Appeals court magistrate questions whether there is appellate jurisdiction, and requests briefing as to whether the appeal can move forward.
There are multiple appellate fronts in the Gibson’s Bakery v. Oberlin College case.
First and most important, Oberlin College and Dean Meredith Raimondo have appealed seeking to overturn the massive compensatory and punitive damage verdicts. Numerous entities have come to their assistance by filing amicus (friend of the court) briefs, including certain Cleveland media entities. The Gibsons’ response to the appeal is due by August 5.
The Gibsons also have cross-appealed, seeking to restore the full $33 million punitive damages verdict, which had been reduced under Ohip’s tort reform law. The defendants have not yet filed their opposition brief, which also is due August 5.
But wait, there’s more.
You will recall that those same Cleveland media entities, which allegedly had a connection to Oberlin’s lead trial council, tried to get access to confidential, sealed Facebook records of Allyn D. Gibson, the store clerk whose stop of a black Oberlin student for shoplifting started the cascade of events that led to the events giving rise to the lawsuit. Allyn D., the grandson of Allyn W. Gibson and the son of the late David Gibson, was not a party and did not testify at trial. The Facebook record never were offered as exhibits at trial.
Oberlin College tried to get the Facebook records unsealed after trial, in what appeared to be part of its post-trial public relations effort to portray the Gibsons as racist (we don’t know what the records say, but that was the college’s inimation). A month after that relief was denied, the Cleveland media entities brought their own motion to unseal.
As I pointed out at the time, this was very suspicious:
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 way it played out is that the Gibsons alleged collusion between Oberlin College and the Cleveland Media, an allegation that never was specifically denied. The court ended up denying the motion to unseal without addressing the collusion allegation. Here are all our posts on the motion to unseal:
- 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
- Gibson’s Bakery v. Oberlin College – Court rejects attempt to unseal store clerk’s private Facebook records
The judge’s Order (pdf.) was just two pages, and found 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.
The Cleveland Media have appealed this denial, filing a Notice of Appeal and Docketing Statement (pdf.) in early June.
It’s not clear whether the appeal will get off the ground. The appellate court Magistrate just issued an Order questioning whether there is appellate jurisdiction and has asked for briefing:
(MAGISTRATE’S ORDER) UPON REVIEW OF THE FILINGS, THIS COURT QUESTIONS ITS JURISDICTION TO CONSIDER THE ATTEMPTED APPEAL. SPECIFICALLY, IT IS UNCLEAR WHETHER THE ORDER APPEALED IS A FINAL ORDER THAT MAY BE APPEALED TO THIS COURT. THE PARTIES WILL HAVE 20 DAYS FROM JOURNALIZATION OF THIS ORDER IN WHICH TO FILE A RESPONSE ADDRESSING THIS ISSUE. IF APPELLALNTS DO NOT COMPLY WITH THIS ORDER, THE APPEAL WILL BE DENIED. SEE JOURNAL.
So, it’s not clear that there will be a substantive appeal as to unsealing Allyn D.’s Facebook records.
But the bigger question — which I think we all know the answer to — is why do these Cleveland media entities care so much?
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