BuzzFeed, Inc. v. U.S. Dep't of Justice

318 F. Supp. 3d 347
CourtCourt of Appeals for the D.C. Circuit
DecidedAugust 3, 2018
DocketCase No. 17-mc-02429 (APM)
StatusPublished
Cited by13 cases

This text of 318 F. Supp. 3d 347 (BuzzFeed, Inc. v. U.S. Dep't of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BuzzFeed, Inc. v. U.S. Dep't of Justice, 318 F. Supp. 3d 347 (D.C. Cir. 2018).

Opinion

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, *352BuzzFeed 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 US 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 Compromise Him , CNN (updated Jan. 12, 2017, 5:26 PM), https://www.cnn.com/2017/01/10/politics/donald-trump-intelligence-report-russia/index.html.

*353The 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.

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318 F. Supp. 3d 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buzzfeed-inc-v-us-dept-of-justice-cadc-2018.