United States District Court, S.D. Florida
ALEKSEJ GUBAREV, XBT HOLDING S.A., and WEBZILLA, INC., Plaintiffs,
BUZZFEED, INC. and BEN SMITH, Defendants.
J. O'SULLIVAN, UNITED STATES MAGISTRATE JUDGE
MATTER came before the Court on the defendants' assertion
of the reporter's privilege in response to the
plaintiffs' document requests.
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).
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.
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).
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
matter is ripe for adjudication.
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
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.