United States District Court, D. Massachusetts
H. Hennessy U.S. Magistrate Judge
April 11, 2016, Plaintiffs filed a motion to quash Defendant
William H. Cosby, Jr.'s subpoena to Kaplan Leaman &
Wolfe (“KLW”). (Docket #1). The motion was
initially filed in the Eastern District of Pennsylvania.
However, upon motion by Cosby, the motion to quash was
transferred to this court on November 28, 2016. (Dockets #22,
23). The motion was referred to the undersigned for a ruling
on December 5, 2016 pursuant to 28 U.S.C. §
636(b)(1)(A). (Docket #26). A hearing on the motion before
the undersigned was held on February 10, 2017. (Docket #38). In
response to the court's directive, on February 17, 2017,
both Plaintiffs and Cosby filed a supplemental memorandum
addressing the discrete hypothetical of whether it would be
appropriate to restrict the use by Plaintiffs of evidence
that was procured by the misconduct of a third party.
(Dockets #39 and 40, respectively; see Docket #491
at 92-93 in case number 3:14-cv-30211-MGM). This matter is
now ripe for adjudication. For the reasons that follow, the
motion to quash is GRANTED.
2005, Andrea Constand sued Cosby in the Eastern District of
Pennsylvania claiming that Cosby had sexually assaulted her.
See generally Constand v. Cosby, 05 Civ. 1099 (E.D.
Pa. 2005) (“Constand”). In connection
with that matter, Cosby gave a deposition. This deposition
was stenographically recorded by KLW. During discovery,
portions of the Cosby deposition transcript were filed with
the Constand court as exhibits to motions. Pursuant
to Constand's Case Management Order 2 (the
“CMO”), these materials were filed under seal.
The parties settled and jointly dismissed the
Constand action in 2006 by reaching a private
confidential settlement agreement (the “CSA”).
2015, the Honorable Eduardo C. Robreno ordered the unsealing
of the previously-sealed motions, and more notably, their
accompanying exhibits including portions of the Cosby
deposition in which Cosby made damaging admissions. See
Constand Docket #105-06 (the “unsealing
order”). Soon after Judge Robreno issued the unsealing
order, counsel for Plaintiffs obtained the complete
transcript of the Cosby deposition. According to the
affidavit of Gregg B. Wolfe, the owner of KLW, KLW
independently and without external influence, interpreted
Judge Robreno's unsealing order as meaning that
“the full deposition transcripts could properly be
released.” (Docket #1-1 at 23-24). KLW thus released
the full transcript to numerous outlets. As recognized in a
prior order, Plaintiffs' counsel requested the transcript
from KLW, and thus did not obtain it through the formal
discovery process. (See Docket #307 at 2 in case
February 1, 2016, Cosby filed suit against American Media,
Inc., Dolores M. Troiani, Bebe Kivitz, Andrea Constand, and
Gianna Constand alleging that these defendants had violated
their confidentiality obligations under the CSA. Cosby v.
American Media, Inc, 16 civ. 508 (E.D. Pa. 2016)
(“AMI”). In the complaint, Cosby alleged
that his deposition was improperly released because Troiani
and Kivitz, Constand's lawyers in the 2005 civil action
against Cosby, either instructed KLW to release it, or
knowingly failed to use their best efforts to ensure that
KLW, a vendor whom they had retained, complied with the
confidentiality provisions of the CSA. On July 28, 2016,
Cosby voluntarily dismissed the AMI action. See
AMI Docket #56.
March 29, 2016, Cosby issued a subpoena to KLW, commanding
KLW to appear and provide documents and testimony on April
14, 2016. Cosby issued an amended subpoena, that at issue
here, on April 7, 2016, changing the location of appearance.
(Docket #2-1). The subpoena calls for corporate testimony on
five subject matters encompassing the circumstances of
KLW's release of Cosby's deposition and the
production of thirteen different categories of documents.
argues that the motion to quash should be denied because the
Plaintiffs and their counsel lack standing to quash the
subpoena. (Docket #8 at 16-17). Plaintiffs, on the other
hand, claim that, along with their counsel, they each have
standing to challenge the subpoena because the subpoena seeks
testimony and documents concerning Plaintiffs and their
counsel and their communications. (Docket #1 at 18).
a general rule, a party lacks standing to quash a subpoena
issued to a nonparty unless the information sought is
privileged or implicates the party's privacy
interests.” DeGrandis v. Children's Hosp.
Boston, No. 14-10416-FDS, 2016 U.S. Dist. LEXIS 114013,
at *12 (D. Mass. Aug. 25, 2016) (Kelley, M.J.) (citing
Patrick Collins, Inc. v. Does 1-38, 941 F.Supp.2d
153, 159 (D. Mass. 2013)). “The personal right or
privilege claimed need not be weighty: parties need only have
‘some personal right or privilege in the
information sought” to have standing to challenge a
subpoena to a third party.” Id. (quoting
Patrick Collins) (emphasis in original).
this court need not delve into the standing issue. Federal
Rule of Civil Procedure 26(b)(2)(C)(iii) requires the court
to limit the frequency or extent of discovery otherwise
allowed under those rules or by local rules if it determines
that the proposed discovery is outside the scope permitted by
Rule 26(b)(1). The court may do so “[o]n motion or on
its own.” Fed.R.Civ.P. 26(2)(C). If the court could
effect the relief Plaintiffs seek sua sponte, the
court is not precluded from reaching the same result merely
because Plaintiffs have taken the initiative. Accusoft
Corp. v. Quest Diagnostics, Inc., No. 12-40007-FDS, 2012
U.S Dist. LEXIS 54216, at *32 (D. Mass. Apr. 18, 2012).
Rule of Civil Procedure 26(b)(1) provides that, unless
otherwise limited by court order:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense or
the proposed discovery outweighs its likely benefit.
is relevant if “it has any tendency to make a fact more
or less probable that it would be without the evidence”
and “the fact is of consequence in determining the
action.” Fed.R.Civ.P. 401. The information sought by
the subpoena at issue, namely the basis for KLW's
decision to release the full Cosby deposition, is not
relevant to any of the claims or defenses in the instant case
which sound in defamation, invasion of privacy, intentional
infliction of emotional distress, and tortious interference.
(See Dockets #109, 121 in case number