A few days ago I posted about an Ohio appeals court’s dismissal of an appeal by Cleveland media interests seeking to unseal the confidential Facebook records of Allyn D. Gibson. Allyn was the store clerk who stopped an Oberlin College black student shoplifter that led to the false accusations of racial profiling and the court case that resulted in a massive compensatory and punitive damages verdict against Oberlin College. The appeal on the money verdict is still pending.In that post, I noted that the appeals court found that the media interests used the wrong procedure of a direct appeal, when they needed to seek a Writ of Mandamus ordering the trial court to unseal the records. In an Update to that post, I noted that one of the litigants, WEWS-TV, had in fact filed a Complaint for Writ of Mandamus in the Ohio Supreme Court (docket), and that the case was referred to mediation. That mediation referral caught the attention of the Oberlin Chronicle-Telegram. Several readers forward the article to me and asked my take.I don’t read much into that referral to mediation, which strikes me as something appeals courts routinely do. I can’t see mediation being successful in this circumstance, but courts require litigants to try. Interestingly, the case is WEWS-TV against the trial court. I assume the Gibson family lawyers, the ones who represented Allyn on the appeal, will move to intervene or at least be heard.I see two big takeaways here.
Big Takeaway No. 1 is that the war on the Gibson’s continues by every means available. That was my initial take back on November 8, 2019, 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.
In a subsequent post, I noted:
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.
Nothing I’ve seen changes my view. In fact, after this original take it became known Oberlin College’s lead trial counsel used to be a legal commentator at WEWS-TV. Do you believe that WEWS-TV has taken such a hard interest in the case because it’s interested in doing journalism?
My Big Takeway No. 2 is that if the Ohio Supreme Court grants this Writ, and orders the trial court to unseal the records, it would severely undermine the normal court discovery process.
It is routine that litigants or subpoenaed non-parties, in order to avoid burdeing the court system with motions as to what documents need to be turned over to the other side, enter into confidentiality agreements. That allows parties to turn material over with the comfort that producing the documents would not make the documents public record. Without this consensual process, courts would be buried in motion practice.
What Oberlin College tried to do when it moved to unseal the records, and what WEWS-TV is doing now, is saying that merely because the records were filed under seal as an attachment to a motion, the records now become public if a media entity asks for them. Remember, these records were not even offered as exhibits at trial, and Allyn was not a witness or a party.
If the records were turned over to the media under these circumstances, litigants would have no reason to cooperate in discovery through confidentiality agreements. If an opposing party (here, Oberlin College) wanted to make confidential records public, it could merely file them under seal, then get a friendly media outlet to petition the court to unseal the records even if the records played no role in the ultimate verdict.
I’m not sure this point came out as clearly as it could have in the prior briefing. This is an assault not just on the Gibson family’s reputation, but on the practice of consensual confidentiality agreements that avoids the court system being bogged down in discovery motion practice.
[Featured Image: Four generations of Gibsons after Jury Verdict, Store Clerk Allyn D. Gibson, Second From Right][Photo Credit Legal Insurrection Foundation]
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