All has been quiet lately on the Gibson’s Bakery v. Oberlin College front. The case is on appeal, with a short remand to the trial court to memorialize certain oral trial rulings so that the record is complete for appeal.

As we documented previously, there is ancillary litigation in the trial court by certain Cleveland media interests seeking to unseal confidential Facebook records of Allyn D. Gibson, the bakery clerk who stopped the Oberlin College student from shoplifting. That turned into a scuffle, arrests of three students, and the protests, boycotts, lawsuit, and jury trial.

https://www.youtube.com/watch?v=4Jm5V1KzbN8&t=6s

[Allyn D. Gibson, Oberlin Town Police Body Cam ]

.

https://www.youtube.com/watch?v=4Jm5V1KzbN8

[Jonathan Aladin after arrest, Oberlin Town Police Body Cam]

Allyn D. was not a party to the case and did not testify. Yet Oberlin College was able to obtain during discovery Allyn D.’s Facebook records under a confidentiality agreement.

Those records were not offered as trial exhibits, but a portion was attached under seal to Oberlin College’s Reply brief on summary judgment prior to trial. Oberlin College contends that the Facebook records will portray Allyn D. badly, maybe even as racist, so Oberlin College wants them to be public for use in its post-trial public relations campaign to portray the Gibsons as racist notwithstanding the verdict. Oberlin College made a motion to unseal the records, which was denied by the court.

Several weeks after Oberlin College’s motion to unseal was denied, several Cleveland media outlets — none of which did significant original reporting on the case — filed their own motion to unseal the Facebook records, in a pleading that mimicked Oberlin College’s motion.

Upon reviewing that media motion, I pointed out the obvious, that the motion appeared to be a backdoor attempt by Oberlin College to have media outlets obtain under the guise of protecting the public’s interest that which Oberlin College could not itself obtain. It all smelled.

I wrote at the time:

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?

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.

That smell grew when Gibson’s Bakery, in objecting to the media motion to unseal, pointed out that Oberlin College’s lead trial lawyer used to be an analyst for one of the media entities seeking to unseal the records. Gibson’s Bakery straight out alleged collusion between Oberlin College and the media movants:

… 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.

Gibson’s bakery compared the motion to unseal to an attempt at doxing:

… 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.

[fn. 7] “Doxing” is a slang term meaning “to publicly identify or publish private information about (someone) especially as a formof punishment or revenge” as defined by Merriam-Webster. https://www.merriam-webster.com/dictionary/dox

One would have thought that, if there were no collusion, there would be a firm denial by Oberlin College and the media movants, but that did not happen. The media movants ignored the collusion accusation in their Reply memorandum.

Yet as I wrote, motivation is fundamental to determining the motion:

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.

Here are our posts on the motion to unseal, with further details and copies of the motion papers and responses:

This all was submitted to the trial court Judge John Miraldi for decision on December 9, 2019. Since then, the electronic court docket does not reflect any further action on the motion. I had thought, given the collusion allegations and the centrality of the media movants’ motives to the issue, there might be a hearing at which the collusion could be explored. But nothing happened for two months until a few days ago.

The court electronic docket reflects that the judge has requested additional briefing on the issue of whether the trial court even has jurisdiction to decide the motion to unseal while the case is on appeal.

(added 2-18-2020) The Judge’s Order explains the legal issue:

This matter comes before the Court upon the filing of non-parties, WEWS-TV,  Advance Ohio, and the Ohio Coalition for Open Government’s (“Movants”) Motion for Access to Sealed Case Document – specifically, Exhibit G of the Defendants, Oberlin College and Meredith Raimondo’s combined reply brief in support of their motions for summary judgment.

The Plaintiffs, Gibson Bros., Inc., Allyn W. Gibson, and David R. Gibson1, and non-party Allyn D. Gibson filed a brief in opposition and the Movants submitted a reply brief in support of their motion. When a case is appealed, the trial court generally loses jurisdiction except to take action in aid of the appeal. See Pietrangelo v. Avon Lake, 2016-0hio-8201, ,r 17 (Ohio Ct. App. 9th Dist.). A trial court may retain jurisdiction over collateral matters that are not inconsistent with the appellate court’s ability to review, affirm, modify, or reverse the appealed judgment. Id. The parties and non-parties shall have thirty (30} days to submit a limited brief on the issue of whether the Court has jurisdiction to rule on the Movants’ request while the appeal is pending.

1 Since the briefing was completed, the Court is aware that a motion is pending with the Court of Appeals to substitute Lorna J. Gibson as the estate representative for the Estate of David R. Gibson in place of David R Gibson.

This shows how careful Judge Miraldi is (and has been throughout the case). As a general matter, when a notice of appeal is filed a trial court no longer has the case, it’s on appeal. So there is an issue as to what matters a trial court can continue to decide until the case returns to the trial court after appeal. None of the parties or media movants raised the issue, but the Judge spotted it and raised it on his own.

Gibson’s Bakery had requested that the trial court hold off on any ruling until after the appeal, but not on the jurisdictional ground the Court has raised:

At a minimum, should the Court decide not to deny Movants’ Motion outright, it should hold its decision in abeyance until the conclusion of the appellate process. Clearly, Movants’ request for the release of Exhibit G is not time sensitive because if it was, they would not have waited nearly seven (7) months after Exhibit G was presented to the Court to file their Motion. The appellate process in this case is well under way. The Lorain County Clerk of Courts recently submitted the record to the Ninth District Court of Appeals and briefing will begin in the very near future. To avoid any potential prejudice and continued defamation of the Plaintiffs, it makes sense to withhold ruling on this issue until after the completion of the appeal.

Many people ask me if the Gibsons have been paid yet. No they have not. Oberlin College gives all appearances of being prepared to fight this to the bitter end. That may surprise you, but it doesn’t surprise me. Colleges and universities are among the most ferocious litigants, as evidenced by the lengths to which they fight court cases involving mostly college males abused by campus kangaroo courts.

When and whether they get paid is to be determined. David Gibson, Allyn D.’s father, did not live to see it, as he died of pancreatic cancer on November 26, 2019.

[David Gibson hugs grandson after punitive damages verdict][Photo credit Bob Perkoski for Legal Insurrection Foundation]

[Featured Image: Gibson Family and legal team after punitive damages verdict][Photo credit Bob Perkoski for Legal Insurrection Foundation]

 

 
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