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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:

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.

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

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

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.

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

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.

https://www.youtube.com/watch?v=qw2Sk_JTaXA

[Protest outside Gibson’s Bakery, November 2016]

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:

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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Comments

notamemberofanyorganizedpolicital | May 6, 2020 at 1:14 pm

BRAVO!!!!!

The days of miracles are not over.

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.

As nice as that would be, the narrow ruling with the Judges finding of fact makes the order less ripe for Appeal. Most Appellate Courts (I don’t know Ohio) will not review a Judges finding of fact absent clear error.

    Tom Servo in reply to dystopia. | May 6, 2020 at 8:52 pm

    I agree completely – the specificity of the ruling makes it very difficult to appeal, a reviewing Judge would have to find that this Judge was wrong in saying that there was a personal risk involved in releasing this information. Can’t see that happening.

OwenKellogg-Engineer | May 6, 2020 at 1:34 pm

Thank you Prof. for keeping us informed regarding this saga. The judge is most certainly a savvy operator.

rabid wombat | May 6, 2020 at 1:50 pm

Another nail in Oberlin….

    Brave Sir Robbin in reply to rabid wombat. | May 6, 2020 at 3:17 pm

    Well, they certainly do not need a federal stimulus program for lawyers in Ohio. Oberlin is taking care of that all on their own.

    BTW, I wonder who is paying the legal bills for these “news” organs to pursue this litigation.

I am fascinated by this case. I have little knowledge of the law, but having followed this since the beginning here on LI, I would wonder on what grounds the School would hope to have a successful appeal of the initial verdict. I recognize that it’s standard form to appeal an initial ruling, right? Your attorneys have all the documents compiled already, and knowing the grounds on which you lost the case, you know how to focus your appeal. Still, I bet that the real reason behind the appeal is that once you’re in deep enough it is worth tossing a little more cash on the card table in hopes Lady Luck to bail you out …..somehow. Gamblers gonna gamble till someone makes them stop.

    DSHornet in reply to Hodge. | May 6, 2020 at 2:29 pm

    Likewise. The density of the legalese forces a slow, focused reading but watching the procedures play out has been “interesting” to say the least.

    A lay person might ask why Oberlin is trying so hard. It seems they are just muddying the waters with this attempt from the Cleveland media group. It’s not obvious how adding confusion will help them, and eventually they’ll just tick the judge off.
    .

    Paul in reply to Hodge. | May 6, 2020 at 3:04 pm

    I think what we’re seeing is the result of the school packing it’s senior administrative and leadership positions with social-justice- affirmative-actions babies who are, quite literally, stupid and petulant.

    Olinser in reply to Hodge. | May 6, 2020 at 5:44 pm

    I think it’s more that they’re committed to defending THEIR OWN interests, rather than Oberlin’s interests.

    I believe that Legal Insurrection wrote an article about this a while ago, and there is a term for it.

    But the lawyers defending this case for Oberlin, and responsible for pushing through the appeals, are THE SAME individuals that advised them at the start not to settle and take it to trial, and the same ones that signed off on idiocy like that general message sent out to the alumni BEFORE THE JUDGEMENT WAS IN.

    Stopping the appeals would require them to admit that they have completely screwed the pooch and have zero actual legal justification for what they did.

    Continuing the appeals gives them the fig leaf of, “We were right but it was just the evil racist Republicans stacking the courts that screwed us.”

    It’s not about Oberlin winning – they won’t. It’s about not admitting that they did anything wrong.

      MajorWood in reply to Olinser. | May 6, 2020 at 8:53 pm

      Who doesn’t love the chance to gamble with someone else’s money. I said here three years ago that if one were to replace the word alcoholic with academic, the book that explains all of their thinking was written in 1940. They are drunk with imaginary power and will continue to act as they do as long as the uninformed alumni enable it. But it is all fun and games until someone loses the endowment.

      FWIW, I am still sticking with a $70M final tab: settlement, interest, bond, and legal fees. All because Trump. 😉

      And possibly some parking spaces.

        bhwms in reply to MajorWood. | May 7, 2020 at 9:15 am

        It might be interesting if a third party went through Linkedin and other public sites, found Oberlin graduates, and sent them a mailing informing them of the college’s antics with their alumni endowment money. That should be a legal activity, right?

          ConradCA in reply to bhwms. | May 7, 2020 at 11:32 am

          I expect that advertisers can purchase mailing lists containing Oberlin alumni so they can sell stuff to them. I bet you could obtain this list to send information about Oberlin’s corrupt actions against Gibson’s.

Good — the Oberlin request was made in bad faith, anyway. This guy wasn’t a party to the suit and didn’t testify.

    healthguyfsu in reply to guyjones. | May 6, 2020 at 2:59 pm

    Exactly…that was the biggest part of this that the media will likely overlook in their wailing and gnashing of teeth over their denied doxxing frenzy.

    alaskabob in reply to guyjones. | May 6, 2020 at 3:49 pm

    Dare I say it… yes I dare…. this was all to “color” the judgment of clerk to go after the shoplifters in the first place and provide proof to the Oberlin narrative of racial bias and the need to have students protest bigotry. Standard Orwell…. use the present to control the past to control the future. They HAVE to prove racism. It’s used all the time to plead down or avoid charges of criminal behavior by minorities. They wish to be portrayed as victims in the final analysis. Think Trayvon in “Rest in Power”.

      Observer in reply to alaskabob. | May 6, 2020 at 7:05 pm

      Yes, presumably Oberlin (and now their media co-conspirators) wanted to smear the Gibsons with some statement or photo they found in Allyn Gibson’s FB account that may have been, or seemed to be, racist. But Allyn Gibson’s personal feelings about blacks, whatever they may be, were clearly irrelevant to the case. Allyn Gibson went after the Oberlin students that night not because they were black, but because he caught them shoplifting in his store, as they admitted in their guilty pleas. And there was no evidence that Gibson’s Bakery had ever discriminated against or racially profiled blacks. In fact, there was abundant evidence to the contrary. So even if Allyn Gibson had written on his FB page that he hated blacks, it was not proof of anything other than his own personal feelings, which were completely irrelevant in the absence of any evidence that he had ever acted on those feelings in his capacity as an employee of Gibson’s.

      The judge was right to exclude the FB records, and he was also right to refuse to unseal them for the trouble-making media hacks.

      JusticeDelivered in reply to alaskabob. | May 6, 2020 at 7:21 pm

      I think that Tugvon is in a toasty tropical place, waiting for his parents and their associates.

I’m surprised some slimeball hasn’t released a fabricated version of these records (which of course the press would gleefully spread). Then when challenged with an assertion that it’s all fake, the obvious response is “prove it”—by, of course, releasing the real records to show that they’re not the same.

    healthguyfsu in reply to tom_swift. | May 6, 2020 at 3:01 pm

    I think even the media swine are smart enough not to do poke the bear in that regard. This is part of a civil lawsuit already, so it wouldn’t take much to have the Gibson’s lawyers file another lawsuit against the media group for that kind of malfeasance. No Gibson is a public figure, so there would be hell to pay for it.

    Vladtheimp in reply to tom_swift. | May 6, 2020 at 7:12 pm

    Adam Schiff probably hasn’t had a media whistle blower inform him of the potential for publicity – give it another day after he starts “Coronavirus-Impeachment II.”

All these pointless appeals and motions are what is wrong with our legal system. Oberlin lost. Thanks to their inept legal team, they lost B I G T I M E! In this case, stupid should be painful. Enough is enough and a judge needs to tell Oberlin “No More! Pay up, and if not, the court will proceed with seizing assets of the college.”

Cleveland.com has been bleeding money for a long time, not sure if continuing to pay lawyers is in their best interest. Advance Media, their owner, just finished busting the Plain Dealer union after several years of cuts and a transition to non union internet based operation.
Then again they may a benefactor footing the bill that remains in the shadows.

    JusticeDelivered in reply to buck61. | May 6, 2020 at 7:51 pm

    I have had dealings with Advance, they really value their 1st Amendment rights, not so for readers commenting. They routinely censor public discussions in order to promote their agenda. The whole setup is pretty slimy.

    I have been programming since I was 13, IE, nearly sixty years. It is funny circumventing these scum bags. Probably a bigger sin is that I dropped print subscription, and to add insult, I block or redirect their ads, and trackers, beacons, etc.

      I was an active poster on their boards at the Plain Dealer site and several other Advance sites. The writing was on the wall when they cut the comments at Oregon live, then it spread across the rest of their sites, all ending in mass closure. The local editors tried to portray it as a local decision , when anyone with common sense knew it was a corporate one.
      The comment board was one way to keep the left wing narrative they endorsed in check. I for one have cut my visits and time spent there dramatically.
      I found it ironic that the bailed out on their New Orleans publication and let the Advocate take it over, a little guy beating out the big corporate entity.
      They made significant staffing cuts in the midst of one of the biggest stories of this generation, now they are begging for people to subscribe to their clearly one sided site.

This case has become an inspiration and affirmation for the system of jurisprudence, legitimate justice, distinction between good and evil, truth vs lies and a wonderful exposition of what is wrong with colleges and universities in this era.

    ss396 in reply to NotKennedy. | May 7, 2020 at 10:07 am

    The shoplifting happened in November 2016; this case has been going on for 3-1/2 years. I do not find it inspiring; rather, I find it as an exemplar of a gummed up court system ready to be abused by well-heeled players. That it has dragged on this long is disgusting.

      jb4 in reply to ss396. | May 7, 2020 at 10:24 am

      I suspect that Oberlin figured that its money would outlast Gibson’s, much like Government generally, with unlimited resources. Perhaps they saw they could not lose – win on the merits or lose and negotiate a tolerable settlement with a worn down and broke Gibson’s. I still think that Gibson’s would settle.

Once upon a time, Oberlin was a shining star for its intellectual rigor and affirmation of the civil rights of women and non-whites. Now they are a shining star of affirmative action, proving what a disaster the application of it is. Race and gender appear to be the only criteria considered. Intellect is discriminated against.

    jb4 in reply to farmermom. | May 6, 2020 at 7:32 pm

    One thing that is troubling is the evident tolerance by the Board of Trustees for this conduct. Some of them are graduates of the school in those “shining star” years and I would have expected to see some resignations in protest. That said, the handling of Tara Reade’s claims against Biden, relative to Justice Kavanaugh, suggests that it is too much to expect principles and integrity out of liberals these days; and that even “gender” does not matter unless the accused is a Republican. Unfortunately, Oberlin may escape visible accountability for the Gibson’s matter, enrollment problems this Fall. They will be obscured by the consequences of Covid-19

Obviously, this will not be over until Oberlin College writes the check to Gibson’s Bakery. And I will probably not live long enough to witness that day given the glacial progress of the American judicial system.

As much as the money, the comeuppance of the malignant scum running oberlin is just as just.

So how does a media outlet have a legal platform/standing to demand the private stuff of a person not even named in the case be made public?

I’m no legal scholar but this doesn’t compute logically?

    Milhouse in reply to Andy. | May 7, 2020 at 1:43 am

    They’re saying it’s a court record, and there’s no good reason to keep it sealed, so by default it should be public. And their standing is “the public’s right to know”, and the myth that the first amendment was written with that purported right in mind.

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

Remind me, is Oberlin a college or a crime family?

Academic elitist and globalists is what they are.

With the financial issues colleges will be having in the fall will the decreased enrollmeny hopefully they will soon fall into bankruptcy.

Seeing how Oberlin is continuing to disparage Gibson’s and the court decision Gibson’s should bring another lawsuit against Oberlin.

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