CONFORIV1ED

1 Angela C. Agrusa (SBN 1313 3 7)

aagrusa@linerlaw. com
2 LINERLLP
1100 Glendon Avenue, 14th Floor .
3 Los Angeles, California 90024.3518
Telephone:
(31 0) 500-3500
4 Facsimile:
(31 0) 500-3 501

CONfUAMt;O COPY
ORIGINAL FILED

superior court of CalR,9.mla

Countv nt Los Anqe es

OCT 2 4 2016
shern. R. Carter Executive Officer/Cle.._rk
By Sandra Mixon, Deputy

5
6 Attorneys for Defendant William Henry Cosby, Jr.

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8

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUN TY OF LOS ANGELES, WEST DI~TRICT

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Case No. BC565560

JUDY HUTH,

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Plaintiff,

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DEFENDANT'S OPPOSITION TO
PLAINTIFF'S MOTION TO STAY ALL
DISCOVERY
Date:
Time:
Dept.:

November 4, 2016
8:30 a.m.
N

The Hon. Craig D. Karlan

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47612.004-3407306

Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

TABLE OF CONTENTS

1
2
3 I.

INTRODUCTION ........................................................................................................................ 1

4 II.

RELEVANT FACTS .................................................................................................................... 3

A.

The Underlying Action and the Unrelated Criminal Proceeding ............................... 3

B.

Plaintiff Designated Margie Shapiro As a Witness With Knowledge

Relevant to This Case and Mr. Cosby Therefore Sought Her Deposition ................. 5

C.

Plaintiff's Counsel Have Improperly Sought to Derail Mr. Cosby's

Discovery in Another Civil Action-Green v. Cosby ................................................ 6

7
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9 III.
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IV.

PLAINTIFF'S MOTION IS PROCEDURALLY IMPROPER AND SHOULD BE DENIED ..................... 10

v.

PLAINTIFF HAS NOT MET HER BURDEN To SHOW A STAY Is WARRANTED ......................... II

A.

Mr. Cosby's Fifth Amendment Right Is Not Implicated by a Further Stay ............. 12

B.

Plaintiff Has No Cognizable Interest in Staying Third-Party Discovery ................. 12

C.

Mr. Cosby Has an Interest in Proceeding with Third-Party Discovery ................... 13

D.

Convenience of the Court and Judicial Efficiency Favors Proceeding with

Third-Party Discovery .............................................................................................. 13

17

E.

No Non-Party Interests Favor a Stay of Third-Party Discovery .............................. 14

18

F.

There is No Public Interest in a Stay ........................................................................ 14

19 VI.

CONCLUSION ........................................................................................................................ 15

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PLAINTIFF DOES NOT HAVE STANDING TO ASSERT AN OBJECTION TO DISCOVERY IN

THIS CASE BASED ON-DEVELOPMENTS IN THE CRIMINAL MATTER ......................................... 8

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47612.004-3407306

Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

TABLE OF AUTHORITIES

Page(s)

2
3

Federal Cases

4 Campbell v. Eastland,

307 F.2d 478 (5th Cir. 1962) .................................................................................................. 9, 10

5

Degen v. United States,

517 U.S. 820 (1996) ..................................................................................................................... 9
6
7

Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc.,

87 F.R.D. 53 (E.D. Pa. 1980) ....................................................................................................... 9

Green v. Cosby,
D. Mass. Case No. 3:14-cv-30211-MGM ...................................................................... 6, 7, 8,12

10 Keating v. Office of Thrift Supervision,

45 F.3d 322 (9th Cir. 1995) ........................................................................................................ 15

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S.E. C. v. Nicholas,
569 F. Supp. 2d 1065 (C.D. Cal. 2008) ........................................................................................ 9

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13 SEC v. Cioffi,

No. 08-CV-2457 (FB)(VVP), 2008 WL 4693320 (E.D.N.Y. Oct. 23, 2008) ........................... 10
14
15

United States v. Fin. Indus. Regulatory Auth. (FINRA),

607 F. Supp. 2d 391 (E.D.N.Y. 2009) .................................................................................... 9, 10

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United States v. Percuoco,

109 F.R.D. 565 (D. Mass. 1986) ............................................................................................ 9, 10

17
State Cases
18
19

Avant! Corp. v. Super. Ct.,

79 Cal. App. 4th 876 (2000) ............................................................................................... 8, 9, 11

20 Bains v. Moores,

172 Cal. App. 4th 445 (2009) ..................................................................................................... 13

21
22

White v. Lieberman,
103 Cal. App. 4th 210 (2002) ..................................................................................................... 10

23

State Statutes

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Cal. Civ. Proc. Code 1008 ............................................................................................................. 10

25

Cal. Pen. Code 1096 ...................................................................................................................... 15

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27

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Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 I.

INTRODUCTION

After having fought against any stay of discovery in this action, and after subpoenaing for

3 deposition her own third-party witness Margie Shapiro (who happens to be another client of her
4 counsel, Allred, Maroko & Goldberg ("Allred"), and a purported Cosby accuser), Plaintiff now
5 seeks a broad stay of all third-party discovery because she worries that third-party discovery in her

6 case might somehow negatively impact the prosecution of a pending criminal matter in which she
7 has no involvement.

In fact, Plaintiff's motion-when taken in concert with her counsel's actions in or relating

9 to pending matters to which Plaintiff is not a party-reveals a breathtaking level of hypocrisy and
10 gamesmanship. Mr. Cosby is currently defending himself in both a criminal action pending in the
11 Commonwealth of Pennsylvania as well as several highly publicized civil lawsuits around the
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12 country. At every turn, Plaintiff's counsel-who represent several other accusers whose decades-

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14 themselves in the criminal matter and to attack Mr. Cosby in the media and under circumstances

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13 old claims have long lapsed under the relevant statutes of limitation-have sought to involve

15 where Mr. Cosby would have no opportunity for cross-examination and defense.
16

Just months ago, when Mr. Cosby sought to stay this case to protect his fundamental Fifth

17 Amendment rights, Plaintiff vehemently opposed, arguing that "Mr. Cosby wants to deprive
18 [Plaintiff] of any and all civil discovery, including third party discovery to which his privilege
19 against self-incrimination is literally irrelevant, because he was charged with a crime in a different
20 place, at a different time, and involving a different alleged victim." (Pl.'s Opp'n. to Def.'s Mot. to
21 Stay, Mar. 17, 2016 at 1.) 1 Indeed, Ms. Allred herself simultaneously sought to reject any
22 implication that the criminal case had any relation to Plaintiff's claims or that witnesses could
23 overlap. (Allred Decl. ~~ 4-6, Mar. 17, 2016.)
24

Yet, we now know that she was secretly meeting with criminal investigators and urging

25 them to use her clients in their criminal case against Mr. Cosby. Months before filing that
26

While Mr. Cosby sought a complete stay of this action, the focus of his motion was his Fifth
27 Amendment right against self-incrimination and not any potential third-party discovery overlap
with this criminal case. (See Def.'s Mot. to Stay, Feb. 17, 2016.)

28

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Case No. BC565560
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 opposition, Ms. Allred had reached out to a Montgomery County Detective working with the
2 District Attorney in the Commonwealth of Pennsylvania's criminal action against Mr. Cosby to
3

"discuss potential use of individuals represented by her" as "potential prior bad acts witnesses."

4 (Decl. of Angela C. Agrusa in Supp. ofDef.'s Opp'n to Pl.'s Mot. to Stay All Disc. ("Agrusa
5 Decl.") ~ 2, Ex. A at 1563, filed concurrently herewith.) Additionally, on February 4, 2016, Ms.

6 Allred was interviewed in the media regarding the criminal case, and stated that there "was a high

7 likelihood" that her clients would testify in the criminal action. (Griffin Decl. ~ 8, Ex. E, Feb. 17,
8 2016.)

In other words, Allred has long sought to inject the accusers they represent into the

10 criminal case against Mr. Cosby. Now that the Pennsylvania prosecutor has named several of
11 Allred's clients as potential witnesses in the criminal matter, Plaintiff suddenly argues that this
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12 civil case must be stayed to prevent Mr. Cosby from finally being able to examine his accusers.
13 When fundamental Fifth Amendment rights against self-incrimination were at stake, Plaintiff
14 vehemently opposed a stay. Now, where Plaintiff has zero cognizable interest in the developments

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15 in the criminal matter, Plaintiff concocts a speculative and false narrative that Mr. Cosby is

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16 seeking to improperly use discovery in this case. All Mr. Cosby seeks to do is to finally have an
17 opportunity to conduct discovery of witnesses with information that Plaintiff contends will be used
18 against him in this case. These witnesses, specifically deponent Ms. Shapiro and other Allred
19 clients, have appeared repeatedly in the media leveling serious allegations against Mr. Cosby.
20 Now that the time is ripe for someone to further examine their claims, Allred and Plaintiff refuse.
21 Plaintiff's motion begs the questions: what are they afraid of and what are they hiding?
Because Plaintiff's motion fails to demonstrate that a further stay of third-party discovery

22

23 is justified, Plaintiff's motion should be denied. 2

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In opposing Plaintiff's motion to stay all discovery, Mr. Cosby in no way concedes that the prior
stay of discovery with respect to Mr. Cosby and Plaintiff (see Order, Mar. 30, 2016) should be
27
modified or that the existing stay should be lifted to require Mr. Cosby to be deposed again in this
28 case until such time as the criminal action is concluded.
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Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 II.

RELEVANT FACTS

A.

Plaintiff Judy Huth filed this action on December 2, 2014, accusing Mr. Cosby of sexually

The Underlying Action and the Unrelated Criminal Proceeding

4 inappropriate conduct that she claims occurred one afternoon, sometime in the mid-1970s, at the
5 Playboy Mansion. (Compl. ~~ 3-7, Dec. 2, 2014.) As this Court knows, :ryt:s. Huth is represented
6 by Allred. While Ms. Huth is the only one of Allred's clients who has filed a lawsuit against Mr.
7 Cosby, Allred represents several other women who also accuse Mr. Cosby of various acts of
8 sexual misconduct. (See, e.g., West Suppl. Decl.

6, Oct. 17, 2016; West 2nd Suppl. Decl.

6,

9 Oct. 18, 2016.) In fact, most of Mr. Cosby's accusers have been ushered into the spotlight by
10 Allred, who kicked off a highly-publicized crusade against Mr. Cosby in December 2014 by
11 insisting that Mr. Cosby turn over $100 million-even though the statutes of limitations had
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12 already run on all of their clients' decades-old claims, with the only arguable exception being
13 Plaintiffs. 3 Allred's cadre of clients has grown since December 2014 in response to their multiple

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14 press conferences in which their clients read prepared statements to the media about alleged

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16 or be otherwise interrogated. (See Agrusa Decl.

17

3.)

Following Plaintiffs December 2014 filing of the Complaint, discovery proceeded and Mr.

18 Cosby was deposed on October 9, 2015. (Order, Aug. 4, 2015.) He refused to answer the many
19 questions posed by Allred delving into the pending criminal investigation relating to unrelated
20 allegations involving a woman named Andrea Constand and an alleged incident in 2005. On
21 December 15, 2015, Plaintiff moved to compel further deposition testimony about Ms. Constand
22 from Mr. Cosby and the motion was subsequently granted. (Order, Feb. 3, 2016.)
23

On December 30, 2015, the Montgomery County District Attorney in the Commonwealth

24 of Pennsylvania formally charged Mr. Cosby with aggravated sexual assault in connection with
25
3

Despite that the alleged incident in this case happened sometime in the 1970s, Plaintiff relies on
the extended statute of limitations in California Code of Civil Procedure 340.1. (2nd Am. Compl.
27 ~ 8.) At the appropriate time, Mr. Cosby will challenge Plaintiffs reliance on section 340.1 to
maintain the timeliness of her claims.

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Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 the Andrea Constand alleged incident. Then unbeknownst to Mr. Cosby, in early January 2015,
2

Gloria Allred contacted Montgomery County Detective James Reape, requesting to set a date and

3 time to meet to "discuss potential use of individuals represented by her" as "potential prior bad
4 acts witnesses" in the criminal matter. (Agrusa Decl.

2, Ex. A at 1563.) A month later, on

5 February 4, 2016, in an interview with Alex Bregman of Yahoo News Live, Ms. Allred stated that
6 "there is a high likelihood" that her clients would testify in the criminal action "because in

7 Pennsylvania there is law that talks about prior bad acts. In other words, if there are witnesses who
8 can testify to prior bad acts that have been inflicted on them that are the same or similar to what is

9 being alleged by the alleged victim in the criminal case, then their testimony is considered relevant

10 by the prosecutor and admissible by the court, then they should be permitted to testify." (Griffin
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8, Ex. E, Feb. 17, 2016.)

Despite these machinations, when Mr. Cosby sought a stay of this action to protect his

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16 February 2016 interview. (!d. at 5.) In fact, Ms. Allred submitted a declaration, coyly testifying
17 that she "did not tell [the reporter] that any of [her] other client's hoped to testify in the criminal
18 matter." (Allred Decl.

5, Mar. 17, 2016.) Without knowing the veracity of Ms. Allred's claim,

19 what is evident is that it was disingenuous. Ms. Allred herself had just two months earlier
20 contacted a Montgomery County Detective about meeting to discuss the government's "use of
21 individuals represented by her" as "witnesses" to testify in the criminal proceeding. 4 (Agrusa Decl.
22

2, Ex. A at 1563.) On March 30, 2016, this Court granted Mr. Cosby's motion in part, staying

23
24

In light of Allred's efforts to inject their clients into the criminal proceeding, the
disingenuousness of Plaintiffs opposition to Mr. Cosby's earlier motion for a stay is now evident.
25
In that opposition, Plaintiff argued: "Mr. Cosby contends that the 'evidence the prosecutor and
26 Plaintiff plan to rely on substantially overlap.' Mr. Cosby, however, is not privy to what is in the
mind of the prosecutor in Pennsylvania regarding evidence at trial." (Pl.'s Opp'n to Def. Mot. to
27 Stay at 3, Mar. 17, 2016 (internal citations omitted).) Of course, Plaintiffs counsel knew that they
were pushing for the prosecutor to "use" their clients in the criminal proceeding.

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Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 discovery with regard to Mr. Cosby and Plaintiff and allowing third-party discovery to proceed.
2 (Order, Mar. 30, 2016.)

B.

Plaintiff Designated Margie Shapiro As a Witness With Knowledge Relevant

to This Case and Mr. Cosby Therefore Sought Her Deposition

Plaintiff's motion is full of unfounded speculation regarding Mr. Cosby's supposed intent

6 to subvert the limits on criminal discovery by pursuing depositions in the civil matters pending
7 against him. In reality, Mr. Cosby is seeking to engage in discovery of the various witnesses that
8 the civil plaintiffs have identified as relevant to their cases in chief. For example, since the partial
9 say was put in place, Plaintiff has already sought testimony from so-called "prior bad acts"

10 witnesses; she noticed and took the depositions of Kimberly Burr and Renita Hill, two other
11 women who have accused Mr. Cosby of decades-old acts of sexual abuse. Then on August 15,
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12 2016, Plaintiff first noticed the deposition of Margie Shapiro, a third-party witness that Plaintiff

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14 plaintiff to establish motive, opportunity, plan, intent, habit and preparation in connection with his
15 conduct toward [Plaintiff]." (Mot. at 1.) As they have done with their other clients, Allred had
16 presented Ms. Shapiro at a controlled press conference, where Ms. Shapiro read a prepared and
17 scripted statement and flashed photos from her youth (not of Mr. Cosby), and no questions were
18 permitted. (Agrusa Decl., 4.)

On August 29, 2016, after Plaintiff noticed Ms. Shapiro's deposition, Mr. Cosby served his

19

20 own deposition subpoena to Ms. Shapiro for the same date and time noticed by Plaintiff. At that
21 time, although Ms. Allred knew that she had proffered Ms. Shapiro as a potential witness in the
22 criminal action, Ms. Shapiro had not been identified by the Commonwealth. The parties thereafter

23 coordinated a mutually agreeable date for Ms. Shapiro's deposition.

24

On September 12, 2016, Plaintiff's counsel "canceled" Ms. Shapiro's deposition on the

25 grounds that "Ms. Shapiro has been named a potential witness in the criminal action against the
26 defendant." (West Decl., 22, Ex. Eat 1, Oct. 13, 2016.) 5 Plaintiff is not a party to, and is not
27
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While Plaintiff's counsel suddenly refused to produce the very witness they subpoenaed for
5

Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 involved in, the criminal action against Mr. Cosby. Nevertheless, she unilaterally prevented Ms.

2 Shapiro's deposition from going forward. 6

Upon learning that Mr. Cosby intended to move to compel Ms. Shapiro's deposition,

4 Plaintiff filed the present motion for a stay of all discovery, despite the fact that the Court, just a
5 few months ago, already ordered an appropriate stay of discovery to balance interests at stake in
6 the parallel criminal and civil actions. And though Plaintiff has resorted to this motion, the

7 prosecutor in the criminal case has not sought to intervene, nor has he objected in any way to the
8 prospect of Ms. Shapiro's deposition.

C.

Plaintiff's Counsel Have Improperly Sought to Derail Mr. Cosby's Discovery

in Another Civil Action-Green v. Cosby

10

On December 10, 2014, Tamara Green filed a civil suit against Mr. Cosby in the District of

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13 Green's sexual assault allegations against Mr. Cosby. Green v. Cosby, D. Mass. Case No. 3:14-cv14 30211-MGM ("Green"), ECF No. 1. Six additional plaintiffs have since joined the case. Green,
15 ECF No. 109. Plaintiff Huth has no relation to the Green case.

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On February 9, 2016, Mr. Cosby filed a motion to stay discovery in the Green case based

16

17 on his Fifth Amendment rights. Green, ECF No. 185. Like the Court in this case, the Green Court
18 granted the motion in part, staying discovery addressed to Mr. Cosby and allowing all other
19 discovery to proceed. Green, ECF No. 287. All seven plaintiffs-including Therese Serignese
20 who has been named a potential witness in the criminal action-have been deposed. (Agrusa Decl.
21

~~5-6.)

22
23

deposition (and whom they also represent), they refuse to agree to remove Ms. Shapiro as a

24 potential witness in this case or as someone who will testify at trial. (West Decl. ~ 24, Ex. G, Oct.
13, 2016.)
25

Ms. Shapiro has been identified by the prosecutor in the criminal matter as one of thirteen
26 women who might potentially serve as witnesses under Federal Rule of Evidence 404(b). (Agrusa
Decl. ~ 6.) Since the prosecutor must still make a showing that such "prior bad acts" testimony
27 will be admitted, there is no certainty-nor is it even likely-that Ms. Shapiro will even be a
witness in that action.

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47612.004-3407306

During the September 20, 2016 status conference in this matter, this Court rightly inquired

2 whether a stay in this case would have any effect, given that civil discovery will likely proceed in
3 the other pending civil actions. The Court's inquiry was prescient. The Green plaintiffs have
4 identified numerous witnesses in their initial disclosures-who are also potential witnesses in the
5 criminal action-that will likely sit for a deposition in Green.
6

On October 14 and October 17, 2016, Mr. Cosby served deposition subpoenas to third-

7 parties Lise-Lotte Lublin and Rebecca Cooper Neal, both identified in the Green plaintiffs' Rule
8 26 initial disclosures as potential witnesses with relevant knowledge. (Agrusa Decl. ~ 7.) (Mr.
9 Cosby has also served a deposition subpoena to third-party witness, and non-accuser Katherine

10 Olsen DeForest and has sought to coordinate all three depositions in Las Vegas, Nevada, where all
11 three witnesses reside. Ms. DeForest has not been designated as a potential witness in the criminal
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12 matter.) (Agrusa Decl. ~ 7.) The Green plaintiffs have not objected to moving forward with Ms.

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13 Lublin's and Ms. Neal's depositions, and do not object to Mr. Cosby deposing other accusers
14 generally, as they recognize Mr. Cosby is entitled to do so. (Id.

8; ~ 19, Ex. Bat 21:7-25:4: "So

15 they're free to [take the other accusers' depositions] and the caselaw provides they're free to do

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16 it.") As here, the prosecution in the criminal case has not sought to intervene in Green or
17 otherwise object to the depositions of Ms. Lublin or Ms. Neal. (Jd.
18

8.)

The Allred firm, however, has indicated its intent to file a motion for protective order on

19 behalf of Ms. Lublin and Ms. Neal on the grounds that "civil discovery is being used to evade the
20 limits on criminal discovery." (Agrusa Decl. ~ 10, Ex. C.) Neither Ms. Lublin nor Ms. Neal are
21 parties to the Green case or the criminal action, and have no basis to object to those depositions.
22

Indeed, Plaintiff's actions reveal a concerted effort by her and her counsel to prevent Mr.

23 Cosby from exercising his constitutional right to confront his accusers. Beginning in December
24 2014, Allred has held press conferences and sat on talk shows parading women to describe alleged
25 acts that they claim occurred as long as a half century ago. (Agrusa Decl. ~ 3.) The media
26 repeated those accusations word for word, without independent investigation. And, with no legal

27 determination or scrutiny made of these accusations, there have been a barrage of "me too"
28 accusers coming forward. Yet, now that the moment arises for Mr. Cosby to question his accusers,
7
Case No. BC565560
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 including those identified by Plaintiff as witnesses to her lawsuit, Plaintiff and her counsel are
2 attempting to silence him. Yet Plaintiff has failed to identify any legal basis that provides her
3 standing to do so or that permits her to prevent Mr. Cosby from taking relevant discovery in the
4 civil actions. There is no legal basis for the Court to deprive Mr. Cosby of his right to depose
5 witnesses identified (and even subpoenaed) by Plaintiff solely because Plaintiff and her counsel
6 are afraid that it might, somehow, possibly help Mr. Cosby defend himself against the criminal
7 charges in Pennsylvania. Obviously the Commonwealth does not share that fear as the government
8 has not objected to the civil discovery.
Finally, the irony is not lost on Mr. Cosby that Plaintiff's counsel identifies herself as a

10 civil rights defender, yet she is seeking an order-with no legitimate basis to do so-to prevent a
11 man accused of a serious crime from questioning an accuser under oath when his own civil rights
12 and liberty lie in the balance. Although Plaintiff and her counsel have judged him guilty, he is not,
13 and he is entitled to exercise the rights of any defendant in defending himself.

14 III.
15

PLAINTIFF DOES NOT HAVE STANDING TO ASSERT AN OBJECTION TO DISCOVERY IN

THIS CASE BASED ON DEVELOPMENTS IN THE CRIMINAL MATTER

16

Plaintiff is not a party to the criminal matter and has no legitimate involvement in it

17 whatsoever. She therefore has no standing to assert any objection based on developments in the
18 criminal proceeding. Notably, neither of the parties who could conceivably have any standing to
19 make the objection that Plaintiff advances-the prosecutor and the alleged victim in the criminal
20 case-have sought to intervene or otherwise taken any action in this case or in Green.
21

In Plaintiff's own prior briefing on Mr. Cosby's motion for a stay, she correctly identified

22 the relevant inquiry: "In the absence of substantial prejudice to the rights of the parties involved,
23 simultaneous parallel civil and criminal proceedings are unobjectionable under our jurisprudence."
24 (Pl.'s Opp'n to Def.'s Mot. for Stay at 8 quoting Avant! Corp. v. Super. Ct., 79 Cal. App. 4th 876,
25 885 (2000) (emphasis added).)
26

Here, Plaintiff cannot identify how she could possibly be prejudiced if the Court denies her

27 motion. Plaintiff claims that "[ s]ince depositions are not allowed in criminal cases, the United
28 States Supreme Court, California, and Pennsylvania courts have all recognized that it is
8

Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 inappropriate to allow criminal defendants to utilize the broad discovery available in civil cases to
2 evade the restrictions on discovery in criminal cases." (Mot. at 1.) But Plaintiff has cited (and Mr.
3 Cosby is aware of) no case where a court has granted a motion to stay pending criminal
4 proceedings brought by a party with no involvement in the criminal proceedings. In each case
5 relied on by Plaintiff, it was either the government or criminal defendant who sought to stay or
6 limit civil discovery pending the criminal proceedings. See Degen v. United States, 517 U.S. 820,
7 821 (1996) (where government brought both a criminal proceeding and a civil forfeiture
8 proceeding against the criminal defendant, government argued defendant could use civil discovery
9 to "pry[] into the prosecution's case in a manner not otherwise permitted"); S.E. C. v. Nicholas,
10 569 F. Supp. 2d 1065, 1066-67 (C.D. Cal. 2008) (after US. Attorney's Office (USAO) brought
11 criminal charges against defendants, USAO intervened in civil enforcement action against same
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12 defendants to seek a stay of discovery); Campbell v. Eastland, 307 F.2d 478, 483 (5th Cir. 1962)
13 (after defendant in criminal tax evasion proceedings filed civil suit as "tactical maneuver to enable

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16 53 (E.D. Pa. 1980) (defendants moved stay civil proceedings pending disposition of their criminal
17 proceedings); Avant! Corp., 94 Cal. App. 4th at 879-80 (defendant moved to stay civil
18 proceedings or discovery pending the disposition of related criminal case against defendant).
19 Plaintiff has no basis to object to third discovery because of the criminal action. See United States
20 v. Fin. Indus. Regulatory Auth. (FINRA), 607 F. Supp. 2d 391, 393 (E.D.N.Y. 2009)
21 ("Determining whether to enjoin a civil proceeding in the face of a related criminal case is
22 essentially a question of balancing the private parties' interest in a prompt resolution of the civil
23 matter with the government's interest in preserving the integrity of the criminal proceeding.")
24 (emphasis added).
25

Even in cases where the government has sought to prevent a civil litigant from obtaining

26 discovery relevant to a criminal proceeding in a civil action, courts have required "an
27 extraordinarily strong showing of improper use of the civil discovery" before ordering a stay.
28 United States v. Percuoco, 109 F.R.D. 565, 567 (D. Mass. 1986). In Percuoco, a case where the
9

Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 government was a party to both a civil and criminal action and where it sought to prevent the civil
2

defendant from taking a deposition, the court noted that there is a "sharp distinction.... between

3 cases in which a criminal defendant institutes a civil suit in order to initiate discovery and those in
4

which a criminal defendant seeks civil discovery to defend himself or herself in a civil action." !d.

5 The court also distinguished Campbell v. Eastland, cited by Plaintiff, noting that case concerned a
6 pre-textual civil suit brought by a prospective criminal defendant solely to gain discovery against
7 the government. !d. Here, (1) the government is not a party to this lawsuit; (2) the government has

8 not sought to intervene and has not objected to the discovery sought by Mr. Cosby; and (3) the
9 discovery Mr. Cosby seeks is not pretextual and Mr. Cosby has not initiated this civil action.

10 Rather, Mr. Cosby simply seeks to take discovery of witnesses Plaintiffhas identified as relevant
11

in order to defend himself in this civil suit. 7

12 IV.

PLAINTIFF'S MOTION IS PROCEDURALLY IMPROPER AND SHOULD BE DENIED

13

Plaintiffs motion seeks a stay of all remaining discovery in this case (i.e., third-party

14 discovery). But the parties previously briefed this issue, and it was considered and ruled on by the
15 Court. (Order, Mar. 30, 2016.) After balancing the interests of the parties, third-parties, and the
16 general public, the Court ordered a stay of discovery with regard to Mr. Cosby and Plaintiff and
17 allowed third-party discovery to proceed. (!d.) Now, seven months later, Plaintiff moves for what
18 is essentially reconsideration of the Court's Order, but fails to make the required showing of"new
19 or different facts, circumstances, or law" that justify reconsideration. White v. Lieberman, 103 Cal.
20

App. 4th 210, 219 (2002); see also Cal. Civ. Proc. Code 1008. 8

21
22

28

Indeed, even in the cases dealing with the government's efforts to limit discovery in parallel civil
proceedings to which it is a party, courts have been reluctant to grant stays. Courts have rejected
23 the "premise" that the discovery limitations in the Federal Rules of Criminal Procedure "are
intended to enshrine a tactical advantage in favor of the government." FINRA, 607 F. Supp. 2d at
24 393. In other words, "the limits on criminal discovery do not exist for their own sake." SEC v.
Cioffi, No. 08-CV-2457 (FB)(VVP), 2008 WL 4693320, *2 (E.D.N.Y. Oct. 23, 2008). Rather,
25
criminal discovery limits are intended to "guard against specific harms" such as "manufactured
26 evidence", "revelation of the identity of prospective witnesses may create the opportunity for
intimidation" and "unfairly surprise[ing] to the prosecution at trial. !d.; see also FINRA, 607 F.
27 Supp. 2d at 393.
Section 1008 of the California Code of Civil Procedure sets forth additional procedural
10
Case No. BC565560
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

Plaintiff suggests that reconsideration is justified because there was been a "significant

2 change in circumstances" since the Court's Order when Ms. Shapiro was "named as a potential
3 witness for the prosecution in the criminal action against [Mr.] Cosby." (Mot. at 3 (emphasis
4 added).) Such argument is meritless. That third-party witnesses in this case could be witnesses in
5 the criminal case has always been a potential possibility-one that Plaintiff was well aware of
6 when she opposed the original motion to stay discovery. Indeed, this very possibility was raised by
7 both parties in the original briefing. 9 (Defs Mot. to Stay at 5-6, Feb. 17, 2016; Pl.'s Opp'n to
8 Defs Mot. to Stay at 5, Mar. 17, 2016.) While Plaintiffs position may have changed,
9 circumstances have not. There is therefore no valid basis for asking the Court to revisit and
10 reconsider its own Order.
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PLAINTIFF HAS NOT MET HER BURDEN TO SHOW A STAY Is WARRANTED

Even if the Court finds that Plaintiffs motion is not procedurally improper, it is

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15 substantively without merit. The determination of whether to stay a civil proceeding pending the

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16 resolution of a criminal proceeding "should be made in light of the particular circumstances and
17 competing interests involved in the case." Avant! Corp., 79 Cal. App. 4th at 885. A court should
18 therefore consider "the extent to which the defendant's fifth amendment rights are implicated" in
19 addition to the following factors: "(1) the interest of the plaintiffs in proceeding expeditiously with
20 this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2)
21 the burden which any particular aspect of the proceedings may impose on defendants; (3) the
22 convenience of the court in the management of its cases, and the efficient use of judicial resources;

23

24
requirements for reconsideration that Plaintiff has failed to meet, such as including an affidavit
25 that states details regarding the original motion and order.
9

Furthermore, Plaintiffs counsel has been well aware of the potential that other accusers like Ms.
Shapiro would be potential witnesses in the criminal case since at least January 2015 when she
27 spoke to a Montgomery Country Detective about the possibility. (Agrusa Decl. ,-r 2, Ex. A at
28 1563.)
26

11
Case No. BC565560
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the
2 pending civil and criminal litigation." Id.
3

Plaintiff has articulated no legitimate basis for her requested stay of all third-party

4 discovery. She simply argues that "this case poses an unreasonably risk of serving as a platform
5 for [Mr.] Cosby to evade the limitation on discovery in the Pennsylvania criminal matter." (Mot.
6 at 7-8.) For the reasons discussed below, such argument fails to justify the requested stay under
7 the Avant factors.
8

A.

Mr. Cosby's Fifth Amendment Right Is Not Implicated by a Further Stay

This Court, after thoughtful analysis and careful consideration of Mr. Cosby's Fifth

10 Amendment rights, ordered a stay of discovery as to Mr. Cosby and Plaintiff. (Order, Mar. 30,
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2016.) Therefore, this factor weighs against staying third-party discovery.

12

B.

Plaintiff Has No Cognizable Interest in Staying Third-Party Discovery

13

Plaintiff has no cognizable interest in a stay of all third-party discovery. Plaintiff is not a

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14 party to the criminal action. She is not a witness in the criminal action. She cannot even credibly

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15 claim that she has a general interest in preventing civil discovery in this case being from used in

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16 the criminal case, as-just months ago-she argued that discovery of Mr. Cosby should proceed
17 in parallel with his criminal action. To the extent, then, that Plaintiff has any interest in staying
18 third-party discovery, it is simply an interest in frustrating Mr. Cosby's ability to fully defend
19 himself in this litigation and other proceedings.
20

This illegitimate motive is further evidenced by the two supplemental declarations Plaintiff

21

has filed in support of her motion. In the declarations, Plaintiff points to two deposition subpoenas

22

served in Green-a totally unrelated civil litigation-to somehow show that third-party discovery

23 in this case should be stayed. Plaintiff (as someone who is not a party to the Green litigation) is
24 not privy to the reasons these witnesses were subpoenaed, the relevant testimony these witnesses
25 may have, or whether any of the actual parties in that case have objected to the subpoenas (they
26 have not).
27

Plaintiff has not cited any case where a court has granted a motion to stay pending criminal

28 proceedings brought by a party with no involvement in the criminal proceedings. Accordingly,

12

Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 this factor weighs against a stay of third-party discovery. See Bains v. Moores, 172 Cal. App. 4th

2 445, 486 (2009) (affirming denial of motion to stay pending related criminal proceedings in part
3

because "plaintiffs failed to articulate with any particularity the burden they would face if the case

4 were not stayed").

5

c.

With Mr. Cosby's Fifth Amendment rights protected by the current stay of discovery, Mr.

Mr. Cosby Has an Interest in Proceeding with Third-Party Discovery

7 Cosby has an interest in proceeding with legitimate third-party discovery to help effectuate a fair
8 and expeditious resolution of the civil claims against him. (See Order at 1, Mar. 30,2016: "In this
9

case, both parties clearly have the right to a fair and expeditious resolution of the civil claims at

10 issue.")
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12 Contrary to Plaintiffs suggestion, moving forward with Ms. Shapiro's deposition is not simply an

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13 attempt to use this case as a "platform to evade limits on criminal discovery." (Mot. at 8.) Plaintiff

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14 herself contends that Ms. Shapiro is a witness with knowledge relevant to claims at issue in this

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15 case. This is not the only instance in this litigation where Plaintiff sought discovery related to Ms.

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16 Shapiro. (Section I(B)(2) Filed Under Seal at 1-3, Oct. 13, 2016). Plaintiff herself first noticed
17 Ms. Shapiro's deposition, and Mr. Cosby is therefore entitled to examine a witness whom Plaintiff
18 has introduced as having relevant evidence in this lawsuit. Accordingly, this factor also weighs
19 against staying third-party discovery.

20

D.

Convenience of the Court and Judicial Efficiency Favors Proceeding with

Third-Party Discovery

21
22

Plaintiff argues that without a stay, the Court will need to decide on a case-by-case basis,

23 whether depositions are being used to evade limits on criminal discovery. (Mot. at 11.) That is
24 nonsensical. The Court has already considered and ruled on the appropriate balance between the
25 interests in this litigation and the interests in the criminal action when it stayed discovery as to the
26 parties and allowed discovery as to third-parties. If the Court takes up the merits of Plaintiffs
27 motion and again rules that third-party discovery should proceed, the Court will not need to again
28 reconsider the effect on criminal discovery as to each third-party deposition. To the extent there
13

Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

1 are any specific objections to third-party depositions unrelated to criminal discovery raised with

2 the Court, those objections would not be alleviated by a stay, only delayed. Accordingly, this
3 factor weighs against staying third-party discovery.

E.

Plaintiff has also failed to articulate any non-party interest that favors a stay of third-party

No Non-Party Interests Favor a Stay of Third-Party Discovery

6 discovery. Plaintiff simply argues that third-party discovery should be stayed because "[ o]ne can
7 infer that a named (potential) witness for the prosecution in a criminal matter would not want to
8 submit to a deposition that would help the criminal defendant evade limits on criminal discovery."
9 (Mot. at 11.) First, it is ludicrous to suggest that Mr. Cosby's right to take civil discovery should
10 be determined based on what "one can infer." It is also a disingenuous suggestion given that Ms.
11 Shapiro herself has not objected to the subpoena. 10 Second, even if non-party witnesses to the civil
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13 Court. Efforts by these non-parties to inject their own desires into the criminal and civil litigations

15 discovery. Accordingly, this factor weighs against a stay ..

16

F.

17

Plaintiff summarily concludes that this factor weighs in favor of a stay because there is a

There is No Public Interest in a Stay

18 public interest in "the successful prosecution of those guilty of a crime." (Mot. at 11.) But Plaintiff
19 fails to articulate any reason why allowing third-party discovery would prevent or impede a just
20 prosecution of the criminal action (or why she has any stake or interest in that issue). Third-party
21 discovery in this case will not delay the criminal prosecution, nor reveal confidential details of the
22 prosecution's trial strategy. And to the extent any third-party deposition testimony from this case
23 were available for use in the criminal action, it would be available to both Mr. Cosby and the
24 prosecution. Once again, the prosecution has not objected to the deposition ofMs. Shapiro.
25

10

Notably, Plaintiff has made clear that she intends to depose Ms. Shapiro in this action regardless
of
whether a stay is put in place. (West Decl. ~ 24, Ex. G, Oct. 13, 2016: "Please note we plan to
26
take Ms. Shapiro's deposition after the criminal trial.") Thus, Ms. Shapiro will be compelled to sit
27 for a deposition in this case whether or not third-party discovery is stayed, and thus a stay will not
lessen the burden on her.

28

14
Case No. BC565560
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306

Instead of indicating why a stay of third-party discovery would promote the public's

2 interest in the prosecution of Mr. Cosby, Plaintiffs motion suggests a desire to promote a public
3 interest in the conviction of Mr. Cosby, regardless of whether or not he is guilty, by stripping him
4 of his ability to fully defend himself. This desire is directly at odds with the public's interest in the

5 fair and just administration of criminal proceedings.

11

6 VI.

CONCLUSION

For the foregoing reasons, Mr. Cosby respectfully requests that this Court deny Plaintiffs

8 Motion to Stay All Discovery.

10
Dated: October 24, 2016

LINERLLP

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Attorneys for Defendant William Henry Cosby, Jr.

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24
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11

See Cal. Pen. Code 1096 ("A defendant in a criminal action is presumed to be innocent until
26 the contrary is proved"); see also Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th
Cir. 1995) ("In highly publicized cases, such as the one at hand, judicial and quasi-judicial
27 decisionmakers need to be especially careful that undue consideration is not given a proceeding's
impact on the public.")

28

47612.004-3407306

15

Case No. BC565560

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Los Angeles, State of California. My business address is 1100
4 Glendon Avenue, 14th Floor, Los Angeles, CA 90024.3518.

On October 24, 2016, I served true copies of the following document(s) described as
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY
6 on the interested parties in this action as follows:

8
9

Gloria Allred, Esq.

Nathan Goldberg, Esq.
1ohn West, Esq.
ALLRED, MAROKO & GOLDBERG
6300 Wilshire Blvd., Suite 1500
Los Angeles, CA 90048

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Telephone: 323-653-6530
Facsimile: 323-653-1660

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Attorneys for Plaintiff, Judy Huth

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BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the

persons at the addresses listed in the Service List and placed the envelope for collection and
14 mailing, following our ordinary business practices. I am readily familiar with Liner LLP's practice
for collecting and processing correspondence for mailing. On the same day that correspondence is
15 placed for collection and mailing, it is deposited in the ordinary course of business with the United
States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed
16 in the county where the mailing occurred. The envelope was placed in the mail at Los Angeles,
California.

13

17
I declare under penalty of perjury under the laws of the State of California that the

18 foregoing is true and correct.

19

c!1 , _______

Executed on October 24, 2016, at Los Angeles, California.

20
21

Lisa Law

22
23
24
25
26
27
28
Case No. BC565560
DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STAY ALL DISCOVERY

47612.004-3407306