Andrea Constand v. William Cosby, Jr. , 833 F.3d 405 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 15-2797
________________
ANDREA CONSTAND
v.
WILLIAM H. COSBY, JR.,
Appellant
THE ASSOCIATED PRESS,
Intervenor-Appellee
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-05-cv-01099)
District Judge: Honorable Eduardo C. Robreno
________________
Argued April 13, 2016
Before: AMBRO, SMITH and KRAUSE, Circuit Judges
(Opinion filed: August 15, 2016)
George M. Gowen, III, Esquire (Argued)
Cozen O’Connor
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Patrick J. O’Connor, Esquire
Cozen O’Connor
200 Four Falls Corporate Center
P.O. Box 800, Suite 400
West Conshohocken, PA 19428
Counsel for Appellant
Gayle C. Sproul, Esquire (Argued)
Elizabeth Seidlin-Bernstein, Esquire
Levine Sullivan Koch & Schulz
1760 Market Street, Suite 1001
Philadelphia, PA 19103
Counsel for Intervenor-Appellee
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
William H. Cosby, Jr., appeals the District Court’s
order unsealing certain documents that reveal damaging
admissions he made in a 2005 deposition regarding his sexual
behavior. There was no stay of that order, and the contents of
2
the documents received immediate and wide publicity. While
the parties dispute whether the District Court properly
balanced the public and private interests at stake in unsealing
the documents, we must decide at the outset whether Cosby’s
appeal has become moot due to the public disclosure of their
contents. The Associated Press (the “AP”) argues in favor of
mootness because resealing the documents after they have
already become public will have no effect. Cosby claims this
is not the case for two primary reasons, as resealing the
documents would (1) at least slow the dissemination of their
contents and (2) might affect whether they can be used
against him in other litigation. For the reasons that follow,
we conclude that the appeal is moot.1
I. BACKGROUND
The unsealed documents result from a complaint filed
by Andrea Constand against Cosby in the District Court in
March 2005. Constand alleged that Cosby had 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.2 The deposition
1
The District Court had jurisdiction to hear this case
under 28 U.S.C. § 1332. We have jurisdiction to determine if
this appeal is moot, see White-Squire v. U.S. Postal Service,
592 F.3d 453, 456 (3d Cir. 2010), but as we conclude that it
is, we lack jurisdiction to decide the merits of it. See North
Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam).
2
“‘Quaalude’ is the brand name for the drug
Methaqualone, a non-barbiturate sedative-hypnotic that is a
general depressant of the central nervous system.” Mendoza
3
resulted in discovery disputes and the parties prepared to
litigate those disputes before the District Court.
After a telephone conference with counsel, the Court
entered an interim order in November 2005 requiring the
parties to file under seal their discovery motions and any
supporting documents. The AP then moved to intervene and
oppose the sealing order. The Court denied the motion on the
ground that the record was not yet sufficient to determine
whether a permanent seal was warranted. It ruled that the
interim sealing order would remain in effect until the parties
had conducted all necessary depositions in the case,
whereupon it would determine which documents should
remain sealed.
As the discovery process continued, the parties filed 16
documents, the ones before us, under the interim sealing
order. In certain of them, counsel for Constand and Cosby
quoted excerpts from the transcript of Cosby’s deposition and
summarized portions of his testimony. As a result, the
documents reveal that Cosby made a number of damaging
admissions during his deposition, including that he had: (1)
engaged in extramarital affairs; (2) acquired Quaaludes and
engaged in sexual relations with a woman after she ingested
the drug; and (3) given money to one woman and offered
money to Constand.
v. Secretary, Florida Dept. of Corrections, 761 F.3d 1213,
1217 n.3 (11th Cir. 2014) (internal quotation marks omitted).
As a result, ingesting Quaaludes may render someone
incapable of consenting to sex. See Gilardi v. Schroeder, 672
F. Supp. 1043, 1045 (N.D. Ill. 1986). Though Quaaludes
were legally available in the 1960s and 1970s, distribution of
them is now a federal crime. Gerald F. Uelmen et al., 1 Drug
Abuse and the Law Sourcebook § 3:58 (2015 ed.).
4
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 nonetheless continued in effect and the
documents remained sealed. Though in such circumstances
the District Court’s Local Rule 5.1.5(c) requires 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,3 eight years
passed without the Clerk taking any action.
3
Eastern District of Pennsylvania Local Rule of Civil
Procedure 5.1.5(c) provides:
If a document is still sealed at the conclusion of
the two-year period and the Court has not
entered an order continuing its sealed status
beyond that time, the Clerk of Court shall notify
the attorney for the party having submitted the
sealed document at the attorney’s address on the
docket that the document will be unsealed
unless the attorney or the submitting party
advises the Clerk within (60) days that said
attorney or submitting party objects. If the
attorney or submitting party objects to the
unsealing of the document or if the Clerk’s
notification is returned unclaimed, the Court
will make a determination, on a case-by-case
basis, whether to maintain the document under
seal, to unseal it, or to require further
notification.
5
That changed in December 2014 when the AP
requested that the Clerk issue such a notice and within weeks
the Clerk 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. The Court then set a
briefing schedule and heard oral argument. Cosby did not at
that time request a stay in the event that the Court ruled
against him and unsealed the documents.
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. In
order to balance Cosby’s privacy interest against the public
interest in access to the documents, the Court considered each
of the factors we set out in Pansy v. Borough of Stroudsburg,
23 F.3d 772 (3d Cir. 1994). In applying them, however, the
Court relied on the novel rationale that Cosby had reduced
privacy interests because he 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.” While the
parties extensively debate the propriety of this reasoning in
their briefs, it attracted little notice at the time in light of the
consequences of the accompanying order.
With no stay and 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
6
with.” Declaration of Maryclaire Dale, ¶ 4, Doc. No.
003112063414 (Sept. 2, 2015). Within hours, four more
news organizations had published stories regarding the
contents of the documents, and public interest in the story did
not abate thereafter. Indeed, allegedly due to a
misunderstanding of the scope of the Court’s order by a court
reporting service, 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 this Court.
At approximately the same time, Cosby and Constand
became embroiled in a further dispute in the District Court.
Each filed a motion for sanctions and injunctive relief,
alleging breach of the confidential settlement agreement. The
dispute ended when Constand and Cosby stipulated to
dismissal of their motions for lack of subject matter
jurisdiction.
While Constand declined to participate in this appeal,
the AP filed a motion to dismiss it as moot in light of the
public disclosure of the documents. Cosby argued that the
appeal was not moot because we could still order the
documents resealed. A motions panel of this Court issued a
preliminary denial of the motion to dismiss and referred the
matter to us.4 See Order, Doc. No. 003112118113 (Nov. 2,
2015).5
4
The denial was preliminary per Rule 10.3.5 of our
Internal Operating Procedures:
A motion panel may grant a motion to dismiss
an appeal. If the motion seeks dismissal for
7
II. MOOTNESS
To say that an appeal is moot means that the court
cannot provide the prevailing party with any relief. Chafin v.
Chafin, 133 S. Ct. 1017, 1023 (2013). If this is true, there is
no longer a controversy to decide as required by Article III of
the United States Constitution for the exercise of federal
judicial power. See id. Thus, we lack the ability (that is,
appellate jurisdiction) to decide it and “the appeal must be
dismissed.” Church of Scientology of California v. United
States, 506 U.S. 9, 12 (1992).
As a result, our analysis is “centrally concerned with
the court’s ability to grant effective relief.” County of Morris
v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001).
This is ordinarily a low bar, as “when a court can fashion
some form of meaningful relief, even if it only partially
redresses the grievances of the prevailing party, the appeal is
lack of jurisdiction or for untimeliness, and the
panel votes not to grant the motion, the motion
is referred by order, without decision and
without prejudice, to the merits panel.
5
In addition to this litigation, Cosby also has been
involved in numerous other legal proceedings that involve
allegations of sexual assault. These proceedings include civil
suits by other alleged victims against him, a lawsuit Cosby
filed against one of his accusers, and a criminal proceeding in
Montgomery County, Pennsylvania, stemming from the same
alleged conduct as Constand’s civil suit. These matters are
not before us, however, and we are limited to deciding this
particular appeal from the District Court’s order unsealing the
documents.
8
not moot.” In re Continental Airlines, 91 F.3d 553, 558 (3d
Cir. 1996) (internal quotation marks omitted) (emphasis in
original). While the prospect of partial relief is sufficient to
defeat mootness, mere speculation “afford[s] no basis for
finding the existence of a continuing controversy as required
by Article III.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d
690, 700 (3d Cir. 1996) (citing Rizzo v. Goode, 423 U.S. 362,
371-73 (1976); DeFunis v. Odegaard, 416 U.S. 312, 320 n.5
(1974)). However, we may consider any evidence bearing on
whether the appeal has become moot. See Clark v. K-Mart
Corp., 979 F.2d 965, 967 (3d Cir. 1992).
While Cosby argues that this appeal is not moot
because we could provide him with partial relief by ordering
the documents resealed, his own counsel has indicated that no
meaningful relief is possible. In the request for a stay,
Cosby’s counsel told the District Court that “[o]f course, if
the documents become public before … his appeal [is]
decided,” then an appeal “will be pointless.” App. at 757a.
Though the documents are public, Cosby now claims that
resealing them would at least slow their dissemination. In
particular, resealing them would prevent the Clerk of the
District Court from continuing to provide official copies of
the documents upon request (whether through the online
PACER system or on paper).
We and our sister circuit courts have held that appeals
seeking to restrain “further dissemination of publicly
disclosed information” are moot.6 Charles Alan Wright et al.,
6
United States v. Smith, 123 F.3d 140 (3d Cir. 1997),
is not to the contrary. There, prosecutors published on a
Government website a sentencing memorandum arguably
containing secret grand jury information, including the names
of uncharged accomplices of defendants, in violation of
9
13C Federal Practice & Procedure § 3533.3.1 & n.35 (3d ed.
2008) (collecting cases). In In re Orthopedic Bone Screw
Products Liability Litigation, 94 F.3d 110 (3d Cir. 1996), the
Food and Drug Administration (FDA) accidentally disclosed
the data underlying a medical study to the plaintiffs in a
Federal Rule of Criminal Procedure 6(e). Id. at 144. After
publication, and after the uncharged individuals named in the
sentencing memorandum complained to the District Court, it
ordered the Government to remove the memorandum from its
public website and to attempt to recover copies already
distributed. Id. at 144-45. On appeal, we held that the risk of
revealing additional, previously undisclosed, grand jury
secrets justified continuing protective measures. See id. at
154.
In a dictum, we then rejected the news media’s
argument that the District Court was “powerless … to prevent
all further disclosures by the [G]overnment” of secret grand
jury information simply because that information had already
been made public. Id. at 154. We noted that “[e]ven if the
dissemination by members of the public continues, the order
barring further disclosure of any secret grand jury material
will at least narrow that dissemination.” Id. at 155. This
aspect of Smith is easily distinguished by the type of
information disclosed (not to mention the changes in internet
technology since the opinion issued, making it much less
likely that resealing documents on a Government website will
lessen their dissemination). Simply put, courts have a
different — and significantly greater — institutional interest
in preserving the integrity of the grand jury process than they
do in protecting the information of private litigants. As this is
a typical civil litigation involving private parties in which all
of the documents at issue are already public, no such
institutional interest is at stake here.
10
multi-district litigation. Id. at 110 n.1. The Scoliosis
Research Society and Dr. Steven M. Mardjetko filed a motion
to stay any public disclosure of the data, but the District Court
denied the motion and authorized the plaintiffs to file the data
in a public comment with the FDA. Id. at 110-11. We held
that “[b]ecause that disclosure cannot now be undone, we will
dismiss the appeal … as moot.” Id. at 111. Public disclosure
cannot be undone because, as the Second Circuit has
explained in similar circumstances, “[w]e simply do not have
the power, even were we of the mind to use it if we had, to
make what has thus become public private again.” Gambale
v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004); see
also Doe No. 1 v. Reed, 697 F.3d 1235, 1238-1240 (9th Cir.
2012).
In light of the extensive publicity surrounding Cosby’s
admissions, we are similarly 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 news media have repeated his
damaging admissions countless times since then. Apart from
the traditional press, a Google search for “Bill Cosby
deposition testimony” yields as of August 12, 2016, 81,200
results, some of which include full copies of the documents
bearing the District Court’s PACER imprint. See, e.g., Diana
Moskovitz, Here Are The Documents Bill Cosby Didn’t Want
You to Read, Deadspin.com, (Jul. 6, 2015 6:42 PM),
http://deadspin.com/here-are-the-documents-bill-cosby-didnt-
want-you-to-rea-1716083975 (linking to full library of the
documents). While these are not technically official records,
“[i]f anyone with an internet connection can easily obtain
images of the original documents online, it is not clear why
anyone would bother filing an additional public records
request.” Doe No. 1, 697 F.3d at 1239. In short, when it
comes to public awareness of the documents’ contents, the
11
feathers of the pillow are scattered to the winds; nearly
everyone in America (and many more around the world) with
access to a computer either know what Cosby has admitted to
doing or could find out with a few clicks, and this will remain
true even if we order the documents resealed.
Any effect that resealing the documents might have on
the numerous other legal proceedings that result from sexual
assault allegations against Cosby (or might occur in the
future) is simply not enough to present a live controversy in
this appeal. Cosby argues 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. Reply Br. at 1-2.
In particular, he asserts that he could persuade these courts
that the documents are inadmissible and cannot otherwise be
used against him. Id.
This argument is fatally flawed. We held in In re
Cantwell, 639 F.2d 1050 (3d Cir. 1981), that an appeal
seeking “a ‘firm basis’” to seek relief from another court “[i]n
effect … ask[s] us to issue an advisory opinion, something we
may not do.” Id. at 1054. As advisory opinions are forbidden
by Article III’s requirement of a live controversy, the
Cantwell Court concluded that the appeal before it was moot.
See id. Given that Cosby expressly requests us to provide a
basis to make an argument to other courts, he also requests an
advisory opinion. Moreover, even if we could issue such an
opinion, Cosby cites no authority to the effect that sealing
documents in a civil case would render them inadmissible in
another litigation—indeed, sealed documents are often
admitted into evidence. See, e.g., United States v. Alexander,
901 F.2d 272, 273-74 (2d Cir. 1990) (per curiam). Hence this
argument is also too speculative to present us with a live
controversy.
12
While Cosby cites several cases in which the
possibility of an injunction limiting the future use of evidence
obtained through grand jury proceedings was sufficient to
defeat mootness — see In re Grand Jury Investigation, 445
F.3d 266 (3d Cir. 2006); Gluck v. United States, 771 F.2d 750(3d Cir. 1985); Matter of Special March 1981 Grand Jury,
753 F.2d 575 (7th Cir. 1985); United States v. Nix, 21 F.3d
347 (9th Cir. 1994) — these cases do not give us any basis to
meddle in the other proceedings involving sexual assault
allegations against Cosby. Under Federal Rule of Civil
Procedure 65(d)(2), a federal court’s power to order that a
binding injunction issue is limited to certain persons
connected to the case before it:
(A) the parties;
(B) the parties’ officers, agents, servants,
employees and attorneys; and
(C) other persons who are in active concert or
participation with anyone described in
[subsections] (A) or (B).
As each of the cited cases concerned the possibility of an
injunction against either the Government as a party to the
grand jury proceedings or those who had received grand jury
materials from the Government, there was no reason to doubt
the court’s power to order such an injunction under Rule
65(d)(2). In this appeal, however, Cosby has not identified
whom he would seek to enjoin, and to the extent that he
suggests it would be his adversaries in other cases, they are
not parties to this litigation and Cosby does not allege that
they are acting in concert with any party.7 We thus have no
7
Although Beth Ferrier and Rebecca Cooper, two
plaintiffs against Cosby in another case, moved to intervene
in the proceedings regarding alleged breach of the settlement
13
basis to conclude that that there is any “potential availability
of a future-use injunction” to save this appeal from mootness.
See In re Grand Jury Investigation, 445 F.3d at 273.
We have considered Cosby’s remaining arguments
against mootness and find them unpersuasive. We cannot
issue an advisory opinion simply to “make clear” to the news
media that the District Court’s order does not entitle them to
access any documents beyond those already unsealed. Reply
Br. at 4. Similarly, even assuming that resealing the
documents would enable Cosby to file the settlement
agreement under seal in support of his claim that Constand
breached it, he stipulated to dismissal of that claim for lack of
subject matter jurisdiction. Though the dismissal was without
prejudice, any prospect of relief in that proceeding is entirely
an imaginative guess. We therefore conclude that resealing
the documents would not provide Cosby with any meaningful
relief, and thus this appeal is moot.
III. WHETHER TO VACATE THE DISTRICT
COURT’S ORDER
As this appeal is moot, we cannot review the merits of
the District Court’s decision to unseal the documents and
must decide what course is appropriate. We have equitable
discretion to vacate the District Court’s order, Old Bridge
Owners Co-op Corp. v. Township of Old Bridge, 246 F.3d
310, 314 (3d Cir. 2001), which would prevent its decision
from “spawning any legal consequences.” Rendell v.
Rumsfeld, 484 F.3d 236, 243 (3d Cir. 2007) (internal
agreement, Cosby’s description of them as “non-parties” is
apt. Opp. to Mot. to Dismiss at 8. They did not become
parties, as the District Court denied their motion to intervene.
See Order, ECF No. 128 (Dec. 21, 2015).
14
quotation marks omitted). As a general rule, “when a case
becomes moot pending disposition of an appeal, the judgment
below will be vacated.” Old Bridge, 246 F.3d at 314 (internal
quotation marks omitted). This is done 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. See U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 25 (1994).
The only recognized exception to this rule is when
“mootness results from settlement” and thus “the losing party
has voluntarily forfeited his legal remedy.” Lightner ex rel.
N.L.R.B. v. 1621 Route 22 West Operating Co., 729 F.3d 235,
237-38 (3d Cir. 2013) (quoting Bancorp, 513 U.S. at 25).
Refusing to vacate in those circumstances prevents parties
from attempting to “manipulate the [judicial] system” by
settling the case in order to vacate an unfavorable decision.
Rendell, 484 F.3d at 243.
Although the claims of the AP are not settled, it
nonetheless contends that Cosby forfeited his right to appeal
by failing to make a timely motion to stay the District Court’s
order. While the Tenth Circuit and the D.C. Circuit have
declined to vacate when the losing party has made no attempt
whatsoever to seek a stay — see Mahoney v. Bobbitt, 113
F.3d 219 (D.C. Cir. 1997); In re Western Pacific Airlines, 181
F.3d 1191 (10th Cir. 1999) — that is not what happened here.
Cosby’s counsel requested a stay within an hour of receiving
the District Court’s order, and while this proved to be too late
to prevent the documents from becoming public, there is
certainly no evidence that it was part of any attempt to
manipulate the judicial system.
Though we follow the general rule and vacate the
District Court’s order, we point out that our decision does not
express any view on whether the documents should have been
15
unsealed. That question implicates how to balance significant
public and private interests, and we leave the problem of
striking that balance for another day.8 Our decision merely
recognizes the limits of our own power in this case. The
contents of the documents are a matter of public knowledge,
and we cannot pretend that we could change that fact by
ordering them resealed. We thus vacate the District Court’s
order and dismiss this appeal as moot.
8
While we are without jurisdiction to review this question, it
is worth noting that, if we could review it, we would have
serious reservations about the District Court’s “public
moralist” rationale. It has no basis in our jurisprudence
regarding the conditions for modifying a protective order as
set forth in Pansy and its progeny. Moreover, the term
“public moralist” is vague and undefined.
16