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BuzzFeed, Inc. v. U.S. Department of Justice

United States District Court, District of Columbia

August 3, 2018

BUZZFEED, INC., et al., Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          AMIT P. MEHTA UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On January 10, 2017, BuzzFeed News published an article on its website titled “These Reports Allege Trump Has Deep Ties to Russia.” The Article includes an embedded document containing what is now popularly referred to as the “Dossier”-a 35-page collection of memoranda prepared by former British intelligence officer Christopher Steele.[1] The Dossier discusses Russian efforts to influence the 2016 U.S. presidential election and contains allegations of ties between Russia and the campaign of then candidate Donald J. Trump.

         This matter concerns the final two pages of the Dossier embedded in the Article: a memorandum entitled “Company Intelligence Report 2016/166” and dated “13 December 2016” (“Report 2016/166”). The second to last paragraph of Report 2016/166 alleges that “a company called XBT/Webzilla” and an individual named “Aleksei GUBAROV” were involved in a scheme to use “botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations' against the Democratic Party leadership.” Apparently, Aleksej Gubarev (not Aleksei Gubarov) was not pleased to have his and his companies' names associated with such allegations. So, shortly after BuzzFeed published the Dossier, Aleksej Gubarev, XBT Holdings S.A., and Webzilla, Inc., sued BuzzFeed, Inc., and its editor-in-chief, Ben Smith (collectively, “BuzzFeed”), in Florida state court for defamation, alleging that the penultimate paragraph of the Dossier falsely identifies them as having been involved in Russian efforts to hack Democratic Party leaders.

         In the underlying Florida litigation, BuzzFeed has asserted several affirmative defenses. Among them is the “fair report privilege, ” which generally shields persons from liability for publishing fair and accurate reports of official government proceedings. See generally Restatement (Second) of Torts § 611 (1977). BuzzFeed contends that its publication of the Dossier, including Report 2016/166, is protected by the fair report privilege because the Dossier was the subject of official proceedings-namely, a government investigation and a confidential briefing of President Barack Obama and then President-elect Donald Trump by senior executive branch officials. To support this defense, BuzzFeed subpoenaed several federal government agencies and employees, seeking testimony that would confirm, among other things, that prior to the Article's publication on January 10, 2017, the FBI (and possibly other law enforcement or intelligence agencies) possessed all 35 pages of the Dossier and President Obama had been briefed on the Dossier's contents. When the government parties balked at producing the requested testimony and records in that proceeding, BuzzFeed filed a Motion to Compel in this District Court. In the case's present posture, BuzzFeed does not seek compliance with the full scope of the original subpoenas; rather, it asks the court to order a response to three narrow questions about the Dossier.

         Upon consideration of the parties' briefs, and for the reasons set forth below, the court concludes that the subpoena-as substantially narrowed during the course of this litigation-is not unduly burdensome, and that BuzzFeed has made a sufficient showing of need to overcome the law enforcement privilege. The testimony that BuzzFeed seeks is essential to its defense against the defamation action and it cannot be obtained from any other source. Additionally, the release of the testimony will have a minimal impact, if any, on law enforcement interests, particularly in light of the substantial amount of information already officially acknowledged about the Dossier's provenance and subsequent use by the FBI.

         Accordingly, the court grants the Motion to Compel and orders the Government to produce, subject to a protective order, an affidavit that is responsive to the three topics set forth in BuzzFeed's narrowed request.

         II. BACKGROUND

         A. Factual Background

         1. The Article

         BuzzFeed News published an article on its website titled “These Reports Allege Trump Has Deep Ties to Russia” on January 10, 2017. See Mot. to Compel, ECF No. 1 [hereinafter MTC], at 1; see also MTC, Ex. 1, ECF No. 1-3 [hereinafter Fla. Compl.], Ex. 2 [hereinafter Article].[2] As relevant here, the Article includes an embedded document containing the 35-page “Dossier.” Article at 3. The Article describes the Dossier as “a collection of memos . . . . prepared for political opponents of Trump by . . . a former British intelligence agent” containing “explosive-but unverified-allegations that the Russian government has been ‘cultivating, supporting and assisting' President-elect Donald Trump for years and gained compromising information about him.” Id. at 1-2. BuzzFeed decided to publish the Dossier, the Article explains, “so that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of the U.S. government.” Id. at 2.

         The Article goes on to detail the Dossier's use by federal officials. It states that Senator John McCain “gave a ‘full copy' of the memos to [FBI Director James] Comey on Dec. 9, but that the FBI already had copies of many of the memos.” Id. It also states that “a two-page synopsis of the report was given to President Obama and Trump.” Id. Additionally, the Article cites and links to a CNN article, which specifically reports that the FBI was actively investigating the truth of the Dossier's allegations and that four of the senior-most U.S. intelligence directors-Director of National Intelligence James Clapper, FBI Director James Comey, CIA Director John Brennan, and National Security Agency Director Mike Rogers-presented a two-page synopsis of the Dossier to President Obama and President-elect Trump as part of a classified briefing. See Id. (linking to CNN article); Evan Perez et al., Intel Chiefs Presented Trump with Claims of Russian Efforts to CompromiseHim, CNN (updated Jan. 12, 2017, 5:26 PM), https://www.cnn.com/2017/01/10/politics/donald-trump-intelligence-report-russia/index.html. The synopsis purportedly discloses, among other things, that Russia allegedly had compromising personal and financial information about President-elect Trump, continuously exchanged information with surrogates of his campaign, and released information to harm Hillary Clinton's campaign. Id.

         2. The Underlying Florida Litigation

         On February 3, 2017, shortly after BuzzFeed published the Article, Aleksej Gubarev, XBT Holdings S.A., and Webzilla, Inc. (collectively, “the Florida plaintiffs”) filed suit against BuzzFeed in Florida state court, asserting one count of defamation. See generally Fla. Compl. Gubarev is a “venture capitalist, ” “tech expert, ” and chairman and CEO of XBT Holdings S.A., which owns Webzilla, Inc. See Id. ¶¶ 6-7, 16. Both companies specialize in “internet hosting solutions, network services, and web development services.” Id. ¶ 21; see Id. ¶ 16. In their Complaint, the Florida plaintiffs allege that the following paragraph in the Dossier falsely identifies them as having participated in “computer hacking of the Democratic Party, ” see id. ¶¶ 25-27:

[redacted] reported that over the period March-September 2016 a company called XBT/Webzilla and its affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct “altering operations” against the Democratic Party leadership. Entities linked to one Ale[ks]ei GUBAROV were involved and he and another hacking expert, both recruited under duress by the FSB, Seva KAPSUGOVICH, were significant players in this operation. In Prague, COHEN agreed [sic] contingency plans for various scenarios to protect the operations, but in particular what was to be done in the event that Hillary CLINTON won the presidency. It was important in this event that all cash payments owed were made quickly and discreetly and that cyber and other operators were stood down/able to go effectively to ground to cover their traces.

Id. ¶ 26 (alteration and emphasis omitted); see also Fla. Compl., Ex. 3 [hereinafter Dossier], at 35.[3] As noted, the Dossier is a compilation of separate memoranda. The above-quoted language can be found in the penultimate paragraph of the last of the memoranda published by BuzzFeed, which is dated December 13, 2016, and identified as “Company Intelligence Report 2016/166.” See Dossier at 34-35. As discussed below, the date by which the Government received Report 2016/166 turns out to be critical information that BuzzFeed seeks to mount its defense.

         BuzzFeed subsequently removed the case to the U.S. District Court for the Southern District of Florida. See Gubarev v. BuzzFeed, No. 0:17-cv-60426-UU (S.D. Fla. removed Feb. 28, 2017). In its Answer, BuzzFeed raises several affirmative defenses, including that the “publication of the allegedly defamatory statements in the Dossier, within the context of the Article, is protected by the fair report privilege” under New York law, or alternatively under Florida or Texas law. MTC, Ex. 2, ECF No. 1-4, at 9.

         3. The Subpoenas

         On June 28, 2017, BuzzFeed issued seven subpoenas seeking documents and deposition testimony on ten topics relating to the Dossier. See MTC at 10; Defs.' Opp'n to Pls.' Mot. to Compel, ECF No. 8 [hereinafter Opp'n], at 4; see also MTC, Ex. 3, ECF No. 1-5; MTC, Ex. 4, ECF No. 1-6; MTC, Ex. 5, ECF No. 1-7. The subpoenas sought testimony from a designated representative of four federal agencies-the Department of Justice (“DOJ”), the Federal Bureau of Investigation (“FBI”), the Central Intelligence Agency (“CIA”), and the Office of the Director of National Intelligence (“ODNI”)-as well three former officials of those agencies-Comey, Brennan, and Clapper. MTC at 10; Opp'n at 4.

         The government agencies and former agency employees responded to the subpoenas in August 2017, and refused to provide any records or testimony. See MTC at 10-11; Opp'n at 5-6. In September 2017, counsel for BuzzFeed met with government counsel and proposed to narrow the scope of its original subpoenas. MTC at 11; Opp'n at 6. Specifically, BuzzFeed offered to withdraw subpoenas addressed to the CIA and Brennan in full; to withdraw any request for documents as to all other subpoenas; and to limit its deposition inquiries to nine topics: seven directed to the DOJ, the FBI, or Comey, and two topics to be elicited from Clapper. See Id. These topics, generally speaking, “cover[ed] the public statements previously made [by the Government] about briefings, the existence of an investigation, and merely confirming the receipt of material from Senator McCain.” MTC at 11; see MTC, Ex. 9, ECF No. 1-11. The Government rejected BuzzFeed's proposal. MTC at 12; Opp'n at 6; see MTC, Ex. 10, ECF No. 1-12.

         B. Procedural History

         1. BuzzFeed's Narrowing of the Subpoenas

         On September 27, 2017, BuzzFeed filed a motion to compel in this court against the DOJ, the FBI, the ODNI, Comey, and Clapper (collectively “the Government Respondents”) under Rules 26 and 45 of the Federal Rules of Civil Procedure. See generally MTC. In their Motion to Compel, BuzzFeed sought “slightly narrower discovery” than that which they proposed to the Government Respondents in their narrowed request. See Id. at 12. In particular, BuzzFeed asked the court to compel the Government Respondents to designate and produce “no more than two witnesses” from DOJ and/or FBI, and if necessary ODNI, for a deposition limited to roughly the same nine topics of testimony discussed above. See MTC at 12-13.[4] The Government Respondents opposed the Motion to Compel on November 13, 2017, objecting to BuzzFeed's subpoena request, even as further narrowed, on three grounds: (1) relevance, (2) undue burden, and (3) the law enforcement privilege. See Opp'n at 1-2. The Opposition included an ex parte, in camera submission, see generally Opp'n, Defs.' Notice of Lodging of Ex Parte, In Camera Decl., ECF No. 8-1, whose filing BuzzFeed opposed, see Mot. to Strike, or in the Alternative, for Order Compelling Defs. to File Redacted Version of Ex Parte, In Camera Decl., ECF No. 11.

         The court held oral argument on the Motion to Compel on February 15, 2018. See Hr'g Tr., ECF No. 20. At the hearing, prodded by the court, BuzzFeed agreed to narrow the scope of its subpoenas even more by (1) withdrawing their request for testimony with respect to Topics 1- 2, 4-6, and 9 without prejudice, see Id. at 11-15, 40-41, 46-47, and (2) agreeing to accept an affidavit from a government official in lieu of deposition testimony on the remaining topics, i.e., Topics 3, 7, and 8, see Id. at 15, 17-18, 40-41. See generally supra note 4 (outlining the nine topics in BuzzFeed's original request). On March 1, 2018, BuzzFeed filed a Status Report reiterating its willingness “to accept an affidavit from the Government, in lieu of testimony, provided that the language of that affidavit is clear and responsive to the topics of testimony requested.” Status Report, ECF No. 22 [hereinafter March Status Report], at 2. BuzzFeed proposed the following topics of inquiry, which are narrowed even further than was discussed at the February 15, 2018, hearing:

Narrowed Topic No. 3: Whether, prior to 5:20 p.m. Eastern time on January 10, 2017, the FBI and/or any of the other Defendant agencies had the last two pages of the Dossier as it was published by BuzzFeed. Alternatively, if the Defendants were able to simply confirm that as of that time and date the FBI and/or any of the other Defendant agencies had the 35 pages of the Dossier that were published by BuzzFeed, that would be acceptable.
Narrowed Topic No. 7: Whether on or about December 9, 2016, the FBI received from Senator John McCain a copy of the Dossier containing the first 33 pages ...

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