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Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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ANDREA CONSTAND, : CIVIL NO. 15-5799


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Plaintiff :
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v. :
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BRUCE CASTOR, : Philadelphia, Pennsylvania
: May 11, 2016
Defendant : 4:12 p.m.

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TRANSCRIPT OF MOTION HEARING


BEFORE THE HONORABLE EDUARDO C. ROBRENO
UNITED STATES DISTRICT COURT JUDGE

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APPEARANCES:

For the Plaintiff: BEBE H. KIVITZ, ESQUIRE


Jacobs Kivitz & Drake LLC
1525 Locust Street
12th Floor
Philadelphia, PA 19102

DOLORES M. TROIANI, ESQUIRE


Troiani & Gibney LLP
1171 Lancaster Avenue
Suite 101
Berwyn, PA 19312

Transcribers Limited
17 Rickland Drive
Sewell, NJ 08080
856-589-9005
Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 2 of 30

1 APPEARANCES: (Continued)

2 For the defendant: JUSTIN A. BAYER, ESQUIRE


ROBERT C. PUGH, ESQUIRE
3 Kane Pugh Knoell Troy &
Kramer LLP
4 510 Swede Street
Norristown, PA 19401
5
For the Movant: CHRISTOPHER TAYBACK, ESQUIRE
6 William Cosby, JR. JOSEPH C. SARLES, ESQUIRE
Quinn Emanuel Urquhart &
7 Sullivan
865 S Figueroa Street
8 10th Floor
Los Angeles, CA 90017
9
JOHN TIMMER, ESQUIRE
10 SAMUEL W. SILVER, ESQUIRE
Schnader Harrison Segal &
11 Lewis LLP
1600 Market Street
12 Suite 3600
Philadelphia, PA 19103
13
For the Movant: ROBERT M. FALIN, ESQUIRE
14 Kevin R. Steele DANIEL C. BARDO, ESQUIRE
Montgomery County District
15 Attorney's Office
Montgomery County Courthouse
16 4th Floor
P.O. Box 311
17 Norristown, PA 19404

18 - - -

19 FTR Operator: Nelson Malave

20 Transcribed By: Michael T. Keating

21 - - -

22 Proceedings recorded by electronic sound


recording; transcript produced by computer-aided
23 transcription service.

24 - - -

25
Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 3 of 30

1 (The following was heard in open court at

2 4:12 p.m.)

3 THE COURT: Good afternoon. Please be

4 seated.

5 MR. BARDO: Good afternoon, Your Honor.

6 MR. PUGH: Good afternoon, Your Honor.

7 THE COURT: Okay. Okay, we have two

8 matters really before us. The first is the district

9 attorney's motion to quash the subpoena, and then is

10 the request by Mr. Castor to have the Constand

11 parties turn over certain documents. So there are

12 two ways to obtain these documents. One would be way

13 of district attorney, if not, by way of Ms.

14 Constand's defendants if they do have those

15 documents. So why don't we start with the motion to

16 quash the subpoenaed issued to the district attorney?

17 MR. BARDO: Yes, Your Honor.

18 THE COURT: Yes.

19 MR. BARDO: May I use the podium?

20 THE COURT: Yes, please.

21 MR. BARDO: Your Honor, my name is Daniel

22 Bardo. I'm the assistant district attorney with the

23 Montgomery County District Attorneys Office. Our

24 position is quite simple. CHRIA, the statute that

25 we've cited at length in our written submissions to


Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 4 of 30

1 you, would make our disclosure of this information

2 illegal. That is tantamount to a privilege.

3 I would put out just preliminarily that

4 when invited to provide other authority to the Court

5 that would support their entitlement to the docket --

6 documents at issue, defendant, instead, launched a

7 four-page personal ad hominem attack on myself. I

8 would just point out, Your Honor, that that's not

9 persuasive legal authority. I would just point out,

10 Your Honor, that that's not persuasive legal

11 authority and that doesn't help the Court determine

12 whether there's a privilege at issue.

13 So in addressing the privilege issue, I'll

14 begin that CHRIA is a privilege. Just broadly

15 speaking -- and I won't rehash what's already in my

16 written submissions -- but in Pennsylvania, most of

17 our privileges are codified. The vast majority you

18 can find at Title 42, chapter --

19 THE COURT: Okay. But I think you start

20 off, before you get there, whether federal or state

21 law applies.

22 MR. BARDO: Yes, sir.

23 THE COURT: And the question is whether

24 this is governed by Federal Rule of Evidence 501. So

25 you have to address that first.


Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 5 of 30

1 MR. BARDO: Absolutely, Your Honor. Well,

2 as a threshold matter, Rule 501 would apply

3 regardless. Rule 501 essentially says if federal law

4 provides the rule of decision, then federal privilege

5 law would apply. However, I would note that this is

6 not a case where --

7 THE COURT: Well, it actually says the same

8 thing, but its formulated differently. It says, "In

9 a civil case, state law governs privilege regarding

10 claims of defense for which state law supplies the

11 rule of decision." So what you're saying is under

12 Rule 501 -- and this has an interesting history.

13 This was carved out of the -- by Congress itself,

14 which is kind of unusual, to set forth that in civil

15 cases, the privilege law that is applicable is state

16 law. So I think that opens the door to --

17 MR. BARDO: Right, Your Honor, and my

18 apologies.

19 THE COURT: -- examining state privilege.

20 MR. BARDO: Yes, and my apologies for

21 reversing it.

22 THE COURT: Yes.

23 MR. BARDO: It's effectively the same,

24 but --

25 THE COURT: Yes, exactly.


Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 6 of 30

1 MR. BARDO: -- the opposite words. So I

2 would note that this, being a diversity case, a state

3 law defamation case, state law provides the rule of

4 decision.

5 THE COURT: Okay. So what's the privilege

6 involved here?

7 MR. BARDO: Here, we have two. First, is

8 CHRIA, which is the Pennsylvania Criminal Record and

9 History Information Act, which is cited at length in

10 our written submissions, and also the common law

11 investigative privileged recognized by both the

12 federal and state courts. But CHRIA, being the

13 broader protection, is the primary thrust.

14 So, as I was saying, the vast majority of

15 our privileges are codified. You know, attorney-

16 client, marital, priest-penitent, doctor-patient, all

17 those are codified. The vast majority of them you

18 can find at Chapter 59 of Title 42 in the

19 Pennsylvania statutes. It's not to say that that's

20 the only place that you can find them, but you can

21 find a good number of them there.

22 Defendant seems to have taken the position

23 that there are magic words that create a privilege,

24 specifically the word "privilege" appearing in the

25 statute itself, but I would note that that approach


Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 7 of 30

1 elevates form over substance and that approach has

2 also generally been frowned upon by the courts.

3 Further, I would point to the doctor-

4 patient privilege, which is codified also. It's

5 Section 5929. That privilege doesn't -- or that

6 statute doesn't use the word "privilege" at all. So

7 if it is their position that there's magic words,

8 well, then Pennsylvania's doctor-patient privilege is

9 no longer a privilege. That simply doesn't make

10 sense.

11 THE COURT: They think it's form over

12 substance?

13 MR. BARDO: Absolutely, Your Honor.

14 THE COURT: Okay. And I would also mention

15 that every other codified privilege in Pennsylvania

16 mentions the word "privilege" only once and never in

17 the definition of said privilege, only in the waiver

18 proviso. So it would say well, this information is

19 protected unless this privilege is waived. So in the

20 definition of the privilege you never have the word

21 privilege. It's -- the essence of my position is you

22 don't use the word you're defining in the definition.

23 It doesn't help any.

24 So with that said, CHRIA is a privilege.

25 Now, I would also note that CHRIA clearly protects


Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 8 of 30

1 these. Defense seems to tacitly concede that, that

2 these are statements that were collected in the

3 course of an investigation. CHRIA mechanically

4 categorizes that as investigative information.

5 Investigative information may only be disclosed to

6 law enforcement officers that are acting in the

7 course and scope of their duties, and there's been no

8 showing by the defense that Mr. Castor is a law

9 enforcement agency, much less that he is acting in

10 the course of his duties.

11 THE COURT: Does that continue to apply

12 after the case ends?

13 MR. BARDO: Your Honor, yes, it would.

14 Criminal record information remains investigative

15 information. It does not become public information

16 once the case ends. Of course, there are things --

17 THE COURT: You mean either by conviction

18 or acquittal or just that if dismissed, that

19 continues to be subject to the investigating

20 information protection?

21 MR. BARDO: Under CHRIA, yes. Under the

22 common law investigative privilege, probably not.

23 THE COURT: Okay.

24 MR. BARDO: And I will explain that in a

25 moment. But I would note that, of course, some


Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 9 of 30

1 things are going to be disclosed publicly. That

2 would give an alternate source. It wouldn't be

3 coming from the district attorney.

4 THE COURT: You mean at trial?

5 MR. BARDO: Yes, Your Honor.

6 THE COURT: Yes.

7 MR. BARDO: And, of course, disclosure to

8 the Court is allowed. Any court is defined as a law

9 enforcement agency in CHRIA.

10 So moving onto the investigative privilege,

11 I would again point out that, generally,

12 investigative privilege, which has been recognized

13 repeatedly by the federal courts, would at least

14 delay discovery until the conclusion of the matter.

15 And defendant said repeatedly that this is a decade

16 old investigation that's closed, and that's just

17 simply not the case. The case is open, pending

18 before three separate courts right now, and the

19 charges are very alive and well.

20 So I would point out that if CHRIA doesn't

21 apply and we get to the investigative privilege at

22 common law, then the approach suggested by the bulk

23 of case law is that his discovery request needs to

24 wait until the completion of the criminal trial.

25 THE COURT: But would that involve appeals


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1 all the way up to Pennsylvania Supreme Court at the

2 very least, right?

3 MR. BARDO: My understanding is that once

4 his direct appeals would conclude, I think at that

5 point the privilege would be relaxed.

6 THE COURT: Okay.

7 MR. BARDO: I do not have anything to cite

8 to Your Honor to support that. That's just my

9 rational idea of how it would happen.

10 THE COURT: Yes.

11 MR. BARDO: Even notwithstanding the

12 general favorability of delay --

13 THE COURT: Well, let me ask you this.

14 Does the D.A. have discretion to exercise the

15 privilege and the investigatory information or is he

16 required by law to do so?

17 MR. BARDO: Well, Your Honor, under CHRIA,

18 the -- there would be no ability for the district

19 attorney to waive it because if you go to the

20 enforcement provisions of CHRIA, it specifically

21 discusses that there are administrative and civil

22 consequences if the district attorney were to

23 disclose this information.

24 THE COURT: He cannot disclose it in the

25 public interest some information and not others?


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1 That's what I'm asking you. Is there any discretion

2 or is he barred by law? He would be violating the

3 law as he understands it if he disclosed it.

4 MR. BARDO: Respectfully, Your Honor, we

5 would be barred by law from disclosing this

6 information.

7 THE COURT: Okay.

8 MR. BARDO: That is the law of CHRIA.

9 Moving on --

10 THE COURT: And that involved the

11 investigatory information privilege as well?

12 MR. BARDO: The common law investigatory --

13 THE COURT: Yes.

14 MR. BARDO: -- privilege is an executive

15 privilege. That would be possessed by the executive,

16 which does at least imply some discretion.

17 THE COURT: Okay.

18 MR. BARDO: So there again remains this

19 dissidence between CHRIA and the common law

20 investigative privilege.

21 THE COURT: You think the scope is

22 coextensive?

23 MR. BARDO: I believe they overlap to a

24 certain extent, Your Honor, but I do not believe that

25 they are the same beast by different names, if you


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1 would.

2 THE COURT: Okay.

3 MR. BARDO: Finally, just mentioning the

4 policy considerations that support both of these

5 privileges, when victims come to police -- when

6 anyone comes to police, there --

7 THE COURT: Well, if you can't do it, it

8 doesn't really matter. It could be a good policy or

9 a bad policy, but you're saying I can't do it anyway.

10 MR. BARDO: That is correct.

11 THE COURT: On top of that, maybe the

12 frosting is that you happen to think it's a good

13 thing, but it doesn't really matter. The question is

14 before the Court. I mean the Court would -- let's

15 assume that there was no privilege. Then the Court

16 wouldn't have a discretion to say well, there is no

17 privilege. What I think is, you know, victims are

18 going to be put off or whatever. I mean that's not

19 part of this calculus.

20 MR. BARDO: That is correct, Your Honor.

21 THE COURT: Okay. Just call it

22 straightforward from what the statute says. That's

23 your view?

24 MR. BARDO: Yes, Your Honor.

25 THE COURT: Good. Thank you.


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1 MR. BARDO: Thank you.

2 MR. PUGH: Good afternoon, Your Honor. Bob

3 Hugh, Your Honor. I represent Mr. Castor.

4 THE COURT: What's your best case for CHRIA

5 disclosure?

6 MR. PUGH: Yeah, CHRIA, it's a pretty air

7 tight statute, Your Honor.

8 THE COURT: Yes.

9 MR. PUGH: I concede that. What troubles

10 me about the case, Your Honor, is that it -- you

11 know, we just hear the argument that these statements

12 are protected by statute and you can't talk about

13 them. Well, the D.A.'s office on December 30th,

14 2015, issued a press release, Your Honor, and in that

15 press release they talk about all the things we're

16 asking for. In fact, they specifically cite on

17 January 22nd, 2005, the victim gave a statement to

18 the police indicating what happened to her. They

19 summarized the statements and other information in

20 the press release. The victim sued my client, and I

21 can't get the very documents I need to defend the

22 case. So, Yes, I understand CHRIA is a pretty air

23 tight statute, Your Honor.

24 THE COURT: So you think that somehow this

25 was waived maybe, if that's the term or --


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1 MR. PUGH: I don't know that it can be

2 waived, Your Honor, but --

3 THE COURT: Right.

4 MR. PUGH: -- I'm looking at, you know,

5 sort of the substantial need test --

6 THE COURT: Yes.

7 MR. PUGH: -- that my client --

8 THE COURT: Because the statute probably --

9 well, we didn't get into the policy, but I would

10 think it's probably intended to protect, you know,

11 future victims or that kind of thing, not any

12 particular person that has a lawsuit and needs this

13 information.

14 MR. PUGH: Right, I agree with that, Your

15 Honor. So while I -- again, while I think CHRIA is a

16 statute that is an uphill battle that we have to deal

17 with, the Court can, under 45(d)3(C), may instead of

18 quashing or modifying the subpoena, order production

19 under specified conditions if the serving party shows

20 a substantial need for the material.

21 Well, Mr. Castor certainly has a

22 substantial need for the material because that

23 material, Your Honor, would confirm --

24 THE COURT: Well, but if there is a state

25 law privilege, you think the Court would have the


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1 power to override that privilege in -- for good cause

2 even, assuming that there is good cause? You think

3 that the Court would just be able to override it and

4 modify the state statute and say in this case it

5 doesn't really apply because I don't think so?

6 MR. PUGH: Well, I think Your Honor could

7 order the production pursuant to a protective order,

8 yes, Your Honor. And the information -- the purpose

9 of CHRIA is met. The information stays confidential,

10 does not get out into the world, and it allows the

11 litigants in this case to defend the claim. Your

12 Honor did, in the case of Cooney versus Booth, define

13 a substantial need as information which will confirm

14 or undercut plaintiff's allegations.

15 THE COURT: Now, Cooney versus Booth was a

16 medical malpractice --

17 MR. PUGH: Yes.

18 THE COURT: -- as I remember.

19 MR. PUGH: Yes, Your Honor.

20 THE COURT: Yes.

21 MR. PUGH: That's right.

22 THE COURT: And what was the information

23 sought there? Was it protected by state law?

24 MR. PUGH: It was attorney-client

25 privilege --
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1 THE COURT: Okay.

2 MR. PUGH: -- that was -- that was alleged,

3 and Your Honor found there was not because the doc --

4 the lawyer and the patient and the doctor had a

5 meeting, and, therefore, the doctor, being at that

6 meeting, created no attorney-client privilege, and

7 you ordered the doctor to appear for a deposition.

8 THE COURT: Okay.

9 MR. PUGH: But the substantial lead test is

10 in the -- is in the dicta in that -- in that opinion,

11 memorandum opinion, Your Honor, and, again, it's to

12 confirm or undercut plaintiff's allegations. So I --

13 you know, I don't know why the district attorney can

14 talk about the statements and I can't have them to

15 defend a civil claim that this --

16 THE COURT: Okay.

17 MR. PUGH: -- victim is bringing against my

18 client.

19 THE COURT: So your view is release the

20 statements, but under protective order --

21 MR. PUGH: Yes.

22 THE COURT: -- that only be seen by counsel

23 and maybe by plaintiff and counsel, and then see what

24 happens later? We could modify that one way or the

25 other later on. And then you base that upon the fact
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1 that although the state statute seems to be fairly

2 straightforward, there was some conduct here by the

3 D.A. that maybe needs to be, in the interest of

4 justice, balanced?

5 MR. PUGH: Your Honor, if I could mark as

6 an Exhibit an addendum to my motion as Exhibit A, the

7 December 30th, 2015 --

8 THE COURT: Okay.

9 MR. PUGH: -- press release?

10 THE COURT: Sure. Be made -- it be made

11 part of the record.

12 MR. PUGH: Thank you, Your Honor. And,

13 essentially, that is correct, Your Honor, what Your

14 Honor just -- what Your Honor just stated.

15 THE COURT: And that's 45(b)3(C), right?

16 MR. PUGH: 45(d)3(C).

17 THE COURT: Okay.

18 MR. PUGH: Yes, Your Honor.

19 THE COURT: Anything else?

20 MR. PUGH: Yes. In the -- in the response

21 by the D.A.'s office, in their motion to quash in

22 paragraph seven, the D.A.'s office talks about

23 statements in 2005 to law enforcement in both Canada

24 and Pennsylvania, and they also have another sentence

25 that says, "The district attorney possesses other


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1 investigative documents that purport to contain

2 direct quotation from the plaintiff as well.

3 Defendant's subpoena demands production of these

4 documents." So there -- I think there's more in the

5 file than what Your Honor set forth in the order that

6 brings us here today, and as a result, I would ask --

7 THE COURT: Well, that's all that was

8 provided to me.

9 MR. PUGH: Of course.

10 THE COURT: If there's something else --

11 yes.

12 MR. PUGH: I agree. Sorry to interrupt

13 Your Honor.

14 THE COURT: Yes.

15 MR. PUGH: Correct, you were given certain

16 documents --

17 THE COURT: Although I don't know whether

18 those statements such as they are simply are based

19 upon the materials that were provided to me, in other

20 words, whether they simply repeat something that is

21 in some other statements.

22 MR. PUGH: Yes, Your Honor, and that's why

23 I -- in addition to the production of the statements

24 that Your Honor talks about in his order, I also am

25 requesting either an in camera review of the criminal


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1 file or an affidavit filed by the D.A.'s office that

2 they have complied with the very broad subpoena that

3 we served. We didn't just ask for police statements.

4 We asked for any statement in any way, shape, or form

5 under the sun made in this case. So it is a very

6 broad subpoena.

7 Lastly, Your Honor, in your April 25th,

8 2016, order, you identify four --

9 THE COURT: Yes.

10 MR. PUGH: -- documents, A, B, C, and D.

11 Document A can be taken off the table. That was

12 produced --

13 THE COURT: Which one is that? What of the

14 A, B, C, and D? Which is A?

15 MR. PUGH: A -- yes, A is a Cheltenham

16 Township detective's initial conversation --

17 THE COURT: Okay. That was -- that's a

18 written -- that's a written document?

19 MR. PUGH: Yes.

20 THE COURT: Okay.

21 MR. PUGH: That --

22 THE COURT: You have that?

23 MR. PUGH: That was produced in response to

24 a subpoena that was issued --

25 THE COURT: Okay.


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1 MR. PUGH: -- to Mr. McMonogal. So yes,

2 that's -- document A is moot.

3 THE COURT: Okay. C and D -- I don't know

4 whether this fits in now or in the second motion, but

5 C and D are really not relevant. They really have

6 nothing to do -- it's not a statement at all.

7 It's -- and I suppose it was produced to the extent

8 that it referred to this case, but it's not a

9 statement. So I think we're down to then one

10 document. That would be B. So that's where we are.

11 Anybody else would like to say -- yes?

12 MR. BARDO: If I may, Judge?

13 THE COURT: Well, why don't we give

14 everybody a chance and then we'll come back to you as

15 the final word?

16 MR. BARDO: Yes, Your Honor.

17 MR. SILVER: Mine will be brief.

18 THE COURT: Cosby's attorney?

19 MR. SILVER: Yes, thanks, Your Honor. Sam

20 Silver for Mr. Cosby. And my point may be moot now

21 if C and D are off the table --

22 THE COURT: Yes.

23 MR. SILVER: -- because my sheer concern

24 was that if there were to be a production of C and D,

25 we would ask that the Court permit us to review them


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1 before they're produced in case we need to seek a

2 protective order, simply because we don't know what

3 their content is.

4 THE COURT: The Court finds they're not

5 relevant.

6 MR. SILVER: Thank you, Your Honor. So I

7 think that resolves --

8 THE COURT: Yes. I mean that was in --

9 they don't make anything more or less probative.

10 They're just not relevant.

11 MR. SILVER: I know Mr. Pugh --

12 THE COURT: So we're down to B.

13 MR. SILVER: -- just asked about additional

14 documents and I don't know what that is or where that

15 will come out. But to the extent there are

16 additional documents that we don't know about, we

17 would want an opportunity to approach Your Honor with

18 respect to those as well.

19 THE COURT: Very good.

20 MR. SILVER: Thank you.

21 THE COURT: The Constand counsel?

22 MS. TROIANI: Dolores Troiani for Ms.

23 Constand. Your Honor, as to B, I don't recall every

24 seeing any handwritten notes from the Durham Police

25 Department. There was a typewritten one. I believe


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1 that this was not in the original file, therefore,

2 would not be relevant either because Mr. Castor would

3 not have had the ability to see it. So it has no

4 relevance either, and maybe the D.A. can confirm

5 whether or not it was in the original file.

6 THE COURT: I think I said it in the order.

7 I think that document is handwritten notes --

8 MR. BARDO: Yes, Your Honor.

9 THE COURT: -- from -- did we disclose

10 where it was from?

11 MR. BARDO: You did.

12 MS. TROIANI: Yes.

13 THE COURT: Okay. So it was -- they're

14 handwritten -- they appear to be handwritten notes by

15 somebody who talked to the -- to Ms. Constand in

16 Canada.

17 MS. TROIANI: Right. And that was typed

18 up, and I believe that is --

19 THE COURT: Yes.

20 MS. TROIANI: -- the January 2nd, 2005,

21 statement referencing their --

22 THE COURT: So all we have left is the

23 handwritten notes of that person. So what's your

24 view then?

25 MR. BARDO: Yes, Your Honor, I just wanted


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1 to first briefly respond to --

2 THE COURT: Yes.

3 MR. BARDO: -- counsel's assertion that

4 there are yet more statements. I just wanted to

5 address the Court again as an officer of the court.

6 We produced everything to Your Honor that we believed

7 was in compliance with --

8 THE COURT: Now, let me ask you this. Is

9 the -- and I haven't read that, but the exhibit that

10 counsel offered today, are any statements that are

11 contained in that quote or cite, Ms. Constand, are

12 those part and parcel of full statements that were

13 provided? In other words, are those quotes from

14 statements that they already have or are those

15 additional quotes?

16 MR. BARDO: Your Honor, just having

17 reviewed this briefly, I believe they are all from

18 things that have already been provided.

19 THE COURT: Okay. And you will check to

20 see if there's anything else?

21 MR. BARDO: I will verify and I will update

22 Your Honor --

23 THE COURT: Okay.

24 MR. BARDO: -- if my position changes.

25 THE COURT: Okay. So we're down to one


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1 document, handwritten notes of a police officer who

2 has already typed up a full statement.

3 MR. BARDO: Yes, Your Honor, and the only

4 reason we produced that was because it purports to

5 contain direct quotes. As defense noted, his

6 subpoena was very broad.

7 THE COURT: Yes.

8 MR. BARDO: Any statements made to anyone

9 in whatever medium.

10 THE COURT: Yes.

11 MR. BARDO: So we interpreted that as

12 anything that contains what purport to do be direct

13 quotes. In good faith we submitted that to Your

14 Honor.

15 THE COURT: Now, would that be part of

16 material that would be -- that would be disclosed in

17 discovery in a criminal case?

18 MR. BARDO: In criminal discovery it very

19 well may be, and I am not part of the criminal

20 trial --

21 THE COURT: Okay.

22 MR. BARDO: -- team. I figure I should

23 just clarify that initially. However, I do believe

24 it would be encompassing criminal discovery, and at

25 that point, Your Honor, the -- if the defense chooses


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1 to disclose it -- if there's a protective order, that

2 may be one thing.

3 THE COURT: Maybe.

4 MR. BARDO: But it is not the district

5 attorney that would be disclosing that --

6 THE COURT: Right.

7 MR. BARDO: -- to a private litigant who is

8 defending himself against a defamation claim.

9 THE COURT: Okay. So --

10 MR. BARDO: The CHRIA law specifically --

11 and I apologize, Your Honor -- prohibits us from

12 disclosing.

13 THE COURT: Right. Now, did -- Mr.

14 Troiani, do you have those notes or not?

15 MS. TROIANI: No, we never did.

16 THE COURT: Okay. You don't. So you can't

17 get them from her because she doesn't have them.

18 Only the D.A. has them, and the -- Crosby's position

19 is what as to those notes?

20 MR. SILVER: We don't have a position on

21 those notes, Your Honor.

22 THE COURT: You don't care?

23 MR. SILVER: No.

24 THE COURT: Okay.

25 MR. SILVER: Well, I don't know if we don't


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1 care, but we don't have a position today.

2 THE COURT: Well, you don't have a position

3 here if the Court orders it one way or the other.

4 MR. SILVER: Right.

5 MS. TROIANI: Your Honor, but our point is

6 it cannot be relevant to the defamation action

7 because Mr. -- they weren't available to Mr. Castor

8 because we believe we had the entire file back in

9 2005.

10 THE COURT: Okay. When -- that would be --

11 that would be the question then. The statements were

12 available to him, but not those notes?

13 MS. TROIANI: That's -- that is my --

14 THE COURT: What do you think of that?

15 MR. PUGH: I don't know that to be true,

16 Your Honor. I just don't.

17 THE COURT: Okay. Do we have a date? I

18 don't know if there is a date, but I think you --

19 let's see. Do we have a date on that?

20 MS. TROIANI: It says January 12th, 2005.

21 THE COURT: January 12th? Okay, January

22 12th. So help me out here with the chronology. How

23 does that all fit into when the statements were made?

24 MS. TROIANI: The issue is what did Mr.

25 Castor know in 2005 and 2015.


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1 THE COURT: Okay.

2 MS. TROIANI: If this was not in the file

3 in 2005, and I believe it was not, then it has no

4 relevance to the defamation case.

5 MR. PUGH: That could very well be true.

6 We don't know when this made it to the file though,

7 Your Honor. We have no way of knowing that.

8 MS. TROIANI: Well, if I didn't have it, I

9 don't think it was in there.

10 MR. PUGH: I mean certainly the statement

11 that was typed up the next day, everyone has that, so

12 why wouldn't you have one that was mailed on the day

13 before?

14 THE COURT: Now, the statement that was

15 typed up the next day was in the file?

16 MR. PUGH: Yes.

17 MS. TROIANI: Yes, Your Honor.

18 THE COURT: Okay. But these notes, how did

19 they get into the file? Do you have any idea?

20 MS. TROIANI: No.

21 MR. BARDO: Your Honor, I can speculate.

22 THE COURT: Yes?

23 MR. BARDO: If you recall, we reopened the

24 investigation. Part of reopening the investigation

25 was going back and seeing if there was more evidence


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1 that might have not made it to the district attorney.

2 THE COURT: Well, maybe you should go back

3 and then just give us an affidavit of your best

4 reconstruction of when this statement -- if that is

5 so and somebody can say look, the investigation was

6 reopened, I then called Canada, and they said check

7 your file, see what you have, and they said all we

8 have is handwritten notes, then I think that would

9 clarify it.

10 MR. BARDO: I would agree, Your Honor, but

11 I don't think that changes my position that --

12 THE COURT: Well, that's all right.

13 MR. BARDO: -- it would still be protected.

14 THE COURT: Yes. But it's easier if it

15 wasn't there. Then we don't have to -- we don't have

16 to rule on anything because there's nothing to rule

17 on.

18 MR. BARDO: Right. Understood, Your Honor.

19 THE COURT: Yes. Okay. Anyone else?

20 Okay. So why don't we give you seven days to do

21 that? And I think that simplifies what's at issue

22 here, and at best, there's only one document at issue

23 and possibly none. Okay? Anyone else have anything

24 to add? Okay, very good. Thank you.

25 MS. TROIANI: Thank you.


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1 MR. BARDO: No, Your Honor, thank you.

2 MR. SILVER: Thank you, Your Honor.

3 MR. PUGH: Thank you, Your Honor.

4 (Proceedings adjourned, 4:37 p.m.)

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Case 2:15-cv-05799-ER Document 41 Filed 06/03/16 Page 30 of 30

6 CERTIFICATION

8 I, Michael Keating, do hereby certify that

9 the foregoing is a true and correct transcript from the

10 electronic sound recordings of the proceedings in the

11 above-captioned matter.

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5/18/16
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16 Date Michael Keating

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