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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
)
)
Plaintiffs,
)
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE, et al.,
)
)
Defendants.
)
_________________________________________ )
BUZZFEED, INC., et al.,

Case No. 17-mc-02429 (APM)

MEMORANDUM OPINION AND ORDER
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

1

Throughout this opinion, the term “Dossier” is meant to refer only to the 35 pages of memoranda published by
BuzzFeed News. No other inference ought to be drawn regarding the contents or composition of Christopher Steele’s
reporting from the court’s usage of the term “Dossier.”

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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, BuzzFeed 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.

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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,

2

The Article, which is attached as an exhibit to the Florida Complaint, can be found at pages 18–21 of the document
labeled ECF No. 1-3. The Article is also available at: https://www.buzzfeed.com/kenbensinger/these-reports-allegetrump-has-deep-ties-to-russia.

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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.
The 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

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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:
[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 Ale[ks]ei GUBAROV 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 [sic] contingency 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 other
operators were stood down/able to go effectively to ground to cover
their traces.
Id. ¶ 26 (alteration and emphasis omitted); see also Fla. Compl., Ex. 3 [hereinafter Dossier], at
35. 3 As noted, the Dossier is a compilation of separate memoranda. The above-quoted language
can be found in the penultimate paragraph of the last of the memoranda published by BuzzFeed,
which is dated December 13, 2016, and identified as “Company Intelligence Report 2016/166.”
See Dossier at 34–35. As discussed below, the date by which the Government received Report
2016/166 turns out to be critical information that BuzzFeed seeks to mount its defense.

3

The Dossier, which is reproduced and attached as an exhibit to the Florida Complaint, can be found at pages 22–57
of the document labeled ECF No. 1-3. Citations herein refer to the page numbers of the Dossier itself.

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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 (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.
3.

The Subpoenas

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 sought testimony from a designated
representative of four federal agencies—the Department of Justice (“DOJ”), the Federal Bureau
of Investigation (“FBI”), the Central Intelligence Agency (“CIA”), and the Office of the Director
of National Intelligence (“ODNI”)—as well three former officials of those agencies—Comey,
Brennan, and Clapper. MTC at 10; Opp’n at 4.
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]

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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.
B.

Procedural History
1.

BuzzFeed’s Narrowing of the Subpoenas

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. 4

The Government

Respondents opposed the Motion to Compel on November 13, 2017, objecting to BuzzFeed’s
subpoena request, even as further narrowed, on three grounds: (1) relevance, (2) undue burden,
and (3) the law enforcement privilege. See Opp’n at 1–2. The Opposition included an ex parte, in

4

Those topics are as follows: (1) “Whether the content of the Dossier was being investigated as of January 10”;
(2) Whether the Dossier was the subject of a counter-intelligence investigation, or any other form of investigation, as
of January 10”; (3) “Whether DOJ had all the pages of the Dossier that BuzzFeed published as of January 10”;
(4) “That Mr. Comey confirm his written statement to the Senate about his January 6 briefing of President-elect
Trump”; (5) “Whether a summary of the Dossier’s contents was included in material provided to President-elect
Trump”; (6) “Whether Mr. Comey participated in briefing President Obama about the Dossier on or about January 6
in his official capacity as the FBI Director”; (7) “Whether DOJ/FBI received the Dossier from Senator McCain’s
office on December 9, and whether DOJ/FBI received anything else subsequently from Senator McCain’s office or
any other representative of Senator McCain”; (8) “That Brennan, Clapper and Rogers also participated in briefing
President Obama about the Dossier on January 6, in their official capacities and provided a written synopsis of the
Dossier”; and (9) “That agencies of the US Government were attempting to verify the contents and sourcing of the
Dossier prior to January 10, as referenced in Mr. Clapper’s May 8 testimony before the Senate Judiciary Committee.”
MTC at 12–13. Moreover, as in BuzzFeed’s initial narrowed request, the Motion to Compel only seeks deposition
testimony, not records, see id. at 12, and does not seek to compel enforcement of the subpoenas issued to the CIA and
Brennan, see id. at 11 n.2.

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camera submission, see generally Opp’n, Defs.’ Notice of Lodging of Ex Parte, In Camera Decl.,
ECF No. 8-1, whose filing BuzzFeed opposed, see Mot. to Strike, or in the Alternative, for Order
Compelling Defs. to File Redacted Version of Ex Parte, In Camera Decl., ECF No. 11.
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:
Narrowed Topic No. 3: Whether, prior to 5:20 p.m. Eastern
time on January 10, 2017, the FBI and/or any of the other Defendant
agencies had the last two pages of the Dossier as it was published
by BuzzFeed. Alternatively, if the Defendants were able to simply
confirm that as of that time and date the FBI and/or any of the other
Defendant agencies had the 35 pages of the Dossier that were
published by BuzzFeed, that would be acceptable.
Narrowed Topic No. 7: Whether on or about December 9,
2016, the FBI received from Senator John McCain a copy of the
Dossier containing the first 33 pages published by BuzzFeed. . . . .

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Narrowed Topic No. 8: Whether, prior to January 10, 2017,
Mr. Clapper, Mr. Rogers, Mr. Brennan, and/or Mr. Comey briefed
President Obama about the Dossier and provided a synopsis of it.
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.
2.

Classification Review of Requested Information

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 No. 23. On May 25, 2018, the court held a classified, ex parte, in camera
hearing to discuss the newly filed declaration.

See Minute Entry, May 25, 2018. In that

declaration, the Government Respondents asserted that certain of the information sought was in
fact classified. That assertion prompted the court to issue an ex parte, in camera order that, among
other things, asked the Government Respondents whether they intended to invoke the state secrets
privilege with respect to the classified material. See Notice of Ex Parte, In Camera Order, ECF

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No. 26. Ultimately, the Government Respondents indicated that they did not intend to assert the
state secrets privilege, and that the information initially classified would be declassified. See
Resps.’ Notice of Lodging of Classified, Ex Parte Filing, ECF No. 29; Resps.’ Notice of Lodging
of Classified, Ex Parte Filing, ECF No. 31; Resps.’ Notice of Lodging of Classified, Ex Parte
Filing, ECF No. 32. Thus, the only privilege that the Government Respondents assert is the one
that they invoked at the outset: the law enforcement privilege.
The court now turns to the merits of BuzzFeed’s Motion to Compel.
III.

LEGAL STANDARD
“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. SEC, 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).

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IV.

DISCUSSION
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.
A.

Relevance

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 14.5 In response, the Government Respondents offer a litany
of reasons why the fair report privilege is inapplicable as a matter of law, and thus why the
requested testimony is irrelevant to BuzzFeed’s ability to avail itself of that privilege in the Florida
litigation. See Opp’n at 12–22. Yet what started arguably as a difficult question is no more: The
District Court in Florida has ruled that the fair report privilege is a viable defense for BuzzFeed
and that, to prevail, BuzzFeed must support the defense with evidence.
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

5

In its Motion to Compel, BuzzFeed also argues that the requested testimony is “highly relevant” because it could
establish that the Article is not false. See id. at 14–15. The court, however, need not assess this separate theory of
relevance. As discussed below, the Florida court already has determined that discovery concerning the existence of
an FBI investigation into the truth of the Dossier’s allegations, as well as classified presidential briefings related to
those allegations, is relevant to BuzzFeed’s assertion of the fair report privilege as an absolute defense in the
underlying litigation.

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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

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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, the court explained
that the success or failure of BuzzFeed’s fair-report-privilege defense will “turn[ ] on whether facts
essential to its application are disputed.” Id. at 19. Thus, although the court presumed as true for
purposes of the motion that the “the official actions described in the CNN article (the classified
briefings and the FBI investigation) actually occurred,” BuzzFeed still must support the occurrence
of those official actions with proof. See id. As the court put it succinctly, “[i]f discovery reveals
that they did not [occur], then there was, in fact, no official action.” Id.
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.
B.

Undue Burden

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.

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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). 6
Starting with the question of costs, the Government Respondents’ argument is that
compelling them to answer even the limited inquires posed by BuzzFeed would divert crucial
resources away from important law enforcement and intelligence community priorities. Opp’n at
12, 31.

To be sure, “discovery under Rules 26 and 45 must properly accommodate ‘the

government’s serious and legitimate concern that its employee resources not be commandeered

6
Although the D.C. Circuit phrased the third factor slightly differently in Watts, see 482 F.3d at 509 (quoting Fed. R.
Civ. P. 26(b)(1)–(2) (2006)), Rule 26(b) has been revised since that decision, see Fed. R. Civ. P. 26(b)(1)–(2) (2015).
However, the Circuit’s observation in Watts that Rule 26(b)(1)–(2) requires district courts to consider a number of
factors potentially relevant to the question of undue burden “remains true of the present language.” Dunlap v.
Presidential Advisory Comm’n on Election Integrity, No. 17-cv-2361, 2018 WL 3150217, at *6 & n.4 (D.D.C. June
27, 2018). Indeed, the Advisory Committee Notes make clear that the 2015 amendment—which moved the concept
of proportionality from Rule 26(b)(2) to Rule 26(b)(1)—did not meaningfully change the court’s obligation to limit
discovery where the “burden or expense of the proposed discovery outweighs its likely benefit,” Watts, 482 F.3d at
509. See generally Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment (“The present amendment
restores the proportionality factors to their original place in defining the scope of discovery. . . . Restoring the
proportionality factors to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to
consider proportionality . . . . Rule 26(b)(2)(C)(iii) is amended to reflect the transfer of the considerations that bear on
proportionality to Rule 26(b)(1). The court must still limit the frequency or extent of proposed discovery . . . if it is
outside the scope permitted by Rule 26(b)(1).”).

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into service by private litigants to the detriment of the smooth functioning of government
operations.’” Watts, 482 F.3d at 509 (quoting Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d
774, 779 (9th Cir. 1994)). Here, however, that concern is heavily mitigated by BuzzFeed’s
substantial narrowing of its original subpoenas. What started as a demand for documents and
testimony covering nine separate topics is now a request to respond by sworn affidavit to three
discrete questions, which likely can be answered with a simple “yes” or “no.” Not a heavy lift.
Compare March Status Report, with Davis Enters. v. EPA, 877 F.2d 1181 (3d Cir. 1989) (rejecting
request for deposition testimony of agency employee during work hours); Moore v. Armour
Pharm. Co., 927 F.2d 1194 (11th Cir. 1991) (rejecting request for deposition testimony of agency
employee who was noted AIDS researcher); Town of Sw. Ranches v. ICE, No. 15-cv-21924, 2016
WL 4264049 (S.D. Fla. Aug. 12, 2016) (rejecting request for deposition of one current and one
former agency employee). Thus, any concern that might have been present at the start of this
matter about the commandeering of government resources creating an undue burden has largely
evaporated.
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,

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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 (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 (Sup. Ct. N.Y. Cty.)). 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 CDC’s lead researcher to testify, and noting, by way of example, that “[b]y
1989, AIDS litigation relating to just . . . the situation in the present case[ ] had produced more
than 200 cases,” prompting “more than fifty requests for AIDS-related deposition testimony” from
three of CDC’s employees). Moreover, the prospect of future similar lawsuits wanes by the day.
See, e.g., D.C. Code § 12-301(4) (providing one-year limitations period for libel and slander
claims); N.Y. C.P.L.R. § 215(3) (same); Fla. Stat. § 95.11(4)(g) (establishing two-year limitations
period for libel and slander claims). Thus, granting BuzzFeed’s limited request here is not likely
to unleash the blizzard of demands that the Government Respondents fear.
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

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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). 7
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

7

Arguably, some of the requested evidence could come from Senator McCain, but that route poses its own challenges.
See, e.g., U.S. Const., art. I, § 6, cl. 1 (Speech or Debate Clause).

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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 who publish source
documents, especially in matters of significant national and international attention. Instead of
denigrating that substantial interest, the Government Respondents should endorse it.
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. 8

8

The Government Respondents assert that undue burden would result for two other reasons: (1) disclosure would
require the revelation of “previously undisclosed details about an ongoing law enforcement investigation,” Opp’n at
26 n.11; and (2) the public interest favors “allowing government officials to attend to their official responsibilities,”
particularly where those responsibilities involve “ongoing intelligence and law-enforcement activities,” rather than
providing evidence in a matter “in which the Government has [no] interest,” id. at 31. Although these are valid
considerations in analyzing the extent of the burden, see In re Micron, 264 F.R.D. at 9–10, these factors are likewise
relevant to the question of whether the law enforcement privilege protects against BuzzFeed obtaining the soughtafter evidence. So, to avoid redundancy, the court addresses these two factors in the next section.

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C.

Law Enforcement Privilege

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:
(1) there must be a formal claim of privilege by the head of the
department having control over the requested information;
(2) assertion of the privilege must be based on actual personal
consideration by that official; and (3) the information for which the
privilege is claimed must be specified, with an explanation why it
properly falls within the scope of the privilege.
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 need of a particular litigant for access to the privileged information.”
Id. To make this determination, the court must consider a bevy of factors:
(1) the extent to which disclosure will thwart governmental
processes by discouraging citizens from giving the government
information; (2) the impact upon persons who have given
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information of having their identities disclosed; (3) the degree to
which governmental self-evaluation and consequent program
improvement will be chilled by disclosure; (4) whether the
information sought is factual data or evaluative summary;
(5) whether the party seeking discovery is an actual or potential
defendant in any criminal proceeding either pending or reasonably
likely to follow from the incident in question; (6) whether the police
investigation
has
been
completed;
(7) whether
any
interdepartmental disciplinary proceedings have arisen or may arise
from the investigation; (8) whether the plaintiff’s suit is nonfrivolous and brought in good faith; (9) whether the information
sought is available through other discovery or from other sources;
[and] (10) the importance of the information sought to the plaintiff’s
case.
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

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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). 9
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 criminal and national

security investigations—have given way to unprecedented public disclosures. President Trump
has declassified substantial information about the Dossier’s provenance and its use by federal
investigators, largely through the authorized release of two congressionally drafted memoranda
and the Foreign Intelligence Surveillance Act (FISA) warrant applications targeting the President’s
former campaign advisor, Carter Page. From one congressional memorandum, the public now
knows that former British intelligence operative, Christopher Steele, drafted the Dossier; that the
FBI relied in part on portions of the Dossier’s contents to secure a FISA warrant on Carter Page in
October 2016; that, at the same time, the FBI was undertaking efforts to corroborate the allegations
contained with the Dossier; and, perhaps most significant to this case, that “in early January 2017,
Director Comey briefed President-elect Trump on a summary of the Steele dossier.” See Notice
of Suppl. Information, ECF No. 18, Ex. A, ECF No. 18-1 (Nunes Memo).
congressional memorandum reveals additional details.

It informs that:

The second

Steele shared his

“reporting . . . with an FBI agent . . . through the end of October 2016”; the counterintelligence

9

Neither factor (3)—the degree to which governmental self-evaluation and consequent program improvement will be
chilled by disclosure—nor factor (7)—whether any interdepartmental disciplinary proceedings have arisen or may
arise from the investigation—appear to have any relevance to this matter.

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team at the FBI investigating Russian interference did not receive “Steele’s reporting” until “midSeptember 2016”; the Department of Justice applied for the Carter Page FISA warrant on October
21, 2016; and “[t]he FBI has undertaken a rigorous process to vet allegations from Steele’s
reporting.” See Memorandum from the House Permanent Select Committee on Intelligence to All
Members

of

U.S.

House

of

Representatives

(Jan.

29,

2018),

https://docs.house.gov/meetings/IG/IG00/20180205/106838/HMTG-115-IG00-20180205SD002.pdf (Schiff Memo). 10

Finally, the released Carter Page FISA application confirms that

Steele—identified in the application as “Source #1”—has been an FBI source and that he turned
over “reporting” to the FBI. See In re Carter W. Page, “Verified Application,” U.S. Foreign
Intelligence

Surveillance

Court

(Oct.

2016),

at

15

&

n.8,

16,

https://int.nyt.com/data/documenthelper/95-carter-page-fisa-documents-foiarelease/full/optimized.pdf. 11 And there is one more pertinent piece of public information: Senator
McCain has publicly acknowledged that he turned over the Dossier to Director Comey. See MTC,
Ex. 18, ECF No. 2-7 (Press Release from Senator John McCain, dated January 11, 2017) (“Late
last year, I received sensitive information that has since been made public. . . . I delivered the

10

For the accompanying declassification letter from the DOJ, see Press Release, U.S. House of Representatives
Permanent Select Committee on Intelligence, Democrats, Intel Committee Ranking Member Schiff Releases
Democratic
Response
Memo
(Feb.
24,
2018),
https://democratsintelligence house.gov/news/documentsingle.aspx?DocumentID=358 (attached under “Related Files” as “Letter to
Chairman 2.24.18”).
11

The New York Times published the 412-page document containing the redacted Carter Page FISA application(s)
on July 21, 2018, apparently after it was released to the Times in connection with underlying Freedom of Information
Act (“FOIA”) litigation in the U.S. District Court for the Southern District of New York. See Charlie Savage, Carter
Page FISA Documents Are Released by Justice Department, N.Y. Times (July 21, 2018),
https://www.nytimes.com/2018/07/21/us/politics/carter-page-fisa.html (click “Read documents here”); see also N.Y.
Times v. U.S. Dep’t of Justice, No. 18-cv-2054 (S.D.N.Y. filed Mar. 7, 2018). As published, the Bates-stamped page
numbers in the document bear the case name “17-cv-597,” a clear reference to another FOIA case that is pending
before this court, see James Madison Project v. U.S. Dep’t of Justice, No. 17-cv-597-APM (D.D.C. filed Apr. 4, 2017).
In that case, the Government recently confirmed that 412 pages of material reviewed in connection with the Page
FISA applications were declassified and released. See Status Report, James Madison Project, No. 17-cv-597, ECF
No. 36, at 1–2.

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information to the Director of the FBI.” (emphasis added)); accord John McCain et al., The
Restless Wave 238 (2018).
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

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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.
V.

CONCLUSION AND ORDER
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.
Revised Narrowed Topic No. 3: The Government need only
respond to one of the following and shall specify in its affidavit
whether it is answering (A) or (B):
(A) Prior to 5:20 p.m. EST on January 10, 2017, did the FBI
and/or any of the other Defendant agencies possess the two-page
memorandum contained within the Dossier dated December 13,
2017, i.e., Report 2016/166?

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(B) Prior to 5:20 p.m. EST on January 10, 2017, did the FBI
and/or any of the other Defendant agencies possess all 35 pages of
the Dossier?
Revised Narrowed Topic No. 7: Did the FBI receive from
Senator John McCain a copy of the first 33 pages of the Dossier (i.e.,
all pages other than Report 2016/166) on or about December 9,
2016?
Revised Narrowed Topic No. 8: Did Mr. Clapper,
Mr. Rogers, Mr. Brennan, and/or Mr. Comey, before January 10,
2017, brief President Obama about allegations contained in the
Dossier?
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.

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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.

Dated: August 3, 2018

Amit P. Mehta
United States District Judge

26