Cosby Deposition Battle Demonstrates Power of Pretrial Tool

The California Court of Appeal recently issued an order temporarily staying the pretrial depositions of Bill Cosby and his former attorney, Martin (“Marty”) Singer, in a defamation action filed by former supermodel Janice Dickinson.  The action arises from statements by Singer in which Singer called Dickinson’s account of being raped by Cosby in 1982 a “lie.”

Dickinson never pressed charges or sued over the 1982 incident.  Dickinson claims that when she wrote an autobiography, the publisher would not permit her to include the rape story.  Finally, when a number of women went public with their charges against Cosby, Dickinson stated that Cosby drugged and raped her in a November 18, 2014 interview.  Cosby, through his attorney Singer, then published statements saying that Dickinson’s story was a “lie.”  Dickinson sued for defamation, claiming that Cosby’s statements injured her in her career.

Cosby apparently responded to the defamation action with an “anti-SLAPP” motion, a powerful pretrial tool that ordinarily stays pretrial “discovery,” or fact gathering, and seeks dismissal of actions based upon speech or petitions to the government.  Dickinson apparently responded with a request that the trial court permit the depositions of Cosby and Singer, so Dickinson can properly oppose the anti-SLAPP motion.  The trial court ordered the depositions to go forward, an order that the court of appeal stayed pending further briefing.

The pretrial deposition is a crucial tool that can make or break a case.  In some countries the testimony of witnesses is not taken until the trial.  In the U.S., however, witnesses can be questioned, or “deposed,” under oath after a complaint has been filed and before the trial.  While the deposition is taken in a private setting, often an attorneys’ conference room, the witness is put under oath and testifies under penalty of perjury, just as though s/he were in a courtroom at the trial.  The transcript of the deposition can then be used to support later pretrial filings.  At the trial, the deposition transcript can be read into evidence, or played on video of the deposition was so recorded, if the witness is a party or is absent.  For witnesses who are available to testify in court, the deposition transcript can be used to “impeach,” or contradict, a witness who testifies at odds in the courtroom with the testimony given in the pretrial deposition.

Where a case has caught the public eye, which is certainly true with Cosby, a pretrial deposition transcript can be a powerful tool to try a witness in the court of public opinion.  Cosby’s public reputation suffered greatly with the unsealing of pretrial deposition testimony given in 2005, in which Cosby admitted that he had Quaaludes in the 1970s that he intended to give to women with whom he wanted to have sex.  While this was not a direct admission of any of the drug-rape charges, the testimony supported the charges with the admitted predilection for use of stupor-inducing drugs in connection with sex.

In business cases deposition testimony is not usually this dramatic or of interest to the public.  However, it remains a powerful tool.  I like to depose the other side’s key witnesses at the earliest possible stage, as soon as the key documents are in hand.  I don’t like to give the other side too long to mull over their position and marshal rationalizations for their actions.  I now videotape every deposition unless there is a cost concern.  Testimony played on a TV screen at trial is far more powerful than a boring dry read from a transcript.  Statements made at a pretrial deposition may give me ammunition for important pretrial motions, including a motion for “summary judgment,” or judgment in my client’s favor prior to trial.  It locks the other side into their story, from which they cannot escape at trial.

The pretrial deposition is a powerful tool.  If I were Bill Cosby, I too would use all of the legal firepower I could afford to avoid being deposed.  Cosby has been deposed once in a rape case, a transcript that has not yet been released publicly.  I suspect he will be required to give a deposition in the Dickinson case.  If any of these transcripts become public, and if Cosby testifies in a fashion at all damning, I think he will have lost for all practical purposes before any of the cases against him go to trial.