On November 8, 2019, I noted a strange twist in the Gibson’s Bakery v. Oberlin College case. Several months after the verdicts, and a month after the court denied a nearly identical motion by Oberlin College, two Cleveland media outlets plus an Ohio media non-profit group sought to unseal the Facebook records of Allyn D. Gibson.

Allyn D. Gibson was the store clerk whose stop of a black Oberlin College student for shoplifting led to protests, defamation, and eventually, this case. Allyn D. is the grandson of plaintiff Allyn W. Gibson and the son of the late David Gibson. Allyn D. was not a party in the case and did not testify at the trial.

The whole thing didn’t smell right to me, as I detailed in Cleveland Media Seek Access To Gibson’s Bakery Store Clerk’s Sealed Facebook Records in Oberlin College Case, But Why? Please see that post for background, including on the prior motion by Oberlin College, the court ruling, and the current motion by non-parties WEWS-TV (News 5 Cleveland), Advance Ohio (Cleveland.com), and the Ohio Coalition for Open Government Access (created by the Ohio News Media Foundation).

My suspicions were raised that something else was going on here:

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.

Several readers made points similar to this comment:

Well, it’s fairly obvious what’s going on here. Oberlin has friends in certain media outlets that are willing to allow their organizations to be dragged through the dirt in a back handed attempt to get “Exhibit G” released so that Oberlin can use it in their persecution of the Gibson family.

Hopefully the judge will see the motion for what it is and categorically deny the release of Exhibit G.

P.S. I don’t believe in coincidence. This is a set-up by Oberlin to gain access to what has previously been denied them by the Judge. Nothing more, nothing less.

With this historical analogy pointed out by a commenter:

This is an obamaesque tactic. Obama twice defeated opponents by having newspaper surrogates (David Axelrod) assert there was some sort of public interest involved in unsealing sealed divorce records.

With suggestions similar to this comment about what to do:

Some discovery of communications between Oberlin and these medial outlets would be helpful here. Let’s see if they are acting as media outlets or agents of Oberlin.

Gibson’s Bakery has filed its Opposition to the motion (pdf.)(full copy embedded at bottom of post).

The Opposition lists many legal arguments why the confidential records of a non-party non-witness, which never even were offered at trial, should not be revealed merely because one party filed them under seal on a motion. It would undermine the pre-trial discovery process, where parties regularly produce documents under a confidentiality agreement to avoid burdening the court with motion practice, if mere filing under seal were enough to have the records released to the public.

The readers may have been onto something. Time will tell.

In its Opposition, Gibson’s Bakery suggests some form of collusion between Oberlin College and the Media Movants based 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 (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.

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.

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.

[Featured Image: Allyn D. Gibson, Police Body Cam]

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Gibson’s Bakery v. Oberlin College – Plaintiffs’ Opposition to Media Motion to Unseal by Anonymous jDcsAZN on Scribd

 
 
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