Cosby lawyers ask judges to seal past case files

A federal appeals court on Wednesday questioned the point of Bill Cosby's request to reseal the decade-old court documents that have helped reignite criminal and civil sexual-assault cases against him.

During arguments before judges on the U.S. Court of Appeals for the Third Circuit in Philadelphia, one of Cosby's attorneys acknowledged that resealing the records could be akin to putting toothpaste back into the tube.

Judge Thomas L. Ambro quipped that even that metaphor might not go far enough.

"It's like the toothpaste in the tube came out, people brushed their teeth, and they spit it down the drain," Ambro said.

The documents that U.S. District Judge Eduardo Robreno unsealed last summer at the request of the Associated Press included excerpts of Cosby's deposition in a 2005 civil lawsuit filed against him by Andrea Constand, who accused Cosby of drugging and sexually assaulting her at his Cheltenham home.

Constand and Cosby settled that claim, under terms that were to remain confidential. But the release of the deposition transcripts - including testimony by Cosby that he had obtained Quaaludes to give to women before consensual sexual encounters - led Montgomery County prosecutors to reopen an investigation into Constand's claims and build the aggravated-indecent-assault case that they filed in December. The documents have also been sought or cited in civil claims involving the embattled 78-year-old entertainer.

Still, Cosby wants the three-judge appeals panel to rule that the records should never have been released and should now be protected from public access.

Judge D. Brooks Smith said conversations in his chambers about Cosby's dispute with the AP have included a series of metaphors, such as "cat out of the bag," "genie back in the bottle," and "horse out the barn door."

Unless Cosby's attorneys could provide concrete examples of how resealing of the documents could help the entertainer, Smith said, "that seems to me not to be enough to answer whether we have a moot claim here."

Cosby attorney George Gowen argued that his appeal was not moot. A ruling that the documents "never should have been disseminated," he said, could have an impact on Cosby's criminal case and other civil lawsuits.

"A reversal . . . would change the ability of others to use these court records against the defendant in other proceedings," Gowen said.

The appeals panel cast doubt on the idea that its ruling would directly impact other court proceedings. The judges did, however, question Robreno's justification for unsealing deposition excerpts.

Robreno ruled that because Cosby had made himself an outspoken public figure on moral issues, the contents of the court files were a matter of public interest.

Judge Cheryl Ann Krause asked whether there is "a reduced privacy interest because someone is a celebrity or because they're in the public eye."

Gayle Sproul, an attorney for the AP, countered that Cosby had sold himself as a public moralist by preaching about marriage and family for decades.

"He essentially opened the door to his own morality," Sproul said.

The appeal was argued between Cosby's attorneys and the AP's. The AP is one of a few news organizations that obtained a full transcript of Cosby's deposition - an action over which the judges said Wednesday they had no control, but further demonstrated their inability to undo the public release of the documents.

Constand's attorneys were not party to the appeal, and Cosby did not attend Wednesday's oral arguments.

The court did not signal how soon it might rule on the matter.

lmccrystal@phillynews.com

610-313-8116 @Lmccrystal