Gibson’s Bakery attorneys: “Defendants’ sole motive in seeking to unseal the [Facebook records of non-party Allyn D. Gibson] is to continue the smear on Plaintiffs’ name and brand. They should not be permitted to do so.”

There have been many strange motions and actions in the Gibson’s Bakery v. Oberlin College case. A post-trial motion by Oberlin College to unseal Facebook records may be one of the more strange developments, and offers a window into the bitter feelings of college officials.

Allyn D. Gibson (Allyn D.) is the grandson of plaintiff Allyn W. Gibson (“Allyn W.”) and the son of plaintiff David Gibson. Allyn D., who was not a party in the lawsuit, was the store clerk on duty who caught an Oberlin College student shoplifting.

The scuffle that ensued, involving two additional Oberlin College students, resulted in (1) the arrest (and later conviction) of the three students, and (2) protests and boycotts, and the alleged defamation of the bakery and its owners by Oberlin College and Dean of Students Meredith Raimondo.

During the case, Allyn D.’s Facebook records were subpoenaed by Oberlin College, and had to be maintained in a confidential manner under a discovery agreement. The documents were then filed under seal by Oberlin College as part of its summary judgment motion as Exhibit G. The summary judgment motion was granted in part and denied in part, with the key claims surviving for trial.

In a pre-trial ruling, the court held the Facebook records could not be used as character evidence, but the court left open that if trial testimony made the records relevant, defendants could attempt to introduce them at trial. Allyn D. never testified at the trial, and defendants never offered the Facebook records as exhibits during the trial.

To put it mildly, the case did not go the way Oberlin College hoped. There were two verdicts: $11 million compensatory damages rendered on June 7, 2019, and $33 million in punitive damages rendered on June 13, 2019, after a separate punitive damages trial. The combined $44 million was reduced by the Court under Ohio’s tort caps to just over $25 million. The Court also awarded over $6.5 million in legal fees and costs against defendants on top of the damages. Defendants were required to post a $36 million bond to secure the judgment pending appeal.

After the verdicts, there were numerous motions, all denied by the court, including a motion for a new trial and a motion for judgment notwithstanding the trial. Those motion are routine, and necessary for defendants to preserve issues for appeal.

But on August 28, 2019, Oberlin College also filed a Motion to Unseal Exhibit G (pdf.) — Allyn D.’s Facebook records:

Defendants Oberlin College and Meredith Raimondo (“Defendants”) move to unseal portions of their summary judgment reply brief in accordance with well-settled law confirming that court records should in almost all circumstances be public, especially where those records form the basis of an adjudication of the merits of a case. Defendants bring this motion now for three reasons: (1) to correct Plaintiffs’ improper designation of documents as “confidential” under the parties’ Stipulated Protective Order (“SPO”); 1 (2) to comply with Ohio’s strong presumption that court documents be made available to the public; and (3) to eliminate unnecessary burdens required by the SPO to additional court filings or proceedings. Defendants ask the Court to fix the double standard that currently exists in the public’s access to the summary judgment record. The Court previously ordered that internal Oberlin College emails, private text messages sent and received on the personal cell phones of administrators and faculty, and content from the personal Facebook accounts of Oberlin professors should be unsealed.2 In contrast, portions of Defendants’ Combined Reply Brief in Support of Their Motions for Summary Judgment (“Defendants’ Combined Reply”) remain under seal, including the entirety of EXHIBIT G to the affidavit of Cary M. Snyder (“EXHIBIT G”), which consists of materials from the Facebook account of Allyn D. Gibson (“Allyn Jr.”).3

That last point seems to be what is motivating the motion, the hope that the public playing field could be leveled if presumably embarrassing Facebook posts were released to be used as part of Oberlin College’s post-trial public relations effort.

In response to Defendants’ motion to compel-and following Plaintiffs’ muddled and incomplete production of documents in November 2018 on behalf of Allyn Jr.-the Court on February 21, 2019, ordered Plaintiffs to produce a forensic image of Allyn Jr.’s Facebook account (the “Forensic Image”). 5 The Forensic Image contains more than 300,000 files and, upon production, Plaintiffs designated the entire Forensic Image as “confidential” under the SPO because they did not have time to review its contents prior to production and they were concerned about the inclusion of material of a romantic nature.6 Defendants narrowed the content of the Forensic Image to just 35 pages that they planned to use as EXHIBIT Gin support of their Combined Reply. The documents in EXHIBIT G consist almost entirely of Allyn Jr. ‘s views-in his own words-concerning minorities, how Gibson’s Bakery treats its customers, and his awareness that the Bakery has a history—dating to at least 2012-ofbeing accused of racial profiling and discrimination. Of the 35 pages in EXHIBIT G, 34 pages consist ofFacebook messages, the functional equivalent of text messages or emails that the Court already ordered must be unsealed. The remaining page is a post from Allyn Jr. to his Facebook friends….

The attorneys for the Gibson’s focused on this apparently desire for retribution in their Opposition to the Motion to Unseal Exhibit G (pdf.):

For the following reasons, Defendants’ Motion must be denied: • First, the true purpose of Defendants’ Motion is to seek permission to facilitate an abuse of process and invasion of a non-party’s privacy. During trial, Defendants made no effort to offer the Confidential Materials, which are from a private social media account, into evidence. Unhappy with the jury’s verdict, Defendants now seek to exploit these materials obtained pursuant to a subpoena on a non-party in a further effort to harass and smear the Gibson family and brand; • Second, the Court preliminarily determined the Confidential Materials were inadmissible at trial, other than as alleged evidence regarding Plaintiffs’ reputations. But Defendants did not even attempt to introduce the Confidential Materials at trial and thereby waived any argument that these materials were admissible. Because summary judgment briefs may only rely on evidence that is admissible at trial and Defendants failed to preserve an argument that the materials were admissible at trial, Defendants could not have relied upon the Confidential Materials during summary judgment and the same should be kept under seal as inadmissible evidence; • Third, Defendants have waived their right to challenge the designation of the Confidential Materials because they waited over six (6) months since they received the documents and after the parties have fully tried this case to a Lorain County jury before filing their Motion; and • Finally, Defendants’ Motion fails to show how the balancing test in Adams v. Metallica, Inc., 143 Ohio App.3d 482, 758 N.E.2d 286 (1st Dist.2001) (which the Court adopted within its April 3, 2019 Entry and Ruling as the applicable test for determining whether to remove confidential designations) favors unsealing the Confidential Materials.

Addressing that lead point, the Gibsons’ counsel wrote:

It appears that Defendants are using their Motion as an improper collateral attack on the jury’s verdict. In essence, because Defendants are unhappy with the jury’s decision, they are seeking to unseal ADG’s private social media account, so they are able to publish these documents to the media without threat of the Court’s contempt power in an effort to continue the smear and defamation of Plaintiffs’ name and brand. Defendants’ attempted abuse of process should not be permitted. * * * Defendants’ sole motive in seeking to unseal the Confidential Materials is to continue the smear on Plaintiffs’ name and brand. They should not be permitted to do so.

The Court denied Oberlin College’s motion, focusing not on alleged bad motives, but waiver by failing to offer the documents at trial. The Court Order Denying Motion to Unseal Exhibit G (pdf.)(full embed at bottom of this post) provides in pertinent part (emphasis added):

Here, the Defendants are asking the Court, post-judgment, to unseal Exhibit G lo their March 22, 2019 Combined Reply Brief in Support of Summary Judgment. The exhibit is comprised entirely of material from non-party Allyn D. Gibson’s Facebook account that largely pre-dates the events giving rise to the above-captioned matter. As noted by the Plaintiffs, this material was the subject of one of Plaintiffs’ pre-trial motions in limine. Specifically, on May 8, 2019, the Court issued a preliminary ruling excluding the presentation of Allyn D. Gibson’s Facebook content as character evidence, but withheld ruling on the question of whether it could be introduced to reflect the reputation of Gibson’s Bakery in the community. At trial, the Defendants made no attempt to introduce these materials as evidence of the Bakery’s reputation in the community. With this procedural context and at this juncture, the Court is not persuaded by the Defendants’ arguments that it should make a post-trial order regarding materials that the Defendants opted to file under seal nearly six months ago in accordance with an agreed protective order that they drafted and stipulated to. For the foregoing reasons, the Defendants’ Motion to Unseal Exhibit G of · Defendants’ Combined Summary Judgment Reply Brief is hereby denied.

While the Court didn’t need to, and didn’t, go there, this belated post-trial attempt to embarrass a Gibson family member by releasing confidential Facebook information does reflect Oberlin College’s overall attitude towards the Gibsons. As detailed in the recent post regarding failed settlement discussions, Oberlin College since day-one has attacked and maligned the Gibsons. It’s so baked into the Oberlin College approach that the college can’t seem to shake it even after the trial.

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

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Gibson’s Bakery v. Ober… by Legal Insurrection on Scribd



