Oberlin College goes after another news organization’s communications
Oberlin News Tribune subpoenaed, as was Legal Insurrection
Oberlin College attempted to subpoena the communications of WAJ Media LLC (dba Legal Insurrection) with sources regarding our reporting on an Ohio lawsuit by Gibson’s Bakery of Oberlin, Ohio, against Oberlin College and its Dean of Students, Meredith Raimondo.
The subpoena specifically sought our communications with the attorneys for Gibson’s, who had provided us with a statement about the case that we published as part of our reporting, Gibson’s Bakery sues Oberlin College over racial profiling accusations, Oberlin cuts business ties:
In response to Oberlin’s moves, Gibson’s attorney, Owen J. Rarric, Esq., provided this statement to Legal Insurrection:
The complaint filed this week identifies Oberlin College’s troubling conduct in attempting to bully and financially strangle a century-old local business for refusing to succumb to the College’s demand that Gibson’s ignore student shoplifting.
In response to Gibson’s resisting such bullying tactics, the College has further tightened the economic squeeze by cancelling business with Gibson’s.
The example that Oberlin College is setting is that if an institution is powerful, that institution and its members do not have to follow the Rule of Law.
Oberlin College previously sought similar records by subpoena to Gibson’s lawyers. Oberlin College’s theory behind the demand for journalist communications with Gibson’s counsel was that Gibson’s counsel somehow created the damages to Gibson’s reputation that are at issue in the lawsuit by communicating with the media. It’s a legally and logically ridiculous theory, and the Ohio court substantially quashed the subpoena Oberlin issued to Gibson’s counsel.
Having lost in the Ohio court, Oberlin College subpoenaed the records from us. We moved to quash the subpoena issued to Legal Insurrection and for a protective order, on the grounds, among others, that such communications were protected under the New York constitution and common law, and the New York Press Shield law.
In response to our court filing, Oberlin College withdrew the subpoena.
We have wondered, as have some commenters, whether Legal Insurrection was singled out by Oberlin College, or whether Oberlin College was going after other journalists as well. We now know that Oberlin College has subpoenaed at least one other journalist organization.
A docket entry in the Ohio case reflects that on July 24, 2018, the Oberlin News Tribune and its editor/reporter Jason Hawk moved to quash a deposition subpoena issued to them by Oberlin College, and/or for a protective order.
A copy of the Motion (pdf.) is embedded at the bottom of this post.
The Memorandum attached to the Motion starts:
Jason Hawk, editor and reporter for the Oberlin News Tribune, not a party to this action, was issued a deposition subpoena from Defendants Oberlin College and Meredith Raimondo to appear on June 27, 2018. Prior to the issuance of the subpoena, counsel for Mr. Hawk and counsel for Defendants, had preliminary conversations and corresponded about the reporter’s privilege against being compelled, to testify, should a deposition occur. In an attempt to pennit discovery to move forward without involvement of the Court, while also protecting Mr. Hawk’s privileged information, counsel for Mr. ‘ Hawk and counsel for Defendants agreed that Mr. Hawk would appear for the deposition to provide non-privileged information. In the process, Defendants’ counsel conceded that the reporter’s privilege in Ohio extends beyond the Ohio Shield Law and covers Mr. Hawk’s activities and observations within the editorial process.
Accordingly, Mr. Hawk appeared for the June 27, 2018 deposition.1 It quickly became apparent that Defendants had no intention of respecting the reporter’s privilege under the Ohio Shield Law, First Amendment to the U.S. Constitution, and the Ohio Constitution at Art. I, Sec. 11 in questioning Mr. Hawk. The Court’s immediate involvement has become necessary to protect Mr. Hawk and Oberlin News Tribune, non-parties, from compelled disclosure of privileged and protected matters and to protect them from attempts to continue the unrestricted deposition questioning of Mr. Hawk.
Addressing the absurd theory behind Oberlin College’s subpoenas, the motion states:
Defense counsel began discovery in this litigation with a frontal assault, trying to force disclosure of plaintiff’s counsel’s correspondence with media that reported the events underlying the case. The discovery effort was based upon the misguided theory that the plaintiffs counsel caused the media covering the underlying events to defame the plaintiff. Defense counsel’s argument for forcing disclosure of media correspondence with the plaintiffs lead counsel was appropriately cast-in plaintiff’s opposition to the defendant’s motion to compel that discovery-as “nonsensical.” The court correctly denied the defendants’ motion to compel that discovery beyond providing defense counsel with names of media known by the plaintiff to have knowledge of underlying events.
Undaunted by and openly disdainful of the Oberlin New Tribune staff’s privilege not to be forced to disclosed the same information to the defense in this case, defense counsel has now turned the discovery gun on the Oberlin News Tribune and other media, without any evidence that the plaintiff was defamed by the News Tribune. The subpoena directed to the News Tribune’s Mr. Hawk is therefore no more appropriate than the defendants’ earlier discovery assault on plaintiffs counsel. It is simply an unconstitutional and otherwise unlawful fishing expedition. And, for reasons that follow, the Court should find the deposition questioning undertaken by defense counsel-to which Mr. Hawk has objected-to be barred by the statutory and constitutional reporter’s privilege.
Despite the Court’s earlier order, Defense Counsel served another subpoena in New York State Court to force disclosure of privileged information by media covering this case. Legal Insurrection filed a motion to quash on July 5, 2018. (See Exhibit B, attached hereto).
Unlike the subpoena to Legal Insurrection, the subpoena to the Oberlin News Tribune sought to gain the information via testimony at a deposition. At the deposition, the News Tribune asserts, Oberlin College attempted to obtain protected information:
At the outset of the deposition, counsel for Mr. Hawk noted again the sources of the privileges that Mr. Hawk intended to enforce during his deposition: the Ohio Shield Law at R.C. § 2739.12, and the qualified privileges afforded to him by the First Amendment to the U.S. Constitution and the Ohio Constitution at Art. I,§ 11. (Hawk Depo. at 4:11-5:3).
The transcript of Mr. Hawk’s deposition has been filed with the Court. Even a cursory review of the transcript shows that Defendants’ counsel’s blatant attempt to question Mr. Hawk concerning privileged information. The deposition itself lasted from 10:10 A.M. until 4:32 P.M., and continued without a lunch break, with brief pauses for the restroom or as necessary for the witness to confer with counsel regarding a privilege issue. At the end of the June 27 deposition, Defendant’s counsel indicated
his intent to continue the deposition on another day. Throughout the deposition, counsel for Mr. Hawk was forced to object in accordance with Lorain County Common Pleas Court Loc.R. 19(C), asserting objections for matters of privilege and those which would be waived if not made pursuant to Ohio R. Civ. P. 32(d) and (b). Grounds for each assertion of privilege were stated on the record.
After an extended discussion of the law protecting the News Tribune’s communications, the motion concludes:
For all the reasons cited above, it is crucial that this Court issue an order quashing the subpoena or alternatively issuing a protective order limiting the examination of Mr. Hawk to verifying the attribution of information described in the ONT’s news reports to the sources disclosed to the ONT’s readers.
In one of the posts analyzing Oberlin College’s defense in the case, I questioned the aggressive posture Oberlin College was taking, Oberlin College lashes out at Gibson’s Bakery, portrays itself as victim:
Thus, Oberlin and Raimondo seek to portray the College as the victim in this scenario, including the confessed shoplifters. I can’t imagine, based on what is publicly available, this will work.
Moreover, the boycotts and protests against Gibson organized by students, and allegedly encouraged and coordinate with Oberlin administrators, were not primarily about a supposed assault on a student. Certainly, that was part of the mix, but the primary attack on Gibson’s was and still is that it allegedly engaged in racial profiling and unfairly targeted three black students with false claims of shoplifting. The guilty pleas put the lie to that line of protest, yet it it the defense laid out for Oberlin and Raimondo in their court filings. The Answer being a pleading of Oberlin and Raimondo, constitutes admissions that can be used against them. Unless discovery turns up something beyond what’s publicly known, Gibson’s lawyers should have a field day cross-examining Oberlin witnesses about the language quoted above.
Oberlin College’s seeming obsession with obtaining journalist communications seems as misguided as its defense in the case that the Oberlin College community is the real victim.
But, of course, Oberlin College is entitled to defend the case however it wants. What it is not permitted to do in that defense, however, is to infringe the protected communications of journalists.
We will continue to follow and report on the motion and the case.
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Gibson’s Bakery v. Oberlin College – News Tribune Motion to Quash Subpoena by Legal Insurrection on Scribd
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Comments
In a recent radio program on “fake news” this last weekend, the definition of a fake news source was any outlet that was not legacy and did not employ “journalists”. It is good to see the LI is shielded and that the progressive definition of what passes for “journalism” as in the MSM comes up short. The Ministry of Truth (MSM) still isn’t all powerful.
I can’t imagine why so many college graduates and undergraduates are such fascists. Maybe it is something in the water…..
If your client is stupid, has lots of money, and you have no ethics.
This is taxpayer money, yes?
Can’t say I blame the the lawyers I guess. Everyone is cheating, might as well steal too.
My wife and I have fantasies about what we would do if we decided to hell with all of society’s rules.
Kidnapping and bank robbery made the bucket list.
Most professional attorney’s have the good sense to represent their clients without letting themselves get caught up in a bad clients extreme positions. However, once in a while an otherwise reputable firm will get themselves so caught up in a client’s mistaken position (and/or beliefs) that they will let the the entire firm’s reputation go down with the bad client’s ship. It’s rare, but I’ve seen it happen a couple of times.
Nationally, I’d say the most well known instance of this was when Patton Boggs destroyed itself by getting caught up in the Chevron-Donziger case.
It could be a simple matter of Oberlin’s lawyers telling them that their case is garbage but that if they want to pay them to pursue it anyways then they’ll take the money.
No, it is not taxpayer money.
That follows. We’ve seen the same thing here from an alleged attorney who is so invested in the anti-Trump narrative that he’s abandoned judgement and reason. Ahab frothing.
Same thing with Penn State’s Pedo scandal. They spent so much time effort and energy on the football program that ignored the warning signs and shut down whistle blowers.
I don’t know about the Ohio constitution, but the first amendment to the US constitution does not afford him any such privilege. Reporters have no more privileges and no more constitutional role than plumbers or garbage collectors.
Their arrogant pretense they the first amendment’s reference to “the freedom of speech and of the press” is actually two separate freedoms, the second of which is peculiar to their trade, needs to be stomped on whenever it is raised. “Speech and the press” is one freedom, nowadays known better as “expression”, and it makes no difference whether what is expressed is news, opinion, advertising, art, poetry, or anything else. News is not special; publishing it is covered by the general freedom of expression, and there is no explicit freedom for gathering it.
And they are certainly a “fourth estate”; not one in twenty of those who use that term can name the first three. We have no estates in this country, and if we had we’d certainly not choose their trade to be one of them.
Oops, they are certainly not a “fourth estate”.
Whatever their theory is, they are entitled to discovery of the evidence that would support it. Contrary to the good Professor, the Ohio court effectively invited them to take this course when it ruled that while Gibson’s lawyers needn’t disclose their communications with reporters, they did have to give up a list of reporters with whom they had communicated. What would be the purpose of that list, except for Oberlin’s lawyers to do their best to get the communications from the recipients, who have no privilege (unless their home states have foolishly decided to give them one)?
As an alumnus, my guess is that the Oberlin mindset is still “we have done nothing wrong” and thus any viewpoint different than their perspective must be a part of a conspiracy to make them look bad. LI and the Tribune clearly said “mean things” or used “trigger words” and thus they must be part of a conspiracy.
From my perspective, Gibsons sat patiently for an entire year waiting for the college to get a clue and apologize for their actions. I threw a few hints their way during this time frame as a courtesy. In the interim we had the criminal trial which refuted all claims made against the bakery. But Oberlin persisted in sticking to their narrative on the matter.
So after a year, Gibsons took action. And I can easily imagine the powers to be at the college not seeing it as a grace period to apologize, but rather as a cleverly crafted delay tactic so the opposition could collude and mount an attack.
I think an appropriate analogy here is that the College is pretty much every person who shows up at AA, convinced that they are right and everyone else is wrong. What I have seen resembles fully rationalized, delusional thinking. I haven’t run it past Dan Jenkin’s “Ten Stages of Drunk” yet, but we are probably half-way though based on the number of double-downs. When I first read of the protests outside of Gibsons, I thought, someone needs to do some 10th step work here. But to the non-recovering “olic” mindset, everything has to be perfectly maintained in rigid order, regardless of the amount of rationalization and denial, in order to keep it intact. The tiniest little appearance of a differing reality can cause it all to shatter. Our buddy the sign stealer is another example. As one who has talked many people back to the light, the parallels here are strong. And while the actions of the College towards Gibsons may appear malicious to casual observers, I also see it as part of a huge construct necessary to maintain their somewhat fragile reality. I was recently watching an episode of “Community” where the financial advisor was trying to confront the Dean about his behavior, and she couldn’t come up with any statements that didn’t end with “you’re an idiot.” I sort of feel the same way about Oberlin at the moment. When I had to deal with them in person, I did my best to just “let it go.” But their actions towards Gibsons just crossed the line, IMHO, where what previously could be dismissed as a protest by idealists became a mob action not dissimilar to a RICO event. And until someone at the College gets just a trickle of humility here, it is going to continue in a downward spiral, which to an alcoholic, is frequently the shortest distance between two points.
In contrast, we have the Liberty High School case, which was solved because someone in power said “this needs to end NOW!”
I just don’t see anyone in power at Oberlin who can make what I see, and have seen for about 20 months, is the right decision. My guess is that the Board of Trustees are all 3 or 4 StdDev to left as well. Which makes me then ask, “exactly what is so important here?” And the only answer I can come up with is that admission of being wrong will ultimately crumble the unicorn-based social utopia they have built. Accusations of racism, homophobia, and/or misogyny can no longer be used willy nilly to attack anything one disagrees with. FWIW, 95% of all sobriety dates are on tombstones, which is why I am becoming more openly pessimistic about this ending as painlessly as it could have around 11/12/2016 had any adults been present.
BTW, I agree with Milhouse here about protections. To me, this is a civil matter between two private parties, not a case of a government demanding the identities and communications of individuals opposed to it, for which I imagine the Shield laws were designed. If the College’s lawyers obtain that info, and then use it to intimidate people, it will then be a separate matter for the courts to decide.
The thought of Oberlin possibly thinking that it will make them look like a victim makes me giggle, and then sigh.
Checking now to see if Gibson’s ships to California. Doing my small part to help.
Lena Dunham U. is a creepy place for traditional values. Families with college bound students beware.
A good college should allow values to be challenged so that one can arrive at the values which they are comfortable with. Oberlin somehow lost that as part of their mission statement, and crossed over totally into the “you must adopt our values” mindset. I am not sure if the majority of students think this way or not, or whether they have been intimidated into keeping all thoughts that differ from the “loud students” to themselves. More than likely this is also being tolerated and perhaps even promoted by a faculty who mostly anti-war activists constantly in a battle with “the man.” Ironically, they haven’t sorted out that they are now the man and their students are the children who wish to devour them. Oberlin seems to have young kids and old kids, but very few adults.
Speaking as an Oberlin alum from the Viet Nam/Women’s Lib/Civil Rights era, and knowing a bit about their 19th century activism, it seems to me that the college has always been firmly convinced of the righteousness of their stands, whatever the issues may be. That’s another way of saying “closed-minded”. When the issue was abolitionism vs. slavery, such an attitude served them well. But on many issues that I’ve seen them address in the past several decades, including feminist inspired misandry, hatred of Israel, their self-righteous, closed-minded attitude takes ordinary kids and after 4 years graduates them as bigots. And now, their certainty of their own righteousness is blinding them to the reality of law in the real world. If they don’t open their eyes, and soon, in a decade or two Oberlin College may be nothing more than a footnote to history.
But but but but, they are close-minded in the “right” way. 😉 Where is Bob Neil to point out that they are acting just like a bunch of Munich brown-shirts? Part of me highly suspects that Krislov saw the writing on the wall and bailed when he could. I was curious how the Alumni Mag was handling the story, which it appears to be by omission, though I admit it is an ongoing legal matter, yet there was no mention of the events around Gibsons in the 4 issues which preceded the filing of the suit. There was an article about journalist alumni who failed to see the Trump win and how they failed in their predictions, which now appears to be their job, not reporting facts, but trying to steer the future. Perhaps a few people realized that they had stepped in it and the best course was to stay mum. So ironic that a place which prides itself on openness is actually keeping the alumni in the dark.
Tell me again why I should hire someone who graduated from “Trouble Waiting To Happen U?”
Yeah, sign me up for mattress girl. There’s no future liability there.
“…Oberlin College’s theory behind the demand for journalist communications with Gibson’s counsel was that Gibson’s counsel somehow created the damages to Gibson’s reputation…”
Somehow I figure that Oberlin’s high-handed approach to their entitled students shoplifting off-campus, i.e. everybody needs to shut-up about it, is what’s damaging their reputation.
Well that and Lena Dunham’s fetish for eating cake naked on the toilet and producing TV shows that feature analingus and about a zillion other things that I either can or can’t mention in mixed company.
https://www.popehat.com/2015/04/27/tumult-at-oberlin-in-wake-of-emotional-support-animal-companion-initiative/
“… In March, the campus roiled when a computer error resulted in several issues of GQ being stocked at the student convenience store, and the administration failed timely to respond to a Campus Justice Petition demanding changes to certain culturally normative elements of the engineering curriculum.
…Freshperson Darlene Oswalt filed a federal civil rights complaint when a professor asked her to take her raptor outside, saying that the college had attempted to “silence [the eagle’s] own story.” Moreover, students with sensory differences have reported hygiene anxieties. ‘The residence halls reek from feces and urine,’ said one student who asked to remain anonymous. ‘And this time not just that one graduate dorm’…”
Popehat wrote this over three years ago. Oberlin has rendered satire impossible. And NOW their lawyers have developed a theory about how the the college’s reputation got ruined?
https://reason.com/blog/2014/12/16/oberlin-prof-refuses-exam-delay
When this is the end point of “reality,” satire may truly be impossible.