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BuzzFeed won an important procedural victory on Thursday when a Florida magistrate judge decided that the online news publication didn’t have to reveal the source of the infamous Trump Dossier, the spy report prepared by former British spy Christopher Steele that detailed everything from President Donald Trump’s supposed romps with prostitutes to coordination with the Russians over the hacking of Democrats.
Russian tech entrepreneur Aleksej Gubarev is suing BuzzFeed and editor Ben Smith for defamation over the publication of the Trump Dossier and has been seeking the identity of the individual who provided it.
In response, BuzzFeed asserted reporter’s privilege under the Florida Shield Law, which recognizes that journalists should be able to protect sources absent a substantial need for relevant information and the inability to obtain such info from an alternative source.
U.S. Magistrate Judge John O’Sullivan first decides in today’s decision that “there is nothing in the statute that limits the privilege to traditional print media” and that accordingly, BuzzFeed is covered under the Florida Shield Law.
Turning to the question of whether Gubarev and his company can overcome the privilege, O’Sullivan nods to the possibility that plaintiffs can obtain BuzzFeed’s source through alternative means. The judge hears word that Gubarev has taken steps to depose Steele himself, has served a deposition subpoena on Fusion GPS — the firm that hired Steele — and has also served deposition subpoenas on The New York Times, The Wall Street Journal, The New Yorker, Mother Jones, CNN, Yahoo News, and William F.B. O’Reilly (a Republican political consultant, not the former Fox News anchor).
The possible depositions of Steele and Fusion GPS depend on separate legal proceedings. According to today’s ruling, The Wall Street Journal and The New York Times intend to challenge their own depositions, although it’s unclear whether they have indeed followed up on such challenges.
Nevertheless, O’Sullivan writes that plaintiffs “have not made a clear and specific showing that the identity of the source cannot be obtained through alternative sources” and has accordingly, denied a motion to compel.
Additionally, the judge won’t rule just yet whether BuzzFeed’s defenses and arguments should be limited at trial due to the assertion of reporter’s privilege.
In this case, BuzzFeed may lean on a different privilege — one that provides immunity from defamation claims based on a fair reporting of government proceedings. Gubarev’s attorneys have suggested that BuzzFeed not be able to do so if the publication’s sources remain murky or weren’t obtained via a government official. O’Sullivan responds that the request to limit BuzzFeed’s defenses is “premature” with discovery ongoing and the possibility that the plaintiffs may learn the identity of the Trump Dossier source through a third party.
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