IN THE COMMON PLEAS COURT OF LORAIN COUNTY, OHIO

GIBSON BROS., INC., et al. CASE NO.: 17 CV 193761

Plaintiffs, JUDGE JOHN R. MIRALDI

-vs-
MOTION TO QUASH SUBPOENA AND/OR
OBERLIN COLLEGE aka OBERLIN FOR PROTECTIVE ORDER OF JASON
COLLEGE AND CONVERVATORY, et al. HAWK AND OBERLIN NEWS TRIBUNE
WITH REQUEST FOR AN ORAL HEARING
Defendant.

Now comes Jason Hawk and Oberlin News Tribune, a non-party witness, by and through the

undersigned counsel, and pursuant to Civ.R. 26(C) and 45(C)(3)(b) move this Honorable Court to quash

the subpoena issued to Jason Hawk and/or for a protective order limiting the scope of any further

examination of Jason Hawk by the parties. Defendants' have engaged in pervasive attempts to obtain

privileged information which is protected by Revised Code 2739.12 and the qualified privileges

provided by the First Amendment to the U.S. Constitution and the Ohio Constitution at Art. I, Sec. 11.

The grounds for this Motion are set forth more fully in the attached Memorandum in Support.

An oral hearing on this motion is respectfully requested.

WHEREFORE, Movants, Jason Hawk and Oberlin News Tribune, request that the Court:

a) quash the subpoena, or in the alternative;

b) enter a protective order limiting Defendants' examination of Hawk to verifying the attribution

of information described in the ONT's news reports to the sources disclosed to the ONT' s readers.

Cory, Meredith, Witter & Smith

 Respectfully submitted,

~it/
StevA. Keslar (0090743)
CORY, MEREDITH, WITTER & SMITII
A Legal Professional Association
101 N. Elizabeth, 6th Floor
Lima, OH 45801
419-228-6365 Fax: 419-228-5319
E-mail: skeslar@corylpa.com
Attorney for Jason Hawk and Oberlin News Tribune

Of Counsel:
John Bussian
The Bussian Law Firm
150 Fayetteville Street, 17th Fl.
Raleigh, North Carolina 27601
Tel: (919) 306-3319
jbussian@aol.com
Co-Counsel for Jason Hawk and Oberlin News Tribune

MEMORANDUM IN SUPPORT

I. INTRODUCTION

Jason Hawk, editor and reporter for the Oberlin News Tribune, not a party to this action, was

issued a deposition subpoena from Defendants Oberlin College and Meredith Raimondo to appear on

· June 27, 2018. Prior to the issuance of the subpoena, counsel for Mr. Hawk and counsel for Defendants

, had preliminary conversations and corresponded about the reporter's privilege against being compelled

, to testify, should .o deposition occur. In an attempt to pennit discovery to move forward without

involvement of the Court, while also protecting Mr. Hawk's privileged information, counsel for Mr.

' Hawk and counsel for Defendants agreed that Mr. Hawk would appear for the deposition to provide

non-privileged information. In the process, Defendants' counsel conceded that the reporter's privilege

in Ohio extends beyond Lhe Ohio "' hield La,;, ., · and covers Mr. Hawk's aclivitie:!'- and observations

within the editorial process

Cory, Meredith, Witter & Smith

2
 Accordingly, Mr. Hawk appeared for the June 27, 2018 deposition. 1 It quickly became apparent

that Defendants had no intention of respecting the reporter's privilege under the Ohio Shield Law, First

Amendment to the U.S. Constitution, and the Ohio Constitution at Art. I, Sec. 11 in questioning Mr.

Hawk. The Court's immediate involvement has become necessary to protect Mr. Hawk and Oberlin

News Tribune, non-parties, from compelled disclosure of privileged and protected matters and to protect

them from attempts to continue the unrestricted deposition questioning of Mr. Hawk.

II. FACTUAL BACKGROUND

A. Jason Hawk was at all times relevant a reporter and editor of the Oberlin News
Tribune

Jason Hawk is the Editor of the Oberlin News Tribune ("ONT") and was employed by the ONT

as a print journalist at all material times. The ONT is a weekly newspaper published in Lorain County,

Ohio. Its office location is at 42 South Main St., Oberlin, OH 44074.

On or about November 10, 2016 and November 11, 2016, Mr. Hawk engaged in the

newsgathering process as a reporter and editor for the Oberlin News Tribune, to report on public

demonstrations which were occurring at or near the business of Gibson's Bakery in Oberlin, Ohio. The

Oberlin News Tribune published two news stories, one posted online on November 10, 2016 and one

printed and posted online on November 14, 2016. Those two news stories reported on the subject matter

which, in part, is now the subject of this litigation. Both of those news stories displayed the byline of

Mr. Hawk. All information gathered and contained in the news reports was obtained by Jason Hawk in

the course of scope of his employment with the ONT.

B. The Court's earlier Order stopped a Defense Subpoena aimed at forcing disclosure of
Media interacting with Plaintiff's Counsel.

1
The transcript of the deposition of Jason Hawk, taken on June 27, 2018, will be filed with the Court after Mr. Hawk's
Civ.R. 30(E) review. The deposition was submitted to the witness for his review on July 10, 2018.

Cory, Meredith, Witter & Smith

3
 Defense counsel began discovery in this litigation with a frontal assault, trying to force

disclosure of plaintiff's counsel's correspondence with media that reported the events underlying the

case. The discovery effort was based upon the misguided theory that the plaintiffs counsel caused the

media covering the underlying events to defame the plaintiff. Defense counsel's argument for forcing

disclosure of media correspondence with the plaintiffs lead counsel was appropriately cast-in

plaintiff's opposition to the defendant's motion to compel that discovery-as "nonsensical." The court

correctly denied the defendants' motion to compel that discovery beyond providing defense counsel with

names of media known by the plaintiff to have knowledge of underlying events.

Undaunted by and openly disdainful of the Oberlin New Tribune staffs privilege not to be forced

to disclosed the same information to the defense in this case, defense counsel has now turned the

discovery gun on the Oberlin News Tribune and other media, without any evidence that the plaintiff was

defamed by the News Tribune. The subpoena directed to the News Tribune's Mr. Hawk is therefore no

more appropriate than the defendants' earlier discovery assault on plaintiffs counsel. It is simply an

unconstitutional and otherwise unlawful fishing expedition. And, for reasons that follow, the Court

should find the deposition questioning undertaken by defense counsel-to which Mr. Hawk has

objected-to be barred by the statutory and constitutional reporter's privilege.

Despite the Court's earlier order, Defense Counsel served another subpoena in New York State

Court to force disclosure of privileged information by media covering this case. Legal Insurrection filed

a motion to quash on July 5, 2018. (See Exhibit B, attached hereto).

C. The subpoena duces tecum

On May 30, 2018, counsel for Defendants served upon the undersigned counsel for Mr. Hawk a

subpoena duces tecum. (Hawk Deposition Exhibit 1, marked in Hawk Deposition at 4:2). The subpoena

did not command Mr. Hawk or his employer to produce any documents; rather it commanded Mr. Hawk

to appear for a deposition on June 27, 2018 at 10:00 A.M. at Defense counsel's office. By letters dated
Cory, Meredith, Witter & Smith

4
April 10, 2018 and May 8, 2018, counsel for Defendants conceded the existence of a reporter's privilege

extending to the editorial process under Ohio Law and First Amended to the U.S. Constitution; citing

Herbert v. I.Ando, 441 U.S. 153, 171 (1979). Counsel for Defendants then represented, "I do not believe

that questions to be asked at Mr. Hawk's deposition will require him to invoke the First Amendment

qualified privilege or the Ohio Shield Law." (Hawk Exhibit 1).

With this understanding, Mr. Hawk appeared in response to the subpoena.

D. The deposition of Jason Hawk

At the outset of the deposition, counsel for Mr. Hawk noted again the sources of the privileges

that Mr. Hawk intended to enforce during his deposition: the Ohio Shield Law at R.C. § 2739.12, and

the qualified privileges afforded to him by the First Amendment to the U.S. Constitution and the Ohio

Constitution at Art. I,§ 11. (Hawk Depo. at 4:11-5:3).

The transcript of Mr. Hawk's deposition has been filed with the Court. Even a cursory review of

the transcript shows that Defendants' counsel's blatant attempt to question Mr. Hawk concerning

privileged information. The deposition itself lasted from 10:10 A.M. until 4:32 P.M., and continued

without a lunch break, with brief pauses for the restroom or as necessary for the witness to confer with

counsel regarding a privilege issue. At the end of the June 27 deposition, Defendant's counsel indicated

his intent to continue the deposition on another day. Throughout the deposition, counsel for Mr. Hawk

was forced to object in accordance with Lorain County Common Pleas Court Loc.R. 19(C), asserting

objections for matters of privilege and those which would be waived if not made pursuant to Ohio R.

Civ. P. 32(d) and (b). Grounds for each assertion of privilege were stated on the record.

Not surprisingly, given the trial setting in this case, Defendants are attempting to prosecute a

defamation action against Mr. Hawk and the ONT yet neither has been made a party to the lawsuit.

Therefore, any continuation of Mr. Hawk's deposition to allow defense counsel to probe privileged

matter would be improper.

Cory, Meredith, Witter & Smith

5
 For these reasons, Mr. Hawk and the ONT are respectfully moving the Court to quash the

subpoena, or in the alternative to enter a protective order limiting any additional examination of Mr.

Hawk to verifying the attribution of information described in the ONT' s news reports to the sources

disclosed to the ONT' s readers.

III. LAW AND ARGUMENT

A. The First Amendment to the U.S. Constitution provides a qualified privilege to

reporters and editors of newspapers, and Defendants have not and cannot overcome the
qualified privilege in this case.

Ohio courts, including the Ninth District Court of Appeals, have long recognized the reporter's

privilege under the First Amendment of the U.S. Constitution and/or Article I, Section 11 of the Ohio

Constitution. "Analysis in this area must begin with the principle that freedom of the press occupies a

preferred position among the rights conferred by both state and federal constitutions . . . Thus any

infringements on this freedom are strictly limited and closely scrutinized." Fawley v. Quirk, 11 Media L.

Rep. 2336, 9th Dist. Summit No. 11822, 1985 WL 11006 (citing Branzburg v. Hayes (1972), 408 U.S.

665).

Regarding subpoenas issued to those engaged in the newsgathering process, the Ninth District

Court of Appeals in Ohio clearly recognizes that the reporter's privilege afforded by the First

Amendment is wide-ranging and important:

The United States Supreme Court has recognized that compulsory process has a chilling
effect on First Amendment :freedoms.

"***It is particularly important that the exercise of the power of

compulsory process be carefully circumscribed when the investigative
process tends to impinge upon such highly sensitive areas as freedom of
political association, and freedom of communication of ideas, ***."

Sweezy v. New Hampshire (1957), 354 U.S. 234,245.

The court in Florida v. Si/bur (1979), 5 Med. L. Rptr. 1188, 1189, reasoned:

"***
Cory, Meredith, Witter & Smith

6
 "To protect against the chilling effect of compulsory process, the press has been
afforded a broad privilege under the First Amendment against compelled testimony and
production of documents. Branzburgv. Hayes:,. 408 U.S. 665, 707 [1 Med. L. Rptr.
2617] (1972); Morgan v. State, 337 So. 2d 951, 955-956 [1 Med. L. Rptr. 2589] (Fla.
1976). This privilege is necessary to insure the free flow of information to the public by
protecting the newsgathering process as well as the exercise of editorial judgment.
See: Miami Herald Publishing Company v. Tomillo, 418 U.S. 241 [1 Med. L. Rptr.
1898] (1974).

"Therefore, when a reporter under subpoena, asserts his or her First Amendment
privilege, the burden shifts to the party seeking compelled testimony to demonstrate and
prove that there is a compelling interest in requiring such testimony, which interest is
sufficient to override First Amendment considerations. ***."

"***
"The First and Fourteenth Amendments to the United States Constitution and Article I,
Section 14 of the North Carolina Constitution, afford reporters a qualified privilege to
refuse to give testimony or to produce documents in criminal and civil actions. ***The
reporter's qualified privilege applies to all information acquired by a reporter in
gathering the news, regardless of whether the information is confidential, because
the purpose of the privilege is to assure, to the fullest extent possible, the free flow
of information to the public."
"***." (Citing North Carolina v. Hagaman (1983), 9 Med. L. Rptr. 2525, 2526-2527,
with approval).

Fawley v. Quirk, 9th Dist. Summit No. 11822, 1985 WL 11006, *2-3 (emphasis added). The reporter's

privilege recognized by the Ninth District is a qualified privilege:

[It] must be balanced against interests such as the state's ability to investigate crime, a
criminal defendant's right to a fair trial, and a civil litigant's right to discovery evidence
or to compel testimony.

When balancing these competing interests, the following factors should be considered:
" ... (1) is the information relevant, (2) can the information be obtained by alternative
means, and (3) is there a compelling interest in the information?" ... Miller v.
Transamerican Press, Inc. (C.A. 5, 1980), 621 F. 2d 721, 726.

Thus, once the qualified privilege is raised, the party seeking the information must
overcome the privilege by meeting the three-prong test.

Fawley v. Quirk, 9th Dist. Summit No. 11822, 1985 WL 11006, *2-3 (emphasis added); see also, Riley

v. City of Chester, 612 F .2d 708, 716-717 (3d Cir. 1979) ("In order to overcome the reporter's privilege,

the movant must demonstrate (1) that the information sought is material, relevant, and necessary; (2) a

Cory, Meredith, Witter & Smith

7
strong showing that the information cannot be obtained by alternative means; and (3) that the

information is crucial to the movant's case").

The scope of what is protected by the reporter's privilege in the "editorial process" was the

subject of some discussion in Herbert v. Lando, 441 U.S. 153. The Supreme Court noted, "There is no

law that subjects the editorial process to private or official examination merely to satisfy curiosity or to

serve some general end such as the public interest; and if there were, it would not survive constitutional

scrutiny as the First Amendment is presently construed." Herbert v. Lando, 441 U.S. at 174. The

Herbert v. Lando Court determined that the editorial process is not protected by an absolute privilege, it

is protecting the qualified reporter's privilege. Herbert v. Lando, 441 U.S. at 170-171.

The reporter's privilege asserted in this case is essential for the core values that the First

Amendment seeks to protect. Newsworthy events are often events that also result in lawsuits. It is

axiomatic that requiring newspaper reporters and editors to testify about their reporting would have a

chilling effect on free press rights. Left alone, newspaper reporters' and editors' testimony would be

sought before litigants explored first-hand sources. Indeed, lazy litigants may find it simpler and cheaper

to compel journalists to reveal their sources or to hand over infonnation rather than investigating on

their own to find appropriate witnesses. This would, of course, be at the expense of newspaper staff time

and resources that should be used for reporting and editing. See O'Neill v. Oakgrove Constr., 71 N.Y.2d

521, 524, 523 N.E.2d 277 ("[tJhe autonomy of the press would be jeopardized if resort to its resource

materials, by litigants seeking to utilize the newsgathering efforts of joumalists for their private

purposes, were routinely permitted ... because journalists typically gather information about accidents,

crimes, and other matters of special interest that often give rise to litigation, attempts to obtain evidence

by subjecting the press to discovery as a nonparty would be widespread if not restricted on a routine

basis"). The reporter's privilege covering all manner of news gathering and the editorial process is

essential to the preservation of free press rights.

Cory, Meredith, Witter & Smith

8
 In any event, Defendants bear the burden of showing that the information which is being

withheld on a claim of privilege is (1) relevant, (2) cannot be obtained by alternative means, and (3) that

there is a compelling interest in the infonnation. In this instance, even if we were to assume the first

prong could be met, Defendants cannot meet the second and third prongs of the test. Anything to which

Jason Hawk could testify about in this case can also be obtained from other, non-privileged sources. For

example, Defendant Meredith Raimondo has admitted her specific conduct to others. In a news report

published by Legallnsurrection.com dated November 10, 2017, Meredith Raimondo is quoted as

admitting to Legallnsurrection.com, "I passed along a flyer that was circulating among the crowd to a

news tribune reporter who was seeking information from students about what was taldng place." (See

Exhibit A at p.2, attached hereto). Therefore, if this is the information being sought, then it's clear there

are other sources--including Defendant Meredith Raimondo-who can testify about what occurred at

the protest.

Regarding the third prong of the test Defendants would have to meet to overcome the privilege,

the Defendants are not proving defamation against Hawk and the ONT. Nor is this a grand jury

proceeding or a criminal matter where the only witness is a journalist. Civil cases command even greater

protection of the reporter's privilege. See e.g., Slagle v. Coca-Cola, Inc., 30 Ohio Misc.2d 34, 35, 507

N.E.2d 794, 795 (C.P.1986) ("A news gatherer's privilege is given greater weight in a civil action")

(citing Baker v. F & F Invest. 470 F.2d 778, 785 (C.A.2, 1972)).

Defendants cannot meet any of the elements necessary to overcome the privilege, much less all

the three elements. Because the Defendants cannot overcome the privilege, the Court should grant the

Motion for Protective Order and/or Motion to Quash.

B. The Ohio Constitution provides an equal or stronger qualified privilege to reporters

and editors of newspapers than even the First Amendment to the U.S. Constitution.

Cory, Meredith, Witter & Smith

9
 Article I, Section 11 of the Ohio Constitution states, in part, "no law shall be passed to restrain or

abridge the liberty of speech, or of the press." While closely parallel to the language of the First

Amendment to the United States Constitution, the state constitutional clause exists as an independent

source of protection of free press rights. Scott v. News-Herald, 25 Ohio St.3d 243, 245 (1986). The

protection afforded under the Ohio Constitution to the press is arguably even greater protection than

under the U.S. First Amendment. The language of the Ohio Constitution at Art. I, Section 11 tracks the

language of the U.S. First Amendment and then, significantly, adds the word "restrain." The inclusion of

the word "restrain" in the state formulation should enhance the protection afforded the press. Any other

interpretation would subordinate Ohio's Constitution to no more than a mirror image of the First

Amendment, dependent for its interpretation upon the federal courts' views of free press protection.

Therefore, under Article I, Section 11 of the Ohio Constitution, Mr. Hawk and the Oberlin News

Tribune are protected by a qualified state constitutional reporter' s privilege in addition to the First

Amendment-based reporter's privilege.

C. The Ohio Shield Law enacted at R.C. 2739.12 protects newspaper reporters and editors
from being forced to disclose their unnamed and confidential sources.

Finally, Ohio Revised Code section 2739.12, which is known as the Ohio Shield law, protects

against compelled disclosure of ''the source of any information procured or obtained ... in the course of

[a print journalist's] employment." The Ohio Shield law "grants reporters and editors an absolute and

unqualified privilege." Ventura v. The Cincinnati Enquirer, 396 F.3d 784, 792 (citing In re April 7,

1999, Grand Jury Proceedings, 140 Ohio App.3d 755, 749 N.E.2d 325). The U.S. Sixth Circuit in

Ventura held that the Ohio Shield law protected not only the "source of any information" but also

disclosure of any information that inevitably would have revealed information about the existence, or

absence, of other unidentified sources. See Ventura, 396 F.3d at 793 ("If the court had forced the

Cory, Meredith, Witter & Smith

10
journalist deponents to confirm or deny plaintiff's claim, they would inevitably have revealed

information about the existence, or absence, of other unidentified confidential sources").

Therefore, the Ohio Shield Law also not only protects the movants against forced disclosure of

unnamed sources, but also protects reporters and editors from responding to deposition questioning that

would require him or her to confirm or deny "the existence, or absence, of other unidentified sources."

Id. Defendants' counsel during the deposition of Mr. Hawk repeatedly questioned Mr. Hawk about

whether he spoke with or received information from persons not disclosed in his news articles. Such

questioning is barred by the express language of the Ohio Shield Law.

IV. CONCLUSION

For all the reasons cited above, it is crucial that this Court issue an order quashing the subpoena

or alternatively issuing a protective order limiting the examination of Mr. Hawk to verifying the

attribution of information described in the ONT's news reports to the sources disclosed to the ONT's

readers.

An oral hearing on this matter is respectfully requested.

WHEREFORE, Movants, Jason Hawk and Oberlin News Tribune, request that the Court:

a) quash the subpoena, or in the alternative;

b) enter a protective order limiting Defendants' examination of Hawk to verifying the attribution

of information described in the ONT' s news reports to the sources disclosed to the ONT' s readers.

Respectfully submitted,

~
Steven A. Keslar (0090743)
CORY, MEREDITH, WITTER & SMITH
A Legal Professional Association
101 N. Elizabeth, 6th Floor
Lima, OH 45801
419-228-6365 Fax: 419-228-5319
E-mail: skeslar@corylpa.com
Cory, Meredith, Witter & Smith

11
 Attorney for Jason Hawk and Oberlin News Tribune

Of Counsel:
John Bussian
The Hussian Law Firm
150 Fayetteville Street, 17th Fl.
Raleigh, North Carolina 27601
Tel: (919) 306-3319
jbussian@aol.com
Co-Counsel for Jason Hawk and Oberlin News Tribune

CERTIFICATE OF SERVICE:

This is to certify that service of the above pleading has been made this JS_.-Jday of July, 2018,
by Ordinary U.S. Mail to the following:

- Lee E. Plakas, Counsel for Plaintiffs, Tzangas, Plakas, Mannas, & Raies, 220 Market A venue
South, 8th Floor, Canton, Ohio 44702;

- Terry A. Moore, Owen J. Rarric, and Matthew W. Onest, Counsel for Plaintiffs, Krugliak,
Wilkins, Griffiths, & Dougherty Co, LPA, 4475 Munson Street, N.W., P.O. Box 369, Canton,
Ohio 44735;

- Ronald D. Holman, II, Julie A. Crocker, and Cary M. Snyder, Counsel for Defendants, Taft
Stettinius & Hollister, LLP, 200 Public Sq. Ste 3500, Cleveland, Ohio 44114;

- Matthew W. Nakon and Malorie A. Alverson, Counsel for Defendants, Wickens, Herzer, Panza,
Cook & Batista, 35765 Chester Road, Avon, Ohio 44011;

Steven A. Keslar

Cory, Meredith, Witter & Smith

12
 7/13/2018 GibSon's Bakery sues Oberlin College over racial profiling accusations, Oberlin cuts business ties

Gibson's Bakery sues Oberlin College over racial

profiling accusations, Oberlin cuts business ties
William A. Jacobson I 11/10/2017 - 7: 15pm

Lawyer: OberUn continues to "bully and financially strangle a century-old

local business for refusing to succumb to the Colfege's demand that
Gibson's ignore student shoplifting"

A year ago almost to the day, we covered a dispute involving Oberlin College students and a local bakery,
Gibson's Bakery.

The Oberlin students, with the support of some faculty and staff, accused the bakery of racial profiling three
Oberlin students who were arrested for shoplifting. Those three students eventually pleaded guilty, and
police stats showed that Gibson's did not engage in racial profiling. Nonetheless, the turmoil has continued,
and Gibson's is suing claiming a continuing campaign to strangle its business.

EXHIBIT

A.
https://legalinsurrectlon.com/2017/11/gibsons-bakery-sues-oberlin-college-over-racial-proflllng-accusatlons-oberiin-cuts-buslness- 1/8
 7/13/2018 Gibson's Bakery sues Oberlin College over racial profiling accusations, Oberlin cuts business ties

Protests and BoY.cotts After ShoRlifting Arrests

Our prior post covered the background of the dispute in great detail, Bakery targeted by Oberlin College
#BlacklivesMatter fights back:

On November 9, 2016, Gibson's employees noticed what they thought was a person shoplifting
two bottles of wine hidden in his jacket. That alleged shoplifter was a black Oberlin College
student. When they attempted to stop and photograph him, they were attacked by several other
people accompanying the student.

The police were called. The Oberlin town police department has posted the Incident
Reportonline, reflecting the arrest of the alleged shoplifter and two others involved in the
scuffle.... ·

What could have been a simple shoplifting incident and arrest created a firestorm when Oberlin
College students, including the Black Student Union, Student Senate and College Democrats,
alleged racial profiling and launched a boycott of Gibson's. Protests were launched outside the
bakery....

Oberlin College Vice President and Dean of Students Meredith Raimondo provided this statement
to Legal Insurrection in response to the news report that she was passing out literature accusing
Gibson's of racism:

Information. and literature available at the protest was prepared by organizers, not the college. I
passed along a flyer that was circulating among the crowd to a news tribune reporter who was
seeking information from students about what was taking place. I did not prepare the flyer and
do not have a copy of the flyer. My presence was to help ensure that a safe environment was
maintained .

... The Oberlin Student Senate passed a resolution calling for a boycott of Gibson's ....
As noted in that post, the college issued a statement which at least implicitly endorsed the boycott:
... Regarding the incident at Gibson's, we are deeply troubled because we have heard from
students that there is more to the story than what has been generally reported. We will commit
every resource to determining the full and true narrative, including exploring whether this is a
pattern and not an isolated incident. We are dedicated to a campus and community that treats
all faculty, staff and students fairly and without discrimination. We expect that our community
businesses and friends share the same values and commitments .

.... We will continue to work on these matters in the coming days to make sure that our students,
staff, and faculty can feel safe and secure throughout our town.

We are grateful for the determination of our students and for the leadership demonstrated by
Student Senate....
Marvin Krislov
President

Meredith Raimondo
Vice President and Dean of Students

https://legallnsurreclion.com/2017/11/glbsons-bakery-sues-oberlin-college-over-racial-profiling-accusations-oberlln-cuts-business-ties/ 2/8
 7/13/2018 Gibson's Bakery sues Oberlin College over racial profiling accusations, Obertin cuts business ties

[Image via lnstagram]

Oberlin halted purchases from Gibson's, but eventually resumed business.

The community rallied around the Bakery:

. ~- ·.: .. ·, JC 1- I'.
'U11av?·

OCktoGibs 's

All Three Students Plead GuiltY.

Eventually, the three students detained for shoplifting pleaded guilty to misdemeanors:
https://legalinsurrection.com/2017/11/gibsons-bakery-sues-obertin-college-over-racial-profiling-accusations-obertln-cuts-buslness-ties/ 3/8
7/13/2018 Gibson's Bakery sues Oberlin College over racial profiling accusations, Obertin cuts business ties
The three Oberlin College students accused of trying to steal wine from Gibson's Bakery in
Oberlin and then allegedly beating the store's employee when he tried to detain them pleaded
guilty Friday to amended misdemeanor charges.

The deal calls for them to receive no jail time and to pay restitution.
Common Pleas Judge James Miraldi delivered the sentencing Friday afternoon after several
tense hours of negotiations between the parties.
Jonathan Aladin, 20, pleaded guilty to misdemeanor charges of attempted theft, aggravated
trespassing and underage purchase of alcohol.

Endia Lawrence and Cecelia Whettstone, both 19, pleaded guilty to attempted theft and
aggravated trespassing.
But the story wasn't over.

Gibson's Files A Lawsuit

Gibson's just sued Oberlin and Dean of Students Meredith Raimondo (h/t Free Beacon).
The Chronicle-Telegram reports:

Gibson's Bakery has filed a lawsuit against Oberlin College, prompting the college to once again
sever business ties with the shop.

The lawsuit lays out a narrative in which Oberlin College - trying to recover its image of being
supportive of the African American community after firing a professor who is black, and with
business interests in wanting to buy the Gibson property and adjacent parking lot - latched on to
a shoplifting incident to promote Gibson's as a racist establishment to bolster its own image and
interests.

It was filed Tuesday in Lorain County Common Pleas Court and names the college and Meredith
Raimondo, vice president and dean of students, as defendants.

The complaint accuses the college of libel, slander, interference with business relationships,
interference with contracts, deceptive trade practices, intentional infliction of emotional
distress, negligent hiring, and trespass and asks for more than $200,000 in damages.
The Morning Journal adds more detail:

The suit alleges, despite the Oberlin Police Department releasing the incident report refuting
the racial narrative, the college persisted in assisting students in protesting the store to bolster
an attempt to brand the college as having a "legacy of being a strong advocate for and a strong
supporter of African American students and racial minorities."

Aladin offered prosecutors to plead guilty to the charge of theft and Oberlin College was aware
of that when a member of the board of trustees paid a retainer for an attorney to fight the
charges and the college allegedly paid for a limo to take Aladin to Columbus and meet with the
lawyer, the complaint says.

David Gibson felt pressure to approve a plea agreement in the case, the suit says.

However, Oberlin Municipal Court Judge Thomas A. Januzzi denied the agreement citing the
seriousness of a second-degree felony robbery charge that was intended to be dropped in the
deal, and the loss of money the bakery was undergoing due to protests by Oberlin College
students, according to the suit.

The protests involved hundreds of students, deans, professors and college staff filling the
sidewalks in front of the business and disseminating a flyer the suit identifies as libelous, the
complaint says.

https://legalinsurrection.com/2017/11/glbsons-bakery-sues-oberlin-college-over-raciel-profiling-accusations-oberlln-cuts-business-lies/ 4/8
7/13/2018 GibSon's Bakery sues Obertln College over racial profiling accusations, Obertin cuts business ties
The flyer claims the business "is a racist establishment with a long account of racial profiling
and discrimination," and urging customers to shop elsewhere, the suit says.
The flyer also identified 10 of the bakery's competitors again urging consumers to not patronize
Gibson's, according to the suit.

The Oberlin Police Department investigated the claims of racism against the bakery-and found
that "of the 40 adults arrested for shoplifting at Gibson's Bakery in the past five years, only six
were African American," the suits says.

The ComP.laint
Legal Insurrection has obtained a copy of the Complaint (pdf.), a full copy of which is embedded at the
bottom of the post.

In addition to the allegations summarized in the news articles above, the Complaint ties the College's actions
to pressure it was under from social justice protesters on campus. The Complaint references a 14-page list of
student demands, including demands for tenure of Joy Karega, who ultimately was relieved of her teaching
duties after a series of anti-Semitic Facebook posts.
From the Complaint:

11. In approximately December 2015, Oberlin College came under pressure for its treatment of
African-American students.

12. In approximately December 2015, students sent a 14-page list of demands to Oberlin
College's Board of Trustees, Oberlin College's President Marvin Krislov, and Oberlin College's
senior leadership.
13. As part of that 14-page list of demands, the students asserted that:

Oberlin College and Conservatory is an unethical institution... In the 1830s, this

school claimed a legacy of supporting its Black students. However, that legacy has
amounted to nothing more than a public relations campaign initiated to benefit the
image of the institution and not the Africana people it was set out for.

14. One of the students' demands was that Oberlin College offer "guaranteed tenure" to Joy
Karega, an African-American professor who had written articles claiming that Israeli and U.S.
Intelligence agencies fund ISIS and that Israel planned the September 11, 2001 attacks in the
U.S. At the time, Joy Karega was an Assistant Professor of Rhetoric ft Composition at Oberlin
College.
* * ..

19. Oberlin College conducted hearings concerning the continued employment of Professor
Karega and, by early November 2016, Oberlin College made its determination that it would be
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7/13/2018 Gibson's Bakery sues Oberlin College over racial profiling accusations, Oberlin cuts business Ues
terminating Karega' s employment, notwithstanding demands from its student organizations.

20. Defendants were aware that termination of Professor Karega would prove unpopular with
students on campus, including those who supported the African-American students' list of
demands that called for Karega' s "guaranteed tenure."

As part of this alleged pressure Oberlin was feeling, Gibson's alleges Oberlin tried to get Gibson's to offer
what the Complaint calls a "FIRST-TIME SHOPLIFTER'S PASS":

69. In a subsequent meeting between Raimondo and David Gibson, Oberlin College also insisted
that Gibson's Bakery call Raimondo when students are caught stealing rather than informing the
police.

70. David Gibson believed the policy would be inconsistent with his core belief that an
educational institution of higher learning should be teaching its students not to commit robbery
and theft, instead of sheltering and excusing that criminal activity.

71. Again, David Gibson did not agree to such a request and Oberlin College continued to
attempt to steamroll and intimidate Gibson's Bakery and refused to retract its defamatory
statements or reinstate its business with Gibson's Bakery.

72. Thus, Oberlin College 1:ook a position that sacrificed the commitment to the rule of law and
the safety of the Oberlin community in favor of its desire to promote the business and marketing
plan and public relations image of Oberlin College. In doing so, Oberlin College by example,
words, and conduct exploited its students and taught them that it is permissible to harm
community members without fear of repercussion. For instance, Oberlin College's demand for
the "first-time offender" rule also promoted large scale thefts because if students would not be
prosecuted for their first theft offense, they would be encouraged to steal as much merchandise
as possible during each offense until caught for the first time.

The Complaint alleges a concerted effort by Oberlin to damage Gibson's business by repeating the false
allegations of racial profiling:

75. Oberlin College eventually allowed Bon Appetit to reinstate its business with Gibson's Bakery
in February 2017; however, Defendants refused to retract the defamatory statements that had
been made.

76. Over the years prior to the defamation described herein, a substantial portion of Gibson
Bakery's revenue derived from direct purchases by students, professors, and administrators of
Oberlin College. At all times relevant, Defendants were fully aware of that fact.

n. As a direct result of Defendants' conduct, as described herein, Gibson's Bakery has suffered
a severe and sustained loss of student, professor, administrative, and college department
business and continued losses are further perpetuated by Oberlin College.

78. For example, during campus tours sponsored by Oberlin College - Oberlin College's guides
advise prospective and future students and their families not to shop at Gibson's Bakery because
it is a "racist establishment" that "assaults students."

The Complaint also alleges that Oberlin has its sights set on a parking area adjacent to campus owned by
Gibson's:

OBERLIN COLLEGE COVETS GIBSON'S WELL-SITUATED LAND

60. Upon information and belief, Oberlin College desires to harm and/or acquire the Gibson
Bakery business, the Gibson Bakery property, and the real property owned by Off Street Parking,
Inc. ("OSP"). David Gibson recently acquired the controlling interest in OSP. OSP is the owner of
the parking lot immediately contiguous to Oberlin College, and it is supposed to be for the
exclusive use of patrons of the downtown businesses, including Plaintiffs' business.

61. Oberlin College has encouraged, facilitated, and permitted its professors, administrators,
faculty, students, and third party contractors to use the parking lot notwithstanding that OSP

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7/13/2018 Gibson's Bakery sues Obertin College over raclal profiling accusations, Oberlin cuts business ties
has advised the individuals and Oberlin College to stop parking in the lot, issued parking notice
violations to offenders, and has had vehicles towed.

62. During most of the month of August 2017, Oberlin College instructed its construction
contractors to park vehicles and large construction equipment and otherwise use the parking
lot, obstructing access to the parking lot and parking spaces within the lot.

Oberlin Denies, Cuts Business Ties

Scott Wargo, Director of Media Relations for Oberlin, provided this statement to Legal Insurrection, denying
the accusations against the college and Raimondo:

Oberlin College and Dr. Raimondo deny and reject all claims asserted in the lawsuit filed by
Gibson Bros., Inc. in the Lorain County Court of Common Pleas. The allegations are untrue and
we will vigorously defend against them.
The College values its long relationship with the town of Oberlin and its businesses, including
Gibson's Bakery. We are saddened that the Gibson family has chosen to pursue litigation. As this
is now a legal matter, the College will suspend, effective immediately, its business relationships
with Gibson's Bakery until such time as a mutually productive relationship may be re-
established.

We will have no further public comment on this matter.

Legal Insurrection obtained an email sent to Oberlin faculty and staff by Oberlin's Finance and Administration
department:

Dear Faculty and Staff,

I am writing to inform you that Gibson Bros., Inc. has filed a lawsuit against Oberlin College and
Dean of Students Meredith Raimondo in the Lorain County Court of Common Pleas. The College
and Dr. Raimondo deny and reject all claims asserted in the lawsuit and we will vigorously
defend against them.

Because of the litigation initiated against the College, all College business with Gibson's, i.e.,
purchases with College funds, is prohibited effective as of November 10, 2017, and until further
notice. Orders approved previously that are scheduled to be completed by Nov 17 will be
processed.

Thank you for your cooperation in this matter.

Gibson's AttorneY.: Oberlin AttemP-ting to Strangle a Local Business

In response to Oberlin's moves, Gibson's attorney, Owen J. Rarric, Esq., provided this statement to Legal
Insurrection:

The complaint filed this week identifies Oberlin College's troubling conduct in attempting to
bully and financially strangle a century-old local business for refusing to succumb to the
College's demand that Gibson's ignore student shoplifting.

In response to Gibson's resisting such bullying tactics, the College has further tightened the
economic squeeze by cancelling business with Gibson's.

The example that Obe rlin College is setting is that if an instit ution is powerful, that institution
and its members do not have to follow the Rule of Law.

I presume that Oberlin will seek dismissal of the lawsuit on the claim that Gibson's fails to state a legal claim
upon which relief can be granted. Even if the college wins, it loses.

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7/13/2018 Gibson's Bakery sues Obertln College over racial profiling accusations, Obertln cuts business ties

Town-Gown Fight About To Get Worse, And Oberlin Loses Regardless

of Lawsuit Outcome
As reported earlier, Oberlin already has suffered a decline in enrollment and related budget shortfalls, likely
related to years of aggressive activism, Radical fallout: Oberlin College enrollment drops, causing financial
problems:

While a general higher ed bubble, particularly for small liberal arts colleges, may be
contributing to the decline, it's hard to believe that Oberlin's recent history of turmoil isn't a
contributing factor.

When given the choice of similar colleges, it would be logical for prospective students to stay
away from the ones that are constantly generating negative headlines and appear to be bastions
of radicalism. ·

Are the social justice chickens finally coming home to roost at Oberlin?
A bitter town-gown fight is not what Oberlin College needs. But it appears inevitable, as the student
newspaper just called for a boycott of Gibson's in retaliation for the lawsuit, Students Should Not Engage
Gibson's as Lawsuit Ensues:

As the College severs its business ties with Gibson's for the second time in a year, students
should maintain their commitment to doing the same. There are few acts of protest so quiet yet
so powerful as the decision to not patronize a specific establishment because of fundamental
disagreement with what it stands for. There are also few responses so appropriate to the
situation we now must grapple with. ·

Gibson's, feeling the economic squeeze from an alleged continuing defamation of the bakery and damage to
the bakery's business, felt it had no other choice but to fight back.
We'll continue to follow this story.

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FILED: T :KINS COUNTY CLERK 07 05 2018 12: 07 PM INDEX Nb. EF2 0lB-0 4 9·
NYSCEF DOC. . 13 RECEIVED NYSCEF: 07/05/20 8
Cl2018-12406 Index#: EF2018-0409

STATE OF NEW YORK

SUPREME GOURT-TOMPKINS COUNTY

In the Matter of the Application of

WAl MEDIA LLC, Index. No.

Petitioner, RJINo.

For a Protective Order and to Quash A Subpoena for Presiding Justice:

Journalist Records Served in a Foreign Action by

OBERLIN COLLEGE.

Respondent

MEMO~DUM OF LAW IN SUPPORT OF APPLICATION FOR PROTECTIVE

ORDER AND TO QUASH SUBPOENA SEEKING JOURNALIST RECORDS

WAJ Media LLC ("WAJ Media"). d/b/a the "Legal .Insurrection'' website, submits this

· Memorandum of Law in support of its application pursuant to the New York Press Shield Law,

Civil Rights Law §79-b and CPLR 3103 for a protective order and to quash a document titled

SuJ?poena Duces Tecum (the "Subpoena") served in New York State by Oberlin College.in an

action pending in Ohio (the "Gibson's lawsuit" or the "Ohio case'').

The facts relevant to this application are set forth in the accompanying Afffrmation of

William J. Troy III, Esq., and the exhibits thereto, which we ine9rporate by reference.

To summariz.e, the Subpoena seeks journalist records of WAJ Media, a professional

journalism company that. through the ' 1Legal Insurrection" website, has reported extensively

about issues at Oberlin College, including the Gibson's lawsuit. The ·reco~.s sought i~· tl~e

Subpoena are commwucati.C?11S between WA1 Media a11d the plaintiffs' attomeys in the

Gibson's lawsuit. Obe~lin College thus seeks to intrude on WAJ Media's investigative

EXHIBIT
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If>
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journalism, which would cause a chilling effect on WA.T Media's ability to continue to report

about Oberlin College.

The records Oberlil1 College seeks from WAJ Media are in the possession of the

attorneys for Oibson~s in Ohio. Oberlin College previously served subpoenae duces tecum on

Gibson's attorneys for such record.st but the Ohio court in the Gibson's lawsuit quashed tpose

subpoenae and granted a protective order.

Havin_g lost in the Ohio case on access to such communications, Oberlin College now

makes a second attempt to get access to the records by serving the Subpoena at issue in this

case on WAJ Media. As set forth in the Troy Affirmation and i~fra, a protective order should

be granted, and the Subpoena quashed because the records sought are protected by the New

York common law and constitutional privilege for j~urnalist records, including as codified in

the N~w York Press Shield Law, Civil Rights Law §79-h.

THE RECORDS ARE PROTECTED BY THE NEW YORK

REPORTERS' PRIVILEGE AND THE NEW YORK PRESS SHIELD LAW

To the extent the Subpoena is read to require WAJ Media to produce all of its

communications wi~ Gibson~s attorneys, such a. req,uest violates WAJ Media's privilege under

the New York constitution ~nd comm~n law, and New York Press Shield Law, Civil Rights

Law§79-h.

In cases 1;1ot governe4 by the NY Press Shield Law, the standard for ob1aining discovery

in New York from non~paities, such as under CPLR 3119. is that the discovery is "material

and necessary" in the out-of-state action. Kapon v. Knch, 23 N.Y.3d 32, 37~ 11 N.E.3d 709,
' .
714,988 N.Y.S.2~ 559,564 (2014). Oberlin College cannot meet this "material and necessary.,'

test·because to the extent the.public statement issued l)y Gibson's counsel included in WAJ

Media's reporting is relevant (which is doubtful in itself) to Oberlin College's defenses in the
2

2 of 8
Ohio case, it is the statement itself which is the material and necessary evidence. Oberlin

Coll~ge already has the statement, WAJ Media's other records are not material and necessary.

Here, however, there is a much higher standm:"4 than "material and necessary" that

Oberlin College must meet in order to subpoena WAJ Media's joumalist records, since New

York courts have lo11g recognized a privilege protecting journalists' records. Oberlin College

must show that the evidence is so crucial that its defense rises or falls with or without such

evid~, and that the evidence is not available elsewhere. Oberlin College cannot meet this
test.

In O'Neill v. Oakgrove Constr., 71 N.Y.2d 521, 524, 523 N.E.2d 277 528 N.Y,S.2d 1

(1988), the Court of Appeals reviewed the history and scope of the privilege:

Article I, § 8 ofthe New York State Constitution and, we believe, the First Amendment
of the Federal Constitution as well, provide a reporter's privilege ·.which extends to
confidential and· nonconfidential materials and ·which, albeit qualified, is triggered
where the material sought for disclosure--the photographs here--was prepared or
collected in the course of newsgathering ....
The ability of the press freely to collect and edit news. unhampered by repeated
d~ds for its resource m ~ tequires more protection than that afforded by the
disclosure statute (CPLR 3101). The autonomy of the press would be jeopardized if
resort to its resource materials, by litigants seeking to utilize the newsgathering efforts
of journalists fot their private purposes, were routinely pennitted (see, Mi/fer v
Mecklenburg County, 602 F Supp 675, 679; Maurice v National Labor-Relations Bd., 7
Med L Rptr 2221, 22,73 [SD NY], vacated on other grounds 691 F2d 182; Wilkins v
Kalla, 118 Misc. 2d 34, 35). Moreover, because journalists typically gather information
about accidents, crimes, and other matters of special interest that often give rise to
litigation, attempts to obtain evidence by subjecting the press to discovery as
a
a *52 7 nonparty would be widesp~ ifnot restricted on routine basis. The practical
burdens on time and resources, as well withe consequent diversion ofjounialistic effort
and disruption ofnewsgathering activity, would be particularly inimical to the vigor of
a free press.•..
As formulated by the decisions of these courts, the privileg~ bars coerced.disclosure of
resource materials, such as photographs, which are o~ned 01; otherwise gene~ed in
or
-the course of.newsg~thering newspreparing activities, uniess the inoving litigant
satisfies
.
a.tripartite test which is more deman~g
r
than the requirements of CPLR 3101
'
3

3 of 8
 (a). Under the tripartite test, discovery may be ordered o_ajy ifthe litigaut demonstrates,
clearly and specifically, that the items sought are (1) highly material, (2) critical to the
litigant's claim, and (3) not otherwise available. Accordingly, if the- material sought is
pertinent merely to an ancillary issue in the litigation, not essential to the maintenance
-of the litigant's clahn., or obtainable thr-ough an alternative source, disclosure may not
be compelled (see, e.g., In re Petroleum Prods. Antitrust Litig., 680 F2d 51 9 [2d
Cir], cert denied sub nom. Arizona -v McGraw-Hill, Inc., 459 US 909; Riley v City _of
Chester, 612F2d 708,717 [3dCir]; Silkwoodv&rr-McGee Corp., supra, at438 [10th
Cir]; Baker v F & F Inv., 470 F2d 778, 784 [2d Cir], cert denied 411 US
966; Montezuma Realty Corp. v Occidental Petroleum Corp.• 494 F SupP 780 [SD
NY]).
This common law constitutional _protection was codified in the ~ew Yerk Press Shield

Law, Civil Rights Law§ 79-h. See, e.g., Matter ofBeach v. Shanley, 62 N.Y.2d 241,245,465

N.B.2d 304,476 N.Y.S.2d 76 (1984) ("In enacting the so-called "Shield Law," the Legislature

expressed a policy according 1eporters strong protection against compulsory disclosure oftheir

sources or infonnation ~btained in the news-gathering process."); Morgan Keegan & Co., Inc.

v. Eavis 37 Misc.3d 1058 955 N.Y.S.2d 715 (Sup. Ct. NY Co. 2012) (''These requirements

~bsequently were incorporated into an amended Civil Rights Law § 79--h, which affords an

absolute privil~ge for confidential ~ gathering materials, N.Y. Civ; Rights Law § 79-h(b),

and a q~fied privilege (or non-con.fi.deJ?-tial new g a ~ material~- N.Y. ~iv. Rights Law

§ 79-h(c). To overcome ~e privilege for non-confidential materials, the party seekulg the

evidence still must meet the statute's three-pronged test formulated by the Court of

Appeals. O'Neill v. Oakgrove Constr., 71 N.Y.2d at 527,528 N.Y.S.2d 1,523 N.B.2d277.")

Civil Rights Law§ 79-h provides~ in pertinent part (emphasis added):

(a) Definitions. As used in this section, tlte following definitions shall apply:

***
(6) "Professional journalist" shall mean one rho, for gain or livelib.ood, is engaged
in gathering, preparing, colleeting, writing, .ediµng. filming, taping or photographing
of news intenped for a newspaper, magazine, ~ews agency, press association or wire
service or ot..er professional medium 01; ag~ncy which has as one of its regula1·
..
! I
''
l
4
'
!

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PKINS COUNTY CLERK 07 05 2018 12:07 P Imnde~ E:F:ltffit0.@9J4 9
. 13 RECEIVED NYSCEF, 07/05/20 8

functions the processing and researching of news intended for dissemination to

the public; such person shall be someone perfo1ming said function either ~s a regular
employee or as one otherw;_se professionally af$liated for gain or livelihood with such
medium of communication.

* **

(8) '"News" shall mean written, oral, pictorial, photographic, or electronically recorded
inform.at.ion or communication concerning local) national or worldwide events or other
matters of public concern qr public interest or affecting the public welfare.

(b) Exemption of professional journalists and newscasters from contempt: Absolute

protection for confidential news. Notwithstanding the provisions of any general or
specific law to the contrary, no professionaljoumalist or newscaster presently or having
previously been employed or otherwise associated with any newspaper. magazine,
news agency. press association, wire service, t!ldio or television transmission station or
network or other professional medium of communicating news or infonnatiou to the
public shall be adjudged in contempt by any court in connection with ap.y civil or
criminal proceeding, or by the legislature or other body having contempt powers, 11or
shall a grand jury seek to have a journalist or newscaster held in contempt by any col.J!t,
legislature or other body havh1g contempt powers for refusing or failing to disclose any
news obtained or received in confidence or the identity of the source of any such news
coming into such person's possession in the course of gathering or obtaining news for
pllblication or to be published in a newspaper, magazine, or for broadcast by a radio or
television transmission station. or network or for public dissemination by any other
professional medium or agency which has as one of its main functions the'
dissemination of news to tl1e public, by which such person is professionally employed
or otherwise associated in a news gathering capacity notwithstanding that the rnateri_al
or identity of a sow·ce of such mat:erial or related material gathered py a person
described above perfomling a function d.escribed above is or is not highly relevant to a
pal"ticular inquiry of government and notwithstanding that the infom1.ation was not
solicited bYi the journalist or newscaster prior to disclosure to such person.
. ! .
(c) E~p~on of professional journalists and newscaste1·s· from contempt: Qualified
prot~tion!for no~confidenti~,J: news. Notwithstanding the provisions of any general
or specificllaw to the contrary, no professional.Journalist. or newscaster presently. or
having ptth,iously been ei:nployed or otherwise associated with any 11ewspaper,
magazine, news agency, press association, wire service. radio or television
transmiss{on station or network or other professional m¢ium of communicating news
to the public shall be adjudged in contempt by any cotµt in connection with any civil •
or criminal proceeding, or by th.e legislature or other body having contempt powers.
nor shall a grand jury seek to •have a journalist or newscaster held in CQntempt by any
court, le&slature, or other body having contempt powers fo:F refusing or failing to
disclose ~Y. unpublished news obtained or prepared by a jownalist or newscaster in
the course of gathering 01· obtaining news as provided in subdivision (b) of this section,
or the so~rce of a.11y such news, where such news was not obtained or received in

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PKINS COUNTY CLERK 07 05 2018 12:07 P INmdeXNG ~F2'1$~4 9
. 13 RECEIVED NYSCEF: 07/05/20 8

confidence, unless the party seeking such news has made a clear and specific
showing that the news: (i) is highly material and relevant; (ii) is critical or
necessary to the maintenance of a party's claim, defense or proef of an issue
material thereto; and (iii) is not obtainable from any alternative source. A cou11
shall order disclosure only of such portion, or portions~ of the news sought as to which
the above-described showing has been ma.de and shall support such order with clear
and specific findings made after a bearing. The prov:isions of this subdivision shall not
affect the availability, under appropt·iate circumstances, of sanctions under section
thirty-one hundred twenty-six of the civil practice law and rules.

* * *·

(e) No fine or impiisonmentn1ay be imposed against a person for any refusal to disclose
infonnation privileged by the provisions of this section.

(f) The privilege contained within this section shall apply to supervisory or employer
third person or organization having authority over the person described in this
section. "' • *
It is clear that common law, constitutional and statutory privileges all protect W AJ

Media's communications with sources, including attorneys in lawsuits that are the subject of

WAJ Media's news reporting. Oberlin College cannot meet the test to obtain these l'ecords.

E.g.,

In re American Broadcasting Companies, Inc., 189 Misc.2d 805, 735 N.Y.S.2d 919 (Sup Ct.

NY Co. 2001):

Thus, the provision of the Civil Rights Law at issue is not satisfied absent clear and
specific proof"that the claim for which the information is to be used •virtually rises or
falls with the admission or exclusion of the proffered evidence.' " (In re Application to
Quash Subpoena to Natio'IJal Broadcasting Company, et aL v. Graco Children
Products, lne., 79 F.3d 346. 351 [2d Cir.1996] ) (citation omitted). "The tesf is not
J+).erely twit _the material be helpful or probative, but whether or not the defense of the
action may be presented with.out it."(Id quoting Doe v. C'4mmings, No. 91-346. 1994
WL 315640, at *1 (Sup.Ct. St. Lawrence Cty, Jan, 18, J994]: see also, Flynn v. NYP
Holdings Jnc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3rd De_pt.1997): In re Grand Jury
Subpoenas to Jennifer Maguire, 161 Misc,2d 960. 965. 615 N.Y.S.2d 848 [Cty. Ct.
Westchester Cty.1994] ). Thus, it follows that when the legislature speaks of
m,,published news being critical or necessary to the proof or a claim or defense, it does
not have in ·nd general an4 ordinary ~peachment material or matters which might
arguably bear on the assessment of credibility of witnesses. To permit ~t might well

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 KINS COUNTY CLERK 07 05 2018 12:07 P 1Nmde.>1Nb 1:F201$Cl409J4 9
RECEIVED NYSCEF: 07/05/20 8

result in the piercing of the privilege far more otten and with far less basis than the
legislative history suggest.s is appropriate. Rather, the privilege may yield only when
the ·party seeking the material can define the specific issue, other than general
credibility, as to which the sought after interview provides truly necessary proof
(See, United States v. Burke, 700 F.2d 70 [2nd Cfr.198~]; cf. United States. v. Cutler,_§_
F .3d 67 [2~d Cir.1993J) ("[T]he evidence that Cutler seeks from the Repo~s and the
T.V. Stations is probably the only signiµcant proof regarding bis assertedly criminal.
behavior.'') (emphasis in the original).
WAJ Media's journalist records are not "highly material and relevant" to Oberlin's

defenses in the Gibson's lawsuit. What is relevant. if anything, to Oberlin College's defenses

is the public statement made by Gibson's attorneys. Oberlin College does not need W AJ

Media's records for that, because Oberlin College has the public statement itself. Oberlin

College cannot demonstrate that its defense in the .Ohio case is "critical" for similal' reasons.

Moreover, Oberlin College is estopped from claiming the WAJ. Media reooros are

critical to its defense of the Ohio case. If such records were truly critical to Oberlin College,

the Ohio court presumably would not have granted Gibson's lawyers a protective order that

covered, in scope, such records.

That Ohio court grant of a protective order is binding on Oberlin College, and Oberli.11

College is estopped from now claiming that it has a legally cognizable need for the records.

The issue was fully and actually litigated in the Ohio case (see exhibits to ~ray Affirmation),_

·and~ claims ofnecessity were·decided. E.g., Schwartz v. Public Adm'r <>IBronx County, 24

N.Y.2d65, 71246 N.R.2d 725,729,298 N.Y.S.2d 955,960 (1969)("New York Lawhas~w

reached the point where there are but two necessary requirements for the invocation of the

doctrine of collateral estoppel. There must be an identity of iss~ which has necessarily been

decided in the prior action and is decisive of the present action, and, second; ~ere must have

been a full and fair opportunity to contest the decision now .s~d to ~ controlling.")

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 Also, Oberlin Colle_ge cannot meet tpe third part of the test, that the records are not

available elsewhe1-e. Gibson's· attomeys have the records. That the Ohio court granted a

protective order aga}nst Oberlin College obtaining the records certainly cannot be used to

Oberlin College~s advantage here, where WAJ Media has independent New York State

constitutional and statutory protections.

Conclusion
For the reasons set forth above and in the Troy Affirmation, we respectfully request

that tbe court grant a protective order and quash the Subpoena for joumalist records.

Dated: Ithaca, New York

July 3~ 2018

Respectfully submitted,

WilHam .T. Troy. Ill, Esq.

Barney, Grossman. Duoow & Troy, LLP
120 East Buffalo Street
Ithaca, New York 14850
Tel. 607-277-6611
Fax:. 607-277-3330
Email: wtroy@bgdtJaw.com

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