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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 27 of 80 On March 8, 2005, Ms. Constand filed her civil suit and Mr. Schmitt retained Patrick O’Conner, Esq., as civil counsel. Mr. Schmitt participated in the civil case. [Cosby] sat for four days of depositions. Mr. Schmitt testified that [Cosby] did not invoke the Fifth Amendment in those depositions and that he would not have let him sit for the depositions if he knew the criminal case could be reopened. He testified that generally he does try to get agreements on [Cosby’s] behalf in writing. During this time period, Mr. Schmitt was involved in written negotiations with the National Enquirer. He testified that he relied on the press release, Mr. Castor’s word and Mr. Phillips’ assurances that what Mr. Castor did was sufficient. Mr. Schmitt did not personally speak to Mr. Castor or get the assurance in writing. During the depositions, Mr. O’Conner objected to numerous questions. At the time of the depositions, Mr. Schmitt, through his negotiations with the National Enquirer, learned that there were Jane Doe witnesses making allegations against [Cosby]. [Cosby] did not assert a Fifth Amendment privilege when asked about these other women. Mr. Schmitt testified that he had not formed an opinion as to whether Mr. Castor’s press release would cover that testimony. Mr. Schmitt testified that during negotiations of the settlement agreement there were references to a criminal case. The settlement agreement indicated that Ms. Constand would not initiate a criminal case against Mr. Cosby. Mr. Schmitt did not come forward when he learned the District Attorney’s office re-opened the case in 2015. T.C.O. at 47-61 (cleaned up). Notably, when District Attorney Castor decided not to prosecute Cosby, he “absolutely” intended to remove “for all time” the possibility of prosecution, because “the ability to take the Fifth Amendment is also for all time removed.” N.T., 2/2/2016, at 67. The trial court sought clarification from Mr. Castor about his statement in his second email to D.A. Ferman that he still believed that a prosecution was permissible as long as Cosby’s depositions were not used in such proceedings. Former D.A. Castor explained to the court that he meant that a prosecution may be available only if other victims were discovered, with charges related only to those victims, and without the use of Cosby’s depositions in the Constand matter. Specifically, former D.A. Castor stated that what he was “trying to convey to Mrs. Ferman [was that his] binding of the Commonwealth not to prosecute Cosby was not for any crime in Montgomery County for all time. It was only [J-100-2020] - 26 DOJ-OGR-00004839