"Publicly Available" Deposition Transcripts? Avoiding a Cosby Disclosure
Bill Cosby has received a lot of unwanted media attention over the last few years. His story got particularly interesting, however, in the pages of The New York Times. In a recent series of articles, the Times published excerpts from a deposition given by Mr. Cosby ten years ago, asserted that it obtained the transcript from the court reporting company that transcribed the testimony, and claimed that the deposition transcript was “publically available.”
Mr. Cosby’s lawyers responded with a court filing alleging that the plaintiff in that lawsuit should be held accountable for the disclosure—specifically, that settlement language required her to use her “best efforts” to have “consultants, agents . . . and vendors comply with the confidentiality provisions” of the settlement agreement.
As a litigator, the fact that The New York Times was able to obtain a deposition transcript in a previously and confidentially settled case was eye opening for me. Indeed, this development puts every party to litigation on notice that additional steps may be necessary to avoid disclosure of deposition transcripts, even in confidentially settled cases.
What Should Litigators Do?
Clearly, certain types of clients may now require even greater care than they did before the “Cosby Disclosure.” A client who is a public figure may give deposition testimony that should be shielded from public disclosure for a number of reasons. Clients with the threat of repeat litigation and previous bad deposition testimony may also be more vulnerable. Settlement agreements must take steps to protect that testimony.
So what steps should litigators take to protect clients against a Cosby Disclosure? Given the rapid departure from expectations in this case, it is likely that appropriate protections will develop over time. However, lawyers and litigants in sensitive cases should contemplate adding language to contracts with court reporters prohibiting the transcription company from disclosing a deposition transcript to third parties absent written consent of all parties to the lawsuit.
Another option may be to include language in the confidentiality provision of a settlement agreement requiring all parties to demand that a court reporter turn over or destroy all copies of the transcript, including the originals and any electronic recording of the deposition.
It is worth noting that obtaining a deposition transcript may not be as easy as The New York Times made it look. The National Court Reporter’s Association has a Code of Professional Ethics that seeks to “preserve the confidentiality and ensure the security of information, oral or written, entrusted to the Member by any of the parties to the proceeding.” Of course, that aspiration would not bar production of a deposition the reporter deems publically available. Moreover, we have now seen that such ethical aspirations will not prevent a disclosure in all circumstances.
 Graham Bowley and Sydney Ember, Bill Cosby, in Deposition, Said Drugs and Fame Helped Him Seduce Women, The New York Times, July 18, 2015; Graham Bowley and Sydney Ember, Uncertainty on Whether Cosby Revelations Could Hurt Him in Court, The New York Times, July 20, 2015.
 Case 2:05-cv-01099-ER, DN 112, p. 5.