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Gubarev v. Buzzfeed, Inc.

United States District Court, S.D. Florida

December 21, 2017

ALEKSEJ GUBAREV, XBT HOLDING S.A., and WEBZILLA, INC., Plaintiffs,
v.
BUZZFEED, INC. and BEN SMITH, Defendants.

          ORDER

          JOHN J. O'SULLIVAN, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER came before the Court on the defendants' assertion of the reporter's privilege in response to the plaintiffs' document requests.

         BACKGROUND

         The instant action was filed on February 3, 2017 in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. On February 28, 2017, the defendants removed the case to this Court on the basis of diversity jurisdiction. See Defendants' Notice of Removal (DE# 1, 2/28/17).

         In their complaint, the plaintiffs allege a cause of action for defamation and defamation per se against the defendants arising from the defendants' January 10, 2017 online publication of an article and an unverified dossier. See Complaint for Damages (DE# 1-3, 2/28/17) (hereinafter "Complaint"). The Complaint quotes an excerpt from the dossier:

[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 Alexei GUBAROV [sic] 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 contingency [sic] 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 that cyber [sic] and other operators were stood down / able to go effectively to ground to cover their traces.

Id. at ¶ 26.

         The plaintiffs have propounded document requests on the defendants. The defendants have asserted the reporter's privilege to requests that would tend to identify the source who provided the defendants with access to the dossier. On September 28, 2017, the undersigned held an informal discovery conference on this issue. After hearing argument from the parties, the undersigned ordered the parties to file briefs. See Order (DE# 79, 10/10/17).

         On October 16, 2017, the defendants filed their memorandum of law. See Defendants' Memorandum of Law Regarding the Reporter's Privilege Requested by Judge O'Sullivan (DE# 80, 10/16/17) (hereinafter "Defendants' Memorandum"). The plaintiffs filed their memorandum on November 1, 2017. See Plaintiffs' Memorandum of Law Regarding the Reporters' Privilege, as Requested by Judge O'Sullivan (DE# 83, 11/1/17) (hereinafter "Plaintiffs' Memorandum"). The defendants filed their reply on November 13, 2017. See Defendants' Reply Memorandum of Law Regarding the Reporter's Privilege (DE# 91, 11/13/17) (hereinafter "Defendants' Reply").

         This matter is ripe for adjudication.

         ANALYSIS

         The defendants argue that their source is protected under Florida law (Florida common law and the Florida Shield Law, Fla. Stat. § 90.5015), New York law (N.Y. Civil Rights Law § 79-h(b)) and the First Amendment reporter's privilege recognized by the Eleventh Circuit. See Defendant's Memorandum (DE# 80 at 2). Florida law and the First Amendment provide for a qualified reporter's privilege. New York law has an absolute privilege, Id. at 2. The defendants argue that the Court does not need to engage in a choice of law analysis because its source is protected under both Florida law and New York law. at 8. Alternatively, the defendants argue that if the Court is inclined to find that the source is not protected by the qualified reporter's privilege under Florida law, then the Court should engage in a choice of law analysis and find that New York law applies. Id. at 2.

         The plaintiffs seek to compel the disclosure of the source who provided the defendants with access to the dossier. See Plaintiff's Memorandum (DE# 83 at 2). Alternatively, the plaintiffs argue that "if Defendants are not required to produce the information concerning the identity of their source, they should be precluded from asserting certain defenses that are reliant on such source information and Plaintiffs should be relieved of the burden of presenting evidence as part of their case-in-chief that would require the disclosure of such information." Id. The plaintiffs maintain that the Court must apply Florida law in ruling on this issue. Id. at 7.

         A. ...


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