318 F. Supp. 3d 347
D.C. Cir.2018Background
- BuzzFeed published a January 10, 2017 article embedding a 35‑page "Dossier" (memoranda by Christopher Steele) alleging Russian ties to the 2016 Trump campaign; the penultimate paragraph of the final memo (Report 2016/166) named Aleksej Gubarev and his companies as implicated in hacking activities.
- Gubarev, XBT Holdings S.A., and Webzilla sued BuzzFeed in Florida for defamation challenging publication of that passage; BuzzFeed pleaded the fair‑report privilege as an affirmative defense.
- To support that defense, BuzzFeed subpoenaed DOJ, FBI, ODNI, and certain former officials seeking testimony about whether (a) the government possessed the Dossier (or Report 2016/166) before publication, (b) Senator McCain delivered pages to the FBI on December 9, 2016, and (c) senior intelligence officials briefed President Obama about the Dossier prior to January 10, 2017.
- The government refused production, invoking relevance, undue burden, and the law‑enforcement privilege; BuzzFeed substantially narrowed its requests and agreed to accept sworn affidavits on three discrete questions.
- The district court in Florida had held the fair‑report privilege potentially applicable and that BuzzFeed must prove the factual predicates (existence of government action and briefings) to prevail, making the subpoenaed testimony relevant.
- The D.D.C. court weighed relevance, undue burden, and the law‑enforcement privilege and granted BuzzFeed’s motion to compel limited sworn responses under a protective order, finding need outweighed privilege given extensive public disclosures about the Dossier and that the inquiries were narrowly tailored.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relevance of government testimony to BuzzFeed's fair‑report defense | Testimony confirming government possession/briefings is directly relevant to prove the Dossier was the subject of official action | Testimony irrelevant because fair‑report privilege inapplicable as a matter of law | Relevant: Florida court already found privilege potentially applies and factual proof is required, so testimony is relevant |
| Undue burden of compelling government witnesses/affidavits | Narrowed requests (three yes/no topics via affidavit) are minimal and uniquely within government control | Producing testimony would divert government resources and risk cumulative burden from similar suits | No undue burden: narrow scope, limited number of questions, limited likelihood of proliferating demands |
| Law‑enforcement privilege over the requested facts | N/A (BuzzFeed seeks disclosure) | Disclosure would harm ongoing investigations and reveal sensitive nonpublic details and sources | Privilege does not bar disclosure: qualified privilege outweighed by BuzzFeed’s need; public disclosures reduced harm and the questions are largely factual and minimal |
| Scope and protective measures for compelled responses | Affidavits suffice if responsive and under protective order | Concern about government becoming a "speakers’ bureau" and uncontrolled dissemination | Court ordered sworn affidavit responsive to three reworded questions and required a protective order with Attorneys’ Eyes Only and filing/sealing restrictions |
Key Cases Cited
- Watts v. S.E.C., 482 F.3d 501 (D.C. Cir. 2007) (Rule 45 standards for subpoenas to government agencies; undue burden considerations)
- In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988) (procedural prerequisites for government privilege assertions)
- Tuite v. Henry, 98 F.3d 1411 (D.C. Cir. 1996) (factors for balancing law‑enforcement privilege against litigant’s need)
- In re Anthem, Inc. Data Breach Litig., 236 F. Supp. 3d 150 (D.D.C. 2017) (description of law‑enforcement privilege and its purpose)
- In re Micron Tech., Inc., 264 F.R.D. 7 (D.D.C. 2010) (party resisting discovery bears burden to show undue burden or privilege)
- Davis Enters. v. EPA, 877 F.2d 1181 (3d Cir. 1989) (declining deposition of agency employee when it would unduly burden agency)
- Moore v. Armour Pharm. Co., 927 F.2d 1194 (11th Cir. 1991) (protecting agency employees from burdensome discovery tied to high‑profile research)
- Adelson v. Harris, 402 P.3d 665 (Nev. 2017) (hyperlinking can supply attribution for fair‑report privilege analysis)
- McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983) (deference in classification/FOIA contexts and presumption of regularity)