A Washington subpoena fight is bubbling over whether the intelligence company behind the salacious Trump-Russia dossier should have to turn over documents in a defamation case against BuzzFeed.
The underlying case in Miami federal court was filed by a Russian tech executive accused in the BuzzFeed-published dossier of hacking into Democratic Party leadership to help get President Donald Trump elected. The series of memos in the dossier were prepared by the Washington intelligence company Fusion GPS, a nonparty to the lawsuit that argues it shouldn’t have to reveal its sources or internal documents and communications.
Attorneys for the Russian businessman, Aleksej Gubarev, beg to differ.
“Fusion GPS insists that it is an entity that is accountable to no one,” Gubarev’s lawyers wrote in a pleading filed Tuesday in the District of Columbia. “Instead, Fusion insists that it should be permitted to make and aggressively disseminate defamatory statements, and then hide from discovery all information about the sources of its ‘information.’ “
The Fusion GPS dispute is just one of many uphill discovery battles attorneys involved in the BuzzFeed case are undertaking in Washington and around the world. Gubarev’s attorneys are also trying to depose the dossier’s British author, Christopher Steele, whom they’re suing separately in England. The Florida judge in the BuzzFeed case has ordered a British court to allow Steele to be deposed, but “it’s not going to be easy,” said Miami attorney Roy Black, defense counsel for BuzzFeed.
On top of that, BuzzFeed’s lawyers are trying to establish the truth of unverified claims made in the dossier by issuing subpoenas to the FBI, the CIA, the Justice Department and the Office of the Director of National Intelligence and former directors of those agencies, including James Comey.
Fusion GPS is asking U.S. District Judge Tanya S. Chutkan in Washington to quash the subpoena.
“Not only is this information sought privileged under the First Amendment, it is also not relevant to the underlying case,” Fusion’s counsel wrote in an Aug. 31 filing. “The underlying defamation case turns on Buzzfeed’s state of mind when it published the Trump Dossier … and whether any reporting privileges attach to its publication.”
The company argues it would present an undue burden to turn over information about its clients, hiring, ownership and the identities of the sources for the accusations against Gubarev in the dossier.
Gubarev’s attorneys argue Fusion GPS already agreed to “attorney’s eyes only” restrictions for any information provided, and the court could take steps other than quashing the subpoena to protect sources’ identities. Plaintiffs counsel also claim the requested information, such as a list of journalists who were given the dossier, is not protected by the First Amendment.
“Fusion is saying that it is entitled to call a press conference; disseminate defamatory information about plaintiffs to the gathered reporters(and others) and then refuse to even reveal what it said and to whom, because… First Amendment,” the attorneys wrote. “This position is absurd on its face.”
Fusion GPS is represented by Steven Salky, William Taylor III and Rachel Cotton of Zuckerman Spaeder in Washington.
Gubarev’s attorneys in the subpoena dispute are Walter Diercks and Jeffrey Harris of Rubin, Winston, Diercks, Harris & Cooke in Washington and Evan Fray-Witzer of Ciampa Fray-Witzer in Boston.