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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