Gibson’s Bakery v. Oberlin College – Court rejects attempt to unseal store clerk’s private Facebook records

Gibson’s Bakery v. Oberlin College – Court rejects attempt to unseal store clerk’s private Facebook records

Judge ruled that “risk of injury to persons” and “individual privacy rights and interests” prevailed over what the Gibsons alleged was collusion between the college and Cleveland media to “dox” Allyn D. Gibson.

After a monumental compensatory and punitive damages jury verdict in favor of Gibson’s Bakery and its owners against Oberlin College and its Dean of Students, the college launched a public relations campaign claiming, among other things, that the Gibsons really were racist even though the jury found the accusation of racial profiling false and defamatory.

For those of you new to this issue, see the following posts regarding the post-trial public relations campaign:

• In NPR interview, Oberlin College President repeats false claim it was “held liable for the speech of its students”
• Gibson’s Bakery disputes Oberlin College public relations campaign claiming it was “held liable for the speech of its students”
• Oberlin College’s “almost sociopathic malevolence” towards Gibson’s Bakery
• Ted Koppel: Despite verdict, Oberlin College President still “makes allusions to a pattern of racist behavior” by Gibson’s Bakery

As part of that campaign seeking to impugn the Gibsons post-trial, Oberlin College sought to unseal the confidential Facebook records of Allyn D. Gibson, the store clerk whose stop of a black Oberlin College student for shoplifting sparked the protests, accusations of racial profiling, business cut-off, and eventually, lawsuit and jury trial. The student, along with two other students, later pleaded guilty to offenses related to the shoplifting.

Allyn D., the grandson of ‘grandpa’ Allyn W. Gibson and the son of the late David Gibson, was not a party in the lawsuit and did not testify at the trial.

During the pre-trial discovery process, the college obtained Allyn D.’s private Facebook records under an agreement that the documents would remain confidential unless the court ordered otherwise. Some of those Facebook records were filed under seal by the college in its Reply on summary judgment (which it lost) seeking to throw out the case pre-trial. None of the sealed records were used at trial. The court denied Oberlin College’s post-trial motion to unseal.

About a month later a group of Cleveland media and a local press association, who had played no role in the case previously and engaged in almost no original reporting about the case, filed a moton to unseal. The whole think smelled rotten to me, 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.

The Gibsons, in opposing the motion to unseal, called the motion an attempt to “dox” Allyn D., who had been the subject of threats previously. The threat to Allyn D. from disclosure of personal Facebook records justified keeping the records sealed, the Gibsons argued, in addition to several other reasons.

As confirmed by the deposition and trial testimony, the entire Gibson family were subjected to significant threats of violence during and after the defamatory protests in November of 2016. ADO specifically was the victim of vicious threats of harm and actual physical injury. During his deposition, ADG testified that after the protest, he was the target of death threats and defamatory statements….

The Gibsons Numerous other individuals were subjected to threats of violence, damaged property, and actual physical injury:

• During the protests, the Oberlin Police Department had to escort then 89-year-old Grandpa Gibson home because he was receiving death threats (Ptl. Shoemaker Dep., p. 30′-32);
• Gibson’s Bakery employee Constance Relun’s tires were slashed in the parking lot behind Gibson’s Bakery (May 16, 2019 Tr. Trans., p. 112);
• Gibson’s Bakery head baker Shane Cheney’s car tires were punctured while it was parked in the Gibson’s Bakery parking lot (May 15, 2019 Tr. Trans., pp. 105-06) and • Worst of all, in the middle of the night six months after the protests, individuals pounded on Grandpa Gibson’s front door and, after he fell and broke his neck, left him lying in the doorway of his apartment with a life altering injury (May 16, 2019 Tr. Trans., pp. 29-33).

‘The protests and defamation of Plaintiffs created a substantial risk of injury and property damage not only to the Gibson family but also to individuals associated with Gibson’s Bakery. Movants’ attempt to publicly release ADG’s private social media messages and to continue the defamation of the Gibson family will create the same risks.

The Gibsons further alleged collusion between Oberlin College and the non-party media group, based on ties between Oberlin College’s lead trial counsel and those media entities (emphasis added):

… 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.

Neither the college, its trial lawyer, or the media group, denied the allegation of collusion — they simply ignored it.

The Judge then requested additional briefing on whether he even had jurisdiction considering that the case was on appeal. For the first time, Oberlin College chimed in trying to help the media movants:

The judge requested additional briefing as to whether the court still had jurisdiction now that the case is on appeal. The media group said yes, Gibsons said no. One of the points the Gibsons raised was that since Oberlin College was denied identical relief, a ruling by the trial court now as to the media group could interfere with the appeal.

Up to this point, Oberlin College had been silent as to the media group motion to unseal, even when the Gibsons alleged collusion. But for the first time, Oberlin College filed a Notice with the Court that it would not be including the denial of Oberlin College’s motion to unseal in the appeal. This clearly was an attempt to help the media entities in their effort to unseal the records — supportive of the Gibsons’ claim that the media group and college were colluding.

For all the details and pleadings on the motion to unseal, see these posts:

• Cleveland Media Seek Access To Gibson’s Bakery Store Clerk’s Sealed Facebook Records in Oberlin College Case, But Why?
• Gibson’s Bakery alleges Cleveland media collaborating with Oberlin College to unseal store clerk’s Facebook records
• Cleveland media fail to deny allegations of collusion with Oberlin College to unseal Gibson’s Bakery store clerk’s Facebook records
• To Dox The Store Clerk or Not, That Remains The Question In Gibson’s Bakery v. Oberlin College
• We interrupt this pandemic to update you on Gibson’s Bakery v. Oberlin College case

The Judge has just ruled, denying the motion to unseal. The Order (pdf.) is just two pages, and finds in pertinent part (emphasis added):

Here, access was originally restricted to Exhibit G under the parties’ Mutual Protective Order. That order was agreed-to by the parties and approved and entered by the Court on June 8, 2018. The contents of Exhibit G and their admissibility was at issue during pretrial motions in limine, at which time, a preliminary ruling was issued that these materials could not be utilized as character evidence, but the Court withheld ruling on their admissibility for other purposes. The Defendants made no attempt to introduce the contents of Exhibit G for any reason, nor did they call or attempt to call non-party Allyn D. Gibson as a witness during trial.

At this juncture, the Court, under Ohio Sup. R. 45(F)(2) must consider whether the original reason for restricting public access no longer exists, and whether any new circumstances identified in Sup. R. 45(E) have arisen which would require the continued restriction of public access. The Court, having considered all of the factors in Sup. R. 45(E), hereby finds that the continued restriction of public access is warranted. Of particular importance is Sup. R. 45(2)(c), which includes the risk of injury to persons, individual privacy rights and interests, and fairness of the adjudicatory process. Because of the nature of the information at issue in Exhibit G, the Court also finds that there is no less restrictive alternative to complete restriction.

I had hoped the court would get into the collusion issue, but as he has done throughout the case, Judge Miraldi limited himself to what was necessary to decide.

Will the Cleveland media folks appeal? I’m guessing Yes, because there always was something else going on here, and that something else is still going on.

[Featured Image: Judge John Miraldi during trial][Photo Credit Legal Insurrection Foundation]

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