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Exclusive: Trial Judge Agrees To Release Gibson’s Bakery Store Clerk Confidential Facebook Records

Exclusive: Trial Judge Agrees To Release Gibson’s Bakery Store Clerk Confidential Facebook Records

In a strange twist, Judge John R. Miraldi’s counsel confirms “Judge Miraldi has agreed to release the Exhibit in exchange for the dismissal of the writ” of mandamus filed against the judge by WEWS-TV in the Ohio Supreme Court. It’s not clear to me that in this current case posture, Judge Miraldi any longer has jurisdiction.

We have been covering the saga of the attempt by Cleveland WEWS-TV to unseal the confidential Facebook records of Allyn D. Gibson, the Gibson’s Bakery store clerk whose stop of a black Oberlin College student shoplifter led to protests, boycotts, false accusations of racial profiling, and ultimately, the lawsuit that resulted in massive compensatory and punitive damage jury verdicts.

This legal fight is separate from the main ring, which is the appeal by (1) Oberlin College 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.

The Facebook records were sealed pursuant to court order of trial court Judge John R. Miraldi, who denied the respective and successive motions of Oberlin College and certain Cleveland media interests (including WEWS-TV) to unseal the records. The litigation over the Facebook records now is in the Ohio Supreme Court, on the Complaint for a Writ of Mandamus filed by WEWS-TV ordering Judge Miraldi to unseal the resords. For a full discussion, see my September 17, 2021, post, Gibson’s Bakery Store Clerk Intervenes Against Attempt By Oberlin College-aligned Media to Unseal His Facebook Records.

The short version is that 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 the subject of questioning at Allyn D.’s pretrial deposition and were not even offerred as exhibits at the trial  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.

On September 16, 2021, the day Judge Miraldi was due to Answer in the Ohio Supreme Court, Allyn D. filed 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.). Allyn D. argued, among other things, that he should be allowed to intervene because his interest differed from Judge Miraldi. He argued that while Judge Miraldi had an interest in defending his decision, Allyn D. has an interest in the records themselves remaining private.

But it appears that Judge Miraldi does not have an interest in defending his decision. Based on the electronic court docket, he never filed an Answer.

I recently received information that Judge Miraldi had agreed to release the Facebook records (effectively unsealing them) in exchange for WEWS-TV dismissing the request for a writ. That has been confirmed in an email to me from Judge Miraldi’s counsel of record in the Ohio Supreme Court mandamus proceeding:

Judge Miraldi has agreed to release the Exhibit in exchange for the dismissal of the writ.  As far as what mechanism is required to accomplish that, we are looking into that now. Under Ohio law, it somewhat depends on the physical location of the file.  I do not at this moment know if the file is in our courthouse or with the 9th Circuit in Akron. Once that is determined, we will be able to decide how to accomplish the exhibit’s release.

(added) In a follow up, counsel indicated they were still looking into Judge Miraldi’s jurisdiction now that the main case in on appeal in the Ohio 9th Circuit and the mandamus issue is in the Ohio Supreme Court: “In some respects, under Ohio law, that depends on the physical location of the file.”

This is all very unexpected and strange. Having twice held to his decision, why agree to release the records while the matter is in the Ohio Supreme Court? It would not have been hard to file an Answer to the Complaint, particularly since Judge Miraldi is represented (presumably for free) by the Lorain County Prosecutors Office. If Allyn D.’s motion to intervene is granted, then the issue still is before the Ohio Supreme Court regardless of whether Judge Miraldi defends.

It’s not even clear to me that as the case stands now, Judge Miraldi has jurisdiction over the Facebook records dispute, that now is before the Ohio Supreme Court. In my view, the only way Judge Miraldi gets the issue back is if the Ohio Supreme Court remands it to him on this issue. Or if the 9th Circuit Court of Appeals reverses in whole or in part on the main appeal and the whole case heads back to Judge Miraldi. That appeals court generally releases opinions on Mondays, so the decision could come tomorrow, or not for weeks.

It certainly is an unexpected development that we will continue to follow.

[Featured Image: Judge John R. Miraldi reading Jury Verdict][Photo Credit Legal Insurrection Foundation]

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Comments

So, unsubstantiated allegations of diversity, and persistent pestering, are sufficient cause to invade people’s privacy. It’s not like there is a life…. livelihood, yes, but not life(s) at stake. It puts this issue into stark relief. #HateLovesAbortion

I guess the takeaway from all of this is: don’t move to Ohio. And if you live there, get the hell out as soon as possible.

(Non-lawyer Q) So I presume the next step is to get a preliminary injunction from the Circuit Court saying “Nope, not that fast. This ain’t yours to decide yet.”

Does Miraldi have any protestors outside his house like Tucker or Kavanaugh do?

Rather odd. My experience is that a writ of mandamus is defended by the opposing party. I wonder if there isn’t an agreement between intervenor’s counsel and judge’s counsel to effectively force the appellate court to allow the intervention. As professor put it Intervenor has a stronger interest in the outcome.

The Friendly Grizzly | September 19, 2021 at 8:32 pm

Won’t it be great if they finally do read it and find the equivalent of the lone, dusty bottle in Al Capone’s secret vault?

    Not possible. Remember that Oberlin’s lawyers have already read it and knows what it says. It’s utterly implausible that they have kept their duty of confidentiality, and not told their friends at WEWS what’s in it. At the very least they’ve told them that whatever it is is juicy. More likely they’ve shown them the records and let them read them.

    WEWS’s problem is that although they know exactly what’s in the records, they can’t report it because that would mean admitting that Oberlin told them, which would get Oberlin in deep poo. So they have to sue to get an official look at the records, so they can report what they already know.

      I agree Oberlin has seen the contents of the Facebook account and probably shared them (or a description of them) with WEWS. But if the contents are as “juicy” as you contend, why didn’t Oberlin’s lawyers examine Allyn Gibson about them at his deposition, or try to introduce them at the trial? It’s not adding up.

        Milhouse in reply to JPL17. | September 20, 2021 at 11:29 am

        Because he wasn’t a party, and they couldn’t make a case that his opinions were relevant. I assume they tried asking him about them at his deposition and were shut down.

          But relevancy isn’t required at a deposition. As I’m sure you know, deponents are required to answer irrelevant questions as long as the answers could lead to the discovery of relevant evidence. And if Allyn’s Facebook page did in fact contain racist comments as you contend, then clearly he’d have had to answer questions such as, “Did your employers agree with your views?”, “Were your employers aware of your views?” and “Was the public aware that the bakery continued to employ you after learning of your views?” All these questions were either directly relevant or could have led to the discovery of evidence relevant to the bakery’s reputation for being or not being racists. Allyn therefore would have been required to answer such questions at his deposition.

          One therefore has to wonder, if Allyn’s Facebook page contained racist comments, why on earth didn’t Oberlin’s lawyers depose him on the contents, and then offer them into evidence at trial? It just doesn’t add up.

          pst314 in reply to Milhouse. | September 21, 2021 at 3:23 pm

          Wild speculation: maybe Allyn’s Facebook page contains things that are potentially embarrassing but not relevant to the trial: Opinions about matters other than race, or activity in groups that some would disapprove of, in which case the motive for demanding an unsealing would be pure malice.

The rule of law isn’t dying, it’s being murdered.

I can’t believe that the mob is going to get their way again.

Reminds me of when Republican candidate for Senate Jack Ryan’s court sealed divorce records were mysteriously, and illegally, made available to the Chicago press.

Just a couple of months before the election for Illinois Senator. His opponent was Obama.

This is all very unexpected and strange. Having twice held to his decision, why agree to release the records while the matter is in the Ohio Supreme Court?

The Dem’s finally managed to dig up some dirt on him or someone close to him

    Yeah, I can’t believe there’s not some pressure on him with this. Maybe something as simple as a phone call, “We’ll work to disbar you if you fight this. You know we have the power.”

    james h in reply to JHogan. | September 23, 2021 at 3:20 pm

    Dirt-digging isn’t necessary anymore. The Democrats control the bar association. They’ll just threaten the judge with disbarment, ending his career. That’s the standard play now.

This just smells fishy, it seems as if he is bailing out of this matter for some unexplained reason.
I just checked the WEWS website and don’t see any type of story on this development.

Fascism only needs an activist judge (a.k.a. Democrat in a robe).

But yet the social media records of the capitol police officer who murdered Ashli Babbitt are sealed.

It is amazing that the private information of a non-party got seized in the first place.
As for basically publishing that which was gotten under an NDA: has the store clerk at some point been declared an outlaw so that his rights can be violated with impunity?

    felixrigidus in reply to felixrigidus. | September 20, 2021 at 3:13 am

    And non-party needs to read party (in the original case) but cannot be edited…
    Since the “journalists” obviously want access to information they are not entitled to in order to publish it clearly they should be required to sue the person whose privacy they want to violate, not some third party that has no interest in defending the rights of the person whose rights the press would love to violate.

    healthguyfsu in reply to felixrigidus. | September 20, 2021 at 3:33 pm

    I don’t think social media records are considered private information, right?

      felixrigidus in reply to healthguyfsu. | September 20, 2021 at 4:56 pm

      WEWS-TV could just publish the facebook post directly if that post was “public” and not restricted or deleted. In that case, it seems unlikely they’d try and get the court to give them access.
      In other words, whatever you post without any restrictions is not private but that clearly is not the case here.
      As a prudential matter, you should treat anything you post to Facebook or Twitter or any such platform as public and not post anything you don’t want to be known far and wide,

I imagine they’re looking for ‘racisms’ on this FB timeline so they can say he was motivated by racism at the time.

    Milhouse in reply to eah. | September 20, 2021 at 11:34 am

    Of course. And considering that they surely already know what’s there, and how hard they’re fighting to get official access to it so they can finally report it, I assume there is in fact evidence of racism on his part.

    Which is completely irrelevant, since it’s already been firmly established that the thieves were thieves. He didn’t falsely accuse them. So what possible difference could it make whether he is a racist or not?

    Let’s suppose that he only caught them because he suspected them because of their race, and that had they been white they would have got away with their crime. So ****Ing what? Did that give them a right to get away with it too?! If you steal you deserve to get caught, regardless of how many white people manage not to get caught.

      Brave Sir Robbin in reply to Milhouse. | September 20, 2021 at 12:10 pm

      “He didn’t falsely accuse them. So what possible difference could it make whether he is a racist or not?”

      Because it is a greater sin and nullifies the theft. Racists deserve to be stolen from. Anyway, reparations….

      Brave Sir Robbin in reply to Milhouse. | September 20, 2021 at 12:19 pm

      In any event, the crux of the issue is the claim by Plaintiff is that they were defamed by being called racist by the college. So, of a member of the family and an employee can be shown to be a racist, then it supports the defense and a possible claim of error…. perhaps.

      felixrigidus in reply to Milhouse. | September 20, 2021 at 5:02 pm

      I’m not so sure. If there was this evidence why wasn’t it used in the case? It is not that the judge did not allow it, Oberlin never tried to rely on any of it.
      But I guess almost everything can be spun to look racist by a sufficiently determined presstitute.
      Mind you, I don’t doubt that you are spot on regarding the motive, I only doubt they know positively of a real “smoking gun.”

      pst314 in reply to Milhouse. | September 21, 2021 at 3:05 pm

      Similarly, police on patrol give more scrutiny to men than to women, because men commit far more crimes. The police are not sexist, merely realistic.

Yet another reason to never use Facebook…….. I assume they need the records to prove systemic racism and white privilege prevented this clerk from overlooking the crime that was committed right in front of his eyes.

… and still ten months out from the oral argument in the main appeal, with no decision?

I wonder, what is the actual remedy to the breakdown in the rule of law?

At this point, I don’t really see one. Just a continuing Balkanization of the country. I guess that’s what the tech oligarchs want?

    >what is the actual remedy

    Hint: it’s a noun, and starts with the letter ‘g’.

    Historical reference: the French Revolution.

    Don’t reject the wisdom of our forebears.

      Voyager in reply to eah. | September 20, 2021 at 8:47 pm

      The French Revolution did not remedy it. It merely tore down the false facade of the state and replaced it with the folks who were running things to begin with.

      But they were no less tyrannical than their predecessors.

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