Amit P. Mehta, United States District Judge.
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.
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,
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.
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].
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/
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:
Id. ¶ 26 (alteration and emphasis omitted); see also Fla. Compl., Ex. 3 [hereinafter Dossier], at 35.
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, 2017 WL 2289183 (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.
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
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.
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.
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:
Id. at 2-3 (footnotes omitted). Thus, what began as a request for documents and records on nine different topics is now limited to three discrete questions, the answers to which BuzzFeed will accept by sworn affidavit.
Notwithstanding BuzzFeed's willingness to substantially narrow its initial requests, the Government Respondents took the position at the February 15, 2018, hearing that compliance with the requested discovery, even as modified, would be burdensome and would compromise sensitive law enforcement interests. See Hr'g Tr. at 32-34. In particular, the Government Respondents insisted that disclosing when federal authorities received the Dossier's final two pages, i.e., Report 2016/166, would adversely impact law enforcement interests "in a very real way." Id. at 32. The court invited the Government Respondents to state specifically how the disclosure of such information would affect law enforcement interests, noting that the Government's first ex parte, in camera submission had been too general to be useful. Id. at 33-34, 50.
The Government Respondents accepted the court's invitation and filed a second ex parte, in camera declaration, on March 19, 2018. See Defs.' Notice of Lodging of Classified Ex Parte, In Camera Decl., ECF
The court now turns to the merits of BuzzFeed's Motion to Compel.
"Disputes over third-party subpoenas to agencies in civil litigation ... must commence in the district court under Rule 45," which "authorizes court-issued subpoenas to obtain discovery from third parties." Watts v. S.E.C., 482 F.3d 501, 503, 507 (D.C. Cir. 2007). As an initial matter, when deciding a motion to compel under Rule 45, the district court first must consider whether the discovery sought is relevant to a party's claim or defense in the underlying litigation, as defined in Rule 26(b)(1). See In re Denture Cream Prods. Liab. Litig., 292 F.R.D. 120, 123 (D.D.C. 2013); cf. Watts, 482 F.3d at 507. Next, the court must assess any objections to the subpoena under the standards supplied by Rule 45, which "requires that district courts quash subpoenas that call for privileged matter or would cause an undue burden." Watts, 482 F.3d at 508; see Fed. R. Civ. P. 45(d)(3)(A). This is true for "both document and testimonial subpoenas," including "subpoenas issued to third-party [federal] agencies or agency employees in federal civil suits." Watts, 482 F.3d at 508. "The burden lies on the party resisting discovery to show that the documents requested are either unduly burdensome or privileged." In re Micron Tech., Inc. v. Sec. Litig., 264 F.R.D. 7, 9 (D.D.C. 2010).
The Government Respondents oppose the Motion to Compel on three grounds. First, they argue that BuzzFeed's subpoenas seek information that is irrelevant to the underlying Florida litigation. Opp'n at 12-22. Second, they contend that compliance with the subpoenas — even as narrowed — would be unduly burdensome. Id. at 23-31. Third and finally, they assert that the information sought — again, even as narrowed — is protected by the law enforcement privilege. Id. at 31-37. The court addresses each of these arguments in turn.
The court begins, as it must, with the relevance inquiry. See In re Denture Cream, 292 F.R.D. at 123. According to BuzzFeed, the testimony sought in its subpoena is "highly relevant to [its] ability to establish that the publication of the Article, including the Dossier, is a fair and accurate report of records that were a basis of official government actions and thus is protected by [the] fair report privilege." MTC at 14.
In the underlying litigation, BuzzFeed's Answer asserts the fair report privilege as an affirmative defense. See MTC, Ex. 2, ECF No. 1-4, at 9. At the Florida court's prompting, the plaintiffs moved for partial judgment on the pleadings, asserting that the fair report privilege did not apply. See Notice of Suppl. Authority, ECF No. 27, Ex. A, Corrected Order, ECF No. 27-1 [hereinafter Gubarev Order], at 4. The court rejected the plaintiffs' motion. See id. at 18-19. Finding that New York law applied, see id. at 3-11 (citing N.Y. Civ. Rights Law § 74), the court stated that whether BuzzFeed could rely on the fair report privilege as an absolute defense turned on two questions: (1) "whether an official proceeding concerning the Dossier was underway when BuzzFeed published it," and (2) "whether the Court can conclude as a matter of law that an ordinary reader would have understood that the Dossier was the subject of official action," id. at 14; see also id. (reasoning that the court only needed to resolve these two issues, given that there was no dispute that "the Article accurately reproduces the Dossier, albeit with the source's name redacted" (emphasis added)).
As to the first question, the court held that the privilege would apply "if the Dossier was part of or subject to an official proceeding," which the court interpreted broadly to mean "any official action." Id. at 14-15. Notably, the court held that "[a] confidential briefing to the President and the President-elect by the four most senior intelligence directors in the country is official action taken by those empowered to do so." Id. at 15. So, too, "is an FBI investigation into the truth of the Dossier's allegations." Id. As to the second question, the court reasoned that while "[t]he Article itself does not permit an ordinary reader to understand that the Dossier was the subject of classified briefings or an FBI investigation," an ordinary reader could nevertheless reach such a conclusion here because the Article includes a "conspicuous" hyperlink to a CNN article, which explicitly mentions the aforementioned official actions. See id. at 16-18 (following Adelson v. Harris, 402 P.3d 665 (Nev. 2017)); see also Adelson, 402 P.3d at 669-70 (explaining that "the hyperlink is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law," and holding that a hyperlink therefore renders a report privileged so long as it is "conspicuous" (internal quotation mark and alteration omitted)).
Thus, having answered both of these questions in the affirmative, the Florida court held that it "cannot conclude as a matter of law that the Article is other than a fair and true report of an official proceeding." Gubarev Order at 18. Critically, and directly pertinent to these proceedings, the court added that its legal ruling "does not dispose of the case." Id. Rather,
Based on the Florida court's decision, it is evident that the testimony that BuzzFeed seeks to compel in this litigation — i.e., testimony regarding whether and when the FBI or any other Government Respondent acquired the Dossier, and whether senior intelligence officials briefed President Obama on its contents prior to the Article's publication — is directly relevant to BuzzFeed's fair-report-privilege defense in the Florida litigation. The Government Respondents' argument to the contrary therefore is easily dismissed.
Because the court finds that the requested testimony is relevant, the court must next assess whether compliance would impose an undue burden on the Government Respondents under Rule 45.
Two principles guide the court's analysis in making this determination. See Watts, 482 F.3d at 509. First, "[t]he Rule 45 `undue burden' standard requires district courts supervising discovery to be generally sensitive to the costs imposed on third parties." Id. Second, Rule 26(b) requires district courts in all discovery matters "to consider a number of factors potentially relevant to the question of undue burden," id., including: (1) whether the discovery sought is "unreasonably cumulative or duplicative"; (2) whether the discovery sought "can be obtained from some other source that is more convenient, less burdensome, or less expensive"; and (3) whether the discovery sought is "proportional to the needs of the case," taking into account "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit," see Fed. R. Civ. P. 26(b)(1), (2)(C).
Nor is there a serious concern that granting BuzzFeed's request in this case will open the floodgates to other discovery demands that would place a strain on government resources. Because the target of the subpoenas here are federal government agencies and officials, the court must also consider the cumulative effect of allowing some form of discovery. See Watts, 482 F.3d at 509 (citing Davis Enters., 877 F.2d at 1187, where the court held the "agency had `legitimate concern with the potential cumulative effect' and `proliferation of testimony by its employees' that compliance with [an] individual subpoena would entail"); id. (citing Moore, 927 F.2d at 1197-98, in which the court found that an "expected `onslaught of subpoenas' in similar litigation raised substantial concern about [the] `cumulative impact' of [an] individual subpoena"). To that end, the Government Respondents assert that granting BuzzFeed's request would spawn a wave of similar future requests due to "the proliferation of lawsuits concerning or tangentially related" to the Dossier. Opp'n at 24 (emphasis added). That concern, however, is vastly overstated. In its papers, the Government Respondents cite only one other case arising out of the Dossier's publication, see id. (citing Fridman v. BEAN LLC a/k/a Fusion GPS, No. 17-cv-2041, 2017 WL 4402633 (D.D.C. filed Oct. 3, 2017)), and BuzzFeed identifies a third case, which appears to be related to the one cited by the Government, see Reply Mem. in Supp. of Mot. to Compel, ECF No. 15, at 14 & n.3 (citing Fridman v. BuzzFeed, Inc. et al., Index No. 154895/2017, 2018 WL 2100452 (Sup. Ct. N.Y. Cty. May 07, 2018)). Three lawsuits in the nearly 18 months since the Dossier's publication — only one of which involves a demand on the Government — does not suggest there will be, as the Government Respondents fear, a mass "proliferation" of actions. Cf. Moore, 927 F.2d at 1198 & n.3 (agreeing with district court's conclusion that "given the present proliferation of AIDS-related litigation, an onslaught of subpoenas ... requesting testimony by CDC employees ... would seem to be inevitable" if the court compelled the
Turning next to the Rule 26(b) considerations, they too point towards a finding of no undue burden. To begin, the requested discovery is not "unreasonably cumulative or duplicative." See Fed. R. Civ. P. 26(b)(2)(C)(i). Nor can it be obtained from some other source. See id. BuzzFeed's narrowed request, in sum and substance, asks the Government Respondents to confirm: (1) whether, prior to January 10, 2017, the FBI (and DOJ or ODNI, if applicable) had all 35 pages of the Dossier published by BuzzFeed, or at least the last two pages of it, i.e., Report 2016/166; (2) whether Senator McCain delivered the first 33 pages of the Dossier to the FBI on or about December 9, 2016; and (3) whether senior intelligence officials briefed President Obama about assertions contained in the Dossier before the Article's publication date. See March Status Report at 2-3. To state the obvious, this information is uniquely within the possession of the Government Respondents, and they do not contend otherwise. Cf. Opp'n at 12 (arguing that the subpoenas are unduly burdensome because they seek testimony that "would require the Government... to disclose previously nonpublic, sensitive information"). Thus, the limited information sought is not cumulative nor duplicative of any discovery in the underlying litigation, let alone unreasonably so. And it cannot be obtained from "some other source that is more convenient, less burdensome, or less expensive." See Fed. R. Civ. P. 26(b)(2)(C)(i).
BuzzFeed's revised demand also is "proportional to the needs of the [underlying] case." See Fed. R. Civ. P. 26(b)(1). The discovery sought here is clearly "importan[t]... [to] resolving the issues" in the Florida litigation. Watts, 482 F.3d at 509; see Fed. R. Civ. P. 26(b)(1). As the Florida court has made clear, BuzzFeed must bring forward proof to support the fair report privilege in order to prevail. See Gubarev Order at 19. Indeed, the privilege may prove to be dispositive of the Florida plaintiffs' claims. See N.Y. Civ. Rights Law § 74 ("A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any ... official proceeding...."); Gubarev Order at 6 (characterizing the fair report privilege as "absolute" under New York law); see also Fine v. ESPN, Inc., No. 5:12-cv-0836, 2013 WL 528468, at *3 (N.D.N.Y. Feb. 11, 2013) ("Under New York Civil Rights Law § 74, `fair and true' reports of official proceedings... receive absolute privilege in libel actions." (emphasis added)). And, contrary to the Government Respondents' effort to diminish "the importance of the issues at stake" in the Florida litigation, see Opp'n at 30, the Florida case presents an important issue concerning the scope of legal protections afforded to media organizations
Moreover, "the amount in controversy" favors compelling disclosure. See Fed. R. Civ. P. 26(b)(1). Although the Florida plaintiffs' complaint does not specify a dollar amount sought in compensatory damages, it is not hard to imagine that the plaintiffs will seek substantial sums in compensatory damages for the reputational harm they allegedly incurred, given the worldwide and persistent attention the Dossier has received. See Fla. Compl. at 10-12. The Florida plaintiffs also seek punitive damages. Id. at 11. And, finally, for the reasons discussed, "the burden or expense of the proposed discovery" does not "outweigh[] its likely benefit," Fed. R. Civ. P. 26(b)(1); Watts, 482 F.3d at 509.
For these reasons, the court does not find the requested testimony to be unduly burdensome.
At last, the court addresses the issue of privilege. Here, the Government Respondents urge the court to deny BuzzFeed's Motion to Compel on grounds that the testimony sought is protected by the federal law enforcement privilege. See Opp'n at 31-37.
To invoke the privilege, the government must satisfy three procedural requirements:
In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). The court finds that, based on the multiple in camera, ex parte declarations submitted by the Government Respondents, these three procedural elements are satisfied. The court thus focuses its analysis on the merits on the privilege invocation.
The law enforcement privilege "aims to protect the integrity of law enforcement techniques, sources, and investigations — disclosure of which would be `contrary to the public interest in the effective functioning of law enforcement.'" In re Anthem, Inc. Data Breach Litig., 236 F.Supp.3d 150, 159 (D.D.C. 2017) (quoting Tuite v. Henry, 181 F.R.D. 175, 176 (D.D.C. 1998), aff'd, 203 F.3d 53 (D.C. Cir. 1999) (per curiam)); see also A.N.S.W.E.R. Coal. v. Jewell, 292 F.R.D. 44, 50 (D.D.C. 2013) (noting that the privilege serves, among other things, to prevent interference with law enforcement investigations). The privilege, however, is a qualified one. In re Sealed Case, 856 F.2d at 272. The court therefore must weigh "[t]he public interest in nondisclosure ... against the
Tuite v. Henry, 98 F.3d 1411, 1417 (D.C. Cir. 1996) (quoting In re Sealed Case, 856 F.2d at 272). As these factors demonstrate, the evaluation of "need" is an "elastic concept that does not turn only on the availability of the information from an alternative source." Id. Once, as here, the government has properly claimed the privilege, the burden rests on the requesting party to establish its need for the disclosure. In re Anthem, 236 F.Supp.3d at 158; see Tuite, 98 F.3d at 1417-19; cf. In re Sealed Case, 121 F.2d 729, 737-38 (D.C. Cir. 1997).
Balancing these factors, the court finds that the requested testimony is not protected by the law enforcement privilege because BuzzFeed's need for the limited information sought outweighs the public's interest in non-disclosure. To start, the following factors, per their numbering in Tuite, already have been determined to weigh in favor of disclosure: (4) the information sought is purely factual; (5) BuzzFeed is not a defendant in a current or potential criminal proceeding; (8) BuzzFeed's Motion to Compel is non-frivolous and brought in good faith; (9) the answers that BuzzFeed seeks are not available through other discovery or from other sources; and (10) the discovery demanded is critical to BuzzFeed's defense in the Florida litigation. On the other hand, the court summarily can identify one factor that weighs against disclosure: (6) the DOJ's and the FBI's investigation into Russian interference with the 2016 presidential election is ongoing. The court devotes greater discussion to the remaining pertinent considerations, factors (1) and (2).
The court is unconvinced that the disclosure of the limited discovery here (1) will thwart government processes by discouraging citizens from sharing information with the government, or (2) will result in revealing the identity of a source of information. Ordinarily, this court would be disinclined to compel even modest factual disclosures about an ongoing law enforcement investigation. The risk attendant to such judicial intervention is obvious. But this is no ordinary investigation. Caution and discretion — typically hallmarks of federal
As all of these disclosures show, an unprecedented amount of information about the Dossier's origin and its use in an ongoing investigation is already in the public domain. What BuzzFeed seeks to confirm through its subpoenas would add to this information only at the margins. More than anything, in its three inquiries, BuzzFeed asks the Government Respondents to confirm dates by which the FBI acquired pages of the Dossier, including from Senator McCain, and when President Obama was briefed on its contents. The disclosures already authorized by President Trump, by comparison, are of a far greater magnitude. The court can only assume that the information declassified and released, at the President's direction, was determined to be of the kind whose disclosure would not discourage citizens from coming forward with information and would not compromise a source's identity. Cf. McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983) (holding in FOIA context that courts should "defer to CIA judgment as to the harmful results of publication" and apply the "presumption of regularity" if a rational explanation for classification is offered). On the public record, the Government Respondents offer no convincing reason to conclude otherwise.
Admittedly, the Government Respondents make more specific arguments to justify protecting the requested testimony from disclosure in their in camera, ex parte submissions. The court addresses and rejects those arguments in an addendum to this opinion, which the court files under seal and serves only on the Government Respondents, see Notice of Ex Parte, In Camera Sealed Addendum, ECF No. 34.
In sum, the court finds that any threat posed by the release of the requested information to an ongoing law enforcement investigation is minimal, and such nominal threat cannot carry the day when balanced against BuzzFeed's critical need for the information to defend itself in the Florida litigation. Thus, the court finds that the information sought by BuzzFeed is not protected by the law enforcement privilege.
For the reasons stated above, the court finds that the testimony sought in BuzzFeed's narrowed subpoena demand: (1) seeks testimony that is relevant to its affirmative defense in the underlying Florida litigation based on the fair report privilege; (2) does not impose an undue burden on the Government Respondents; and (3) does not call for disclosure of privileged information, as the Government is unable to claim the qualified protection of the federal law enforcement privilege in this case. Accordingly, the court grants BuzzFeed's Motion to Compel, ECF No. 1, as modified by its March 1, 2018 Status Report, see ECF No. 22, and in accordance with the terms this Order.
The Government shall produce a sworn affidavit that is responsive to the three narrowed topics of testimony set forth in BuzzFeed's Status Report dated March 1, 2018, as modified below, within three business days of entry of the protective order in the Florida litigation, see infra. In the exercise of its discretion, see Watts, 482 F.3d at 509, the court has reworded the three inquires to increase the likelihood of a simple "yes" or "no" response. For purposes of these interrogatories, the term "Dossier" shall mean the 35 pages published by BuzzFeed as embedded in the Article.
Furthermore, to protect "both the litigant's right to evidence and the government's interest in not being used as a speakers' bureau for private litigants," id. (internal quotation marks omitted), the affidavit submitted by the Government Respondents shall be produced subject to a protective order. Such a protective order should include, at a minimum, the following conditions: (1) BuzzFeed may use the affidavit on an "Attorneys' Eyes Only" basis solely to support its defense in the Florida litigation; (2) the affidavit may be disclosed to the Florida plaintiffs on an "Attorneys' Eyes Only" basis, upon the plaintiffs' counsel's agreement to be bound by the protective order; (3) unless the Florida court orders otherwise, the affidavit shall be filed under seal if used in connection with any motions practice; and (4) unless the Florida court orders otherwise, the affidavit's use at a hearing or trial will be subject to use restrictions agreed-upon by BuzzFeed and the Government Respondents. The parties shall file such a protective order for the Florida court's signature no later than August 24, 2018.
Finally, because the court grants BuzzFeed's Motion to Compel, the court denies as moot BuzzFeed's "Motion to Strike or, in the Alternative, for an Order Compelling Defendants to File a Redacted Version of Their Ex Parte, In Camera Declaration," ECF No. 11.
This is a final, appealable order.
