Do you believe in coincidences? This may just be a huge coincidence, but it certainly is another very curious twist in the Gibson’s Bakery v. Oberlin College case.
You may recall that in late August 2019, two months after the trial which ended disastrously for Oberlin College, the college unsuccessfully sought to unseal the confidential Facebook records of Allyn D. Gibson. The issue is back again before the trial court with Cleveland media groups seeking a redo of Oberlin College’s failed motion, under the guise of freedom of the press. But why?
Allyn D., not to be confused with his grandfather, 90-year old Allyn W. Gibson, was not a party in the case and did not testify even though he was the store clerk who stopped an Oberlin College student from shoplifting.
That shoplifting stop resulting in a scuffle with the shoplifter and two other Oberlin College students. The three students were arrested, and eventually pleaded guilty, and the rest is, well, history.
In the course of the case, Oberlin College obtained through the discovery process a forensic image of Allyn D.’s private Facebook account, under an agreement that such documents would be kept confidential if so designated by the Gibsons, unless the court ruled otherwise. Some small portion of the Facebook entries was filed under seal by the college as Exhibit G to its Reply Brief on summary judgment.
In a pre-trial ruling, the court held the Facebook records could not be used as character evidence, but the court left open that if trial testimony made the records relevant, defendants could attempt to introduce them at trial. Allyn D. never testified at the trial, and the college never offered the Facebook records as exhibits during the trial.
We covered Oberlin College’s Motion to Unseal the Facebook records, the Gibsons’ response, and the court ruling, in Judge denies Oberlin College’s request to unseal Gibson Bakery store clerk’s Facebook records:
There have been many strange motions and actions in the Gibson’s Bakery v. Oberlin College case. A post-trial motion by Oberlin College to unseal Facebook records may be one of the more strange developments, and offers a window into the bitter feelings of college officials….
Oberlin College suggested in court filings that the records should be unsealed because some internal emails and texts of college officials were released (having been used at trial) to the college’s embarrassment. As a matter of fairness, the college wanted to embarrass the Gibsons too (that’s not how the college framed it, but that was the gist of the argument).
It was an attempt to level the public relations playing field, as the college wrote in its motion to unseal (emphasis added):
Defendants ask the Court to fix the double standard that currently exists in the public’s access to the summary judgment record. The Court previously ordered that internal Oberlin College emails, private text messages sent and received on the personal cell phones of administrators and faculty, and content from the personal Facebook accounts of Oberlin professors should be unsealed.2 In contrast, portions of Defendants’ Combined Reply Brief in Support of Their Motions for Summary Judgment (“Defendants’ Combined Reply”) remain under seal, including the entirety of EXHIBIT G to the affidavit of Cary M. Snyder (“EXHIBIT G”), which consists of materials from the Facebook account of Allyn D. Gibson (“Allyn Jr.”).3* * *In response to Defendants’ motion to compel-and following Plaintiffs’ muddled and incomplete production of documents in November 2018 on behalf of Allyn Jr.-the Court on February 21, 2019, ordered Plaintiffs to produce a forensic image of Allyn Jr.’s Facebook account (the “Forensic Image”). 5 The Forensic Image contains more than 300,000 files and, upon production, Plaintiffs designated the entire Forensic Image as “confidential” under the SPO because they did not have time to review its contents prior to production and they were concerned about the inclusion of material of a romantic nature.6Defendants narrowed the content of the Forensic Image to just 35 pages that they planned to use as EXHIBIT Gin support of their Combined Reply. The documents in EXHIBIT G consist almost entirely of Allyn Jr. ‘s views-in his own words-concerning minorities, how Gibson’s Bakery treats its customers, and his awareness that the Bakery has a history—dating to at least 2012-ofbeing accused of racial profiling and discrimination. Of the 35 pages in EXHIBIT G, 34 pages consist of Facebook messages, the functional equivalent of text messages or emails that the Court already ordered must be unsealed. The remaining page is a post from Allyn Jr. to his Facebook friends….
The lawyers for the Gibsons argued that the college’s motion to unseal was part of an ongoing effort by the college to smear the Gibson family reputation:
It appears that Defendants are using their Motion as an improper collateral attack on the jury’s verdict. In essence, because Defendants are unhappy with the jury’s decision, they are seeking to unseal ADG’s private social media account, so they are able to publish these documents to the media without threat of the Court’s contempt power in an effort to continue the smear and defamation of Plaintiffs’ name and brand. Defendants’ attempted abuse of process should not be permitted.* * *Defendants’ sole motive in seeking to unseal the Confidential Materials is to continue the smear on Plaintiffs’ name and brand. They should not be permitted to do so.
The court did not reach the motivations of Oberlin College, instead rejecting the motion to unseal because, the Facebook records never were offered as trial exhibits (emphasis added):
Here, the Defendants are asking the Court, post-judgment, to unseal Exhibit G lo their March 22, 2019 Combined Reply Brief in Support of Summary Judgment. The exhibit is comprised entirely of material from non-party Allyn D. Gibson’s Facebook account that largely pre-dates the events giving rise to the above-captioned matter. As noted by the Plaintiffs, this material was the subject of one of Plaintiffs’ pre-trial motions in limine. Specifically, on May 8, 2019, the Court issued a preliminary ruling excluding the presentation of Allyn D. Gibson’s Facebook content as character evidence, but withheld ruling on the question of whether it could be introduced to reflect the reputation of Gibson’s Bakery in the community. At trial, the Defendants made no attempt to introduce these materials as evidence of the Bakery’s reputation in the community. With this procedural context and at this juncture, the Court is not persuaded by the Defendants’ arguments that it should make a post-trial order regarding materials that the Defendants opted to file under seal nearly six months ago in accordance with an agreed protective order that they drafted and stipulated to.For the foregoing reasons, the Defendants’ Motion to Unseal Exhibit G of · Defendants’ Combined Summary Judgment Reply Brief is hereby denied.
The judge rejected the motion to unseal, so it was over, right? Right?
No, in this case, in which Oberlin College (or its insurers) spent over $5 million (as of last June) on legal fees, nothing is ever over.
Here, the attempt to unseal Allyn D’s Facebook records fits in with Oberlin College’s post-trial public relations campaign suggesting, among other things, that the Gibsons really are racist and that the college was deprived of a fair trial.
I addressed this post-trial smear campaign, and the college’s obsession with attacking the Gibsons, during my October 31, 2019, appearance on Tucker Carlson Tonight, Oberlin College’s “almost sociopathic malevolence” towards Gibson’s Bakery:
The Oberlin College strategy of portraying the Gibsons as secret racists was continued during a Ted Koppel segment for CBS Sunday Morning, Ted Koppel: Despite verdict, Oberlin College President still “makes allusions to a pattern of racist behavior” by Gibson’s Bakery: (emphasis added):
KOPPEL: …. But to this day, the president of Oberlin makes allusions to a pattern of racist behavior, if not the specific incident that set things off three years ago.AMBAR: Well, the students pled guilty to the shoplifting. Um, there has been some debate about whether it was shoplifting or false ID.KOPPEL: It was both.AMBAR: Right. Well, I think that, that one of the things that the college has always said is that the college has not, doesn’t condone shoplifting, doesn’t condone bad behavior by its students in any way, shape or form. But what led up to the protest, and I think that’s sort of kind of the core issue here, was some series of things that happened before. Some perspectives about people’s experiences in the store.KOPPEL: Tell me about, tell me about those then. And be specific. What specific incidents are you referring to that happened before?AMBAR: Right, well, I think that the specific incidents would be, the perception by faculty and students and staff and other people in the town that there had been disparate treatment with respect to people of color in the store. The way I would phrase it, kind of different lived experiences.DAVE O’BRIEN: This is all basically anecdotal evidence that people …KOPPEL: Dave O’Brien covered the trials for the local paper, the Chronicle-TelegramO’BRIEN: People commenting on a, on social media saying I had a, um, I, I felt, I felt uncomfortable in there. I felt like I was targeted because of the color of my skin.
The legal army arrayed against the Gibsons is truly staggering. The appeal docket lists 13 attorneys for the defendants/appellants, and that does not currently include the additional attorneys hired specifically for the appeal (including lawyers from a national law firm’s D.C. office to address First Amendment issues).
How many lawyers does it take to crush a little mom-and-pop bakery? A lot, apparently.
Add to this anti-Gibson legal army new entrants representing media interests who want Allyn D’s Facebook records unsealed. They are represented by the national law firm Baker & Hostetler and The Reporters Committee for Freedom of the Press.
These media interests want a do-over on the Facebook records already decided by the court. But why?
On November 1, 2019, WEWS-TV (News 5 Cleveland), Advance Ohio (Cleveland.com), and the Ohio Coalition for Open Government Access (created by the Ohio News Media Foundation), filed a Motion to Unseal Allyn D. Gibson’s Facebook records. A full copy of the Motion (pdf.) is embedded at the bottom of this post.
Here is the opening:
WEWS-TV, Advance Ohio, and the Ohio Coalition for Open Government (collectively, the Media Movants ) hereby move this Court, pursuant to Ohio Superintendence Rule 45(F), for access to certain sealed materials in the above-captioned matter (the “Lawsuit” ). Specifically, Media Movants seek an order unsealing Exhibit G to the affidavit of CaryM. Snyder, which was filed with defendants combined reply brief in support of their motions for summary judgment ( Exhibit G” ). Court records in Ohio are presumptively open and may be sealed, or remain under seal, only if a court, via specific, on-the-record factual findings concludes that, by a showing of clear and convincing evidence, a higher interest outweighs the right of the press and the public to access the records. Sup. R. 45; Vindicator Printing Co. v. Wolf,132 Ohio St. 3d 481, 2012-Ohio-3328, 974 N.E.2d 89,124. Such findings were never made with respect to Exhibit G, and no higher interest outweighs the news media’s and the public s constitutional right of access.
Why do the “Media Movants” care so much about the private Facebook records of someone who was not a party to the lawsuit, never testified at the trial, and whose Facebook entries never even were offered as trial exhibits? What public interest is there in embarrassing a non-party, non-witness over things never brought up at the trial?
What Oberlin College and the Media Movants seek in this context is judicially-sanctioned doxxing, and it’s potentially dangerous. We’ve seen countless examples of what happens when someone is made the internet’s object of hate.
It’s also complete bootstrapping to argue that the filing under seal is justification to unseal the records, particularly when the sealed records were never seen by or even discussed in front of the jury. This would set a horrible precedent if private social media or other sensitive records could be obtained during litigation under a confidentiality agreement then released just because they were filed under seal.
So what is the justification the Media Movants use? It sounds a lot like the argument raised in court filings and on camera by Oberlin College: The Gibsons might really be racist and we need to get that information out.
Here’s a portion of the Media Movant’s argument (emphasis added):
Based on documents filed with the Court, Exhibit G is believed to contain information directly related to the allegations of racial profiling that spurred the student protest that is at the heart of this Lawsuit and, about which, the public has a right to know. Defendants Motion, at 4. Indeed, “[t]he remedies or penalties imposed by the court will be more readily accepted, or corrected if erroneous, if the public has an opportunity to review the facts presented to the court.” Brown & Williamson,710 F.2d at 1178.
That highlighted language from a case cited by the Media Movants destroys their own argument: Non-party, non-witness Allyn D’s Facebook records were not presented to the jury and played no part in any of the “remedies or penalties” imposed by the court.
So what’s really going on here?
When I first saw the docket entry in the case, my immediate reaction was that this is not what it appears to be. Neither News 5 Cleveland nor Cleveland.com played a major role in media coverage; searches of their websites reveal little original reporting, and heavy regurgitation of AP and Chronicle-Telegram reporting. Why do THEY care?
Moreover, there are many other documents, some potentially embarrassing to Oberlin College, that were filed under seal and the unsealing of which is not sought by the Media Movants. You can read a compilation I put together of docket entries regarding sealed documents.
Why, of all the media outlets out there, do two small media players in the Gibson’s case care so much? And why, of all the sealed documents, do the Media Movants care so much about about an Exhibit to a Reply Brief that played no role in the jury verdict?
And why did they wait until 4 months after the verdict, and over a month after the prior court ruling, to jump into the case? If Exhibit G is so important to the public interest, you’d think the Media Movants would have, at minimum, filed their motion when Oberlin College did so the court could consider the issue once, instead of seeking what amounts to a motion for reconsideration by other means.
Why is it that these Cleveland media outlets appear to be trying to rescue Oberlin College’s post-trial media strategy?
Maybe it’s just coincidence.
But as the saying goes, I was born at night, but I wasn’t born last night. Let’s see how this plays out.
[Featured Image: Allyn D. Gibson interviewed by Oberlin town police on police body cam after shoplifting incident and arrest of three Oberlin College students.]
————–
Gibson’s Bakery v. Oberlin College – WEWS-TV Et Al Motion to Unseal Facebook Records by Anonymous jDcsAZN on Scribd
CLICK HERE FOR FULL VERSION OF THIS STORY