s deposition and a medical examination. Despite filing a lawsuit in which she is claiming emotional and financial damages, Mr. Castor had to file multiple motions to obtain basic discovery regarding her damages. Initially, Plaintiff produced her medical records without making any request for these records to be subject to a confidentiality agreement. Plaintiff also identified various medical providers with no request that the information be subject to a confidentiality agreement. However, when Defendant requested that Plaintiff sign authorizations for the release Case 2:15-cv-05799-ER Document 130 Filed 10/02/17 Page 7 of 9 00181816.1 of her records, Plaintiff refused, forcing Defendants to file a Motion which was granted by this Court. Plaintiff’s counsel ultimately said that “we have the authorizations but believe there should be a confidentiality agreement as to any of Andrea’s psychological and medical records.” Despite Plaintiff putting her mental health at issue as an element of damage Defendant agreed to a Confidentiality Agreement regarding the medical records. A copy of the Agreement signed by Defense Counsel is attached as Exhibit “A”. Plaintiff never provided Defendant with a signed copy of the Agreement. Despite Plaintiff’s willful misrepresentations, Defendant still intends to honor the Agreement by not attaching medical records to his Motion for Summary Judgement. III. Conclusion Plaintiff was ordered to show cause why the interim seal should not be lifted on her deposition transcript. Plaintiff has failed. For all the foregoing reasons and case law cited therein, Defendant’s Motion for Summary Judgement should not be filed under seal and the interim seal on Plaintiff’s redacted deposition should be lifted. Respectfully submitted, KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: /s/ Justin A. Bayer, Esquire JUSTIN A. BAYER, ESQUIRE ROBERT CONNELL PUGH, ESQUIRE Attorney ID Nos. 93546 / 62566 510 Swede Street Norristown, PA 19401 Phone: 610-275-2000 Fax: 610-275-2018 Email: jbayer@kanepugh.com Attorneys for Bruce Castor Dated: October 2, 2017 Case 2:15-cv-05799-ER Document 130 Filed 10/02/17 Page 8 of 9 00181816.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA ANDREA CONSTAND : Plaintiff, : : CASE NO. 2:15-CV-05799-ER v. : : BRUCE CASTOR : Defendant. : CERTIFICATE OF SERVICE I, Justin A. Bayer, Esquire, hereby certify that a true and correct copy of the Defendant Bruce Castor’s Response in Opposition to Plaintiff’s Motion to Maintain Seal was served upon all counsel of record via U.S. Mail and e-mail on the date listed below: Respectfully submitted, KANE, PUGH, KNOELL, TROY & KRAMER LLP BY: /s/ Justin A. Bayer, Esquire JUSTIN A. BAYER, ESQUIRE ROBERT CONNELL PUGH, ESQUIRE Attorney ID Nos. 93546 / 62566 510 Swede Street Norristown, PA 19401 Phone: 610-275-2000 Fax: 610-275-2018 Email: jbayer@kanepugh.com Attorneys for Bruce Castor Dated: October 2, 2017 Case 2:15-cv-05799-ER Document 130 Filed 10/02/17 Page 9 of 9