Professional Documents
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Gibson's Bakery v. Oberlin College - Plaintiffs' Opposition To Media Motion To Unseal
Gibson's Bakery v. Oberlin College - Plaintiffs' Opposition To Media Motion To Unseal
I. INTRODUCTION
After suffering three (3) years of defamatory conduct, Plaintiffs 1 and Nonparty Allyn D.
Gibson ("ADG") are again being subjected to potential embarrassment, ridicule, and defamation
by Movants 2 who are seeking to unseal inadmissible discovery papers that Defendants 3 did not
even attempt to introduce as evidence at the trial of this matter. Movants' Motion should be denied
• First; any constitutional arguments must be dismissed out of hand as Movants do not
have standing to assert those arguments;
• Second, even if the Court considers Movants' constitutional arguments (it should not),
the sealed documents sought by Movants are not entitled to constitutional protection as
they were irrelevant and not admitted as evidence in the trial of this matter;
1 "Plaintiffs" refers collectively to Gibson Bros., Inc. ("Gibson's Bakery"), David R. Gibson ("Dave Gibson"), and
Allyn W. Gibson ("Grandpa Gibson").
2
"Movants" refers collectively to WEWS-TV ("WEWS"), Advance Ohio ("Advance"), and the Ohio Coalition for
Open Government ("OCOG").
3
"Defendants" ref~rs to Oberlin College & Conservatory ("Oberlin College") and Meredith Raimondo ("Dean
Raimondo").
02485204-1 / 12000.00-0027 1
• Third, considering the factors listed in Ohio R. Sup. 45, public policy requires
continued restricted access to the sealed documents; and
• Fourth, at a minimum, the Court should hold its decision on Movants' motion in
abeyance until the appellate process for this case is completed.
II. BACKGROUND
After presiding over a nearly six (6) week trial, the Court is well-aware of the facts and
circumstances underlying this litigation, and Plaintiffs will not take the time to rehash them here.
But some attention must be paid to the circumstances surrounding the specific document sought
by Movants.
ADG is a nonparty to this case. He is not one of the Plaintiffs and was not awarded any
damages as part of the jury verdict. Defendants chose not to: (1) call him as a witness; (2) introduce
any of his deposition testimony; or (3) introduce any social media communications allegedly
attributed to his account. Any claim of tangential relevancy for this motion arises out of ADG
being served with a substantially overbroad subpoena by Defendants in 2018 and subjected to days
of deposition testimony. As part of the subpoena, ADG was ordered to provide Defendants'
counsel with a,mirror image copy of his Facebook account. (See, Feb. 21, 2019 Order).
Importantly, the Facebook account is not connected to Gibson's Bakery, Dave Gibson, or Grandpa
Gibson. Instead, it was ADG's private, personal Facebook account. Exhibit G attached to the
private Facebook messages that allegedly came from the mirror image of ADG's Facebook
account ("Exhibit G"). In a preliminary ruling on motions in limine, the Court specifically
excluded these qocuments from admission at trial to the extent Defendants sought to use them as
02485204-l / 12000.00-0027 2
character evidence for ADO. (May 8, 2019 Entry and Ruling on All Motions in Limine, pp. 1-2).
And, as the Court noted, "Defendants made no attempt to introduce these materials as evidence"
'
of any other issue during trial. (Sep. 16, 2019 Order [emphasis added]).
communications from the social media accounts of Defendant Dean of Students and Vice President
Raimondo and other high-ranking administration officers of Oberlin College, but Oberlin College
B. The Court has Already Rejected Arguments that Exhibit G Relates to·
Defendants' Purported Truth Defense.
This Court has already dealt with Defendants' false post-trial contention that Exhibit G
somehow supports Defendants' non-existent and waived truth defense to Plaintiffs' libel claim. At
page 3 of the Motion, Movants parrot that same claim: "A portion of that Facebook account which
defendants contend contains information regarding Mr. Gibson's views as to the Bakery's
reputation and its alleged racial profiling was filed under seal as Exhibit G to defendants' combined
summary judgment reply brief." However, Defendants' summary judgment reply brief used these
materials solely for the argument that Plaintiffs were public figures or limited public figures. (See
Defendants' MSJ Reply, pp. 10-12). Those issues were determined by the Court and would never
have been presented to the jury because the determination of the Plaintiffs' status is a question of
In actuality, Defendants did not present any evidence supporting their purported truth
defense at trial,,including Exhibit G. Movants' efforts present a dangerous potential for abuse of
process. When responding to subpoenas, nonparties would no longer be secure in the belief that
their private and sensitive information is protected by a Stipulated Protective Order if all such
information is released following trial (including material that was irrelevant, inadmissible and
02485204-1 / 12000.00-0027 3
not even proffered at trial!).
Movants appear to be acting under the guise of independent media outlets. But the true
It may be helpful to note the advertised nature of the business of Advance Ohio, which
offers its services for marketing in various industries, including four-year state universities, local .
community colleges, and retailers. In large text on its website, Advance Ohio claims, "Great
Further, compared to the daily media attention from other outlets, Advance Ohio, through
cleveland.com, and WEWS-TV paid very little attention to this case until after the jury issued its
verdicts in June of 2019. By Plaintiffs' count, both outlets have published approximately ten (10)
stories on this case, combined. And of those, several were only picked up by Movants from the
Associated Press. 5 With Movants having such little interest in this case while the trial was ongoing,
there is significant reason to suspect the true collaborative purpose and source of efforts to expend
resources months later to gain access to documents that were irrelevant and not admitted as
evidence at trial. Perhaps more troubling, Movants have only requested access to documents
Defendants' motions for summary judgment along with the embedded documents and deposition
excerpts were Ul)sealed by this Court (see, April 3, 2019 Entry and Ruling), numerous documents
5 See, e.g., Market awarded $44M in racism dispute with Oberlin College, News 5 Cleveland (June 13, 2019)
(https://www.news5cleveland.com/news/local-news/oh-lorain/market-awarded-44m-in-racism-dispute-with-
oberlin-college); Judge slashes Gibson's Bakery $44 million settlement, cleveland.com (June 28, 2019)
(https://www.cleveland.com/news/2019/06/judge-slashes-gibsons-bakery-44-million-settlement.html).
02485204-1 / 12000.00-0027 4
and deposition exhibits that were filed with Plaintiffs' summary judgment response brief remain
under seal.
Is there r~ason to suspect the motivation and timing of the instant motion by Movants, who
had little interest in this case while it was ongoing, seeking access to documents marked
confidential by Plaintiffs while ignoring the vast trove of Defendants' documents that remain under
seal? Could the answer to that question be that there are substantial connections between
Defendants and Movants? Indeed, Defendants' lead attorney, Ron Holman, II, was a television
legal analyst for Movant WEWS-TV for more than ten (1 OJ years:
(Ex. 1, p. 1). 6 With this convenient connection, and with the Movants seeking only Exhibit Gout
of all the sealed filings, it appears that Defendants are attempting to leverage nonparty media
contacts to circumvent the Court's previous orders for the purpose of doxing7 ADG and further
Movants want access to private, personal, and unauthenticated social media messages that
were irrelevant and inadmissible at trial. Neither the First Amendment, the Ohio constitution, nor
Ohio R. Sup. 45 support such blatant invasions of privacy. Thus, Movants' Motion must be denied.
A. Movants do not have Standing to Seek Access to the Exhibit G Under the
First Amendment or Ohio Constitution.
At the outset, Plaintiffs submit that the Court should deny Movants' arguments under
6 A true and accurate copy of the attorney bio page for Attorney Ron Holman, II is included herein as Exhibit 1.
7
"Doxing" is a slang term meaning "to publicly identify or publish private information about (someone) especially as
a fonn of punishment or revenge" as defined by Merriam-Webster. https://www.merriam-webster.com/
dictionary/dox
02485204-1 / 12000.00-0027 5
federal and state constitutional law because Movants lack standing to raise those arguments in their
Motion.
Ohio R. Sup. 45(F)(l) provides standing to any person to seek access to sealed documents
under the procedures and factors outlined by the Ohio Rules of Superintendence. But, Rule
45(F)(l) does not grant standing to nonparties to assert state or federal constitutional challenges
to a trial court d,ecision restricting access to case documents. Sup.R. 45(F)(l) [emphasis added]
("Any person, by written motion to the court, may request access to a case document or information
in a case document that has been granted restricted access pursuant to division (E) of this rule.").
Movants are not parties to this case and have never moved to intervene in this case. As a result,
the Movants lack standing to challenge the parties' stipulated protective order, including the
propriety of designations made thereunder, under the Ohio and federal constitution. Additionally,
Movants are not seeking some sort of extraordinary relief, such as mandamus. As a result, the
Court should deny the Motion as it relates to federal and state constitutional law because Movants
Under both Ohio and federal law, discovery materials have "historically never been open
to the public." Adams v. Metallica, Inc., 143 Ohio App.3d 482, 487, 758 N.E.2d 286 (1st
Dist.2001); Speece v. Speece, 11th Dist. Geauga No. 2016-G-0100, 2017-Ohio-7950, ,r 25.
While discussing discovery within the criminal context, the Ohio Supreme Court
specifically held that discovery materials should not be subject to public access: "We agree with
the foregoing that discovery should be encouraged and that public disclosure would have a chilling
02485204-1 I 12000.00-0027 6
effect on the parties's [sic] search for and exchange of information pursuant to the discovery rules."
State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 354, 1997-Ohio-271, 673·N.E.2d 1360
(1997). The Lowe Court, relying on First Amendment precedent from the United States Supreme
Court, further expounded on the dangers to be posed by presuming discovery materials are
The Supreme Court noted that the danger of abusing the liberal pretrial discovery
rules by publicly releasing infonnation that is irrelevant and could be damaging to
reputation and privacy is great and thus the court held that the governmental interest
in preventing such abuse is substantial. *** The court also noted that pretrial
discovery is not a public component of a trial and any controls on the discovery
process do not prevent the public dissemination of information gathered through
means other than discovery. *** Accordingly the court held that the limitation on
" 'First Amendment freedoms [is] no greater than is necessary or essential to the
protection of the particular governmental interest involved,' " *** and thus the
protective order did not violate the First Amendment. [Internal citations omitted.].
Id. citing Seattle Times Co . v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). 8
The reasoning underlying Lowe is fully applicable to civil litigation. Adams, 143 Ohio
App.3d at 489 ("-While Lowe concerned only discovery in a criminal case, the logic of Lowe would
appear to apply with equal, if not more, force to civil discovery in a private lawsuit. Discovery
exchanged by a prosecutor in a criminal case is clearly a governmental activity to which the Act
would otherwise appear to apply, whereas discovery in a private lawsuit does not involve any
Additionally, Ohio does not provide an unqualified right to access those materials merely
because they are filed with the court. Id. at 490. ("In sum, there appears to be no clear, unqualified
public right to inspect pretrial discovery materials, even when they are filed with the trial court,
under either the First Amendment, the common law, the "open courts" provision of the Ohio
8 Plaintiffs discuss Seattle Times's applicability to the Motion in greater detail below. See, infra Sec. III(B)(2)(a).
02485204-1 / 12000.00-0027 7
Here, there must be no mistake - Exhibit G is nothing more than discovery materials
attached to one brief but were not admitted or even proffered as evidence during trial. They consist
of a few messag:es and/or postings from the private Facebook account of a nonparty. Attaching a
document to a summary judgment motion does not, in and of itself, transform the document into
admissible evidence. In fact, those documents are subject to the same standards of admissibility as
trial evidence. Knoth v. Prime Time Marketing Mgt., Inc., 2nd Dist. Montgomery No. 20021, 2004-
opposition to a motion for summary judgment must also be admissible at trial, albeit in a different
I
form, in order for the court to rely on it."); Buckeye Lake Fire bells v. Leindecker, 5th Dist. Licking
on summary judgment must be disregarded); Carter v. Gerbec, 9th Dist. Summit No. 27712, 2016-
judgment context).
Defendants cannot meet this standard on the facts at hand, as Defendants, the party
attempting to meet the statement-by-statement employee/agent hearsay rule, bear the burden to
demonstrate "that the statement concerned a matter within the scope of the employment of the
declarant. ... " Gerry v. Saal.field Square Properties, 9th Dist.Summit No. 19172, 1999 WL 66204,
9
Gerry, *2. "Gerry bore the burden of demonstrating that the statement concerned a matter within the scope of the
employment of the declarant, "Little Steve." Brock v. Gen. Elec. Co. (Jan. 30, 1998), Hamilton App. No. C-970042,
unreported, 1998 Ohio App. LEXIS 251, at *12-*13. The only evidence in the record is that "Little Steve" was a
maintenance man employed by Saalfield. There is no evidence that the maintenance of the freight elevator was within
the scope of employment of"Little Steve." Absent such evidence, the statement is inadmissible hearsay. See Shumway
v. Semvay Foodtown, Inc. (Feb. 24, 1998), Crawford App. No. 3-97-17, unreported, 1998 Ohio App. LEXIS 1131, at
*6-*7 (statements ~f supermarket cashier as to whether store's freezer had recently experienced problems not within
Evid.R. 80l[D][2][d] absent evidence that freezer maintenance was within scope of cashier's employment); Brock,
supra, at *13 (statements of supervisor as to cause for employee's termination not within Evid.R. 801 [D][2][ d] absent
evidence that supervisor had any input into decision to terminate employee). See, also, Hill v. Spiegel, Inc. (C.A.6
1983), 708 F.2d 233, 237 (statements by "managers" not within Fed.R.Evid. 80l(d][2][D] where no evidence that
02485204-1 / 12000.00-0027 8
As discussed below, see infra Sec. III(B)(2), the attachment of discovery materials to a
motion for summary judgment cannot act as some sort of magic wand to create a constitutional
right of access.
Based on the foregoing, Ohio law does not give Movants a presumptive right to access
Exhibit G.
2. There is no consensus under federal law that any and all materials
attached to summary judgment briefs are immediately subject to a
presumption of access.
Contrary to Movants' claim, there is not a consensus among the federal courts that a right
for public acces.s to a document is created merely by attaching the document to a motion for
summary judgment.
In Seattle Times Co. v. Rhinehart, the United States Supreme Court reviewed a defamation
lawsuit wherein the lower court restricted the defendants-newspapers ability to disseminate
materials it obtained during discovery. 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).
Specifically, the lower court's order restricted the dissemination of the plaintiffs' financial
information, the names and addresses of numerous nonparties, and various contributors and clients
Discussing discovery materials, generally, the Court first acknowledged that a party gains
discovery materials solely through the civil justice system's discovery processes. Id. at 32. Because
of this, the First Amendment does not protect a litigant's right to obtain or otherwise access
materials for pui;poses of litigating its case. Id., citing Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271,
02485204-1 / 12000.00-0027 9
14 L.Ed.2d 179 (1965). Given the long history of keeping discovery materials away from public
view, discovery materials which are obtained by a party but which are not yet admitted as
evidence in the trial are not subject to public access. Id. at 33 [emphasis added] ("Much of the
information that surfaces during pretrial discovery may be unrelated, or only tangentially related,
to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted,
To permit the public to obtain discovery materials merely because they are filed is indeed
a slippery slope:
Id. at 35-36. As a result, the trial court does not lose the ability to restrict public access merely
because a discovery document was filed in the case. Id. at fn. 19 ("Thus, to the extent that
courthouse records could serve as a source of public information, access to that source customarily
is subject to the control of the trial court."). In fact, the threshold issue is whether the materials
In re Reporters Committee for Freedom of the Press, a libel case, discussed at length
whether documents attached to a dispositive motion were presumptively accessible to the public.
773 F.2d 1325, 1326 (D.C.Cir.1985). In In re Reporters Committee, like this case, the appellants
02485204-1 / 12000.00-0027 10
were not parties to the lawsuit but were members of the press who sought access to ce1iain exhibits
filed under seal in the case, including those attached to a summary judgment motion. Id. IO
The court first determined that there has never been a practice of permitting the public to
access prejudgment records, i.e. those records submitted to the court before a final judgment is
rendered:
Because -of their sparseness, the authorities discussed above are perhaps Weak
support for a general common law rule of nonaccess to pre-judgment records in
private civil cases. But when laid beside our inability to find any historical
authority, holding or dictum, to the contrary, they are more than enough to rule out
a general tradition of access to such records.
Id. at 1335-36.
Most importantly, the Court held that the First Amendment does not confer onto the public
the right to access inadmissible materials merely because they are attached to motions before the
court:
It is true_ that in the present case the reporters were only seeking those pretrial
materials that could have been considered by the court in its disposition of the Rule
56(c) motion-what they call the "summary judgment record." Chief Justice
Burger's analysis I I does not make any such distinction, though it would be an
obvious one to make if it were relevant. We are certainly unaware of any tradition
of public access (pre- or post-judgment) to all documents consulted (or, as
appellants would have it, consultable) by a court in ruling on pre-trial motions.
Ifsuch a tradition existed, public files would presumably be filled with complaints
stricken -as scurrilous and with proffered evidence ruled inadmissible. The
passage of Seattle Times which cites Chief Justice Burger's analysis with
approval evidently considers the admission of evidence the touchstone of a First
Amendment right to public access: "Therefore, restraints placed on discovered, but
not yet admitted, information are not a restriction on a traditionally public source
of information." 104 S.Ct. at 2208 (emphasis added). Even if one were to expand
this perception to include all admissible evidence, it would still lead to the
conclusion that material placed before the court in connection with summary
10 Although the district court had eventually unsealed all documents and made the same available to the public, the
Court of Appeals determined that appellants' appeal, in part, was not moot under the "capable of repetition, yet
evading review doctrine." 773 F.2d at 1328-30.
11 Referring to ChiefJustice Burger's concurring opinion in Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct.
2898, 61 L.Ed.2d'608 (1979).
02485204-l / 12000.00-0027 11
judgment motions is not constitutionally required to be open to the public-
unless we are to subject trial courts to the constitutional necessity ofruling, either
pre-trial or post-trial, on the admissibility of voluminous material that is filed,
and perl~aps even referred to in the summa,y judgment motion, but not sought to
be introduced.
In this case, Exhibit G was not and is not admissible evidence. (See, Plaintiffs' Sep. 11,
2019 Resp. in Opp. to Defs' Motion to Unseal Exhibit G of Defs' Combined Summary Judgment
Reply Brief, pp. 4-7). As a result, the First Amendment does not provide Movants' with a
Unlike the on-point federal precedent cited by Plaintiffs, Movants' federal precedent is
distinguishable.
Movants. cite Richmond Newspapers v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 65
L.Ed.2d 973 (1980) at several points in their motion. However, it is important to note that the
United States Supreme Court has not extended the right of access discussed and conferred in that
decision outside of criminal proceeding. See, United States v. Miami Univ., 91 F.Supp.2d 1132,
1156 (S.D.Ohio.2000), affd, 294 F.3d 797 (6th Cir.2002) ("However, the Supreme Court has not
extended this right of access outside the realm of criminal trials and related criminal
proceedings."); ,Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 611, 102 S.Ct. 2613, 73
L.Ed.2d 248 (1982) (O'Connor, J., concurring) (stating that "neither Richmond Newspapers nor
the Comt's decis.ion today carry any implications outside the context of criminal trials.").
district court sealing the entire record of the case, as opposed to a single inadmissible exhibit
02485204-1 / 12000.00-0027 12
attached to a single summary judgment brief. 710 F.2d 1165, 1177-81 (6th Cir.1983). Moreover,
the concerns about the consequences caused by restricting the public's access to a trial expressed
by the Brown & Williamson court are not present here. For instance, the court was concerned with
the possibility that witnesses may be more willing to perjure themselves if the public is not able to
attend the trial. Id. at 1178. No such concerns are present before this Court because the parties had
a six-week long jury trial that was open to the public, the Defendants never attempted to introduce
this document, and the relevant person (ADG) was not called as a witness at trial.
The court was also concerned with the "community catharsis" which comes from the public
watching and participating in the trial. Id. at 1179. Once again, in this case the public, including
Movants, was permitted to watch and participate in the open trial. Indeed, reporters from two
media outlets were present for nearly every day of trial. Movants, on the other hand, ignored this
case until after the jury's verdicts during the compensatory phase of trial. Moreover, the Brown
& Williamson court was concerned with the possibility that "secrecy insulates the participants,
masking impropriety, obscuring incompetence, and concealing corruption." Id. Movants cannot
reasonably claim that keeping a single exhibit from a summary judgment brief filed months before
trial somehow lllasks alleged impropriety, incompetence, or corruption. Additionally, keeping this
single exhibit se_aled would not insulant a participant in the litigation because ADG is not a party
Finally, Exhibit G actually meets one of the exceptions to access discussed by the Brown
& Williamson court, specifically the protection of "privacy rights of participants or third
parties ... " Id. To permit Exhibit G, which consists solely of private social media information from
a nonparty, to br unsealed would serve no purpose other than to harass and potentially defame a
nonparty. It mos_t certainly would invade ADG's protected privacy rights. As a result, Brown &
02485204-l / 12000.00-0027 13
Williamson does not support Movants' position.
Rudd Equip. Co., Inc. v. John Deere Construction & Forestry Co. is distinguishable
because the party alleging potential harm from the unsealing ofrecords was the plaintiff. 834 F.3d
589, 594 (6th Cir.2016). In our case, Exhibit G consists solely of materials from a nonparty.
Moreover, much, like Brown & Williamson, the court originally sealed the entire case, as opposed
to certain documents within the record. Id. at 591. And perhaps most importantly, the plaintiff
failed to "point to any trade secret, or privacy right of third parties, that a seal might legitimately
protect." Id. at 594 (emphasis added). As detailed above, the privacy rights of a third-party are
In re Knoxville News-Sentinel Co., Inc. is likewise distinguishable because the district court
had sealed the entire record. 723 F.2d 470, 471-72 (6th Cir.1983). Eventually, the record was
unsealed, with the exception of two exhibits which contained information about various loans
between a bank _and numerous private citizens, both of which were ordered to be removed from
the court's records and separately maintained for the appellate court's potential review. Id.
Ultimately, the appellate court upheld the district court's restriction on access to the two exhibits
because those exhibits contained private information for nonparties. It relied on the fact that the
records involved nonparties, thereby creating a compelling government interest which justifies
sealing the records. Id. ("Unlike the protected party in Brown & Williamson, who sought to deny
public access because of the adverse business effect disclosure might cause, the individuals
protected by the closure order here are third parties who were not responsible for the initiation of
the underlying litigation. These individuals possessed a justifiable expectation of privacy that their
names and financial records not be revealed to the public."). The interests of third-parties justify
02485204-1 I 12000.00-0027 14
San Jose Mercury News, Inc. v. U.S. Dist. Court--Northern Dist. (San Jose) is
distinguishable because it specifically declined to address the First Amendment and instead relied
solely upon federal common law and the Federal Rules of Civil Procedure. 187 F.3d 1096, 1102
(9th Cir.1999) ("We leave for another day the question of whether the First Amendment also
bestows on the public a prejudgment right of access to civil court records."). As discussed above,
The holding and analysis in Rushford v. New Yorker Magazine, Inc. ignores the United
States Supreme Court's decision in Seattle Times and creates an absurd standard, wherein a party
could merely file all discovery materials, regardless of their admissibility, and then subject the
opposing party and nonparties to public scrutiny. The Rushford court claimed that "[o]nce the
documents are made part of a dispositive motion, such as a summary judgment motion" they are
no longer discovery materials and become accessible by the public. 846 F.2d 249, 252-54 (4th
Cir.1988). As di:scussed above, such a standard is precluded under the Seattle Times decision and
repudiated by the thorough analysis in In re Reporters Committee for Freedom of the Press.
Shane Group, Inc. v. Blue Cross Blue Shield of Michigan is distinguishable because it
involves a class action which affected more than 60% of the Michigan cmmnercial health insurance
market. 825 F.3d 299 (6th Cir.2016). The litigation ultimately settled, but numerous members of
the class objected to the proposed settlement, citing, in part, the heavy redactions to the documents_
in the record. Id.; at 304. The district court had "sealed most of the parties' substantive filings from
public view, including nearly 200 exhibits and an expert report upon which the parties based a
settlement agreement that would determine the rights of those millions of citizens." Id. at 302.
Ultimately, the appellate court found the district court had not undertaken a vigorous
enough review qefore sealing the vast majority of the record. The court relied, in part, on the fact
02485204-1 I 12000.00-0027 15
that "[a]s a practical matter, therefore, both the general public and the class were able to access
only fragmentaty information about the conduct giving rise to this litigation, and next to nothing
about the bases of the settlement itself." Id. at 306. In our case, the public's rights were not
adjudicated in this litigation and the public was not restricted from seeing most of the record.
Additionally, the Shane Group court reaffinned the importance of protecting the private
information of nonparties: "Finally, the point about third parties is often one to take seriously; 'the
privacy interests of innocent third parties should weigh heavily in a court's balancing equation."'
Id. at 308, quoting United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995). Exhibit G consists of
infonnation from the private social media account of a nonparty, thereby weighing heavily in favor
The lack of public access and participation are the overriding concerns and bases for
analysis in the ,cases cited by Defendants. See e.g., Brown & Williamson, 710 F.2d at 1178
("Without access to the proceedings, the public cannot analyze and critique the reasoning of the
court. The remedies or penalties imposed by the court will be more readily accepted, or corrected
if erroneous, if the public has an opportunity to review the facts presented to the court."). As the
Ohio Supreme Court acknowledged, the purposes served by open court proceedings is "(1)
ensuring that proceedings are conducted fairly, (2) discouraging perjury, misconduct of
participants, and. unbiased decisions, (3) providing a controlled outlet for community hostility and
emotion, (4) securing public confidence in a trial's results through the appearance of fairness, and
(5) inspiring confidence in judicial proceedings through education on the methods of government
and judicial remedies." State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146,
02485204-1 / 12000.00-0027 16
2002-Ohio-7117, 781 N.E.2d 180, ,r 43 (2002), citing Richmond Newspapers, 448 U.S. at 580.
But these are not concerns in this case. The vast majority of the records from this case,
including the entire record from the six-week trial, are available for public consumption.
Newspaper and other reporters and members of the public were present for nearly every day of
trial. Indeed, the Court even permitted camera crews in the courtroom. This is not a scenario
where the Court has sealed a large portion of the record. Instead, Movants' complain and seek
access to a few pages of discovery materials that were attached to Defendants' summary judgment
reply brief and ultimately found to be inadmissible at trial. Frankly, Movants' admission that this
case has been extensively covered by numerous media outlets cuts against any claim that the public
was not adequately kept abreast of the proceedings merely because a single summary judgment
C. Movants are not Entitled to Access Exhibit G Under Ohio R. Sup. 45.
Motion, they assume, without analysis, that Plaintiffs or ADG bear the burden on restricting access
to Exhibit G. Without citing a single relevant authority, Movants claim that records may only be
sealed if a court makes "specific, on-the-record factual findings" that access should be restricted.
That is not the case. In fact, Sup.R. 45(E)(l) specifically leaves the decision to hold a hearing in
the sound discretion of the trial court. See, Sup.R. 45(E)(l) [emphasis added] ("The court may
schedule a hearing").
The Rules of Superintendence also clearly state that when documents have already been
ordered sealed, the party seeking access bears the burden to show that the restricted documents
02485204-1 / 12000.00-0027 17
A court may permit public access to a case document or information in a case
document if it finds by clear and convincing evidence that the presumption of
allowing public access is no longer outweighed by a higher interest. When making
this determination, the court shall consider whether the original reason for the
restriction of public access to the case document or information in the case
document pursuant to division (E) of this rule no longer exists or is no longer
applicable and whether any new circumstances, as set forth in that division, have
arisen which would require the restriction of public access.
Sup.R. 45(F)(2) .[emphasis added]. By order and entry dated September 16, 2019, the Court held
that Exhibit G must remain restricted. (See, Sep. 16, 2019 Order, p. 2 "Defendants' Motion to
Thus, Movants bear the burden to show by clear and convincing evidence that the public
Regardl~ss of who carries the burden of persuasion, Exhibit G should not be available to
the public. Pursuant to Sup.R. 45(E)(2), documents should be sealed if by clear and convincing
evidence, the presumption of public access is outweighed by a higher interest. Courts consider
(b) Whether any state, federal, or common law exempts the document or
information from public access; [and]
(c) Whether factors that support restriction of public access exist, including risk of
injury to persons, individual privacy rights and interests, proprietary business
information, public safety, and fairness of the adjudicatory process.
Sup.R. 45(E)(2)(a)-(c). Factors (a) and (c) weigh heavily in favor of restricting public access to
Exhibit G.
02485204-1 / 12000.00-0027
First, one of the primary policy reasons behind access to court records is that "[w]hen a
litigant brings his or her grievance before a court, that person must recognize that our system
generally demands the record of its resolution to be available for review." Wayt v. Wayt, 8th Dist.
Cuyahoga No. 107312, 2019-Ohio-3758, 'if 67. This policy ·makes sense for relevant documents
exchanged between parties to litigation that are later admitted as evidence at trial. It does not apply
to Exhibit G.
ADG is a nonparty to this litigation. He was served with a subpoena by Defendants and
forced to comply under penalty of contempt. See, Civ.R. 45(E) ("Failure by any person ... to obey
a subpoena served upon that person may be deemed a contempt of the court from which the
subpoena issued."). Thus, ADG was forced, against his will, to produce private and personal social
media messages. Unquestionably, as a nonparty to this litigation, ADG has a substantial privacy
interest in Exhibit G. See, e.g. Lawson v. Love's Travel Stops & Country Stores, Inc., M.D. Penn.
No. 1:17-cv-1266, 2019 WL 5622453 at *6 (Oct. 31, 2019) [emphasis added] ("social media is at
once both ubiquitous and often intensely personal, with persons sharing through social media, and
storing on electronic media, the most intimate personal details on a host of matters"). 12
based solely on the fact that an adversary 13 attached the private documents as an exhibit to a
summary judgment motion. Considering the extremely broad scope of civil discovery, 14 under
12
Indeed, the U.S. Supreme Court has recognized a strong privacy interest not only in social media but in all forms of
electronic media storage and communication. See, Riley v. California, 573 U.S. 373, 134 S.Ct. 2473 (2014)
(substantially restricting warrantless searches of smm1phones due to the fact that "inany of the more than 90% of
American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives -
from the mundane to the intimate.").
13
While ADG was.not party to this litigation, Defendants spent the entire pre-trial portion of the case attempting to
smear and demonize ADG. (See, Def. First. Am. Answer, pp. 1-2).
14
While Exhibit G was produced in response to a subpoena, the'" scope of discovery under a subpoena is the same as
the scope of discovery under Rule 26."' Tcyk, LLC v. Does, No. 2:13-cv-688, 2013 WL 12130354 at *3 (SD. Ohio
02485204-1 / 12000.00-0027 19
such a rule, there would be no limit to the invasive and public airing of private information.
The scope of discovery is much broader than the scope of admissible evidence. Civil
litigation creates an upside-down funnel effect. Discovery begins at the top of the funnel and makes
up the majority of the funnel because the scope of discovery is extremely broad. See, Civ.R.
26(B)(l ). 15 The bottom of the funnel and the smallest portion of the funnel is the scope of trial
evidence, which requires all evidence to meet numerous hurdles for admissibility, including
hearsay and relevancy. The point here is that parties receive significant portions of discovery
materials which ultimately are inadmissible at trial. And the reason most civil cases do not take
decades to complete is that discovery is intended to be agreeable and reciprocal, i.e. a voluntary
free flow of responsive information without the need for constant court intervention. See, 1994
Staff Notes to Civ.R. 17 ("The purpose of the amendment is to endorse and enforce the view that,
in general, discovery is self-regulating and should require court intervention only as a last resort.").
Accepting Movants' position that all discovery materials filed with the court are thereby
accessible by the public undoes the current structure of discovery. Parties and nonparties would
need to decide whether to: (1) produce materials during discovery and thereby risk the public's
access merely because the other party may file the materials in court; or (2) file for protective
orders at every turn. This would create a chilling effect on discovery by causing parties to not
produce responsive materials and would grind the courts' dockets to a halt by exponentially
Nov. 25, 2013), quoting Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011). While
not limitless, the scope of discovery is extremely broad. See, Conti v. Am. Axle & Mfg., Inc., 326 F. App'x 900,
904 (6th Cir. 2009) ("[T]he scope of discovery under the Federal Rules of Civil Procedure is traditionally quite
broad, [and] the limits set forth in Fed. R. Civ. P. 26 must be construed broadly to encompass any matter that bears
on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.").
15
Civ.R. 26(B)(l) ("Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action ... It is not ground for objection that the information sought will be
inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible
evidence.").
02485204-l / 12000.00-0027 20
increasing the number of discovery motions.
This case provides a prime example for why Movants' interpretation of federal and Ohio
law is incorrect and potentially dangerous. IfMovant's overreach were the rule, it would certainly
have given ADG the strong incentive to be an obstructionist because there would have been a
substantial risk that his private materials (which were ultimately inadmissible at trial) would be
disseminated to the world and splashed across the media. This is not and should not be the rule in
Ohio. This is particularly true where there are no restrictions on the documents a litigant may
include in summary judgment briefing. And without question, the Movants have every intention
Second, and relatedly, Exhibit G has absolutely no relevance to the issues in this case. This
has been conclusively decided not only by the Comt's order restricting the presentation of
character evidence at trial, 16 but, more importantly, by the fact that Defendants did not attempt to
introduce Exhibit G at trial and did not even call ADG as a witness to testify at trial. Thus,
granting Movants' request would inevitably lead to the public dissemination of not only private
summary judgment reply brief. At page 3 of their Motion, Movants parrot back a false claim by
Defendants in post-trial briefing that Exhibit G contains reputational evidence related to Gibson's
Bakery. This is a false narrative. In fact, Defendants' own summary judgment reply brief used
these materials solely for the argument that Plaintiffs were public figures or limited public figures.
(See Defendants' MSJ Reply, pp. 10-12). Defendants had the option to attempt to introduce
Exhibit G during trial as reputational evidence, and they chose not to do so.
16
(See, May 8, 2019 Entry and Ruling on All Motions in Limine, pp. 1-2).
02485204-l / 12000.00-0027 21
Third, there are strong implications that Movants' Motion is nothing more that a backdoor
attempt by Defendants to continue the smear campaign against Plaintiffs and dox ADG. On
September 16, 2019, this Court denied Defendants' Motion to Unseal the same exact ma,terials:
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.
(Sep. 16, 2019 Order, p. 2). While the current motion was not filed by Defendants, there are
substantial connections between Movants and Defendants' counsel, including the fact that
Defendants' lead counsel, Ron Holman, II, was a television legal analyst for Movant WEWS-TV
for more than ten (10) years. (See, Ex. 1, p. 1). Thus, it appears that Defendants are attempting
to use nonparties to this litigation to circumvent the Court's orders. They should not be permitted
to do so.
Rule 45(E)(2)(c) asks Courts to consider whether factors other than public policy favor
restricted access, including "risk of injury to persons, individual privacy rights and interests,
proprietary business information, public safety, and fairness of the adjudicatory process." Several
First- risk of injury to persons. As confirmed by the deposition and trial testimony, the
entire Gibson family were subjected to significant threats of violence during and after the
defamatory protests in November of 2016. ADO specifically was the victim of vicious threats of
02485204-1 / 12000.00-0027 22
harm and actual physical injury. During his deposition, ADG testified that after the protest, he
16 A. Yes.
(A. D. Gibson Dep. Vol. I, p. 43). In addition to verbal threats, ADG was assaulted behind
And ADG was not the only person subject to assaults during and after the protests.
Numerous other individuals were subjected to threats of violence, damaged property, and actual
physical injury: ·
• During the protests, the Oberlin Police Department had to escort then 89-year-old
Grandpa Gibson home because he was receiving death threats (Ptl. Shoemaker Dep.,
p. 30'-32);
• Gibson's Bakery employee Constance Relun's tires were slashed in the parking lot
behind Gibson's Bakery (May 16, 2019 Tr. Trans., p. 112);
• Gibson's Bakery head baker Shane Cheney's car tires were punctured while it was
parked in the Gibson's Bakery parking lot (May 15, 2019 Tr. Trans., pp. 105-06) and
• Worst of all, in the middle of the night six months after the protests, individuals
pounded on Grandpa Gibson's front door and, after he fell and broke his neck, left him
lying in the doorway of his apartment with a life altering injury (May 16, 2019 Tr.
Trans., pp. 29-33).
02485204-1 / 12000.00-0027 23
'The protests and defamation of Plaintiffs created a substantial risk of injury and property
damage not only to the Gibson family but also to individuals associated with Gibson's Bakery.
Movants' attempt to publicly release ADG's private social media messages and to continue the
ADG has a strong privacy interest in restricting public access to his private, personal social media
messages. See, supra Sec. III(D)(2)(a). Particularly where the documents to be publicly released
Third- fairness of the adjudicat01y process. The irrelevance of Exhibit G also calls into
question Movants' motive. Because Exhibit G had no relevance at trial, what is the point in
attempting the public disclosure of the documents months after the trial concluded? The only
logical conclusion is that Movants, likely working in concert with Defendants, see supra Sec.
III(D)(2)(a), are ,attempting to continue the defamation of Plaintiffs during the appellate process to
At a minimum, should the Court decide not to deny Movants' Motion outright, it should
hold its decision in abeyance until the conclusion of the appellate process.
Clearly, Movants' request for the release of Exhibit G is not time sensitive because if it
was, they would not have waited nearly seven (7) months after Exhibit G was presented to the
Court to file their Motion. The appellate process in this case is well under way. The Lorain County
Clerk of Courts recently submitted the record to the Ninth District Court of Appeals and briefing
will begin in the very near future. To avoid any potential prejudice and continued defamation of
02485204-1 I 12000.00-0027 24
the Plaintiffs, it makes sense to withhold ruling on this issue until after the completion of the
appeal.
IV. CONCLUSION
Therefore, for the foregoing reasons, Plaintiffs and nonparty ADG respectfully request that
this Court deny Movants' motion in its entirety or, in the alternative, request that this Court
withhold ruling on Movants' Motion until after the completion of the appellate process.
TZANGASjPLAKASjMANNOSjLTD
~~IA)~
qee E. Plakas (0008628)
Brandon W. McHugh (0096348)
Jeananne M. Wickham (0097838)
220 Market Avenue South
Eighth Floor
Canton, Ohio 44702
Telephone: (330) 455-6112
Facsimile: (330) 455-2108
Email: [email protected]
[email protected]
jwickham@lawlion. com
-and-
02485204-1 / 12000.00-0027 25
[email protected]
-and- ·
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JAMES N~ TAYLOR CO., L.P.A.
02485204-1 I 12000.00-0027 26
PROOF OF SERVICE
A copy of ~he foregoing was served on December 2, 2019, pursuant to Civ.R. 5(B)(2)(f)
/'
JAMW_,,_;_ i J ~ / )) /
02485204-1 / 12000.00-0027 27
PARTNER/ CLEVELAND
E: [email protected]
T (216) 706-3829
F: (216) 241-3707
Practie!":[}
Ron is a business litigator and partner at Taft who defends litigation Class Action, Derivative and
and class actions, including matters involving commercial disputes, Multi-Party Litigation
unfair and deceptive consumer sales practices, fraud, violations of Commercial Litigation
statutory law, employment law and workers' compensation issues. Employment Law
Labor and Employment Litigation
Ron provides customized legal services throughout Ohio and the
Midwest to his national, state, and local clients. In his class action work, Educ.at1on
Ron develops and executes successful defense strategies that are Columbia Law School (1986)
tailored to the needs of clients and their in-house counsel. Because of Dartmouth College (1982)
his track record, corporate clients have retained Ron to protect their
Admi55lOnJ>
interests in class actions involving hundreds of millions of dollars of State - Ohio
potential exposure. He also has significant experience in a wide range Federal - Northern District of Ohio
of other commercial controversies, including those generating Federal - 6th Circuit Court of
significant media exposure or threatening long-term reputational harm. Appeals
Federal - Southern District of Ohio
Ron's passion for solving clients' problems makes him an invaluable
Federal - Eastern District of
business partner. He views each engagement with an eye toward Kentucky
achieving the client's business objectives expeditiously and
cost-effectively. Ron also serves as a trusted advisor to his clients in
evaluating and minimizing risk, and views successful client
representation as a business partnership.
Ron has represented clients before state and federal courts, Ohio
appellate courts, the Supreme Court of Ohio, and the United States
Court of Appeals for the Sixth Circuit, among other courts.
Outside of his practice, Ron has been appointed by the Chief Judge of
the Northern District of Ohio to the federal court's Civil Justice Reform
Act Advisory Group and Magistrate Selection Panel. Ron served on
the transition committees for City of Cleveland Mayors Jane Campbell
and Frank Jackson. He also has served as board chair for numerous
nonprofit agencies. Ron served on the board of directors for a
financial institution for 10 years. For more than a decade, he appeared
as a legal analyst and commentator on News Channel 5 -WEWS-TV
Taft/ ;
~ .·..
PLAINTIFPS
EXHIBIT
-~~I.·NO. ·I
(the Cleveland ABC news affiliate).
• Obtained summary judgment of all class claims in a consumer class action (challenging discount
advertising) for one of the nation's largest retailers, which led Plaintiff to voluntarily dismiss the action for
a nominal settlement.
Successfully defended state turnpike commission in $800 million dispute challenging the federal and
state constitutionality of toll increases, leading to a dismissal of all state and federal claims.
• Obtained the dismissal of all class claims in a consumer class action challenging a national TV retailer's
"Buy One Get One Free" advertising, including those involving violation of a consumer protection statute,
fraud, and unjust enrichment.
• Secured dismissals of three class actions challenging different workers' compensation practices of state
agency, all of which were affirmed by the Supreme Court of Ohio.
• Successfully petitioned the Sixth Circuit Court of Appeals to reverse District Court's ruling on proper
standard to apply in calculating damages for purposes of removal under the Class Action Fairness Act.
• Procured the dismissal of 15 claims for a gaming client in a suit alleging claims for breach of contract,
libel, slander, and constitutional violations.
• Obtained summary judgment for a national client and its top executives in a gender and age
discrimination dispute, which was affirmed on appeal.
• Demanded and secured voluntary dismissal (with prejudice) of an employment action after taking
Plaintiffs deposition.
• Procured the voluntary dismissal (with prejudice) of one of the world's largest food and beverage
companies and all Defendants in a premises liability action after deposing Plaintiff.
• Successfully settled a class action representing one of the nation's leading providers of eye care
services, after obtaining dismissals of multiple claims (including those for class relief).
• Obtained summary judgment of all claims (including age, race and national origin discrimination, and
retaliation) in favor of a university, which was affirmed by the Sixth Circuit Court of Appeals.
• Secured a dismissal of a collective action and class action under the Fair Labor Standards Act for one of
the nation's largest luxury vehicle dealerships.
Professional AffiHatlomi
Taft/
• Ohio State Bar Association
Member
• Nisi Prius
Member
Community Involvement
• Centers for Families and Children
Former President
• Sigma Pi Phi
Member
Taft/