We still await the Ohio 9th Circuit Court of Appeals decision in which (1) Oberlin College is challenging the compensatory and punitive damage awards totalling, after reduction under Ohio tort reform law, $25 million, plus over $6 million in attorney’s fees, bringing the judgment to over $32 million, and (2) the cross-appeal by Gibson’s Bakery and two members of the Gibson family (including the widow of the late David Gibson) seeking to restore the full $33 million punitive damages award.
As we have been covering for years, there is a second piece of this puzzle, a vindictive and transparently collusive attempt by certain media entities to unseal confidential Facebook records of Allyn D. Gibson, the store clerk whose stop of a black Oberlin College student shoplifter led to protests, boycotts, and false accusations of racial profiling. Allyn D. was not a party in the case, was not called as a witness, and the Facebook records — produced during discovery under a court ordered confidentiality agreement — were not even offerred as exhibits.
The Facebook records played zero role in the trial and verdicts, but first Oberlin College then its Cleveland media friends tried unsuccessfully to get the records unsealed as part of a post-trial attempt to smear the Gibsons as racists. Is it just coincidence that the one media entity, WEWS-TV, still pursuing this in the Ohio Supreme Court also is where Oberlin College’s lead trial counsel formerly was a legal commentator for a decade? LOL if you believe in coincidences.
The last time we checked in on the proceedings in the Ohio Supreme Court was in Oberlin College-aligned Media Effort To Unseal Gibson’s Bakery Clerk Facebook Records Goes To Briefing In Ohio Supreme Court.
The case in the Ohio Supreme Court is a Complaint for a Writ of Mandamus ordering the trial court to unseal the records. Judge John Miraldi is the named respondent, but as expected, Allyn D. has moved to intervene, filing a Motion to Intervene (pdf.) attaching an Answer (starting at page 9 of the linked pdf.) and Motion for Judgment on the Pleadings (starting at page 39 of the pdf.).
From the Motion to Intervene (emphasis in original):
Intervenor was a nonparty to the Gibson-Oberlin Lawsuit. He was not a plaintiff and wasnot awarded any damages as part of the jury verdict. During the course of discovery, OberlinParties served Intervenor with a substantially overbroad subpoena and subjected Intervenor tomultiple days of deposition testimony. As part of the subpoena, the trial court ordered Intervenor to produce to Oberlin Parties a mirror image copy of his Facebook account. The Facebook account is not connected to Gibson’s Bakery, Dave, or Grandpa Gibson. Instead, it was Intervenor’s private, personal Facebook account. Exhibit G contains a grouping of unauthenticated, private Facebook messages that allegedly came from the mirror image of Intervenor’s Facebook account.Exhibit G was filed in conjunction with an affidavit executed by one of Oberlin Parties’ attorneys, Cary M. Snyder, and attached as an exhibit to Oberlin Parties’ Joint Reply in Support of Motions for Summary Judgment. The Facebook messages contained in Exhibit G were not authenticated during the discovery phase of the Gibson-Oberlin Lawsuit. Even though he was deposed for numerous days, Intervenor was not questioned on the contents of Exhibit G nor asked to authenticate Exhibit G. Intervenor was not called as a witness during trial by any party. Further, Oberlin Parties made no attempt to admit Exhibit G as evidence during the six-week public trial.Several months following judgment against Oberlin Parties, and despite no attempt to (1) authenticate Exhibit G, (2) refer to Exhibit G at trial, (3) call any witnesses regarding Exhibit G’s putative contents, or (4) proffer Exhibit G at trial, Oberlin Parties filed a motion attempting to unseal Exhibit G. Respondent denied Oberlin Parties’ motion, specifically stating “[a]t trial, [Oberlin Parties] made no attempt to introduce these materials as evidence of the Bakery’s reputation in the community.”. (See, Sep. 16, 2019 Journal Entry, p. 2, attached hereto as Exhibit 4 [emphasis added]). When Oberlin Parties were unsuccessful, WEWS stepped in to attempt to do the same.
Allyn D. argued that granting him intervenor status was required because while Judge Miraldi had an interest in defending his decision, Allyn D. has an interest in the records themselves remaining private.
In the Answer, Allyn D. asserted as an Affirmative Defense, among other things, that WEWS-TV had no legitimate media interest in the records because it barely showed any interest in the case, and in fact its parent company filed an amicus brief trying overturn the verdicts:
3. Relator deserves no relief in this action because Relator was not actively involved in reporting on this case. Indeed, from the Gibson Parties’ review, Relator has only carried four stories related to this case over the past four years, and three of the stories were merely picked up from the Associated Press….4. Relator deserves no relief in this action because Realtor’s parent company, The E.W. Scripps Company, is actively challenging the jury’s verdict on behalf of Oberlin Parties.5. Relator deserves no relief in this action because Relator is not a disinterested media company seeking to report on a legal case; instead, Relator has directly allied itself with Oberlin Parties and its campaign to bully and destroy the Gibson Parties’ family, reputation, and brand.
In the Motion for Judgment on the Pleadings, these points were repeated, and Allyn D. also hammered the collusive aspect of the attempt:
With its clear antipathy to this case before the jury verdicts, Relator’s crusade to access Exhibit G is puzzling until we consider:First – Relator’s parent company, The E.W. Scripps Company, is actively challenging the jury’s verdict on behalf of Oberlin Parties. WEWS is owned by The E.W. Scripps Company. The E.W. Scripps Company filed an amicus curiae brief in the Ninth District Court of Appeals in favor of Oberlin Parties that, using faulty legal reasoning, asked the Court to overturn the jury’s verdict. [June 8, 2020 Amicus Curiae Br. of Reporter’s Committee and 19 Media Organizations, Gibson Bros., Inc., et al. v. Oberlin College, et al., 9th Dist. Case Nos. 19CA011563 & 20CA011632].Second – Oberlin Parties’ lead trial counsel was a ten-year commentator for Relator. In addition to its overt support for Oberlin Parties, Relator also used Oberlin Parties’ lead trial counsel, Ronald Holman, II, for ten years as an on-air contributor.3 [See Exh. 1 to Gibson Parties and ADG’s Dec. 2, 2019 Br. In Opp. to WEWS’ Mtn to Unseal (Exh. H to Relator’s Compl.)]. Instead of a disinterested media company seeking to report on a legal case, Relator has directly allied itself with Oberlin Parties and their campaign to bully and destroy the Gibson Parties’ family, reputation, and brand.
After distinguishing the case law cited by WEWS-TV, and also documenting the threat of violence against the Gibson’s that necessarily informed the trial court’s decision not to unseal the records, Allyn D. made a point that is critical — and one I’ve made before — that unsealing these records will damage the court discovery process:
First – public policy requires restricted access to Exhibit G. Relator is seeking unrestrictedaccess to a nonparty’s private information based solely on the fact that Oberlin Parties, the partythat issued the subpoena, attached the private documents as an exhibit to a summary judgmentmotion. Considering the extremely broad scope of civil discovery,6 under such a rule, there would be no limit to the invasive and public airing of private information. The scope of discovery is muchbroader than the scope of admissible evidence. Civil litigation creates an upside-down funneleffect. Discovery begins at the top of the funnel and makes up the majority of the funnel becausethe scope of discovery is extremely broad. See Civ.R. 26(B)(1). The bottom of the funnel and thesmallest portion of the funnel is the scope of trial evidence, which requires all evidence to meetnumerous hurdles for admissibility, including hearsay and relevancy. The point here is that partiesreceive significant portions of discovery materials which ultimately are inadmissible at trial. Andthe reason most civil cases do not take decades to complete is that discovery is intended to beagreeable and reciprocal, i.e. a voluntary free flow of responsive information without the need forconstant court intervention. See 1994 Staff Notes to Civ.R. 37 (“The purpose of the amendment isto endorse and enforce the view that, in general, discovery is self-regulating and should requirecourt intervention only as a last resort.”).Accepting Relator’s position that all discovery materials filed with the court are therebyaccessible by the public undercuts the current structure of discovery. Parties and non-parties wouldneed to decide whether to: (1) produce materials during discovery and thereby risk the public’saccess merely because the other party may file the materials in court; or (2) file for protectiveorders at every turn. This would create a chilling effect on discovery by causing parties to notproduce responsive materials and would grind the courts’ dockets to a halt by exponentiallyincreasing the number of discovery motions.
To me, this last point is the key point. Unsealing records that the parties agreed would be confidential and that were never even offerred or used at trial will severely damage the court system’s ability to manage its case load. Ohio is going to have to hire more judges if WEWS-TV gets its way here.
The Ohio Supreme Court electronic online docket does not yet reflect Judge Miraldi having filed an Answer. He has counsel from the Lorain County Prosecutor’s Office, so that is surprising. Perhaps the filing just hasn’t been uploaded yet, or he got an extension of time. We’ll see.
We will continue to follow this and the main appeal.
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Our prior coverage of the Facebook issue:
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