Appeals Court Dismisses Media Attempt To Get Gibson’s Bakery Clerk’s Facebook Records in Oberlin College Case (UPDATE)

Appeals Court Dismisses Media Attempt To Get Gibson’s Bakery Clerk’s Facebook Records in Oberlin College Case (UPDATE)

SEE UPDATE AT BOTTOM

We are still waiting for the Ohio 9th District Court of Appeals to rule on the main appeal in the Gibson’s Bakery v. Oberlin College case.

On November 10, 2020, the Court heard oral argument on (1) the appeal byOberlin College and Dean of Students Meredith Raimando seeking to overturn 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, arguing the tort reform reduction was unconstitutional, which would add back about $15 million to the judgment.

For the latest on the travel of this main appeal, see our May 18, 2021, post, Gibson’s Bakery v. Oberlin College – New Panel Assigned To Appeal. That decision could come tomorrow or in weeks or months. I don’t know about you, but the mere delay gets me nervous.

There has been a side issue on appeal invovlving the attempt by by certain Cleveland media entities aligned with the college trying to unseal confidential Facebook records of Allyn Gibson, the store clerk who stopped the shoplifter that gave rise to the student protests, the false accusations of racial profiling, and the lawsuit. It was a particularly vindictive move that left little doubt is was part of Oberlin College’s post-trial public relations campaign claiming the Gibsons really were racist after all.

For full background on this sordid sideshow, see these posts:

• 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
• Cleveland Media appeal denial of access to Gibson’s Bakery store clerk Facebook records
• Update on Cleveland Media attempt to gain access to Gibson’s Bakery store clerk Facebook records

I just found out that the media appeal was dismissed on procedural grounds on June 17, 2021. I only found out now when I looked at the docket in that appeal — it’s not something I normally check.

The short version is that the media entities used the wrong procedure to contest the trial judge’s refusal to unseal the records. The appeal court held that because the media entities were not parties, they could not file a normal appeal, they had to seek mandamus, that is, an order from the appeals court instructing the trial court to take an act.

Fallowing the trial in this case, WEWS and others filed a motion to unseal one of the exhibits that had been submitted to the court in connection with a motion for summary judgment. The trial court denied the motion, concluding that continued restriction of public access is warranted under Superintendence Rule 45. The court also found that there was no less restrictive alternative than to completely restrict access to the exhibit. WEWS filed a timely notice of appeal of the trial court’s journal entry.

The preliminary issue is whether a non-party may seek direct appellate review if it is denied access to a case document under Rule 45. Rule 47(B) provides that “[a] person aggrieved by the failure of a court • * * to comply with the requirements of Sup. R. 44 through 4 7 may pursue an action in mandamus pursuant to Chapter 2731. of the Revised Code.” Interpreting that rule, the Ohio Supreme Court has stated that “[m]andamus is the appropriate remedy • • • to enforce the provisions of the Superintendence Rules granting public access to court records, Sup.R. 47(B).” State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, ,r 11. It also identified mandamus as the “specific remedy” for “[a] person who is denied access to court records” in Lyons. Id. at ,r 13; State ex rel. Harris v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, ,r 11 (“[M]andamus is the only remedy provided by Sup.R. 47(B).”).

In S.C. v. T.H, 9th Dist. Summit No. 29594, 2020-Ohio-2698, this Court allowed a party to the action to bring a direct appeal challenging the denial of her request for an order restricting access to certain case records. Id. at ,r 8. Unlike S. C., however, this case involves a non-party to a civil action that has been denied access to court records, as in Lyons. Upon review of the record and in accordance with the decisions of the Ohio Supreme Court, we conclude that mandamus is WEWS’s exclusive remedy for the trial court’s continued restriction of a discovery exhibit. Accordingly, WEWS’s appeal is not properly before this Court. Appeal dismissed.

As of today, the court docket does not reflect any mandamus petition having been files. So for the moment, the ploy to smear the Gibson’s via confidential Facebook records is over.

UPDATE 7-22-2021

At the time of this post, I was unaware that on July 15, 2021, the Cleveland Media entities aligned with the college had filed a Complaint for a Writ of Mandamus in the Ohio Supreme Court seeking to force the trial judge to unseal the records. It seemed strange to me at the time that they had not done so, since they are so obsessed with attacking the Gibson family, but I didn’t check the OH Supreme Court docket. That Complaint, a response to which is temporarily stayed under a standard Ohio Supreme Court referral to mediation, will be the subject of a separate post.

[Featured Image: Allyn D. Gibson. Oberlin Town Police Body Cam]

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