On November 8, 2019, I reported that  WEWS-TV (News 5 Cleveland), Advance Ohio (Cleveland.com), and the Ohio Coalition for Open Government Access (created by the Ohio News Media Foundation)(collectively, the “Media Movants”) filed a motion to unseal the Facebook records of Allyn D. Gibson.

Allyn D. was the store clerk whose stop of a black Oberlin College student for shoplifting led to protests, defamation, the lawsuit, and the stunning verdict. Allyn D. was not a party or a trial witness. The Facebook records never were offered as evidence at trial, but had been attached as a sealed exhibit (“Exhibit G”) to Oberlin College’s Reply on its summary judgment motion.

Motion to Unseal

Oberlin College asked the court to unseal the Facebook records, which the college asserted would help level the public relations playing field by revealing alleged racism and/or racial profiling. Portraying the Gibsons as actually racist, despite the jury verdict, is part of Oberlin College’s post-trial public relations push. The Court denied Oberlin College’s motion to unseal.

In my post, I expressed my skepticism about the Media Movants’ motion, which seemed too convenient coming almost a month after Oberlin College was denied identical relief,  Cleveland Media Seek Access To Gibson’s Bakery Store Clerk’s Sealed Facebook Records in Oberlin College Case, But Why?

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.

Gibson’s Opposition Alleges Collusion Between the Media Movants and Oberlin College

On December 2, 2019, I reported on Gibson’s Bakery’s opposition to the motion, Gibson’s Bakery alleges Cleveland media collaborating with Oberlin College to unseal store clerk’s Facebook records. Gibson’s asserted collusion between Oberlin College and the Media Movants to subvert the court’s prior ruling, based in part on the fact that for over a decade Oberlin College’s lead trial lawyer, Ronald Holman, was a legal analyst for WEWS-TV, one of the Media Movants. Gibson’s wrote in its opposition (emphasis in original).

C. The Circumstances Suggest that Movants’ Intent in Seeking Exhibit G is Part of a Collaborative Public Relations and Business Crisis Management Campaign by the Defendants to Continue the Defamation of Plaintiffs.

Movants appear to be acting under the guise of independent media outlets. But the true motivation behind their Motion is not so clear….

…. compared to the daily media attention from other outlets, Advance Ohio, through cleveland.com, and WEWS-TV paid very little attention to this case until after the jury issued its verdicts in June of 2019. By Plaintiffs’ count, both outlets have published approximately ten (10) stories on this case, combined. And of those, several were only picked up by Movants from the Associated Press. 5 With Movants having such little interest in this case while the trial was ongoing, there is significant reason to suspect the true collaborative purpose and source of efforts to expend resources months later to gain access to documents that were irrelevant and not admitted as evidence at trial. Perhaps more troubling, Movants have only requested access to documents marked confidential by Plaintiffs….

Is there reason to suspect the motivation and timing of the instant motion by Movants, who had little interest in this case while it was ongoing, seeking access to documents marked confidential by Plaintiffs while ignoring the vast trove of Defendants’ documents that remain under seal? Could the answer to that question be that there are substantial connections between Defendants and Movants? Indeed, Defendants’ lead attorney, Ron Holman, II, was a television legal analyst for Movant WEWS-TV for more than ten (10) years….

(Ex. 1, p. 1).6 With this convenient connection, and with the Movants seeking only Exhibit G out of all the sealed filings, it appears that Defendants are attempting to leverage nonparty media contacts to circumvent the Court’s previous orders for the purpose of doxing 7 ADG and further smearing Plaintiffs’ reputation and brand.

Later in the Opposition, Gibson’s Bakery further argues (emphasis in original):

… there are strong implications that Movants’ Motion is nothing more that a backdoor attempt by Defendants to continue the smear campaign against Plaintiffs and dox ADG. On September 16, 2019, this Court denied Defendants’ Motion to Unseal the same exact materials

(Sep. 16, 2019 Order, p. 2). While the current motion was not filed by Defendants, there are substantial connections between Movants and Defendants’ counsel, including the fact that Defendants’ lead counsel, Ron Holman, II, was a television legal analyst for Movant WEWS-TV for more than ten (10) years. … (See, Ex. 1, p. 1). Thus, it appears that Defendants are attempting to use nonparties to this litigation to circumvent the Court’s orders. They should not be permitted to do so.

While Gibson’s had other legal arguments unrelated to motive to deny the motion, the motive raised an essential legal issue that I don’t think the court can ignore if it is considering releasing the records:

The Court doesn’t need to resolve the motives and connections of the Media Movants to deny the motion to unseal.

But if the Court is seriously considering granting the motion, it’s hard to see how the Court can avoid the issue of collaboration, perhaps even having a hearing on the issue. It goes to whether the Media Movants are seeking to vindicate some legitimate legally-protected public interest in the personal records of a non-party non-witness, which were not even offered at trial, or is seeking to further the private public relations interest of Oberlin College, which already has been denied identical relief.

I thought for sure the Media Movants would issue strong denials:

I assume there will be a complete denial by Holman and the Media Movants of any cooperation or communications between the Media Movants or their attorneys, on the one hand, and Oberlin College and its attorneys, on the other hand. We will print these denials if and when they are filed and available.

The wording of the denials will be critical. For example, it’s hard to imagine that Holman himself would secretly work with a non-party to make a motion for relief already denied to Holman’s client. But what about Oberlin College’s media and crisis management people, various Oberlin College trustees, or others connected to Oberlin College, including alumni and donors? Who is paying the legal fees for the Media Movants to hire a big national law firm, and if the payor is movant Ohio Coalition for Open Government Access, a tax-exempt entity, did someone make a donation to fund the litigation? Follow the money, see where it leads.

In Their Reply, The Media Movants Ignore The Collusion Allegations

The Media Movants just filed a Reply in support of the motion (pdf.)(full embed at bottom of post).

The main argument of the Reply is that the records, having been filed in court as an exhibit to a motion, are presumptively available to the public and media, unless the court makes a determination that the interest of confidentiality outweighs the public interest in the document. Such a finding has not been made yet, according to the Media Movants, because the issue of public or media interest in Exhibit G was not previously raised in motion practice and the issue was raised in the public only recently (by Legal Insurrection):

https://legalinsurrection.com/wp-content/uploads/2019/12/Gibsons-Bakery-v.-Oberlin-College-Media-Reply-in-Support-of-Motion-to-Unseal-Facebook-Records.pdf

Here’s how the Media Movants frame the legal issue:

The continued sealing of Exhibit G-absent any specific on the record findings that a compelling or higher interest outweighs the public’s presumptive right of access-cannot be justified.

That doesn’t seem like an ultimately winning argument, because the Court could make such a finding now that the confidentiality of personal Facebook records of a non-party, non-witness, which were not even offered at trial, outweighs the public interest in the records. In its opposition, Gibson’s laid out the history of threats and vandalism after the incident.

What possibly public interest is there in a judicially-sanctioned doxxing of Allyn D. Gibson? That is particularly true where the records are not sought, allegedly, to satisfy a public interest, but to further Oberlin College’s post-trial public relations agenda.

So surely the alleged bad motive was addressed by the Media Movants, right? Wrong.

In the Reply, the Media Movants do not address the allegations of collusion with Oberlin College. That’s a quite stunning silence, since the issue of collusion goes to the heart of whether the Media Movants are seeking to uphold a legitimate public interest in the documents, or are serving the strategic public relations agenda of a private litigant (Oberlin College) which previously tried and failed to obtain identical relief.

It will be interesting how the Court deals with failure of the Media Movants to deny the allegations of collusion.

I emailed counsel for the Media Movants seeking an explanation for this failure to address the allegations of cooperation with Oberlin College. I also asked if the Media Movants denied the allegations of cooperation. As of this writing, I have not received a response.

We will report when the court determines the motion.

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Gibson’s Bakery v. Oberlin College – Media Reply in Support of Motion to Unseal Facebook Records by Anonymous jDcsAZN on Scribd

 

 
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